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A Democratic filibuster of Janice Rogers Brown may come as no surprise to people who follow judicial nominations closely. After all, the California Supreme Court justice has drawn opposition almost from the moment that President George W. Bush nominated her to the U.S. Court of Appeals for the D.C. Circuit. But what may come as a shock � and what emerged as a possibility at Brown’s four-hour Oct. 22 confirmation hearing � is that she may not even make it out of the GOP-run Senate Judiciary Committee. With Sen. Arlen Specter (R-Pa.) declaring himself so far uncommitted, Brown, 54, still hasn’t locked up a majority on the 19-member panel. And Sen. Dianne Feinstein (D-Calif.), who has voted for some Bush nominees, showed no sign during the hearing that she was inclined to support Brown. The committee has approved several controversial judicial nominees this year on party-line votes, but Democrats have successfully filibustered three of them. D.C. Circuit nominee Miguel Estrada, for example, recently withdrew in the face of a sustained filibuster. (Another D.C. Circuit choice, White House aide Brett Kavanaugh, has not yet had a Judiciary hearing.) And all year long, Feinstein’s position has been the touchstone for her party’s success in defeating a nominee. She voted in committee for 6th Circuit pick Jeffrey Sutton, and Sutton is now a sitting judge. Specter, the only one of 10 Judiciary Republicans who occasionally expresses maverick views on a Bush judicial nominee, said at the hearing’s outset that he hadn’t yet made up his mind on Brown. “I want to know what your real views are, and I want to listen to what you have to say,” Specter told Brown. Specter said he had recently received a call from former California Gov. Pete Wilson, who put Brown on that state’s bench and who also served with Specter in the U.S. Senate. “Pete Wilson had words of high praise for Justice Brown,” Specter said. The Pennsylvanian also criticized his Democratic colleagues for judging Brown before listening to what she said. “You are entitled to a fair hearing before you are convicted or acquitted,” Specter told Brown. Later, Specter asked Brown to explain aspects of three of her most controversial opinions on California’s highest court: Aguilar v. Avis Rent A Car Systems, a 1999 dissent in which Brown said the First Amendment does not permit an injunction against racial slurs in the workplace; Hi-Voltage Wire Works Inc. v. City of San Jose, in which she wrote an opinion striking down a city’s minority outreach program in 2000 under state law; and American Academy of Pediatrics v. Lungren, a 1997 dissent in which she voted to uphold a state statute requiring parental notification for young women who want abortions. Regarding Lungren, Specter, a longtime supporter of abortion rights, asked Brown whether it is possible that the California Constitution protects the right to privacy to a higher degree than does the U.S. Constitution. “Such an argument can be made,” Brown conceded, noting that the California Constitution contains the word privacy, which is not found in the U.S. Constitution. In a C-SPAN appearance the day after the hearing, Specter said, “I thought that [Brown] presented herself well. . . . I want to study her record in greater detail than just the hearing. . . . I’m concerned about a decision that she had on affirmative action. I’m concerned about a decision which she had on parental consent. These are complicated issues. Her opinions are very long, very scholarly, and they take some time to read and digest.” Kay Daly, president of the conservative Coalition for a Fair Judiciary and a leading Brown supporter, says she is not concerned about Specter’s approach. “Rather than prejudging the nominee, Specter is simply taking her measure on his own, without relying on talking points prepared by groups like People for the American Way, who act as puppet masters for many senators,” Daly says. Feinstein, the other key senator on the panel, did not formally announce opposition to Brown’s confirmation. But Feinstein expressed serious reservations about Brown’s recent speeches to conservative groups. A speech Brown made in 2000 to the Chicago chapter of the Federalist Society especially troubles Feinstein and other Democrats. In that speech, Brown bashed government, saying that “where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.” She seemed to criticize the New Deal as elevating personal rights over property rights, saying, “Protection of property was a major casualty of the Revolution of 1937.” Feinstein told Brown at the hearing, “The speeches are extraordinary for a judge to make. Your views are stark. Is that the real you? Will that be the real you on the most important circuit court in the land?” Brown replied, “I may be candid and passionate, but I am not intemperate. I am passionately devoted to the ideals on which the country is founded.” Daly says she remains “hopeful that people like Dianne Feinstein will look carefully at what Janice Rogers Brown has to offer and will be reasonable in letting her at least get out of the committee.” But Marcia Kuntz, director of the Judicial Selection Project of the liberal Alliance for Justice, says Feinstein “appeared to be appropriately skeptical of Brown’s ability to separate her personal views from what the law requires.” Sen. Richard Durbin (D-Ill.), who took the lead in questioning Brown, excoriated Brown for allegedly endorsing the doctrine of Lochner v. New York. That was a 1905 Supreme Court ruling that critics say formed the high-water mark of judicial activism on behalf of economic rights. Even conservatives such as Robert Bork and Judiciary Committee Chairman Orrin Hatch of Utah criticize Lochner, Durbin said. Brown responded that she too disavows the holding of Lochner. Since the justices there had “used the due process clause as a blank check to insert their political views, they were justly criticized,” she said. In her speeches, Brown continued, she was simply trying to “stir the pot a little and get people to think.” Speeches, she said, “are sometimes an opportunity to think out loud.” But Brown also defended her ideas, saying she thought the Framers of the Constitution cared about property rights as well as human rights. “In fact, the American Revolution was fought over property rights,” she told Durbin. “I think that the Founders saw liberty and property rights as indivisible. If you do not have a roof over your head, your political rights are not going to be very meaningful.” Republicans on the panel emphasized Brown’s background as a black woman raised in the segregated South who rose to the highest court of the nation’s most populous state. “She is personally all too familiar with the scourge of racism and bigotry,” said Sen. John Cornyn (R-Texas) while introducing Brown. But Democrats returned to Brown’s views on racially charged cases such as the San Jose ruling, which tossed out the city’s minority outreach program for subcontractors as a violation of a state bar on preferential treatment. Hatch and his fellow Republicans repeatedly referred to a cartoon from online journal The Black Commentator that featured unsightly caricatures of Bush administration officials Colin Powell and Condoleezza Rice, and Supreme Court Justice Clarence Thomas � with Brown drawn as a female Thomas in a fright wig. A blowup of the cartoon was put on an easel for all to see. Hatch called it a “vicious cartoon filled with bigotry” and appeared to be trying to associate it with the Democrats, many of whom blasted the cartoon as offensive. Brown said she had not planned an opening statement, but changed her mind after seeing the cartoon. “I have dealt with bigotry and hatred my whole life,” she said, “and it was very hurtful to see this cartoon that was derogatory to a group of black people and was circulated by another group of black people.” Mike McKee, a staff writer at The Recorder, the American Lawyer Media newspaper in San Francisco, contributed to this story.

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