"WASHINGTON - President Joe Biden wants credit for nominating the first Black woman to the Supreme Court. But here is the shameful irony: As a senator, Biden warned President George W. Bush that if he nominated the first Black woman to serve on the Supreme Court, he would filibuster and kill her nomination.
The story begins in 2003, when Bush nominated Judge Janice Rogers Brown to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country's second-most important court, and has produced more Supreme Court justices than any other federal court. Brown was immediately hailed as a potential Supreme Court nominee. She was highly qualified, having served for seven years as an associate justice of the California Supreme Court - the first Black woman to do so. But she was an outspoken conservative - so Biden set out to destroy her.
Biden and his fellow Democrats filibustered her nomination, along with several other Bush circuit court nominees, all of whom had majority support in the Senate. Columnist Robert Novak called it "the first full-scale effort in American history to prevent a president from picking the federal judges he wants." Democrats argued that she was out of the legal mainstream, but Republicans responded that she had written more majority opinions than any other justice on the California Supreme Court - and she was reelected with 76% of the vote, the highest percentage of all the justices on the ballot.
When Democrats derailed her nomination, Bush renominated her in 2005. Brown was eventually confirmed by a vote of 56 to 43 - after Democrats released her and several other Bush nominees in exchange for Republican agreement not to eliminate the filibuster for judicial nominations. Biden voted a second time against her nomination.
The following month, when Justice Sandra Day O'Connor announced her retirement, Brown was on Bush's shortlist to replace her. She would have been the first Black woman ever nominated to serve as an associate justice of the Supreme Court. But Biden appeared on CBS's "Face the Nation" to warn that if Bush nominated Brown, she would face a filibuster.
What Biden threatened was unprecedented. There has never been a successful filibuster of a nominee for associate justice in the history of the republic. Biden wanted to make a Black woman the first in history to have her nomination killed by filibuster. Bush eventually nominated Samuel A. Alito Jr.
Today, Biden calls the filibuster a "relic of the Jim Crow era." But he threatened to use that relic as a tool to keep a Black woman who actually lived under Jim Crow off the highest court in the land. The irony is that now he wants to get rid of the filibuster, and claim credit for putting the first Black woman on the court.
There were many conservatives on Bush's shortlist whose legal philosophy Biden opposed. But Biden only promised to filibuster the one Black woman. Why? Perhaps a clue lies in another confirmation fight that Biden helped wage. In 2001, Democrats blocked the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. According to internal strategy memos obtained by the Wall Street Journal, they targeted Estrada at the request of liberal interest groups who said Estrada was "especially dangerous" because "he is Latino, and the White House seems to be grooming him for a Supreme Court appointment." They did not want Republicans to put the first Hispanic on the Supreme Court. So, Biden and his fellow Democrats killed Estrada's nomination - the first appeals court nominee in history to be successfully filibustered. It paid off when President Barack Obama nominated Sonia Sotomayor as the first Hispanic justice.
Democrats' commitment to diversity is a ruse. Biden was willing to destroy the careers of an accomplished Latino lawyer and a respected Black female judge, and stop Republicans from putting either on the Supreme Court. For Democrats, it's all about identity politics. Indeed, Biden might not have become president had he not made the pledge to nominate a Black woman.
So, when Biden tries to bask in the glory of his historic nomination, remember Janice Rogers Brown - the Black woman who does not sit on the Supreme Court today because of Biden's disgraceful obstruction.
Marc Thiessen, Columnist"
Regards,
John Stiegelmeyer
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Your letter seems to only take into consideration the skin color of past nominees, in this century. You don't mention anything about the qualifications of the nominees from either period, or the lack thereof. Yes, President Biden did make the "promise" of nominating a black women, if he got a chance. Maybe something you haven't taken into consideration is that there are dozens upon dozens of qualified jurists across this country. Some of those happen to be black women. So, what he did, essentially, is take the first step in cutting his list of possible nominees down, during the campaign.
I could be reading more into your words, than are there, but it seems like you are of the opinion that Senator Biden's disagreement with a nominee in the past, was based on skin color. That he himself wanted the chance to appoint the first black woman to the Supreme Court. I get that feeling, because of the fact you didn't mention anything about qualifications in your letter. Perhaps the following letter, from The Leadership Conference on Civil and Human Rights, to then Senator Biden, will shed some light on that.
Dear Senator:
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, with more than 180 member organizations, we write to express continued opposition to the confirmation of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit. Brown’s record as a California Supreme Court justice demonstrates a strong, persistent, and disturbing hostility toward affirmative action, civil rights, the rights of individuals with disabilities, workers’ rights, and the fairness of the criminal justice system. Despite being filibustered by the Senate in the 108th Congress, Brown was re-nominated this year even though nothing in her record has changed to justify her confirmation. Therefore, when the nomination is re-considered by the Senate, Brown should again be rejected.
Janice Rogers Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream. Not only does she show an inability to dispassionately review cases, but her opinions are based on her extremist ideology and ignore judicial precedent, even that set by the United States Supreme Court.
Brown’s opinions on civil rights and discrimination cases are perhaps the most troubling part of her record, revealing a blatant disregard for judicial precedent and a desire to limit the ability of victims of discrimination to sue for redress. In Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999), the trial court found that the employer had violated the California Fair Housing and Employment Act by creating a hostile work environment through the use of racial slurs directed at Latino employees. On appeal, the California Supreme Court upheld the lower court’s remedy that prohibited the use of racial slurs in the future, holding that prevention of such speech was not a violation of the employer’s First Amendment rights. Brown dissented, arguing that the First Amendment protects the use of racial slurs in the workplace, even when it becomes illegal race discrimination. Brown’s dissent virtually ignored several Supreme Court precedents. Her opinion also went so far as to suggest that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, violates the First Amendment and is therefore unconstitutional.
In a case earlier this year, Brown attempted to overturn prior precedent regarding the protection of the rights of racial minorities and women. In People v. Robert Young, Brown wrote a concurring opinion in which no other justice joined. In this concurrence, Brown contradicted prior precedent and wrote that for the purpose of claiming that a prosecuting attorney has violated equal protection in the jury selection process, black women should not be considered a “cognizable group.” However, in 1985, the California Supreme Court held that black women are a “cognizable group” and that prosecutors may not use preemptory challenges to exclude jurors solely on the basis that they are black women. But Brown’s position would have overruled this precedent because she saw “no evidentiary basis” that “[b]lack women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group….” People v. Robert Young, 34 Cal. 4th 1149, 1237, (2005).
Janice Rogers Brown’s lone dissent in Konig v. Fair Employment and Housing Commission, 50 P. 3d 718 (Cal. 2002), would have seriously limited the redress options available to victims of housing discrimination. Brown found that the state Department of Fair Employment and Housing Commission, unlike the courts, did not have the right to award damages for emotional distress. Further, in Peatros v. Bank of America NT&SA, 990 P.2d 539 (Cal. 2000), Brown argued in dissent that the National Banking Act of 1864 pre-empted California’s fair employment law, thus preventing a bank employee from being able to file a lawsuit for race and age discrimination in state court. Justice Brown made this argument despite the fact that other more recent federal laws, such as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, would clearly supercede the 135-year-old banking law on this question.
Brown has also expressed a desire to limit legal recourse for people with disabilities who are victims of discrimination. In Richards v. CH2M Hill, Inc., 29 P.3d 175 (Cal. 2001), an employee sued her employer for disability discrimination based on her employer’s refusal to reasonably accommodate her disability over a five-year period. The state trial court awarded the plaintiff emotional distress and economic damages. On appeal, the employer argued that the statute of limitations had run on the allegations that were more than a year old at the time the case was filed, and thus liability should be greatly reduced. In its majority decision upholding the trial court’s verdict, the California Supreme Court adopted a version of the “continuing violation doctrine,” under which there may be liability for acts occurring outside the statute of limitations if they are sufficiently related to acts occurring within the prescribed time period. Brown’s lone dissent argued against use of the “continuing violation doctrine.” Rather, she asserted her view that plaintiffs should have to file separate lawsuits, subject to separate statutes of limitations, for each act of discrimination.
In City of Moopark v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued in dissent against allowing a disabled city employee to bring a cause of action under the state common law prohibiting employers from firing workers in violation of well-established, substantial, and fundamental public policies, such as the policy against firing people because they have a disability. As the author of the only dissent in Stevenson v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued that the plaintiff had failed to show that public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.” She further stated, “Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a ‘stigma of inferiority and second class citizenship’ (citation omitted); it is the unavoidable consequence of that universal leveler: time.”
Brown has also shown hostility toward affirmative action. Her majority opinion in Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1068 (Cal. 2000) has made it nearly impossible to have a meaningful affirmative action program in California. Justice Brown’s opinion went so far as to prohibit cities from requiring their contractors to reach out to subcontractor businesses owned by minorities and women. Her opinion also ignored legal precedent set by the U.S. Supreme Court. Despite consistent Court rulings that, under the right circumstances, affirmative action is permissible under federal law, Justice Brown stated that affirmative action was at odds with Title VII of the Civil Rights Act of 1964. While some of the result in this case may have been dictated by Proposition 209, California’s anti-affirmative action ballot initiative, her opinion clearly misinterpreted Proposition 209 and the intentions of California residents who voted for it. One of Brown’s California Supreme Court colleagues, who concurred with the result of the case, wrote that Brown’s opinion seriously distorted history and that she was not correct when she wrote that past decisions in favor of affirmative action were “wrongly decided.”
Justice Brown’s opinions have also shown great antagonism toward the rights of workers. In Loder v. City of Glendale, 927 P.2d 1200 (1997), a case addressing the constitutionality of a drug and alcohol testing program for employees of the City of Glendale, Brown, in dissent, exp
~The Leadership Conference on Civil and Human Rights