Publication:Colo Spgs Gazette; Date:Jun 12, 2005; Section:Opinion; Page Number:35

A ‘moderate’ unmasked in fight over judges

OPINION SEAN PAIGE Editorial page editor

    The sound and fury over federal judicial nominees, although frequently generating more heat than light, has been instructive on a number of levels. Formerly esoteric terms such as “cloture and “filibuster” have gained new relevance. The raw political muscle being flexed underscored the central importance the courts have come to play in this society, as the final arbiters of virtually every dispute.

    And Coloradans had a chance to see a side of their newest senator they haven’t seen before. Buffeted by the political storm, Ken Salazar’s cultivated mask of moderation momentarily slipped . . . to reveal just another run-of-the-mill liberal.

    I know Salazar was one of the self-styled “centrists” who played a pivotal role in derailing a showdown over his colleagues’ abuse of the filibuster rule. But such a deal was necessary to save him from executing a complete flip-flop, in the tuck position, on the question of whether the stranded nominees deserved a vote. While running for office, he said they did. But once in Washington, after a bit of tutoring, he joined the obstructionists. The “compromise” helped him avoid a major belly flop.

    But his words, even more than his deeds, have betrayed him. Take, for example, the floor speech he delivered last week in opposition to Janice Rogers Brown, the California Supreme Court judge confirmed after two years of being dragged through the mud. Instead of showing his vaunted “independence,” Salazar ran with the party pack.

    “Among the most important characteristics we rightly demand of our federal judges are that they have an open mind, are free from bias, and have a temperament that does not inflame passions,” Salazar said. “Janice Rogers Brown, in my view, fails these tests.”

    But is this really what we expect of judges? “Open mind” is often just another way of describing an “empty head.” Is it humanly possible to be “free from bias,” or is it enough that a judge understands the law and respects it enough not to read into the Constitution things that aren’t there?

    A temperament that does not inflame passions? Passions are bound to be inflamed by almost any court ruling, given the power we’ve vested in judges and the millions of lives impacted by their whims. And do we really want the bench stacked with jurists whose rulings, writings and rhetoric are watered down to a bland, passionless, politically correct gruel?

    America’s most notable jurists aren’t remembered and quoted because they minced words and cloaked decisions in euphemisms, but because of the strength of their legal reasoning and the effective use of rhetoric in making their points. And Brown, who is known for all these things, including brilliant rhetorical flourishes, has the makings of just such a jurist.

    Human beings sit on the bench, not the automatons of Salazar’s description. What judge can the senator point to who doesn’t bring a judicial philosophy or unique set of personal experiences to his or her work? There isn’t one. More necessary are judges who can hear a case and apply the law to the particulars without succumbing to the temptation to write themselves into the equation — judges humble enough to respect the integrity of the ideas handed down to us by the founders.

    Salazar accuses Brown of being “driven ideologically.” But what she’s really being pilloried for is not being ideological, or activist, enough. Brown's “ideology,” if one can call it that, requires a conservative and restrained reading of the Constitution. She’s reluctant to use her position to make social or political policy — which accounts for her frequent dissents from the majority view on the liberal California Supreme Court.

    Most Americans would much rather see federal judges ruling with an eye toward historical correctness than political correctness.

    Unable to cite cases when Brown’s legal rulings have been outrageously off the mark, Salazar and other critics instead focus on writings and speeches, in which she has delivered brilliant broadsides against the pretences and power of the federal superstate. Salazar cherry-picked a few of the pithier passages to paint her as an “extremist.”

    But Brown’s views on government are no more extreme than those held by the nation’s founders. Her speeches compare well with those that animated the American revolution, from Jefferson, Paine, Madison or Hamilton. What really rankles Democrats is that Brown tells the unvarnished truth about an institution liberals virtually worship — government.

    Brown is a mismatch for the Circuit Court of Appeals for the District of Columbia because she “is absolutely hostile to our government and to administrative agencies and to their essential work,” according to Salazar. But that’s where a healthy skepticism regarding the proper role and power of the federal government is most needed. There are plenty of judges willing to grant more authority to government, at the expense of the people, states and other democratic institutions. Otherwise, how did we all come to be living under Washington’s long shadow? We need at least a few people on the bench who recognize the dangers to our freedoms represented by unchecked federal power.

    Salazar’s sophistry on the Senate floor tells us far more about him than about the much-maligned Brown. The facade of moderation and independence has been peeled back after only half a year in the nation’s capitol. In words, votes and deeds, Salazar is becoming hard to differentiate from his most obnoxiously left wing colleagues.

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