Here is the thing that astounds me. In most, if not all, of the rhetoric surrounding the President's nominees the left appears to argue that if the judges decline to rule in a proactive way that supports their agenda then they are activists. What? If you can read between the rhetorical lines you see that what the left tries to disguise as an argument against judicial activism is in fact just an argument against anti-liberal bias. It has become a merry-go-round mind-set that sees anything contrary to the support of liberal doctrine as right-wing activism and any mention of judicial activism from the right as interference with an independent judiciary, "radical" dogma, and creating an atmosphere of violence against judges. The inconvenient fact that none of that is true does little to stop the incessant calliope music that accompanies this ride to nowhere.
Their arguments against Judge Brown are based mainly on speeches she has given rather than decisions she has rendered. One argument that is repeatedly presented is her dissent in San Remo Hotel v. San Francisco. Peter Kirsanow examines this, along with other issues surrounding Brown, in this NRO Article.
"Taylor suggests that Brown's dissent from the majority opinion upholding the law indicates she "would invalidate laws redistributing wealth from one group to another." Obviously, such invalidation could affect much New Deal and Great Society legislation, including Social Security and Medicare.
But Brown's dissent is not nearly so expansive. Rather, it's wholly consistent with mainstream (although, admittedly, libertarian-leaning) jurisprudence that holds that broad societal burdens may not encumber the property rights of a discrete or insular class of individuals. Moreover, Brown was referring only to laws pertaining to real property rights, not legislation that may otherwise have the effect of redistributing wealth (Social Security, etc.)."
Finally, Brown is among the "protected" group of nominees on the "Memorandum of (one-sided) Understanding". It will be interesting and perhaps informative to listen to the left as they reluctantly, but benevolently, "allow" this nominee to receive the vote she deserves. I think that the quote from Harry Reid is particularly telling. "We've spent weeks and weeks debating radical judges," he said. "But we haven't spent a single day debating a health care plan, or a jobs plan, or an education plan that will help hardworking Americans. Radical judges don't deserve our attention."
I can't get the Calliope music out of my head. :-)
