Civil libertarian Nat Hentoff explains how “prejudicially selective” the Democratic attacks on judicial nominee Janice Rogers Brown have been. The Democrats accuse Brown of being hostile to civil rights, for example, but ignore opinions in which she has been more solicitous of minority rights than her colleagues on the California Supreme Court. Moreover, the Democrats attack Brown for dissenting from a ruling that an injunction against the use of racially offensive epithets in the workplace did not violate the First Amendment. However, according to Hentoff, the opinion in question authorized a trial judge to put together a list of words that could not be uttered even out of the presence of employees. Stanley Mosk, a long-time liberal California Supreme Court judge, agreed with Brown that “the offensive content of using any one or more of a list of verboten words canot be determined in advance.”
The Democrats and the liberal MSM are fond of claiming that the Republicans are assaulting judicial independence. But isn’t judicial independence at risk when partisan politicians and interest groups selectively cite opinions by judges with which they disagree in order to block the judges from advancing to a higher court? It seems to me that unless opinions are analyzed in good faith, with an eye towards the judges’ full body of work and a willingness to accept some opinions one doesn’t like, it represents an attempt to discourage independent judicial thinking. Hentoff goes a long way towards showing that the Democrats are not looking at Brown’s work in good faith.
It also seems to me (as it seemed to professor Steven Calebresi) that the desire to insist on orthodoxy and the unwillingness to accept independent thinking is particularly pronounced when it comes to judges and nominees who are members of a minority group.
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