Monday, June 13, 2005

Deliver us from rhetorical smokescreens

When I was researching Janice Rogers Brown, of course I came up with a hundred clearly partisan sources for analyses and opinions. It's hard to say who is trustworthy when people are incredibly upset over complex issues. So I went to the Department of Justice hit, figuring that's where the Republican leadership would put its best foot forward, with the most optimistic and thorough defense possible. Silly me.

Maybe I simply don't understand how a nomination is convincingly shepherded through the Senate by a White House that earnestly believes in its nominee on merit. Even though she has been confirmed, I'm posting what I found--because it is clear that in order for the democratic process to work properly, we've got to demand a higher standard of accountability and quality from our public servants and the media. That starts with calling out the underperformers and the hacks. So, here's the only posted support letter the Department of Justice saw fit to give a nominee to their own department, with my own commentary bracketed in between paragraphs:

Gerald F. Uelmen, Professor, Santa Clara University School of Law
[originally printed as "Janice Rogers Brown has demonstrated all these qualities in abundance." Op-Ed The Record, August 9, 2003, page 5.]

"Too often, the best advice for those who want to rise in today's judiciary is 'keep your head down.' Unfortunately, the surest path to confirmation in this climate is anonymity. Judges who have compiled a track record of strong positions on controversial issues will be passed over. They shouldn't be, because a willingness to stick your neck out and accept criticism is often the hallmark of a great judge. A president or a governor should be willing to occasionally risk a
bruising confirmation battle to elevate a jurist with great potential to make a difference."

[I read: There are two kinds of judges, ones who prudently but spinelessly "keep their heads down", and ones who "stick their necks out and accept criticism" --often, the "great" ones. Furthermore, the right kind of leader (the great one?) is willing to go to the mat for this bold and ehem, presumably intellectually and ethically worthwhile nominee, bloody noses and all. To your corners!]

"That's precisely what President George W. Bush has done in nominating California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit U.S. Court of Appeals. He should be applauded for this appointment, and she should be promptly confirmed. But that's unlikely to happen. The judicial confirmation process has become mired in 'payback' and special interest politics. Justice Brown will be targeted by liberal [sic] because of the opinions she authored in controversial abortion and affirmative action cases. On both of these issues, she voted the same way as Stanley Mosk, a great 'liberal' jurist with whom Justice Brown had a lot in common."

[I read: In this corner, the fearless W, fighting to "elevate a jurist with great potential to make a difference". Now, without my saying it, you know what kind of difference I'm talking about--because in the other corner, we have the "special interests", the same who force lesser anonymous judges to uphold laws that you and I find distasteful--but so far, have been broadly upheld by the Supreme Court as Constitutional. Ehem, I won't say if she and the great "liberal" jurist I refer to used the same reasoning on the cases, which I likewise strip of all potentially relevant details, just that they voted the same, which chances are about 50/50, assuming a choice of voting either for, or against.]

"Although I frequently find myself in disagreement with Justice Brown's opinions, I have come to greatly admire her independence, her tenacity, her intellect and her wit. It's time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the 'hot button' issues of the past. We have no way of predicting where the hot buttons will be in years to come, and our goal should be to have judges in place with a reverence for our
Constitution, who will approach these issues with independence, an open mind, a lot of common sense, a willingness to work hard and an ability to communicate clearly and effectively."

[I read: Now, regardless of the elaborately sympathetic set-up I have just built, I have to interject at this point that, speaking as a professor of law, in which capacity I write this column, "I frequently find myself in disagreement with Justice Brown's opinions". But who wants to talk about the LAW when we have a classic American success story on our hands! Let's go back to putting people into positions of great responsibility not because of their proven facility in a specialized field, through which that person will wield immense power, but because of their "personal qualities"--like in high school! Besides, who cares about looking into nominees' records to find out their opinions (and record of reversal) when there is significant doubt that any future Americans will continue to argue about those hot-button issues of "the past"--you know, like
* under what circumstances Constitutional rights supported by judicial precedent are suddenly to be considered alienable;
* who gets to make that decision;
* what is an inalienable right and what is not;
* once such decisions are enacted as laws, the interpretations of those statutes in their application to a given individual at a given time.]
Maybe this is one of those cases when a professor is asked to write a recommendation that s/he really doesn't want to , but can't think of a plausible way to get out of it, and so does a hack job. I certainly hope so. Because the idea of anyone engaged in the field of law, and
a faculty member to boot, using these kinds of practically content-less arguments to advance a nominee for the second highest court in the entire country is pretty disturbing.

To begin with, the opposition between anonymous judges and those that speak out is overly simplistic. At no point does Professor Uelmen include actual legal knowledge as an important factor to consider when distinguishing between judges who dissent, and those who come to consensus on a ruling because of their knowledge of the Constitution, the laws on the books, precedent, and professional ethics that prevent personal opinions from bleeding over into legal ones. Would he have us believe that mere bold contrariness carries the same weight as speaking truth to power? Is independence praiseworthy per se, or only when conjoined with deep learning and prudence? There is no mention of how to distinguish one of these dashing and correct judges from a bold yet incorrect one. If a jurist if going to make "a difference" (an empty, hack phrase), please explain how, don't force people to read between the lines.

Moreover, employing a flattering image of the president and throwing out some divisive partisan issues--abortion and affirmative action--to shield the almost complete lack of commentary on the nominee herself is not an honorable way of making a case in favor of someone you truly believe in.

When Uelmen finally does get around to talking about Rogers Brown herself, he doesn't have much really to say at all. Maybe if we were nominating someone to host a cocktail party, wit would be a prime requirement. In the interpretation of the law, I think not. Maybe I'm
missing something, but shouldn't a candidate for just about any job have these qualities: can work independently, not stubbornly closed off to new ideas, has common sense, puts in top effort, can communicate well with others? Yet again, I am struck by the total lack of any testimony to her LEGAL capabilities--or rather, the one clear admission that this "supporting" law professor often disagrees with her LEGAL opinions!

The main theme is really a metaphorical combat wherein this brave nominee is being wrongfully attacked by factions who would defy Bush's praiseworthy efforts to bring Rogers Brown rightful recognition on account of "her independence, her tenacity, her intellect and her
wit." How about being able to recommend her for--or even mentioning--unimpeachable ethics, depth of learning, respect of her peers, and record of consistent and dispassionate opinion-writing? Whatever legitimate qualifications Justice Rogers Brown may have to offer, Uelmen does service neither to her nor to his readership. I certainly hope his students fare better.


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