Smart Guys on Janice Rogers Brown

Judging from the mournful comments of left-wing law school professor
Erwin Chemerinsky, the successful nomination of Janice Rogers Brown to
the DC Court of Appeals is the end of life as we know it. You can get
a flavor of the left-wing take on Brown in Chemerinsky’s comments
on the Hugh Hewitt Show captured by
Radio Blogger.

I think Janice Rogers Brown is pretty much as far to the right on the political spectrum as you’re going to get for a federal Court of Appeals. She said that she believes the social security program is unconstitutional. She said that she believes that the Bill of Rights shouldn’t be applied to the states. She was ranked unqualified by the commission that evaluated her for the California Supreme Court. The ABA committee gave her the lowest possible evaluation that would pass her for the position. I think it’s really a sad day for America that she has a lifetime position on one of the most important federal Courts of Appeal.

You get a certain frisson of excitement reading that someone actually
has the courage to declare Social Security unconstitutional. Law school professor
John Eastman reminds us what the judge battle is about, what liberals are defending and
what conservative want to change:

Let me go back. I mean, liberal scholars have been trying for seventy years to find a rationalization to defend what happened in the Court signing off, ultimately under pressure in the New Deal. Bruce Ackerman has come up with a theory that we somehow have collective Constitutional moments, as the way we amend our Constitution now. That’s not what the Constitution requires. And the notion that it is off limits even to challenge the illegitimacy of what went on seventy years ago, is to simply throw in the towel on any notion of Constitutionalism, and law becomes whatever the most recent pronouncement of the Court says it is. That’s a dictatorship of nine. That’s not the democratic republic we have. And we are at risk of losing our Constitution system itself, if we’re not even able to challenge the principles on which that Constitution is based.

That’s it. Liberals want to put the jurisprudence of the last 70 years off limits, and that’s
why they head for the fainting couches when conservatives like Janice Rogers Brown are nominated
to the federal bench.