The Senate voted 65-32 to end the long-standing debate on Justice Brown.
KNIGHT RIDDER NEWSPAPERS
WASHINGTON -- The Senate cleared the way Tuesday for the confirmation of controversial California Supreme Court Justice Janice Rogers Brown to a federal appeals court, ending a Democratic blockade that cast her as a symbol of opposition to laws safeguarding the rights of workers.
The Senate voted 65-32 to end debate on Justice Brown, five more votes than the 60 needed to stop debate, and to vote on her nomination today. That vote is expected to be closer.
If confirmed, Justice Brown would add a distinctive conservative voice to the District of Columbia Circuit Court of Appeals. It's considered one of the more powerful appellate tribunals because it hears most cases regarding federal government regulation. It's also considered a stepping stone to the Supreme Court.
Justice Brown, the black daughter of Alabama sharecroppers, was a target of liberals who criticized her anti-affirmative action views and her vigorous defense of property rights over the power of government to regulate commerce. Republicans defended her as a sharp legal mind who, while conservative, was a mainstream jurist.
Because the D.C. circuit court hears virtually all cases involving decisions and rulemaking by federal agencies, critics focused on Justice Brown's views on government's role in restricting private property rights.
Justice Brown has advocated the "revival of Lochnerism lite," a reference to the 1905 Supreme Court case Lochner vs. New York, which concluded that a New York law restricting bakers to 10-hour workdays was unconstitutional. Before the Supreme Court rejected the Lochner precedent in 1937, the case served as the legal basis for restricting states' power to impose laws setting labor standards, such as minimum wage and hour limits, and child-labor safeguards.
During her confirmation hearing before the Senate Judiciary Committee, Justice Brown said she disagreed with the constitutional argument that the majority had used in reaching the Lochner decision.
However, she contradicted that position in a speech in April 2000. Then, Justice Brown said that Justice Oliver Wendell Holmes' famous dissent in the Lochner case -- which later became partly the basis for reversing much of Lochner -- has "annoyed me" and that Holmes was "simply wrong."
Democratic critics said Justice Brown will attempt to impose her ideology in her court opinions and become a conservative version of the kind of "activist judge" that conservatives usually deplore.