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Janice Brown some more

I suppose I might elaborate on Janice Brown.

Brown’s basically a flawless libertarian. Her interest in liberty is consistent in all areas of the law. It seems to me that the NAACP and various other groups are premising their opposition to Brown strictly on the fact that she is probably not a fan of affirmative action or other “progressive” approaches to racial issues. They’re willing to stake their position on this, at the expense of her fantastically “liberal” treatment of civil liberties in the criminal realm.

She’s a bit eccentric and irreverent in her opinions and her respect for precedent. While this is a liability in a lower appellate position, it could be an asset if she eventually finds her way to the Supreme Court, where precedent is a little less important and vibrant intellectual engagement a lot more. And let’s face it: right now, Scalia’s the only personality on the Court. It could use some livening up when one of those octogenarians decides to move on.

My only substantive complaint about her is that she appears to favor the treatment of environmental and other regulations as due process “takings” deserving of just compensation. I’m probably in the minority in this forum, but I’m opposed to that extension of due process, libertarian though it may be. It looks fair on paper but it would be disastrous. (No philosophy’s perfect, folks.)

Other than that, I like her because she is so consistent on civil liberties–to an extent that, as I noted earlier, may cause more than a little friction with John Ashcroft. (I won’t complain.) The administration appears willing to take that chance. Considering that they picked a California judge for a federal circuit on the opposite end of the country (which fast-tracks into the Supremes), one can infer that they like her a lot.

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