Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Justice Janice Rogers Brown and the Mainstream

There has been some debate in the blogosphere (and elsewhere) over whether or not Justice Janice Rogers Brown, a nominee for a federal judgeship, is within or without the “mainstream” of legal thought (however that is defined). (See, e.g. here, here, and here).

Without getting into the merits of Justice Brown’s views or the propriety of Democratic filibustering (both of which are subjects beyond the scope of this short post), I wanted to point out Justice Brown’s apparent concession that she is indeed outside the mainstream of legal thought. In a relatively recent speech, she states that:

“There are so few true conservatives left in America [and she earlier defines herself as one of them] that we probably should be included on the endangered species list.”

Take a moment to let that assertion sink in. Remember, the relevant inquiry for this particular question is whether Justice Brown is within the mainstream of legal thought. And note that Justice Brown apparently defines conservatism in a way which (1) includes herself, yet (2) includes so few others that they “should be included on the endangered species list.”

Do I really need to point out that one who espouses a political position which is only shared by an endangered-species-sized number of others is by definition outside the mainstream? Whatever the mainstream is, however it is defined, it certainly must have more than an endangered-species-sized number of adherents.

The obvious rejoinder to this critique is that Justice Brown is simply employing rhetorical language. Indeed, I believe she may indeed be using rhetorical language in her speech. However, I have some concerns about her apparent tactic of expressing to one body that she espouses a brand of conservatism whose adherents number in the endangered-species range, while at the same time claiming to another body that she is within the legal mainstream.

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November 4, 2003 - Posted by | Uncategorized

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