JUDICIAL CRITICS OPPOSING CONSTITUTION SUPPORTER.

Byline: Gary Galles Local View

THE fight over federal court appointments is getting serious. Two appellate court nominees filibustered last term have had their nominations moved by a party-line committee vote to the full Senate.

This sets up a showdown over judicial filibusters, with Senate Majority Leader Bill Frist likely to invoke the ``nuclear option,'' eliminating the 60-vote standard to end a filibuster of a nominee - thus forcing a majority up-or-down vote.

One of those nominees is one of California's own Supreme Court justices, Janice Rogers Brown.

What makes the killing or approval of her nomination so important?

The Congressional Black Caucus has charged that she is a conservative with a ``disdain for legal precedent.'' Sen. Richard Durbin, D-Ill., told her, ``You frequently dismiss judicial precedence ... when it doesn't comport with your political views.'' Others have tarred her as an ``extremist'' and ``out of the mainstream''- despite 76 percent approval from California's hardly right-wing voters.

But the criticism directed at Justice Brown is really just a misleading spin on the fact that she proposes to be faithful to the Constitution.

A good example is her dissent in San Remo Hotel v. San Francisco: ``Private property, already an endangered species in California, is now entirely extinct in San Francisco. ... Once again, a majority of this court has proved that 'if enough people get together and act in concert, they can take everything and not pay for it.' But theft is theft. Theft is theft even when the government approves of the thievery.''

Brown takes the Constitution seriously as the highest law of the land, echoing Federalist 78: ``Where the will of the legislature, declared in its statutes, stands in opposition to those of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.'' This puts her in diametric opposition to those who think of the Constitution as a ``living document,'' because the Constitution cannot be the highest law of the land in practice if its meaning can be dramatically changed by innovative interpretations.

Brown has clearly stated she would follow precedent as an appellate judge. But the D.C. Appeals Court she would join has jurisdiction over many regulatory matters, and is widely considered a stepping-stone to the Supreme Court. If she took that next step, her intent to be faithful to the Constitution as an earlier, controlling precedent could overturn rulings that have moved us far from it.

She thus threatens liberal precedents that have created new rights out of thin air or have seriously undermined the Constitution through reinterpreting its words (like ``taking'' and ``commerce''). But those are the precedents liberals are most desperate to retain.

Brown's opponents seek to preserve the pattern of Supreme Court activity over the last century or so: Liberal courts create new rights and expand government powers, then conservative courts, out of deference to those ``new and improved'' precedents, leave them in place, or even build upon them further, rather than rolling them back. Of course, if courts are to defer to earlier precedents, the earlier activist rulings some are now so adamant to protect cannot be defended, since they so clearly deviated from constitutional precedent.

For now, Brown's views about precedent are moot. Supreme Court rulings would be binding on her, whether or not she thought they were correctly decided. But those most threatened by someone who would take the Constitution seriously, if elevated to the Supreme Court, are determined to keep her off the appellate court, just in case.

Justice Brown has never advocated overturning precedents that protect citizens from government abuse, which was the primary purpose of the Constitution. She has only taken exception to rulings which are blatantly inconsistent with it, to reinstate those protections and rights that have been eroded since it was written.

If that disqualifies her as a judge, we might as well admit that much of the Constitution is already a dead letter with little hope of resurrection.