Volokh of 5/3 also clears up some of the mis representations on Brown.

And doesn’t even mention the 14th amendment issue, which is the only issue on which I’ve expressed any disagreement with Brown. What I find ridiculous about this is that, judging from your reaction to my statements on this, you’d think that I had come out railing about what a horrible judge she is and criticizing all of her views. In fact, the opposite is true. There were 4 different quotes from her presented by someone else. I agreed with 3 of the 4 and said that I’d have no problem with having her on the appeals court. The 4th one, the incorporation question, I said that if that really represents her opinion and isn’t out of context or false, it would be a loony opinion unsupported by the historical evidence. I also clearly noted several possible other interpretations of what she said and held out the possibility that the quotes do not represent her real views on the subject. But you’re responding as though I was on some crusade to sink her nomination. Perhaps you should try engaging your brain before you spout off from now on. Try it. It saves you from looking like a moron.

There is no need to slur the young lady’s explaination as to why there is no transcript from 1999.

The young lady’s explanation is idiotic and I pointed out why it’s idiotic.

What is really dumb, dumb, dumb I think you will agree, is to characterize someone as a loon on the basis of a snippet the origin of which you have not the first clue.

Well yeah, that might be dumb. But what is even dumber, and more dishonest, is pretending that I did any such thing when I didn’t. You’re so blinded by partisanship that you have to caricature everyone else’s opinions to make them fit your simplistic view of things. Thankfully, not everyone is as simpleminded as you are.

Well, Jim and Ed, Pepperdine has no record of Janice Brown’s speech at Pepperdine. The reason given by Kim Dildine is that, “She did not want people to be able to take bits and pieces and reproduce them out of context. So, per her request there was no recording or transcript”.

That may be the dumbest thing I’ve heard all day. The way you prevent someone from taking bits and pieces of a speech out of context is to preserve a full recording or transcript of it so that you can point out the context which changes the anticipated distortions. I’d certainly like to see the context of those comments because there are a couple of different ways to interpret them. I think I’ve been exceedingly fair in recognizing those possible interpretations and in only saying that if the worst interpretation is true, I’m quite disturbed by them (but not enough to keep her off the court of appeals, where she will still be bound by Supreme Court precedent). It’s highly unlikely that the quotes were made up entirely, but it’s certainly plausible that they are being taken out of context and that her position is a good deal more nuanced than it is being portrayed. Perhaps someone has located some other statement she may have made about incorporation so we can see her views in more detail. I’d certainly like to know what she really thinks about it. But unlike you, I’m not willing to presume the worst merely because I have an opinion. You are as blinded by your zeal to convict PFAW of doing something wrong, with no evidence whatsoever, as those you oppose are in their zeal to attack Judge Brown.

The problem I have, however, is your comment about Janice Rogers Brown not supportive of the privileges and immunities clause of the 14th Amendment. However, a Washington Post op-ed says the Lochner decision was ruled as an infringment on the 14th amendment. This is a contradiction…

Considering I’m typing this pretty late at night, I don’t have time to do my own online research as to what she said, but what did she base her actual support of Lochner? Is it possible that she could support the Lochner decision without agreeing with the privileges and immunities clause?

There does appear to be some tension here, but it may well be tension between her real opinion and a mistaken characterization of her opinion. I’m as curious as you are. The Lochner decision was very much an expansionist decision, in the sense that it was based upon broad, unenumerated natural rights, a typically libertarian position. Bear in mind that there are several different possible positions on the 14th amendment, some of them fairly similar:

1. That the 14th amendment doesn’t incorporate anything at all against the states. This is a silly argument, as it essentially voids the meaning of the amendment entirely and renders whole clauses of it pointless. It’s one thing to disagree on the meaning of a text, but it must mean something.

2. That the 14th amendment incorporates some rights and not others. This is where the courts have been for most of the last century, but even here there is a wide range of opinion on what it does and does not incorporate. Some would argue that it incorporates some of the bill of rights, but not the first amendment, for example. Others would argue that it does incorporate the first amendment except for the establishment clause (Clarence Thomas takes this position). So there’s a lot of variation here.

3. That incorporation is legitimate, but only under the privileges and immunities clause as properly understood, not under the notion of substantive due process.

4. That it incorporates all of the first 8 amendments in the Bill of Rights.

5. That it incorporates all of the Bill of Rights, plus those rights that have been recognized by the courts as legitimate unenumerated rights.

6. That it incorporates not only all of the Bill of Rights and those unenumerated rights thus far recognized as legitimate, but also incorporates the general principle of natural rights as found in the Declaration and other founding documents.

For the record, I advocate 3 and 6 on that list, a very expansive reading of the privileges and immunities clause that includes not only the bill of rights itself, but the foundational principles that the bill of rights seeks to protect. My point here is simply that there is a broad range of opinion on this, and the only truly unacceptable position is the first one, for reasons I explained above.

I read Stuart Taylor’s article yesterday and found it interesting. His argument was very much like the argument of Timothy Sandefur, who supports her nomination, which is that she’s really more acceptable to the libertarian wing of the Republicans than to the conservative wing. She’s a very strong advocate of economic property rights, a la Richard Epstein, and that’s something I generally agree with. I certainly agree that some of the rhetoric I’ve heard from her lately about this alleged “war on people of faith” is looney and ridiculous, but in terms of her legal writings she doesn’t share much in common with the Robert Bork, theocon wing of the conservatives beyond that rhetoric. Bork and his ilk hate the Lochner decision because it recognized broad natural rights not explicitly stated in the Constitution, which is anathema to them. So whatever Brown may be, let’s not casually lump her in with the Borks of the world as she clearly does not belong there.

And let’s also keep in mind that in legal discussions, there is often a lot of nuance that is missed by those who don’t understand the issue in great detail. It’s so easy for a layperson to distort a judicial ruling by leaving out all of the relevant detail that they don’t understand. For instance, I don’t know how many times I’ve heard that Clarence Thomas once ruled that it was okay for prison guards to beat prisoners. In point of fact, what he ruled was that prisoners could sue the guard and the prison for the ill treatment, but it didn’t count as “cruel and unusual punishment” because what may happen in the prison was not part of a sentence imposed by the court. That’s a far more reasonable ruling than the popular distortion would suggest, and there are innumerable examples of this same kind of oversimplification. So I’m always a little hesitant to accept second hand characterizations of what a judge has said or ruled without looking at the context and the full statement for myself.