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Carol Platt Liebau - Columnist

Carol Platt Liebau is a senior member of the editorial board. She is an attorney, political analyst and commentator based in San Marino, CA, and has appeared on the Fox News Channel, MSNBC, CNN, Orange County News Channel, Cox Cable and a variety of radio programs throughout the United States. A graduate of Princeton University and Harvard Law School, Carol Platt Liebau also served as the first female managing editor of the Harvard Law Review. [go to Liebau index]


Going “Mainstream” By the Numbers
The Irony of Barbara Boxer’s Attack on Justice Brown
[Carol Platt Liebau] 11/17/03   

Back when Richard Nixon nominated G. Harrold Carswell to the U.S. Supreme Court, Senator Roman Hruska responded to attacks on Carswell’s abilities by commenting, “There are millions of mediocre Americans, and they, too, deserve to be represented in the United States Supreme Court!"

Watching California’s U.S. Senator Barbara Boxer attack and oppose California’s Supreme Court Justice Janice Rogers Brown – who has been nominated by President Bush for the U.S. Court of Appeals for the D.C. Circuit – calls that old story to mind. But this time, the judicial nominee is by no means mediocre. She is outstanding, by any measure.

Nor is Senator Barbara Boxer mediocre – to characterize her as such would be an insult to well-meaning mediocrities everywhere. No, she is the Barbra Streisand of the Senate – self-righteous, whiny and supremely ill-informed. And she has shown herself to be willing to smear, distort and mislead in order to prevent a more accomplished, more intelligent woman from assuming rightful place on the second-highest court in the land.

Of all the distortions in which Senator Boxer has engaged, however, perhaps most infuriating is her tendency to try to characterize those she opposes as being “out of the mainstream” or as “extremists.” She did it in 1992, running against eminent conservative Bruce Herschensohn (concluding the campaign with one of the ugliest late-breaking smears in state history), and she did it again in 1998, when her opponent was moderate, soft-spoken Matt Fong.

And now, Senator Boxer is at it again. California’s junior senator is trying hard to paint Justice Brown as far from the mainstream. Well, the numbers don’t lie. So let’s take a look at both women’s records, and see whether Senator Boxer has the kind of mainstream credentials that allow her to fling charges of extremism at anyone.

A study conducted by the invaluable Committee for Justice, numerically compared Justice Brown’s opinions against those of her fellow court members, both as raw numbers and as percentages. The study found that Justice Brown had authored the second-highest number of majority opinions during her tenure on the California Supreme Court. Likewise, the number of dissents she authored is lower than two other members of the Court – and of the dissents she authored, but which no other Court member joined, she ranks fourth of the eight justices surveyed.

Now, even Barbara Boxer can figure out that this position is squarely in the middle of the pack. Janice Rogers Brown is – contrary to Senator Boxer’s assertions – precisely in the mainstream among California Supreme Court justices, hardly a far-right-wing group.

How does the record of Barbara Boxer, purported defender of the “mainstream,” fare in comparison? Well, the “scores” assigned to her by various interest and advocacy groups are instructive. She receives: 100% from the pro-abortion Planned Parenthood Action Fund; 100% from the liberal Children’s Defense Fund; 100% from the environmentalist group League of Conservation Voters; 100% from the gay rights group Human Rights Campaign; and 100% from Public Citizen, the left-wing group founded by Ralph Nader. On the other side of the political spectrum, she is scored at 0% by the conservative Christian Coalition; 2% by the American Conservative Union; 5% from the hawkish Center for Security Policy; is ranked an “Enemy of the Taxpayer” by Americans for Tax Reform; and receives an “F minus” from Gun Owners of America.

It hardly bears mentioning that these ratings are not the indicia of mainstream views. Indeed, Barbara Boxer is a predictable supporter of every left-wing cause, however meritless. Most recently, Senator Boxer was the Senate’s most outspoken opponent of legislation banning partial birth abortion – the late-term procedure in which the brains of a partially delivered baby are sucked out and its skull collapsed in order to facilitate its “removal.” Her unyielding support for the “right” to partial birth abortion is significantly at odds with public opinion, to say the least. According to a late-October CNN/USA Today/Gallup poll, fully 68% of the public said the procedure should be illegal, while only 25% agreed with Boxer that it should be legal.

But her position is completely consistent with that of her friends at NARAL (National Abortion Rights Action League)/Pro-Choice America. Not surprisingly, NARAL opposes the nomination of Justice Janice Rogers Brown, all because she wrote a dissenting opinion arguing that an abortion parental-consent law (duly passed by California’s legislature) should be upheld. Out of the “mainstream”? Not really. A 2002 Zogby poll showed that 71% of California residents support parental notification legislation – and a majority of states now have parental notification or consent laws on the books.

As she supports a filibuster of Justice Brown, thereby denying her an up-or-down vote in the U.S. Senate (which would approve her), perhaps there is one set of numbers Barbara Boxer had better remember: She was elected in 1992 with 48% of the vote, and re-elected in 1998 with 53% of the vote (having outspent her rival 3:1). And an October Field poll indicates that only a small plurality of voters (45% to 40%) is inclined to re-elect Boxer. In contrast, Janice Rogers Brown received a 76% percent vote of approval from California voters in an election to confirm her appointment to the state Supreme Court. If one of these women appears to be out-of-touch with California voters, it doesn’t seem to be Justice Janice Rogers Brown.

Who’s really out of the mainstream, Senator Boxer?


CRO columnist Carol Platt Liebau is a political analyst and commentator based in San Marino, CA.


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