[Be sure to see the accompanying cartoon at The Black Commentator website]
California Supreme Court Justice Janice Rogers Brown, one of President Bush's most recent nominees to the federal appeals court, has a record of ideological extremism and aggressive judicial activism that makes her unfit to serve on the appeals court, according to a an in-depth analysis of her record released by People For the American Way and the NAACP. Brown, nominated to the DC Circuit Court, is one of many Bush judicial nominees that could come before the Judiciary Committee and full Senate this fall.
"Janice Rogers Brown is the far right's dream judge," said People For the American Way President Ralph G. Neas. "She embodies Clarence Thomas's ideological extremism and Antonin Scalia's abrasiveness and right-wing activism. Giving her a powerful seat on the DC Circuit Court would be a disaster."
"Janice Rogers Brown has a record of hostility to fundamental civil and constitutional rights principles, and she is committed to using her power as a judge to twist the law in ways that undermine those principles, said Hilary Shelton, director, NAACP Washington Bureau. "For the administration to bring forward a nominee with this record and hope to get some kind of credit because she is the first African American woman nominated to the DC Circuit is one more sign of the administration's political cynicism."
The report, "Loose Cannon," notes that when Brown was nominated to the state supreme court in 1996, she was found unqualified by the state bar evaluation committee, based not only on her relative inexperience but also because she was "prone to inserting conservative political views into her appellate opinions" and based on complaints that she was "insensitive to established precedent."
The report carefully examines Brown's record since she joined the court, especially her numerous dissenting opinions concerning civil and constitutional rights. Brown's many disturbing dissents, often not joined by a single other justice, make it clear that she would use the power of an appeals court seat to try to erect significant barriers for victims of discrimination to seek justice in the courts, and to push an agenda that would undermine privacy, equal protection under the law, environmental protection, and much more.
In speeches, Brown has embraced the extreme states' rights and anti-federal-government positions of the Federalist Society, the organization of lawyers and judges working to push the law far to the right. She has said that what she has called the "Revolution of 1937," when the Supreme Court began to consistently sustain New Deal legislation against legal attack, was a "disaster" that marked "the triumph of our socialist revolution."
Civil Rights, Equal Opportunity, and Discrimination
According to the report, "Justice Brown's opinions on civil rights law are perhaps the most troubling area of a very troubling body of work. These opinions reveal significant skepticism about the existence and impact of discrimination and demonstrate repeated efforts to limit the avenues available to victims of discrimination to obtain justice. Brown's opinions in this area reveal a troubling disregard for precedent and stare decisis – even in the context of case law that has been settled by the U.S. Supreme Court."
The report examines Brown opinions in cases involving racial discrimination, discrimination against people with disabilities and older Americans, and affirmative action. California's Chief Justice criticized one of her opinions as arguing that "numerous decisions of the United States Supreme Court and this court" were "wrongly decided" and as representing a "serious distortion of history."
Free Speech and Association
Brown's free speech opinions illustrate her tendency to rule in favor of corporations and seek to provide broad protections for corporate speech, while sometimes giving short shrift to the First Amendment rights of average citizens.
In one dissent she listed as one of her ten most significant decisions, Brown sought to expand the contexts in which corporations could make false or misleading statements without any effective legal mechanism for holding them accountable. In another case discussed in the report, Brown argued that a corporation should be granted an injunction against a former employee sending emails critical of the company's employment practices to some of his former colleagues.
Her vigorous support of strong legal protections for even false and misleading corporate speech is even more disturbing when contrasted with her willingness to enforce a very broad injunction severely restricting the ability of Latino youth who were alleged to be gang members to gather in certain neighborhoods.
Privacy, Family Rights, and Reproductive Freedom
As a state supreme court justice, Brown has issued only one opinion dealing with abortion, but it raises serious concerns about her judicial philosophy concerning women's constitutional right to privacy and reproductive freedom. In her dissent, Brown argued that the federal Constitution somehow restricts the privacy protections that may be provided by the state constitution, a position far outside the mainstream of judicial thought. She argued that the court majority's decision ruling unconstitutional a restrictive parental consent law for minors seeking abortions would allow courts to "topple every cultural icon, to dismiss all societal values, and to become final arbiters of traditional morality."
Brown partially dissented from an important ruling this year upholding the validity of second-parent adoptions in California, a ruling that was vitally important to children and parents involved in as many as 20,000 adoptions in the state, including many by same-sex couples. Brown said the ruling "trivialized family bonds," even though the majority explained that it would encourage and strengthen such bonds.
Worker Rights, Consumer Protection and Private Property Rights
Several cases raise serious questions about Brown's willingness to enforce provisions intended to protect the average person against the power of the government or large corporations. Brown has signaled her approval of broad drug-testing provisions even in situations in which a majority of the California Supreme Court found the tests to be clearly unconstitutional, and even where it would have required explicitly rejecting U.S. Supreme Court precedent. She also wrote an opinion as a judge on the Court of Appeal that would have struck down the fee system the state had instituted to ensure that paint companies help pay for state efforts to provide for screening and treatment of children exposed to lead paint, an opinion that was overturned by the California Supreme Court. She has dissented from several rulings protecting the rights of investors and other consumers, arguing that previous precedents should be abandoned.
In dissents from decisions on rent control and a decision upholding a city ordinance protecting against displacement of low-income residents, she articulated an extremist view of property rights that would, if she were given the power of a seat on the DC Circuit, have dangerous and far-reaching consequences for environmental protection and government regulation of businesses.
She vigorously dissented from a case concerning a San Francisco rule requiring residential hotel owners seeking permission to eliminate residential units and convert to tourist hotels to help replace the lost rental units. Brown's dissent said the ruling approved "theft" and said it turned democracy into a "kleptocracy." Brown's theory that regulations are not allowed unless property owners agree they would benefit them economically would preclude much economic or environmental regulation. "Nothing in the law of takings," wrote the majority, would justify an appointed judiciary in imposing that, or any other, personal theory of political economy on the people of a democratic state."
In several speeches and one of her opinions, Brown has attacked the long-established principle that governmental action infringing on fundamental rights is subject to strict judicial scrutiny while general social and economic legislation is upheld if it has a rational basis. According to Brown, that fundamental principle is "highly suspect, incoherent, and constitutionally invalid."
Some GOP Senators argued as recently as 2002 that the open 11th and 12th seats on the DC Circuit were superfluous and should not be filled. It would be not only hypocritical but disastrous for Americans' rights and liberties for one of those seats to be filled by Janice Rogers Brown.
Justice Brown's record does not demonstrate the commitment to fundamental constitutional and civil rights principles that should be shown by a nominee to an important lifetime position on the federal court of appeals for the DC Circuit. To the contrary, she would be insensitive to established precedent protecting civil and constitutional rights and improperly prone to inserting right-wing political views into her appellate opinions in an effort to remake the law. Senators should not consent to her confirmation.
source: http://www.blackcommentator.com/54/54_female_clarence.html 4sep03
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