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The
following is a joint press release from People for the American
Way and the NAACP.
'Far
Right Dream Judge' Janice Rogers Brown Joins Lineup of Extremist
Appeals Court Nominees
California
Supreme Court Justice Janice Rogers Brown,
one of President Bush's most recent nominees to the federal
appeals court, has a rec ord
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."
Conclusion
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.
A copy of "Loose Cannon" can be downloaded at:
http://www.pfaw.org/pfaw/dfiles/file_229.pdf
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is published every Thursday. 