As with many other Bush Administration nominees, Brown tried to answer many concerns about her record and philosophy by repeatedly pledging that she would respect court precedent. Senator Feinstein raised serious concerns about Brown’s assurances. In light of Brown’s “stark” views as expressed in speeches and elsewhere, and in light of the many opinions by Brown that have criticized or “openly flouted” precedent, Feinstein asked, how can Senators rely on Brown to fairly and fully apply key precedents on constitutional and other issues?
Brown’s answers raised even more concerns. Initially, Brown admitted that when it comes to precedent of her court, the California Supreme Court, she has indeed urged that the court “review” or “rethink” prior precedent with which she disagrees, and that this is appropriate for a judge. In fact, her record demonstrates that in a number of cases, she has argued in dissent that the court should limit or overturn precedent that protects consumer, worker, and other rights, including precedent established years before she joined the court.8 The D.C. Circuit has established numerous precedents, particularly concerning such subjects as labor law, environmental law, the Freedom of Information Act, and review of federal agency decisions. According to Brown’s testimony, all these would be fair game for her to question and seek to overturn if she is confirmed to that court.
Neither the California Supreme Court nor the D.C. Circuit, of course, can overturn precedent of the U.S. Supreme Court. In her rulings in such cases, Brown testified that she limits herself to suggesting that “perhaps” the Court should “rethink” precedents with which she disagrees, but that she follows precedent that is “clearly on point.” This statement provides no real reassurance, however, since two cases are almost never exactly alike, and a judge can almost always claim that a precedent should be interpreted differently or is not “clearly on point.” In this way, an appellate judge can, for example, claim that Roe v. Wade is not “clearly on point,” and then reach a decision that severely undercuts privacy or reproductive rights without purporting to overrule it. In fact, in several cases, Brown has severely criticized or urged changes in Supreme Court precedents or doctrine on important constitutional issues, and then claimed that existing precedent was not “clearly on point” or should be interpreted differently than the majority of her court, in a way that would have harmed employees or helped corporations.9 Brown’s testimony at her hearing served only to underline the concerns that have been raised about whether she will faithfully follow key precedents protecting constitutional and civil rights.
8See, e.g., Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 950 P.2d 1086, 1111, 1114 (Cal. 1998)(challenging precedents “[o]ver the last quarter century” broadly interpreting unfair competition law and urging that the courts “restrain their own precedents” in the area); Green v. Ralee Engineering Co., 960 P.2d 1046, 1073 (Cal. 1998)(arguing that court should “take a fresh look” at long-established precedents protecting employees against firing in violation of public policy).
9In addition to the Aguilar case, in which Brown’s dissent suggested that previous Supreme Court cases on verbal workplace harassment were not “clearly on point”, examples include her dissenting opinions in Kasky v. Nike, 45 P.3d 243 (Cal. 2002), cert, dismissed as improvidently granted, 123 S.Ct. 2554 (2003)(severely criticizing and suggesting changes in commercial speech doctrine but then dissenting from majority ruling that corporate speech at issue was commercial speech); Loder v. City of Glendale, 927 P.2d 1200, 1257 (Cal.), cert. denied, 522 U.S. 807 (1997)(arguing for a “return” to a restrictive view of government employee rights that “for many years” has been “out of fashion,” but also disagreeing with majority ruling that current Court precedent invalidated mandatory drug testing plan for employees seeking promotion).