When Brown was nominated for the California Supreme Court in 1996, she received an “unqualified” rating from the state judicial evaluation committee, partly because of concerns that she was “prone to inserting conservative political views into her appellate opinions.”10 Much of the questioning at the October 22 hearing concerned Brown’s extreme views as expressed in speeches and elsewhere. As Senator Durbin and others pointed out, Brown has expressed hostility towards government, claiming that “where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies,” resulting in a “debased, debauched culture which finds moral depravity entertaining and virtue contemptible.” She has severely criticized the courts, including her own court, complaining that over the past 30 years, the Constitution “has been demoted to the status of a bad chain novel.” She has attacked the New Deal as “the triumph of our socialist revolution.”11
Brown offered several explanations for such statements. She suggested that in some speeches, she was trying to “stir the pot.” She stated that despite her speeches, she believes that government “can” have a “very positive role,” although any speech “speaks for itself.” Primarily, however, she sought to distance her “role” as a speaker from her role as a judge, suggesting that her speeches should be viewed completely separately from her judicial opinions.
As Senator Schumer pointed out, however, Brown’s speeches cannot be viewed separately from her opinions as a state supreme court judge, because just as the state bar committee suggested even before she joined the supreme court, Brown has “inserted” her views into her appellate opinions. For example, Senator Schumer noted that Brown had accused the majority in the San Francisco housing assistance case of “[t]urning a democracy into a kleptocracy,” echoing her warning in a previous speech that without effective limits, “a democracy is inevitably transformed into a Kleptocracy.”12 As Senator Schumer stated, a number of Brown’s opinions “seem to have the same views” and “very similar thinking” as some of her controversial speeches.
Brown did not deny Senator Schumer’s statement. She acknowledged that a judge is not an “automaton” or “computer” and that some aspect of judges themselves is “reflected in the work that they do.” She nevertheless tried to insist that her speeches should not affect the evaluation of her judicial philosophy and her nomination.
Perhaps the clearest answer comes from Brown’s former supporter, Professor Stephen Barnett of the University of California:
Those speeches, with their government-bashing and their extreme and outdated ideological positions, put Justice Brown outside the mainstream of today’s constitutional law…I cannot accept Justice Brown’s apparent claim that these are “just speeches” that exist in a different world from her judicial opinions. That defense not only is implausible but trivializes the judicial role.13
10 Maura Dolan, “Bar Faults High Court Nominee in Key Areas,” Los Angeles Times (April 26, 1996) at A1.
11 See Durbin at 6; NYT; Brown Speech to Federalist Society (April 20, 2000) at 8. A more complete listing of these and many other troubling quotations by Brown is contained in Janice Rogers Brown: In Her Own Words (PFAW, insert date)
12 See PFAW-NAACP Report at 35 (citing dissenting opinion and speech by Brown). Several other examples are contained in the PFAW-NAACP report at 35-6 and Senator Schumer’s questioning.
13 Barnett letter