At the outset of the hearing, Senator Durbin summarized the concerns of many about Justice Brown’s record of dissents on the California Supreme Court. Noting that all but one of the other justices on the court were also Republican, Durbin explained that Brown has dissented, often by herself, in “a great many cases involving the rights of discrimination victims, consumers, and workers” on the side of “denying rights and remedies to the downtrodden and disadvantaged.” For example, Durbin noted, Brown was the “only member” of the court to:
- find that the state Fair Employment and Housing Commission “did not have the authority to award damages to housing discrimination victims”;
- conclude that a disability discrimination victim “was not entitled to raise past instances of discrimination that occurred”;
- try to rule that age discrimination victims “should not have the right to sue under common law – an interpretation that is directly contrary to the will of the California legislature”;
- dissent “in a case involving the sale of cigarettes to minors”;
- argue that her court should “strike down a San Francisco law that provided housing assistance to displaced low-income, elderly, and disabled people”;
- dissent in “two rulings that permitted counties to ban guns or gun sales on fairgrounds and other public property”; and
- conclude (along with other dissenting court members) that “victims who are repeatedly harassed in the workplace must take a back seat to the free speech rights of their harassers.”4
Brown testified specifically concerning several of these dissents, but only reinforced the concerns about her record. Senator Feingold asked Brown about her dissent in the age discrimination case, Stevenson v. Superior Court, 941 P.2d 1157, 1187 (Cal. 1997), in which she suggested that age discrimination “does not mark its victim with a ‘stigma of inferiority and second class citizenship.’” Senator Feingold expressed concern about her view of age discrimination and the rights of senior citizens, especially in light of a speech by Brown in which she stated that “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much free stuff as the political system will permit them to extract.”7 Brown attempted to address these concerns by expressing opposition to age discrimination. Incredibly, however, she also testified that the fact that all of us “pass through” the aging process somehow makes age discrimination “different in quality” from other kinds of discrimination, and that she does not think that age discrimination “stigmatizes senior citizens.” This view of age discrimination is truly appalling.
Brown was asked by several senators about her dissent in the workplace harassment case, Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999), cert. denied, 529 U.S. 1138 (2000). In that case, the court majority upheld a lower court ruling that Latino employees were repeatedly subjected to racial slurs, creating a hostile work environment, and that an injunction against such conduct was appropriate to help provide a remedy. Brown claimed at the hearing that she agreed that the slurs created an illegal hostile working environment, and that the “only question” where she disagreed was whether an injunction was an appropriate remedy. That claim is flatly inconsistent with her opinion in the case. In her dissent, she not only disagreed with the injunctive remedy; for several pages, she also criticized the majority’s holding that verbal conduct that creates a hostile work environment can properly lead to a finding of employment discrimination and is “not constitutionally protected.” Id. at 891. In fact, despite several Supreme Court rulings to the contrary, she explicitly suggested that according to her interpretation of one Supreme Court case, “Title VII [of the 1964 Civil Rights Act] is unconstitutional because it is a content-based regulation of speech not limited to fighting words.” Id. at 892. Although she avoided discussing it at her hearing, this extreme criticism of landmark federal civil rights legislation, which Brown would be called upon to interpret as a judge on the D.C. Circuit, is deeply troubling.
4See Statement of Senator Richard J. Durbin on California Supreme Court Justice Janice Rogers Brown Before the Senate Judiciary Committee (Oct. 22, 2003)(“Durbin”) at 3,4.
5Senator Hatch also sought to defend Brown’s controversial ruling in the California affirmative action case, Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000), which upheld California’s Proposition 209. Yet neither Senator Hatch nor Brown addressed the primary critique of her opinion in that case –that it went far beyond Proposition 209 to criticize even affirmative action programs upheld by the Supreme Court and to suggest that they are comparable to discriminatory policies promoting racial segregation. As California Chief Justice George explained, Brown’s opinion “represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our population.” Id. at 1095. See People For the American Way and the NAACP, “Loose Cannon”: Report in Opposition to the Confirmation of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit (Aug. 28, 2003)(“PFAW-NAACP Report”) at 9-11. As the St. Louis Post-Dispatch noted in editorializing against her nomination, moreover, Brown also displayed a “remarkable” lack of familiarity with the Supremacy Clause, “one of the most elemental rules of constitutional interpretation,” in answering Senator Specter’s questions about the case. See A Nominee to Filibuster, St. Louis Post-Dispatch (Oct. 24, 2003).
6See S. Dokupil, Voting Patterns of the California Supreme Court, 1996-2003 (downloaded from Committee for Justice website, www.committeeforjusitce.org, on November 3, 2003). Specifically, these statistics reflect that Brown dissented in full 57 times and in part (listed as “concur/dissent”) 22 times, for a total of 79 full or partial dissents. Only Justice Kennard, with 110 full or partial dissents, is listed as having more dissents on the Committee for Justice website. Brown’s total does not include several opinions labeled as concurring opinions, in which she nevertheless disagreed strongly with the majority opinion or advanced other troubling theories. See, e.g. PFAW-NAACP Report at 15, 22, 26.
7See Brown speech to Institute for Justice (Aug. 12, 2000) (“IFJ”) at 2.