LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Selected Press Coverage

“As Sharp As They Come,” Mike McKee, The Recorder, 3/3/03.

[Brown] once alluded to the majority justices as “philosopher kings” when they voided a law requiring minors to obtain parental consent for abortions. In another case she accused them of being “wimps” for letting the legislative and executive branches appoint some of the judges to the state’s lawyer discipline court.

While some lawyers love Brown’s directness, others say her tart dissents could pose problems if, as many believe, she’s under consideration for a seat on the U.S. Supreme Court.

“They’re very acerbic,” says court-watcher Gerald Uelmen, a professor at Santa Clara University School of Law, “and raise the question of her basic collegiality.”

Others say that’s nonsense.

“If a justice strongly believes in her position, I think she should strongly state it,” says Anthony Caso, senior vice president and general counsel of the conservative Pacific Legal Foundation in Sacramento, Calif. “It should be stated in no uncertain terms.”

“Disorder in the Court Comes Out on the Record; Dueling Opinions by State Chief Justice and an Acerbic Dissenter Offer a Rare Glimpse of Frictions Customarily Confined to the Inner Sanctum,” Maura Dolan, Los Angeles Times, 12/27/02, California Metro, Part 2, p. 2.

This article, also excerpted in part above under the summary of People v. Mar, highlights Brown’s lack of judicial restraint. The reporter spoke to various legal experts and court-watchers who commented for her story. An excerpt from the story follows:

"When tension under the surface bubbles up like this, it is so noticeable because it is so out of character of the way courts usually conduct themselves," said University of Santa Clara law professor Gerald Uelmen.

Convention requires that courts maintain a facade of collegiality, and judges on appellate panels generally insist that they respect each other even if they disagree. The exchange of footnotes in the Mar case appears more personal than collegial.

"It tells us there is some real friction between the chief and Justice Brown," Uelmen said. Brown's "gratuitous insult in her dissent ... is the kind of thing that can really get under the skin of the target," the professor said…..

Former Gov. Pete Wilson appointed [Chief Justice] George and Brown, and both are Republican. But the justices are frequently out of sync on the court.

George is a moderate who is sensitive to the court's public image and the practical effects of the court's rulings. He is willing to stick his neck out and rule in a way that might bring him criticism, but he tempers his legal opinions to defuse controversy.

Brown, on the other hand, is often single-minded in expressing her views. Quiet and reserved in person, she can deploy withering prose in trying to discredit the reasoning of the majority. She also is one of the most conservative members of the court on civil cases.

"Justice Brown has an in-your-face style that the chief justice and probably the other justices understandably don't like," said Stephen Barnett, a professor at UC Berkeley's law school. "Sometimes she does go a little far, but I think her approach is refreshing."

He said the other justices should not take her criticism "personally."

But Clark Kelso, a professor at McGeorge School of Law, described Brown's dissent in Mar as "over the top."

"You can disagree with the majority without having language that suggests somehow that the majority lacks intelligence," Kelso said.

The case was by no means the first in which George and Brown have sparred. Brown wasn't on the court long when George asked her to tone down her dissents, a request she rebuffed, court sources say…...

Brown is a loner on the court. Some of the other justices are reluctant to sign her dissents because of their tone, sources said, and she and George communicate by memo….

"The pages of judicial reports are not a place to vent spleen and not a place to highlight personal differences," Kelso said. "It is a place to say what the law is and how the law should develop."“Court Nominee’s Writings Expressed Strong Views; Bar Panel’s Critical Review Cited Janice Brown’s Conservative Opinions,” Maura Dolan, Los Angeles Times, Home Edition, 5/1/96, p. A-1.

According to Dolan, “Brown’s opinions… reveal a tendency to mold the law in a way she sees as serving the state’s best interest, even if a more literal interpretation of a statute would yield a different result.” McGeorge School of Law professor J. Clark Kelso added, ‘I think that is probably true. She will favor a more comprehensive approach.’” In addition, Dolan reported that Justice Brown had been criticized for expressing unnecessarily strong personal opinions and inappropriate sentiments in her rulings. She quoted Santa Clara law professor Gerald F. Uelmen as saying that Brown’s opinions may be interpreted as “motivated by politics rather than the law.” Uelmen concluded that Brown’s “’sloganeering [ ] underscores her lack of experience….’”

“Wilson Picks Appellate Judge for High Court,” Maura Dolan, Los Angeles Times, Home Edition, 3/29/96, p. A-1.

Dolan reported that she interviewed a member of the Commission on Judicial Nominees Evaluation who “predicted that [Brown] would be ‘another Clarence Thomas,’ the Black U.S. Supreme Court justice who has become known primarily for the extremely conservative views in his opinion. Asked in an interview about that comparison, Brown said she could not comment because she was not familiar enough with Thomas’ writings.”

“Pointed Prose Sets Freshman Justice Apart,” Maura Dolan, Los Angeles Times, Home Edition, 7/11/98, p. A-1.

Dolan reported that “when Brown sits down to write, something overcomes her. Her fingers fly across the keyboard, and the words that spill forth are scorching and sarcastic, scolding her colleagues and at times expressing contempt at their rulings.” Dolan also reported that “[t]wo knowledgeable court sources say Brown’s dissents have irritated other justices, some of whom have, according to the sources, privately complained about her poison pen and referred to Brown as a loose cannon when she has a typewriter in front of her. Chief Justice Ronald M. George has even taken the unusual step of pulling Brown aside and asking her to tone down her scathing criticism of majority rulings. In interviews, Brown and George declined to comment on that conversation.”

Dolan stated that “Brown could end up resembling U.S. Supreme Court Justice Antonin Scalia, whose ‘clear world view of constitutional law’ is not shared by his colleagues and has tended to ‘marginalize’ him, said professor J. Clark Kelso of the McGreorge School of Law in Sacramento. Brown, who will ignore precedent if it contradicts her views, also is in danger of becoming marginalized, he said. ‘She simply disagrees with everyone else on the court on a variety of issues,” Kelso said.

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