California Supreme Court Justice Janice Rogers Brown, nominated by President Bush to a lifetime seat on the U.S. Court of Appeals for the District of Columbia Circuit, has a record of ideological extremism and aggressive judicial activism that makes her unfit to serve on the powerful federal appeals court.
The New York Times has described Brown’s nomination as part of the Bush administration’s “further effort to remake the federal courts in its own ideological image.”1 When Brown was nominated to the state supreme court in 1996, she was found “unqualified” by the California state bar evaluation committee, based not only on her relative inexperience, but also because of concerns that she was “prone to inserting conservative personal views into her appellate opinions” and complaints such as that she was “insensitive to established precedent.”2
A review of Brown’s record since then, especially her numerous dissenting opinions concerning civil and constitutional rights, demonstrates that these criticisms remain true today. Far from demonstrating the commitment to fundamental civil and constitutional rights principles that should be shown by all federal court nominees, Brown’s record reveals a disturbing tendency to try to remake the law in a way that would undermine these crucial principles.
For example, Brown has written many disturbing dissenting opinions, often joined by not a single additional state supreme court justice, that would have erected significant barriers making it much harder for victims of discrimination based on race, age, disability, and other grounds to obtain relief, if they had been adopted by a majority of the court. In one case, she asserted that a bank employee should not even have been able to file a lawsuit for race and age bias under California’s fair employment law because a 135-year old federal bank law purportedly pre-empted the claim, an argument specifically rejected by the majority of the court. In another case, her dissent claimed, contrary to established precedent, that racially discriminatory speech in the workplace that creates a hostile working environment is protected by the First Amendment and cannot be limited, even suggesting that Title VII of the 1964 Civil Rights Act could be partly invalid under her reasoning.
California’s chief justice severely criticized Brown’s opinion in a controversial case concerning affirmative action, writing that her opinion incorrectly claimed that past Supreme Court decisions approving affirmative action were “wrongly decided” and that her analysis “represents a serious distortion of history.” 12 P.3d at 1093,1095. She was also criticized for a dissenting opinion in an important case concerning reproductive choice, in which she argued, contrary to past precedent, that the California constitution does not provide greater privacy protections than the federal constitution.
Brown has also argued for overturning established precedent in cases concerning corporate power, the rights of workers, and government authority to enact economic and environmental regulations. Her dissent in one case argued for abandoning Supreme Court precedent and giving greater protection to even allegedly misleading commercial speech by corporations. See Nike v. Kasky, infra. Her dissent in another case claimed that a drug and alcohol testing program for current city employees should be permitted, despite established precedent to the contrary, and explicitly advocated a “return to an earlier view” of employee rights that even Brown acknowledged has not been the law “for many years.” 927 P.2d at 1257.
The majority criticized her dissenting opinion in another case that private property owners should be able to effectively veto important government regulations, characterizing it as an effort to impose a “personal theory of political economy on the people of a democratic state” contrary to established precedent. 41 P.3d at 110.
Brown has also claimed that a basic Supreme Court principle of constitutional review, that strict scrutiny applies to violations of fundamental rights while general social and economic legislation is upheld if it has a rational basis, is “highly suspect, incoherent, and constitutionally invalid.” 2 P.3d at 601. In a speech to the Federalist Society, she has stated 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.”
Other serious concerns have also been raised about Brown’s nomination. She has been severely criticized concerning her judicial temperament and collegiality. Some of her dissenting opinions have been contemptuous of her colleagues. Sources on the court reportedly stated that her fellow justices have privately complained about her “poison pen” and have called Brown a “loose cannon when she has a typewriter in front of her.”3 Her selection from 3000 miles away conflicts with the nonpartisan policy urged by D.C. Bar leaders, and followed for the last 10 years, of seeking to select D.C.-area lawyers familiar with the D.C. Circuit for positions on that court. And Brown and Brett Kavanaugh have been nominated for the eleventh and twelfth seats on the D.C. Circuit, despite the repeated insistence of several Republican senators, even when the court’s caseload was higher than it is today, that the court should have no more than ten members.
Many have raised concerns about Brown with regret and reluctance. As the president of the California Association of Black Lawyers recently noted, “we would like to see an African American female be elevated to a higher court.” But as the group’s president went on to explain, “we do not see how we can support someone who is diametrically opposed to our goals.”4
As more than 200 law professors wrote to the Senate Judiciary Committee in July, 2001, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These include not only an “exemplary record in the law” and an “open mind to decision-making,” but also a “commitment to protecting the rights of ordinary Americans” and a “record of commitment to the progress made on civil rights, women’s rights, and individual liberties.”5 Based on these criteria, as discussed below, Brown’s confirmation to a lifetime position on the critical Court of Appeals for the D.C. Circuit should be rejected.
1 “More Conservatives for the Courts,” New York Times (July 29, 2003).
2 Maura Dolan, “Bar Faults High Court Nominee in Key Areas,” Los Angeles Times (April 26, 1996) at A1 (“High Court”)
3 Maura Dolan, “Pointed Prose Sets Freshman Justice Apart,” Los Angeles Times (July 11, 1998) at A1.
4 Claire Cooper, “Bush Taps Brown for D.C. Circuit,” Sacramento Bee (July 26, 2003).
5 See Law Professors’ Letter of July 13, 2001 (available from People For the American Way).