Bush Nominee to to D.C. Circuit Court of Appeals, Confirmed 2005
Despite Senate Democrats' filibuster of Janice Rogers Brown in 2003, President Bush renominated Brown to the D.C. Circuit Court of Appeals in early 2005. Brown’s record as a California Supreme Court justice raises serious concerns about her fitness to serve on the most important federal appellate court. Specifically, Brown’s record is marked by (1) numerous troubling dissents concerning discrimination, consumer rights, and other issues, (2) a disturbing disregard for precedent, especially with respect to constitutional and civil rights, and (3) extreme right-wing views that shun constitutional protection for fundamental rights and liberties and the right of the government to regulate corporate behavior.
Brown has exhibited hostility to protections against discrimination. For instance, she has argued that victims of age discrimination should not have the right to sue under common law, that the state Fair Employment and Housing Commission did not have the authority to award damages to housing discrimination victims, that victims of disability discrimination are not entitled to raise past instances of discrimination that occurred, and that verbal conduct that creates a hostile work environment does not constitute employment discrimination.
In a case involving a company sued for making false statements about the conditions in its overseas factories, Brown argued that the court should expand the contexts in which corporations could make false or misleading representations with no legal ramifications. In another case, she argued that the court should restrict the ability of investors to sue corporations that provide fraudulent financial reports.
Brown has issued only one opinion dealing with abortion, but in this opinion, she argued that the federal Constitution somehow restricts the privacy protections that the state Constitution can provide. This dissent illustrates a major contradiction to her avowed “states-rights” ideology, suggesting she lacks a consistent philosophy on the role of federal courts and is willing to enforce her opinion at any cost.
Brown partially dissented from an important ruling upholding the validity of second-parent adoptions in California, a ruling that was vitally important to children and parents involved in as many as 20,000 adoptions in the state, including many by same-sex couples. Brown said the ruling “trivializes family bonds,” even though the majority explained that it would encourage and strengthen such bonds.
Economic Regulation and Environmental Protection
One key case concerned an ordinance requiring hotel owners seeking to convert residential units to tourist hotels to help replace the lost rental units in the city, which suffered from a severe shortage of affordable rental housing. The majority easily upheld the ordinance, but Brown dissented, arguing that such regulations are not allowed unless property owners agree they would benefit them economically. Such a radical philosophy would preclude almost any economic or environmental regulation. The majority severely criticized her for attempting to use her own political and economic views to redo the democratic decision in the case.
Most disturbingly, in authoring opinions hostile to individual rights and government regulation, Brown has exhibited a troubling disregard for precedent, including U.S. Supreme Court precedent. In one case, she downplayed several Supreme Court precedents holding that racially discriminatory speech can constitute illegal race discrimination in some cases—and argued that the court should not prevent the use of racial slurs in the workplace at issue. In other cases, Brown has attempted to “legislate from the bench.” For instance, in a 2000 case, Brown asserted that punitive damages should “rarely exceed compensatory damages by more than a factor of three,” an assertion criticized by another justice on the court as “judicial lawmaking.”