The following is a joint
press release from People for the American Way and the NAACP.
Right Dream Judge' Janice Rogers Brown Joins Lineup of Extremist Appeals
California Supreme Court
Justice Janice Rogers Brown, one of President Bush's most recent nominees
to the federal appeals court, has a record of ideological extremism
and aggressive judicial activism that makes her unfit to serve on the
appeals court, according to a an in-depth analysis of her record released
by People For the American Way and the NAACP. Brown, nominated to the
DC Circuit Court, is one of many Bush judicial nominees that could come
before the Judiciary Committee and full Senate this fall.
"Janice Rogers Brown is the far right's dream judge," said
People For the American Way President Ralph G. Neas. "She
embodies Clarence Thomas's ideological extremism and Antonin Scalia's
abrasiveness and right-wing activism. Giving her a powerful seat
on the DC Circuit Court would be a disaster."
friendly version of Female Clarence Thomas cartoon.
"Janice Rogers Brown has a record of hostility to fundamental civil
and constitutional rights principles, and she is committed to using
her power as a judge to twist the law in ways that undermine those principles,
said Hilary Shelton, director, NAACP Washington Bureau. "For
the administration to bring forward a nominee with this record and hope
to get some kind of credit because she is the first African American
woman nominated to the DC Circuit is one more sign of the administration's
The report, "Loose Cannon," notes that when Brown was nominated
to the state supreme court in 1996, she was found unqualified by the
state bar evaluation committee, based not only on her relative inexperience
but also because she was "prone to inserting conservative political
views into her appellate opinions" and based on complaints that
she was "insensitive to established precedent."
The report carefully examines Brown's record since she joined the court,
especially her numerous dissenting opinions concerning civil and constitutional
rights. Brown's many disturbing dissents, often not joined by
a single other justice, make it clear that she would use the power of
an appeals court seat to try to erect significant barriers for victims
of discrimination to seek justice in the courts, and to push an agenda
that would undermine privacy, equal protection under the law, environmental
protection, and much more.
In speeches, Brown has embraced the extreme states' rights and anti-federal-government
positions of the Federalist Society, the organization of lawyers and
judges working to push the law far to the right. She has said 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."
Civil Rights, Equal Opportunity, and Discrimination
According to the report, "Justice Brown's opinions on civil rights
law are perhaps the most troubling area of a very troubling body of
work. These opinions reveal significant skepticism about the existence
and impact of discrimination and demonstrate repeated efforts to limit
the avenues available to victims of discrimination to obtain justice.
Brown's opinions in this area reveal a troubling disregard for precedent
and stare decisis – even in the context of case law that has been settled
by the U.S. Supreme Court."
The report examines Brown opinions in cases involving racial discrimination,
discrimination against people with disabilities and older Americans,
and affirmative action. California's Chief Justice criticized
one of her opinions as arguing that "numerous decisions of the
United States Supreme Court and this court" were "wrongly
decided" and as representing a "serious distortion of history."
Free Speech and Association
Brown's free speech opinions illustrate her tendency to rule in favor
of corporations and seek to provide broad protections for corporate
speech, while sometimes giving short shrift to the First Amendment rights
of average citizens.
In one dissent she listed as one of her ten most significant decisions,
Brown sought to expand the contexts in which corporations could make
false or misleading statements without any effective legal mechanism
for holding them accountable. In another case discussed in the
report, Brown argued that a corporation should be granted an injunction
against a former employee sending emails critical of the company's employment
practices to some of his former colleagues.
Her vigorous support of strong legal protections for even false and
misleading corporate speech is even more disturbing when contrasted
with her willingness to enforce a very broad injunction severely restricting
the ability of Latino youth who were alleged to be gang members to gather
in certain neighborhoods.
Privacy, Family Rights, and Reproductive Freedom
As a state supreme court justice, Brown has issued only one opinion
dealing with abortion, but it raises serious concerns about her judicial
philosophy concerning women's constitutional right to privacy and reproductive
freedom. In her dissent, Brown argued that the federal Constitution
somehow restricts the privacy protections that may be provided by the
state constitution, a position far outside the mainstream of judicial
thought. She argued that the court majority's decision ruling
unconstitutional a restrictive parental consent law for minors seeking
abortions would allow courts to "topple every cultural icon, to
dismiss all societal values, and to become final arbiters of traditional
Brown partially dissented from an important ruling this year 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 "trivialized family bonds," even though the
majority explained that it would encourage and strengthen such bonds.
Worker Rights, Consumer Protection and Private Property Rights
Several cases raise serious questions about Brown's willingness to enforce
provisions intended to protect the average person against the power
of the government or large corporations. Brown has signaled her approval
of broad drug-testing provisions even in situations in which a majority
of the California Supreme Court found the tests to be clearly unconstitutional,
and even where it would have required explicitly rejecting U.S. Supreme
Court precedent. She also wrote an opinion as a judge on the Court
of Appeal that would have struck down the fee system the state had instituted
to ensure that paint companies help pay for state efforts to provide
for screening and treatment of children exposed to lead paint, an opinion
that was overturned by the California Supreme Court. She has dissented
from several rulings protecting the rights of investors and other consumers,
arguing that previous precedents should be abandoned.
In dissents from decisions on rent control and a decision upholding
a city ordinance protecting against displacement of low-income residents,
she articulated an extremist view of property rights that would, if
she were given the power of a seat on the DC Circuit, have dangerous
and far-reaching consequences for environmental protection and government
regulation of businesses.
She vigorously dissented from a case concerning a San Francisco rule
requiring residential hotel owners seeking permission to eliminate residential
units and convert to tourist hotels to help replace the lost rental
units. Brown's dissent said the ruling approved "theft"
and said it turned democracy into a "kleptocracy." Brown's
theory that regulations are not allowed unless property owners agree
they would benefit them economically would preclude much economic or
environmental regulation. "Nothing in the law of takings,"
wrote the majority, would justify an appointed judiciary in imposing
that, or any other, personal theory of political economy on the people
of a democratic state."
In several speeches and one of her opinions, Brown has attacked the
long-established principle that governmental action infringing on fundamental
rights is subject to strict judicial scrutiny while general social and
economic legislation is upheld if it has a rational basis. According
to Brown, that fundamental principle is "highly suspect, incoherent,
and constitutionally invalid."
Some GOP Senators argued as recently as 2002 that the open 11th and
12th seats on the DC Circuit were superfluous and should not be filled.
It would be not only hypocritical but disastrous for Americans' rights
and liberties for one of those seats to be filled by Janice Rogers Brown.
Justice Brown's record does not demonstrate the commitment to fundamental
constitutional and civil rights principles that should be shown by a
nominee to an important lifetime position on the federal court of appeals
for the DC Circuit. To the contrary, she would be insensitive
to established precedent protecting civil and constitutional rights
and improperly prone to inserting right-wing political views into her
appellate opinions in an effort to remake the law. Senators should
not consent to her confirmation.
A copy of "Loose Cannon" can be downloaded at: http://www.pfaw.org/pfaw/dfiles/file_229.pdf