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Article from msnbc.com

Another Clarence Thomas?

WASHINGTON, Oct. 23 — Introducing Janice Rogers Brown, President Bush’s latest nominee to the U.S. Court of Appeals for the District of Columbia Circuit, to the Senate Judiciary Committee Wednesday, Sen. John Cornyn, R-Texas, said, “I confess I feel like I’m a participant in a Kabuki performance.” Like that ritualized Japanese theater style, the script and stagecraft seemed all quite familiar. Like Clarence Thomas, Brown is a Southern-born conservative, with an up-by-her-bootstraps life story, and a history of giving speeches warning of the dangers of big government.
BROWN, A ONETIME aide to former California Gov. Pete Wilson, has served as a justice of the California Supreme Court since 1996.
It is not uncommon for a president to select a judge who is not from Washington, D.C., to serve on the D.C. Circuit court. It is the most prestigious federal appeals court, partly because it is where five Supreme Court justices served before presidents chose them for the high court.
Current D.C. Circuit alumni on the Supreme Court are Thomas, Antonin Scalia, and Ruth Bader Ginsburg.

BOUND FOR THE HIGH COURT?
Some court watchers see Brown herself as a potential future Supreme Court nominee. Her profile as an articulate, sometimes polemical black conservative makes such speculation almost inevitable.
Brown is “a conservative African-American woman and for some, that alone disqualifies her” for the appeals court vacancy, contended Judiciary Committee chairman Sen. Orrin Hatch, R-Utah.
Under questioning from Sen. Edward Kennedy, D-Mass., about her anti-big government speeches, Brown insisted, “I don’t hate government; I am part of government. ... I know that there are some things that only government can do.”

Senior committee Democrat Sen. Patrick Leahy of Vermont said he did not want to accuse Brown of undergoing a “confirmation conversion” when she backed away from a 1999 speech voicing doubts about whether the Fourteenth Amendment to the Constitution “incorporates” Bill of Rights protections, applying them to the states as well as to the federal government.
But even Leahy’s use of “confirmation conversion” in his disclaimer summoned up memories of Thomas’ contentious Supreme Court confirmation hearings 13 years ago. Before they became a salacious sex spectacle, the Thomas hearings focused on his apparent changes of heart on some issues.
Just as Thomas had invoked the stern disciplinary image of his South Carolina grandparents who raised him, so too Brown in her testimony Wednesday invoked the memory of her Alabama grandmother, who taught her to survive the indignities of racial segregation.

GRANDMOTHER’S TEACHINGS
“You can be bowed, but not broken — unless you allow people to do that to you,” Brown recalled her grandmother teaching her.
Another of her grandmother’s precepts: “There are no menial jobs. Do that job the best you can and someday when you go on to something better — and you will — they should say about you 10 years later, ‘That Janice, she was the best dishwasher we ever had.’”
Adding to the sense of déjà vu at Wednesday’s hearing was the presence of a pivotal player from the Thomas drama: Republican Sen. Arlen Specter of Pennsylvania, always regarded as a swing vote on conservative nominees.
Justice Thomas himself was a graphic presence at the hearings in the form of a crude cartoon from a Web site called Black Commentator that showed Thomas, National Security Adviser Condoleeza Rice and Secretary of State Colin Powell as buffoonish figures applauding a grotesque caricature of Brown as Bush announced her nomination.
Democrats didn’t explicitly threaten filibuster but said they were troubled by Brown’s record.
Sen. Dick Durbin, D-Ill., cited her as “a lone dissenter in a great many cases involving the rights of discrimination victims.” He said she had “a disturbing position on the sensitive issue of affirmative action” since she viewed it as “entitlement based on group representation.”
“Your record is that of a conservative judicial activist,” Durbin concluded.

CRITICIZING HOLMES
He and Brown spent much time jousting over her critique of Justice Oliver Wendell Holmes’ dissent in a famous 1905 decision called Lochner vs. New York.
Holmes had argued that the Constitution “is not intended to embody a particular economic theory,” while Brown said the framers saw property rights as essential to preserving personal liberty.
Alluding to some of her provocative speeches, Brown assured Hatch, “I absolutely understand the difference in roles between being a speaker and being a judge.”
She explained that her speeches to law school audiences, such as one in which she said Franklin Roosevelt’s New Deal was “the triumph of our own socialist revolution,” were intended to “stir the pot, get people to think, to challenge them a little bit.”
As for her judicial decisions, Brown said, “I do the job the way it’s supposed to be done. I’m a principled judge, I’m not an ideologue of any persuasion.”
Brown showed she had pretty sharp elbows as a politician too. In a what could have been seen as a swipe at heavily staffed senators, she explained, “My speeches are maybe not the greatest. I don’t have a speech writer and I do these things myself and I have a demanding day job, so I often don’t have lot of time to do them.”
Later Brown got a zinger in at Sen. Dianne Feinstein, D-Calif., who quizzed her on her dissenting opinion in a case upholding a San Francisco ordinance that required hotel owners who converted their properties from residential use to transient use to pay the city a fee that would be used to help tenants who were forced out of the hotels.
“I have a great sympathy for the need for low-income housing in San Francisco; I myself can’t afford to live there,” Brown told Feinstein.
It seemed like a deftly subtle jab — since Feinstein grew up in the toney Presidio Heights section of San Francisco, served as the city’s mayor, and, married to wealthy investor Richard Blum, still has a residence there.

WHERE SPECTER STANDS
During a break in the hearings, Specter told MSNBC.com he was keeping an open mind on Brown as she fielded his questions.
“I’m listening. I think that she’s a real legal scholar and her opinions do not show an extreme point of view,” he said. “You can’t put her in a pigeonhole.”
Conservatives deride Specter as a liberal who abandons the party on key votes, most memorably in opposing President Reagan’s 1987 nomination of Robert Bork to the Supreme Court.
Specter played a high-profile role in challenging Thomas’s accuser, Anita Hill, in the 1990 hearings and voted to confirm Thomas, although he later voiced regret that the Judiciary Committee “rushed to judgment” on Hill and Thomas. He also said he was “very disappointed” with Thomas’s performance on the high court.
Specter has voted to shut off the Democratic filibusters of Bush appeals court nominees Miguel Estrada, Priscilla Owen and William Pryor, but the filibusters have spared him the need to vote on confirming those nominees.
Just as Brown is trying to win herself a new job, Specter is trying to keep his: he faces both a primary challenge next year from conservative Republican Rep. Pat Toomey and, if he survives that, a general election battle with Democratic Rep. Joe Hoeffel.
A vote for Brown would help Specter beat Toomey, but would be used against him in his battle against Hoeffel.

Advocacy Letter - Leadership Conference on Civil Rights

Opposition to Janice Rogers Brown
September 29, 2003

Leadership Conference on Civil Rights

The Honorable Orrin G. Hatch
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
152 Dirksen Senate Office Building
Washington, DC 20510

Dear Senators Hatch and Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, with more than 180 member organizations, we write to express opposition to the confirmation of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit. Brown’s record as a California Supreme Court justice demonstrates a strong, persistent, and disturbing hostility toward affirmative action, civil rights, the rights of individuals with disabilities, workers’ rights, and the fairness in the criminal justice system.

Janice Rogers Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream. Not only does she show an inability to dispassionately review cases, but her opinions are based on her extremist ideology and also ignore judicial precedent, even that set by the United States Supreme Court.

Brown’s opinions on civil rights and discrimination cases are perhaps the most troubling part of her record, revealing a blatant disregard for judicial precedent and a desire to limit the ability of victims of discrimination to sue for redress. In Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999), the trial court found that the employer had violated the California Fair Housing and Employment Act by creating a hostile work environment through the use of racial slurs directed at Latino employees. On appeal, the California Supreme Court upheld the lower court’s remedy that prohibited the use of racial slurs in the future, holding that prevention of such speech was not a violation of the employer’s First Amendment rights. Brown dissented, arguing that the First Amendment protects the use of racial slurs in the workplace, even when it becomes illegal race discrimination. Brown’s dissent virtually ignored several Supreme Court precedents. Her opinion also went so far as to suggest that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, violates the First Amendment and is therefore unconstitutional.

Janice Rogers Brown’s lone dissent in Konig v. Fair Employment and Housing Commission, 50 P. 3d 718 (Cal. 2002), would have seriously limited the redress options available to victims of housing discrimination. Brown found that the state Department of Fair Employment and Housing Commission, unlike the courts, did not have the right to award damages for emotional distress. Further, in Peatros v. Bank of America NT&SA, 990 P.2d 539 (Cal. 2000), Brown argued in dissent that the National Banking Act of 1864 pre-empted California’s fair employment law, thus preventing a bank employee from being able to file a lawsuit for race and age discrimination in state court. Justice Brown made this argument despite the fact that other more recent federal laws, such as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, would clearly supercede the 135-year-old banking law on this question.

Brown has also expressed a desire to limit legal recourse for people with disabilities who are victims of discrimination. In Richards v. CH2M Hill, Inc., 29 P.3d 175 (Cal. 2001), an employee sued her employer for disability discrimination based on her employer’s refusal to reasonably accommodate her disability over a five-year period. The state trial court awarded the plaintiff emotional distress and economic damages. On appeal, the employer argued that the statute of limitations had run on the allegations that were more than a year old at the time the case was filed, and thus liability should be greatly reduced. In its majority decision upholding the trial court’s verdict, the California Supreme Court adopted a version of the “continuing violation doctrine,” under which there may be liability for acts occurring outside the statute of limitations if they are sufficiently related to acts occurring within the prescribed time period. Brown’s lone dissent argued against use of the “continuing violation doctrine.” Rather, she asserted her view that plaintiffs should have to file separate lawsuits, subject to separate statutes of limitations, for each act of discrimination.

In City of Moopark v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued in dissent against allowing a disabled city employee to bring a cause of action under the state common law prohibiting employers from firing workers in violation of well-established, substantial, and fundamental public policies, such as the policy against firing people because they have a disability. As the author of the only dissent in Stevenson v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued that the plaintiff had failed to show that public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.” She further stated, “Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a ‘stigma of inferiority and second class citizenship’ (citation omitted); it is the unavoidable consequence of that universal leveler: time.”

Brown has also shown hostility toward affirmative action. Her majority opinion in Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1068 (Cal. 2000) has made it nearly impossible to have a meaningful affirmative action program in California. Justice Brown’s opinion went so far as to also prohibit cities from requiring their contractors to reach out to subcontractor businesses owned by minorities and women. Her opinion also ignored legal precedent set by the U.S. Supreme Court. Despite consistent Court rulings that, under the right circumstances, affirmative action is permissible under federal law, Justice Brown stated that affirmative action was at odds with Title VII of the Civil Rights Act of 1964. While some of the result in this case may have been dictated by Proposition 209, California’s anti-affirmative action ballot initiative, her opinion clearly misinterpreted Proposition 209 and the intentions of California residents who voted for it. One of Brown’s California Supreme Court colleagues, who concurred with the result of the case, wrote that Brown’s opinion seriously distorted history and that she was not correct when she wrote that past decisions in favor of affirmative action were “wrongly decided.”

Justice Brown’s opinions have also shown great antagonism toward the rights of workers. In Loder v. City of Glendale, 927 P.2d 1200 (1997), a case addressing the constitutionality of a drug and alcohol testing program for employees of the City of Glendale, Brown, in dissent, explicitly rejected binding Supreme Court precedent that called for the use of a balancing test to weigh the interest of the government against those of its employees in assessing whether these types of tests were constitutionally permissible. Despite the clear Supreme Court precedent, Brown would have imposed a bright line rule allowing drug tests for all employees. This opinion raises very serious concerns about Brown’s commitment to upholding settled law in both the workers’ rights context and many other areas of civil rights and liberties.

Brown’s extreme ideological opinions also extend to the rights of defendants. In People v. Mar, 52 P.3d 95 (Cal. 2002), the California Supreme Court overturned the conviction of a defendant who was made to wear a stun belt during his testimony at trial. The belt made the defendant uncomfortable and nervous and may have affected how the jury viewed his testimony. In her dissent arguing to uphold the requirement that the defendant wear the belt, Brown berated her colleagues in a brazenly sarcastic and highly critical way, belittling the court’s research into stun belts, accusing her colleagues of “rushing to judgment after conducting an embarrassing Google.com search,” and implying that a high school student could have done a better job than the chief justice in preparing the majority ruling. Also, Brown’s dissent in People v. Ray would have allowed a warrantless search of a person’s home as part of law enforcement’s “community care taking functions,” – an exception to the Fourth Amendment’s prohibition against warrantless searches not recognized by the Supreme Court.

When taken together, Justice Brown’s extreme positions, her tendency toward ideologically-driven judicial activism, and her disregard for settled law, disqualify her from being elevated to any federal court, much less the D.C. Circuit, with its unique position in the federal justice system. The U.S. Court of Appeals for the D.C. Circuit has a critical role in our federal judicial system and is widely regarded as the second most important court in the United States, after the U.S. Supreme Court. Because of the importance of this court, it is critical that Justice Brown’s confirmation be rejected.

For the reasons stated above, we urge the Judiciary Committee to reject Janice Rogers Brown’s confirmation to the U.S. Court of Appeals for the D.C. Circuit. If you have any questions or need more information, please contact Nancy Zirkin at 202-263-2880 or Julie Fernandes, LCCR Senior Policy Analyst, at 202-263-2856.

Sincerely,

Wade Henderson, Executive Director

Nancy Zirkin, Deputy Director

cc: Members of the Senate Judiciary Committee