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Justice Janice Rogers Brown of the California Supreme Court, who has been nominated to the D.C. Circuit Court of Appeals and faces a Democratic filibuster in the Senate, is on balance not the kind of jurist I would want on the second most influential federal court in the nation. She is not a consistent friend to civil liberties, she interprets the law with a business-friendly eye and her many speeches indicate outright hostility toward the concept of government regulation.
But neither is Brown another Robert Bork. Democratic opponents charge that she is outside the mainstream of legal thought, but, as opposed to Bork, Brown recognizes the legitimate role of the judiciary in constraining the power of government over individuals. Occasionally her writings in defense of liberty have been so eloquent one has to wonder: Have Brown's detractors studied her record in full?
Brown, 54, grew up in the segregated South as the daughter of sharecroppers. Because she, like fellow African-American jurist Clarence Thomas, is a foe of affirmative action, she generates fierce ire from the civil rights community. Her refusal to support special preferences for blacks and other minorities makes her a traitor in the eyes of the NAACP and People for the American Way.
In Hi-Voltage Wire Works Inc. vs. City of San Jose, Brown struck down a program that directed city construction contracts to minority- and women-owned firms. But far from being activist, her opinion was grounded in the express terms of Proposition 209, the California initiative passed in 1996 that barred the use of affirmative action in public employment, education and contracting. She was following the law (though the decision made clear that she was in full agreement with the measure).
From this Brown has been dubbed racially insensitive, an accusation that is simply not fair. Read her ringing dissent in People vs. McKay if you want to see how seriously she takes racial profiling by police.
In that case, Conrad McKay was arrested for riding his bicycle on the wrong side of the street and not having proper ID. When he was searched incident to the arrest, a baggie of methamphetamine was found in his sock.
When the court upheld the arrest and search, Brown blasted the ruling. She said it disregarded the very purpose of the Fourth Amendment, which is to "preclude "the petty tyranny of unregulated rummagers.' " Brown charged that granting this kind of discretion nullifies any real limits on police searches and facilitates racially discriminatory enforcement practices such as pulling people over for "driving while black."
"I do not know Mr. McKay's ethnic background," Brown wrote. "One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes - places where no resident would be arrested for riding the "wrong way' on a bicycle whether he had his driver's license or not. Well . . . it would not get anyone arrested unless he looked like he did not belong in the neighborhood."
She also stood on the side of privacy rights in People vs. Woods, in which she dissented when the court approved a warrantless search of an entire residence when one roommate was a probationer and had agreed to these types of searches as a condition of probation. Brown complained that her colleagues "set the history of personal liberties back more than 200 years."
But just when you think this justice is a true stalwart for individual rights, one reads Brown's majority opinion in People ex. rel. Gallo vs. Acuna, in which she upheld an injunction preventing alleged gang members from standing, sitting or walking together within a certain neighborhood. "(T)he community's right to security and protection must be reconciled with the individual's right to expressive and associative freedom," Brown wrote. "Reconciliation begins with the acknowledgment that the interests of the community are not invariably less important than the freedom of individuals."
Her ruling, as a dissent pointed out, restricted the liberty of a number of Latino youth who had not been charged or convicted of any crime. If a group of young people are terrorizing a neighborhood they should be arrested, but to close off the sidewalks and streets to anyone wearing certain color clothing is to give up on a free society. Brown had an obvious blind spot here.
Her nomination is a mixed bag. Brown has stood up for freedom of speech on a number of occasions but has also written a dissent saying that government employees should have no Fourth Amendment right to object to random drug testing. And her detractors are right that she has a rigid stridency when it comes to protecting property rights and business interests. She seems willing to put decades of health, safety and environmental regulations at risk. For these reasons Brown would not get my vote, but honestly it would be a close call.