Politics as usual, unfortunately

In case you haven’t heard, the Senate confirmed extremist-conservative judicial nominee Justice Janice Brown. Now how about a reminder as to why she is a threat to the highest levels of the Judiciary and our civil rights…

Unfit to Judge: Brown was the first California Supreme Court Justice to receive an unqualified rating from the state bar and still be nominated by a governor … Republican Pete Wilson in 1994. Three-fourths of the state bar evaluators felt Brown was ill-equipped to hold the position. They are not alone. The American Bar Association gave Brown a low rating of qualified/unqualified for nomination to the D.C. Circuit. Complaints filed by her peers said that she was “insensitive to established legal precedent . . . and lacked compassion and intellectual tolerance for opposing views.”

Anti-government: Brown has made it crystal clear that she does not believe in government involvement of any kind. She abhors the New Deal in its entirety and has said regarding Social Security that “Today’s senior citizens blithely cannibalize their grandchildren because they have the right to get as much ‘free’ stuff as the political system will permit them to extract.” Her anti-government, anti-regulation sentiments are particularly disturbing because she has been nominated to the D.C. Circuit of Appeals, which makes decisions on most federal administration and regulation cases such as those involving regulations set by agencies like the Social Security Administration, Federal Elections Commission, Equal Employment Opportunity Commission, Federal Communications Commission, and those dealing with federal environmental and labor laws.

Affirmative Action: Brown is infamous for her 2000 decision in Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2000), which upheld California’s voter-approved initiative, Prop. 209, banning affirmative action for women and minorities in public contracts, hiring and college admissions, where they are under-represented. Brown’s 18-page opinion attacked not only the facts of the case but affirmative action in general and made her a darling of the Republican right wing.

Discrimination: Brown has written a truly stunning array of opinions ruling against people filing lawsuits for discrimination. She has been inconsistent in her reading of the First Amendment, ruling that it should protect racial slurs and discriminatory speech in the workplace and in another case asserting that the First Amendment should not protect the right to freely assemble. She has also written opinions that imply that ageism is not a form of discrimination; that it should be more difficult to prosecute against discrimination based on disability; and argues against second-parent adoptions … a critical option for lesbian and gay families.

Abortion: In the case of American Academy of Pediatrics v. Daniel E. Lundgren, Brown’s dissenting opinion, which dismissed a minor’s right to privacy by holding that a parental notification law should not be thrown out even though it violated California state law because California state law cannot provide more privacy than the United States Constitution, she displayed her hostility toward abortion rights. In her opinion, she also showed a disturbing lack of compassion and understanding towards the plight of a young woman trying to navigate the legal system in order to get an abortion. In a more recent case, Catholic Charities of Sacramento v. Superior Court of Sacramento County, Brown was the sole dissent in a decision which found that Catholic Charities was violating a state contraceptive prescriptive equity statute. She stated that if employees felt that they were discriminated against they were free to move to “more congenial employment.”

Violence Against Women: Brown was the lone dissenter in opining that a jury should not be allowed to hear evidence of Battered Women’s Syndrome. She also wrote a shocking dissent in 2003 regarding criminal charges against a man accused of raping a 17-year-old woman on a date. The woman had verbally expressed that she did not want to have sex several times throughout the night. Although she consented to kissing and fondling and at one point to sex, she asserted that she quickly changed her mind and continued to say no and struggle when the man forcibly penetrated her. The question before the court was whether criminal charges of forcible rape could be brought when a woman withdraws her consent and the man continues against her will. The California Supreme Court found that indeed criminal charges could be brought but Brown’s dissenting opinion questioned whether the woman had protested enough and asked the question, “Is persistence the same thing as force?”

Objectivity: Brown participates in many invitation-only private “seminars” thrown by ultra-right wing organizations such as the Liberty Fund and the John M. Olin Foundation. Attending such events, and even making speeches at them, contributes to an appearance of impropriety at best and at worst may influence judges and affect the outcomes of cases.


A review of California Supreme Court Justice Janice Rogers Brown’s record to date raises serious questions and grave concerns about her persistent and disturbing hostility to affirmative action, civil rights, the rights of people with disabilities, workers’ rights, and criminal rights. In addition, 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, her opinions are based on extremist ideology that ignores judicial precedent, including that set by the U.S. Supreme Court.

There’s more here on the Justice’s views of the government and these here are her own words. Now let’s all thank the ever shamelessly compromising and cowardly Congressional Democrats, who not only enjoy losing elections but selling out their voting base, by allowing justices such as Brown to sit on the highest levels of the Judiciary in order to appease the neocon Republicans. Thanks.

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11 Responses to Politics as usual, unfortunately

  1. If one wished to look for a silver lining, she will soon step down from the California Supreme Court.

  2. 2
    Julian Elson says:

    Ezra Klein (Jesse Taylor’s coblogger in the pre-Amanda days) thinks that the divisiveness of Bush’s nominations isn’t a side-effect of wanting to push radical-right ideology, but an intentional attempt to add to the polarization and division in the country while trying to paint Democrats as hating women or minorities. A widely admired justice on both sides of the aisle just wouldn’t do, because Frist wouldn’t be able to talk about what obstructionists Democrats are.

  3. 3
    Sydney says:

    Well I can’t see how Brown’s nomination is going to help make democrats seem like they don’t care about minorities and women. Brown is clearly a republican ally who has a track record of actively working against both those communities. I could be misunderstanding what Ezra is saying of course……

    The whole thing really just sickens me. I can’t believe that this woman is going to actually be in a position which requires an objective and comphrensive ability to examine the law. Her own peers think that she’s not competent. How far are conservatives willing to compromise justice in order to accomplish their own agenda? And how much are democrats going to take before they actually do something?

  4. 4
    Kyra says:

    Uh, lemme get this straight. She’s “made it crystal clear that she doesn’t believe in government involvement of any kind” and yet she wants the government involved in young women’s lives in order to make it harder for them to get an abortion—she refused to allow the state government to be less involved than the federal government. And people say John Kerry is a flip-flopper.

    Now, if she could only tell the Pharmacists Refusal Clause people that THEY are free to move to “more congenial employment.” But somehow I doubt that will happen.

    And she protests that “the First Amendment should not protect the right to freely assemble.” What, is she going to attack the Constitution with a bottle of White-Out? Here’s a hint, Janice: READ it. It SAYS people have the right to peaceably assemble; therefore people who wish to peaceably assemble have the right to do so freely; therefore the First Amendment does guarantee the right of the people to freely assemble. She tried to directly contradict it, and as it is the duty of all judges to uphold the constitution and the principles of freedom this country was founded on, she has no business picking up a gavel in this country. (Maybe she should move to “more congenial employment.”)

    Regarding the scheme of painting the Democrats as anti-diversity, in reality the opposite is true. If the Democrats supported an unqualified judge whose views they oppose, simply because she’s black and female, THAT would make them racist and sexist—they would be turning down more qualified people because of a preference for a certain race and sex. What’s more, sacrificing the rights of millions of women to break a hole in the glass ceiling for one woman is not right at all.

    The goal of feminism should not be to simply get women into high offices, but to get PEOPLE into high offices who are supportive of women’s issues. True equality is judged by the amount of freedom EVERYONE possesses, not the gender ratio of the top levels of government (although with equality will come an equalized gender ratio).

    I don’t think anyone here would suggest that having Ann Coulter as President, Phyllis Schlafly as Vice President, Janice Rogers Brown and Priscilla Owens on the Supreme Court, and the rest of the Independent Women’s Forum and Pat Robertson’s co-host in Congress, would mean anything good for the cause of gender equality.

    On the other hand, if we had the Equal Rights Amendment passed, comprehensive sex education, maternity leave, public day care, easily accessable abortion, birth control, and EC, a public information campaign against domestic violence, and school programs that teach respect for all other people as a basic, necessary skill, then things would be much, much, much better, regardless of what percentage of congresspeople go to the bathroom standing up.

  5. 5
    Robert says:

    She’s “made it crystal clear that she doesn’t believe in government involvement of any kind”? and yet she wants the government involved in young women’s lives in order to make it harder for them to get an abortion…she refused to allow the state government to be less involved than the federal government. And people say John Kerry is a flip-flopper.

    Yeah, she contradicts what her enemies say about her. That’s some serious inconsistency going on there. ;)

  6. 6
    Sydney says:

    “I don’t think anyone here would suggest that having Ann Coulter as President, Phyllis Schlafly as Vice President, Janice Rogers Brown and Priscilla Owens on the Supreme Court, and the rest of the Independent Women’s Forum and Pat Robertson’s co-host in Congress, would mean anything good for the cause of gender equality. ”

    Only if we wanted the world to end.

  7. 7
    Samantha says:

    It wouldn’t be good for gender equality, but would it be worse than what we have now? I’m not so sure.

  8. 8
    Julian Elson says:

    To clarify, I wasn’t saying that the Democrats actually are anti-woman or anti-black. (though no doubt many here would say that they are, if marginally less so than the Republicans. I’m not as disillusioned with the Democrats as most here are, though.) I’m saying that Ezra said that the Bush people think that they get more political mileage by picking someone loathsome so that they can call Democrats “racists,” “sexists,” or — heavens forbid — “obstructionists” than they would out of picking someone the Democrats are willing to approve. They could be wrong, though. It’s a risky gamble. Sometimes I feel like, while the Republicans as a whole have gotten to Congress through deft manipulation, skillful campaigning, etc, the Bush administration in particular has mostly survived and gotten reelected more due to dumb luck than Karl Rove’s alleged genius. It’s possible that this is a really idiotic, hamfisted move on the part of the Bush administration.

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  10. 9
    João Carlos says:

    Wow! Where were you when Bush got enough votes to be Prez? Now, you have to carry the burden…

  11. 10
    David says:

    Note that I’m no fan of J. R. Brown, but I do think it’s important to criticize what she actually says, not how people spin her. The phrase “the First Amendment should not protect the right to freely assemble”? is not a quote from Brown, it’s a quote from now.org attributing that view to her. While NOW doesn’t cite a particular case, I imagine they’re referring to Gallo v. Acuna, in which (if I’m reading this right; ianal) Brown wrote a majority opinion for the California Supreme Court, upholding an injunction against certain gang members, who had been terrorizing a neighborhood for quite awhile, hanging around that neighborhood in groups. If you read the opinion itself, it defnitely _doesn’t_ deny that the First Amendment protects free assembly; it just says that in some circumstances that protection isn’t absolute. (This isn’t radical in itself; hardly anyone thinks, for instance, that the right to free speech means that you can’t have laws against libel / slander / etc.) So it would not be intellectually responsible to spread the impression that she doesn’t believe in freedom of assembly at all…