In nominating California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, President Bush chose an African American woman who shares his commitment to judicial restraint.
Almost two years later, filibuster-happy Senate Democrats and their chums still refuse to give her a simple up-or-down vote, but it's worse than that. They argue she doesn't merit a seat on this court because (a) she lacks a commitment to civil and constitutional rights and (b) is, in fact, an "aggressive" judicial activist. If they keep this up, Brown's foes will soon be telling us this daughter of Southern sharecroppers is not an African American woman.
How is a jurist twisted into something she's not? For an answer, go to the People for the American Way's "Loose Cannon" report on Brown and then to the Committee for Justice's report for a necessary correction.
"Justice Brown's opinions . . .," the People report states, "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." They're upset by her dissent in Aguilar v. Avis Rent A Car. They see a civil rights case. Brown sees a free speech case. "Today, this court holds that an idea that happens to offend someone in the workplace is 'not constitutionally protected' . . ." she wrote. "Why? Because it creates a "hostile . . . work environment" . . . in violation of the Fair Employment and Housing Act (FEHA) . . . [T]he court has recognized the FEHA exception to the First Amendment."
Now, it's possible to reject her view, but to say she's blind to discrimination or indifferent to its remediation ignores all she wrote. She called the speech "offensive and abhorrent" and favored a "middle ground" that "preserves both the freedom of the speaker and the equal dignity of the audience." Workers can sue for damages from bosses who tolerate such speech.
But the "Loose Cannon" report goes on to question even Brown's commitment to the First Amendment by pointing to her disregard of that amendment in a case where she "denied the First Amendment rights of Latino youths to peaceful assembly."
In People ex. rel. Gallo v. Acuna, however, the Latino youths were a vicious gang. Their right to assembly involved turning a four-block area of Rocksprings, Calif., into their own playpen, replete with fighting, vulgarity, profanity, open drinking, drug use and dealing, gunfire and terrified neighbors. They took over sidewalks, driveways, carports and parking lots. In upholding an injunction sought by San Jose barring gangsters from the neighborhood, Brown wrote, "To hold that the liberty of the peaceful, industrious residents of Rocksprings must be forfeited to preserve the illusion of freedom for those whose ill conduct is deleterious to the community as a whole is to ignore half the political promise of the Constitution and the whole of its sense."
Although this hardly sounds like an assault on the First Amendment's freedom of assembly, it's worth noting that Brown wrote for the California Supreme Court majority in this case. Or does the majority also lack a commitment to constitutional rights in the special world of the People for the American Way?
In their view, you see, Brown cares only about the constitutional rights of racist workers and -- oh, yes, of course -- corporations. The group cites Brown's dissent in Kasky v. Nike. She argued that Nike could not be sued for allegedly incorrect claims in press releases because this was an unconstitutional imposition on free speech. People for the American Way think her dissent was out of sync with Supreme Court jurisprudence on "commercial" speech, but several U.S. Supreme Court justices expressed a different view when the issue came before them.
The high court dismissed the case on a technicality and an out-of-court settlement has since been reached, but Justice John Paul Stevens' majority opinion for Ruth Bader Ginsburg and David Souter argued that the case raised important constitutional questions. And Stephen Breyer, joining Sandra Day O'Connor in dissent, wrote that if the case was decided on its merits, Brown's view would likely prevail.
Suffice it to say these aren't judges that outfits like People for the American Way think are unfit for our appeals court. Then again, they haven't had their records perverted by outfits like People for the American Way.
David Reinhard
