COMMITTEE HEARING REINFORCES CASE AGAINST CONFIRMATION OF JANICE ROGERS BROWN
Prior to the Senate Judiciary Committee hearing on October 22 on the nomination of California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit, the nomination had already generated significant opposition. The NAACP, People For the American Way, Congressional Black Caucus, National Bar Association, Leadership Conference on Civil Rights, National Women’s Law Center, California Association of Black Lawyers, NAACP LDF, Sierra Club, and many other organizations, along with more than 200 law professors, opposed her confirmation based on her record of ideological extremism and right- wing judicial activism.
At her hearing, the New York Times explained, “Justice Brown only ratified her critics’ worst fears.”1 In fact, the day after the hearing, a prominent California law professor who had been singled out by Committee Chair Orrin Hatch at the hearing for signing a letter of support for Brown wrote to Hatch that after watching her testimony before the Committee, he could “no longer support the nomination.”2
Specifically, the October 22 hearing reinforced serious concerns about Brown in five areas: 1) her troubling dissents concerning discrimination, consumer rights, and other issues; 2) her disturbing disregard for precedent, especially with respect to constitutional and civil rights; 3) her ultra-conservative ideological views as reflected both in her speeches and judicial opinions; 4) her strong support for extreme “private property” rights theories, including long-discredited legal theories that threaten important governmental actions regulating corporate behavior; and 5) her troubling disagreement with constitutional protection for fundamental rights and liberties. As the Atlanta Journal-Constitution has concluded, Brown’s views are “far out of the mainstream of accepted legal principles” and she is “not qualified for the U.S. Court of Appeals for the D.C. Circuit.”3
BROWN’S TROUBLING DISSENTS IN CIVIL RIGHTS AND OTHER AREAS
At the outset of the hearing, Senator Durbin summarized the concerns of many about Justice Brown’s record of dissents on the California Supreme Court. Noting that all but one of the other justices on the court were also Republican, Durbin explained that Brown has dissented, often by
1 Out of the Mainstream, Again, New York Times (Oct. 25, 2003) (“NYT”)
2 Letter from Professor Stephen R. Barnett to the Honorable Orrin Hatch (Oct. 23, 2003)(“Barnett letter”).
3 Judicial Pick Not Fit for U.S. Court, Atlanta Journal-Constitution (Oct. 29, 2003). herself, in “a great many cases involving the rights of discrimination victims, consumers, and workers” on the side of “denying rights and remedies to the downtrodden and disadvantaged.” For example, Durbin noted, Brown was the “only member” of the court to: