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Jewish World Review May 9, 2005/ 30 Nissan, 5765

Nat Hentoff

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Filibustering Janice Rogers Brown | Janice Rogers Brown of the California Supreme Court has been the Bush nominee for a federal circuit court judgeship facing particularly fierce resistance by Democrats and their allies. For example, the April 26 "Action Alert" from the National Association for the Advancement of Colored People accuses her of "having extreme right-wing views," issuing "many opinions hostile to civil rights."

I do not agree with all of Justice Brown's opinions, but I write this to show how prejudicially selective the prosecution of her is by the Democrats, the NAACP, People for the American Way and her other critics. She was filibustered in the last Congress, and may be again, now having been sent to the floor on a 10-to-8 party-line vote by the Judiciary Committee.

To my knowledge, not one of her attackers has mentioned the fact that in the case of People v. McKay (2002), Brown was the only California Supreme Court justice to instruct her colleagues on the different standards some police use when they search cars whose drivers are black:

"There is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver. ... The practice is so prevalent, it has a name: 'Driving While Black.'"

The three-page "Action Alert" I received from the NAACP ignored that opinion, in which Brown added that while racial-profiling is "more subtle, more diffuse and less visible" than racial segregation, "it is only a difference of degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras."

This is right-wing extremism? Yet, an April 28 lead New York Times editorial accuses Justice Brown of being "a consistent enemy of minorities (and is) an extreme right-wing ideologue."

Sen. Ted Kennedy (D-Mass.) has accused Justice Brown of hostility not only to civil rights but also to "consumer protection." But in Hartwell Corp. v. Superior Court (2002), she declared that water utilities could be sued for having harmful chemicals in the water that result in injuries to residents of the state who drink that water.

Also in People ex rel. Lungren v. Superior Court (1996), Justice Brown affirmed the authority of California's attorney general to haul into court faucet manufacturers who include lead in their faucets.

Another charge by the NAACP in its "Action Alert" is that Justice Brown dissented from "a ruling that an injunction against the use of racially offensive epithets in the workplace did not violate the First Amendment."

I know this case — Aguilar v. Avis Rent A Car System Inc. — well, having covered it from the beginning and interviewed lawyers on both sides. Brown dissented from an astonishing decision by the California Supreme Court that authorized the trial judge to actually put together a list of words that would be forbidden for all time in that workplace, even if uttered out of the presence of employees.

This extreme gag rule on speech turned the First Amendment upside-down because as Stanley Mosk, a much-respected civil libertarian on that California Supreme Court, emphasized: "The offensive content of using any one, or more, of a list of verboten words cannot be determined in advance." As Brown said plainly and correctly: "We are not dealing merely with a regulation of speech, we are dealing with an absolute prohibition — a prior restraint." This could "create the exception that swallowed the First Amendment."

As for this justice's hostility to civil rights and liberties, there was her dissent in In re Visciotti (1996) in which she declared that the sentence of John Visciotti — convicted of murder, attempted murder and armed robbery — be set aside because of his defense lawyer's incompetence. In another capital murder case (In re Brown) she reversed the death sentence of John George Brown because the prosecutor subverted the defendant's fundamental right to due process by not disclosing evidence that could have been exculpatory.

Not a word about those two cases was in the NAACP "Action Alert" or The New York Times editorial.

Were I on the Senate Judiciary Committee, a critical question I would ask Justice Brown is: "Is it true, as has been charged, that you believe the drastically anti-labor 1905 Supreme Court decision in Lochner v. New York was correctly decided?"

In that decision, which placed bakery owners' contract rights over the health of workers and the health of buyers of the company's products, the High Court ruled that employers had the right to insist that their employees work unlimited long hours, even if the public's health were to be endangered because sick workers couldn't even take the day off.

If Justice Brown does indeed agree with that decision, which was influential until President Roosevelt's New Deal, I would have difficulty voting for her; but I would not unjustly accuse her of having nothing in her record that strongly upholds the interests of justice. She does not deserve being stereotyped as an archetypical reactionary. And her defense of the Fourth Amendment's protection of our rights against government search and seizure are much stronger than any current member of the Supreme Court.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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