Jewish World Review May 9, 2005/ 30 Nissan, 5765
Filibustering Janice Rogers Brown
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
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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