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Jewish World Review Nov. 26, 2003 / 1 Kislev, 5764

Nat Hentoff

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Demonizing Justice Janice Brown | Democrats on the Senate Judiciary Committee relentlessly charge that Janice R. Brown — a California Supreme Court justice nominated to the District of Columbia Court of Appeals — is an extreme conservative, "starkly outside the mainstream," (Dianne Feinstein, California) and "clearly to the right of Justices Antonin Scalia and Clarence Thomas," (Charles Schumer, New York). Confirmed by the committee on a party-line vote, she faces a Democratic filibuster on the Senate floor.

I hardly agree, to say the least, with all of Brown's judicial opinions; but the fiercely partisan Democrats on the Judiciary Committee slide by her dissents and majority opinions that are at vivid variance with the Democrats' campaign to stereotype her entire record. This selective prosecution is dishonest.

In In re Visciotti (1996), Justice Brown, dissenting, insisted that the death sentence of John Visciotti — convicted of murder, attempted murder and armed robbery — should be set aside because of the incompetence of the defense lawyer. And, in In re Brown (1998), she actually reversed a death sentence in the capital murder conviction of John George Brown because the prosecutor severely violated due process by failing to reveal evidence that could have been exculpatory.

Sen. Ted Kennedy of Massachusetts charged Justice Brown with "a deep-seated and disturbing hostility to civil rights, workers' rights, consumer protection and government action."

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But Kennedy didn't cite her votes in these California Supreme Court cases:

In People ex rel. Lungren v. Superior Court (1996), Justice Brown said that the California attorney general had the authority to sue faucet manufacturers who used lead in their faucets. And, in Hartwell Corp. v. Superior Court (2002), she agreed that water utilities could be sued for injuries resulting from harmful chemicals in the water consumed by residents of the state.

Excuse me, Sen. Kennedy, is Janice Rogers Brown totally hostile to government action and consumer protection? What about her record on civil liberties? Somehow Senate Judiciary Committee Democrats have failed to bring public attention to the fact that, in People v. McKay (2002), she was the only judge on the California Supreme Court to focus on the different standards in police searches when the driver stopped is black. Justice Brown, considering the expanding police search powers (which undermine the Fourth Amendment of the Bill of Rights), wrote:

"Of course, everyone who has not spent the last 20 years sealed in an ivory tower knows the problem is real. ... 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.'"

In that opinion, she told her colleagues on the court that, while racial profiling is "more subtle, more diffuse, and less visible" than racial segregation, "it is only a difference in 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."

I believe Sens. Schumer, Kennedy, Feinstein and Richard Durbin (Illinois) — another of Brown's harsh opponents — agree with her powerful statement on racial profiling. If the entire Senate knew of Justice Brown's other views that I just cited, then I think there is little doubt she would be confirmed in an up-or-down vote by the entire Senate, a legislative body presumably reflective of mainstream America.

Meanwhile, the Senate Judiciary Committee, by voice vote — though some members were on record as opposed — sent to the floor for a federal district judgeship, Dora Irizarry, sponsored by Schumer and New York Gov. George Pataki. A former New York City criminal court judge and former acting state Supreme Court justice, Irizarry was found unqualified by a majority of the American Bar Association screening committee.

Testifying about Irizarry's judicial temperament at her Senate Judiciary Committee hearing, Patricia Hynes, a member of the ABA committee, said Irizarry had a "serious control problem" in court, as shown by the "number of complaints about the nominee's temperament." And about those complaints, Hynes said, "I have never before experienced such widespread and consistent negative comments about a nominee's temperament."

But Dora Irizarry will get an up-or-down vote on the Senate floor. Odds are that Janice Brown will not.

Due process — fairness — is the hallmark of our criminal justice system, but not for Senate Judiciary Committee Democrats. Will Sen. Schumer explain his support for Irizarry?

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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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