Out of the Mainstream, Again
The New York Times | Editorial
Saturday 25 October 2003
Of the many unworthy judicial nominees President Bush has put forward, Janice Rogers Brown is among the very worst. As an archconservative justice on the California Supreme Court, she has declared war on the mainstream legal values that most Americans hold dear. And she has let ideology be her guide in deciding cases. At her confirmation hearing this week, Justice Brown only ratified her critics' worst fears. Both Republican and Democratic senators should oppose her confirmation.
Justice Brown, who has been nominated to the United States Court of Appeals for the District of Columbia Circuit, has made it clear in her public pronouncements how extreme her views are. She has attacked the New Deal, which gave us Social Security and other programs now central to American life, as "the triumph of our socialist revolution." And she has praised the infamous Lochner line of cases, in which the Supreme Court, from 1905 to 1937, struck down worker health and safety laws as infringing on the rights of business.
Justice Brown's record as a judge is also cause for alarm. She regularly stakes out extreme positions, often dissenting alone. In one case, her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets. Justice Brown dissented, arguing that doing so violated the company's free speech rights.
Last year, her court upheld a $10,000 award for emotional distress to a black woman who had been refused an apartment because of her race. Justice Brown, the sole dissenter, argued that the agency involved had no power to award the damages.
In an important civil rights case, the chief justice of her court criticized Justice Brown for "presenting an unfair and inaccurate caricature" of affirmative action. The American Bar Association, all but a rubber stamp for the administration's nominees, has given Justice Brown a mediocre rating of qualified/not qualified, which means a majority of the evaluation committee found her qualified, a minority found her not qualified, and no one found her well qualified.
The Bush administration has packaged Justice Brown, an African-American born in segregated Alabama, as an American success story. The 39-member Congressional Black Caucus, however, has come out against her confirmation.
President Bush, who promised as a candidate to be a "uniter, not a divider," has selected the most divisive judicial nominees in modern times. The Senate should help the president keep his campaign promise by insisting on a more unifying alternative than Justice Brown.
Jump to TO Features for Sunday 26 October 2003
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)