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More about Janice Rogers Brown

Posted by Richard on May 11, 2005

Recently, I wrote in support of Janice Rogers Brown’s nomination to the D.C. Circuit Court. If you’d like to know more about this outstanding jurist, the Committee for Justice has a 22-page, thoroughly-footnoted report (PDF). It retells her compelling biography, sets forth her stirling record on civil and Constitutional rights, presents examples of the broad support she enjoys from across the political and ideological spectrum, and refutes case by case the efforts to distort and misrepresent her judicial record.

When she was originally nominated in 2003, fifteen distinguished California law professors wrote in support of her nomination (emphasis added):

We know Justice Brown to be a person of high intelligence, unquestioned integrity, and even-handedness. Since we are of differing political beliefs and perspectives, Democratic, Republican and Independent, we wish especially to emphasize what we believe is Justice Brown’s strongest credential for appointment to this important seat on the D.C. Circuit: her open-minded and thorough appraisal of legal argumentation – even when her personal views may conflict with those arguments.

All the judges on California’s Third District Court of Appeal (her former colleagues) and four of her colleagues on the California Supreme Court joined together in support:

Much has been written about Justice Brown’s humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be an extremely intelligent, keenly analytical, and very hard working. We know that she is a jurist who applies the law without favor, without bias, and with an even hand.

Their opinion is shared by George Washington University law professor Jonathan Turley, a leading liberal legal scholar, who had this to say about her in an April Fox News interview (emphasis added):

She’s a California judge who has, I think, drawn the ire of some groups because she believes very strongly in property rights. And she may have a slightly libertarian streak. But she’s not by any means this threat to the rule of law that people have made her out to be. I’m actually a little bit mystified as to why Brown has attracted so much criticism.  . . .  The decisions that she has written, most of her decisions are not controversial. She actually stands out on this list as one of two nominees that has actually thought very, very deeply about the philosophical basis of law. She incorporates it into her decisions.

Just this week, Nat Hentoff, perhaps the leading civil libertarian in the country, devoted his column to debunking the accusations made against her by People for the American Way, the New York Times, Sen. Ted Kennedy, and the NAACP, citing case after case, and concluding (emphasis added):

     If Justice Brown does indeed agree with that decision [Lochner], 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.

The left has tried to portray her as indifferent or hostile to minorities and civil rights issues, and Sen. Reid recently said that she "wants to take us back to the Civil War days," an outrageous and insensitive thing to say about the daughter of Alabama sharecroppers who attended segregated schools and was motivated to pursue the law by witnessing the civil rights struggle of the ’60s first-hand.

Let’s look at an actual case that sheds light on her beliefs regarding civil rights and liberties and that confirms Hentoff’s statement regarding her strong defense of the 4th Amendment.

In People v. McKay, the California Supreme Court (not exactly a reactionary body, usually) voted 7-1 to uphold McKay’s conviction for drug possession. Police stopped Mckay for riding his bicycle the wrong way (!) on a residential street. They asked him for his driver’s license (!), and when he said he didn’t have it, they arrested and searched him, finding drugs.

Janice Brown was the lone dissenting vote, and anyone with a serious interest in the 4th Amendment ought to read her dissent. It is absolutely chock full of thoughtful analysis, brilliant reasoning, and memorable language. You can access the whole thing at FindLaw (login required; use BugMeNot), but here are some samples (legal citations removed for readability; emphasis added):

In recent years, Fourth Amendment analysis has attained a kind of perverse, irrational fixity: probable cause equals reasonableness. Only by insisting probable cause and reasonableness are synonymous can courts avoid the socially costly consequences of the exclusionary rule. For this false peace, we pay too high a price. We are asked to surrender our right to be protected from unreasonable intrusions. Ironically, the severe sanction of the exclusionary rule has not discouraged unreasonable searches; it has, instead, shrunk the constitutional protection against them. … Probable cause and reasonable conduct are not the same thing. Requiring the police to behave reasonably–i.e., to assess their conduct in light of all the surrounding circumstances–is not asking too much. It is the same burden we impose on every adult. The Constitution demands no less of the government.  

She saw clearly one of the consequences of today’s broad interpretations of probable cause:

Every court that has approved sweeping search powers in conjunction with broad authority to arrest for minor offenses has acknowledged the potential for abuse. Of course, everyone who has not spent the last 20 years sealed in an ivory tower knows the problem is real. … Anecdotal evidence and empirical studies confirm that what most people suspect and what many people of color know from experience is a reality: there is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver.

In her conclusion, Brown explained that her background made her sensitive to the likelihood of discrimination in McKay’s treatment, and argued eloquently that McKay’s arrest must be racial profiling and that the evidence from the search should be suppressed (emphasis added)::

In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but 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 do not know Mr. McKay’s ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes – places where no resident would be arrested for riding the “wrong way” on a bicycle whether he had his driver’s license or not. Well … it would not get anyone arrested unless he looked like he did not belong in the neighborhood. That is the problem.  And it matters. "The rule of law implies justice and equality in its application." If we are committed to a rule of law that applies equally to minorities as well as majorities, to the poor as well as the rich, we cannot countenance standards that permit and encourage discriminatory enforcement.

It is certainly possible to argue that the rationale of Atwater can be extended to encompass what happened here. The question is why we should do so. It is clear the Legislature could not authorize the kind of standardless discretion the court confers in this case. Why should the court permit officers to do indirectly what the Constitution directly prohibits? How can such an action be deemed constitutionally reasonable? And if we insist it is, can we make any credible claim to a commitment to equal justice and equal treatment under law?

Does that sound like an anti-civil-rights reactionary?

Do something in support of Janice Rogers Brown today! Call, write (snail mail), email, sign petitions — all the links you need to get started are listed on the right at Confirm Them.

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