A FoxNews Liberal Defends An Ideologically Driven Bush Judge

In recent years, Nat Hentoff, a former jazz critic who is still a strong voice for First Amendment and other civil liberties issues, has nonetheless become one of those "FoxNews Liberals" who finds it more exciting to find a single nugget of truth on the rightwing "side" and then assume that the much larger rock of truth on the liberal-left "side" is where the balance of fault or falsity resides.

His latest tirade concerns an obviously shallow NY Times unsigned editorial--unfortunately, such shallowness is not an uncommon trait of such unsigned editorials. Anyway, it seems the NY Times op-ed on April 28, 2005 (no longer available without paying money--arrgh!) castigated, among other Bush II judicial nominations, California Supreme Court Justice Janice Brown. Specifically, the Times said Justice Brown has been "a consistent enemy of minorities" in her judicial opinions or rulings.

Hentoff attempts to prove the Times wrong by citing three decisions in which Brown dissented from the majority opinions and one majority opinion where she was upholding the rights of the accused in criminal cases. Never mind that Hentoff confuses civil rights cases with civil liberties cases, where there is only a partial overlap (In at least one of the cases, the accused was a white guy; in another, it was unclear). What Hentoff misses is a larger point as to why Justice Janice Brown should not be given a lifetime federal judgeship: Justice Brown has a track record of being hyperbolic and crude in her legal reasoning, and has shown a penchant for politically-motiviated ideological attacks that are inconsistent with judicial sensibilities. And worse, she has in fact penned reactionary decisions in a variety of areas, including civil rights issues--nothwithstanding the few civil liberties cases Hentoff cites.

A review of the cases cited by Hentoff, and discussing some other decisions from Justice Brown, is therefore in order. Hentoff did not provide citations to the actual cases, so I have linked to them through the magic of Blogger (free registration is required at Findlaw.com, however): People v. McKay, 27 Cal. 4th 601 (2002); In Re Visciotti (1996) 14 Cal. 4th 325; In re Brown (1998) 17 Cal. 4th 873; and People v. Woods (1999) 21 Cal. 4th 668.

Reading these four cases in isolation, one might conclude that Justice Brown is a consistent and lone advocate of civil liberties. In Woods, however, she was not alone and again, as we'll see, she enaged in rhetoric that most people would consider extremist in the context of pure politics--let alone judicial opinions. In Woods, Justice Brown dissented, with two other justices, in a case involving a warrantless search of a woman's apartment. The woman, as part of a felony probation deal, had consented in advance to such searches. Yes, my civil liberties antennae were sympathetic to the woman and the use of the evidence found in the apartment against two other residents. However, Justice Brown wrote a separate dissent saying the majority opinion (the majority opinion upheld the search) had "set the history of personal liberties back more than 200 years." Really? Why hasn't anyone else noticed that California has become an unrestrained monarchy with no Bill of Rights? Even in this post-PATRIOT ACT age, we haven't quite turned the clock back that far.

Justice Brown penned a lonely, firery dissent in McKay, but as with her opinion in Woods, she did so with over-the-top political rhetoric and citations more akin to political journals than a court opinion. Here is Justice Brown at page 27 Cal. 4th at 639-640:

"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. (But see Atwater, supra, 532 U.S. at pp. 351, 353 & fn. 12 [appen.] [121 S.Ct. at pp. 1556, 1557].) A Gallup Poll released in December 1999 indicated more than half of the Americans polled believed police actively engage in racial profiling, and 81 percent of them said they disapprove of the practice. (U.S. Dept. of Justice, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned (Nov. 2000) p. 4 (DOJ).) 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. (See DOJ, supra, at p. 5; Brazil & Berry, Color of Driver Is Key to Stops in I-95 Videos, Orlando Sentinel Tribune (Aug. 23, 1992) p. A1; Harris, The Stories, the Statistics and the Law: Why "Driving While Black" Matters (1999) 84 Minn. L.Rev. 265, 279, 280-281, 295.)"

How Scalia-like that disdaining comment in italics. How Justice Kennedyesque--even worse than Kennedy or Breyer--in the reliance on admittedly "anecdotal evidence."

She went on to passionately denounce racial profiling, while admitting she hadn't bothered to find out whether the fellow arrested was black. I tried to find whether McKay was black or African-American by googling his name with those terms or phrases, but found nothing.

Now, let's go to the web site of one of the "bad" people in Hentoff's article: The People for the American Way. Here is their page of quotations from both Justice Brown's infamous speech at the Institute for Justice on August 12, 2000, her Federalist Society speech, and some of her other opinions. One of those decisions, San Remo Hotel LP v. City and County of San Francisco, 27 Cal. 4th 643, 704 (2002) contained this, again, over-the-top rhetoric that would have made Scalia blush:

"[P]rivate property, already an endangered species in California, is now entirely extinct in San Francisco…I would find the HCO [San Francisco Residential Hotel Unit Conversion and Demolition Ordinance] preempted by the Ellis Act and facially unconstitutional. …Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government. …The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion."

In San Remo Hotel, this tribune of the downtrodden, if she had her way (it was a 4-3 decision), would have overturned a local ordinance that required wealthy gentrifiers to help replace lost rental units when they convert their buildings to condos.

The term "kleptocracy" is also part of her tirade in her Institute for Justice speech alluded to above. Does anyone, even Nat Hentoff, think Justice Brown would temper her views if placed on the federal bench for a lifetime appointment?

Careful readers may wish to read Justice Brown's footnote 10 in her dissent in the San Remo Hotel decision. She writes that she is "puzzled" by the "majority's eagerness to discard cherished views of judicial restraint." Wait a minute. Is this the same justice who wrote in McKay that the problem with too many judicial decisions in the past two decades was that they were written by people in an ivory tower? Here is a later paragraph in her dissent in McKay where Justice Brown calls for overturning precedent in a most blatant way:

"...To dismiss people who have suffered real constitutional harms with remedies that are illusory or nonexistent allows courts to be complacent about bigotry while claiming compassion for its victims. Judges go along with questionable police conduct, proclaiming that their hands are tied. (U.S. v. Herring (D.Or. 1999) 35 F.Supp.2d 1253, 1258.) If our hands really are tied, it behooves us to gnaw through the ropes." (Emphasis added)

What I find most disturbing about Justice Brown is that the speeds she is most often set on are "abrasive" and "hyperbolic." Here is another decision, Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, where Justice Brown's majority opinion was so politically motivated in trashing affirmative action (what happened to that attack on the ivory tower judges who don't live in the real world where blacks face discrimination, Madame Justice?) that several of her brethren, including Justice Kennard (a woman justice) felt compelled to write at least partial concurring opinions. The conservative Chief Justice Ronald George had this to say of Justice Brown's rhetoric posing as jurisprudence in his concurring and dissenting opinion:

"I cannot join the majority opinion, however, because in my view the major portion of that opinion's discussion is not only unnecessary to the resolution of the issue before us, but is likely to be viewed as less than evenhanded...Viewing the majority opinion as a whole, I believe it falls short of this standard.

..

"In resolving the issue presented in the case now before us, there is no reason for this court to revisit and reassess past judicial decisions...that considered the general validity of utilizing race or gender-conscious measures as part of an affirmative action program, or to engage in an extended inquiry into whether such measures are or are not consistent with our nation's and our state's constitutional tradition. Our role, rather, is simply to interpret and apply the language of the new state constitutional provision so as to effectuate the intent of the voters who adopted the measure. In my view, the majority opinion departs from that role in a number of respects.

...

"Second, by using misleading and unflattering slogans to characterize past judicial decisions upholding race-conscious and gender-conscious affirmative action programs—describing such decisions as "replac[ing] individual right of equal opportunity with proportional group representation" (maj. opn., ante, at p. 555, italics added) and as endorsing a change "from protection of equal opportunity for all individuals to entitlement based on group representation" (ibid., italics added)—the majority opinion, in my view, will be widely and correctly viewed as presenting an unfair and inaccurate caricature of the objective or justification of the overwhelming majority of race or gender-conscious affirmative action programs. Nowhere does the majority opinion consider alternative rationales for affirmative action programs—grounds that cannot be as easily disparaged when not saddled by the catchphrases ("proportional group representation," "entitlements based on group representation") employed by the majority opinion."

If confirmed, Justice Brown would likely remain a lonely voice in a few civil liberty criminal cases (her record is not as good as Hentoff would have someone believe). However, she will fit right in with other federal judges in the restoration of a predominant judicial variant of Social Darwinism in terms of continuing to overturn economic-oriented national and state laws that had been enacted on behalf of working people and the poor.

Hentoff wrote in his article that he "would have great difficulty voting for Justice Brown because of her support of Supreme Court decisions upholding the economic-priority rights of employers and corporations." Just "great difficulty," Nat? What else do you need to know? Justice Brown should be rejected immediately and without futher delay.

As my only caveat, I should state that I would have likely agreed with Janice Brown on 2 or 3 of the 4 cases Hentoff cited. However, nobody can dispute that Janice Brown brings a new and distinct meaning to the phrase "judicial temper" in her judicial opinions. Worse, she has less of a judicial philosophy than a political philosophy in her decisions--something for which true conservatives ought to be very wary. The bottom line is that Janice Brown's nomination represents a near perfect case for filibustering at this moment in our nation's history. And if "our" side makes some of the same rhetorical leaps that Justice Brown does, then we should call it out--but let's not lose sight of the goal here: Defeating polarizing judges pushed by a lame-duck incumbent after a close presidential election.

(Note: This admittedly long post has been edited)