Ignoring a nationwide working families’ campaign to defeat the nomination of Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, the U.S. Senate confirmed Brown June 8.
The Senate voted 56–43 along party lines for Brown—the most extreme of President George W. Bush’s federal court nominees—who now takes a position on the second most powerful court in the United States. The District of Columbia Circuit hears challenges to workplace safety rules and oversees more labor law cases than any other federal circuit court.
Brown’s impact on that court could be devastating for working families. Her record—including the nine years she served as an associate justice on the California Supreme Court—shows Brown’s case decisions are based in part on personal and political ideology.
Brown’s speeches and opinions show that she takes an extremely narrow view of the role of government in improving people’s lives and an extremely protective view of private property rights. In one speech, Brown described the Supreme Court’s decisions upholding New Deal legislation such as minimum wage laws as “the triumph of our own socialist revolution.” She compares “big government” to “slavery” and an “opiate.” She goes so far as to say that “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.”
In another speech, she states her view of government as follows:
Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit.
The American Bar Association has given Justice Brown its lowest possible passing grade—a “qualified/not qualified” rating. When Brown was nominated to the California Supreme Court, three-fourths of the California State Bar’s Commission on Judicial Nominees rated her “unqualified” for the position because of her lack of experience and her tendency to inject her own personal views into her judicial opinions. In her seven years on the California Supreme Court, Brown has demonstrated that her critics were right.
Examples of how Janice Rogers Brown’s troubling and extreme views have made their way into her decisions on the California Supreme Court include:
Banning Affirmative Action. Brown authored an opinion that effectively ended meaningful affirmative action in California. Hi-Voltage Wire Works, Inc. v. City of Jan Jose, 12 P.3d 1068 (2000). Brown’s opinion was severely criticized, both on and off the court, for its harsh rhetoric and its suggestion that affirmative action resembled racist and segregationist laws that predated landmark civil rights laws.
Denying Effective Remedies to Victims of Unlawful Discrimination. Brown would have barred administrative agencies from awarding compensatory damages for emotional distress in race discrimination cases. Konig v. Fair Employment and Housing Comm’n, 50 P.3d 718 (2002). While couching her decision in separations of powers language, Brown disparaged administrative agencies and implicitly questioned their ability to fairly assess damages, saying that “administrative agencies [are] not immune to political influences, [and] they are subject to capture by a specialized constituency.” 50 P.3d at 732. Brown was the only justice to take this position. And in Aguilar v. Avis Rent-a-Car, 980 P.2d 846 (1999), Brown authored a dissenting opinion that would have struck down, on First Amendment grounds, an injunction that instructed a supervisor not to use racial epithets against Latino employees. The injunction was issued by a trial court judge after the employer was found liable by a jury for maintaining a discriminatory hostile work environment for Latino employees.
Barring Civil Rights Claims. Brown dissented in a civil rights case and said the plaintiff’s race and age bias claims should have been thrown out as preempted by federal banking law. Peatros v. Bank of America, 990 P.2d 539 (2000).
Allowing Mandatory Arbitration Agreements Even If Employees Must Pay for the Cost of Arbitration. Brown authored an opinion saying that she would allow employers to require employees to agree to compulsory arbitration of employment claims (such as discrimination claims or unpaid overtime claims) even if those agreements allowed arbitrators to impose some or all of the cost of the arbitration on the employee. Armendariz v. Foundation Health Psychcare Servs., 6 P.3d 669 (2000). The majority of the court ruled that a mandatory arbitration agreement containing such a provision would be invalid, because it would discourage employees from exercising their right to bring claims against their employers.
Protecting Private Property Rights at the Expense of Affordable Housing Measures. Brown dissented from a decision that upheld the City of San Francisco’s determination that the owner of a residence hotel needed to retain affordable housing or contribute to an affordable housing fund as a condition of converting its property to a tourist hotel. Brown wrote a sarcastic and blistering dissent, calling the city’s decision “theft,” “extortion” and an unconstitutional “taking” of the hotel owner’s private property. San Remo Hotel v. City and County of San Francisco, 41 P.3d 87 (2002). Brown’s opinion shows that she is skeptical of government action when it impacts private property rights—a view which, if adopted, would put at risk many consumer, environmental and worker protection measures.
Protecting Private Property Owners from Expressive Activity on their Property. Brown authored an opinion that took a narrow view of the California Constitution’s free speech protections, imposing a “state action” requirement as a condition of those protections, even though such a requirement does not appear in the language of the California Constitution. As a result, tenants in a huge residential apartment complex were barred from distributing a tenant newsletter to their neighbors. Golden Gateway Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797 (2001). Employers are now using the decision to try to keep union organizers away from their workplaces.
Chilling E-mail Communication with Employees. Brown dissented from a ruling that a company could not sue an ex-employee under the tort of trespass after the ex-employee sent e-mails critical of the company to his former co-workers. The court majority said the company could not sue because there had been no actual damage or disruption to the company’s e-mail system. Brown would have allowed the lawsuit even in the absence of such damage. Intel Corp. v. Hamidi, 71 P.3d 296 (2003). Had Brown’s view been adopted, companies throughout California could have used trespass laws to shut down group e-mail contact from outside individuals or organizations.
Denying Schoolteachers Timely Information About Their Employment Status. In Kavanaugh v. West Sonoma County Union High School, 62 P.3d 54 (2003), Brown authored a dissent that would have allowed school districts to notify teachers of their status well after they began work, meaning that new hires could be subjected to “bait-and-switch” tactics by school employers. The court majority ruled that applicable statutes require school districts to notify teachers of their status (e.g., temporary, probationary, etc.) on their first day of work. Knowledge of this status is important because different categories of teachers have different levels of job security.
Undermining Health and Safety Protections. Prior to joining the California Supreme Court, Brown served on the California Court of Appeal. There, she authored an opinion that would have invalidated a state law that required paint companies to help pay for screening and treatment of children exposed to lead paint. Brown’s opinion was later overturned by the California Supreme Court. Sinclair Paint Co. v. Board of Equalization, 49 Cal. App. 4th 127 (1996), rev’d, 937 P.2d 1350 (1997).
The D.C. Circuit Needs Balance, Not Extremist Judges Like Janice Rogers Brown
The U.S. Court of Appeals for the District of Columbia Circuit is widely regarded as the second most important court in America, second only to the U.S. Supreme Court. The court is a stepping-stone to the U.S. Supreme Court—the D.C. Circuit has produced more justices to the U.S. Supreme Court than any other circuit court.
The D.C. Circuit is the administrative law court. It is the court that most closely oversees the actions of federal agencies that are responsible for worker protections, environmental protections, consumer safeguards, civil rights protections and much more. And because the Supreme Court grants review of so few lower court decisions, the D.C. Circuit is often the final word on the legality of federal agency actions.
In 1999, Senate Republicans prevented Democratic appointees from gaining a majority on the D.C. Circuit when they blocked two highly-qualified nominees, including a nominee who is now the Dean of Harvard Law School, on grounds that the D.C. Circuit’s workload did not justify any additional judges. Since that time, the D.C. Circuit’s caseload has dropped by 28 percent.
When the Bush administration took office, there were four Republican appointees, four Democratic appointees and four vacancies on the D.C. Circuit. Rather than reaching out to senators from both parties to find mainstream nominees who would win easy approval, the White House has chosen extreme conservatives for these seats.
The White House is engaged in court-packing. The Bush administration wants to put an ultra-conservative imprint on the D.C. Circuit. If they succeed, the effects on civil rights, workers’ rights, women’s rights, consumer rights and the environment will be felt for decades to come.
Snubbing Local Talent to Nominate an Ideologue
The District of Columbia is home to an incredible wealth of legal talent. Rather than choosing from these ranks to fill a seat on the D.C. Circuit, President Bush chose a nominee from 3,000 miles away with no connection to the District of Columbia. Never before has a judge for the D.C. Circuit been imported from such a distance.
Nor does Janice Rogers Brown have any particular experience with the federal administrative law that makes up the bulk of the D.C. Circuit’s caseload. Her experience is exclusively in California agencies and California courts.
Brown’s lack of relevant connections or experience make clear that President Bush nominated Janice Rogers Brown not because she holds any unique qualifications for this seat, but because she is an extreme conservative who will tip the balance of the D.C. Circuit further to the right.
