Appeals Court Nominee Janice Rogers Brown Merits the Filibuster

May 4, 2005
By Gene C. Gerard

In 2003, President Bush nominated California Supreme Court Justice Janice Rogers Brown to the U.S. Courts of Appeals. However, due to her ultra-conservative judicial views, the Democrats in the Senate prevented her nomination from going forward by use of the filibuster. Mr. Bush re-nominated her again in February.

Last week, the Senate Judiciary Committee, in a party-line vote, approved of her nomination, with all 10 Republicans affirming her, and all eight Democrats opposing her. Unless Republicans elect to carry out the so-called "nuclear option" of abolishing the filibuster, Democrats will almost certainly block her nomination again. And for good reasons.

Justice Brown has taken positions contrary to the nation's commitment to civil rights. In the 1999 case Aguilar vs. Avis Rent A Car Systems, Inc., a lower court ruled that the employer had violated a California employment act by permitting a hostile work environment. The employer permitted the use of racial slurs directed against Hispanic employees.

Upon appeal to the state's Supreme Court, the majority agreed with the lower ruling. However, Justice Brown dissented, and argued that the right to free speech protected the use of racial slurs in the workplace, even when it violated federal laws against racial discrimination. Her dissent essentially ignored many previous rulings by the U.S. Supreme Court.

In the case of People vs. Robert Young, Justice Brown authored a position no other California Justice took. The case centered on a prosecuting attorney who was accused of violating California and federal law by excluding black women from a jury, solely on the basis of their race. Justice Brown argued that it was permissible for prosecutors to do so, because she saw "no ... basis [that] black women might be the victims of a unique type of group discrimination ..."

She is strongly opposed to affirmative action. She referred to previous federal and state court decisions supporting affirmative action to have been "wrongly decided." In the case of Hi-Voltage Wire Works vs. City of San Jose, she ruled that cities may not require contractors to attempt to hire competent subcontractors owned by minorities or women. This decision was contrary to many U.S. Supreme Court rulings that under appropriate circumstances, affirmative action is lawful under the Civil Rights Act of 1964.

Justice Brown attempted to strike down Constitutional rights that all Americans enjoy. In the case of People vs. Ray, her opinion would have allowed the police to search an individual's house without obtaining a search warrant. However, the U.S. Supreme Court has maintained that the Fourth Amendment protects against such intrusion.

But the greatest threat posed by Justice Brown is in regard to the rights of workers. She consistently rules against workers and in favor of employers. In the case of Loder vs. City of Glendale, she ruled that employers had the right to conduct drug and alcohol tests on all employees. This was contrary to rulings by the U.S. Supreme Court, which had mandated weighing the interests of the city government against the rights of its employees, in deciding if the testing is legally permissible.

In the case of Peatros vs. Bank of America, Justice Brown ruled that a nineteenth-century law actually permits banks to discriminate against employees on the basis of race and age. This decision was contrary to numerous federal rulings that the Civil Rights Act of 1964 and the Age Discrimination in Employment Act make such discrimination illegal.

In the case of Stevenson vs. Superior Court, she issued the lone ruling that a plaintiff could not sue an employer for age discrimination. Justice Brown wrote, "Discrimination based on age is not ... like race or sex discrimination. It does not mark its victim with a 'stigma of inferiority and second class citizenship;' it is the unavoidable consequence of that universal leveler: time."

Justice Brown has also attempted to limit legal recourse for a disabled worker whose employer would not reasonably accommodate her disability over a five-year time span. In the case of Richards vs. CH2M Hill, Inc., she was the only justice on the California Supreme Court to reject the "continuing violation doctrine," which held that there may be legal liability for acts occurring outside statute of limitations if they are significantly related to illegal acts occurring within the legal time limit.

Justice Brown was also the sole dissenter in the case of Metropolitan Water District of Southern California vs. Superior Court of Los Angeles County. In the case, the courts adhered to a California law permitting full-time, long-term workers provided to a municipal employer by an employment agency to be eligible to participate in the state's retirement system.

Although President Bush has said he is against judges who attempt to legislate from the bench, his support for Justice Brown indicates that he is not troubled when conservative judges attempt to do so. Because in this case, she attempted to do just that. Although California law considers these workers to be eligible for retirement benefits, Justice Brown ruled that the legal definition of an employee is "obsolete," and that a "leased worker is not ... [an] employee" eligible for benefits.

In the case of Catholic Charities of Sacramento vs. Superior Court of Sacramento County, she again attempted to legislate from the bench. Justice Brown ruled against a state anti-discrimination law that requires employer sponsored health insurance covering prescription drugs to also cover prescription contraception, except for religious employers, since this might conflict with their beliefs.

The law was passed by the state legislature after a study determined that women spend up to 68 percent more than men in out-of-pocket health care costs, due largely to the cost of prescription contraceptives and the costs of unplanned pregnancies, including health risks, the premature births of babies, and the concomitant neonatal care.

The law permits a religious employer, defined as primarily hiring people of its faith, not to cover prescription contraception. However, Catholic Charities of Sacramento admitted that the majority of its employees were not Catholic, so they did not meet the legal definition of a religious employer. Despite this, Justice Brown ruled that female workers of the Charities should be denied their legal protection, because contraception conflicted with the Charities' beliefs.

When Mr. Bush re-nominated Janice Brown, along with 11 other candidates, to the federal courts in February, he stated, "they represent mainstream values." But a cursory review of her judicial history shows that it doesn't take a liberal Democrat to see that she is anything but mainstream. And as a result, she certainly deserves to be filibustered.