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
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.
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
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.