Appeals Court Nominee in for a Fight

By Maura Dolan

Oct. 18, 2003 12 AM PT

Times Staff Writer

Janice Rogers Brown, one of the most conservative members of the California Supreme Court, is expected to face a tough fight in the U.S. Senate over her nomination to a federal appeals court.

President Bush nominated Brown in July for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, a prestigious court that regularly decides challenges to administration policy and is considered a steppingstone to the U.S. Supreme Court.

“What makes Janice Brown a certain for a confirmation fight is in part ideology, and in part concerns about her judicial temperament,” said USC law professor Erwin Chemerinsky, who opposes the nomination.

Yet three other law professors who closely follow the California court -- a moderate Republican, a moderate Democrat and a liberal Democrat -- all believe Brown should be confirmed.

Former Gov. Pete Wilson appointed Brown to the state high court even though a State Bar committee found her unqualified, a rating the three analysts said was mistaken.

If she is confirmed, Arnold Schwarzenegger, after taking over the governor’s office, will fill the vacancy on the seven-member state Supreme Court. The U.S. Senate Judiciary Committee has scheduled a hearing on her nomination for Wednesday.

Civil rights groups already have combed Brown’s record and called for her rejection. Brown, who is African American, also is opposed by the state and national black lawyers’ associations and the Congressional Black Caucus.

The American Bar Assn. has rated her “qualified” for the federal post, rather than either the superior “well-qualified” endorsement or the thumbs-down, “unqualified” rating. Even the “qualified” rating was lukewarm: Fewer than 10 of the 14 members on the committee considered her fit for the appeals court.

Few dispute that Brown has a strong intellect, a talent for writing and a penchant for hard work. She laces her highly readable opinions with historical and literary references, and is one of the biggest producers of opinions on the state high court. What worries civil rights groups is her conservative political philosophy and her tendency, they believe, to ignore precedent if it does not conform to her personal views.

In contrast, Anthony T. Caso, senior vice president and general counsel of the Sacramento-based Pacific Legal Foundation, a conservative, nonprofit public interest law firm, praised Brown as a jurist who looks to the intent of the framers of the Constitution when she interprets it.

“In terms of her written opinions, I probably would put her pretty close to Justice Clarence Thomas” on the U.S. Supreme Court, Caso said.

In a speech three years ago, Brown described herself as a “true conservative.”

“Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.... The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible,” she said.

During her tenure on the California Supreme Court, Brown has voted in favor of a state law requiring minors to obtain parental consent for abortions, opposed affirmative action and appeared critical of government regulations that deprive private property owners of full use of their property without compensation.

In criminal cases, she has been less predictably conservative, ruling at times for defendants she believes have been improperly searched by police.

Beyond her legal views, Brown can be caustic and even personal in her dissents, taking on colleagues on the court in a way that court analysts have said belittles their intelligence. “She is not the appointment I would make, but I don’t think she should be resisted or opposed on the ground she is a right-wing ideologue,” said University of Santa Clara law professor Gerald Uelmen, a liberal. “The margin that separates her from the center on the court is relatively narrow.”

When a legal journal last year compared Brown with five conservative federal judges considered potential Bush nominees for the U.S. Supreme Court, Brown was the least consistently conservative of the group, Uelmen noted. “I don’t see her as rigid,” he said. “I think there is enough give there, especially in criminal cases.”

UC Berkeley emeritus law professor Stephen Barnett said Brown is conservative “but not monolithically so,” and is “increasingly controlling” a tendency to insert her political views into rulings.

“She will make waves on the D.C. circuit, but I think she is well above the line that might justify a filibuster,” said Barnett, a moderate Democrat.

Like Uelmen and Barnett, McGeorge School of Law professor Clark Kelso has at times criticized Brown’s dissents as too biting and personal. But he said that should not keep her off the D.C. circuit. Compared with the rulings of U.S. Supreme Court Justice Antonin Scalia, Brown’s dissents are mild, said Kelso, a Republican.

One of Brown’s most controversial opinions came three years ago in a case that upheld Proposition 209, the anti-affirmative action law. “With the approval of Proposition 209,” she wrote, “the electorate chose to reassert the principle of equality of individual opportunity as a constitutional imperative.”

All the justices agreed with the result, but Chief Justice Ronald M. George and Justice Kathryn Mickle Werdegar refused to sign Brown’s opinion. George, whose separate opinion was signed by Werdegar, complained that Brown had been “less than evenhanded” in disparaging all affirmative action programs.

Caso, of the Pacific Legal Foundation, noted that one of Brown’s rulings had come in a case about whether an environmental assessment had to be made before an animal could be taken off the state’s endangered species list. She ruled for the environmentalists. “I don’t see an anti-government bias in all her rulings,” he said.

On gun control, Brown wrote a decision upholding the state’s 1989 ban on assault weapons. “For good or ill,” she wrote, “the Legislature stood up and was counted on this issue, one of the most contentious in modern society.”

But Brown was the sole dissenter in two other gun rulings that permitted counties to ban guns or gun sales on fairgrounds and other public property.

In one of the cases, she noted that the ban conflicted with laws that permit some people to carry firearms without restriction. “The small and superficially benign acts of democratic government can erode personal freedom just as surely, and to the same end, as the large and malignant acts of a tyrant or dictator,” she wrote.

Brown dissented in a decision that upheld local laws requiring property owners to provide replacement housing or money when they convert residential hotels to tourist hotels. She described such laws as government “thievery.”

She was the only member of the state high court to vote against a ruling that restricted the use of stun belts, which discharge electrical shocks, on criminal defendants in the courtroom. And Brown wrote a majority opinion in a ruling that allowed cities to prohibit suspected gang members from engaging in legal activities, such as congregating on a street corner.

In another case, she was the only justice who opposed granting employees who are victims of age discrimination the same legal rights as victims of race and gender bias.

But Brown took a more liberal stand when she dissented in a ruling that allowed police to search cars if the driver failed to produce a license or registration, and opposed another decision that gave police the right to arrest and search bicyclists who ride on the wrong side of the street and don’t have identification. In the case of the bicyclist, she said, “No one would get arrested unless he looked like he did not belong in the neighborhood. That is the problem. And it matters.”

Among the groups opposing Brown are the Leadership Conference on Civil Rights, People for the American Way, the NAACP and the Alliance for Justice. Conservative groups are expected to endorse her. Nan Aron, president of the Alliance for Justice, an association of public interest and civil rights organizations, predicted a “firestorm of opposition” to Brown. “I do not think she will be confirmed,” Aron said flatly.

Among Brown’s supporters is Encino lawyer Ellis J. Horvitz, whose firm regularly appears before the state high court.

He urged the Judiciary Committee to confirm Brown in a letter that described her as “possessing great common sense and integrity.”