Good Judge

The case for Janice Brown


The nomination of Janice Brown to the U.S. Court of Appeals for the District of Columbia Circuit is the latest judicial appointment to touch off major opposition. Brown is strikingly libertarian in her writings and decisions, which is one reason she has outraged both liberals and conservatives during her distinguished career.

Brown currently serves as associate justice of the California Supreme Court, where she has distinguished herself as a passionate and consistent defender of individual rights. The D.C. Circuit is considered the second most important federal court, and is often a springboard to the Supreme Court. Indeed, three of the current nine Supreme Court justices were elevated from the D.C. Circuit.

That dynamic, combined with the fact that Justice Brown is an outspoken black female individualist, is why Brown's nomination has evoked frenzied opposition from liberal groups such as People for the American Way and the National Association for the Advancement for Colored People. They calculate that the best way to keep Brown off the Supreme Court is by keeping her off the D.C. Circuit.

The daughter of sharecroppers, Brown is a self-made success story. Following a distinguished career in both the private and public legal sectors, Brown was appointed to California Supreme Court by Gov. Pete Wilson. During her tenure, she has considered a number of tough issues, authoring majority and dissenting opinions distinguished by their eloquence, sharp wit, intellectual breadth, and fidelity to core Constitutional principles.

What is most remarkable about Brown's jurisprudence is that she sees all basic individual rights as equally fundamental. Unlike many liberals, she counts property rights and economic liberties as deserving of judicial protection. In Santa Monica Beach, Ltd. v. Superior Court (1999), for instance, she dissented from a decision upholding a rent control ordinance, declaring that "[a]rbitrary government actions which infringe property interests cannot be saved from constitutional infirmity by the beneficial purposes of the regulators."

In a dissent in San Remo Hotel v. City and County of San Francisco (2002), which upheld the city's sweeping property restrictions, Justice Brown expanded on that theme. "Theft is still theft even when the government approves of the thievery," she declared. "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."

Brown also consistently upholds such rights as freedom of speech, privacy, and the rights of criminal defendants—a position that bothers many conservatives. In People v. Woods (1999), Justice Brown objected to a police search of a home justified by the fact that a roommate was an ex-felon. "In appending the Bill of Rights to the Constitution, the framers sought to protect individuals against government excess," she wrote. "High in that pantheon was the Fourth Amendment guarantee against unreasonable searches and seizures."

Likewise, Justice Brown voted to strike down a warrantless search of a man arrested for riding a bicycle on the wrong side of the street. Describing the search as excessive, Brown noted that an arrest for such a silly infraction never would have taken place in an affluent neighborhood. "If we are committed to a rule of law that applies equally to 'minorities as well as majorities, to the poor as well as the rich,' we cannot countenance standards that permit and encourage discriminatory enforcement."

In other noteworthy rulings, Justice Brown:

• authored the majority opinion applying California's Proposition 209 to strike down race-based government contracting preferences;

• dissented from a ruling holding Nike liable for "consumer fraud" in an advertisement defending its labor practices;

• took the position that a company could not be punished for its employee's racial epithets because they were speech protected by the First Amendment;

• voted to strike down as overbroad under the First Amendment a "Son of Sam" law confiscating profits for any written works authored by a convicted felon relating to the crime.

Remarkable for the breadth of sources upon which she draws—ranging from Hayek, Ayn Rand, Cicero, Toqueville, and the Founding Fathers to Chris Rock, Paul Simon, and Buffalo Springfield—Justice Brown's speeches and opinions are spirited and provocative. They also provide fodder for opponents to distort her record. Fortunately, her consistent libertarianism gives her a chance with swing-vote senators who profess support for civil liberties, such as Dianne Feinstein (D-Calif.), Russ Feingold (D-Wis.), Joseph Biden (D-Del.), and Arlen Specter (R-Pa.).

Justice Brown is not a typical Republican judicial nominee. She understands the crucial role of courts in a constitutional republic: She is deferential to the elected branches when they act within their prescribed boundaries, but zealous in the defense of individual liberties against majoritarian tyranny.

Brown's nomination affords a rare chance for a lasting legacy of freedom. Indeed, her appointment to the U.S. Court of Appeals for the District of Columbia Circuit would vastly strengthen the institution of government most entrusted with the protection of individual liberty.