Judge Janice Rogers Brown may be Confirmed This Week

Judge Janice Rogers Brown may be Confirmed This Week
by Roderick C. Willis
Afro Newspapers
Originally posted 6/6/2005

WASHINGTON, D.C. (NNPA) – A recent accord between U.S. Senate Republicans and Democrats will likely assure Justice Janice Rogers Brown will be confirmed this week for the District of Columbia Court of Appeals.

The California Supreme Court judge was among a number of extremely conservative justices nominated by President Bush to federal courts, who were subjects of current rumblings and a recently broken impasse between Democratic and Republican senators.

But Brown's likely appointment and the agreement that clears the path for her has left a bad taste in the mouths of some legislators, who see the deal as a loss for civil rights.

''The Congressional Black Caucus strongly opposes the deal that trades judges who oppose our civil rights for a temporary filibuster ceasefire,'' said U.S. Rep. Mel Watts, D-N.C., chairman of the Congressional Black Caucus. ''This is more of a capitulation than a compromise. Two of the three judges in the agreed-to deal, Janice Rogers Brown and William Pryor, have documented histories of opposing the rights of African Americans, and of hostility to the broad mainstream of law and rights enacted by the Congress over the past 75 years.''

With these nominations likely secured, the legal landscape is almost sure to change. Brown alone, at 56, could make legal decisions that would have impact well into the 21st century.

''According to several analyses by legal organizations,'' said U.S. Rep. Elijah Cummings (D-Md.), ''many of these judges have made decisions based upon their own version of our legal principles. Two particular judicial nominees to the federal appellate courts, Justice Priscilla Owen of Texas and Justice Janice Rogers Brown of California, have ruled against the interest of workers, people with disabilities, medical patients, consumers, people of color and those who have been injured.''

Among her previous decisions, Brown authored an opinion that effectively ended affirmative action in California. In {Hi-Voltage Wire Works Inc. v. City of San Jose}, she suggested race-consciousness in affirmative action was similar to segregationist practices. Even Brown's Republican colleagues on the California Supreme Court called her analysis of precedent in this area ''a serious distortion of history.''

* Discrimination in jury selection: Brown overturned a California ruling that said prosecutors violated the Constitution by striking African-American women from juries on the basis of race ({People v. Robert Young}).

* Employment discrimination: Brown tried to overturn a ruling made by another Bush nominee that prohibited an employer from using racial epithets against a Latino employee, citing the First Amendment ({Aguilar v. Avis Rent a Car}).

* Age discrimination: Brown ruled that this form of discrimination as not harmful. ''Discrimination based on age ... does not mark its victim with a stigma of inferiority and second-class citizenship: it is the unavoidable consequence of that universal leveler, time,'' said Brown in {Stevenson v. Superior}.

* Housing discrimination: Brown was the only member of the California Supreme Court to rule that a female African-American police officer could not recover damages for housing discrimination. In that case, a White property owner accused the police officer of trying to break in when she was, in fact, merely inquiring about an apartment vacancy ({Kronig v. Fiar}).

A study by People for the American Way, which is allied with the NAACP and a number of civil rights and labor organizations in opposing Brown, indicated that ''Justice Janice Rogers Brown's record shows her to be to the right of U.S. Supreme Court Justices Antonio Scalia and Clarence Thomas,'' the most conservative justices on the court.

African-Americans have historically used the judicial arm of government to intervene when society was slow to protect its civil rights. Brown has shown distain for government intervention, even when one group has succeeded in oppressing another, her critics say.

Brown is a member of the Federalist Society, a group of conservative law students, attorneys and judges intent on shifting the courts to the right.

In an April 20, 2000, speech made before the Federalist Society at the University of Chicago Law School called ''The Whiter Shade of Pale: Sense and Nonsense - The Pursuit of Perfection in Law and Politics'' Brown said:

''Big government is not just the opiate of the masses, it is THE opiate. The drug of choice for multinational corporations and single moms, for the regulated industries and rugged Midwestern farmer and militant senior citizens.''

Brown went on to state: ''Government is the only enterprise in the world which expands in size when its failure increased. Government now pays citizens to organize, lawyers to sue and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating [apparently spontaneously] the forces to which it responds''

Hilary Shelton, head of the NAACP Washington bureau, said of Brown: ''She is one of the most extreme nominees to be appointed.''

Washington, D.C., Delegate Eleanor Holmes Norton said, ''She [is] cut out of the same cloth as Clarence Thomas.''

Rep. Diane Watson (D-Calif.), went even further, declaring that Brown ''has such an atrocious civil rights record, she makes Clarence Thomas look like Thurgood Marshall.''

Judges' trials fading
Calif. Supreme Court: Janice Rogers Brown, William Pryor on way to being confirmed
THE ASSOCIATED PRESS

WASHINGTON — The sound bites and e-mails about their fitness to be federal appeals court judges — along with the demonization and canonization of their character — are almost over for Janice Rogers Brown and William Pryor.

Senators warred almost three years over the nominations of the California Supreme Court justice and Alabama's former attorney general. This week lawmakers will honor a truce on judges and on Democrats' use of filibusters to block nominees, and put Brown and Pryor on a path to confirmation.

The battle over Brown, Pryor and Texas Supreme Court Justice Priscilla Owen included accusations of sexism, racism, elitism and religious bias. While that fight is ending, it offered a preview of what President Bush's first Supreme Court nominee may face.

Chief Justice William Rehnquist, 80, is battling cancer. Many court watchers expect a Supreme Court vacancy soon, possibly with the end of the court's current term.

Candidates' battles

Brown has been held up as an example of the kind of judge Bush would like on the nation's highest court. But the battle over getting Brown and Pryor on the appeals courts probably disqualifies either for an immediate shot at the Supreme Court.

Brown was compared negatively in a cartoon to Justice Clarence Thomas. Pryor's opponents said he was the "most anti-gay federal judicial nominee in memory."

The television commercials in which they were labeled "extreme" and "dangerous" will fade into memory.

So, too, will the praise from their supporters: Brown's rise as a sharecropper's daughter from segregated Alabama; Pryor's enforcement, as Alabama's attorney general, of a court order to remove a monument of the Ten Commandments from a state building.

Brown was nominated for the U.S. Court of Appeals for the District of Columbia Circuit.

As a result of a temporary recess appointment by Bush to get around a Democratic filibuster, Pryor already has joined the 11th Circuit Court of Appeals.

The Atlanta-based court had to help decide the fate of Terri Schiavo, the comatose woman whose parent and husband fought all the way to the Supreme Court over whether to keep her alive.

The federal courts refused to stop the removal of her feeding tube. Pryor has never made public which way he voted in those decisions. One of the court's orders did say Pryor did not vote because he is recovering from surgery.

Waiting to be confirmed

Pryor opposes abortion rights and has criticized the Supreme Court's Roe v. Wade decision. But he promised he would follow the current law if confirmed for the regional court, one step below the Supreme Court. For his lifetime appointment to take effect, he needs confirmation from the Senate before the end of the year.

The chairman of the Senate Judiciary Committee circulated some of Pryor's writings on that court this year, hoping it would sway some Democratic votes his way.

"It shows a pattern by Judge Pryor of concern to protect the rights of those often overlooked in the legal system," Sen. Arlen Specter, R-Pa., said last month. "No one has refuted that analysis."

Pryor's opponents are not convinced.

"Pryor has compared our love to bestiality, incest and pedophilia," said Kevin Cathcart, executive director of the gay-rights group Lambda Legal.

"He says prohibiting anti-gay discrimination is giving us 'special privileges.' And he thinks one of our recent Supreme Court victories against anti-gay bigotry amounts to 'new rules of political correctness,'" Cathcart said.

Despite the strong feelings on both sides, Democrats who had blocked Brown and Pryor will allow their confirmation now that moderate Republicans pledged to oppose efforts by GOP leaders to prohibit judicial filibusters.

A filibuster is a parliamentary tactic that requires 60 votes rather than a simple majority to overcome.

Owen, who also was part of the confirmation deal, was confirmed last month for the 5th U.S. Circuit Court of Appeals.

Mum's the word

Pryor and Brown said little publicly about their nominations since their confirmation hearings in 2003 before the Senate Judiciary Committee.

At that time, Brown refused to apologize for any of her speeches. In one, she described President Franklin Roosevelt's New Deal as "the triumph of our socialist revolution."

"The speech speaks for itself," she told Democrats. They were critical of her record as a jurist who supported limits on abortion rights and corporate liability and opposed affirmative action.

Liberals have portrayed her as a conservative judicial activist who ignores the law in favor of her own political views. To these critics, she replied, "I have only one agenda when I approach a case, and that is to try to get it right."

If confirmed, Brown would become the only second black woman on the D.C. court, which decides important government cases involving separation of powers and the authority of federal agencies.

6/6/05

"Some incorrigibly naive conservatives say Democrats won't be able to get away with blocking "conservative" judges in the future, having agreed not to block Brown, Pryor and Owen, who everyone agrees are originalists and "conservatives." But Democrats can simply say that by agreeing not to block a vote on these three, they weren't conceding the nominees weren't "extraordinary," but that they were an acceptable, short-term compromise in exchange for the right to block similarly conservative nominees in the future... Republicans have also bestowed upon Democrats a public relations victory by implying that it was the Republicans, not Democrats, who were breaking with historical precedent and violating the spirit of the Constitution. In short, Republicans had the moral and historical high ground and voluntarily surrendered it to a militant Democrat minority by tacitly agreeing to a false version of the facts and history."
- David Limbaugh

"With Frists’ speech, we now know the real culprit was the Senate as a whole. It basically appointed a committee of 14. While the rest of the Senators entertained and kept their bases preoccupied on CSPAN, the committee was at work finding a negotiated settlement. Have you heard ONE GOP senator, call for retribution against the Rino’s? Have you heard GWB scream out in righteous indignation? No, and we never will."

- freeper sirthomasthemore

"You can always ease tensions and avoid confrontations by surrendering. You can always postpone a showdown, even when that simply lets the problem fester and grow worse.

Some Republicans may take comfort from the fact that they still have the option of changing the Senate rules in the future if the Democrats violate the spirit of their deal. But, once you have had the votes to win and wimped out instead, there is little reason to think that the weak sisters and opportunists on your side will be with you the next time high noon rolls around.

While members of both parties are trying to put a good face on this political deal and the media have gushed about this "bipartisan" agreement, Republican Senator Charles Grassley was one of the few who called a spade a spade, when he characterized what happened as "unilateral disarmament" by the Republicans.

If it was just the Republican Party that lost in this confrontation, that would be a minor partisan matter. What is of major importance is that the American people lost a golden opportunity that may not come again in this generation."

- Thomas Sowell

"Never has a majority party proved to be so spineless. Republicans, lest we forget, constitute 55 out of 100 senators and have the power to do what they please. Instead, they capitulated. It is now crystal clear that unless Republicans own almost 60 seats, rules will not be changed; unless Republicans own almost 70, cloture will never be invoked on a major issue. If that doesn't discourage the Republican base, nothing will."

- Ben Shapiro

"One may argue that a compromise is durable to the extent its signers make genuine sacrifices. In this compromise, conservatives and moderates have sacrificed resorting to the constitutional option that would confirm judicial nominees by a simple majority. The left has sacrificed three nominees it would have lost anyway, while thwarting two and retaining the right to apply a Senate rule of a required supermajority (60 percent to break a filibuster) not only to all other district and appellate nominees, but to nominees to the big enchilada - the Supreme Court."

- Ross Mackenzie

"It is not a great deal for two nominees who have been accorded a nice wake having been thrown overboard at sea. (And) everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court."

- George Allen

"Bill Frist, who should have got over queasiness at the sight of blood a long time ago, showed up the next day still as white as John Brown's ghost and tried to spin defeat as victory. He was joined in his pitiful enterprise by the White House, putting out a brave message that nobody believes, winning hoots and hollers from everybody. The sly, smug smile on Nancy Pelosi's face in the photograph on Page One said it all: The pussycat who swallowed the canary, feet, beak, squeak, feathers, fuss and all. Outnumbered and all but unarmed, the Democrats continue to work their intimidating mastery over Republicans mired, probably permanently, in the minority-party mind-set.

The seven senators who went over the hill at the sound of the guns woke up at dawn the next morning, impatient as 6-year-olds on Christmas morning, expecting to see their profiles on the Style section front of The Washington Post: John McCain, firing up "the Doubletalk Express," his presidential campaign bus; John Warner, charming little old ladies who imagine him to be the courtly, harmless old Virginia ham of Victorian caricature, and young Master Lindsey Graham, eager to tutor George W. Bush on Social Security reform and dreaming of beating out Chuck Hagel as John McCain Lite.

- Wesley Pruden

"If the "maverick" Republicans had a slogan, it would be: "Always surrender from a position of strength...Chuck Schumer could be the last Democrat in the Senate and the new rule would be: Unanimous votes required for all Senate business. But at least we could count on Sens. Lindsey Graham, Mike DeWine, John McCain, John Warner, Olympia Snowe, Susan Collins and Lincoln Chafee to strike a deal forcing Schumer to agree not to block the 99 other senators except in "extraordinary circumstances."

- Ann Coulter

Maybe the best rejoinder to anyone who thinks these Senators were in it for anything but themselves.

"In any compromise between Good and Evil, it is only Evil that can profit."
- Ayn Rand

Priscilla Owen, one of those at center of nomination fight, takes oath for federal bench
By KELLEY SHANNON
Associated Press Writer
June 06. 2005 5:53PM

Texas judge Priscilla Owen, the subject of a long and heated confirmation battle in the U.S. Senate, took the oath of office Monday for her new seat on the 5th U.S. Circuit Court of Appeals.

Owen, a justice on the Texas Supreme Court for more than a decade, won Senate confirmation to the federal post last month after a four-year fight over President Bush's push to place conservatives on the nation's highest courts. She became the first of Bush's long-blocked nominees to win approval under an agreement reached by centrists in the Senate.

"This has been a long road," Owen, 50, said after her swearing-in ceremony at the Texas Supreme Court chamber. She used one of Sam Houston's Bibles to take the oath of office.

"This is bittersweet for me because I'm saying goodbye to some of the finest people I've ever had the pleasure of working with," she said.

Owen was first nominated by Bush to the federal appeals court in May 2001. She continued to serve on Texas' highest civil court while awaiting confirmation.

Democrats argued that Owen allowed her political beliefs to color her rulings. They were particularly critical of her decisions in abortion cases involving teenagers.

But Republicans said those criticisms were politically motivated. They noted that she easily won election to the Texas Supreme Court in 1994 and re-election in 2000.

"The president stood firm against those who would distort her record," said Texas Supreme Court Chief Justice Wallace Jefferson. He said it was hard to imagine the strength Owen mustered to withstand four years of criticism.

Sen. Kay Bailey Hutchison and Gov. Rick Perry also praised the way Owen conducted herself.

Hutchison, who worked to get the judge a confirmation vote in the Senate, said Owen displayed "judicial temperament" while never complaining about her treatment in the Senate.

"Priscilla Owen stood, and she stood with integrity," Hutchison said. "She took it like a champion and deserves to be sitting on the federal bench today."

Owen is filling a post vacated in 1997, when a judge took on senior status, which is a more limited role with the court.

"We have been waiting eight years for you," Chief Judge Carolyn King of the 5th U.S. Circuit Court of Appeals said. "But you, Priscilla Owen, have been worth the wait."

The 5th U.S. Circuit Court of Appeals is based in New Orleans. It hears appeals from federal districts courts in Louisiana, Texas and Mississippi.

I'll do what I can until then...or until someone else decides they want to take over. [Hinting]

Meanwhile, here's a closer look at the crap spewed above about JRB:

"Among her previous decisions, Brown authored an opinion that effectively ended affirmative action in California. In {Hi-Voltage Wire Works Inc. v. City of San Jose}, she suggested race-consciousness in affirmative action was similar to segregationist practices. Even Brown's Republican colleagues on the California Supreme Court called her analysis of precedent in this area 'a serious distortion of history.'"

---Bushwa. Justice Werdegar said, more precisely:

"Finally, in my view, the general theme that runs throughout the majority opinion's historical discussion-that there is no meaningful distinction between discriminatory racial policies that were imposed for the clear purpose of establishing and preserving racial segregation, on the one hand, and race-conscious affirmative action programs whose aim is to break down or eliminate the continuing effects of such segregation and discrimination, on the other-represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace. As is demonstrated by the numerous and lengthy past judicial decisions that have considered raceand gender-conscious affirmative action programs, the legal questions posed by such programs have been widely understood as difficult and close, but the majority opinion's presentation does not do justice to the legal and historical arguments that have been articulated on both sides of the issue. In this respect, as well, I believe the majority opinion's approach cannot help but detract from the persuasiveness and credibility of its ultimate ruling."

Werdeger was critiquing Brown STYLE, not the substance--Werdeger AGREED with Brown's ruling! And WTF does Werdegar know about style, anyway? She's ruled that you don't have a 1st Amendment right to refuse to rent an apartment to an unmarried couple because of your religious beliefs, and that a city could extort thousands of dollars from a property owner to pay for “loss of benefits to community” when the property owner applied for a zone change to convert a failed private tennis court to residential housing. Werdeger's style is country-club Boalt-Hall RINO!

No, Hi-Voltage is masterful in that it clearly suggests that the U.S. Supreme Court took a wrong turn when it began approving preferential policies. Brown believes that race/gender-blindness requires each applicant be judged on his or her merits, regardless of race or sex composition in the individual's city or the workforce. Proposition 209, according to Brown, means a compelling state interest and narrow tailoring are STILL insufficient to justify preferential programs--she construes the Weber line as creating exceptions to the federal government's general mandate of equal protection--(and here comes the masterful part) then uses the Weber line an example of how the federal government has LOWERED the constitutional rights of its citizens to equal protection.

JRB: "The fact that as currently interpreted Title VII and title VI allow outreach of the type the City requires misses the mark for the same reason. Rather than incorporate the judicial gloss of Weber and its progeny, the voters intended to remove it. "Let's ... return[] to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against-or for-any individual." (Ballot Pamp., supra, argument in favor of Prop. 209, p. 32.) As originally implemented, "Title VII tolerate[d] no racial discrimination, subtle or otherwise." (McDonnell Douglas, supra, 411 U.S. at p. 801 [93 S.Ct. at p. 1824].) It was applied to "remove barriers that have operated ... to favor an identifiable group ... over other employees." (Griggs, supra, 401 U.S. at pp. 429-430 [91 S.Ct. at p. 853].) With the approval of Proposition 209, the electorate chose to reassert the principle of equality of individual opportunity as a constitutional imperative."

I'm gonna crib some from Steve Wu at SCOTUSBlog (and I'll note it when I do), who wrote about some of this stuff, and better than I could:

Discrimination in jury selection: Brown overturned a California ruling that said prosecutors violated the Constitution by striking African-American women from juries on the basis of race ({People v. Robert Young}).

Bushwa. In that case, the MURDERER appealing his sentence in this case was trying to get off claiming three black women were dismissed from the jury because of racism or some class they were part of--though black men WERE on the jury--and JRB wrote:

"The problem of an endless proliferation of cognizable groups is exacerbated by the possibility of cross-categories--that is, the subgroups that are constructed from the intersection of two or more cognizable groups. If we recognize cross-categories as distinct cognizable groups, then the number of cognizable groups expands geometrically: two cognizable groups give rise to four possible subgroups, three cognizable groups give rise to eight possible subgroups, four groups give rise to 16, etc. Logic, as well as the unusual prophylactic remedy that Wheeler and Batson created, dictates that, for a cross-category to constitute a separate cognizable group, there must be some indication that the two categories operate in conjunction, generating a distinct synergy of prejudice or group bias.
     With that point in mind, the issue in Motton and in this case becomes clear. Before we can find that Black women are a cognizable group, we have to find that, in a sufficient number of cases to justify a Batson /Wheeler remedy, gender is not the basis of group discrimination, nor is ethnicity that basis, but rather "ethno-gender"--the conjunction of a person's gender and ethnicity--is the basis of group discrimination. In other words, we have to find that, from the perspective of jury selection, being a Black woman is significantly different from being Black and being a woman. Moreover, we have to make that finding in an evidentiary vacuum; declaring it to be so without the benefit of hearings, formal studies, expert testimony, or even anecdotal evidence...
     ...I would not reject, as a matter of law, the possibility that Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group, but I see no evidentiary basis in Motton for us to have made a judicial finding to that effect, binding in all jury selection proceedings, and I see no such evidentiary basis in this case either.
     The invidious effect of our holding in Motton is that the law now memorializes a pernicious stereotype it is trying to combat, and it does so without anyone even establishing, as a factual matter, that the stereotype preexisted our holding. In this way, we created the stereotype, pretending to destroy it. Here, of course, we can avoid the issue by finding no purposeful discrimination, but the wisdom and continuing validity of our holding in Motton remain unresolved."

Bushwa. More from JRB that explains this is NOT about her 'ruling age discrimination is not as harmful,' but about her ruling that administrative settlements are not supposed to be made in the courts but in administrative forums:

"To deny plaintiff a FEHA-based Tameny claim is not to condone or countenance discrimination in employment because of age or on any other invidious basis. On the contrary, it recognizes that the Legislature has vigorously defended the public policy underlying FEHA and provided comprehensive remedies to redress and rectify violations. The only question before us is whether any other considerations justify the court in displacing these legislative efforts."

Oh, and by the way, she was voting to UPHOLD the evidently 'age-ist' California Court of Appeal ruling below.

Bushwa. JRB: "...the majority and the Commission rely substantially, if not exclusively, on CFTC, supra, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675, in which the United States Supreme Court upheld the authority of the Commodity Futures Trading Commission to adjudicate a state law counterclaim in a reparation proceeding based on the parties' consent to the agency's assumption of jurisdiction. (See maj. opn., ante, 123 Cal.Rptr.2d at pp. 7-9, 50 P.3d at pp. 723-725.) Because the FEHA did not previously contain a bilateral opt-out provision and the question of consent and its impact on the judicial powers analysis was not at issue in Walnut Creek Manor, the court is supposedly at liberty to reconsider its prior conclusions.
As the Court of Appeal below correctly understood, however, the CFTC rationale does not--and cannot--obtain when the judicial powers concern is one of substance rather than procedure. The Supreme Court expressly recognized this distinction: "Article III, § 1, safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts 'to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating' constitutional courts, [citation], and thereby preventing 'the encroachment or aggrandizement of one branch at the expense of the other.' [Citations.] To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III, § 2. [Citation.] When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect." (CFTC, supra, 478 U.S. at pp. 850-851, 106 S.Ct. 3245.)
What the high court characterized as a "structural" limitation in CFTC, this court identified as a "substantive" one in Walnut Creek Manor. (See Walnut Creek Manor, supra, 54 Cal.3d at pp. 256, 265-266, 284 Cal.Rptr. 718, 814 P.2d 704; McHugh, supra, 49 Cal.3d at p. 372, 261 Cal.Rptr. 318, 777 P.2d 91.) Whatever the label, the principle remains the same: the parties cannot confer upon an administrative agency authority that contravenes constitutional constraints. (Cf. Walnut Creek Manor, at pp. 257, 265, 284 Cal.Rptr. 718, 814 P.2d 704; McHugh, at p. 364, 261 Cal.Rptr. 318, 777 P.2d 91.) Regardless of consent, the award of compensatory damages remains a " 'judicial function' " (Walnut Creek Manor, at p. 262, 284 Cal.Rptr. 718, 814 P.2d 704) that " 'has traditionally been left to the trier of fact.' " (Id. at p. 263, 284 Cal.Rptr. 718, 814 P.2d 704.) Nor can consent shift the remedial focus of the administrative hearing back to "affirmative actions designed to redress the particular instance of unlawful housing discrimination and prevent its recurrence." (Id. at p. 264, 284 Cal.Rptr. 718, 814 P.2d 704.) For the majority to hold otherwise misperceives not only the content of the judicial powers clause but, more importantly, its constitutional significance to the very structure of our governmental system."

Bushwa. SCOTUSBlog: "Brown also strongly supported free speech in a dissent to Aguilar v. Avis Rent A Car System Inc., 21 Cal.4th 121 (1999). The case concerned an injunction by a trial court prohibiting an employee of Avis from using racial epithets against the plaintiffs. The employee challenged the injunction as a prior restraint on his free speech. The majority found that a remedial injunction to prevent further racial epithets does not violate the right to free speech if the epithets have contributed or will contribute to a hostile work environment that constitutes employment discrimination. Brown begins her dissent with a robust view of free speech as requiring the protection of all viewpoints, even viewpoints that are deeply offensive to others. "[T]hough the expression of such sentiments may cause much misery and mischief, hateful thoughts cannot be quelled at too great a cost to freedom." In this case, Brown finds little support for the suppression of free speech. (Justice Clarence Thomas later dissented from the U.S. Supreme Court’s failure to review the decision.)"

And by the way--I'm trying to cut back on my cursing, so FYI, I've begun substituting the word "Bushwa" for "Bullshit."

Important note to those of you who like the idea of 2nd Amendment Incorporation to the states:

SCOTUSBlog: "It is hard to elucidate Brown's views on gun ownership. In Great Western Shows, Inc. v. County of Los Angeles, 27 Cal.4th 853 (2002), the majority held, first, that state law does not compel counties to allow their property to be used for gun shows; and second, that a county may regulate the sale of firearms on its property. Brown dissented from the holding, but on the narrow ground that, under state law, a county cannot "enact police power regulations governing the use of its property by independent parties to whom it has leased the property."

In another gun case, Kasler v. Lockyer, 23 Cal.4th 472 (2000), Brown, writing for the majority, upheld California's Assault Weapons Ban, but only over equal protection, separation of powers, and due process objections, not against a Second Amendment challenge. However, she does emphasize that the California constitution contains no fundamental right to bear arms; indeed, she points out that the regulation of firearms has always been a proper police function of California. Evident in Kasler, as in American Academy of Pediatrics, is Brown's strong principle of judicial deference to legislative findings."

This probably means she will be a Scalia if she gets on the SupCt, unwilling to overturn precedent until she's in the majority, but willing to laugh at liberal 'legal' rulings and hold to them in the meantime, especially when they try to avoid the consequences of their own precedent.

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