I read the entire speech from which the lefty blogs plucked that “inoculated the federal Constitution with a kind of underground collectivist mentality” quote. I’m not sure I can be objective – I think I might now have a little crush on her.
Oh, and for ghod’s sake don’t let Libertarian see that speech. He’ll build a shrine to her!
All of Justice Brown’s published writing indicates that she would have a coronary if this became a significant issue.
To be fair, nothing gets a Congresscritter in trouble as fast as one of his aides spouting off (just ask Mel Martinez). It strikes me a completely reasonable for a Senator to instruct his staff to mail out whatever canned letter he’s approved and to keep their yaps shut.
As the majority pointed out, the injunction was greatly limited and only applied after a finding by the jury that the “use of racial epithets was sufficiently severe or pervasive to constitute employment discrimination. The trial court further found that injunctive relief was necessary to prevent a continuation of the abusive work environment.” The injunction was a measure of relief granted AFTER a jury trial and a judicial finding.
All of which is, in this case, a side note to the issue of Brown’s dissent. The other dissenting judges also had problems with the issuance of the injunction, and, although I disagree with them, they did not go so far as Justice Brown did. Putting aside her overblown rhetoric and insulting tone (someone’s been taking lessons from Scalia), her opinion calls into question not just FEHA, but also rulings already made by the U.S. Supreme Court. As she says (cites removed):
So she seems to be saying that, although Meritor and Harris recognize that speech can indeed be the basis for an actionable suit under federal regulations, she refuses to accept that premise in the case before her. She goes on to denigrate those decisions and indicate that, contrary to their findings, she may very well find that Title VII could likewise be unconstitutional. Having a judge opine that she will not apply, and does not agree, with precedent is troubling to me.
After taking the time to digest the case, I would agree that the rhetoric of the left is indeed overblown regarding her opinion in this one case. While she shows an alarming lack of deference to Supreme Court decisions that disagree with her politics, it is not completely and utterly beyond the realm of possibility that she is not the anti-Christ. And were this the only decision where she had these problems, I wouldn’t be nearly so concerned. But it’s not.
One man’s “overbroad” is another man’s conservative idealism in print. The legal determination she made in Hi Voltage, that San Jose’s minority program violates the California Constitution, was agreed to by 6 other justices. But even some of them were concerned by Brown’s overblown rhetoric, insulting tone, and lack of deference to Supreme Court precedent. As Chief Justice George stated in his concurrence:
and
or Justice Kennard, who stated:
Justice Brown went far out of her way to make the decision in Hi-Voltage a partisan screed against affirmative action, as opposed to a tempered judicial decision. In addition, while doing so, she, once again, attack, and show a complete lack of deference to United States Supreme Court decisions (Bakke, Johnson, Price) that have upheld certain affirmative action programs. Her opinion, as written, would find every single affirmative action program unconstitutional, Supreme Court precedent be damned. She has her ideology set, will rule according to it, will do so in an unfair, insulting manner. She is not a judicial moderate, she is not an even-tempered justice, she has shown herself willing to overrule precedent if it fits her preconceived ideology. She is not someone who should be on the federal bench. While part of the reason is surely because of her politics (anti-affirmative action, anti-Title VII, her speechs that would put Dewey and Bricker to shame), there are also valid concerns about her ability to follow precedent.
Certainly for some, but that is not the sole reason, your continuous braying notwithstanding. There have been plenty of ideological conservatives that have had no problem getting onto the federal bench with the consent of the Senators. It’s the ones who kowtow to that ideology when they step on the bench that concerns me.
Gosh, you don’t think Bush took into account Brown’s race or gender into account do you? Nah, couldn’t be. As an aside, I read somewhere that the Black Congressional Caucus is against her appointment too.
I disagree with substantiallyall of your analysis, but since we agree that the criticism of Justice Brown based on that case is overblown I think we should move on, lest a 2-pager become a 12-pager.
That’s just not true! That’s what liberal groups are saying, but its just not true. Look. Justice Brown has been in the judging business for over 10 years now, all on the appellate level. And all those liberal activists can dig up are decisions where she didn’t ignore precedent but where they say there are indications that she might. Where’s the example where she actually did ignore a Supreme Court precedent? 10 years in the judge business and they can’t find one? What does that tell you? In testimony before Congress she acknowledged that she also recognized the “right to privacy” as established by SCOTUS and that it was precendent controlling on lower courts and that she’d hold to it. There were other examples.
You’ve got to stop listening to these people – they’re mad because Justice Brown (and every other judge in California) voted to uphold Prop. 209. Nothing will satisfy them short of payback by smearing her and terminating her career.
It can work both ways. Watch carefully:
Justice Janice Rogers Brown is too liberal for our courts!
Justice Brown, alone among her fellow judges, voted to release a dangerous drug offender because she said the arresting officer was engaged in “racial profiling.” We can’t have judges looking over the shoulder of our hard-working police officers in the war on drugs!
Justice Brown also voted to throw out a search even when the person living there consented!
Justice Brown voted to uphold California’s strict assault weapons ban! The NRA has run ads against her re-election.
Justice Brown voted to interpret pension laws expansively, costing taxpayers millions!
Justice Brown told Congress that she would obey the Roe v. Wade decision, clearing the way for the continued murder of millions of helpless babies!
Justice Brown voted to set aside two death penalities on “technicalities.” She is soft on crime.
Clearly, Justice Brown is a dangerous liberal, way outside the mainstream of America and too dangerous to serve on America’s most important appeals court!
This message is brought to you by the manny committee to twist the truth using only true facts. “I’m manny and I disavow everything in this message.”
Well if you’d bothered to read the next line or two you would have seen that I made exactly that point. W is pretty good at this politics stuff for a dummy; live with it.
As for the Black Congressional Caucus, I’d love to hear some of them debate Brown’s nomination.
You’re confusing me with that last bit, Manny. Are you trying to suggest that she is not as conservative as she’s made out to be? Like just to the left of Calvin Coolidge? But didn’t you suggest that such was precisely what you like about her?
Well, if she isn’t as conservative as she’s made out to be, then the Dems are opposed to her because she’s Lithuanian? I mean, after passing 95% of the Bushivik nominations, all of whom are equally conservative or more so than she, they decide to pick her to make a big stink about… for no particular reason?
So we can reasonably assume she is as conservative as is suggested.
You defend her by suggesting that she respects precedents. Well, she has to, doesn’t she? Dems de rules, otherwise she gets overturned, and they don’t like that. But how is she likely to behave if she has more power over how precedents get to be precedents? Best indications are that there is quite a bit of those precedents she would like to see reversed, as witness her attitude toward Social Security. An “activist”, you might say.
If, as all this suggests, she is more conservative that the 95% of nominees already passed, then we have very good reason to consider that she might be too conservative. (Assuming that you are willing to admit that such a thing exists…)
Now here’s where we get to civics and civility. If the party that represents roughly half the voters judges a candidate as too extreme, the party that represents the other half is bound by civility to respect that. Civility, mind you, not raw legality. Unless, of course, her legal mind is so luminary and her juris so unflinchingly prudent, that the Republic is in peril if she should fail…
Is this woman, or Ms Owen or Mr Pryor so desperately needed that it justifies chucking negotiation and compromise out the window? Do you really believe that 52% of the country has a clear privilege to run roughshod over the other 48%? They won the big game, so they get to pee on our tires?
Think you’ll still feel that way when the shoes on the other foot?
I know it’s tough for you to get past the belief that someone who is against the nomination of Justice Brown is anything but a brainless sycophant to the left wing misinformation campaign, but try, just for a second, to get beyond that. It isn’t just “liberal groups” its also the Supreme Court justices who sit on the bench with her. I provided you with 3 quotes from two supreme court justice who indicate she goes too far in High Voltage. I’ll add another:
That’s not some liberal blog, that’s the Chief Justice of the California Supreme Court. As you pointed out, read the opinion yourself. Pay attention to the parts where she is highly critical of Weber and Johnson. She states: “As with decisions of the United States Supreme Court, we thus find a fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, of remedial race and sex-conscious governmental decisionmaking.” Not only has she demonstrated an obvious distaste for those decisions, she went out of her way to put it into an opinion that did not need it.
She is not stupid enough to completely ignore precedent or overrule a case that she can’t. What she has done is show absolutely no deference to those decisions that don’t fit her ideology. Do you honestly think that if she were appointed to the Supreme Court she wouldn’t attempt to overrule the precedent on affirmative action? Even after reading her screed, her papers, and her speeches?
Sigh I know this board has more than it’s fair share of unthinking liberals who spout off without a concern for the rightness of their position. Please stop lumping me in with them. It’s demeaning. Contrary to your assertion, this isn’t a vendetta against Brown for her decision in Hi Voltage. ALL 7 JUDGES AGREED IN THAT CASE. Yet I haven’t seen the animosity directed at her co-justices. The Democratic Senators didn’t single her out of all the other conservatives that Bush put out because they just don’t like her. There’s a reason she’s one of only a few that they are challenging.
I apologize for any offense. I’d hate to think I’m adding to the hostility in this place, and I’m sorry if I went to far in making a point.
So, can we drop the phony outrage at blocking nominees now, and get back to admitting that both parties oppose judges whose philosophies they don’t like, and have fought to keep the opposing side off the bench via all manner of means?
It seems like this outrage is waved around for the rubes, and then smirkingly dropped when directly confronted in smaller confines like these boards.
The only distinction I can see here is that when Republicans were in the minority, Democrats at least didn’t scorched-earth dismantle every avenue of minority influence. They bitched and moaned, but they generally tolerated the rules and traditions. Republicans, however, have been dismantling all those avenues of influence they once held dear to. Which I suppose isn’t really objectionable other than their phony sanctinmony while doing so.
"Judge, Court of Appeals for the Fifth Circuit
Priscilla Owen, Enron’s political action committee gave Owen $8,600 for her successful Supreme Court bid in 1994. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron’s school taxes by $15 million. Since 1993, Enron contributed $134,058 — more than any other corporation — to Owen and other members of the Texas Supreme Court. A study by Texans for Public Justice found that the court ruled in Enron’s favor in five out of six cases involving the company since 1993.
Court of Appeals, 11th Circuit
William H. Pryor, Jr. (recess appointment). Under Pryor’s leadership, Alabama was the only state to challenge the constitutionality of a provision of the Violence Against Women Act (United States v. Morrison). Pryor also argued that the Supreme Court should cut back on the protections of the Age Discrimination in Employment Act, the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Clean Water Act. Defended the actions of the prison officials who chained prisoners to hitching posts and denied access to water and the bathroom.
U.S. Court of Appeals, 6th Circuit
Richard Allen Griffin (failed nominee), requested Congressional invalidation of a unanimous Supreme Court decision holding that the ADA applies to state prisoners and prisons.
U.S. Court of Appeals, 6th Circuit
David W. McKeague (failed nominee), Denied DOJ access to a state prison after receiving numerous reports of abuse of women prisoners by guards, including systemic rape. Ruled against a parent whose 10 year old child was placed in foster care sharing a bedroom with a sixteen-year old with a history of sexually deviant behavior and assaults, who repeatedly sexually assaulted him. Claimed the state was not liable for failing to properly provide the child with the protective services to which he was entitled under state law."
It seems there is more that is objectionable here than merely that they may be anti-abortion. Or that all that can be laid at their door is that some Democrats just don’t like them.
