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By Harold Johnson, Timothy Sandefur
SOURCE: San Francisco Chronicle
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Judge doesn't deserve the Dixiecrat treatment
- Harold Johnson, Timothy Sandefur
Monday, May 2, 2005

Will Senate Democrats use the "Strom Thurmond option" against California Supreme Court Justice Janice Rogers Brown? Will they try to block her nomination to a federal appeals court with a filibuster -- the tactic made infamous by the late Sen. Thurmond of South Carolina and other segregationists when they battled civil-rights bills back in the 1950s and '60s?

If they do, they will give Republicans ammunition for the "nuclear" strategy of ending filibusters for all judicial nominees. The sight of self- described liberal senators insisting on a supermajority, instead of the traditional up-or-down vote, in order to deny a promotion to a brilliant black female judge, may not go well with the public. It could make the "nuclear option" appear not so radical after all.

To be sure, many of Brown's conservative supporters can be accused of playing the race card. They like to emphasize her background as the daughter of an Alabama sharecropper in the segregated South, someone who overcame poverty and bigotry to become a leader of her profession.

Both sides should focus more on Brown's actual record and ideas. They will discover a jurist of insight and integrity -- and learn valuable lessons about the judiciary's proper role in a government system dedicated to individual rights.

Conservatives believe a judge's task is to apply the law while resisting temptation to become a policy-maker. Brown's understanding is more expansive. Although she insists courts should not act like legislatures, she rejects any notion of the judge as a rubber stamp for whatever the majority does. She believes that courts should function, first and last, as defenders of freedom.

Consider her dissent in San Remo Hotel vs. San Francisco (2002), a case that upheld the extortionate fee that San Francisco charges owners of small residential hotels if they want to rent rooms to tourists instead of housing the homeless. Brown noted that these mostly mom-and-pop businesses are "a relatively powerless group" that have been arbitrarily singled out for social- welfare duty. The Fifth Amendment, she observed, prohibits government from forcing "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

She reminded her colleagues that "the free use of private property is just as important as ... speech, the press, or the free exercise of religion."

Brown's judicial philosophy represents what political scientists call the "Madisonian" view -- the idea, embraced by the "Father of the Constitution" (James Madison), that public officials must answer not just to the written law but also to principles of justice. Courts must ensure that the majority does not run roughshod over groups that are unpopular or lack political power. As Brown has put it, judges "must vigorously resist encroachments that heighten the potential for arbitrary government action."

Her libertarian impulse was displayed in her dissent in People vs. McKay (2002), concerning a bicyclist, riding against traffic, who was pulled over by police. When the cyclist failed to produce identification, he was arrested and searched. The court's decision upholding this action, Brown concluded, stretched Fourth Amendment protections to the breaking point. "If full custodial arrest is authorized for trivial offenses, the power to search should be constrained," she wrote.

She also saw a larger issue, involving race: "I do not know Mr. McKay's ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes -- places where no resident would be arrested for riding the 'wrong way' on a bicycle whether he had his driver's license or not. Well ... it would not get anyone arrested unless he looked like he did not belong in the neighborhood."

Brown's belief that no one should be treated less equally because of skin color is recorded most strongly in Hi-Voltage Wireworks vs. San Jose, a 2000 case that enforced Proposition 209, the measure banning race and sex favoritism by state and local government. She wrote the controlling opinion striking down a public-works program that gave preferential treatment based on race. She quoted the late Yale Law School Professor Alexander Bickel: "[D]iscrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society." Prop. 209, Brown wrote, embodies the civil-rights principle: "equal opportunity for all individuals," not "entitlement based on group representation."

Brown is committed to racial equality because she is committed to individual rights and protecting individuals -- of all colors -- from government abuse. Just as small hotel owners of San Francisco should be free from unjustified coercion, and no contractor should be denied business because of race, so the cyclist McKay should be free from arbitrary treatment by police.

A jurist with Brown's pedigree and principles should not be disrespected. U.S. Senate Democrats will be making a mistake if they give her a filibuster instead of fairness.

Harold Johnson and Timothy Sandefur are attorneys with Pacific Legal Foundation (www.pacificlegal.org), which represented the successful plaintiffs in Hi-Voltage Wireworks vs. San Jose.

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URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/05/02/EDGK3CHS6S1.DTL

2005 San Francisco Chronicle



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