Justice Janice Rogers Brown: She's Worth Going Nuclear Over

Will Senate Republicans go “nuclear” for California Supreme Court Justice Janice Rogers Brown? Columnist Robert Novak reported recently that in March, the GOP will use Brown’s now- stalled nomination to the federal bench as a test run for the “nuclear option” – a strategy to foil Democratic filibusters and confirm judges with a simple majority vote, through parliamentary hardball.

If GOP leaders really do go to the wall for Brown – and succeed – a bright future awaits her on the U.S. Court of Appeals for the D.C. Circuit (a post that could position her for an eventual Supreme Court nomination). But her departure will be a loss for the law in California.

This daughter of an Alabama sharecropper – this African-American woman who attended segregated schools in her native state, and put herself through college and law school in California – offers testimony to the rewards that can come from character and can-do commitment.

But Brown’s star power derives from more than her impressive personal story. She is an intellectual leader of California’s high court and its most articulate voice for limited government and individual freedom.

A judge’s first and last duty, in her view, is to protect citizens from bureaucratic bullying. As she puts it, “Courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action.”

This pro-freedom bent was on display in her now-famous dissent in San Remo Hotel vs. San Francisco, a 2002 case in which a majority of her colleagues upheld an extortionate fee that San Francisco slaps on owners of small residential hotels if they want to switch to tourist use. Most of these business- people are running mom-and-pop operations, “a relatively powerless group,” Justice Brown observed. Regulators exploit the power disparity by ordering these hotels to serve the area’s armies of homeless or pay City Hall a massive tribute – in the hundreds of thousands of dollars – for the “privilege” of being allowed to cater to tourists instead.

Brown argued that singling out small hotels for social-welfare duty amounts to seizing private property for public use. The Fifth Amendment, she reminded her colleagues, forbids 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 continued: “Private property, already an endangered species in California, is now entirely extinct in San Francisco.” The city has become a “neo-feudal regime.” Brown reprimanded jurists who ritually give green lights to confiscatory land-use restrictions: “Once again a majority of this court has proved that ‘if enough people get together and act in concert, they can take something and not pay for it.’ But theft is theft. Theft is theft even when the government approves of the thievery.”

She finished by branding San Francisco a “kleptocracy” and condemning its blindness to the fact that “the free use of private property is just as important as … speech, the press or the free exercise of religion.”

Brown’s hostility to official abuses extends to policies of racial favoritism. In the 2000 case of Hi Voltage Wire Works vs. San Jose, Brown’s majority opinion gave a broad and forceful interpretation to Proposition 209, California’s constitutional amendment banning race and sex preferences and discrimination by government. She read the measure to outlaw not just explicit quotas, but also quotas camouflaged as something else – such as racial “outreach” or racial “goals” – because “a participation goal differs from a quota or a set-aside only in degree.”

She quoted 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, she wrote, asserts the vital principle, “equal opportunity for all individuals” instead of “entitlement based on group representation.”

If Justice Brown leaves for D.C., Gov. Schwarzenegger will face a challenge: To find a replacement with as strong and eloquent an allegiance to constitutional government and the judiciary’s role as guardian of our rights.

[This piece first appeared in the Orange County Register]