WASHINGTON—The Senate cleared the way Tuesday for the confirmation of controversial California Supreme Court Justice Janice Rogers Brown to a federal appeals court, ending a Democratic blockade that cast her as a symbol of opposition to laws safeguarding the rights of workers.
The Senate voted 65-32 to end debate on Brown, five more votes than the 60 needed to stop debate, and to vote on her nomination Wednesday. That vote is expected to be closer.
If confirmed, Brown would add a distinctive conservative voice to the District of Columbia Circuit Court of Appeals. It's considered one of the more powerful appellate tribunals because it hears most cases regarding federal government regulation. It's also considered a stepping stone to the Supreme Court.
Brown, the African-American daughter of Alabama sharecroppers, was a target of liberals who criticized her anti-affirmative action views and her vigorous defense of property rights over the power of government to regulate commerce. Republicans defended her as a sharp legal mind who, while conservative, was a mainstream jurist.
Because the D.C. circuit court hears virtually all cases involving decisions and rulemaking by federal agencies, critics focused on Brown's views on government's role in restricting private property rights.
Brown has advocated the "revival of Lochnerism lite," a reference to the 1905 Supreme Court case Lochner v. New York, which concluded that a New York law restricting bakers to 10-hour workdays was unconstitutional. Before the Supreme Court rejected the Lochner precedent in 1937, the case served as the legal basis for restricting states' power to impose laws setting labor standards, such as minimum wage and hour limits, and child-labor safeguards.
During her confirmation hearing before the Senate Judiciary Committee, Brown said she disagreed with the constitutional argument that the majority had used in reaching the Lochner decision.
But she contradicted that position in a speech in April 2000. Then Brown said that Justice Oliver Wendell Holmes' famous dissent in the Lochner case—which later became partly the basis for reversing much of Lochner—has "annoyed me" and that Holmes was "simply wrong."
Democratic critics said Brown will attempt to impose her ideology in her court opinions and become a conservative version of the kind of "activist judge" that conservatives usually deplore.
"She is basically opposed to the government being involved in anything," said Senate Democratic Leader Harry Reid of Nevada. "This is an issue dealing with good government. And if the Republicans really believe what they've said for years—that they don't want activist judges—I mean, they've got a doozy here."
Republicans stoutly defended Brown.
"Why is there such consternation about her becoming a D.C. appellate court judge?" asked Sen. Sam Brownback, R-Kan. "She is a lady nominated by President Bush (who) will strictly construe the Constitution, stay within the bounds of the document, not try to write new opinion on a new constitutional right. She is what lawyers would call a strict constructionist."
Brown's opposition to power in the hands of the state has sometimes put her on the side of civil libertarians. In 2002 she wrote the only dissent in a case involving a defendant charged with drug possession after he was caught riding his bicycle the wrong way on a one-way street. She argued that the majority's opinion upholding the arrest gave the state "virtually limitless power to search."
In speeches, she makes provocative points vigorously, often laced with pop culture references. She has quoted comedian Chris Rock's anti-tax rant, singer Paul Simon and the lyrics of 1960-70s rock band Procol Harum. In dissents and speeches, she can wield a scolding and biting pen.
"Alas, the decisions of such courts (of last resort), such as my own, seem ever more ad hoc and expedient, perilously adrift on the roiling seas of feckless photo-op compassion and political correctness," she said in August 2000.
In a private property case, she once lamented that "private property, already an endangered species in California, is now entirely extinct in San Francisco."
Sen. Jeff Sessions, R-Ala., described Brown's rhetoric as "colorful but legitimate." "Any person of good faith would see those comments as legitimate debate," he said.
Sessions accused Democrats of being more critical of Brown because she's black. "Some think that an African-American who challenges the agenda of the left takes greater heat," he said.
Brown is the second nominee to overcome Senate procedural obstacles under a bipartisan agreement cobbled late last month that assured floor votes on three of Bush's stalled nominees. The Senate confirmed the first, Priscilla Owen of Texas, to the 5th Circuit Court of Appeals two weeks ago. The Senate could vote as early as Wednesday to end debate on the third nominee, William Pryor of Alabama, for a seat on the 11th Circuit Court of Appeals.
JANICE ROGERS BROWN
Key biographical data about Janice Rogers Brown, whom the Senate is moving toward confirming as a judge on the powerful federal appeals court for the District of Columbia:
Born: May 11, 1949, in Laverne, Ala. Moved to California as a teenager.
Education: Bachelor's degree from California State University, Sacramento, 1974. Law degree from University of California, Los Angeles, 1977.
Personal: Married to Dewey Parker, a jazz musician. Two children. Lives in Sacramento.
Career: Deputy legislative counsel of California, 1977-1979.
Deputy attorney general of California, 1979-1987.
Deputy secretary, then general counsel, California Business Transportation and Housing Agency, 1987-1989.
Private practice, 1990-1991.
Legal affairs secretary for California Gov. Pete Wilson, January 1991-November 1994.
Justice, California Court of Appeals, November 1994—May 1996.
Justice, California Supreme Court, since May 1996.
Sources: California Court of Appeals, Answers.com, San Francisco Chronicle.
FOR MORE INFORMATION
White House Fact Sheet:
California Court of Appeals:
Alliance for Justice Judicial Selection Project:
(c) 2005, Knight Ridder/Tribune Information Services.
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