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Justice Brown is Worth Fighting For By: Marni Soupcoff
TAEmag.com | Tuesday, October 21, 2003


When I was a law student in California, a mentor who would later become my boss asked me what I knew about a fairly new California Supreme Court Justice named Janice Brown.

“Nothing,” I had to admit sheepishly. I’d never heard of her. But I knew that if such a question was coming from this mentor—a person whose ideological compass points unfailingly in the direction of individual rights—Brown had to be worth checking out.

 

Several years later, Justice Janice Brown has indeed proven herself worth checking out and, what is more, deserving of a ringing endorsement. Since Governor Pete Wilson appointed her to California’s highest court in 1996, Brown has been a consistent defender of Californians’ property rights, economic liberty, and freedom of speech.

 

Brown wrote a searing dissent in Aguilar v. Avis Rent-A-Car System, a case in which the California Court instituted an unprecedented prior restraint on speech (essentially, singling out certain words and banning their use in the workplace under any circumstances). In a “friend of the court” brief, the supposed guardians of freedom of expression at the ACLU gleefully championed the speech ban, arguing that the right to “equal treatment at work” permits “some limits on the unrestrained speech of bigots in the work place.” Brown, however, proved the true protector of liberty, warning that the decision “would create the exception that swallowed the First Amendment.”

 

In her dissenting opinion in Gallant v. City of Clovis, Brown eloquently chastised her fellow members of the court for giving property rights the cold shoulder. She aptly pointed out, “The Constitution bespeaks no hierarchy of rights, no preferences with respect to its restraints on government action, no partiality among its protections of liberty.”  All the more reason to cry foul, then, when the majority of the court “consigns economic rights to a secondary status that can only reflect opposition to the balance the framers carefully struck between public and private power.”

 

Janice Brown is perhaps best known, however, for her principled insistence on the government’s equal treatment of its citizens, regardless of race. In her majority opinion in Hi-Voltage Wireworks v. City of San Jose, Brown upheld California’s notorious Proposition 209—a ballot initiative that banned government racial preferences—and struck down a San Jose ordinance requiring government contractors to seek bids from companies owned by women and minorities. Brown concluded that “equality of individual opportunity”—not affirmative action—is what the Constitution requires.

 

And one has to conclude that Brown, a black sharecropper’s daughter who worked her way up from a childhood in the segregated south to a position on the highest court of the country’s largest state, knows whereof she speaks.  

 

Now, President Bush has nominated Brown to a seat on the District of Columbia Court of Appeals, and her confirmation hearing is rapidly approaching. But liberal activists are trying vehemently to block her nomination, no doubt well aware that if Brown is elevated to a federal appeals court, she has an excellent chance at eventually landing a spot on the United States Supreme Court. This would be a serious blow to liberal special-interest groups—such as People for the American Way, one of Brown’s most vocal detractors. A Brown seat on the Supreme Court would mean one more vote for a jurisprudence of true equal rights, rather than one of forced racial and sex preferences. What poetic justice this vote for freedom would be, coming as it would from an articulate black female jurist.

 

It’s almost too much for the racial preferences crowd to bear, which explains their ongoing efforts to keep Brown off the DC Court of Appeals and the momentous fight they are waging to scuttle her nomination. But if any judicial nominee is worth fighting for, it is Janice Rogers Brown.

 

So, let us all now call on the Bush White House to undertake the most vigorous battle possible to ensure that this extraordinary nominee is confirmed and that our fundamental rights, as envisaged by the framers, are preserved.

 

It is an effort that both Justice Brown and the American people deserve.

 

If you would like to help support Justice Brown’s nomination, make your views known to your senators (http://www.senate.gov/general/contact_information/senators_cfm.cfm). Let’s not let this one get away!

 

Marni Soupcoff’s column appears on Mondays at TAEmag.com.


Marni Soupcoff is an attorney and Toronto-based writer. She is a frequent contributor to http://www.iconoclast.ca.


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