Janice Rogers Brown was born the daughter of sharecroppers in the segregated South. She has risen to the top of her profession, earning the respect of supporters and (most) opponents along the way. Yet her nomination remains bottled up in the Senate, as Democrats are afraid to allow a vote on a candidate supported by the majority of Senators.

What is it in her judicial philosophy that they fear? It would appear to be her staunch defense of freedom.

LetÂ’s examine some of her opinions. There is her dissent in San Remo Hotel vs. San Francisco (2002).

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."

Notice, she is defending the right of individuals to control the use of their property free of unreasonable government interference. That view is contained in the US Constitution itself, and is only controversial if one accepts the socialist premise that the government has the ultimate right to determine the best use of your property. Her view is the same as that espoused by Madison, Jefferson, and the rest of the founders.

Of course, perhaps they object to People vs. McKay (2002), in which Justice Brown noted that the right to be free from unreasonable search and seizure is meaningless if a police officer can use as a pretext trivial offenses that are based less on public safety than on the color of the arrested individualÂ’s skin.

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."

Or maybe it is her controlling opinion in Hi-Voltage Wireworks vs. San Jose (2000) that frightens her detractors, holding as it does that the underlying principle of civil-rights law is equality of opportunity for individuals, not equality of result for different groups.

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."

If one reads these opinions fairly, it is impossible to see anything other than a judge who is faithful to her duty to uphold the Constitution of the United States. And maybe that is what the Left-Wing Extremists who control the Democrat Party fear. These forces are aware that their extreme philosophy is rejected by the majority of Americans, and that the route to enshrining their ideology in American law is through the decree of judges who will place those principles beyond the reach of the American people and their elected representatives by declaring them to be part of an ever evolving, changing and unknowable (except to liberal judges) Constitution that bears little resemblance to the document displayed in the National Archives. That makes the filibuster of Justice BrownÂ’s nomination (and those of her fellow nominees) a supreme act of ideological arrogance that must be ended by the Senate majority at the earliest opportunity.

Posted by: Greg at 11:08 AM | Comments (1) | Add Comment
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