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Not all conservative judicial nominees are alike. Case in point: the nomination of California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit. Slated for a hearing before the Senate Judiciary Committee on Oct. 22, her nomination should evoke strong support from civil libertarians who have been critical of other nominees and policies of the Bush administration. Though liberal groups such as People for the American Way have attacked her opinions on issues such as racial preferences and property rights, Justice Brown is perhaps the most passionate and consistent advocate of civil liberties on the California Supreme Court. In particular, her opinions on free speech and the rights of the criminally accused mark her as a champion of civil liberties. Justice Brown’s qualifications are beyond dispute. The daughter of sharecroppers, she is a self-made woman whose legal career has spanned both public service and private practice. Her tenure on the nation’s most significant state supreme court has been marked by opinions that exhibit enormous depth and scholarship on a broad range of difficult and controversial issues. A careful examination of her judicial opinions will reveal that, more than perhaps any previous Bush administration nominee, Justice Brown transcends the ideological divide despite efforts to pigeonhole her. Conservative judicial nominees often hold very different views on the proper role of the judiciary and the scope of constitutional protections of individual rights. Robert Bork, for instance, occupies one extreme of the conservative legal spectrum that believes courts should rarely review executive or legislative decisions and should narrowly construe individual rights. GUARDING OUR RIGHTS Justice Brown, in contrast, takes a view more in keeping with The FederalistNo. 78: a judiciary that is properly deferential to the other branches of government, but that operates as the ultimate guardian of individual rights when government exceeds its constitutional boundaries. She has applied this principle to her interpretations of both the U.S. Constitution (which, along with the late U.S. Supreme Court Justice William Brennan, she views as setting a floor for the protection of individual liberties) and the California Constitution (which dwarfs the U.S. Constitution in size and scope). More to the point, Justice Brown views constitutional liberties as deserving judicial respect — including rights that some conservatives disfavor, such as freedom of speech, privacy, equal protection, and protections of the criminally accused. As her critics have pointed out, Justice Brown is no shrinking violet. She holds her views strongly and expresses them eloquently. That propensity should cheer civil libertarians, who rarely mince words when precious individual liberties are at stake. A classic example of her approach to civil liberties appears in Aguilar v. Avis Rent A Car System(1999). That case presented an issue that divides establishment civil rights activists from civil libertarians: whether it is permissible for the government to constrain racist behavior in the workplace that consists of pure speech. Though the California Supreme Court majority upheld an injunction against an employer for the racial epithets of one its employees, Brown dissented, establishing herself as a firm defender of freedom of speech. Describing the injunction as “an absolute prohibition” and “a prior restraint” of speech, Justice Brown declared, “[n]one of us can condone ethnic and racial discrimination in the workplace, but in this case the issue is speech, rather than discrimination.” In that context, “the state and federal constitutions prohibit courts from using their injunctive power as a surgical instrument to extricate disfavored ideas from the popular discourse, and this principle applies even here where the ideas in question were . . . offensive and abhorrent.” In Aguilar,Justice Brown successfully navigated the type of issue — like flag burnings or neo-Nazi marches — where civil libertarians must take a stand in favor of highly offensive speech. In language reminiscent of that used by the late U.S. Supreme Court Justice Thurgood Marshall in his landmark opinion in Stanley v. Georgia(1969), Brown declared, “One of the truths we hold to be self-evident is that a government that tells its citizens what they may say will soon be dictating what they may think.” Justice Brown joined the court’s majority in Keenan v. Superior Court(2002) to strike down as facially unconstitutional a “Son of Sam” law that appropriated from criminals all profits from expressive materials that included the story of the crime. In a concurring opinion, Brown noted that the law would apply even to political tracts such as Martin Luther King Jr.’s “Letter From a Birmingham Jail.” She suggested that a more narrowly drawn content-neutral statute would pass muster. Likewise, in Kasky v. Nike(2002), Justice Brown dissented from the majority’s decision exposing a company to false advertising claims for its response to political attacks against its labor practices. Noting the vital importance of both political and commercial speech and the often-blurry lines dividing them, she urged the court to adopt a single free-speech standard strongly protecting both. ON PRIVACY AND CRIME In the realm of privacy and the rights of criminal defendants, Justice Brown’s civil libertarian views are no less strongly held. People v. Woods(1999) involved a warrantless search of a residence shared by roommates, including one who was an ex-convict who had agreed to such searches as a condition of probation. The court upheld the search and seizure of drugs and firearms belonging to the probationer’s roommates. Justice Brown dissented. “In appending the Bill of Rights to the Constitution, the framers sought to protect individuals against government excess. High in that pantheon was the Fourth Amendment guarantee against unreasonable searches and seizures.” She added, “By their decision today, a majority of the court set the history of personal liberties back more than 200 years,” reviving the “general warrants” that provided “the very impetus of the Fourth Amendment.” Similarly, in People v. McKay(2002), the court upheld a warrantless search of a man arrested for riding a bicycle on the wrong side of the street. California law allows an arrest in such circumstances, and a search if the person fails to produce identification. “This is a case about pushing to the limits and beyond,” Justice Brown argued in dissent. “[I]f full custodial arrest is authorized for trivial offenses, the power to search should be constrained,” she reasoned. “If broad searches incident to arrest are permitted, the power to effect a full custodial arrest should be limited.” Expressing strong concerns about government abuse of law enforcement powers, Brown wrote she would “bet” that police would not have arrested someone for riding a bike on the wrong side of the street in a place like well-to-do Brentwood “unless he looked like he did not belong in the neighborhood.” Quoting from the U.S. Supreme Court, she added, “If we are committed to a rule of law that applies equally to ‘minorities as well as majorities, to the poor as well as the rich,’ we cannot countenance standards that permit and encourage discriminatory enforcement.” In People v. Camacho(2000), Justice Brown was part of the majority that suppressed a search and seizure based on police observation of a person packaging cocaine observed through a side window in an alley where the police had no right to be. And in People v. Frazer(1999), Brown dissented to the retroactive application of an expanded criminal statute of limitations, urging that under the state constitution’s due process clause such an action “contravenes the government’s obligation to act with fundamental fairness.” A JUSTICE APART FROM CONSERVATIVES Justice Brown also demonstrated her ability to stand apart from conservatives in Kasler v. Lockyer(2000), in which she concurred in the court’s decision upholding California’s statute restricting the use of assault weapons. Though recognizing that the issue of gun control is “troubling and intractable” and that the right to keep and bear arms is an important component of the right of self-defense, Brown found that the statute passed equal protection scrutiny. Thoughtful civil libertarians — such as Senate Judiciary Committee members Dianne Feinstein, Russ Feingold, Joseph Biden, Arlen Specter, and others — should not rely on characterizations of her work by others, but should read Justice Brown’s opinions themselves. They will discover a jurist who cares deeply about the sacred charge with which she is entrusted: upholding the rule of law and the precious individual liberties of all Americans. If members of the U.S. Senate wish to confirm judges with a deep commitment to civil liberties, they will do no better than Justice Janice Rogers Brown. Clint Bolick is vice president of the D.C.-based Institute for Justice, which has its Web site at www.ij.org.

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