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Contributors
Harold Johnson- Columnist
Harold
Johnson is an attorney with Pacific
Legal Foundation. A Sacramento-based public-interest
law firm, PLF has a long history of litigating for tax restraint,
including in support of Proposition 13 following its enactment
in 1978.
Harold
Johnson represents one of the Sea Scouts challenging Berkeley's
anti-Scout policy
before the California Supreme Court. Mark S. Pulliam, a Pacific
Legal Foundation trustee, is an attorney in San Diego with sons
in the Boy Scouts.
 A
Reason To Go Nuclear
Judge
Doesn’t Deserve the Dixiecrat Treatment...
[Harold
Johnson and Timothy
Sandefur] 5/5/05
Will Senate Democrats use the “Strom Thurmond option” against
California Supreme Court Justice Janice Rogers Brown? Will they
try to block
her nomination to a federal appeals court with a filibuster --
the tactic made infamous by the late Sen. Thurmond of South Carolina
and other segregationists when they battled civil-rights bills
back in the 1950s and ‘60s?
If they do,
they will give Republicans ammunition for the “nuclear” strategy
of ending filibusters for all judicial nominees. The sight of
self- described liberal senators insisting on a supermajority,
instead of the traditional up-or-down vote, in order to deny
a promotion to a brilliant black female judge, may not go well
with the public. It could make the “nuclear option” appear not
so radical after all.
To
be sure, many of Brown’s conservative supporters
can be accused of playing the race card. They
like to emphasize her background
as the daughter of an Alabama sharecropper in the segregated
South, someone who overcame poverty and bigotry to become a leader
of her profession.
Both
sides should focus more on Brown’s actual record and ideas.
They will discover a jurist of insight and integrity -- and learn
valuable lessons about the judiciary’s proper role in a government
system dedicated to individual rights.
Conservatives
believe a judge’s task is to apply the law while
resisting temptation to become a policy-maker. Brown’s understanding
is more expansive. Although she insists courts should not act
like legislatures, she rejects any notion of the judge as a rubber
stamp for whatever the majority does. She believes that courts
should function, first and last, as defenders of freedom.
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.”
Brown’s judicial philosophy represents what political scientists
call the “Madisonian” view -- the idea, embraced by the “Father
of the Constitution” (James Madison), that public officials must
answer not just to the written law but also to principles of
justice. Courts must ensure that the majority does not run roughshod
over groups that are unpopular or lack political power. As Brown
has put it, judges “must vigorously resist encroachments that
heighten the potential for arbitrary government action.”
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.”
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.”
Brown is committed to racial equality because she is committed
to individual rights and protecting individuals -- of all colors
-- from government abuse. Just as small hotel owners of San Francisco
should be free from unjustified coercion, and no contractor should
be denied business because of race, so the cyclist McKay should
be free from arbitrary treatment by police.
A
jurist with Brown’s
pedigree and principles should not be disrespected. U.S. Senate
Democrats will be making a mistake
if they give her a filibuster instead of fairness.
tOR
Harold
Johnson and Timothy Sandefur are attorneys with Pacific Legal
Foundation which represented the successful plaintiffs
in Hi-Voltage Wireworks vs. San Jose. This commentary appeared
inthe San Francisco Chronicle.
copyright
2005 Pacific Legal Foundation
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