| (Times in italics, Bernstein in plain text):
Justice Brown, who has been nominated to the United States Court of Appeals for the District of Columbia Circuit, has made it clear in her public pronouncements how extreme her views are. She has attacked the New Deal, which gave us Social Security and other programs now central to American life, as "the triumph of our socialist revolution." That's her personal opinion. But has she ever indicated that she would disregard sixty-five years of Supreme Court jurisprudence holding that surviving New Deal programs (the horrible National Industrial Recovery Act, for example, was invalidated 9-0) are constitutionally permissible? Did she ever disregard such clear Supreme Court precedents while serving on the California Supreme Court? The Times is implicitly suggesting that no one with libertarian economic views may serve on a federal appellate court. Surely they can't mean that! And she has praised the infamous Lochner line of cases, in which the Supreme Court, from 1905 to 1937, struck down worker health and safety laws as infringing on the rights of business. Liberal Yale law professor Bruce Ackerman has the following to say about Lochner: "The Lochner Court was . . . interpreting the Constitution, as handed down to them by the Republicans of Reconstruction. Lochner is no longer good law because the American people repudiated Republican constitutional values in the 1930s, not because the Court was wildly out of line with them before the Great Depression." Besides, it's quite obvious that the modern line of Supreme Court cases protecting sexual autonomy under the Due Process Clause, especially last term's Lawrence v. Texas (invalidating laws banning homosexual sodomy), are direct descendants of Lochner. The Times can attack Brown for praising Lochner when it editorializes against Lawrence. Justice Brown's record as a judge is also cause for alarm. She regularly stakes out extreme positions, often dissenting alone. In one case, her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets. Justice Brown dissented, arguing that doing so violated the company's free speech rights. The Times implies here that Brown dissented alone. Actually, the decision was 4-3. Moreover, the dissenters were correct. A jury had found that an Avis Rent-A-Car outlet had engaged in employment discrimination, in part by allowing an employee to repeatedly utter racial epithets targeted at the Latino plaintiffs. Besides awarding damages, the trial court issued an injunction prohibiting Avis employees "from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of [Avis]." An appellate court limited the injunction to the workplace and attempted to narrow the scope of the injunction via a proposed list of specific words that the district court could ban. Not satisfied that these modifications made the injunction comport with the First Amendment, Avis appealed to the California Supreme Court. The three dissenters argued that the injunction amounted to a prior restraint on constitutionally protected speech. They pointed out that U.S. Supreme Court precedent shows that prior restraints are not allowed for speech that might, but won?t necessarily, be illegal. The reason for this rule is that such restraints have a chilling effect on what could have been legal, protected speech. For example, a single future pejorative use of a racial epithet, although banned by the injunction, cannot be the severe and pervasive harassment required to create an illegal hostile work environment; in some contexts it might be severe, but a single comment cannot be "pervasive." For that matter, racial epithets can be uttered in contexts that do not evince hostility. For example, epithets could be mentioned during "diversity education" or could be used ironically, yet these uses of the epithets would be equally banned by the injunction?s prior restraint. Last year, her court upheld a $10,000 award for emotional distress to a black woman who had been refused an apartment because of her race. Justice Brown, the sole dissenter, argued that the agency involved had no power to award the damages. So? Being the sole dissenter does not necessarily make Brown wrong in her interpretation of the law, nor does voting to limit the scope of an antidiscrimination statute. In an important civil rights case, the chief justice of her court criticized Justice Brown for "presenting an unfair and inaccurate caricature" of affirmative action. The Chief Justice was dissenting, and taking an absurd legal position (that prohibiting racial preferences violates the Equal Protection Clause) to boot. And didn't we just learn that being in dissent in a civil rights case calls one's judgment into question? The American Bar Association, all but a rubber stamp for the administration's nominees, has given Justice Brown a mediocre rating of qualified/not qualified, which means a majority of the evaluation committee found her qualified, a minority found her not qualified, and no one found her well qualified. The ABA is hardly an unbiased organization, and the idea that a judge who has served with distinction on the most important state supreme court in the country is barely or not qualified to be a federal appellate judge is just absurd. -- Posted by David Bernstein to The Volokh Conspiracy at 10/26/2003 02:58:25 PM Powered by Blogger Pro |
