October 21, 2003

The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
104 Hart Senate Office Building
Washington, DC 20510
Dear Senator Hatch:

I am writing to express the opposition of the National Council of Jewish Women (NCJW) to the nomination of California Supreme Court Justice Janice Rogers Brown to the US Court of Appeals for the DC Circuit. Justice Brown’s legal philosophy as embodied in her opinions on the California Supreme Court would roll back fundamental rights and constitutional protections that are the bedrock of modern jurisprudence in the areas of reproductive rights, race discrimination, and disability law, among other topics. Her opinions reveal a legal extremism and ideological approach to law that make her a poor choice for the most important circuit court of appeals in the country.

NCJW represents 90,000 members and supporters and their families across the country. We are deeply troubled by the repeated nomination of candidates for our federal appeals courts whose extreme views are far outside the mainstream of federal case law and the American legal profession. Unfortunately Justice Brown is such a nominee. Justice Brown’s approach can best be illustrated by a speech she gave to the Federalist Society, in which she proclaimed that the 1937 Supreme Court was responsible for “the triumph of our socialist revolution” when that court upheld New Deal legislation.

On the California Supreme Court, Justice Brown’s decisions have continued in this dismissive mode. She wrote a dissenting opinion in a parental notice law (American Academy of Pediatrics v. Lungren) that excoriated the majority who believed the California state constitution protected the right of privacy for minors. Her opinion cited “legal materials” from unidentified “outside proponents of the bill” to buttress her position – materials prepared by a group that operates hundreds of anti-choice crisis pregnancy centers.

Justice Brown has ruled several times in opposition to claims made by victims of race discrimination in ways that contravene existing case law. She once claimed that a 135-year old federal bank law pre-empted a claim of discrimination made by a bank employee, an assertion rejected by the majority of the court. She has contended that the state employment and housing commission should not be able to award damages for emotional distress to victims of race and other discrimination. In another dissent, she maintained that the First Amendment protects racially discriminatory speech against Latino employees in the workplace, even when it created a hostile work environment. She even wrote that Title VII of the 1964 Civil Rights Act (which bars employment discrimination) could violate the First Amendment.

Justice Brown has also demonstrated her hostility to claims of discrimination based on disability. She wrote that a victim of continuing discrimination should have been forced to sue separately concerning each discriminatory act rather than rely instead for evidence on a pattern of four years of discriminatory conduct. She also asserted that victims of discrimination based on disability should not be able to bring lawsuits for relief under California common law. She once even argued that it had not been shown that a public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.”

In short, Justice Brown’s views would endanger the rights of millions of Americans who look to the courts to defend their fundamental constitutional rights, including the right to privacy and reproductive rights. When first appointed to the California Supreme Court, she was rated “unqualified” for a State Supreme Court appointment by the State Bar Committee on Judicial Nominees Evaluation. In addition to citing her inexperience, the committee raised concerns that she was insensitive to established precedent, lacked compassion and tolerance for opposing views, and was prone to inserting conservative personal views into her appellate opinions. These are not the qualities of a worthy nominee to the DC Circuit Court of Appeals.

We urge you to reject Justice Brown’s nomination.

Sincerely,

Marsha Atkind National President

cc: Members of the Senate Judiciary Committee