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  Approve Janice Brown for the Federal Appeals Court
by Steven D. Laib, J.D. M.S.
19 October
2003

Liberal activists are trying to defeat the nomination of Judge Janice Brown to the D.C. Circuit Court of Appeals, probably because she doesn't believe that the Court of Appeals should be used as a platform for liberal judicial activism. An appeals court exists to determine whether or not the law has been followed properly, and not to right all of the wrongs that appear in the cases it examines.

California Supreme Court Associate Justice Janice Brown should appear to anyone an ideal candidate for the federal appeals bench. She is the daughter of Alabama sharecroppers who found her way to Sacramento State University, a small college in California, and from there to UCLA Law School where she distinguished herself sufficiently to set the stage for a prestigious career in government and private employ ever since. Earning both of her degrees during the 1970’s she has had a first hand opportunity to examine America and its legal system at close hand, during one of the most controversial times in our history. She has seen and experienced America from the top and the bottom, having lived in poverty and affluence. She has lived and is still living the American Dream; Her life is a Horatio Alger story, beginning as an African American in the segregated South and leading to membership on the highest Court in California. She is everything we should be proud of, regardless of where we came from and what we look like. She has done what many of us only dream of doing.

So why would anyone want to object to Justice Brown’s nomination to the Federal Appeals Court? One reason is that she is not a typical Black Liberal from California. In fact, many consider her a Conservative although what she is may be subject to debate. Ward Connerly may have had the best description of all when he said that Justice Brown “doesn’t carry on her shoulders the burdens of anybody else or the expectations of anybody else.” In short, you might call her totally liberated. Certainly she is a modern woman capable of being a role model for anyone.

Another possible objection is that she has become convinced that the courts should not be used as an instrument of social change. Because of this belief she wrote the Supreme Court opinion upholding California’s Proposition 209, which banned racial and gender based hiring practices. Perhaps taking a page from her own book she expected other people to stand on their own two feet and throw off the burdens of the past. This kind of attitude is not popular today, but Justice Brown showed her courage in standing up for what she understood was the correct application and interpretation of the law. Courage of this kind is rare.

A third objection to Justice Brown is that she is a religious Christian. This fact should not surprise anyone, considering her background, yet one critic found it reasonable to fault her practice of using prayer and “quiet study of the Bible” to formulate her legal opinions, and that she once made a commencement address in which she criticized people who want to mold society “as if God does not exist.” Still, it is obvious that the Bible does not have a monopoly here. Justice Brown is extremely well read and her opinions have contained quotes from Plato, George Washington, John Grisham and songwriter Billy Preston. She is not afraid to call it as she sees it and will not be pressured into taking a popular stance if she does not agree with it. Perhaps this combination of courage, knowledge, and a strong moral foundation is what people really find frightening. She is independent, thinker. She is not beholden to entrenched political pressure groups. She has the courage of her convictions. These qualities, alone, should make her an excellent member of the judiciary, if she didn’t frighten those who don’t have them as well.

What may be most telling about Janice Brown’s sense of justice and the role of the courts can be found in two of her opinions. The first is her statement that “The preservation of a viable constitutional government is not a task for wimps”. The second occurred when she reminded her colleagues that, “The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority’s zeal is more than a little endearing. There is only one problem with this approach. We are a court.”

Justice Janice Brown is not a wimp. She knows what the law is all about and what it is not about. She would move social and political pressures to the side when examining a legal issue. This is as it should be. For while the law does not exist in a vacuum, examination of a legal point often needs to be made in light of preexisting law, constitutional rules and the understanding that making court decisions an instrument of enacting today’s popular will makes it likely that tomorrow’s court will find an equally good reason to change the rules and stand the system of justice on its head. Justice Brown is obviously aware of the importance of maintaining the viability of the system; something, which has gone out of fashion with many people in legal and political circles.

Finally, many of us are used to seeing justice as “getting what is good, right and proper for all concerned.” The problem is that this isn’t the job of the court. An appeals court exists to determine whether or not the law has been followed properly, and not to right all of the wrongs that appear in the cases it examines. Certainly it would be wonderful if we could simply get a court order to solve all of the world’s problems or make them go away. But Justice Brown is quite aware that the law is not a panacea. Perhaps it is her belief in a higher power; perhaps it is knowledge of her own limitations and the limitations of her colleagues. What is certain is that she knows what she can do, and what she should do. That is what we need in our judges. That is what makes California Justice Janice Brown eminently qualified for the Federal Appeals Court and her nomination should be confirmed.

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