Janice Rogers Brown: Still Outraging Liberals

Liberals never much liked Janice Rogers Brown while she was on the California Supreme Court. And they haven’t changed their minds one year into her new job.

In a recently released 101-page report (.pdf), the People For the American Way Foundation rails on 38 appellate judges appointed by the Bush administration, accusing them of “undermining Americans’ rights, liberties and legal protections.”

Brown, who joined the D.C. Circuit U.S. Court of Appeals in Washington on Sept. 8, 2005 — after nine controversial years on the California Supreme Court — gets her share of lumps from the organization.

Specifically, People For the American Way Foundation addressed three rulings — in which Brown either authored the decision, wrote a separate opinion or voted against rehearing — that it believes show her views are outside those of mainstream society.

In Lutkewitte v. Gonzales, 436 F.3d 248, the D.C. Circuit, in an opinion released Feb. 3, upheld a trial court verdict that went against a woman who sued her employer, the FBI, after she submitted to a supervisor’s sexual advances for fear of losing her job.

The appeal court agreed that the woman wasn’t entitled to a jury instruction that the FBI was strictly liable for harassment. Brown angered People For the American Way by writing a separate concurring opinion that “was grounded in her belief that employers should never be held strictly liable in sexual submission cases when the victim of harassment has not suffered an adverse employment consequence.”

The alleged victim had testified she received overtime pay and a new car for her personal use after submitting to her boss’ advances.

The foundation’s report also pointed to the Feb. 28 ruling in National Labor Relations Board v. Cooper Tire & Rubber Co., 438 F.3d 1198. The ruling, authored by Brown, dismissed a case in which the NLRB was trying to enforce a subpoena for materials needed for an investigation into possible anti-union efforts.

“Brown’s opinion,” the report notes, “held that the NLRB, although carrying on the investigation from its offices in the District of Columbia and issuing subpoenas from that office, could not seek enforcement of those subpoenas in D.C. federal court, because the investigation was not nationwide in scope.”

The lone dissenting judge warned that the ruling would be “a powerful new tool” for delaying agency investigations.

Brown was also faulted for voting against having the full D.C. Circuit rehear Commonwealth of Massachusetts v. Environmental Protection Agency, 433 F.3d 66. In that case, three judges ruled that the EPA had the authority to refuse a petition by states and environmental groups that wanted the agency to regulate carbon dioxide and other greenhouse gas emissions from new vehicles.

Brown was one of four judges — of a panel of seven — who voted against an en banc hearing. The U.S. Supreme Court later granted certiorari.

“What we’re seeing,” foundation vice president and legal director Elliot Mincberg wrote in a press statement, “is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts.”

Brown can take some comfort in the fact that the report also goes after a few other judges with San Francisco connections. Ninth Circuit judges — and Bush appointees — Carlos Bea, Consuelo Callahan, Richard Clifton and Jay Bybee get grief, too.

Mike McKee


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