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Will Bush Nominate Janice Rogers Brown?:
A lot of people seem to think so, but on balance I find it less than likely. While Brown has a reputation as an "extreme conservative," it's more accurate to say that she is a hard core libertarian. A hard core libertarian is not likely to vote in a consistently conservative way, which I think makes it less likely that Bush will nominate her to the Supreme Court.

  For example, I think Brown would be more liberal than any sitting Supreme Court justice on questions of criminal law and procedure, a subject that may carry over to the war on terror and the scope of executive power. Criminal law cases occupy maybe 25% of the Supreme Court's docket, and my quick review of a few Brown opinions suggests that Brown would side on the "liberal" side (generally speaking, more pro-defendant than the norm) in such cases. The handful of Brown cases I read in the area of criminal law have a William O. Douglas flavor to them; they're passionate about the meaning and importance of the Bill of Rights, and very critical of what she sees as the modern Supreme Court's watering down of its protections.

  An example is Brown's separate opinion in People v. McKay, 27 Cal.4th 601, 117 Cal.Rptr.2d 236 (2002), in which she offered the following take on the Fourth Amendment in a case about an arrest of a biker for cycling the wrong way down a one-way street:
  . . . The framers [who enacted the Fourth Amendment] sought to preclude "the petty tyranny of unregulated rummagers." (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn. L.R. 349, 411. The first clause of the Fourth Amendment issues a global command: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The second clause--specifically prohibiting the issuance of a warrant except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"--addresses the narrower compass of traditional search warrants "for contraband, stolen goods, and the like." (Amar, Fourth Amendment First Principles (1994) 107 Harv. L.R. 757, 765, fn. omitted.) Its purpose was probably not to make warrants mandatory, but to limit the opportunity of the executive to obtain warrants in the first place. (See Taylor, Two Studies in Constitutional Interpretation (1969) pp. 38-50.)
  Unfortunately, the Supreme Court's modern Fourth Amendment jurisprudence gives new vigor to petty rummagers. In analyzing searches incident to arrest, the court has tended to equate probable cause with reasonableness, but these terms "serve distinct functions, which are lost by homogenization of the legal vocabulary." (Gramenos v. Jewel Companies, Inc. (7th Cir.1986) 797 F.2d 432, 442.) In Whren, supra, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, Justice Scalia authored a unanimous opinion in which the Supreme Court ruled that when a police officer observes a traffic violation, stopping the vehicle is reasonable and the officer's subjective motivation plays no part in the Fourth Amendment analysis. (Id. at pp. 810, 813, 116 S.Ct. 1769.) Whren essentially legitimized pretextual stops--the sine qua non of unjustified and arbitrary law enforcement. A pretext stop occurs when "the justification proffered by the State for an arrest is legally sufficient, but where the *632 arresting officer was in fact making the arrest to search the arrestee incident to arrest for a reason which was legally insufficient to support the arrest." (Burkoff, The Pretext Search Doctrine: Now You See It, Now You Don't (1984) 17 U. Mich. J.L. Reform 523, 523.)
  The court has clearly seen the need to curb police discretion only when law enforcement agents search and seize without probable cause (Prouse, supra, 440 U.S. at p. 663, 99 S.Ct. 1391), and when police operate under vague enforcement standards which confer a virtually unrestrained power to arrest. (Kolender v. Lawson (1983) 461 U.S. 352, 360, 103 S.Ct. 1855, 75 L.Ed.2d 903 (Kolender ).) In Prouse, an officer randomly stopped the defendant to check his driver's license and registration. The United States Supreme Court held that subjecting drivers to random checks, without reasonable suspicion, is unreasonable under the Fourth Amendment. (Prouse, at p. 663, 99 S.Ct. 1391.) The Prouse court could not "conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. [Moreover,] [t]his kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." (Id. at p. 661, 99 S.Ct. 1391.) Whren distinguished Prouse on the ground that the spot-checking officer did not have " 'probable cause to believe that a driver [was] violating any one of the multitude of applicable traffic and equipment regulations' " (Whren, supra, 517 U.S. at p. 817, 116 S.Ct. 1769), whereas in Whren, the arresting officer did have probable cause to believe that the defendant had violated a traffic law.
  . . . The United States Supreme Court purportedly believes that " 'observed [traffic] violations' ... afford the ' "quantum of individualized suspicion" ' necessary to ensure that police discretion is sufficiently constrained.'' (Whren, supra, 517 U.S. at pp. 817-818, 116 S.Ct. 1769.) In reality, an officer's discretion in deciding whom to stop is not constrained at all by a probable cause prerequisite because the officer need only point to a minor traffic violation to negate a claim of unfettered arbitrariness. (1 LaFave, Search and Seizure (3d ed. 1996) § 1.4(e), p. 123.) Due to the widespread violation of minor traffic laws, an officer's discretion is still as wide as the driving population is large. In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum "crimes"--many too trivial even to be honestly labeled infractions. They are nevertheless public offenses for which a violator may be arrested. Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant. (Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses (1997) 16 Pace L.Rev. 97, 146.)
  An officer's observation of a very minor offense authorizes him to stop the car (Whren, supra, 517 U.S. at p. 817, 116 S.Ct. 1769) or bicycle (United States v. McFadden (2d Cir.2001) 238 F.3d 198), arrest the driver or rider (Atwater, supra, 532 U.S. at p. 354, 121 S.Ct. 1536; McFadden, at p. 204), search the driver or rider ***262 (Robinson, supra, 414 U.S. at p. 235, 94 S.Ct. 467), search the entire passenger compartment of the car including any package inside (Belton, supra, 453 U.S. at p. 460, 101 S.Ct. 2860), impound the car and inventory all of its contents (Colorado v. Bertine (1987) 479 U.S. 367, 374, 107 S.Ct. 738, 93 L.Ed.2d 739), and imprison the offender for up to 48 hours (Atwater, at p. 352, 121 S.Ct. 1536; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49).
  Thus, after Atwater, the notion that "[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation" (Prouse, supra, 440 U.S. at p. 662, 99 S.Ct. 1391) is simply no longer true. In fact, the same rules apparently apply to those who walk, bicycle, rollerblade, skateboard, or propel a scooter. Probable cause is ubiquitous.
  Given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, the probable cause requirement is so diluted it ceases to matter, "for ... there exists 'a power that places the liberty of every man in the hands of every petty officer,' " precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. (1 LaFave, Search and Seizure, supra, § 1.4(e), p. 123, quoting 2 Wroth & Zobel, Legal Papers of John Adams (1965) 141 142.)
  (emphasis mine)

  It's hard to know if Brown's libertarian wordview would carry over to war on terror questions, but they might. Given the perceived importance of such questions in the future, I think it's somewhat less than likely that Bush would nominate Janice Rogers Brown.

  UPDATE: Is People v. McKay unrepresentative of Brown's views in the area of crimal law? In the comments, Edward A. Hoffman argues that it is.
Ken Lammers (mail) (www):
Well, Orin, you've sold me. I now know who I want to be the next Justice.
9.5.2005 2:57pm
42USC1983 (mail):
I'm in love.
9.5.2005 3:31pm
FXKLM:
Her only chance would be to slide in as a recess appointment and then play moderate for a term. It would be difficult for her to be confirmed right now, but once the country gets used to having a black female justice, it will be politically difficult not to vote for her confirmation unless she does something on the Court that Democrats can point to as extreme.

The biggest problem would be convincing Bush to go along with it. I think there's at least some chance that he would. I don't think he'll want to nominate another white male after nominating Roberts. The Katrina crisis and the racial politics surrounding it make a black candidate more likely and the departure of O'Connor makes a female candidate more likely. JRB, of course, is both. Also, with the collapse of Social Security reform, Bush might find it politically expedient to finally throw a bone to small government crowd. I know that's probably delusional optimism at this point, but I think there really is a risk that Republicans will lose small government conservatives. Nominating JRB could really lock up that constituency.
9.5.2005 4:21pm
david blue (mail) (www):
Bush has no political capital to spend right now, and a Brown nomination would be a huge battle. Not gonna happen.
9.5.2005 4:37pm
Joel B. (mail):
Yeah, but while Brown may be libertarian in some regards, she's also been a pretty consistent social conservative. This I think would appeal strongly to Bush. Personally, I think she'd be an excellent choice, and I'd love to see it happen. I don't think though, that Brown would appeal to libertarians generally. Effectively, I think she's much like Scalia, in that Scalia has a tendancy in criminal cases to line up with the liberal justices on occasion. But on major social issues, he's pretty consistent.
9.5.2005 4:54pm
Mark Edelman:
If he were inclined to nominate Judge Brown, he lost an opportunity to make her confirmation a little easier by transferring Roberts to the Rehnquist vacancy. It would have been a little harder for some swing Democrats to oppose the first black woman nominee for Chief Justice.
9.5.2005 5:06pm
AF:
After New Orleans, the political genius of nominating Brown might be too delicious for Bush/Rove to pass up. How's about suckering the Democrats into opposing an outspoken black woman as a way to deflect the criticism that "George Bush doesn't care about black people"? Moving Fourth Amendment jurisprudence to the left in this age of muted cries for law-and-order would be a small price to pay. Now, as for her views on federal power . . .
9.5.2005 5:09pm
Septimus (mail) (www):
Oh, now you have my heart going all pitty-pat, pining away for a Justice Brown!
9.5.2005 5:51pm
Katherine:
There is a giant, glaring omission from this post: she opposes incorporation of the bill of rights against the states:

"The United States Supreme Court . . . began in the 1940's to incorporate the Bill of Rights into the Fourteenth Amendment. Now, that has an interesting effect on how the law about religious expression gets developed. Because they incorporated all of the Bill of Rights into the Fourteenth Amendment, that not only made them binding on the States, that is to say that now the States were covered by the first ten amendments as the Federal government, it also gave tremendous
power to the Federal judiciary, because now they [would] decide at least the minimum level of protection that would be provided for all of
these rights. The historical evidence supporting what the Supreme Court did here is pretty sketchy . . . So if you went by the language you certainly would not get there. They relied on some historical materials which [are] not overwhelming. The argument on the other side is pretty overwhelming that it's probably not incorporated."

Also, a strong "libertarian" view of enumerated powers is actually DISASTROUS for individual rights in the war on terror. When you read enumerated powers narrowly in domestic cases, a lot gets left to the states. When you do it in foreign affairs case, everything gets folded into the Commander in Chief power and the "Executive Power" (as opposed to "the legislative powers herein granted.") Hence Clarence Thomas on Hamdi.

And, frankly, a lot of the amazing indifference to unlimited executive power and torture on display on this weblog by many of your co-bloggers.
9.5.2005 6:17pm
Edward A. Hoffman (mail):
As someone who actually paractices criminal law at the appellate level in California, I was floored by Orin's statement that "I think Brown would be more liberal than any sitting Supreme Court justice on questions of criminal law and procedure[.]" I have heard my colleagues complain more about Janice Rogers Brown than about any other member of the state's very conservative Supreme Court. They literally cheered her confirmation to the D.C. circuit because it cleared the way for Gov. Schwarzenegger to appoint someone more moderate in her place.

Brown may be more moderate in criminal cases than Justices Scalia (who has surprised us a couple of times recently) or Thomas, but she'll still be to the right of the other five and probably of Roberts as well. Orin's example proves that she sometimes sees things the way defense counsel hope she will, but if he thinks this one excerpt is representative of her track record in criminal cases he is wide of the mark.
9.5.2005 6:53pm
OrinKerr:
Edward,

Can you explain a bit more? I only looked at a few cases, so it's quite possible the cases I looked at weren't representative of the whole.
9.5.2005 7:10pm
cfw (mail):
I too cheered as a CA attorney when she left CA. If she were a white male, no one would doubt a lack of intellectual capacity for the US SCT or where she now sits, or the CA SCT. Immature views. Not circumspect and lawyerly in the least. Not collegial. Bull in a china shop. Not half as intelligent and prepared for high office as she thinks she is.

I would refer you to the Amelco/Thousand Oaks case, butchering the law of government contracts in CA. In y view, she moved into an area with less than adequate study and overturned long-standing precedent, relied on extensively in the industry, with no indication she had an inkling of what impact the ruling will have.

Amelco threw out the idea of quantum meruit claims, or claims for abandonment of contract, or "total cost claims" except in the most extreme circumstances in the government contracting arena. Nothing but strict compliance with contract terms in adhesive government contracts, designed to be one-sided in the extreme in favor of the government, will now work for contractors in CA. If I thought she knew what she was doing when she "dropped the bomb", and could explain the likely consequences as she issued her opinion, I might let her pass. I do not get that sense from what she wrote, or from what has happened since then.

I think she reached out to make rulings that look like they came from a 5th year associate (the sort of lawyer she has as a clerk, I suspect), but that a more senior lawyer or judge should have seen were "jumping the shark" (ignoring stare decisis) with no obvious upside. I also fault the justices who concurred with her, but I am most dismayed at Brown.

I have also seen some evidence of her sniping at other judges on the court in ways that look like a junior lawyer with a temper/judgment problem, as opposed to a judge ready for duty on a high court.
9.5.2005 10:44pm
42USC1983 (mail):
Kerr provided cites when making his argument. Will Brown's critics do likewise?
9.6.2005 1:25am
David M. Nieporent (www):
CFW, I don't practice in California and I spent no more than ten minutes reading the Amelco opinion and dissent, so I would not even pretend to be well-informed about the specific issues.

But for you to claim that an opinion joined by four other justices "butchers" the law, demonstrates a "lack of intellectual capacity," "looks like they came from a 5th year associate," makes me suspect that your objection is ideological, not intellectual.

Obviously the fact that it commanded the majority does not preclude the possibility that it was a lousy decision. But it's hard to imagine it warrants the sort of opprobrium you've just heaped on it, and if the best example of her intellectual failures you can come up with is a decision that most other justices agreed with, I don't think your case is very compelling.
9.6.2005 5:27am
Allen Asch (mail) (www):
Janice Rogers Brown's opinions and, especially, her speeches make it very easy to paint her out of the mainstream. See, for example, my May 18 post in the ACLU message board thread at this link: Janice Rogers Brown.

Allen Asch
9.6.2005 5:46am
cfw (mail):
If I have an ideological bias concerning Brown, it is in favor of business interests and stability.

If I saw any parts of the Amelco opinion that explained a need for striking out in ways inconsistent with federal contract law, and government contract law generally (such as a flock of hard to justify cases CA decided for contractors for large sums), I could agree Brown is a competent judge who proceeded thoughtfully. I see none of that in Amelco.

My first priority is to make sure we get one of the top 9 jurists (or potential jurists), then ask about ideology. Brown does not make my list of top 100, much less top 9.
9.6.2005 10:01am
Edward A. Hoffman (mail):
To Orin and 42USC1983:

My response about Janice Brown's record has been delayed by some appointments and other pressing businesss today, but I do intend to post one. It will be later and shorter than I would have liked, and I don't know if anyone is even reading these comments any more, but I don't want anyone to think I'm ducking Orin's question or 42USC1983's challenge.
9.7.2005 12:14am
42USC1983 (mail):
Awesome. I'm still reading, and I look forward to your response.
9.7.2005 12:23am