A Bad Fit for a Key Court

The U.S. Court of Appeals for the District of Columbia Circuit is the triple-A farm team for the Supreme Court. Three of the high court’s current members -- Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg -- came from the D.C. circuit. So did onetime Chief Justices Warren Burger and Fred Vinson, among others.

Presidents also give special attention to the D.C. court’s appointments because it often hears high-profile challenges to presidential and congressional actions, defining the government’s authority. This year the D.C. Circuit Court upheld the indefinite detention of potential terrorists at Guantanamo, Cuba. In past years, it expanded police search and seizure powers and upheld the 1971 campaign spending law and environmental and workplace safety laws. Before it now is a challenge by California and other states to the administration’s view that the Clean Air Act does not allow regulation of carbon dioxide and other greenhouse gases.

That President Bush may view California Supreme Court Justice Janice Rogers Brown as a future U.S. Supreme Court justice could explain why he nominated her to the D.C. court, 3,000 miles from her San Francisco base. But during her seven years on California’s high court, Brown has shown doctrinaire and peculiar views that make her a troubling choice for this appeals court.

Judges are supposed to consider disputes with an open mind, weighing facts against the law and precedent. Conscientious judges sometimes find that their decisions conflict with their personal beliefs. However, in opinions and speeches, Brown has articulated disdainful views of the Constitution and government that are so strong and so far from the mainstream as to raise questions about whether they would control her decisions.

“Where government advances,” she told a college audience, “freedom is imperiled, community impoverished, religion marginalized and civilization itself jeopardized” -- a startling view for someone who would be charged with reviewing government actions. Brown has spoken disapprovingly of what she called the U.S. Supreme Court’s “hyper-vigilance” with respect to such “judicially proclaimed fundamental rights” as privacy, calling them “highly suspect, incoherent and constitutionally invalid.”

These views may have prompted Brown’s bitter dissents in cases in which her colleagues upheld regulatory actions such as local zoning and land-use laws. They seem to have fueled her skepticism toward employment discrimination claims, cases involving the rights of people with disabilities and the meaning of consent in rape.

Brown’s dogmatism and a style bordering on vituperation earned her only a “qualified” rather than “well qualified” rating from the American Bar Assn. Some committee members found her unfit for the appeals court.

The Senate Judiciary Committee could vote on Brown’s nomination Thursday. There’s little question that Brown is an intellectually sharp and hard-working jurist, but that is not enough. Her own words are unrelentingly hostile to government’s role in regulatory matters and protection of individual rights. These are the very things on which she would rule most often. Brown is a bad fit for the District of Columbia appeals court.