New York Times v. Janice Rogers Brown

Black woman nominated to a high federal appellate court is still scandalized

Editorials in The New York Times are the plenary voice of that newspaper. Accordingly, editorial writers should be as accountable as the Times' reporters—when the editorial sages ignore the facts in a story and deeply sully someone's reputation.

A reckless case in point is the first editorial in the April 28 edition, "Leading With the Women," in which Justice Janice Rogers Brown is unequivocally described as "an extreme right-wing ideologue." Moreover, the editorial adds, "Justice Brown [a member of the California Supreme Court]—a black woman raised in segregated Alabama—is a consistent enemy of minorities."

Janice Rogers Brown was nominated to the powerful District of Columbia Circuit of the U.S. Court of Appeals on July 25, 2003, by George W. Bush. She has yet to receive an up-or-down vote by the Senate as a whole—having been filibustered by the Democrats in the last Congress, and may well be again, having been sent back to the floor on a party line vote by the Judiciary Committee (10-8).

She has been targeted with particular ferocity by Charles Schumer and his colleagues on the Judiciary Committee and their allies: People for the American Way, the Alliance for Justice, the NAACP, et al. In an April 26 "Action Alert" I received from the NAACP, that organization repeated the charge by her opponents that she has "shown herself to be extremely hostile to laws intended to protect Americans' civil rights and civil liberties."

I would have great difficulty voting for Justice Brown because of her strong support of Supreme Court decisions upholding the economic-priority rights of employers and corporations. But some liberals can be so ideologically driven that they are as selectively and brutally unfair as their fiercely right-wing counterparts. Like Senate Minority Leader Harry Reid: "She is a woman who wants to take us back to the Civil War days."

Here are some of Justice Brown's rulings and dissents as a justice of the California Supreme Court. None of what follows has been cited by her attackers, including the autocratic editorial board of The New York Times.

In People v. McKay (2002), Janice Rogers Brown was the only member of that court to denounce racist standards by which some police engage in stop-and-search operations:

"There is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver. . . . The practice is so prevalent, it has a name: 'Driving While Black.' "

She quoted a U.S. Supreme Court opinion by William O. Douglas (Papachristou v. City of Jacksonville, 1972): "If we are committed to a rule of law that applies equally to 'minorities as well as majorities, to the poor as well as the rich,' we cannot countenance standards that permit and encourage discriminatory enforcement."

Justice Brown added that while racial profiling is "more subtle, more diffuse, and less visible" than racial segregation, "it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras." How did the Times miss that one?

In the case In re Visciotti (1996), Justice Brown was in dissent on the death sentence of John Visciotti, who had been convicted of murder, attempted murder, and armed robbery. She said the sentence should be set aside because of the clear incompetence of Visciotti's lawyer. (This makes her an "extreme right-wing ideologue"?)

In another case, In re Brown (1998), this purported enemy of civil rights and civil liberties went after the prosecutor in a capital case and reversed the death sentence of John George Brown because the prosecutor withheld evidence that could have been exculpatory.

In People v. Woods (1999), Justice Brown sharply disagreed when her colleagues approved a police search of a suspected drug dealer's home because, as the cops said, his roommate had consented to warrantless searches as a condition of probation. Said Janice Rogers Brown—The New York Times' extreme, right-wing poster woman—"By their decision today, a majority of the court set the history of personal liberties back more than 200 years." (Emphasis added.)

None of the above were mentioned at all in the April 28 New York Times editorial skewering Justice Brown. This disdain for basic research echoes a dispute I've had previously with Gail Collins, editor of the Times' editorial page.

In a number of Voice columns, I showed how Times editorials repeatedly more than implied that then Mississippi federal district judge Charles Pickering—nominated to the Fifth Circuit Court of Appeals—was racially biased when he got the Justice Department to allow him to impose a lesser sentence in a Mississippi cross burning outside the home of an interracial couple. (That defendant was not the ringleader and his accomplices had avoided jail time.)

The Times' own reporters, Neil Lewis and David Firestone, had gone to Mississippi to get the facts on Pickering's anti-racist record in that state, and the reason he had intervened in the cross-burning case. So had The Atlanta Journal-Constitution, which did the research the Times' editorial board ignored. (Many media outlets around the country, however, ignorantly circulated "the paper of record" 's damaging characterization of Pickering.

Finally, Mike Wallace, who had read my Voice columns, went to Mississippi, and on March 28, 2004, CBS's 60 Minutes got some of Pickering's reputation back. He noted, as had I—but not the Times' editorials—that in the 1970s Pickering sent his children to the by then largely black public schools in Mississippi and had, at his peril, testified against a dangerous Ku Klux Klan leader.

Several times, I left detailed messages for Gail Collins at the Times, giving her the true facts of Pickering's record—as Times reporters had found—but I never received an answer. Dan Okrent, the Times' ombudsman, told me he would write about this journalistic malfeasance, but he hasn't.

Will Dan Okrent's successor, Barney Calame, formerly of The Wall Street Journal, dare to call to account the writer of the April 28 editorial scandalizing Janice Rogers Brown—and will he ask Gail Collins if she deigns to have a fact checker looking at the editorials she sends out as the voice of the Times?

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