Janice Rogers Brown

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Janice Rogers Brown
Judge on United States Court of Appeals for the District of Columbia Circuit
Incumbent
Assumed office  2005
Nominated by	George W. Bush
Preceded by	Stephen F. Williams
Associate Justice of the Supreme Court of California
In office 1996 – 2005
Nominated by	Pete Wilson
Preceded by	Ronald M. George
Succeeded by	Carol A. Corrigan
Born	May 11, 1949 (1949-05-11) (age 59) Greenville, Alabama

Janice Rogers Brown (born May 11, 1949 in Greenville, Alabama) is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.

President George W. Bush nominated her to her current position in 2003. However, her nomination was stalled in the U.S. Senate for almost two years due to Democratic opposition. She began serving as a federal appellate court judge on June 8, 2005.

Contents 1 Family and education 2 Early law career 3 California Supreme Court Associate Justice 4 United States Court of Appeals Judge 5 Political views 6 See also 7 External links and references 8 References 9 Notes

[edit] Family and education

Judge Brown is an Alabama sharecropper's daughter who attended segregated majority African American schools as a child. Her family refused to enter places of business that segregated blacks.^[1] She earned her B.A. from California State University, Sacramento in 1974 and her Juris Doctor (J.D.) degree from the UCLA School of Law in 1977. She worked her own way through law school while being a single mother. In addition, she received an LL.M. degree from the University of Virginia School of Law in 2004.

Brown has said that when she was young, she was so liberal in her politics that she was almost Maoist, although she is now conservative.^[1]

[edit] Early law career

For most of the first two decades of her career, Brown worked for government agencies. She was Deputy Legislative Counsel for the Office of Legislative Counsel in California from 1977 to 1979. She then spent eight years as Deputy Attorney General for the Criminal and Civil Divisions of the California Attorney General's Office. She was Deputy Secretary and General Counsel for California's Business, Transportation, and Housing Authority from 1987 to 1989 (and a University of the Pacific McGeorge School of Law Adjunct Professor from 1988 to 1989).

She briefly entered private practice as an Associate of Nielsen, Merksamer, Parrinello, Mueller & Naylor from 1990 to January 1991, when she returned to government as Legal Affairs Secretary for Governor Pete Wilson^[1] from January 1991 to November 1994. The job included diverse duties, ranging from analysis of administration policy, court decisions, and pending legislation to advice on clemency and extradition questions. The Legal Affairs Office monitored all significant state litigation and had general responsibility for supervising departmental counsel and acting as legal liaison between the Governor's office and executive departments. In November 1994, Wilson appointed Brown to the California Court of Appeal, Third Appellate District.

[edit] California Supreme Court Associate Justice

In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Prior to the appointment, she had been rated "not qualified" by the State Bar of California's Commission on Judicial Nominees Evaluation, which evaluates nominees to the California courts. She was the first person with that rating to be appointed. The basis of that negative rating, according to the Commission, was her lack of judicial experience [2]. Brown had then been sitting as a Justice on the Third District Court of Appeal of California (an intermediate appellate court below the California Supreme Court) for less than two years. Brown was praised in the JNE Commission evaluation for her intelligence and accomplishments, however. [3]

While on the California Supreme Court, in Hi-Voltage Wire-Works, Inc. v. City of San Jose, Brown wrote the majority opinion overturning a program of racial set-asides adopted by the city of San Jose. The opinion upheld an amendment to the California Constitution which banned "discriminat[ing] against or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In another case, Brown dissented from an opinion striking down a parental consent law for abortions. Brown also wrote the majority opinion in Varian v. Delfino an important First Amendment case.

There were times during her tenure on the California Supreme Court that Brown demonstrated positions which may be considered out of character with traditional conservative judicial philosophy, such as on criminal sentencing, freedom of speech and gun control.^{[citation needed]} She was the lone justice to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time. In 2000, she authored the opinion in Kasler v. Lockyer, upholding the right of the State of California to ban semi-automatic firearms, and of the Attorney General of California to add to the list of prohibited weapons. Her opinion in that case clearly explained that the decision was not an endorsement of the policy, but rather recognition of the power of the state.

Her reputation for libertarian political beliefs may be attributed to a speech she delivered to the Federalist Society at University of Chicago Law School in 2000. Brown’s speech mentions Ayn Rand and laments the triumph of "the collectivist impulse", in which capitalism receives "contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism." She complains that "where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies," and suggests that the ultimate result for the United States has been a "debased, debauched culture which finds moral depravity entertaining and virtue contemptible."

Her remarks gained particular attention, however, for her thesis that the 1937 court decisions upholding minimum-wage laws and New Deal programs marked "the triumph of our own socialist revolution", the culmination of "a particularly skewed view of human nature" that could be "traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937." She calls instead for a return to Lochnerism, the pre-1937 view that the Constitution severely limits federal and state power to enact economic regulations. In an exegesis of Brown's speech that was largely responsible for bringing it to public attention during Brown's confirmation process in 2005, the legal-affairs analyst Stuart Taylor, Jr., noted, "Almost all modern constitutional scholars have rejected Lochnerism as 'the quintessence of judicial usurpation of power'", citing in particular "leading conservatives—including Justice Antonin Scalia, Sen. Orrin Hatch, R-Utah, and former Attorney General Edwin Meese, as well as [Robert] Bork".[4]

[edit] United States Court of Appeals Judge

Brown was nominated by President Bush to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003 to fill a seat vacated by retired Judge Stephen F. Williams. The Senate Judiciary Committee held a hearing on her nomination on October 22 of that same year. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on her nomination on November 14, 2003. Brown's nomination was returned to the President under the standing rules of the Senate when the 108th United States Congress adjourned.

Bush renominated Brown on February 14, 2005, early in the first session of the 109th United States Congress. On April 21, 2005 the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate once more. On May 23, Senator John McCain announced an agreement between seven Republican and seven Democrat U.S. Senators, the Gang of 14, to ensure an up-or-down vote on Brown and several other stalled Bush nominees, including Priscilla Owen and William H. Pryor, Jr..

On June 8, Brown was confirmed as a judge on the D.C. Circuit by a vote of 56-43. She received her commission on June 10. Brown was the second judge nominated to the D.C. Circuit by Bush and confirmed by the Senate. She began hearing federal cases on September 8, 2005.

Liberal organizations including the NAACP opposed the confirmation of Brown, labeling her "Extreme Right-Wing;"^[2]. The Feminist Majority Foundation,^[3] People For the American Way,^[4] the National Council of Jewish Women,^[5] and the National Organization for Women^[6] all called her views "extreme right-wing," reflecting political and ideological differences rather than criticism of her qualifications.

Her dissenting opinion in Omar v. Harvey is notable as it pertains to her judicial outlook on the constitutional balance of powers.[5] The United States Court of Appeals for the D.C. Circuit upheld an injunction that forbade the U.S. military to transfer Omar, a suspected insurgent, out of U.S. custody while his habeas corpus suit was pending. Judge Brown's dissent took the view that the majority was trespassing on the Executive Branch's authority:

Summarizing its position, the majority declares: "The United States may certainly share information with other sovereigns . . . , but it may not do so in a way that converts Omar's 'release' into a transfer that violates a court order." This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.

During the summer of 2005, she was considered a candidate to replace Sandra Day O'Connor as an Associate Justice of the United States Supreme Court, but Samuel Alito was chosen instead.^[1]

[edit] Political views

Brown's political views are probably best described as libertarian. In a speech to the Federalist Society, she called the group a "rare bastion (nay beacon) of conservative and libertarian thought" and that the "latter notion made your invitation well-nigh irresistible"^[7]

In her speech to the Federalist Society she gave a few hints of her political leanings. She described private property as "the guardian of every other right" and libertarianism is known for its strong defense of property rights. Later on in her speech she described collectivism as "slavery to the tribe" and that government was a "leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path".^[7]

[edit] See also

• President George W. Bush's judicial appointments controversy
• filibuster
• cloture
• nuclear option
• Gang of 14
• George W. Bush Supreme Court candidates

[edit] External links and references

• U.S. Court of Appeals Resume of Judge Janice Rogers Brown
• Video of Judge Brown's Investiture
• U.S. Department of Justice, Office of Legal Policy, Resume of Janice Rogers Brown
• Stuart Taylor Jr. (May 3, 2005). Does the President agree with this nominee? The Atlantic Online.
• Professor Orin Kerr on Janice Rogers Brown's libertarian tendencies
• Short Biography by 'Save Our Courts'
• More on Brown from 'Save Our Courts'
• Senator Harry Reid's Statement Against Brown's Nomination
• Senator Barack Obama's Statement Against Brown's Nomination
• "The Bizarre Legal Philosophy of Justice Janice Rogers Brown"

[edit] References

• Hi-Voltage Wire Works, Inc. v. City of San Jose, (2000) 24 Cal.4th 537 , 101 Cal.Rptr.2d 653; 12 P.3d 1068 (California court decision overturning race-based contracting set-asides adopted by the city of San Jose, California. Link requires free registration.)

[edit] Notes