Leahy, Democrats Oppose Brown Nomination,
Panel Approves Nominee

WASHINGTON (Thursday, April 21, 2005) – The Senate Judiciary Committee, in a 10-8 party-line vote, reported out the controversial judicial nomination of Janice Rogers Brown on Thursday.  All eight Democratic members of the Committee voted against the nomination, which now moves to the full Senate.  Brown is nominated to the United States Court of Appeals for the D.C. Circuit, the most powerful court in the nation below the Supreme Court of the United States.  The Senate rejected Brown’s nomination last Congress, with Democratic senators opposing the nomination based on Brown’s record as an agenda-driven judge with little regard for clear judicial precedent.  A statement from Senator Patrick Leahy (D-Vt.), the ranking Democratic member of the panel, opposing the nomination, follows, as well as background material on Brown’s record.

Statement of Senator Patrick Leahy
On the Nomination of Janice Rogers Brown
To the United States Court of Appeals for the D.C. Circuit
Executive Business Meeting, Senate Judiciary Committee
April 21, 2005

Two and a half years ago I explained that I was voting against the nomination of Janice Rogers Brown to be a judge on the United States Court of Appeals for the D.C. Circuit, the most powerful appellate court in the country below the Supreme Court of the United States, because her lengthy record both on the bench and off raised a variety of concerns about her judicial philosophy and fitness for this lifetime appointment.   Not only has Justice Brown failed to resolve my concerns, but Justice Brown’s opinions issued since that time reinforce and deepen the most troubling patterns in her record.  Accordingly, I will again vote against her confirmation today.

Justice Brown’s extreme record has earned her the opposition of African-American leaders, law professors, and newspapers around the country.  The list of the African-American organizations and individuals who oppose Justice Brown’s nomination is one of the most troubling indications that this is another divisive, ideologically driven nomination.  The 39 members of the Congressional Black Caucus oppose Justice Brown, including the respected congressional delegate from the District of Columbia, Eleanor Holmes Norton, and such distinguished Americans as Representatives Charles Rangel, Elijah Cummings and John Conyers.  The nation’s oldest and largest association of predominantly African-American lawyers and judges, the National Bar Association, and its State counterpart, the California Association of Black Lawyers, both oppose this nomination.  The foremost national civil rights organization, the Leadership Conference on Civil Rights opposes this nomination.  The women of Delta Sigma Theta oppose this nomination.  Dr. Dorothy Height, Dr. Joseph Lowery and Julian Bond have spoken out against this nomination.

Justice Brown’s views — both in speeches and in opinions issued from the bench are so extreme that more than 200 law school professors wrote to the Committee expressing their opposition prior to her hearing two and a half years ago.   

After Justice Brown’s hearing, editorial pages across the country came to the same conclusion.  Justice Brown’s home-state newspaper, The Los Angeles Times, concluded she is a “bad fit for a key court,” after finding that “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.”  The Detroit Free Press concluded:  “Brown has all but hung a banner above her head declaring herself a foe to privacy rights, civil rights, legal precedent and even colleagues who don’t share her extremist leanings.”  

I come to my decision after reviewing Justice Brown’s record – her judicial opinions, her speeches and writings -- and considering her testimony and oral and written answers provided to the Senate Judiciary Committee.  Because there has been no additional development, no follow up hearing for her renomination, and no basis offered for reconsidering the Senate’s refusal to grant consent to this nomination, I expect the votes on this nomination to remain the same.   

My opposition is not about whether Justice Brown would vote like me if she were a member of the United States Senate.  I have voted to confirm probably hundreds of nominees with whom I differ.  Nor is this about one dissent or one speech.  This is about Justice Brown’s approach to the law – an approach which she has consistently used to promote her own ideological agenda, an extreme agenda that is out of the mainstream.  Her hostility both to Supreme Court precedent and to the intent of the legislature does not entitle her to a lifetime appointment to this very important appellate court.

‘Jurisprudence Of Convenience’

As I said two and a half years ago -- and as remains true today -- Janice Rogers Brown’s approach to the law can be best described as a “jurisprudence of convenience.”  Justice Brown has proven herself to be a results-oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change depending on the subject before her and the results she wants to reach. 

While Justice Brown’s approach to the law has been inconsistent – she has taken whatever approach she needs to in order to get to a result she desires – the results which she has worked toward have been very consistent, throughout her public record.  At her hearing, Justice Brown attempted to separate her speeches from her role as a judge.  But on issue after issue -- the protection of the elderly, workers, and consumers, equal protection, the takings clause, privacy rights, free speech, civil liberties, remedies, the use of peremptory challenges, and many more -- Justice Brown has inserted her radical views into her judicial opinions, time and time again.  In fact, Justice Brown’s comments to groups across the country over the last 10 years repeated the same themes – sometimes even the same words -- as she has written in her opinions. 

Justice Brown’s disregard for precedent in her opinions in order to expand the rights of corporations and wealthy property owners, at the expense of workers and individuals who have been the victims of discrimination, stands among the clearest illustrations of Justice Brown’s results-oriented jurisprudence.

Justice Brown has also been inconsistent in the application of rules of judicial interpretation – again depending on the result that she wants to reach in order to fulfill her extremist ideological agenda.

A Consummate Judicial Activist

These legal trends – her disregard for precedent, her inconsistency in judicial interpretation, and her tendency to inject her personal opinions into her judicial opinions – lead to no other conclusion but that Janice Rogers Brown is -- in the true sense of the words – a judicial activist. 

When it is needed to reach a conclusion that meets her own ideological beliefs, Justice Brown stresses the need for deference to the legislature and the electorate.  But when the laws – as passed by legislators and voters – are different than laws she believes are necessary, she has shown no deference, presses her own agenda, and advocates for judicial activism. 

One stark example springs to mind:  In order to support her view that judges should be able to limit damages in employment discrimination cases, she concluded that “creativity” was a permissible judicial practice and that all judges “make law.” 

Justice Brown’s approach to the law has led to many opinions which are highly troubling.  She has repeatedly and consistently advocated turning back the clock 100 years to return to an era where worker protection laws were found unconstitutional.  She has attacked the New Deal, an era which created Social Security and fair labor standards, by saying it “inoculated the federal Constitution with a kind of underground collectivist mentality.”  President Bush currently conveys a far different impression about programs like Social Security as he travels the country on behalf of his agenda for this vital program.

It is no small irony that this President, who spoke of being a uniter but has used his position to send several judicial nominations that have divided the Senate and the American people and that have brought the Senate to the edge of a “nuclear winter.”  His divisiveness has continued, despite the confirmation of 205 out of his 215 judicial nominees.  And it is no small irony that this President, who spoke with disdain of “judicial activism,” has nominated several of the most consummate judicial activists ever chosen by any President.  None of the President’s nominees is more in the mold of a judicial activist than this nominee.

I oppose giving Justice Brown this lifetime promotion to the second highest court in our land because the American people deserve judges who will interpret the law fairly and objectively.  Janice Rogers Brown is a confirmed and committed judicial activist who has a consistent record of using her position as a member of the court to put her views above the law.  We must not enable her to bring her “jurisprudence of convenience” to one of the most important federal courts in the Nation.

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(Background Material on Janice Rogers Brown)

JANICE ROGERS BROWN:
NOMINEE FOR THE D.C. CIRCUIT COURT OF APPEALS

Janice Rogers Brown said, “There are so few true conservatives left in America that we probably should be included on the endangered species list.”   Brown’s speeches and judicial opinions show that she has consistently used her position as a member of the court to advocate for her own extreme ideological agenda.   If she is confirmed to the D.C. Circuit, her jurisprudence of convenience will be brought to one of the most important courts in the nation.

A RESULTS-ORIENTED, AGENDA-DRIVEN JUDGE:

Justice Brown has proven herself to be a results-oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change depending on the subject matter before her and the results she wants to reach. 

DISREGARD OF PRECEDENT:

Justice Brown wrote in one dissent, “(w)e cannot simply cloak ourselves in the doctrine of stare decisis.” In her judicial opinions, Brown has repeatedly argued, in order to get to a result she desired, that precedent does not need to be followed. She has ignored precedent to expand the rights of corporations at the expense of individuals – arguing for overturning precedent to provide more leeway for corporations against attempts to stop the sale of cigarettes to minors, prevent consumer fraud, and prevent the exclusion of women and homosexuals.

ADVOCATES TURNING BACK THE CLOCK 100 YEARS: 

Justice Brown has repeatedly and consistently advocated returning to an era where worker protections laws were found unconstitutional.  She has described the year 1937 – the year in which much of President Roosevelt’s New Deal legislation took effect – as “the triumph of our own socialist revolution.”

DISDAIN FOR  GOVERNMENT:  

Brown’s nomination is for the D.C. Circuit – the court that oversees the actions of federal agencies that are responsible for worker protections, environmental protections, consumer safeguards, and civil rights protections.  Janice Rogers Brown has made no secret of her disdain for government.  In both speeches and judicial opinions, Brown has been critical of the role government currently plays and she has argued for more limited government wherever possible.  In one speech, she said,  “Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.  The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit.  The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.”

NOT QUALIFIED FOR THE BENCH:

The American Bar Association has given Justice Brown a rating of partially not qualified to serve on the D.C. Circuit Court of Appeals.  Similarly, Brown received a not qualified rating from the California Judicial Commission when she was nominated for the California Supreme Court in 1996 because of her “tendency to interject her political and philosophical views into her opinions” and complaints that she was insensitive to established legal precedent, had difficulty grasping complex civil litigation, lacked compassion and intellectual tolerance for opposing views, misunderstood legal standards and was slow to produce opinions.

JANICE ROGERS BROWN: IN HER OWN WORDS

 Janice Rogers Brown on American Government

Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible. [“A Whiter Shade of Pale,” Speech to Federalist Society (April 20. 2000)(“Federalist speech” at 8]

Where government advances – and it advances relentlessly –  freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....When did government cease to be a necessary evil and become a goody bag to solve our private problems? [“Hyphenasia: the Mercy Killing of the American Dream,” Speech at Claremont-McKenna College (Sept. 16, 1999) at 3,4]

In the last 100 years – and particularly in the last 30 – ...[g]overnment has been transformed from a necessary evil to a nanny – benign, compassionate, and wise. Sometimes transformation is a good thing. Sometimes, though, it heralds not higher ground but rather, to put a different gloss on Pat Moynihan’s memorable phrase, defining democracy down. [“Fifty Ways to Lose Your Freedom,” Speech to Institute of Justice (Aug. 12, 2000)(“IFJ speech”) at 2]

Government acts as a giant siphon, extracting wealth, creating privilege and power, and redistributing it. [Speech at McGeorge School of Law (Nov. 21, 1997) at 18] 

Janice Rogers Brown on senior citizens and age discrimination

My grandparents’ generation thought being on the government dole was disgraceful, a blight on the family’s honor. Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much “free” stuff as the political system will permit them to extract...Big government is...[t]he drug of choice for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers, and militant senior citizens.  [IFJ speech at 2,3]

I would deny [the senior citizen] plaintiff relief because she has failed to establish the public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial”...Discrimination based on age...does not mark its victim with a  “stigma of inferiority and second class citizenship”....; it is the unavoidable consequence of that universal leveler: time [Dissenting opinion in Stevenson v. Superior Court, 941 P.2d 1157,1177, 1187 (Cal. 1997)]

Janice Rogers Brown on the New Deal, the Great Society, and the “transmutation” of the Constitution

I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country’s founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution...Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal. What is extraordinary is the way that thesis infiltrated and effected American constitutionalism over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity, but to cut away the very ground on which the Constitution rests... In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned  [Federalist speech at 8, 10, 11, 12]

In the last 100 years – and particularly the last 30 – the Constitution, once the fixed chart of our aspirations, has been demoted to the status of a bad chain novel. [IFJ speech at2] 

Janice Rogers Brown on the proper “protection” of property

In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned...Protection of property was a major casualty of the Revolution of 1937…Rights were reordered and property acquired a second class status...It thus became government’s job not to protect property but, rather, to regulate and redistribute it. And, the epic proportions of the disaster which has befallen millions of people during the ensuing decades has not altered our fervent commitment to statism. [Federalist speech at 12, 13]

At its founding and throughout its early history, this regime revered private property. The American philosophy of the Rights of Man relied heavily on the indissoluble connection between rationality, property, freedom and justice. The Founders viewed the right of property as “the guardian of every other right”….[IFJ speech at 5]

[P]rivate property, already an endangered species in California, is now entirely extinct in San Francisco…I would find the HCO [San Francisco Residential Hotel Unit Conversion and Demolition Ordinance] preempted by the Ellis Act and facially unconstitutional. …Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government. …The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion. [Dissenting opinion in San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87, 120, 128-9 (Cal. 2002)(upholding San Francisco ordinance calling on hotel owners seeking permission to eliminate residential units and convert to tourist hotels help replace lost rental units for low income, elderly, and disabled persons)]

Janice Rogers Brown on the courts, law and the judiciary

We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws? There are of course many reasons for our present difficulties, but some of our troubles can be laid at the feet of that most innocuous branch – the judiciary…From the 1960’s onward, we have witnessed the rise of the judge militant. [Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian speech”) at 5-6, 9]

But, alas, the decisions of such [supreme] courts, including my own, seem ever more ad hoc and expedient, perilously adrift on the roiling seas of feckless photo-op compassion and political correctness. [IFJ speech at 15]

Thus, lawyers have secured the right of topless dancers to perform, but have banished prayer from public life. They have won the right for indigents to take over public spaces, even our children’s libraries, and for the mentally ill to live on streets and shout obscenities at passersby. Legal advocates have guaranteed the right of students to be ignorant by opposing competency tests, and ignored their brazen possession and use of weapons in school. [“Politics: A Vision for Change,” Docket (Dec. 1993) at 15]

Politicians in their eagerness to please and to provide something of value to their constituencies that does not have a price tag are handing out new rights like lollipops in the dentist’s office. [Speech  to Sacramento County bar Ass’n (May 1, 1996) at 6-7

Janice Rogers Brown on strict judicial scrutiny for violations of fundamental constitutional rights

[Beginning in 1937, t]he court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests…[I]f the right was personal and “fundamental,” review was intolerably strict. [Federalist speech at 12]

The dichotomy between the United States Supreme Court’s laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid. [Concurring opinion in Kasler v. Lockyer, 2 P.3d 581, 601 (Cal. 2000), cert. denied, 69 U.S.L.W. 3549 (2001)]

[T]he courts overcame these alleged limitations on their powers with ridiculous ease. How? By constitutionalizing everything possible, finding constitutional rights which are nowhere mentioned in the Constitution. By taking a few words which are in the Constitution like “due process” and “equal protection” and imbuing them with elaborate and highly implausible etymologies; and by enunciating standards of constitutional review which are not standards at all but rather policy vetoes, i.e., strict scrutiny and the compelling state interest standard. [Libertarian speech at 7-8]

Janice Rogers Brown on democracy, capitalism, socialism, and “liberalism”:

Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism’s virtues, we offer it grudging acceptance, contemptuous tolerance, but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental flaw. We conclude instead that its ends are worthy of any sacrifice – including our freedom….1937…marks the triumph of our own socialist revolution. [Federalist speech at 6-7, 10]

In truth, liberalism’s vaunted tolerance and openness is a lie. In America, at least, liberalism is tolerant only of those concerns to which it is indifferent. To those trivialized forms of religious observance which amount to no more than a consumer preference, the culture maintains a posture of tolerance. [Speech to St. Thomas More Society (Oct. 15, 1998) at 8]

Janice Rogers Brown on the Supreme Court’s discredited decision in Lochner v. New York

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. [Federalist speech at 8]

Janice Rogers Brown on the right of privacy vs. the “right to keep and bear arms”

Curiously, in the current dialectic, the right to keep and bear arms – a right expressly guaranteed by the Bill of Rights – is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (citations omitted) But surely, the right to preserve one’s life is at least as fundamental as the right to preserve one’s privacy. [Concurring opinion in Kasler, 2 P.3d at 602]

Janice Rogers Brown on government employers requiring employees to forfeit constitutional rights

In this case and others like it involving the interests of government solely as an employer and the surrender of a constitutional right as a condition of obtaining a mere benefit or “privilege” [i.e. employment], I would argue for a return to an earlier view, pungently expressed by Justice Holmes while a member of the Supreme Judicial Court of Massachusetts: “The petitioner may have a constitutional right to talk politics, but he has  no constitutional right to be a policeman.” (citations omitted) I realize, of course, that for many years Holmes’s view has been out of fashion. …However, to the extent  the doctrine of unconstitutional conditions purports to hold that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether, it seems more a figment of academic imagination than reality. [Concurring and dissenting opinion in Loder v. City of Glendale, 927 P.2d 1200, 1257, 1258 (1997)(striking down city across-the-board testing program for promoted employees while approving requirement for new employees)].

Janice Rogers Brown on natural law

We continue to chip away at the foundations of our success. We dismissed natural law and morality because its unverifiable judgments were deemed inferior to reason. But, then, we drove reason itself from the camp because the most significant of life’s questions defy empiricism. …Only natural law offers an alternative to might makes right and accounts for man’s “unrelenting quest to rise above the ‘letter of the law’ to the realm of the spirit.” [IFJ speech at 15, 17]

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