Janice Rogers Brown
|Janice Rogers Brown|
|Judge of the United States Court of Appeals for the District of Columbia Circuit|
June 10, 2005 – August 31, 2017
|Appointed by||George W. Bush|
|Preceded by||Stephen F. Williams|
|Succeeded by||Gregory G. Katsas|
|Associate Justice of the California Supreme Court|
May 3, 1996 – June 10, 2005
|Appointed by||Pete Wilson|
|Preceded by||Ronald M. George|
|Succeeded by||Carol Corrigan|
May 11, 1949|
Greenville, Alabama, U.S.
California State University, Sacramento (BA)|
University of California, Los Angeles (JD)
University of Virginia (LLM)
Janice Rogers Brown (born May 11, 1949) is a former United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. She was an Associate Justice of the California Supreme Court from May 2, 1996, until her appointment to the D.C. Circuit. She retired from the federal bench on August 31, 2017.
President George W. Bush nominated her to the United States Court of Appeals for the District of Columbia Circuit in 2003. However, her nomination was stalled in the U.S. Senate for almost two years because of Democratic opposition. She began serving as a federal appellate court judge on June 8, 2005.
Family and education
Born in Greenville, Alabama, Brown is an Alabama sharecropper's daughter who attended majority African American schools as a child. Her family refused to enter places of business that segregated blacks. She earned her Bachelor of Arts degree from California State University, Sacramento in 1974 and her Juris Doctor (J.D.) from the UCLA School of Law in 1977. In addition, she received a Master of Laws degree from the University of Virginia School of Law in 2004.
She had one child, Nathan A. Brown, adopted by her first husband, Allen E. Brown Sr., who died of cancer in 1988. She remarried in 1991 to jazz electric bassist Dewey Parker.
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 California Legislative Counsel 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 the California Business, Transportation and Housing Agency 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 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. Prior to this appointment she was rated "not qualified" by the State Bar of California Commission on Judicial Nominees due to lack of experience.
California Supreme Court Associate Justice
In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Before the appointment, she had been rated "not qualified" by the State Bar of California's Commission on Judicial Nominees, 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. Brown had then been sitting as a Justice of 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.
While on the California Supreme Court, in Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), Brown wrote the majority opinion overturning a program of racial set-asides adopted by the city of San Jose, California. 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 involving the interpretation of California's SLAPP statute.
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.
United States D.C. Circuit Court of Appeals judge
Brown was nominated by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit on July 25, 2003, to fill a seat vacated when Stephen F. Williams assumed senior status. 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.
Liberal organizations including the NAACP, the Feminist Majority Foundation, People For the American Way, the National Council of Jewish Women, and the National Organization for Women called her views "extreme right-wing," reflecting political and ideological differences.
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 Democratic 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, freshman Senator Barack Obama strongly opposed the confirmation of her nomination in a speech on the floor of the U.S. Senate, characterizing her judicial activism as, "Social Darwinism, a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer." He continued:
Justice Scalia says that, generally speaking, the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution. That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document.
Despite such opposition, 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. She retired from active federal service on August 31, 2017.
Her dissenting opinion in Omar v. Harvey sets forth her judicial outlook on the constitutional balance of powers. 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. 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.
In 2012, she wrote a concurring opinion for the case Hettinga v. United States in which she severely criticized the dominant post-Lochner approach in the U.S. judiciary, that laws involving economic policy deserve "a strong presumption of validity."
In June 2017, Brown authored an opinion for the D.C. Circuit panel that heard, Ahmed Salem Bin Ali Jaber v. United States, dismissing the action on the basis that the judicial branch did not have the power to question executive decisions in the particular instance of military affairs. The case specifically regarded the unavailability of any constitutional avenue of recourse for the families of those, who though they may be innocent, are killed in targeted drone strikes. However she wrote a separate concurring opinion that criticized this lack of oversight, which is barred by precedent, concluding, "The political question doctrine, and the state secrets privilege confer such deference to the Executive in the foreign relations arena that the Judiciary has no part to play. These doctrines may be deeply flawed."
In July 2017, it was widely reported that Judge Brown would be retiring in the near future, though perhaps to senior status, giving President Donald Trump the opportunity to appoint another conservative judge in her place.
Her libertarian political beliefs have been expressed in her speeches, most notably one she delivered to the Federalist Society at the University of Chicago Law School in 2000. Brown's speech mentioned Ayn Rand and lamented 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 argued that "where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies" and suggested 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, such as West Coast Hotel Co. v. Parrish, upholding minimum-wage laws and other New Deal legislation, marked "the triumph of our own socialist revolution" and was 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 called instead for a return to Lochnerism, the pre-1937 view that the US 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 her confirmation process in 2005, legal-affairs analyst Stuart Taylor, Jr. noted, "Almost all modern constitutional scholars have rejected Lochnerism as 'the quintessence of judicial usurpation of power'" and cited "leading conservatives — including Justice Antonin Scalia, Senator Orrin Hatch, R-Utah, and former Attorney General Edwin Meese, as well as [Robert] Bork."
In a speech to the Federalist Society, Brown called the group a "rare bastion (nay beacon) of conservative and libertarian thought" and that the "latter notion made your invitation well-nigh irresistible."
In the same speech, she gave hints of her philosophical foundations. She described private property as "the guardian of every other right." That might have been a reference to a book published in late 2007, "The Guardian of Every Other Right: A Constitutional History of Property Rights." Later 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."
- List of Justices of the Supreme Court of California
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- George W. Bush judicial appointment controversies
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- Gang of 14
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- "Possible Nominees to the Supreme Court". The Washington Post. 2005-07-01. Retrieved 2008-10-22.
- "Brown, Janice Rogers - Federal Judicial Center".
- 'New Judge sees Slavery in Liberalism', New York Times, David D. Kirkpatrick, 9 June 2005. Retrieved 5 November 2013
- 'Nomination of Justice Janet Rogers Brown', Barack Obama, 8 June 2005. Retrieved 5 November 2013.
- Wilson names George chief justice, The California Bar Journal, May 1996. Archived October 12, 2006, at the Wayback Machine.
- "Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), 25 Cal 4th 540".
- "Civil Rights Federal Legislative Report Card, 109th Congress, First Session" (PDF). NAACP. January 2006. Retrieved 2006-10-06.
- Feminist News Wire Accessed October 5, 2006.
- People for the American Way Accessed October 5, 2006. Archived September 28, 2006, at the Wayback Machine.
- NCJW Deeply Concerned by Confirmation of Janice Rogers Brown (Press release) National Council of Jewish Women, Accessed October 5, 2006.
- Battle Continues Over Right-Wing Judicial Nominees National Organization for Women, Accessed October 5, 2006.
- "U.S. Senate: U.S. Senate Roll Call Votes 109th Congress - 1st Session".
- Orin Kerr, DC Circuit Upholds Injunction in Iraqi Transfer Case, The Mail Archive, 2007-02-09.
- Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007). Retrieved July 30, 2017.
- "Second Opinions". 4 May 2012.
- Hettinga v. United States. 677 F.3d 471 (D.C. Cir. 2012) (per curiam), reh’g en banc denied, No. 11-5065 (D.C. Cir. June 21, 2012)
- D.C. Circuit rejects judicial review of drone strikes (but at least one judge is unhappy about it), Washington Post, Jonathan H. Adler, June 30. Retrieved July 17, 2017.
- D.C. Circuit Judge Janice Rogers Brown to step down, Washington Post, Jonathan H. Adler, July 7, 2017. Retrieved July 17, 2017.
- "Brown's speech to the Chicago Federalist Society".
- Taylor, Stuart Jr. Does the President Agree with this Nominee?, The Atlantic. 2005-05-03.
- Brown, Janice Rogers (Apr 20, 2000). "A Whiter Shade of Pale – Sense and Nonsense". Archived from the original on November 3, 2003.
- 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
- 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.)
- Janice Rogers Brown at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
- U.S. Court of Appeals Resume of Judge Janice Rogers Brown
- U.S. Department of Justice, Office of Legal Policy, Resume of Janice Rogers Brown
- Short Biography and More on Brown from 'Save Our Courts'
- Janice Rogers Brown. California Supreme Court.
- Janice Rogers Brown. California Court of Appeal, Third District.
- Past & Present Justices. California Supreme Court.
Ronald M. George
| Associate Justice of the California Supreme Court
Stephen F. Williams
| Judge of the United States Court of Appeals for the District of Columbia Circuit
Gregory G. Katsas