Janice Rogers Brown

Janice Rogers Brown (born May 11, 1949) is an American jurist. She served as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit from 2005 to 2017 and before that, Associate Justice of the California Supreme Court from 1996 to 2005.

Janice Rogers Brown
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office
June 10, 2005 – August 31, 2017
Appointed byGeorge W. Bush
Preceded byStephen F. Williams
Succeeded byGregory G. Katsas
Associate Justice of the California Supreme Court
In office
May 3, 1996 – June 10, 2005
Appointed byPete Wilson
Preceded byRonald M. George
Succeeded byCarol Corrigan
Personal details
Born
Janice Rogers

(1949-05-11) May 11, 1949
Greenville, Alabama, U.S.
Political partyRepublican
EducationCalifornia State University, Sacramento (BA)
University of California, Los Angeles (JD)
University of Virginia (LLM)

Her nomination to the Court of Appeals was stalled for nearly two years as part of Democratic opposition to appointments made by George W. Bush.

Early life and education

Browm was born in Greenville, Alabama in 1949. She is the daughter of an Alabama sharecropper and attended majority African-American schools. During her childhood, her family refused to enter race-segregated business.[1]

She earned a B.A. from California State University, Sacramento in 1974 and a J.D. from the UCLA in 1977.

In addition, she received a Master of Laws degree from the University of Virginia School of Law in 2004.[2]

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

For the first two decades of her career, Brown primarily worked for government agencies.

From 1977 to 1979, she was Deputy Legislative Counsel for the California Legislative Counsel.

From 1979 to 1987, she served as California Deputy Attorney General for the Criminal and Civil Divisions.

From 1987 to 1989, Brown was Deputy Secretary and General Counsel for the California Business, Transportation and Housing Agency and a University of the Pacific McGeorge School of Law Adjunct Professor from 1988 to 1989.

She briefly entered private practice at the firm of Nielsen, Merksamer, Parrinello, Mueller & Naylor in 1990, but left in January 1991 to return to government as Legal Affairs Secretary for Governor Pete Wilson from January 1991 to November 1994.[1] 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.

California Supreme Court

In November 1994, Wilson appointed Brown to the California Court of Appeal, Third Appellate District. Her appointment was rated "not qualified" by the State Bar of California Commission on Judicial Nominees due to her lack of judicial experience.[3]

In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. This appointment was also rated "not qualified" for lack of experience. However, Brown was praised in the JNE Commission evaluation for her intelligence and accomplishments. Brown was the first "not qualified" appointment to the California Supreme Court.[4][5]

Tenure

In Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), Brown wrote overturning a program of racial set-asides adopted by the city of San Jose.[6] The opinion upheld an amendment to the California Constitution which banned discrimination against or preferential treatment for any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, education, or contracting.

Brown also wrote the majority opinion in Varian v. Delfino, an important First Amendment case involving the interpretation of California's SLAPP statute.

In another case, Brown dissented from an opinion striking down a parental consent law for abortions.

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.

Brown was the lone dissenter to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time.

U.S. Court of Appeals for the D.C. Circuit

Nomination and confirmation
Brown with President George W. Bush, Priscilla Owen, and Carolyn Kuhl in 2003
Brown meeting with Senator Norm Coleman in 2005 prior to her confirmation

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 the seat vacated by Stephen F. Williams.

The Senate Judiciary Committee held a hearing on her nomination on October 22. 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. On May 23, Senator John McCain announced an agreement between seven Republican and seven Democratic U.S. Senators to ensure an up-or-down vote on Brown and several other stalled Bush nominees.

During the summer of 2005, Brown was also considered as a possible nominee to replace Sandra Day O'Connor on the United States Supreme Court, but Samuel Alito was chosen instead.[1]

On June 8, freshman Senator Barack Obama strongly opposed her nomination in a speech on the floor of the U.S. Senate, characterizing her judicial activism as social darwinism.[3] He said:

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.[3]

Despite such opposition, Brown's nomination to the Court of Appeals was confirmed by the U.S. Senate on June 8, 2005 by a vote of 56–43.[7][8] She received her commission on June 10.[2] 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.

Tenure

Brown's dissenting opinion in Omar v. Harvey sets forth her judicial outlook on the constitutional balance of powers.[9] 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.[10] 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."[11][12]

In June 2017, Brown wrote for a unanimous circuit panel finding that the next friend of Yemenis killed in a U.S. drone strike could not sue under the Torture Victims Protection Act nor the Alien Tort Statute because the attack was not justiciable.[13][14] 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."[15]

In August 2017, Brown partially dissented when the court found that the Military Extraterritorial Jurisdiction Act authorized the prosecution of the Nisour Square massacre killers.[16][17]

Brown retired from the U.S. Court of Appeals for the D.C. Circuit on August 31, 2017.[18]

Political views

Brown is considered a libertarian.

Her political beliefs have been expressed in speeches, notably one delivered to the University of Chicago Law School Federalist Society in 2000. Brown's speech cited 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." Brown 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."[19]

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, and former Attorney General Edwin Meese, as well as [Robert] Bork."[20]

In the same speech, Brown explained that the Federalist Society had been described as a "rare bastion (nay beacon) of conservative and libertarian thought" in her invitation to speak, and that the "latter notion [had] made your invitation well-nigh irresistible."[19] She also gave hints of her philosophical foundations, approvingly quoting descriptions of private property as "the guardian of every other right" and collectivism as "slavery to the tribe." She also described government as a "leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path."[19]

Personal life

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.[21]

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See also

References
  1. "Possible Nominees to the Supreme Court". The Washington Post. 2005-07-01. Retrieved 2008-10-22.
  2. "Brown, Janice Rogers - Federal Judicial Center".
  3. 'Nomination of Justice Janet Rogers Brown', Barack Obama, 8 June 2005. Retrieved 5 November 2013.
  4. "Archived copy" (PDF). Archived from the original (PDF) on 2009-03-25. Retrieved 2006-12-17.CS1 maint: archived copy as title (link)
  5. Wilson names George chief justice, The California Bar Journal, May 1996. Archived October 12, 2006, at the Wayback Machine
  6. "Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), 25 Cal 4th 540".
  7. "CNN.com - Senate confirms Brown - Jun 8, 2005". www.cnn.com.
  8. "U.S. Senate: U.S. Senate Roll Call Votes 109th Congress - 1st Session".
  9. Orin Kerr, DC Circuit Upholds Injunction in Iraqi Transfer Case, The Mail Archive, 2007-02-09.
  10. Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007). Retrieved July 30, 2017.
  11. "Second Opinions". 4 May 2012.
  12. 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)
  13. Note, Recent Case: D.C. Circuit Holds Statutory Challenge to Drone Strike is Nonjusticiable, 131 Harv. L. Rev. 1473 (2018).
  14. bin Ali Jaber v. United States, 861 F.3d 241 (D.C. Cir. 2017).
  15. Adler, Jonathan H. (30 June 2017). "Opinion: D.C. Circuit rejects judicial review of drone strikes (but at least one judge is unhappy about it)". The Volokh Conspiracy. The Washington Post. Retrieved 18 February 2019.
  16. Note, Recent Case: D.C. Circuit Holds It Cruel and Unusual to Impose Mandatory Thirty-Year Sentence on Military Contractors for Gun Charge, 131 Harv. L. Rev. 1465 (2018).
  17. United States v. Slatten, 865 F.3d 767 (D.C. Cir. 2017).
  18. "Brown, Janice Rogers - Federal Judicial Center". www.fjc.gov.
  19. Brown, Janice Rogers (Apr 20, 2000). "A Whiter Shade of Pale – Sense and Nonsense". Archived from the original on November 3, 2003.
  20. Taylor, Stuart Jr. Does the President Agree with this Nominee?, The Atlantic. 2005-05-03.
  21. 'New Judge sees Slavery in Liberalism', New York Times, David D. Kirkpatrick, 9 June 2005. Retrieved 5 November 2013

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Legal offices
Preceded by
Ronald M. George		 Associate Justice of the California Supreme Court
1996–2005		 Succeeded by
Carol Corrigan
Preceded by
Stephen F. Williams		 Judge of the United States Court of Appeals for the District of Columbia Circuit
2005–2017		 Succeeded by
Gregory G. Katsas
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