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Senator Feinstein Opposes
Justice Brown's Nomination
to the Washington, DC Court of Appeals

 

November 6, 2003


Washington, DC - U.S. Senator Dianne Feinstein (D-Calif.) today voted in Judiciary Committee against the nomination of California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia. The following is Senator Feinstein's statement:


"This decision was not an easy one to make. I think Justice Brown has had a record of moving up through the ranks, which is very admirable. I've carefully reviewed her record. I've read her speeches and her cases. I've listened to the testimony of the hearings, and I've met with her personally for an hour in my office.

Based on my review, I have serious questions about whether she merits a lifetime appointment on the DC circuit. And I think it's only fair that I try explain why.

There is a Justice Brown who is a sitting member of the Supreme Court of California. And there is a Justice Brown who makes speeches. And those speeches are stark, they are filled with hyperbole, and they are extraordinarily unusual - especially for a judge, let alone a Supreme Court justice.

When I asked Justice Brown about these speeches, she said "I wrote them myself, I don't have a speech writer," which indicates to me that they are part of her view of the world.

And I think her view of the world is important when you look at a judge on an appellate court, particularly the DC court, which we have all expressed is the critical court in terms of its administrative review procedures involving measures of governmental law.

Now let me just quote from two example, and these are both speeches made since
she has been a sitting California Supreme Court judge.

In 1999 at Claremont-McKenna College, she said: "Where government advances --
and it advances to relentlessly -- freedom is imperiled, community impoverished, religion marginalized, and civilization itself jeopardized."

At a 2000 Federalist Society event, Justice Brown stated: "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."

It's hard for me to imagine someone with such views wanting to sit on the DC Circuit. I have reservations about the impact of a judge with such hostility to government serving on the Circuit, which hears so many important cases.

I asked her about one case involving the City of San Francisco, because I'm a
lifelong San Franciscan. I was Mayor of the City and served as Supervisor of the City. In this case, San Remo Hotel v. San Francisco, she has taken a rather
extreme position on the takings clause, arguing that a wide range of government
activity constitutes taking.

Notably she argued that without little citation of the courts, that a government regulation is a taking, unless property owners on average, would getthe value of their property enhanced by the regulation.

She argued that the 'free use of property' is 'as important' as freedom of speech or religion. The majority opinion criticized her dissent for injecting her own 'personal theory of political economy' into her opinion.

Now let me give you a quote which really illustrates the degree to which the
hyperbole is so stark. She wrote: "Private property, already an endangered species in California, is now entirely extinct in San Francisco."

Well that's not hyperbole, it's simply untrue. Private property in San Francisco is alive and well, with property values making it one of the highest cost of living cities in the United States. Why would somebody say this?

In regard to my written questions, and I thank her, I have received her answers, she has toned down her stance on the meaning of the takings clause. However, her opinions and her speeches are what they are. Now as a jurist, she has a responsibility for applying the law to the facts to the case. She has on multiple occasions called for legal precedents to be overturned.

Now I recognize that some of the most important constitutional decisions, Brown
v. Board of Education, for example, involve the reversal of precedent.


But, to repeatedly try to reverse decades of precedent, I think brings about the appellation that she becomes an activist judge because in case after case she seems to challenge established law if it doesn't fit with her ideology.

And I named some of the cases. The appeal of Nike v. Kasky and I'll put this in the record, Green v. Ralee Engineering, Stop Youth Addiction v. Lucky Stores, and High Voltage Wire Works v. the City of San Jose.


What we have, I think, is a particularly unusual nominee here. In my days on the committee, I've never seen a nominee who in their public utterances and while sitting on a court states such extreme views - views that are starkly out of mainstream American thought.

I suspect those on the other side of this, would not think that these views are
mainstream views held by most Americans.

And therefore, if these are her views, and she now has a lifetime appointment - she doesn't at any point have to run or submit her credentials to the people for affirmation - we essentially create a fertile field for these views to be transposed into law, and I for one, just can't do this. So I will vote no on the nomination."


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