October 21, 2003
The Honorable Orrin Hatch
Chairman, Senate Committee on the Judiciary
United States Senate
Washington, DC 20510
The Honorable Patrick Leahy
Ranking Member, Senate Committee on the Judiciary
United States Senate
Washington, DC 20510
RE: The Nomination of Justice Janice Rogers Brown to the
United States Court of Appeals for the District of Columbia
Dear Chairman Hatch and Ranking Member Leahy:
We are writing to express our extremely strong concerns about
the nomination of California Supreme Court Justice Janice
Rogers Brown to a lifetime seat on the United States Court
of Appeals for the DC Circuit.
The importance of the DC Circuit to the future of our nation's
federal environmental protections cannot be overstated. The
DC Circuit has the power - often the exclusive power - to
hear challenges to health, safety, welfare, and environmental
protections issued by federal government agencies. Except
for the handful of cases that the Supreme Court agrees to
review, the DC Circuit is the final arbiter of whether a federal
protection will stand or fall. The concern of the national
environmental community over the future of the DC Circuit
is reflected in the attached letter that 16 national groups
sent to Senator Schumer, then-chair of the Judiciary Subcommittee
on Administrative Oversight and the Courts, regarding that
Subcommittee's hearing on "The D.C. Circuit: The Importance
of Balance on the Nation's Second Highest Court."
Janice Rogers Brown has an extremely disturbing record for
a lifetime nominee to this critical court. In speeches, she
has expressed the view that the federal government is a "leviathan"
that is "picking up ballast and momentum, crushing everything
in its path." "Where government moves in,"
she has argued, "community retreats, civil society disintegrates,
and our ability to control our own destiny atrophies."
Government, Brown says, has become the "drug of choice"
for ordinary Americans. She claims that "Today's senior
citizens blithely cannibalize their grandchildren" to
"get as much 'free' stuff as the political system will
permit them to extract."
Justice Brown's unfathomably bleak view of Americans and
the motives and operation of the United States government
lead her to believe that unelected judges and the judiciary
must actively rein government in. Thus Brown openly yearns
for a return to the pre-New Deal era of Lochner v. New
York, when the Supreme Court repeatedly invalidated progressive
federal and state statutes designed to improve working conditions
and jump-start the economy out of the Great Depression. Brown
characterizes the Supreme Court's decision to reject constitutional
challenges to Depression-era reforms of the New Deal - which
serve as precedent for our nation's environmental protections
- as "the triumph of our own socialist revolution."
Brown's views on the limits of congressional power place
her almost alone at the fringe of constitutional interpretation.
Virtually every prominent constitutional scholar - from the
left, the center, and the right - agrees that Lochner
is a paradigmatic example of inappropriate judicial activism.
Chairman Hatch, in describing the perils of an activist judiciary,
has placed Lochner in the company of the infamous Dred
Scott ruling that legitimized the spread of slavery and
helped provoke the Civil War. Robert Bork has denounced the
Lochner decision as an "abomination" that "lives
in the law as the symbol, indeed the quintessence of judicial
usurpation of power." As explained by Edwin Meese, "the
Court in the Lochner era ignored the limitations of the Constitution
and blatantly usurped legislative authority." Meese,
in defending the judicial selections of Presidents Ronald
Reagan and George H.W. Bush has declared that "to both
Chief Executives the activist Court of the Lochner
era was as illegitimate as the Warren Court."
Brown's extreme judicial philosophy pervades the opinions
she has written in her six years as a California Supreme Court
justice. For example, during the course of one of her speeches
that celebrates the Lochner era, she describes three
recent Supreme Court regulatory takings rulings as holding
"out the promising possibility of a revival of what might
be called Lochnerism-lite" under the Takings Clause.
In a series of lone dissents in takings cases, Brown attempts
to realize this promise by advocating a startlingly expansive
view of judicial power under the Takings Clause. As the majority
responds in one of these cases, "nothing in the law of
takings would justify an appointed judiciary in imposing that,
or any other, personal theory of political economy on the
people of a democratic state."
As the attached report demonstrates in much greater detail,
Janice Rogers Brown's views on constitutional issues such
as the economic due process rulings of the Lochner
era and the proper reach of the Takings Clause put her on
the far fringes of constitutional interpretation. Her opinions
indicate a willingness, indeed zeal, to inject these views
into the case law even in the face of binding precedent. The
Senate must give Brown's nomination to the environmentally-critical
DC Circuit the closest possible scrutiny.
Thank you for considering these important concerns regarding
Justice Brown's record and for taking seriously your Constitutional
advise and consent responsibility.
Community Rights Counsel
Vice President and General Counsel
Defenders of Wildlife
Glenn P. Sugameli
Senior Legislative Counsel
cc: Members, Senate Committee on the Judiciary