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COMMUNITY RIGHTS COUNSEL
DEFENDERS OF WILDLIFE
EARTHJUSTICE



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 Circuit

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.

Sincerely yours,

Doug Kendall
Executive Director
Community Rights Counsel


William Snape
Vice President and General Counsel
Defenders of Wildlife


Glenn P. Sugameli
Senior Legislative Counsel
Earthjustice

cc: Members, Senate Committee on the Judiciary
Attachments (2)

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