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D.C. Circuit nominee questioned on property rights statements

October 23, 2003
Charles Donefer

At a hearing on her nomination to the U.S. Circuit Court of Appeals for the District of Columbia yesterday, Senate Judiciary Committee members scrutinized California Supreme Court Justice Janice Rogers Brown's views on a century-old Supreme Court ruling as it pertains to the government's rights to regulate property and contracts.

Environmental groups say that Brown's views in that case, combined with statements she has made in speeches, reveals a hostility to government regulation that could be extended to environmental laws. Brown's defenders say her statements have been taken out of context and that her views are in the mainstream of American judicial opinion.

Brown was introduced to the committee by Sen. John Cornyn (R-Texas), who said in a statement Tuesday that partisan attacks by Democrats on Brown's record "may succeed as fundraising tools and sound bites, but their rhetoric withers in the light of the facts.

"If critics don't like Justice Brown's decisions, they should change the law, rather than attack her for partisan political gain," Cornyn said. "She's just doing her job as a judge, not as a politician."

The D.C. Circuit Court is of special interest to stakeholders in environmental regulation. Congress has given the court exclusive jurisdiction to review challenges to the U.S. EPA's interpretations of the Superfund law and the Resource Conservation and Recovery Act, among others.

Of particular interest to environmentalists are Brown's comments on the takings clause of the Constitution, which they say shows Brown is hostile to most environmental legislation.

Brown has made comments in speeches criticizing Justice Oliver Wendell Holmes' dissent in Lochner v. New York, a 1905 case that struck down a law setting a maximum workweek length for bakery workers. The case, which has been overturned, said the right to enter into contracts is constitutionally protected and cannot be abridged by a law.

If that viewpoint were applied across the board, environmentalists say it could result in a dismantling of many of the nation's laws aimed at protecting wildlife and natural resources.

"Almost every environmental statute inhibits some type of contract," said Doug Kendall of the Community Rights Council, which along with Earthjustice issued a report critical of Brown's environmental record. "The theory in Lochner would have a profound effect on modern environmental laws."

Environmentalists also point to Brown's record on the California Supreme Court, charging that she is hostile to environmental regulation. In Landgate, Inc. v. California Coastal Commission, a case where a private company sued the California Coastal Commission for losses incurred during the time it took to get a building permit, Brown referred to the government as a "relentless siphon" with a "demand for free public goods [that] is infinite."

At yesterday's hearing, Sen. Richard Durbin (D-Ill.) asked Brown to explain her statements about Lochner. Brown said her criticism of Holmes' dissent was limited to a footnote about the Founding Fathers' economic doctrine and said she opposed the majority decision. "I have, in other opinions, written approvingly of Justice Holmes' attitude of deference to the legislature" in Lochner, Brown told the committee. "[The majority was] justly criticized to the extent that they were using the due process clause to insert their own personal views."

Brown's supporters say environ-mentalists are distorting her views on Lochner.
Judiciary Committee Chairman Orrin Hatch (R-Utah) noted that Brown joined the majority of the California Supreme Court in a ruling that kept a species on the state endangered species list. In explaining her opinion, Brown said, "It was a case that said the Fish and Game Commission had to play by the rules if it wanted to remove a species from the endangered species list."

Three of President Bush's judicial nominees have been filibustered in recent months by congressional Democrats. One nominee, Miguel Estrada, withdrew his nomination last month. A second nominee, Alabama Attorney General Bill Pryor, passed the Judiciary Committee on a 10-9 vote. His nomination awaits debate on the Senate floor. Click here for the Earthjustice/Community Rights Council report.

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