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
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
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
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.