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CONTACT: Doug Kendall 202-296-6889



WASHINGTON - There is a raging debate in conservative circles between those who believe in judicial restraint and those, who, like the libertarian Institute for Justice, believe that "conservative judicial activism is neither an oxymoron nor a bad idea. "The proponents of conservative activism won a huge victory today when the Senate Judiciary Committee voted along party lines to favorably report the nomination of D.C. Circuit nominee Janice Rogers Brown to the Senate floor. Senators such as Committee Chairman Orrin Hatch (R-UT) sent the message loud and clear that they are willing to support an activist nominee, as long as it is the form of activism that supports their political agenda.

Justice Brown openly supports the type of judicial second-guessing of government efforts to protect health, welfare, and the environment that were the hallmarks of the universally discredited Lochner era. In the words of Robert Bork, the Lochner case is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." Justice Brown has hailed the possibility of a revival of what she calls "Lochner-lite" under the Constitution's Takings Clause. Her lone dissents in "takings" cases have attempted to turn this disturbing possibility into reality. In the words of law professor Stephen Barnett, who withdrew his support for Justice Brown after reading her speeches and hearing her testimony, Brown's "extreme and outmoded ideological positions" place Justice Brown "out of the mainstream" and make her nomination to the D.C. Circuit "just too scary."

"This nomination was a test for purported conservatives on the Committee," said Doug Kendall, CRC's Executive Director, "their failure rate was 100 percent."

For more information on Janice Rogers Brown, click here.

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