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