October 21, 2003 The Honorable Orrin Hatch Chairman United States Senate Judiciary Committee 224 Dirksen Senate Office Building Washington, D.C. 20510 The Honorable Patrick Leahy Ranking Member United States Senate Judiciary Committee 153 Dirksen Senate Office Building Washington, D.C. 20510 Dear Senators Hatch and Leahy: We are professors at law schools across the nation writing to you to oppose the nomination of California Supreme Court Justice Janice Rogers Brown to a seat on the D.C. Circuit. In her speeches, Justice Brown has articulated an often-alarming view of the law that falls far out of the legal mainstream on a variety of topics. Of even greater concern, she has repeatedly demonstrated a willingness to render judicial decisions driven by her personal, prescriptive view of the law with little regard for the dictates of statutes and precedent. The D.C. Circuit is widely recognized as second only to the Supreme Court in power and prestige. The court has served as a “farm team” for the Supreme Court. Three of the nine current justices were previously D.C. Circuit judges, and, of the last seven people nominated to the Supreme Court, five were sitting judges on the D.C. Circuit at the time of their nomination.1 The D.C. Circuit has exclusive or concurrent jurisdiction over a wide variety of issues involving labor law, environmental protection, and the validity of regulations and decisions issued by federal agencies. The Circuit currently has five active judges appointed by Republicans, including George W. Bush appointee John Roberts, and four appointed by Democrats. A recent study by Professors Cass Sunstein and David Schkade and law student Lisa Ellman argues strongly for balance on the federal courts of appeals by demonstrating how results in cases on significant issues such as environmental protection, campaign finance, employment discrimination, and reproductive freedom differ dramatically depending on whether an appellate panel is made up of Republican or Democratic appointees. See Sunstein, et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, AEI-Brookings Joint Center for Regulatory Studies (2003) (available at http://aei-brookings.org/admin/pdffiles/php7m.pdf). Justice Brown’s appointment to the D.C. Circuit would do serious harm to the current balance on that court. Justice Brown has embraced the majority opinion in Lochner v. New York, 198 U.S. 45 (1905), a long-discredited Supreme Court decision striking down maximum hour laws as inconsistent with the Due Process clause, and has argued in speeches that legislation passed during and after the New Deal is unconstitutional. She stated: The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document. In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the ‘constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.’ Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. Janice Rogers Brown, A Whiter Shade of Pale, Speech before Federalist Society, University of Chicago Law School Apr. 20, 2000 (“Federalist Society Speech”) at 8. Lochner and its progeny have been repudiated by commentators on the left, right and center as paradigmatic examples of judicial activism. The Supreme Court rejected Lochner’s absolutist view against reasonable economic regulation of business at least 65 years ago in West Coast Hotel Co v. Parrish, 300 U.S. 379 (1937), and United States v. Carolene Products Co., 304 U.S. 144, 152-53 (1938). All of the current Supreme Court justices have written or joined opinions rejecting Lochner’s reasoning.2 In expressing her view that Lochner was correctly decided, Justice Brown made clear that she believes that much government regulation is misguided and unconstitutional. She argued that the New Deal “cut away the very ground on which the Constitution rests.” Federalist Society Speech at 11. In another speech, she said that the federal government is “the opiate of the masses [and drug for] multinational corporations and single moms, for regulated industries and rugged Midwestern farmers and militant senior citizens.” Janice Rogers Brown, Fifty Ways to Lose Your Freedom, Speech before the Institute for Justice Aug. 12, 2000. These remarks are nothing short of bizarre, a dramatic departure from well-settled views of the meaning of the Constitution and an articulation of a fundamental hostility to seventy years of federal law and administrative regulations, many of which will be at issue in cases before the D.C. Circuit. Our concern that Justice Brown’s views will guide, and even control, her decisions if she is confirmed to the D.C. Circuit is not speculative. Her record on the California Supreme Court includes numerous examples of an approach to judging that reflects personal opinion far more than adherence to precedent and statutes. In a case in which all of her colleagues upheld a San Francisco land-use regulation requiring residential hotels to obtain consent before converting to tourist hotels, Justice Brown dissented and wrote that the majority was “[t]urning a democracy into a kleptocracy.” San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87, 128 (Cal. 2002) (Brown, J., dissenting). Ignoring the balancing test required by the U.S. Supreme Court in almost all cases involving regulatory takings, see Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978); but cf. Lucas v. South Car. Coastal Council, 505 U.S. 1003 (1992), Justice Brown declared that the ordinance was “expressly designed to shift wealth from one group to another by the raw exercise of political power, and, as such, it is a per se taking requiring compensation.” San Remo Hotel L.P., 41 P.3d at 126 (Brown, J., dissenting). The majority reminded Justice Brown that the U.S. Supreme Court has held that “‘[t]he Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens under this generic rule in excess of the benefits received.’” Id. at 108 (quoting Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491 n.21 (1987). Justice Brown’s opinion in an affirmative action case raises serious questions about whether she would fairly apply the Supreme Court’s recent decision upholding affirmative action programs in higher education, see Grutter v. Bollinger, 123 S. Ct. 2325 (2003), and its longstanding holding that private affirmative action programs are consistent with Title VII of the Civil Rights Act of 1964, see United Steelworkers of America v. Weber, 443 U.S. 193 (1979). In Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1068 (Cal. 2000), Justice Brown used the first California Supreme Court case interpreting Proposition 209, which barred public affirmative action programs in California, to issue a lengthy opinion condemning affirmative action programs and Supreme Court cases that upheld them. She cited the dissenting opinion in Weber with approval and strongly took issue with the U.S. Supreme Court majority’s position. Hi-Voltage Wire Works, 12 P.3d at 1076-79. She also criticized the Supreme Court’s decisions upholding affirmative action programs in the public sector, even in the limited circumstances allowed by Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995). See Hi-Voltage Wire Works, 12 P.3d at 1078 n.9. In a concurring decision, Chief Justice George, a fellow appointee of Governor Pete Wilson, wrote that Brown’s account of affirmative action “represent[ed] a serious distortion of history.” Id. at 1095 (George, C.J., concurring). The courts of appeals will sit in judgment of many affirmative action programs over the coming years as they decide whether a program meets the requirements of Grutter or fails as the program in the companion case of Gratz v. Bollinger, 123 S. Ct. 2411 (2003). Justice Brown’s decisions in this area will almost certainly be colored by her strong opposition to affirmative action. In American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997), the California Supreme Court dealt with a statute requiring parental consent or judicial bypass before a minor could obtain an abortion. In dissenting from the Court’s decision that the statute violated the state constitution’s privacy provision, Justice Brown argued that U.S. Supreme Court precedent interpreting the federal Constitution should control. In making that argument, Justice Brown ignored three crucial facts: (1) California’s Constitution contains an explicit guarantee of the right to privacy not present in the U.S. Constitution; (2) the California Supreme Court has held repeatedly that the state’s right to privacy is broader than the federal right to privacy; and (3) that court has ruled repeatedly that a woman’s right to choose is entitled to greater protection under the California Constitution than the U.S. Constitution. See id. at 807-10. Justice Brown wrote a dissent that would have jettisoned California precedent on reproductive freedom. She wrote that the majority’s decision “dispos[ed] of two decades of highly pertinent United States Supreme Court precedent,” id. at 827 (Brown, J., dissenting), and accused the majority of following a legal philosophy that let judges “topple every cultural icon, to dismiss all societal values, and to become final arbiters of traditional morality.” Id. at 887. Justice Brown has written similarly troubling opinions in other areas of the law, including race discrimination; see Peatros v. Bank of America NT & SA, 990 P.2d 539 (Cal. 2000); Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d 846 (Cal. 1999); Konig v. Fair Employment and Housing Comm’n, 50 P.3d 718 (Cal. 2002); the rights of people with disabilities, see City of Moorpark v. Superior Court, 959 P.2d 752 (Cal. 1998); Richards v. Ch2m Hill, 29 P.3d 175 (Cal. 2001); the rights of gays and lesbians, see Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003); age discrimination, see Stevenson v. Superior Court, 941 P.2d 1157 (Cal. 1997); and the meaning of consent in rape cases, see In re John Z., 60 P.3d 183 (Cal. 2003). In a case involving California’s assault weapons ban, Chief Justice George criticized Justice Brown’s majority opinion for “represent[ing] a clear and unwarranted frustration of the intent of the law to ban assault weapons.” Harrot v. County of Kings, 25 P.3d 649, 661 (Cal. 2001) (George, C.J., dissenting). The California Judicial Nominees Evaluation Commission twice found Justice Brown not qualified for a seat on the California Supreme Court, and a substantial minority of the American Bar Association Federal Judiciary Committee – either six or seven of the fifteen members – found her not qualified for a seat on the D.C. Circuit. No member of the ABA Committee rated her well-qualified, despite her six years on California’s highest court. The ratings by these two bodies presumably reflect their serious concerns with Justice Brown’s ability to bring to the bench an impartiality and fealty to law and precedent that should be absolute prerequisites for anyone seeking a lifetime appointment to the federal bench. We urge the Judiciary Committee to reject Janice Rogers Brown’s nomination. Sincerely,