LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

I. Justice Brown's Professional Background and Nomination to the DC Circuit

Justice Brown was born on May 11, 1949, the daughter of sharecroppers in rural Alabama, and grew up in the segregated Deep South. She graduated from California State University at Sacramento with a BA in 1974 and from UCLA School of Law with a JD in 1977. She worked in the Office of Legislative Counsel in Sacramento from 1977 until 1979. She became Deputy Attorney General in California in 1979, a position she held for eight years. In 1987 she became Deputy Secretary and General Counsel at the California Business, Transportation and Housing Agency, a position she held until 1989. She then spent two years in private practice at the Sacramento firm of Nielson, Mersamer, Parrinello & Mueller. In 1991 she was appointed Legal Affairs Secretary to Governor Pete Wilson, a position she held until 1994. In 1994 she was appointed to the Third District Court of Appeal in Sacramento in 1994. After 16 months on the Court of Appeal, she was nominated to the California Supreme Court. She is the first African-American woman to sit on the California high court.

The State Bar Committee on Judicial Nominees Evaluation (JNE), which evaluates judicial nominees, found that she was “not qualified” for a State Supreme Court appointment. Three-fourths of the commission found her not qualified, with bar evaluators and others reportedly raising concerns that she was insensitive to established precedent, lacked compassion and tolerance for opposing views, and was prone to inserting conservative personal views into her appellate opinions,6 in addition to her inexperience. She was retained in office in the November 1998 election.

Brown was nominated not to the Ninth Circuit, which includes California, but to the D.C Circuit, some 3000 miles away. The D.C. Circuit is widely recognized for its uniquely important role in reviewing federal agency action. Congress has given the court exclusive jurisdiction to review some agency conduct, such as important Federal Communications Commission and environmental matters, and the D.C. Circuit is often the last word on federal agency actions, since the Supreme Court reviews so few lower court decisions. Until Brown’s nomination, over the past decade, both the Bush and Clinton Administrations have selected D.C.– area lawyers familiar with D.C. and the D.C. Circuit for positions on that court, in accord with earlier non-partisan recommendations of D.C. Bar leaders. See 132 Cong.Rec.S 15653 (October 8, 1986) (Statement of Sen. Mathias).

During the Clinton Administration, moreover, Republican Senators strongly opposed filling all 12 authorized seats on the D.C. Circuit. Beginning in 1997, they claimed that the relatively low caseload of the D.C. Circuit warranted no more than 10 judges and made clear that they would block future appointments to the 11th or 12th seats. See 143 Cong.Rec.S 2515 (March 19, 1997) (statements by Sens. Grassley, Kyl, and Sessions). Clinton nominees Allen Snyder and Elena Kagan, who would have filled those seats, never got out of the Senate Judiciary Committee. As recently as last year, Senator Sessions made clear that he would “oppose going above ten unless the caseload is up.”7 In fact, the D.C. Circuit’s caseload has decreased since 1997.8 Yet Brett Kavanaugh and Brown have been nominated for the 11th and 12th seats on the D.C. Circuit.

6 High Court. See also Claire Cooper, “Disputed High Court Nominee is confirmed,” Sacramento Bee (May 3, 1996) at A1.
7 Hearing of Senate Subcommittee on Administrative Oversight and the Courts of the Committee on the Judiicary on the D.C. Circuit (Sept. 24, 2002) at 26 (statement by Sen. Sessions).
8 For example, according to the federal courts’ website at www.uscourts.gov, the number of appeals filled in the D.C. Circuit was 1,531 in 1997, but only 1,126 in 2002.

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