Brown Approved For D.C. Circuit

By Charles Babington
Washington Post Staff Writer
Thursday, June 9, 2005

The Senate confirmed Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit yesterday, handing President Bush and his conservative supporters a long-sought addition to the nation's second most influential court.

Brown, a California Supreme Court justice whose forcefully stated views have infuriated liberals and delighted conservatives, was approved 56 to 43 after two days of often emotional debate. Democrats had blocked her since 2003, but they were forced to accept her confirmation -- and those of two other appellate court nominees they strongly opposed -- when a bipartisan group struck a deal last month quelling a Republican threat to ban filibusters of judicial nominations.

Minutes after confirming Brown, the Senate voted to end debate and schedule a confirmation vote today for former Alabama attorney general William H. Pryor Jr., appointed by Bush to the U.S. Court of Appeals for the 11th Circuit. If Pryor is confirmed as predicted, he will join Brown and Priscilla R. Owen -- sworn in this week to the 5th Circuit -- as the trio of sharply contested nominees whose approval was the price that liberals paid to retain the right to filibuster future nominees, possibly including those to the Supreme Court.

Bush hailed yesterday's vote, saying Brown "has distinguished herself as a brilliant and fair-minded jurist who is committed to the rule of law. Justice Brown exemplifies the American dream of personal achievement and excellence, and she will be a great asset" to the appellate court.

One Democrat, Ben Nelson of Nebraska, joined the Senate's 55 Republicans in voting to confirm Brown. The other 43 Democrats voted against her. Sen. James M. Jeffords (I-Vt.) did not vote.

Liberals were especially eager to block Brown, because the D.C. Circuit is considered second in influence only to the Supreme Court. It handles appeals of decisions by federal agencies on matters of commerce, communications and other issues that have huge financial implications and affect millions of Americans. Three of the Supreme Court's nine justices were promoted from the D.C. Circuit.

Analysts said Brown will give a rightward push to the court, which now will have six judges nominated by GOP presidents and four by Democrats. Bush has nominated Thomas B. Griffith and Brett M. Kavanaugh for the court's two remaining vacancies, but the Senate has yet to schedule votes. In an unsuccessful appeal to moderate Republicans, Minority Leader Harry M. Reid (D-Nev.) said in a Senate speech that Brown "has repeatedly assailed protections for the elderly, for workers, for the environment and for victims of racial discrimination. If confirmed today, she will be newly empowered to destroy those protections" because the D.C. Circuit "has special jurisdiction over protections for the environment, consumers, workers and women."

But Majority Leader Bill Frist (R-Tenn.) called Brown "a superb judge" who has been subjected to "harsh and, I believe, unfair attacks." Judiciary Committee Chairman Arlen Specter (R-Pa.) said Brown "has made undiplomatic statements, but she's not in the State Department." He called her "worthy of confirmation."

Brown's biography and judicial record gave both parties ample grist for the 50 hours of debate that senators devoted to her, dating to 2003, when Republicans first failed to muster the 60 votes needed to end debate on her nomination. Supporters repeatedly noted that she is an African American who grew up in segregated Alabama and raised a child as she worked her way through law school. Her status as a sharecropper's daughter was cited so many times that Specter simply mentioned "sharecropper's" near the end of yesterday's debate, and everyone seemed to know what he meant.

Opponents focused on Brown's stinging critiques of government programs, including those designed to help low-income Americans. She once called a landmark 1937 court decision allowing federal regulation of workplace conditions "the triumph of our own socialist revolution." She wrote that "where government moves in, community retreats and civil society disintegrates. . . . The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." In a speech, she said, "If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy -- a license to steal, a warrant for oppression."

Several Democrats noted that in a dissenting opinion in California, Brown wrote, "We cannot simply cloak ourselves in the doctrine of stare decisis, " the Latin term for the principle that courts should follow precedent decisions. "She is the epitome of an activist judge," Reid said, needling conservatives who long have decried "judicial activism." Brown "is a judge; she is not a legislator," Reid said. "She has no right to do the things that she does."

Sen. Orrin G. Hatch (R-Utah) strongly defended Brown and denounced Democrats for targeting conservatives with "strongly held personal beliefs." He said Brown, "an eminently qualified jurist, was one of the primary targets of this radical strategy. For a few thought-provoking speeches that she had given, some have tried to label her too extreme for the bench."

Marcia D. Greenberger, head of the liberal National Women's Law Center, said the Bush administration "is one judge closer to its goal of stacking the federal courts with judges more true to ideology than established law."

The D.C. Circuit's Republican-appointed judges are Douglas H. Ginsburg, David B. Sentelle, Karen LeCraft Henderson, A. Raymond Randolph and John G. Roberts. The Democratic-named judges are Harry T. Edwards, Judith W. Rogers, David S. Tatel and Merrick B. Garland.

George Washington University law professor Jeffrey Rosen, who once clerked on the court, said, "The conventional wisdom is the D.C. Circuit is evenly split now" between Republican and Democratic influences, but the continued role of three GOP-appointed "senior judges" tilts it more to the right. The confirmation of Brown will further that tilt, he said.

"In recent years, it has been a remarkably collegial court," Rosen said. "If Janice Rogers Brown or Thomas Griffith comes in and attempts to be a potential bomb-thrower, they might not find a very warm reception on either the left or the right."

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