Brown Reportedly to Be Named to D.C. Circuit by Bush

Friday, July 18, 2003

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Brown Reportedly to Be Named to D.C. Circuit by Bush

By a METNEWS Staff Writer

President Bush plans to nominate state Supreme Court Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, the Washington Post reported yesterday.

The newspaper cited “Republican sources familiar with the Bush administration’s judicial nominations process” who said the conservative Brown, 54, is already undergoing a background check.

A spokesperson for Brown told the METNEWS yesterday the justice was out of the state and would not be making any comment on the report.

If nominated and confirmed she would become the second African American woman on the court, joining Clinton appointee Judith W. Rogers. Brown was elevated to the state high court in 1996 by Gov. Pete Wilson from the Third District Court of Appeal.

There are nine current judges—five Republican appointees and four Democratic appointeesóand three vacancies on the court. The vacancies were created by the retirement of Judge Patricia M. Wald in 1999 and Judges Laurence H. Silberman and Stephen F. Williams taking senior status in 2000 and 2001, respectively.

Former Deputy Solicitor General John G. Roberts was confirmed by the Senate to the circuit in May, but the nomination of Washington lawyer Miguel A. Estrada to Wald’s seat is the subject of an ongoing filibuster by Senate Democrats. Republicans have tried several times to end debate on the nomination, but have only gained four Democratic votes, leaving them five votes short of the 60 needed to invoke cloture.

Reports that Bush plans to nominate White House aide Brett M. Kavanaugh to the court have drawn promises of opposition from Democrats and liberal groups, and Brown’s nomination could become a battleground as well. But opposition to Brown could be complicated by reluctance to block her from becoming one of just a handful of black women on the federal appellate bench.

Brown has been frequently mentioned as a possible candidate for the U.S. Supreme Court, should a vacancy occur, and appointment to the D.C. Circuit is widely regarded as a stepping stone to the nation’s high court. U.S. Supreme Court Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg all served on the D.C. Circuit.

A graduate of UCLA Law School, Brown was born in Alabama. Her father was in the Air Force and the family moved to Sacramento in 1964.

She served as a deputy attorney general and as a top legal adviser to Wilson before he appointed her to the appellate bench in 1994.

Los Angeles appellate attorney Bruce Adelstein told the METNEWS Brown’s opinions on the state high court had earned a reputation as someone with a mind of her own.

“I think she’s smart and a bold thinker,” Adelstein commented. “I think she’s been a good justice on the state Supreme Court and would be a good judge on the D.C. Circuit, if that’s true.”

Loyola Law School Assistant Dean Laurie Levenson said she expected that any confirmation hearing for Brown would include questions about her dissent in In re John Z., a January case in which the justices ruled 6-1 that consent is not a defense to a charge of forcible rape if the accused persists following the withdrawal of that consent. Brown wrote that the victim’s withdrawal of consent was ambiguous, saying the rapist may have “misinterpreted” her “silent and ineffectual movements” and understood her words “as requests for reassurance or demands for speed.”

If the dissent is seen as expressing the notion that it is “expecting too much of a defendant to stop in mid-act,î it may prove controversial, the former federal prosecutor predicted.

Brown dissented in 1997 when the Supreme Court, by a 4-3 margin, struck down a state law barring abortions without parental consent for girls younger than 18, calling the court’s ruling an instance of “judicial activism.”

Three years ago she wrote the court’s majority opinion invalidating a San Jose minority contractor plan, saying it violated Proposition 209, the 1996 initiative banning racial preferences. And she has consistently sided with property owners challenging various forms of government regulation under the Fifth Amendment Takings Clause.

But Brown, who has been described by commentators as a libertarian, has not always sided with the court’s other conservatives. In 1999, she dissented from a ruling that allowed evidence obtained in a warrantless search of a probationer’s residence to be used to convict the probationer’s roommates.