Editorials and Opinion
Broken Circuit: Obstructionism in the Environment’s Most Important Court (Environmental Forum, 05/01/13)
Doug Kendall and Simon Lazarus: "the D.C.
Circuit’s conservatives, particularly its farthest-right new members, Kavanaugh and Brown, may be responding to the signals sent by their allies on the Supreme Court ...Several recent decisions evince an uptick in the D.C. Circuit conservatives’ willingness to imperil major regulatory initiatives, and even undermine the institutional capacity of agencies to function ... There remain four vacancies on the D.C. Circuit. Protracted struggle will determine how many of those seats President Obama fills in the nearly four years remaining in his second term."
Of Judges and Judging (New York Times, 04/17/13)
Linda Greenhouse Opinionator blog: "The Senate Republican minority conducted an outrageous filibuster that killed the nomination of Caitlin Halligan ... To say that the D.C. Circuit has been a political football in recent years is an understatement. In 1999, when President Bill Clinton named Elena Kagan to the appeals court, where she would have been the 11th judge, the Republican-controlled Senate refused to give her a hearing, on the ground that the court’s workload didn’t justify filling that vacancy. But four years later, the Senate had no such compunctions about confirming Janice Rogers Brown, President George W. Bush’s nominee to that seat, even though the court’s workload had actually declined in the interval. Senator Grassley may or may not know his history, but no one can say he doesn’t know his politics."
Grassley Proposes Eliminating 3 Seats On Powerful Court To Keep Obama From Filling Them (Think Progress, 04/10/13)
Ian Millhiser: "Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges)....In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventhactive judge on the DC Circuit at the time of his confirmation. Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible."
Majority Leader Reid Threatens Second Round Of Filibuster Reform (Think Progress, 04/08/13)
Ian Millhiser: the ultimate test is whether he and 50 of his Senate colleagues have the resolve to actually pull the trigger on rules changes if Senate Republicans continue to erect barriers to judicial confirmation.... President Obama has never nominated anyone as far to the left as Judge Brown is to the right"
Another Court Nominee Down: What were the "extraordinary circumstances" preventing Caitlin Halligan from being confirmed? (American Prospect, 03/24/13)
SCOTT LEMIEUX: "The filibustering of Halligan is striking, even in the context of an utterly dysfunctional Senate, for two reasons. First, Halligan is a mainstream nominee, with broad support for her credentials and temperament from across the political spectrum. And second, Obama is the first president in at least 50 years not to get a single nominee confirmed to the D.C. Circuit, despite a relatively large number of vacancies. Obama isn't packing the court or looking to staff it with radical liberals, and yet a minority in the Senate is preventing him from replacing a seat that has been vacant for seven years and counting.... The filibustering of Halligan is even more remarkable when you consider who has been confirmed to sit in the court. ... Janice Rogers Brown. Brown is a radical reactionary, a true believer in the strain of Republican thought that would reduce the federal government to its 19th century scope (although this scope wasn't even adequate for the problems of the nineteenth century.)"
Ruling ensures minority tyranny (Politico, 03/12/13)
Prof. Herman Schwartz: "In January, judges on the U.S. Court of Appeals for the District of Columbia virtually eliminated the power given presidents by the Constitution to make recess appointments when Congress is not in session.
Ignoring approximately 200 years of practice and explicit approval by presidents, the Senate and three other appellate courts, Chief Judge David Sentelle, and Judges Karen LeCraft Henderson and Thomas Griffith ruled that a president can make recess appointments only during the recesses at the end of the year ... The decision provides a judicial backstop for minority obstructionism, for it shuts down one of the few ways a president can fully staff his administration, even if with only temporary appointments. ... This decision does not come as a complete surprise. In an opinion last April involving a milk price regulatory system created in 1933, Sentelle and Judge Janice Rogers Brown condemned virtually all legislation regulating the economy as an unconstitutional infringement on economic liberty to satisfy “the public appetite for other people’s money.”
They are not alone on that court in their views. Until February, when Sentelle retired, the nine active and four senior judges included nine Republican appointees, most of them from the far right of the political spectrum. These judges have made the court into a killing field for efforts to regulate the economy, engaging in what Washington Post columnist Steve Pearlstein has called a “judicial jihad.” ...With Sentelle’s retirement, there are four active GOP-appointed judges and three Democratic appointees, leaving four vacancies."
Filibuster Reform is Not the Big Story for the DC Circuit Court (Washington Monthly, 03/09/13)
Ryan Cooper: "This is the critical issue when it comes to the DC Circuit Court. They have jurisdiction over the regulatory agencies, and the current conservative majority has become the key instrument in obstructing regulatory reform, especially Dodd-Frank. This was the focus of Haley Edwards’ blockbuster story in our latest issue:... And the behavior of these conservative jurists has become aggressively hackish ... this is the same court that just completely eviscerated the President’s power to make recess appointments (pending a Supreme Court decision).... if Dodd Frank and the rest of President Obama’s big first term achievements are to avoid being pecked to death, Democrats must fill those empty seats on the DC Circuit. That is the background reality that informs all this discussion about filibuster reform and the federal judiciary."
D.C. Circuit Denies Rehearing in Endangerment Case (Legal Planet: The Environmental Law & Policy Blog, 12/20/12)
Dan Farber: Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. Today, the full court denied rehearing to the three-judge panel’s decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court. ... neither dissent questioned the scientific basis for EPA’s finding. ... Judge Brown offers a lengthy argument that the Supreme Court’s decision in the Massachusetts v. EPA was wrong. She seems to have failed to notice that six Justices reaffirmed Massachusetts v. EPA in a later decision, American Electric Power v. Connecticut.
How George W. Bush Is Still Killing Environmental Protection Four Years Later (Think Progress, 10/17/12)
Ian Millhiser: Judge Kavanaugh was appointed to the DC Circuit by President Bush ... Republicans fought hard to stack this court with some of the most consistently ideological judges in the country, and President Obama and his allies have not met this effort with equal force. . His first nominee to the court, a brilliant former Supreme Court clerk named Caitlin Halligan fell victim to a Senate Republican filibuster despite the fact that her opponents have struggled to articulate a case against her.
The judicial jihad against the regulatory state (Washington Post, 10/14/12)
Steven Pearlstein column: And then there’s the business community’s penchant for whining about “regulatory uncertainty” while spending tens of millions more to mount legal challenges to every new regulation ...The dirty little secret is that dysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. ... Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies. Their latest salvo came just before Labor Day, when a divided three-judge panel threw out rules requiring states to control the air pollution that wafts over their borders into other states. ... This is precisely the kind of “judicial engagement” that we have come to expect from Kavanaugh,...In [another] case, Judge Janice Rogers Brown, another Federalist Society libertarian, declared that the public health experts at the FDA were simply wrong in concluding that graphic warnings would have some additional impact.
As Wall Street Fights Regulation, It Has Backup on the Bench [D.C. Circuit] (New York Times, 09/24/12)
Ben Protess column: the financial industry is racing to fill the docket of its favorite court. The latest legal attacks are largely aimed at the Securities and Exchange Commission. The United States Court of Appeals for the District of Columbia last year struck down the agency’s so-called proxy access rule .... The rulings also coincided with a conservative makeover of the court. Of the court’s 13 members, nine are Republican presidential appointees. George W. Bush selected four judges, including Brett Kavanaugh, who advised Mr. Bush on the 2000 election recount in Florida. The court has three vacancies, but none of President Obama’s picks have received Congressional approval. “There’s very little true resistance to the conservative power of the court,” said Thomas C. Goldstein
Our youth have a right to the truth about smoking (Staten Island Advance [NY] , 09/05/12)
Barbara P. Sullivan Letter to the Editor: "on Aug. 24, a U.S. appeals court upheld a lower court ruling that blocks the federal government from requiring graphic anti-smoking images on cigarette packaging, saying this would violate tobacco companies’ First Amendment right to free speech. ... To counteract tobacco companies’ seductive messages that target youth in point-of-sale advertising and film and TV product placement, we need graphic depictions of the negative health consequences of tobacco use. Don’t American youth have a right to the truth?
Does Cigarette Marketing Count as Free Speech? Dispatch from First-Amendment Fantasyland: The D.C. Circuit Court dismisses Congress's anti-smoking warning labels as "ideology." (Atlantic, 08/29/12)
Garrett Epps: "If there is no such "substantial interest," of course, then no government warnings can be required. What is terrifying is not just the radical nature of the statement: that government can do nothing to combat the single greatest public health threat of our time. The hidden message of the opinion -- a message correctly deduced from much of the Roberts Court's First Amendment jurisprudence -- is that the Constitution requires us to live in a make-believe world, where, for example, gross imbalances of wealth have no effect on political campaigns, and "smoking isn't addictive" is as protected as "I pledge allegiance to the flag." I yield to no one in my devotion to free speech. But a legal system that can't differentiate between political opinion and the sale of cigarettes has forfeited any claim to relevance to the nation it supposedly serves."
Inquirer Editorial: Smoking warning labels will help save lives (Philadelphia Inquirer [PA], 08/29/12)
"In a split ruling that accorded Big Tobacco little-deserved deference, a federal appeals court in Washington last week struck down the Food and Drug Administration's bold and sensible plan to require graphic warnings about the dangers of smoking on cigarette packs.... a different appeals court earlier ruled the labels are OK, which leaves it to the Supreme Court to resolve this issue. It should put public health ahead of tobacco profits.... As for the notion that tobacco companies' free-speech rights would be trampled by new labeling, that's laughable. For decades, this industry was free to mislead consumers on tobacco's killing potential - as well as launch cynical pitches to lure teens. From that perspective, the label mandate stands as a legitimate bid for equal time to alert consumers to the true dangers of smoking and chewing tobacco."
Free speech for cigarettes (Daily Kos, 08/29/12)
Jen Sorensen: [CLICK TO SEE CARTOON] so according to this 2-1 appeals court ruling, speech added to cigarette packaging limits speech. I guess the "individual liberties" of li'l old corporate persons like RJ Reynolds outweigh a democratically-elected government's right to add a message on behalf of the public interest. Never mind that we're talking about the packaging of a deadly commercial product with a history of being marketed to kids. Actually showing a kid being harmed on the package would interfere with whatever those Marlboros are trying to express.... Judge Janice Rogers Brown, the author of the majority opinion, was one of the radical George W. Bush appointees whom the Dems tried to filibuster, until the Gang of 14 came along and opened the floodgates of nutballery. She's an extreme libertarian who invokes Ayn Rand in speeches to the Federalist Society, and calls government a "leviathan" prone to "crushing everything in its path."
Editorial: ‘Warning: Smoking Can Kill You’ (New York Times, 08/28/12)
"The United States Court of Appeals for the District of Columbia, in a 2-to-1 ruling last week, struck down the new warnings on the grounds that they violated the First Amendment rights of the tobacco companies. It ruled that the government failed to provide evidence that the warnings would reduce smoking rates, and therefore could not justify what it called a restraint on corporate free speech. But this view ignores that these companies have spent billions of dollars over many decades misleading consumers about smoking’s terrible consequences, and that the warnings require companies to disclose accurate information. As Judge Judith Rogers noted in dissent, there is good evidence that bolder warnings will “alleviate” some of the harm. ... In March, the Court of Appeals for the Sixth Circuit, in a related case, disagreed with the majority in the District of Columbia Circuit, upholding the new warnings. There is now an important conflict to resolve in the federal circuits about the labeling requirement. The government should seek review of this ruling, and either the full District of Columbia court or the Supreme Court should uphold the law."
Cigarette labels: Supreme Court could make the call (Seattle Times [WA] , 08/27/12)
John B. Saul: "Those are good reasons for allowing the gruesome pictures on cigarette packages. Free speech is essential to U.S. democracy, but warning labels are required on drugs and many other products. This is a logical extension of that."
Bloggers from bench hurt judiciary (Politico, 07/09/12)
JEFFREY ROSEN, Opinion: "The Rush Limbaugh of the federal appellate bench is Judge Janice Rogers Brown of the D.C. Circuit. In an April opinion, Brown contemptuously dismissed more than 70 years of Supreme Court precedents requiring courts to defer to legislatures in matters involving economic regulation. Brown’s opinion was striking not only for its assertiveness in demanding that the Supreme Court reverse itself, but also for its incendiary, pundit-like rhetoric. Brown quoted the Hungarian anarchist Anthony De Jasay for the proposition that civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” She declared that “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers.” She added that the courts “have been negotiating the terms of surrender since the 1930s.” Then she concluded that deferential judicial review of economic regulations means “property is at the mercy of the pillagers.”"
Right-Wing Blogger Covers Up GOP's Historic Obstruction Of Obama Judicial Nominees (Media Matters for America, 06/22/12)
Adam Shah: "National Review Online blogger Ed Whelan is trying to aid the unprecedented obstruction tactics Senate Republicans are using to block President Obama's nominees.... it would have been impossible for the ABA to send a "similar letter" on behalf of President George W. Bush's judicial nominees, because Bush's judicial nominees were not subject to the type of obstruction experienced by the Obama nominees in question."
Obamacare isn’t the only target of conservative judges. (The New Republic, 05/04/12)
Jeffrey Rosen: "one of the D.C. Circuit’s judges, Janice Rogers Brown, issued a remarkable opinion in the case, making clear that she vehemently disagreed with the majority’s presumptions. The opinion was notable not only for its anti-statist editorializing, but also because it suggests that the Affordable Care Act will be far from the last federal regulation to be threatened by conservative judicial activism.... made clear her disagreement with the past 75 years of Supreme Court cases directing judges to defer to Congress and the executive branch on economic regulation.... Brown was calling into question “broad-based entitlements,” such as Social Security and Medicare, and the “licensing restrictions” at the heart of regulations passed by the Federal Communications Commission and the Environmental Protection Agency. She concluded by citing Randy Barnett, the intellectual architect of the challenge to the health care mandate, and she reiterated that deferential review of economic regulations “means property is at the mercy of the pillagers.” Brown’s concurrence was joined by Judge David Sentelle, another pillar of the Constitution in Exile movement. But more surprising was the separate concurrence of Judge Thomas Griffith, considered to be the most moderate conservative on the panel. Griffith refused to join his colleague’s “spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty,” but not because he disagreed with it—he said he was “by no means unsympathetic to their criticism.” "
Startling Conservative Judicial Opinion Should Motivate Progressives (American Constitution Society Blog, 04/24/12)
Prof. Adam Winkler: "conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law. one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States.... Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments.... even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges,"
Radical Conservative Judges Assert ‘Economic Liberty’ Right (Winning Progressive, 04/19/12)
"Anyone who doubts the radicalism of current conservative legal theory need look no further than the concurring opinion offered by D.C. Circuit judges David Sentelle and Janice Rogers Brown last week in Hettinga v. United States.... Judges Sentelle and Brown launch into a blistering criticism of those “long-standing precedents” that harkens back to the days of Lochner v. New York, a case the Supreme Court decided on this date in 1905. ... The two judges reject New Deal-era cases that established the framework for economic regulation, ... What they don’t cite is any specific provision of the U.S. Constitution … because nothing in the Constitution supports their claim that ‘economic liberty’ should be “a fundamental constitutional right.” That may seem like an innocuous claim, but it is truly radical. In that view, property rights would stand on the same pedestal as freedom of speech or religion … exempt from regulation by majority rule unless a court finds a compelling government interest that cannot be served by any less intrusive means. This goes beyond the ‘Tenthers’ who argue for a more limited scope of federal government. If the U.S. Supreme Court adopted the view advocated by Judges Sentelle and Brown, state and local government would also be barred from regulating the “fundamental rights” of property and contracts. In other words, every zoning board decision, workplace safety rule, minimum wage and overtime law – anything a property or business owner claims infringes on his “economic liberty” – would be presumed unconstitutional … unless the state or federal government can pass the same level of strict scrutiny applied in First Amendment cases."
The Supreme Court’s Bad Precedent: Conservative judges increasingly feel free to inject ideology into their decisions. Don’t just look at what they say, but how they say it. (Slate.com, 04/18/12)
Dahlia Lithwick: Judge Janice Rogers "Brown’s opinion in this week’s Hettinga v. United States follows many of these same rhetorical pathways, calling on the U.S. Supreme Court to revisit its decades-old economic liberty jurisprudence, and put courts back in the business of regulating economic freedom as a “fundamental right.” ...whatever the Supreme Court’s decision regarding Obamacare in June, the net effect of the case has been to illustrate how dramatically the nation’s federal courts have shifted to the right. This shift isn’t evident only in terms of the judiciary’s willingness to embrace long-dormant libertarian ideas, but also in its willingness to wholeheartedly adopt the political language and tone in which these ideas are packaged. Liberals who don’t think of the courts as a political issue should read Judge Brown’s concurrence closely"
What a Conservative Judicial Revolution Looks Like (Huffington Post, 04/17/12)
Doug Kendall: " That was the message of a remarkable concurring opinion issued last Friday by D.C. Circuit Judge Janice Rogers Brown, an appointee of President George W. Bush, and Judge David Sentelle, a Reagan appointee. The opinion accuses the Supreme Court of "abdicat[ing] its constitutional responsibility to protect economic liberty completely" and suggests that economic liberties should be recognized as a fundamental constitutional right ... She accuses judges who refuse to trump the decisions of the political branches of leaving property "to the mercy of the pillagers." Wow. This is Lochner on steroids, ... She was put on the D.C. Circuit to play the role of judicial provocateur. As I wrote in the Washington Post eight years ago when her nomination to the D.C. Circuit was pending in the Senate, Brown, then a Justice on the California Supreme Court, was the only judge in America at that point who openly yearned for a return to Lochner."
Dicta or Diatribe? Appellate Judge Writes Opinion Denouncing Limits on “Cowboy Capitalism” (Res ipsa loquitur (”The thing itself speaks”) blog, 04/17/12)
Prof. Jonathan Turley: "D.C. Circuit Judge Janice Rogers Brown has long been controversial ... Now Brown has used an opinion to denounce “powerful groups” and courts for limiting “Cowboy capitalism” that she says has been “disarmed” in America. The diatribe came in Hettinga v. United States,... I do not see how this statement falls within any reasonable view of appropriate judicial opinion writing. It is less dicta than diatribe."
Bush-Appointed Judge Does the Full Lochner (American Prospect, 04/17/12)
Scott Lemieux: "Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise. In a recent concurrence, Brown lamented the fact that the courts no longer arbitrarily substitute their judgment about economic regulations for that of legislatures ... Brown argues that vaguely defined "economic rights" should be "fundamental"—language that implies that, like racial classifications, any economic regulation should be preemptively unconstitutional. And yet, her opinion also reminds us why the Lochner era has been so widely discredited. Most importantly, she fails to cite any specific constitutional provision that would be violated by the economic regulations she dislikes on policy grounds"
Appeals Court Judges Think All Economic Regulation Should Be Unconstitutional (Firedoglake, 04/16/12)
David Dayen: "DC Circuit Court members David Sentelle (a Reagan appointee) and Janice Rogers Brown (an appointee of George W. Bush) wrote a concurring opinion in a case about regulation for the dairy industry, one that would rewrite several decades of legal history on the legislative powers of Congress.... This is a really radical vision for society, and an example of the rightward shift of the federal judiciary over the past several decades."
Two Federal Judges Suggest All Labor, Business or Wall Street Regulation Is Unconstitutional (Think Progress, 04/16/12)
Ian Millhiser: "While tenthers would all but eliminate our national leaders’ ability to solve national problems, they concede that state governments are still free to serve their citizens. Which is why a recent concurring opinion signed by U.S. Court of Appeals judges David Sentelle and Janice Rogers Brown is so disturbing. Under Sentelle and Brown’s vision, any attempt to protect workers, investors or consumers from unscrupulous businesses is in jeopardy.... Their opinion complains that “economic liberty [is] not a fundamental constitutional right.” “Fundamental rights” are the very most protected rights under the Constitution. The right to be free from race discrimination is a fundamental right.... their opinion laments that “economic legislation” as a whole is left to the people’s representatives and not to judges.... Yet for all the many, many laws they would strike down, for all the anarchy they would create by sweeping away literally centuries of regulation in a single constitutional whirlwind, one thing is conspicuously absent from Sentelle and Brown’s opinion. At no point do they cite a single word of the Constitution which supports their sweeping assault on America’s power to govern itself. This is not a coincidence. Those words do not exist."