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."

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"

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."

He Who Makes the Rules: Barack Obama’s biggest second-term challenge isn’t guns or immigration. It’s saving his biggest first-term achievements, like the Dodd-Frank law, from being dismembered by lobbyists and conservative jurists in the shadowy, Byzantine “rule-making” process. (Washington Monthly, 03/01/13)
Haley Sweetland Edwards: "Part of the issue here is that the D.C. Circuit is packed high with conservative judges. Eight out of eleven on that bench were appointed by Republicans; despite four vacancies, Obama’s nominations have been stymied consistently by Republicans in Congress. The three-judge panel that decided Business Roundtable included two Reagan appointees, Judge Douglas Ginsburg and Chief Judge David Sentelle, a Jesse Helms protégé. ... The third judge was George W. Bush appointee and consummate Ayn Randian Janice Rogers Brown. All three have made a bit of a name for themselves over the years as conservative activists, unafraid to mold precedent to fit their ideological ends."

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.

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?

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."

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."

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.”"

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.” "

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."

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."

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"

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."