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Janice Rogers Brown, America's Most Libertarian Federal Judge, Is Retiring

The possible replacements include Texas Supreme Court Justice Don Willett.

U.S. Court of Appeals for the D.C. CircuitU.S. Court of Appeals for the D.C. CircuitPresident Donald Trump will soon have the opportunity to fill a key vacancy on the federal bench. As The Wall Street Journal and Buzzfeed have reported, Janice Rogers Brown, an outspoken federal judge with strong libertarian tendencies, will retire next month after serving 12 years on the U.S. Court of Appeals for the District of Columbia Circuit.

A former California Supreme Court justice, Brown was first nominated to the federal judiciary in 2003 by President George W. Bush, but Senate Democrats repeatedly blocked her confirmation. She was eventually confirmed in 2005.

During her tenure on the D.C. Circuit, Brown emerged as a powerful voice in defense of civil and economic liberties. In the 2015 case of United States v. Gross, for example, Brown filed a sharp dissent lambasting the pro-police "prevailing orthodoxy" in Fourth Amendment cases. The right to be free from unreasonable search and seizure, Brown maintained, should clearly forbid law enforcement from conducting "a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects." Yet somehow "our case law considers such a policy consistent with the Fourth Amendment." Brown disagreed: "I continue to think this [case law] is error."

Brown has been equally critical of government malfeasance in the economic realm. In the 2012 case of Hettinga v. United States, for instance, Brown came out swinging against the Supreme Court case law that left the D.C. Circuit with no choice but to uphold a federal price-rigging scheme that made it illegal for an upstart family dairy farm to bottle and sell its own milk for 20 cents less than the competition. This case "reveals an ugly truth," Brown wrote. "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. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s."

Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama. In 2005, then-Sen. Obama voted against Brown's confirmation to the D.C. Circuit because he disliked her views on economic liberty and the Constitution. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said, referring to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state economic regulation because it served no legitimate health or safety purpose and thus violated the 14th Amendment. As it happens, Obama is the one who is wrong about Lochner.

The news of Brown's retirement has already prompted speculation and debate about her possible replacement. At The Volokh Conspiracy, Case Western law professor Jonathan Adler suggests that the Trump administration may want "to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit." That logjam, which has been extensively covered and analyzed by David Lat at Above the Law, boils down to this: There are currently two Texas openings on the 5th Circuit and three real contenders in the running. Each contender has the support of powerful political figures in Texas.

One of the three contenders is Texas Supreme Court Justice Don Willett. Because Willett recently appeared on Donald Trump's Supreme Court shortlist, he would seem to be a natural pick for the 5th Circuit. But Texas politics have so far apparently prevented any 5th Circuit nominees from being named. The solution now proffered by Adler is for Trump to nominate Willett (or one of the other two) to the D.C. Circuit and thus make federal appellate judges out of all three in one swoop.

Hugh Hewitt, the conservative talk radio host and influential political pundit, is now pushing this very plan. "The retirement of Judge Janice Rogers Brown solves 5th logjam problem. @JusticeWillett to D.C. Circuit," Hewitt recently tweeted.

Nominating Willett to the D.C. Circuit does make sense. Besides breaking the "logjam," it would replace the liberty-minded Brown with the liberty-minded Willett. Much like Brown, Willett is famous for his judicial benchslaps against both overreaching law enforcement and against overreaching government regulators.

If the White House is looking for a fitting replacement for Janice Rogers Brown on the D.C. Circuit, Don Willett would appear to be it.

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  • The Last American Hero||

    It is a sad day for freedom.

  • Bubba Jones||

    Maybe. If all three candidates for the 5th circuit are qualified, this might be an opportune time to replace her with someone like minded.

  • Fuck You - Cut Spending||

    The only time Obama bothered to vote on anything as a Senator was to fuck over the citizens.

  • Fist of Etiquette||

    Just like a libertarian, too lazy to stay at it and see it through.

  • Diane Reynolds (Paul.)||

    Meh.

  • Dillinger||

    >>>Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama.

    Trophy. Shame she's leaving.

  • Citizen X - #6||

    Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama. In 2005, then-Sen. Obama voted against Brown's confirmation

    Christ, what an asshole. He couldn't just vote "present" like he did on everything else?

  • Diane Reynolds (Paul.)||

    We're talking about people... making their own decisions, spending their money as they see fit. That can't stand.

  • UVaGrad||

    Is Brown retiring, or just taking senior status?

  • Uncle Jay||

    RE: Janice Rogers Brown, America's Most Libertarian Federal Judge, Is Retiring

    "Janice Rogers Brown, an outspoken federal judge with strong libertarian tendencies, will retire next month after serving 12 years on the U.S. Court of Appeals for the District of Columbia Circuit."

    Well, you can cross her off the list of SCOTUS nominees.
    Trump would never allow anyone with libertarian tendencies and beliefs on his court.

  • colorblindkid||

    Gorsuch isn't terrible.

  • buybuydandavis||

    Well, you can cross her off the list of SCOTUS nominees.

    Don't see why. Should be easier all around if she doesn't have a current position.

    The thing is, she's probably older than they would want to pick. Around 68. Gorsuch is 49.

    Looking at the list, they all seem 50 and less.

    Donald_Trump_Supreme_Court_candidates

  • colorblindkid||

    I knew it was never going to happen, but I always had a little hope Trump would nominate her to the Supreme Court, just to watch the Democrats twist themselves into knots trying to block the first black woman on the court.

  • Number 7||

    Yeah, that saved all of us from the horrible Atticus Thomas witness coming in late to inform us that she joked about pubic hairs on Pepsis. "We believe you Atticus" stickers everywhere.

  • nicmart||

    Don't hope for much. Ginsburg, Thomas, and Kozinski have been disappointments. Clint Bolick is a future hope.

  • nicmart||

    Thanks to autocorrect for misspelling Kozinski.

  • John C. Randolph||

    Senate Democrats repeatedly blocked her confirmation

    Of course they did. She's a black woman, and the spirt of George Wallace and Strom Thurmond built the Democratic Party.

    -jcr

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