Above the Law 8 Janice Rogers Brown.JPG
“I wouldn’t call Harry Edwards a ‘judicial divo,’ per se. He’s just really irritable, that’s all.”
This is a continuation of our earlier post about a luncheon talk by the fantabulous Judge Janice Rogers Brown. Judge Brown sits on the D.C. Circuit, the most prestigious appellate court in the country after the U.S. Supreme Court (which she may someday join). She spoke recently before the Federalist Society in Washington, a group that she said she “always enjoys spending time with — despite all the trouble it gets [her] into.”
Discussion and pictures, after the jump.


We were very, very impressed with Judge Brown. We went in with high expectations, but she lived up to the hype.
Judge Brown’s presentation was excellent, both in terms of style and substance. On the former, we’ll get in trouble for this, but we found her to be quite quite articulate. We wouldn’t go so far as to call her “eloquent”; but she’s definitely and conspicuously more well-spoken than the average person, or even the average lawyer. Hence our use of the term “articulate.” Eat your heart out, Lynette Clemetson.
JRB’s delivery was smooth and soothing, in the manner of a newscaster. This set up an interesting contrast between her remarks, which were daring and bold, and the manner in which they were delivered, which was polished yet mellow.
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The audience listened with rapt attention — except for this guy, whose mind was clearly elsewhere. What are you looking at, buster?
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Judge Brown’s talk focused on the (admittedly immense) topic of freedom, with an emphasis upon strong private property rights and limited government. These are subjects that she has addressed in the past on many occasions.
She opened by noting that when she hears the high note of the Star-Spangled Banner, she feels it “viscerally” — “a response in blood and bone and sinew.” Nice turn of phrase.
Judge Brown then turned her attention to justifications given for political freedom over the centuries. She ranged widely over the realm of political theory, discussing thinkers such as Locke, De Tocqueville, Leo Strauss, and some Japanese political theorist we hadn’t heard of.
JRB is clearly a “heavy duty thinker,” a la Justice Antonin Scalia. If appointed to the Court, she would not be content to simply frolic within the federal statutory interstices. She would not be a “journeyman justice” or an Article III bureaucrat, Rather, she would articulate a compelling and coherent vision of the U.S. Constitution and its proper interpretation — like Justice Scalia.
Judge Brown focused in particular upon private property, which she views as being essential to the guarantee of political freedom. She traced evolving attitudes towards property, from the time of the Framers to the present. She drew upon the thinking of a diverse range of intellects, not just political philosophers. Shout-outs were made to Samuel Taylor Coleridge, the poet; E.O. Wilson, the biologist; and — the Dems on the Senate Judiciary Committee will LOVE this — Ayn Rand.
(If JRB gets nominated to the Court, expect SJC staffers to be forced to comb through Rand’s entire oeuvre. Then look for Senators Kennedy and Schumer to read selected passages to Judge Brown at her hearings, and ask her if she agrees with them. Jeez.)
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Judge Brown struck us as “professorial” — and we mean this in a good way. Whose eyes but those of a law professor would light up when discussing West Coast Hotel v. Parrish?
As she cited various thinkers, she would go off on brief digressions about them (e.g., discussing Coleridge’s opium addiction). JRB is a genuine intellectual, with a true love for both the law and learning more generally.
While we would describe her as articulate rather than eloquent, Judge Brown did offer some good turns of phrase. In addition to the ones previously noted, we liked these quips:

1. “The administrative state faces an insurmountable hurdle: incompetence.”

2. (paraphrased, but we liked the part in quotes) Our political system is one of “competitive bidding for consent,” which results in excessive government and redistribution of wealth.

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The question and answer session was interesting. Judge Brown answered questions rather directly, and in refreshingly succinct fashion, which allowed many questions to get posed. She is NOT one of those speakers who rambles on just because she likes the sound of her own voice.
In response to one question, concerning why she’s so opposed to big government, she gave this great quote:

“As the descendant of slaves, I have an aversion to slavery that’s encoded in my DNA.”

We would LOVE to see her say that to Senator Ted Kennedy, on national television.
Also in response to similar questioning:

“Freedom is HARD. There’s a tug back to a cosmological view, a tribal view, a return to the womb — a sense that ‘I don’t have to be responsible for my own failures’ [but can depend upon somebody else].”

WOW. Judge Brown doesn’t pull her punches. Despite her remarkable life story — daughter of sharecroppers, California Supreme Court, D.C. Circuit — getting her confirmed to the Supreme Court could be tough, given all the controversial things she has said over the years.
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As we discussed previously, during the Q-and-A session we got the chance to address Judge Brown. We stood up and asked her this rambling collection of questions (to some laughter from the audience):

“Judge Brown, I am a HUGE fan of yours. I think you’re just fantastic! Your remarks today were a devastating critique of the administrative state.”

“And yet, despite that, here you are on the DC CIRCUIT — which specializes in administrative law. How have you been finding your time on that court?”

“Do you wish you were back on the California Supreme Court sometimes? You’re this fabulous judicial diva. Does being on the D.C. Circuit cramp your style?”

After pausing to give us a look questioning our sanity, Judge Brown proceeded to answer our questions, quite nicely.
On the first, she described her time on the D.C. Circuit as “interesting.” She noted that, given her pre-D.C. Circuit career and “the type of law [the Court] focuses on,” sometimes she feels like the “odd fellow out.”
We read this as:

“I’m bored out of my mind. But for a potential Supreme Court nominee like me, boring is good! It keeps me out of trouble and away from hot-button issues. Dodging controversy would have been much more difficult had I been on, say, the Ninth Circuit — which confronts them all the time.”

On the second, she gave an unadorned but emphatic answer: “I do NOT wish I were back on the California Supreme Court.” No explanation; but her manner of delivery spoke volumes.
Finally, with respect to our “judicial diva” question, she declared:

“I have NEVER thought of myself as a diva. That’s an interesting formulation.”

Judge Brown described a formulation of ours as “interesting.” O happy day!
Also thrilling: after the talk, we spoke with Judge Brown briefly. We even got her to autograph our notepad! She resisted at first, but we wouldn’t take no for an answer. We insisted, despite her polite demurral: “Please, Judge Brown — you could be on the Supreme Court someday!”
We also had this thought, which we didn’t share with Judge Brown: “And if you do get confirmed to the Court, who knows how much your signature might be worth on eBay!”
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“Doug, this is too much… An engraved copy of the Reader’s Digest Illustrated Book of Cats? You shouldn’t have!”
Calendar of Lawyer Division Events [Federalist Society]
Fili-BUSTED! Magnificent Judicial Divas [UTR]
Earlier: Dining With the Diva: Lunch with Judge Janice Rogers Brown (Part 1)
Janice Rogers Brown: Methinks the Diva Doth Protest Too Much


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