Dining With a Diva: Lunch with Judge Janice Rogers Brown (Part 2)
"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.
The audience listened with rapt attention -- except for this guy, whose mind was clearly elsewhere. What are you looking at, buster?
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.)
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.
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.
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!"
"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
(12) 
Lat, you have got to be motherfucking kidding us with this post. JRB is a Christian fundamentalist. Period. She has publicly stated that she answers to an authority higher than the Constitution. That alone will preclude her from ever being on SCOTUS, as it should
Have you ever stopped for a moment, Lat, to consider what this woman thinks about you, and specifically about your sexual orientation? Do you think for one moment that she's on your side? If she had your way you would be in jail. End of story. Yet you exalt her. Why? Maybe next time you're at one of these dinners you should introduce yourself as a gay man, and see what your precious diva thinks about that.
I have no problem with gay Republicans, but no self-respecting gay man could possibly have any respect for this woman.
JRB: "We continue to chip away at the foundations of our success. We dismissed natural law and morality because its unverifiable judgments were deemed inferior to reason. . . . Only natural law offers an alternative to might makes right and accounts for man’s 'unrelenting quest to rise above the ‘letter of the law’ to the realm of the spirit.'"
Translation: I am a Christianist. If you ever put me on the Supreme Court, I will impose a Christianist agenda on the American people.
I agree with the first anonymous completely. Equating human bondage (a.k.a slavery) with "big government" is an insult to her foreparents.
Wasn't there a thread about this over at Volokh some time ago? Isn't JRB more of a libertarian than a social conservative?
Hasn't she ruled in favor of criminal defendants in several Fourth Amendment cases? If she rules for the criminals, surely she can rule for gay rights. Or at least understand why they'd like to keep their bedrooms private and off-limits to government.
Hey, David, JRB has said that permitting a gay person to adopt the biological child of his or her partner "trivializes family bonds." I hope you never want to have a family, because your beloved JRB would never let you. Maybe you could bring that up at the next party.
Lat - Your unbearably catty and witty cheerleading (read: apologist) powers just look pathetic in light of this post. We understand you harbor some strong views on the role of government, but something doesn't jibe when you are doing some good investigative and somewhat objective reporting on ABC and S&C and then turn around and write this near-solipsistic rant. Check yo'self.
Thanks for the post, David. I too like Judge Brown.
As to her critics: she has always been a textualist and a strong defender of the Constitution.
Some people, perhaps like David, may support gay rights legislation, but still recognize that there is no constitutional right to something like same sex marriage.
And you sound hysterical and foolish when you suggest she wants to throw gays in jail. Has she even uttered the term "gay" or "homosexual"? I doubt it's an issue for her. Get over the fact that not all gays kow tow to the left-wing agenda. I'm certainly speaking more broadly here, and not about Lat.
I completely respect gay people who are Republicans. They are not sell outs or anything like that. As far as I'm concerned there is nothing about being gay that requires one to be pro-choice, pro-environment, pro-union, etc. There is, however, something about being gay that requires one to be pro-gay. JRB is a religious fanatic, and religious fanatics are no friends of gays. Lat goes on and on about this woman who, in all likelihood, thinks he's subhuman because of his sexual orientation.
Adherence to natural law certainly does not mean "Christianist," although, to be honest, I have no idea what "Christianist" means. The founding fathers believed strongly in natural law and most of them were Deists.
JRB is staunch defender of the negative freedom to left alone by government, a government that serves us, rather than rules us. This is obviously threatening to those who wish to rule others as demonstrated by the posts above. Over and over, the statements her opponents tar as “extreme" echo those whose ideas shaped our country and our Constitution.
Janice Rogers Brown: “Where government advances—and it advances relentlessly—freedom is imperiled...When did government cease to be a necessary evil and become a goody bag to solve our private problems?”
Thomas Paine: “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”
George Mason: “Every society, all government, and every kind of civil compact therefore, is or ought to be, calculated for the general good and safety of the community. Every power, every authority vested in particular men is, or ought to be, ultimately directed at this sole end; and whenever any power or authority whatever extends further...than is in its nature necessary for these purposes, it may be called government, but it is in fact oppression.”
Thomas Jefferson: ‘What more is necessary to make us a happy and a prosperous people?...a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government...”
Janice Rogers Brown: “Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies.”
Thomas Paine: “Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices...The first is a patron, the last a punisher.”
Thomas Jefferson: “The right of self-government does not comprehend the government of others.”
George Washington: “It will be found an unjust and unwise jealousy to deprive a man of his natural liberty on the supposition that he may abuse it.”
Janice Rogers Brown: In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the ‘constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire’...he was simply wrong.”
Thomas Jefferson: “The legitimate powers of government extend to such acts only as are injurious to others.”
George Washington: “Liberty will find itself...where the Government... [will] maintain all in the secure and tranquil enjoyment of the rights of person and property.”
James Madison: “The real measure of the powers meant to be granted to Congress by the Constitution is to be sought in the specifications... not...with a latitude that, under the name or means for carrying into execution a limited Government, would transform it into a Government without limits.”
Janice Rogers Brown: “...collectivism was (and is) fundamentally incompatible with the vision that undergirded this country’s founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document...”
Patrick Henry: “...liberty ought to be the direct end of your government.”
Thomas Jefferson: “The true foundation of republican government is the equal right of every citizen in his person and property and in their management.”
Samuel Adams: “...it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential rights, or the means of preserving those rights. “
Janice Rogers Brown: “Protection of private property was a major casualty of the Revolution of 1937...Rights were reordered and property acquired a second class status. If the right asserted was economic, the court held the Legislature could do anything it pleased...Something new, called economic rights, began to supplant the old property rights...With the advent of ‘economic rights,’ the original meaning of rights was effectively destroyed. These new ‘rights’ imposed obligations, not limits, on the state. It thus became government’s job not to protect property but, rather, to regulate and distribute it.”
James Madison: “In a just and free government...the rights both of property and of persons ought to be effectually guarded.”
John Adams: “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”
Thomas Jefferson: “It [is]...ridiculous to suppose that a man had less rights in himself than one of his neighbors, or indeed all of them put together. This would be slavery, and not that liberty which the bill of rights has made inviolable, and for the preservation of which our government has been charged.”
Janice Rogers Brown: “Once again a majority of this court has proved that ‘if enough people get together and act in concert, they can take everything and not pay for it.’ But theft is theft. Theft is theft even when the government approves of the thievery...The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion.”
Thomas Jefferson: “To take from one...in order to spare to others...is to violate arbitrarily the first principle of association--the guarantee to every one of a free exercise of his industry and the fruits acquired by it.”
John Adams: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property...no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent...”
Janice Rogers Brown: We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws?”
Benjamin Franklin: “In free governments, the rulers are the servants and the people their superiors and sovereigns. “
Thomas Paine: “When I contemplate the natural dignity of man…I become irritated at the attempt to govern mankind by force and fraud, as if they were all knaves and fools…”
Thomas Jefferson: “...rightful liberty is unobstructed action according to our own will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”
Janice Rogers Brown: “If we are committed to a rule of law that applies equally to ‘minorities as well as majorities, to the poor as well as the rich,’ we cannot countenance standards that permit and encourage discriminatory enforcement.”
Benjamin Franklin: “An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to, and ought to enjoy...”
James Madison: “...it would be the interest of the majority in every community to despoil and enslave the minority of individuals...re-establishing, under another name and a more specious form, force as the measure of right...”
Thomas Jefferson: “...the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.”
Janice Rogers Brown: “Liberty was sacrificed for the common good, and eventually calcified into the tyranny of the State above all.”
George Washington: “It has always been my creed that we should not be left as an awful monument to prove, ‘that Mankind, under the most favorable circumstances, are unequal to the task of Governing themselves, and therefore made for a Master.’”
James Madison: “If Congress can employ money indefinitely...the powers of Congress would subvert the very foundation, the very nature of the limited government established by the people of America.”
Thomas Jefferson: “A sound spirit of legislation...banishing all arbitrary and unnecessary restraint on individual action, shall leave us free to do whatever does not violate the equal rights of another.”
First, Let Freedom Ring has too much time on em's hands.
Second, the guy not paying attention is Gregory Katsas, the Principal Deputy Associate Attorney General, formerly the DAAG in charge of civil appellate. He is a very, very, weird dude. And it's suprising he wasn't into JRB's speech -- he's usually very much into what right-wing nutjobs have to say.
Could sometime please point me to the anti-gay sentiments of JRB? I did a Google search of "Janice Rogers Brown" and "Gay Rights" and didn't find anything besides the interpretation of her views against granting any additional rights to "protected minorities" as "anti-gay." I found nothing about "sub-humans" or throwing gays in jail.
And the "trivializes family bonds" quote from 4:07 is completely bogus. In Sharon S. v. Superior Court, a convoluted case in which the biological mother and her partner broke up during the adoption proceedings and opposed each other in court, what Brown actually argued is that second-parent adoptions ought to require “a legal relationship between the birth and second parent,” or else it would “trivialize family bonds.” And, in fact, California’s 2001 law affords registered domestic partners the same streamlined adoption process as stepparents. What Brown was saying is that the state need not create another right to adopt for two individuals with no such legal bond.
"I completely respect gay people who are Republicans. They are not sell outs or anything like that. As far as I'm concerned there is nothing about being gay that requires one to be pro-choice, pro-environment, pro-union, etc. There is, however, something about being gay that requires one to be pro-gay. JRB is a religious fanatic, and religious fanatics are no friends of gays. Lat goes on and on about this woman who, in all likelihood, thinks he's subhuman because of his sexual orientation."
I appreciate the reasoned response. I would only say that even if you think all gays need to be "pro-gay" (whate about something like hate crime legislation, couldn't I be opposed to that on principle?), it is till prudent to ask whether the courts ought to be injecting themselves into these matters. Certainly legislatures can.