by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In a Daily Caller piece last week, Philip Hamburger asked, “If Jeff Sessions steps down as attorney general, who will replace him?” With the President’s recent announcement that Sessions has, indeed, stepped down, Hamburger’s question is no longer hypothetical. Which makes his answer that much more interesting:
[A]mong all the persons being floated as potential replacements, one stands out: retired D.C. Circuit Court Judge Janice Rogers Brown. …
Over the past century, the courts have eroded the Constitution and its freedoms, and attorneys general have too often seized the opportunity for expanded federal power.
The result has been a profound loss of confidence in the Constitution. What we need, therefore, at this stage is an attorney general of unimpeachable personal integrity, with a deep attachment to the Constitution and an elevated vision of the attorney general’s office. And that is Judge Brown.
Hamburger is right. Janice Rogers Brown has long been one of my favorite federal judges. If she were to become America’s top law enforcement officer, I am sure she would do all she could to restore the U.S. Constitution and the freedoms it guarantees.
I alluded to Judge Brown’s exemplary devotion to the Constitution in a 2015 Legal Update. President Obama’s Task Force on 21st Century Policing had just released a report that recommended increasing the level of federal interference in the affairs of local police forces despite all the harm that that interference had already done. Citing Judge Brown’s recent concurrence in United States v. Gross, I said:
If the President really wants to find ways of discouraging police misconduct and improving relations between the police and the public, maybe he should stop convening task forces, and, instead, have a chat with … Judge Brown about reviving the Fourth Amendment.
Even when I wrote those words, however, I knew President Obama would never seek advice from Judge Brown—not about the Fourth Amendment or anything else. When George W. Bush nominated Brown to the D.C. Circuit in 2005, then-Senator Obama denounced her in terms that would have amounted to defamation outside the Senate chamber:
I feel compelled to rise on this issue to express, in the strongest terms, my opposition to the nomination of Janice Rogers Brown to the DC Circuit. …
If the claimant is powerful … then she is willing to use any tool in her judicial arsenal to make sure the outcome is one they like. If it is a worker or a minority claiming discrimination, then she is nowhere to be found. …
[T]he version of America she is trying to create from her position on the bench … is … a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer.
These calumnies have been thoroughly refuted by Judge Brown’s record on the D.C. Circuit.
Take, for example, United States v. Gross, which I cited in the 2015 Legal Update mentioned above. The case involved a Fourth Amendment challenge to the District of Columbia’s stop and frisk program. In her concurrence, Judge Brown acknowledged that Supreme Court precedent required her to uphold the program, but that didn’t stop her criticizing that precedent:
Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists.
Whose side was she on? It certainly wasn’t the side of the rich and powerful:
As a thought experiment, try to imagine this scene in Georgetown. Would residents of that neighborhood maintain there was no pressure to comply, if the District’s police officers patrolled Prospect Street in tactical gear, questioning each person they encountered about whether they were carrying an illegal firearm?
Or take, as another example, a case I cited in a long Legal Update I wrote when Judge Brown announced her retirement from the D.C. Circuit in 2017: Ahmed Salem Bin Ali Jaber v. United States. The case had been brought by the relatives of two men killed as “collateral damage” during a U.S. drone attack in Yemen. They claimed the attack violated international and U.S. law because, rather than strike when the intended victims were alone and away from other people, the drone operator delayed the strike until the intended victims had entered the village where the plaintiffs’ family members were attending a wedding celebration.
In her opinion for the court, Judge Brown dismissed the complaint because, under the Supreme Court’s political question doctrine, it was “nonjusticiable.” However, in a separate concurrence she observed:
[I]f judges will not check this outsized power, then who will? … The President is the most equipped to police his own house…. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. … Congress, perhaps? … [C]ongressional oversight is a joke—and a bad one at that. …
Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community—including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.
Whose side was she on in Jaber? (Hint for Obama: Yemeni villagers aren’t powerful; giving them a right of redress when their relatives are killed by negligently timed drone strikes won’t ensure that the rich get richer.)
Janice Rogers Brown would be an inspired choice for attorney general. Let’s hope President Trump holds her in higher esteem than his predecessor.