United States Court of Appeals Judge
Brown was nominated by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit on July 25, 2003, to fill a seat vacated by retired Judge Stephen F. Williams. The Senate Judiciary Committee held a hearing on her nomination on October 22 of that same year. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on her nomination on November 14, 2003. Brown's nomination was returned to the President under the standing rules of the Senate when the 108th United States Congress adjourned.
Bush renominated Brown on February 14, 2005, early in the first session of the 109th United States Congress. On April 21, 2005, the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate once more. On May 23, Senator John McCain announced an agreement between seven Republican and seven Democratic U.S. Senators, the Gang of 14, to ensure an up-or-down vote on Brown and several other stalled Bush nominees, including Priscilla Owen and William H. Pryor, Jr..
On June 8, Brown was confirmed as a judge on the D.C. Circuit by a vote of 56-43. She received her commission on June 10. Brown was the second judge nominated to the D.C. Circuit by Bush and confirmed by the Senate. She began hearing federal cases on September 8, 2005.
Liberal organizations including the NAACP, the Feminist Majority Foundation, People For the American Way, the National Council of Jewish Women, and the National Organization for Women called her views "extreme right-wing," reflecting political and ideological differences.
Her dissenting opinion in Omar v. Harvey is notable as it pertains to her judicial outlook on the constitutional balance of powers. The United States Court of Appeals for the D.C. Circuit upheld an injunction that forbade the U.S. military to transfer Omar, a suspected insurgent, out of U.S. custody while his habeas corpus suit was pending. Brown's dissent took the view that the majority was trespassing on the Executive Branch's authority:
Summarizing its position, the majority declares: "The United States may certainly share information with other sovereigns ..., but it may not do so in a way that converts Omar's 'release' into a transfer that violates a court order." This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.
During the summer of 2005, she was considered a candidate to replace Sandra Day O'Connor as an Associate Justice of the United States Supreme Court, but Samuel Alito was chosen instead.
Read more about this topic: Janice Rogers Brown
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