Written by Philip Hamburger
If Jeff Sessions steps down as attorney general, who will replace him?
This question is on the president’s mind, according to a recent Wall Street Journal report, and among all the persons being floated as potential replacements, one stands out: retired D.C. Circuit Court Judge Janice Rogers Brown.
There are reasons to admire each of the rumored candidates for the position — and its current occupant. They all have distinguished themselves in their service to this country. But our nation now needs more than that. 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.
Few Americans have experienced so much of American life. Having grown up in Greenville, Alabama, when it was still segregated, she understands as well as anyone the importance of equality. Rather than acquiesce in the racism of restaurants and theaters with separate entrances, her family simply refused to enter such establishments.
But what really sets Judge Brown apart is her experience and vision of law and the Constitution.
After stints in California government—including eight years as the state’s deputy attorney general for the Criminal and Civil Divisions — she served on the California Court of Appeal and then the California Supreme Court. President George W. Bush appointed her in 2003 to the U.S. Court of Appeals for the DC Circuit, where she served until retiring in 2017.
She thus has a rare combination of experience—as both a deputy attorney general and as a judge. And having sat on both state and federal appellate benches, she appreciates more than most U.S. attorneys general the balance between state and federal power.
Judge Brown’s attachment to law rises above politics. At a time when too many commentators assume that law is merely power imposed from the bench, she understands that “[t]he Framers labored to separate law from politics because they knew that without that boundary, everything would be politics.”
On the DC Circuit, Judge Brown displayed courage of a sort that the president and the nation need in an attorney general. In 2016, in Heartland Plymouth Court v. National Labor Relations Board, she wrote an opinion for the Court excoriating the Board for refusing to follow the law as interpreted by the circuit.
Agencies such as the National Labor Relations Board sometimes defy judicial interpretations of law and litigate the questions even in the face of judicial opposition—so as to impose expenses on those who seek the benefit of the law.
Rather than accept such misconduct as part of the usual administrative mode of business, Judge Brown led her circuit in ordering the Board to pay Heartland’s attorneys’ fees on account of bad faith.
And — quoting Justice Marshall in Marbury v. Madison (1803) — she declared: “Let the word go forth: for however much the judiciary has emboldened the administrative state, we ‘say what the law is,” to which she added: “administrative hubris does not get the last word under our Constitution. And citizens can count on it.”
No other person being considered as the next attorney general has been as eloquent about “how easily the administrative state can slip its leash.” Or as adamant about how Americans “are betting the rule of law will prevail. In this country, everyone is entitled to win that bet.”
And no one is more self-conscious about the duty of public officials. As she put it in one case, we must worry about “how little the Constitution will matter when good character ceases to be informed by adherence to one’s oath of office.”
Judge Brown is profoundly modest — the very opposite of the hard-charging caricature of an attorney general. She possesses a quiet confidence and courage, a resolute sense of opposition to the injustice of administrative bullying, and a vision of how the government can adhere to the Constitution and its freedoms.
Her appointment would signal to Americans of all backgrounds, beliefs, and leanings that the law will be enforced without fear or favor. Judge Brown is the attorney general we need.
Philip Hamburger is a professor at Columbia Law School and President of the New Civil Liberties Alliance. Judge Brown is Chair of the NCLA’s Advisory Board.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.