Judicially Supervised Plunder

The unexpected retirement of Judge Janice Rogers Brown, 68, from the U.S. Court of Appeals for the D.C. Circuit will trigger a well-deserved celebration of her extraordinary judicial career, both as a federal appellate judge (since 2005) and previously as a member of the California Supreme Court (1996 to 2005).  It will be difficult for President Donald Trump to appoint a replacement that comes anywhere close to filling the shoes of the of the forceful, fearless, and independent Brown, whose nomination by President George W. Bush to the nation’s second most influential court in 2003 was delayed for two years by Democratic opposition. Despite a filibuster in the U.S. Senate, Brown was ultimately confirmed in 2005 by a 56 to 43 vote, when the so-called Gang of 14 reached an agreement to avoid Republicans’ invocation of the “nuclear option.” Hopefully, Brown will continue to serve on the D.C. Circuit as a judge with “senior status.”

One of Brown’s recent decisions is illustrative of her unflinching commitment to the rule of law. In Keepseagle v. Perdue (2017), the parties to a class-action settlement sought court approval for the distribution of $380 million of federal tax revenues to certain nonprofit organizations that were not parties to the litigation. The settlement was upheld by a 2 to 1 vote; Brown wrote a remarkable 43-page dissent.

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