[Senate Hearing 108-463]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-463

     CONFIRMATION HEARING ON THE NOMINATION OF JANICE R. BROWN, OF 
  CALIFORNIA, TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 22, 2003

                               __________

                          Serial No. J-108-47

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John a U.S. Senator from the State of Texas, 
  prepared statement and attachments.............................   231
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     4
    prepared statement...........................................   241
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   251
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    10
    prepared statement...........................................   267
Schumer, Hon. Charles, a U.S. Senator from the State of New York.    72
    prepared statement...........................................   345
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     8

                               PRESENTER

Cornyn, Hon. John a U.S. Senator from the State of Texas 
  presenting Janice R. Brown to be Circuit Judge for the District 
  of Columbia Circuit............................................    12

                        STATEMENT OF THE NOMINEE

Brown, Hon. Janice R., to be Circuit Judge for the District of 
  Columbia Circuit...............................................    16
    Questionnaire................................................    18

                         QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator Biden.    92
Responses of the Nominee to questions submitted by Senator Durbin    99
Responses of the Nominee to questions submitted by Senator 
  Edwards........................................................   117
Responses of the Nominee to questions submitted by Senator 
  Feinstein......................................................   125
Responses of the Nominee to questions submitted by Senator 
  Kennedy........................................................   132
Responses of the Nominee to questions submitted by Senator Kohl..   137
Responses of the Nominee to questions submitted by Senator Leahy.   139

                       SUBMISSIONS FOR THE RECORD

AFL-CIO, William Samuel, Director of Legislation, Washington, 
  D.C., letter...................................................   178
Americans for Democratic Action, Amy Isaacs, National Director, 
  Washington, D.C., letter.......................................   180
Americans for Tax Reform, Grover Norquist, President, Washington, 
  D.C., letter...................................................   182
Americans United for Separation of Church and State, Rev. Barry 
  W. Lynn, Executive Director, Washington, D.C., letter..........   183
Barker, Daniel A., Judge, Court of Appeals, Phoenix, Arizona, 
  letter.........................................................   185
Brown, Janice Rogers, `` `A Whiter Shade of Pale': Sense and 
  Nonsense--The Pursutit of Perfection in Law and Politics,'' 
  Address to the Federalist Society, University of Chicago Law 
  School (Apr. 20, 2000).........................................   187
Bryant, Shelley G., Attorney, Jory, Peterson, Watkins & Smith, 
  Fresno, California, letter.....................................   204
California Association of Black Lawyers, Gillian G.M. Small, 
  President, Mill Valley, California, letter and attachments.....   207
Campbell, Ward A., Supervising Deputy Attorney General, 
  Department of Justice, Sacramento, California, letter..........   218
Colleagues of Justice Janice Rogers Brown, Sacramento, 
  California, letter.............................................   220
Committee for Judicial Independence, Susan Lerner, Los Angeles, 
  California, letter and attachment..............................   222
Community Rights Counsel, Doug Kendall, Executive Director, 
  Defenders of Wildlife, William Snape, Vice President and 
  General Counsel, Earthjustice, Glenn P. Sugameli, Senior 
  Legislative Counsel, joint letter..............................   224
Congressional Black Caucus, Elijah E. Cummings, Chair, 
  Washington, D.C., letter.......................................   227
De Alba, David, Judge of the Superior Court, Sacramento County, 
  California, letter.............................................   239
Eisenberg, Jon B., Horvitz & Levy, LLP, Encino, California, 
  letter.........................................................   247
Eres, Thomas W., Esq, Attorney at Law, Sacramento, California, 
  letter.........................................................   249
Esgro, Patricia C., Judge of the Superior Court, Sacramento, 
  California, letter.............................................   250
Horst, Susan, San Anselmo, California, letter....................   254
Horvitz, Ellis J., Horvitz & Levy, LLP, Encino, California, 
  letter.........................................................   257
Justices of the California Court of Appeal, Los Angeles, 
  California, joint letter.......................................   259
Keller, Eddie T., Judge of the Superior Court, Placerville, 
  California, letter.............................................   261
Kelly, A. John, Little Rock, Arkansas, letter....................   263
Leadership Conference on Civil Rights, Wade J. Henderson, 
  Executive Director and Nancy Zirkin, Deputy Director, 
  Washington, D.C., letter.......................................   264
Lee, Hon. Barbara, a Representative in Congress from the State of 
  California, statement..........................................   270
McGuire, Frank A., San Francisco, California, letter.............   271
Members of Law faculties in California, joint letter.............   274
Members of the California delegation to the U.S. House of 
  Representatives, joint letter..................................   278
Minorities in Law Enforcement, Regis Lane, Executive Director, 
  letter.........................................................   284
Mount, William S., Attorney, Pacific Legal Foundation, 
  Sacramento, California, letter.................................   285
NARAL Pro-Choice America, Kate Michelman, President, Washington, 
  D.C., letter...................................................   288
National Abortion Federation, Washington, D.C., statement........   291
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington, D.C., letter and 
  attachments....................................................   292
National Bar Association, Clyde E. Bailey, Sr., President, 
  Rochester, New York, statement and attachment..................   299
National Council of Jewish Women, Marsha Atkind, President, New 
  York, New York, letter.........................................   303
National Employment Lawyers Association, San Francisco, 
  California, letter.............................................   305
National Senior Citizens Law Center, Edward C. King, Executive 
  Director, Washington, D.C., letter.............................   307
National Women's Law Center, Washington, D.C., statement.........   310
Natural Resources Defense Council, John H. Adams, President, 
  Washington, D.C., letter.......................................   318
People for the American Way, Washington, D.C., news release......   319
Planned Parenthood Federation of America, Inc., Washington, D.C., 
  statement......................................................   322
Positive Action Coalition, Mark Iain Sutherland, President, St. 
  Louis, Missouri, letter........................................   324
Professors of Law, joint letter..................................   325
Project 21, David Almasi, Director, Washington, D.C., letter.....   338
Republican National Lawyers Association, Washington, D.C., letter 
  and attachments................................................   340
Service Employees International Union, Local 99, Andrew L. Stern, 
  International President, Washington, D.C., letter..............   347
Sowell, Thomas, Rose and Milton Friedman Senior Fellow, Stanford 
  University, Stanford, California, letter.......................   349
Strauss, Paul, Shadow Senator from the District of Columbia, 
  statement......................................................   351
Trimble, Thomas J., Chairman, Pepperdine University, Board of 
  Regents, Malibu, California, letter............................   353
Tyson, John M., Judge, Court of Appeals, Raleigh, North Carolina, 
  letter.........................................................   354
Waters, Hon. Maxine, a Representative in Congress from the State 
  of California..................................................   356
Watson, Hon. Diane E., a Representative in Congress from the 
  State of California............................................   363
Wilson, Hon. Pete, former Governor of California, letter and 
  attachment.....................................................   365

 
 NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE CIRCUIT JUDGE FOR 
                    THE DISTRICT OF COLUMBIA CIRCUIT

                              ----------                              


                      WEDNESDAY, OCTOBER 22, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:12 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch, 
Chairman of the Committee, presiding.
    Present: Senators Hatch, Specter, DeWine, Sessions, Craig, 
Chambliss, Cornyn, Leahy, Kennedy, Feinstein, Feingold, Shumer, 
and Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Welcome to the Committee. This morning, the 
Committee considers the nomination of California Supreme Court 
Justice Janice Rogers Brown to be United States Circuit Judge 
for the District of Columbia Circuit.
    The last nominee considered for this court, Miguel Estrada, 
in my opinion, was treated shamefully by this Committee. He was 
badgered for adhering to the Code of Judicial Ethics, his 
record was distorted, and he was attacked for withholding 
information that he could not provide.
    After such obstructionist tactics, this impressive Hispanic 
immigrant became the first appellate court nominee in history 
to be defeated by a filibuster. Many are proud of that fact, 
but I think it was a sad day for this institution.
    Last month, the Washington Post observed that the judicial 
confirmation process is ``steadily degrading.'' I believe that 
the nomination before us offers another opportunity, indeed, an 
obligation, to change this trend. The fight over judicial 
appointments is about more than the dispute of the moment. It 
is about who should govern; the people through their elected 
representatives or unelected and largely unaccountable judges.
    President Bush describes his judicial nomination standard 
this way: ``Every judge I appoint will be a person who clearly 
understands the role of the judge is to interpret the law, not 
to legislate from the bench. My judicial nominees will know the 
difference.''
    The powerful liberal groups fighting these nominees also 
know the difference, but they take a different view. They want 
to win, and since their interests often lose when legislators 
legislate, they want the judges to do it instead. These groups, 
their strategy is like cooking spaghetti. They throw everything 
at the nominee, and when something sticks, the nominee is done.
    Make no mistake, the single most important issue for these 
groups is abortion. Merely a suspicion that nominees may harbor 
personal pro-life beliefs is sometimes enough to prevent 
confirmation. Sworn testimony that they will follow the law 
despite their personal beliefs is not enough. Entire careers of 
demonstrating a commitment to the rule of law over their 
personal beliefs is not enough or satisfactory. Their personal 
beliefs alone are deemed disqualifying.
    I do not personally know Justice Brown's personal view on 
abortion and, frankly, I do not care. Her decisions as a jurist 
are guided by the law, not her personal beliefs, which is one 
of the important marks of a good judge. Justice Brown, however, 
did one thing that liberal interest groups seem to not be able 
to forgive. She issued an opinion that would have found 
constitutional California's parental consent law. I expect we 
will hear a great deal about this case today, and it explains 
why, according to yesterday's Sacramento Bee, liberal groups 
plan to ``bombard Senators with 150,000 pieces of opposition 
mail from abortion rights backers.'' In my book, that is what 
we call spam.
    But Justice Brown faces a second hurdle beyond the abortion 
litmus test that all nominees face. She is a conservative 
African-American woman, and for some that alone disqualifies 
her nomination to the D.C. Circuit, widely considered a 
stepping stone to the United States Supreme Court.
    Now, I want to make clear that I am not referring to any of 
my colleagues who are on the Committee, but let me show you 
what I am talking about; an example of how Justice Brown's 
attackers will sink to smear a qualified African-American 
jurist who does not parrot their ideology. It is a vicious 
cartoon filled with bigotry that maligns not only Justice 
Brown, but others as well--Justice Thomas, Colin Powell, and 
Condoleezza Rice. It is pathetic, and it is the utmost in 
bigotry that I have seen around here in a long time. I hope 
that everyone here considers that cartoon offensive and 
despicable. I certainly do. It appeared on a website called 
BlackCommentator.com.
    Unfortunately, some of Justice Brown's opponents appear to 
share similar sentiments. I was deeply disappointed when, 
during a recent press conference, the all-Democrat 
Congressional Black Caucus applauded when one of its members 
said, ``This Bush nominee has such an atrocious civil rights 
record that Clarence Thomas would look like Thurgood Marshall 
in comparison.'' To some of her opponents, Justice Brown is not 
even qualified to share the stage with the despised Justice 
Thomas.
    Now, some of Justice Brown's other opponents will pull 
isolated bits and pieces from Justice Brown's rich and textured 
background in an attempt to discredit and belittle her 
accomplishments. Some may simply ignore any decisions they 
think would reflect positively on Justice Brown's judicial 
record, but I hope this hearing will be fair and open-minded. 
We owe Justice Brown no less.
    We will hear more about Justice Brown's credentials and 
legal career, but let me just briefly highlight a few facts 
that are important I think for everybody to hear.
    Justice Brown grew up the daughter of sharecroppers in 
segregated, rural Alabama. As a single mother, she worked her 
way through Cal State, Sacramento, and UCLA Law School. She has 
spent nearly a quarter-century in public service, including 
nearly a decade on different levels of the California appellate 
bench.
    In 1996, she became the first African-American woman to sit 
on the California Supreme Court. She was retained with 76 
percent of the vote in her last election. Let me repeat that--
76 percent of the vote in California. I suspect that any member 
of this Committee would be pleased to garner 76 percent of the 
vote. Of course, Senator Leahy often gets that.
    [Laughter.]
    Chairman Hatch. This overwhelming vote of--
    Senator Leahy. My gosh, Orrin, you got something right. I 
agree with you on that one.
    [Laughter.]
    Chairman Hatch. I did not say the vote was good. I just 
said you get--
    [Laughter.]
    Chairman Hatch. Now, this overwhelming vote of confidence 
for Justice Brown by the people of California reflects that 
Justice Brown is hardly out of the mainstream; a conclusion 
buttressed by the fact that last year she wrote more majority 
opinions than any other justice on the California Supreme 
Court.
    Those who know and have worked with Justice Brown confirm 
that she is what a judge is supposed to be. In a letter dated 
October 16th, 2003, a dozen of her former judicial colleagues, 
both Democrats and Republicans, wrote, ``We know that she is a 
jurist who applies the law without favor, without bias, and 
with an even hand.''
    A bipartisan group of professors of California law schools 
wrote, ``A fair examination of her work reveals that Justice 
Brown resolves matters as individual cases, not generalized or 
abstract causes.''
    They praise her for her ``open-minded and fair appraisal of 
legal argumentation, even when her personal views may conflict 
with those arguments.''
    What more could we ask for in a judge? Not that this 
matters to the powerful special interests and political 
interests attacking Justice Brown. One report, for example, 
quotes prominently from an Op-Ed piece criticizing her opinion 
in an affirmative action case. To my surprise, the Op-Ed's 
author, Berkeley law professor, Stephen Barnett, was one of the 
signatories on the law professors' letter endorsing Justice 
Brown's nomination.
    The powerful political interests opposing President Bush's 
judicial nominations want judges who will advance their narrow, 
leftist ideology. To them, results matter more than the law. 
That is the wrong standard. I hope the better stand prevails 
and that the downward slide of the confirmation process can be 
reversed. Let us seize this opportunity and make that happen 
today.
    With that, I will turn to the distinguished Senator from 
Illinois.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. Justice 
Brown, thank you for joining us this morning.
    I would like to begin by putting this nomination in 
historical context. Justice Brown was nominated to fill the 
eleventh seat on the D.C. Circuit Court that has 12 authorized 
judgeships, but when President Clinton tried to appoint an 
eleventh and twelfth judge to this same court--Elena Kagan and 
Allen Snyder--the Chairman of this Committee denied them a 
hearing and a vote.
    Senate Republicans argued the D.C. Circuit was fully 
operational with 10 judges. The D.C. Circuit's workload did not 
justify any additional judges. Since 1997, the D.C. Circuit's 
workload actually decreased by 27 percent according to the 
Administrative Office of the U.S. Courts.
    I also want to note the oddity of President Bush traveling 
3,000 miles away from Washington, D.C., to pick a judge for the 
D.C. Circuit. Perhaps it is not hard to understand. There are 
only 71,000 members of the D.C. Bar who might have been 
considered. I am told that it is rare for a President to 
appoint someone to the D.C. Circuit who does not practice in 
Washington and is unfamiliar with Federal agencies. I do not 
think there is any sitting member of the D.C. Circuit at this 
point who has had no background in D.C. or with Federal 
agencies. In Justice Brown, we have such a nominee.
    The D.C. Circuit is a critically important appointment, 
second only to the U.S. Supreme Court in its impact on law and 
policy in America. It is a unique appellate court. Congress has 
granted an exclusive jurisdiction over some issues. Half the 
court's caseload consists of appeals from regulations or 
decisions by Federal agencies. For example, regulations adopted 
under the Clean Air Act by the EPA, labor management decisions 
of the NLRB, rules propounded by OSHA and many other 
administrative matters that affect Americans across the country 
typically end up in the D.C. Circuit Court.
    I also want to make a final point before discussing Justice 
Brown and her record. Although Senators on this side of the 
dais will raise numerous concerns about her nominations, it 
should not be forgotten that the Senate has confirmed the vast 
majority of President Bush's judicial nominees. To date, we 
have confirmed 165 nominees and held up 3. The score is 165 to 
3, for those who are following this process.
    Republicans express outrage that three of President Bush's 
nominees have not received an up or down vote on the Senate 
floor, yet 63--63--of President Clinton's judicial nominees 
never received an up or down vote in this Committee. The 63 
were either denied a hearing or a vote or both. They were 
victims of quiet filibusters in the Judiciary Committee. These 
63 represent 20 percent of all of President Clinton's judicial 
nominees. By contrast, the three nominees held by the Senate 
represent 2 percent of President Bush's judicial nominees.
    Our Federal judiciary is conservative and becoming more so. 
On the U.S. Supreme Court, seven of the nine justices were 
appointed by Republican Presidents. On our U.S. Court of 
Appeals, the courts of last resort for the vast majority of 
litigants, nine out of the Nation's thirteen Circuit Courts 
today have a majority of Republican appointees. The D.C. 
Circuit is among them. Democrats have a majority on only two 
courts of appeal, two are equally divided.
    Now, let me say a word about today's nominee. Justice 
Brown's life story, which the Chairman has alluded to, and her 
achievements are amazing, and I congratulate you on your 
appointment to the court in California. To your supporters, you 
are an eloquent and passionate voice for conservative values. 
In both your opinions and your speeches, you speak with great 
flair and great intellect. Others, however, tell a different 
story. They say you are a results-oriented judicial activist 
who fashions her opinions to comport with her politics. You are 
a frequent dissenter in the right-ward direction, which is 
quite a feat, given that you serve on a court that is made up 
of six Republican-appointed judges and only one Democrat.
    I have conducted my own independent assessment of your 
record, and I must confess to some serious concerns. A few 
years ago, Justice Brown, you told an audience that, ``Since I 
have been making a career out of being the lone dissenter, I 
really didn't think anybody reads this stuff.''
    Well, we do. You are a lone dissenter in a great many cases 
involving the rights of discrimination victims, consumers and 
workers. In case after case, you have come down on the side of 
denying rights and remedies to the disadvantaged. Oftentimes, 
you ignore established precedent to get there.
    In a housing discrimination case, you were the only member 
of your court to find the California Fair Employment and 
Housing Commission did not have the authority to award damages 
to housing discrimination victims.
    In a disability discrimination case, you were the only 
member of your court to conclude that, due to a technical 
reading of the law, the victim was not entitled to raise past 
instances of discrimination that occurred.
    You are the only member of your court to conclude that age 
discrimination victims should not have the right to sue under 
common law, an interpretation directly contrary to the will of 
the California legislature.
    You were the only member of the California Supreme Court 
who dissented in a case involving the sale of cigarettes to 
minors. All of the other justices ruled that a corporation can, 
on behalf of the public, sue a retailer that illegally sells 
cigarettes to minors under the State's Unfair Competition Law.
    You were the only member of the California Supreme Court 
who would strike down a San Francisco law providing housing 
assistance to displaced low-income, elderly and disabled 
people.
    You were the only member of the California Supreme Court 
who concluded there was nothing improper about requiring a 
criminal defendant to wear a 50,000-volt stun belt during the 
course of his trial.
    You were the only member of the California Supreme Court 
who voted to overturn the rape conviction of a 17-year-old girl 
because you felt the victim gave mixed messages to the rapist.
    You were the only member of the California Supreme Court 
who dissented in two rulings that permitted counties to ban 
guns or gun sales on fairgrounds and other public properties.
    As an appellate court judge, you ruled that paint companies 
could use Prop 13 as a shield to avoid paying fees for the 
Childhood Lead Poisoning Prevention Act, a critical law used to 
evaluate, screen, and provide medical treatment for children at 
risk for lead poisoning. The California Supreme Court reversed 
you unanimously.
    Justice Brown, in many of these cases there were clear 
precedents you chose to ignore. In other areas, Justice Brown, 
you were joined by a few of your colleagues, but again often in 
dissent. In the area of employment discrimination, you have 
concluded that victims who are repeatedly harassed in the 
workplace must take a back seat to the free speech rights of 
harassers. Your supporters point to this case as an example of 
your commitment to civil liberties. I see it as a commitment to 
ignoring clear, established U.S. Supreme Court precedent in 
this area of discrimination.
    You have staked out a disturbing position on the sensitive 
issue of affirmative action. In the case of High Voltage Wire 
Works v. City of San Jose, you referred to affirmative action 
as, ``entitlement based on group representation,'' and you 
equate affirmative action with Jim Crow laws. The chief justice 
of your court called your analysis, ``unnecessary and 
inappropriate,'' and ``a serious distortion of history.''
    In another civil rights case, another colleague accused you 
of ``judicial law-making.''
    Justice Brown, your record is that of a conservative 
judicial activist, plain and simple. You frequently dismiss 
judicial precedent and stare decisis when they do not comport 
with your political views.
    The Senate questionnaire that is sent to judicial nominees 
asks for your comments on judicial activism. Here is what you 
said, ``Judicial integrity requires a conscious effort to 
subordinate any personal beliefs which conflict with proper 
discharge of judicial duties.''
    Justice Brown, I do not think your decisions follow your 
own advice. The ABA has given you a partial rating of not 
qualified. This is the lowest rating given thus far to any of 
President Bush's Circuit Court nominees. The ABA does not 
provide an explanation for their rating unless a nominee is 
rated fully not qualified.
    When the California State Bar Commission evaluated you in 
1996 and gave you a majority rating of not qualified for the 
California Supreme Court, the Commission stated that its rating 
was based, in part, on your ``tendency to interject her 
political and philosophical views into her opinions.''
    I am concerned with the views you have taken, but I am also 
concerned with the ways in which you express them. Many of your 
court opinions and speeches are very harsh. In your solo 
dissent in the case involving cigarette sales to minors you 
wrote, ``The result is so exquisitely ridiculous it would 
confound Kafka.''
    You also wrote that ``The majority chooses to speed us 
along the path to perdition.''
    In an unfair competition law case, in which you were the 
sole dissent, you wrote, ``I would put this sham lawsuit out of 
its misery.''
    In your solo dissent in the stun belt case, you lambasted 
the opinion of your colleagues and accused them of ``rushing to 
judgment after conducting an embarrassing google.com search for 
information outside the record.''
    In your lone dissent in a discrimination case, you wrote 
that the majority ``does violence to both the statute 
limitations and to the entire statutory scheme.''
    According to press reports, you and the chief justice of 
your court, a fellow Republican, are at such loggerheads you 
communicate only by memo.
    Lastly, let me talk for a minute about the world according 
to you as you see it. It is a world, in my opinion, that is 
outside of the mainstream of America. For example, to Justice 
Brown, any attempt by the Government to protect victims or 
consumers is a sop to special interests. You criticize 
politicians for ``handing out new rights like lollipops in the 
dentist's office.''
    You delivered a speech in which you said, ``Today's senior 
citizens blithely cannibalize their grandchildren because they 
have a right to get as much free stuff as the political system 
will permit them to extract.''
    In a case involving a San Francisco housing law that helped 
the low income and elderly, you wrote, ``Theft is theft, even 
when the Government approves of the thievery. Turning a 
democracy into a kleptocracy does not enhance the stature of 
the thieves; it only diminishes the legitimacy of the 
Government.''
    Your dissent in the cigarette case accused the rest of your 
colleagues of creating a standardless, limitless attorney fee 
machine.
    You criticized California's anti-discrimination agency, 
writing in a dissent, ``Not only are administrative agencies 
not immune to political influences, they are subjected to 
capture by a specialized constituency. Indeed, an agency often 
comes into existence at the behest of a particular group, the 
result of a bargain between interest groups and lawmakers.''
    The list goes on and on. I am troubled by what you have 
written and said, but this is one that I think, frankly, puts 
you into a rare minority category when it comes to viewing 
where America is today, and here is what you wrote: ``Where 
Government moves in, community retreats, civil society 
disintegrates, and our ability to control our own destiny 
atrophies.''
    You described the year 1937, the year in which President 
Roosevelt's New Deal legislation started taking effect as ``the 
triumph of our own socialist revolution.''
    Given that the Federal Government and its role in our lives 
is your major responsibility if you are appointed to the D.C. 
Circuit Court, I hope you can understand why some people have 
taken great issue with statements that you have made and the 
philosophy which you bring before this Committee.
    Joining us today from the House of Representatives are 
Delegate Eleanor Holmes Norton, Elijah Cummings, and I think I 
saw Congressman John Conyers also join in reference to your 
nomination.
    For these reasons, and many more as I have reviewed your 
record, I find it interesting that this position, which has 
become really the center point of controversy with the Miguel 
Estrada nomination, that the White House would not send us a 
nominee from this area closer to the mainstream, but once again 
challenge us to try to ask the hard questions to make certain 
that you or any nominee is deserving of a lifetime appointment 
to this position.
    Thank you, Mr. Chairman.
    Senator Specter. Mr. Chairman?
    Chairman Hatch. The Senator from Pennsylvania?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Mr. Chairman, I had asked you before the 
hearing started for leave to make a brief statement, and I had 
asked that because I talked yesterday to a former Senator, 
former Governor, Pete Wilson, who called me about Justice Brown 
and also to make a comment about the cartoon that you have 
already referred to, but I would like to say just a little 
more, but I will be conscious of the time and the fact that 
customarily only the Chairman and the Ranking make statements.
    Chairman Hatch. Go ahead, Senator, and then we will turn to 
Senator Leahy, who is ranking on this Committee, and then we 
are going to turn to the witnesses.
    Senator Specter. Pete Wilson called yesterday. He was our 
colleague in the Senate for 8 years before he became Governor 
of California and had some very high words of praise for 
Justice Brown, and I wanted to pass that on at the opening part 
of the record because Mr. Wilson could not be here, and we have 
a practice of not having outside witnesses in, in any event.
    I had not known you were going to make reference to this 
cartoon, but it is symptomatic of the presumption of problems 
which seems to precede nominees before they come before the 
Judiciary Committee for a hearing. It is a cartoon which has a 
very unflattering picture of Justice Brown--I had not known 
what Justice Brown looked like when I saw the cartoon. Now, 
that I see her, it is even a greater distortion than I had 
anticipated--and a caricature of President Bush saying, 
``Welcome to the Federal bench, Ms. Clarence, I mean, Ms. 
Rogers Brown. You will fit right in.'' And in the back are 
Justice Clarence Thomas, and Secretary of State Colin Powell, 
and National Security Adviser Condoleezza Rice.
    And it seems to me that, while people have a right 
constitutionally to print such cartoons, that this Committee 
ought to be on special guard about prejudgment, and opinions 
have been expressed by many people really prejudging Justice 
Brown.
    With great respect and deference to my colleague from 
Illinois, after listening to the Senator from Illinois, it 
seems to me that Justice Brown has been convicted without a 
hearing. I think that would be a good closing prosecutorial 
speech, but not an opening prosecutorial speech in the review 
of cases.
    I do not believe that there is anything wrong with being a 
dissenter. I do that occasionally myself. In fact, some people 
think more than occasionally and too often.
    [Laughter.]
    Senator Specter. When I think of Holmes and Brandeis, and 
Black and Douglas, and Brennan, I think of many dissenters, and 
sometimes the dissenters have the majority opinion.
    Now, Justice Brown, I do not know whether I am going to 
vote for you or not. I do not know enough about you at this 
point, but I have asked for a review of some of the cases 
because you have already been pigeon-holed and categorized, and 
I wonder what your real views are, and I intend to listen to 
what you have to say.
    When the Senator from Illinois talks about a harassment 
case and your dissent out of touch with the precedence, that 
was a case where damages were awarded for comments which were 
verbal abuse in the workplace--I wanted to get the word exactly 
right--and you found, in dissent, that although the monetary 
damages were fine, that you could not have a prior restraint.
    Now, I have not gone back over all of the prior restraint 
cases, but I remember Near v. Minnesota, the landmark case in 
the field, and you do not have prior restraint on speech cases. 
You just do not do that.
    And when I have looked at your record on Fourth Amendment 
cases, I have seen you have a very broad interpretation of 
civil rights on Fourth Amendment cases. I had heard that you 
were unduly zealous on capital punishment cases, and I find 
your dissent in the case of Visciotti, where you said there was 
ineffective assistance of counsel on Sixth Amendment grounds. 
And as I have reviewed the case on parental consent, I want to 
hear more about that, where you said that the statute ought to 
be upheld on a narrow instruction, and the majority of the 
court concluded that there was a violation of the Constitution 
of privacy, that you should not have to ask for parental 
consent.
    I want to see what you have to say about that. My views on 
that subject are well known, but I am not about to chastise you 
because your views are different from mine. I would like to 
hear what your judicial reasoning is.
    I have a lot more to say, and I will have a chance to when 
my turn comes on the questioning, but I am again sorry to see 
that your nomination has already become entangled with prior 
nominations, and I say this with deference to the Chairman and 
with deference to the Senator from Illinois. I do not think 
Miguel Estrada has anything to do with Justice Brown. That is 
gone. We have had our say on that, and I do not think that a 
score of 165 to 3 means anything. I think the question is 
whether you are qualified to be a Court of Appeals judge for 
the District of Columbia, and it is a national court. It is 
right under the Supreme Court.
    I am not surprised to see somebody from California 
nominated. As a matter of fact, I would like to see someone 
from Pennsylvania nominated. We do not have to take the judges 
inside the Beltway--
    Senator Schumer. I nominate Arlen Specter.
    Senator Specter. --or Vermont. It is a national court. I do 
not see in the world what the relevancy has to do with your 
nomination. We do not have to function solely within the 
Beltway. There are some qualifications outside the Beltway, but 
I do not like the way this hearing has started. I hope I like 
better the way it ends, although, again, I repeat, I do not 
know whether I am for you or against you, but I do think you 
are entitled to a fair hearing before you are convicted, if you 
are to be convicted. You may be acquitted. You may be 
confirmed, but let us see, let us see what you have to say, and 
that is what a hearing is supposed to be about.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you.
    Senator Leahy?

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    I think everybody agrees on the offensive nature of the 
cartoon. I notice that we are keeping that website up for the 
TV cameras. I am wondering if we are doing a disservice by 
leaving that up and on. It is up to you, of course.
    Chairman Hatch. I do not know what you are talking about.
    Senator Leahy. Is it not over there? Does it have the 
website showing on the bottom of that?
    Chairman Hatch. I do not know.
    Senator Leahy. It does not? Oh, okay. Yes, it does. Well, I 
mean, that is your choice, Mr. Chairman, whether you want to 
keep broadcasting the website or not, but I would suggest you 
may want to take it down. I find that cartoon offensive, just 
as I find offensive some of the cartoons from the right that 
have attacked me on my religion and elsewhere for being on this 
Committee. All of these things are offensive. I agree with 
Senator Specter the Constitution allows it, no matter how 
offensive they have been toward me or toward you, Justice 
Brown, or anybody else, but I would also just correct one thing 
in the record. It was said this is the first hearing we have 
had on vacancies in the D.C. Circuit since Miguel Estrada. 
Actually, we had Mr. Roberts, a candidate of President Bush's 
for the D.C. Circuit, somebody I voted for, and he was 
confirmed and is now on the court.
    And I do think that, as Senator Durbin said, that 165 
passed, 3 not, is significant. There were, after all, 61 of 
President Clinton's that were not passed because they were 
never given a hearing or they were filibustered because one 
person, in effect, a silent filibuster because one person 
objected to them, and they never even got a hearing.
    So I think that President Clinton would have been happy to 
have traded more than 60 of his that did not go through for the 
3 of President Bush's that did not go through.
    But today we are here for Justice Brown. Of course, her 
nomination is going to be considered at length. She has a 
record, both on the bench and off. Her record does raise a 
variety of concerns about her judicial philosophy and fitness 
for a lifetime appointment to the D.C. Circuit. We will look 
into the factors that made up the unqualified rating by some in 
ABA, but that is why the Constitution entrusted the appointment 
and confirmation of lifetime positions on the Federal court to 
not just one, but to two branches of Government.
    I guess what we have to understand, the confirmation of 
lifetime appointments to the Federal judiciary, under our 
Constitution, is not just the province of one end of 
Pennsylvania Avenue, it is the province of both. The President 
can nominate whomever he wants, but the Senate has to determine 
whether we will advise and consent to that, and I know the 
Committee takes the responsibility seriously.
    I worry that some of us who have exercised our 
constitutional duty to examine the records of judicial nominees 
have been barraged by some on the right with shrill and 
unfounded name-calling because of it. I hope we can see the end 
of the ugly game. Senator Hatch has said this should end. I 
agree with him, but it should end on both sides.
    When we opposed Charles Pickering, we were called anti-
Southern. Of course, this overlooked the fact that 38 percent 
of the judges we have confirmed are from the South, even though 
the South makes up 25 percent of the Nation's population. The 
reason, of course, there were so many vacancies is that the 
Republicans refused to allow the confirmation of a large number 
of President Clinton's nominees. We put them through.
    When we opposed Miguel Estrada, we were called anti-
Hispanic, even though the record of Democrats supporting 
Latinos for the Federal bench is unmatched in American history.
    When we opposed Priscella Owen, they were reduced to 
branding us being anti-women; a complaint that is so laughable 
it is hard to even mention it.
    And in an especially despicable ploy that has not been seen 
in the Senate in modern times, when we opposed William Pryor, 
the right stooped to religious McCarthyism--religious 
McCarthyism--which has no place in the United States Senate. I 
do not believe it has any place in America.
    So let us not do name-calling. Let us go to substance. When 
Senators of good conscience and true purpose ask serious, 
substantive questions of this nominee, let us stick to the 
substance and let the right-wing tactic of smears and name-
calling subside and disappear. Let us not see the race card 
dealt from the shameful deck of unfounded charges that some 
stalwarts of this President's most extreme nominees have come 
more and more to rely upon as they further inject partisanship 
and politics into the appointment and consideration of judges 
who are being nominated to be part of an independent, 
nonpartisan, nonpolitical judiciary.
    No matter what position any Senator takes in this 
nomination, whether it is in support or opposition, I know that 
it will not be taken because of race. Maybe those who 
ultimately support Justice Brown, even though they oppose 
affirmative action, they will be doing that because they 
believe she will be even-tempered and evenhanded. Those who 
oppose her will do so because they retain serious doubts about 
her nomination or see her as an ideologue or judicial activist.
    Now, because of her record, her record to date, several 
organizations do oppose Justice Brown's confirmation, including 
the Nation's premier African-American Bar Association, the 
National Bar Association, its State counterpart, the California 
Association of Black Lawyers, the foremost national civil 
rights organization, the Leadership Conference on Civil Rights, 
and the entire membership of the Congressional Black Caucus, 
including the delegate from the District of Columbia, where 
this court sits, Delegate Eleanor Holmes Norton.
    Now, I would hope these groups and individuals are not 
going to be accused of being anti-African American in the way 
Hispanic organization leaders were maligned because they had 
opposed Miguel Estrada.
    Let us hope during the questioning and the debate we focus 
on substance because there is much to discuss. Justice Brown's 
record gives us a lot to discuss, and that is what it is for. I 
think she should have an opportunity to explain her views and 
respect for precedent, on judicial activism, on statutory 
interpretation, free speech, civil liberties, limitation of 
damages, deference to jury verdicts and the standards of review 
that apply to infringement of constitutional rights.
    She has written opinions or spoken on all of these topics 
and more. And actually on some of them I find it hard to 
reconcile what she says on 1 day with what she may say on 
another on the same subject, but we will ask about that.
    This court is the most prestigious and powerful appellate 
court below the Supreme Court. We have chosen here in the 
Congress to vest the D.C. Circuit with exclusive or special 
jurisdiction over cases involving environmental, civil rights, 
consumer protection and workplace statutes.
    We saw what happened when a number of President Clinton's 
nominees were sent up here--Elena Kagan, Alan Snyder. They were 
nominated. They were never even allowed a Committee vote or 
Senate consideration. Dean Kagan, who now heads the Harvard Law 
School, never even received a Committee hearing. She may feel 
she is better off.
    But we have Justice Brown is this President's third 
nomination to the D.C. Circuit. All have received hearings. 
John Roberts was voted through this Committee. As I said, I 
voted for him, and then he was confirmed by the Senate to the 
D.C. Circuit.
    So, Mr. Chairman, I thank you for your consideration. Let 
us go forward on the merits. Let us leave the posturing and the 
name-calling off this Committee. Every one of the Senators has 
a grave duty under the advise and consent provision, and that 
is what we should do. We should not be called anti-Catholic, 
anti-black, anti anything else up here. We are United States 
Senators who try our best to do our duty and uphold our 
constitutional--
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you.
    Senator Cornyn, we will take--
    Senator Schumer. Mr. Chairman, could I just make a brief 
statement? You are letting some--
    Chairman Hatch. I agreed to the four, but I want to get to 
the hearing, and we will give enough time for you to make 
statements during your question period.
    Senator Cornyn?

PRESENTATION OF JUSTICE JANICE R. BROWN, NOMINEE TO BE CIRCUIT 
   JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. JOHN 
         CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman, and I hope this 
microphone is working. I cannot really tell, but I think I 
hear--
    Senator Leahy. Pull it closer, John. Pull it a little bit 
closer.
    Senator Cornyn. All right. Unaccustomed, as I am, to 
assuming this position before the Committee, I do it with a 
little trepidation and perhaps a little awkwardness, but--
    Senator Sessions. Trust me, it is better up here than down 
there.
    Senator Cornyn. Mr. Chairman, Senator Leahy, I am 
privileged to introduce to the Committee today a distinguished 
jurist from the California Supreme Court, Justice Janice Rogers 
Brown, who has been nominated to serve on the D.C. Circuit 
Court of Appeals.
    I must confess to feeling like I am a participant in a 
kabuki performance, to some extent, already, but let me do the 
job that I have gladly embraced here by introducing this fine 
person and this fine judge to the Committee.
    As you know, Mr. Chairman, one-fourth of the D.C. Circuit 
Court of Appeals is currently vacant. And as you also know, the 
Presidents traditionally look across the Nation for highly 
qualified individuals to serve on this important court, from 
Judge Karen LeCraft Henderson, a former Federal judge on the 
District Courts of South Carolina to former University of 
Colorado law professor, Stephen F. Williams, and former 
University of Michigan law professor, Harry T. Edwards.
    Justice Brown has almost 10 years of experience as an 
appellate judge. As others have recounted, she was first 
appointed to the Court of Appeals in 1994 and then to the 
Supreme Court in 1996 and has had a distinguished record on 
that court as a judge.
    As judge--and I will ask that the first chart be put up--as 
judge, Justice Brown has received strong support from 
Californians. As you can see, Justice Brown, during the 1998 
election, she was one of four justices of the California 
Supreme Court, including the Chief Justice, who were up for 
retention elections, and California voters supported all four 
of those justices.
    Justice Brown received a yes vote of 76 percent of 
California voters, the highest vote percentage of all four 
justices, and hardly the vote of confidence for somebody who 
can be fairly or accurately characterized as out of the 
mainstream.
    Justice Brown, along with her colleagues, also received 
strong support from one of her State's largest newspapers, the 
San Francisco Chronicle. As the Chronicle editorialized, ``It 
takes judges with deep respect for the law and a willingness to 
set aside their personal views when making decisions. It takes 
judges with fearlessness, with a sense of confidence that the 
right outcome will not always be the most popular. Californians 
have a chance to cast a vote for an independent judiciary by 
retaining Supreme Court justices who have all demonstrated a 
commitment to sound decisionmaking. If you don't like the law 
or if it conflicts with the State Constitution, change it. The 
judiciary's job is to make sure the laws are applied fairly. 
Brown and her colleagues have approached this duty with 
diligence, and integrity and should be retained.'' And, indeed, 
she was.
    I am extremely impressed, Mr. Chairman, by Justice Brown's 
extensive record of dutiful public service, but of course there 
is more to Justice Brown than just her resume. Indeed, 
sometimes during the hearings on these nominees, I feel like 
the nominees become a symbol or perhaps a caricature, and we 
fail to recognize that they are real, live human beings.
    As a strong, yet modest, person, Justice Brown may not feel 
comfortable talking openly about her personal life story, but I 
hope that members of the Committee will ask her about it, and I 
believe the Chairman has already alluded to the fact that she 
was born in Alabama as the daughter of sharecroppers.
    She is personally all too familiar with the scourge of 
racism and segregation. She came up of age in the midst of Jim 
Crow policies in the South. She grew up listening to her 
grandfather's stories about NAACP lawyer, Fred Gray, who 
defended Dr. Martin Luther King, Jr., and Rosa Parks. And her 
experience as a child of the South motivated her desire to 
become a lawyer and then a judge.
    After her father later joined the Air Force, she became, 
like me, a military brat, traveling with her family from 
military base to military base. I am pleased to observe that 
her travels included several years in the great State of Texas, 
including childhood stints in Fort Worth and in San Antonio, at 
Lackland Air Force Base, where my father was likewise 
stationed.
    Given Justice Brown's childhood and life experiences facing 
racism, I was especially alarmed by what I have seen and what I 
have heard from some of her opponents, and indeed the 
despicable racist cartoon that some of her opponents are using 
to smear her has already been displayed in this hearing, and I, 
for one, hope that rather than take it down, we keep that 
cartoon up during the remainder of this hearing, and I hope we 
also hear from this Committee a denunciation of such low and 
unworthy tactics, certainly beneath the dignity of this body, 
and I believe beneath any sort of semblance of civilized 
discourse.
    Some have alleged that Justice Brown singlehandedly 
dismantled affirmative action in California. As a former State 
Supreme Court justice myself, I can tell you that these critics 
have no understanding of the law or how judges operate under 
our system.
    In 1997, California voters amended their State Constitution 
by approving Proposition 209. As you can see on the easel, the 
California Constitution states in language that you do not have 
to be a lawyer to understand, ``The State shall not 
discriminate against or grant preferential treatment to any 
individual or group on the basis of race in the operation of 
public employment, public education or public contracting.''
    Because of the clear terms of Proposition 209, the United 
States Supreme Court recently noted that in California racial 
preferences in admissions are prohibited by State law. Do 
Justice Brown's critics also disagree with Justice O'Connor who 
authored the opinion or Justices Stevens, Souter, Ginsburg and 
Breyer, who joined her?
    All Justice Brown did was her job. She authored a majority 
opinion for a unanimous Supreme Court, in forcing the clear 
terms of Proposition 209. Indeed, every single judge involved 
in the case at the trial court, the Court of Appeals, and the 
Supreme Court agreed with her. They agreed that the challenged 
San Jose program violated the will of the voters as expressed 
in Proposition 209.
    Then-Justice Stanley Mosk, the court's leading liberal, 
according to the San Francisco Chronicle, not only joined 
Justice Brown's opinion, he also wrote his own concurring 
opinion, stating that I agree with the court, with the 
substance of its analysis and, if anything, I would go farther 
than it does.
    If critics do not like Justice Brown's decisions, they 
should change the law, rather than attack her for doing the job 
that she is sworn to do as a judge by faithfully interpreting 
the intent of that law. She is just doing the job that we ask 
judges to do, not as politicians, but as judges. I will quote 
the San Francisco Chronicle, again. ``If you do not like the 
law or if it conflicts with the State Constitution, change 
it.'' But I fear we are attacking the messenger.
    Others have criticized Justice Brown for her willingness to 
enforce a common-sense law enacted by the California 
legislature. The law would have required parental consent 
before a minor could obtain an abortion, which is similar to 
laws throughout the country. But the California Supreme Court 
issued a divided 4 to 3 opinion, invalidating the law. Justice 
Brown would have deferred to the State legislature and enforced 
the law. She was hardly alone in that view, and again then-
Justice Stanley Mosk, the court's leading liberal, as called by 
the San Francisco Chronicle, also voted to uphold the law.
    Indeed, according to a June 2000 Los Angeles poll, 82 
percent of Americans support parental consent laws, and the 
year after Justice Brown issued her opinion, the Chronicle 
published the editorial I mentioned earlier. That editorial 
praised Justice Brown and her colleagues and supported her 
retention election.
    Mr. Chairman, I join others on this Committee and in this 
body in expressing my deep concern about the hostility and 
destructiveness of the judicial confirmation process. And the 
Senator from Pennsylvania has aptly pointed out we are 
convicting people for certain beliefs, and thoughts and 
statements before they have even had an opportunity for a 
hearing.
    If this continues much longer, I fear that fine jurists and 
fine human beings, like Justice Brown, will just simply quit 
accepting nominations to the Federal bench, and all Americans 
will lose as a result.
    Senators should vote their conscience, no doubt about it. 
Every judicial nominee deserves a vote on the basis of 
reasonable criteria and the merits, and not on the basis of 
special interest group politics or other divisive criteria or 
slanderous racist cartoons such as we have seen depicted here.
    I hope this Committee and the Senate will confirm this 
exceptional judicial nominee, Justice Janice Rogers Brown.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator. I appreciate it.
    Justice Brown, would you please rise and raise your right 
hand.
    Do you swear that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Justice Brown. I do.
    Chairman Hatch. Thank you.
    Justice Brown, if you would care to, introduce your husband 
and anybody else who you care to introduce, and if you would 
care to make an opening statement, we would love to have it at 
this time.

STATEMENT OF JUSTICE JANICE BROWN, NOMINEE TO BE CIRCUIT JUDGE 
              FOR THE DISTRICT OF COLUMBIA CIRCUIT

    Justice Brown. Thank you, Mr. Chairman. It is my pleasure 
to be here. I am honored to come before this Committee, and I 
am anxious.
    I would like to introduce my husband, who is the only 
actual family member who is here with me. His name is Duane 
Parker.
    Chairman Hatch. Would you please stand, Mr. Parker. We are 
honored to have you with us.
    Justice Brown. And I would, also--there are many other 
people here who are like family to me, and the proof of that is 
that even though I sternly told them not to attend this 
hearing, they came anyway. I do not want to introduce all of 
them, but I would like to acknowledge a few of them.
    A couple of my attorney staff are here, Susan Sola and 
Danny Chou.
    Chairman Hatch. If you would stand, please. We are honored 
to have you here as well.
    Justice Brown. And a very dear and long-time friend, Judge 
Patricia Esgro.
    Chairman Hatch. Judge, we are honored to have you with us.
    Would you care to make any other statement?
    Justice Brown. I was not going to make an statement, but 
something has come up that I think I should respond to.
    I was not going to bring up that cartoon, but since a lot 
of people have, there is something that I would like to say. 
The first thing that happened was I talked to my judicial 
assistant yesterday. Her voice sounded very strange, and I said 
to her, ``What is wrong? What is happening?'' And I realized 
that she sounded strange because she was choking back tears. 
And when I asked her what was wrong, she really started to cry. 
She is a very composed, very calm woman, and she started to 
cry, and she said, ``Oh, Judge, these horrible things, you 
haven't seen what they've done.''
    And I, of course, was not there to comfort her. I have been 
here meeting with anybody who would meet with me, but while I 
have been having those meetings, people have said to me, 
``Well, you know, it's not personal. It's just politics. It's 
not personal.'' And I just want to say to you that it is 
personal. It's very personal to the nominees and to the people 
who care about them.
    I have dealt with hatred and bigotry in my life, and I 
can't tell you how distressing I find it to see this cartoon, 
which is intended to be so demeaning to a group of black 
people, and to know that it was circulated by other black 
people. But like the other Senators have noted, I have always 
argued that the First Amendment permits this kind of 
expression, no matter how offensive, and I haven't changed my 
mind just because it's been directed to me.
    I had not seen the cartoon when I was talking to her, and I 
asked my husband, ``Well, what is it? What does it say?''
    And he said, ``Well, there's Colin Powell.''
    And I said, ``Colin Powell is in this cartoon?''
    And he said, ``Yes, and Condoleezza Rice.''
    I said, ``I'm in a cartoon with Colin Powell and 
Condoleezza Rice? Wow. I'm in good company.''
    So I am going to look at this as an unwitting compliment to 
me and not focus on the vicious motivation for it, and that's 
all I wanted to say.
    [The biographical information of Justice Brown follows:] 

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    Chairman Hatch. Well, thank you so much. We will have 10-
minute rounds, and I will begin.
    You have had some criticism already on some of the cases 
that you have sat in on. You have been on the Supreme Court of 
the State of California for now 10 years, elected by 76 percent 
of the people. Do you have any idea how many cases you have 
actually sat in on or had anything to do with?
    Justice Brown. Yes, Mr. Chairman. I have been on the 
California Supreme Court for 7 years. I have been on the bench 
over 9 years. But on the California Supreme Court, I have 
participated in something over 750 matters.
    Chairman Hatch. Now, you have been attacked by many groups, 
mainly the usual suspects among liberal special interest groups 
who we have to put up with around here. The Democrats have to 
put up with some of the conservative special interest groups. 
That is just a fact of life, but the way I see it, these 
liberal groups do not like the fact that you rule in accordance 
with the law, instead of in accordance with their particular 
policy preferences.
    Now, while such opposition has become predictable, it just 
as surely ignores the reality that you are an accomplished 
judge whose record and opinions demonstrate a fidelity in 
applying the law, rather than in indulging your own personal or 
policy preferences, but your opponents also ignore the cases 
they would prefer that nobody hears about in which you have 
issued what some would consider liberal rulings, in favor of 
criminal defendants, workers, consumers, and environmentalists, 
if you will. Let me just ask you about a few of these cases.
    Did you not dissent from the majority's approval of a death 
sentenced in the Visciotti case based on the fact that the 
defendant had not been effectively represented by counsel?
    Justice Brown. I did, and that is rare, because in every 
criminal case, and certainly in every capital case, there is 
likely to be a claim that there was ineffective assistance of 
counsel. And it's rare for anybody to take that argument 
seriously, but in this case I really felt like an argument was 
made that simply couldn't be ignored.
    Chairman Hatch. Also, in the Fourth Amendment case, people 
v. Woods, you dissented from the majority's sanctioning of a 
warrantless search because it essentially ignored the 
constitutional rights of a probationer's roommates; is that 
right?
    Justice Brown. That is correct. I have always been a strong 
proponent of enforcing the Fourth Amendment.
    Chairman Hatch. Right. And then there is your dissent in 
People v. McKay, which one law professor praised as, ``Required 
reading for all criminal lawyers.''
    In this case, you would have suppressed drug evidence 
obtained from a defendant whose only apparent crime was riding 
a bicycle the wrong way down the street; is that right?
    Justice Brown. That is correct. That was one of those cases 
which Senator Durbin pointed out, in which I was the lone 
dissenter, but I was the lone dissenter because it is very 
clear that what was happening here is that these minor traffic 
infractions could actually be used to justify these very broad 
searches, and I argued very strenuously that to give that kind 
of discretion to law enforcement was likely to lead to 
arbitrary and discriminatory enforcement.
    Chairman Hatch. Let me ask you about the People v. Floyd 
case, in which you dissented from the majority's affirmation of 
a defendant's conviction for possession of cocaine. Now, this 
was, as I understand it, decided in the context of Proposition 
36, which California voters approved in 2000, and which 
required that eligible defendants convicted of nonviolent drug 
possession offenses receive probation conditioned on 
participation in and completion of an appropriate drug 
treatment program instead of receiving a prison term or 
probation without drug treatment.
    Now, why did you dissent and advocate a broader, more 
defendant-friendly reading of the law in that case?
    Justice Brown. Well, the electorate in that case seems to 
have wanted to provide a broad opportunity for people who were 
only convicted of drug offenses to have this opportunity for 
rehabilitation rather than to be sent to prison.
    The majority of my court took a very narrow view of who 
should be eligible for participation in these programs, but it 
seemed to me the clear intent of the electorate here was the 
make the program really quite broad. One of the things that was 
said in the ballot pamphlet is that putting defendants into 
these rehabilitation programs was actually much cheaper than 
sending people to prison. So the money that we had could do 
much more good by allowing people to participate in the drug 
program.
    Chairman Hatch. You have also ruled against tobacco 
companies in the Nagel v. R.J. Reynolds case. Here, you 
carefully reviewed a State law that granted some degree of 
protection to tobacco companies from product liability claims 
and found that the law did not bar fraud claims; is that right?
    Justice Brown. That is correct.
    Chairman Hatch. In Mercado v. Leon, you reversed the trial 
court's determination and allowed a mother of an injured 
patient to recover for emotional distress even without a 
showing that the doctor's conduct was outrageous; is that 
right?
    Justice Brown. That is true. That had been a limit on the 
ability to recover in those kinds of cases.
    Chairman Hatch. In Hamilton v. Asbestos Corporation, did 
you not author an opinion on a statute of limitations issue 
that allowed an injured plaintiff more time in which to file a 
personal injury claim against various asbestos defendants?
    Justice Brown. Yes. The question there was when did the 
statute begin to run in terms of whether you could file the 
claim.
    Chairman Hatch. In County of Riverside v. Superior Court, 
did you not write an opinion holding that under the Public 
Safety Officer's Procedural Bill of Rights, a peace officer is 
entitled to view adverse comments in his personnel file and 
file a written response to a background investigation of the 
officer during probationary employment.
    Justice Brown. That is also correct, Mr. Chairman.
    Chairman Hatch. Okay. And in the 1997 case, Mountain Lion 
Foundation v. Fish and Game Commission, was not your opinion 
again for the court's majority by the way, described by 
environmental groups as ``a clear affirmation of strong 
environmental protection in California,'' and a reaffirmation 
of ``the importance of endangered species protection''; is that 
right?
    Justice Brown. I had not heard the comment from the 
environmental groups, but it was a case that said that the Fish 
and Game Commission had to play by the rules if they were going 
to remove a species from the Endangered Species List.
    Chairman Hatch. So the overall point here is that your 
opinions have fallen on both sides of many public policy 
issues.
    Justice Brown. I think that's true.
    Chairman Hatch. The way I see it, you have applied the 
light equally to litigants in cases that have come before you 
regardless of the policy principles that are at stake. Do you 
think that is a fair characterization?
    Justice Brown. I think that that is a fair 
characterization. I think that one of the reasons I am eager to 
have this hearing and to discuss what I have done is that I 
think if my record is fairly evaluated no conclusion can be 
reached except that I do the job the way it is supposed to be 
done, that I am a principled judge, and that I am not an 
idealogue of any persuasion.
    Chairman Hatch. I expect that during the course of this 
hearing we are going to hear much about other cases that you 
have decision during your tenure on the bench. We have already 
heard some by the Senator from Illinois, Senator Durbin, so I 
felt that it was important at the outset to demonstrate your 
record of fairness in reaching the results the law compels 
instead of some predetermined outcome, because that is the 
implication of the criticisms of some of these outside groups 
and maybe even some of our colleagues. But we will undoubtedly 
hear today, also hear today about some of the speeches that you 
have given in a personal capacity. Some may even find some of 
those speeches or some of the language in those speeches 
inflammatory, at least that has been the accusation.
    So let me ask you this, Justice Brown, right out of the 
gate. Do you understand the distinction between acting as a 
judge in an official capacity, and are you committed to 
following the law and not injecting your personal opinions in 
your judicial opinions?
    Justice Brown. I absolutely understand the difference in 
roles in being a speaker and being a judge.
    Chairman Hatch. Let me, for anyone who still has concerns 
about Justice Brown's legal philosophy, to her separate opinion 
in the case of Katzberg v. UC Regents, which the Court decided 
unanimously last November. In this opinion you explained why it 
was inappropriate for the Court to seek guidance for its 
decision beyond the state constitution and its drafters' 
intent, and counseled that the Court should, quote, ``remain 
faithful to its role as the final arbiter of the meaning of our 
state constitution, and to respect the demarcations between the 
respective branches of government.'' Now, as I view it, this is 
the antithesis of judicial activism and demonstrates a profound 
respect for the proper role of the courts in our constitutional 
system. Is that correct?
    Justice Brown. I think that is correct and I think you will 
see many, many decisions in which I have deferred to the 
legislature or argued for separation of powers or for restraint 
in the judicial role.
    Chairman Hatch. My time is just about up, but I want to 
congratulate you for being here. I want to say that knowing 
you, I have really been impressed with your approach towards 
judging, and I am just very honored to be part of this hearing 
and to have you here.
    My time is up. We will turn to Senator Durbin.
    Justice Brown. Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Chairman Hatch. Let me say at 
the outset what my colleagues have said. That cartoon is 
despicable. It is outrageous. I am sorry that we are even 
displaying it in this room. It does not deserve that kind of 
attention. It is beyond our condemnation, and I apologize on 
behalf of all of the members of the Committee and everyone in 
Congress that you and your family would be subjected to this. 
Though I do not know the origin of it, it is sad that anyone 
who comes before us would face that kind of criticism and I am 
sorry that you have experienced this, and I am sorry that your 
friends are feeling your pain in this moment too.
    It is an impossible situation here. We are asked to sit in 
judgment of a person we have never met, try to judge that 
person on the basis of what they have said and what they have 
done and try to project what they have said and what they have 
done into some kind of a suggestion of what they might do in 
the future.
    I hope you understand that we do have to ask questions 
about what you have said as a judge. If we are to set you aside 
and say everything is out of bounds, we have to accept the 
President's nomination as proof positive that you are ready for 
the Court, we would not be meeting our constitutional 
responsibility. We have to ask probing questions in the hope 
that the record and the answers will give us an indication of 
who you are and what you really believe. There are many who 
have reviewed the same record that I reviewed and are skeptical 
as I am about your nomination to this D.C. Circuit Court. The 
Congressional Black Caucus, represented by Delegate Eleanor 
Holmes Norton and Congressman Elijah Cummings, and Congressman 
Conyers, who was here earlier, in a rare move took a position 
against your nomination. I am asking to be made part of the 
record letters from 19 members of the California Congressional 
Delegation as well as letters from 59 organizations and over 
200 law professors, all opposing your nomination.
    Chairman Hatch. Without objection, they will be put in the 
record.
    Senator Durbin. So there is some controversy attached to 
this. Do you think it is fair for us to ask you what your 
position is on issues based on how you have ruled in past cases 
and statements you have made in speeches?
    Justice Brown. I certainly think it's fair, Senator, for 
you to examine my record and my body of work as a judge.
    Senator Durbin. I do too.
    Justice Brown. That's what's at issue here.
    Senator Durbin. Exactly. Is it also fair for us to look for 
nominees to the D.C. Court of Appeals who are in the mainstream 
of public thought rather than too far to the left or too far to 
the right?
    Justice Brown. I really am not sure how to answer that. I 
don't know what your responsibility is. I wouldn't try to 
define it for you. I think that what you should be looking for 
are judges who understand what the judge's role is and who do 
the job, who take every case as that case arises, look at the 
law and the facts and the litigants and what is happening in 
that particular case and try to reach the right answer. That's 
the only agenda I have. If that's the kind of judge you're 
looking for, I'm that kind of judge.
    Senator Durbin. Would you say that your political 
philosophy and beliefs are in the mainstream of American 
political thought?
    Justice Brown. I don't--I hesitate to try to say what is 
the mainstream of American political thought. I think that my 
judicial decisions are very balanced.
    Senator Durbin. Let us go specifically to a question that I 
think really gets to the heart of it. You made a speech to the 
Federalist Society at the University of Chicago Law School, 
something I am familiar with, a large chapter. It was a speech 
in April of 2000, and said several things there. I made 
reference to some of them. You called 1937, the year in which 
President Roosevelt's New Deal legislation started taking 
effect, ``the triumph of our own socialist revolution.'' What 
do you mean by that?
    Justice Brown. Well, Senator, what I'm doing there is 
making a speech, and I note that the speeches that have been of 
most interest to people are the ones that I have made to 
younger audiences, to law students. And in making a speech to 
that kind of audience, I'm really trying to stir the pot a 
little bit, to get people to think, to challenge them a little 
bit, and so that's what that speech is designed to do.
    But I don't--I do recognize the difference in the role 
between speaking and being a judge.
    Senator Durbin. We all understand, as public speakers, that 
sometimes you want to be provocative, but I want to know if you 
believe that. Do you think that the Franklin Roosevelt New Deal 
was the beginning of a socialist revolution in America?
    Justice Brown. I don't think that--I think the speech has 
to be taken as a whole. Now, I understand that my--you know, my 
speeches are maybe not the greatest. I don't have a speech 
writer and I do these things myself, and I have a demanding day 
job so I often don't have a lot of time to do them, but I think 
the speech speaks for itself, and I tried to set it in context.
    Senator Durbin. Let us go to another part of the speech 
then. Are you familiar with the Lochner decision?
    Justice Brown. Yes, I am.
    Senator Durbin. This is a decision where the Supreme Court 
basically struck down a Massachusetts law that was establishing 
standards when it came to the work regulations of those in the 
baking industry. It was a limitation on exploitation of labor. 
This Lochner decision has been referred to over and over again 
as a seminal decision as to the Supreme Court going too far in 
striking down state and local regulation to protect, in this 
case, workers. You stated that you felt the dissent in the 
Lochner case by Justice Holmes was wrong in this speech that 
you made in Chicago. So again, I have to ask you, were you 
trying to be provocative or do you really believe that?
    Justice Brown. Well, Senator, I have, in my opinions, said 
that to the extent the Lochner court was using the due process 
clause as a sort of blank check to write anything they wanted 
into the Constitution, they were justly criticized. And I have 
in other opinions spoken approvingly of Justice Holmes' general 
attitude of deference toward the legislature because I agree 
strongly with that.
    The particular issue there that I was trying to focus on 
was simply the implication in his footnote that the 
Constitution really takes no view of economic liberties. So it 
was that that I was looking at.
    Senator Durbin. Justice Brown, that puts you in a very, 
very limited group of people who have come before this 
Committee seeking a judicial appointment. Justice Bork has been 
critical of the Lochner decision. Chairman Hatch has been 
critical of the Lochner decision.
    Chairman Hatch. Almost everybody has.
    Senator Durbin. Almost everyone has, and yet you seem to 
argue here that--let me quote you directly here--in your words, 
quote: ``It dawned on me that the problem may not be judicial 
activism. The problem may be the world view, amounting to 
altered political and social consciousness out of which judges 
now fashion their judicial decisions.'' End of quote.
    You seem to be suggesting--and I want to hear your 
explanation here--that when the Supreme Court ruled that 
Massachusetts was wrong in limiting exploitation of labor, that 
they were espousing an economic point of view that they have no 
business espousing, and that those who were critical of it were 
also espousing an economic view. Where do you come down on 
this?
    Justice Brown. No, Senator. I hope that I didn't--
    Senator Durbin. I am sorry. I have been saying 
Massachusetts. This is New York. I stand corrected.
    Justice Brown. I think that my response was misunderstood. 
What I said was I have, in my own decision, said that the 
Lochner court was justly criticized to the extent that they 
were using the due process clause to insert their personal 
political views, and so when I say that I was responding to his 
implication, I'm really talking about the dichotomy that 
eventually develops where economic liberty, property, is put on 
a different level than political liberties. So that was my 
focus there.
    And I don't think that that idea is out of the mainstream 
at all. I think there are very many commentators who say, you 
know, there doesn't seem to be a basis for having created this 
dichotomy. And in fact, the Court itself, in more recent cases 
has actually said, you know, maybe that idea doesn't really 
work, and there's no grammatical basis for saying we ought to 
treat these differently.
    Senator Durbin. I see my time is about up and I see other 
colleagues here. We will have another round. Thank you.
    Chairman Hatch. Thank you. Well, as you can see, she 
criticized Lochner like all the rest of us.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Justice Brown, in the case of American Academy of 
Pediatrics v. Lundgren, either dissented from the decision of 
the Court, a 4-3 decision, where the Supreme Court of 
California held that the California court imposed a higher 
standard on privacy. This involved a case where the issue was 
of a parental consent or judicial bypass for the abortion of a 
minor. I have made an inquiry as to whether other decisions of 
yours involved the abortion issue. Is this the only decision? 
That is the only one I have been able to locate with my staff 
and Committee staff.
    Justice Brown. This is the only time that particular issue 
has come before our court.
    Senator Specter. The only time. Is it not true that the 
California Constitution can impose a more rigid standard on 
privacy? You cite in your opinion decisions by the Supreme 
Court of the United States, and you enumerate justices who have 
upheld the constitutionality of parental consent or judicial 
bypass, but is it not true that the California Constitution can 
impose a more rigorous standard on privacy which would render 
that statute unconstitutional?
    Justice Brown. Well, obviously, I did not think so, 
Senator. I guess I should start by saying that this particular 
case had come before our court before, and shortly before I was 
appointed to that court, the court had looked at the same 
issue, had looked at this exact same law, and by a 4-3 decision 
had said that the law did not violate privacy rights under the 
California Constitution.
    Senator Specter. Justice Brown, my question is a narrow 
one, as to whether the California Constitution cannot impose a 
more rigid standard on privacy.
    Justice Brown. Well, as to that specific question I think 
the answer is no.
    Senator Specter. The California Constitution cannot impose 
a more rigid standard on privacy than the U.S. Constitution?
    Justice Brown. Well, let me explain, Senator. The 
California Constitution does actually include the word 
``privacy,'' which is not expressed in the U.S. Constitution, 
so perhaps an argument could be made that, you know, something 
different was intended. But when you go back and look at the 
legislative history, you know, the discussion about that 
provision, what they cite to is actually Griswold. So the 
argument is that it appears that all they were trying to do was 
make, express what the U.S. Supreme Court had decided in terms 
of privacy.
    Senator Specter. I believe a State may have a Constitution 
which has a more rigid standard. You can justify your opinion 
on the ground, and you go into it in some detail, but you did 
not think the California Constitution meant that.
    Let me move on to the case of Hi-Voltage v. San Jose, where 
you invalidated affirmative action which was taken under a 
statute on the ground that California Proposition 209 provides 
that the State shall not grant preferential treatment on the 
basis of race, sex, color, ethnicity or national origin. But is 
not the California Constitution on Proposition 209 subordinate 
to the Equal Protection Clause of the 14th Amendment so long as 
there is a compelling State interest and the issue is narrowly 
tailored to address an identified remedial need?
    Justice Brown. Well, if you're asking whether a State would 
be precluded from having a higher standard, I don't think so. I 
mean the U.S. Supreme Court has recognized that in fact in 
California that prohibition obtains.
    Senator Specter. Does not the Supremacy Clause of the 
Constitution mean that the equal protection of the 14th 
Amendment trumps California Proposition 209?
    Justice Brown. Doesn't the Supremacy Clause mean that?
    Senator Specter. Yes.
    Justice Brown. Well, the U.S. Supreme Court has not said 
that.
    Senator Specter. I am not sure whether they have said it or 
not. Maybe they have not had it presented, but the State cannot 
have a constitutional provision which conflicts with a U.S. 
constitutional provision, can it?
    Justice Brown. I think that--and I have to admit that this 
is not the issue that was before us in that case, and so this 
is not an issue that I have looked at in detail.
    Senator Specter. You may say that the program did not meet 
the equal protection clause of a compelling state interest or 
was narrowly tailored to address an identifiable remedial need, 
but I do not think that you can just base the conclusion on 
Proposition 209 when it conflicts with the Equal Protection 
Clause.
    Justice Brown. Well, since that was not the question that 
was presented to us, and the question was only whether the 
program of the city of San Jose violated the California 
Constitution, I just have to say it's not an issue that I've 
looked at.
    Senator Specter. Was the San Jose provision addressing a 
compelling state interest? I am going back to the 14th 
Amendment. The question is whether it was addressing a 
compelling state interest and was sufficiently narrowly 
tailored because if it satisfies the Equal Protection Clause of 
the 14th Amendment, would that not prevail over Proposition 
209?
    Justice Brown. I don't know if it would or not, Senator, 
because the only case that we have that I can think of that 
focuses on this is the recent case of the U.S. Supreme Court, 
and it's focusing on universities, and its analysis is fairly 
specific to diversity in that context.
    Senator Specter. Let me move now to Aguilar v. Avis on the 
prior restraint case, which involved the issue of verbal 
harassment sufficiently pervasive so as to create an abusive 
working environment. And in your opinion you said, among other 
things, quote: ``Plaintiffs should not be subjected to racial 
invectives in the workplace,'' close quote. But then you found 
that the remedy of damages was sufficient, and that an 
injunction would be inappropriate as a prior restraint. The 
question in my mind is whether this verbal abuse and these 
racial slurs, do they constitute fighting words?
    I have not recently reviewed Justice Murphy's opinion, but 
my recollection is that there is some language that the right 
of freedom of speech ends at the end of someone's nose, and 
that fighting words are not constitutionally protected. Would 
these racial slurs be tantamount to fighting words?
    Justice Brown. I don't know that any finding of that kind 
was made by the lower court here. It was--a decision was made 
that this was pervasive enough that it created a hostile work 
environment, and that's how the case was analyzed. And so my 
concern was with the content based prior restraint, which under 
the precedents of the U.S. Supreme Court is something that is 
done very, very rarely if ever, and even in extremely sensitive 
situations such as national security, the U.S. Supreme Court 
has said that's not appropriate.
    Senator Specter. Would you have to have a finding by the 
lower court if they were fighting words for you to consider the 
specific language which was before your appellate court to make 
a determination as to whether they were fighting words and 
therefore outside of the ambit of First Amendment protection?
    Justice Brown. Well, I think that generally the court would 
look at the record that comes up to it and what the court below 
was actually deciding, and that's what we did in this case.
    Senator Specter. Justice Brown, I had commented in my 
statement about a number of your opinions on a very broad 
interpretation of the Fourth Amendment, which I found 
commendable in finding unreasonable searches and seizures and 
invalidating convictions, but also on the inadequacy of counsel 
in the Visciotti case, and you dissented on a death case there.
    The one other case I want to ask you about in the limited 
time is People v. McKay, where a person was arrested for the 
infraction of riding his bicycle in the wrong direction on a 
residential street, and after he failed to produce a driver's 
license pursuant to a California statute, he was arrested and 
searched. You made a finding that you suspected racial 
profiling may have been a factor in the arrest, and thought 
that the search and seizure was inappropriate. It sounds a lot 
like the stop and frisk cases of the mid 1960's when the 
Supreme Court changed the rule of search and seizure for 
temporary stops and frisking. But I am struck by your words 
``suspected that racial profiling may have been a factor.'' Did 
you have an evidentiary base for thinking that racial profiling 
was there? If it was, obviously it is insidious and ought to be 
stricken, but do you recollect?
    Chairman Hatch. Senator, your time is up.
    But answer the question, if you will, Justice.
    Justice Brown. Senator, as I recall, there was no testimony 
concerning that.
    Senator Specter. Thank you very much, Justice Brown.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Specter.
    Senator Kennedy.
    Senator Kennedy. Thank you very much.
    Justice Brown, as others have stated, all of us deplore the 
kind of cartoon that is displayed here and all that it 
suggests. I have been on this Committee for some number of 
years, since I have been in the Senate, and we have really been 
free from this kind of activity, suggesting, and I must say in 
more recent times some of these kinds of suggestions have been 
raised. But it has no place anyplace in our society, and 
particularly not here associated with you.
    I am very concerned about your statements that you have 
made in your speeches which are highly critical of the role of 
Government. This is particularly important because if you are 
confirmed you are going to sit on the D.C. Circuit, whose job 
is primarily to review the governmental actions. And to mention 
again in your speech at the Federalist Society, you stated, 
``Where Government moves in, communities retreat, civil 
societies disintegrate, our ability to control our own destiny 
atrophies. The result is families under siege, war on the 
streets, unapologetic expropriation of property, the 
precipitous decline of the rule of law, the rapid rise of 
corruption, the loss of civility, the triumph of deceit. The 
result is a debased, debauched culture which finds moral 
depravity entertaining and virtue contemptible.''
    That is in the Federalist speech on April 20th.
    Then in the 1999 speech at Claremont McKinney College you 
stated, ``Where Government advances, it advances relentlessly, 
freedom is imperiled, community impoverished, religion 
marginalized, civilization itself jeopardized.''
    Now, the D.C. Circuit Court has the very special 
jurisdiction, National Labor Relations Board, how workers are 
going to be treated, whether they are going to be able to have 
their rights represented in the workplace. You have OSHA as a 
result--and many people are against OSHA--but since the time of 
passing of OSHA we have cut in half the number of deaths as a 
result in the workplace in our country over the period of the 
last 30 odd years. That is OSHA, and it continues to be out 
there, trying to protect workers in the workplace. You have the 
endangered species area. You have a whole range of 
Environmental Protection Acts, the Clean Air, the Clean Water 
Acts, real implications in terms of communities. I could take 
you up to Woburn, Massachusetts, where Civic Action, the book 
and the movie was written about, that 12 children died from 
poisons that were put into the water because people dumped into 
a site just north of that community, and the water came down 
deep in the seepage and came into wells that were being used 
within that community.
    These issues have real implication for real people, and 
they are Government, Government, Government action, that are 
out there to protect people.
    My question to you, how in the world can anyone whose 
rights are being represented and protected by these 
organizations have any confidence with how you will rule in the 
D.C. Circuit when you have taken these positions which are 
clear from the reading and your testimony, have such a 
despicable attitude towards what Government and Government 
institutions can do?
    Justice Brown. Well, Senator, I think they can have 
absolute confidence. I think if you review my record and the 
way that I have ruled as a Judge, you could have absolute 
confidence as well. I don't hate Government. I am part of 
Government. I have been a public servant for 99 percent of my 
professional career. I know that there are some things that 
only Government can do, some things that would not get done 
unless Government does it. So I can implement the law. I have 
been doing that.
    Senator Kennedy. The reason we raise it is because of these 
other statements about your attitude towards--and there are 
people that have that view. I respect that. I mean I respect 
it. I differ with it. I think there are legitimate roles and 
there are other places where it should not be, but there are 
legitimate areas where we have seen where Government has not 
taken action where there has been extraordinary exploitation. 
You see it with regards to stockholders in the WorldCom or you 
see it with regards to pension rights, how they have been 
thrown over the side when you do not have some protections. You 
see it with the Government role--NIH is a governmental agency, 
National Institute, cancer research, governmental agency. And 
your hostility is to extraordinary in these kinds of 
statements, I was just again startled by the strength. It was 
not just one speech. It was not just even a phrase that my 
colleague pulled out about Franklin Roosevelt and socialism. I 
am not just taking one comment about the definition of 
Government or even one speech but several.
    Justice Brown. I understand what you are saying, Senator, 
so I want to do everything I can to assure you that I 
understand that Government can have a very positive role and 
that there are very beneficial things that Government can do. 
We all, I think, respond and speak out of our experiences and 
out of the things that move us and that concern us. And so what 
I am talking about there is really where the Government takes 
over the roles that we used to do as neighbors and as 
communities and as churches. I think it is important for us to 
preserve civil society, but I am not saying there is no role 
for Government.
    Senator Kennedy. Well, I am not sure that that comes 
through as clearly as you have stated it here. Let me go to an 
issue regarding the racial slurs and the unlawful harassment. 
In your record concerning your cases in the area of employment 
discrimination, I would like to ask you about your decisions in 
that area. The Supreme Court, as you know, has held that verbal 
harassment violates Federal job discrimination laws based on 
sex or race and if it is so extreme that it creates a hostile 
work environment. And that was something that was recognized in 
1991 on the Civil Rights Act, which I was the principal sponsor 
of, Title VII. This is what was in the report in Title VII, 
which was particularly concerned with providing remedies to 
victims of harassment and specifically discussed verbal 
harassment and other harassment that might be considered in 
speech.
    Let me read you some of the examples that we wrote in Title 
VII. In the House report, James Williams suffered through 
racial slurs, jokes, pranks, such as the posting of a Ku Klux 
Klan application on the company bulletin board in an 
oppressively racist work environment.
    The legislative history shows Ramona Arnold, a female 
police officer, suffered when, among other things, sexual 
pictures with her name written on them and posted around the 
station house, signs saying, ``Do women make good police 
officers? No.'' were posted around the station house and on her 
supervisor's car.
    Rodney Consten, a millwright, got along well until he used 
anti-Semitic references on this. All this spelled out with 
regards to the verbal harassment.
    Then we came to the situation in the Aguilar Avis case with 
which you are familiar. You wrote a dissent arguing the First 
Amendment prevented the court from ordering a supervisor not to 
use racial slurs in the workplace. You reached this conclusion 
even though a jury found that the same supervisor harassed 
Latino workers by calling them racially derogatory names. 
Apparently, in your view, it did not matter that the trial 
judge found that a court was probably the only way to make 
harassers stop using these slurs.
    In your dissent, you acknowledged the Supreme Court had 
held that verbal harassment based on race or sex is unlawful, 
but you question whether the Supreme Court's opinion is 
consistent with the First Amendment. Your dissent in this case 
was not limited to California law. You went so far as to 
suggest that the First Amendment prevents courts from 
prohibiting verbal harassment under Title VII of the Civil 
Rights Act of 1964, the Federal law against job discrimination 
based on race, sex, national origin, and color discrimination.
    You recognized that there were remedies, remedies for 
damages. But how are we going to expect a worker that may be 
successful and is told, if your position holds, that if they go 
back into that workplace and they continue to be harassed, 
harassed, harassed with these verbal remarks, they can come 
back in court tomorrow and get another judgment in damages? How 
does that possibly advance the cause of justice and fulfill 
what we were trying to do to deal with this kind of verbal 
harassment in the civil rights laws?
    Justice Brown. Well, Senator, let me say that I absolutely 
agree with you that no one should be subjected to this kind of 
harassment, to verbal slurs. I couldn't agree with you more, 
and as someone who has been on the receiving end of that kind 
of conduct, you have my wholehearted support in terms of saying 
we have to do something about that. And we have, and all that I 
was saying in that case is that the damages remedy is a 
deterrent. I think that damages in this particular case would 
be totally effective because you are dealing with this 
corporation that is not going to want to go through this 
continually and which, if they don't respond, will actually be 
probably looking at punitive damages.
    So the only question really that was open there was whether 
you had to go further to this content-based prior restraint, 
which I think is really a problem under the First Amendment.
    If there were no other way, then, you know, maybe it would 
weigh the other way. But here I think there was an adequate 
deterrent, and I think probably money damages is more of a 
deterrent.
    Senator Kennedy. Well, my time is up, but what you are 
basically saying is that he goes back to work and has to file 
another case, and another case and another case and another 
case and another case. How many of these--and go through all of 
the costs of litigation that comes with that rather than just 
having what we were very clear in the 1991 Act? You mentioned 
earlier you read and value legislative history as very clear in 
what we were trying to do in Title VII in 1991. We used these 
illustrations time and time again in that report, exactly what 
we were trying to do. I am just disappointed at the fact that 
that part you found as a dissenter unable to follow.
    Justice Brown. Well, I think these are difficult cases, 
Senator, because there are countervailing interests, and there 
were a number of other judges on my court who also expressed 
the same concern about a prior restraint.
    Senator Kennedy. Well, I think you were in the minority on 
this, were you not?
    Justice Brown. Well, I was in the minority, but I was not 
alone.
    Chairman Hatch. Senator, your time is up.
    Senator Craig?
    Senator Craig. Thank you very much, Mr. Chairman.
    Justice Brown, we have not met. I am looking forward to 
that. I am one of the few on this Committee who is a non-
lawyer, so I will not dwell a great deal on different cases or 
decisions you have made. I am extremely interested, though, in 
the character of the person because we all seek to have in 
these high courts people of outstanding integrity, who believe 
in our Constitution, and who recognize its importance as the 
foundation of our Government.
    I am reading a quote from a national organization that 
happens to think quite highly of you when they say that, 
``Justice Brown represents the very best in American legal 
life,'' I think you probably also represent the very best in 
American life. ``A woman of impeccable character and 
unimpeachable integrity, she overcame any challenges on her 
past to a seat on the highest court of America's largest State. 
Her dedication to upholding the Constitution is clear,'' and so 
far today it is obviously that and becoming more clear.
    ``She has shown unfailing dedication to the rule of law, 
even in cases where it led her to conclusions with which many 
disagreed.'' I think the discourse with the Senator from 
Massachusetts in the last few minutes might suggest some of 
that.
    ``Her record is one of moderation and excellence in 
protecting racial equality, defending civil and constitutional 
rights, safeguarding the right to free speech''--I believe we 
have just discussed that a bit--``protecting the right of 
consumers and being fair to criminal defendants. Most 
importantly, her intelligence and thoughtfulness are a perfect 
fit for the D.C. Circuit, a court that has attracted the best 
and the brightest in our legal tradition.''
    That is a pretty outstanding statement and recommendation. 
So the question then is: Are you qualified?
    Justice Brown. I was afraid you were going to ask me if I 
disagreed with that.
    Senator Craig. No, I am not going to do that.
    [Laughter.]
    Senator Craig. But the question is and we are to seek out 
whether you are qualified. One Senator from Illinois suggested 
that the ABA suggested you were not qualified. Let the record 
show that a minority of that Committee said you were not 
qualified. A majority said you were qualified.
    In fact, I find it interesting that when the ABA meets--I 
have found it fascinating over the years to watch us use ABA 
ratings. If you agree with them, they are great. If you 
disagree with them, it is a bunch of lousy lawyers who got 
together and who had all the wrong opinions about a certain 
subject, and in this case an individual qualified to be a 
judge.
    If the Committee of the ABA has been unanimous in its 
rating, the Chair so states; otherwise, the Chair discloses 
that the nominee received the specific rating for a majority 
and a substantial minority of the committee, noting that a 
minority gave the nominee another rating. In other words, so 
stated as the Committee reacts.
    The majority rating is the official rating of the 
committee. ABA's official rating of you is qualified. That is 
what this Committee record ought to show, not to slide in in an 
opening comment that somehow the ABA found you unqualified.
    Miguel Estrada, unanimously well qualified. Well, nobody 
spoke of that here except those who supported him. It was not 
used as a tool of argument.
    Priscilla Owen, unanimously well qualified; Pryor, 
substantial majority, qualified.
    Oh, what games we play.
    Mr. Chairman, in searching out why--let me see if I can 
find what I am interested in here--why a cartoon of the kind 
that has appeared in a liberal newspaper would characterize you 
as such, here is the only thing I can find, and this is from a 
national columnist, and he says, ``What really scares the left 
about Janice Rogers Brown is that she has guts as well as 
brains. They haven't been able to get her to weaken or to 
waver. Character assassination is all they have left.''
    Let's talk about your character. Tell me about your mother 
and the influence she and your father had on you. I suspect 
that down deep there stands a foundation. Would you please?
    Justice Brown. Well, thank you, Senator, for giving me the 
opportunity to respond. I am not a person that talks much about 
my personal life, but you are right. There is a foundation, and 
it is a strong one. I come from a very loving, supportive 
family, but a family that I guess is a little bit firm and 
stern in the way they look at life and--
    Senator Craig. Disciplined?
    Justice Brown. --personal responsibility. If my family had 
a motto, it would be, ``Don't snivel.'' So that is what I grew 
up with.
    The greatest influence probably on me was my grandmother, 
perhaps both of my grandmothers, who were themselves very 
strong women, of somewhat limited education but very bright 
women, very determined women. And my grandmother on my father's 
side probably was the person who in my early life really shaped 
the character that I have. She was a woman who did not suffer 
fools gladly, someone who had a very, very strong sense of 
herself as a person and of her dignity. She taught me when I 
was very little that there are some things that you have to 
submit to. I grew up in an era when everything was segregated, 
and so she would say, well, you have to go to a school that's 
segregated because you must get an education, and you have to 
go to a hospital if you are sick, and if it's segregated, you 
don't have any choice. But about those things where you have a 
choice, you will not do that. You will not go in the back door 
of movie theaters. You will not go in the back door of the bus 
station. You will not go in the back door of a place to eat.
    And so this was her attitude, that you have to deal with 
what you have to deal with. You can be bowed but not broken 
unless you allow people to do that to you.
    We had a very clear sense of right and wrong in the family 
in which I grew up. We had a very strong work ethic. And so 
that is kind of what I was raised--a very deep faith that is 
part of your life and that your life is supposed to reflect 
that you are a person of faith. And I remember a conversation 
that I had with her, and I was very young and I don't know why 
we had this conversation. But she said, you know, there are no 
menial jobs. You do whatever you need to do to take care of 
your family. But you do that job the best you can, and someday 
when you go on to something better--and you will--they should 
say about you 10 years later, That Janice, she was the best 
dishwasher we ever had.
    So her attitude was, whatever you do, be a legend. So 
that's kind of my background.
    Senator Craig. Is that grandmother still alive?
    Justice Brown. She is not. I wish she was.
    Senator Craig. I wish she were, too.
    Justice Brown. But I know she's here in spirit.
    Senator Craig. She obviously would be and I am sure is 
very, very proud of you. Thank you.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Justice Brown, thank you very much for the time you spent 
with me yesterday. I appreciated it, and I thought a lot about 
it. And I have reviewed some more of your opinions. I have 
reviewed all your speeches going back to 1993. And the 
conclusion I come to from the speeches is that they are 
extraordinary for a sitting justice to make when you are an 
appellate court justice as well as a Supreme Court Justice, 
that your views are stark. So the question I have: Is that the 
real you? Will that be the you as an appellate court justice on 
the most important circuit in the land? And how can I depend on 
the fact that you are going to disassociate yourself from these 
views and follow the law?
    So I thought, well, let me take a look at some of her 
opinions on stare decisis, and let me begin by saying I was 
always very impressed with something Alexander Hamilton said in 
the 78th Federalist Paper, and that is, ``To avoid an arbitrary 
discretion in the courts, it's indispensable that they should 
be bound down by strict rules and precedent.'' And, generally, 
when we have a judge before us, I cannot remember us really 
confirming anybody that did not say they would strongly agree 
to abide by precedent.
    But when I reviewed your cases, I found that in many 
respects you openly flouted precedent, and let me give you some 
examples: Kasky v. Nike, Stop Youth Addiction v. Lucky Stores, 
Green v. Raley Engineering, and People v. McKay. And here is 
what you said in those cases.
    In People v. Williams, you argued that you were 
``disinclined to perpetuate dubious law for no better reason 
than it exists.''
    In Kasky v. Nike, you argued for overturning precedent 
related to the definition of commercial speech because it 
didn't take into account the ``realities of the modern world.''
    In People v. McKay, you argued against existing precedent. 
You argued that, ``If our hands really are tied, it behooves us 
to gnaw through the ropes.''
    Now, there are questions of great constitutional import 
that come before the D.C. Circuit. If I combine these opinions 
with your rather stark personal philosophy and the words you 
have used in speeches for 10 years now, how can I depend on 
you, A, following precedent, carrying out the doctrine of stare 
decisis, and giving people just simply a fair shake when you 
have a whole litany of these statements which, for a judge, are 
extraordinary intemperate to be making?
    Justice Brown. Well, Senator Feinstein, I thank you for the 
question and I thank you for your time yesterday.
    Senator Feinstein. You are welcome.
    Justice Brown. I really appreciated having an opportunity 
to talk with you. I actually thought it was an interesting 
conversation.
    Let me respond to your question first by taking issue with 
the characterization that my speeches are intemperate. I may 
speak in a very straightforward way. I am very candid, and 
sometimes I am passionate about what I believe in. But often I 
am talking about the Constitution, and what is being reflected 
in those speeches is that I am passionately devoted to the 
ideals on which I think this country is founded. And I try to 
get people to recognize how important that is.
    Senator Feinstein. Then you would say that the quote which 
I read to you yesterday--and I will just read one part today--
on Government is that ``the result of Government is a debased, 
debauched culture which finds moral depravity entertaining and 
virtue contemptible,'' you really believe that?
    Justice Brown. Well, as we discussed yesterday, I am myself 
part of Government. I think that there are many things that 
Government does well, many things that only Government can do. 
But I'm referring there to the unintended consequences of some 
things that Government does. But I would really like to go back 
and respond to the specific cases.
    You take issue with the fact that I sometimes chide the 
court or sometimes suggest to the court that we should review 
prior precedent. I do that. I don't think that's something that 
a judge should not do. But I think you have to recognize that 
the roles may be different. If you are part of an intermediate 
appellate court, you are bound by precedent. Whenever that 
precedent is clearly on point, you have no choice about that. I 
have been a member of an intermediate appellate court, and I 
have been bound by precedent, and I have lived within that 
precedent.
    When I was a member of the Third District Court of Appeal, 
I wrote more than 150 opinions, only three, I think, separate 
opinions, and only two dissents. There was nothing for me to 
talk about because, to the extent this was controlled by a 
higher court, it was controlled by a higher court. I did 
exactly follow that precedent.
    The role of a Supreme Court, a court of last resort, I 
think is different, because except for the U.S. Supreme Court, 
there is no one to rethink what we do. And so it is the court 
itself which has to decide whether they need to think 
differently about some precedent that they have laid down.
    I think it is perfectly appropriate, even if you are on an 
intermediate appellate court, to say this is the decision that 
I come to because I am bound by this precedent, but I think the 
court ought to take a look at this because it is not now 
working well.
    So two things are going in these cases. In Kasky v. Nike, 
I'm acknowledging that there is a line of precedent that the 
Supreme Court has laid down, that we are bound by that, but I'm 
saying to the court, Perhaps you ought to rethink this because 
times have changed and perhaps it is not working very well. And 
I think that is a perfectly legitimate position for a lower 
court judge to take, and it doesn't mean that you flouting 
precedent.
    Now, in the Stop Youth Addiction case, that was really a 
different kind of problem because that was our case. The reason 
that I have such a problem with 17-200 and these particular 
statutes is they have no standing requirement. And because they 
don't and because mostly of the way the court has interpreted 
the language, it is not here a legislative problem. In fact, at 
the point that I did the Stop Youth case, there had been a very 
recent report from the Law Revision Commission that said the 
court's interpretation in these cases has created a problem 
because the interpretation has been so broad that we have this 
separation of powers problem, we have a due process problem.
    So I was talking to my colleagues on my court, saying we 
have perhaps created this problem, and if you've been keeping 
track of what's going on in California, you know there has been 
a very heated debate about 17-200 and whether it needs to be 
fixed and what the problems are. And those problems flow from 
that broad interpretation.
    So there, again, I think I was doing what a judge should 
do, which is saying to my colleagues, you know, we have made 
this decision, we have this long line of decisions, but when we 
see what the result of it is, maybe we need to think again 
about what we were doing.
    Green v. Raley Engineering, I'll probably get in trouble 
here because I don't remember that case very specifically. But 
I think that what was going on there was the expansion of a 
Tammany claim. That is a common law claim that the California 
courts basically invented, saying if you are fired for some 
reason that violates public policy, you may have a cause of 
action. Even if you have no statutory claims of any kind, you 
may have a common law cause of action. But the court, when it 
created that remedy, said we are only filling in gaps. You 
know, we have done this so that where there is no remedy, there 
is no law, and somebody is in this situation, they can have a 
remedy.
    And so I often have a disagreement with my colleagues 
because I'm saying to them, You said this measure was for the 
gaps, and yet you are constantly expanding it. And we also said 
we won't find public policy. We won't just go out there and 
invent it. We will only find that there's a violation of public 
policy where it's tethered to either the Constitution or some 
statute, so that we're deferring to the legislature, not just 
inventing it. But then we constantly expand it.
    So those are the kinds of discussions that I'm having with 
my colleagues in those particular cases.
    Senator Feinstein. What would be your position on stare 
decisis then as an appellate court judge in the Federal system?
    Justice Brown. Well, as an intermediate--a judge on an 
intermediate appellate court, I would follow binding precedent. 
I absolutely have demonstrated that I will do that.
    Senator Feinstein. Okay. Because takings cases perhaps will 
come before you in one way or another, and we discussed your 
dissenting opinion yesterday in San Remo v. San Francisco--and 
for those that don't know, this was a challenge to a city 
ordinance, and what the ordinance said is that in order to 
transition a hotel from residential use to transient use, the 
owner of the hotel would have to pay a fee, which could then be 
used to help people that were transitioned find other housing. 
The city has a short housing supply, and I think everybody 
knows the rest of that.
    The plaintiffs apparently claimed that the ordinance 
amounted to unlawful takings of their property. You agreed with 
them and said, in short, this ordinance is not a matter of 
officially organizing the uses of private property for the 
common advantage; instead, it is expressly designed to shift 
wealth from one group to another by the raw exercise of 
political power; and as such, it is a per se taking requiring 
compensation.
    Now, the majority said in response to your opinion, however 
strongly and sincerely the dissenting justice may believe that 
Government should regulate property only through rules that the 
affected owners would agree indirectly enhance the value of 
their properties, nothing in the law of takings would justify 
an appointed judiciary in imposing that or any other personal 
theory of political economy on the people of a democratic 
state, which kind of gets to my point. Would you impose your 
personal opinion, as the majority said you were doing in this 
case, on the people of a democratically elected country?
    Chairman Hatch. Senator, your time is up, but answer the 
question.
    Senator Feinstein. Thank you.
    Justice Brown. Senator, I thank you for the question. Let 
me say, first of all, that I have great sympathy for the idea 
that there is a great need for low-income housing in San 
Francisco. I myself can't afford to live there, so I can 
understand that the city has a need and a problem that it needs 
to solve.
    Let me say that, despite the majority's characterization of 
what I was saying there, I was not suggesting that any 
appointed judiciary should impose its political view. What I 
was saying is that there is an express prohibition in the 
Constitution, both U.S. and California, that says however 
beneficial the purposes for which Government is doing whatever 
it's doing, it cannot do it by taking private property without 
paying just compensation.
    So I think the minority's characterization there is just 
flatly wrong.
    Senator Feinstein. How is this taking private property? No 
one was taking the property away from the owner. The owner 
wanted to change the nature of the property from residential to 
transient. How is this removing, how is this a taking?
    Justice Brown. Excuse me for interrupting you, Senator. 
This is a taking because what is really happening here is the 
city is saying, as a property owner, you still have the 
property, that is, you have nominal ownership, but if you want 
to do something with the property, you basically have to ransom 
it back from us. You have to pay us to get that use back.
    And I think the best example of this, because it was very 
interesting to me at the oral argument in this case, I said to 
the attorney who was arguing for the city, could you, because 
there is traffic congestion in San Francisco, and you want to 
get people off the highways and make the traffic congestion go 
away, could you tell me that I have to use my car, and during 
certain hours, I have to pick up someone from the casual car 
pool as a way of dealing with traffic congestion?
    To which he said--I said, Would that be a taking?
    He said, Oh, no, that would just be a regulation of use.
    So, I mean, I think it's obvious, when you make it some 
other kind of commodity, like a vehicle, what's happening here. 
And to me it was very clear. And I think that what I've said 
was very consistent with some of the Supreme Court decisions 
that have come down in the last 15 years, like Dolan and Nolan.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Hatch. Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman.
    Justice Brown, I know you have been asked about this, and I 
am not going to ask you about your speech to the Federalist 
Society. But I was struck by it. To put this in context, I live 
in a town of 1,200 people. It is about five miles from where I 
was born in Vermont, a beautiful, beautiful spot. The 
Government of it is a basically volunteer Select Board. They 
make sure there is school for the children, whether it is 
police protection or fire protection or the roads--I live on a 
dirt road, but whatever--any of the roads that are paved.
    When I read your Federalist Society speech, where you say 
``where Government moves in, community retreats, civil society 
disintegrates, and our ability to control our own destiny 
atrophies. The result is families under siege, war in the 
streets, precipitous decline of the rule of law, the rapid rise 
of corruption, the loss of civility, the triumph of deceit.'' 
You may not be surprised that when I mentioned this to members 
of the Select Board they say, ``That is us? We are working here 
for nothing trying to get this through.''
    I just mention that you can see why some may feel that, 
contrary to your view, not all Governments in the United States 
of America are corrupt, deceitful or encouraging war in the 
streets.
    On another question, you state that you are a firmly 
committed to the notion of judiciary restraint, but in Lane v. 
Hughes Aircraft, you said that creativity was a permissible 
judicial practice. All judges make law. I would think that 
creative lawmaking was the provence of whatever the legislative 
body is.
    So which branch of Government do you think is best equipped 
to determine the proper role of Government in society?
    Justice Brown. Well, there is no question that that role 
belongs to the Legislative Branch.
    Senator Leahy. Under what definition would your view of 
judging not be considered judicial activism?
    Justice Brown. I don't think that my view of judging would 
be considered judicial activism at all.
    Senator Leahy. Even though you say all judges make law?
    Justice Brown. Well, of course, they do, Senator, in the 
sense that there are still some common-law issues, and when 
dealing in the common law, judges do make law in that sense; in 
other words, you know, if they decide to expand some common-law 
remedy or something like that. We have been talking here about 
something that the California Supreme Court did. We call it a 
Tammany claim. That is law that the California Supreme Court 
made.
    Senator Leahy. Well, you also said in a speech at the 
National Conference of State Legislators that courts have found 
``constitutional rights which are nowhere mentioned in the 
Constitution.'' Would that include the right to travel?
    Justice Brown. I am actually not familiar with cases on the 
right to travel.
    Senator Leahy. What about the right of parents to direct 
the upbringing of their children?
    Justice Brown. I don't recall that there is any language 
that says specifically parents have the right to direct the 
upbringing of their children.
    Senator Leahy. The right of privacy?
    Justice Brown. Well, the Court, in Griswold, itself had 
several different ideas about that.
    Senator Leahy. I know what the Court has done, but do you 
find that right in the Constitution?
    Justice Brown. Well, the Court itself didn't find that 
right in the Constitution.
    Senator Leahy. Justice Brown, I do not mean to be nit-
picking. Do you find that right? Trust me, all of us read those 
cases trying to get through law school or the bar exam, but do 
you find a right of privacy in the Constitution?
    Justice Brown. Do I find it in the text of the 
Constitution, the U.S. Constitution? No.
    Senator Leahy. Now, you said at Pepperdine 3 years back, 4 
years back, that the United States Supreme Court was incorrect 
in applying the Bill of Rights to the States. If I may read the 
quote, ``The United States Supreme Court, however, began, in 
the 1940's, to incorporate the Bill of Rights into the 
Fourteenth Amendment. The historical evidence supporting what 
the Supreme Court did here is pretty sketchy. They relied on 
some historical materials which are not overwhelming. The 
argument on the other side is pretty overwhelming, and it is 
probably not incorporated.''
    Did the Supreme Court wrongly decided the cases 
incorporating the Bill of Rights into the Fourteenth Amendment?
    Justice Brown. You know, actually, one of the reasons that 
I never transcribed that particular discussion was because I 
wasn't very satisfied with it. But at the time I was reading a 
number of things which were looking at this whole question of 
whether incorporation was right or wrong, and I found it pretty 
convincing.
    I have since actually found a lot of other things going the 
other way in dealing with the debates at the time of the post-
Civil War amendments, which suggests that some of that might 
have been there. So I would have to say that that probably is 
not entirely correct. The only--I think it still remains 
anomalous to incorporate the First Amendment, but there 
certainly may be, you know, argument on both sides.
    Senator Leahy. Justice Brown, you say that you have thought 
about it some more since just as recently as 1999, but these 
cases had strong precedents before that. I mean, they had been 
decided. They had been incorporated in other decisions. They 
had been accepted body of law in this country. In 1999, you 
questioned that. Now, in your confirmation hearing, between 
then and your confirmation hearing, you change.
    I am not suggesting a confirmation conversion.
    Justice Brown. No.
    Senator Leahy. But from the time you were in law school and 
practicing law on the court, it is well understood in this 
country that the Supreme Court had incorporated the Bill of 
Rights into the Fourteenth Amendment. You had your questions in 
1999 in a speech at Pepperdine. I am not quite sure, what is 
your position today?
    Justice Brown. Well, you know, the position that counts, 
and I think I said that, is that whether that's right or wrong, 
what the Supreme Court says is what counts. And so, of course, 
you know, as a law student and as a judge, I have followed 
those precedence. Sometimes speeches are an opportunity to just 
kind of think out loud, and at the time I had seen some 
material which really raised some questions about this, but I 
think I was very clear in saying it really doesn't matter. They 
have said it, and that's the law.
    Senator Leahy. And that's your opinion today.
    Justice Brown. Yes.
    Senator Leahy. Your view today.
    Justice Brown. Yes.
    Senator Leahy. I'm just curious how you analyze things. I 
have not practiced before the California Supreme Court. I doubt 
if I ever will, so I don't know how you face things, other than 
what I have read.
    So let us take an issue in the news today. A law recently 
passed by the Florida legislature that allowed the Governor of 
the State to replace the feeding tube of a severely brain-
damaged woman, over the wishes of her husband. Now, I have 
heard very strong arguments on both sides. I am not trying to 
decide who is right on this or not. But if you were presented 
with a challenge to a statute such as this, how would you 
approach the legal and Constitution analysis? How would you 
weigh the interests of the party, including the family members 
who apparently disagree with one another, with the woman's 
doctors, the State? I am thinking of Washington v. Glucksberg.
    Again, as I say, I have no idea what I would do in a 
situation like that, but is there a limit on the power of the 
legislature in a situation like this? How would you approach 
that if that was suddenly dropped in your lap?
    Justice Brown. Senator, I don't think I can possibly answer 
that question.
    Senator Leahy. I'm not asking you to answer a question of 
how you would come out, but how would you analyze that? How 
would you weigh the interests of the parties? How would you 
weigh the interests of the State? What would you think about 
the power of the legislature in a situation like this? I mean, 
how would you go about approaching it?
    Justice Brown. Well, you know, of course, a legislative act 
always starts with a presumption of constitutionality, but I 
would have to know much more about everything, about the facts, 
and the law here, and the prior history of this case. There is 
no way that I could possibly tell you anything more than that.
    Senator Leahy. What kind of facts would you look for?
    Justice Brown. Well, presumably, the--you know, I just have 
to say I don't even know what the legislature is really doing 
here because I thought you said that the tube had been removed 
by the court and that the legislature--
    Senator Leahy. Gave the Governor the power to order it 
back.
    Justice Brown. There are so many different levels of--
    Senator Leahy. Fair enough. I am just curious how, I mean, 
I am not, as I say, I do not know how I would decide, but I was 
curious what you would look at, and that is what I was asking.
    May I just ask one more question, Mr. Chairman?
    Chairman Hatch. Sure. Go ahead.
    Senator Leahy. The Libertarian Law Council, you criticized 
the judiciary ``for taking a few words which are in the 
Constitution, like due process and equal protection, imbuing 
them with elaborate and highly implausible etymologies.''
    What are some examples of that?
    Justice Brown. Well, I think we talked about this earlier, 
when Senator Durbin was talking about Lochner, which is one of 
those cases sort of universally condemned by everybody because 
the argument is that, you know, is there substance to the due 
process clause or can you just use it to insert whatever you 
want into the Constitution?
    Senator Leahy. That is the only example?
    Justice Brown. Well, it is probably the best example 
because everybody knows it.
    Senator Leahy. But you gave a pretty strong statement here. 
You seem to be talking about more than one case. What are some 
of your other examples?
    Justice Brown. None come to mind. I mean, Lochner would 
certainly be one. Maybe Dred Scott is such a case.
    Senator Leahy. We'll make sure you have a copy of the 
speech, look at it again. Would you take a look at it and give 
me if there are some other examples you have in mind.
    Thank you.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Just one question to clarify. You said that you did not 
find the right to privacy in the express language of the 
Constitution.
    Justice Brown. That is correct.
    Chairman Hatch. Nobody can find it there.
    Justice Brown. Nobody can find it there.
    Chairman Hatch. But do you agree there is a right to 
privacy that has now been established by the Supreme Court in 
Griswold and--
    Justice Brown. It is clearly established by the Supreme 
Court. That is the law.
    Chairman Hatch. Do you accept it?
    Justice Brown. Certainly.
    Chairman Hatch. We will go to Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Justice Brown, we are delighted to have you here. As a 
native of Alabama, the State is proud of you and the record you 
have achieved. You came up in tough times not too far from 
where I grew up, not too many--a few years younger than I, and 
those were not easy times.
    And I note, with interest, your statement that your 
grandfather admired Attorney Fred Gray for his challenging the 
segregation that existed at that time. There is no need to deny 
it. It was a fact. That is what the situation was. And he came 
out of law school with a commitment to end that. I read his 
book. Perhaps you have. I have it on my credenza, ``Bus Ride to 
Justice.'' He was Rosa Parks' attorney, Martin Luther King's 
attorney. He handled the Gomillion v. Lightfoot case. One of 
the most extraordinary lawyers in America, and he now is the 
president of the Alabama Bar Association, which I think is a 
good tribute to his great career.
    But I just know, and from reading your remarks and your 
history, that you are passionately committed to liberty, and 
rights, and freedom, and equality for people. Would you share a 
little bit for us how you come to have your views. And I know 
they do not always agree with current political wisdom on every 
area, but your basic commitment to these values is powerful.
    Justice Brown. Well, I think, Senator, that I have this 
basic commitment because it is not just history to me, and it 
is not just law, it is my life. I think that the Equal 
Protection Clause is the centerpiece of the framework of our 
Constitution. I think it is probably the most important thing 
that we have ever done is to try to guarantee people equality 
under the law, and maybe that is because I have lived in a time 
when that was not so.
    Senator Sessions. I noticed one of your comments dealt with 
the fact of, yes, we respect legislation and law, but we have a 
right to understand that laws can be better and that laws can 
be unfair and unjust, such as the segregation laws that 
provided advantages to one race and disadvantages to other 
races in the South not too many years ago.
    So I think having a moral foundation for your beliefs is 
not a negative, but is a strength. Do you not think that Martin 
Luther King's arguments went to a moral and religious values as 
much as it did to some sort of complex interpretation of the 
Supreme Constitution?
    Justice Brown. Absolutely, I do, Senator. In fact, one of 
his most famous speeches, what he says is that the Constitution 
should be viewed as a check that had been written to future 
generations about what they could expect. And I believe that 
the beginning of the civil rights movement in this country very 
much emphasized exactly that idea about equal justice and the 
idea of everybody being created equal and that being the 
promise of America that we should try to bring to fruition.
    Senator Sessions. I thank you for sharing that. I just, 
from seeing your record, it is clear to me that you analyze 
cases fairly or you take them on the law as you see it. You are 
not driven by politics, but you try to do the right thing. If 
you were driven by politics or those kind of things, you would 
probably be more conforming to what everybody else thinks 
somebody should do in this day and age, and I salute you for 
that.
    Mr. Chairman, I am just so impressed with the support this 
fine nominee has had. I noticed this stunning reelection vote, 
I believe 76 percent of the vote to be reelected in the State 
of California. Everybody knows that California is not 
considered a conservative State. If this lady were some sort of 
out-of-the-mainstream, how would she win such a predominant 
vote there?
    Actually, she is part of a movement to strengthen the rule 
of law in the State courts of California and very, very strong 
support.
    Chairman Hatch. She not only had 76 percent, but she was 
the top vote-getter among other justices.
    Senator Sessions. I think that is so important to note.
    A bipartisan group of 15 law professors wrote this 
Committee, and they said, ``We know Justice Brown to be a 
person of high intelligence, unquestioned integrity and even-
handedness. Since we are of differing political views,'' all of 
these professors had different political perspectives, 
``Democrat, Republican and Independent, we wish especially to 
emphasize that what we believe is Justice Brown's strongest 
credential for appointment to this important seat on the D.C. 
Circuit, her open-minded and thorough appraisal of legal 
argumentation.''
    Is that something you, praise you would cherish, Justice 
Brown?
    Justice Brown. I appreciate that. I believe that I am open-
minded, but I did grow up with a grandmother who said, ``It's a 
fine thing to have an open mind, but it shouldn't be so open 
everything in it falls out.''
    Senator Sessions. Well said. And they note, even if your 
personal views might disagree with the law as it exists, those 
arguments. So I think that is great.
    A bipartisan group of your current and former colleagues 
have written also in support. Twelve former colleagues, judges, 
wrote this Committee, ``Much has been written about Justice 
Brown's humble beginnings and the story of her rise to the 
California Supreme Court is truly compelling, but that alone 
would not be enough to gain our endorsement for a seat on the 
Federal bench. We believe that Justice Brown is qualified 
because she is a superb judge. We who have worked with her on a 
daily basis,'' not some groups around here to make money 
running direct mail, claiming that they are stopping extremist 
judges. That is what they do, distorting people's records.
    They know you. They have worked with you, and they say that 
``She is qualified because she is a superb judge. We who have 
worked with her on a daily basis know her to be extremely 
intelligent, keenly analytical and very hardworking. We know 
that she is a jurist who applies the law without favor, without 
bias, and with an even hand.''
    They could put that on your tombstone. That would be pretty 
good.
    Justice Brown. It would be pretty good.
    Senator Sessions. Ellis Horvitz, a Democrat and one of the 
deans of the appellate bar in California has written in your 
support, noting, ``In my opinion, Justice Brown possesses those 
qualities an appellate judge should have. She is extremely 
intelligent, very conscientious and hardworking, refreshingly 
articulate--'' In fact, I think you have a wonderful way with 
words. ``--and possessing great common sense and integrity. She 
is courteous and gracious to the litigants and counsel who 
appear before her,'' and we can see that in your demeanor here 
today, and I think that is an important characteristic of a 
judge.
    Regis Lane, director of Minorities in Law Enforcement, 
wrote, the minority law enforcement officers in all of 
California wrote, ``We recommend the confirmation of Justice 
Brown based on her broad range of experience, personal 
integrity, good standing in the community and dedication to 
public service. In many conversations I have had with Judge 
Brown, I have discovered that she is very passionate about 
plight of minorities in America based on her upbringing in the 
South. Justice Brown's view that all individuals who desire the 
American dream, regardless of their race or creed, can and 
should succeed in this country, are consistent with MILE's 
mission to ensure brighter futures for the disadvantaged and 
youth of color.''
    Well, you have been a leader in the State, and the 
Governor's Office of General Counsel for the California 
Business and Transportation Group, deputy attorney general in 
the Office of the Attorney General, and a legislative counsel 
to the California Legislative Counsel Bureau. It's an 
extraordinary experience in government issues. They have 
suggested you have not been in Washington, but it does not mean 
you have not dealt with Government issues throughout your 
career; is that not true, Justice Brown?
    Justice Brown. That is true, Senator. I don't have the 
specific Federal experience, but I am not without experience in 
administrative law.
    Senator Sessions. And some of those issues dealt with the 
Federal Government at times, did they not?
    Justice Brown. That's true.
    Senator Sessions. Well, Mr. Chairman, I just want to say 
that it is so wonderful to see a justice of her skill and 
ability and integrity, proven record, who has the broad support 
in the State of California, be nominated for this important 
office.
    I would note on the question of whether or not this court 
needs 12 judges, I do not believe it needs 12. I suggested some 
time ago that we not, we reduce officially the number for the 
bench, and my colleagues on the other side of the aisle blocked 
that and did not support that, and now they are talking about 
that. It is something that we should consider.
    I believe, I would be reluctant to fully fill this bench to 
12, but we are now I think 9 or 10, and we need another judge, 
and I think this would be a great justice to the court.
    Chairman Hatch. Thank you, Senator. I personally believe we 
ought to put a full component on the bench, and the 
administration has nominated people for at least 11 of the 
seats.
    We have a vote on the floor, so here is what we are going 
to do, and you have been sitting there for quite a while. 
Senator Feingold is coming back to question you. He will have 
10 minutes while the rest of us go to the floor. I will 
immediately return, but we will allow Senator Feingold, who is 
a gentleman, to start his questioning, even without me here. I 
am sure that will be fine with you, too.
    And then what we are going to do, because there are other 
Democrats who would like to ask questions, including the 
Ranking Member here today, we will recess until 2:15--is that 
okay with you? That will give you a little bit of a break, and 
then we will come back, and hopefully this next round will 
complete the hearing for today, and we will finish it today.
    So we appreciate your patience. I personally appreciate 
your articulate answers to all of the questions that are very 
difficult questions for anybody, and you have handled them very 
well.
    So, with that, we are going to take off and vote. When 
Senator Feingold gets here, his staffer will have him ask 
questions, and then we will adjourn till 2:15. I will try and 
get back myself, but if I do not, and he finishes, then let us 
just adjourn, but no more than 10 minutes. Okay?
    [Laughter.]
    Justice Brown. Thank you, Mr. Chairman.
    Chairman Hatch. I do not want everybody else on my back. So 
10 minutes, I have tried to maintain that, even though I have 
had to yield a little bit here, and I want to thank my 
colleagues for honoring that and showing respect to the Chair. 
It means a lot to me.
    So, with that, we will recess until Senator Feingold gets 
here. He will ask you his 10 minutes, and then we will recess 
until 2:15.
    [Recess from 12:42 p.m. to 12:49 p.m.]
    Senator Feingold. [Presiding] I will call the Committee 
back to order. I want to thank the Chairman and the majority 
for allowing me to proceed in this manner so I can ask my 
questions.
    Justice Brown, welcome, and thank you for appearing before 
the Committee.
    A little while ago you testified in response to questions 
from Senator Hatch that your record could lead to no other 
conclusion than, quote, ``I am not an idealogue of any 
persuasion,'' unquote. You said that, right?
    Justice Brown. Yes.
    Senator Feingold. Let me read the opening of a speech you 
gave to the Federalist Society in 2000 at the University of 
Chicago Law School. You said, ``I want to thank Mr. Schlangen 
for extending the invitation, the Federalist Society, both for 
giving me my first opportunity to visit the city of Chicago and 
for being, Mr. Schlangen assured me in his letter of 
invitation, a rare bastion, nay, beacon of conservative and 
libertarian thought. That latter notion made your invitation 
well nigh irresistible. There are so few true conservatives 
left in America that we probably should be included on the 
Endangered Species List. That would serve two purposes, 
demonstrating the great compassion of our Government and 
relegating us to some remote wetlands habitat where out of 
sight and out of mind we will cease being a dissonance in 
collectivist concerto of the liberal body politic.''
    Can you explain what you meant when you testified that you 
were not an idealogue of any persuasion in light of what you 
said in that speech?
    Justice Brown. Well, I--yes, Senator, I can. And what I was 
referring to when I was speaking to the Chairman is that I 
think--and he was talking about what I have done as a judge, 
and I think that if you look at the cases that I have done as a 
judge, you will find a very evenhanded application of the law, 
that I approach the task by looking at the law and the facts in 
the particular case, and just trying to get it right.
    Senator Feingold. So if we were to really put your 
statement in context you would say, I am not an idealogue of 
any persuasion in my role as a judge? Is that a more accurate 
statement?
    Justice Brown. I'm not--I think that's one way of putting 
that, but I'm not sure that I would concede that because I 
really don't think that the conservative view that I have, 
which is a kind of classical conservatism, is ideological at 
all. But I can certainly say that I'm not ideological as a 
judge.
    Senator Feingold. Well, I tried to give you a way out, but 
I do admire your candor. [Laughter.]
    Let me try something else, exploring some of your writings 
relating to senior citizens. You dissented in an age 
discrimination case, Stevenson v. Super. Ct. In that case Ms. 
Stevenson worked for a hospital for over 30 years and shortly 
before her dismissal by the hospital Ms. Stevenson took a 
period of approved medical leave from work. She informed the 
hospital that she wanted to return to work well within the 
period during which her right to reinstatement was guaranteed 
by hospital policy. Despite this, the hospital refused to 
reinstate her to her old position or to reinstate her to 
another position pending an available opening at her original 
job. Ultimately the hospital fired Ms. Stevenson and she sued.
    The issue in the case was whether Ms. Stevenson was 
entitled to sue her employer under the common law theory that 
the hospital's actions constituted a wrongful discharge because 
of a fundamental public policy against age discrimination.
    The majority of the court found that Ms. Stevenson could 
bring such a lawsuit. You dissented. In your dissent you 
stated: I would deny the plaintiff relief because she has 
failed to establish the public policy against age 
discrimination inures to the benefit of the public or is 
fundamental and substantial. Discrimination based on age does 
not mark its victim with a stigma of inferiority and second 
class citizenship. It is the unavoidable consequence of that 
universal leveler, time, you wrote.
    Before asking you about that dissent, let me also note a 
portion of a speech you gave in August 2000 to a group called 
the Institute for Justice. You stated the following: My 
grandparents generation thought being on the Government dole 
was disgraceful, a blight on the family's honor. Today's senior 
citizens blithely cannibalize their grandchildren because they 
have a right to get as much free stuff as the political system 
will permit them to extract.
    You go on to say in the same speech: Big government is not 
just the opiate of the masses, it is the opiate, the drug 
choice for multinational corporations and single moms, for 
regulated industries and rugged midwestern farmers and militant 
senior citizens.
    In light of these statements it is not surprising to me 
that a number of organizations representing seniors, led by the 
National Senior Citizens Law Center, have written to the 
Committee in opposition to your nomination. I would like to 
give you a chance to explain the statements I just quoted, but 
let me also ask you two questions.
    First, do you really believe that age discrimination does 
not stigmatize elderly Americans, and that this kind of 
discrimination not only should be tolerated in our society but 
is actually natural and justifiable?
    Second, given the views you have expressed, can you 
understand why senior citizens would be concerned about 
appearing before you in an age discrimination case? And what in 
your record would you point to alleviate those concerns?
    I guess I will simply, hearing no objection, have a letter 
from the National Senior Citizens Law Center included in the 
record at this point.
    But now I will turn to you for your explanation of your 
comments and your answer to those two questions.
    Justice Brown. Thank you, Senator. I hope I can remember 
all of the different parts of this question. I want to start 
with Stevenson because I think somehow making a jump that what 
I did in Stevenson had something to do with, you know, what I 
said in the speech, and nothing could be further from the 
truth.
    The first thing to know about Stevenson is that age 
discrimination is covered by the Fair Employment and Housing 
Act in California. We call it FEHA. The way that the 
legislature has provided for age discrimination gives a more 
limited remedy and it's available in more limited circumstances 
than other kinds of discrimination. So part of what I am saying 
there, the legislature has already determined. In other words, 
the California legislature treats age discrimination 
differently than other kinds of discrimination. And my 
statement that it doesn't have the stigma simply reflects the 
reality that we all know and love people who are old, and if we 
have a long life we are going to be people who are old. We all 
pass through that stage. So in that sense it's different from 
being a racial minority or gender discrimination.
    The other thing that I want to make clear about Stevenson 
is that I'm not here denying a remedy for this litigant, 
because they do have a remedy under FEHA. The question that was 
presented to our court was should we also have this parallel 
common law remedy? And we've talked about this a lot this 
morning, but in California the court has said if you are fired 
from a job for a reason that violates public policy, then you 
may have something which we call a Tammany claim, meaning you 
may have this common law remedy that may also apply. I have 
argued in a series of cases that because the legislature has 
acted comprehensively in providing for the FEHA, have actually 
balanced the competing considerations here and have determined 
how it wants this to work, that this is a circumstance where it 
may not be appropriate for the court to come in and create 
another remedy that is parallel to and perhaps undermines what 
the legislature is doing.
    Senator Feingold. I appreciate your explication of 
Stevenson and your reasons for it, and I did invite you to do 
that, but let me now return in my remaining time to the two 
questions that flow from that. I acknowledge your obviously 
superior knowledge of the California law certainly to mine, and 
your point that perhaps the California law relating to age 
discrimination is not as expansive as some other discrimination 
law. But my sense is that of course California does, through 
its legal system, strongly the problem of age discrimination 
and has passed laws to try to deal with it. Is that correct?
    Justice Brown. That's correct.
    Senator Feingold. In light of that I would like to hear 
your answers to the two questions that I--you are right, I did 
as you for a number of things, so let me review what they were.
    First, do you believe that age discrimination does not 
stigmatize elderly citizens, and that this kind of 
discrimination not only should be tolerated in our society but 
is actually natural and justifiable?
    And the second question was: can you understand, given both 
the Stevenson case and the comments that I read from your 
speech that there could well be senior citizens who would be 
concerned about appearing before you, and what do you have to 
say to them?
    Justice Brown. Let me respond to the first part of that 
which is I do not believe that I have ever said that age 
discrimination should be tolerated. I don't believe I've ever 
said that any kind of discrimination should be tolerated. 
What's being discussed there is simply that age discrimination 
may be different than other kinds of discrimination, not that 
it should be tolerated.
    Senator Feingold. Does it or does it not stigmatize elderly 
Americans, age discrimination?
    Justice Brown. I do not think that it is the same as--you 
know, I think that discrimination is wrong. I think that we 
have laws against age discrimination and they should be 
enforced. But I think the fact that we all pass through these 
stages makes it different in quality from other kinds of 
discrimination.
    Senator Feingold. I think that is a fairly straight answer 
and I am going to take it as saying that you do not think it 
stigmatizes senior citizens, although it may have other 
negative consequences.
    Justice Brown. I think that--
    Senator Feingold. Is that a fair statement?
    Justice Brown. I think that would be fair.
    Senator Feingold. And then what would you say to seniors 
who would appear before you in court who have expressed 
concerns about your positions in these cases and your 
statements?
    Justice Brown. I would say to them that they should have no 
concern because when they come into a courtroom or when their 
case is presented at an appellate court of which I am a member, 
I am going to look at their case, I am going to look at the 
law, I am going to look at exactly what's happening, exactly 
the remedy that we have, and I am going to try to resolve that 
case correctly, and that is what I have always done, and I will 
continue to do that.
    Senator Feingold. I thank you. Normally I get a little 
extra time due to a kindly Chairman, but I have to keep my 
word. So with that we will be--thank you, Justice. We will be 
recess until 2:15.
    [Lunch recess at 1:00 p.m.]
    [AFTERNOON SESSION (2:31 p.m.]
    Chairman Hatch. I apologize for being a little bit late but 
between asbestos reform, class action reform, other judges and 
Medicare and prescription drug reform, I just could not get 
back until now, so I apologize.
    Let us turn to Senator Schumer. It is his turn to question. 
Senator, you have 10 minutes.
    Senator Schumer. Thank you, Mr. Chairman.
    First, I had wanted to give a little statement, so I am 
going to do that.
    Chairman Hatch. That will be fine.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. I have to say, Mr. Chairman, that I for 
one am disappointed to be here on this nomination. Instead of 
finding well-qualified, consensus and moderate nominees, the 
White House has once again, in my judgment, reached out for an 
out-of-the-mainstream activist of the first order. It is almost 
as if the administration is looking for the nominee who will 
most antagonize us, not personally, but through her views, 
rather than one on whom we can all agree.
    In case after case Justice Brown goes through pretzel-like 
contortions of logic to get to results that hurt workers, 
undermine environmental protections and do violence to basic 
rights.
    As I reviewed Justice Brown's record, the one thing that 
came through loud and clear is that she is consistently 
inconsistent. Time and time again when a legal question is 
presented twice, she takes two totally opposite approaches in 
order to achieve the outcome she wants. A judge who makes the 
law instead of interpreting it is a judicial activist. Making 
law, not interpreting it, is an undesirable quality in a judge 
whether that judge is coming from the far right or the far 
left, whether that judge is coming from the most liberal or the 
most conservative side, because the founding fathers wanted 
judges who interpret law not make law, and if you are at the 
extremes you tend to have such passionately felt views that you 
want to make law, not interpret it. If you have a passion to 
bring the United States back to the good old days of the 1920's 
or 1890's it is not a very good bet that you are going to 
interpret law.
    Judicial activism would be bad on any court, but it is 
especially dangerous on the D.C. Circuit which is known for 
good reason as the Nation's second highest court. Especially 
when it comes to workers' rights and the environment, the D.C. 
Court is arguably the most important court in the Nation. Since 
the Supreme Court takes so few cases each year, and since a 
grossly disproportionate number of labor and environmental 
cases come to the D.C. Circuit, this is often the court of last 
resort for those who seek to vindicate workers' rights and 
protect the environment.
    Now, Judge Brown's record, when it comes to workers' 
rights, the environment and many other important issues leave 
many of us up here scratching our heads in wonderment. In a 
sense I have to respect her bluntness, but it is obvious to me 
that many of the President's judicial nominees want to return 
us not just to the 1930's but to the 1890's. I know this has 
been discussed, but I cannot get over it. In Justice Brown's 
case she is remarkably straightforward in her praise of the 
Lochner case, and her criticism of Justice Holmes' famous 
dissent there, calling Justice Holmes simply wrong. Even 
Justice Bork defended the Holmes' dissent. In Lochner the Court 
invalidated a New York labor statute that limited the number of 
hours laborers in bakeries could work. Fundamental justice for 
most Americans for close to 100 years. The Court, over Judge 
Holmes' vigorous and ultimately vindicated dissent, held the 
New York statute violated a liberty of contract right that had 
not been previously recognized, and the doctrine lived for 
three decades until the Court shifted.
    If you ask most lawyers to name the worst of Supreme Court 
decisions in the 20th century, Lochner would be at the top of 
the list. But Justice Brown thinks it was correctly decided. 
Even Justice Scalia, who so often advocates cutting back on 
Congress's power to protect basic rights, is content to let the 
states do so themselves. In this instance, as in others, 
Justice Brown finds herself willing to go even further to the 
right than Justice Scalia. Justice Brown not only wants to turn 
back the clock, she wants to turn back the calendar, and not 
just by a few years, but by a century or more.
    Justice Brown, you seem like a nice person. You are clearly 
a very smart person. But to me, brilliance is not the only 
criteria. You can be the smartest person in the world, but if 
your views are way out of the mainstream you do not belong on 
the D.C. Court of Appeals. So I want to tell you that there is 
a lot in your record that troubles me, and I think you have got 
a rough road to hoe, at least on this side of the aisle.
    My question is this: before we broke for lunch you made the 
point that we should view your speeches separately from your 
judicial opinions. You said, if I understand it correctly, that 
while your political opinions may reflect your personal views, 
it is your judicial opinions that reflect what kind of judge 
you would be on the D.C. Circuit.
    First I would like to know is that a fair understanding of 
what you said?
    Justice Brown. I think so.
    Senator Schumer. Thank you. In light of that, I would ask a 
follow up question on your comparison of the post Lochner era 
to a socialist revolution. You distanced yourself from that 
comparison by saying it was a part of a speech made to a young 
audience, and designed to, as I believe you said, stir the pot. 
While I think it is a pretty radical comment for a sitting 
judge to make, even if it is just designed to spur debate, I am 
not satisfied that it is just your personal view and has no 
bearing on your judicial opinions, because we all know that 
judges' personal views affect their judging. We do not have to 
draw on evidence of other conduct.
    Let us go to your own record. In Santa Monica Beach v. 
Super. Ct. you called the, quote, ``demise of the Lochner era 
the revolution of 1937.'' Those are your words. Those are 
nearly identical to what you said in your Federalist Society 
speech. So even if we were believing your court views as 
opposed to your stirring the pot to these young minds' views, 
you still seem to cling to that belief, at least until today.
    You were also asked about a speech given to the Institute 
of Justice, where you said, quote, ``If we can invoke no 
ultimate limits on the power of Government, a democracy is 
inevitably transformed into a kleptocracy, a license to steal, 
a warrant for oppression.'' You dismissed that speech as well, 
claiming that it did not necessarily reflect your views as a 
judge. But in San Remo Hotel v. City and County of San 
Francisco, you said--and that is a case obviously--``Turning a 
democracy into a kleptocracy does not enhance the stature of 
thieves, it only diminishes the legitimacy of Government.''
    Are these not your views both as a private citizen and as a 
judge? If not, can you explain why virtually identical 
rhetoric, that many would call quite extreme, finds its way 
into both your speeches and your judicial opinions?
    Justice Brown. Thank you for your question, Senator. There 
is a lot there, so I will try to work backwards from your 
question to some of the more general statements that you made. 
I will willingly acknowledge that a judge is not some kind of 
automaton or computer. You know, a judge is a thinking human 
being, and the writing of a judicial opinion is an organic 
activity. So it is never true that nothing of a judge is 
reflected in the work that they do. Writing is that kind of 
task. And I think judges have struggled with this forever, and 
there's lots of good commentary about how it is that a judge 
achieves the necessary distance. And Judge Hand said, you know, 
a judge has to be like a runner, stripped for the race. 
Frankfurter said, no, it's more that--you can't ever not be 
what you are, but you have to be very conscious of it and you 
have to put it aside and you have to deal in a very candid way 
with the way that you approach the task. So I do not think that 
the sides are hermetically sealed, but I think that you can be 
very principled in the way that you approach the work, and that 
when you make a decision, your decision has to be on the law 
and the facts in an individual case and has to be justified, 
and that you have to create a context that allows people to 
evaluate what you've done and see it clearly.
    Senator Schumer. I guess I would ask the question. You were 
telling all of us--I am sorry I could not be here this morning 
for much of the time--but you were telling us that your views, 
as you do in speeches and whatever else, are different than 
your court-written opinions, and yet in these two instances, 
both again--these are pretty severe statements that you made--
you made very similar statements in your opinions. So how can 
we believe you when you say, ``Oh, well, do not worry about 
what I say in the rest of the world; just look at what I say as 
a judge,'' when the two are so much the same, and you still 
seem, even if we were to discount all your speeches, to still 
hold these views of kleptocracy and Lochner, and again, the way 
I look at it, going back to the 1890's. I think we have made 
great strides in America. I would say 97 or 98 percent of all 
Americans would agree with me we have made great strides.
    And you seem to feel--and you know, we are always a little 
leery when people come to this table looking for our support. 
We have to look at the record in the past. But whether you look 
at the written record--because everyone comes before us and 
says, ``Forget what I did in the past. I will just interpret 
the law.'' Now, fortunately you have a record and you are a 
forthright and very intelligent person. So we can ask. It is 
not like some of the others who refuse to answer any questions. 
But your judicial opinions seem to have the same views. Again, 
explain to me why I should believe that the two are separate 
when you have used very similar language and very similar 
thinking that you used in your speeches in your court opinions?
    Chairman Hatch. Senator, your time is up.
    But you should answer the question.
    Justice Brown. Okay. I totally agree with you, Senator, in 
saying that we've made great strides. I certainly know that, 
and I've seen that in my lifetime. It's one of the reasons that 
I think this is a great country, because we've been able to be 
self critical and we've been able to change, and we've been 
able to bring into being some of the, I think, sort of 
underlying aspirational goals that go all the way back to the 
Declaration of Independence. So I agree with you totally about 
that. And--
    Senator Schumer. Just explain to me how we can reconcile 
what you said this morning in almost identical language and 
identical thinking in both the court cases and the speeches in 
these two instances.
    Justice Brown. I think the way that you can reconcile is 
exactly the way that I have explained. I don't think that any 
human being thinks in a vacuum. I think that you always come 
out of a world view--you are always working through your 
experience, your education, your convictions, but as a judge 
you have to be conscious of that and then deal with what's 
before you.
    Now, it may turn out that when I have done this, absolutely 
even-handedly and carefully and thoughtfully, that I reach a 
conclusion, you know, where I think, well, you know, this looks 
like this other thing. But we ought to be concerned about is 
whether I am in fact trying to reach that conclusion or being 
results-oriented. And I really think that if you look at my 
work you will not see that.
    Now, what you said earlier was ``you are consistently 
inconsistent,'' and then you used that to say, well, you know, 
``but you're also ideological.'' I don't think that both those 
things can go together. What you are seeing, what you think of 
as consistently inconsistent is because I am simply looking at 
the case, I am looking at law. I am trying the right decision 
in each case.
    Senator Schumer. I just want to ask one more question, Mr. 
Chairman, with your indulgence.
    Do you stand by your views in San Remo Hotel v. City and 
County of San Francisco about kleptocracy, and do you stand by 
your views in Santa Monica Beach v. Super. Ct. about the demise 
of the Lochner era and the revolution of 1937?
    Justice Brown. Well, the cases say what they say, and I 
hope that--I always try to do an analysis that is very 
assessable, that anybody who reads it can understand what I've 
said.
    Senator Schumer. So you do stand by them?
    Justice Brown. I have tried to write--
    Senator Schumer. You can answer that yes or no.
    Justice Brown. Well, the cases are there. I guess that's--
    Senator Schumer. So the answer is yes.
    Justice Brown. Well, the concern I have, Senator, is that 
you started off--
    Senator Schumer. But--
    Chairman Hatch. Let her answer the question.
    Justice Brown. --making a lot of statements about what that 
was, and so--and what my views were and what that meant. And so 
all I'm saying is what's in the cases is in the cases, and it 
should be clear.
    Senator Schumer. I am going to take that as you stand by 
those views because you have not refuted them here and you said 
what is in there is in there.
    Thank you, Mr. Chairman.
    Chairman Hatch. Let me just say I do not take it that way. 
I take it that, Senator, you have interpreted it the way you 
want to, but that is not the way I meant it.
    Senator Schumer. Well, Mr. Chairman, it is a simple yes or 
no question. Do you stand by them? Do you not stand by them? 
And we cannot get a yes or no.
    Chairman Hatch. No, it is not because she has consistently 
explained throughout this whole hearing that she put this 
language into those opinions and that that language deserves to 
be interpreted differently from the way you have interpreted 
it. It is not just a simple yes or no. I think that is a fair 
statement, is it not?
    Justice Brown. Yes.
    Chairman Hatch. In other words, you do not have to take 
Senator Schumer or my interpretation of what your cases say. 
But to try and paint you like your back in the Lochner era, 
without understanding what Lochner is all about I think is just 
wrong.
    Justice Brown. Mr. Chairman--
    Chairman Hatch. You do understand it.
    Justice Brown. Mr. Chairman, if I may, I do need to follow 
up on something because the prologue to your question was quite 
long.
    And you made a statement that: You're obviously out of the 
mainstream, you clearly take positions that not even very 
conservative judges take, and you base that on this idea that I 
want to return to Lochner, that I said Lochner was rightly 
decided. I have never said that. And in fact, in my cases, I 
have actually said that to the extent that Lochner court was 
using the Due Process Clause as a blank check to simply insert 
their political views into the Constitution, that they were 
justly criticized. And I have also said that that portion of 
the Holmes' dissent, which is simply reflecting a deference to 
the legislature, is one that I generally agree with.
    Senator Schumer. Do you agree with the holding of Lochner?
    Justice Brown. I have said that I think that it's 
appropriately criticized and it's been discredited. I mean 
Lochner is like this curious case that has actually ended up 
creating a new word in the English language, and I think I've 
even said that it stands for--it's the most pejorative thing 
that you can say among attorneys.
    Senator Schumer. You do not agree with the holding of 
Lochner?
    Justice Brown. I think that I've been clear. I said that it 
is appropriately criticized to the extent that they were 
inserting their views into this case, or into the Constitution 
I guess. That's the issue.
    Senator Schumer. Thank you, Mr. Chairman.
    Senator Durbin. Mr. Chairman?
    Chairman Hatch. I will be happy to turn to you, Senator 
Durbin, but I want to follow up with some questions.
    Senator Durbin. If I can ask the Senator from New York to 
just if you could, stay a moment.
    I would like to read into the record what you said, and 
this was at the Federalist Society, University of Chicago Law 
School speech, April 20th in the year 2000. Here is what you 
said: ``In his famous, all too famous dissent in Lochner, 
Justice Holmes wrote that the, quote, `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,' '' end of quote. And then you went 
on to say: ``Yes, one of the greatest, certainly one of the 
most quotable jurists this Nation has ever produced, but in 
this case he was simply wrong. That Lochner dissent has 
troubled me, has annoyed me for a long time, and finally I 
understand why. It's because the framers did draft the 
Constitution with a surrounding sense of a particular polity in 
mind, one based on a definite conception of humanity.''
    Justice Brown, you were unequivocal here in saying that you 
disagreed and that Justice Holmes was wrong, and despite the 
statements by the Chairman and some of the things you have said 
today, unless you are prepared to disavow this speech and some 
other things you have said, I have to say your words are very 
clear.
    Justice Brown. Well, I think I was clear, too, Senator, and 
I think that what is being said there--and I think the context 
of the speech bears it out--is that I had a difference of 
opinion with this idea that the Framers of the Constitution had 
no economic notion. I think it's very clear, when you read the 
history, that there was a concern about property; that the 
American Revolution was a revolution that was really fought 
over property; that one of the reasons that the Constitution 
came into being, you know, instead of just modifying the 
Articles of Confederation, was that there was concern about 
what legislative majorities were doing with property. So both 
in the Constitution and in the Bill of Rights, that concern, 
you know, finds expression in specific language.
    Senator Durbin. I would like to ask more questions, but if 
you would like to go first?
    Chairman Hatch. Let me go first, and then we will turn to 
Senator Durbin. Let me follow up on Senator Specter's question 
about your opinion in the Hi Voltage case, Proposition 209, and 
the Federal Supremacy Clause. Now, the Ninth Circuit Court of 
Appeals, clearly one of the most liberal if not the most 
liberal appellate court in the country, or at least in the 
Federal judicial system, we will put it that way, has ruled--
and this is noted in the majority opinion of the Proposition 
209 case--that Proposition 209 does not violate the Equal 
Protection Clause. Also, Federal courts have ruled that that 
proposition does not violate Federal civil rights statutes.
    Now, in your opinion, I would note you acknowledge the 
Supremacy Clause would dictate Federal law would prevail; if 
Proposition 209 violated the U.S. Constitution or Federal 
statutes, that literally Federal law would prevail. Is that 
correct?
    Justice Brown. Of course.
    Chairman Hatch. Okay. Now, Justice Brown, throughout this 
hearing, we have heard that you are too critical of Big 
Government. Join the crowd. There are a lot of us up here who 
are, too, and there are a lot of judges throughout the country 
who are, both liberal and conservative judges. But I think a 
close examination of your record indicates that any personal 
antipathy you may have expressed towards Big Government does 
not interfere with your judicial decisionmaking. I think any 
fair reading of your opinions will result in that conclusion.
    Now, we can pick cases out of your 750-plus cases that you 
have sat in on and helped to decide and wrote opinions on. We 
can pick cases, anybody on this Committee could pick cases with 
which they disagree. But that is true of every judge, unless 
you are just totally liberal or totally conservative, and some 
people think that might be a good thing. I do not. I think 
being totally right is better than being liberal or 
conservative. I think doing total justice is more important 
than being liberal or conservative. I think doing what is right 
is more important than being liberal or conservative. But, 
naturally, you are going to have liberals on this Committee who 
do not agree with some of your decisions, but, by gosh, they 
agree with a lot of them, too.
    Now, what does that mean? Does that mean that you are 
outside the mainstream when you can please them on some but you 
don't please them on the others? And you are going to have 
conservatives that don't agree with all your opinions, but on 
some they are going to agree. Does that mean you are out of the 
mainstream? Heavens, no. That is true of almost any judge that 
is in any kind of a tough situation of making real decisions in 
this world based upon the law.
    Now, let's take, for example, the case of Lundgren v. 
Super. Ct. There you joined in an opinion upholding the Safe 
Drinking Water and Toxic Enforcement Act of 1986, and you 
expansively interpreted the phrase ``source of drinking water'' 
to include faucets allegedly containing lead so that the 
plaintiffs could proceed with their case. Is that right?
    Justice Brown. That's correct.
    Chairman Hatch. Well, I think that would please all of our 
liberal brethren, and sisters, and I hope it would please all 
of our conservatives, because it happened to be right. So the 
Government does have the responsibility in assisting and 
protecting the environment, doesn't it?
    Justice Brown. Yes, it does.
    Chairman Hatch. And you have never said otherwise.
    Justice Brown. And I have never said otherwise.
    Chairman Hatch. And isn't it also true that in Bockrath v. 
Aldrich Chemical Company you upheld the right of the plaintiff 
to sue for exposure to toxic chemicals using the Government's 
environmental regulations? Didn't you do that?
    Justice Brown. That's true.
    Chairman Hatch. Well, that sounds to me like something that 
should please my colleagues on the other side and say, Well, 
maybe she is in the mainstream because we agree with her. I can 
name a lot of cases they agree with you on, but I can show some 
that they don't agree. They are showing them here. But that 
doesn't mean you are outside the mainstream. That is just a 
shibboleth. That is a phony excuse to say we are not going to 
vote your way. And it is a cover-up more than it is an honest, 
intellectual process.
    Isn't it true that in Lockyer v. Shamrock Foods you upheld 
California's very stringent standards for identifying and 
labeling milk and milk products, thereby ensuring that the 
Government has a role in protecting the safety of our children 
and all Californians? Is that correct?
    Justice Brown. That's correct.
    Chairman Hatch. My goodness, I think our colleagues on the 
other side ought to be shouting ``Hurray'' for you. My 
goodness. And I think our colleagues on this side would as 
well.
    In Ramirez v. Yosemite Water Company, you joined in an 
opinion validating State regulations regarding overtime pay, 
didn't you?
    Justice Brown. I did.
    Chairman Hatch. Well, by gosh, how could you do that if you 
hate Government like they have lifted these quotes out of your 
speeches?
    You don't have to answer that. That was rhetorical.
    [Laughter.]
    Chairman Hatch. Isn't it true that in Pearl v. Workers' 
Compensation Appeals Board, you upheld the role of the Workers' 
Compensation Appeals Board in applying a stringent standard of 
``industrial causation'' for a worker's injury, thereby showing 
that the State has a proper role in ensuring the safety of 
workers? Didn't you do that?
    Justice Brown. That's true, Senator.
    Chairman Hatch. Well, my gosh, how could you support the 
Government? I mean, that is odd because I have been hearing 
that you do not support the Government, that your statement 
lifted out of context should ban you from serving any further 
as certainly a judge on the Circuit Court of Appeals for the 
District of Columbia.
    Well, Justice Brown, in light of all these cases, you know, 
I find it a bit hard to believe that those who never met a 
Government program they did not like should be criticizing you, 
who has met Government programs that you have sustained because 
the law required it. Do you differ with that?
    Justice Brown. I don't disagree with anything that you say, 
Mr. Chairman.
    Chairman Hatch. Well, let's take a look at one more case 
that shows your respect for the proper role of Government. In 
the 2002 case, Kasler v. Lockyer, didn't you author the court's 
opinion upholding State gun control legislation?
    Justice Brown. I did.
    Chairman Hatch. And specifically you rejected the 
proposition that the State Constitution includes a right to 
bear arms?
    Justice Brown. The California Constitution, unlike the 
Federal Constitution, does not have a specific right to bear 
arms. It does have a right to fish, but no right to bear arms.
    Chairman Hatch. So you upheld the California Constitution?
    Justice Brown. Yes.
    Chairman Hatch. Well, my goodness, it would seem to me some 
of our colleagues on the other side ought to give you credit 
for that. But I have not heard that yet. I have not heard very 
much credit given to you for all these opinions with which they 
agree, and we could name dozens of them--in fact, probably most 
of them.
    Didn't anti-gun control groups like Handgun Control and the 
Center to Prevent Handgun Violence applaud your decision while 
the National Rifle Association ran an advertisement targeting 
you as hostile to the Second Amendment? Didn't that happen?
    Justice Brown. The National Rifle Association was very 
unhappy with that decision, ran a series of infomercials where 
my picture was prominently displayed.
    Chairman Hatch. Does that give you second thoughts? Maybe 
you should not have done that to irritate the National Rifle 
Association like that. Does that give you second thoughts?
    Justice Brown. Well, no, because--
    Chairman Hatch. Why?
    Justice Brown. Because I approached the case to decide what 
the right answer is, and that is the only point--
    Chairman Hatch. Based upon what? Based upon what?
    Justice Brown. Based upon the Constitution and the law that 
applies to it.
    Chairman Hatch. Based upon the Constitution and the law.
    Justice Brown. And what the facts are.
    Chairman Hatch. That is what judges should do, shouldn't 
they?
    Justice Brown. I think so.
    Chairman Hatch. Well, some of our colleagues want judges to 
make laws. Now, that happens on both sides of this table from 
time to time, but in all honesty, a lot of our liberal 
colleagues would just love to have judges on the appellate 
courts who would make the laws that they would never have a 
chance of getting through the elected representatives of the 
people in the Congress.
    Well, in case there is any doubt about your real concern 
about the consequences of gun violence, let me quote from your 
concurring opinion in Kasler: ``It is impossible not to grieve 
for the thousands of young men cut down in their prime, 
impossible not to mourn toddlers slaughtered in the midst of 
innocent play, impossible to ignore the grim reality of 
schoolchildren whose final moments echoes with screams of 
terror and the sudden slap of bullets. All too often, the 
killers are children, too.''
    You said that, didn't you? You wrote that?
    Justice Brown. I did write that, yes.
    Chairman Hatch. Okay. Well, Justice Brown, Senator 
Feinstein mentioned that she was deeply troubled by your 
dissenting opinion in People v. McKay. However, I have got to 
say I am deeply impressed with your opinion in that particular 
case, which involved a young man arrested for riding his 
bicycle in the wrong direction. You were the sole dissenter in 
a 6-1 decision.
    Now, would you please take some time and tell this 
Committee about that case and why you wrote a separate opinion 
dissenting, in part?
    Justice Brown. Thank you for the opportunity to explain 
that case, Mr. Chairman. I was somewhat surprised that Senator 
Feinstein took issue with that case. It's true I was the lone 
dissenter, but it was a case where there was a use of a very 
minor infraction to generate a very broad-ranging search, and 
that happened because under California law you can't really be 
arrested for an infraction. It's a cite and release, and so 
there would never be any search incident to arrest.
    But in a circumstance where it's a minor infraction and 
then you don't provide what is considered to be adequate 
identification, then the officer is permitted to actually 
arrest the person who has been stopped. And what happens is 
that once you have an arrest or a potential arrest, then you 
can have a search incident to that arrest, and that's a very 
broad-ranging search.
    So what happened in this case was a man who was stopped for 
riding his bicycle on the wrong side of the street ended up 
being subjected to a custodial search, essentially; contraband 
was discovered, and he ended up with a 3-year prison sentence.
    So what I was doing in that case was simply saying to my 
colleagues to give this kind of unbridled discretion to a 
police officer invites discriminatory enforcement, and that was 
very consistent with prior precedent of our court, which had in 
a slightly different context said that that was inappropriate.
    So even though what the court did was justifiable under 
precedent, there was other alternative precedent which would 
have allowed them to reach a different conclusion in this case, 
or at least so I thought. And I thought it was worth exploring 
that and making that argument. Unfortunately, I didn't convince 
any of my colleagues.
    Chairman Hatch. But you felt it was an unreasonable search 
and seizure under the circumstances.
    Justice Brown. I did.
    Chairman Hatch. Under the Fourth Amendment.
    Justice Brown. I thought that to permit that kind of search 
under those circumstances really opens up the potential for a 
lot of small infractions to be turned into basically general 
searches, a kind of law enforcement mechanism that could be 
applied very arbitrarily.
    Chairman Hatch. That I have to say I don't think the 
Supreme Court of the United States would permit in its current 
makeup. Now, could I just finish this? My time is up, but I 
will try and finish this line of thought.
    You wrote in your opinion some striking language that I 
would ask you to comment upon after I finish quoting you. You 
wrote, ``In the spring of 1963, civil rights protests in 
Birmingham united this country in a new way. Seeing peaceful 
protesters jabbed with cattle prods, held at bay by snarling 
police dogs, and flattened by powerful streams of water from 
fire hoses galvanized the Nation.'' You go on to say, ``Without 
being constitutional scholars, we understood violence, 
coercion, and oppression. We understood what constitutional 
limits are designed to restrain. We reclaimed our 
constitutional aspirations. What is happening now is more 
subtle, more diffuse, and less visible, but it is only a 
difference in degree. If harm is still being done to people 
because they are black or brown or poor, the oppression is not 
lessened by the absence of television cameras.''
    You continue: ``I do not know the defendant's ethnic 
background. One thing I would bet on''--this is your opinion, 
what you wrote in it. ``One thing I would bet on, he was not 
riding his bike a few doors down from his home in Belair or 
Brentwood or Rancho Palos Verdes, places where no resident 
would be arrested for riding the `wrong way' on a bicycle, 
whether he had his driver's license or not.''
    Well, it would not get anyone arrested unless he looked 
like he did not belong in the neighborhood. You understand 
that, don't you? Let me continue.
    ``That is the problem, and it matters. If we are committed 
to a rule of law that applies equally to `minorities as well as 
majorities, to the poor as well as to the rich,' we cannot 
countenance standards that permit and encourage discriminatory 
enforcement.''
    You made those comments in that opinion, didn't you?
    Justice Brown. I did.
    Chairman Hatch. And some of those comments came because you 
understood through your background how oppressive unreasonable 
searches and seizures might be, not because you had 
unreasonable searches and seizures, but you saw people in the 
South who were exposed to that type of bad treatment or you 
knew of them.
    Justice Brown. That's right, Mr. Chairman, because 
discriminatory enforcement is another way to discriminate, and 
the point I was trying to make there is that there may be more 
subtle forms of discrimination, but we nevertheless have to 
continue in our aspiration to root that out wherever we find it 
and to make sure that everyone is treated equally before the 
law.
    Chairman Hatch. Well, I would just note for the record 
something remarkable that Timothy P. O'Neill, professor of law 
at the John Marshall Law School in Chicago, wrote regarding 
this case. In calling upon Illinois not to make what he sees as 
the ``mistake that the California Supreme Court made in 
McKay'', that is, what Mr. O'Neill characterizes as allowing 
``police to flout State laws on arrests,'' Mr. O'Neill 
approvingly cites and quotes from Justice Brown's opinion 
before writing, ``Justice Janice R. Brown's concurring and 
dissenting opinion in McKay should be required reading for all 
criminal lawyers.'' High praise indeed.
    Now, I think it is really unfair to have you, the nominee 
of the President of the United States for the Circuit Court of 
Appeals for the District of Columbia, be picked apart on 
perceptions of what you might have done on half of your cases--
not even half but some isolated cases that have been quoted 
here and will be quoted more perhaps before this hearing is 
over, and ignoring all of the terrific legal work you have 
done.
    I happen to agree with your cases that are being criticized 
here. I think you can explain every one of them and explain 
them intelligently and show that not only you are in the 
mainstream, you are one of the great jurists in this country. 
But ignore all the other great cases that you have done? To 
pick isolated cases? We are known to do that here on this 
Committee. It is not fair, but then, again, members can do 
whatever they want to do on this Committee, within reason.
    So I just want you to know that I don't see one reason in 
the world for anybody not to support your confirmation here, 
but let's listen to the other side and see what they have to 
say.
    Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman.
    Justice Brown, during the lunch break, a number of my 
colleagues in the Senate asked me, ``How is your hearing going 
with Justice Brown?'' and I told them that you made a very 
positive impression, that some of the information that was 
brought forward by my Republican colleagues about a terrible 
racist cartoon I thought really created an environment within 
the Committee where people were really trying their best to be 
as fair as they could under very trying circumstances.
    But I said--and I think others on the Committee have agreed 
with me here--we struggle with nominees who come before us and 
don't just say, ``Take me for what I've said. There are some 
things,'' some of the nominees say, ``that I now agree with and 
some things I don't agree with.''
    As Chairman Hatch has said, you have been party to a lot of 
decisions as appellate court judge and a Supreme Court Justice, 
and it is almost like Senator Hatch and myself--well, maybe not 
so much in his case, but if you look at all the votes we have 
cast, you can just about mold whatever kind of political figure 
you want out of those votes.
    But over time, an impression is created, and the impression 
may be of a conservative to my right and a liberal to his left. 
But that is just a natural conclusion.
    I think the thing that continues to trouble me is this 
belief that judges are automatons, that it is just almost a 
robot reaction, that all you have to be told is here is the 
precedent, here are the facts, and here is the decision that 
comes out the other end. I don't think that is how it works. I 
really believe that there is an element of judgment involved 
here, and whenever there is judgment, there is subjectivity. 
You will see some facts differently than your colleagues. We do 
in the Senate. We do in the House. And the question then is: 
When there is a subjective element, what will be going through 
your mind? That is probably what we are asking here.
    I don't apologize for raising questions about opinions that 
you have written. If we cannot ask questions about those, I 
might say to the Chairman, why are we even here? There is no 
point in it. We are just supposed to take President Bush's 
nominees and say, if you like them, Mr. President, that is just 
fine? I don't think that is our responsibility. I think we have 
more that we have to look to.
    I want to go to two specific areas here and see if I can 
ask you for your reasoning. People v.Mar, involving a criminal 
defendant who was asked to wear a 50,000-volt stun belt during 
the trial, the defendant was on trial for resisting arrest, 
forced to wear the stun belt beginning on day two of the trial, 
though he had been well behaved on the first day. Wearing that 
stun belt made him nervous, especially during his testimony, 
and stun belts have a history of accidental activations and the 
belt administers a 50,000-volt shock for 10 seconds, enough to 
cause immediate uncontrolled body seizures as well as skin 
welts and the like.
    You were the dissenting vote in that case. The rest of the 
Justices on the Supreme Court--and as I might remind those 
following this, six Republicans, one Democrat. The rest of the 
Justices on the court felt that it was unfair to require this 
defendant to wear this apparatus while he was on trial, a very 
serious trial, a very serious charge.
    You suggested in your dissent that a high school student 
could do a better job than the majority on your court, the 
court that you serve on, of researching the issues. You accused 
your colleagues of ``rushing to judgment after conducting an 
embarrassing Google.com search for information outside the 
record.''
    Do you stand by those statements today?
    Justice Brown. Well, I thank you for asking that question, 
Senator, because it is something I really would like to 
explain.
    The question that was before our court was: one, should the 
trial court have held a hearing to decide whether restraints 
should be used? And, two, if yes and they did not, was the 
error prejudicial? So the court decided based on an earlier 
precedent that we have called Duran that there should have been 
a hearing. It wasn't completely clear that a hearing was 
required because the basis of Duran was that visible restraints 
might have an effect on the jury and, therefore, the court 
should look and make a finding that those visible restraints 
were required.
    So it wasn't clear what should happen when the restraints 
were not visible. But assuming that the court is right, that 
there should have been a hearing and there should have been a 
finding, then the next question was: Was there prejudice? And 
the court actually doesn't find that there was prejudice. This 
defendant testified fully.
    Now, so let me go back to the beginning here. I don't know 
whether a stun belt should be used here. I don't know whether a 
stun belt should ever be used. I don't know exactly how these 
stun belts operate, and I don't know exactly what they do. And 
the reason for that is that question was never presented to the 
court. There was nothing in the record before us about that 
because that's not what the case was about.
    So the majority here may well be right, and in a different 
kind of case, were it a case for a declaratory relief saying 
these shouldn't be used, where both sides had an opportunity to 
present their evidence, they might well have reached that 
conclusion.
    In a case where something had happened to this particular 
defendant and it was a tort claim of some kind, where there was 
evidence on both sides and there was a record presented to us, 
that might be the right conclusion.
    I am not saying in any of this that stun belts should be 
used or that that's a good idea or anything. My concern in this 
case was about what the court did. There is a particular way 
that appellate process is supposed to be conducted, and it is 
to look at the law and the facts, the claim that is being 
presented in the particular case, and to resolve that case. And 
so what the court was doing here was completely outside the 
record.
    So I don't think that what I was saying there is at all odd 
or outside the mainstream or anything like that. I think 
everybody agrees how appellate courts are supposed to operate, 
and here the court just decided it would do otherwise.
    Senator Durbin. On its face, wearing a 50,000-volt stun 
belt while you are criminal defendant during the course of your 
trial, you couldn't accept that that might create some 
psychological problem for the defendant?
    Justice Brown. Well, the record doesn't actually establish 
that. The defendant testified fully. And there's no indication 
that he was inhibited in any way. That's the problem. An 
appellate court--I could speculate all kinds of things. But the 
court is actually supposed to rule on the basis of the record.
    Senator Durbin. Well, I read the record here, and frankly I 
think there is evidence that, at least as counsel said, ``he 
feels that putting the belt on him now is basically creating a 
difficult mind situation for him to be able to think clearly 
and be able to testify properly without having a breakdown of 
his strong emotions.'' That is in the record. That is what you 
had before you.
    Justice Brown. That's what counsel said before he 
testified, but he testified and none of those things happened.
    Senator Durbin. Well, I just frankly think if we are going 
to go around with 50,000-volt stun belts and hand them out to 
Senators and witnesses before committees, I think we may have 
shorter hearings and different questions and most of us will 
take judicial notice of why. And I can't understand why you 
were the single dissent in that--
    Chairman Hatch. But normally we don't have violent 
criminals in our courtroom here.
    Senator Durbin. Well--
    Chairman Hatch. Although I have seen some.
    Senator Durbin. But the point I want to make is if we are 
talking about a presumption of innocence, which at times it is 
painful to presume, and we are talking about a criminal 
defendant having a chance to defend himself before a jury of 
his peers, you can't stack the deck going in. You basically 
have to say there is going to be a fair trial. And this went to 
it.
    Let me go to one other point, if I might, and that is this 
whole question of property rights, because I think that keeps 
recurring in your speeches. In fact, you have made reference to 
it today. And I would like to ask you if you believe there is a 
hierarchy of rights in this country and whether in that 
hierarchy of rights that the rights to property are as equal to 
or greater than the rights which we customarily assign to 
people in terms of their own freedoms and liberties, speech, 
religion, assemblage, privacy.
    Where do you put the right to property in that hierarchy?
    Justice Brown. Well, I think there has been a great deal of 
discussion about the dichotomy that was created, and I think 
even the Supreme Court itself has in more recent cases 
acknowledged that that dichotomy, that notion that property 
rights are not entitled to the same level of protection as what 
is called fundamental rights or fundamental liberties, I think 
the Supreme Court itself has reconsidered that and certainly 
has said something like that in cases like Nolan and Dolan.
    There's nothing that I can see in the grammar or the way 
the provision is put together that suggests to me that the 
drafters of the Constitution were looking at this differently. 
And there is much historical information that suggests that 
they saw property and liberty as indivisible. In other words, 
they were sort of opposite sides of the same thing, and there's 
the language that's often used that property is the guardian of 
every other right.
    Senator Durbin. So do you believe--I want to make sure this 
is clear for the record because some of your speeches I think 
go far afield of what you have just said. Do you happen to 
believe that the liberty of the individual is equal to the 
property rights of another individual in this hierarchy of 
rights?
    Justice Brown. Well, I want to answer this question 
clearly, and I'm not sure, the way you phrased the question. 
But let me try to--
    Senator Durbin. I want you to put it in your words.
    Justice Brown. Okay.
    Senator Durbin. Forget my question. Just explain your 
thinking.
    Justice Brown. Let me try to put it in my words. I believe 
that property and liberty--when the Fifth Amendment says, you 
know, no deprivation of life, liberty, or property without due 
process of law, it seems to me that those are really all on the 
same level. I'm not saying that, you know, property is greater, 
but I really think that it's very clear that property and 
liberty are linked in the minds of the drafters of those 
provisions. And one of the very interesting things that I have 
seen lately is an essay by Madison where he talks about the--
you know, he talks about property in a way that almost brings 
together property rights and the First Amendment because he's 
essentially saying a man has a property in his ideas.
    Senator Durbin. You wrote in this famous speech to the 
Federalist Society, since it has become famous today--
    Justice Brown. It has become famous. Actually, the audience 
was only about 40 people, and so it's gotten much wider 
distribution now.
    Senator Durbin. It is a very--you know, you talk about 
doing these speeches part-time. Even though I do not agree with 
much of your speech, it is an excellently researched and 
footnoted speech. So if this is what you do part-time, I don't 
know if your husband gets to see you at all.
    But let me just say this: You say in this speech, 
``Protection of property was a major casualty of the Revolution 
of 1937.'' That, of course, refers back to Franklin Roosevelt's 
New Deal. What did you mean by that?
    Justice Brown. I don't think that's at all controversial. 
After 1937--there's a famous footnote in a case called Carolene 
Products, Footnote 4, that infamous footnote, where the court 
basically said, well, we are kind of just going to do rational 
basis review of economic regulation, but we will do a stricter 
scrutiny where the rights of--I believe the phrase they use 
is--``insular minorities'' is involved. And so that's the 
beginning of the Supreme Court jurisprudence that says, well, 
you know, property rights, all you have got to have is a 
rational basis for doing it; but if you're getting into these 
fundamental liberties, then we are going to have strict 
scrutiny and we are going to really look very carefully at what 
the legislature is doing.
    But I do think that the court has begun to rethink that, 
and not just recently--
    Senator Durbin. Do you think that is wrong? Do you think 
that conclusion is wrong?
    Justice Brown. That you should have a different level of 
scrutiny--
    Senator Durbin. Different standard for property rights as 
opposed to these so-called fundamental rights.
    Justice Brown. Yes, because I think that--I wish I could 
articulate this better, but I think that they're the same 
thing. I mean, I really think that--I come across again and 
again in the historical reading that I do this idea that the 
Founders saw this as indivisible. And it makes sense. If you 
don't have the wherewithal, you know, to keep a roof over year 
head, to provide for your needs and so forth, your political 
rights are not going to be very meaningful.
    Senator Durbin. But do you not concede as well--and Senator 
Hatch has read, I thought, a very stirring quote from one of 
your opinions. Do you not concede as well that if we equated 
property rights with personal rights, the civil rights movement 
would have been a much different civil rights movement? Because 
the people who were arguing against opening up their hotels and 
their restaurants for the accommodations of people of color 
were basically people who said these rights of these 
individuals don't supersede your rights as property owner and 
business owner.
    Now, when you sit before us here and say I think they are 
the same, do you understand why someone on this side of the 
table, maybe on this wing of the table, would scratch their 
head and say, How can she say that? How can you reach that 
conclusion in light of the history of this country over the 
last 75 years?
    Justice Brown. Well, Senator, I'm very glad that you 
explained what you were thinking because that clarifies for me, 
and so I think I can respond to that.
    When I say they are the same--and, you know, that they 
are--I am really looking at the Fifth Amendment in particular 
and this idea of, you know, whether you have to have 
compensation, in other words, taking for a public purpose 
without compensation. I'm not saying that you could never 
regulate property. Property has been regulated since the--you 
know, since the beginning of this country. I'm not saying that 
you could never have laws that say that people who are in a 
business that you regulate have to behave in a certain way. 
California has a very long history of anti-discrimination laws 
that says if you are a commercial establishment, you have to 
treat everybody the same. I don't think there's any problem 
with that at all.
    Senator Durbin. Well, all right. I think we are getting 
closer to an understanding of one another's position on that, 
and I think that when I read your speech--and, Mr. Chairman, 
with your permission, I would like to have this speech to the 
Federalist Society, which you, I believe, were on the board of, 
entered into the record at this point in the hearing.
    Chairman Hatch. Without objection.
    Senator Durbin. I think when people read this speech, they 
might draw a different conclusion than what you have just said, 
and therein lies the difficulty. I have never seen you before. 
I have never heard you speak before. To my knowledge, we have 
never met before. All I have to go on is what you have written 
and what you have given to us in your speeches and in your 
court opinions. And they lead many of us on this side of the 
aisle to the conclusion that your views are not mainstream 
views.
    Now, you have explained some of them today, and some you 
have qualified, modified, maybe some you have changed, 
whatever, however anyone wants to characterize it. But I hope 
that you understand that what we are about here is to try to 
understand who you are, and in that moment of subjectivity as a 
judge, which each legislator and each judge has, we would like 
to know what is going to move you forward, what will your 
values be. And that is the purpose of these questions, and I 
thank you for coming today, as well as your husband.
    Justice Brown. Well, I thank you also, Senator, and I hope 
that I have been able to allay some of your concerns. And one 
thing that may help you is to look at how I have talked about 
this in opinions, and I think it will be very clear to you that 
what I am talking about when I saw I have a problem with this 
dichotomy is that just this idea that economic regulation 
doesn't deserve any attention.
    Chairman Hatch. Well, thank you. Let me just follow up with 
just a few clarifying things. The Fifth Amendment of the United 
States Constitution states in its final clause, ``nor shall 
private property be taken for public use, without just 
compensation.'' That is basically what you believe in.
    Justice Brown. Exactly.
    Chairman Hatch. When it comes to property rights, and that 
is expressly in the Constitution. Right?
    Justice Brown. Yes, and I feel very strongly that where 
language is expressly in the Constitution, judges have an 
obligation to enforce the prohibitions in the Constitution.
    Chairman Hatch. Okay. Now, let me just go back to the 
Lochner situation just for a minute, just so we make sure that 
the record is clear.
    In Santa Monica v. Super. Ct., you said for the record that 
Lochner was ``justly criticized,'' as you have repeated here 
today. Here is your quote: ``The problem with Lochner was not 
that it sought to make judicial review meaningful or that it 
deemed economic interests worthy of protection. The Lochner 
court was justly criticized for using the Due Process Clause as 
though it provided a blank check to alter the meaning of the 
Constitution as written.''
    I don't know how anybody could disagree with that, between 
you and me, who understands constitutional law.
    Now, in addition, your reference to the revolution of 1937, 
you said ``in that case''--it is in quotes--``so that the 
reference is to the so-called revolution of 1937.'' That was in 
quotes. Now, here is the full quote: ``The revolution of 1937 
ended the era of economic substantive due process, but it did 
not dampen the court's penchant for rewriting the 
Constitution.''
    So what I interpret that to mean is that you were not happy 
with the court's penchant to use substantive due process in 
Lochner any more than you are enamored with the court's 
penchant for using substantive due process thereafter.
    Justice Brown. Well--
    Chairman Hatch. You are not alone in that criticism.
    Justice Brown. That is correct, and I think that would make 
me very much in the mainstream. That's right down the middle.
    Chairman Hatch. And there is no question about that.
    Now, let me just take a second or two on this stun belt 
thing because I think some people might misconstrue some of 
that, so let me do this. As I understand it, you were the sole 
dissenter in that case in which a majority of the California 
State Supreme Court overturned the conviction of a man who was 
forced to wear a stun belt while testifying.
    Now, let me ask you a few questions about the case of 
People v.Mar. That is the cases involved, if I understand it, 
since it has been raised.
    Justice Brown, the rule in California states that a 
defendant may not be subject to restraints in the courtroom 
while in the jury's presence unless there is a showing of a 
manifest need for restraints. Is that correct?
    Justice Brown. That's correct.
    Chairman Hatch. Okay. Now, isn't it true that the facts in 
this case suggested that the defendant posed a danger of 
violent conduct?
    Justice Brown. The fact--well, he was, one, arrested for a 
violent offense and--
    Chairman Hatch. In fact, didn't the judge himself indicate 
his concern about the defendant's ``tendency to engage in 
violent conduct''?
    Justice Brown. He did, and there was even some statement 
about some concern from his defense counsel. What the court 
said, though, was that wasn't a hearing and a finding within 
the meaning of Duran. But there was some evidence of that.
    Chairman Hatch. All right. Indeed, in permitting the use of 
restraints, the trial court had found that the defendant, from 
the trial court, ``was on trial for assaulting a guard, he had 
previously been convicted of escape and of assaulting a police 
officer, and on two recent occasions he had threatened 
correctional officers and threatened his own defense 
attorney.''
    The defendant's own attorney had argued that the defendant 
was incompetent, that he was incapable of having rational 
conversations with counsel, that his behavior was 
``explosive,'' and that he was psychotic. Isn't that correct?
    Justice Brown. That's correct.
    Chairman Hatch. Okay. Up until the decision in Mar, Justice 
Brown, isn't it true that California courts had seen stun belts 
as humane up until that decision?
    Justice Brown. Well, they had certainly been used, and the 
legislature had not prohibited them.
    Chairman Hatch. Let me quote from one court opinion. The 
California Court of Appeals noted that the belt ``does not 
diminish courtroom decorum, is less likely to discourage the 
wearer from testifying, and should not cause confusion, 
embarrassment, or humiliation.''
    Now, Justice Brown, your argument was simply that the 
defendant had not demonstrated that he was in any way 
prejudiced by the use of the stun belt, a showing he was 
required to make. He would have to show he was prejudiced, but 
he didn't. Is that correct?
    Justice Brown. That was the issue before the court, and as 
near as I can tell, there is no finding by the majority and no 
actual argument that there was actual prejudice here.
    Chairman Hatch. Well, the stun belt was not visible to the 
jury either, was it?
    Justice Brown. That's my understanding.
    Chairman Hatch. Was there any evidence that the jury knew 
that he was wearing a stun belt?
    Justice Brown. I don't know. I'm not aware of anything in 
the record--
    Chairman Hatch. I don't believe there was.
    Justice Brown. --that suggests they were.
    Chairman Hatch. Yes, I don't believe there was. But the 
point is that many other cases have upheld the use of stun 
belts at trial, including U.S. Courts of Appeal for the Fifth, 
Seventh, Ninth, and Tenth Circuits and the Colorado, Delaware, 
Minnesota, and Washington State courts. So to try and say you 
are outside the mainstream because you dissented in that case, 
with all these facts the way they were, I think is an overreach 
at best. In fact, I think most of the complaints have been an 
overreach at best.
    Senator Durbin. Mr. Chairman?
    Chairman Hatch. Yes, Senator Durbin.
    Senator Durbin. Mr. Chairman, I would like to have 
permission to enter the entire case into the record.
    Chairman Hatch. Without objection.
    Senator Durbin. I believe that you have read selectively 
and found things that support the witness' position, but--
    Chairman Hatch. I sure have.
    Senator Durbin. --there is a lot of evidence to the 
contrary here which I think should be part of the record. Let's 
put the entire case in.
    Chairman Hatch. That will be fine. We will put that in the 
record. But the point I am making is that reasonable minds can 
differ, and even though you were in the sole dissent, there are 
a lot of other jurisdictions that permit stun belts in the case 
of violent or dangerous witnesses. And we will put that in the 
record as well.
    I understand there is no other Senator who wants to 
question. Let me just close by saying, Justice Brown, I have 
been around here 27 years. Admittedly, I am a Republican. 
Admittedly, I like this administration. Admittedly, I am 
pleased with virtually all the judgeship nominees that have 
been nominated by the President, and I think most of them have 
been, without question, superior nominees.
    How anybody would not think you are a superior nominee is 
beyond me. I am impressed with you personally. I am impressed 
with your ability to discuss these very consequential and 
difficult areas of law and to make the sense that you have. You 
have done better than an awful lot of top-level intellectual 
legal thinkers who have appeared before this Committee.
    You have a record that I think is exemplary, although there 
will be those on both sides of this dais who will disagree with 
you from time to time on some of your opinions, as your 
colleagues on the court have done and as you have done with 
them.
    There is no question about your decency, your honor, your 
integrity. And I believe there is a real difference between 
giving speeches where you want to get people excited and get 
people interested and the need to do what is right when you are 
on the bench, which you have done.
    I think if anything comes through to me, it is that you 
have followed the law regardless of what anybody thinks, 
including yourself, that the law is the important thing to you. 
Is that a fair comment?
    Justice Brown. I think that's a very fair comment. I have 
only one agenda when I approach a case, and that's to try to 
get it right. My allegiance is to the Constitution. I take an 
oath as a judge to defend the laws and the Constitution of the 
State of California, and I have tried very conscientiously to 
do that.
    Chairman Hatch. As well as the Constitution of the United 
States of America.
    Justice Brown. Yes.
    Chairman Hatch. Well, I have to say, I am really impressed 
with you and the way have handled yourself and the intelligent 
way that you have spoken to this Committee and answered 
questions that have been very difficult questions from both 
sides of the table, but especially from my colleagues' side 
because they are naturally interested in who the President 
nominates and whether they are worthy of these very, very 
substantial and top positions.
    I don't see how anybody watching this hearing today and 
listening to you could conclude that you are outside the 
mainstream of American jurisprudence. That is just a 
shibboleth. That is used a lot just because they do not have 
anything else to use. And that has been done by both sides, I 
have to say. But I believe you have handled this hearing very, 
very well, and I am going to do everything I can to see that 
you are confirmed to this very important position. And I 
believe once you are on that court you will do a terrific job 
of serving all Americans, not just one side or the other but 
all Americans, and that is what I would expect of you, and that 
is the least I would expect of you, with the abilities and the 
intelligence that you have.
    We are grateful that you have sat through this hearing this 
long. It has been a difficult one for you, in a way, but you 
have handled yourself well.
    With that, since there are no further questions from 
anybody and I have kept the record open--unless you have 
something to say?
    Justice Brown. I would like just to thank you, Mr. 
Chairman, for chairing this Committee. I would like to thank 
the ranking chairman. I also want to thank the President for 
nominating me to this position. And if I am confirmed, I would 
be honored to serve. I thank all of the members of the 
Committee for giving my nomination prompt consideration, and I 
appreciate their courtesy.
    One person that I forgot this morning when I was 
introducing my family was my mother, whose name is Doris 
Holland. She is not here. She did not think she would be up to 
the rigor of this hearing because she thought they would be 
abusing her child and she wasn't sure that she could control 
herself. But I have been treated with great courtesy, and I 
appreciate that very much.
    And I want to make a commitment to every member of this 
Committee that if I am confirmed to serve on the D.C. Circuit, 
I will not let you down. I have tried all my life to act with 
principle and with integrity, and I know my role as a judge, 
and I will make every effort to do the very best that I can.
    Chairman Hatch. Well, thank you. That is all we can ask of 
you, and I hope our colleagues pay attention to those comments.
    With that, we will recess until further notice.
    [Whereupon, at 3:40 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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