[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14783-S14785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
Cloture Motion
The PRESIDING OFFICER. Under the previous order, the clerk will
report the motion to invoke cloture.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 455, the nomination of Janice R. Brown, of
California, to be United States Circuit Judge for the
District of Columbia Circuit.
Bill Frist, Orrin G. Hatch, Lindsey Graham, Mike Crapo,
Jeff Sessions, Conrad R. Burns, Larry E. Craig, Saxby
Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg,
John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig
Thomas, Kay Bailey Hutchison.
Mr. LEAHY. Mr. President, the opposition to Justice Brown for a
lifetime position on the D.C. Circuit is deep and wide and is based on
her record, both on and off the bench. As anyone who was watching C-
SPAN last night and the night before would know, the Republicans are
using the judicial nomination process in a manner that divides rather
than unites. As the San Francisco Chronicle wrote, ``Presidents
typically shape the judiciary to reflect their own views. But with
Charles Pickering, Priscilla Owens, William Pryor, Miguel Estrada and
now Brown, Bush seems bent on stacking the bench with ideologues.''
For this particular nominee, Janice Rogers Brown, the White House
political operatives and ideologically driven selection staff reached
out 3,000 miles to find a nominee who has repeatedly received negative
ratings, who has been criticized by her Republican colleagues on the
bench, and who has emerged from the Senate Judiciary Committee on a
party-line vote. As Justice Brown's home State newspaper, the San
Francisco Chronicle, wrote: ``naming Janice Rogers Brown to the U.S.
Circuit Court of Appeals for the D.C. Circuit, President Bush has again
chosen a contrarian with a judicial philosophy that lies well outside
the bounds of the mainstream.'' Even the Washington Post, which has
been very sympathetic to this Administration and, in particular, to its
court-packing efforts on the D.C. Circuit, has written that Janice
Rogers Brown ``is one of the most unapologetically ideological
nominees'' in many years.
As the nominee herself conceded at the end of her confirmation
hearing, she was ``treated with great courtesy'' by the Members of the
Judiciary Committee. Thereafter, this was a nomination rushed out of
the Committee last week before the ink was dry on nonresponsive answers
to Senators' questions, and during Senate floor debate on another
highly divisive judicial nominee, before a full Committee debate could
be held. The District of Columbia Circuit is too important to the
rights of all Americans to be left to judges whose ideological bias
would lead them to gut the environmental protections, workplace
protections, consumer protections and other government regulations
authorized by Congress to protect all Americans.
In my statement at the outset of her confirmation hearing less than
one month ago, I urged partisans to end the ugly game of contending
that any criticism of the record of a Bush judicial nominee had to be
motivated by bigotry. I asked that the right-wing tactic of smears and
name calling subside and that we not see the race card dealt from the
shameful deck of unfounded charges that stalwarts of this President's
most extreme nominees have come to rely upon as they further inject
partisanship and politics into the appointment of Federal judges. I
noted that I expected that those who ultimately decided to support
Justice Brown, even though they oppose affirmative action, would do so
because they believed she would be a fair Federal judge. I suggested
that those who opposed her because they retained serious doubt about
her nomination and are concerned that she was selected on ideological
grounds, could oppose her nomination for principled reasons having
nothing to do with race. I urged that we focus on substance at the
hearing and in this process.
My plea went unheeded, so that, first, I must, again, briefly respond
to the partisan smears and name-calling that I have been hearing from
the other side of the aisle. We have heard the ridiculous charges that
we are opposing Justice Brown because of her gender or her race. My
opposition to this nominee has nothing to do with her race; it is has
nothing to do with her gender. It is about what kind of a lifetime
appointment to the District of Columbia Circuit I fear she would be.
If Democrats were making decisions based on the gender of the
nominee, would we have confirmed 33 judges nominated by President Bush
who are women, including seven to the Courts of Appeal? Would we have
worked so hard during the Clinton years to increase gender diversity on
the bench and fight for votes for Bonnie Campbell, Elena Kagan and the
scores of women nominees who were blocked and delayed by anonymous
Republican holds? Would we be urging President Bush to work with us to
find outstanding women judges and lawyers to increase gender diversity
on the Federal bench? Do our critics really contend that Senators
Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell,
Clinton, and Stabenow are anti-woman, or that Senators Kennedy, Biden,
Harkin, Reid or any other Democratic Senators would discriminate
against women? This is a smokescreen, intended to obscure this
nominee's stark record.
If Democrats were making decisions based on the race of the nominee,
why would we have voted to confirm 13 African-American judges nominated
by President Bush, including all four of the other African Americans
nominated by President Bush to the appellate courts? Would we have
confirmed Lavenski Smith to the 8th Circuit? Would we have fought so
hard for two
[[Page S14784]]
Congresses to confirm Roger Gregory and integrate the 4th Circuit?
Would we have worked with Senator Edwards to confirm Allyson Duncan to
the 4th Circuit? For that matter, would we have been so outraged at the
Republicans' treatment of Justice Ronnie White, Judge Beatty, Judge
Wynn, Kathleen McCree Lewis and so many outstanding African-American
judges and lawyers who the Republicans blocked from confirmation during
the Clinton years? These claims of racism are irresponsible and false.
These ploys are wrong, and they should stop.
In fact, the list of the African-American organizations and
individuals who oppose Justice Rogers Brown's nomination is one of the
most troubling indications that this is another divisive, ideologically
driven nomination. Are we to believe that the 39 members of the
Congressional Black Caucus are racist? Members of the Congressional
Black Caucus include the respected congressional delegate from the
District of Columbia Eleanor Holmes Norton, the chair of the
Congressional Black Caucus, the Honorable Elijah Cummings, and such
distinguished Americans as Representatives Charles Rangel and John
Conyers. In addition the Nation's oldest and largest association of
predominantly African-American lawyers and judges, the National Bar
Association, and its State counterpart, the California Association of
Black Lawyers both oppose this nomination.
The foremost national civil rights organization, the Leadership
Conference on Civil Rights opposes this nomination. The women of Delta
Sigma Theta oppose this nomination. Dr. Dorothy Height, Dr. Joseph
Lowery and Julian Bond have spoken out against this nomination.
Justice Brown has a lengthy record, of opinions, of speeches and of
writings. She has very strong opinions, and there is little mystery
about her views, even though she sought to moderate them when she
appeared before the Judiciary Committee.
I come to my decision after reviewing Justice Brown's record--her
judicial opinions, her speeches and writings--and considering her
testimony and oral and written answers provided to the Senate Judiciary
Committee.
Now, Justice Brown's supporters will say we are opposing Justice
Brown because her viewpoint is different than ours on social issues.
But my opposition is not about whether Justice Brown would vote like me
if she were a member of the United States Senate on issues of
importance. This is not about her position on choice. This is not about
one dissent or one speech. This is about Justice Brown's approach to
the law--an approach which she has consistently used to promote her own
ideological agenda, an extreme agenda that is out of the mainstream.
Her approach does not entitle her to a lifetime appointment to this
very important appellate court.
Janice Rogers Brown's approach to the law can be best described as a
``jurisprudence of convenience.'' What do I mean by that? Justice Brown
has proven herself to be a results-oriented, agenda-driven judge whose
respect for precedent and rules of judicial interpretation change
depending on the subject matter before her and the results she wants to
reach.
While Justice Brown's approach to the law has been inconsistent--she
has taken whatever approach she needs to in order to get to a result
she desires-- the results which she has worked toward have been very
consistent--throughout her public record. Some of Brown's supporters,
and in fact Justice Brown herself, have tried to detract attention from
the ideas she has expressed in speeches--while she was a member of the
bench--claiming they are ``just speeches.'' Well, that is a hard
distinction to follow when Justice Brown's comments to groups across
the country over the last 10 years repeated the same themes--in fact,
sometimes even the same words--as she has written in her opinions.
In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown
wrote of the demise of the Lochner era, claiming ``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.''
Similarly, in a speech to the Federalist Society, she said of the year
1937--it ``marks the triumph of our own socialist revolution.''
In San Remo Hotel v. City and County of San Francisco, Justice Brown
wrote, ``(t)urning a democracy into a kleptocracy does not enhance the
stature of the thieves; it only diminishes the legitimacy of the
government.'' Similarly, two years earlier, she told an audience at the
Institute for Justice, ``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.''
As Berkeley Law School Professor Stephen Barnett pointed out about
Justice Brown's ``apparent claim that these are `just speeches' that
exist in an entirely different world from her judicial opinions,''
``that defense not only is implausible but trivializes the judicial
role.'' I agree with Professor Barnett on this and understand his
determination to oppose her nomination. Justice Brown's provocative
speeches are disturbing in their own right, and they are made more so
by their reprise in her opinions.
Justice Brown now says that she will ``follow the law.'' However, in
a judicial dissent, she wrote, ``We cannot simply cloak ourselves in
the doctrine of stare decisis.''
One of the examples of Justice Brown's results-oriented jurisprudence
can be seen in the way she has disregarded precedent in her opinions in
order to expand the rights of corporations and property owners, at the
expense of workers and individuals who have been the victims of
discrimination. In several dissents, Justice Brown called for
overturning an exception to at-will employment, long recognized by the
California Supreme Court, that was created to protect workers from
discrimination. She has repeatedly argued for overturning precedent to
provide more leeway for corporations against attempts to stop the sale
of cigarettes to minors, prevent consumer fraud, and prevent the
exclusion of women and homosexuals.
Justice Brown has also been inconsistent in the application of rules
of judicial interpretation--again depending on the result that she
wants to reach in order to fulfill her extremist ideological agenda.
These legal trends--her disregard for precedent, her inconsistency in
judicial interpretation, and her tendency to inject her personal
opinions into her judicial opinions--lead to no other conclusion but
that Janice Rogers Brown is--in the true sense of the words--a judicial
activist.
When it is needed to reach a conclusion that meets her own
ideological beliefs, Justice Brown stresses the need for deference to
the legislature and the electorate. However, when the laws--as passed
by legislators and voters--are different than laws she believes are
necessary, she has advocated for judicial activism.
One stark example springs to mind: In order to support her view that
judges should be able to limit damages in employment discrimination
cases, she concluded that ``creativity'' was a permissible judicial
practice and that all judges ``make law.''
Justice Brown's approach to the law has led to many opinions which
are very disturbing. She has repeatedly and consistently advocated
turning back the clock 100 years to return to an era where worker
protection laws were found unconstitutional. She has attacked the New
Deal, an era which created Social Security and labor standards, by
saying it ``inoculated the Federal Constitution with a kind of
underground collectivist mentality.''
And she has repeatedly opposed protections against discrimination of
individuals--in their jobs and in their homes. Justice Brown's recent
claims that her words do not mean what they say are simply
unconvincing.
There is one more aspect of Justice Brown's nomination which is
extremely disturbing. That has to do with the court for which she was
nominated. She is being considered for a position on the premier
administrative law court in the Nation--a court that is charged with
overseeing the actions of Federal agencies that are responsible for
worker protections, environmental protections, consumer safeguards, and
civil rights protections.
I am concerned about her ability to be a fair arbitrator on this
court. Justice Brown has made no secret of her disdain for government.
She has said,
[[Page S14785]]
``where government moves in, community retreats, civil society
disintegrates, and our ability to control our own destiny atrophies.''
How can someone who believes it is not the ``job of government to
take care of'' the American people be entrusted to make fair and
neutral decisions when faced with the responsibility of interpreting
the powers of the Federal Government and the breadth of regulatory
statutes? Justice Brown responded to this question at her hearing by
calling on us to review her record as a judge to see that she does not
``hate Government.'' Well, I did review her record. And, what I found
was disturbing: She has used her position on and off the bench to argue
for the dismantling of government from the inside out.
It is no small irony that this President, who spoke of being a uniter
but has used his position to send judicial nominations that divide the
Senate and the country, and who spoke with disdain of ``judicial
activism,'' has nominated several of the most consummate judicial
activists ever chosen by any President. None of the President's
nominees is more in the mold of judicial activist than this nominee,
Janice Rogers Brown.
I am voting against Justice Borwn's nomination today because the
American people deserve judges who will interpret the law fairly and
objectively. Janice Rogers Brown is a confirmed and committed judicial
activist who has a consistent record of using her position as a member
of the court to advocate for her personal belief. We must not enable
her to bring her ``jurisprudence of convenience'' to one of the most
important courts in the Nation.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Janice R. Brown, of California, to be United States
Circuit Judge for the District of Columbia Circuit, shall be brought to
a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Hawaii (Mr. Inouye), the Senator from
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 53, nays 43, as follows:
[Rollcall Vote No. 452 Ex.]
YEAS--53
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--43
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--4
Edwards
Inouye
Kerry
Nelson (FL)
The motion was rejected.
The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are
43. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Mr. STEVENS. Mr. President, I move to reconsider the vote.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________