[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.

                          ____________________