[Congressional Record Volume 151, Number 58 (Thursday, May 5, 2005)]
[House]
[Pages H3044-H3045]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           SUPPORT FOR THE NOMINATION OF JANICE ROGERS BROWN

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California (Mr. Daniel E. Lungren) is recognized for 5 
minutes.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, today I rise in 
support of the nomination to the District of Columbia Circuit Court of 
Appeals of Janice Rogers Brown. Janice Rogers Brown is a member of the 
California Supreme Court, a former member of perhaps our most 
distinguished district court of appeals that meets in Sacramento, a 
former distinguished top legal advisor to then Governor Pete Wilson, 
formerly a distinguished deputy attorney general in the office of the 
California attorney general's office, one who has come from humble 
beginnings.
  An Alabama sharecropper's daughter who attended segregated schools 
while she was growing up, graduated from UCLA, has practiced law in the 
private sector, but has spent most of her time in the public sector, 
either as the attorney representing the State, as a legal advisor to 
the Governor of the State, or as one who has served well as a member of 
the judicial branch in the State of California.
  Her nomination is one of those that has been held up in the other 
body. Hers is one that has been suggested as the price of the President 
receiving consideration of his other nominations, that is, the 
suggestion is made that hers is one of the nominations that should be 
withdrawn because she is, ``out of the mainstream.''
  Well, Mr. Speaker, in the short time I have available, I would like 
to speak to that point. In the State of California, we have a 
requirement that when one is nominated by the Governor of the State to 
either the appellate court or the California Supreme Court, they must 
undergo a rigorous review, which is concluded by a confirmation hearing 
and vote by a confirmation panel made up of three members: the chief 
justice of the California Supreme Court; the attorney general of the 
State of California; and in the specific instance of someone being 
nominated to the appellate bench, the chief presiding officer of that 
appellate bench. And for one who is being nominated to the California 
Supreme Court, that third person would be the senior-most serving 
presiding officer of any of the appellate benches in the State of 
California.
  On two occasions I had the opportunity, as the attorney general of 
California, to be a member of that panel and had the opportunity to 
review her consideration, her nomination. And in both of those 
nomination processes, she received a unanimous vote of the 3-member 
panel.
  When we considered her past legal work, when we considered her past 
judicial work, when we considered her qualifications, her education, 
her character, her philosophy, that is, whether or not she was 
committed to doing the job that judges are supposed to do, that is, 
interpreting the law as opposed to making the law, being constrained by 
the Constitution of the United States, by the Constitution of the State 
of California and by the statutes of the State of California, and where 
they apply, the statutes of the United States.
  In that instance, she received a 100 percent vote from us in both 
cases. It is interesting that in the State of California, once one 
receives such an appointment, one has to go before the people of the 
State of California in a vote. And in that vote, when she was 
considered, after she had rendered opinions, after she had had her 
opinions published, when she was considered by the people of the State 
of California, she received, I believe it is, more than a 75 percent 
vote of the people.
  Some say, well, that happens all of the time. Well, in my memory, we 
have had at least three members of the California Supreme Court 
basically voted down by the people. So there is a real contest; there 
is a real review by the people of the State of California.
  Approximately 75 percent of the people of the State of California, 
when given the chance, upheld her continued activity on the court, that 
is, the Supreme Court of California. Now she has been nominated to 
serve the District of Columbia Circuit Court of Appeals by the 
President.
  To this day, there has been reluctance, if not refusal, on the part 
of the other body to have her considered before the whole body. There 
has been the suggestion that rather than being submitted to the entire 
body and a vote up or down where a majority would prevail, she is being 
subjected to a 60-vote rule, a 60-percent rule. One searches in vain in 
the Constitution to find any reference to that.
  I would suggest, as a matter of fact, it is questionable whether the 
Constitution would allow that kind of constraint on the prerogative of 
the President, as to whether or not advice and consent means that.
  But be that as it may, it is interesting that the two representatives 
from the State of California who will have a vote in that body have 
chosen not to support her. And while they have been elected and 
reelected by the people of the State of California, that very same 
electorate has voiced their opinion in an official vote by giving her a 
mandate of 75 percent. That hardly

[[Page H3045]]

suggests that she is out of the mainstream, unless one suggests that 
California is out of the mainstream.
  She has been criticized for upholding Proposition 209, a proposition 
that was put to the vote of the people of the State of California to 
determine whether or not we in California believe that racial quotas 
and set-asides were, in fact, appropriate under the law. The people of 
the State of California decided that they were inappropriate by a large 
margin, and she interpreted that in accordance with the people of the 
State of California, and for that she is criticized and considered to 
be out of the mainstream.
  My suggestion, Mr. Speaker, is that she ought to have the opportunity 
to have her voice heard, her case heard by the entire body in the other 
body, and that it is my belief, given that opportunity, the people of 
California will be well served by a reaffirmation of the fact that she 
is well within the mainstream of judicial decision-makers in the United 
States.

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