Congressional Record, Volume 151 Issue 65 (Tuesday, May 17, 2005)

[Congressional Record Volume 151, Number 65 (Tuesday, May 17, 2005)]
[Senate]
[Pages S5282-S5287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

JUDICIAL NOMINATIONS

Mrs. BOXER. Mr. President, I have asked for this time so I could talk
about the issue that is really hanging over the head of the Senate, as
Senator Baucus said when he gave his support to the highway and transit
bill: What we can do when we work together. What we can do when we set
aside the partisanship. What we can do when we work for our people,
rather than make up a phony crisis about the courts and threaten to
change more than 200 years of tradition and threaten a nuclear option--
which was named by the Republicans, by the way, when they thought about
it because it is so vicious, it hurts so hard, it has such fallout that
it will change the very nature of the Senate. But more importantly, it
will change the way we now can protect the people of the United States
of America.
This is a very simple chart. It shows the numbers 208 to 10; 208
represents

[[Page S5283]]

the number of judges President Bush has been able to get voted into
office as a result of actions of this Congress since he got into power.
Two hundred eight of his judges have gone through. This Senate has
stopped 10, 10 of his nominees. Actually, some of my colleagues remind
me now it is really only five because some of them are no longer up for
judgeships or we have relented on a couple of them, but I am going to
be fair to my colleagues on the other side of the aisle and paint the
worst possible picture in terms of the number we have stopped--10.
This is a 95-percent success rate. I ask the people of this country
to think about what it would mean in their lives if they got 95 percent
of what they wanted. If their child came home on a regular basis with
95 percent from school? That is an A+. If their spouse said, ``Honey, I
agree with you,'' 95 percent of the time and you got your way 95
percent of the time, you would be smiling.
When you went to work and you had a pretty tough boss, and your boss
called you into the office and he said, ``You know, you are a fine
worker, Barbara. You are a great worker. As a matter of fact, I have
looked over your work, and I have agreed with you 95 percent of the
time,'' I think that is the moment I would ask for a raise.
If you get what you want 95 percent of the time, you should have a
broad smile on your face. You should feel good about yourself. You
should feel great about yourself.
But you know what, if you wanted 100 percent all the time, if you
never wanted to give 1 inch of space, if you demanded that your child
get 100 percent every time, you would not be happy. I call it the
arrogance of power.
What we are seeing in the United States of America is an arrogance of
power. My colleagues--and particularly the White House--are not happy
getting 208 of their judges but not getting 10 of their judges; they
are not happy with 95 percent results. What do they do? They say: We
want to change the rules of the Senate. All right, what are the rules
of the Senate? The rules of the Senate say on a nomination as important
as a judge, which is very key, following the Constitution, which says a
President must take the advice and get the consent of the Senate, there
can be extended debate on that judge. To stop that extended debate, it
requires not 51 votes; it is 60 votes. That is how we have operated for
a very long time.
By the way, it is important to note, it was even harder to get a
nomination through. For a while, it was 67 votes. Before that, there
was endless debate. You could never stop debate, ever. We have eased
that rule.
We believe it is important for a lifetime appointment to the courts--
and these are very important positions. They are paid a lot of money.
They get a great retirement, not like United Airlines, they will get
their retirement. We believe they ought to be terrific--mainstream, at
least. And to stop extended debate, they have to pass a little bit of a
higher threshold: 60 votes. Some of these nominees are so outside the
mainstream they cannot get 60 votes. So the Republicans said: We will
just change the rules. They looked in their little rule book, and they
found it takes 67 votes to change the rules of the Senate, and they
said: My goodness, we do not have that. Maybe we have 51 with the Vice
President voting with us--he votes on a tie vote--but we do not have 67
votes. So let's go about it in a way that no one would ever expect. We
will raise what we call a point of order, have a ruling of the Chair,
and the Chair will rule--and it will be Dick Cheney--that the Senate
can no longer filibuster judges. Then we will have a little
disagreement over that. They are getting 51 votes, they think. Maybe
not. We do not know.
That is the nuclear option. A lot of my colleagues on the Republican
side are nervous about it, and they will wind up, if they get 51 votes,
changing the rules of the Senate without the 67 votes.
Imagine what would happen at a baseball game if in the middle of the
game someone said there is no such thing as a home run, or it is an out
if the ball bounces first and you throw the person out at first base.
People would go nuts. You do not change the rules in the middle of the
game. That is not the American way. And you do not do it in a backdoor
effort. I have voted to change the rules, but I do not try a sneaky
way. I said you have to get 67 votes to do it. If you do not get the 67
votes, the rules are the same.
I take my time on this because it is important the American people
understand what the Republican leadership is trying to do. They tried
to change the rules in the House because they did not want to
investigate Tom DeLay, who is the leader over there. They changed the
rules. It was so shocking, they backtracked after months of the
American people saying: That is not the American way. The people of the
United States of America are saying it today. They are saying it by 60
to 70 percent of the vote: Do not change the way the Senate has done
its business.
Anyone who saw the movie ``Mr. Smith Goes to Washington'' knows that
Jimmy Smith in that film was able to stand on his feet and be heard for
a righteous and just cause. A little bit later, I will show an example
of a judge we stopped and why it was important to stop her.
Let the American people and my colleagues understand. Here is what is
important. This should not be about political parties, folks. When
Franklin Delano Roosevelt was President--as we all know, a Democrat,
considered one of the greatest Presidents ever--he made a huge mistake
in his Presidency. He wanted to pack the Supreme Court. He did not like
their decisions.
At the time, the Democrat party had 74 seats in the Senate. They
could have done it in a heartbeat. All they needed was just a few to
peel off, they had it. What did they do? Democrats in those days,
colleagues, stood up to the most popular President in history. He had
gotten more than 60 percent of the vote. They said: Mr. President, we
think you are great, but we are not going to pack the courts just
because you feel they are not upholding all of your New Deal. It is not
fair. We need a check and balance.
I know young people watching or listening to this debate understand
what we are talking about. The checks and balances built into our
Constitution--the courts check the legislature and the courts check the
executive branch. What my colleagues on the other side of the aisle,
save a few, want to do is take away that check and balance, have one
party rule. And, oh my goodness, they did not get enough of what they
want--208 to 10--and they are throwing a fit and trying to change the
rules of the Senate. That is wrong and doing it in a way that is
absolutely contrary to what we say has to be done to change the rules,
which is 67 votes.
Now, the next thing they will say is there have never been any judge
filibusters until the Democrats. We have never done that, say the
Republicans, we are so good we have never done it.
Let me tell the truth, the facts. Who started the filibuster in
recent times? The Republicans. In 1968, Abe Fortas, to be Chief Justice
of the Supreme Court--Democrats' choice--he did not get the required
two-thirds at that time. They need 67 votes of Members supporting Abe
Fortas. Republicans started it.
Then we had a filibuster for a while against William Rehnquist, but
it was dropped; Stephen Breyer to be judge on the First Circuit Court
of Appeals in 1980; Harvie Wilkinson to be judge on the Fourth Circuit
Court of Appeals in 1984; in 1986, Sydney Fitzwater to be a judge; in
1992, Edward Earl Carnes; in 1994, Lee Sarokin; and in 1999, Brian
Theodore Stewart. In 2000, two Californians were filibustered by my
Republican friends: Richard Paez and Marsha Berzon. When we hear the
Republicans say, we have not been, ever, for a filibuster, just say,
you are making it up. They are making it up. Here they admit to a
filibuster. Here is Bob Smith, Republican Senator, March 7, 2000:

. . . it is no secret that I have been the person who has
filibustered these two nominations, Judge Berzon and Judge
Paez.

So when the Republicans say there has never been a Republican
filibuster, they are making it up. Of course there has been.
By the way, that was their right.
Orrin Hatch:

Indeed, I must confess to being somewhat baffled that,
after a filibuster is cut off by cloture, the Senate could
still delay a final vote on the nomination.

[[Page S5284]]

Senator Orrin Hatch at that time, I believe, was the chairman of the
committee.
Again, Senator Bob Smith:

So don't tell me we haven't filibustered judges and that we
don't have the right to filibuster judges on the floor of the
Senate. Of course we do. That is our constitutional role.

Here we have a Republican Senator leading a filibuster against two of
President Clinton's nominees and saying the filibuster is the
constitutional role, and now we have Republicans saying: We have never,
ever been involved in a filibuster.
I will talk about one of the nominees the Democrats have
filibustered. I need to explain to my colleagues, and hopefully to
others, how out of the mainstream some of these folks are who George
Bush has nominated. Remember, we stopped 10. This is one of the 10.
Janice Rogers Brown--way outside of the mainstream to the extreme.
This is one of her comments:

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; unapologetic expropriation of property; the
precipitous decline of the rule of law; the rapid rise of
corruption; the loss of civility and the triumph of deceit.

This is what she thinks of our great Nation because we have a
Government that does build the roads, that does help people out when
they are in a bad situation, that may come in and say, yes, it is not a
good idea to sell cigarettes to a kid who is 13. This is terrible. This
is awful.
The ``precipitous decline of the rule of law; the rapid rise of
corruption.''

The result is a debased, debauched culture which finds
moral depravity . . . A virtue.

Now, I don't know about you, but I think the minimum wage is a part
of America. Colleagues could decide they do not want to raise it for a
couple of years. Right now, sadly, it hasn't been raised for a very
long time, but I think most Americans think we are protected by the
minimum wage.
This is what she said about the minimum wage, Janice Rogers Brown. I
take a minute to say Janice Rogers Brown has served in the California
Supreme Court since 1996. Her life story is amazing. It is remarkable.
What I don't like is what she is doing to other people's lives. Her
story is amazing, but for whatever reason, she is hurting the people of
this country, particularly, right now, in my State. Of course, the
President wants to move her over to Washington, DC, court.

She calls Supreme Court decisions upholding protections like the
minimum wage and the 40-hour workweek ``the triumph of our own
socialist revolution.'' I don't know or understand how anybody could
think the 40-hour workweek or the minimum wage is socialism. She
obviously does. She obviously would overturn it.
She accuses senior citizens of--and I hope everyone over the age of
55 will listen to what Janice Rogers Browns thinks of people over 55--
she accuses senior citizens of ``blithely cannibalizing their
grandchildren because they have a right to get as much free stuff'' as
the political system permits them to extract. Free stuff? Is she
talking about Social Security? That is not free. People pay into Social
Security, and they deserve to get their monthly check. Free stuff.
Senior citizens ``blithely cannibalize their grandchildren.'' I resent
those comments as a grandmother. I would walk off a bridge for my
grandson--and he knows it. I resent her painting of senior citizens.
That is why we held her up. That is why she is not sitting on the
court today. Now, she may get there if my colleagues have their way.
Let them explain why she would rule to overturn the minimum wage and
the 40-hour workweek and overturn Social Security. It will be on their
backs. We have stopped this woman from going further because of her
decisions.
She declares:

Big government is . . . The drug of choice for
multinational corporations and single moms, for . . . rugged
Midwestern farmers and militants senior citizens.

She is back to that again. What is she afraid of--that some senior
citizen will attack her? The crime rate among senior citizens is pretty
low. Militant senior citizens? Give me a break. And we get accused of
holding up decent people? This goes on.
I will go on with the story of Janice Rogers Brown--way outside the
mainstream to the extreme. She argued a law that provided housing
assistance to displaced elderly, disabled, and low-income people was
unconstitutional. Her dissent said, because the city of San Francisco
had a law that helped these disabled, elderly people, she said that
``private property . . . is now entirely extinct in San Francisco.''
What world does she live in? Has she tried to buy a house in San
Francisco? It is the hottest real estate market in the country. But she
says private property is entirely extinct. Let her go try to find some
private property to buy in San Francisco. This woman is living on
another planet, and we were right to stop her from getting on the
bench. Whether it takes 60 votes or 51 votes to stop her, we are going
to try to stop her.
Let's go on with more of her record. How about this? She said that a
manager could use racial slurs against his Latino employees. Now, I say
to every human being out there: What do we know about the workplace? We
know people should feel OK about themselves in the workplace, that we
work better together when we respect each other. Janice Rogers Brown
said a manager could use racial slurs against his Latino employees--
extreme in the main.
She argued that a message sent by an employee to coworkers
criticizing a company's employment practices was not protected by the
first amendment. In other words, you can't use your e-mail to write
anything about your employer to other employees, although she said the
corporations can say whatever they want any time of the day.
You know now why we have stopped Janice Rogers Brown. But we have
more reasons, if you are not convinced.
Even when it comes to protecting shareholders, she is not fair.
Anyone who owns a share of stock, listen to this one. She argued that a
company could not be held liable for stock fraud by its employees who
were offered a stock purchase plan since the stock was traded between
third parties on the open market. So she comes out against the
shareholders and protecting the companies.
Here is the amazing thing. Let me reiterate about Janice Rogers
Brown. She serves on the California Supreme Court. There are six
Republicans on the court--she is a Republican--and one Democrat. She
dissented more than a third of the time. You would think she would have
been happy to be with colleagues of her own party. She stood alone 31
times. And when you hear these cases, you will be amazed at where she
stood. In other words, she went against five Republicans and one
Democrat 31 times, and stood alone.
Let's check those cases out. How about this one: Rape victims; she
was the only member of the court to vote to overturn the conviction of
a rapist of a 17-year-old girl because she believed the victim gave
mixed messages to the rapist. She stood alone on the side of a rapist,
alone as a woman on a court that has six Republicans and one Democrat.
Here is another case where she voted alone, the only member of the
court to oppose an effort to stop the sale of cigarettes to children.
It was a case where the supermarkets didn't want to be responsible. If
somebody came up, maybe 13, maybe 12, maybe 11, maybe 14, I want a pack
of cigarettes, she ruled against an effort to stop the sale of
cigarettes to children. What planet is she living on now? If it was in
the 1800s and we didn't know about cigarettes and what they do to you
is one thing. But now is another thing. She stood alone.
I talked about senior citizens. I told you she is afraid of militant
senior citizens. That is what she calls them. I told you that she said
they cannibalize their grandchildren. Well, she was the only member of
the court to find that a 60-year-old woman who was fired from her
hospital job could not sue. This is the amazing thing she said, as she
stood alone in this decision. A 60-year-old woman was fired from her
hospital job. She said she has no right to sue based on age
discrimination. This is her comment:

[D]iscrimination based on age does not mark its victims
with a stigma of inferiority and second class citizenship.

Really? How do you think you would feel if you were fired because you
were too old and suddenly that stigma was

[[Page S5285]]

attached to you and you lost your livelihood because maybe you had to
work at age 60, as you waited for your Social Security check, which is
a whole other issue. We hope we win that battle, too. But let me tell
you, it makes it hard to win the battle of Social Security if you have
on the court someone who calls senior citizens militant. It is going to
be tough. That is why we have held her up.
By the way, her position in this case is contrary to both State and
Federal law. This is one of the people we have stopped.
Just think about what we have been trying to protect the American
people from. How about this? This is a woman who not only voted with a
rapist against a 17-year-old girl, she was the only member of the court
who voted to strike down a State antidiscrimination law that provided a
contraceptive drug benefit to women. She was the only one. The State of
California had required an equal health benefit to women and said: Your
insurance will cover contraception because--guess what they decided.
They decided it was better to avoid abortion, to cut down abortion, to
make abortion rare. So they said they would give a benefit of
contraception. She stood alone and tried to strike that down. Imagine.
She has been bad for workers. She was the only member of the court
who voted to bar an employee from suing for sexual harassment because
she signed a standard worker's compensation release form. Now, all of
you probably know what that means. If you go for a job, you are usually
covered by workman's compensation. But this woman had signed a waiver
and said: I won't file a worker's comp claim. She didn't file a
worker's comp claim, but she did file a sexual harassment claim because
she was being sexually harassed. Every member of the court stood with
the woman who was sexually harassed but Janice Rogers Brown. Six
Republicans, one Democrat, and she stood alone again against a worker
who was facing sexual harassment. The whole rest of the court agreed
with the worker.
She was the only member of the court to find that a disabled worker
who was the victim of employment discrimination did not have the right
to raise past instances of discrimination that occurred. In other
words, there was a disabled worker who filed a lawsuit, had a big story
to tell about the past. She was the only judge to say: I don't agree
with the worker; I agree with the company.
Here is another one. Janice Rogers Brown, bad on discrimination, the
only member of the court to find that a State fair housing commission
could not award certain damages to housing discrimination victims. She
stood alone again.
Domestic violence: The Republicans want to put on the court a woman
who stood alone 31 times against her fellow Republicans in cases like
this--the only member of the court to find that a jury should not hear
expert testimony in a domestic violence case about battered women's
syndrome. We all know about battered women's syndrome, where a woman is
beaten senseless by a boyfriend--in this case, probably a spouse--and
later minimizes what he did to her. And the law in our State says it is
valid evidence. If she reached out and she did something to prosecute
this attacker, an explanation about battered women's syndrome will help
her.
She was the only one who stood alone and said: I don't want to hear
any expert testimony on this. She stood alone.
I ask unanimous consent for an additional 30 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Here is one. I want us all to remember the Enron case, a
case where counties and cities and individuals were ripped off and went
into debt--in our State, billions of dollars--by Enron, Enron who said
they would deliver electricity and then made believe there was a
shortage and jacked up the price billions of dollars. People went
bankrupt and counties went bankrupt and the State went in the hole $9
billion. She was the only member of the court to find that a county
could not sue a utility company for illegal price fixing that had
substantially increased the county's costs for natural gas.
So here she is again hurting consumers, hurting local government, and
standing alone in the process.
Here she is on a right to a fair trial. This is interesting. The
courts have ruled over and over that when a criminal defendant comes
into court before there is a verdict of guilt, you can't bring that
criminal defendant in in shackles and in a prison uniform because you
put in the jury's mind that the person is guilty. So you give the
chance to the person to come in dressed as a civilian, then you find
out the details and you find them guilty or innocent.
In this case, she was the only member of the court to find nothing
improper about requiring a criminal defendant to wear a 50,000-volt
stun belt while testifying, the only member of the court. That is how
outside the mainstream she is.
If we could put back up the 208-to-10 number while I give the rest of
my remarks, that would be fine.
What do we have here? We have a circumstance that 10 times out of
218, Democrats believed the President's choices were really harmful to
the American people, would really be harmful to them, whether it is
their minimum wage, whether it is their 40-hour workweek, whether it is
the ability of all of us to protect our kids from cigarettes, whether
it is to protect victims of violence, it goes on and on. You have seen
just a handful of the cases.
So when somebody says to you: Well, those Democrats, they are
blocking everybody--and if you listen to my Republican colleagues, that
is what you would think--no, we have blocked 10. We have approved 208.
In reality, now the number is 5, but circumstances have changed. I will
lean over backwards to be fair and say it is 10. That is 95 percent. In
each case of these 10 you will find out why we have done it. It is
because these nominees are so outside the mainstream that they will
hurt the people we represent.
Why is it important to say that a judge needs to have a 60-vote
threshold to end extended debate? It is because it is a lifetime
appointment. The President is supposed to work with the Senate before
choosing a nominee, which he has not done, not on our side of the
aisle. I tried hard with Mr. Gonzales when he was White House counsel.
I met with him on numerous occasions, and he said: Senator Boxer, give
me some names of Republicans. I gave him so many names of good
Republicans for the Ninth Circuit.
I said: Look, these people are mainstream Republicans. They will fly
right through here.
No, they couldn't be bothered with that. I know Senator Feinstein has
done the same, given them the names of people who would be quite
acceptable. Who do they send us? People such as Janice Rogers
Brown, people who are so outside the mainstream that we don't deserve
to be here if we don't raise the arguments.

Now, what you are also going to hear is the Republicans have called
this the nuclear option. They have renamed it the constitutional
option. That is humorous--if you want to find humor in any of this.
That is like saying that clock over there is a table. I suppose if I
told you that often enough, maybe you would believe me that once upon a
time that clock was a table. But the clock is a clock and the nuclear
option is the nuclear option. It was named by the Republicans. But it
is not popular out there because of the connotation, so they are trying
to change it.
The ``constitutional option'' is the reverse of the truth. In the
Constitution, it says nothing about guaranteeing a vote. It says the
Senate shall write its own rules. Well, the Senate wrote its own rules
and the Senate said it takes 67 votes to change our rules. Our
colleagues don't have 67 votes to change the rules, so they are trying
to do this sneaky parliamentary move to change the rules. What a way to
govern because you didn't get 100 percent of what you want; you got 95
percent. I don't feel sorry for any President who gets 95 percent of
what he wants.
I am telling you, Democratic or Republican Presidents have to work
with the Senate and the House and they have to compromise. So it is
very important to note that when you hear the Republicans saying all we
want is the constitutional option, you say, where in the Constitution
does it give you this right? Nowhere.

[[Page S5286]]

Then they will say this: Everybody deserves an up-or-down vote.
Everybody. I don't know how many times we have given Janice Rogers
Brown a vote. We gave Janice Rogers Brown a vote here once, and
Priscilla Owen got a vote four times. Yes, the vote required 60 as the
threshold to end extended debate, but they got their vote. Now, when
you go back to Bill Clinton, 61 times his nominees got stuck in
committee; 61 of Bill Clinton's nominees never got to have a cloture
vote. They never got a vote. They were pocket-filibustered in
committee. We have never done that. Every single Bush nominee who has
come to the floor has had their vote. I know of none who have not had a
vote. They just didn't meet the 60-vote threshold.
That is the second thing you are going to hear: All we are asking for
is an up-or-down vote. They had that, but they had to meet the 60-vote
threshold to end extended debate. Why? Because they are lifetime
appointments, we are checking and balancing the power of the executive
by saying don't send us people such as Janice Rogers Brown, who is so
out of the mainstream. She sees a military uniform on every senior
citizen and says senior citizens want to cannibalize their
grandchildren. Excuse me? She says there is no private property left in
this country. That is outside the mainstream to the extreme.
If we Democrats have the courage of our convictions to say no 10
times, give us a little respect; don't try to change the rules in the
middle of the night. Do what the Democrats did in the 1930s. Think how
good you would feel if you stood up to the President of your own party
and said: Mr. President, we will follow you anywhere; we think you are
terrific, and we support you in Iraq and on privatizing Social
Security, and we support you in your huge deficits; we support you in
these trade agreements, we support you this way and that way; but we
don't think packing the courts is a good idea. Therefore, we are going
to join with the Democrats and say no to this plan. It is very
dangerous.
I want people to understand. The point of my discussion here today is
to put a human face on these judges. This isn't about just numbers,
although the numbers tell a heck of a story. The Republicans get 208
and not 10 and they are crying and doing this in a sneaky way, without
getting 67 votes to do it. That alone is wrong. It is not playing fair,
it is not the American way, it is not playing by the rules. The
American people want to know it. If you want to fight with us, we will
have a debate, but stick with the rules. Get your 67 votes so you can
have the arrogance of power. Get your 67 votes so you can tread all
over us. But don't do it in this sneak attack, challenging the
Parliamentarian, and then having the Senator in the chair say, you know
what, it is over; no more filibusters on judges.
If you do that, you are hurting the American people. Some people say
it is about the traditions of our country, the right to unlimited
faith, freedom of speech, ``Mr. Smith Goes to Washington,'' I will
stand on my feet, that is my God-given right for my State to do that,
and that is all true. But for me personally, as a Senator from the
largest State in the Union, with 36 million people, I want to protect
them. I want to protect the 17-year-old who got raped and not have her
come before Janice Rogers Brown and have her stand alone and rule
against her. I want to protect the worker who wrote a little e-mail to
another worker and said I don't think the boss is being so fair, what
do you think? They said we had 2 weeks vacation and now they are
counting that day off as one of those days and it is not right, and
have to be before Janice Rogers Brown who says the corporation can
write anything they want, but you are too lowly. I don't want to have
the American people subjected to a judge such as Janice Rogers Brown,
who said any city that helps a disabled elderly person get housing is
wrong and is destroying private property. I don't want to have my kids
in a circumstance where they have to see their grandmother called a
``cannibal.'' I don't want to have a judge who overturns Social
Security, who overturns the minimum wage, who overturns the 40-hour
workweek.
The point is, I want to protect the people I represent. So if I don't
stand up strongly against a judge such as her, I don't deserve to be
here. The people of my State would be upset with me.

The right I have in this magnificent Senate today is the right of the
minority. We have 45 Democrats here and 55 Republicans. I am counting
Jim Jeffords as a Democrat for the purpose of discussion because he
votes with us. So it is 55-45. Jim Jeffords is an Independent, but he
votes with us. By the way, in the recent polls, the Independent voters
are for the filibuster; 54 percent are for the filibuster. I want to
protect the people I represent, because Janice Rogers Brown has been
nominated for the DC Circuit Court, meaning one step below the U.S.
Supreme Court. So she is going from the California Supreme Court, where
she has dissented in a third of the cases, in a court that has--and you
may be interested in this--six Republicans and one Democrat. Janice
Rogers Brown has dissented 31 times. This is how out of the mainstream
she is. I think it is important to note.
In the DC Circuit, there is a whole other area of the law that was
protested--your right to breathe clean air, your right to drink clean
water. This is important for us because environmental laws protect our
health, and if we have someone in the court there who doesn't think
Government has any right--and she obviously doesn't--to do anything
because--what is it she said about Government? If you could put that
chart up again. Whenever Government gets involved, this is what she
predicts happens. We will show you the quote. Obviously, she doesn't
think there is anyplace for Government because she says: ``Where
government moves in''--I would say in a circumstance such as the Clean
Air Act, where we tell folks you have to make sure the air is kept
clean--``community retreats, civil society disintegrates, and our
ability to control our own destiny atrophies . . . families are under
siege.''
I don't know what country she is living in. She says: `` . . .
unapologetic expropriation of property; the precipitous decline of the
rule of law; the rapid rise of corruption, the loss of civility and the
triumph of deceit.''
What an optimist. Why are we promoting someone who has this negative
view of America? Doesn't she know this is a government of, by, and for
the people? That is what we are about. Do we make mistakes sometimes?
Yes. Do we have to make sure we fix our laws so they work better? Yes.
But to say whenever Government moves in, community retreats, I wonder
what she thought of the highway bill we just passed. She probably
thinks it is awful because we take the gas taxes and we build highways,
and we build transit systems because we think it is important for
economic growth. But she says when Government moves in, community
retreats, civil society disintegrates, and the result is families are
under siege and there is war in the streets.
So, yes, I am here to say I did stand up against Janice Rogers Brown,
and whether she has to meet a 60-vote threshold, which she has been
unable to get, or a 51-vote threshold, I will be fighting against this
nominee because she is way out of the mainstream. She walked away from
judges in her own political party and stood alone 31 times. That is why
we have said to the President: Why don't you talk to us about these
nominees? We could have told you this one would have trouble. We would
have given you the names of some fine conservative Republicans. But not
someone who has this wonderful life story, but has a view of America
that is amazing.
Here is what she once said in a speech:

Most of us no longer find slavery abhorrent. We embrace it.
We demand more. Big Government is not just the opiate of the
masses; it is the opiate.

Her point is we are slaves to our Government. Well, again, I don't
know what country she is living in. We are not slaves to our
Government. We run the Government. We get to vote the people we want in
and we get to vote them out. If we don't like what they do, we will let
them know. She is out of step, calling senior citizens militant, saying
they are taking all of the goodies and free stuff. She doesn't like the
minimum wage, doesn't like the 40-hour workweek, doesn't like senior
citizens. She never protected women. She doesn't protect our children.
She doesn't protect our consumers. She

[[Page S5287]]

doesn't protect our workers. Why do we want someone such as that to get
a promotion?
Therefore, the Democrats have said to the President, through our
voice in the Senate: Send us someone else and we will be delighted to
work with you. We have worked with you 208 times, Mr. President, and 10
times we said no.
We said you are out of the mainstream, and the response of a 95-
percent success record by the Republicans--and a few are not going
along with it, and bless them for that--is: We will take away your
right, Democrats, to stand up for the things you think are important.
We will take away your rights by changing the rules in the middle of
the game, by skirting a 67-vote requirement for changing the rules. We
will do it.
There is politics being played. The majority leader talked about this
in a speech in a political way, which was wrong. He has not agreed to a
compromise. Senator Reid has offered several. The fact is, people have
to know what is at stake.
I hope everyone within the sound of my voice will know the reason why
Democrats have stood so firmly against the nomination of Janice Rogers
Brown. It is because we care about the people we represent, and we care
about mainstream judges, and we do not want to see such a radical
individual get this position and begin to whittle away at the rights
our people have won, at the fairness our people have won.
This is very important. This vote is going to change the Senate
forever. But more than that, it will impact the lives of the people.
Changing the Senate, changing tradition, changing the role of the
minority to make a difference, to be heard, freedom of speech--these
are all important. But at the end of the day, it is about our kids, our
grandkids, our seniors, our families, our workers, the air we breathe
and the water we drink, and this is all connected to the judges. This
is not disconnected. This is the brilliance of our Founders who said
the judicial branch, the judges, shall make sure that everything we do
in the legislative branch and in the executive branch is
constitutional, is right, is reasoned.
If we have people on the bench who believe that anything we do
disintegrates our family; that anything we do, such as the highway
bill, for example, turns into an expropriation of property and the
rapid rise of corruption and the loss of civility and the triumph of
deceit--this belongs somewhere else, not in the courts.
Mr. President, I thank you for your patience. I thank my staff who
has done an extraordinary job for me in analyzing these decisions. This
is not easy to do because you have to go line by line. I know the
Presiding Officer knows these cases can be very long and confusing. My
staff are attorneys. They are also very smart attorneys, and they were
able to get to the point of these cases and bring home this message to
people that when we fight against 10 judges out of 218, it is for a
reason. It is not because we want to be difficult. It is because we
believe when the Constitution says the Senate has the right to advise
and consent on judges, it does not mean when the President feels like
it. It does not mean between the hours of 11 and 1 on Wednesday. It
means every time he sends a nomination to us, he should have, in fact,
sought the advice and consent of the Senate.
We have a big debate coming up tomorrow. I just wanted to give a
little reality check so people understand for what we have been
fighting.
I thank the Chair. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Martinez). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I ask consent I be recognized as in morning business and
be allowed to speak as long as necessary.
The PRESIDING OFFICER. Without objection, it is so ordered.

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