[Congressional Record Volume 151, Number 73 (Monday, June 6, 2005)]
[Senate]
[Pages S6075-S6079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RECOGNITION OF THE MAJORITY LEADER
The PRESIDENT pro tempore. The majority leader is recognized.
Mr. FRIST. Mr. President, I have just a few announcements and then I
will have a short statement. We will have a full day of debate today on
the nomination of Janice Rogers Brown. To allow for an orderly debate,
I now ask unanimous consent that following the remarks of myself and
the Democratic leader, the chairman of the Judiciary Committee be
recognized to speak. Further, I ask that the time from 3 to 4 be under
the control of the Democratic leader or his designee, and the time from
4 to 5 be under the control of the majority leader or his designee. I
further ask that the time from 5 to 5:30 be under the control of the
other side of the aisle, and the time from 5:30 to 6 be under the
control of the majority.
The PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
Mr. FRIST. Mr. President, as a reminder to our colleagues, the
cloture vote on the Brown nomination is scheduled for noon tomorrow. I
hope and expect that cloture will be invoked at that time and that we
will be able to move quickly to an up-or-down vote on her nomination.
The Democratic leader and I will be talking shortly this afternoon and
will make more specific plans in terms of voting times and give some
idea of how quickly we can move with other nominations.
We do have another cloture vote on the Pryor nomination, which would
immediately follow the up-or-down vote on Janice Rogers Brown.
In addition to those judicial nominations, we have agreements to
debate and vote on of two Sixth Circuit judicial nominations, as well
as one DC Circuit Court nominee. This week, we may also reconsider the
vote with respect to the Bolton nomination. As you can tell, we have a
very busy week as we return from recess. I thank our colleagues in
advance as we move through these issues.
Mr. President, I will have a brief opening statement as well, but I
now yield to the Democratic leader.
Mr. REID. Mr. President, I thank the majority leader. We do have our
week cut out for us. I think the Republican leader and I will get
together later today to try to make a decision as to what we are going
to do later. If we get through this block of judges that the leader
talked about, we should be in pretty good shape to move on to other
things and take the judges on a more regular basis, not eating up so
much
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time. This is something the leader and I will discuss.
We have a work period of 4 weeks, so there is much we have to do
because, as the Presiding Officer knows, we are entering the
appropriations process time, which is always very hectic. We need to
turn to that as soon as we can. I hope we can move through the
appropriations bills one at a time and not have to do an omnibus or a
continuing resolution. That would be better for individual Senators,
our States, and our country.
As I have said, we have devoted a lot of time to this situation on
judges. After this week, we should be able to move on to other items. I
hope so.
The PRESIDENT pro tempore. The majority leader is recognized.
Mr. FRIST. Mr. President, I welcome our colleagues back from the
Memorial Day recess. I know everybody enjoyed spending time with family
and friends and constituents, reconnecting with the people we serve. It
is always a very busy time during a recess period, and this particular
recess period, because it was the Memorial Day recess, where everybody
did take that day--or several days or moments on several days--to pause
and honor the brave Americans who made the ultimate sacrifice in the
course of their service to our Nation and in the cause of liberty.
In addition to Memorial Day, it was a time of graduations, a time of
commencements for students, whether it be from elementary school,
middle school, high school, college, or graduate school. A number of
our colleagues participated--I am sure most colleagues participated in
graduation ceremonies at all of those levels over the last couple of
weeks.
I also hope that last week was a time when people rested and
recharged their batteries because, as was just implied in the remarks
of the Democratic leader and myself, we have a very busy 4 weeks ahead
of us. We have a lot of work to do in a very short period of time
before we have the Fourth of July recess.
Today, we will continue, shortly, to debate the nomination of Janice
Rogers Brown to the DC Circuit Court of Appeals. After having been
delayed for 2 years by partisan obstruction, she will finally receive a
fair up-or-down vote--something she deserves. It will be this week on
the floor of the Senate. So I am very pleased because that demonstrates
real progress in this body. So after 2 years of partisan obstruction,
she is going to receive an up-or-down vote.
The President made a great choice in selecting Judge Brown to serve
on the Federal bench. I have had the opportunity to meet and spend time
with Judge Brown personally and have studied her record. She is a woman
of great accomplishment and talent. She is tough, smart, and
principled. Her story is nothing short of remarkable.
From humble beginnings as a sharecropper's daughter in segregated
Alabama, Janice Rogers Brown has climbed to the peaks of the legal
profession. She was educated in segregated schools and worked her way
through college and law school. She went on to serve in prominent
positions in California State government.
Today, Janice Rogers Brown is a justice on the California Supreme
Court, the first African-American woman to serve on California's
highest court. Her fellow California judges, both Democrat and
Republican, have called her a ``superb judge'' who ``applies the law
without favor, without bias, and with an even hand.''
The people of California believe she is doing a great job. They
reelected her with 76 percent of the vote, the highest voting
percentage of all of the justices on the ballot.
The Senate will have a spirited debate on Justice Brown's nomination,
but I hope Senators will remember that this is about treating nominees
with fairness. Nominees deserve not only a fair up-or-down vote but to
be treated fairly during the debate. Civility is more than a word. It
is a value we must all work to uphold in our deliberations, and may
that be respected on the floor of the Senate.
Before the recess, the Senate voted up or down on Justice Priscilla
Owen and she was confirmed. I hope this progress will continue with
Justice Brown this week and with Judge Pryor this week, as well as
future nominees. We should have a very positive week on judges. As long
as that progress continues, a process that continues to give these up-
or-down votes, gives these nominees the consideration they deserve, not
blind obstruction of the Constitution, the constitutional option, of
course, will not be needed.
Our job as Senators is to govern with meaningful solutions, and we
must always remain focused on that larger picture of making America
safer and stronger and more secure. That is why it is imperative that
we address matters such as America's intolerable dependence upon
foreign oil. We have gone on for more than a decade without a
comprehensive national energy policy. It is time now to change that. As
a result, we have become dependent on foreign sources of oil, putting
our security and our economy at risk. That is too long. It is time for
us to act now--not just talk about it--for families worried about gas
prices as they anticipate summer driving, for families who have to
sacrifice next winter to pay their heating bills. They expect us to
act, and we will in this body on the floor of the Senate and deliver
for the American people.
We must diversify our sources of energy and balance new production
with conservation and development of renewable resources.
We must do so in a way that reduces our reliance on foreign sources--
by increasing America's domestic production of clean coal, oil, and
gas, nuclear, solar, ethanol, and other renewable energy sources--a
comprehensive energy plan that will make America safer and more secure
and will inject much needed jobs into the economy.
I thank Chairman Domenici and Senator Bingaman for their hard work
and for working together to get this bill out of committee and ready
for the floor on a strong, bipartisan vote.
I am confident that we can move forward in the same bipartisan spirit
on the Senate floor to move this bill quickly and get it to conference
with the House and have it on the President's desk for his signature.
America needs an energy policy that reflects our modern economic and
security challenges.
In the days ahead, we will address the Energy bill and we will
complete action on the highway bill, which is currently in conference.
As soon as that conference completes its action, we will bring it to
the floor. We will address the President's nominees and a host of other
issues.
As we do so, I am determined to work with my colleagues on both sides
of the aisle to take whatever action is necessary--that bold action to
move America forward.
We have made great progress in the 109th Congress thus far. We passed
fair and thoughtful legislation to end class action and bankruptcy
abuse. We took quick and decisive action to support our troops in the
field and to give relief for the victims of the tsunami disaster. We
passed the Genetic Nondiscrimination Act, a victory that will provide
protections against genetic discrimination in health insurance. And we
are now finally giving judges the votes they deserve.
We passed a budget in the fifth fastest time in Senate history.
We are leading today on tomorrow's challenges. We can be proud of our
efforts to expand freedom here at home and across the globe.
With mutual trust and civility and a sharp focus on our ultimate
goals, we can continue to deliver to the American people the solutions
they need and the leadership our Nation deserves.
Mr. President, I yield the floor.
The PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, I have sought recognition to support the
proceeding to invoke cloture, cut off debate, on California State
Supreme Court Justice Janice Rogers Brown, and to bring her to a vote
for confirmation to the Court of Appeals for the District of Columbia
Circuit. Justice Brown comes to this body with a truly outstanding
academic and professional record. She is a graduate of the California
State University-Sacramento in 1974. She received her law degree from
the University of California at Los Angeles in 1977 and then has had an
illustrious career in government in the practice of law and on the
bench. She has served in very important legislative roles with the
California Legislative Counsel Bureau where she was deputy legislative
counsel. She was deputy
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attorney general for some 8 years; deputy secretary and general counsel
for the State of California Business, Transportation and Housing Agency
for 3 years, and then came to the court of appeals, which is an
intermediate appellate court in California, for 3 years before becoming
a justice on the Supreme Court of California, where she has sat since
1996 until the present time.
During the midst of her career, she has gone on to get a master's
degree at the University of Virginia School of Law in the year 2004
which, I would say, is quite an achievement for someone who has been in
the California court to take on that kind of academic endeavor and to
earn a master's degree.
Beyond her professional work, she has been very active in the
community, working with the Youth for Citizenship which serves young
people, high school students, teaching them history, civics, reasoning,
and debating skills.
She is a participant in a program called ``Playing by the Rules''
sponsored by a local baseball team, which brings together lawyers,
judges, baseball, and elementary and junior high school students to
explore life lessons, good citizenship, and the rule of law.
She is a founding board member of Rio Americano High School's Academy
Civitas, a 3-year program which specializes in history and political
philosophy and seeks to encourage civic virtue by having students
participate in internships with Government agencies.
She is the first African-American woman to serve on California's
highest court. She is the daughter of sharecroppers, having been born
in Greenville, AL, in 1949, 5 years before Brown v. Board of Education.
She attended segregated schools and came of age in the midst of Jim
Crow policies in the South, which is not easy to do.
With all of that, she has had an extraordinary and really illustrious
career.
I suggest to my colleagues in the Senate that the confirmation
process of Justice Janice Rogers Brown would not be nearly so
complicated if it were not set in a timeframe where, for the past two
decades, virtually, there has been an exacerbation of the issue of
confirmation of judges when one party held the White House and the
other political party held the Senate and the Judiciary Committee.
I have served on the Judiciary Committee since my election in 1980. I
personally observed, in the last 2 years of President Reagan's
administration, after Democrats won control of the Senate in the 1986
election, that the process was slowed down, and the process was further
slowed down during the full 4 years of the administration of President
George Herbert Walker Bush. I have detailed these in previous floor
statements and will not now reiterate them.
Then, in the last 6 years of President Clinton's administration,
nearly 70 nominees by President Clinton were held up in committee, and
that was payback, in effect, for what had happened for the last 2 years
of President Reagan's administration and the 4 years of the
administration of the first President Bush.
When the Republicans won control of the Senate, the Democrats then
resorted to the filibuster, which was the first systematic use of the
filibuster against judicial nominees in the history of this country.
That was followed by President Bush's use of the interim appointment
power, the first time in history that the interim appointment power had
been used for a judicial nominee after a rejection by the Senate,
albeit by the filibuster route. That stopped when there was a
commitment made not to use it any more, and the nomination process went
forward.
Let us take a look at the record of Justice Janice Rogers Brown and
take a look at the record of Justice Owen, now Judge Owen confirmed to
the Fifth Circuit Court of Appeals, or Judge Pryor, whose nomination
will be before the Senate hopefully in the next several days. We have
confirmed many circuit judges during my tenure since my election in
1980, all which I have spent in the service of the Judiciary Committee,
who had records not as good as those of Justice Brown or Justice Owen
or Judge Pryor. Had we had not been in this situation of holding up
judges when one party controlled the White House and the other
controlled the Senate and the exacerbation of this situation, we would
not have reached the critical stage in which the Senate has been in the
immediate past.
We have seen a situation where the filibuster went on and, in my own
personal opinion--and I have expressed this at some length in prior
floor statements--Democrats were not really pleased with this
systematic filibuster. That led to the potential retaliation of the
Constitution or nuclear option. I do not think many, if not most, of
the Republicans were pleased with that sort of an alternative. But the
whole situation had spiraled out of control.
As Senators, we do have a fundamental constitutional obligation to
consent, if we choose to do so, to the President's nominees to the
bench. This is an advice and consent function under the United States
Constitution. That does specify--I think it is more than implication, I
think it is really specification--that there be independent judgment
used by Senators in coming to that decision. Just as there is a
requirement of independence, if there is to be separation of power,
then the party which controls the White House ought not to be an
automatic rubberstamp for the President. Similarly, the party out of
power ought not to be an automatic filibustering machine; there ought
to be independent judgment. And that is why I had urged the leaders,
again in extended floor statements which I shall not now repeat, to
liberate their Members from the straight party-line, straitjacket vote
and allow them to exercise their independence. I think if the 100
Senators were left to our own judgments as to what kind of a nominee
ought to be filibustered, Justice Janice Rogers Brown would never have
been filibustered. Similarly, if we Senators--Republicans on the
situation of the constitutional or nuclear option--had been left to our
own judgment, we would have rejected the idea of having the
constitutional or nuclear option.
So we have come to a situation now where at least we have moved to
confirm Justice Owen, and we are on the brink of the confirmation
process of Justice Brown with, as we all know, the agreement of some 14
Senators that there would not be a filibuster as to Justice Brown.
It is true that if you take a look at some of Justice Brown's
statements in a context of diplomacy, they might have been left better
unsaid, but if everybody in public life--and that would even include
Senators--were held to every last syllable that each of us uttered, it
would not be a very difficult matter to go through the tracks of
speeches each of us has made and find some items on which to be highly
critical.
Justice Brown has been criticized for a comment which she made
criticizing Justice Holmes' dissent in Lochner, where she referred to
the ``triumph of our own socialist revolution'' in 1937. But if we take
a look at Justice Brown's decisions, we find her decisions are not in
line with that kind of a loose condemnatory statement.
In Lochyer v. Shamrock Foods, Justice Brown joined the court's
opinion upholding California's stringent standards, which exceeded
Federal standards, for identifying and labeling milk and milk products.
That is hardly an inactive government.
In the case of Lungren v. Superior Court, she joined the court's
opinion, broadly construing the phrase ``source of drinking water'' in
the State's clean water statute so that plaintiffs could proceed with
their case. Again, not exactly denial of governmental authority.
In the case of Ramirez v. Yosemite Water Co., she joined the court in
upholding State regulations regarding overtime pay that applied greater
protection to workers than Federal law. Here, again, that is active
State regulation.
In Pearl v. Worker's Compensation Appeals Board, she joined the
court's opinion, upholding the Worker's Compensation Board's stringent
standards for ensuring the safety of workers, awarding the plaintiff,
an injured police officer, higher benefits; again, sound judicial
thinking and not exactly denial of the authority of the State to
legislate and look after the common welfare.
She made a statement with respect to discrimination saying it is not
``. . . based on age is not . . . like race and sex discrimination. It
does not mark
[[Page S6078]]
its victim with a `stigma of inferiority and second class citizenship';
it is the unavoidable consequence of that universal leveler: time.''
That is perhaps an effort to be scholarly, perhaps to be poetic, but
hardly disqualifying.
If we take a look at her opinions on the bench, they demonstrate a
very distinctive regard for civil rights. In People v. McKay, hers was
the lone dissent, arguing for the exclusion of evidence of drug
possession that was discovered after the defendant was arrested for
riding his bicycle the wrong way on a residential street. Her dissent
pointedly suggested that the defendant was the victim of racial
profiling and included an impassioned critique of that practice.
In Kasky v. Nike, the court held that Nike's statements denying
mistreatment of overseas workers constituted commercial speech subject
to the State truth in advertising laws. Justice Brown dissented saying
that Nike's speech constituted noncommercial speech worthy of more
strict first amendment protection. Upon appeal, the Supreme Court
denied certiorari, but in opinions issued by Justices Breyer and
Stevens, there were strong suggestions that if the Court had taken the
appeal, Justice Brown's position might well have been upheld, in a very
difficult case, where it is hard to draw the line as to what
constitutes commercial speech or what is noncommercial speech entitled
to more stringent protections under the first amendment.
In this case, as in so many others, Justice Brown demonstrated a real
concern for constitutional protections.
In re Brown, she wrote the court's opinion reversing a verdict and
death sentence on grounds that the prosecutor deprived the defendant of
a fair trial by failing to discover and disclose an arguably
exculpatory blood test.
In Visciotti, she dissented from the majority opinion, arguing that a
defendant's death sentence should be set aside on grounds of
ineffective assistance of counsel.
In the interest of time, I am not going to delineate any more of
Justice Brown's opinions, but I would like to put into the Record some
summaries of criticism of Justice Brown where she has been criticized
for her attitude toward big Government, where she has been criticized
for some rulings on civil rights, where she has been criticized for
rulings on the first amendment, and where she has been criticized for
rulings on criminal law.
I ask unanimous consent that these summaries be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Opposition--Brown's Criticisms of Big Government
justice brown's critics overlook a record on the bench of moderation
Much of the criticism of Justice Brown centers on speeches
she made off the bench, but does not hold up next to her
judicial opinions
Most notably, Justice Brown criticized the demise of the
Lochner era and the rise of the New Deal in a speech before
the Federalist Society. While her speech was indeed critical
of Justice Holmes' dissent in Lochner, her judicial opinion
on the subject in Santa Monica Beach, Ltd. v. Superior Court
criticized Lochner in terms echoing the United States Supreme
Court.
Justice Brown also has been attacked for speeches that
criticize government as profligate in creating new rights and
privileges and redistributing wealth. Again, the attack loses
force when the focus turns to her judicial opinions, which
are untainted by personal ideology. To give just a few
examples, she has voted to employ an expansive interpretation
of a state clean water statute so that plaintiffs could
proceed with their case; upheld the right of a plaintiff to
sue for exposure to toxic chemicals using the government's
environmental regulations; upheld state regulations regarding
overtime pay; and upheld a workers compensation board's
stringent standard for ensuring the safety of workers.
In a recent column, law professor Jonathan Turley, a self-
described ``pro-choice social liberal,'' points out that
``Brown's legal opinions show a willingness to vote against
conservative views . . . when justice demands it'' and that
Democrats should confirm her. The attempt to brand her as an
extremist, derived from a combination of half-truths and the
extremism of her critics, is demagoguery of the first order,
and should not be permitted to obstruct the confirmation of a
jurist who has been a credit to the bench.
Opposition--Brown's Rulings on Civil Rights
Justice Brown's rulings on racial bias have been distorted
In Peatros v. Bank of America, she dissented on grounds
that a state law-based discrimination claim was preempted by
the National Bank Act. The dissent in fact deferred to
federal jurisdiction under the Supremacy Clause and notably
pointed to Title VII as the appropriate civil rights
provision to invoke in an area governed by federal law--a far
cry from an ideologue who appreciates neither federal
authority nor civil rights laws.
Another subject of attack was her dissent from Aguilar v.
Avis Rent A Car System, a decision upholding an injunction
against the use of racial slurs in the workplace. Unmentioned
in the attack is that her dissent was based on well
established First Amendment prohibitions on prior restraint
and that she was joined by the court's late liberal icon,
Justice Mosk.
In Hi-Voltage Wire Works v. City of San Jose, Justice Brown
deferred to precedent in her court opinion invalidating a
minority contracting program under Proposition 209. That
issue was so straightforward that every judge who reviewed it
from the trial court on up reached the same result--including
every member of the state supreme court.
Justice Brown's opinion asserted that ``discrimination on
the basis of race is illegal, immoral, unconstitutional,
inherently wrong, and destructive of democratic society.''
Justice Brown further acknowledged that ``equal protection
does not preclude race-conscious programs.''
The innuendo that this jurist is insensitive to racial bias
disparages her firm commitment to civil rights
Consider Justice Brown's lone dissent in People v. McKay.
There she argued for the exclusion of evidence of drug
possession that was discovered after the defendant was
arrested for riding his bicycle the wrong way on a
residential street.
Justice Brown had this to say: ``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. 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.''
Justice Brown criticized what she called ``the disparate
impact of stop-and-search procedures of the California
Highway Patrol. The practice is so prevalent, it has a name:
`Driving While Black.' ''
When you read such powerful statements, you have to wonder
whether this judge, far from being too conservative, may not
in fact be a bit too liberal for some of my friends who have
opposed her.
Opposition--Brown's Rulings on the First Amendment
Justice Brown's First Amendment opinions have been distorted
When she is cognizant of First Amendment rights in a
discrimination case, she receives no credit. Her critics
simply turn to three other First Amendment cases to spin an
attack that she gives broad protection to corporate speech
while shortchanging individual free speech.
In one case, Justice Brown wrote a plurality opinion
upholding an injunction against gang members congregating in
a specified area in San Jose, a position supported by the
Democratic mayor of the city at the time, the Los Angeles
Times, and the San Francisco Examiner.
In another, Justice Mosk, the California Supreme Court's
late, liberal icon, joined Justice Brown in a dissent that
would have upheld an injunction against a disgruntled former
employee sending disruptive mass emails.
In the third case, Kasky v. Nike, Justice Brown dissented
on grounds that Nike's speech deserved more stringent
protection than was provided by a California law. This third
case provides the hook for her detractors' spin, but the
baselessness of the critique is underscored by strong
evidence that a majority of the United States Supreme Court
would have taken her position had it considered the merits.
In dismissing the writ of certiorari, Justice Stevens,
joined by Justices Ginsburg and Souter, noted in the same
vein as Justice Brown that the case involved ``novel First
Amendment questions.''
Justice Breyer, joined by Justice O'Connor, stated in a
dissent to the dismissal of certiorari in Kasky that ``it is
likely, if not highly probable'' that the law violated the
First Amendment.
[[Page S6079]]
Opposition--Brown's Rulings on Criminal Law
Justice Brown has demonstrated her respect of Fourth
Amendment rights and has argued for reversing verdicts or
sentences for capital defendants
In addition to the dissent in People v. McKay that I cited,
she wrote the court's opinion in In re Brown reversing a
verdict and death sentence in a case where the prosecutor
deprived the defendant of a fair trial by failing to discover
and disclose an arguably exculpatory blood test.
In In re Visciotti, she dissented from the majority
opinion, arguing that a defendant's death sentence should be
set aside on grounds of ineffective assistance of counsel.
Mr. SPECTER. I ask unanimous consent that quotations from certain of
Justice Brown's supporters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Quotes From Supporters--What Those Who Know Her Best Are Saying About
Justice Brown
Letter from a bi-partisan group of 12 of Justice Brown's
current and former judicial colleagues (including all of her
former colleagues on the Court of Appeal, Third Appellate
District and four current members of the California Supreme
Court) to the Honorable Orrin G. Hatch, October 16, 2003:
``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 know her to be extremely intelligent, keenly
analytical, and very hard working. We know that she is a
jurist who applies the law without favor, without bias, and
with an even hand.''
Statement of former senator and governor Pete Wilson, for
whom Justice Brown served between 1991 and 1994:
``She served as my legal affairs secretary for three years
because a number of excellent lawyers in the state, whose
judgment I trust, said, `You will not do better.' They were
right. She was not only a legal scholar--so that I could rely
upon her judgment as to what the law was--she was an
excellent guide when I was trying to decide what the law
ought to be . . . I would simply say to you that, by
intellect and by character, by experience, by capability,
Justice Brown deserves not only a vote, but deserves a seat
on the District Court of Appeals, where I predict she will,
if seated, be a brilliant addition.''
Letter from a bi-partisan group of 15 California law
professors to the Honorable Orrin G. Hatch, October 15, 2003:
``We know Justice Brown to be a person of high
intelligence, unquestioned integrity, and even-handedness.
Since we are of differing political beliefs and perspectives,
Democratic, Republican and Independent, we wish especially to
emphasize 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, even when her personal views may conflict with
those arguments.''
Letter from 18 members of the California delegation in the
House of Representatives to the Chairman and Ranking Member
of this committee, April 14, 2005:
``Janice Rogers Brown is an outstanding jurist with more
than eight years of experience on the California appellate
bench. She is well-regarded by her colleagues and known to be
a person of great intellect, integrity and dedication.
Moreover, Justice Brown is a first-rate judge respected by
many for her even-handed and unbiased application of the
law.''
Letter from Ellis Horvitz, a Democrat and one of the deans
of the appellate bar in California, to the Honorable Orrin G.
Hatch, September 29, 2003:
``In my opinion, Justice Brown [possesses] those qualities
an appellate justice should have. She is extremely
intelligent, very conscientious and hard working,
refreshingly articulate, and possessing great common sense
and integrity. She is courteous and gracious to the litigants
and counsel who appear before her.''
Undated Letter from Regis Lane, Director of Minorities in
Law Enforcement, a coalition of ethnic minority law
enforcement officers in California, to Chairman Orrin G.
Hatch.
``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 with Justice Brown, I have
discovered that she is very passionate about the plight of
racial minorities in America, based on her upbringing in the
south. Justice Brown's views 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 disadvantaged youth of
color.''
Mr. SPECTER. One of the cases which I studied in law school was the
famous dissent by Justice Oliver Wendell Holmes, who argued for dissent
and for freedom of speech, saying what I think is, if not the most
famous quotation in Supreme Court history--that is pretty hard to
categorize--certainly one of the most famous where he said that ``time
has upset many fighting faiths.''
That is why we encourage independent thought. That is why we
encourage dissent. There are many dissents which have become the law of
the land. Dred Scott was overturned. Plessy v. Ferguson on segregation
was overturned. Brown v. Mississippi established the rule of due
process of law for State court criminal proceedings, and dissenting
opinions of Brandeis and Holmes and Cardozo have become the law of the
land.
So when one sees someone who might not conform exactly to the kind of
thought or might be a little more colorful in phraseology, it is not
necessarily something to be discouraged. If one takes a close reading
as to what Justice Brown has had to say, she is worthy of confirmation
by this Senate. As we analyze nominees for the Federal court, as we
analyze nominees for any important position, we ought not to discourage
individualism, independence, and free thought. The phrase that ``time
has upset many fighting faiths,'' encouraging independence and free
thought has been a great bulwark for the progress of this country.
I yield the floor, and in the absence of any other Senators seeking
recognition, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FRIST. Mr. President, we are in the midst of debate on Janice
Rogers Brown. I know we have the time divided from 3 to about 6
tonight. I ask to speak for about 7 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The majority leader is recognized.