[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

[[Page S6076]]

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

[[Page S6077]]

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.