Congressional Record, Volume 151 Issue 73 (Monday, June 6, 2005)

[Congressional Record Volume 151, Number 73 (Monday, June 6, 2005)]
[Senate]
[Pages S6080-S6094]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Reauthorizing the USA-PATRIOT ACT

Mr. WYDEN. Mr. President, tomorrow the Senate Select Committee on
Intelligence gets back on the national security high wire as the
committee continues to work on legislation reauthorizing the USA
PATRIOT Act. I described this process as a high-wire act because
success means striking a balance, an equilibrium, between fiercely
protecting our country from terrorism while still preserving the
privacy and civil liberties that make our democracy so precious.
Chairman Pat Roberts, to his credit, has held several open hearings
on this issue. I gladly participated because I believed the open
hearings would help to address some of the skepticism about why the
PATRIOT Act has almost totally been debated in secret.
Unfortunately, the most important part of the debate, the part where
the committee must actually discuss how to walk that high wire, is
still going to be done behind closed doors. In my view, this secrecy in
going forward will undermine any public confidence that open hearings
helped to create.
I have repeatedly and vigorously opposed making these decisions out
of public view. Holding the decisionmaking process in secret is a
mistake because it makes it harder for citizens to hold elected
officials accountable. Holding the decisionmaking process in secret is
unnecessary because it is not difficult for the committee to go behind
closed doors, certainly, briefly, when necessary, to discuss any
PATRIOT Act-related issue that requires secrecy. Holding the
decisionmaking process in secret gratuitously feeds the cynicism that
citizens have about the Government's true intentions with respect to
this law. Keeping these proceedings secret fuels concerns that the
committee is making choices that will not stand up to public scrutiny--
deciding, for example, that you can only have security if you sacrifice
privacy. In my view, that is a false choice. I simply do not believe
that protecting our country from terrorism and securing the privacy
rights of our citizens are mutually exclusive objectives.
So here is my bottom line: Give law enforcement and intelligence
officials the tools they need to protect our country, but stay away
from the fishing expeditions. I do not think anybody will argue with me
when I say that Congress passed the PATRIOT Act shortly after September
11, 2001, because it was necessary to move in a hurry. It was clear no
one could have conceived of the way in which our country was exposed to
attack. It was clear that the Federal Government needed to make major
changes in how it fought terrorism, and those were needed immediately.
The best parts of the law tore down the unnecessary walls that had
grown up between law enforcement and the intelligence agencies. Today,
if you go out to the National Counterterrorism Center, the people on
the ground there will tell you that those walls have been torn down,
and they have stayed down. So the men and women on the front lines in
the fight against terror are, in my view, more effective than they
were.
However, other provisions of the law have sparked serious concerns.
Giving Federal authorities broad powers of investigation has raised the
specter that the rights of law-abiding citizens might be severely
compromised, accidentally or even intentionally. In moving forward, I
want to make sure that the right of our citizens to privacy is
certainly not compromised intentionally.
I am not suggesting our national intelligence or law enforcement
agencies are currently being misused the way they have been during our
history--such as in the Watergate scandal. But it is important for us
to make sure that appropriate safeguards are in place to prevent
unintentional abuses and prevent future even darker episodes in our
country's history.
In my view, a proposed addition to the PATRIOT Act, one that
certainly warrants open debate, is the administrative subpoena which,
in my view, raises the risk of real abuse. I want to make it clear on
this subject today, I believe reauthorization of the PATRIOT Act should
simply not include new administrative subpoena authority for the FBI.
I am opposed to giving the FBI this authority to write their own
administrative subpoenas for foreign intelligence investigations for a
number of reasons. Doing so would give the FBI the authority to demand
just about anything from just about anybody, with no independent check,
simply by claiming that it is relevant to a national security
investigation. The FBI already has access to the waterfront of personal
information through the FISA warrant process. All they have to do is go
before a judge and explain why it is relevant in the most general
terms. By giving the FBI the authority to write their own
administrative subpoenas, the Congress would be removing this even last
modest safeguard.
Administrative subpoenas are currently used by many Federal agencies
in many contexts. But, except in a very few limited cases, they are not
used for national security investigations. National security
investigations are simply different than criminal investigations. They,
of course, are conducted in secret and do not require evidence of a
crime. This is why there are different rules for the two types of
investigations. It is not enough, in my view, to say what is good for
the goose is good for the gander. The question here is, What is good
for the American people? The answer is not administrative subpoenas.

As proposed, these subpoenas would be extraordinarily broad in their
scope. They could be used to gain access to your credit records, your
video rentals, your medical records, your gun purchases. They could be
used to obtain just about anything. These subpoenas would only be seen
by a judge if the recipient of the subpoena decided to challenge it.
Even if the recipient was properly notified of his or her right to
challenge, they might not be in the position to have the time or the
resources to even make that challenge.
For example, there are 56 FBI field offices, one in just about every
major American city. The head of the local field office could issue an
administrative subpoena to a hospital director and ask for all the
hospital's medical records simply by claiming they were relevant to an
investigation. If the hospital director was busy or did not have the
resources to make a challenge, then no judge--no judge would ever see
this administrative subpoena. The patients would not even know that
their records had been seized. They would be totally in the dark.
Even the FBI acknowledges that the agency can get all the information
they could possibly need with the investigative powers they currently
have. The only reason they have suggested for supporting this judge-
free administrative subpoena is speed. They say that the FISA warrant
process is simply too slow for time-sensitive, emergency situations.
This afternoon I would like to propose on the floor of the Senate an
alternative. In this year's reauthorization of the PATRIOT Act,
Congress can balance protection for the public with the right of
privacy by creating an emergency use provision to the FISA business
records authority. This way, under the proposal I make today, if the
FBI needs information right away, the FBI could notify a judge that
they

[[Page S6081]]

were going to get it--send an e-mail, leave a voice message--and then
go get it without waiting for a response. Then they would have 72 hours
to apply for the warrant so they could do it after the emergency had
been addressed. If the judge felt the FBI had acted inappropriately and
decided not to grant the warrant, then the Agency would not be able to
use whatever information they had gathered. The idea of adding an
emergency use provision along the lines I have described would address
the FBI's concern for speed without creating a broad new authority that
would remove all the independent checks, even in situations where there
were not emergencies.
Although time was not taken in 2001 to thoroughly discuss the privacy
issues related to the PATRIOT Act, most of the law's more controversial
provisions were made subject to sunset. This was done in hopes of a
more thoughtful, informed debate during the reauthorization. The
sunsets, in my view, have had an unanticipated benefit. They have made
the agency very careful about how it uses the powers that have been
granted.
In addition to the proposal that I am making today to give the FBI
more authority to deal with emergencies, I believe the Senate should
also focus its attention on sharper scrutiny for the sunset provisions
in the act. Some of the sunset provisions that have existed have not
attracted any controversy. Others have not only attracted controversy,
serious questions have been raised about their use and possible misuse.
I want to consider some of these provisions in detail today and, in
addition to the proposal I have made with respect to giving the FBI
emergency authority, I urge firm action to safeguard the American
people as the sunset provisions are considered in the PATRIOT Act's
renewal.

The provision that has attracted the most attention is probably
section 215 of the PATRIOT Act. It is commonly referred to as the
library records provision, but in fact it ought to be called the
business records provision. Suffice it to say, it is a sweeping one.
This provision gives law enforcement access to all types of information
from video rentals and gun purchases to tax and medical records. In a
nutshell, here is how it works.
Under the Foreign Intelligence Surveillance Act, FISA--which I have
referred to several times already--it is possible for FBI agents to go
to a judge and request a secret warrant to obtain business records. The
person to whom the records pertain is not informed. This means that if
the FBI serves a FISA warrant on a bank or hospital, the bank president
or hospital director would know about it, but the customers or patients
whose records had been seized would know nothing at all.
Before the PATRIOT Act, if the FBI wanted to get one of these
warrants, they had to show a judge specific and articulable facts that
the records pertained to a terrorist or a spy. The PATRIOT Act lowered
the standard, so now the FBI simply has to assert that the records are,
in their view, relevant to a terrorism inquiry. To protect innocent
Americans, the business records provision needs to be modified in
several ways.
First, the Congress should require that the application for a FISA
warrant include a statement of facts explaining why the records are
relevant to an investigation. Congress should also raise the standard
for the most sensitive type of records. The ``relevance'' standard may
be appropriate for a hotel or car rental record, but it may be
necessary to require the FBI to show hard evidence before giving access
to more sensitive records such as medical records.
Finally, there must be an increase in the reporting that is done in
this area. Congress's duty to look out for abuses of the PATRIOT Act is
often a challenging one. Little reporting is required on the use of
some provisions. Details regarding the use of the PATRIOT Act are
reported, even when reporting is not required. When there is a report,
the information is often classified. National security investigations
often need to be conducted in secret, but revealing how often
particular techniques are used does not make them less effective.
Congress needs this information to perform its constitutional
responsibilities, and the fact is too often Congress has been doing
oversight over the intelligence community in the dark.
The Intelligence reform bill that passed a few months ago tried to
fill several of the reporting gaps, but there are others that need to
be closed as the PATRIOT Act is reauthorized. These reports should also
be made public, to the maximum extent possible so that the American
people can know all that is safely to be known about FBI activity under
the law.
One of the major reporting gaps I am concerned about involves what
the FBI calls discreet inquiries that the agency uses to obtain library
records. The FBI Director, Mr. Mueller, has testified before several
Senate committees that, while FISA warrants could be used to obtain
people's library records, this has never been done. But the FBI
director went on to say that the Agency does obtain library records
through what he called discreet inquiries. So I think that the American
people deserve to know what a discreet inquiry is. The American people
deserve to know how often they are used. And I have asked the FBI to
get me this information.
Over a month later, despite multiple requests by the staff of the
Intelligence Committee, the FBI has still not provided an answer to the
question. Suffice it to say, the longer the Agency waits, in terms of
answering the question of how they obtain library records, the more
Americans believe that the Agency is stepping over the line and into
the lives of law-abiding citizens. Those most directly affected by the
library records provision have been expressing strong concerns. The
American Library Association recently wrote me:

``[D]iscreet inquiries'' by the FBI put our librarians at
risk of breaking state laws if agents approach them for
information without subpoenas or other properly executed
legal documents and intimidate them into complying with the
request.

I ask unanimous consent the letter from the American Library
Association be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

American Library Association,

Washington, DC, May 25, 2005.
Hon. Ron Wyden,
U.S. Senate,
Washington, DC.
Dear Senator Wyden: On behalf of the over 65,000 members of
the American Library Association (ALA) I am writing to
express our appreciation for your efforts to seek further
information about the nature and scope of FBI investigations
into library records. We thank you for your hard work
examining law enforcement activity in libraries under Section
215 of the USA PATRIOT Act, national security letters, and
``discreet inquiries'' without, apparently, warrants or
subpoenas.
Librarians across the country, in all kinds of libraries,
take their jobs as public servants very seriously. We are as
concerned about our Nation's security as any other sector of
the American public. At the same time, the issue of privacy
and the confidentiality of library records is a long-held and
deep principle of our profession. The American public values
this principle as well: forty-eight States have laws
protecting the confidentiality of library records, and the
other two States have attorney general opinions doing so.
As you know, both the FBI and the Department of Justice
have reported that there has been ``zero'' use of Section 215
in libraries. However, our office is aware, at least
anecdotally, of FBI inquiries made using other methods in
what do not appear to be normal criminal or civil
investigations. To determine the extent of these inquiries
ALA has begun its own research regarding the scope of law
enforcement investigations of library patrons and their
reading records.
Leaders of ALA have met with Attorney General Gonzales and
FBI Director Mueller to discuss our concerns about these
library-related investigations as well as to discuss our
ongoing research. We are seeking aggregated data to
understand better the breadth of FBI investigations and the
impact the investigations have on library users.
We very much appreciate your questions seeking further
information from Director Mueller about these inquiries.
Specifically, we would like to know:
What exactly is a ``discreet inquiry?''
Do these inquiries require a subpoena and are they subject
to any judicial oversight?
How many ``discreet inquiries'' have been made in the last
four years? 1 year? In general, what kind of evidence was
uncovered?
Have these inquiries been related only to foreign
intelligence investigations or have they been used in non-
intelligence investigations?
What are the procedures and authorization for such
inquiries?
Are there pertinent FBI guidelines and related oversight
procedures for assessing ``discreet inquiries'' and if so,
are there aggregated public reports on this type of inquiry?

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The American Library Association holds that privacy is
essential to the exercise of free speech, free thought, and
free association and that, in a library, the subject of
users' interests should not be examined or scrutinized by
others. Whether there has been one F.B.I. inquiry at
libraries on the reading habits of patrons or thousands, the
threat to the confidentiality of library records chills
library use by the public and threatens confidentiality in
other venues where privacy is the essence of the service/
relationship.
Thank you again for all your work on issues surrounding law
enforcement investigations in libraries and on the other
important provisions of the USA PATRIOT Act and related
regulations that affect the privacy and civil liberties of
the public. We support your efforts to address both the need
for effective law enforcement and the civil liberties of the
American public in an appropriate and proportional manner.
Sincerely,
Lynne E. Bradley,
Director of OGR, ALA--Washington Office.

Mr. WYDEN. Mr. President, no one is saying the FBI should not be
allowed to conduct voluntary interviews. A voluntary interview is
certainly a legitimate and often nonintrusive investigative technique.
But the FBI agents must not be out there in effect demanding the
records of our citizens without following proper legal procedures.
Since the FBI has been so reluctant to discuss the activities relating
to these discreet inquiries of libraries, the PATRIOT Act should
require the Bureau to report on this topic. At a minimum, they should
be required to tell the Congress how this information is being used so
the Congress can determine whether the FBI's use of this provision is
appropriate.
In several other areas of the PATRIOT Act there should be
modifications. A major problem area, for example, is section 505 that
deals with national security letters. National security letters are
another way for FBI agents to obtain records. Unlike FISA warrants,
national security letters do not require the approval of a judge. The
FBI has said the national security letters can be appealed, but the
current PATRIOT Act does not specifically discuss this. It is often
difficult for recipients to learn more about the requests in their
letters and their right to refuse since they are usually barred from
discussing the letter with anyone, including a lawyer.
In the recent case of Doe v. Ashcroft, the Federal judge found that
the FBI had abused this authority by using a national security letter
to demand records from an Internet service provider without telling the
provider that the letter could be challenged or even that it could be
discussed with a lawyer. Congress should reform the national security
letter statute to make it clear that national security letters can be
challenged, that they can be discussed with a lawyer, and that anyone
who receives one has the right to be informed as to their rights.
Congress certainly ought to consider adding sunset to this provision.
Section 206 authorizes the FBI to use roving wiretaps in national
security investigations. The roving wiretap authority allows the FBI to
tap not just a particular phone but any phone the person being targeted
might use. Unlike criminal investigations, there is not even a
requirement for the FBI to make sure that the person being investigated
is using a line. If a suspected terrorist worked in a warehouse, roving
wiretap authority could be used to tap a pay phone in that warehouse,
and every person who used that phone could have their conversations
secretly recorded. This provision, in my view, again, should be
modified, and the sunset should definitely be renewed so the Congress
has more time to investigate how it has been used.
Finally, some of the tricky wording in several places of the PATRIOT
Act needs to be clarified. A provision that looks like a safeguard for
civil liberties may expose Americans to unfair scrutiny when they
exercise their rights. In several places, the PATRIOT Act prevents the
use of various investigative techniques when the investigation is based
solely on the first amendment activities of U.S. persons. Our
colleague, Senator Levin, has pointed out that simply saying ``solely''
without clarification can create problems and seems to indicate that it
is acceptable to investigate Americans largely or even primarily on the
basis of their first amendment activities. I am not convinced this
safeguard is actually a safeguard. I hope it will be clarified and
strengthened throughout the consideration of the PATRIOT Act.
The Intelligence Committee may finish drafting a reauthorization of
the PATRIOT Act in the near future. My sense is the Judiciary Committee
will move shortly afterward. It is possible other committees may wish
to weigh in on these portions of the PATRIOT Act that fall under their
jurisdiction. As we go forward in this debate, as the Congress proceeds
to try to walk on that high wire, striking a balance between fighting
terrorists ferociously while protecting our civil liberties, I simply
say to the Senate this afternoon that the Senate can do better. It is
possible, for example, to give the FBI additional emergency power,
power that should address the concerns they have raised in the open
hearings, without removing the independent checks so necessary in
circumstances that are not emergencies.
The bottom line is, let's make sure law enforcement has the tools
that are necessary to fight terrorism, to protect the people of our
country, but not hang up a sign on this PATRIOT Act reauthorization
that says: You hereby have a right to go on any fishing expedition you
desire.
The Senate can do better. The job of creating a more balanced
protector of security and civil liberties still has work ahead of us. I
look forward to working with our colleagues on a bipartisan basis to
achieve those ends.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, as I understand, the Democrats have until
4 p.m. to speak as in morning business.
The PRESIDING OFFICER. The Senator is correct. The time is to speak
on the nomination.
Mrs. BOXER. Excellent. Mr. President, I am going to speak about the
nomination of Janice Rogers Brown. Before I go into the reason I hope
the Senate will reject this nomination--and the ``reasons'' because
there are many--I wish to put into context for my colleagues, and for
anyone watching this debate, why the Senate has spent so much time
looking at the rules surrounding the nomination and confirmation of
Federal judges.
It is very clear when you vote to confirm a Federal judge that it is
a very important vote. Why is that? It is because these judges really
vote on so many issues of importance to us, whether it is our right to
vote, our right to a safe workplace, our right to privacy, our consumer
rights--it goes on and on--our victims' rights. The fact is, these
issues are crucial, and who winds up on the bench on Federal courts is
very important to the American people.
This is not an abstract debate about Senate rules and procedures; it
is really about who sits on the courts, and why is it that for 200-plus
years the minority party has had the right to filibuster or delay the
vote on nominees who they believe are outside the mainstream--whether
that means they are to the far right of the mainstream, as in this
particular case, or to the far left of the mainstream.
Presidents who have tried to pack the courts in the past, have tried
to twist the arms of the court, have been rebuffed, from Thomas
Jefferson, once, to Franklin Delano Roosevelt, another time, when FDR
had 74 Democrats in this Chamber. He could do anything he wanted, if
they agreed. He had won his election by 60 percent of the votes. He
decided he did not like what the courts were doing, so he said: Well, I
want to double the size of the courts. He had the votes. But the
Democrats in the Senate said: Mr. President, we like you. We love you.
We think you are a great President. But we will not allow you to pack
the courts because the bottom line is that our Founders did not want a
ruler, they wanted someone to govern. They did not want a ruler, they
wanted someone to govern. Therefore, they believed very strongly in
checks and balances and the rights of the minority so that we do not
have a court system that has on it people who would be so far out of
the mainstream as to disrupt the very fabric of our country.
Now, this President did his own move to pack the courts. Let's face
it, that is

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what happened. He had the agreement and acquiescence of almost a
majority of the Senate, until a few brave Republicans came over to our
side and said: Look, let's step back from this precipice. Let's not do
away with the filibuster. These are lifetime appointments. These judges
get good pay, and they are never up for election. This is the only
check and balance we have, when their names are brought before us.
So I was so appreciative of my colleagues on the other side for
standing up and saying: We are not going to change the rules of the
game in the middle of the game because some President wants to pack the
courts with people who are so far out of the mainstream that it could
set our country back for generations. That is what really happened.
Now, in order to get that deal they came up with, they said to our
side: You are going to have to give. You are going to have to give on
three judges whom you have stopped. This 10 on the chart represents the
number of judges Democrats have stopped. They said: In order to get
this deal, you have to give up on three. One of those three judges is
Janice Rogers Brown, a nominee way out of the mainstream, to the
extreme, which I will explain.
But we have to remember this deal only involves the vote to end the
filibuster. We said: OK, enough of our colleagues will join with you to
end the filibuster. But the deal did not say: Therefore, she would get
automatically voted in. We still have the up-or-down vote on Janice
Rogers Brown. A lot of us believe very strongly that 51 of us should
oppose this nomination. I think we might well get those 51 noes, or
close to it, but, obviously, we are pushing for 51.
Now, again, I want to focus your attention on these numbers: 208 to
10. It is actually 209 to 10 with the Priscilla Owen judgeship
approved. We have stopped 10. We have approved 209. And this President
and the Republicans here have been crying every morning that they do
not get 100 percent of what they want. They have gotten 95 percent of
what they want. It is not good enough. When you want all the power, it
is not good enough.
When I go home and look in the eyes of my constituency, I ask: If you
got 95 percent in your course, would you be happy? Oh, yes. If you got
95 percent of what you wanted from your spouse, would you be happy? Oh,
ecstatic. If you wrote a list down of everything you wanted in your
life--where you wanted to go for a vacation, where you wanted to be
educated, the kind of car you wanted--and at the end of the day you got
95 percent of what you wanted, you would be thrilled, except if you
believe you deserve 100 percent, by God, and nothing less will do. That
is what we are facing with this Republican power grab. That is what we
are facing.
Remember those numbers: 209 to 10. When you are out somewhere and
somebody says: Well, aren't the Democrats blocking all these judges?
No, no, no. Ten; and we approved 209.
Now, I am going to show you in just a moment the list of the groups
that oppose Janice Rogers Brown to be put on the DC Circuit Court of
Appeals. Now, when you see these groups, you will be shocked because I
think everybody knows by now that Janice Rogers Brown is the daughter
of a sharecropper. We have heard that over and over again, and that is
remarkable. We have a lot of remarkable stories in America.
My own mother never even went to high school. I am in the Senate. She
had to drop out to support her family. There are lots of stories like
that. But I do not expect people to automatically support me because in
my family I went to the Senate and my mother never graduated from high
school. It is interesting and it is important, and it certainly says a
lot about our country and the opportunity our country affords people
such as Janice Rogers Brown and Barbara Boxer, and particularly people
of color, women of color who have even a harder time.

It is a miraculous country we live in. That is why I oppose her
nomination, because she would set it back. It is not her life that I
attack when I say I am not for Janice Rogers Brown; it is what she will
do to your life. If you look at her record, you will see why the things
she will do to your life are things you would not want.
So I want you to listen to the groups that are opposed to Janice
Rogers Brown:
ADA Watch/National Coalition for Disability Rights; Advocates for the
West; AFL-CIO; Alliance for Justice; Alliance for Retired Americans;
American Association of University Women. I want you to think about why
these groups are opposed to her. Every one of them is opposed to her
because they have read her list of cases and they understand that she
will hurt them. Retired Americans, when you hear about what she thinks
about seniors, you will understand that.
American Federation of State, County, and Municipal Employees;
American Lands Alliance; American Planning Association; American
Rivers; Americans for Democratic Action; Americans United for
Separation of Church and State; Amigos Bravos; Bazelon Center for
Mental Health Law; Center for Biological Diversity; Center for Medicare
Advocacy; Citizens Coal Council; Clean Water Council; Clean Water
Action; Clean Water Action Council; Black Women Lawyers of Los Angeles;
California Abortion and Reproductive Rights Action League; California
Association of Black Lawyers; Californians for Fair and Independent
Judges; California Federation of Labor, AFL-CIO; California League of
Conservation Voters; California National Organization for Women.
Do we have more here?
California Native Plant Society; California Women's Law Center;
Californians for Alternatives to Toxics; Chinese for Affirmative
Action; Environmental Defense Center; Environmental Law Foundation;
Equality California; John Muir Project; Coalition of Labor Union Women;
Coast Alliance; Committee for Judicial Independence; Community Rights
Counsel; Congressional Black Caucus; Defenders of Wildlife; Delta Sigma
Theta Sorority; Disability Rights Education and Defense Fund;
Earthjustice; Earth WINS; Endangered Species Coalition; Equal Justice
Society; Families USA; Feminist Majority; Friends of the Earth; Georgia
Center for Law in the Public Interest; Gray Panthers; Great Rivers
Environmental Law Center; Leadership Conference on Civil Rights; Legal
Momentum, formerly the NOW Legal Defense and Education Fund; Northwest
Environmental Advocates; NOW Legal Defense and Education Fund; Oil
Field Waste Policy Institute; People for the American Way; Planned
Parenthood Federation of America; Progressive Jewish Alliance;
Religious Coalition for Reproductive Choice; Service Employees
International Union; the Sierra Club; Southern Appalachian Biodiversity
Project; the Foundation for Global Sustainability.
And I have some more to share with you. It is very rare to see such
an outpouring of opposition to a court nominee.
Planned Parenthood Golden Gate; Planned Parenthood of Los Angeles;
San Bruno Mountain Watch; San Francisco La Raza Lawyers; SEIU Local 99;
Stonewall Democratic Club of Los Angeles; Unitarian Universalist
Project Freedom of Religion; Western Law Center for Disability Rights;
Women Lawyers Association of Los Angeles; Women's Reproductive Rights
Assistance Project; Lawyers Committee for Civil Rights of the Bay Area,
NARAL Pro-Choice California; National Association of Women Business
Owners, San Francisco Chapter; National Council of Jewish Women,
California; National Council of Jewish Women, Los Angeles; National
Women's Political Caucus of California, which is a bipartisan
organization; Pacific Institute for Women's Health; Mexican American
Legal Defense and Educational Fund; Mineral Policy Center; NAACP Legal
Defense and Educational Fund; NARAL Pro-Choice America; National
Abortion Federation; National Asian Pacific American Legal Consortium;
National Association for the Advancement of Colored People, the NAACP;
National Bar Association.
And there are more. This is remarkable. I needed this time to go
through this extraordinary list, representing millions and millions of
Americans who are saying no to Janice Rogers Brown.
National Council of Jewish Women; National Council of Women's
Organizations; National Employment Lawyers Association; National
Committee to Preserve Social Security and Medicare--folks, when you
hear what she

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says about Social Security, you will understand it, and senior
citizens--National Fair Housing Alliance; National Family Planning and
Reproductive Health Association; National Health Law Program; National
Organization for Women; National Partnership for Women and Families;
National Senior Citizens Law Center; National Urban League; National
Women's Law Center; Natural Heritage Institute; Natural Resources
Defense Council; New Mexico Environmental Law Center; the Wilderness
Society; Union for Reform Judaism; Unitarian Universalist Association;
USAction; Valley Watch, Inc.; Washington Environmental Council; Western
Land Exchange Project.
So that is a long list. That is a long list. There is a reason why
these organizations--many of which are nonprofit, many of which are
bipartisan, many of which represent women, represent minorities,
represent families, represent seniors, represent the environment,
represent fairness in the judicial system--there are many reasons why
they oppose Janice Rogers Brown.
I hope if this debate on Janice Rogers Brown does nothing else, it
sends a message to the American people that when the Democrats stood up
and said no to 10 people--and, by the way, said yes to 209--said no to
10 people--actually, now it is 9 people--they are people like
this. They are people like Janice Rogers Brown who are opposed by
mainstream America.

At the end, I will read the editorials that are coming out across the
country against Janice Rogers Brown. Packing the courts with people
like this will set our country back, and these organizations that have
worked for so many years for fairness, for justice, for equality, for
fairness in the workplace, for equal pay for equal work, for good
treatment in the workplace, to protect the air and water, know what
they are talking about.
Let's see some of the things that she has said in her lifetime on the
bench. She said:

Where government moves in, community retreats, civil
society disintegrates, and our ability to control our own
destiny atrophies. The result is: Families under siege--

This is Janice Rogers Brown. This is what she thinks of America. This
is what she thinks of the greatest country in the world--

families under siege; war in the streets; unapologetic
expropriation of property--

As someone who owns property, no one has ever tried to take it away
from me. I don't know what her problem is--

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

She must hang out with some pretty tough people.

The result is a debased, debauched culture which finds
moral depravity entertaining and virtue contemptible.

This is Janice Rogers Brown's view of life in America. I didn't know,
when we passed the seatbelt law or legislation to help the victims of
domestic violence, that our society disintegrated. But she thinks so.
She calls Supreme Court decisions upholding New Deal protections such
as the minimum wage and the 40-hour workweek ``the triumph of our own
socialist revolution.'' I didn't know it was socialism to say that
people ought to work 40 hours, basically.
She accuses senior citizens of ``blithely cannibilizing their
grandchildren because they have a `right' to get as much free stuff as
the political system permits them to have.''
So she looks at grandparents like me as cannibalizing our
grandchildren. I ask every grandmother and grandfather in America to
oppose this woman getting on the bench. How can someone look at
grandparents as cannibals because they may think it is important to get
the Social Security and Medicare for which they paid into the system?
It is outrageous.
She declares:

Big government is . . . [t]he drug of choice--

Here she goes after everybody--

for multinational corporations, single moms, regulated
industries, rugged Midwestern farmers, and militant senior
citizens.

Every time I read that I think of the senior citizens I know getting
dressed up in a military uniform and taking over the country. OK
everybody, it is 12 o'clock, let's play bingo now.
She declares:

Big government is . . . [t]he drug of choice for militant
senior citizens, for single moms, for rugged Midwestern
farmers.

She takes them on, too. What is she thinking? I don't know any
farmers who believe big government is what they want in their lives.
She is bad on first amendment rights of individuals. She argued that
e-mail messages sent by a former employee to coworkers criticizing a
company's employment practices were not protected by the first
amendment. This was a young man who sent out a few e-mails during a
very long time period, and she said he had no right to free speech. He
couldn't do it. But the corporation could do it all day long.
This is showing you some of her decisions and her statements. She
said a manager could use racial slurs against his Latino employees. Can
you imagine that? Using racial slurs in the workplace? That was fine
with Janice Rogers Brown.

She is way outside the mainstream. She argued that a city's rent
control ordinance was unconstitutional as a result of the revolution of
1937. Believe me, most of the people who passed that ordinance weren't
alive in 1937, so that is her other attack on the New Deal. She is way
back. She has this thing about the New Deal, as if the New Deal is what
we are talking about today. Everyone agrees that what has survived of
the New Deal is very important wage and hour laws and protections and
Social Security. She is after it all.
She argued that a law that provided housing assistance to displaced
elderly, disabled, and low-income people was unconstitutional. This is
very interesting because having been in local government myself, one of
the things that we try to do is help get housing for people who are so
vulnerable. This is a law in San Francisco for the elderly, disabled,
and low-income people. Who could you find who was more compelling to
help than, say, an elderly woman, whom she calls a militant senior
citizen, who can barely stand up or look up from her walker?
She said San Francisco was ``turning into a kleptocracy'' and that
``private property is now entirely extinct in San Francisco.''
This woman absolutely lives in a dream world to say something like
this. If you try to buy a home in San Francisco, you can buy it, if you
have $1 million. So I don't know what she is talking about. She makes
things up that fit her ideology. Imagine saying that providing housing
assistance to displaced elderly, disabled, and low-income people has no
chance of succeeding because it is unconstitutional. Her views stand
alone as being so out of the mainstream.
Speaking of standing alone, I wanted to tell you about Janice Rogers
Brown. She sits on the California Supreme Court where she has been
since 1996. She is on a court that has six Republicans and one
Democrat. She is a Republican. Follow this: She sits on a court that is
made up of six Republicans and one Democrat. You would think she would
be happy as a clam. No, she is not because those other Republicans, not
to mention the one Democrat, don't see life through her eyes. She is so
outside of the mainstream that she stood alone on court decisions 31
times. I am going to tell you of some of these cases where she stood
alone.
She was the only member of the court to vote to overturn the
conviction of the rapist of a 17-year-old girl because she believed the
victim gave mixed messages to the rapist. She was the only one on the
court who stood on the side of the rapist. This is who George Bush
wants to put on the bench so she can stand against your daughter? I
don't think we should do that. We should stand up and be counted on
this vote. We should not be standing with someone who supports a
rapist. It is as simple as it gets.
She was the only member of the court to find that a 40-year-old woman
who was fired from her hospital job could not continue with her
lawsuit. I want you to think for a moment of a 60-year-old woman with a
great employment record--and I have to tell you, maybe it is my age,
but you are still going pretty strong at 60--and she was fired based on
age discrimination. This is Janice Rogers Brown:

Discrimination based on age does not mark its victims with
a stigma of inferiority and second-class citizenship.

Really? The woman was fully employed, did a great job, was doing her

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work, was getting rewarded with a salary, and the next day she wakes
up, and for no reason, she is fired. And Janice Rogers Brown says: That
is not a stigma. That is no reason to feel bad. That is not a reason to
feel like a second-class citizen.
I beg your pardon. Six others on that court--five Republicans and one
Democrat--thought Janice Rogers Brown was off the wall. Her position
saying that age discrimination is not a stigma and, in fact, was
really not discrimination at all is contrary to State and Federal law.
So George Bush wants to elevate a woman who says essentially there is
no such thing as age discrimination. Let's face it, that is the bottom
line.

Someone can ask: Well, Senator, where did she say that? That is the
result of her ruling. She stood alone 31 times, and now George Bush
wants to elevate her.
There were other times that she stood alone. This is how far out of
the mainstream she is. She was the only member of the court to oppose
an effort to stop the sale of cigarettes to children. I say to every
parent in America who may be listening to the debate, you don't want
your 10-year-old or 9-year-old or 11-year-old or 12-year-old to walk
into a supermarket to start smoking, which we know is devastating,
which we know is addictive, which we do everything we can to stop our
kids from doing. If you want your kid protected, then you tell George
Bush Janice Rogers Brown doesn't deserve to be elevated for that kind
of decision.
This isn't the 1950s. I remember the 1950s where they used to say
cigarettes are great for you. They are relaxing. They are wonderful. We
gave them out free to people to tell them: Calm yourselves. This is
terrific. You will live a long time.
The leading cause of cancer death among women is not breast cancer,
it is lung cancer. In the meantime, she is saying: No, you can't stop
the sale of cigarettes to children in this particular case, which was
the case that came before her.
She was the only member of the court--remember, five Republicans and
one Democrat--who voted to strike down a State antidiscrimination law
that provided a contraceptive drug benefit to women. In the old days in
this country getting a contraceptive was illegal. It was the Supreme
Court eventually--and there is actually a 40th anniversary of this
tomorrow, the Griswold case. Until the Griswold case, it was illegal to
use contraception in this country. The bottom line is, this case of the
Supreme Court turned it around and said you can't stop something. So
here you have a situation where the State is saying you can't
discriminate against women. You need to allow them to be covered with
this prescription drug contraception. Janice Rogers Brown says: Wait a
minute. I am standing alone.
She was the only member of the court who said women can be
discriminated against and their contraception does not have to be
protected.
Talk about going back. We are going back with this woman. She stood
alone.

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.

Where has this woman been? Does she think about things like Enron?
The scams that went on in California and on the west coast? Maybe she
should go see that movie, ``The Smartest Guy in the Room,'' I think is
the name of it. It is a story about Enron and their manipulation of the
market. Here you had a situation where a county was being run into
bankruptcy because of the utility bills they were getting from a
private utility. Every single justice on that court in California said
absolutely the county has a right to sue that utility company. They ran
up the price of natural gas. They hurt consumers. They hurt the county.
But not Janice Rogers Brown. She stood with the utility company.
Are you getting the picture here of someone who deserves a promotion?
I hope not because I don't think she does. I hope that what I am doing
today is making the record clear that when we stood up against these 10
judges--although in essence now 9--she was one of them for a reason. It
is not happy for me to have to go against someone from my own State. It
is not enjoyable for me to have to go against somebody who is a woman
whose life story is remarkable. It is not easy for me to have to take a
stand against a minority woman, and it is not easy for every civil
rights organization in this country to do the same. But we need to know
what we are doing.
This President has to get a message. This could have been avoided if
he had sent his people to see the Senators, which is the way it used to
be done. Do you think it is OK to give this woman a promotion? No.
Let's talk. Can we talk? Can I show you this research? Can I show you
how many times she stood alone, how she is bad for families, how she is
horrific for senior citizens, how she has ruled against consumers, how
she stood with the rapist? Can I show you? We never got the chance.
This President doesn't believe in advice and consent. He does not
believe in it. He looks at it as an annoyance. He should read the
Constitution. Senators are supposed to be giving advice and consent--
advice at the front end, consent when we have the vote. But, no, they
want 100 percent. They want to pack the courts. They want to pack the
courts with people who will hurt average Americans and stand up for the
special interests and the far rightwing of this country.
That is not what this President said he was going to do. I remember
the day when he declared victory in 1992 and the Supreme Court gave him
his seat. He came out in a most humble way, he said: I will govern from
the center.
I believed him at that point; I honestly did. And then you have a
nomination like this, and you just wonder were those empty words? I
have to say they were because you have to judge people not by their
words, but by their deeds. You have to judge this judge by her
decisions. She was standing alone 36 times in a court of 6 Republicans
and 1 Democrat. We have some more.

The only member of the court to find that a State fair
housing commission could not award certain damages to housing
discrimination victims.

Imagine that. This is a minority woman, and she doesn't understand in
her heart how it must feel to be discriminated against when you are
looking for housing simply because of the color of your skin or perhaps
your religion. It is stunning. It is absolutely stunning to me. The
only one to stand alone on this court.
So I am going to close with--wait, there is more. We have a few more
of these ``only times to stand alone.''

The only member of the court to find that a jury should not
hear expert testimony in domestic violence cases about
battered women's syndrome.

You all know what battered women's syndrome is. It is a situation
where a woman has been beaten and beaten and abused and abused--
sometimes to a pulp. And it impacts her actions toward her abuser. She
was the only member of the court to find that a jury should not hear
expert testimony dealing with Battered Women's Syndrome.
Well, to me, that says she stands with the batterer against the
woman, against the victim. I have colleagues here who want, and
support, an amendment to the Constitution to give rights to victims.
Yet, they are going to vote for this woman who stood with a rapist and
who stood on the side of batterers. It doesn't make sense.
This woman does not deserve to be promoted for standing against the
victims of violence and with the perpetrators of violence, and she
stood alone.

The only member of the court who dissented from a decision
that a standard worker's compensation claim did not bar her
civil claim for sexual harassment.

That makes absolutely no sense. You go to work and you sign
documents. One of them is a workers' comp release form. They are forms.
Then this person finds out there is sexual harassment in the workplace,
and she brings a lawsuit to stop it, and Janice Rogers Brown says:
Well, the day you came to work and filled out all your forms, you said
you would not file a workers' comp claim.
Workers' comp is not a civil remedy for sexual harassment, in my
opinion. Workers' comp is getting hurt on the job; it is not sexual
harassment. She stood alone. I am sure her colleagues on the court were
stunned, but that is Janice Rogers Brown. She stands alone against
victims and with the perpetrators of violence and harassment.

[[Page S6086]]

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.

This is amazing. She thought: Oh, no, wear a 50,000-volt stun belt.
And every other judge on the court said: No, no, no, this is America.
We don't do that here. But not Janice Rogers Brown because she is so
out of the mainstream.

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 had
occurred.

So here you have a disabled victim. She had multiple sclerosis. So I
say to those who have a disability or to those who have compassion in
their heart, you have a string of examples of how you were
discriminated against. Janice Rogers Brown said: Oh, no, that is not
admissible. We don't want to know about it. She stood alone. She is bad
for workers, for victims, and the disabled. That, I think, completes
our work on when she stood alone. I am going to close, in the few
minutes I have remaining, with some editorials to show the broad range
of comments about Janice Rogers Brown. I am going to lead off with
George Will, a very conservative columnist, as I think most of my
colleagues know. He talks about the deal that was cut on the
filibuster, and he says:

Janice Rogers Brown is out of that mainstream.

It is a fact, he is calling her out of the mainstream. This is George
Will, and there is not much room on his right. So that is interesting.
The MercuryNews:

As an appellate judge who would hear the bulk of challenges
of Federal laws coming out of Washington, her appointment
would be disastrous.

I want you to know, the MercuryNews is in Silicon Valley. The
MercuryNews is very balanced. The MercuryNews is very moderate. They
say her appointment would be disastrous.

She'd be likely to strike down critical environmental,
labor laws, and antidiscrimination protections. Brown,
though, has infused her legal opinions with her ideology,
ignoring higher court rulings that should temper her
judgment.

That is a scathing editorial of this nominee.

The issue isn't Brown's qualifications--

The Sacramento Bee says--

it's her judicial philosophy.

This is the Sacramento Bee. This is California speaking to the rest
of the country. We should be prideful, but we are not. We are upset
about this appointment. The issue is not her qualifications, it is her
philosophy.

The minority in the Senate certainly is justified in
filibustering a lifetime appointment of Brown. The Court of
Appeals for the District of Columbia Circuit is the last
place we need a judge who would impose 19th century economic
theory on the Constitution and 21st century problems.

How far back are we going to go?
I have to say to my colleagues who may be watching this or may be
coming back to the Hill today, we have an opportunity here to stand up
for the people of the United States of America. We have an opportunity
to say no to someone--not that they do not have a wonderful life story,
but in spite of that life story because this appointment is not about
her life, it is about our life, it is about your life, it is about the
lives of your children, your grandchildren, your grandmother, your
grandfather.
This is an appointment that is out of the mainstream, so stated by
George Will. This is a woman who stood alone 31 times. You will hear my
colleagues on the other side say: Don't listen to Senator Boxer, her
explanation of these cases is inaccurate. But I have to tell you, it is
accurate. When you have a woman who is a Republican who stood alone
against five other Republican mainstream judges 31 times, who dissented
more than a third of the time in a courtroom such as this, you know you
are looking at someone who does not deserve a promotion.
I am going to keep talking about this nomination. We are going to
have a press conference with all of these groups that we can manage to
muster, and we are going to be very strong to our colleagues in saying,
yes, we are not filibustering Janice Rogers Brown--we gave that up as
part of the deal we made so that we would not see filibusters
outlawed--but we are going to fight to see that she does not get the 51
required votes.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I ask the question: How did a wonderful
person and a wonderful nominee, such as Judge Janice Rogers Brown,
become so controversial? What is it that is going on here?
She served 8 years on the California Supreme Court. She has served on
the Third Appellate District Court of Appeals of California. Every
member of that court of appeals with whom she has served has written in
support of her nomination. She was reelected to the California Supreme
Court with 76 percent of the vote. I think there were four other judges
on the ballot. She had the highest vote of any of those judges.
California is certainly not a right-wing State.
She grew up in my home State of Alabama, not too far away from my
hometown in a small town area of Greenville, AL. She is the daughter of
a sharecropper. A sharecropper is a person who does not own land but
farms a part of somebody else's property. He pays the landowner with
some of the produce and keeps a little of the produce for himself and
his family. That is how she grew up. Somehow, as a teenager, she moved
off to California, worked her way through college and then law school.
She then worked for the attorney general's office of the State of
California in which she represented the State on appeals of criminal
cases. She wrote the briefs, she argued the legal questions, she
participated in the trials of criminal cases, but I think most of her
time was spent writing the appellate briefs to the court of appeals.
By the way, of course, supreme court justices, like appellate judges,
do not try cases, like the big cases we see in the newspapers. They
simply review the trial record of cases that have been tried.
They determine whether a fair trial occurred and whether the judgment
should be affirmed or reversed and a new trial held, that sort of
thing. That is what she has been doing on the California Supreme Court.
That is exactly what she would do if she were appointed to the court of
appeals in the DC Circuit.
Her judicial philosophy is absolutely mainstream. She agrees with the
President of the United States, President George W. Bush. She is in
harmony with his view of the role of courts and the rule of law in
America. Make no mistake, this is a big question. He campaigned on that
issue around the country. President Bush talked about the courts and
about the role of courts in America. He talked about what we should do
to strengthen the rule of law in this country, how important it was to
him, and he promised to appoint judges who would show restraint and not
utilize their opportunity on an appellate bench to redefine the meaning
of words, to have it say what they want it to say so they can impose
their political views through a court ruling.
He said, I do not believe in that kind of jurisprudence. In fact, it
has not been the heritage of our country for 200 years, but in recent
years it has become the vogue in law schools and in certain areas of
the country, California being one of them, frankly, to have an activist
judiciary.
Judges are praised for being bold and stepping out. We had one judge
under President Clinton who was confirmed to the court of appeals from
California. He had been in the court system and he said, well, it is
the duty of a judge to act when the legislature would not act. That is
what the definition of activism is, a judge who believes he has a duty
to do something if he thinks the politically accountable bodies in our
country do not; that it is perfectly all right for a judge to act if
the legislature does not act.
I will tell America, and this is important, when a legislature does
not act, it made a decision not to act, and those legislators are
responsible to the people. If they are irresponsibly failing to deal
with a problem, they will be removed from office eventually.
A Federal judge is given a lifetime appointment. They are not
accountable to the public. We cannot cut their salary. So what we need
is judges who understand the role of the judiciary in

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the American system. We need judges who show restraint and who
understand that America is built on a political system and a
constitution that should be faithfully followed and the political
decisions ought to be made by those people in rooms such as this, in
the State legislatures and in the Congress. We are accountable to the
people who elect us.
Make no mistake about it, empowering judges to carry out political
agendas is an anti-democratic act. It undermines the power of the
people of our country. Many of the complaints made against Janice
Rogers Brown are because she adopted and does believe in the view of a
judiciary that the American people value, that President Bush values
and that was affirmed in this past election when he won. That is what
she believes.
Now, the Court of Appeals in the Ninth Circuit Federal court in
California a few years ago was reversed by the U.S. Supreme Court 27
out of 28 times. They reviewed 28 cases from that court and reversed it
27 times. The New York Times said a majority of the members of the U.S.
Supreme Court considered the California court to be a rogue circuit.
So this is not an itty-bitty matter. People have been saying, oh,
this is politics, this is Democrats and Republicans fussing and it is a
little political discussion which does not amount to much, and what
does it have to do with us.
Well, the truth is, the issue is simple, but it is far more important
than party politics. I am sure some in this body vote for political
reasons and have not given a lot of thought to the judiciary and what
is important, but we are dealing with the role of the judiciary in
America.

As a Senate, when we deal with confirmations, it is all right to ask
somebody about their political views or to look at their political
views, but we do not vote for and against nominees based on that. I
voted for 95 percent of President Clinton's nominees. I did not agree
with their political views on many things. I felt most of them who came
through, certainly the ones I voted for, were committed enough to the
rule of law that I could vote for them. Some I had doubts about, but I
gave the President the benefit of the doubt and voted for them. A few I
opposed.
What was the deal? It is not their politics that counts. It is their
judicial philosophy. That is what counts. What is their view of the
role of a judge? What is their understanding of what law means in this
country?
There are people who are teaching postmodernism in our law schools
today. Some of them have been called advocates of the critical legal
studies idea. And what do they say? Nothing is really true; one cannot
look at a statute and interpret it. One can look at that statute and
they can make it say whatever they want it to say and justify that.
It is a dangerous philosophy. People have fought for our country,
died for our country, and in large part they died to preserve the rule
of law. Maybe they did not even believe in the war, but they were
called to go and they went and served their country because they were
legally called to serve. They did their duty. It has been the
cornerstone of this country's strength since its founding.
As I travel the world, as I have the opportunity to do as a Senator
on occasion, I am more and more convinced that our legal system, our
respect for law, is what makes this country great. If someone signs a
contract, they can expect it to be enforced. If they do not pay their
house note, someone will come and take the house. But because of that,
a person can borrow $200,000, a middle-class working American, and pay
it back at 6 percent interest over 30 years. Now, tell me where that
happens in another place in the world?
It is part of the legal system that is so important, and we have a
dangerous trend in this country. We have members of the U.S. Supreme
Court quoting the European Union as if that would affect how they
interpret a statute passed by a State legislature or the Congress or
the Constitution ratified in 1789. What possible value could that have?
This is a dangerous trend.
Judges are getting to the point where they feel they have to solve
difficult questions; that the legislatures cannot get them figured out
quick enough to satisfy them so they want to solve them. It is not
good. It erodes public respect for the courts because more and more
they realize they are not deciding these cases on what the law says or
what the Constitution says but what they think.
Who cares what they think? We do not pay judges to think. We pay
judges to rule on the law.
It is a big deal and this is what it is all about. Do not make any
mistake. The left understands it. They understand this absolutely, and
the courts have been the one branch of Government they have been
utilizing to advance agendas the American people are not supportive
of--in fact, oppose. But if someone can get a judge to say the
Constitution says a marriage can be a union among whatever, then that
is it. What does one do then? What does it take to have a
constitutional amendment? It takes a two-thirds vote of both Houses of
Congress and three-fourths of the State legislatures. So judges have
great power. If they abuse it, it is a big deal. I think that is why we
are seeing the attack on a number of our nominees that I think is not
fair. It goes beyond what is right. In fact, they have sort of become
pawns in this battle over the nature of our judiciary.

I have watched these groups closely over the years, and I have to
tell you some of these leftwing groups that create these attack ads and
attack pieces on these nominees ought to be ashamed of themselves. It
is not legitimate or fair what they do. They dig into their records,
every statement they have ever made, their personal history, the cases
they have had, the speeches they have made, and they try to find
anything they can. They will take one sentence. Maybe there are two
paragraphs of qualifying explanation and they will take one sentence
out of context and say that represents a certain thing and therefore
this nominee should be voted down.
But we are Members of the Senate. We are the ones who took an oath to
do our duty to enforce the Constitution, to fairly judge nominees the
President sends up here. That is our responsibility. We cannot pass
that off to some group, some polling data, some newspaper editorial. So
they take a bit here, a bit there, a statement, a word, a case, a
circumstance--they take it out of context and distort it, many times
dishonestly; dishonestly, many times deliberately doing so, to try to
create a caricature of this nominee.
Then they ask the people of the Senate to vote against them. Vote
against them. But we should not do that. That is not what the Senate
should be about.
Janice Rogers Brown sees things different from some people;
particularly, I guess, in California. She has a more classical
understanding. She made a speech one time in which she questioned the
validity of the welfare state and whether it helps people. So they say
she is against all poor people and welfare. She questioned overreaching
regulations. They say she is against all regulations. She is a
throwback. She doesn't believe in any government regulation. Whereas
she has ruled on hundreds of cases affirming government regulations,
for Heaven's sake.
But some regulations do overreach. Is there any doubt about that? One
of them dealt with rental property in California. The owner had long-
term leases and decided to convert them to short-term hotel work. He
wanted to convert the building to a full-fledged hotel. Do you know
what they told him in California? Well, we know this is your property,
Mr. Owner, but, you know, we want to help poor people and we want you
to pay money to create low-income housing before you can do that.
Before you can do that you have to pay this money or create some other
housing. What kind of thing is this in America?
They say she doesn't believe in government regulations. That doesn't
sound like a decent regulation to me. So she opposed that, citing
Supreme Court precedent. I am going to tell you, the Constitution of
the United States provides someone's property cannot be taken from them
without just compensation having first been paid. That is what the law
is and what it ought to be. Private property is protected in our
Constitution as much as free speech. The left talks about free speech,
but we will talk about a case or two that they have accused Justice

[[Page S6088]]

Brown of acting improperly on and all she was doing was affirming
clearly and unequivocally the right of free speech in America. But the
left doesn't really believe in free speech. They have an agenda they
want to promote. It is big government in domination of our lives in any
number of different ways.
I think this lady is a superb justice. She writes beautifully. She
cares about America. She grew up in a land of segregation. They have
accused her of not favoring civil rights. She has been discriminated
against herself. She is an African American who was raised in
segregated Alabama and went off to California and had a tremendous
success story. The judges who write about her or lawyers who write
about her say she is brilliant, intellectually honest, always thinking
to do the right thing. She speaks with clarity and integrity. She is
highly qualified. She doesn't agree with the leftwing agenda
politically and she said so, but that doesn't impact her legal
decisions. That is what is important: How do you rule in cases?

A judicial philosophy that shows restraint, let me say, is far less
dangerous than a judicial philosophy that justifies expanding power. I
think this nominee, with her experience as a prosecutor and
understanding criminal law will do an excellent job on the federal
bench.
Some critics complain about her sole dissents. She was a sole
dissenter in a death penalty case, saying that the lawyer was
inadequate. No other person complained about her dissents, presumably
because she was some rightwing person, but she believed this defendant
had not been properly defended by his lawyer, so she was the sole
dissenter in that case.
She dissented in another case, a criminal case, in which a person was
stopped because he was riding his bicycle the wrong way on a street,
and she believed it was a racial profile stop. They didn't have a basis
to stop that person to begin the search that resulted in the discovery
of illegal drugs. That was a dissent, also. So what are these dissents
about? You don't dissent in America? Judges dissent all the time. Every
time you have a 5-to-4 decision of the U.S. Supreme Court you have four
dissenters. There are many 8-to-1 decisions and one judge dissents.
That is nothing unusual.
Some of these dissents she participated in were joined in by liberal
members of the California Supreme Court. Also, I think it is important
for us to note that in 2002 she was called on to write the majority
opinion for the California Supreme Court more often than any other
member of that court. So how is she such an out-of-the-mainstream
person? She wrote more majority opinions in 2002 than any other member
of the court. What happens is, when a court gets together and discusses
a case before they finally vote and make their opinion, they see how
the judges analyze the case. If it is a majority or a unanimous
decision one way, someone is selected to write the opinion for the
majority. If it is 5 to 4, someone is selected to write the opinion for
the five, the majority. Sometimes there will be four different
dissents, maybe one dissent with all the rest joining in. Judges can do
it any number of different ways.

This idea that she is out of the mainstream because she has dissented
on cases is a total mischaracterization of her record. They have gone
back and dug through her records and tried to find numbers and ideas
and concepts that put her in a bad light. They ignore the fact she
wrote the majority opinion in 2002 in more cases than any other of the
nine justices on the California Supreme Court.
There are a lot of different cases in which she has been criticized.
A lot of great dissents have been issued in this country. There is the
dissent of Justice Harlan in the separate but equal case of Plessy v.
Ferguson. Was that a good dissent? I think it was a good dissent.
By the way, in the zoning case her critics talk about, alleging that
she was taking an extreme position on that case, that vote in the
California Supreme Court was 4 to 3. Only four judges were for it;
three were against it. She wrote the dissent. I thought it was a great
dissent.
Several times, Senator Boxer and others have said Justice Janice
Rogers Brown said it was okay for Latinos to have racial slurs uttered
against them in the workplace. That is a terrible charge. That is not
true. Sometimes we wonder if there is a lawyer in this whole building.
Is there anyone who knows how the legal system actually works? The case
they referenced was the Aguilar case. A court injunction or court order
barred a manager from using racial epithets in the future, raising
grave first amendment concerns to tell someone in our country, you
cannot say something in the future. You can say what you said in the
past was wrong and you can be sued for it, you can be put in jail,
perhaps, if it amounts to a criminal action; but the courts in this
country have always, as a result of free speech concerns, been very
reluctant to enter into prior restraint, as the judges call it, to stop
someone from saying something in the future. You pay a price if you say
the wrong thing in the future, but to order them never to say something
is a very dangerous thing.
The court split on that case, 4 to 3. Yes, she was a dissenter, but
also dissenting with her in that case was the liberal icon of
California jurisprudence, Stanley Mosk, her colleague on the bench.
This was a 4-to-3 decision representing a very important idea. She
specifically condemned the language. She said people could be sued,
they could have penalties imposed. She was concerned about a court
injunction saying to somebody, they could not say certain words in the
future. That is what the question was. Any legal scholar in this
country would agree that is a difficult matter. We ought to be careful
before we pass injunctions saying people cannot say something. A
prominent liberal jurist, Justice Mosk agreed with her on that point,
as did three of the justices on that court.
One of the things one of the groups has attacked her about, and I
don't know if the Senators have raised it yet--I wouldn't be surprised,
is the use of stun belt on a criminal defendant in court.
We are familiar with the recent case in the Atlanta, GA, courthouse,
where a violent defendant overpowered the guard, took a gun, shot a
bunch of people, ran off. There was a national uproar over what to do
about it, why that shouldn't have happened, and how we ought to take
steps to prevent this in the future. That was a good, healthy debate.
There is a device called a stun belt that can be placed on a
defendant. Simply by pushing a button, apparently, one can immobilize a
subject wearing a stun belt.

In recent years, we cannot bring criminals into the courtroom in
prison garb. You cannot bring a prisoner in a courtroom and sit them
before a jury in handcuffs. That would bias the jury, the courts have
said, in their effort to be fair to defendants.
I was a prosecutor; I remember when that started happening. So we had
to sit them up there in the witness box without any chains or
handcuffs. You never knew what they were going to do. There were
marshals and sheriff's deputies standing on alert to see if this guy
was going to make a break.
They came up with this idea to put a stun belt around a defendant,
under their clothes, that could not be seen. This guy was referred to
as being psychotic, violent, dangerous in any number of ways and the
California Supreme Court said, you cannot make him wear it. It made him
nervous.
I hate to say that was a silly opinion, but it was, in my view. I bet
if the decision was made after the Atlanta courtroom incident, they may
not have ruled the same way. But one justice on that court saw it
correctly: Janice Rogers Brown. She dissented from that decision. That
was the right thing to do. Absolutely the right thing to do. I salute
her for it. She should not be voted down for those issues.
There are many of these examples of distortions of her record we
could talk about. One interesting case in which Justice Brown authored
a majority opinion deals with the question of affirmative action. It is
the kind of case that gets someone in trouble with certain leftwing
groups in this country but is consistent with the law of America and
the law of the State. She did the only thing appropriate. It is the
High-Voltage Wireworks case. In this case, the California Supreme Court
unanimously concurred in Justice Brown's opinion.
They say she does not believe in affirmative action, quotas, and
things of

[[Page S6089]]

that nature. This is one of the cases they cite. It was a unanimous
supreme court decision case. It demonstrates her ability to follow the
Constitution and Federal law.
California proposition 209 was passed by the people of California. It
added a provision to the California Constitution that provided:

The states shall not discriminate against or grant
preferential treatment to any individual or group on the
basis of race, sex, color, ethnicity, or national origin in
the operation of public employment, public education or
public contract.

The people from California passed that.
There was a minority contracting program in San Jose that said
contractors bidding on city projects must utilize a specified
percentage of minority and women contractors or document efforts to
include minority and women contractors in their bids. Every judge who
reviewed the case, including the trial, appellate, and supreme court,
agreed that the San Jose program constituted preferential treatment
within the meaning of proposition 209. Why, certainly it did.
Justice Brown's opinion demonstrates her firm commitment to the
bedrock principles of civil rights. She noted:

Discrimination on the basis of race--

Remember, she is an African American.

Discrimination on the basis of race is illegal, immoral,
unconstitutional, inherently wrong, and destructive of
democratic society.

Contrary to the assertions of liberal smear groups, Judge Brown is
not opposed flatly to all affirmative action programs in all
circumstances. She has specifically acknowledged that ``equal
protection does not preclude race conscious programs.'' Certain race-
conscious programs can be approved under the law. And she favorably
cites Supreme Court decisions establishing the affirmative duty to
desegregate where there has been a showing of a prior discrimination,
that you can issue orders, then, if there has been a proof of
discrimination.
She provided a historical discussion of all of American equal
protection law. It was part of an extremely well-reasoned opinion. But
it has made some of those on the left unhappy, you see, because she is
not in lockstep for all these items, she is not in agreement with
everything. She thinks there are limits to what the Government can do
in this area, and should do, consistent with the Constitution of the
United States.
There are many other cases she has ruled on. I will simply add this,
in conclusion, that she has been a sterling justice, a justice who
believes in law. She has approached each case she has dealt with from a
perspective of trying to find out what the law is and how to do the
right thing about it. She has courage and had the courage to stand up
in the face of a legal system that has not been supportive of classical
understandings of how we interpret statutes, how we enforce the law,
and what the law means. She has been in an agenda-driven environment
where judicial activism is more prominent in certain areas of the
country. The fact she has dissented and has raised questions to defend
private property and to question turning criminals loose on a rapid
basis, as some have, and those kinds of things, speak well of her.
What is important mostly is that she has a judicial philosophy that
is consistent with the judicial philosophy our country has had, our
heritage of law. That is what she believes in. That is what she has
given her life and career to. She loves the law, and she cares about
it. She cares about it enough to speak out if she thinks things are
going wrong. Her views are consistent with the American people.
President Bush campaigned on these issues aggressively in this last
election. He won 52 percent of the vote. It is the first time in many
years a Presidential candidate received over half the votes in this
country. I think if you took on the question of judicial activism and
the feeling of the American people with regard to judges who exceed
their bounds of power and start legislating from the bench rather than
making decisions, he would have had much higher support.
Senators who joined this body defeating incumbents or winning open
seats--the winners of those seats--consistently have been Senators who
have talked to the people of their States about the problem of an
overreaching judiciary and the need to make sure the judges we have are
talented, smart, proven men and women of integrity and ability, but men
and women who will show restraint on the bench, who will follow the law
as written, even if they may not personally agree with it. Because if
they want to write the laws, they ought to run for office and see if
they can get elected. Maybe the reason people who got elected did not
pass a law they wanted is because the American people did not want that
law, their constituents did not want it, and that is why they did not
pass it. So they are not empowered to impose their personal views by
subtly manipulating words and language and phrases and other things to
make the case come out the way they want it to come out. That is not
what they are empowered to do.

I think Janice Rogers Brown represents the classical view of law, the
mainstream view of law, which I will admit is under attack today in
this country. It was a big issue in the campaign. President Bush took
his case to the American people, and he was reelected on it. That was a
big issue in his election. There is no doubt about it. The American
people want judges with the philosophy of Justice Rogers Brown, her
legal philosophy. What she says politically somewhere in a speech is
not important, as long as her judicial philosophy is such that she
shows and has demonstrated she will be faithful to the Constitution and
to the law, whether or not she agrees with it.
That is what we in the Senate need to be doing in our confirmation
process. We need to ask ourselves: This may be a view by a nominee I
agree with or I do not agree with, but will they enforce the law?
Because we cannot expect every nominee to agree with us on our
religious values, our moral values, or our political beliefs. Judges
are not expected to do that. You do not expect that. It is not running
for office. They are not going to be voting on these things. You want
people who understand the law and who will be fair and show
intelligence and diligence and a determination to get it right. That is
what she said in her testimony. She said: My goal is to get it right.
I believe this is a good nominee. I believe she will be a tremendous
addition to the Court of Appeals for the United States. I am proud she
is a native of my home State, and I am honored to have these moments to
speak on her behalf.
I thank the Chair and yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. 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. SESSIONS. Mr. President, I was talking about Justice Janice
Rogers Brown and her record of courage and ability on the Supreme Court
of California.
I note an article by Nat Hentoff. It is in the Jewish World Review.
Mr. Hentoff is a noted civil rights lawyer, of courage and
independence, who writes with clarity and is a civil libertarian who
believes in American civil liberties, who has a long record of it. He
is not someone who is slavishly part of any political agenda and is
willing to speak the truth wherever he sees it. Sometimes I agree with
it; sometimes I don't. But he has written an article about the
filibuster of Janice Rogers Brown. He talks about the ``Action Alert''
from the National Association for the Advancement of Colored People
that ``accuses [Janice Rogers Brown] of having extreme right-wing
views'' and ``issuing many opinions hostile to civil rights.''
She has been a victim of civil oppression and segregation. She is a
true champion of civil rights, as I think I indicated in my remarks.
He goes on to show ``how prejudicially selective the prosecution of
her is by the Democrats, the NAACP, People for the American Way, and
her other critics.''
He says:

To my knowledge, not one of her attackers has mentioned the
fact that in the case of

[[Page S6090]]

People v. McKay, Brown was the only Supreme Court justice to
instruct her colleagues on the different standards some
police use when they search cars whose drivers are black:

This is Justice Brown's quote:

There is an undeniable relation between law enforcement
stop-and-search practices and the racial characteristics of
the driver. . . . The practice is so prevalent, it has a
name: ``Driving While Black.''

Does that sound like somebody who is hostile to civil rights? He goes
on to criticize the Action Alert and the selective comments that are
made there.
He says:

Sen. Ted Kennedy has accused Justice Brown of hostility not
only to civil rights but also to ``consumer protection.'' But
in Hartwell Corp. v. Superior Court (2002), she declared that
water utilities could be sued for having harmful chemicals in
the water that result in injuries to the residents of the
State who drink that water. Also in People ex rel. Lungren v.
Superior Court, Justice Brown affirmed the authority of
California's attorney general to haul into court faucet
manufacturers who include lead in their faucets.
Another charge by the NAACP in its ``Action Alert'' is that
Justice Brown dissented from ``a ruling that an injunction
against the use of racially offensive epithets in the
workplace did not violate the First Amendment.''

Mr. Hentoff then says this:

I know this case--Aguilar v. Avis Rent A Car System Inc.--
well, having covered it from the beginning and interviewed
lawyers on both sides. Brown dissented from an astonishing
decision by the California Supreme Court that authorized the
trial judge to actually put together a list of words that
would be forbidden for all time in that workplace, even if
uttered out of the presence of employees.

That is what Mr. Hentoff says about this opinion of the majority that
she dissented from. He goes on to say:

This extreme gag rule on speech turned the First Amendment
upside-down because as Stanley Mosk, a much-respected civil
libertarian on that California Supreme Court, emphasized:
``The offensive content of using any one or more of a list of
verboten words cannot be determined in advance.'' As Brown
said plainly and correctly: ``We are not dealing merely with
a regulation of speech, we are dealing with an absolute
prohibition--a prior restraint.'' This could ``create the
exception that swallowed the First Amendment.''

Do you see what we are talking about here?
That is what has been going on on the floor of the Senate that is so
distressing to me. Let's lay it out here on the table.
Justice Janice Rogers Brown, according to one of the great civil
liberty lawyers in America, Nat Hentoff, was defending first amendment
free speech, joined by one of the most liberal members of the
California Supreme Court to defend free speech. What did they accuse
her of? They said that she approved of using racial slurs against
Hispanics. Now, that is beyond unfair. It is beyond unfair. It is
beyond decency and integrity, and it is not right. It is wrong. That is
what we have been doing to nominees here to justify the opposition
because fundamentally they believe in a classic rule of law and don't
believe in judicial activism.
Hentoff goes on further and talks about another case.

As for this justice's hostility to civil rights and
liberties, there was her dissent in In Re: Visciotti in which
she declared the sentence of John Visciotti--convicted of
murder, attempted murder, and armed robbery--be set aside
because of his defense lawyer's incompetence. In another
capital murder case (In Re: Brown) she reversed the death
sentence of John George Brown because the prosecutor
subverted the defendant's fundamental right to due process by
not disclosing evidence that could have been exculpatory.
Not a word about those two cases was in the NAACP ``Action
Alert'' or the New York Times editorial [or the Sacramento
Bee].

I ask unanimous consent to have printed in the Record the article of
Mr. Hentoff of May 9, 2005, entitled ``Filibustering Janice Rogers
Brown.''
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Jewish World Review, May 9, 2005]

Filibustering Janice Rogers Brown

(By Nat Hentoff)

Janice Rogers Brown of the California Supreme Court has
been the Bush nominee for a federal circuit court judgeship
facing particularly fierce resistance by Democrats and their
allies. For example, the April 26 ``Action Alert'' from the
National Association for the Advancement of Colored People
accuses her of ``having extreme right-wing views,'' issuing
``many opinions hostile to civil rights.''
I do not agree with all of Justice Brown's opinions, but I
write this to show how prejudicially selective the
prosecution of her is by the Democrats, the NAACP, People for
the American Way and her other critics. She was filibustered
in the last Congress, and may be again, now having been sent
to the floor on a 10-to-8 party-line vote by the Judiciary
Committee.
To my knowledge, not one of her attackers has mentioned the
fact that in the case of People v. McKay (2002), Brown was
the only California Supreme Court justice to instruct her
colleagues on the different standards some police use when
they search cars whose drivers are black:
``There is an undeniable correlation between law
enforcement stop-and-search practices and the racial
characteristics of the driver. . . . The practice is so
prevalent, it has a name: `Driving While Black.' ''
The three-page ``Action Alert'' I received from the NAACP
ignored that opinion, in which Brown added that while racial-
profiling is ``more subtle, more diffuse and less visible''
than racial segregation, ``it is only a difference of 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.''
This is right-wing extremism? Yet, an April 28 lead New
York Times editorial accuses Justice Brown of being ``a
consistent enemy of minorities (and is) an extreme right-wing
ideologue.''
Sen. Ted Kennedy (D-Mass.) has accused Justice Brown of
hostility not only to civil rights but also to ``consumer
protection.'' But in Hartwell Corp. v. Superior Court (2002),
she declared that water utilities could be sued for having
harmful chemicals in the water that result in injuries to
residents of the state who drink that water.
Also in People ex rel. Lungren v. Superior Court (1996),
Justice Brown affirmed the authority of California's attorney
general to haul into court faucet manufacturers who include
lead in their faucets.
Another charge by the NAACP in its ``Action Alert'' is that
Justice Brown dissented from ``a ruling that an injunction
against the use of racially offensive epithets in the
workplace did not violate the First Amendment.''
I know this case--Aguilar v. Avis Rent A Car System Inc.--
well, having covered it from the beginning and interviewed
lawyers on both sides. Brown dissented from an astonishing
decision by the California Supreme Court that authorized the
trial judge to actually put together a list of words that
would be forbidden for all time in that workplace, even if
uttered out of the presence of employees.
This extreme gag rule on speech turned the First Amendment
upside-down because as Stanley Mosk, a much-respected civil
libertarian on that California Supreme Court, emphasized:
``The offensive content of using any one, or more, of a list
of verboten words cannot be determined in advance.'' As Brown
said plainly and correctly: ``We are not dealing merely with
a regulation of speech, we are dealing with an absolute
prohibition--a prior restraint.'' This could ``create the
exception that swallowed the First Amendment.''
As for this justice's hostility to civil rights and
liberties, there was her dissent in In re Visciotti (1996) in
which she declared that the sentence of John Visciotti--
convicted of murder, attempted murder and armed robbery--be
set aside because of his defense lawyer's incompetence. In
another capital murder case (In re Brown) she reversed the
death sentence of John George Brown because the prosecutor
subverted the defendant's fundamental right to due process by
not disclosing evidence that could have been exculpatory.
Not a word about those two cases was in the NAACP ``Action
Alert'' or The New York Times editorial.
Were I on the Senate Judiciary Committee, a critical
question I would ask Justice Brown is: ``Is it true, as has
been charged, that you believe the drastically anti-labor
1905 Supreme Court decision in Lochner v. New York was
correctly decided?''
In that decision, which placed bakery owners' contract
rights over the health of workers and the health of buyers of
the company's products, the High Court ruled that employers
had the right to insist that their employees work unlimited
long hours, even if the public's health were to be endangered
because sick workers couldn't even take the day off.
If Justice Brown does indeed agree with that decision,
which was influential until President Roosevelt's New Deal, I
would have difficulty voting for her; but I would not
unjustly accuse her of having nothing in her record that
strongly upholds the interests of justice. She does not
deserve being stereotyped as an archetypical reactionary. And
her defense of the Fourth Amendment's protection of our
rights against government search and seizure are much
stronger than any current member of the Supreme Court.

Mr. SESSIONS. What kind of lady is this? She graduated from UCLA, one
of our Nation's finest law schools. In February of 2004, the alumni of
that not-so-conservative law school presented Janice Rogers Brown with
an award for public service. In recognizing Justice Brown, her fellow
UCLA alumni, the people who know her, did not criticize her and say she
was an extremist. They didn't say anything like that. At UCLA law
school, where they gave her an award, they said:

[[Page S6091]]

Janice Rogers Brown is a role model for all those born to
prejudice and disadvantage, and she has overcome adversity
and obstacles and, since 1996, has served as a member of the
California Supreme Court. . . . The professional training she
received at the UCLA School of Law has permitted her, even
now when decades remain to further enhance her career,--

Yes, we need to see her career be enhanced by this court of appeals
appointment.

to have already a profound and revitalizing impact upon the
integrity of American jurisprudence.

I will repeat that. They said:

. . . even now, when decades remain to further enhance her
career, [she has been shown] to have already a profound and
revitalizing impact upon the integrity of American
jurisprudence.

I think that is a good description.

Despite her incredible intellect, work ethic,
determination, and resultant accomplishment, she remains
humble and approachable.

That is not the Janice Rogers Brown you hear her opponents describe.
I will take the words of the people who know her and who have actually
studied her record over the rhetoric of special interest groups who are
not the least bit concerned, it seems to me, about being fair in their
description of the nominee.
She spent 8 years as a deputy attorney general in the Office of the
California Attorney General, where she prepared briefs and participated
in oral arguments on behalf of the State's criminal appeals; she
prosecuted criminal cases and litigated a variety of civil issues. Her
keen intellect and work ethic made her a rising star on the California
legal scene, and in 1994, Governor Pete Wilson tapped her as his legal
affairs secretary. She served in that capacity until 1994, when she was
nominated and confirmed as an associate justice on the California Third
District Court of Appeals. In May of 1996, to honor her for her
superior performance on the appellate court, Governor Wilson elevated
her to the California Supreme Court, where she has performed admirably.
Since she was appointed to the California Supreme Court, a couple of
things have happened which demonstrate she is doing her job and doing
it well. During the 1998 elections, she was retained with 76 percent of
the vote, receiving a higher percentage of the vote than any other
judge on the ballot and in 2002, she authored more majority opinions
than any other Justice on the Court.
The people of California who actually know the law and study the law
and who have not been brainwashed by attack sheets that come out, by
liberal groups, support her. For instance, Gerald Ullman, a California
law professor, has expressed public support for this nominee. His
statement sums up what we ought to consider with regard to Justice
Brown's nomination. Let me quote it:

Although I frequently find myself in disagreement with
Justice Brown's opinions, I have come to greatly admire her
independence, her tenacity, her intellect, and her wit. It is
time to refocus the judicial confirmation process on the
personal qualities of the candidates, rather than ``hot
button'' issues of the past. We have no way of predicting
where the hot button issues will be in years to come, and our
goal should be to have judges in place with a reverence for
our Constitution, who will approach these issues with
independence, an open mind, a lot of common sense, a
willingness to work hard and an ability to communicate
clearly and effectively. . . . Janice Rogers Brown has
demonstrated all these qualities in abundance.

That is what Professor Ullman said.
Her colleagues and former colleagues also support her. A bipartisan
group of Justice Brown's current and former judicial colleagues,
including all of her former colleagues on the Court of Appeals, Third
Appellate District, and four current members of the California Supreme
Court, also have written in support of her nomination.
Twelve current and former colleagues noted in a letter to the
committee that:

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 a very hard worker. We know that she is a
jurist who applies the law without favor, without bias, with
an even hand.

That was sent to Chairman Orrin Hatch in October 2003.
Ellis Horvitz, a Democrat and one of the deans of the appellate bar
in California, has written in support of Justice Brown, noting that:

In my opinion, Justice Brown [possesses] those qualities an
appellate judge 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.

That was another letter to Chairman Orrin Hatch.
The praise for Justice Brown and her performance on the bench goes on
and on. Sure, some do not agree with her politically, but they
recognize and appreciate her approach to jurisprudence. She is a
restrained jurist who refuses to change the definition of marriage or
to strike down the Pledge of Allegiance or throw out the ``three
strikes and you are out'' law in California.

She is the kind of judge President Bush promised to support. Again, I
think she has done a terrific job on the Supreme Court of California. I
am proud she is from Alabama. I am sorry the discrimination she
believed she and her family faced in our State was, I am sure, part of
the reason they left Alabama to seek a fair life. She went to
California and has taken advantage of the opportunities given her. She
achieved a tremendous record. It is an honor for me to speak in support
of her nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I thank my colleague from Alabama for his
remarks. I did not hear them all, but he did say the record of Justice
Janice Rogers Brown is compelling, and I agree with that. It is so far
off the mainstream that one has to look at it compellingly. It is hard
to believe, frankly, that the President nominated someone with these
views. I think it shows how far over and out of the mainstream the
President's nominees are and, unfortunately, how much in lockstep the
majority in the Senate walks with these nominees.
I have no doubt that Justice Brown is smart and accomplished. Her
rise from humble beginnings is impressive. That does not make somebody
who belongs on the second most powerful court in the land. Someone's
rise from humble beginnings is very important, but it does not mean
they can run a major company. It does not mean they would be a great
lineman or center or linebacker for the New York Giants. It is a
wonderful thing, but it does not qualify them for the job.
Judge Janice Rogers Brown's humble rise cannot offset her radical and
regressive approach to the law. I would argue that none of the views of
the nominees we have had so far are so off the charts as Janice Rogers
Brown. None of what she has done in her life can mitigate her hostility
to a host of litigants who have appeared before her. If someone is
polite and then takes your argument and throws it out, even though the
law is behind you, and leaves you hopeless, it does not mean they have
done a good job as a judge.
Janice Rogers Brown, on the merits, is the most out of the
mainstream, the least deserving of all of the President's appeals court
nominees. In a moment, I am going to review those reasons. Before I do,
I want to ask a question that has been nagging me for a while: Why are
so many self-described conservatives planning to vote for her? She is
not conservative, she is a radical. She is the opposite of a
conservative. And why are moderate Senators on the other side of the
aisle boarding the Brown bandwagon when everything she believes is
against what they believe?
Is it that this nominee, more than any other, embodies the
conservative ideal for an appellate judge? Let's see what conservatives
describe as what a judge ought to be.
This is the President and Republican leaders. They said a model judge
should be a strict constructionist, judicially constrained, and
mainstreamed. Janice Rogers Brown is none of those, absolutely none.
Let's take a look at the record.
Is she a proud and principled strict constructionist? Is that why the
President and Republican leaders are pushing her? President Bush has
said time and again that he wants judges who will not legislate from
the bench. He

[[Page S6092]]

said he wants strict constructionists in the mold of Antonin Scalia.
But Janice Rogers Brown is no more a strict constructionist than I am a
second baseman for the New York Yankees. Anyone who says that the New
Deal is a socialist revolution and ought to be undone, when we have had
70 years, seven decades of law based on the construct of the New Deal;
where 99 percent of America agrees--does that person belong on the
bench? Absolutely not. The New Deal is a socialist revolution and ought
to be undone--does anyone on this side of the aisle agree with that?
And then defend for me once, I would like to hear in all the debate
we had and will have on Janice Rogers Brown one person defending those
comments. The only person I heard is Orrin Hatch: Well, she tries to be
inflammatory, or she tries to get people's attention. She has said
things such as this over and over.

If you believe the New Deal was a socialist revolution that ought to
be undone, you are not a strict constructionist. The legislature, the
Congress, and the President, Democrats and Republicans, from 1932 on
have said the things we have done in the New Deal and built upon on the
basis of the New Deal ought to stay. Should one judge be able to undo
that? Then why are we voting for her? That is not strict
constructionism. That is not conservatism.
Listen to what a conservative commentator, Ramesh Ponnuru, wrote
about her in the National Review some time ago. The National Review is
a conservative publication.

Republicans and their conservative allies have been willing
to make lame arguments to rescue even nominees whose juris
prudence is questionable.

He continues to say--this is not my quote:

Janice Rogers Brown has argued there is properly an extra
constitutional dimension to constitutional law.

Those are her words.

She has said that judges should be willing to invoke--

And this is Mr. Ponnuru quoting Janice Rogers Brown, not me--

She has said that judges should be willing to invoke ``a
higher law than the Constitution.''

You can find a higher law to the Constitution if you so believe from
the far right, from the far left, maybe from the animal rights people
or the vegetarians, but that is not what judges should do.
Take a look at her own words in a dissent involving a California
proposition, proposition 209. In that case, which involved affirmative
action, Justice Brown did not feel compelled to limit herself strictly
to the language of that proposition. Instead, she decided that she
should ``look to the analytical and philosophical evolution of the
interpretation and application of title VII to develop the historical
context behind proposition 209.''
This sounds like Justice Brennan or some of the very liberal judges
the conservatives decry. If you are going to make up your own law, are
we saying on the other side of the aisle, you are not a strict
constructionist if you want to make up your own laws to the left, but
you are a strict constructionist if you want to make up your own laws
to the right? As somebody who believes deeply in moderation on the
bench, I am offended by either side.
So Janice Rogers Brown is not a strict constructionist, but is she
otherwise a proven warrior against the scourge of conservatives
everywhere--judicial activism? No. She is clearly an activist judge.
She takes what comes into her own mind--she is bright, but a lot of her
views compared to American law veer way off course--and she writes them
in her opinions. Decades of elections, tens of thousands of
legislators, executives, and she just throws them out the window
because she happens to believe she knows better than everybody else.
That is what a judicial activist is. That is what the conservative
movement against judicial activism rebelled against.
Well, conservatives and moderates alike have criticized her for her
activism, and her own words show her to be as activist as they come.
Her own words demonstrate she is quick to want to reverse precedent,
the very definition of an activist judge. When it comes to reversing
precedent, one might say Janice Rogers Brown has an itchy trigger
finger; she cannot wait to reverse precedent.
Here is what she said in People v. Roberman, 1998: We cannot simply
cloak ourselves in the doctrine of stare decisis. Hello? I went to law
school. I learned throughout law school, one studies cases because of
stare decisis. One is supposed to look at the train of law, and here
she is: Forget stare decisis.
If that was said by a liberal who wanted to move things way over to
the left--a liberal would not say it; it would be someone further
over--what would be heard on that side of the aisle? What does it say
about her reluctance to be an activist?
Time and time again she has jumped at the chance to reshape settled
law. Listen to a few statements from opinions she has written, not from
speeches. Everyone has said, do not judge her speeches--they are
inflammatory and intended to be so--but her opinions. Here she says:
The commercial speech doctrine, which has been established in our law
for decades, needs and deserves reconsideration and this is as good as
any place to begin.
She wrote she was disinclined to perpetuate dubious law for no better
reason than it exists.
I had a history professor in college. He said his first lesson of
history is we are no smarter than our fathers, and people who think
they are much smarter than people who came before them and have nothing
to learn from them do not belong on the bench. Here she is: disinclined
to perpetuate dubious law for no better reason than it exists. Is she
saying all the people who wrote those opinions should be ignored?
On other occasions she has talked about ``taking a fresh look'', her
words, at settled doctrine under California law. And just listen to the
California State Bar Judicial Nominees Convention which gave Justice
Brown a not qualified rating when nominated to the California Supreme
Court in 1996. The rating in part was because of complaints that she
was ``insensitive to established legal precedent.''
Or listen to the words of conservative writer Andrew Sullivan who
agrees with many of Justice Brown's views. He said there is a case to
be made for ``the constitutional extremism of one of the President's
favorite nominees, Janice Rogers Brown. Whatever else she is, she does
not fit the description of a judge who simply applies the law.'' This
is Andrew Sullivan, conservative commentator, not Chuck Schumer. He
said: If she is not a judicial activist, I do not know who would be.
Mr. Sullivan made it a point to say he might agree with some of her
views but not her penchant for imposing those views in her position as
a judge, and that is the point. God bless her for her views. This is
America. We can all have different views. But when one becomes a judge
and they take an oath of office to uphold the Constitution, part of
that means they uphold the traditions of law that are under the
Constitution.
Here is what Sullivan said:

I might add, I am not unsympathetic to her views but she
should run for office, not the courts.

He has it exactly right. Let her run on her views that the New Deal
was a socialist revolution. Let her run on her views that there should
not be child labor laws. Let her run on her views that there should be
no zoning laws so someone who wanted to open a pornographic store next
to a high school had a constitutional right to do so or somebody could
buy a tract of land right next to your nice suburban house and put in a
factory.
How about Mr. Ponnuru, again, a conservative writer from the National
Review magazine:

She has said that judicial activism is not troubling per
se. What matters is the world view of the judicial activist.
In other words, one can be a judicial activist if they agree
with her views, not if they do not.

I have to say to my friends on the other side of the aisle, they have
lost a lot of the argument on judicial activism when they support
Janice Rogers Brown. Judicial activism is not sometimes yes and
sometimes no. An activist is somebody who makes his or her own law, it
comes out of their own head and supersedes everything we have known,
whether it is left, right, center.
It is incredible. It is incredible that we are discussing Janice
Rogers Brown. I can imagine the reaction if a Democratic President put
forward a nominee

[[Page S6093]]

who said all of these things. We would have pandemonium on that side of
the aisle. But guess what. President Clinton never would have nominated
someone like this. It is only because President Bush is so in the
thrall of the hard right that he has to do this. Thank God it is not
true of most of the judges he has nominated, conservative though they
may be.

So as the record reflects, Janice Rogers Brown does not have the
impulses of a restrained judge. She has the passions of a judicial
activist and that was the type I thought conservatives wanted to keep
off the bench at all costs.
How about this argument: She is not a strict constructionist and she
is a judicial activist. But are her judicial views otherwise in the
mainstream of conservatism? Is that why people on the other side of the
aisle support her? My friend Jeff Sessions said Justice Brown is in the
mainstream. Well, let us ask the American people if her views are in
the mainstream. Or first let us ask conservative commentator George
Will, a very respected man--and I have more respect for him because at
least he is calling the shots as he sees them, not like my colleagues
who seem to be marching to the tune of Janice Rogers Brown without even
thinking. Here is what George Will said, and in fairness to George Will
he was first saying that Priscilla Owen, who we opposed, is part of the
mainstream, but here is what he said about Brown:

Another of the three, Janice Rogers Brown, is out of that
mainstream. That should not be an automatic disqualification,
but it is a fact . . .

I say to Mr. Will, it surely is a disqualification to me, but that is
not the point. Even George Will says Janice Rogers Brown is out of the
mainstream. Which mainstream was he talking about? George Will was
talking about the mainstream of conservative jurisprudence.
He went on to say, and these are his words:

It is a fact she has expressed admiration for the Supreme
Court's pre-1937 hyperactivism in declaring unconstitutional
many laws and regulations of the sort that now define the
post-New Deal regulatory state.

George Will has the forthrightness, straightforwardness, and courage
to admit what Janice Rogers Brown is. When will one of my colleagues
from the other side?
What does the record then show about Janice Rogers Brown? She is not
strict in her construction. She is not mainstream in her conservatism.
Nor is she quiet about her activism. So I am left with the same
question: Why is it that Janice Rogers Brown is touted as the model
conservative judge when she is anything but conservative in her
judicial approach?
I believe there are many Senators across the aisle who would vote
against such a candidate because her judicial philosophy could not be
more out of sync with theirs, but I worry that there is enormous
political pressure, party pressure, on those moderate Senators.
Senator Frist has spoken the last few weeks about leader-led
filibusters of judges, whatever that means. Well, is this a leader-led
rubberstamping of nominees who have not even convinced noted
conservatives that they belong on the bench?
Let me make one other point. If one looks at all the nominees, 45
court of appeals nominees, every measure that was put forward on the
other side of the aisle for every one of the court of appeals nominees,
whether it is to invoke cloture or to vote for them, there was not a
single Republican dissent, except one: Trent Lott on Roger Gregory for
the Fourth Circuit. That was the man Jesse Helms blocked, mostly
because he did not want a Black man on the Fourth Circuit, which has
not had a Black man before, even though the Fourth Circuit, North
Carolina, Virginia, has a large Black population.
Let us look at the merits of Justice Brown. Let us look at her views
and why I feel she could not have been a worse pick. This has nothing
to do with her faith, her race, her gender, or her background. We are
being blind to all that. Any nominee who has these views--could be
Black, White, Hispanic, Asian, man, woman--you just can't support
somebody like this because of their views, not because of who they are
and not because of their background. What a record she has.

In case after case, Justice Brown goes through contortions of legal
logic that reach results to hurt workers, limit environmental
protections, and injure basic rights. Time and time again, when a legal
question is presented twice, she takes two polar opposite approaches in
order to achieve the outcome she wants. That is judicial activism at
its worst.
Judicial activism can be dangerous on any court, but it is especially
dangerous on the DC Circuit, which is known, for good reason, as the
Nation's second highest court.
Some of the things she said. She said that the Lochner case was
decided correctly. The Lochner case says that States cannot pass any
laws protecting workers. If you ask most lawyers to name the worst
Supreme Court decision of the 20th century, Lochner would be at the top
of any list. Fortunately, the Court threw it out a few decades later.
Not even Justice Scalia believes States should be prohibited from
passing wages and hours laws. But Janice Rogers Brown believes not only
is the Federal Government not allowed to, under the commerce clause,
but the States themselves cannot do anything. It is confounding. It is
just unbelievable.
How about her views in the San Remo case, where she says all zoning
laws are a taking of property, an unconstitutional taking of property?
Does anyone in America believe that? Does the most conservative Member
of this Chamber? I don't know who it might be. We might have a race for
that. But does the most conservative Member of this Chamber believe
there should be no zoning laws? These are State laws, which has nothing
to do with federalism, which Justice Scalia made one of his hallmarks.
I disagree with him on those issues, but that is a different argument.
These are local zoning laws. Unconstitutional? Is it unconstitutional
to say you cannot put poison in the air? Is it unconstitutional to say
you can't pollute the water? Is it unconstitutional to say in a
residential community you cannot put in a factory or a porno palace?
What are we doing here? What is going on here?
I have to tell you, I do not see how anyone on that side of the aisle
can look in the mirror and say they really think this woman belongs on
the DC Court of Appeals.
If it were just one view, you would say: Well, these guys are just
focusing on one view. It is over and over again. Until Santa Monica--
just to go back to Lochner-- v. Superior Court, she called the demise
of the Lochner era ``the revolution of 1937.'' That is that socialist
revolution, the New Deal. She wants to undo it.
Here is what she said on another occasion:

Today's senior citizens blithely cannibalize their
grandchildren because they have the right to get as much free
stuff as the political system will permit them to extract.

I suppose you read from that that she wants to repeal Social
Security. After all, that was part of the socialist revolution. Does
anyone here believe we should repeal Social Security? Anyone?
In a dissenting opinion, she wrote:

I would deny the senior citizen plaintiff relief because
she has failed to establish that public policy against age
discrimination inures to the benefit of the public is
fundamental and substantial.

It goes without saying that a nominee who does not agree that public
policy against age discrimination benefits the public is far out of any
mainstream.
I don't know of a single person on the U.S. courts--and there may be
one or two but none that have come to my attention--who is as out of
the mainstream, as far over to the right as Janice Rogers Brown.
So my colleagues--and this is really a plea to those on the other
side of the aisle--we have already come to an agreement, at least 14 in
the middle--God bless them for trying--that we are going to invoke
cloture on Janice Rogers Brown, which means there will be an up-or-down
vote. But no one here has voted up or down on Janice Rogers Brown
before, except Members of the Judiciary Committee.
I urge, plead with my colleagues on the other side of the aisle--
particularly those who are somewhat more moderate--look at the record
of this nominee. Look at what she says and what she stands for. If
there were ever a time to show some independence, to not march in
lockstep, to vote your

[[Page S6094]]

convictions because you can't believe that someone of these views
belongs on the court, now is that time.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
(The remarks of Mr. NELSON of Florida pertaining to the introduction
of S-1168 are printed in today's Record under ``Introduced Bills and
Joint Resolutions.'')
Mr. NELSON of Florida. Mr. President, I suggest the absence of a
quorum.
The PRESIDING OFFICER. 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.

____________________