[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?

[[Page S6082]]

       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

[[Page S6083]]

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

[[Page S6084]]

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

[[Page S6085]]

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

[[Page S6087]]

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.

                          ____________________