[Congressional Record Volume 151, Number 74 (Tuesday, June 7, 2005)]
[Senate]
[Pages S6133-S6135]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Upward Mobility

  Mr. KENNEDY. Mr. President, before speaking on what I want to address 
to the Senate, and that is the pending business on the nominee, I want 
to bring to the attention of my colleagues an excellent editorial in 
the New York Times today: ``Crushing Upward Mobility.'' It is basically 
an analysis of a regulation that was put forward by the Department of 
Education that will save the Department of Education some resources, 
but at the cost of those middle-class families, working families, who 
are eligible for student loan programs. That is not the direction in 
which we should be going.
  At the current time, we have a number of these young students who are 
paying 9.5 percent on guaranteed student loans. Can you imagine having 
a deal like that? You put out money and the Federal Government 
guarantees that you have nothing to lose, and it still costs these 
students 9.5 percent. We ought to be doing something about that, like 
taking the profits and making a difference in terms of lowering the 
burden on working families and middle-income families who are trying to 
help their children go on to college, rather than put more burden on 
them.
  This is an excellent article. I ask unanimous consent that the 
editorial be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       [From the New York Times]

                        Crushing Upward Mobility

       The United States is rapidly abandoning a long-standing 
     policy aimed at keeping college affordable for all Americans 
     who qualify academically. Thanks to a steep decline in aid to 
     poor and working-class students and lagging state support for 
     the public college systems that grant more than two-thirds of 
     the nation's degrees, record numbers of Americans are being 
     priced out of higher education. This is an ominous trend, 
     given that the diploma has become the minimum price of 
     admission to the new economy.
       Greg Winter of The Times reported yesterday that the 
     federal government has rejiggered the formula that determines 
     how much families have to pay out of pocket before they 
     become eligible for the student aid package, which consists 
     of grants and low-interest loans. The new formula, which will 
     save the government about $300 million in federal aid under 
     the Pell program, will cause some lower-income students to 
     lose federal grants entirely. The families of others will 
     have to put up more money before they can qualify for 
     financial aid. Perversely, single-parent household will have 
     to pay more than two-parent households before they become 
     eligible.
       The federal Pell Grant program, which is aimed at making 
     college possible for poor and working-class students, has 
     fallen to a small fraction of its former value. The states, 
     meanwhile, have trimmed aid to public colleges, partly as a 
     consequence of soaring Medicaid costs. The states have 
     deepened the problem by shifting need-based tuition to 
     middle-class and upper-class students under the guise of 
     handing out so-called merit scholarships.
       The political clamor around the new formula is likely to 
     lead to changes, but they will be aimed at upper-income 
     families who are most able to pay. Tinkering with formulas in 
     Washington will not solve this problem. The nation as a whole 
     has been disinvesting in higher education at a time when 
     college has become crucial to work force participation and to 
     the nation's ability to meet the challenges of global 
     economic competition.
       Until the country renews its commitment to making college 
     affordable for everyone, the American dream of upward 
     mobility through education will be in danger of dying out.
  Mr. KENNEDY. Mr. President, I intend to introduce later on in the 
afternoon the technical language and legislation that will block that 
particular provision by the Department of Education from going into 
effect.
  Mr. President, Janice Rogers Brown's nomination to the DC Circuit is 
opposed more strongly by civil rights organizations than almost any 
other nominee I can recall to the Federal courts of appeals.
  She is opposed by respected civil rights leaders, including Julian 
Bond, the chairman of the NAACP, and Reverend Joseph Lowery, president 
emeritus of the Southern Christian Leadership Conference, who worked 
with Dr. Martin Luther King, Jr., in the civil rights movement, and who 
has fought tirelessly for many years to make civil rights a reality for 
all Americans.
  Her nomination is also opposed by the Congressional Black Caucus, the 
National Bar Association, the Coalition of Black Trade Unions, the 
California Association of Black Lawyers, and Delta Sigma Theta 
Sorority, the second oldest sorority founded by African-American women.
  Justice Brown's nomination is opposed by Dorothy Height, president 
emeritus of the National Council of Negro Women, and a leader in the 
battle for equality for women and African Americans. Dr. Height has 
dedicated her life to fighting for equal opportunities for all 
Americans. She is universally respected by Republicans and Democrats, 
and last year she received the Congressional Gold Medal, and President 
Bush joined Members of Congress in honoring her service.
  In opposing Justice Brown's nomination, Dr. Height says:

       I have always championed and applauded the progress of 
     women, and especially African American women; but I cannot 
     stand by and be silent when a jurist with a record of 
     performance of California Supreme Court Justice Janice Rogers 
     Brown is nominated to a Federal court, even though she is an 
     African American woman. In her speeches and decisions, 
     Justice Janice Rogers Brown has articulated positions that 
     weaken the civil rights legislation and progress that I and 
     others have fought so long and hard to achieve.

  Justice Brown's nomination is opposed equally strongly by over 100 
other organizations, including 24 in California, representing seniors, 
working families, and citizens concerned about corporate abuses and the 
environment.
  Some of Justice Brown's supporters suggest that she should be 
confirmed because she is an African-American woman with a compelling 
personal story. While all of us respect her ability to rise above 
difficult circumstances, we cannot confirm nominees to lifetime 
positions on the Federal courts because of their backgrounds. We have a 
constitutional duty to confirm only those who would uphold the law and 
would decide cases fairly and reject those who would issue decisions 
based on personal ideology.

  It is clear why this nomination is so vigorously opposed by those who 
care about civil rights. Her record leaves no doubt that she would 
attempt to impose her own extreme views on people's everyday lives 
instead of following the law. The courts are too important to allow 
such persons to become lifetime appointees as Federal judges.
  Janice Rogers Brown's record makes clear that she is a judicial 
activist and would roll back not only civil rights but laws that 
protect public safety, workers' rights, and the environment, as well as 
laws that limit corporate abuse, which are precisely the cases the DC 
Circuit hears most often.
  Our decision on this nomination is profoundly important to America's 
everyday life. All Americans, wherever they live, should be concerned 
about such a nomination to the DC Circuit, which interprets Federal 
laws that protect our civil liberties, worker safety, our ability to 
breathe clean air and drink clean water in our communities.
  The DC Circuit is the crown jewel of Federal appellate courts and has 
often been the stepping stone to the Supreme Court. It has a unique 
role among the Federal courts in interpreting Federal power. Although 
located here in the District of Columbia, its decisions have national 
reach because it has exclusive

[[Page S6134]]

jurisdiction over many laws that protect consumers' rights, employees' 
rights, civil rights, and the environment. Only the DC Circuit can 
review the national drinking water standards under the Safe Drinking 
Water Act to ensure clean water for our children. Only the DC Circuit 
can review national air quality standards under the Clean Air Act to 
combat pollution in our communities. This court also hears the lion's 
share of cases involving the rights of workers under the Occupational 
Safety and Health Act which helps ensure that working Americans are not 
exposed to hazardous conditions on the job. It has a large number of 
cases under the National Labor Relations Act. As a practical matter, 
because the Supreme Court can review only a small number of lower court 
decisions, the judges on the DC Circuit often have the last word on 
these important rights.
  Because of the court's importance to issues that affect so many 
lives, the Senate should take special care in appointing judges for 
lifetime positions on the DC Circuit. We must be completely confident 
that appointees to this prestigious court have the highest 
qualifications and ethical standards and will fairly interpret the 
laws, particularly laws that protect our basic rights.
  The important work we do in Congress to improve health care, reform 
public schools, protect working families, and enforce civil rights is 
undermined if we fail in our responsibility to provide the best 
possible advice and consent on judicial nominations. Needed 
environmental laws mean little to a community that cannot enforce them 
in Federal courts. Fair labor laws and civil rights laws mean little if 
we confirm judges who ignore them.
  In the 1960s and 1970s, the DC Circuit expanded public access to 
administrative proceedings and protected the interests of the public 
against the egregious actions of many large businesses. It enabled more 
plaintiffs to challenge agency decisions. It held that a religious 
group, as a member of the listening public, could oppose the license 
renewal of a television station accused of racial and religious 
discrimination. It held that an organization of welfare recipients was 
entitled to intervene in proceedings before a Federal agency. These 
decisions empowered individuals and organizations to shine a brighter 
light on governmental agencies. No longer would these agencies be able 
to ignore the interests of those they were created to protect.
  But in recent years, the DC Circuit has begun to deny access to the 
courts. It held that a labor union could not challenge the denial of 
benefits to its members, a decision later overturned by the Supreme 
Court. It held that environmental groups are not qualified to seek 
review of Federal standards under the Clean Air Act. These decisions 
are characteristic of the DC Circuit's flip-flop.
  After decades of landmark decisions allowing effective implementation 
of important laws and principles, the court now is creating precedence 
on labor rights, civil rights, and the environment that will set back 
these basic principles for years to come. It is, therefore, especially 
important to ensure that judges appointed to this important court will 
not use their position to advance an extreme ideological agenda.
  Janice Rogers Brown would be exactly that kind of ideological judge. 
How can we confirm someone to the DC Circuit who is hostile to civil 
rights, to workers' rights, to consumer protections, to governmental 
actions that protect the environment and the public in so many other 
areas--the very issues that predominate in the DC Circuit? How can we 
confirm someone who is so deeply opposed to the core protections that 
the DC Circuit is required to enforce? It is hard to imagine a worse 
choice for the DC Circuit.

  Perhaps most disturbing is the contempt she has repeatedly expressed 
for the very idea of democratic self-government. She has stated that 
where government moves in, community retreats, and civil society 
disintegrates. She has said that government leads to families under 
siege, war in the streets. In her view, when government advances, 
freedom is imperiled, and civilization itself is jeopardized. These 
views could hardly be further from legal mainstream. They are not the 
views of someone who should be confirmed to the second most important 
court in the land and the court with the highest frequency of cases 
involving governmental action. Congress and the White House are the 
places you go to change the law, not the Federal courts.
  She has criticized the New Deal which gave us Social Security, the 
minimum wage, and the fair labor laws. She questioned whether age 
discrimination laws benefit the public interest. She has even said that 
today's senior citizens blithely cannibalize their children because 
they have the right to get as much free stuff as the political system 
will permit them to extract. No one with these views should be 
confirmed to any Federal court, and certainly not to the Federal court 
most responsible for cases respecting governmental action. It is no 
wonder that an organization seeking to dismantle Social Security is 
running ads supporting her nomination to the second most powerful court 
in the country.
  Of course, like every nominee who comes before the Senate, Justice 
Brown assures us that she will follow the law. But merely saying so is 
not enough when there is clear and extensive evidence to the contrary. 
The Senate is more than a rubberstamp in the judicial confirmation 
process. We must examine the record and vote our conscience.
  Justice Brown and her supporters ask us to believe that her contempt 
for the role of government and government regulation and her opinions 
against workers' rights and consumer protections are not an indication 
of how she would act as a Federal judge. It is hard to believe that 
anyone would repeatedly use such extreme rhetoric and not mean it. It 
is even harder to believe that her carelessness and intemperance 
somehow qualify her to be a Federal judge.
  Moreover, Justice Brown's decisions match her extreme rhetoric. She 
has written opinions that would undermine these basic protections. I 
was especially troubled by her opinion in a case in which ethnic slurs 
have been proven to create hostile working conditions for Latino 
workers. Justice Brown wrote that the first amendment prevents courts 
from stopping ethnic slurs in the workplace even when those slurs 
create a hostile work environment, in violation of job discrimination 
laws.
  Her opinion even went beyond the State law involved in the case and 
suggested that title VII and other Federal antidiscrimination laws may 
not prohibit this kind of harassment in the workplace. Her opinion 
contradicts decades of precedent protecting workers from harassment 
based on race, gender, ethnicity, and religion. Fortunately, a majority 
of California's Supreme Court disagreed with her views.
  We cannot risk giving Justice Brown a lifetime appointment to a court 
on which she will have a greater opportunity to apply her extreme views 
on our Federal civil rights laws. This Nation has made too much 
progress toward our shared goal of equal opportunity to risk appointing 
a judge who will roll back civil rights.
  Other opinions by Justice Brown would have prevented victims of age 
and race discrimination from obtaining relief in State court. She 
dissented from a holding that victims of discrimination may obtain 
damages from administrative agencies for their emotional distress. Time 
and again, she has issued opinions that would cut back on laws that 
rein in corporate special interests. When there is a choice between 
protecting the interests of working Americans and siding with big 
business, Janice Rogers Brown sides with big business, and she does so 
in ways that go far beyond the mainstream conservative thinking.
  She wrote an opinion striking down a State fee requiring paint 
companies to pay for screening and treating children exposed to lead 
paint. Most of us are familiar with the dangers of lead paint. It is a 
contributing cause to mental retardation with regards to children. Many 
of the older communities all over this country have paint that has a 
lead content, and children have a habit of picking off the pieces. Even 
if it is in playgrounds, they have a way of ingesting these pieces. We 
find that children develop severe illness and sickness and in too many 
instances mental retardation. We tried here for years to eliminate the 
issues of lead in paint.

[[Page S6135]]

We have made some important progress.
  As I understand it, one of the proposals was a small State fee 
requiring paint companies to pay for screening and treating children 
exposed to lead paint, and she struck down that State fee. Fortunately, 
she was unanimously reversed by the California Supreme Court. But 
because the United States Supreme Court hears so few cases, there is no 
guarantee that her mistakes will be corrected if she receives a 
lifetime position on the DC court.
  In another case, she wrote a dissent urging the California Supreme 
Court to strike down a San Francisco law providing housing assistance 
to low-income elderly and disabled people.
  Justice Brown has also clearly demonstrated her willingness to ignore 
established precedent. She wrote a dissent, arguing that the California 
Supreme Court ``cannot simply cloak ourselves in the doctrine of stare 
decisis,'' which is the rule that judges should follow the settled law. 
That is the basic concept of upholding the law, interpreting law, stare 
decisis, following the law which currently exists.
  She wrote a dissent urging the California Supreme Court, saying we 
cannot simply cloak ourselves in that doctrine.
  She again showed her willingness to disregard legal precedent just 
this year. In People v. Robert Young, Justice Brown tried to overturn a 
precedent protecting the rights of racial minorities and women not to 
be eliminated from juries for discriminatory reasons. In a concurring 
opinion not joined by any of her colleagues, she criticized the 
precedent stating that for the purposes of deciding whether a 
prosecuting attorney had discriminated in selecting a jury, black women 
could not be considered a separate group. The California Supreme Court 
had held two decades ago that prosecutors may not exclude jurors solely 
because they are black women.
  Justice Brown argued that this precedent should be overruled because 
she saw no evidentiary basis that black women might be the victims of a 
unique type of group discrimination justifying their designation as a 
cognizable group.
  It is not just Senate Democrats who are troubled about the record of 
Janice Rogers Brown. Conservatives have also expressed concern about 
the judicial activism of Janice Rogers Brown. The conservative 
publication National Review had this to say:

       Janice Rogers Brown . . . has said that judicial activism 
     is not troubling per se; what matters is the ``worldview'' of 
     the judicial activist. If a liberal nominee to the courts 
     said similar things, conservatives would make short work 
     of her.

  Even conservative columnist George Will has said that Janice Rogers 
Brown is out of the mainstream.
  In the past, some members of the press, and even some in Congress, 
have accused us of bias when we raise questions about a nominee. That 
is nonsense. Justice Brown has received the same treatment as other 
nominees. We have asked about her record, looked at her statements, and 
reviewed her opinions. We have raised questions when her record cast 
doubt on her commitment to the rule of law.
  During the recent debate on judicial nominees, almost all of us, 
Republicans and Democrats, have emphasized that we want an independent 
judiciary. If that is truly what we believe, we must vote no on the 
nomination of Janice Rogers Brown. She opposes many of our society's 
most basic values shared by both Republicans and Democrats.
  Throughout its history, America has embraced the ideals of fairness, 
opportunity, and justice. We all believe our laws are there to help 
ensure everyone can share in the American dream and that everyone 
should be free from discrimination. Janice Rogers Brown has expressed 
hostility to some of the protections most important to the American 
people, including those that protect workers, civil rights, and the 
environment. We believe that judges should be impartial, not beholden 
to powerful corporate interests. If we believe in these basic 
protections, it makes no sense to confirm a judge who would undermine 
them and turn back the clock on many of our most basic rights.
  The Senate's role in confirming judges to the Federal courts is one 
of our most important responsibilities under the Constitution. We count 
on Federal judges to be openminded, fair, and respect the rule of law. 
Despite what Justice Brown thinks, laws passed by Congress to give 
Government a role in protecting the environment, immigrants, workers, 
consumers, public health and safety, have helped to make America a 
stronger, better, and more fair country. A nominee so deeply hostile to 
so many basic laws does not deserve to be appointed to such an 
important Federal court.
  Last month, we celebrated the 51st anniversary of the Supreme Court's 
landmark decision in Brown v. Board of Education. Nothing can be a more 
important reminder of the role of our courts in upholding individual 
rights. In confirming Federal judges, we must ensure that they will 
uphold the progress our country has made in so many areas, especially 
in civil rights.
  Justice Brown's record and her many intemperate statements give me no 
confidence that she will do so, and I urge my colleagues to vote 
against her nomination.
  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. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Coleman). Without objection, it is so 
ordered.