[Congressional Record Volume 151, Number 74 (Tuesday, June 7, 2005)]
[Senate]
[Pages S6135-S6143]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Birth Control

  Mr. DURBIN. Mr. President, today is a very important day in American 
history. On June 7, 1965, 40 years ago today, the U.S. Supreme Court 
struck down a Connecticut law making it a crime to use or prescribe any 
form of birth control or even to give advice about birth control. Forty 
years ago it was a crime to prescribe any form of birth control in the 
State of Connecticut, or to use it, or to give advice about it: 40 
years ago.
  It is hard to imagine, isn't it? Even married couples in Connecticut 
could be convicted of a crime, fined, and sentenced to up to a year in 
prison for using forms of birth control. Doctors who prescribed 
contraceptives, pharmacists who filled the prescriptions, even people 
who simply provided advice about birth control, could be charged with 
aiding and abetting a crime, fined, and sent to prison for up to a 
year.
  But 40 years ago today, just across the street, by a vote of 7 to 2, 
the Supreme Court struck down the Connecticut law. The case was called 
Griswold v. Connecticut, a famous case. The Court's ruling held for the 
first time in our Nation's history that the Constitution guarantees all 
Americans the right to privacy in family planning decisions. Such 
decisions were so intensely personal, their consequences so profound, 
the Court said the State, the Government, may not intrude, it may not 
impose its will upon others.
  You can search our Constitution, every single word of it, as short a 
document as it is, and never find the word ``privacy'' in this 
document. Yet the Supreme Court said they believed the concept of our 
privacy was built into our rights, our individual rights and liberties.
  I referred briefly to this landmark ruling earlier today in remarks 
opposing the nomination of Janice Rogers Brown to serve as a Federal 
circuit court judge in the District of Columbia. That nomination is 
before the Senate at this moment. It is for a lifetime appointment. 
Janice Rogers Brown is a justice in the California Supreme Court who 
has stated explicitly her own personal philosophy, her own judicial 
philosophy, and it runs counter to many of the concepts and values I 
will be discussing as part of this commemoration of the Griswold 
decision.
  I am glad there is a bipartisan resolution sponsored by my colleague 
from Illinois, Senator Barack Obama, and Senator Olympia Snowe of 
Maine, calling on the Senate to celebrate the 40th anniversary of the 
Griswold decision. In that resolution, my two colleagues, one Democrat, 
one Republican, ask the Senate to renew its commitment to make sure 
that all women, including poor women, have access to affordable, 
reliable, safe family planning.
  Right at the heart of the Griswold decision, the right to make the 
most intimate personal decisions about our lives in private, without 
Government

[[Page S6136]]

interference, we find the foundation for future decisions that expanded 
reproductive rights. In 1972, in Eisenstadt v. Baird, the Supreme Court 
granted unmarried people in America access to family planning and 
contraception--1972--and, in 1973, the famous case, Roe v. Wade, a 7-
to-2 decision by the Supreme Court said that women have a fundamental 
right to decide whether to continue a pregnancy, depending on the state 
of the pregnancy. Supreme Court Justice Harry Blackmun was nominated to 
serve on the Supreme Court by Richard Nixon--obviously a Republican 
President. Justice Blackmun had been on the Court less than a year and 
a half when he was assigned to write the majority opinion in Roe v. 
Wade.
  There is a brilliant new biography called ``Becoming Justice 
Blackmun'' by Linda Greenhouse. I finished it and recommend it to my 
colleagues. Justice Blackmun served on the Court at several different 
levels and kept copious notes. From those notes, which were donated, 
they have derived this biography, which I recommend to anyone, 
regardless of your political background, to understand what happens 
behind those closed doors at the Supreme Court.
  Justice Blackmun revealed in this book how he struggled with the 
assignment of writing the majority opinion on Roe v. Wade. You see, he 
had been the general counsel for the Mayo Clinic, one of the most 
outstanding hospitals in America, which happens to be in the State of 
our Presiding Officer, Minnesota, in Rochester. So Justice Blackmun 
left Washington and went back to the library of the Mayo Clinic as he 
wrote this decision. He worked for long periods of time, plowing 
through books and articles on the whole question of abortion. He 
listened to a lot of people, including his own daughter, who dropped 
out of college in her sophomore year after becoming pregnant.
  In his notes for the Roe decision, Justice Blackmun made two 
predictions. Here is what he said. The Court will be excoriated at 
first for its decision. Then, he went on to say, there will be an 
unsettled period for a while as States brought their laws into 
compliance with the Roe v. Wade decision.
  The first prediction proved accurate; the second, overly optimistic. 
Thirty-two years after the Roe decision, 40 years after the Griswold 
decision, America today remains unsettled, not only about reproductive 
rights, but about many other fundamental matters of conscience as well. 
We are struggling today with a question that is as old as our democracy 
itself: What is the appropriate, what is the proper relationship 
between personal religious belief and public policy? How many battles, 
how many debates do we struggle through that go to that single issue? 
When should one group in America be able to impose its own moral code 
on the rest of society?

  It is worth remembering that the Griswold decision overturned 
Connecticut's version of a Federal law called the Comstock Act. In 20 
years on Capitol Hill, I have never heard anyone refer to the Comstock 
Act. Listen to the history. This law was named after its author, 
Anthony Comstock, a morals crusader and a zealot anti-abortion 
advocate.
  In 1868, Anthony Comstock was the driving force behind a State anti-
obscenity law in New York. In 1873, he brought his crusade to 
Washington. He lobbied Congress to pass a Federal law making it a crime 
to advertise or mail not only ``every lewd, lascivious, or filthy book, 
pamphlet, picture, paper, letter, writing, print, or other publication 
of an indecent character'' but also any information ``for preventing 
conception or producing abortion.''
  Congress passed the Comstock law unanimously, with little debate. It 
then commissioned--this is something I find almost hard to believe--it 
commissioned Anthony Comstock as a special agent of the U.S. Post 
Office, gave him the power under the law to define what should be 
banned in America, and also vested in Mr. Comstock the power of arrest 
and gave him a huge travel budget. Imagine that: Mr. Comstock spent the 
next 30 years crisscrossing America, enforcing his law as he saw fit.
  Two years before he died in 1915, Anthony Comstock bragged that he 
had been personally responsible for the criminal conviction of enough 
people to fill a 61-car passenger train. He prosecuted Margaret Sanger, 
the family planning pioneer, on eight counts of obscenity because she 
published articles on birth control. Druggists were punished and 
criminalized for giving out information to Americans about family 
planning and contraception. Publishers revised their texts and books so 
as to avoid the wrath of Mr. Comstock and his law, deleting banned 
words such as ``pregnant,'' and Americans lived with his censorship of 
the mail.
  The Irish playwright George Bernard Shaw dismissed the Comstock Act 
as ``a standing joke at the expense of the United States.'' There was 
nothing funny about the Comstock Act, nothing funny to those who were 
forced by the law to conform with Anthony Comstock's rigid personal 
moral code. The penalty for violating the Comstock Act was up to 5 
years in prison at hard labor and a fine of up to $2,000. For every 
victim who was prosecuted, there were untold others whose lives, 
health, and family suffered as a result of being denied basic 
information about family planning.
  Linn Duvall Harwell is one of those who suffered. Miss Harwell now 
lives in New Hampshire. She is 82 years old. In 1929, when she was 6 
years old, her mother, who was then 34 and pregnant for the eighth 
time, lost her life. She tried to abort her own pregnancy using 
knitting needles and bled to death, leaving behind a husband and five 
small children. Linn Duvall Harwell has spent her life trying to spare 
other women her mother's fate by protecting women's right to safe and 
legal contraception and abortion.
  In 1958, Linn Harwell moved to Connecticut. A woman at her church 
asked her to volunteer for Planned Parenthood. She and other young 
mothers were trained in medical understanding of birth control by 
Estelle Griswold, the director of Planned Parenthood in Connecticut, 
and Charles Lee Buxton, the league's medical director. These were the 
two people who brought the lawsuit that later became the Griswold case 
before the Supreme Court. Years before the Court struck down 
Connecticut's Comstock law, Linn Duvall Harwell defied the law to teach 
poor women in housing projects about birth control and family planning.
  Yesterday, the Chicago Sun-Times carried an article written by Miss 
Harwell about her life's work and the renewed threats today to the 
rights identified in Griswold and Roe. In her op-ed, Miss Harwell 
recalled a woman she met in 1968 named Rosie. Rosie was 32 years old. 
She and her husband, a short-order cook, were the parents of 11 
children.

  Miss Harwell wrote:

       By the time I met Rosie and her family, I could not help 
     her, for she had so many children already. She and her family 
     were imprisoned in poverty because she was unable to access 
     the preventive medicine that I easily obtained.

  She added:

       The Comstock law denied health care to millions of Rosies 
     because of religious bigotry, legalized injustice and 
     ignorance.

  Today, it is estimated that 95 percent of American women will use 
birth control during their childbearing years. Reliable birth control 
is now a critical part of preventive health care for women. And Roe, 
although it has been weakened, is still the law of the land.
  The widespread use of birth control has helped reduce maternal and 
infant mortality by an astonishing two-thirds in the last 40 years. 
Since Griswold, we have reduced infant and maternal mortality in 
America by two-thirds. In 1999, the U.S. Centers for Disease Control 
and Prevention included family planning on the list of ``Ten Great 
Public Health Achievements in the 20th Century.''
  But Comstockery seems to be making a return. You can see it in 
efforts to impose gag rules on doctors and other measures designed to 
make it harder for women to get information and services related to 
family planning and abortion. You can see it in the stories of women 
who are harassed by pharmacists when they attempt to fill prescriptions 
for contraceptives--in some cases, even after these women have been 
victims of sexual assault.
  A chill wind blows for reproductive rights and possibly other issues 
of conscience as well. You can hear that wind in the rhetoric of 
extremists who rail

[[Page S6137]]

about the ``culture war'' in America and misrepresent legitimate 
political debate as attacks on people of faith.
  We heard the chill wind of religious intolerance in some of the sad 
debate over the tragedy of Terri Schiavo. We heard it in the dangerous, 
vitriolic condemnations of judges, like George Greer, the judge in the 
Schiavo case, who dared to enforce the law as he believed the 
Constitution required.
  We can hear that chill wind of religious and social intolerance today 
in the debate over stem cell research. Once again, as with the Comstock 
laws, a passionate group who sees itself as the moral guardians of 
America would use the power of our Government to deny life-saving 
medical care to those who need it. They believe that a cell blastocyst 
deserves the same legal standing and protections as a full-grown child 
or adult suffering from Parkinson's or diabetes or terrible injury to 
their spinal cords. I respect their opinion. I respect their religious 
beliefs. In most cases, I don't share them. Neither do most Americans. 
I don't believe this vocal minority, no matter how well intentioned 
they may be, no matter how moral they believe themselves to be, should 
have a veto power over medical research that offers apparently 
unlimited potential to heal broken bodies and minds and save lives.
  Will our courts continue to recognize the constitutional right to 
privacy on family planning and other profoundly personal issues? Or 
will we fill the Federal bench with judicial activists who see 
themselves as soldiers in a cultural war, who want to put their own 
agendas ahead of the Constitution? That is one of the questions that is 
at the heart of the debate on the Federal judges.
  The filibuster debate is not about old Senate rules. It is about 
whether self-described cultural warriors can use our Government to 
impose their personal moral agenda on America.
  In April, a group of organizations held a televised rally to condemn 
the Senate filibuster rule as a weapon against people of faith. They 
called it ``Justice Sunday.'' That day, Janice Rogers Brown, the 
nominee now before the Senate, gave a speech in which she argued that 
``people of faith are embroiled in a war against secular humanists.'' 
According to newspaper accounts, she went on to say:

       [T]here seems to have been no time since the Civil War that 
     this country was so bitterly divided. It's not a shooting 
     war, but it's a war.

  Mr. President, Americans are not at war with one another. We are at 
war in Afghanistan and Iraq, wars, sadly, fueled by religious extremism 
in many respects. Expressing honest, fundamental differences of opinion 
on political and social questions here at home is not an act of war. It 
is an act of democracy. It is our democratic process and our 
Constitution at work.
  I respect the right of every person to express his or her beliefs 
about religion or anything else. That is part of the beauty of being a 
citizen in this great Nation. But we cannot allow the beliefs of a 
majority, or even a vocal minority, to determine moral choices for 
every American. As the Supreme Court ruled so wisely 40 years ago, 
there are decisions that are so intensely private that the Government 
has no right to intrude.
  Soon I hope we take up the issue which the House considered just 
several days ago on stem cell research. It strikes me as strange, maybe 
unfair, that some believe we should oppose in vitro fertilization in 
every circumstance. I have friends of my family, friends for years, who 
have spent small fortunes in the hopes that a mother and father who 
cannot conceive by natural means can use this process to have a child 
whom they will rear and love all of their lives. One of my friends has 
spent $80,000 in two separate, thank goodness successful, efforts, and 
she has two beautiful children to show for it.
  I cannot imagine why that is an immoral act, when a husband and wife 
will go to those extremes to bring a life into this world that they 
will love and nurture. But we know, just as in normal conception, there 
will be, during the process, some of the fertilized eggs that will not 
lodge in a mother's womb and lead to human life. That is the natural 
thing that occurs.
  The same thing happens during in vitro fertilization. If they are 
successful in creating this fertilized egg, and then implanting it in a 
woman's womb so she can have a baby, it is a miracle, but as part of 
that miracle there will be some of these fertilized eggs which cannot 
be used.
  So the question before us in stem cell research is very clear: Should 
stem cells from blastocysts be used to save others' lives, to prevent 
disease, to give someone hope and a future? That is what it is about. 
There are some who say no, some who would say we should not allow in 
vitro fertilization, and others who say, if you allow it, you should 
never allow those discarded blastocysts to be used for medical 
research.
  The position of the Bush administration is close to that. The 
President, in August of 2001, said he would approve certain stem cell 
lines being used for research but no others. Well, it turns out those 
stem cell lines were very limited in their number and quality, and 
scientists and medical researchers have told us that the President's 
approach is not going to give us the opportunity we need to develop 
these stem cells into cures for diseases. So many of us believe we 
should move forward.
  We should have strict rules against cloning. I do not know of a 
single Member of Congress, of either political party, who supports 
human cloning. We are all opposed to that. It should be condemned, and 
we should have strict ethical guidelines on the use of these stem cells 
so that they are used legitimately for research, not for profit or 
commercialization, but legitimately used for research to try to find 
the cures to these vexing diseases.
  Many of us believe that this is as pro-life as it gets. If you can 
take stem cells that would be otherwise discarded and never used for 
any purpose and use them for the purpose of giving a youngster who has 
to inject with insulin three times a day a chance to be rid of 
diabetes, if you can use it for a person afflicted in their forties or 
fifties with Parkinson's disease, which is a progressively degenerative 
disease in most instances, if you can use it to try to regenerate the 
spinal column and all the things that are necessary so someone can walk 
again after a spinal cord injury--how in the world can that be wrong?
  That strikes me as promoting life. Yet some will come to the floor, 
even threatening a filibuster, saying that we cannot do this because it 
violates their personal moral and religious beliefs. Well, I understand 
that. And that is how they should vote. But to stop the rest of the 
Nation--because of their personal moral and religious beliefs--from 
this type of medical research seems to me to be counterproductive, if 
you are truly committed to life and the health of those who surround 
us.
  Forty years ago, the decision was made across the street that there 
are certain elements of privacy, there are certain elements of personal 
decisions made by individuals and families which the State, the 
Government cannot overrule because of anyone's personal religious, 
moral belief. They said that privacy is critically important in 
America. Those private decisions should be protected.
  Every nominee for the Supreme Court I have heard in recent times has 
faced a Judiciary Committee question from some member, Democrat or 
Republican: Do you still agree with the Griswold v. Connecticut 
decision? Do you still believe that, even though this Constitution does 
not include the word ``privacy,'' that is part of what we have as 
Americans as part of our individual rights and liberties? The only one 
who tried to, I guess, split the difference and find some way to argue 
around it was Robert Bork. His nomination was ill-fated after he made 
some of those statements.
  I believe most Americans feel we should be personally responsible, 
that we should be allowed to have our own personal religious beliefs, 
but they also think we should stay away from the Government imposing 
religious beliefs on one group or the other. That is what happened with 
the Comstock laws. That is what led to the laws in Connecticut, which 
were stricken in Griswold. Sadly, that is part of the debate today when 
it comes to stem cell research.

  I am urging Senator Frist, a medical doctor, one I greatly respect, 
to bring this bill up and bring it up quickly. I know there is a 
feeling by the White

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House, and maybe even by some in Congress, that we should avoid this 
stem cell research debate. But when you think of the millions of 
Americans and their families who are counting on us to move medical 
research forward, is there anything more important on our political 
agenda?
  I sincerely hope President Bush, who made an exception for some stem 
cell lines for research, will understand that you cannot take an 
absolute position on this issue. It is a tough issue. It is one where 
we should draw good, ethical guidelines for the use of this research, 
but not prohibit it, not close the door to this research and the cures 
that could emanate from it. That, I think, would be a lesson well 
learned, a lesson consistent with the decision made by the Supreme 
Court 40 years ago today.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I would like to get us back on the 
topic at hand. It is a topic that has been denied for some period of 
time. It is the Honorable Janice Rogers Brown nomination to the U.S. 
Court of Appeals for the DC Circuit. ``Justice delayed is justice 
denied'' is an old saying under the law. This lady has been delayed a 
long time. It is time to get this nomination through.
  I am glad to see the cloture vote move us forward. She is going to be 
now approved, I believe, by a majority vote and a majority opinion. And 
I think if the country had to vote on Janice Rogers Brown, it would be 
a 90-plus percent vote for this lady, given her background, given her 
judicial expertise, given her demeanor, given her nature.
  I think the country would look at this lady, whom I have a picture of 
here, and say: That is the type of person I want on the bench. This is 
a good, honorable person, with a great heart, a well-trained mind, who 
is thoughtful, with great experience. This is the type of person we 
ought to have on the bench. Yet we have just heard litany after litany 
of excuses, the dissecting of cases that you try to then parse to say 
she should not be on the bench for whatever reason.
  I want to go through some of what has been stated previously. I want 
to go through, again, her background to get us back on topic. And then 
I want to go through some of the specifics.
  She is currently serving as an associate justice on the California 
Supreme Court. She has held that position since 1996. She is the first 
African-American woman to serve on the State's highest court. She was 
retained with 76 percent of the vote in the last election. Certainly, 
that does not seem to be the sort of extreme case anyone can come up 
with; that 76 percent of Californians think she should be retained on 
the court. If she is so extreme, if she is so off the mark, if she is 
so out of the mainstream, why, in California, wasn't she voted off the 
bench?
  Why didn't at least 24 percent of Californians or more than 24 
percent vote her off the bench? Why didn't she have a much closer 
election than that? Where is the beef, an old advertising phrase?
  In 2002, Justice Brown's colleagues relied on her to write the 
majority opinion for the court more times than any other justice. Prior 
to appointment and confirmation to the California Supreme Court, 
Justice Brown served from 1994 to 1996 as an associate justice on the 
Third District Court of Appeals, an intermediate State appellate court.
  Justice Brown enjoys bipartisan support from those in California who 
know her best. A bipartisan group of 15 California law professors has 
written to the Senate Judiciary Committee in support of Justice Brown. 
The letter notes that:

       We know Justice Brown to be a person of high integrity, 
     intelligence, unquestioned integrity, and evenhandedness. 
     Since we have differing political beliefs and perspectives, 
     Democratic, Republican and Independent, we wish especially to 
     emphasize what we believe is Justice Brown's strongest 
     credential for appointment on the D.C. Circuit Court: her 
     open-minded and thorough appraisal of legal argumentation--
     even when her personal views may conflict with those 
     arguments.

  This is a bipartisan group that says she is open-minded and thorough 
in her appraisal of legal arguments.
  A bipartisan group of Justice Brown's current and former judicial 
colleagues has also written a letter 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 very hard working. We know that she is a 
     jurist who applies the law without favor, without bias and 
     with an even hand.

  This doesn't sound like the same lady who is being discussed on this 
floor by some of my colleagues on the other side.
  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 jurist 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.

  Regis Lane, director of Minorities in Law Enforcement, a coalition of 
ethnic minority law enforcement officers in California, wrote:

       We recommend the confirmation of Justice Brown based on her 
     broad range of experience, personal integrity, good standing 
     in the community, and dedication to public service . . . In 
     many conversations with Justice Brown, I have discovered that 
     she is very passionate about the plight of racial minorities 
     in America, based on her upbringing in the south. Justice 
     Brown's views that all individuals who desire the American 
     dream regardless of their race or creed can and should 
     succeed in this country, are consistent with [that group's] 
     mission to ensure brighter futures for disadvantaged youth of 
     color.

  These are some of the people who know her the best. These are the 
statements they make about her. This is why she should be on the DC 
appellate court.
  Justice Brown is an outstanding and highly qualified candidate as 
evidenced by her background, credentials, and training. This has been 
covered and covered. But she is a sharecropper's daughter, born in 
Greenville, AL, in 1949. During her childhood she attended segregated 
schools, came of age in the midst of Jim Crow policies in the South. 
She grew up listening to her grandmother's stories about NAACP lawyer 
Fred Gray, who defended Dr. Martin Luther King, Jr., and Rosa Parks. 
Her experience as a child of the South motivated her desire to be a 
lawyer. Her family moved to Sacramento, CA, when Justice Brown was in 
her teens. She later received a B.A. in economics from California State 
in Sacramento in 1974, and her J.D. from UCLA School of Law in 1977. 
She also received honorary law degrees from Pepperdine University Law 
School, Catholic University, and Southwestern University School of Law.
  She has dedicated all but 2 years of her 26-year legal career to 
public service. For only 2 years has she not been in public service, 24 
years of public service. Where is the person who is out of the 
mainstream? Where is the person who is irrational? Where is the person 
who doesn't hold or have the judicial temperament or doesn't have the 
intellect or the open-mindedness to be a judge in all of this? She has 
dedicated most of her life, 24 years, to public service.
  Prior to more than 8 years as a judge in State courts, Justice Brown 
served from 1991 to 1994 as legal affairs secretary to California 
Governor Pete Wilson where she provided legal advice on litigation, 
legislation, and policy matters. From 1987 to 1990, she served as 
deputy secretary and general counsel to the California Business, 
Transportation, and Housing Agency where she supervised the State 
banking, real estate, corporations, thrift, and insurance departments.
  From 1972 to 1987, she was deputy attorney general of the Office of 
the California Attorney General where she prepared briefs and 
participated in oral arguments on behalf of the State in criminal 
appeals, prosecuted criminal cases, and litigated a variety of civil 
issues. She began her legal career in 1977, when she served 2 years as 
deputy legislative counsel in the California Legislative Counsel 
Bureau. She has a broad base of experience from which to

[[Page S6139]]

draw to be an excellent person to sit on the Federal appellate court 
bench.
  She has participated in a variety of statewide and community 
organizations dedicated to improving the quality of life for all 
citizens of California. Justice Brown has served as a member of the 
California Commission on the Status of African-American Males--the 
commission was chaired by now-U.S. Representative Barbara Lee--and made 
recommendations on how to address inequalities in the treatment of 
African-American males in employment, business development, the 
criminal justice, and health care systems.
  She is a member of the Governor's Child Support Task Force, which 
reviewed and made recommendations on how to improve California's child 
support enforcement laws. She serves as a member of the Community 
Learning Advisory Board of the Rio Americano High School and developed 
the Academia Civitas Program to provide government service internships 
to high school students in Sacramento. She has also assisted in the 
development of a curriculum to teach civics and reinforce the values of 
public service.
  She has volunteered time with the Center for Law-Related Education, a 
program that uses moot courts and mock trials to teach high school 
students how to solve everyday problems. She has taught Sunday school 
class at Cordova Church of Christ for more than 10 years. That is 
Justice Janice Rogers Brown. Those are the facts. That is who she 
actually is.
  So why has it taken that long a period of time for us to be able to 
get her to the floor? Why is there such consternation about her 
becoming a DC appellate court judge? Why have we spent years to get her 
to the point where we will vote on--I would love to see it today, but 
at least this week--her approval to the DC appellate court bench? I 
think it goes to the fact that she is a lady, nominated by President 
Bush, who will strictly construe the Constitution, stay within the 
bounds of the document, not try to write new opinion as to a new 
constitutional right or a new issue that is not within the Constitution 
or not within the law. She is what lawyers would call a strict 
constructionist. She says if the law says this--and it was passed to 
say that--that is what we enforce, if that is what the Constitution 
says.
  It is not the living, breathing document of let's try to create 
another right or privilege here and take three or four of the 
amendments to the Constitution, provisions of the Constitution, frame 
them together, and then let's find a new right in the Constitution 
because we think this is good for the country. If it is a change to the 
Constitution that needs to happen, then it should happen. And it should 
go through this body with a two-thirds vote. It should go through the 
House with a two-thirds vote. It should go to the State legislatures 
for a three-fourths vote. It should not be a majority opinion of a 
bench somewhere.
  She says she will stay within the confines of the law. That is what 
the President is trying to nominate, judges who will stay strict 
constructionists within the confines of the law and be what judges 
should be, interpreters of the law, enforcers of the Constitution as it 
is written, not as they wish it were written. That is what this 
nomination is about.
  Others want to see a court that will expand and look and read 
different things in, even if it doesn't pass through this body or 
doesn't pass through the legislature or isn't signed into law by the 
President. We really are at a point of what it is that the judiciary is 
to be about in America. You are seeing the face of somebody who is a 
strict constructionist, saying that this is what it is about.
  The judiciary has a role. It has a constitutional role. It is an 
extraordinarily important role. But it is defined and it is set. She 
believes it should stay within. That is why we have had so much trouble 
with so many of these judicial nominations.
  During the first 4 years of the Presidency of George W. Bush, the 
Senate accumulated the worst circuit court confirmation record in 
modern times, thanks to partisan obstruction. Only 35 of President 
Bush's 52 circuit court nominees were confirmed, a confirmation rate of 
67 percent. To give you a comparison on that:
  People have said that is not so low; we approved a number of these 
lower court judges. But let's take President Johnson's term in office. 
There was a Democrat Senate and a Democrat President. What was his 
circuit court nomination rate? It was 95 percent.
  President Bush: Republican Senate, Republican Presidency, 67 percent.
  What about President Carter? Democratic President, Democratic Senate, 
and 93 percent of his circuit court nominees were approved.
  President Bush: 67 percent.
  What has taken place is a filibuster of good people, such as Janice 
Rogers Brown, who has served honorably most of her professional career 
in public service but does believe there are confines within which they 
rule. It is in the Constitution or it is not; it is in the law or it is 
not; it is constitutional or it is not. It is not what I wish it were, 
it is what is actually there. It is what the precedents have said that 
matters.
  The average American may not be familiar with Senate rules on cloture 
or on the unprecedented low confirmation rate of President Bush's 
circuit court nominees, but the average American can tell you one 
thing: that the Constitution and common sense require the Government to 
be accountable to the people for its actions. This is especially the 
case of what we do in the House and the Senate as we move forward in 
this country.
  I want to address some of the items that have been coming up in some 
of these debates. Various Members have raised specific points, and I 
want to address a few of those points.
  Certain liberal special interest groups have tried to distort Janice 
Rogers Brown's decision when she served on the State court of appeals 
in the case of Sinclair Paint Company v. Board of Equalization. They 
claimed she was insensitive to the legislature's desire to protect 
children from lead poisoning.
  What was really at issue in the case was the respect for the will of 
the California voters who wanted to make it more difficult for the 
California Legislature to raise taxes.
  California proposition 13--people remember that--enacted in June of 
1978, requires a two-thirds vote of the legislature to increase State 
taxes. That is what proposition 13 did. In 1991, the California 
Legislature voted by a simple majority to assess fees on manufacturers 
engaged in commerce involving products containing lead in order to fund 
a program to provide education, screening, and medical services for 
children at risk for lead poisoning. Justice Brown simply held for a 
unanimous court of appeals--a unanimous court of appeals--in affirming 
the judgment of the trial court that the assessment constituted a tax 
within the meaning of proposition 13 and thus had to be passed by a 
two-thirds vote.
  That seems to be pretty basic and pretty common sense and not about 
her insensitivity to cases involving lead poisoning but simply what her 
role is under the law and her role as a jurist.
  Under applicable California case law where payment is exacted solely 
for revenue purposes and its payment gives the right to carry on the 
business without any further conditions, the payment constitutes a tax. 
The Childhood Lead Poisoning Protection Act did not require the 
plaintiff to comply with any other conditions. It was merely required 
to pay its share of the program cost. Justice Brown reasonably 
concluded the assessment was a tax.
  There are several other cases that have been brought up that I want 
to address.
  Several liberal interest groups have attacked Justice Brown's dissent 
in Aguilar v. Avis Rent-a-Car Systems in which she argued racial 
discrimination in the workplace, even when it rises to the level of 
illegal race discrimination, cannot be prohibited by an injunction 
under the first amendment. I want to talk about this.
  Justice Brown, as I have cited, is the daughter of a sharecropper 
from rural Alabama. She grew up under the shadow of Jim Crow laws. I 
think she understands the lingering effects of racial classification. 
In light of her personal history, the allegation she is insensitive to 
discrimination is absurd.
  Notwithstanding her personal experiences with racism, Judge Brown's 
role as a judge has been to apply the law which she has done faithfully 
and rigorously. As I discussed earlier, it is the

[[Page S6140]]

role of the judge to apply the law and apply the Constitution, not 
rewrite the law the way they wish it were, not to rewrite the 
Constitution the way they think it ought to be, but to apply it in a 
particular case. And this is a case she could have looked at from her 
background and said: I understand this situation. I have been in this 
situation. Yet what does the law itself say?
  Judge Brown's opinions demonstrate her firm commitment to the bedrock 
principle of civil rights. Discrimination on the basis of race is 
illegal, it is immoral, unconstitutional, inherently wrong, and 
destructive of a democratic society. Those are her statements.

  In the Aguilar case, Justice Brown described the defendants' comments 
as disgusting, offensive, and abhorrent, and she voted to permit a 
large damage award under California's fair employment law to stand. Her 
dissent only pertained to an injunction that placed an absolute 
prohibition on speech. This is commonly called a prior restraint which 
most free speech advocates strenuously oppose.
  Justice Brown's opinions demonstrate her firm commitment to the first 
amendment. She cited a long line of Supreme Court cases for the 
proposition that speech cannot be banned simply because it is 
offensive.
  Justice Brown's opinions also demonstrate her commitment to equality 
in the workplace. Justice Mosk and Justice Kennard, considered one of 
the most liberal members of the California Supreme Court, also 
dissented on first amendment grounds.
  Here we see the core of the person, the commitment to the law and to 
the rule of law. Here was something she had experienced, she 
understood, and yet had to say: OK, what does the law actually say, and 
what are the first amendment rights? Then she applied them in the case. 
That is the type of justice who looks at what is their role and what is 
it that they are required to do under the Constitution.
  Judge Brown's opinion was so powerful that it prompted one member of 
the U.S. Supreme Court to take the unusual step of publishing an 
opinion dissenting from the denial of certiorari.
  I find it amazing that the very same liberal outside groups who never 
hesitate to level accusations of censorship, perhaps, against the 
administration or even Congress are attacking Justice Brown for 
standing up for what she interpreted and looked at clearly as a first 
amendment issue which she had to stand by even though she found the 
comments herself so offensive and wrong.
  Justice Brown has been attacked as being insensitive on women's 
issues because she has voted to strike down a State antidiscrimination 
law that provided a contraceptive drug benefit to women. Some have 
claimed her to be hostile to these women's issues.
  What one has to do is look at the actual case, the actual facts, the 
actual law in front of her because her role as a justice is to take the 
law and the facts applied in this particular case, not what she wished 
it was, not what she hoped it would be, not what she thinks it should 
be in a perfect world, but what is it.
  The law involved in the case actually required health and disability 
insurance policies to cover contraceptives. Justice Brown did not vote 
to strike down the law, she simply argued that the law should not be 
applied to force a religious institution--here Catholic Charities of 
Sacramento--to do something that violated its religious beliefs. This 
case was about religious freedom under the first amendment, not about 
gender discrimination or revisiting the right to contraceptives. It is 
about discrimination based on religion, and Justice Brown stood against 
this discrimination. Telling us about this case without saying a word 
about religious freedom on the issue misinforms people totally about 
this particular case and this person.
  Justice Brown has been attacked for rendering opinions that have been 
considered outside the mainstream. These allegations are spurious. As I 
have stated, she has been affirmed by the population, the public voting 
in California, with a 76-percent approval rating. If her opinions are 
so out of the mainstream and so wrong, why weren't more Californians 
than roughly 25 percent concerned about this?
  The flip side of this is that I have never won an election by a 75-
percent margin. I would love to win an election by that margin. This is 
a confirmation election. It is different than what we face in the 
Senate.
  Still, as somebody who has run for elections, when you get up to that 
three-fourths mark, that is really good, standing in front of the 
public and asking them to endorse your status, endorse your position, 
particularly if this allegation were true. If it were true that she is 
way out of the mainstream of public opinion in California and she is 
way out, on a consistent basis, so that her opinions are in the paper 
all the time and they are way out there, contrary to California public 
opinion, would you not think more than 25 percent of Californians would 
say, I am going to vote against confirming this lady?
  I think probably a lot of people would look down the ballot box on 
judges and say, Which ones can I vote against because I am used to 
voting for all of them, particularly if somebody was so out of the 
mainstream on such a consistent basis that she is in the papers all the 
time about being in this dissent or being overruled in this case, that 
there would be some recognition of her and more people would be 
concerned. Yet that is not the case. I submit it is because it is just 
not true. She is not outside the mainstream.
  I believe the criticism is utterly baseless. Among the eight justices 
who served on the California Supreme Court between 1996 and 2003, 
Justice Brown tied with another judge as the author of the second most 
majority opinions for the court. Only the chief justice wrote more 
majority opinions. Now, those are her colleagues on the bench saying: 
We think you are the right person to write this opinion. You are 
expressing the opinion for most of us. You are a hard worker. You are 
intelligent. You are an excellent wordsmith. These are all traits we 
would want in a justice.
  Justice Brown also ranked fourth among the eight justices for the 
number of times she dissented alone. This puts her squarely in the 
middle, certainly not on either fringe in that category. It is wrong 
for Justice Brown's opponents to throw out numbers without offering any 
basis for comparison on her court.
  I wish to talk about a particular case, the case of People v. McKay. 
Justice Brown stood alone among her colleagues in arguing for the 
exclusion of evidence of drug possession that was discovered after the 
defendant, Conrad McKay, was arrested for riding his bicycle the wrong 
way on a residential street. Her dissent is remarkable for its pointed 
suggestion of the possibility that the defendant was a victim of racial 
profiling.
  Justice Brown commented:

       Questions have been raised about the disparate impact of 
     stop-and-search procedures of the California Highway Patrol. 
     The practice is so prevalent, it has a name: ``Driving While 
     Black.''

  This is somebody who is insensitive? I do not think that is the case 
with Justice Brown.
  I will go on and read from the conclusion of her dissent. She added 
the following stirring comments:

       In the spring of 1963, civil rights protests in Birmingham 
     united this country in a new way.

  This is a native of Alabama.

       Seeing peaceful protesters jabbed with cattle prods, held 
     at bay by snarling police dogs, and flattened by powerful 
     streams of water from fire hoses galvanized the nation. 
     Without being constitutional scholars, we understood 
     violence, coercion, and oppression.

  These are the words of Justice Janice Rogers Brown. And I continue:

       We understood what constitutional limits are designed to 
     restrain. We reclaimed our constitutional aspirations. What 
     is happening now is more subtle, more diffuse, and less 
     visible, but it is only a difference in degree. If harm is 
     still being done to people because they are black, or brown, 
     or poor, the oppression is not lessened by the absence of 
     television cameras.
       I do not know Mr. McKay's ethnic background. One thing I 
     would bet on: he was not riding his bike a few doors down 
     from his home in Bel Air, or Brentwood, or Rancho Palos 
     Verdes--places where no resident would be arrested for riding 
     the ``wrong way'' on a bicycle whether he had his driver's 
     license or not. Well . . . it would not get anyone arrested 
     unless he looked like he did not belong in the neighborhood. 
     That is the problem.

  That was her dissenting opinion, a stirring opinion, quoting things 
that in her growing up and in her childhood

[[Page S6141]]

she had witnessed. She is very sensitive on racial issues.
  Last month, Ginger Rutland, who is on the editorial board of the 
Sacramento Bee, wrote this in her newspaper about Justice Brown's 
judicial courage:

       I know Janice Rogers Brown, and she knows me, but we're not 
     friends. The associate justice on the California Supreme 
     Court has never been to my house, and I've never been to 
     hers. Ours is a wary relationship, one that befits a 
     journalist of generally liberal leanings and a public 
     official with a hard-right reputation fiercely targeted by 
     the left. . . . I find myself rooting for Brown. I hope 
     she survives the storm and eventually becomes the first 
     black woman on the nation's highest court.

  In describing Justice Brown's position in the McKay case that I 
quoted Justice Brown earlier, Rutland, the editorialist from the 
Sacramento Bee, says the following:

       Brown was the lone dissenter. What she wrote should give 
     pause to all my friends who dismiss her as an arch 
     conservative bent on rolling back constitutional rights. In 
     the circumstances surrounding McKay's arrest, the only black 
     judge on the State's highest court saw an obvious and grave 
     injustice that her fellow jurists did not. . . . In her 
     dissent, Brown even lashed out at the U.S. Supreme Court 
     and--pay close attention, my liberal friends--criticized an 
     opinion written by its most conservative member, Justice 
     Antonin Scalia, for allowing police to use traffic stops to 
     obliterate the expectation of privacy the Fourth Amendment 
     bestows.

  This is an admitted liberal editorial writer talking about Brown's 
courage.
  This is a lady who is going to do an outstanding job on the DC 
Circuit Court of Appeals. The only tragedy is that she has not been 
there years earlier. The tragedy is that she has been held up because 
she looks at doing her job for what it is, which is staying within the 
Constitution and enforcing it, looking at the law and enforcing it; or 
if it goes against what is in the Constitution, ruling it 
unconstitutional, but not looking at the Constitution as she hoped it 
would be or mixing together a series of ideas in the Constitution and 
finding a new right; or looking at the law and thinking it should be 
this way or that and expanding it that way. This is a person who looks 
at her job as being a judge, in an honorable role, but it is a role 
that has a set to it and a way, and she is upholding that.
  I believe that is really what is at the cornerstone of this debate. 
Unfortunately, we get it mired so often in personalities and 
accusations and hyperbole, comments of a personal nature toward an 
individual that are simply not true, when really what we are talking 
about is the role of courts.
  Courts, like every institution, are people. People are on the courts. 
We have judges who are appointed to the courts, and they have their 
views and they have a way of looking at the Constitution or they have a 
way of looking at various documents or laws. She looks at it as more of 
a strict constructionist. That is an honorable way to look at it. I 
believe it is the right way to look at it. Yet she gets painted with 
all the other sorts of accusations that are simply not based on fact 
but are a disguise for what the real debate is about, which is the role 
of the judiciary in America today.
  We are having a rolling debate about that issue. We are having a lot 
of discussion about that. We are having discussions in various States 
and in the Nation about what is the appropriate role of the judiciary. 
I believe this is a lady who would stand by that role.
  Those are a series of issues. I may visit some others later on, but 
this is a lady who is eminently qualified, will do a wonderful job. I 
support her nomination, and I hope we can get to a strong vote fairly 
soon on it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, this is a debate that is worth having. 
There has been a great deal of discussion about this nominee for the 
lifetime appointment to the Federal bench.
  There is no entitlement, of course, to a lifetime appointment to the 
Federal bench. The Constitution provides how this is done. First, the 
President shall nominate a candidate for a lifetime service on the 
Federal courts, and, second, the Congress shall provide its advice and 
consent, and determine whether to confirm the nominee. So the President 
nominates, sends a name, and the Congress does what is called in the 
Constitution advise and consent, says yes or no.
  In most cases, the Congress says yes. This President, President 
George W. Bush, has sent us 218 names of people he wanted to send to 
the Federal courts for a lifetime. This Congress has said ``yes'' to 
209 of the 218. That is pretty remarkable, when you think about it--209 
out of 218 we have said ``yes.'' There are a few we have delayed and 
held up and have been subject to cloture votes. Some have said they 
haven't gotten a vote. Yes, they have gotten a vote. The procedure on 
the floor, of course, is there is a cloture vote, and they didn't get 
the 60 votes, but 60 votes is what requires consensus in the Senate. It 
has been that way for decades and decades.

  I have voted for the vast, vast majority of the 209 Federal judges 
that the President has nominated, including, incidentally, both of the 
Federal judgeships in North Dakota which were open. Both of which are 
now filled with Republicans. I was pleased to support them. I think 
they are first-rate Federal judges. I am a Democrat. The names that 
came down from the President to fill the two judgeships in North Dakota 
were names of Republicans. I am proud of their service. I testified in 
front of the Judiciary Committee for both of them and introduced both 
of them.
  So the fact is this is not about partisanship. It is about nominating 
good people, nominating people in the mainstream of political thought 
here in this country.
  I take no joy in opposing a nominee, but I do think that if Members 
of the Senate will think carefully about the views of this nominee, 
they will decide that she really ought not be put on the second most 
important court in this country for a lifetime of service. Let me go 
through a few things that this nominee, Janice Rogers Brown, has said.
  Let me say to my colleague who was speaking when I came in, this is 
not innuendo, not argumentative; these are quotes from the nominee. 
Facts are stubborn things. We are all entitled to our own opinions, but 
we are not all entitled to our own set of facts. Let me read the facts, 
and let me read the quotes that come from this nominee.
  This nominee, Janice Rogers Brown, says that the year 1937 was ``the 
triumph of our own socialist revolution.'' Why? In 1937, that is when 
the courts, including the Supreme Court, upheld the constitutionality 
of Social Security and the other major tenets of the New Deal. The 
triumph of socialism? I don't think so. What planet does that sort of 
thinking come from, a ``triumph of socialism''?
  This nominee says that zoning laws are a ``theft'' of property, a 
taking, under the Constitution; therefore, a theft of property. Well, 
we have zoning laws in this country for a reason. Communities decide to 
establish zoning laws so you don't build an auto salvage yard next to a 
church, and then have somebody move in with a porn shop next to a 
school and a massage parlor next to a funeral home. But this nominee 
thinks zoning is a theft of property. It is just unbelievable, it is so 
far outside the mainstream thought.
  Here is what she says about senior citizens in America.

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

  I guess she is talking about maybe Social Security and Medicare. I 
don't know for sure. All I know is that a good many decades ago, before 
there was Social Security and Medicare, fully one-half of all elderly 
in this country lived in poverty.
  Think of that. What a wonderful country this is. This big old planet 
spins around the Sun, we have 6 billion neighbors inhabiting this 
planet called Earth, and we reside in the United States of America. 
What a gift and blessing it is to be here. But think, in 1935, one-half 
of America's elderly, if they were lucky enough to grow old, to age to 
the point where they were called elderly, one-half of them lived in 
poverty. One-half of them lived in poverty. So this country did 
something important, very important. We put together a Social Security 
Program and a Medicare Program. What did this nominee say about that? 
She said:

       Today's senior citizens blithely cannibalize their 
     grandchildren because they have a

[[Page S6142]]

     right to get as much free stuff as the political system will 
     permit them to extract.

  Really? I wish perhaps she could have been with me one evening at the 
end of a meeting in a small town of about 300 people. A woman came up 
to me after the meeting and she grabbed a hold of my elbow. She was 
probably 80 years old. She said: Mr. Senator, can you help me?
  I said I would try.
  Then her chin began to quiver and her eyes welled up with tears and 
she said: I live alone. And she said: My doctor says I have to take 
medicine for my heart disease and diabetes, and I can't afford it. I 
don't have the money. Then she began to get tears in her eyes.
  I wish perhaps Janice Rogers Brown understood something about that. 
She thinks this old lady, this elderly woman, struggling to find a way 
to pay for medicine to keep her alive, is cannibalizing somebody? I 
don't think so. I think it is incredible that someone would say this.
  Now the President wants to put this nominee on the second highest 
court in the land for a lifetime of service.
  She says again:

       We are handing out new rights like lollipops in the 
     dentist's office.

  I guess I never thought the basic rights that we have in this country 
ought to be antithetical to what we believe is most important in 
America. I have traveled over most of this world and been in countries 
where there aren't rights. I have been in a country where, if people 
have the wrong piece of paper in their pocket and they are picked up, 
they are sent to prison for 12 years. I have seen the tyranny of 
dictatorships and the tyranny of communism. I happen to think basic 
rights that exist in this country for the American people are 
critically important; that ``We the people,'' the first three words of 
that document that represents the constitutional framework for this 
country's governance, is not something that ought to be taken lightly.

  Let me read a couple of other things that this nominee has said. She 
was the only member of the California Supreme Court to conclude that 
age discrimination victims should not have the right to sue under 
common law. Age discrimination victims should not have the right to 
sue?
  She was the only member of the California Supreme Court who voted to 
strike down a San Francisco law that provided housing assistance to 
displaced and low-income and disabled people.
  I don't understand the President sending us this nominee. Is it the 
case that this administration really wants to put on the Federal bench 
for a lifetime someone who is opposed to the basic tenets of the New 
Deal that have lifted so many people out of poverty in this country, 
that represents, in many cases, some of the best in this country--
telling old folks that when you reach that retirement age you don't 
have to lay awake at night worrying about whether you are going to be 
able to go to the doctor when you get sick because there will be 
Medicare; or telling people that Social Security will be there when you 
need it--you work, you invest in it, when you retire, you can collect 
it. Do we really want to put someone on this circuit court who believes 
that is a triumph of socialism? I don't think so.
  There is a kind of arrogance here these days that is regrettable. I 
was here in the 1990s, and I watched 60 Americans who were nominated 
for judgeships never even have the courtesy of a day of hearings, let 
alone get to the floor of the Senate for a cloture vote or a vote up or 
down--60 of them. We are not even given the courtesy of a day of 
hearings. The President sends the name down in the 1990s. The majority 
party said, tough luck, we don't intend to do anything about it; you 
will not have a hearing; you will not have a vote. This name will not 
advance.

  We did not do that. This caucus has not done that; in fact, just the 
opposite. Of the 218 names that have been sent to this Congress from 
this President, the Senate has approved 209 of them. Those who did not 
get confirmed had a cloture vote in the Senate. They had a day of 
hearings. They had an opportunity to testify before the Judiciary 
Committee. Their name was brought to the floor. We had cloture votes.
  Now we have Members coming to the Senate on the other side saying, 
look, our policy is, everyone needs an up-or-down vote; not a cloture 
vote, an up-or-down vote. These Members did not hold that view at all 
in the 1990s. In fact, they did exactly the opposite. There are terms 
for that which I shall not use here.
  The fact is, we are proceeding on the Janice Rogers Brown nomination 
because of an agreement made 2 weeks ago. I hope, however, having read 
what I have read about her views on a wide range of issues, that we 
will have sufficient colleagues in the Senate to say to this President, 
this is so far outside the mainstream, we will not approve this 
nominee.
  It is not unusual for a political party to tell its President that 
you cannot pack the court. The members of Thomas Jefferson's own 
political party told Thomas Jefferson that. Members of the political 
party of Franklin Delano Roosevelt did the same thing, in his attempt 
to pack the Court.
  My hope with respect to this nominee is that we will have sufficient 
numbers on the majority side--moderates and others--who will take a 
look at this record and say this is not the kind of record that we 
believe should commend someone for a lifetime of service on the DC 
Circuit. This is not what we should be doing.
  I conclude as I started. I take no joy in coming to the Senate and 
opposing someone. I would rather be here speaking for a proposition, 
speaking for someone. It was Mark Twain who once was asked if he would 
engage in debate. He said, sure, as long as I can take the negative 
time. He was told, we didn't tell you the subject. He said, the 
negative side will take no preparation.
  I am mindful that it is very easy to oppose. Let me say this: On this 
issue, on this nominee, this is not a close call. This is not a close 
call. I wish I could be here to support this nomination. I will not 
support the nomination of someone who believes the elements of that 
which has made this country such a wonderful place in which to work and 
live represents a triumph of socialism. It is not the triumph of 
socialism. It is a reflection of the interests of this country, we the 
people of this country who said we will lift the senior citizens of 
this country out of poverty. And we have done that. We went from 50 
percent in poverty to less than 10 percent in poverty. Why? Because we 
did something important in this country, Social Security and Medicare.
  With respect to environmental issues, with respect to workers' 
rights, with respect to a whole series of issues, this nominee is 
profoundly wrong. She has a record, a long record, an aggressive record 
of activism in support of what are, in my judgment, outdated and 
discredited concepts.
  My hope is that in the remaining hours in this debate--I think we 
will vote on this tomorrow--my hope is there will be sufficient 
moderates on the other side who will understand this record does not 
justify confirmation to the Federal bench for a lifetime. I hope the 
next time I come to the Senate to speak on a judicial nomination, I 
will be able to speak in favor of a nomination that is a strong 
candidate.
  This President has nominated some good people. I mentioned two from 
my State. I will say it again: both Republicans, both terrific people, 
both people I was proud to introduce to the Judiciary Committee and 
proud to support. While we might disagree on some issues, these are 
extraordinary jurists. I am proud they are Federal judges in my State. 
I felt the same way about some of the other nominees.
  But this President has sent us a handful of nominees who do not 
deserve the backing and support of this Congress. It is long past the 
time for this Congress to stand up and speak with an independent voice. 
This Congress is not some sort of subsidiary of the White House. It is 
not an adjunct to the Presidency. This Congress is a separate branch of 
Government under this Constitution. The President nominates but we 
advise and consent. It is up to the Senate to determine whether 
judicial nominees are confirmed or not. My hope is we will make the 
right decision with this nomination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page S6143]]

  Mr. THOMAS. 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. THOMAS. Mr. President, I ask unanimous consent that I be allowed 
to speak for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.