[Congressional Record Volume 151, Number 74 (Tuesday, June 7, 2005)]
[Senate]
[Pages S6143-S6146]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Role of the Federal Government

  Mr. THOMAS. Mr. President, I know it has been a busy day and we are 
very much involved, of course, in moving forward with the judge 
arrangement, as we should be.
  I spent a week in my home State. I guess we always come back with 
different ideas. I spent the whole time talking with people and having 
town meetings and those kinds of things, and in certainly a little 
different atmosphere.
  People see a great deal in the news media about what is happening 
here, but, of course, what they get is what the media is intending for 
them to get, and somehow it is a little bit different. So frankly, 
people are a little impatient that we are not moving forward as much as 
we might. Certainly, we are working hard here, but the fact is, we have 
not moved to many different issues. I believe many of us want to do so.
  I think we have spent an awful lot of time on internal kinds of 
issues that do not mean a lot to people out in the country. I 
understand that. I realize the way things are done here is important to 
us, such as changing procedures and all those things. But folks are 
talking about energy, folks are interested in a highway bill, people 
are interested in health and the cost of health care, such as what you 
do in rural areas with health care. There are a lot of these things 
that are so very important to people on the ground, and here we are 
continuing to talk about how we are going to vote on judges. So they 
get a little impatient. I understand that. So I hope we are in the 
process of doing something about that.
  There is also a great deal of concern, of course, in Government 
spending and the deficit. I certainly share that concern. I have been 
more and more concerned about it as time has gone by. We have Social 
Security before us, about which we need to continue to do something.
  Interestingly enough, the issue that came up most often when I was 
home in Wyoming is the idea of illegal aliens and illegal immigration 
and the great concern about that. I share that concern. Most people 
here do. Of course, we are seeking to do something. But perhaps we need 
to focus on some of those issues a little more.
  I particularly will talk a little bit about spending and about the 
deficit. I think that is one of our most important issues. In relation 
to that, it seems to me we need to get some sort of an idea of what we 
think the role of the Federal Government is. We have kind of gotten in 
the position that for anything that is wanted by anyone, why, let's get 
the Federal Government to do it. Then we have somebody here on the Hill 
who will introduce a bill to do that, and perhaps it has very little 
relationship to what we normally think is the role of the Federal 
Government.
  I think most people would agree with the notion we want to limit the 
size of the Federal Government, that we, in fact, want Government to be 
as close to the people as can be, and that the things that can be done 
at the State level and the county level, the city level, should be done 
there, the things that can be done in the private sector should be done 
there. I would hope we could come up with some kind of general idea, an 
evaluation, of what we think the role of the Federal Government 
specifically should be.
  The other thing I will comment on a little bit is having some kind of 
a system for evaluating programs. We have programs we put into place 
when there is a need. Hopefully, there is a need for them. I think it 
is also apparent that over a period of time that need may change. But 
yet, once a program is in place and people are involved, they build a 
constituency around it. It stays in place without a good look at it to 
see whether it still belongs there.
  These are some of the issues of concern. I think the first step 
toward reducing the $400 billion deficit is eliminating waste. Of 
course, what is waste to one person may not be waste to another. But 
there has to be, again, some definition as to how important things are 
relative to our goals and to assess programs that stay in place because 
they are there or that are not managed as well as they might be. I 
think we have some responsibility to try to ensure that we take a look 
at that issue.
  There are serious problems facing our Nation today, of course. The 
President's budget that he put out proposes eliminating 150 inefficient 
and ineffective Government programs. You can imagine what that is going 
to mean to people who are involved. ``Something in my town? Something 
in my State? We are not going to mess around with that.''
  There needs to be some kind of a relatively nonpolitical idea as to 
how you do that and what the purposes are. Of course, I see some of 
that right now in the military changes that obviously need to be made. 
They are difficult to make. So I hope the administration will pursue 
this idea of setting up some kind of a program--and I am here to 
support it--that evaluates those programs that are in place to see if, 
indeed, they are still as important as they were in the beginning.
  We have to even go further than that, of course, to curb runaway 
spending. I think we can consolidate a number of the duplicative 
programs that are out there and save money and make it more efficient 
in their services. There are organizations that could manage a number 
of programs, each of which now has its own bureaucracy, and to put them 
together to make it efficient. I know you will always have people who 
say: Well, you are taking away jobs. That is not the purpose of 
programs. The purpose of programs is to deliver a service, and to do it 
in a way that is as efficient as it can be.
  Of course, there are programs that should be eliminated. They have 
accomplished what they were there for. We need to have a system. I hope 
and I am interested in helping to put together a program that would do 
that. There is probably some merit in having a termination to a program 
so that after 5 or 10 years, it has to be reevaluated to be extended. 
That is one way of doing it. I don't know if it is the only way. That 
is something we are going to do, and I would like to do some of that.
  The role of the Federal Government, again, if you talk in 
generalities, if you talk to people in terms of philosophy, most would 
say, we want to keep the Federal Government small. How many times do 
you hear people saying: Keep the Federal Government out of my life? Yet 
at the same time we have created this kind of culture where whenever 
anything is needed or wanted, mostly money, then let's get the Federal 
Government to do it.
  If we step back and take a look at it and say: Wait a minute, is this 
the kind of thing the Federal Government should be involved in or is 
this something that could be done more efficiently by a government 
closer to the people, I believe we ought to do that.
  Some lawmakers here believe the Government is the solution to all of 
society's ills. I don't agree with that. I don't believe that. Our role 
in the Federal Government is a limited role. Our role is to provide 
opportunities, not to provide programs for everything.
  Ronald Reagan said: Government is not the solution to our problem. 
Government often is the problem. That is true. That doesn't mean there 
isn't a role. There is a role, an important role. But we need to help 
define that somehow. That vision of limited government has, to a large 
extent, been lost. We need to debate. We need to have some discussion, 
some idea as to what that role is.
  Unfortunately, sometimes the politics of government are are you going 
to do everything for everybody because it is good politics. Politics is 
not our only goal here. Our goal is to limit government, to provide 
services, to provide them efficiently, and to evaluate them as time 
goes by.
  Unfortunately, when a program gets put into place, it becomes 
institutionalized. It is there often without sufficient change. It is a 
real challenge. Something we need to do is to develop a plan, a 
consistent and organized plan to evaluate programs, to determine 
whether they are outdated, to determine whether they are still 
necessary, to determine if they could be done in a

[[Page S6144]]

little different way to be more efficient and more effective.
  Clearly the Federal Government does have a role. It has a role in 
many matters. So our challenge is to determine what the roles are and 
then to set it up so that we are as efficient as can be. I know I am 
talking in generalities, but I believe these are some things that are 
basic to some of the ideas we ought to be talking about and evaluating. 
I sense that doesn't happen very much. We sort of are challenged to see 
how many programs we can get going. We seem to be challenged to see how 
much money we can spend.
  I appreciate what the administration is seeking to do to try and 
reduce some of the spending. That is very difficult. You can see what 
kind of reaction you get cutting back on programs or changing them. Our 
budget group is working on doing some of that. We need to be more 
involved in that.
  As I mentioned, evaluating programs is something we should do. We 
have a constitutional obligation to appropriate hard-earned tax dollars 
in the most efficient manner we possibly can. New government programs 
get institutionalized. They go on forever. So I think there are some 
things we could do that would be important, and that we should.
  There will be some proposals coming from OMB. I intend to seek to 
help put them into place if we can and have a system that deals with 
efficiency, a system that deals with identifying what the proper role 
of the various levels of government is. We will hear the States saying: 
We need more money. That is probably true. But nevertheless, we ought 
to have some other definitions besides where the money will go.
  I hope we have one where we can review some things. I know these are 
general ideas. I have not gotten into the specifics. But from time to 
time, I think we have to look at ourselves and say: How do we deal with 
some of these issues? Clearly, everyone would agree we have to do 
something about spending. We have to do something about the deficit. We 
have to look at the future as to how we are going to make this thing 
work.
  You can take a look at Social Security. In about 10 years, we will 
have to take trillions of dollars out of the general fund to put them 
back where they belong in the Social Security fund. That is going to be 
very difficult. It is a tremendous amount of money. But that is what we 
have done, of course, and it is reasonable because that money has to be 
drawing interest and it is drawing interest. But those things are going 
to be more and more difficult.
  We are seeking to try and review and renew the Tax Code so it can be 
simpler and more efficient and hopefully provide better opportunities 
for the economy to grow and have incentives for growing by being able 
to put that money into developing jobs as opposed to coming into the 
Federal Government.
  These are real challenges, but they are worthwhile: the challenge of 
evaluating government programs to see if they are still important, to 
see if they are still being done the way they were designed to meet the 
needs they were designed to meet when they were first there, to do 
something about the idea of controlling spending and the size of the 
Federal Government so that doesn't continue to expand into every area 
that is open. We ought to take a look at all the programs that are in 
place, that we are talking about putting in place, all the bills that 
are brought in here, and see what a wide breadth of subjects we talk 
about. Some you could make a pretty good case are not within the area 
of normal recognition of Federal Government activity.
  I hope the role of the Federal Government is something we could talk 
about. We ought to talk about it with the State leadership and get a 
little clearer idea of how we define these things and get some kind of 
a measurement against these roles.
  There are lots of challenges. I will be happy when we can move on 
through this judicial debate. It is very important, but we should not 
be spending all this much time on it in terms of how we do these things 
and get on with the things that have an impact on what we are doing out 
in the country.
  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.
  Mr. BROWNBACK. 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. BROWNBACK. Mr. President, I want to take up the discussion of 
Justice Janice Rogers Brown and her qualifications for serving on the 
DC Circuit Court of Appeals and some of the accusations and charges 
that have been brought against her. There have been a number that have 
been put forth. I had a lengthy discussion earlier about what I think 
this is really about, that it is about her being a strict 
constructionist, wanting to stay within the confines of the 
Constitution and the law and her interpretation rather than an 
expansive reading of it. I think that is really what is at the root of 
this, but people bring forth all sorts of allegations and charges, and 
I want to address some of them.
  One of them is on a particular case, the Lochner case. As it might be 
described, this is getting into the weeds and details of some items, 
but I think it is meritorious to raise. She has been charged by some of 
our colleagues that in the Santa Monica Beach v. Superior Court case 
that Justice Brown called the demise of the Lochner decision, which was 
overruled in 1937, the revolution of 1937, and ``she wants to undo'' 
this overruling. A couple of my colleagues on the other side of the 
aisle said that Justice Brown believes in Lochner and wants the New 
Deal undone. That is the charge against Janice Rogers Brown. I want to 
talk about that particular charge because the opposite is what is 
actually true. This is the opposite of what Justice Brown said, and I 
want to go through her words of what she said to refute that particular 
case.
  They are accusing her of wanting to undo the New Deal and the 
legislation that has been in place surrounding and regarding the New 
Deal.
  In the Santa Monica case, which is the case that is cited for her 
opinion that she wants to undo the New Deal legislation of Roosevelt--
FDR--she clearly criticized Lochner as wrongly decided:

       [T]he Lochner court was justly criticized for using the due 
     process clause as though it provided a blank check to alter 
     the meaning of the Constitution as written.

  It was in the very next sentence that Justice Brown mentioned 
``revolution of 1937.'' In context, it is clear that Brown felt the end 
of Lochner was a good thing, that the end of Lochner was a good thing, 
and she says that. Moreover, the ranking member of the Senate Judiciary 
Committee flatly asked Justice Brown at the hearing--we are at her 
confirmation hearing--this issue has been put forward. This charge has 
been made that you want to undo the New Deal legislation, that you want 
to overturn FDR, and the legacy of FDR. That is what you want to do. 
The ranking member of the Senate Judiciary Committee flatly asked 
Justice Brown at her confirmation hearing:

       Do you agree with the holding in Lochner?

  She answered just as directly, ``No.'' This evidence is out there for 
all to see.
  Why pretend it is not there is what I would say. She says no, she 
does not want to undo the New Deal legislation. She said it in sworn 
testimony at the Senate Judiciary Committee. She says that in her 
opinion in the Santa Monica Beach case. She does not want to overrule 
the case.
  Others have attacked Justice Brown's speech to the Federalist Society 
when she lamented the demise of the Lochner era, in which the Supreme 
Court violated property or other economic rights. That is the 
allegation.
  Justice Brown's speeches illustrate her personal views. To suggest 
that her critique of the Holmes dissent in Lochner is evidence of how 
she would rule in a certain case belies the facts. Indeed, Justice 
Brown has taken issue with the Lochner decision, criticizing the 
Supreme Court's ``usurpation of power,'' stating the Lochner court was 
justly criticized for using the due process clause:

      . . . as though it were a blank check to alter the meaning 
     of the Constitution as written.

  That is what she actually said.
  Discussing the history of the judiciary, which Hamilton stated was to 
be

[[Page S6145]]

the branch ``least dangerous to the political rights of the 
Constitution,'' Justice Brown has stated her personal views that judges 
too often have strayed from this framework and engaged in judicial 
activism.
  That is something we have talked about a lot, about judicial 
activism. She believes that too often judges have strayed from this 
framework and engaged in judicial activism. It was in this context that 
Justice Brown stated the standards of scrutiny employed by the 
judiciary, which are not enumerated in the Constitution, often are used 
by judicial activists to reach the results they want.
  Justice Brown's record shows she is committed to following precedent, 
even when she might personally disagree with it. Partisan attack 
groups, lacking evidence that Brown is unable to follow precedent, have 
indicated their opposition stems from Justice Brown's supposed 
incorporating her personal views into judicial decisionmaking. They 
assert she injected her personal views on property rights into judicial 
opinions, but nothing could be further from the truth.
  The two cases cited by the attack groups in this context deal with 
the Takings clause. The groups fail to point out the Supreme Court 
itself expressed the view that Justice Brown herself is now accused of 
advocating, that property rights were intended to carry the same import 
as other rights in the Constitution.
  In Dolan v. City of Tigard, the Supreme Court majority wrote:

       We see no reason why the Takings Clause of the Fifth 
     Amendment, as much a part of the Bill of Rights as the First 
     Amendment or Fourth Amendment, should be relegated to the 
     status of a poor relation in these comparable circumstances.

  That is a 1994 case.
  The reason I point these out is I want people to know the factual 
setting here, that she does not support an opinion to overrule New Deal 
legislation.
  She has been attacked on her judicial qualifications, which I covered 
in an earlier presentation, but I want to also state here clearly and 
for the record, the ABA recently found Justice Brown qualified and 
concluded--this is from the ABA, the American Bar Association--that 
Justice Brown:

      . . . meets the Committee's very high standards with respect 
     to integrity, professional competence and judicial 
     temperament and that the Committee believes that the nominee 
     will be able to perform satisfactorily all of the duties and 
     responsibilities required by the high office of a federal 
     judge.

  If we are going to consider outside evaluations of judges, I would 
think the ABA's assessment that she is fit to serve on the DC Circuit 
is far more relevant than any others that might come forward.
  I mentioned these to address some of the attacks on her that I think 
are based on her more limited strict constructionist view than on what 
others are basing their attacks, by trying to piece things together. 
Justice Brown is enormously qualified by her set of personal 
experiences, public service, good legal mind, good legal temperament, 
sound training and abilities to serve on the DC Circuit Court of 
Appeals. She will make an outstanding judge on that court of appeals.
  Mrs. CLINTON. Mr. President, while I commend my colleagues for the 
compromise that momentarily spared this body from the so-called nuclear 
option, their agreement did nothing to change the fact that several of 
President Bush's judicial nominees fall well outside the mainstream and 
the parameters of what is an acceptable jurist. This nominee in 
particular, Janice Rogers Brown, has shown a disdain for the rule of 
law and precedent and is undeserving of lifetime tenure on the Federal 
bench.
  The administration's agenda has become evident throughout the course 
of the debate over judicial nominees. The President, the Republican 
leaders, and their supporters have turned our Federal judiciary into 
their own personal political battleground. To satisfy the demands of 
their most ardent right wing supporters, the Republicans have not 
chosen to appoint capable Federal jurists but rather the political 
activists willing to contort the law, precedent, and the Constitution 
in order to promote their own conservative political agenda.
  Our Federal courts have drifted well to the right in the past two or 
three decades. Today's so-called moderates would have been called 
conservatives in the 1970s. And while I personally think that this 
drift is not in the best interest of our country, I understand and 
accept that the President is certainly entitled to nominate 
conservatives to the bench. In fact, I have voted for the vast majority 
of this President's judicial nominees despite the fact that they 
maintain a conservative philosophy and support positions on issues that 
I do not necessarily agree with. I have done so because these nominees 
have demonstrated a respect for justice and the rule of law.
  But even accounting for this drift, some of his nominees, such as 
Janice Rogers Brown, are far outside of even today's conservative 
mainstream.
  Justice Brown is an agenda driven judge who, usually as a lone 
dissenter, shows little respect for the considered policy judgments of 
legislatures, repeatedly misconstrues precedent and brazenly criticizes 
U.S. Supreme Court rulings. She has a record of routinely voting to 
strike down property regulations, invalidate worker and consumer 
protections and restrict civil rights laws.
  What makes Justice Brown particularly ill suited for a lifetime 
appointment to District of Columbia Court of Appeals is her disdain for 
Government. Among other things, she has long advocated for the demise 
of the New Deal. She equates democratic Government with ``slavery,'' 
claims that the New Deal ``inoculated the federal Constitution with a 
kind of collectivist mentality,'' calls Supreme Court decisions 
upholding the New Deal ``the triumph of our own socialist revolution,'' 
accuses social security recipients of ``blithely cannibaliz[ing] their 
grandchildren because they have a right to get as much `free' stuff as 
the political system permits them to extract,'' and advocates returning 
to the widely discredited, early 20th century Lochner era, where the 
Supreme Court regularly invalidated economic regulations, like 
workplace protections.
  ``Where government moves in,'' Justice Brown has stated, ``community 
retreats, civil society disintegrates, and our ability to control our 
own destiny atrophies. The result is: families under siege; war in the 
streets; unapologetic expropriation of property; the precipitous 
decline of the rule of law; the rapid rise of corruption; the loss of 
civility and the triumph of deceit. The result is a debased, debauched 
culture which finds moral depravity entertaining and virtue 
contemptible.'' Justice Brown's contempt for government runs so deep 
that she urges ``conservative'' judges to invalidate legislation that 
expands the role of government, saying that it ``inevitably 
transform[s] . . . democracy . . . into a kleptocracy.''
  Furthermore, Justice Brown takes issue with one of the basic tenets 
of our entire judicial system--precedent. When she does not like the 
result established case law dictates, Justice Brown tries single-
handedly to change it. In one dissent, she proclaimed, ``(w)e cannot 
simply cloak ourselves in the doctrine of stare decisis.''
  These and other comments have prompted her colleagues on the 
California Supreme Court to criticize her for ``imposing . . . [a] 
personal theory of political economy on the people of a democratic 
state.'' Her fellow justices have taken her to task for asserting ``an 
activist role for the courts.'' They have noted that she ``quarrel[s] . 
. . not with our holding in this case, but with this court's previous 
decision . . . and, even more fundamentally, with the Legislature 
itself.'' And finally, they contend that Justice Brown's brand of 
judicial activism, if allowed, would ``permit a court . . . to reweigh 
the policy choices that underlay a legislative or quasi-legislative 
classification or to reevaluate the efficacy of the legislative 
measure.''
  Justice Brown's nomination makes clear that we have entered an era in 
which conservative politicians are seeking to nominate and confirm 
judges who read the Constitution and the law to coincide with the 
Republican Party's platform. The expectation is that these judicial 
appointees will toe the party line. This politicization of the 
judiciary carries disastrous consequences. Because when our judges are 
viewed as politicians, it diminishes the influence and the respect 
afforded our courts, which is the lifeblood of their efficacy. Our 
independent judiciary is the most respected

[[Page S6146]]

in the world, and our courts' ability to reach unpopular but just 
decisions is made possible only because of the deep wells of legitimacy 
they have dug.
  I urge my colleagues to take the longer view for the good of the 
American people. Think carefully about what the result to our judiciary 
will be if we continue to pack our courts with extremists who ignore 
justice and the law. I implore my colleagues to take seriously their 
constitutional charge of advice and consent and to reject the 
nomination of Janice Rogers Brown.
  Mr. JOHNSON. Mr. President, I rise today in opposition to President 
Bush's nomination of Janice Rogers Brown to be United States Circuit 
Court Judge to the Court of Appeals for the DC. Circuit.
  This morning, the Washington Post editorialized against the 
nomination of Justice Brown, writing that she ``is that rare nominee 
for whom one can draw a direct line between intellectual advocacy of 
aggressive judicial behavior and actual conduct as a judge,'' I agree 
with this respected newspaper's assessment and ask unanimous consent 
that this editorial be printed in the Record at the end of my 
statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. JOHNSON. I have several concerns about Justice Brown's ability to 
serve on this important court. On the California Supreme Court, Justice 
Brown has proven to be an activist judge when it suits her political 
agenda. Consistently, and despite precedent to the contrary, Justice 
Brown has ruled on the side of corporations. For example, in a 
cigarette sales case, she ignored relevant law and protected 
corporations in lieu of protecting minors. In other cases she has 
placed corporate interests above law that intended to shield consumers 
and women.
  Justice Brown has also attempted to remove protections for teachers, 
and has been hostile to such New Deal era programs as Social Security. 
She has called government assistance programs ``[t]he drug of choice 
for . . . Midwestern farmers, and militant senior citizens.'' These 
views are out of touch with most Americans and South Dakotans.
  During today's debate, colleagues argued that because Justice Brown 
has been reelected by California voters by a 76 percent margin, she 
should not be considered ``out of the mainstream.'' This argument is 
misplaced. First, many other judges get reelected at a higher rate. It 
should also be noted that her retention reelection took place only 1\1/
2\ years into her tenure on the California Supreme Court, at a time 
before her extreme views and activist agenda could have been known by 
voters.
  Both the American Bar Association and the California Judicial 
Commission have questioned Justice Brown qualifications to serve on the 
bench. The California Judicial Commission specifically noted questions 
about her deviation from precedent and her ``tendency to interject her 
political and philosophical views into her opinions.'' We should note 
their concerns and seriously consider them.
  Justice Brown's views and history of judicial activism is especially 
dangerous in the DC Circuit. She is a nominee who is far outside of the 
mainstream. For these reasons, I stand in opposition of the 
confirmation and lifelong appointment of Janice Rogers Brown.

                          Reject Justice Brown

                [From the Washington Post, June 7, 2005]

       The Senate filibuster agreement guaranteeing up-or-down 
     votes for most judicial nominees creates a test for 
     conservatives who rail against judicial activism. For 
     decades, conservative politicians have objected to the use of 
     the courts to bring about liberal policy results, arguing 
     that judges should take a restrained view of their role. Now, 
     with Republicans in control of the presidency and the Senate, 
     President Bush has nominated a judge to the U.S. Court of 
     Appeals for the D.C. Circuit who has been more open about her 
     enthusiasm for judicial adventurism than any nominee of 
     either party in a long time. But Janice Rogers Brown's 
     activism comes from the right, not the left; the rights she 
     would write into the Constitution are economic, not social. 
     Suddenly, all but a few conservatives seem to have lost their 
     qualms about judicial activism. Justice Brown, who serves on 
     the California Supreme Court, will get her vote as early as 
     tomorrow. No senator who votes for her will have standing any 
     longer to complain about legislating from the bench.
       Justice Brown, in speeches, has openly embraced the 
     ``Lochner'' era of Supreme Court jurisprudence. During this 
     period a century ago, the court struck down worker protection 
     laws that, the justices held, violated a right to free 
     contract they found in the Constitution's due process 
     protections. There exist few areas of greater agreement in 
     the study of constitutional law than the disrepute of the 
     ``Lochner'' era, whose very name--taken from the 1905 case of 
     Lochner v. New York--has become a code word for judicial 
     overreaching. Justice Brown, however, has dismissed the famed 
     dissent in Lochner by Justice Oliver Wendell Holmes, saying 
     it ``annoyed her'' and was ``simply wrong.'' And she has 
     celebrated the possibility of a revival of ``what might be 
     called Lochnerism-lite'' using a different provision of the 
     Constitution--the prohibition against governmental 
     ``takings'' of private property without just compensation.
       In the context of her nomination, Justice Brown has 
     trivialized such statements as merely attempts to be 
     provocative. But she has not just given provocative speeches; 
     ``Lochnerism-lite'' is a fairly good shorthand for her work 
     on the bench, where she has sought to use the takings 
     doctrine aggressively. She began one dissent, in a case 
     challenging regulation of a hotel, by noting that ``private 
     property, already an endangered species in California, is now 
     entirely extinct in San Francisco.'' Her colleagues on the 
     California Supreme Court certainly got what she was up to. In 
     response, they quoted Justice Holmes's Lochner dissent and 
     noted that ``nothing in the law of takings would justify an 
     appointed judiciary in imposing [any] personal theory of 
     political economy on the people of a democratic state.''
       Justice Brown is that rare nominee for whom one can draw a 
     direct line between intellectual advocacy of aggressive 
     judicial behavior and actual conduct as a judge. Time was 
     when conservatives were wary of judges who openly yearned for 
     courts, as Justice Brown puts it, ``audacious enough to 
     invoke higher law''--instead of, say, the laws the people's 
     elected representatives see fit to pass. That Justice Brown 
     will now get a vote means that each senator must take a stand 
     on whether some forms of judicial activism are more 
     acceptable than others.

  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Alexander). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________