[Congressional Record Volume 151, Number 75 (Wednesday, June 8, 2005)]
[Senate]
[Pages S6208-S6218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JANICE ROGERS BROWN TO BE UNITED STATES CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT--Continued
The PRESIDING OFFICER. The Senator from Vermont is recognized for 10
minutes.
Mr. LEAHY. Mr. President, over the course of the Senate's
consideration of the nomination of Janice Rogers Brown, we have heard
many compelling statements in opposition. Significantly, we have heard
from both Senators from California in opposition. Their opposition,
like mine, is based on Justice Brown's record.
Through bipartisan action, the Senate has deterred the misguided bid
by some on the other side of the aisle for one-party rule by means of
their so-called nuclear option. Thanks to the hard work of a bipartisan
group of 14 Senators, we have, for now, preserved the system of checks
and balances. I mention this because as we vote on the nomination of
Janice Rogers Brown, I urge all Senators to take seriously the Senate's
constitutionally mandated role in determining who is going to serve
lifetime appointments in the Federal judiciary.
I wish all Senators, Republicans and Democrats alike, would take
these matters seriously and vote their consciences and evaluate with
clear eyes the fitness of this woman for this lifetime appointment.
After all, some of my Republican colleagues have admitted to me
privately how they would like to vote. They know that Justice Brown is
a consummate judicial activist whose record shows she favors rolling
back the clock 100 years on workers' and consumer rights and
consistently has taken the side of corporations against average
Americans.
Her record shows she does not believe in clean air and clean water
protections for Americans and their communities. She does not believe
in laws providing affordable housing, and she would, if she could, wipe
out zoning laws that protect homeowners. Her record shows she takes an
extremely narrow view of protections against sexual harassment, race
discrimination, employment discrimination, and age discrimination. In
fact, she has such a hostility toward such programs as Social Security
that she has argued that Social Security is unconstitutional. She has
said that ``[t]oday's senior citizens blithely cannibalize their
grandchildren . . . ''
Why is this important? Because she would be on a court that would
handle every one of these issues, and it would mean that as a judicial
activist, she would rule entirely different in the cases that court
decides.
We have heard a lot about her life story. If this were a vote on a
Senate resolution commemorating her life story, I am sure the entire
Senate would gladly support it. Instead, this is a vote about the lives
of multiple millions of other Americans whose lives would be affected
by this nominee's ideological activist penchants. This is, after all, a
lifetime appointment on a Federal circuit court on which her ideology
would be especially harmful and destructive to the people. That is why
she has earned opposition of African-American leaders, law professors,
and newspapers around the country. In fact, the list of African-
American organizations and individuals opposing Justice Brown's
nomination is one of the most troubling indications that this is
another divisive, ideologically driven nomination. All 39 members of
the Congressional Black Caucus oppose her nomination. The Nation's
oldest and largest association of predominantly African-American
lawyers and judges, the National Bar Association, and its state
counterpart, the California Association of Black Lawyers, both oppose
this nomination. The foremost national civil rights organization, the
Leadership Conference on Civil Rights, opposes it.
The women of Delta Sigma Theta oppose this nomination.
I ask unanimous consent that letters detailing opposition, as well as
a list of such letters, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Letters of Opposition to the Nomination of Janice Rogers Brown to the
D.C. Circuit Court of Appeals
Public Officials
Congressional Black Caucus; 23 Members of the California
Delegation to the United States House of Representatives:
Diane E. Watson, 33rd District; Maxine Waters, 35th District;
Lucille Roybal-Allard, 34th District; Bob Filner, 51st
District; Tom Lantos, 12th District; George Miller, 7th
District; Lynn Woolsey, 6th District; Mike Honda, 15th
District; Lois Capps, 23rd District; Barbara Lee, 9th
District; Hilda L. Solis, 32nd District; Loretta Sanchez,
47th District; Linda Sanchez, 39th District; Joe Baca, 43rd
District; Anna Eshoo, 14th District; Pete Stark, 13th
District; Juanita Millender-McDonald, 37th District; Grace F.
Napolitano, 38th District; Xavier Becerra, 31st District;
Nancy Pelosi, 8th District; Henry A. Waxman, 30th District;
Dennis Cardoza, 18th District; Carol Moseley Braun, Paul
Strauss.
California Organizations
California Association of Black Lawyers; California State
Conference of the NAACP; California Teachers' Association;
Justice for All Project: Committee for Judicial Independence;
Black Women Lawyers of Los Angeles; SEIU Local 99; Feminist
Majority; Sierra Club, Southern California; Western Law
Center for Disability Rights; Planned Parenthood Los Angeles;
Stonewall Democratic Club; NAACP Legal Defense Fund; People
for the American Way, California; California Women's Law
Center; Universalist-Unitarian Project Freedom of Religion;
National Council of Jewish Women--California; Pacific
Institute for Women's Health; Equal Justice Society;
California Association of Black Lawyers; California
Federation of Labor, AFL-CIO; Sierra Club Environmental Law
Program; National Center for Lesbian Rights; National
Organization for Women, California; San Francisco La Raza
Lawyers; Planned Parenthood Golden Gate; California Abortion
and Reproductive Rights Action League; Disability Rights
Education & Defense Fund; Chinese for Affirmative Action;
National Employment Lawyers Association.
National Organizations
AFCSME; AFL-CIO; American Association of University Women,
National and Vermont chapters; Americans for Democratic
Action; Americans United for Separation of Church and State;
Committee for Judicial Independence; Delta Sigma Theta
Sorority; EarthJustice; International Brotherhood of
Electrical Workers; Leadership Conference on Civil Rights;
League of Conservation Voters; Legal Momentum (NOW LDF);
MALDEF; NAACP, National and District of Columbia
Organizations; NARAL Pro-Choice America; National Abortion
Federation; National Bar Association; National Black Chamber
of Commerce; National Council of Jewish Women; National
Employment Lawyers Association; National Family Planning &
Reproductive Health Association; National Organization for
Women; National Partnership for Women and Families; Natural
Resource Defense Council; National Senior Citizens Law
Center, on behalf of: National Committee to Preserve
Social Security & Medicare; Alliance of Retired Americans;
Families USA; AFSCME Retirees Program; Gray Panthers;
Center for Medicare Advocacy; National Health Law Program;
National Women's Law Center; National Urban League; People
for the American Way; Planned Parenthood Federation of
America;
[[Page S6209]]
Service Employees International Union; Sierra Club.
Coalition letter from the following environmental
organizations: American Planning Association; American
Rivers; Citizens Coal Council; Clean Water Action; Coast
Alliance; Community Rights Council; Defenders of Wildlife;
Earthjustice; Endangered Species Coalition; Friends of the
Earth; Mineral Policy Center; National Resources Defense
Council; Sierra Club; The Wilderness Society; Advocates for
the West; Alabama Environmental Council; American Lands
Alliance; Amigos Bravos; Buckeye Forest Council; California
League of Conservation Voters; California Native Plant
Society; Californians for Alternatives to Toxics; Center for
Biological Diversity; Clean Air Council; Clean Water Action
Council; The Committee for the Preservation of the Lake Purdy
Area; Earthwins; Environmental Defense Center; Environmental
Law Foundation; Friends of Hurricane Creek; Georgia Center
for Law in the Public Interest; Great Rivers Environmental
Law Center; Hurricane Creekkeeper; John Muir Project;
Kentucky Resources Council, Inc.; Natural Heritage Institute;
New Mexico Environmental Law Center; Northwest Environmental
Advocates; Oilfield Waste Policy Institute; Omni Center for
Peace, Justice, and Ecology; San Bruno Mountain Watch;
Southern Appalachian Biodiversity Project; Valley Watch,
Inc.; Washington Environmental Council; Western Land Exchange
Project; Wild Alabama; Wildlaw; Coalition of African-American
Labor Leaders.
Law Professors
Stephen R. Barnett, University of California, Berkeley;
Letter signed by more than 200 law professors.
____
National Bar Association,
Washington, DC, September 10, 2003.
Re Justice Janice Rogers Brown Nominee to the U.S. Court of
Appeals for the District of Columbia Circuit.
Senate Judiciary Committee,
U.S. Senate,
Washington, DC.
Dear Senator: The National Bar Association, this nation's
oldest and largest Association of predominantly African
American lawyers and judges, deems that Justice Rogers Brown
is unfit to serve on the U.S. Court of Appeals of the
District of Columbia.
Justice Brown has served the California Supreme Court for
seven years, providing a substantial body of work for
analysis by critics and supporters alike. If appointed, Brown
would follow Justice Judith Rogers, a President Clinton
appointee, to become the second African American woman judge
on the D.C. Circuit Court. Many people consider this
appointment as preliminary grooming for a future nomination
to the U.S. Supreme Court. This consideration is not without
merit: Justices Antonin Scalia, Clarence Thomas, and Ruth
Ginsberg all previously served on the prestigious D.C.
Circuit Court.
The National Bar Association must consider, among other
things, whether a judicial nominee will be a responsible
voice upon which all people, particularly people in the
traditionally underserved communities, for instance African
Americans, other ethnic minorities and women, can depend when
fundamental legal issues of race, ethnicity, or gender may
profoundly impact the designated population in the areas of
advancement in business, education, civil rights, and the
judicial arenas arise.
A rigorous review of several of Justice Brown's opinions in
the California Supreme Court undertaken by the California
Association of Black Lawyers (copy attached), an affiliate of
the National Bar Association, indicates a most disturbing
view and what may be in store for minorities under her
stewardship on the bench. In for instance Hi-Voltage Wire
Works, Inc. v. City of San Jose, 24 Cal 4th 537 (2000),
Justice Brown wrote the majority opinion striking down a San
Jose ordinance that required the City of San Jose to solicit
bids from companies owned by minority and women
subcontractors. She reasoned that the plan to seek minority
subcontractors violated Proposition 209, which is the 1996
voter-adopted state constitutional amendment that banned
racial preferences. She further concluded that instead of
affirmative action, ``equality of individual opportunity is
what the constitution demands.''
In view thereof, the National Bar Association strongly
urges and recommends that the Senate Judiciary Committee
reject the nomination of Justice Janice Rogers Brown to the
U.S. Circuit Court of Appeals for the D.C. Circuit.
Sincerely,
Clyde E. Bailey, Sr.,
President.
____
California Association of
Black Lawyers,
Mill Valley, CA, October 17, 2003.
Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, Senate Judiciary Committee, Dirksen Senate
Office Building, Washington, DC.
Dear Senators Hatch and Leahy: On behalf of the California
Association of Black Lawyers (``CABL''), I write to express
our strong opposition to the nomination of Janice Rogers
Brown to the U.S. Court of Appeals for the D.C. Circuit.
CABL is the only statewide organization of African American
lawyers, judges, professors and law students in the State of
California. We are an affiliate of the National Bar
Association (the ``NBA'') and we join the National Bar
Association in its opposition to Justice Brown. (The NBA
recently forwarded CABL's Official Position Paper opposing
Justice Brown's nomination to you. I am enclosing a copy, for
your easy reference.)
As California lawyers, we are familiar with Justice Brown
and her record on the California Supreme Court. We are deeply
concerned about her extremist judicial philosophy, that she
has manifested in numerous opinions over the years. It is
clear to us that she misuses precedent and challenges
precedent, in order to achieve the result she desires. A
prime example is her opinion in Hi-Voltage Wire Works, Inc.
v. City of San Jose, the California's Supreme Court's first
application of Proposition 209. According to Chief Justice
Ronald George, who refused to join her opinion, Justice Brown
seriously distorted the history of civil rights jurisprudence
and concluded outright that the U.S. Supreme Court decisions
supporting affirmative action were wrongly decided.
California has strong civil rights statutes, and many of us
litigate pursuant to these statutes. Yet Justice Brown has
repeatedly deviated from precedent in order to narrowly
interpret these statutes and render them virtually
inaccessible to victims of discrimination.
We urge you to undertake an extremely careful review of
Justice Brown and her record. We hope that you will conclude,
as we have done, that she is simply not within the mainstream
of legal thought. She is therefore not suited for appointment
to the second most important court in our nation, the D.C.
Circuit.
Respectfully yours,
Gillian G.M. Small,
President.
Mr. LEAHY. Mr. President, and, of course, both the Senators from her
home State have opposed her. In fact, if she is confirmed, this may be
the first such Senate confirmation over the opposition of both home
State Senators in the history of the Senate, something, I might say,
that during President Clinton's time was inconceivable-that Republicans
would even consider a nomination if one Senator from the home State
opposed the nominee and, of course, under no circumstances both. Here
both Senators do oppose her, and yet her nomination is going forward.
There remain 36 Republican Senators serving today who voted against
the nomination of Justice Ronnie White of Missouri in 1999. Justice
White is now the chief justice of the Missouri Supreme Court, having
been that high court's first African-American member. Former Senator
Ashcroft came to the floor and vilified Justice White as pro criminal
in 1999, after action on that nomination had been delayed more than 2
years. Then, in a surprise party-line vote, Republican Senators all
voted against his confirmation. In fact, that is the only party-line
vote to defeat a judicial nomination that I can remember in my 31 years
here.
Immediately after this party-line vote, by which Republican Senators
defeated the nomination of Justice Ronnie White, many of them told us:
We know he is qualified, but we had no choice because both home State
Senators opposed the nomination. In order to respect the views of these
home State Senators, they had to vote against a nominee who many felt
was highly qualified.
Both Justice Brown's home State Senators oppose her confirmation.
They have been consistent in that opposition. Republican Senators felt
compelled to vote against Justice White, a nominee of President
Clinton, in 1999 because of the opposition of his home State Senators.
It is hard to see how they can now turn around and say: Well, but we
can vote for a Republican nominee notwithstanding the same kind of
opposition.
It is not just the two distinguished Senators from California who
oppose her. Her views are so extreme that more than 200 law school
professors around the Nation wrote to the Judiciary Committee
expressing opposition.
The ``Los Angeles Times'' concludes she is a ``bad fit for a key
court.'' The ``Detroit Free Press'' concluded she ``has all but hung a
banner above her head declaring herself a foe to privacy rights, civil
rights, legal precedent, and even colleagues who don't share her
extreme leanings.''
I ask unanimous consent that these editorials, as well as a list of
other editorials opposing the Brown nomination, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S6210]]
Published Opposition to the Nomination of Janice Rogers Brown, Nominee
to the D.C. Circuit Court of Appeals
Editorials
Reject Justice Brown, The Washington Post, June 7, 2005.
No on Judge Brown: D.C. Court Is Wrong Place for Her Views,
The Sacramento Bee, May 20, 2005.
Brown Does It Again, Contra Costa Times, April 29, 2005.
Democrats Must Block Activist Judges, San Jose Mercury
News, February 24, 2005.
The Quality of the Judiciary Is at Stake! Want Good Judges?
So Does Kerry, Philadelphia Daily News, August 11, 2004.
``All Black Ain't Coal!'', The Bay State Banner
(Massachusetts), November 20, 2003.
A Bad Fit for a Key Court, The Los Angeles Times, November
5, 2003.
Extreme Nominee; With Brown, Bush Deepens Partisanship Over
Judges, Detroit Free Press, October 31, 2003.
Nasty Tactics, Fort Worth Star Telegram (Texas), October
31, 2003.
Fueling the Fight, The Washington Post, October 30, 2003.
Judicial Pick Not Fit for U.S. Court, The Atlanta Journal
and Constitution, October 29, 2003.
Out of the Mainstream, Again, The New York Times, October
25, 2003.
A Nominee to Filibuster, Copley News Service, October 24,
2003.
Bush Adds Another Ultra-Conservative, Howard University
Hilltop, October 20, 2003.
Fueling the Fire, The Washington Post, August 1, 2003.
More Conservatives for the Courts, The New York Times, July
29, 2003.
Op-Eds
If Republicans Look at Her Record, They Will Vote Brown
Down, Douglas T. Kendall and Jennifer Bradley, Roll Call,
June 7, 2005.
This Judge Is More Right-Wing Than Thomas, Simon Lazarus
and Lauren Saunders, The Hill, June 17, 2005.
Must Filibuster Justice Brown, Cynthia Tucker, Atlanta
Journal and Constitution, May 1, 2005.
Kennedy Does Justice to Approval Process, Howard Manly,
Boston Herald, February 6, 2005.
The Bushes are poor Judges of Judges, Diane Roberts, St.
Petersburg Times (Florida), December 13, 2003.
Judicial Nominees Show Disrespect For System Of Law, John
David Blakley, The Battalion (Texas A&M University), December
2, 2003.
Looking at Justice From Both Sides Now: Opponents Decry
Nominee for Same Reason She Was picked by White House: Her
Record, Susan Lerner, The L.A. Daily Journal, November 28,
2003.
A Record with some Praise, Robyn Blumner, St. Petersburg
Times (Florida), November 23, 2003.
Commentary, Ralph G. Neas, (President, People For the
American Way), National Public Radio `Morning Edition',
November 12, 2003.
Nominee's Views Will Affect Court, DeWayne Wickham, USA
TODAY, November 3, 2003.
GOP Senators: Remember Anita Hill?, Linda Campbell, The
Tallahassee Democrat, November 3, 2003.
Bush's Court-Nominee `Diversity' Is a Cynical Ploy; These
Minority Members and Women Are Out of the Mainstream, Robert
L. Harris, Los Angeles Times, November 12, 2003.
California Contender: A federal appeals court nominee could
one day become the first black woman justice on the U.S.
Supreme Court, Bob Egelko, San Francisco Chronicle, Sunday,
October 26, 2003.
Judicial Throwback, Douglas T. Kendall and Timothy J.
Dowling, The Washington Post, September 19, 2003.
Letters to the Editor
What Op Ed Forgot To Tell Us, Eric Kane, Boston Globe, May
13, 2005.
Candidates' Past Rulings Show Danger, Nancy Goodban, The
Modesto Bee (CA), May 11, 2005.
Senate Democrats' Filibuster Not Racist, Scott DeLeve, The
Daily Mississippian, December 11, 2003.
Congressional Black Caucus; An Open Letter on Why Five
Judicial Nominees Must Be Rejected, Ethnic NewsWatch,
November 20, 2003.
Bush Judges Deserve To Be Filibustered, Muriel Messer, The
Journal Standard (Illinois), November 13, 2003.
Justice Brown's Manifesto, T.J. Pierce, The San Francisco
Chronicle, November 8, 2003.
Judging Ms. Flowers, Arline Jolles Lotman, Philadelphia
Daily News, November 7, 2003.
Plantation Politics, Jerome Redding, St. Louis Post-
Dispatch (Missouri), November 3, 2003.
Jerome J. Shestack, former ABA President, The New York
Times, November 1, 2003.
____
[From the Los Angeles Times, Nov. 5, 2003.]
A Bad Fit for a Key Court
The U.S. Court of Appeals for the District of Columbia
Circuit is the triple-A farm team for the Supreme Court.
Three of the high court's current members--Antonin Scalia,
Clarence Thomas and Ruth Bader Ginsburg--came from the D.C.
circuit. So did onetime Chief Justices Warren Burger and Fred
Vinson, among others.
Presidents also give special attention to the D.C. court's
appointments because it often hears high-profile challenges
to presidential and congressional actions, defining the
government's authority. This year the D.C. Circuit Court
upheld the indefinite detention of potential terrorists at
Guantanamo, Cuba. In past years, it expanded police search
and seizure powers and upheld the 1971 campaign spending law
and environmental and workplace safety Laws. Before it now is
a challenge by California and other states to the
administration's view that the Clean Air Act does not allow
regulation of carbon dioxide and other greenhouse gases.
That President Bush may view California Supreme Court
Justice Janice Rogers Brown as a future U.S. Supreme Court
justice could explain why he nominated her to the D.C. court,
3,000 miles from her San Francisco base. But during her seven
years on California's high court, Brown has shown doctrinaire
and peculiar views that make her a troubling choice for this
appeals court.
Judges are supposed to consider disputes with an open mind,
weighing facts against the law and precedent. Conscientious
judges sometimes find that their decisions conflict with
their personal beliefs. However, in opinions and speeches,
Brown has articulated disdainful views of the Constitution
and government that are so strong and so far from the
mainstream as to raise questions about whether they would
control her decisions.
`Where government advances,' she told a college audience,
`freedom is imperiled, community impoverished, religion
marginalized and civilization itself jeopardized'--a
startling view for someone who would be charged with
reviewing government actions. Brown has spoken disapprovingly
of what she called the U.S. Supreme Court's `hypervigilance'
with respect to such `judicially proclaimed fundamental
rights' as privacy, calling them `highly suspect, incoherent
and constitutionally invalid.'
These views may have prompted Brown's bitter dissents in
cases in which her colleagues upheld regulatory actions such
as local zoning and land-use laws. They seem to have fueled
her skepticism toward employment discrimination claims, cases
involving the rights of people with disabilities and the
meaning of consent in rape.
Brown's dogmatism and a style bordering on vituperation
earned her only a `qualified' rather than `well qualified'
rating from the American Bar Assn. Some committee members
found her unfit for the appeals court.
The Senate Judiciary Committee could vote on Brown's
nomination Thursday. There's little question that Brown is an
intellectually sharp and hard-working jurist, but that is not
enough. Her own words are unrelentingly hostile to
government's role in regulatory matters and protection of
individual rights. These are the very things on which she
would rule most often. Brown is a bad fit for the District of
Columbia appeals court.
____
Judicial Pick Not Fit for U.S. Court,
[From the Atlanta Journal and Constitution, Oct. 29, 2003]
President Bush has once again nominated a right-wing judge
for one of the nation's most influential appellate courts.
Worse yet, Janice Rogers Brown, a California Supreme Court
justice, is not qualified for the U.S. Court of Appeals for
the D.C. Circuit.
Despite Bush's penchant for politics over professional
qualifications in judicial appointments, Democrats are not
blameless in the current standoff. They filibustered the
nomination of Hispanic conservative Miguel Estrada for the
same appellate court vacancy. Estrada, who finally withdrew
from consideration, had unquestioned scholarly and legal
qualifications for a federal judgeship.
Rather than select another highly qualified conservative
for the key appellate bench, the president took the low road,
choosing a judge who previously received an `unqualified'
rating from the California bar's evaluation commission and
last month got a mixed rating of `qualified/unqualified' from
the American Bar Association. By contrast, Estrada received a
unanimous ABA rating of `well qualified.'
Brown's views, as espoused in speeches to ultraconservative
groups, are far out of the mainstream of accepted legal
principles. For example, she has disputed whether the Bill of
Rights, as incorporated in the U.S. Constitution, should have
been applied to the states.
While the African-American jurist claims her tendency to
`stir the pot' wouldn't affect her rulings, such a radical
view causes the public to wonder if she will respect basic
individual liberties guaranteed in the Bill of Rights.
Brown meets the GOP's litmus test of being anti-affirmative
action and anti-abortion, but that is a sorry measure of
judicial excellence. Bush knows that Brown will fall victim
to a Democratic filibuster. Apparently, this president would
rather have a campaign issue than a qualified federal
judiciary.
____
[From the New York Times, Oct. 25, 2003]
Out of the Mainstream, Again
Of the many unworthy judicial nominees President Bush has
put forward, Janice Rogers Brown is among the very worst. As
an archconservative justice on the California Supreme Court,
she has declared war on the mainstream legal values that most
Americans hold dear. And she has let ideology be her guide in
deciding cases. At her confirmation hearing this week,
Justice Brown only ratified her critics' worst fears. Both
Republican and Democratic senators should oppose her
confirmation.
[[Page S6211]]
Justice Brown, who has been nominated to the United States
Court of Appeals for the District of Columbia Circuit, has
made it clear in her public pronouncements how extreme her
views are. She has attacked the New Deal, which gave us
Social Security and other programs now central to American
life, as ``the triumph of our socialist revolution.'' And she
has praised the infamous Lochner line of cases, in which the
Supreme Court, from 1905 to 1937, struck down worker health
and safety laws as infringing on the rights of business.
Justice Brown's record as a judge is also cause for alarm.
She regularly stakes out extreme positions, often dissenting
alone. In one case, her court ordered a rental car company to
stop its supervisor from calling Hispanic employees by racial
epithets. Justice Brown dissented, arguing that doing so
violated the company's free speech rights.
Last year, her court upheld a $10,000 award for emotional
distress to a black woman who had been refused an apartment
because of her race. Justice Brown, the sole dissenter,
argued that the agency involved had no power to award the
damages.
In an important civil rights case, the chief justice of her
court criticized Justice Brown for ``presenting an unfair and
inaccurate caricature'' of affirmative action. The American
Bar Association, all but a rubber stamp for the
administration's nominees, has given Justice Brown a mediocre
rating of qualified/not qualified, which means a majority of
the evaluation committee found her qualified, a minority
found her not qualified, and no one found her well qualified.
The Bush administration has packaged Justice Brown, an
African-American born in segregated Alabama, as an American
success story. The 39-member Congressional Black Caucus,
however, has come out against her confirmation.
President Bush, who promised as a candidate to be a
``uniter, not a divider,'' has selected the most divisive
judicial nominees in modern times. The Senate should help the
president keep his campaign promise by insisting on a more
unifying alternative than Justice Brown.
Mr. LEAHY. Mr. President, I have voted to confirm hundreds of
nominees with whom I differ. I vote for them when I think they will be
fair and impartial. I voted for hundreds of President Bush's nominees,
as I did his father, President Reagan, and President Ford, all
Presidents with whom I have been proud to serve. But I voted against
those, whether Republican or Democratic nominees, if I disagreed with
them, if I felt they could not be impartial.
I believe Judge Brown has proven herself to be a results-oriented,
agenda-driven judge whose respect for precedent and rules of judicial
interpretation change depending upon the subject before her and the
results she wants to reach. She is the definition of an activist judge,
the sort of person President Bush said he would not nominate.
Whether it is protection of the elderly, workers and consumers,
privacy rights, free speech, civil liberties, and many more issues, she
has inserted her radical views into her judicial opinions time and
again.
She repeatedly and consistently has advocated turning back the clock
100 years to return to an era where worker protection laws were found
unconstitutional.
It is no small irony this President, who spoke of being a uniter, has
used his position to renominate Justice Brown and others after they
failed to get consent of the Senate.
These provocative nominees have divided the Senate and the American
people, and they brought us to the edge of a nuclear winter in the
Senate.
This confrontational approach and divisiveness have continued,
despite the confirmation of 209 out of his 218 jurdicial nominees.
I oppose giving Justice Brown this lifetime promotion to the second
highest court in our land because the American people deserve judges
who will interpret the law fairly and objectively. Janice Rogers Brown
is a committed judicial activist who has a record of using her position
as a member of a court to put her views above the law and above the
interests of working men and women and families across the Nation.
We must not enable her to bring her ``jurisprudence of convenience''
to one of the most important Federal courts in the Nation.
Over the course of the Senate's consideration of the nomination of
Janice Rogers Brown to be a judge on the United States Court of Appeals
for the D.C. Circuit, I have publicly explained why I cannot support
it. My opposition is based on Justice Brown's extensive record, which
raises unavoidable concerns about her pursuit from the bench of her
extremist judicial philosophy and therefore about her fitness for this
lifetime appointment. Justice Brown failed to gain the consent of the
Senate last year. As I explained in April when voting against her
confirmation in the Senate Judiciary Committee, not only has Justice
Brown failed to resolve any of my concerns since her hearing in late
2003, but Justice Brown's opinions issued since that time reinforce and
deepen the troubling patterns in her record.
Through bipartisan action, the Senate has deterred the misguided bid
by some on the other side of the aisle for one-party rule by means of
their nuclear option. Thanks to the hard work of a bipartisan group of
14 Senators, we have, for now, preserved the system of checks and
balances, designed by the Founders, that are so integral to the
function of the Senate and to its role. As we turn now to the
nomination of Janice Rogers Brown, I urge all Senators to take
seriously the Senate's constitutionally mandated role as a partner with
the executive branch in determining who will serve lifetime
appointments in the federal judiciary. I urge all Senators, Republicans
and Democrats alike, to take these matters seriously and vote their
consciences. Republican Senators and Democratic Senators alike will
need to evaluate, with clear eyes, the fitness of Justice Brown for
this lifetime judicial appointment before casting a difficult vote on
this problematic and highly controversial nominee. My opposition to
Justice Brown's nomination is based, as it has always been, on her
record.
Justice Brown is a consummate judicial activist whose record shows
that she favors rolling back the clock 100 years on workers' and
consumers' rights and taking the side of corporations against average
Americans. Her record shows she does not believe in clean air and clean
water protections for Americans and their communities, she does not
believe in laws providing affordable housing, and that she would, if
she could, wipe out zoning laws that protect homeowners by keeping porn
shops and factories from moving in next door. Her record shows she
takes an extremely narrow view of protections against sexual
harassment, race discrimination, employment discrimination, and, most
of all, age discrimination. In fact, Justice Brown has a hostility
toward such programs as Social Security that is so great that she has
argued that Social Security is unconstitutional, and has said that
``[t]oday's senior citizens blithely cannibalize their grandchildren. .
. .''
We have heard a great deal from Justice Brown's supporters about her
life accomplishments. It is an impressive story, and Justice Brown's
accomplishments in the face of so much adversity are commendable. But
we cannot base our votes on the confirmation of a lifetime appointee to
a Federal court on biography alone. If this were a vote on a Senate
resolution commemorating her life story, I am sure the entire Senate
would gladly support it. But instead, this is a vote about the lives of
multiple millions of other Americans whose lives would be affected by
this nominee's ideological penchants.
I hope that, as debate Justice Brown's nomination, we will not--as we
did 2\1/2\ years ago--hear the whispering of unfounded smears against
those who oppose this nomination. I have spoken recently about my
disappointment in the White House and Republican partisans for fanning
the flames of bigotry and refusing to tamp down unfounded claims that
amount to religious McCarthyism. I urged the White House, Republican
leaders, and moderate Republicans to join me in condemning the
injection of such smears into the consideration of nominations. The
failure to do so risks subverting this constitutional process and the
independence of our federal courts.
The unfounded charges of bigotry are belied by the numbers of major
African-American leaders, newspapers and law professors across the
country who also oppose this nomination based on Justice Brown's record
of extremism. The list of the African-American organizations and
individuals who oppose Justice Brown's nomination is a clear indication
that this is another divisive, ideologically driven nomination. The 39
members of the Congressional Black Caucus oppose Justice Brown's
nomination, including the respected congressional delegate from the
District of
[[Page S6212]]
Columbia, Eleanor Holmes Norton, and Representatives Charles Rangel,
Elijah Cummings and John Conyers, and the chair of the Congressional
Black Caucus, Representative Mel Watt. The nation's oldest and largest
association of predominantly African-American lawyers and judges--the
National Bar Association--and its State counterpart--the California
Association of Black Lawyers--both oppose this nomination. The foremost
national civil rights organization, the Leadership Conference on Civil
Rights, opposes this nomination. The women of Delta Sigma Theta oppose
this nomination. Dr. Dorothy Height, Dr. Joseph Lowery and Julian Bond,
historic leaders in the fight for equal rights, have spoken out against
this nomination.
The baseless smears that we have heard are irresponsible, harmful and
demonstrably false. Democrats have voted to confirm each of the other
15 African-American judges nominated by President Bush and brought to
the Senate for a vote, including all four of the other African-
Americans confirmed to appellate courts. Democrats have fought hard to
integrate the Fourth Circuit, working with Senator Warner through the
confirmation of Judge Roger Gregory, and with Senator Edwards on the
confirmation of Judge Allyson Duncan. And it was Democratic Members who
were outraged at the Republicans' partyline vote against Justice Ronnie
White and Republican pocket filibusters of Judge Beatty, Judge Wynn,
Kathleen McCree Lewis, and so many outstanding African-Americans judges
and lawyers blocked during the Clinton years.
Let us not see that shameful card dealt from the deck of unfounded
charges that some stalwarts of this President's most extreme nominees
have come more and more to rely upon. Let us stick to the merits. As so
many have explained in such detail over the last few days, those who
oppose her do so because they retain serious doubts about her
nomination and see her as an ideologue or a judicial activist.
The basis for my opposition is the extremism of Justice Brown's
record. That, too, is the reason both of her home State Senators oppose
her. As we have heard in the Judiciary Committee and here on the Senate
Floor, both Senators from California, who arguably know this nominee
and her record better than most, strongly oppose Justice Brown's
confirmation. There was a time in the Senate, not that long ago, when
opposition by a nominee's home State Senators, no matter how late in
the day it was announced, was enough to halt a nomination. I remember
how that tradition was adhered to scrupulously by Republican Senators
5\1/2\ years ago when the Senate voted on the confirmation of Ronnie
White to be a judge in Missouri. Even though one of his home State
Senators had warmly endorsed him at his hearing, an eleventh hour
reversal by that Senator led to every Republican Senator voting against
Justice White. Thirty-six of those Senators are still serving in the
Senate today, and if the approval of a nominee's home State Senator is
as important today as it was in 1999, then the Senate will reject this
nomination. The former Chairman of the Judiciary Committee came to the
Senate after the defeat of Justice White's nomination to explain
explicitly the importance of home State opposition in that
unprecedented party-line vote.
As I have detailed, Justice Brown's home State Senators are not the
only ones who oppose her. Her views, both in speeches and in opinions
issued from the bench, are so extreme that more than 200 law school
professors from around the country wrote to the Committee, prior to her
hearing, expressing their opposition.
The Senate is faced with several extreme nominees who have clear
records of trying to rewrite the law from the bench. In Justice Brown's
hearing before the Committee, then-Chairman Hatch began the hearing by
referring to President Bush's description of his judicial nomination
standard: ``Every judge I appoint will be a person who clearly
understands the role of the judge is to interpret the law, not to
legislate from the bench. My judicial nominees will know the
difference.'' Regretfully, Justice Brown, a practitioner of a results-
oriented brand of judicial activism so radical she is frequently the
lone dissenter from a 6-1 Republican majority court, represents the
antithesis of the President's purported standard. In re-nominating
Justice Brown after she failed to gain consent of the Senate, the
President has, again, selected a judicial nominee who deeply divides
the American people and the Senate.
After Justice Brown's record was examined in the hearing on her
nomination, editorial pages across the country came to the same
conclusion. Justice Brown's home State newspaper, The Los Angeles
Times, concluded she is a ``bad fit for a key court,'' after finding
that ``in opinions and speeches, Brown has articulated disdainful views
of the Constitution and government that are so strong and so far from
the mainstream as to raise questions about whether they would control
her decisions.'' The Detroit Free Press concluded: ``Brown has all but
hung a banner above her head declaring herself a foe to privacy rights,
civil rights, legal precedent and even colleagues who don't share her
extremist leanings.'' The Atlanta Journal and Constitution concluded
that Janice Rogers Brown is ``not qualified for the U.S. Court of
Appeals for the D.C. Circuit.'' The Washington Post found that Justice
Brown is ``one of the most unapologetically ideological nominees of
either party in many years.'' And The New York Times concluded that,
based on Justice Brown's record as a judge, she has ``let ideology be
her guide in deciding cases.'' I would ask that these editorials
expressing opposition, as well as a list of all of the editorials
opposing the Brown nomination be entered in the Record.
Justice Brown has a lengthy record of opinions, of speeches and of
writings. She has very strong opinions, and there is little mystery
about her views, even though she sought to moderate them when she
appeared before the Judiciary Committee. I come to my decision, after
reviewing Justice Brown's record--her judicial opinions, her speeches
and writings--and considering her testimony and oral and written
answers provided to the Senate Judiciary Committee.
My opposition is not about whether Justice Brown would vote like me
if she were a member of the United States Senate. I have voted to
confirm probably hundreds of nominees with whom I differ. Nor is this
about one dissent or one speech. This is about Justice Brown's approach
to the law, an approach which she has consistently used to promote her
own ideological agenda that is out of the mainstream. Her hostility
both to Supreme Court precedent and to the intent of the legislature
does not entitle her to a lifetime appointment to this highly important
appellate court.
As I have said--and as remains true today--Janice Rogers Brown's
approach to the law can be best described as a ``jurisprudence of
convenience.'' Justice Brown has proven herself to be a results-
oriented, agenda-driven judge whose respect for precedent and rules of
judicial interpretation change and shift depending on the subject
matter before her and the results she wants to reach.
Hers is a record of sharp-elbowed ideological activism.
While Justice Brown's approach to the law has been inconsistent--she
has taken whatever approach she needs to in order to get to a result
she desires--the results which she has worked toward have been very
consistent, throughout her public record. At her hearing, Justice Brown
attempted to separate her speeches from her role as a judge. However,
on issue after issue--the protection of the elderly, workers and
consumers; equal protection; the takings clause; privacy rights; free
speech; civil liberties; remedies; the use of peremptory challenges,
and many more--Justice Brown has inserted her radical views into her
judicial opinions time and time again. In fact, Justice Brown's
comments to groups across the country over the last 10 years repeated
the same themes--sometimes even the same words--as she has written in
her bench opinions.
In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown
wrote of the demise of the Lochner era, claiming ``the `revolution of
1937' ended the era of economic substantive due process but it did not
dampen the court's penchant for rewriting the Constitution.''
Similarly, in a speech to the Federalist Society, she said of the year
1937: it ``marks the triumph of our own socialist revolution.''
[[Page S6213]]
In San Remo Hotel v. City and County of San Francisco, Justice Brown
wrote, ``[t]urning a democracy into a kleptocracy does not enhance the
stature of the thieves; it only diminishes the legitimacy of the
government.'' Similarly, two years earlier, she told an audience at the
Institute for Justice: ``If we can invoke no ultimate limits on the
power of government, a democracy is inevitably transformed into a
kleptocracy--a license to steal, a warrant for oppression.''
As Berkeley Law School Professor Stephen Barnett pointed out about
Justice Brown's ``apparent claim that these are `just speeches' that
exist in an entirely different world from her judicial opinions,''
``that defense not only is implausible but trivializes the judicial
role.'' I agree with Professor Barnett on this and understand his
determination to oppose her nomination. Justice Brown's provocative
speeches are disturbing in their own right, and they are made more so
by their reprise in her opinions.
During her hearing, Justice Brown told the Committee that she will
``follow the law.'' However, her opinions from the bench speak much
louder than her words to the Committee. In such a judicial dissent she
wrote, ``We cannot simply cloak ourselves in the doctrine of stare
decisis.''
Justice Brown's disregard for precedent in her opinions in order to
expand the rights of corporations and wealthy property owners, at the
expense of workers and individuals who have been the victims of
discrimination, stands among the clearest illustrations of Justice
Brown's results-oriented jurisprudence. In several dissents, Justice
Brown called for overturning an exception to at-will employment that
has been long recognized by the California Supreme Court, and was
created to protect workers from discrimination. She has repeatedly
argued for overturning precedent to provide more leeway for
corporations against attempts to stop the sale of cigarettes to minors,
prevent consumer fraud, and prevent the exclusion of women and
homosexuals.
Justice Brown has also been inconsistent in the application of rules
of judicial interpretation--again depending on the result that she
wants to reach in order to fulfill her extremist ideological agenda.
These legal trends--her disregard for precedent, her inconsistency in
judicial interpretation, and her tendency to inject her personal
opinions into her judicial opinions--lead to no other conclusion but
that Janice Rogers Brown is--in the true sense of the words--a judicial
activist.
When it is needed to reach a conclusion that meets her own
ideological beliefs, Justice Brown stresses the need for deference to
the legislature and the electorate. However, when the laws--as passed
by legislators and voters--are different than laws she believes are
necessary, she has shown no deference, presses her own agenda and
advocates for judicial activism.
One stark example comes in an opinion she wrote where in order to
support her view that judges should be able to limit damages in
employment discrimination cases, she concluded that ``creativity'' was
a permissible judicial practice and that all judges ``make law.''
Justice Brown's approach to the law has led to many opinions which
are highly troubling. She repeatedly and consistently has advocated
turning back the clock 100 years to return to an era where worker
protection laws were found unconstitutional. She has attacked the New
Deal, an era which created Social Security, fair labor standards and
child labor laws, by calling it ``fundamentally incompatible with the
vision that undergirded this country's founding.'' Justice Brown's
antipathy to the New Deal and Social Security is so strong, that she
stated, in Santa Monica Beach v. Superior Court of L.A. County, 19 Cal.
4th 952 (1999), that ``1937 [the year in which much of President
Roosevelt's New Deal legislation took effect] . . . marks the triumph
of our own socialist revolution . . .''
Justice Brown's hostility toward Social Security is part of larger
hostility toward the needs and the rights of senior citizens. In a 2000
speech to a right-wing group, Justice Brown claimed that, ``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.'' Justice Brown has injected this hostility
into her opinions. In Stevenson v. Superior Court of Los Angeles
County, 16 Cal. 4th 880 (1997), Justice Brown was the only member of
the court to find that age discrimination victims cannot sue under
common law because, as she stated in that case, she does not believe
age discrimination stigmatizes senior citizens.
And she has repeatedly opposed protections against discrimination of
individuals--in their jobs and in their homes. Justice Brown's claims
that her words do not mean what they say are simply unconvincing.
Another troubling aspect of Justice Brown's nomination is the court
for which she has been nominated. She is being considered for a
position on the premier administrative law court in the nation--a court
that is charged with overseeing the actions of federal agencies that
are responsible for worker protections, environmental standards,
consumer safeguards, and civil rights protections.
I am concerned about her ability to be a fair arbitrator on this
court. Justice Brown has made no secret of her disdain for government's
role in upholding protections against the abuse of the powerless, those
who struggle in our society, and our environment. She has said, ``. . .
where government moves in, community retreats, civil society
disintegrates, and our ability to control our own destiny atrophies.''
How can someone who has demonstrated her activism be entrusted to
make fair and neutral decisions when faced with the responsibility of
interpreting the powers of the federal government and the breadth of
regulatory statutes? Justice Brown responded to this question at her
hearing by calling on us to review her record as a judge to see that
she does not ``hate government.'' Well, I did review her record. And,
what I found was disturbing: She has used her position on and off the
bench to argue for the dismantling of government from the inside out.
Since the Senate last considered Justice Brown's nomination, her
troubling jurisprudence has not changed. As demonstrated by her recent
opinions, Justice Brown has continued to be a results-oriented judge
with little consistency in judicial interpretation who gives great
deference to her own agenda rather than to precedent, to the intent of
the legislature, or to the Constitution.
In the last 18 months, since Justice Brown appeared before the
Judiciary Committee:
She has expressly ignored Supreme Court precedent in seeking judicial
repeal of a State antidiscrimination statute giving drug benefits to
women, despite her own finding that the statute met the Supreme Court's
test.
She has denigrated the constitutional right to privacy and bodily
integrity as mere ``sympathy'' by the majority.
She has shown deference to the intent of employers rather than to
precedent, to the detriment of the retirement benefits of long-term
workers.
She has sought to replace the legislature's judgment regarding the
value of expert testimony related to ``Battered Women's Syndrome'' with
her own judgment that domestic violence is ``simply a label, now
codified,'' which would make it more difficult to prosecute domestic
violence.
She has sought to overturn a long line of precedent that African-
American women are considered a ``cognizable group'' for the purpose of
assessing where a prosecuting attorney has violated equal protection in
the use of peremptory challenges.
She has demonstrated her hostility to common law by overturning
California's century-old second-degree felony murder rule.
She has sought to make it more difficult for a worker to pursue a
sexual harassment claim against her employer by strictly enforcing
release language in a separate worker's compensation settlement, even
though this result would, according to the majority, ``create a trap
for the unwary worker.''
Justice Brown's record since her hearing--and since she was last
rejected by the Senate--has only brought into sharper focus the
radicalism of her opinions and only deepened my concern about her
extremism.
Indeed, in the last several days the United States Supreme Court
decision
[[Page S6214]]
in a regulatory takings case demonstrates anew just how far out of the
mainstream she is. In this case, a strong majority of the Supreme Court
rejected the approach that Justice Brown has endorsed in her efforts to
expand the takings clause of the Constitution to thwart local
government regulation for health, safety, controlled growth and
economic development.
America would look like and be a very different place if Justice
Brown had her way. She would do away with many of the core protections
Americans count on to keep their jobs and communities safe and their
retirements secure. There would be few if any laws protecting Americans
from race discrimination, employment discrimination or age
discrimination, or protecting a woman's right to choose. Corporate
speech would be protected, but not the first amendment rights of
employees to criticize an employer's practices. Corporations would be
protected against suits for stock fraud and for illegally selling
cigarettes to minors, but private employers would not be required to
provide contraceptive drug benefits for women.
Justice Brown's America would mean a return to the widely and
justifiably discredited Lochner era, an era named after a Supreme Court
decision so widely-derided that even Robert Bork called its judicial
activism an ``abomination.'' A return to the Lochner era would mean a
return to a time without protections against child labor. It would mean
a return to a time without zoning protections to prevent porn shops and
factories and rat-infested slaughterhouses from moving in next door to
Americans' homes; a time without consumer protection and laws providing
for affordable housing; a time without worker safety laws and without
fair labor standards; and a time without laws protecting clean air and
clean water. And it would mean a return to a time without Social
Security.
It is no small irony that this President, who spoke of being a
uniter, has used his position to re-nominate Justice Brown and others
after they failed to gain consent of the Senate. These provocative
nominees have divided the Senate and the American people and brought
the Senate to the edge of a ``nuclear winter.'' His divisiveness has
continued, despite the confirmation of 209 out of his 218 judicial
nominees. It is no small irony that this President, who spoke with
disdain of ``judicial activism,'' has nominated several of the most
consummate judicial activists ever chosen by any President. None of the
President's nominees is more in the mold of a judicial activist than
this nominee.
I oppose giving Justice Brown this lifetime promotion to the second
highest court in our land because the American people deserve judges
who will interpret the law fairly and objectively. Janice Rogers Brown
is a committed judicial activist who has a consistent record of using
her position as a member of the court to put her views above the law
and above the interests of working men and women and families across
the Nation. We should not enable her to bring her ``jurisprudence of
convenience'' to one of the most important Federal courts in the
Nation.
The PRESIDING OFFICER. The Senator from Pennsylvania controls the
next 10 minutes.
Mr. SPECTER. Mr. President, as the debate winds down on the
nomination of California State Supreme Court Justice Janice Rogers
Brown, I suggest to my colleagues that this debate is really not about
Justice Brown at all, but it is about the escalating battle which has
been going on between the two parties since the last 2 years of
President Reagan's administration and continuing up to the present
time.
I was on the Judiciary Committee in the last 2 years of the Reagan
administration, having served since I was elected in 1980 on that
committee, and there was a limited list to be confirmed after the
Democrats took control of the Senate in the 1986 election, for 1987 and
1988.
Then the policy was continued during the 4 years of President George
Herbert Walker Bush. I recall pending Third Circuit nominees who were
not going to be considered because we were not going to confirm any
more of the President's nominees.
Then the situation was exacerbated to a new level during the years of
President Clinton, when some 60 judges were bottled up. I opposed that
practice at the time as a Republican on the Judiciary Committee and
supported Judge Berzon, Judge Paez, and others, and urged that we not
have party payback.
Then the matter was exacerbated to new levels with the unprecedented
use of systematic filibusters, the first time in the history of the
country that has been done.
Then the President responded with an interim appointment, the first
interim appointment in the history of the Senate on a Senate rejection,
albeit by the filibuster route.
Then we came to the critical issue of how we were going to handle the
future with the heavy debate on the so-called constitutional or nuclear
option. And finally, we worked our way through on individual judges,
without reviewing all of that history.
What this nomination is all about is party payback time. That is what
it is. In the 25 years I have been on the Judiciary Committee, I have
seen the committee routinely confirm circuit judges who were no better
qualified and, in many cases, not as well qualified as Justice Brown.
We had two very celebrated cases where two nominees for circuit court
went through with relative ease, and then their records were subjected
to very intense scrutiny during nomination hearings for the Supreme
Court of the United States. But the practice has been to confirm the
circuit judges.
The argument is made that circuit judges play a critical role, and
will make law because their cases will not be reviewed by the U.S.
Supreme Court, which grants certiorari in so few cases. But the fact is
that no one judge can do that on the circuit. The judges sit in panels
of three. So if one judge is way out of line, does something egregious,
there has to be a second judge concurring. And if there is concurrence
on something that is out of line, the circuit courts have the court en
banc to correct it. And then there is always the appeal or petition to
the Supreme Court of the United States.
One thing that has troubled me is the unwillingness of Senators to
concede that both sides have been wrong--to make the explicit
concession that their side has been wrong at least in part.
I have scoured the Record and noted a comment made by the leader of
the Democrats, Senator Reid, who said this on May 19:
Let's not dwell on what went on in the 4 years of President
Bush's administration. I am sure there is plenty of blame to
go around. As we look back, I am not sure--and it is
difficult to say this and I say it--I am not sure either was
handled properly. I have known it wasn't right to simply bury
69 nominations. And in hindsight, maybe we could have done
these 10 a little differently.
It seems to me that we really ought to be able to admit the wrongs on
both sides--to have a clean slate, to start over and try to have
Senators vote their individual consciences on matters such as
filibusters. In talking to my colleagues who are Democrats, I heard
many say they did not like the systematic filibusters; it was not the
right thing to do. But there is a party straitjacket on, so it is done.
Similarly, in the Republican cloakroom and Republican caucus, many of
my colleagues voiced objections to the so-called constitutional or
nuclear option. But there again, party loyalty has come into play.
We have admitted our mistakes in the past, historical mistakes,
egregious mistakes on race, women's suffrage and women's rights, the
rights of criminal defendants, and many, many things. It would not be
too much for both sides to say we have both been wrong and let's move
ahead. But there has been payback and payback, and the American people
are sick and tired of the rankling.
When you put aside those factors, I suggest that State Supreme Court
Justice Janice Rogers Brown stacks up fine against the long litany of
circuit judges who have been confirmed by the Senate. We know the
details. I spoke at length on this nomination on Monday of this week,
before the floor became congested with many Senators who wanted to
speak, and spoke at that time in my capacity as chairman of the
committee. Now I have been allotted 10 minutes to speak as we wind down
this debate.
Her record is really exemplary. She was born in Alabama in 1949 to
sharecroppers. She had an excellent record
[[Page S6215]]
in college and in law school. She went back to get a master's degree
from the University of Virginia after she was on the State supreme
court in California.
She has been pilloried for statements that have been made in
speeches. As is well known, not to be unduly repetitious--I made a
comment about this on Monday--if everybody in public life, including
Senators, were held to everything they have said, none of us would be
elected, confirmed, appointed, or asked to do anything in the public
sphere. If somebody put a microscope on the countless tracks of
statements I have made in the Congressional Record--a court reporter is
taking this down, and it will be in the Congressional Record forever--
if I were to be suggested for some important job, it is not hard to
find something someone has said at some time that would be a
disqualifier.
The proof is in the pudding on her cases. She has handled a lot of
cases, and I went through those cases in great detail.
It is true that she has made undiplomatic statements, but she is not
in the State Department. In speeches, she has talked about limiting
Government, but when her cases were reviewed and analyzed, she has
upheld the authority of the Government in many lines which I detailed
in a speech the day before yesterday. Similarly, she has upheld
individual rights.
On the merits, this is a nominee who, in my view, is worthy of
confirmation to the Court of Appeals.
On Monday, I made a brief reference to an opinion by Supreme Court
Justice Oliver Wendell Holmes about 80 years ago where he talks about
the importance of individualization, free thinking, and free speech,
and has one of the most poignant phrases in any Supreme Court opinion:
that ``time has upset many fighting faiths.'' Time has upset many
fighting faiths, and in the free interplay of ideas, we come to the
best values and the best ideas in the marketplace.
If you have a nominee who exercises some independence and
individuality in her speeches but has solid judicial opinions and a
solid professional record, solid work in the State government, that is
the test as to whether she ought to be confirmed. If it were not party
payback time, this ferocious debate would not be undertaken. That is
why I am going to vote to confirm State supreme court justice Janice
Rogers Brown.
I yield the floor.
The PRESIDING OFFICER. The time of the Senator has expired.
The Senator from Nevada.
Mr. REID. Mr. President, yesterday the Senate invoked cloture on the
nomination now before this body. That came about as a result of a
bipartisan agreement that was reached several weeks ago. The agreement,
though, did not proclaim in any way that Justice Brown would be
confirmed. The agreement does not obligate any Senator to vote for this
or any other nominee. Nor did the agreement establish Janice Rogers
Brown as the benchmark for what is acceptable, as far as judicial
nominees go.
Whether one is from the left or the right, this nominee should be
rejected. We should reject any nominee who twists the law to advance
his or her own ideological bent. We should reject any nominee who does
not believe in or abide by precedent, and we should reject any nominee
who holds deep hostility to Government, such deep hostility that it
renders them blind to what the law mandates.
Janice Rogers Brown does not fail on just one of these standards, she
fails on all three. She is an exceptional candidate, there is no
question--but in a negative sense. She twists the law and does it
routinely. She does not follow precedent. She has a hostility to
Government I have never seen in a judge at any time during my years as
a lawyer and as a member of a legislative body.
Under these standards, of course, her nomination should fail
resoundingly. In speeches and opinions, Janice Rogers Brown has
repeatedly assailed protections for the elderly, for workers, for the
environment, for victims of racial discrimination. If confirmed today,
she will be a newly empowered person to destroy those protections. Why?
Because the D.C. Circuit, where she is intending to go, is the second
most powerful court in our land. It has special jurisdiction over
protections for the environment, for consumers, for workers, for women,
for the elderly. Putting her on the D.C. Circuit Court of Appeals is
truly like putting the fox in to guard the henhouse.
The concerns about this woman have not been developed in the last 6
months. Deep concerns over her objectivity and fairness, or lack
thereof, have followed her through her whole career. In 1996, when
Justice Brown was up for her current job--that is a member of the
Supreme Court of the State of California--she was rated unqualified by
a 23-member commission that was set up by the State of California to
review people going to the court. Twenty out of 23 said she was
unqualified to be a member of the California Supreme Court. The
commission specifically found that as a lower court judge, Brown
exhibited:
a tendency to interject her political and philosophical views
into her opinions.
Press reports at the time indicated that commission members had
received complaints that she was insensitive to established legal
precedent, lacked compassion, lacked intellectual tolerance for
opposing views, and misapplied legal standards.
These are not the words coming from Democratic Senators. This is from
a commission set up to review candidates the Governor was going to
appoint in the State of California. They found her unqualified, not by
a narrow margin--overwhelmingly. Twenty out of the 23 said she was
unqualified.
I will say one thing, in the 10 years since they did their work, the
State commission has been proven to be visionary, to have had
foresight, because she has definitively proven them right. She has
established a record as a habitual lone dissenter who lacks an open
mind. I heard one of the Senators over here on the majority side say
there have been other dissents. She dissented alone 31 times. In a
Republican supreme court--6 of the 7 members are Republicans--she has
dissented alone 31 times.
Justice Brown's record is the record of a judge who would discard the
foundation of our basic legal system, precedent, in order to elevate
her own extreme views over the law.
When I was going to law school, they taught us a lot of Latin terms.
One of the Latin terms they have in the law we learned as new law
students is something called stare decisis. What do those words mean?
They are Latin words that mean ``to stand by decided matter.'' It
stands for certainty. Janice Rogers Brown is a judge; she is not a
legislator. She has no right to do the things she does. I am
dumbfounded that we are going to have Republican Senators who have
decried for decades about activism--she is the epitome of an activist
judge. She does not follow precedent. She is not a legislator, she is a
judge.
This is not Harry Reid coming up with some new theory. In Federalist
Paper 78, the brilliant Alexander Hamilton wrote, explaining the
importance of a judiciary bound by precedent:
To avoid arbitrary discretion in the courts it is
indispensable that they should be bound by strict rules and
precedent.
Yet we are going to have people on the other side of the aisle walk
over here and vote for this woman. She stands for everything I have
heard my Republican colleagues rail against for years. The fact that
you are a so-called conservative does not make your activism any
better. I believe in stare decisis. When the Court over here across the
street renders a decision based on precedent, I support that. I don't
like judges to be legislators and that is what she is.
I think it would be hard to find a Senator, if the truth came out,
with everyone being candid, who would not agree with Hamilton's view.
But with Brown we have a nominee who doesn't believe in precedent. She
not only doesn't believe in it, she doesn't abide by it. Here are a few
examples.
In the case called People v. McKay, she argued against existing
precedent by saying:
If our hands are tied it behooves us to gnaw through the
ropes.
To gnaw through the ropes of precedent? Why did Alexander Hamilton
want judges bound by precedent? Because you need stability in the law.
You can't have judges acting as legislators. That is what people
complain about. I thought most of the complaints about this problem, in
fact, came from this side of the aisle.
[[Page S6216]]
In Kasky v. Nike, she argued for overturning precedent because it
``did not take into account realities of the modern world.''
That is what we hear. We hear that the Federalist Society and all
these other so-called conservative groups who want the Constitution to
be interpreted based on the words of that Constitution, not her
``realities of the modern world.''
In People v. Williams, she summarized her views stating she is
``disinclined to perpetuate dubious law for no better reason than that
it exists.''
How could a judge say that? But she does. These are the words of a
judicial activist.
I said yesterday, when somebody asked me:
If you like judicial activism, she is a doozy.
I wanted to make sure I didn't insult her. I went and looked up in
the dictionary what a doozy is. Doozy is ``extraordinary.'' She is an
extraordinary activist, not even a mainstream activist. She is the most
activist judge, in my many years in the courts and in the legislature,
I have ever seen.
She has a deep disdain for Government. Don't take my word it. Listen
to what she says, for example, about Government.
Where government moves in, community retreats, civil
society disintegrates, our ability to control our own
destinies atrophies.
We have a world out there that is looking to America for guidance.
Why are they looking to us? It is our ability to govern, our
Government. We are the envy of the rest of the world, with our
constitutional form of Government. What does she think of it? Not much.
She also says the result of Government is:
Families under siege; war on 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.
What world is she living in? She also says the result of Government
is:
a debased, debauched culture which finds moral depravity
entertaining and virtue contemptible.
I don't recognize that government she describes. Is a government
which strives to provide children with a better education one which
leads to war in the streets? Is a government which works to provide
health care to people one which results in families under siege? Is a
government which protects beautiful landmarks of our land one which
leads to an unapologetic expropriation of property?
I don't think mainstream Americans would agree to this, mainstream
Democrats, Republicans, Independents. These views are not those of a
person who should be awarded tremendous power in our federal court
system.
Take one area of the D.C. Circuit's special jurisdiction, hearing
appeals from the National Labor Relations Board. These cases involve
employee rights to unionize to achieve better health care, better
wages, and a decent standard of living. In Nevada, our culinary union,
which represents almost 60,000 people who work in our leisure-time
industry, has so effectively represented the position of these tens of
thousands of employees that such jobs are the best jobs for maids,
cooks, waitresses, waiters, and car valets of any place in the world.
Over the years, farsighted casino owners have worked with this union
because they know that in the hospitality industry, staff can make or
break an enterprise. Our labor laws encourage businesses to work with
laborers so both sides benefit.
In 1905, a case was decided by the U.S. Supreme Court called Lochner.
It invalidated worker protection laws--things such as how many hours
you could work, do you get paid overtime, basic safety measures in the
workplace. In Lochner, the U.S. Supreme Court said, No, you can't do
that. So for 32 years that was the law of the land.
In a unique situation, the Supreme Court said: Times have changed. We
are going to change that. They did that in 1937. Lochner is a case that
we look back at, not with as much dread as the Dred Scott case, but it
is pretty bad. In that case, the Lochner case, they invalidated the New
York labor statute that limited the number of hours employees could
work.
Over the passionate dissent, and I heard the distinguished chairman
of the Judiciary Committee, the distinguished Senator Specter from
Pennsylvania talk about Oliver Wendell Holmes--Oliver Wendell Holmes
dissented in the Lochner case and his dissent was one of the most
beautifully written opinions in our history. For decades, Lochner stood
as a hard-hearted barrier to worker protections enjoyed by Americans
today. Its reversal by the Supreme Court was one of the most pivotal
moments in our Nation's history.
Where does Janice Rogers Brown come in here? She laments that the
case was overturned. She wants to return to the way it used to be. She
said of Holmes' famous dissent in Lochner--in this case he was simply
wrong. She said the Lochner dissent has troubled me and has annoyed me
for a long time.
She has compared the demise of Lochner and the worker protections
that followed in its wake as a socialist revolution.
She seeks to return to Lochner, and if confirmed, she will have power
to effect those changes she wants. Why should we have a 40-hour
workweek, according to Janice Rogers Brown? Why should we have workers
compensation law, worker safety laws? Why should people have to be paid
by their employers overtime? They should not be, according to Janice
Rogers Brown.
She has attempted to distinguish between her legal opinions and her
speeches, which she said are designed to stir the pot. But she
can't. But that is not true. It is simply not true. She is being
disingenuous. Her speeches are carried forward in her opinions. The
inflammatory rhetoric in her speeches carries over into her opinions as
if copied on the old copying machines.
For example, in a speech at the Institute of Justice, she said:
If we can invoke no ultimate limits on the power of
government, a democracy is inevitably transformed into a
Kleptocracy--a license to steal, a warrant for oppression.
She wrote an opinion in the San Remo Hotel v. City and County of San
Francisco case where she said the same thing, almost identical words:
Turning a democracy into Kleptocracy does not enhance the
stature of thieves; it only diminishes the legitimacy of
government.
In another speech, she assailed senior citizens with this verbiage:
. . . today's senior citizens blithely cannibalize their
grandchildren because they have a right to extract as much
``free'' stuff as a political system will permit them to
extract.
In a case involving discrimination against a senior citizen,
Stevenson v. Superior, she said the same thing--in a dissent, of
course--that California's public policy against age discrimination
cannot benefit the public. She said that such age discrimination:
is not . . . Like race and sex discrimination. It does not
mark its victims with a stigma of inferiority and second
class citizenship; it is an unavoidable consequence of that
universal level of time.
She is saying you get old, you take the consequence, and if you get a
little gray hair and you have worked there 30 years, they can dump you
just because your hair is gray.
I am not making this up. Setting her speeches aside, and these few
opinions, her judicial opinions are enough to disqualify her for the
job.
There is another case, Aguilar vs. Avis Rent A Car. I cannot in good
taste on the Senate floor repeat what this Hispanic employee, Aguilar,
was being called in the workplace. I cannot repeat it. They are the
most vile words we have in English. I cannot do that. I have them. I
cannot do that. Vile. What did she say? There was a race discrimination
suit against an employee who had repeatedly been subjected to racial
slurs. She argued the slurs were protected by the first amendment.
While the majority soundly rejected this defense, she, in her single
dissent, endorsed these people being able to say that. I am not making
this up. She argued that even an illegal racial discriminatory speech
in the workplace--discrimination prohibited by title VII of our Civil
Rights Act--is protected by the first amendment. She believes racial
slurs in the workplace are acceptable in America. This is a woman who
is going to the second highest court in the land?
Take another case, Konig v. Fair Employment and Housing Commission.
[[Page S6217]]
There--again in a dissent, what else--she argued that an African-
American police officer who had been discriminated against should not
be awarded damages for this illegal conduct perpetrated against her.
In her world, discrimination is without an effective remedy, and
wrongdoers are rewarded.
While she displays hostility toward victims of discrimination--
willing to twist the law to deny relief--she exhibits the opposite view
when it comes to corporations. Corporations can do no wrong.
In Kasky v. Nike, the plaintiff sued Nike, alleging Nike had engaged
in false and misleading advertising in a false campaign to deny it had
mistreated its overseas workers. The majority held that these false
statements were not protected by the Constitution. Again, in dissent,
Justice Brown argued they are protected.
Under Justice Brown's reasoning of this case, corporate lies should
be protected and public protections rejected. That was her opinion.
As the Enron wrongdoers finally head to trial 4 years after they
destroyed the retirement security of its employees and devastated
investors, do we want a judge who believes that corporate lies are
protected by the Constitution?
Justice Brown also believes that the takings clause of the
Constitution should be transformed into a weapon to tear government
down. For example, in the San Remo case, a hotel owner challenged a
city permitting requirement. In dissent--again--she argued this scheme
was a taking of property requiring compensation under the Constitution.
Her assertion that a permit fee was a taking requiring compensation is
totally at odds with longstanding U.S. Supreme Court precedent. That
does not matter to her. Her radical view would mandate compensation for
everything. That is her point. She does not want government and her
view is a way to achieve that end.
If you disapprove of zoning laws which keep strip clubs and factories
from opening next door to your house, or an adult bookstore, if you
dislike the environmental process which saved the bald eagle, our
golden eagle, if you oppose the communication laws which protect our
children from indecent programming, then Janice Rogers Brown is your
kind of a judge. She does not believe in these protections and wants to
twist the Constitution to abolish them.
I said she was a doozy as an activist, and I think I have proven my
case. Her views, in my word and I think the word of the American
people, are absurd. They are without any basis in the law. They should
not be given voice on the DC Circuit.
I say to my colleagues, to the American people, if you believe in
America--and I know we do--where workers are entitled to a fair wage
for a fair day's work, where racial slurs are not condoned, where
discrimination is not tolerated, where corporations are not given
license to lie, where senior citizens are valued and honored, where we
have protections for the air we breathe, the food we eat, the water we
drink, and these are embraced instead of evaded, if you believe in
these things, no one in good conscience can approve this nomination.
The record is too clear, too disturbing, too expansive.
The influence of this court, the DC Circuit Court, is too important,
too fundamental to the rights Americans hold dear. If there were ever a
nominee whom my colleagues, Republicans and Democrats, should reject,
this is it.
This bipartisan rejection would do more to change the tenor of the
debate on judicial nominations than any step we could take. It would
send a signal to President Bush that while we may confirm the
conservative nominee--and we have confirmed 209 so far--the Senate will
not approve results-oriented activist ideologues to our Federal courts.
It would breathe new life into the ``advice'' part of the advice and
consent clause of our Constitution, encouraging partnership between the
President and the Congress.
The American people want to see us--Democrats and Republicans--
working together to improve the retirement security, their health care,
their children's education. Because of the time we have spent on judges
for weeks and weeks, we will never catch up. We have the Energy bill to
do. We have the armed services bill we have to do. We have TANF. We
hope to do something on estate tax. It goes on and on. It is all
catchup time. Why? Because of five judges and the President did not get
his way. And it will be catchup time for a long time because of it.
The people want to see us work together. They want to see the
President bring forward fair judicial nominees who will not bring an
ideological agenda to this body, whether liberal or conservative, to
these lifetime positions. The American people should demand, the Senate
should demand, that a nominee possess a fair, open mind, and an
instinctual understanding that the job of a judge is not to make law
but to interpret our laws. It is this very basic standard that this
nominee so utterly and completely fails to meet.
I urge my colleagues to reject this very bad nomination.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, in a few moments, we will vote on the
confirmation of Justice Janice Rogers Brown to serve on the U.S. Court
of Appeals for the DC Circuit. Justice Brown is a highly qualified
nominee. She is kind. She is smart. She is thoughtful. She has endured
a protracted and often bitter nominations process with grace and
dignity. I look forward to her confirmation to the Federal bench in
just a few short minutes.
It has been a long road to get to this point. Justice Brown was
nominated by the President of the United States in July 2003. She has
endured 184 questions and nearly 5 hours of debate in the Judiciary
Committee hearing, two committee votes--both of which were favorable to
Justice Brown's nomination--and one failed cloture vote despite
majority support among the Members of the Senate. She also answered
over 120 written questions and sat down for countless meetings with
individual Senators. In all, we have debated Justice Brown for over 50
hours on the Senate floor.
Now, after 2 years, Senators will finally be able to fulfill their
constitutional duty of advice and consent on the President's nominee.
Janice Rogers Brown will finally get an up-or-down vote. She will
finally get the courtesy and the respect she deserves.
During this 2-year process, Senators on the other side of the aisle
have leveled harsh and I believe unfair attacks against Justice Brown.
A careful review of her record, however, shows Justice Brown has an
unwavering commitment to judicial restraint and the rule of law.
Opponents have called Justice Brown an extremist. But we have heard
the bipartisan praises of Justice Brown from those who know her best--
her former and current colleagues on the California Supreme Court and
California Court of Appeals. They agree that Janice Rogers Brown is a
``superb judge'' and have said that ``she is a jurist who applies the
law without favor, without bias, and with an even hand.''
Opponents have called Justice Brown ``out of the mainstream.'' Yet,
as a justice on the California Supreme Court, California voters
reelected her with 76 percent of the vote, the highest vote percentage
of all the justices on the ballot. Can 76 percent of Californians be
out of the mainstream? Senators denying Janice Rogers Brown the
fairness of an up-or-down vote is what has been out of the mainstream.
Justice Brown's life is an inspiring story of the American dream. It
is an extraordinary journey from a sharecropper's field in segregated
Greenville, AL, to the California Supreme Court, and to the D.C.
Circuit Court of Appeals. Thanks to hard work and persistence and a
strong intellect, Justice Brown has risen to the top of the legal
profession.
A true public servant, she has dedicated her life to serving others.
For 24 years, she has served in various prominent positions in
California State government. In 1996, she became the first African-
American woman to serve as an associate justice on the California
Supreme Court, the State's highest court.
Janice Rogers Brown is a distinguished, respected, and mainstream
jurist. I am proud that today, after almost 2 years, the Senate will
finally give Janice Rogers Brown the vote she has waited so long to
receive.
With the confirmation last week of Justice Owen and the upcoming vote
[[Page S6218]]
on Justice Brown, the Senate continues to make progress, placing
principle before partisan politics and results before rhetoric. I hope
we can continue working together to do our constitutional duty as
Senators and give other judicial nominees the fair up-or-down votes
they deserve.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
All time is expired.
The question is, Will the Senate advise and consent to the nomination
of Janice R. Brown, of California, to be United States District Court
Judge for the District of Columbia Circuit? On this question, the yeas
and nays have been ordered. The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Jeffords),
is necessarily absent.
The result was announced--yeas 56, nays 43, as follows:
[Rollcall Vote No. 131 Ex.]
YEAS--56
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--43
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--1
Jeffords
The nomination was confirmed.
The PRESIDING OFFICER. The majority leader is recognized.
____________________