[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 11678-11691]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF JANICE ROGERS BROWN TO BE UNITED STATES CIRCUIT JUDGE FOR 
                    THE DISTRICT OF COLUMBIA CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will go into executive session to resume consideration of 
calendar No. 72, which the clerk will report.
  The assistant legislative clerk read the nomination of Janice Rogers 
Brown, of California, to be United States Circuit Judge for the 
District of Columbia Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 12 noon shall be equally divided for debate between the two 
leaders or their designees, provided that the last 20 minutes prior to 
the vote be divided, with 10 minutes under the control of the 
Democratic leader or his designee, to be followed by 10 minutes under 
the control of the majority leader or his designee.
  The assistant Democratic leader is recognized.
  Mr. DURBIN. Mr. President, under the order, the time is equally 
divided; is that right?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. DURBIN. I seek recognition under the terms of that order.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois, the 
assistant Democratic leader, is recognized.
  Mr. DURBIN. Mr. President, I am sorry that this day has come. Janice 
Rogers Brown is one of President Bush's most ideological and extreme 
judicial nominees. This is not just my opinion. I invite anyone, 
please, read her speeches, read her opinions. They reflect the views of 
a judicial activist and a person who is, in fact, an ideological 
warrior. They reflect the views of someone who is outside of the 
mainstream of American thought. They reflect the views of someone who 
should not be given a lifetime appointment to the second highest court 
in America--a court second only to the United States Supreme Court.
  I am a member of the Senate Judiciary Committee. I served as the 
ranking Democrat at Justice Brown's hearing in October of 2003. I asked 
her a lot of questions. Her answers offered little assurance that she 
will be anything but a judicial activist with a far-right agenda.

[[Page 11679]]

  She is a very engaging person. She has a great life story. You cannot 
help but like her when you first meet her. But then, as you read what 
she has said and ask her questions about it, you cannot help but be 
troubled, if you are looking for someone who is moderate and centrist 
and who will be fair in the way they view the most important cases 
coming before the court.
  Do not take my word for that. Listen to the words of George Will, one 
of the most well-known, conservative voices in America. Two weeks ago 
in the Washington Post, George Will wrote the following:

       Janice Rogers Brown is out of that mainstream. That should 
     not be an automatic disqualification, but it is a fact: She 
     has expressed admiration for the Supreme Court's pre-1937 
     hyper-activism in declaring unconstitutional many laws and 
     regulations of the sort that now define the new post-New Deal 
     regulatory state.

  I agree with George Will. So do hundreds of other individuals and 
organizations. Newspaper editorial boards across America are deeply 
troubled about her nomination by President Bush.
  Justice Brown's ideological rants about the role of government in our 
society are found most often in her speeches. She called the year of 
1937 ``the triumph of our own socialist revolution.'' Socialism in 
America, in the eyes of Justice Brown. Why? Because the Supreme Court 
decisions that year upheld the constitutionality of Social Security and 
other major parts of the New Deal. So in the eyes of Justice Brown, the 
New Deal and Social Security are socialist ideas? That shows how far 
removed she is from the reality of thinking in America.
  She stated:

       Where Government moves in, community retreats, civil 
     society disintegrates, and our ability to control our own 
     destiny atrophies.

  That is a wonderful line to throw in a novel but to announce that as 
your philosophy as you take off to preside over a bench making 
decisions involving the lives of hundreds of thousands of Americans is 
just too extreme.
  Justice Brown has praised an infamous case, Lochner v. New York. It 
is a 100-year-old case. The Supreme Court struck down maximum-hour laws 
for bakers and ruled that Government regulations interfered with the 
constitutional right to ``freedom of contract.'' The Lochner case has 
been repudiated by both liberals and conservatives. They said it went 
too far. They believed it was extreme, but not Justice Brown. She not 
only accepts the Lochner decision, she embraces it.
  In another speech, Justice Brown said our Federal Government is like 
slavery. She said:

       We no longer find slavery abhorrent. We embrace it. We 
     demand more. Big government is not just the opiate of the 
     masses. It is the opiate.

  Think about these words. Interesting things to read. You might want 
to read them from time to time and say, let's see what the far right 
thinks about things, except these are the words of a woman who is 
seeking to bring her views to a lifetime appointment on the Federal 
bench.
  She has blasted Government programs that help seniors, and here is 
what she said:

       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.

  Think about that. Think of the cynicism in that remark and think 
about whether she is the judge you would want to face with a critical 
decision involving your life, your family, your community, or our 
country--Janice Rogers Brown.
  She rebuked elected officials for ``handing out new rights like 
lollipops in the dentist's office.'' She has complained that ``in the 
last 100 years, and particularly in the last 30, the Constitution has 
been demoted to the status of a bad chain novel.''
  Think about that. Is Roe v. Wade chapter 1 of Justice Brown's bad 
chain novel? How about Brown v. Board of Education, Justice Brown? Is 
that another bad chapter in America's novel? How about Miranda, a 
decision which has now been accepted across America, another bad 
chapter in America's novel?
  Justice Brown just does not get it. America has changed, thank God, 
in recognizing the right of privacy, in recognizing that we are putting 
behind us segregation, separate but equal schools, in recognizing that 
when it comes to the power of the State, there are limitations and 
there are rights of individuals. For Justice Brown, these are part of a 
bad chain novel. What a choice of words.
  Justice Brown's rhetoric suggests she is guided more by ``The 
Fountainhead,'' ``Atlas Shrugged,'' and ``The Road to Serfdom'' than by 
our Constitution and Bill of Rights. And she wants a lifetime 
appointment on the bench?
  The Washington Post asked a question in an editorial this morning of 
Republicans in the Senate: If you truly want moderate people who are 
not activist, who do not come to the bench with an agenda, how can you 
support Justice Brown? When you take a look at what she has done and 
said, how can you honestly believe she is going to be moderate in her 
approach on the bench?
  The question is whether Republican Senators will march in lockstep 
because President Bush says take it or leave it. It is Justice Janice 
Rogers Brown, you have to have her. If they take it, they are basically 
turning their backs on the fact they have argued against activism on 
the bench. Hers is activism from the right, not from the left. But if 
you are opposed to judicial activism, how could you support her based 
on what she said?
  In her confirmation hearing, Justice Brown dismissed her speeches. 
She said they were just an attempt to stir the pot. They did more than 
stir the pot. They set the kitchen on fire. Her speeches show she has 
the temperament and ideology of a rightwing radio talk show host, not 
of a person we want to serve on the second highest court of the land 
for a lifetime--a lifetime.
  Justice Brown's nomination to the DC Circuit of all courts is 
particularly troubling. The DC Circuit is a unique court. It is the 
court that most closely oversees the operations of Government, such as 
dealing with worker safety and unfair labor practices. It is the only 
appellate court with exclusive jurisdiction over many aspects of 
environmental and energy laws. How ironic and unfortunate to have 
someone considered for that position who is so openly hostile to the 
role of the Government when it comes to the environment, when it comes 
to protecting individual rights.
  As a member of the California Supreme Court, Justice Brown has put 
her theories into practice. In case after case, Justice Brown has sided 
with anti-Government positions, and she has sided consistently against 
victims seeking rights and remedies. She is a tough judge. Sometimes 
you want a tough judge, but you also want a balanced judge, one who is 
going to be fair in what they do on the bench.
  Oftentimes she is the loan dissenter--remarkable--because the 
California Supreme Court has six Republicans and only one Democrat. 
Senator Barbara Boxer of California has counted at least 31 cases where 
Justice Brown was the sole dissenter. Let me give a few examples.
  She was the only member of the California Supreme Court to find the 
California Fair Employment and Housing Commission did not have the 
authority to award damages to housing discrimination victims.
  She was the only member of the court to conclude that age 
discrimination victims should not have the right to sue under common 
law, an interpretation directly contrary to the will of the California 
Legislature.
  She was the only member of the California Supreme Court who voted to 
strike down a San Francisco law that provided housing assistance to 
displaced low-income, elderly, and disabled people.
  In a case last year, Justice Brown was the sole member of her court 
who voted to strike down a law that required health insurance plans 
that cover prescription drugs to include prescription contraceptives in 
that coverage. Her open hostility to access to contraception is 
particularly worth noting today, June 7, 2005. Today is the

[[Page 11680]]

40th anniversary of the landmark Supreme Court case Griswold v. 
Connecticut, which established a constitutional right to marital 
privacy. That case really was a watershed decision.
  In the State of Connecticut and several other States, a religious 
group had been successful in convincing the State legislature to 
dramatically limit the availability of birth control and contraception. 
Forty years ago, some of us did not know it was happening, but it was 
happening. In some States, you could not buy birth control because the 
legislature said no. That is a decision the State had decided that you 
could not make as an individual.
  The Griswold case overthrew that law and said that your personal 
right to privacy trumped State rights when it came to access to 
contraception.
  It turns out that Justice Brown's hostility to access to 
contraception runs counter to 40 years of thinking in America about our 
rights as individuals to privacy and to make those decisions involving 
personal responsibility. Justice Janice Rogers Brown might take that 
right away.
  To reward her for this extreme and fringe view, President Bush wants 
to give her a lifetime appointment to the second highest court of the 
land. There she will sit day after day, week after week, and month 
after month making decisions that affect the lives of individuals. It 
is her point of view that will prevail. She has shown no inclination 
toward moderation. She will push that agenda on that court, and people 
will come into that courtroom and wonder what country they are living 
in, where this court might be meeting because it is so inconsistent 
with what America has stood for.
  In another case, Justice Brown was the only member of the California 
Supreme Court who voted to make it easier to sell cigarettes to minors. 
Isn't that perfect? She wants the Government to invade your privacy 
when it comes to the decisions about birth control and your family, but 
she does not want the Government to stop the gas station down the 
street from selling cigarettes to a 12-year-old.
  She was the only member of her court who dissented in two rulings 
that permitted counties to ban guns or gun sales on fairgrounds or 
other public property.
  She was the only member of her court who voted to overturn the rape 
conviction of a 17-year-old girl because she believed the victim gave 
mixed messages to the rapist. She was the only member to dissent. She 
read the facts and concluded that she sided with the rapist and not the 
victim--the only member to dissent.
  She was the only member of her court who concluded there was nothing 
improper about requiring a criminal defendant to wear a 50,000-bolt 
stun belt at his trial--the only member of the court, a court of six 
Republicans and one Democrat. In many of these cases, there were clear 
precedents, decisions by the court which Justice Brown chose to ignore. 
Her personal philosophy was more important to her than the law. That is 
known as judicial activism. That is what Republicans have condemned, 
and that is what they will endorse if they vote for her nomination.
  Why does she ignore the law so often? It gets in the way of her 
personal beliefs. Those are the most important things from her point of 
view.
  This is not a new revelation about Justice Brown. Back in 1996, the 
California State Bar Commission rated Justice Brown as ``not 
qualified''--not qualified--for the California Supreme Court. Here is 
what they said about her: She had a tendency ``to interject her 
political and philosophical views into her opinions.'' No surprise. 
Read what she has done on that court. Read what she said about the law. 
And do not be a bit surprised when she comes to this DC Circuit Court, 
if she is approved by the Senate for a lifetime appointment, and does 
exactly the same thing. It is not as if we can say 2 years from now: 
Well, we guessed wrong; she is not independent, she is not moderate, 
she is an activist, we will remove her. No way. This is a lifetime 
appointment to this court by the Bush administration, just the kind of 
ideologue they want to put on that bench to influence decision after 
decision as long as she lives.
  Nine years later, the American Bar Association, in evaluating Justice 
Brown for the position we are voting on today, gave her the lowest 
passing grade. Several members of the ABA screening committee rated 
Justice Brown ``not qualified'' again.
  In the editorial I mentioned earlier, entitled ``Reject Justice 
Brown,'' the Washington Post today asserted:

       No Senator who votes for her will have standing any longer 
     to complain about legislating from the bench.

  And the Washington Post is right. Do not complain about judicial 
activism if you vote for Janice Rogers Brown. She is a judicial 
activist. She has an agenda, and she has been loyal to it on the 
California Supreme Court. There is no reason to expect anything 
different on the DC Circuit Court.
  A Los Angeles Times editorial entitled ``A Bad Fit for a Key Court'' 
stated:

       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.

  That is from a Los Angeles Times editorial which, incidentally, is 
her home State newspaper. They know her best.
  The New York Times stated that Justice Brown ``is an outspoken 
supporter of a radical movement to take constitutional law back to 
before 1937, when the Federal Government had little power to prevent 
discrimination, protect workers from unsafe conditions or prohibit 
child labor.''
  The Detroit Free Press put it this way:

       Since her appointment to the State court in 1996, 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.

  Over 100 organizations oppose Justice Brown. It takes something in 
this town to get 100 groups to oppose someone. She pulled it off, 
including almost every major African-American organization in America, 
despite the fact that Janice Rogers Brown is an African American.
  Dr. Dorothy Height, the great civil rights leader, recipient of the 
Congressional Gold Medal, attended a press conference before the 
Judiciary Committee vote on Justice Brown in November of 2003 and said 
this:

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

  How hard it must have been for Dorothy Height, this great civil 
rights leader, to come out and publicly say that this African-American 
woman, Janice Rogers Brown, was not the right choice for the DC Circuit 
Court, the same city that Dorothy Height calls home.
  The Senate rejected the nomination of Janice Rogers Brown in 2003. 
Her renomination this year is less about confirmation than it is about 
confrontation. It is evident the White House wants to pick a fight over 
this nomination. Well, they will get their wish today.
  This White House strategy of confrontation does a great disservice to 
the American people, who have every right to expect their elected 
representatives to work together to address the real problems facing 
our Nation, rather than fighting the same battles over and over.
  I know my colleagues across the aisle have steadfastly supported 
President Bush's judicial nominees, but I urge them to at least stand 
up to the President on this one.
  I ask them to consider the story of Stephen Barnett, a distinguished 
constitutional law professor at the University of California at 
Berkeley. Professor Barnett enthusiastically endorsed Janice Rogers 
Brown before her October 2003 hearing, and Senator Hatch specifically 
mentioned Professor Barnett and his endorsement in his opening 
statement at Justice Brown's hearing.

[[Page 11681]]

  But Professor Barnett changed his mind after he learned more about 
her record. After the Brown confirmation hearing, Professor Barnett 
sent a letter to Senator Hatch withdrawing his support. Here is what he 
said:

       Having read the speeches of Justice Brown that have now 
     been disclosed, and having watched her testimony before the 
     Committee on October 22, I no longer support the nomination. 
     Those speeches, with their government-bashing and their 
     extreme and outdated ideological positions, put Justice Brown 
     outside the mainstream of today's constitutional law.

  I urge my colleagues across the aisle, who were initially inclined to 
support the Brown nomination, like Professor Barnett, to reconsider. 
Federal judges serve for life. The views of Janice Rogers Brown are too 
extreme and too radical for a lifetime of service on the second highest 
court in America.
  It is well known that the last time the nomination of Janice Rogers 
Brown came before the Senate, it was filibustered. I voted to continue 
that filibuster because I do not believe she is the right person for 
the job. There was a big controversy over the use of the filibuster, 
and a decision was reached that Janice Rogers Brown would not be 
subject to a filibuster when she came up this week. That is an effort 
to move the Senate forward, to put the nuclear option and that 
constitutional confrontation behind us.
  I urge my colleagues who believe in good faith we need to be 
bipartisan to show that bipartisanship today. Take an honest look at 
her record. Understand she is not a good person for a lifetime 
appointment. Join us in defeating the nomination of Janice Rogers 
Brown.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from New York is 
recognized.
  Mr. SCHUMER. Mr. President, I rise to speak on the same subject as my 
good colleague from Illinois. I hope everyone heard his outstanding 
comments on Janice Rogers Brown. If there were ever a nominee who is 
out of the mainstream of every nominee of all the 219 who have come 
before us, there is no one more extreme than Janice Rogers Brown.
  I have a special plea today. It is to my moderate colleagues across 
the aisle. They have stood with their party and their President on 
wanting an up-or-down vote, but that does not mean they have to vote 
yes. If there was ever a nominee whose views are different from theirs, 
it is Janice Rogers Brown. She is so far out of the mainstream that 
conservative commentators such as George Will who have defended the 
other nominees have said that she is out of the mainstream.
  She is so far out of the mainstream that she makes Justice Scalia 
look like a liberal. She is so far out of the mainstream that she 
wishes to roll back not 20, not 40, not 60, not 80, but 100 years of 
law and jurisprudence. She is typical of the kind of nominee we should 
not have on the bench, whether they be far right or far left, someone 
who thinks their own views ought to take precedence over the views of 
the law, over the views of the people, over the views of the 
legislature and the President.
  There is no doubt that Janice Rogers Brown is smart and accomplished. 
There is no doubt that she rose from humble beginnings, and that is 
truly impressive, but none of that can offset her radical and 
regressive approach to the law. None of that can mitigate her hostility 
to a host of litigants who have appeared before her. The biography, as 
wonderful as it is, is no justification to put on the courts someone 
who clearly does not belong there. Particularly to place such a nominee 
on the DC Court of Appeals, the second highest court in the land, would 
be one of the worst wrongs we would have done in the short span of the 
21st century for which this Congress has met.
  To my mind, Janice Rogers Brown is the least deserving of all of 
President Bush's appeal court nominees. Before I review the reasons I 
will vote against her, I wish to ask a question that continues to nag 
at me. I asked it yesterday, but let me ask it again in a different way 
because I do not have a good answer, and I do not think there is a good 
answer. Why are even moderate Republican Senators boarding the Brown 
bandwagon when clearly her views are so far away from what any 
moderate, Democrat or Republican, believes? A second question: Why are 
so many self-described conservatives voting for her when she stands 
against all the things this conservative movement has said they believe 
in?
  Does this nominee embody the conservative ideal of an appellate 
judge? If the rhetoric from the President and the Republican leadership 
is to be believed, a conservative nominee must be at least three 
things: He or she must be a strict constructionist, he or she must be 
judicially restrained, and he or she must be mainstream.
  I ask my friends on the other side of the aisle to take this little 
multiple-choice quiz before they vote for Janice Rogers Brown. Which of 
these describes the nominee? Is she a strict constructionist if she 
says the whole history of the New Deal should be washed away? Is she a 
strict constructionist if she says zoning laws, which have been with us 
for over 100 years, are unconstitutional? Is she judicially restrained 
when she says that the elderly are cannibalizing the young because they 
want benefits? Is she mainstream when she asks question after question 
and then takes views that 99.9 percent of the American people would 
oppose?
  I would argue, and I do not think there is very little dispute, that 
Janice Rogers Brown is not a strict constructionist, is not judicially 
restrained, and is not mainstream.
  Let us see if she is a proud and principled strict constructionist, 
and let us use President Bush's definition of what a strict 
constructionist is. It is a judge who will not legislate from the 
bench. Well, Janice Rogers Brown is no more of a strict constructionist 
than I am a starting center for the New York Knicks.
  Listen to what a conservative commentator, Ramesh Ponnuru of the 
National Review, wrote about her:

       Republicans, and their conservative allies, have been 
     willing to make . . . lame arguments to rescue even nominees 
     whose jurisprudence is questionable. Janice Rogers Brown . . 
     . has argued that there is properly an extra constitutional 
     dimension to constitutional law. . . .

  Well, I say to my conservative strict constructionist colleagues, if 
they are opening the door to this extra constitutional dimension, they 
are going to reap what they have sown. They are going to find someone 
sooner or later put on the court who is way to the left and says there 
is an extra constitutional dimension. My guess is that some of their 
allies on the hard right already think that has happened in, say, 
Justice Kennedy's decision in Lawrence. But what is good for the goose 
is good for the gander.
  Ponnuru goes on to write:

     . . . She has said that judges should be willing to invoke a 
     ``higher law'' than the Constitution.

  Let me repeat that. Janice Rogers Brown has said that judges should 
be willing to invoke a higher law than the Constitution. Does she want 
a theocracy? Does she want a dictatorship? The Constitution is our 
highest law. We may have many other beliefs, and the Constitution 
protects our right to practice those beliefs, but for a judge to say 
they will invoke a higher law than the Constitution--how can any 
conservative stand here with a straight face and tell us that they are 
for Janice Rogers Brown?
  Let us look at her own words. Here is what she said about California 
proposition 209. She decided she should ``look to the analytical and 
philosophical evolution of the interpretation and application of Title 
VII to develop the historical context behind proposition 209.
  Not what the people voted for, not strict constructionism, but her 
own view.
  Let us go to the next choice. Is she otherwise a dependable warrior 
against the scourge of conservatives everywhere--judicial activism? 
Well, here are her own words:

       We cannot simply cloak ourselves in the doctrine of stare 
     decisis.
       [I am] disinclined to perpetuate dubious law for no better 
     reason than it exists.

  Please. This is not someone who is a strict constructionist. It is 
somebody

[[Page 11682]]

who is saying, with, I might say, intellectual arrogance, that her 
views supersede the views of the law. For those who did not go to law 
school or school where they learned Latin, ``stare decisis'' means 
decisions that have been already made by the courts, and they imply a 
grand tradition often going back to England and Anglo-Saxon law to the 
1200s.
  We cannot cloak ourselves in the doctrine of stare decisis? Again, 
what does Janice Rogers Brown want to be nominated for--dictator or 
grand exalted ruler? Please. How can a conservative who believes we are 
to follow the rule of law, who believes that there should be strict 
constructionism and is against activist judges, support someone who 
says, ``I am disinclined to perpetuate dubious law for no better reason 
than it exists''?
  What arrogance. What gall. And most importantly, why would we even 
think--why did President Bush think and why do my colleagues think--of 
putting someone on the bench who says that? Whether you are the most 
conservative Republican or the most moderate Republican, whether you 
are the most liberal Democrat or the most moderate Democrat, we don't 
believe this. None of us believe this. This is against our entire 
American tradition, from the Magna Carta, through common law, through 
our Constitution, through the next wonderful 200 years.
  The California State Bar Judicial Nominees Commission, which gave her 
a ``nonqualified'' rating when she was first nominated to the court in 
1996, said that the rating was in part because of complaints that she 
was ``insensitive to legal precedent.''
  Here is what Andrew Sullivan says, another conservative writer. This 
is not Chuck Schumer, Democrat of Brooklyn, NY. This is Andrew 
Sullivan, conservative writer. He said there is a very good case to be 
made for the:

      . . . constitutional extremism of one of the president's 
     favorite nominees, Janice Rogers Brown. Whatever else she is, 
     she does not fit the description of a judge who simply 
     applies the law. If she isn't a ``judicial activist,'' I 
     don't know who would be.

  My colleagues, whether you are here in the Senate or out in the 
conservative movement, you spent a 20-year battle fighting judicial 
activism, but all of a sudden you are saying: Never mind. If we like 
the views of the nominee, strict construction goes out the window, and 
we will put in our own variety of judicial activist.
  That is not going to bode well for consistency in your arguments, but 
more importantly for the Republic, and for the keystone of article 3, 
the article 3 branch of Government, the judiciary, which is that judges 
interpret the law and follow the precedent of law and do not make law.
  Mr. Ponnuru, the National Review writer, said:

       She has said that judicial activism is not troubling per 
     se. . . .

  Here is the point of Mr. Sullivan, who was the author of this other 
quote. He said:

       I might add, I am not unsympathetic to her . . . views. But 
     she should run for office, not the courts.

  I couldn't say it better myself. This is somebody who has such 
passionate views that she has to take those views, which are so 
radically different--our Constitution says our way of governing is you 
do not do that from the bench. You do it by running for office.
  My guess is if she actually ran for office--of course she ran for 
judge, but she was unopposed. I am sure if right now you asked the 
people of California, Who is Janice Rogers Brown, maybe 3 or 4 percent 
would know and they might not know her views.
  You run for office.
  What about her substantive views, are they mainstream? To call 
Justice Brown mainstream is a distortion of her record. No one is 
further from the mainstream. I cannot think of a single Clinton nominee 
who is as far to the left as Janice Rogers Brown is to the right. I 
cannot think of a single George Bush nominee, George Bush 41; I cannot 
think of a single Ronald Reagan nominee; I cannot think of a single 
nominee, in at least my lifetime, who is more out of the mainstream 
than Janice Rogers Brown.
  But don't take my word for it. How about George Will--hardly a 
leftwing liberal--on the approach of this nominee? Here is what he 
said:

       Janice Rogers Brown is out of the mainstream of 
     conservative jurisprudence.
       It is a fact: She has expressed admiration for the Supreme 
     Court's pre-1937 hyper-activism in declaring unconstitutional 
     many laws and regulations of the sort that now define the 
     post-New Deal regulatory state.

  There may be some people who feel we should go back before the New 
Deal, where the rich and powerful got their way almost all the time. 
But, again, as was said by Andrew Sullivan, if she believes that, let 
her run for office. But here is the dirty little secret of those on the 
hard right who believe, as Janice Rogers Brown does, that the New Deal 
was wrong, the Commerce Clause should be dismantled and wages and hours 
laws are unconstitutional. The dirty little secret is they know they 
cannot win in the court of public opinion, and their plan is to impose 
their views on the rest of us by capturing the judiciary. Nobody--
nobody personifies those views more than Janice Rogers Brown.
  Let me go over a few other of her views before I conclude. She has 
described the New Deal as the ``triumph'' of America's ``socialist 
revolution.'' Does that place her in the mainstream?
  She has said the Lochner case--which said basically that wage-and-
hours laws passed by the States are unconstitutional--was correct. Does 
that place her in the mainstream, taking a case from 1906 that has been 
repudiated from the 1930s onward and saying that it was correctly 
decided?
  On another occasion she said 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.

  I would like the senior citizens of America, whether they be liberal 
Democrats or conservative Republicans, to answer the question: Is she 
out of the mainstream? By getting Social Security, is she asking are 
they cannibalizing the young? Or Medicare? Because I don't know what 
other benefits senior citizens get.
  Janice Rogers Brown, by this quote, seems to believe we should not 
have Social Security. It is probably part of the New Deal Socialist 
revolution. We should not have Medicare. That is part of Lyndon 
Johnson's furtherance of the Socialist revolution. How mainstream is 
that?
  Again, I want to ask my moderate colleagues--not only the 7 who 
signed the document but the 10 or 12 others--how can you vote for her? 
I mean, I understand marching in lockstep. I understand we are going to 
have different views on a whole lot of judges. But how about once--once 
showing a little independence. Because I know that Janice Rogers 
Brown's views are not your views. She is not nominated for a district 
court. She is nominated for the second highest court in the land, where 
those views will be heard over and over and over again.
  I am left with the same question. It is clear that her record shows 
she is not strict in her constructionism; she is not mainstream in her 
conservatism; and she is not quiet about her activism. Again, let me 
ask the question: Why is Janice Rogers Brown touted as the model of a 
conservative judge when she is anything but conservative in her 
judicial approach?
  I believe there are many Senators across the aisle who would vote 
against such a candidate because her judicial philosophy could not be 
more out of sync with theirs. But we know there is tremendous political 
pressure, party pressure on the moderate Senators.
  We have a new chart because we have had a few new votes. Of all the 
votes we have had on judicial nominees, cloture and up-or-down votes, 
here is how the Republican side of the aisle has stacked up: 2,811 to 
2. Only twice in all the votes, 2,813, has any Member of the other side 
voted against; once, when Trent Lott voted against Judge Gregory, and 
just last week on Justice Owen, Senator Chafee voted against her.
  If we want up-or-down votes, doesn't that imply some independence of 
thought? Doesn't that imply we not march in lockstep? Doesn't that 
imply,

[[Page 11683]]

when somebody is so far out of the mainstream, such as Janice Rogers 
Brown, that there will be some opposition to her from the other side of 
the aisle?
  Senator Frist, last week, or a few weeks ago, spoke about leader-led 
filibusters of judges--whatever that means. Is the vote for Janice 
Rogers Brown not a leader-led rubberstamping of nominees, nominees who 
have not even convinced conservatives that they belong on the bench?
  I continue to believe Judge Brown was the least worthy pick this 
President has made in the appellate courts, and that is based on her 
record--not her background, not her story, not her race, not her 
gender. We should vote for judges based on their record, and I, once 
again, ask my colleagues across the aisle to look at that record.
  If my colleagues across the aisle ask three simple questions--Is the 
nominee a strict constructionist? Is the nominee a judicial activist? 
And is the nominee a mainstream conservative?--I don't believe many 
could bring themselves to vote for Janice Rogers Brown.
  I could not support Judge Brown's nomination the first time. I cannot 
support it now. I urge my colleagues, particularly my moderate friends 
from the other side of the aisle, to vote against her this afternoon.
  I yield the floor and suggest the absence of a quorum and I ask the 
time of the quorum be charged equally to each side as the quorum moves 
forward.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would like to share a few thoughts 
about the nomination of Janice Rogers Brown, one of the best 
nominations the President has made. She is a woman of integrity and 
ability, with proven skill as an appellate jurist. She has won the 
support and admiration of her colleagues on the California appellate 
courts with whom she served and has won the support of the people of 
California, as evidenced by her being reelected to the California 
Supreme Court with 76 percent of the vote.
  What do we hear from my colleague, the great advocate that he is, and 
my friend, Senator Schumer? It is sad. He uses words of radicalism to 
declare that she is outside the mainstream. He says she is far over and 
out of the mainstream; her radical and regressive approach to the law 
is so off the charts; she expresses hostility to a host of litigants; 
the most out of the mainstream; a radical. Everything she believes in 
is what they believe--he is talking about President Bush, I suppose, 
and Republicans. He says she is no more a strict constructionist than 
he is a second baseman for the New York Yankees. This morning he said 
that she is no more a strict constructionist than he is a center for 
the New York Jets.
  Saying it does not make it so. There has been a systematic effort--
and I have watched with amazement--to declare this fine justice on the 
California Supreme Court an extremist. Get past the allegations of 
extremism, the charges, and the mud throwing--extremist, radical, out 
of the mainstream. This morning, Senator Schumer used words that were 
interesting: Did she want to be a dictator? What in her record 
indicates she wants to be a dictator?
  Then he said this: Did she want to be a grand exalted ruler? Was that 
some reference to the Ku Klux Klan? This African American from my home 
State of Alabama left as a teenager. I am sure one reason she went to 
California was for discrimination and segregation that existed in rural 
Alabama where she grew up at that time. She is the daughter of 
sharecroppers. To have it suggested that somehow her ideas are 
consistent with the Ku Klux Klan is offensive. It ought to be offensive 
to Americans.
  Where is the meat? What is it that shows Justice Brown is not fair, 
that she is incapable? I don't see it. As a matter of fact, they have 
examined her record in great detail, every speech she has given, 
everything she has done in her life, remarks she has made, opinions she 
has written. She is a restrained jurist, respected by her colleagues 
and the people before whom she practices. She is one of the most 
deserving nominees. I am proud of her. I am proud she came from 
Alabama. I am sorry she left the State of Alabama. I am proud of what 
she has accomplished in the State of California.
  She currently serves as an associate justice on the California 
Supreme Court and has held that job since 1996. Prior to that, she 
served for 2 years as an associate on the Third District Court of 
Appeals.
  Let me add, if she is such a radical dictator, grand exalted ruler, 
if that is her mentality and way of doing business, would every member 
of the Third District Court of Appeals with whom she served and four of 
her six fellow justices on the California Supreme Court write a letter 
to Senator Hatch, then Chairman of the Senate Judiciary Committee, 
saying to confirm this wonderful woman, asking that she be confirmed, 
and saying glowing things about her? One of the justices on the 
California Supreme Court who supports her is Justice Stanley Mosk, one 
of the most liberal justices in America, recognized in that vein 
throughout the country. Why would Justice Mosk and the others support 
Janice Rogers Brown if she is such an out-of-the-mainstream radical 
justice? The truth is, she is not. This has been conjured up by certain 
groups, left-wing attack groups who have been smearing and besmirching 
and sullying the reputation of excellent nominees for many years. It is 
not right what is being done to this lady. She is a person of sterling 
character. She writes beautifully. She is respected by her colleagues. 
She is very much appreciated by the people of California. Four judges 
were on the ballot when she ran for reelection, and she got the highest 
number of votes of any.
  We have Senators from California telling us she is out of the 
mainstream. Maybe she believes in carrying out the duly elected death 
penalty statutes of California. Maybe she believes the constitutional 
amendment they passed, Proposition 209, ought to be enforced. Maybe she 
believes the Pledge of Allegiance shouldn't be struck down as 
unconstitutional. Maybe that is what they want. Maybe that is what they 
think is a mainstream judge. I don't think she is there. She is the 
kind of judge President Bush promised to appoint. It was an important 
issue in this past election. The people of America debated and 
discussed it and spoke clearly in the reelection of President Bush that 
they want judges who enforce the law and follow the law--not make the 
law.
  They say she is out of the mainstream, but in 2002 on the California 
Supreme Court--surely everyone recognizes California is not a right-
wing State. It is a State in which a higher percentage voted for John 
Kerry. But in 2002, her colleagues on the California Supreme Court 
asked her to write the majority opinion for the court more times than 
any other justice on the court. Why would they do that if she is out of 
the mainstream? Why would they have written letters on her behalf?
  The way it works on the court, the justices meet and they discuss a 
case, then the justices indicate how they are going to decide the case, 
what their decision is, a majority gets together, and someone is asked 
to write the opinion for the majority. The rest of the justices sign 
onto the majority opinion, if they agree to it. Sometimes they will 
file a separate occurrence if they do not agree with everything in the 
opinion. In 2002, she was asked by her colleagues to write more 
majority opinions than any other justice on the court. That speaks well 
for the respect they have for her.
  There has been much distortion of her record in an attempt to justify 
these mud-slinging charges that have been made against her. Senator 
Schumer and others have cited the High-Voltage Wire Works case, saying 
she dissented in this case. They claim that she dissented from it and 
that shows her to be a radical judge, because it dealt with affirmative 
action and quotas and the California constitutional amendment that was 
passed by

[[Page 11684]]

the people of California to eliminate quotas in California.
  Let me state the truth: She did not dissent. She anchored and wrote 
and authored the unanimous decision of the California Supreme Court. 
They asked her to write this affirmative action / California 
constitutional amendment / Proposition 209 opinion. Her colleagues 
asked her to write it. She wrote it. They all joined in. It was a 
unanimous opinion. It was based on California Proposition 209 that 
said:

       The State shall not discriminate against, or grant 
     preferential treatment to any individual or group on the 
     basis of race, sex, color, ethnicity, or national origin in 
     the operation of public employment, public education, or 
     public contracting.

  The case involved the city of San Jose. They had a minority 
contracting program that required minority contractors bidding on the 
city projects to either utilize a specified percentage of minority and 
women contractors or document efforts to include women and 
subcontractors in their bids.
  Every judge who reviewed the case, including the trial judge, the 
intermediate appellate court judges where she previously sat, and the 
California Supreme Court Justices, agreed that the San Jose program 
constituted ``preferential treatment'' within the meaning of 
Proposition 209. They struck down the program.
  And they suggest somehow she is against all affirmative action 
programs in America and that she does not believe in those things. She 
has explicitly stated otherwise. For example, in the High-Voltage Wire 
Works opinion she explicitly stated this: ``equal protection does not 
preclude race-conscious programs.'' In other words, she is saying that 
there can be race-conscious programs in legislation under the equal 
protection clause, but they cannot be too broadly used. It is a 
dangerous trend. You have to watch it and be careful. This is what the 
Supreme Court has said about it. She also said there are many lawful 
ways for businesses to reach out to minorities and women. She favors 
that. That is mainstream law in America. I don't know what they are 
talking about when they suggest her opinion, joined by all the justices 
of the California Supreme Court, was out of the mainstream. That is 
beyond the pale.
  It is suggested she does not believe in stare decisis, the doctrine 
that courts should tend to follow the previous opinions of courts. But 
all of us know, and I know Senator Schumer and anyone who believes in 
civil liberties knows, a court opinion is not the same thing as the 
Constitution of the United States. Some prior court opinions have been 
rendered and made the law of the land which were not consistent with 
the Constitution of the United States.
  What about Plessy v. Ferguson? Justice Harlan dissented from that 
opinion, which said separate but equal was constitutional. Justice 
Harlan believed that separate but equal was unconstitutional. Were the 
judges who later reversed Plessy v. Ferguson activists? I don't think 
so. I think they were acting consistent with a clearer understanding of 
the equal protection clause and the due process clause of the 
Constitution of the United States than the Court in Plessy. Why attack 
her on that basis? It is not legitimate.
  The twelve judges on the California Third District Court of Appeals 
wrote on her behalf. They said:

       Justice Brown has served California well. She has written 
     many important decisions establishing and reaffirming 
     important points of law. Her opinions reflect her belief in 
     the doctrine of stare decisis.

  So the 12 judges who wrote on her behalf say she is a believer in 
stare decisis. Yet we have one or two Senators standing up and saying 
she does not believe in that. Not so. In fact, she has a proven record 
of following and showing respect for precedent.
  For example, in Kasler v. Lockyer, Justice Brown, in a California 
opinion, wrote the majority opinion for the court upholding an assault 
weapons ban. She followed a prior decision by the California Supreme 
Court even though she believed that prior decision was wrongly decided 
and had dissented in it. But when it came back up, and the case had 
been decided, she deferred to the California Supreme Court's decision 
even though that wasn't her personal view. Doesn't that show she is 
properly respectful of precedent?
  Sometimes it is important that cases be challenged and judges 
overrule a prior decision. Sometimes, even if you think it is wrong, it 
is better to let it stand just to provide stability in the law. Judges 
have to make that call frequently.
  Senator Schumer says Justice Brown is an extremist and ``President 
Clinton would never have nominated someone like this.'' But he has 
probably forgotten Judge Paez, who was nominated to the Ninth Circuit 
Court of Appeals by President Clinton. This is what a real activist is. 
This speaks to what an activist judge is. This is what Judge Paez, who 
we confirmed, says about his judicial philosophy: It includes ``an 
appreciation of the courts to act when they must, when the issue has 
been generated as a result of the failure of the political process to 
resolve a certain political question'' because in such instances, Judge 
Paez says, ``there's no choice but for the courts to resolve the 
question that perhaps ideally and preferably should be resolved through 
the legislative process.''
  I see the Presiding Officer, Senator Vitter, listened to that phrase. 
That is what activism is. It is a belief that a judge can act even 
though the legislature does not. It is a belief that if the legislature 
does not act, the judge has a right to act. That is a stated judicial 
philosophy of activism. Janice Rogers Brown never said anything like 
that, nothing close to that.
  So I repeat again, this is a nominee with a sterling record. She has 
served on the Third District Court of Appeals in California. She served 
in the attorney general's office of the State of California where she 
wrote appellate briefs to the appellate courts and argued cases 
involving criminal justice to defend convictions in the State. She now 
serves on the Supreme Court of California. She was reelected by an 
overwhelming vote, the highest vote of any judge on the ballot. We have 
received a letter on her behalf from all of the court of appeals 
justices who have served with her on the court of appeals, and four of 
the six justices on the California Supreme Court, including the liberal 
icon, Justice Stanley Mosk.
  I think this is a nominee who is worthy of confirmation. I am 
disappointed and hurt by some of the mischarac-
terizations of her record and her philosophy. I believe if Senators 
review this nominee's record, they will see she will make an 
outstanding justice. I am pleased she is a native of my State, and I 
wish her every success.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Burr). The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague from Massachusetts for 
allowing me to go out of turn. I will be fairly short.
  Mr. President, we have been debating the circuit court nominations of 
Justice Janice Rogers Brown and too many other nominees for way too 
long. Justice Brown was first nominated to the DC Circuit Court of 
Appeals in July of 2003.
  Over the years, I have grown accustomed to the talking points of 
Brown's liberal opposition. I think I have them committed to memory 
now. Some liberal elitists charge she is extreme. Some liberal elitists 
charge she is out of the mainstream. Some liberal elitists charge she 
is a radical conservative.
  This same broken record has been spun now for too many years, and 
with too many nominees. Here is what is left out of this tired song and 
dance.
  Justice Janice Rogers Brown is a proven jurist. Her credentials and 
her character are beyond reproach. She is a lifetime public servant 
committed to the extension of civil rights and equal justice under law, 
and there can be no doubt that these deep commitments grew in part out 
of a childhood that witnessed the true evil of Jim Crow segregation.
  She came up the hard way. She served for 2 years as an associate 
justice on California's Third District Court of Appeals prior to being 
appointed to the California Supreme Court.

[[Page 11685]]

  What has her record been there? To listen to the interest groups, you 
would think she has led a one-woman crusade to destroy the civil rights 
of all Californians. Given Justice Brown's background, I have to say 
this is an astonishing charge.
  In order to once again dispel the false charge that Justice Janice 
Rogers Brown is extreme, consider the following facts.
  In 2002, Justice Brown's colleagues on the California Supreme Court 
turned to her more than any other justice to write the majority opinion 
for the court. Is this out of the mainstream?
  When Justice Brown was retained with 76 percent of the vote in her 
last election, were the people of California installing a radical 
revolutionary on the bench? Were there any mainstream Californians who 
voted for her? That is a pretty impressive majority. After all, the 
junior Senator from California, who has spoken vociferously against 
Justice Brown, and many of the other of the President's circuit court 
nominees, one of Justice Brown's most vocal critics, once, I might say, 
won reelection with only 53 percent of the vote.
  Truth be told, there is nothing radical about Janice Rogers Brown. 
She refuses to supplant her moral views for the law she is charged with 
interpreting as a judge. Maybe the refusal to engage in activist 
decisionmaking is radical at some predominantly liberal law schools, 
but it is fully within the mainstream of American jurisprudence.
  We have heard a lot about the background of Janice Rogers Brown in 
this debate. I have been at the forefront of discussing her rise from 
the Jim Crow South to her appointment as the first African-American 
woman to serve on the California Supreme Court. We talk about her 
background because her story demonstrates that while America is not 
perfect, its commitment to the preservation and extension of civil 
rights is without parallel in the history of the world.
  Let me also add that no party has a monopoly on the promotion of 
diversity. Yet, unfortunately, some of those who frequently speak about 
the need for diversity on the bench have a rather limited definition of 
diversity. As we saw with several other recent nominees, apparently 
some believe only liberal minorities are sufficiently diverse for high 
Federal office, especially the Federal courts.
  In the end, it is hard to avoid the conclusions of Justice Brown's 
colleagues. I have here a letter written to me in my former capacity as 
chairman of the Judiciary Committee from a bipartisan group of Justice 
Brown's colleagues, including all of her former colleagues on the 
California Court of Appeals and Third Appellate District, as well as 
four current members of the California Supreme Court.
  Let me take a second or two and read you their assessment of Justice 
Brown.

       Dear Mr. Chairman:
       We are members of and present and former colleagues of 
     Justice Janice Rogers Brown on the California Supreme Court 
     and California Court of Appeals for the Third Appellate 
     District. Although we span the spectrum of ideologies, we 
     endorse her for appointment to the U.S. Court of Appeals for 
     the D.C. Circuit.
       Much has been written about Justice Brown's humble 
     beginnings, and the story of her rise to the California 
     Supreme Court is truly compelling. But that alone would not 
     be enough to gain our endorsement for a seat on the federal 
     bench. We believe that Justice Brown is qualified because she 
     is a superb judge. We who have worked with her on a daily 
     basis know her to be extremely intelligent, keenly 
     analytical, and very hard working. We know that she is a 
     jurist who applies the law without favor, without bias, and 
     with an even hand. Because of these qualities, she has 
     quickly become one of the most prolific authors of majority 
     opinions on the California Supreme Court.
       Although losing Justice Brown would remove an important 
     voice from the Supreme Court of California, she would be a 
     tremendous addition to the D.C. Circuit. Justice Brown would 
     bring to the court a rare blend of collegiality, modesty, and 
     intellectual stimulation. Her judicial opinions are 
     consistently thoughtful and eloquent. She interacts 
     collegially with her colleagues and maintains appropriate 
     judicial temperament in dealing with colleagues, court 
     personnel and counsel.

  Mr. President, I ask unanimous consent that the entire letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      McDonough Holland & Allen PC


                                             Attorneys at Law,

                                                 October 16, 2003.
     Re Nomination of Justice Janice Rogers Brown to the U.S. 
         Court of Appeals for the D.C. Circuit

     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: We are members of and present and former 
     colleagues of Justice Janice Rogers Brown on the California 
     Supreme Court and California Court of Appeal for the Third 
     Appellate District. Although we span the spectrum of 
     ideologies, we endorse her for appointment to the U.S. Court 
     of Appeals for the D.C. Circuit.
       Much has been written about Justice Brown's humble 
     beginnings, and the story of her rise to the California 
     Supreme Court is truly compelling. But that alone would not 
     be enough to gain our endorsement for a seat on the federal 
     bench. We believe that Justice Brown is qualified because she 
     is a superb judge. We who have worked with her on a daily 
     basis know her to be extremely intelligent, keenly 
     analytical, and very hard working. We know that she is a 
     jurist who applies the law without favor, without bias, and 
     with an even hand. Because of these qualities, she has 
     quickly become one of the most prolific authors of majority 
     opinions on the California Supreme Court.
       Although losing Justice Brown would remove an important 
     voice from the Supreme Court of California, she would be a 
     tremendous addition to the D.C. Circuit. Justice Brown would 
     bring to the court a rare blend of collegiality, modesty, and 
     intellectual stimulation. Her judicial opinions are 
     consistently thoughtful and eloquent. She interacts 
     collegially with her colleagues and maintains appropriate 
     judicial temperament in dealing with colleagues, court 
     personnel and counsel.
       If Justice Brown is placed on the D.C. Circuit, she will 
     serve with distinction and will bring credit to the U.S. 
     Senate that confirms her. We strongly urge that the Senate 
     take all necessary steps to approve her appointment as 
     expeditiously as possible.
       Joining me in this letter are Justices Marvin R. Baxter, 
     Ming W. Chin and Carlos R. Moreno of the California Supreme 
     Court and Presiding Justice Arthur G. Scotland and Justices 
     Rodney Davis, Harry E. Hull, Jr., Daniel M. Kolkey, Fred K. 
     Morrison, George W. Nicholson, Vance W. Ray and Ronald B. 
     Robie of the California Court of Appeal, Third Appellate 
     District.
       I am informed that Justice Joyce L. Kennard of the 
     California Supreme Court has already written a letter in 
     support of Justice Brown's nomination.
       Chief Justice Ronald M. George and Justice Kathryn M. 
     Werdegar of the California Supreme Court are not opposed to 
     Justice Brown's appointment but it is their long standing 
     policy not to write or join in letters of support for 
     judicial nominees.
       Thank you for your consideration of this letter.
           Very truly yours,

                                             Robert K. Puglia,

                               Retired Presiding Justice, Court of
                                 Appeal, Third Appellate District.

  Mr. HATCH. Let me put in the Record a couple comments by Ellis 
Horvitz and Regis Lane. Ellis Horvitz, a Democrat, one of the deans of 
the Appellate Bar in California, has written in support of Justice 
Brown, noting:

       In my opinion, Justice Brown possesses those qualities an 
     appellate justice should have. She is extremely intelligent, 
     very conscientious and hard working, refreshingly articulate, 
     and possessing great common sense and integrity. She is 
     courteous and gracious to the litigants and counsel who 
     appear before her.

  Mr. President, I ask unanimous consent that the entire letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                           Horvitz & Levy LLP,

                                   Encino, CA, September 29, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
     Re Justice Janice Rodgers Brown nomination.

       Dear Chairman Hatch: This letter is sent in support of 
     President Bush's nomination of Justice Janice Rodgers Brown 
     to the District of Columbia Court of Appeal.
       Let me first introduce myself. I have been practicing law 
     in California for more than fifty years, almost all of that 
     time as a civil appellate specialist. Our firm of more than 
     thirty lawyers specializes in civil appeals. We appear 
     regularly in the California Court of Appeal and in the 
     California Supreme Court.
       I have followed Justice Brown's career since she was 
     appointed to the California Supreme Court. Our firm has 
     appeared before

[[Page 11686]]

     her on many occasions. I have appeared before her on several 
     occasions. We have also studied her opinions, majority, 
     (concurring and dissenting), in many civil cases.
       In my opinion, Justice Brown posses those qualities an 
     appellate justice should have. She is extremely intelligent, 
     very conscientious and hard working, refreshingly articulate, 
     and possessing great common sense and integrity. She is 
     courteous and gracious to the litigants and counsel who 
     appear before her.
       I hope your Committee will approve her nomination 
     expeditiously. The President has made an excellent choice.
           Very truly yours,
                                                 Ellis J. Horvitz.

  Mr. HATCH. Regis Lane, the executive director of Minorities in Law 
Enforcement, a coalition of minority law enforcement officers in 
California, wrote:

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

  Mr. President, I ask unanimous consent that the entire letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Minorities In Law Enforcement,

                                                   Sacramento, CA.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: On behalf of the Executive Board and 
     members of the Minorities In Law Enforcement organization 
     (MILE), we recommend that you confirm President George W. 
     Bush's nomination of California Supreme Court Associate 
     Justice Janice Rogers Brown to the United States Circuit 
     Court of Appeals for the District of Columbia. MILE is a 
     coalition of ethnic minority law enforcement officers in 
     California dedicated to ensuring brighter futures for 
     disadvantaged youth and ensuring that no child is left 
     behind.
       We recommend the confirmation of Justice Brown based on her 
     broad range of experience, personal integrity, good standing 
     in the community and dedication to public service. Justice 
     Brown's powerful and exhilarating display of jurisprudence 
     exhibited in the written legal opinions she has issued as a 
     California Supreme Court justice, is respected by all, 
     regardless of race, political affiliation, or religious 
     background. Justice Brown is a fair and just person with 
     impeccable honesty, which is the standard by which justice is 
     carried out.
       In many conversations with Justice Brown, I have discovered 
     that she is very passionate about the plight of racial 
     minorities in America, based on her upbringing in the south. 
     Justice Brown's views that all individuals who desire the 
     American dream, regardless of their race or creed, can and 
     should succeed in this country are consistent with MILE's 
     mission to ensure brighter futures for disadvantaged youth of 
     color.
       It is with great honor and pleasure that MILE and our 
     members urge you to confirm President Bush's nomination of 
     California Supreme Court Associate Justice Janice Rogers 
     Brown to the United States Circuit Court of Appeals for the 
     District of Columbia.
           Respectfully submitted,
                                                       Regis Lane,
                                               Executive Director.

  Mr. HATCH. Well, she is not, as represented, a radical revolutionary 
bent on undoing the American dream. Who are you going to believe? I say 
you should believe those who served with her on the bench in 
California, and that is over a period of years.
  Because of the astonishing failure to give Justice Brown an up-or-
down vote, I have had ample time to review her record, and it is clear 
to me, without any doubt, that those who worked with her every day on 
these courts have it right. She is a model jurist. You cannot have 
anybody who has been in court as long as she has that somebody cannot 
pluck cases out of the air and distort them or find some fault with 
them. I am sure I can find fault with some of her cases. But the point 
is, this is a woman who does what is right.
  Justice Brown would be a welcome addition to the DC Circuit Court of 
Appeals. I look forward to finally closing the debate on this 
nomination, bringing her nomination to a vote, and seeing her on the 
Federal bench.
  Now, let me close by saying that voting for cloture is the right 
thing to do on the nomination of Justice Janice Rogers Brown and the 
rest of the President's judicial nominees. Allowing an up-or-down vote 
on these nominees will return us to the Senate's 214-year tradition. So 
I ask my colleagues to vote yea on cloture, and hopefully we can have 
an up-or-down vote in a short time after that.
  Mr. President, again, I thank my colleague and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as I understand it, there is 7 minutes 
remaining.
  The PRESIDING OFFICER. That is correct.
  Mr. KENNEDY. Mr. President, I yield myself all 7 minutes, and I ask 
if the Chair will be kind enough to let me know when there is 1 minute 
left.
  The PRESIDING OFFICER. The Chair will so notify.
  Mr. KENNEDY. Mr. President, I think it is important for those 
watching the debate to understand this decision is not a decision about 
the life history of Janice Rogers Brown. What we are voting on in this 
particular decision is, on the DC Circuit Court, whether the nominee is 
going to speak for the struggling middle class of Americans, whether 
they are going to speak for minorities who have been trying to be a 
part of the American dream, whether they are going to speak for the 
rights and liberties of working families, particularly those who are 
covered by the Occupational Safety and Health Act who work hard every 
day and have had their lives threatened with inadequate kinds of 
protection, whether that voice is going to be standing up for children 
whose lives are going to be affected by the Clean Air Act, or whether 
they are going to stand up for the children whose lives will be 
affected by the Clean Water Act.
  So many of the important decisions that we have addressed in the 
Senate over the last 30 years, in order to make this a fairer country, 
a more just Nation, to advance the cause of economic progress and 
social justice, ultimately come to the DC Circuit. In many instances, 
the DC Circuit is the final arbiter of these issues. That is why this 
is so important. Any judge is important, but I think, for most of us, 
we raise the level when we consider who is going to serve on the 
Supreme Court, since that will be a defining aspect of the laws of this 
country, and a defining voice in terms of the rights and liberties of 
this Nation as defined in the Constitution of the United States.
  It seems to me it is fair enough to ask someone who wants a job on 
the DC Circuit whether they have a core commitment to these fundamental 
acts of fairness and justice and basic liberty, and if there are 
indications during their service on the court that this jurist has 
demonstrated a hostility toward these basic principles.
  That is really the basic issue. I am going to have more time this 
afternoon to get into the particulars, but it is enormously important 
that the American people understand that this is not just another 
circuit court, as important as that is. This is the very specialized DC 
Circuit Court that has special responsibilities in interpreting the 
laws, many cases of which never go to the Supreme Court, and, 
therefore, we should take a careful view of this nominee. When we take 
a careful view of the nominee, we find that this nominee fails the 
standard by which we ought to judge advancement to the second most 
important and powerful court in the land, and that is the DC Circuit 
Court.
  That is true on the issue of civil rights. No one can seriously 
contend that the overwhelming opposition to her nomination from the 
African-American community is motivated by bias against Blacks. She is 
opposed by respected civil rights leaders, including Julian Bond, 
Chairman of the NAACP; by Dorothy Height, President Emeritus of the 
National Council of Negro Women, a leader in the battle for equality 
for women and African Americans over her lifetime, an outstanding

[[Page 11687]]

and distinguished American who happens to be Black but has struggled to 
make this a fairer and more just country--for Black women in 
particular--for all Americans. She is universally admired and respected 
by Republicans and Democrats. She believes that we would make a major 
mistake by promoting this nominee to the DC circuit.
  She is opposed by the Reverend Joseph Lowery, President Emeritus of 
the Southern Christian Leadership Conference, who was there with Dr. 
Martin Luther King, Jr., during the most difficult and trying times in 
the late 1950s and the early 1960s. I believe, unless I am wrong, he 
was there at the time of Dr. King's death. He is one of the giants in 
awakening America to be America by knocking down walls of 
discrimination. Joseph Lowery believes we should not promote this 
individual. He has been a leader in the civil rights movement and has 
worked tirelessly for many years to make civil rights a reality for all 
Americans.
  She is opposed by the Congressional Black Caucus, the Leadership 
Conference on Civil Rights, and many others concerned with the rights 
of minorities.
  The PRESIDING OFFICER. The Senator from Massachusetts has 1 minute 
remaining.
  Mr. KENNEDY. Mr. President, I will have the opportunity to go into 
the reasons these individuals and organizations take exception to this 
nominee. It isn't just those I have mentioned but other important 
leaders who have a keen awareness and understanding of the record and 
history of the decisions of this jurist. I do not believe she has 
demonstrated the kind of core commitment to constitutional values which 
are so essential on such a major and important court. She fails that 
test. She should not be promoted. There are other distinguished jurists 
across the country of all different races, religions, and ethnic 
backgrounds who have demonstrated a core commitment to these values 
over a long time and are in the mainstream of judicial thinking. We 
ought to have such a nominee. This nominee does not meet that criteria 
and, therefore, should not be accepted.
  The PRESIDING OFFICER. The time of the minority has expired. Who 
yields time?
  The Senator from South Carolina.
  Mr. DeMINT. Mr. President, it is often said that politicians are out 
of touch with the average citizen. In fact, media outlets have been 
reporting that Congress's approval ratings are at record lows. I am not 
one to put much stock in one poll or another, but I do believe 
Americans are frustrated with politics here in our Nation's Capital. 
Americans are dealing with record gas prices, yet Congress can't find 
the time to debate and pass an energy bill that was proposed years ago. 
Americans see weekly reports about scandals and backroom deals at the 
United Nations, yet we can't find the time to vote yes or no on the 
President's nominee to the United Nations. And a strong majority of 
Americans who just elected President Bush to a second term now cannot 
understand why his judicial nominees can't get a timely up-or-down 
vote.
  A perfect example of the frustration the American people have with 
Congress can be found in the nomination of Justice Janice Rogers Brown. 
Justice Brown is the daughter of a sharecropper who grew up in rural 
Alabama and attended segregated schools. She went on to become the 
first African-American woman to serve on the California Supreme Court 
after being overwhelmingly elected by more than three-quarters of 
California voters. Despite this extraordinary success story, Democrats 
have used filibusters for more than a year and a half to deny Justice 
Brown a simple and fair vote.
  I am pleased that a few of my colleagues on the other side choose to 
allow a vote on Justice Brown. Now I hope we can give her actual record 
a fair assessment instead of relying on the heated rhetoric of the past 
year and a half.
  Justice Brown recently stated:

       It may sound odd to describe a judge as both passionate and 
     restrained, but it is precisely this apparent paradox--
     passionate devotion to the rule of law and humility in the 
     judicial role--that allows freedom to prevail in a democratic 
     Republic.

  This paradox is a good description of our Nation's leading jurists, 
including, in my opinion, Justice Brown. I believe men and women of 
intellectual and judicial passion are necessary to the continued 
strength of our legal system. Those jurists whose names still ring 
through history--Marshall, Holmes, Cardozo--suffered no shortage of 
passion. Yet, as Justice Brown reminds us, such passion would corrupt 
the very system it sustains were it not tempered by restraint and 
humility.
  The tension between passion and restraint has been a feature of our 
legal system since its beginning. In fact, it was enshrined in the 
Constitution itself. The Founders created the framework for a Federal 
judiciary that would be unaffected by the political storms raging at 
any given time. Thanks to their lifetime appointment, Federal jurists 
are free to interpret and apply the laws of this land without fear of 
political repercussions. At first glance, such an arrangement places a 
great deal of power in the hands of a select few who attain the Federal 
bench. The Founders, however, were mindful of such concerns. They 
placed two popularly elected institutions at the gates of the Federal 
bench so that admission would be denied to those who would use their 
judicial power to override Congress's exclusive power to create the 
law. They invested the President with the power to nominate individuals 
worthy of the Federal bench. They endowed Congress's deliberative body, 
this very Senate, with the responsibility to review the President's 
nominees and consent to the confirmation of only those with properly 
restrained judicial passions.
  When in the past a President has nominated an individual of unchecked 
passion, it has fallen to the Senate to deny his or her confirmation. 
This is how our constitutional system has functioned for over 200 
years. Unfortunately, the nomination and appointment of Federal jurists 
has recently become a game of political dodge ball, with Democrats 
throwing heated rhetoric at nominees, hoping to take them out of the 
game.
  As the deliberation over judicial nominees has boiled over, the term 
``judicial activist'' has surfaced as the preferred slur used by 
critics harboring political animosity toward a particular nominee, 
regardless of whether that nominee is objectively qualified for the 
job. In my mind, the term ``judicial activist'' signifies one who has 
or would use the bench as a platform for promoting their own agenda and 
personal opinions. Such a person is in need of the restraint identified 
by Justice Brown and is, therefore, unsuited for the Federal bench. The 
nomination of a judicial activist is a nomination that deserves the 
opposition of every Member of this body, regardless of the political 
connection between the nominee and any particular Member. According to 
the Constitution, we as Senators stand here to guard the Federal bench 
from the confirmation of any judicial activist who would seek to 
infringe upon our constitutional role.
  I believe Justice Brown has proven she is not an activist judge. Her 
critics have labeled her such simply because she has deeply held 
personal beliefs that are not shared by many Democrats. This is 
precisely the type of partisan game that is causing Americans to become 
disinterested and disillusioned with politics in Washington. Americans 
fairly elected President Bush, and his nominations deserve a fair 
debate and a fair vote.
  People sitting at home watching the nomination process on TV see that 
it has gotten out of control. If we allow the President's judicial 
nominees to continue to be blocked and delayed because they have deeply 
held beliefs, many good judges will be disqualified, and many more will 
refuse to be considered. A person with strong beliefs and personal 
convictions should not be barred from being a judge. In fact, I would 
rather have an honest liberal serve as a judge than one who has been 
neutered by fear of public opinion. We need judges who have 
demonstrated integrity in how they live their lives as well as 
consistency in how they interpret the law.
  Justice Brown has demonstrated this kind of integrity. I believe she 
should

[[Page 11688]]

be confirmed immediately. Some Democrats may enjoy calling Justice 
Brown an activist for the media sound bite it creates, but calling the 
Earth flat does not make it so. There is overwhelming evidence that 
during her time on the California Supreme Court, Justice Brown has 
exercised her judicial authority with restraint and humility. While she 
would likely describe herself as a person who believes in small 
government and limited regulations, she regularly votes against her 
personal beliefs when justice and legal precedent require her to do so.
  For example, Justice Brown has voted consistently to uphold economic, 
environmental, consumer, and labor regulations. She joined in an 
opinion upholding the Safe Drinking Water and Toxic Enforcement Act of 
1986 and interpreted the act to allow the plaintiffs to proceed with 
their case. She upheld the right of a plaintiff to sue for exposure to 
toxic chemicals using the Government's environmental regulations. She 
joined in an opinion validating State regulations regarding overtime 
pay. She upheld California's very stringent standards for identifying 
and labeling milk and milk products, thereby ensuring that the 
government has a role in protecting the safety of children.
  It is fundamental to the judicial structure to have judges who 
respect the Constitution and judicial precedent. Justice Brown believes 
that the role of courts and the rule of law are deeply rooted in the 
Constitution.
  In a recent column, law professor Jonathan Turley, a self-described 
pro-choice social liberal, points out that ``Brown's legal opinions 
show a willingness to vote against conservative views . . . when 
justice demands it.''
  In a letter to the Senate Judiciary Committee, 12 bipartisan judges 
who served on the bench with Justice Brown said the following:

       We who have worked with her on a daily basis know her to be 
     extremely intelligent, keenly analytical, and very hard 
     working. We know that she is a jurist who applies the law 
     without favor, without bias, and with an even hand. Because 
     of these qualities, she has quickly become one of the most 
     prolific authors of the majority opinions on the California 
     Supreme Court.

  Arguments that Justice Brown is a judicial activist amount to nothing 
more than empty rhetoric. She is a jurist of great intelligence and 
achievement, with views about interpreting the law that are sensible 
and reliable.
  After many hours of debate, the main criticisms I have heard of 
Justice Brown have nothing to do with her judicial decisions but with 
her personal beliefs that have been expressed in speeches and comments 
outside the courtroom. This Senate should not confirm or reject judges 
based on their personal beliefs. We should confirm Justice Brown based 
on the fact that her judicial performance has been documented by 
colleagues and critics alike and because she understands that her job 
is to interpret the law, not to invent the law.
  Americans are tired and frustrated with Congress spending its time on 
partisan games. They want the Senate to give the President's judicial 
nominees a timely up-or-down vote.
  Justice Brown's nomination has been pending for more than a year and 
a half without any evidence that she lacks integrity, intellect, or 
experience. There has been plenty of time for debate, and now it is 
time to vote.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. DeMint). Without objection, it is so 
ordered.
  Mr. BURR. Mr. President, I rise today in support of Janice Rogers 
Brown to the DC Appellate Court. I also rise today as a proud North 
Carolinian of those who served in this Chamber before me. In the heat 
of debate, Senator Schumer from New York suggested that Senator Helms, 
our former Member from North Carolina, was a racist; that, in fact, he 
objected to the nomination of Roger Gregory to the appellate court, the 
Fourth Circuit Court in Richmond, because he was a minority.
  It is unfair to characterize that of Senator Helms. I am personally 
offended by the comments of Senator Schumer, and so are North 
Carolinians.
  At the time of Roger Gregory's nomination to the Fourth Circuit Court 
in Richmond, the Fourth Circuit Court had the largest makeup of 
minorities of any appellate court in the country. The seat for which 
Roger Gregory was nominated was intended to be filled by a North 
Carolinian. There is only one problem--Roger Gregory was from Virginia, 
and he was so thought of that he was even introduced by Senator George 
Allen in his first speech on the Senate floor.
  Roger Gregory was not from North Carolina, he was from Virginia. 
Senator Helms argued that North Carolina was underrepresented on the 
Fourth Circuit Court and that if any nominee was necessary for the 
Fourth Circuit Court, he or she should come from North Carolina. 
Senator Helms opposed Roger Gregory because Senator Helms had nominated 
Terrance Boyle, and that nomination had been blocked for several years 
at that time by Democrats. Terrance Boyle was originally nominated by 
George H. W. Bush, 41, long before Roger Gregory was nominated.
  I might add, Terrance Boyle still is a judicial nominee judge for the 
Fourth Circuit Court. He has never made it through this process.
  Former Judiciary Chairman Hatch, who spoke earlier, maintained at the 
time that judicial nominees favored by each party should have to move 
forward together and that political games should not be played with 
judicial nominees. Senator Helms agreed there should be no movement on 
other judges until Judge Boyle received the attention of this body, the 
Senate.
  How did it end up? President Clinton, bypassing Congress, made a 
recess appointment of Roger Gregory, and it was seen as a swipe to 
Senator Helms.
  I am not here today to suggest Roger Gregory was not a good pick. I 
am here to tell you we have an obligation on this floor to speak 
factually. History does not prove that Senator Helms' objection was 
over anything other than to receive the attention of his nominee to the 
Fourth Circuit Court, to allow North Carolina, which was 
underrepresented, to be represented fully on the Fourth Circuit Court.
  Today I am proud to suggest that we should all support Janice Rogers 
Brown. We should have her confirmed, not because she is minority, but 
because she is qualified, because she meets the threshold of what 
America expects out of the judges who sit on the bench.
  I am confident this body will do the right thing on cloture, and I am 
confident she will serve on the DC Circuit Court.
  I thank the President, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, recently 14 of our colleagues brought to us 
a bipartisan plan to avoid what I thought was the majority leader's 
shortsighted bid for one-party rule. As part of the plan to avert the 
nuclear option, which would have changed more than 200 years of Senate 
tradition and precedent, rules protecting minority rights and checks 
and balances, those Senators have agreed to vote for cloture on this 
controversial and divisive renomination. I have no doubt they will 
follow through on their commitment, but in all likelihood, it is going 
to result in the appointment for life of a judge for Court of Appeals 
for the DC Circuit whose disturbing view of the Constitution would set 
back life for American workers and consumers more than 100 years and 
remove protections for people and their communities we now take for 
granted. The preservation of our system of checks and balances in 
connection with the appointment of

[[Page 11689]]

lifetimers to the Federal judiciary requires that all Senators, both 
Republicans and Democrats, take seriously the Senate's constitutionally 
mandated role as a partner in making these determinations.
  So again I urge all Senators of both parties to take these matters 
seriously and vote their conscience. Senators need to evaluate with 
clear eyes the fitness of Justice Janice Rogers Brown for the lifetime 
appointment. My opposition to her, as it has always been, has been 
based on her long and troubling record. I will be speaking about this 
more in the future, but apparently she will be treated far more fairly 
than President Clinton's nominees to the court.
  The Senate has already considered one of the three controversial 
nominees mentioned in part IA of the Memorandum of Understanding our 
colleagues brought us. We are now beginning consideration of the 
second, and I expect the third will follow shortly. What I do not 
expect is any repeat by Democrats of the extraordinary obstruction by 
Republicans of President Clinton's judicial nominees. For example, I do 
not expect any of the tactics used by Republicans during the extensive 
delay in Senate consideration of the Richard Paez nomination. Judge 
Paez waited more than 4 years before we were able to get a vote on his 
confirmation, and even then Republicans mounted an extraordinary motion 
after the filibuster of his nomination was broken to indefinitely 
postpone the vote--a last-ditch, unprecedented effort that was 
ultimately unsuccessful.
  More than 60 of President Clinton's moderate and qualified judicial 
nominations were subjected to a Republican pocket filibuster, including 
nominees to the DC Circuit. First we were told by the Republicans that 
we do not need more judges added, but that changed dramatically once 
they had a Republican President in power. But they also blocked by 
committee filibusters highly qualified people for that circuit. Allen 
Snyder, for example, who was nominated by President Clinton, was a 
former clerk to Chief Justice Rehnquist--no wide-eyed liberal, he--and 
he was a widely respected and highly regarded partner at the law firm 
of Hogan & Hartson. He was filibustered by pocket filibuster by the 
Republicans and not allowed to come to a vote. Elena Kagan was pocket 
filibustered by the Republicans, not allowed to have a vote for the DC 
Circuit. Her qualifications: She is now a dean of the most prestigious 
law school in this country, Harvard Law School. They were each 
nominated to vacancies on the DC Circuit. They were not allowed to have 
either a committee vote or Senate consideration.
  The bipartisan coalition of Senators who joined together last month 
to avert an unnecessary showdown in the Senate over the White House-
inspired effort to invoke the nuclear option was right to include in 
the agreement the following provision:

       We believe that under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.

  I agree with their fundamental point. I have served here with six 
Presidents. Five of them did consult on major judicial nominations. 
They consulted with members of both parties. That included President 
Ford, President Carter, President Reagan, former President Bush, and 
President Clinton. In this case, there was no meaningful consultation 
with the nomination of Janice Rogers Brown. Maybe that is one reason 
neither of her home State Senators support her. In the past, 
Republicans always said if home State Senators do not support a 
nominee, we cannot go forward. All of these rules changed with a 
different President. There was no consultation with these Senators in 
this case.
  But I am hoping things may be better. I was pleased to see President 
Bush respond to a question in a news conference last week. He has 
agreed to consult with the Senate about his nomination should a vacancy 
arise in the Supreme Court. I see that as a positive development, and I 
am hoping that now that he has been reelected, he may take the 
opportunity to be a uniter and not a divider on these issues. Certainly 
I, as one on this side of the aisle, will be happy to work with him in 
that regard. If he does, as the other five Presidents I have served 
with have done, I believe it would be a good sign for the country but 
especially for our Federal judiciary.
  In advance of any vacancy on the Supreme Court, I would urge the 
President to follow through on his commitment to consult with the 
Senate. In the next few weeks, the U.S. Supreme Court will complete its 
current term. Speculation will soon accelerate, again, about the 
potential for a Supreme Court vacancy this summer. In advance of any 
such vacancy, I urge the President to follow through on his commitment 
to consult with the Senate. As I said, previous Presidents of both 
parties have set constructive and successful examples by engaging in 
meaningful consultation with the Senate, including both Republicans and 
Democrats, no matter who was in the majority or the minority, before 
deciding on nominees. It would be shortsighted to ignore such an 
established and successful precedent.
  It would be wise for the President to follow the precedent set by 
distinguished Presidents of both parties, and I stand ready to work 
with him in that regard. I stand ready to work with the President to 
help select a nominee to the Supreme Court who can unite Americans. I 
know that the Democratic leader is likewise ready to be helpful. After 
all, Senator Reid and I joined in an April 11 letter to the President 
offering our help in facilitating his identification, selection, and 
nomination of lower court judges to the 28 vacancies without a nominee 
that then existed throughout the Federal judiciary. Regrettably, the 
President did not respond to our previous offer, and the vacancies 
without a nominee have since grown to 30.
  Some Presidents, including most recently President Clinton, found 
consultation with the Senate in advance of a nomination most beneficial 
in helping pave the way for a smooth and successful process. President 
Reagan, on the other hand, disregarded the advice offered by Senate 
Democratic leaders and chose a controversial, divisive nominee who was 
ultimately rejected by the full Senate.
  In his book ``Square Peg,'' Senator Hatch tells how, in 1993, as the 
ranking minority member of the Senate Judiciary Committee, he advised 
President Clinton about possible Supreme Court nominees. In his book, 
Senator Hatch recounts that he warned President Clinton away from a 
nominee whose confirmation he believed ``would not be easy.'' Senator 
Hatch goes on to describe how he suggested the names of Stephen Breyer 
and Ruth Bader Ginsburg, both of whom were eventually nominated and 
confirmed ``with relative ease.'' Indeed, 96 Senators voted in favor of 
Justice Ginsburg's confirmation, and only 3 Senators voted against; 
Justice Breyer received 87 affirmative votes, and only 9 Senators voted 
against.
  In its report on the Supreme Court appointment process, the 
Congressional Research Service of the Library of Congress has long 
noted:

       It is common practice for Presidents, as a matter of 
     courtesy, to consult with Senate party leaders as well as 
     with members of the Senate Judiciary Committee before 
     choosing a nominee.

  What I am suggesting has been standard and accepted practice. 
Thorough bipartisan consultation would not only make the choice a 
better one, it would also reassure the Senate and the American people 
that the process of selecting a Supreme Court Justice has not become 
politicized. The Supreme Court often serves as a final arbiter and 
protector of our individual rights and freedoms. Decisions regarding 
nominees

[[Page 11690]]

are too important to all Americans to be unnecessarily embroiled in 
partisan politics.
  Though the landscape ahead is sown with the potential for controversy 
and contention over vacancies that may arise on the Supreme Court, 
confrontation is unnecessary and consensus should be our goal. I would 
hope that the President's objective will not be to send the Senate 
nominees so polarizing that their confirmations are eked out in narrow 
margins. This would come at a steep and gratuitous price that the 
entire Nation would have to pay in needless division. It would serve 
the country better to choose a qualified consensus candidate who can be 
broadly supported by the public and by the Senate.
  The process begins with the President. He is the only participant in 
the process who can nominate candidates to fill Supreme Court 
vacancies. If there is a vacancy, the decisions made in the White House 
will determine whether the nominee chosen will unite the Nation or will 
divide the Nation. The power to avoid political warfare with regard to 
the Supreme Court is in the hands of the President. No one in the 
Senate is spoiling for a fight. Only one person will decide whether 
this will be a divisive or unifying process and nomination. If 
consensus is a goal, bipartisan consultation will help achieve it. I 
believe that is what the American people want and what they deserve.
  Over the last several years I have stressed the need for consultation 
and moderation as two guiding principles for selecting judicial 
nominees. I have been largely disappointed up to this point, but if 
there is a vacancy on the Supreme Court of the United States, I hope 
that the President will live up to his pledge to consult with Senators 
of both parties to identify consensus nominees who will unite us 
instead of divide us. There is no need to pit Republicans against 
Democrats or to divide the American people.
  This is a difficult time for our country and we face many challenges. 
Providing adequate health care for all Americans, improving the 
economic prospects of Americans, defending against threats, the 
proliferation of nuclear weapons, the continuing upheaval and American 
military presence in Iraq, are all fundamental matters on which we need 
to improve. It is my hope that we can work together on many issues 
important to the American people, including our maintaining a fair and 
independent judiciary. I am confident that a smooth nomination and 
confirmation process can be developed on a bipartisan basis if we work 
together. The American people we represent and serve are entitled to no 
less.
  The decisions of the Supreme Court have a lasting effect on the 
meaning of the Constitution and statutes intended by Congress to 
protect the rights of all Americans, such as the right to equal 
protection of the laws and the right to privacy, as well as the best 
opportunity to have clean air and clean water ourselves and in future 
generations. This is the forum where Federal regulations protecting 
workers' rights will be upheld or overturned, where reproductive rights 
will be retained or lost and where intrusive Government action will be 
allowed or curtailed. This is the Court to which thousands of 
individuals will appeal in matters affecting their health, their lives, 
their liberty, and their financial well-being.
  If the President chooses a Supreme Court nominee because of that 
nominee's ideology or record of activism in the hopes that he or she 
will deliver predetermined political victories, the President will have 
done so with full knowledge that he is starting a confirmation 
confrontation. The Supreme Court should not be an arm of the Republican 
Party, nor should it be a wing of the Democratic Party. If the right-
wing activists who were disappointed that the nuclear option was 
averted convince the President to choose a divisive nominee in order to 
tilt the ideological balance on the Supreme Court, they will not 
prevail without a difficult Senate battle. And if they do, what will 
they have wrought? While they would celebrate the ideological takeover 
of the Supreme Court, the American people will be the losers: The 
legitimacy of the judiciary will have suffered a damaging blow from 
which it may not soon recover. Such a contest would itself confirm that 
the Supreme Court is just another setting for partisan contests and 
partisan outcomes. People will perceive the Federal courts as places in 
which ``the fix is in.''
  Our Constitution establishes an independent Federal judiciary to be a 
bulwark of individual liberty against incursions or expansions of power 
by the political branches. The independence of our Federal courts has 
been called by Chief Justice Rehnquist the crown jewel of our justice 
system, but that independence is at grave risk when a President seeks 
to pack the courts with activists from either side of the political 
spectrum. One of the most serious mistakes a President can make is the 
partisan engineering to take over the Supreme Court. Even if 
successful, such an effort would lead to decision-making based on 
politics and forever diminish public confidence in our justice system.
  I urge, respectfully but emphatically, that the President in advance 
of any nomination consult with Senators from both parties and seek 
consensus. The American people will cheer if the President chooses 
someone who unifies the Nation. This is not the time and a vacancy on 
this Supreme Court is not the setting in which to accentuate the 
political and ideological division within our country. In our 
lifetimes, there has never been a greater need for a unifying pick for 
the Supreme Court. The independence of the Federal judiciary is 
critical to our American concept of justice for all. We should expect 
and accept nothing less. We all want Justices who exhibit the kind of 
fidelity to the law that we all respect. We want them to have a strong 
commitment to our shared constitutional values of individual liberties 
and equal protection. We expect them to have had a demonstrated record 
of commitment to equal rights. There are many conservatives who can 
meet these critieria and who are not rigid ideologues.
  Two years ago, I was invited to address the National Press Club on 
this topic and noted that the Supreme Court confirmation process does 
not have to be a political Armageddon. I continue to believe that and I 
urge the President to take the course that would better serve the 
American people and the Supreme Court. I was encouraged by the 
President's recent statement indicating he will consult with leaders in 
the Senate on both sides of the aisle in advance of a nomination. That 
should allow him to bring forward a consensus nominee able to unite all 
Americans and who could be confirmed by the Senate with 95 to 100 
votes. At a time when too many partisans seem fixated on devising 
strategies to force the Senate to confirm the most extreme candidate 
with the least number of votes possible, I have been urging cooperation 
and consultation to bring the country together. There is no more 
important opportunity than this to lead the Nation in a direction of 
cooperation and unity. I hope this President heeds the lesson of 
history set by his predecessors who chose the good of the country over 
the good of a political party.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, in a few moments, we will vote to conclude 
debate on the nomination of Janice Rogers Brown to serve on the Court 
of Appeals for the DC Circuit. I do want to thank the chairman and 
ranking member for getting us to this point. It has taken awhile for us 
to reach this point, and I am pleased that in an orderly process and 
regular order, we are on the way to getting an up-or-down vote for 
Janice Rogers Brown.
  It has been nearly 2 years since President Bush first nominated 
Justice Brown as a Federal judge. During those 2 years, she has been 
thoroughly debated, exhaustively investigated in committee and on the 
Senate floor. She has endured more than 5 hours of committee hearings, 
answered more than 180 questions, submitted 33 pages of responses to an 
additional 120 written questions, has set aside weeks at a time to 
personally meet with individual Senators, has waited patiently while 
the Judiciary Committee debated

[[Page 11691]]

and voted on her nomination. On the Senate floor, we have debated her 
nomination for over 50 hours. That is more time than the Senate debated 
any one of the current Supreme Court Justices, but still as of yet she 
has not received an up-or-down vote on her nomination on the floor, not 
one. Why? Because of an orchestrated campaign of obstruction that has 
denied her that up-or-down vote until now. So she has been waiting for 
far too long for a simple up-or-down vote on the Senate floor. As a 
matter of principle, as a matter of fairness, as a matter of our 
constitutional duties as Senators to give up-or-down votes, it is time 
to bring the debate to a close and to vote.
  Fairness is not just about the process of a vote. It is about 
treating a good, decent, hard-working American with the respect and the 
dignity she deserves.
  Justice Brown is an inspiration. All of us have heard her story, how 
she was born the daughter of an Alabama sharecropper and educated in 
segregated schools; how she worked her way through college and law 
school; how she has dedicated her life to public service and to others, 
having spent all but 2 years of her 26-year legal career as a public 
servant; how she is the first African-American woman to serve as an 
associate justice on the California Supreme Court, the State's highest 
court. We have heard about her exemplary qualifications and 
credentials, including her 8 years of experience on the California 
appellate bench. We have heard about her impressive record and her 
commitment to judicial restraint and the rule of law. We have heard the 
bipartisan praises of Justice Brown from those who know her best: her 
current and former colleagues on the California Supreme Court and 
California Court of Appeals. They agree that Janice Rogers Brown is a 
superb judge and have said she is a jurist who applies the law without 
favor, without bias, and with an even hand.
  We have heard the people of California speaking with their votes. As 
a justice on the California Supreme Court, she was retained by 76 
percent of the electorate, the highest vote percentage of all justices 
on the ballot. If 76 percent of the people of California voted for 
Janice Rogers Brown, how can she be considered out of the mainstream, 
as some of our colleagues on the other side of the aisle have 
suggested? Are 76 percent of the California voters out of the 
mainstream? Janice Rogers Brown is in the mainstream.
  The overwhelming support of the people of California and the support 
of her colleagues proves her nomination transcends partisan labels and 
ideology. Janice Rogers Brown is a distinguished mainstream jurist. She 
deserves to be treated fairly. She has been investigated and debated 
thoroughly. Now she deserves the courtesy of a vote. Vote yes or no. 
Vote to confirm or reject, but let us vote.
  I remain optimistic the Senate is moving in a new direction on 
judicial nominees, rejecting the partisan obstructionism of the past 
and embracing the principle that all judicial nominees deserve a fair 
up-or-down vote. I urge my colleagues to join me in bringing debate on 
this nomination to a close and ensuring that Judge Brown will get an 
up-or-down vote.


                             Cloture Motion

  The PRESIDING OFFICER. All time has expired. Under the previous 
order, the hour of 12 noon having arrived, pursuant to rule XXII, the 
Chair lays before the Senate the pending cloture motion, which the 
clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of Senate, do 
     hereby move to bring to a close debate on Executive Calendar 
     No. 72, the nomination of Janice R. Brown, of California, to 
     be United States Circuit Judge for the District of Columbia.
         Bill Frist, Arlen Specter, Trent Lott, Lamar Alexander, 
           Jon Kyl, Jim Talent, Wayne Allard, Richard G. Lugar, 
           John Ensign, C.S. Bond, Norm Coleman, Saxby Chambliss, 
           James Inhofe, Mel Martinez, Jim DeMint, George Allen, 
           Kay Bailey Hutchison, John Cornyn.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of Senate that debate on Executive 
Calendar No. 72, the nomination of Janice R. Brown, of California, to 
be the U.S. circuit judge for the District of Columbia Circuit, shall 
be brought to a close? The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Jeffords), 
the Senator from Wisconsin (Mr. Kohl), and the Senator from New Jersey 
(Mr. Lautenberg) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 65, nays 32, as follows:

                      [Rollcall Vote No. 130 Ex.]

                                YEAS--65

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kyl
     Landrieu
     Lieberman
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--32

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Clinton
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Johnson
     Kennedy
     Kerry
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Jeffords
     Kohl
     Lautenberg
  The PRESIDING OFFICER. On this vote, the yeas are 65, the nays are 
32. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The Republican whip.

                          ____________________