[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 11691-11709]
[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--Continued

  The PRESIDING OFFICER. The Senator from North Carolina.


                     National Hunger Awareness Day

  Mrs. DOLE. Mr. President, for the past two years I have come to the 
Senate floor on National Hunger Awareness Day to talk about the battle 
against hunger, both here in America and around the world. In fact, I 
reserved my maiden speech for this topic--one of my top priorities as a 
U.S. Senator. I have stated over and over again that the battle against 
hunger is one that can't be won in a matter of months or even a few 
years but it is a victory that we can claim if we continue to make the 
issue a priority.

[[Page 11692]]

  As Washington Post columnist David Broder said about hunger, 
``America has some problems that seem to defy solution. This one does 
not. It just needs caring people and a caring government, working 
together.'' I could not agree more.
  Last year on Hunger Awareness Day, Senators Smith, Durbin, Lincoln, 
and I launched the Senate Hunger Caucus, with the express purpose of 
providing a bi-partisan forum for Senators and staff to engage each 
other on national and international hunger and food insecurity issues. 
By hosting briefings and disseminating information, the caucus has been 
striving to bring awareness to these issues, while at the same time 
finding ways to collaborate on legislation. I want to thank 34 of my 
colleagues for joining the Senate Hunger Caucus and their staffs for 
their diligent work. In addition, I am excited to see our friends in 
the House of Representatives start their own Hunger Caucus and I look 
forward to working with them as both houses of Congress continue to 
find solutions to eliminating hunger.
  It is truly astounding how so many of our fellow citizens go hungry 
or are living on the edge of hunger each and every day. Thirteen 
million of these hungry Americans are deemed to be children.
  As we know, when children are hungry they do not learn. This is a 
travesty that can and should be prevented. Currently over 90,000 
schools and 28 million children participate each school day in the 
School Lunch Program. The children of families whose income levels are 
below 130 percent of poverty are eligible for free school meals and 
those families whose income levels are between 130 percent of poverty 
and 185 percent of poverty are eligible for reduced price meals.
  Unfortunately, many State and local school boards have informed me 
that parents are finding it difficult to pay the reduced fee, and for 
some families the fee is an insurmountable barrier to participation. 
That is why I am a strong supporter of legislation to eliminate the 
reduced price fee and harmonize the free income guideline with the WIC 
income guideline. I am proud to say that a pilot program to eliminate 
the reduced price fee in up to five states was included in last year's 
reauthorization of Child Nutrition and WIC. I have encouraged the 
Appropriations Committee to include funding for this pilot program, and 
I look forward to working with them on this very important issue which 
touches so many families going through difficult times.
  In my home State of North Carolina, more than 900,000 of our 8.2 
million residents are dealing with hunger, according to the most recent 
numbers from the U.S. Department of Agriculture. Our State has faced 
significant economic hardship over the last few years as once thriving 
towns have been hit hard by the closing of textile mills and furniture 
factories. And this story is not unlike so many others across the 
country.
  Many Americans who have lost their manufacturing jobs have been 
fortunate enough to find new employment in the changing climate of 
today's workforce. Simply being able to hold down job doesn't 
necessarily guarantee your family three square meals a day. But there 
are organizations who are addressing this need as a mission field.
  Groups like the Society of St. Andrew, the only comprehensive program 
in North Carolina that gleans available produce from farms, and then 
sorts, packages, processes, transports and delivers excess food to feed 
the hungry. In 2004, the Society gleaned more than 4.2 million pounds 
of food--or 12.8 million servings. Incredibly--it only costs one penny 
a serving to glean and deliver this food to those in need. And all of 
this work is done by the hands of the 9,200 volunteers and a tiny 
staff.
  Gleaning is a practice we should utilize much more extensively today. 
It's astounding that the most recent figures available indicate that 
approximately 96 billion pounds of good, nutritious food--including 
that at the farm and retail level--is left over or thrown away. A 
tomato farmer in western North Carolina sends 20,000 pounds of tomatoes 
to landfills each day during harvest season.
  This can't be good for the environment. In fact, food is the single 
largest component of our solid waste stream--more than yard trimmings 
or even newspaper. Some of it does decompose, but it often takes 
several years. Other food just sits in landfills, literally mummified. 
Putting this food to good use through gleaning will reduce the amount 
of waste going to our already overburdened landfills. And I am so 
appreciative of my friends at Environmental Defense for working closely 
with us on this issue.
  Like any humanitarian endeavor, the gleaning system works because of 
cooperative efforts. Clearly private organizations and individuals are 
doing a great job, but they are doing so with limited resources. It is 
up to us to make some changes on the public side and help leverage 
scarce dollars to feed the hungry.
  I continue to hear that transportation is the single biggest concern 
for gleaners. I am proud to say that with the help of organizations 
such as the American Trucking Association, the Society of Saint Andrew 
and America's Second Harvest, we are taking steps to ease that 
transportation concern. In February of this year, I reintroduced a bill 
that will change the tax code to give transportation companies tax 
incentives for volunteering trucks to transfer gleaned food. I am proud 
to have the support of my colleagues, Senators Dodd, Burr, Lugar, 
Alexander, Santorum, Durbin, Lautenberg, and Lincoln, original 
cosponsors, and I look forward to working with them on passage of this 
important bill.
  I am also privileged to work with Senators Lincoln and Lautenberg on 
a soon-to-be-introduced bill to provide up to $200,000 per fiscal year 
to eligible entities willing to carry out food rescue and job training. 
Entities like the Community Culinary School of Charlotte, a private, 
non-profit organization in my home State that provides training and job 
placement in the food service industry for people who are employed or 
underemployed.
  Here is how it works. The Community Culinary School recruits students 
from social service agencies, homeless shelters, halfway houses and 
work release programs. They then work in collaboration with food rescue 
agencies in the area to provide meals to homebound individuals and to 
local homeless shelters. The food they rescue is donated and picked up 
from restaurants, grocers and wholesalers. The students then prepare 
nutritious meals using the donated food while at the same time 
developing both culinary and life skills.
  Take a young lady from this program named Sibyl. After years of 
drugs, prisons and unplanned pregnancies, Sibyl entered the Community 
Culinary School of Charlotte. Her willingness and determination made 
her the top student of her class and she is today working full time as 
a chef.
  Or take Bobby, who also graduated from the program. Bobby went from 
unemployment and homelessness to becoming a top graduate, now working 
two jobs and living independently. Our bill is intended to complement 
these kinds of private efforts that support food rescue and job skills 
that can make the greatest impact on individual lives.
  In Deuteronomy 15:7, the Bible tells us, ``If there is among you a 
poor man, one of your brethren, in any of your towns within your land 
which the Lord your God gives you, you shall not harden your heart or 
shut your hand against your poor brother.'' So, as our fellow citizens 
in the private sector continue to be a giving people, let us find ways 
as public servants to once again harness the great public-private 
effort, and fight as one to end hunger in America. I again thank my 
colleagues who have worked so hard to build these partnerships. And I 
implore our friends on both sides of the aisle--as well as the good 
people throughout this great country--to join in this heartfelt 
mission--this grassroots network of compassion that transcends 
political ideology and will provide hope and security not only for 
those in need today--but for future generations as well. I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Arkansas.

[[Page 11693]]


  Mrs. LINCOLN. Mr. President, due to his graciousness, I ask unanimous 
consent that Senator Kennedy be allowed to speak directly after I 
complete my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, I want to pay a tremendous compliment 
with a huge sense of gratitude to my colleague from North Carolina for 
her tirelessness with regard to this issue. She has been such an 
incredible fighter against the issue of hunger among Americans and 
really among her fellow man globally. I compliment her and thank her so 
much for the opportunity to work with her on something in which she has 
been a true leader. I am looking forward to many more things that we 
can do together, but she has made a huge effort in eliminating hunger.
  We are here today to refocus ourselves and rededicate ourselves to 
bringing about a tremendous awareness to hunger as it exists in our 
Nation and certainly as it exists among our fellow man across the 
globe. I thank the Senator from North Carolina for all of her hard 
work.
  I do come to the floor to join my colleague from North Carolina on an 
issue that I take very seriously. Thirty-six million Americans, 
including 13 million children, live on the verge of hunger. It is 
absolutely phenomenal to me, growing up as a farmer's daughter in the 
Mississippi Delta where there was such plenty in the fields, as I drive 
past them, to think that there are Americans, particularly American 
children, who go hungry every day not because we don't have the means 
but because we don't organize ourselves and set the priority of making 
sure these future generations, the future leaders of this great Nation, 
can at least have their tummies full enough that they can pay attention 
in school, grow healthy to become the kind of leaders that we want and 
need for our great Nation.
  Today is National Hunger Awareness Day. It is a time when Americans 
are called to remember the hungry children and adults living across our 
Nation. We have all just come from our weekly caucus lunches. We have 
had plenty at this time. We are thinking about the opportunities that 
lie ahead of us, particularly the fun things that children do in the 
summertime. Yet we forget that there are many who have not had a good 
lunch today, or perhaps we forget that as school is letting out, those 
children who normally get a nutritious meal at school will not be 
getting those nutritious meals during the summertime while school is 
out.
  Most importantly, it is a day when we are called to put our words 
into action, to help end hunger in our communities and across this 
great land.
  At this time last year, Senators Smith, Durbin, Dole, and myself 
formed the Senate Hunger Caucus to forge a bipartisan effort to end 
hunger in our Nation and around the world. I am so proud to be working 
with these three other Senators in moving this caucus forward. Our 
staffs have worked tirelessly in bringing us together, along with the 
other Members of the Senate, in order to make a difference. We are 
working with local, State, and national antihunger organizations to 
raise awareness about hunger, build partnerships, and build solutions 
to end hunger.
  We have many challenges that face our Nation, and so many challenges 
that face this body itself. Yet this is one problem we know has an 
answer. And we know how to end hunger.
  Recently I introduced, with Senators Durbin, Smith, and Lugar, the 
Hunger-Free Communities Act of 2005. This bill calls for a renewed 
national commitment to ending hunger in the United States by 2015, 
reaffirms our congressional commitment to protecting the funding and 
integrity of Federal food and nutrition programs, and it creates a 
national grant program to support community-based antihunger efforts. I 
urge all of our colleagues to support this worthy and commonsense 
legislation. It sets a goal for a monumental concern and problem that 
we have in this Nation. It presents the answer, and it sets the time in 
which we want to reach that goal.
  Mr. President, I want to take this opportunity to talk about the 36 
million Americans, including 13 million children, who live on the verge 
of hunger.
  Some people may ask--what can I do to help end hunger in America? I 
want to talk about some of the ways Americans can help join the hunger-
relief effort. Acting on this call to feed the hungry requires the 
effort of every American and every sector of the economy.
  The backbone of this effort is the willingness of Congress and the 
American people to support the Federal food and nutrition programs. 
These programs provide an essential safety net to working Americans, 
preventing the most vulnerable among us from suffering, and even dying, 
from malnutrition. Our continued investment in these programs is vital 
to the health of this nation.
  The most significant of these programs, the Food Stamp Program, 
provides nutritious food to over 23 million Americans a year. More 
Americans find themselves in need of this program every year. Despite 
this growing need, the Administration proposes to cut the Food Stamp 
Program by $500 million over the next 5 years by cutting more than 
300,000 low-income people off the program in an average month.
  I understand our current budget constraints. However, even in these 
tight fiscal times, I believe that we must maintain our commitment to 
feed the hungry.
  Therefore, we must first protect programs like the Food Stamp 
Program, the National School Breakfast and Lunch Program, Summer 
Feeding Program, WIC, and the Child and Adult Care Food Program. I urge 
Americans to contact their congressional representatives to voice their 
support for these programs. I urge my colleagues to support these 
programs and protect them from cuts and structural changes that will 
undermine their ability to serve our Nation's most vulnerable citizens.
  In addition to the Federal food programs, eliminating hunger in 
America requires the help of community organizations. Government 
programs provide a basis of support, but they cannot do the work alone. 
Community and faith-based organizations are essential to locating and 
rooting out hunger wherever it persists. We rely on the work of local 
food banks, food pantries, soup kitchens, and community action centers 
across America to go where government cannot. I will do all I can to 
provide the resources these community organizations need to continue 
with the difficult but necessary work they perform.
  Private corporations and small businesses also have a role to play in 
eliminating hunger in America. Our corporations and small businesses 
generate most of our Nation's wealth and have throughout history 
supported many of our greatest endeavors. Many corporations and 
businesses already contribute to efforts to eliminate hunger, and I 
hope others will begin to participate as opportunities to do so present 
themselves in the future.
  A great example of how businesses and non-profits can partner to feed 
hungry people occurred this past Friday in Little Rock. Arkansas-based 
Tyson Foods and Riceland Foods, along with Jonesboro's Kraft Foods Post 
Division and Nestle's Prepared Foods Facility, donated truck loads of 
food as a special donation in honor of National Hunger Awareness Day. 
This food will go to the Arkansas Rice Depot, Potluck, Inc. and the 
Arkansas Hunger Relief Alliance, which represents six food banks 
located across Arkansas. These organizations will in turn use the food 
to help feed hungry Arkansans. I am grateful to these companies and 
non-profit organizations for their leadership in this effort to feed 
the over 450,000 Arkansans who have limited access to food.
  Ending hunger in America requires the commitment of individual 
Americans. Our greatest national strength is the power that comes from 
individual initiatives and the collective will of the American people. 
I believe we are called by a higher power to care for our fellow men 
and women, and as a part of my Christian faith I know we are called to 
serve the poor and the hungry. I know it is a common denominator among 
almost all of our faiths

[[Page 11694]]

that it is those, the poor and the hungry, the orphaned and the 
widowed, whom we are here, as our fellow man, to take care of, to help 
to lift them up.
  If we believe in this call, we must live it every day--in our schools 
and in our homes, in our workplaces, our places of worship, in our 
volunteering, and, yes, in our prayers. This personal responsibility is 
a great one, but it holds tremendous power. It is a common denominator 
that can bring us together, the one problem that we all agree on and to 
which we know there is a solution. For as we have seen throughout 
American history, when individuals in this Nation bind together to 
serve a common cause, they can achieve the greatest of accomplishments. 
By sharing the many blessings and resources our Nation provides, I am 
confident that we can alleviate hunger at home and abroad.
  I thank the Chair. I yield the floor.
  Mr. KENNEDY. Mr. President, today is National Hunger Awareness Day, 
and it is an opportunity for all of us in Congress to pledge a greater 
effort to deal effectively with this festering problem that shames our 
Nation and has grown even more serious in recent years. It is a chance 
to live out our moral commitment to care for our neighbors and fellow 
citizens who have fallen on hard times.
  The number of Americans living in hunger, or on the brink of hunger, 
now totals 36 million, 3 million more since President Bush took office. 
That total includes 13 million children, 400,000 more since 2001.
  Day in and day out, the needs of millions of Americans living in 
hunger are widely ignored, and too often their voices have been 
silenced. Their battle is a constant ongoing struggle. It undermines 
their productivity, their earning power, and their health. It keeps 
their children from concentrating and learning in school. We all need 
to do more to combat it--government, corporations, communities, and 
citizens must work together to develop better policies and faster 
responses.
  In Massachusetts, organizations such as the Greater Boston Food Bank, 
Project Bread, the Worcester County Food Bank, and many others serve on 
the frontlines every day, and they deserve our full support, but they 
should not have to wage the battle alone.
  In 1996, the Clinton administration pledged to begin an effort to cut 
hunger in half in the United States by 2010, and the strong economy 
enabled us to make significant progress toward that goal. Hunger 
decreased steadily through 2000. We now have 5 years left to fulfill 
that commitment.
  The fastest, most direct way to reduce hunger in the Nation is to 
improve and expand current Federal nutrition programs. Sadly, the 
current Administration and the Republican Congress propose to reduce, 
not increase, funds for important programs such as Food Stamps, and the 
Community Nutrition Program.
  The Food Stamp Program is designed to be available to all eligible 
individuals and households in the United States. It provides a basic 
and essential safety net to millions of people. In 2003, on average, 
over 21 million Americans received food stamp benefits. Over half of 
all food stamp recipients are children.
  Now, the administration plans to reduce, or even cut off, food stamps 
for recipients who rely on Medicare to afford the prescription drugs 
they need.
  That is why I have introduced legislation to ensure that individuals 
who receive Medicare prescription drug benefits do not lose their food 
stamps. This legislation ensures that seniors do not have to choose 
between food and medicine. I urge my colleagues to support this 
important legislation.
  It is time to do more for the most vulnerable in our society. 
National Hunger Awareness Day is our chance to pledge to eradicate 
hunger in America and to mean it when we say it.
  Mr. President, I would like to congratulate Senator Dole and Senator 
Lincoln for giving focus and attention to National Hunger Awareness Day 
and for all they do on this particular issue. I had the opportunity 
yesterday to visit The Greater Boston Food Bank in Massachusetts--a 
successful food bank. We have 517,000 people who are hungry in eastern 
Massachusetts alone, over 173,000 of those individuals are children, 
and over 50,000 are elderly.
  One thing we know how to do in this country is grow food. We can do 
that better than any other place in the world. Secondly, we know how to 
deliver packages of food with Federal Express, other kinds of delivery 
services, virtually overnight. The fact that we have hunger in this 
Nation, we have children who are hungry, frail elderly who are hungry, 
working families who are hungry, or other homeless people who are 
hungry, we as a nation are failing our humanity. We know what can be 
done. It needs the combination of a governmental framework, private 
framework, and a very important involvement from the nonprofit 
framework and other groups at the local level, religious groups that 
have done such important work.
  So I commend my friends and colleagues for bringing focus and 
attention to this issue. It has enormous implications. We find out in 
terms of education provided to the children, the needy children at 
breakfast for them early in the morning, the results in terms of their 
willingness, ability, and interest in cooperating with their teacher 
and learning go up immensely. We have information that documents all of 
that. Try to teach a hungry child to learn, and any teacher will tell 
you the complexities and difficulties and the frustrations in doing 
that.
  I thank my two friends and others who are part of this movement. I 
look forward to working with them on a matter of enormous importance 
and consequence.
  Mr DURBIN. Mr. President, I rise today to note National Hunger 
Awareness Day.
  I am meeting today with 35 people here from Illinois who came to 
Washington to remind us that hunger is not a Democratic or Republican 
issue.
  Basic sustenance ought to be a guarantee in a civilized society, not 
a gamble.
  If children--or adults--are hungry in America, that's a problem for 
all of us. And it is a problem we can do something about.
  For instance, we know that Federal nutrition programs work. WIC, food 
stamps, school lnch and breakfast programs, and other Federal nutrition 
programs are reaching record numbers of Americans today, and making 
lives better.
  The problem is we are not reaching enough people. There are still too 
many parents in this country who skip meals because there is not enough 
money in the family food budget for them and their children to eat 
every night.
  There are still too many babies and toddlers in America who are not 
getting the nutrition their minds and bodies need to develop to their 
fullest potential. There are still too many seniors and children who go 
to bed hungry.
  There are 36 million Americans who are hungry or at risk of hunger. 
In the richest Nation in the history of the world, that is 
unacceptable.
  Last week, I joined with several of my Senate colleagues to introduce 
the Hunger-Free Communities Act.
  The bill is designed to promote local collaboration in the fight 
against hunger. But it also reminds us that we as a country are 
committed to ending hunger. We know how. We need to muster the 
political will.
  We started this week by challenging our own offices to participate in 
a Senate food drive. I commend Senators Lincoln, Smith, and Dole for 
their help in collecting food that will be donated to the Capitol Area 
Community Food Bank.
  I look forward to working with people in the anti-hunger community 
and with my colleagues to eliminate domestic hunger in our lifetime.
  Mr. SALAZAR. Mr. President, I rise to commend the efforts of our 
Nation's civic, business and faith leaders to call attention to the 
increasing number of Americans who are unable to put food on their 
tables. Today, on National Hunger Awareness Day, I am proud to join 
with communities in every region of my State that are taking on the 
charge to end hunger in the United States.
  Growing up in Colorado's San Luis Valley, one of the poorest regions 
in

[[Page 11695]]

the country, my family did not have electricity or running water in our 
home. But our family farm ensured that my brothers and sisters and I 
never went to bed hungry or arrived at school on an empty stomach. My 
classmates were not always as fortunate. Sadly, not much has changed 
since my youth.
  Currently, in Conejos County, where my family's farm is located, one 
in four residents are living in poverty. That is twice the national 
average, and three times our State poverty rate. And increasingly, the 
stories behind these numbers are of working poor households who 
struggle to pay their mortgages, escalating electricity bills and fuel 
costs. In Colorado Springs, the Care and Share Food Bank estimated that 
close to 50 percent of the households receiving their emergency food 
assistance last year had at least one working parent. More and more, 
these families need to turn to their local food bank or church pantry 
in the very same communities where food is harvested; serving as a sad 
reminder that there is much more work to be done.
  When speaking with hunger relief organizations throughout Colorado, 
they express concern when forced to turn families away, and the number 
of people they cannot help continues to grow. For example, the Marian 
House, which is operated by Catholic Charities of Colorado Springs, 
serves approximately 600 meals. Over the past several years, they have 
seen the daily number of people coming into food banks nearly double.
  Unfortunately, their stories of growing demands reflect the problems 
facing much of the rural West. In fact, according to the U.S. 
Department of Agriculture, 16 percent of households in this region did 
not know where their next meal would come from--that is the highest 
rate of so-called ``food insecurity'' in any region of the country.
  In the face of these staggering statistics, Coloradans are doing 
their part to eliminate hunger. Whether it is organizing a food drive 
in their school or office, volunteering at a soup kitchen, or donating 
to their local food bank, they are answering the call to reduce the 
number of hungry Americans. In Denver, where poverty is also on the 
rise, groups like the Food Bank of the Rockies have stepped up their 
food distribution. In 2004, hard-working, committed workers and 
volunteers distributed over 16 million pounds of food and essential 
household items, more than ever before.
  However, today is a special day, where national, regional and local 
organizations collectively are raising awareness of hunger in America. 
I am particularly proud that National Hunger Awareness Day events have 
been organized in communities throughout Colorado, including Colorado 
Springs, Denver, Fort Collins, Grand Junction, Greeley, and Hot Sulphur 
Springs. I applaud Coloradans involved in these activities, and all 
those participating in the day's related events. I look forward to 
working with the Senate Hunger Caucus and the Senate Agriculture 
Committee in the movement to end hunger.
  Mr. SMITH. Mr. President, I rise today to speak about a problem 
impacting communities across the United States and throughout the 
world. As many of my colleagues know, today is National Hunger 
Awareness Day. It is a day meant to focus our attention on those for 
whom putting food on the table continues to be a daily struggle.
  For the last several years, my home State of Oregon has been at or 
near the top of repeated nationwide studies of hunger and food 
insecurity in the United States. While we have made some progress in 
fighting hunger in Oregon, there is still a long way to go to ensuring 
that children and families in my State and around the country do not go 
to bed hungry. According the U.S. Department of Agriculture's Economic 
Research Service, in 2003, approximately 36.3 million Americans lived 
in households that at some point during the year did not have access to 
enough food to meet their basic needs. Of those 36.3 million, 3.9 
million were considered hungry.
  In 2003, Oregon State University published a study on food insecurity 
and hunger in Oregon. The study found that pressures related to the 
high-cost of housing, health care, and the high-level of unemployment 
all contribute to food insecurity and hunger in our State. One of the 
more striking findings in the report is that underemployment is also a 
major factor leading to hunger and food insecurity; working families 
throughout Oregon are having a difficult time accessing food.
  On the horizon, Oregon's economy appears to be brightening. While 
there are no quick fixes, I believe that solving hunger is within our 
grasp. Federal nutrition programs certainly serve an important safety 
net role in combating hunger; however, they are only one piece of the 
puzzle. Community organizations, churches, business groups, and private 
citizens all have a part to play. Ultimately, winning the fight against 
hunger in Oregon and around the country requires that families are able 
to provide for themselves--that means having access to living wage 
jobs.
  Many of my colleagues will remember that last year I asked them to 
join me in forming a Senate caucus devoted to raising awareness of the 
root causes of hunger and food insecurity. I appreciate very much the 
work of my Senate Hunger Caucus cochairs Senator Lincoln, Senator Dole, 
and Senator Durbin--in helping to get the caucus off the ground. I am 
proud to say that today, the Senate Hunger Caucus counts 34 members, 
with both Republicans and Democrats.
  This is clearly not a battle that will be won overnight, but it is 
something about which our conscience calls us to act. If we are to end 
hunger, we must work to address its root causes. Being successful in 
this mission will require that we are innovative and find new ways of 
doing things. I look forward to continuing to work with my colleagues 
in Congress and groups in Oregon to win this fight.


                            Upward Mobility

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

                       [From the New York Times]

                        Crushing Upward Mobility

       The United States is rapidly abandoning a long-standing 
     policy aimed at keeping college affordable for all Americans 
     who qualify academically. Thanks to a steep decline in aid to 
     poor and working-class students and lagging state support for 
     the public college systems that grant more than two-thirds of 
     the nation's degrees, record numbers of Americans are being 
     priced out of higher education. This is an ominous trend, 
     given that the diploma has become the minimum price of 
     admission to the new economy.
       Greg Winter of The Times reported yesterday that the 
     federal government has rejiggered the formula that determines 
     how much families have to pay out of pocket before they 
     become eligible for the student aid package, which consists 
     of grants and low-interest loans. The new formula, which will 
     save the government about $300 million in federal aid under 
     the Pell program, will cause some lower-income students to 
     lose federal grants entirely. The families of others will 
     have to put up more money before they can qualify for 
     financial aid. Perversely, single-parent households will have

[[Page 11696]]

     to pay more than two-parent households before they become 
     eligible.
       The federal Pell Grant program, which is aimed at making 
     college possible for poor and working-class students, has 
     fallen to a small fraction of its former value. The states, 
     meanwhile, have trimmed aid to public colleges, partly as a 
     consequence of soaring Medicaid costs. The states have 
     deepened the problem by shifting need-based tuition to 
     middle-class and upper-class students under the guise of 
     handing out so-called merit scholarships.
       The political clamor around the new formula is likely to 
     lead to changes, but they will be aimed at upper-income 
     families who are most able to pay. Tinkering with formulas in 
     Washington will not solve this problem. The nation as a whole 
     has been disinvesting in higher education at a time when 
     college has become crucial to work force participation and to 
     the nation's ability to meet the challenges of global 
     economic competition.
       Until the country renews its commitment to making college 
     affordable for everyone, the American dream of upward 
     mobility through education will be in danger of dying out.

  Mr. KENNEDY. Mr. President, I intend to introduce later on in the 
afternoon the technical language and legislation that will block that 
particular provision by the Department of Education from going into 
effect.
  Mr. President, Janice Rogers Brown's nomination to the DC Circuit is 
opposed more strongly by civil rights organizations than almost any 
other nominee I can recall to the Federal courts of appeals.
  She is opposed by respected civil rights leaders, including Julian 
Bond, the chairman of the NAACP, and Reverend Joseph Lowery, president 
emeritus of the Southern Christian Leadership Conference, who worked 
with Dr. Martin Luther King, Jr., in the civil rights movement, and who 
has fought tirelessly for many years to make civil rights a reality for 
all Americans.
  Her nomination is also opposed by the Congressional Black Caucus, the 
National Bar Association, the Coalition of Black Trade Unions, the 
California Association of Black Lawyers, and Delta Sigma Theta 
Sorority, the second oldest sorority founded by African-American women.
  Justice Brown's nomination is opposed by Dorothy Height, president 
emeritus of the National Council of Negro Women, and a leader in the 
battle for equality for women and African Americans. Dr. Height has 
dedicated her life to fighting for equal opportunities for all 
Americans. She is universally respected by Republicans and Democrats, 
and last year she received the Congressional Gold Medal, and President 
Bush joined Members of Congress in honoring her service.
  In opposing Justice Brown's nomination, Dr. Height says:

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

  Justice Brown's nomination is opposed equally strongly by over 100 
other organizations, including 24 in California, representing seniors, 
working families, and citizens concerned about corporate abuses and the 
environment.
  Some of Justice Brown's supporters suggest that she should be 
confirmed because she is an African-American woman with a compelling 
personal story. While all of us respect her ability to rise above 
difficult circumstances, we cannot confirm nominees to lifetime 
positions on the Federal courts because of their backgrounds. We have a 
constitutional duty to confirm only those who would uphold the law and 
would decide cases fairly and reject those who would issue decisions 
based on personal ideology.
  It is clear why this nomination is so vigorously opposed by those who 
care about civil rights. Her record leaves no doubt that she would 
attempt to impose her own extreme views on people's everyday lives 
instead of following the law. The courts are too important to allow 
such persons to become lifetime appointees as Federal judges.
  Janice Rogers Brown's record makes clear that she is a judicial 
activist and would roll back not only civil rights but laws that 
protect public safety, workers' rights, and the environment, as well as 
laws that limit corporate abuse, which are precisely the cases the DC 
Circuit hears most often.
  Our decision on this nomination is profoundly important to America's 
everyday life. All Americans, wherever they live, should be concerned 
about such a nomination to the DC Circuit, which interprets Federal 
laws that protect our civil liberties, worker safety, our ability to 
breathe clean air and drink clean water in our communities.
  The DC Circuit is the crown jewel of Federal appellate courts and has 
often been the stepping stone to the Supreme Court. It has a unique 
role among the Federal courts in interpreting Federal power. Although 
located here in the District of Columbia, its decisions have national 
reach because it has exclusive jurisdiction over many laws that protect 
consumers' rights, employees' rights, civil rights, and the 
environment. Only the DC Circuit can review the national drinking water 
standards under the Safe Drinking Water Act to ensure clean water for 
our children. Only the DC Circuit can review national air quality 
standards under the Clean Air Act to combat pollution in our 
communities. This court also hears the lion's share of cases involving 
the rights of workers under the Occupational Safety and Health Act 
which helps ensure that working Americans are not exposed to hazardous 
conditions on the job. It has a large number of cases under the 
National Labor Relations Act. As a practical matter, because the 
Supreme Court can review only a small number of lower court decisions, 
the judges on the DC Circuit often have the last word on these 
important rights.
  Because of the court's importance to issues that affect so many 
lives, the Senate should take special care in appointing judges for 
lifetime positions on the DC Circuit. We must be completely confident 
that appointees to this prestigious court have the highest 
qualifications and ethical standards and will fairly interpret the 
laws, particularly laws that protect our basic rights.
  The important work we do in Congress to improve health care, reform 
public schools, protect working families, and enforce civil rights is 
undermined if we fail in our responsibility to provide the best 
possible advice and consent on judicial nominations. Needed 
environmental laws mean little to a community that cannot enforce them 
in Federal courts. Fair labor laws and civil rights laws mean little if 
we confirm judges who ignore them.
  In the 1960s and 1970s, the DC Circuit expanded public access to 
administrative proceedings and protected the interests of the public 
against the egregious actions of many large businesses. It enabled more 
plaintiffs to challenge agency decisions. It held that a religious 
group, as a member of the listening public, could oppose the license 
renewal of a television station accused of racial and religious 
discrimination. It held that an organization of welfare recipients was 
entitled to intervene in proceedings before a Federal agency. These 
decisions empowered individuals and organizations to shine a brighter 
light on governmental agencies. No longer would these agencies be able 
to ignore the interests of those they were created to protect.
  But in recent years, the DC Circuit has begun to deny access to the 
courts. It held that a labor union could not challenge the denial of 
benefits to its members, a decision later overturned by the Supreme 
Court. It held that environmental groups are not qualified to seek 
review of Federal standards under the Clean Air Act. These decisions 
are characteristic of the DC Circuit's flip-flop.
  After decades of landmark decisions allowing effective implementation 
of important laws and principles, the court now is creating precedence 
on labor rights, civil rights, and the environment that will set back 
these basic principles for years to come. It is,

[[Page 11697]]

therefore, especially important to ensure that judges appointed to this 
important court will not use their position to advance an extreme 
ideological agenda.
  Janice Rogers Brown would be exactly that kind of ideological judge. 
How can we confirm someone to the DC Circuit who is hostile to civil 
rights, to workers' rights, to consumer protections, to governmental 
actions that protect the environment and the public in so many other 
areas--the very issues that predominate in the DC Circuit? How can we 
confirm someone who is so deeply opposed to the core protections that 
the DC Circuit is required to enforce? It is hard to imagine a worse 
choice for the DC Circuit.
  Perhaps most disturbing is the contempt she has repeatedly expressed 
for the very idea of democratic self-government. She has stated that 
where government moves in, community retreats, and civil society 
disintegrates. She has said that government leads to families under 
siege, war in the streets. In her view, when government advances, 
freedom is imperiled, and civilization itself is jeopardized. These 
views could hardly be further from legal mainstream. They are not the 
views of someone who should be confirmed to the second most important 
court in the land and the court with the highest frequency of cases 
involving governmental action. Congress and the White House are the 
places you go to change the law, not the Federal courts.
  She has criticized the New Deal which gave us Social Security, the 
minimum wage, and the fair labor laws. She questioned whether age 
discrimination laws benefit the public interest. She has even said that 
today's senior citizens blithely cannibalize their children because 
they have the right to get as much free stuff as the political system 
will permit them to extract. No one with these views should be 
confirmed to any Federal court, and certainly not to the Federal court 
most responsible for cases respecting governmental action. It is no 
wonder that an organization seeking to dismantle Social Security is 
running ads supporting her nomination to the second most powerful court 
in the country.
  Of course, like every nominee who comes before the Senate, Justice 
Brown assures us that she will follow the law. But merely saying so is 
not enough when there is clear and extensive evidence to the contrary. 
The Senate is more than a rubberstamp in the judicial confirmation 
process. We must examine the record and vote our conscience.
  Justice Brown and her supporters ask us to believe that her contempt 
for the role of government and government regulation and her opinions 
against workers' rights and consumer protections are not an indication 
of how she would act as a Federal judge. It is hard to believe that 
anyone would repeatedly use such extreme rhetoric and not mean it. It 
is even harder to believe that her carelessness and intemperance 
somehow qualify her to be a Federal judge.
  Moreover, Justice Brown's decisions match her extreme rhetoric. She 
has written opinions that would undermine these basic protections. I 
was especially troubled by her opinion in a case in which ethnic slurs 
have been proven to create hostile working conditions for Latino 
workers. Justice Brown wrote that the first amendment prevents courts 
from stopping ethnic slurs in the workplace even when those slurs 
create a hostile work environment, in violation of job discrimination 
laws.
  Her opinion even went beyond the State law involved in the case and 
suggested that title VII and other Federal antidiscrimination laws may 
not prohibit this kind of harassment in the workplace. Her opinion 
contradicts decades of precedent protecting workers from harassment 
based on race, gender, ethnicity, and religion. Fortunately, a majority 
of California's Supreme Court disagreed with her views.
  We cannot risk giving Justice Brown a lifetime appointment to a court 
on which she will have a greater opportunity to apply her extreme views 
on our Federal civil rights laws. This Nation has made too much 
progress toward our shared goal of equal opportunity to risk appointing 
a judge who will roll back civil rights.
  Other opinions by Justice Brown would have prevented victims of age 
and race discrimination from obtaining relief in State court. She 
dissented from a holding that victims of discrimination may obtain 
damages from administrative agencies for their emotional distress. Time 
and again, she has issued opinions that would cut back on laws that 
rein in corporate special interests. When there is a choice between 
protecting the interests of working Americans and siding with big 
business, Janice Rogers Brown sides with big business, and she does so 
in ways that go far beyond the mainstream conservative thinking.
  She wrote an opinion striking down a State fee requiring paint 
companies to pay for screening and treating children exposed to lead 
paint. Most of us are familiar with the dangers of lead paint. It is a 
contributing cause to mental retardation with regards to children. Many 
of the older communities all over this country have paint that has a 
lead content, and children have a habit of picking off the pieces. Even 
if it is in playgrounds, they have a way of ingesting these pieces. We 
find that children develop severe illness and sickness and in too many 
instances mental retardation. We tried here for years to eliminate the 
issues of lead in paint. We have made some important progress.
  As I understand it, one of the proposals was a small State fee 
requiring paint companies to pay for screening and treating children 
exposed to lead paint, and she struck down that State fee. Fortunately, 
she was unanimously reversed by the California Supreme Court. But 
because the United States Supreme Court hears so few cases, there is no 
guarantee that her mistakes will be corrected if she receives a 
lifetime position on the DC court.
  In another case, she wrote a dissent urging the California Supreme 
Court to strike down a San Francisco law providing housing assistance 
to low-income elderly and disabled people.
  Justice Brown has also clearly demonstrated her willingness to ignore 
established precedent. She wrote a dissent, arguing that the California 
Supreme Court ``cannot simply cloak ourselves in the doctrine of stare 
decisis,'' which is the rule that judges should follow the settled law. 
That is the basic concept of upholding the law, interpreting law, stare 
decisis, following the law which currently exists.
  She wrote a dissent urging the California Supreme Court, saying we 
cannot simply cloak ourselves in that doctrine.
  She again showed her willingness to disregard legal precedent just 
this year. In People v. Robert Young, Justice Brown tried to overturn a 
precedent protecting the rights of racial minorities and women not to 
be eliminated from juries for discriminatory reasons. In a concurring 
opinion not joined by any of her colleagues, she criticized the 
precedent stating that for the purposes of deciding whether a 
prosecuting attorney had discriminated in selecting a jury, black women 
could not be considered a separate group. The California Supreme Court 
had held two decades ago that prosecutors may not exclude jurors solely 
because they are black women.
  Justice Brown argued that this precedent should be overruled because 
she saw no evidentiary basis that black women might be the victims of a 
unique type of group discrimination justifying their designation as a 
cognizable group.
  It is not just Senate Democrats who are troubled about the record of 
Janice Rogers Brown. Conservatives have also expressed concern about 
the judicial activism of Janice Rogers Brown. The conservative 
publication National Review had this to say:

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

  Even conservative columnist George Will has said that Janice Rogers 
Brown is out of the mainstream.

[[Page 11698]]

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


                             Birth Control

  Mr. DURBIN. Mr. President, today is a very important day in American 
history. On June 7, 1965, 40 years ago today, the U.S. Supreme Court 
struck down a Connecticut law making it a crime to use or prescribe any 
form of birth control or even to give advice about birth control. Forty 
years ago it was a crime to prescribe any form of birth control in the 
State of Connecticut, or to use it, or to give advice about it: 40 
years ago.
  It is hard to imagine, isn't it? Even married couples in Connecticut 
could be convicted of a crime, fined, and sentenced to up to a year in 
prison for using forms of birth control. Doctors who prescribed 
contraceptives, pharmacists who filled the prescriptions, even people 
who simply provided advice about birth control, could be charged with 
aiding and abetting a crime, fined, and sent to prison for up to a 
year.
  But 40 years ago today, just across the street, by a vote of 7 to 2, 
the Supreme Court struck down the Connecticut law. The case was called 
Griswold v. Connecticut, a famous case. The Court's ruling held for the 
first time in our Nation's history that the Constitution guarantees all 
Americans the right to privacy in family planning decisions. Such 
decisions were so intensely personal, their consequences so profound, 
the Court said the State, the Government, may not intrude, it may not 
impose its will upon others.
  You can search our Constitution, every single word of it, as short a 
document as it is, and never find the word ``privacy'' in this 
document. Yet the Supreme Court said they believed the concept of our 
privacy was built into our rights, our individual rights and liberties.
  I referred briefly to this landmark ruling earlier today in remarks 
opposing the nomination of Janice Rogers Brown to serve as a Federal 
circuit court judge in the District of Columbia. That nomination is 
before the Senate at this moment. It is for a lifetime appointment. 
Janice Rogers Brown is a justice in the California Supreme Court who 
has stated explicitly her own personal philosophy, her own judicial 
philosophy, and it runs counter to many of the concepts and values I 
will be discussing as part of this commemoration of the Griswold 
decision.
  I am glad there is a bipartisan resolution sponsored by my colleague 
from Illinois, Senator Barack Obama, and Senator Olympia Snowe of 
Maine, calling on the Senate to celebrate the 40th anniversary of the 
Griswold decision. In that resolution, my two colleagues, one Democrat, 
one Republican, ask the Senate to renew its commitment to make sure 
that all women, including poor women, have access to affordable, 
reliable, safe family planning.
  Right at the heart of the Griswold decision, the right to make the 
most intimate personal decisions about our lives in private, without 
Government interference, we find the foundation for future decisions 
that expanded reproductive rights. In 1972, in Eisenstadt v. Baird, the 
Supreme Court granted unmarried people in America access to family 
planning and contraception--1972--and, in 1973, the famous case, Roe v. 
Wade, a 7-to-2 decision by the Supreme Court said that women have a 
fundamental right to decide whether to continue a pregnancy, depending 
on the state of the pregnancy. Supreme Court Justice Harry Blackmun was 
nominated to serve on the Supreme Court by Richard Nixon--obviously a 
Republican President. Justice Blackmun had been on the Court less than 
a year and a half when he was assigned to write the majority opinion in 
Roe v. Wade.
  There is a brilliant new biography called ``Becoming Justice 
Blackmun'' by Linda Greenhouse. I finished it and recommend it to my 
colleagues. Justice Blackmun served on the Court at several different 
levels and kept copious notes. From those notes, which were donated, 
they have derived this biography, which I recommend to anyone, 
regardless of your political background, to understand what happens 
behind those closed doors at the Supreme Court.
  Justice Blackmun revealed in this book how he struggled with the 
assignment of writing the majority opinion on Roe v. Wade. You see, he 
had been the general counsel for the Mayo Clinic, one of the most 
outstanding hospitals in America, which happens to be in the State of 
our Presiding Officer, Minnesota, in Rochester. So Justice Blackmun 
left Washington and went back to the library of the Mayo Clinic as he 
wrote this decision. He worked for long periods of time, plowing 
through books and articles on the whole question of abortion. He 
listened to a lot of people, including his own daughter, who dropped 
out of college in her sophomore year after becoming pregnant.
  In his notes for the Roe decision, Justice Blackmun made two 
predictions. Here is what he said. The Court will be excoriated at 
first for its decision. Then, he went on to say, there will be an 
unsettled period for a while as States brought their laws into 
compliance with the Roe v. Wade decision.
  The first prediction proved accurate; the second, overly optimistic. 
Thirty-two years after the Roe decision, 40 years after the Griswold 
decision, America today remains unsettled, not only about reproductive 
rights, but

[[Page 11699]]

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

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

  She added:

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

  Today, it is estimated that 95 percent of American women will use 
birth control during their childbearing years. Reliable birth control 
is now a critical part of preventive health care for women. And Roe, 
although it has been weakened, is still the law of the land.
  The widespread use of birth control has helped reduce maternal and 
infant mortality by an astonishing two-thirds in the last 40 years. 
Since Griswold, we have reduced infant and maternal mortality in 
America by two-thirds. In 1999, the U.S. Centers for Disease Control 
and Prevention included family planning on the list of ``Ten Great 
Public Health Achievements in the 20th Century.''
  But Comstockery seems to be making a return. You can see it in 
efforts to impose gag rules on doctors and other measures designed to 
make it harder for women to get information and services related to 
family planning and abortion. You can see it in the stories of women 
who are harassed by pharmacists when they attempt to fill prescriptions 
for contraceptives--in some cases, even after these women have been 
victims of sexual assault.
  A chill wind blows for reproductive rights and possibly other issues 
of conscience as well. You can hear that wind in the rhetoric of 
extremists who rail about the ``culture war'' in America and 
misrepresent legitimate political debate as attacks on people of faith.
  We heard the chill wind of religious intolerance in some of the sad 
debate over the tragedy of Terri Schiavo. We heard it in the dangerous, 
vitriolic condemnations of judges, like George Greer, the judge in the 
Schiavo case, who dared to enforce the law as he believed the 
Constitution required.
  We can hear that chill wind of religious and social intolerance today 
in the debate over stem cell research. Once again, as with the Comstock 
laws, a passionate group who sees itself as the moral guardians of 
America would use the power of our Government to deny life-saving 
medical care to those who need it. They believe that a cell blastocyst 
deserves the same legal standing and protections as a full-grown child 
or adult suffering from Parkinson's or diabetes or terrible injury to 
their spinal cords. I respect their opinion. I respect their religious 
beliefs. In most cases, I don't share them. Neither do most Americans. 
I don't believe this vocal minority, no matter how well intentioned 
they may be, no matter how moral they believe themselves to be, should 
have a veto power over medical research that offers apparently 
unlimited potential to heal broken bodies and minds and save lives.
  Will our courts continue to recognize the constitutional right to 
privacy on family planning and other profoundly personal issues? Or 
will we fill the Federal bench with judicial activists who see 
themselves as soldiers in a cultural war, who want to put their own 
agendas ahead of the Constitution? That is one of the questions that is 
at the heart of the debate on the Federal judges.
  The filibuster debate is not about old Senate rules. It is about 
whether self-described cultural warriors can use our Government to 
impose their personal moral agenda on America.
  In April, a group of organizations held a televised rally to condemn 
the Senate filibuster rule as a weapon against people of faith. They 
called it ``Justice Sunday.'' That day, Janice

[[Page 11700]]

Rogers Brown, the nominee now before the Senate, gave a speech in which 
she argued that ``people of faith are embroiled in a war against 
secular humanists.'' According to newspaper accounts, she went on to 
say:

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

  Mr. President, Americans are not at war with one another. We are at 
war in Afghanistan and Iraq, wars, sadly, fueled by religious extremism 
in many respects. Expressing honest, fundamental differences of opinion 
on political and social questions here at home is not an act of war. It 
is an act of democracy. It is our democratic process and our 
Constitution at work.
  I respect the right of every person to express his or her beliefs 
about religion or anything else. That is part of the beauty of being a 
citizen in this great Nation. But we cannot allow the beliefs of a 
majority, or even a vocal minority, to determine moral choices for 
every American. As the Supreme Court ruled so wisely 40 years ago, 
there are decisions that are so intensely private that the Government 
has no right to intrude.
  Soon I hope we take up the issue which the House considered just 
several days ago on stem cell research. It strikes me as strange, maybe 
unfair, that some believe we should oppose in vitro fertilization in 
every circumstance. I have friends of my family, friends for years, who 
have spent small fortunes in the hopes that a mother and father who 
cannot conceive by natural means can use this process to have a child 
whom they will rear and love all of their lives. One of my friends has 
spent $80,000 in two separate, thank goodness successful, efforts, and 
she has two beautiful children to show for it.
  I cannot imagine why that is an immoral act, when a husband and wife 
will go to those extremes to bring a life into this world that they 
will love and nurture. But we know, just as in normal conception, there 
will be, during the process, some of the fertilized eggs that will not 
lodge in a mother's womb and lead to human life. That is the natural 
thing that occurs.
  The same thing happens during in vitro fertilization. If they are 
successful in creating this fertilized egg, and then implanting it in a 
woman's womb so she can have a baby, it is a miracle, but as part of 
that miracle there will be some of these fertilized eggs which cannot 
be used.
  So the question before us in stem cell research is very clear: Should 
stem cells from blastocysts be used to save others' lives, to prevent 
disease, to give someone hope and a future? That is what it is about. 
There are some who say no, some who would say we should not allow in 
vitro fertilization, and others who say, if you allow it, you should 
never allow those discarded blastocysts to be used for medical 
research.
  The position of the Bush administration is close to that. The 
President, in August of 2001, said he would approve certain stem cell 
lines being used for research but no others. Well, it turns out those 
stem cell lines were very limited in their number and quality, and 
scientists and medical researchers have told us that the President's 
approach is not going to give us the opportunity we need to develop 
these stem cells into cures for diseases. So many of us believe we 
should move forward.
  We should have strict rules against cloning. I do not know of a 
single Member of Congress, of either political party, who supports 
human cloning. We are all opposed to that. It should be condemned, and 
we should have strict ethical guidelines on the use of these stem cells 
so that they are used legitimately for research, not for profit or 
commercialization, but legitimately used for research to try to find 
the cures to these vexing diseases.
  Many of us believe that this is as pro-life as it gets. If you can 
take stem cells that would be otherwise discarded and never used for 
any purpose and use them for the purpose of giving a youngster who has 
to inject with insulin three times a day a chance to be rid of 
diabetes, if you can use it for a person afflicted in their forties or 
fifties with Parkinson's disease, which is a progressively degenerative 
disease in most instances, if you can use it to try to regenerate the 
spinal column and all the things that are necessary so someone can walk 
again after a spinal cord injury--how in the world can that be wrong?
  That strikes me as promoting life. Yet some will come to the floor, 
even threatening a filibuster, saying that we cannot do this because it 
violates their personal moral and religious beliefs. Well, I understand 
that. And that is how they should vote. But to stop the rest of the 
Nation--because of their personal moral and religious beliefs--from 
this type of medical research seems to me to be counterproductive, if 
you are truly committed to life and the health of those who surround 
us.
  Forty years ago, the decision was made across the street that there 
are certain elements of privacy, there are certain elements of personal 
decisions made by individuals and families which the State, the 
Government cannot overrule because of anyone's personal religious, 
moral belief. They said that privacy is critically important in 
America. Those private decisions should be protected.
  Every nominee for the Supreme Court I have heard in recent times has 
faced a Judiciary Committee question from some member, Democrat or 
Republican: Do you still agree with the Griswold v. Connecticut 
decision? Do you still believe that, even though this Constitution does 
not include the word ``privacy,'' that is part of what we have as 
Americans as part of our individual rights and liberties? The only one 
who tried to, I guess, split the difference and find some way to argue 
around it was Robert Bork. His nomination was ill-fated after he made 
some of those statements.
  I believe most Americans feel we should be personally responsible, 
that we should be allowed to have our own personal religious beliefs, 
but they also think we should stay away from the Government imposing 
religious beliefs on one group or the other. That is what happened with 
the Comstock laws. That is what led to the laws in Connecticut, which 
were stricken in Griswold. Sadly, that is part of the debate today when 
it comes to stem cell research.
  I am urging Senator Frist, a medical doctor, one I greatly respect, 
to bring this bill up and bring it up quickly. I know there is a 
feeling by the White House, and maybe even by some in Congress, that we 
should avoid this stem cell research debate. But when you think of the 
millions of Americans and their families who are counting on us to move 
medical research forward, is there anything more important on our 
political agenda?
  I sincerely hope President Bush, who made an exception for some stem 
cell lines for research, will understand that you cannot take an 
absolute position on this issue. It is a tough issue. It is one where 
we should draw good, ethical guidelines for the use of this research, 
but not prohibit it, not close the door to this research and the cures 
that could emanate from it. That, I think, would be a lesson well 
learned, a lesson consistent with the decision made by the Supreme 
Court 40 years ago today.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I would like to get us back on the 
topic at hand. It is a topic that has been denied for some period of 
time. It is the Honorable Janice Rogers Brown nomination to the U.S. 
Court of Appeals for the DC Circuit. ``Justice delayed is justice 
denied'' is an old saying under the law. This lady has been delayed a 
long time. It is time to get this nomination through.
  I am glad to see the cloture vote move us forward. She is going to be 
now approved, I believe, by a majority vote and a majority opinion. And 
I think if the country had to vote on Janice Rogers Brown, it would be 
a 90-plus percent vote for this lady, given her background, given her 
judicial expertise, given her demeanor, given her nature.
  I think the country would look at this lady, whom I have a picture of

[[Page 11701]]

here, and say: That is the type of person I want on the bench. This is 
a good, honorable person, with a great heart, a well-trained mind, who 
is thoughtful, with great experience. This is the type of person we 
ought to have on the bench. Yet we have just heard litany after litany 
of excuses, the dissecting of cases that you try to then parse to say 
she should not be on the bench for whatever reason.
  I want to go through some of what has been stated previously. I want 
to go through, again, her background to get us back on topic. And then 
I want to go through some of the specifics.
  She is currently serving as an associate justice on the California 
Supreme Court. She has held that position since 1996. She is the first 
African-American woman to serve on the State's highest court. She was 
retained with 76 percent of the vote in the last election. Certainly, 
that does not seem to be the sort of extreme case anyone can come up 
with; that 76 percent of Californians think she should be retained on 
the court. If she is so extreme, if she is so off the mark, if she is 
so out of the mainstream, why, in California, wasn't she voted off the 
bench?
  Why didn't at least 24 percent of Californians or more than 24 
percent vote her off the bench? Why didn't she have a much closer 
election than that? Where is the beef, an old advertising phrase?
  In 2002, Justice Brown's colleagues relied on her to write the 
majority opinion for the court more times than any other justice. Prior 
to appointment and confirmation to the California Supreme Court, 
Justice Brown served from 1994 to 1996 as an associate justice on the 
Third District Court of Appeals, an intermediate State appellate court.
  Justice Brown enjoys bipartisan support from those in California who 
know her best. A bipartisan group of 15 California law professors has 
written to the Senate Judiciary Committee in support of Justice Brown. 
The letter notes that:

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

  This is a bipartisan group that says she is open-minded and thorough 
in her appraisal of legal arguments.
  A bipartisan group of Justice Brown's current and former judicial 
colleagues has also written a letter in support of her nomination. 
Twelve current and former colleagues noted in a letter to the committee 
that:

       Much has been written about Justice Brown's humble 
     beginnings, and the story of her rise to the California 
     Supreme Court is truly compelling. But that alone would not 
     be enough to gain our endorsement for a seat on the Federal 
     bench. We believe that Justice Brown is qualified because she 
     is a superb judge. We who have worked with her on a daily 
     basis know her to be extremely intelligent, keenly 
     analytical, and very hard working. We know that she is a 
     jurist who applies the law without favor, without bias and 
     with an even hand.

  This doesn't sound like the same lady who is being discussed on this 
floor by some of my colleagues on the other side.
  Ellis Horvitz, a Democrat and one of the deans of the appellate bar 
in California, has written in support of Justice Brown noting that:

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

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

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

  These are some of the people who know her the best. These are the 
statements they make about her. This is why she should be on the DC 
appellate court.
  Justice Brown is an outstanding and highly qualified candidate as 
evidenced by her background, credentials, and training. This has been 
covered and covered. But she is a sharecropper's daughter, born in 
Greenville, AL, in 1949. During her childhood she attended segregated 
schools, came of age in the midst of Jim Crow policies in the South. 
She grew up listening to her grandmother's stories about NAACP lawyer 
Fred Gray, who defended Dr. Martin Luther King, Jr., and Rosa Parks. 
Her experience as a child of the South motivated her desire to be a 
lawyer. Her family moved to Sacramento, CA, when Justice Brown was in 
her teens. She later received a B.A. in economics from California State 
in Sacramento in 1974, and her J.D. from UCLA School of Law in 1977. 
She also received honorary law degrees from Pepperdine University Law 
School, Catholic University, and Southwestern University School of Law.
  She has dedicated all but 2 years of her 26-year legal career to 
public service. For only 2 years has she not been in public service, 24 
years of public service. Where is the person who is out of the 
mainstream? Where is the person who is irrational? Where is the person 
who doesn't hold or have the judicial temperament or doesn't have the 
intellect or the open-mindedness to be a judge in all of this? She has 
dedicated most of her life, 24 years, to public service.
  Prior to more than 8 years as a judge in State courts, Justice Brown 
served from 1991 to 1994 as legal affairs secretary to California 
Governor Pete Wilson where she provided legal advice on litigation, 
legislation, and policy matters. From 1987 to 1990, she served as 
deputy secretary and general counsel to the California Business, 
Transportation, and Housing Agency where she supervised the State 
banking, real estate, corporations, thrift, and insurance departments.
  From 1972 to 1987, she was deputy attorney general of the Office of 
the California Attorney General where she prepared briefs and 
participated in oral arguments on behalf of the State in criminal 
appeals, prosecuted criminal cases, and litigated a variety of civil 
issues. She began her legal career in 1977, when she served 2 years as 
deputy legislative counsel in the California Legislative Counsel 
Bureau. She has a broad base of experience from which to draw to be an 
excellent person to sit on the Federal appellate court bench.
  She has participated in a variety of statewide and community 
organizations dedicated to improving the quality of life for all 
citizens of California. Justice Brown has served as a member of the 
California Commission on the Status of African-American Males--the 
commission was chaired by now-U.S. Representative Barbara Lee--and made 
recommendations on how to address inequalities in the treatment of 
African-American males in employment, business development, the 
criminal justice, and health care systems.
  She is a member of the Governor's Child Support Task Force, which 
reviewed and made recommendations on how to improve California's child 
support enforcement laws. She serves as a member of the Community 
Learning Advisory Board of the Rio Americano High School and developed 
the Academia Civitas Program to provide government service internships 
to high school students in Sacramento. She has also assisted in the 
development of a curriculum to teach civics and reinforce the values of 
public service.
  She has volunteered time with the Center for Law-Related Education, a 
program that uses moot courts and mock trials to teach high school 
students how to solve everyday problems. She has taught Sunday school 
class at Cordova Church of Christ for more than 10 years. That is 
Justice Janice Rogers Brown. Those are the facts. That is who she 
actually is.

[[Page 11702]]

  So why has it taken that long a period of time for us to be able to 
get her to the floor? Why is there such consternation about her 
becoming a DC appellate court judge? Why have we spent years to get her 
to the point where we will vote on--I would love to see it today, but 
at least this week--her approval to the DC appellate court bench? I 
think it goes to the fact that she is a lady, nominated by President 
Bush, who will strictly construe the Constitution, stay within the 
bounds of the document, not try to write new opinion as to a new 
constitutional right or a new issue that is not within the Constitution 
or not within the law. She is what lawyers would call a strict 
constructionist. She says if the law says this--and it was passed to 
say that--that is what we enforce, if that is what the Constitution 
says.
  It is not the living, breathing document of let's try to create 
another right or privilege here and take three or four of the 
amendments to the Constitution, provisions of the Constitution, frame 
them together, and then let's find a new right in the Constitution 
because we think this is good for the country. If it is a change to the 
Constitution that needs to happen, then it should happen. And it should 
go through this body with a two-thirds vote. It should go through the 
House with a two-thirds vote. It should go to the State legislatures 
for a three-fourths vote. It should not be a majority opinion of a 
bench somewhere.
  She says she will stay within the confines of the law. That is what 
the President is trying to nominate, judges who will stay strict 
constructionists within the confines of the law and be what judges 
should be, interpreters of the law, enforcers of the Constitution as it 
is written, not as they wish it were written. That is what this 
nomination is about.
  Others want to see a court that will expand and look and read 
different things in, even if it doesn't pass through this body or 
doesn't pass through the legislature or isn't signed into law by the 
President. We really are at a point of what it is that the judiciary is 
to be about in America. You are seeing the face of somebody who is a 
strict constructionist, saying that this is what it is about.
  The judiciary has a role. It has a constitutional role. It is an 
extraordinarily important role. But it is defined and it is set. She 
believes it should stay within. That is why we have had so much trouble 
with so many of these judicial nominations.
  During the first 4 years of the Presidency of George W. Bush, the 
Senate accumulated the worst circuit court confirmation record in 
modern times, thanks to partisan obstruction. Only 35 of President 
Bush's 52 circuit court nominees were confirmed, a confirmation rate of 
67 percent. To give you a comparison on that:
  People have said that is not so low; we approved a number of these 
lower court judges. But let's take President Johnson's term in office. 
There was a Democrat Senate and a Democrat President. What was his 
circuit court nomination rate? It was 95 percent.
  President Bush: Republican Senate, Republican Presidency, 67 percent.
  What about President Carter? Democratic President, Democratic Senate, 
and 93 percent of his circuit court nominees were approved.
  President Bush: 67 percent.
  What has taken place is a filibuster of good people, such as Janice 
Rogers Brown, who has served honorably most of her professional career 
in public service but does believe there are confines within which they 
rule. It is in the Constitution or it is not; it is in the law or it is 
not; it is constitutional or it is not. It is not what I wish it were, 
it is what is actually there. It is what the precedents have said that 
matters.
  The average American may not be familiar with Senate rules on cloture 
or on the unprecedented low confirmation rate of President Bush's 
circuit court nominees, but the average American can tell you one 
thing: that the Constitution and common sense require the Government to 
be accountable to the people for its actions. This is especially the 
case of what we do in the House and the Senate as we move forward in 
this country.
  I want to address some of the items that have been coming up in some 
of these debates. Various Members have raised specific points, and I 
want to address a few of those points.
  Certain liberal special interest groups have tried to distort Janice 
Rogers Brown's decision when she served on the State court of appeals 
in the case of Sinclair Paint Company v. Board of Equalization. They 
claimed she was insensitive to the legislature's desire to protect 
children from lead poisoning.
  What was really at issue in the case was the respect for the will of 
the California voters who wanted to make it more difficult for the 
California Legislature to raise taxes.
  California proposition 13--people remember that--enacted in June of 
1978, requires a two-thirds vote of the legislature to increase State 
taxes. That is what proposition 13 did. In 1991, the California 
Legislature voted by a simple majority to assess fees on manufacturers 
engaged in commerce involving products containing lead in order to fund 
a program to provide education, screening, and medical services for 
children at risk for lead poisoning. Justice Brown simply held for a 
unanimous court of appeals--a unanimous court of appeals--in affirming 
the judgment of the trial court that the assessment constituted a tax 
within the meaning of proposition 13 and thus had to be passed by a 
two-thirds vote.
  That seems to be pretty basic and pretty common sense and not about 
her insensitivity to cases involving lead poisoning but simply what her 
role is under the law and her role as a jurist.
  Under applicable California case law where payment is exacted solely 
for revenue purposes and its payment gives the right to carry on the 
business without any further conditions, the payment constitutes a tax. 
The Childhood Lead Poisoning Protection Act did not require the 
plaintiff to comply with any other conditions. It was merely required 
to pay its share of the program cost. Justice Brown reasonably 
concluded the assessment was a tax.
  There are several other cases that have been brought up that I want 
to address.
  Several liberal interest groups have attacked Justice Brown's dissent 
in Aguilar v. Avis Rent-a-Car Systems in which she argued racial 
discrimination in the workplace, even when it rises to the level of 
illegal race discrimination, cannot be prohibited by an injunction 
under the first amendment. I want to talk about this.
  Justice Brown, as I have cited, is the daughter of a sharecropper 
from rural Alabama. She grew up under the shadow of Jim Crow laws. I 
think she understands the lingering effects of racial classification. 
In light of her personal history, the allegation she is insensitive to 
discrimination is absurd.
  Notwithstanding her personal experiences with racism, Judge Brown's 
role as a judge has been to apply the law which she has done faithfully 
and rigorously. As I discussed earlier, it is the role of the judge to 
apply the law and apply the Constitution, not rewrite the law the way 
they wish it were, not to rewrite the Constitution the way they think 
it ought to be, but to apply it in a particular case. And this is a 
case she could have looked at from her background and said: I 
understand this situation. I have been in this situation. Yet what does 
the law itself say?
  Judge Brown's opinions demonstrate her firm commitment to the bedrock 
principle of civil rights. Discrimination on the basis of race is 
illegal, it is immoral, unconstitutional, inherently wrong, and 
destructive of a democratic society. Those are her statements.
  In the Aguilar case, Justice Brown described the defendants' comments 
as disgusting, offensive, and abhorrent, and she voted to permit a 
large damage award under California's fair employment law to stand. Her 
dissent only pertained to an injunction that placed an absolute 
prohibition on speech. This is commonly called a prior restraint which 
most free speech advocates strenuously oppose.
  Justice Brown's opinions demonstrate her firm commitment to the first 
amendment. She cited a long line

[[Page 11703]]

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

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

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

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

  This is a native of Alabama.

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

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

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

  That was her dissenting opinion, a stirring opinion, quoting things 
that in her growing up and in her childhood she had witnessed. She is 
very sensitive on racial issues.
  Last month, Ginger Rutland, who is on the editorial board of the 
Sacramento Bee, wrote this in her newspaper about Justice Brown's 
judicial courage:

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

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


[[Page 11704]]

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

  This is an admitted liberal editorial writer talking about Brown's 
courage.
  This is a lady who is going to do an outstanding job on the DC 
Circuit Court of Appeals. The only tragedy is that she has not been 
there years earlier. The tragedy is that she has been held up because 
she looks at doing her job for what it is, which is staying within the 
Constitution and enforcing it, looking at the law and enforcing it; or 
if it goes against what is in the Constitution, ruling it 
unconstitutional, but not looking at the Constitution as she hoped it 
would be or mixing together a series of ideas in the Constitution and 
finding a new right; or looking at the law and thinking it should be 
this way or that and expanding it that way. This is a person who looks 
at her job as being a judge, in an honorable role, but it is a role 
that has a set to it and a way, and she is upholding that.
  I believe that is really what is at the cornerstone of this debate. 
Unfortunately, we get it mired so often in personalities and 
accusations and hyperbole, comments of a personal nature toward an 
individual that are simply not true, when really what we are talking 
about is the role of courts.
  Courts, like every institution, are people. People are on the courts. 
We have judges who are appointed to the courts, and they have their 
views and they have a way of looking at the Constitution or they have a 
way of looking at various documents or laws. She looks at it as more of 
a strict constructionist. That is an honorable way to look at it. I 
believe it is the right way to look at it. Yet she gets painted with 
all the other sorts of accusations that are simply not based on fact 
but are a disguise for what the real debate is about, which is the role 
of the judiciary in America today.
  We are having a rolling debate about that issue. We are having a lot 
of discussion about that. We are having discussions in various States 
and in the Nation about what is the appropriate role of the judiciary. 
I believe this is a lady who would stand by that role.
  Those are a series of issues. I may visit some others later on, but 
this is a lady who is eminently qualified, will do a wonderful job. I 
support her nomination, and I hope we can get to a strong vote fairly 
soon on it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, this is a debate that is worth having. 
There has been a great deal of discussion about this nominee for the 
lifetime appointment to the Federal bench.
  There is no entitlement, of course, to a lifetime appointment to the 
Federal bench. The Constitution provides how this is done. First, the 
President shall nominate a candidate for a lifetime service on the 
Federal courts, and, second, the Congress shall provide its advice and 
consent, and determine whether to confirm the nominee. So the President 
nominates, sends a name, and the Congress does what is called in the 
Constitution advise and consent, says yes or no.
  In most cases, the Congress says yes. This President, President 
George W. Bush, has sent us 218 names of people he wanted to send to 
the Federal courts for a lifetime. This Congress has said ``yes'' to 
209 of the 218. That is pretty remarkable, when you think about it--209 
out of 218 we have said ``yes.'' There are a few we have delayed and 
held up and have been subject to cloture votes. Some have said they 
haven't gotten a vote. Yes, they have gotten a vote. The procedure on 
the floor, of course, is there is a cloture vote, and they didn't get 
the 60 votes, but 60 votes is what requires consensus in the Senate. It 
has been that way for decades and decades.
  I have voted for the vast, vast majority of the 209 Federal judges 
that the President has nominated, including, incidentally, both of the 
Federal judgeships in North Dakota which were open. Both of which are 
now filled with Republicans. I was pleased to support them. I think 
they are first-rate Federal judges. I am a Democrat. The names that 
came down from the President to fill the two judgeships in North Dakota 
were names of Republicans. I am proud of their service. I testified in 
front of the Judiciary Committee for both of them and introduced both 
of them.
  So the fact is this is not about partisanship. It is about nominating 
good people, nominating people in the mainstream of political thought 
here in this country.
  I take no joy in opposing a nominee, but I do think that if Members 
of the Senate will think carefully about the views of this nominee, 
they will decide that she really ought not be put on the second most 
important court in this country for a lifetime of service. Let me go 
through a few things that this nominee, Janice Rogers Brown, has said.
  Let me say to my colleague who was speaking when I came in, this is 
not innuendo, not argumentative; these are quotes from the nominee. 
Facts are stubborn things. We are all entitled to our own opinions, but 
we are not all entitled to our own set of facts. Let me read the facts, 
and let me read the quotes that come from this nominee.
  This nominee, Janice Rogers Brown, says that the year 1937 was ``the 
triumph of our own socialist revolution.'' Why? In 1937, that is when 
the courts, including the Supreme Court, upheld the constitutionality 
of Social Security and the other major tenets of the New Deal. The 
triumph of socialism? I don't think so. What planet does that sort of 
thinking come from, a ``triumph of socialism''?
  This nominee says that zoning laws are a ``theft'' of property, a 
taking, under the Constitution; therefore, a theft of property. Well, 
we have zoning laws in this country for a reason. Communities decide to 
establish zoning laws so you don't build an auto salvage yard next to a 
church, and then have somebody move in with a porn shop next to a 
school and a massage parlor next to a funeral home. But this nominee 
thinks zoning is a theft of property. It is just unbelievable, it is so 
far outside the mainstream thought.
  Here is what she says about senior citizens in America.

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

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

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

  Really? I wish perhaps she could have been with me one evening at the 
end of a meeting in a small town of about 300 people. A woman came up 
to me after the meeting and she grabbed a hold of my elbow. She was 
probably 80 years old. She said: Mr. Senator, can you help me?
  I said I would try.
  Then her chin began to quiver and her eyes welled up with tears and 
she said: I live alone. And she said: My doctor says I have to take 
medicine for my

[[Page 11705]]

heart disease and diabetes, and I can't afford it. I don't have the 
money. Then she began to get tears in her eyes.
  I wish perhaps Janice Rogers Brown understood something about that. 
She thinks this old lady, this elderly woman, struggling to find a way 
to pay for medicine to keep her alive, is cannibalizing somebody? I 
don't think so. I think it is incredible that someone would say this.
  Now the President wants to put this nominee on the second highest 
court in the land for a lifetime of service.
  She says again:

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

  I guess I never thought the basic rights that we have in this country 
ought to be antithetical to what we believe is most important in 
America. I have traveled over most of this world and been in countries 
where there aren't rights. I have been in a country where, if people 
have the wrong piece of paper in their pocket and they are picked up, 
they are sent to prison for 12 years. I have seen the tyranny of 
dictatorships and the tyranny of communism. I happen to think basic 
rights that exist in this country for the American people are 
critically important; that ``We the people,'' the first three words of 
that document that represents the constitutional framework for this 
country's governance, is not something that ought to be taken lightly.
  Let me read a couple of other things that this nominee has said. She 
was the only member of the California Supreme Court to conclude that 
age discrimination victims should not have the right to sue under 
common law. Age discrimination victims should not have the right to 
sue?
  She was the only member of the California Supreme Court who voted to 
strike down a San Francisco law that provided housing assistance to 
displaced and low-income and disabled people.
  I don't understand the President sending us this nominee. Is it the 
case that this administration really wants to put on the Federal bench 
for a lifetime someone who is opposed to the basic tenets of the New 
Deal that have lifted so many people out of poverty in this country, 
that represents, in many cases, some of the best in this country--
telling old folks that when you reach that retirement age you don't 
have to lay awake at night worrying about whether you are going to be 
able to go to the doctor when you get sick because there will be 
Medicare; or telling people that Social Security will be there when you 
need it--you work, you invest in it, when you retire, you can collect 
it. Do we really want to put someone on this circuit court who believes 
that is a triumph of socialism? I don't think so.
  There is a kind of arrogance here these days that is regrettable. I 
was here in the 1990s, and I watched 60 Americans who were nominated 
for judgeships never even have the courtesy of a day of hearings, let 
alone get to the floor of the Senate for a cloture vote or a vote up or 
down--60 of them. We are not even given the courtesy of a day of 
hearings. The President sends the name down in the 1990s. The majority 
party said, tough luck, we don't intend to do anything about it; you 
will not have a hearing; you will not have a vote. This name will not 
advance.
  We did not do that. This caucus has not done that; in fact, just the 
opposite. Of the 218 names that have been sent to this Congress from 
this President, the Senate has approved 209 of them. Those who did not 
get confirmed had a cloture vote in the Senate. They had a day of 
hearings. They had an opportunity to testify before the Judiciary 
Committee. Their name was brought to the floor. We had cloture votes.
  Now we have Members coming to the Senate on the other side saying, 
look, our policy is, everyone needs an up-or-down vote; not a cloture 
vote, an up-or-down vote. These Members did not hold that view at all 
in the 1990s. In fact, they did exactly the opposite. There are terms 
for that which I shall not use here.
  The fact is, we are proceeding on the Janice Rogers Brown nomination 
because of an agreement made 2 weeks ago. I hope, however, having read 
what I have read about her views on a wide range of issues, that we 
will have sufficient colleagues in the Senate to say to this President, 
this is so far outside the mainstream, we will not approve this 
nominee.
  It is not unusual for a political party to tell its President that 
you cannot pack the court. The members of Thomas Jefferson's own 
political party told Thomas Jefferson that. Members of the political 
party of Franklin Delano Roosevelt did the same thing, in his attempt 
to pack the Court.
  My hope with respect to this nominee is that we will have sufficient 
numbers on the majority side--moderates and others--who will take a 
look at this record and say this is not the kind of record that we 
believe should commend someone for a lifetime of service on the DC 
Circuit. This is not what we should be doing.
  I conclude as I started. I take no joy in coming to the Senate and 
opposing someone. I would rather be here speaking for a proposition, 
speaking for someone. It was Mark Twain who once was asked if he would 
engage in debate. He said, sure, as long as I can take the negative 
time. He was told, we didn't tell you the subject. He said, the 
negative side will take no preparation.
  I am mindful that it is very easy to oppose. Let me say this: On this 
issue, on this nominee, this is not a close call. This is not a close 
call. I wish I could be here to support this nomination. I will not 
support the nomination of someone who believes the elements of that 
which has made this country such a wonderful place in which to work and 
live represents a triumph of socialism. It is not the triumph of 
socialism. It is a reflection of the interests of this country, we the 
people of this country who said we will lift the senior citizens of 
this country out of poverty. And we have done that. We went from 50 
percent in poverty to less than 10 percent in poverty. Why? Because we 
did something important in this country, Social Security and Medicare.
  With respect to environmental issues, with respect to workers' 
rights, with respect to a whole series of issues, this nominee is 
profoundly wrong. She has a record, a long record, an aggressive record 
of activism in support of what are, in my judgment, outdated and 
discredited concepts.
  My hope is that in the remaining hours in this debate--I think we 
will vote on this tomorrow--my hope is there will be sufficient 
moderates on the other side who will understand this record does not 
justify confirmation to the Federal bench for a lifetime. I hope the 
next time I come to the Senate to speak on a judicial nomination, I 
will be able to speak in favor of a nomination that is a strong 
candidate.
  This President has nominated some good people. I mentioned two from 
my State. I will say it again: both Republicans, both terrific people, 
both people I was proud to introduce to the Judiciary Committee and 
proud to support. While we might disagree on some issues, these are 
extraordinary jurists. I am proud they are Federal judges in my State. 
I felt the same way about some of the other nominees.
  But this President has sent us a handful of nominees who do not 
deserve the backing and support of this Congress. It is long past the 
time for this Congress to stand up and speak with an independent voice. 
This Congress is not some sort of subsidiary of the White House. It is 
not an adjunct to the Presidency. This Congress is a separate branch of 
Government under this Constitution. The President nominates but we 
advise and consent. It is up to the Senate to determine whether 
judicial nominees are confirmed or not. My hope is we will make the 
right decision with this nomination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THOMAS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMAS. Mr. President, I ask unanimous consent that I be allowed 
to

[[Page 11706]]

speak for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Role of the Federal Government

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

[[Page 11707]]

to determine if they could be done in a little different way to be more 
efficient and more effective.
  Clearly the Federal Government does have a role. It has a role in 
many matters. So our challenge is to determine what the roles are and 
then to set it up so that we are as efficient as can be. I know I am 
talking in generalities, but I believe these are some things that are 
basic to some of the ideas we ought to be talking about and evaluating. 
I sense that doesn't happen very much. We sort of are challenged to see 
how many programs we can get going. We seem to be challenged to see how 
much money we can spend.
  I appreciate what the administration is seeking to do to try and 
reduce some of the spending. That is very difficult. You can see what 
kind of reaction you get cutting back on programs or changing them. Our 
budget group is working on doing some of that. We need to be more 
involved in that.
  As I mentioned, evaluating programs is something we should do. We 
have a constitutional obligation to appropriate hard-earned tax dollars 
in the most efficient manner we possibly can. New government programs 
get institutionalized. They go on forever. So I think there are some 
things we could do that would be important, and that we should.
  There will be some proposals coming from OMB. I intend to seek to 
help put them into place if we can and have a system that deals with 
efficiency, a system that deals with identifying what the proper role 
of the various levels of government is. We will hear the States saying: 
We need more money. That is probably true. But nevertheless, we ought 
to have some other definitions besides where the money will go.
  I hope we have one where we can review some things. I know these are 
general ideas. I have not gotten into the specifics. But from time to 
time, I think we have to look at ourselves and say: How do we deal with 
some of these issues? Clearly, everyone would agree we have to do 
something about spending. We have to do something about the deficit. We 
have to look at the future as to how we are going to make this thing 
work.
  You can take a look at Social Security. In about 10 years, we will 
have to take trillions of dollars out of the general fund to put them 
back where they belong in the Social Security fund. That is going to be 
very difficult. It is a tremendous amount of money. But that is what we 
have done, of course, and it is reasonable because that money has to be 
drawing interest and it is drawing interest. But those things are going 
to be more and more difficult.
  We are seeking to try and review and renew the Tax Code so it can be 
simpler and more efficient and hopefully provide better opportunities 
for the economy to grow and have incentives for growing by being able 
to put that money into developing jobs as opposed to coming into the 
Federal Government.
  These are real challenges, but they are worthwhile: the challenge of 
evaluating government programs to see if they are still important, to 
see if they are still being done the way they were designed to meet the 
needs they were designed to meet when they were first there, to do 
something about the idea of controlling spending and the size of the 
Federal Government so that doesn't continue to expand into every area 
that is open. We ought to take a look at all the programs that are in 
place, that we are talking about putting in place, all the bills that 
are brought in here, and see what a wide breadth of subjects we talk 
about. Some you could make a pretty good case are not within the area 
of normal recognition of Federal Government activity.
  I hope the role of the Federal Government is something we could talk 
about. We ought to talk about it with the State leadership and get a 
little clearer idea of how we define these things and get some kind of 
a measurement against these roles.
  There are lots of challenges. I will be happy when we can move on 
through this judicial debate. It is very important, but we should not 
be spending all this much time on it in terms of how we do these things 
and get on with the things that have an impact on what we are doing out 
in the country.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I want to take up the discussion of 
Justice Janice Rogers Brown and her qualifications for serving on the 
DC Circuit Court of Appeals and some of the accusations and charges 
that have been brought against her. There have been a number that have 
been put forth. I had a lengthy discussion earlier about what I think 
this is really about, that it is about her being a strict 
constructionist, wanting to stay within the confines of the 
Constitution and the law and her interpretation rather than an 
expansive reading of it. I think that is really what is at the root of 
this, but people bring forth all sorts of allegations and charges, and 
I want to address some of them.
  One of them is on a particular case, the Lochner case. As it might be 
described, this is getting into the weeds and details of some items, 
but I think it is meritorious to raise. She has been charged by some of 
our colleagues that in the Santa Monica Beach v. Superior Court case 
that Justice Brown called the demise of the Lochner decision, which was 
overruled in 1937, the revolution of 1937, and ``she wants to undo'' 
this overruling. A couple of my colleagues on the other side of the 
aisle said that Justice Brown believes in Lochner and wants the New 
Deal undone. That is the charge against Janice Rogers Brown. I want to 
talk about that particular charge because the opposite is what is 
actually true. This is the opposite of what Justice Brown said, and I 
want to go through her words of what she said to refute that particular 
case.
  They are accusing her of wanting to undo the New Deal and the 
legislation that has been in place surrounding and regarding the New 
Deal.
  In the Santa Monica case, which is the case that is cited for her 
opinion that she wants to undo the New Deal legislation of Roosevelt--
FDR--she clearly criticized Lochner as wrongly decided:

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

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

       Do you agree with the holding in Lochner?

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

[[Page 11708]]

Indeed, Justice Brown has taken issue with the Lochner decision, 
criticizing the Supreme Court's ``usurpation of power,'' stating the 
Lochner court was justly criticized for using the due process clause:

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

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

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

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

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

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

[[Page 11709]]

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

                          Reject Justice Brown

                [From the Washington Post, June 7, 2005]

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

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

                          ____________________