[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 11835-11845]
[From the U.S. Government Publishing Office, www.gpo.gov]




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

  The PRESIDING OFFICER. The Senator from Vermont is recognized for 10 
minutes.
  Mr. LEAHY. Mr. President, over the course of the Senate's 
consideration of the nomination of Janice Rogers Brown, we have heard 
many compelling statements in opposition. Significantly, we have heard 
from both Senators from California in opposition. Their opposition, 
like mine, is based on Justice Brown's record.
  Through bipartisan action, the Senate has deterred the misguided bid 
by some on the other side of the aisle for one-party rule by means of 
their so-called nuclear option. Thanks to the hard work of a bipartisan 
group of 14 Senators, we have, for now, preserved the system of checks 
and balances. I mention this because as we vote on the nomination of 
Janice Rogers Brown, I urge all Senators to take seriously the Senate's 
constitutionally mandated role in determining who is going to serve 
lifetime appointments in the Federal judiciary.
  I wish all Senators, Republicans and Democrats alike, would take 
these matters seriously and vote their consciences and evaluate with 
clear eyes the fitness of this woman for this lifetime appointment. 
After all, some of my Republican colleagues have admitted to me 
privately how they would like to vote. They know that Justice Brown is 
a consummate judicial activist whose record shows she favors rolling 
back the clock 100 years on workers' and consumer rights and 
consistently has taken the side of corporations against average 
Americans.
  Her record shows she does not believe in clean air and clean water 
protections for Americans and their communities. She does not believe 
in laws providing affordable housing, and she would, if she could, wipe 
out zoning laws that protect homeowners. Her record shows she takes an 
extremely narrow view of protections against sexual harassment, race 
discrimination, employment discrimination, and age discrimination. In 
fact, she has such a hostility toward such programs as Social Security 
that she has argued that Social Security is unconstitutional. She has 
said that ``[t]oday's senior citizens blithely cannibalize their 
grandchildren . . . ''
  Why is this important? Because she would be on a court that would 
handle every one of these issues, and it would mean that as a judicial 
activist, she would rule entirely different in the cases that court 
decides.
  We have heard a lot about her life story. If this were a vote on a 
Senate resolution commemorating her life story, I am sure the entire 
Senate would gladly support it. Instead, this is a vote about the lives 
of multiple millions of other Americans whose lives would be affected 
by this nominee's ideological activist penchants. This is, after all, a 
lifetime appointment on a Federal circuit court on which her ideology 
would be especially harmful and destructive to the people. That is why 
she has earned opposition of African-American leaders, law professors, 
and newspapers around the country. In fact, the list of African-
American organizations and individuals opposing Justice Brown's 
nomination is one of the most troubling indications that this is 
another divisive, ideologically driven nomination. All 39 members of 
the Congressional Black Caucus oppose her nomination. The Nation's 
oldest and largest association of predominantly African-American 
lawyers and judges, the National Bar Association, and its state 
counterpart, the California Association of Black Lawyers, both oppose 
this nomination. The foremost national civil rights organization, the 
Leadership Conference on Civil Rights, opposes it.
  The women of Delta Sigma Theta oppose this nomination.
  I ask unanimous consent that letters detailing opposition, as well as 
a list of such letters, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Letters of Opposition to the Nomination of Janice Rogers Brown to the 
                     D.C. Circuit Court of Appeals


                            Public Officials

       Congressional Black Caucus; 23 Members of the California 
     Delegation to the United States House of Representatives: 
     Diane E. Watson, 33rd District; Maxine Waters, 35th District; 
     Lucille Roybal-Allard, 34th District; Bob Filner, 51st 
     District; Tom Lantos, 12th District; George Miller, 7th 
     District; Lynn Woolsey, 6th District; Mike Honda, 15th 
     District; Lois Capps, 23rd District; Barbara Lee, 9th 
     District; Hilda L. Solis, 32nd District; Loretta Sanchez, 
     47th District; Linda Sanchez, 39th District; Joe Baca, 43rd 
     District; Anna Eshoo, 14th District; Pete Stark, 13th 
     District; Juanita Millender-McDonald, 37th District; Grace F. 
     Napolitano, 38th District; Xavier Becerra, 31st District; 
     Nancy Pelosi, 8th District; Henry A. Waxman, 30th District; 
     Dennis Cardoza, 18th District; Carol Moseley Braun, Paul 
     Strauss.


                        California Organizations

       California Association of Black Lawyers; California State 
     Conference of the NAACP; California Teachers' Association; 
     Justice for All Project: Committee for Judicial Independence; 
     Black Women Lawyers of Los Angeles; SEIU Local 99; Feminist 
     Majority; Sierra Club, Southern California; Western Law 
     Center for Disability Rights; Planned Parenthood Los Angeles; 
     Stonewall Democratic Club; NAACP Legal Defense Fund; People 
     for the American Way, California; California Women's Law 
     Center; Universalist-Unitarian Project Freedom of Religion; 
     National Council of Jewish Women--California; Pacific 
     Institute for Women's Health; Equal Justice Society; 
     California Association of Black Lawyers; California 
     Federation of Labor, AFL-CIO; Sierra Club Environmental Law 
     Program; National Center for Lesbian Rights; National 
     Organization for Women, California; San Francisco La Raza 
     Lawyers; Planned Parenthood Golden Gate; California Abortion 
     and Reproductive Rights Action League; Disability Rights 
     Education & Defense Fund; Chinese for Affirmative Action; 
     National Employment Lawyers Association.


                         National Organizations

       AFCSME; AFL-CIO; American Association of University Women, 
     National and Vermont chapters; Americans for Democratic 
     Action; Americans United for Separation of Church and State; 
     Committee for Judicial Independence; Delta Sigma Theta 
     Sorority; EarthJustice; International Brotherhood of 
     Electrical Workers; Leadership Conference on Civil Rights; 
     League of Conservation Voters; Legal Momentum (NOW LDF); 
     MALDEF; NAACP, National and District of

[[Page 11836]]

     Columbia Organizations; NARAL Pro-Choice America; National 
     Abortion Federation; National Bar Association; National Black 
     Chamber of Commerce; National Council of Jewish Women; 
     National Employment Lawyers Association; National Family 
     Planning & Reproductive Health Association; National 
     Organization for Women; National Partnership for Women and 
     Families; Natural Resource Defense Council; National Senior 
     Citizens Law Center, on behalf of: National Committee to 
     Preserve Social Security & Medicare; Alliance of Retired 
     Americans; Families USA; AFSCME Retirees Program; Gray 
     Panthers; Center for Medicare Advocacy; National Health Law 
     Program; National Women's Law Center; National Urban League; 
     People for the American Way; Planned Parenthood Federation of 
     America; Service Employees International Union; Sierra Club.
       Coalition letter from the following environmental 
     organizations: American Planning Association; American 
     Rivers; Citizens Coal Council; Clean Water Action; Coast 
     Alliance; Community Rights Council; Defenders of Wildlife; 
     Earthjustice; Endangered Species Coalition; Friends of the 
     Earth; Mineral Policy Center; National Resources Defense 
     Council; Sierra Club; The Wilderness Society; Advocates for 
     the West; Alabama Environmental Council; American Lands 
     Alliance; Amigos Bravos; Buckeye Forest Council; California 
     League of Conservation Voters; California Native Plant 
     Society; Californians for Alternatives to Toxics; Center for 
     Biological Diversity; Clean Air Council; Clean Water Action 
     Council; The Committee for the Preservation of the Lake Purdy 
     Area; Earthwins; Environmental Defense Center; Environmental 
     Law Foundation; Friends of Hurricane Creek; Georgia Center 
     for Law in the Public Interest; Great Rivers Environmental 
     Law Center; Hurricane Creekkeeper; John Muir Project; 
     Kentucky Resources Council, Inc.; Natural Heritage Institute; 
     New Mexico Environmental Law Center; Northwest Environmental 
     Advocates; Oilfield Waste Policy Institute; Omni Center for 
     Peace, Justice, and Ecology; San Bruno Mountain Watch; 
     Southern Appalachian Biodiversity Project; Valley Watch, 
     Inc.; Washington Environmental Council; Western Land Exchange 
     Project; Wild Alabama; Wildlaw; Coalition of African-American 
     Labor Leaders.


                             Law Professors

       Stephen R. Barnett, University of California, Berkeley; 
     Letter signed by more than 200 law professors.
                                  ____



                                     National Bar Association,

                               Washington, DC, September 10, 2003.
     Re Justice Janice Rogers Brown Nominee to the U.S. Court of 
         Appeals for the District of Columbia Circuit.

     Senate Judiciary Committee,
     U.S. Senate,
     Washington, DC.
       Dear Senator: The National Bar Association, this nation's 
     oldest and largest Association of predominantly African 
     American lawyers and judges, deems that Justice Rogers Brown 
     is unfit to serve on the U.S. Court of Appeals of the 
     District of Columbia.
       Justice Brown has served the California Supreme Court for 
     seven years, providing a substantial body of work for 
     analysis by critics and supporters alike. If appointed, Brown 
     would follow Justice Judith Rogers, a President Clinton 
     appointee, to become the second African American woman judge 
     on the D.C. Circuit Court. Many people consider this 
     appointment as preliminary grooming for a future nomination 
     to the U.S. Supreme Court. This consideration is not without 
     merit: Justices Antonin Scalia, Clarence Thomas, and Ruth 
     Ginsberg all previously served on the prestigious D.C. 
     Circuit Court.
       The National Bar Association must consider, among other 
     things, whether a judicial nominee will be a responsible 
     voice upon which all people, particularly people in the 
     traditionally underserved communities, for instance African 
     Americans, other ethnic minorities and women, can depend when 
     fundamental legal issues of race, ethnicity, or gender may 
     profoundly impact the designated population in the areas of 
     advancement in business, education, civil rights, and the 
     judicial arenas arise.
       A rigorous review of several of Justice Brown's opinions in 
     the California Supreme Court undertaken by the California 
     Association of Black Lawyers (copy attached), an affiliate of 
     the National Bar Association, indicates a most disturbing 
     view and what may be in store for minorities under her 
     stewardship on the bench. In for instance Hi-Voltage Wire 
     Works, Inc. v. City of San Jose, 24 Cal 4th 537 (2000), 
     Justice Brown wrote the majority opinion striking down a San 
     Jose ordinance that required the City of San Jose to solicit 
     bids from companies owned by minority and women 
     subcontractors. She reasoned that the plan to seek minority 
     subcontractors violated Proposition 209, which is the 1996 
     voter-adopted state constitutional amendment that banned 
     racial preferences. She further concluded that instead of 
     affirmative action, ``equality of individual opportunity is 
     what the constitution demands.''
       In view thereof, the National Bar Association strongly 
     urges and recommends that the Senate Judiciary Committee 
     reject the nomination of Justice Janice Rogers Brown to the 
     U.S. Circuit Court of Appeals for the D.C. Circuit.
           Sincerely,
                                             Clyde E. Bailey, Sr.,
     President.
                                  ____

                                         California Association of


                                                Black Lawyers,

                                Mill Valley, CA, October 17, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Senate Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Senate Judiciary Committee, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senators Hatch and Leahy: On behalf of the California 
     Association of Black Lawyers (``CABL''), I write to express 
     our strong opposition to the nomination of Janice Rogers 
     Brown to the U.S. Court of Appeals for the D.C. Circuit.
       CABL is the only statewide organization of African American 
     lawyers, judges, professors and law students in the State of 
     California. We are an affiliate of the National Bar 
     Association (the ``NBA'') and we join the National Bar 
     Association in its opposition to Justice Brown. (The NBA 
     recently forwarded CABL's Official Position Paper opposing 
     Justice Brown's nomination to you. I am enclosing a copy, for 
     your easy reference.)
       As California lawyers, we are familiar with Justice Brown 
     and her record on the California Supreme Court. We are deeply 
     concerned about her extremist judicial philosophy, that she 
     has manifested in numerous opinions over the years. It is 
     clear to us that she misuses precedent and challenges 
     precedent, in order to achieve the result she desires. A 
     prime example is her opinion in Hi-Voltage Wire Works, Inc. 
     v. City of San Jose, the California's Supreme Court's first 
     application of Proposition 209. According to Chief Justice 
     Ronald George, who refused to join her opinion, Justice Brown 
     seriously distorted the history of civil rights jurisprudence 
     and concluded outright that the U.S. Supreme Court decisions 
     supporting affirmative action were wrongly decided.
       California has strong civil rights statutes, and many of us 
     litigate pursuant to these statutes. Yet Justice Brown has 
     repeatedly deviated from precedent in order to narrowly 
     interpret these statutes and render them virtually 
     inaccessible to victims of discrimination.
       We urge you to undertake an extremely careful review of 
     Justice Brown and her record. We hope that you will conclude, 
     as we have done, that she is simply not within the mainstream 
     of legal thought. She is therefore not suited for appointment 
     to the second most important court in our nation, the D.C. 
     Circuit.
           Respectfully yours,
                                               Gillian G.M. Small,
                                                        President.

  Mr. LEAHY. Mr. President, and, of course, both the Senators from her 
home State have opposed her. In fact, if she is confirmed, this may be 
the first such Senate confirmation over the opposition of both home 
State Senators in the history of the Senate, something, I might say, 
that during President Clinton's time was inconceivable-that Republicans 
would even consider a nomination if one Senator from the home State 
opposed the nominee and, of course, under no circumstances both. Here 
both Senators do oppose her, and yet her nomination is going forward.
  There remain 36 Republican Senators serving today who voted against 
the nomination of Justice Ronnie White of Missouri in 1999. Justice 
White is now the chief justice of the Missouri Supreme Court, having 
been that high court's first African-American member. Former Senator 
Ashcroft came to the floor and vilified Justice White as pro criminal 
in 1999, after action on that nomination had been delayed more than 2 
years. Then, in a surprise party-line vote, Republican Senators all 
voted against his confirmation. In fact, that is the only party-line 
vote to defeat a judicial nomination that I can remember in my 31 years 
here.
  Immediately after this party-line vote, by which Republican Senators 
defeated the nomination of Justice Ronnie White, many of them told us: 
We know he is qualified, but we had no choice because both home State 
Senators opposed the nomination. In order to respect the views of these 
home State Senators, they had to vote against a nominee who many felt 
was highly qualified.
  Both Justice Brown's home State Senators oppose her confirmation. 
They have been consistent in that opposition. Republican Senators felt 
compelled to vote against Justice White, a nominee of President 
Clinton, in 1999 because of the opposition of his home State Senators. 
It is hard to see

[[Page 11837]]

how they can now turn around and say: Well, but we can vote for a 
Republican nominee notwithstanding the same kind of opposition.
  It is not just the two distinguished Senators from California who 
oppose her. Her views are so extreme that more than 200 law school 
professors around the Nation wrote to the Judiciary Committee 
expressing opposition.
  The ``Los Angeles Times'' concludes she is a ``bad fit for a key 
court.'' The ``Detroit Free Press'' concluded she ``has all but hung a 
banner above her head declaring herself a foe to privacy rights, civil 
rights, legal precedent, and even colleagues who don't share her 
extreme leanings.''
  I ask unanimous consent that these editorials, as well as a list of 
other editorials opposing the Brown nomination, be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Published Opposition to the Nomination of Janice Rogers Brown, Nominee 
                  to the D.C. Circuit Court of Appeals


                               Editorials

       Reject Justice Brown, The Washington Post, June 7, 2005.
       No on Judge Brown: D.C. Court Is Wrong Place for Her Views, 
     The Sacramento Bee, May 20, 2005.
       Brown Does It Again, Contra Costa Times, April 29, 2005.
       Democrats Must Block Activist Judges, San Jose Mercury 
     News, February 24, 2005.
       The Quality of the Judiciary Is at Stake! Want Good Judges? 
     So Does Kerry, Philadelphia Daily News, August 11, 2004.
       ``All Black Ain't Coal!'', The Bay State Banner 
     (Massachusetts), November 20, 2003.
       A Bad Fit for a Key Court, The Los Angeles Times, November 
     5, 2003.
       Extreme Nominee; With Brown, Bush Deepens Partisanship Over 
     Judges, Detroit Free Press, October 31, 2003.
       Nasty Tactics, Fort Worth Star Telegram (Texas), October 
     31, 2003.
       Fueling the Fight, The Washington Post, October 30, 2003.
       Judicial Pick Not Fit for U.S. Court, The Atlanta Journal 
     and Constitution, October 29, 2003.
       Out of the Mainstream, Again, The New York Times, October 
     25, 2003.
       A Nominee to Filibuster, Copley News Service, October 24, 
     2003.
       Bush Adds Another Ultra-Conservative, Howard University 
     Hilltop, October 20, 2003.
       Fueling the Fire, The Washington Post, August 1, 2003.
       More Conservatives for the Courts, The New York Times, July 
     29, 2003.


                                 Op-Eds

       If Republicans Look at Her Record, They Will Vote Brown 
     Down, Douglas T. Kendall and Jennifer Bradley, Roll Call, 
     June 7, 2005.
       This Judge Is More Right-Wing Than Thomas, Simon Lazarus 
     and Lauren Saunders, The Hill, June 17, 2005.
       Must Filibuster Justice Brown, Cynthia Tucker, Atlanta 
     Journal and Constitution, May 1, 2005.
       Kennedy Does Justice to Approval Process, Howard Manly, 
     Boston Herald, February 6, 2005.
       The Bushes are poor Judges of Judges, Diane Roberts, St. 
     Petersburg Times (Florida), December 13, 2003.
       Judicial Nominees Show Disrespect For System Of Law, John 
     David Blakley, The Battalion (Texas A&M University), December 
     2, 2003.
       Looking at Justice From Both Sides Now: Opponents Decry 
     Nominee for Same Reason She Was picked by White House: Her 
     Record, Susan Lerner, The L.A. Daily Journal, November 28, 
     2003.
       A Record with some Praise, Robyn Blumner, St. Petersburg 
     Times (Florida), November 23, 2003.
       Commentary, Ralph G. Neas, (President, People For the 
     American Way), National Public Radio `Morning Edition', 
     November 12, 2003.
       Nominee's Views Will Affect Court, DeWayne Wickham, USA 
     TODAY, November 3, 2003.
       GOP Senators: Remember Anita Hill?, Linda Campbell, The 
     Tallahassee Democrat, November 3, 2003.
       Bush's Court-Nominee `Diversity' Is a Cynical Ploy; These 
     Minority Members and Women Are Out of the Mainstream, Robert 
     L. Harris, Los Angeles Times, November 12, 2003.
       California Contender: A federal appeals court nominee could 
     one day become the first black woman justice on the U.S. 
     Supreme Court, Bob Egelko, San Francisco Chronicle, Sunday, 
     October 26, 2003.
       Judicial Throwback, Douglas T. Kendall and Timothy J. 
     Dowling, The Washington Post, September 19, 2003.


                         Letters to the Editor

       What Op Ed Forgot To Tell Us, Eric Kane, Boston Globe, May 
     13, 2005.
       Candidates' Past Rulings Show Danger, Nancy Goodban, The 
     Modesto Bee (CA), May 11, 2005.
       Senate Democrats' Filibuster Not Racist, Scott DeLeve, The 
     Daily Mississippian, December 11, 2003.
       Congressional Black Caucus; An Open Letter on Why Five 
     Judicial Nominees Must Be Rejected, Ethnic NewsWatch, 
     November 20, 2003.
       Bush Judges Deserve To Be Filibustered, Muriel Messer, The 
     Journal Standard (Illinois), November 13, 2003.
       Justice Brown's Manifesto, T.J. Pierce, The San Francisco 
     Chronicle, November 8, 2003.
       Judging Ms. Flowers, Arline Jolles Lotman, Philadelphia 
     Daily News, November 7, 2003.
       Plantation Politics, Jerome Redding, St. Louis Post-
     Dispatch (Missouri), November 3, 2003.
       Jerome J. Shestack, former ABA President, The New York 
     Times, November 1, 2003.
                                  ____


              [From the Los Angeles Times, Nov. 5, 2003.]

                       A Bad Fit for a Key Court

       The U.S. Court of Appeals for the District of Columbia 
     Circuit is the triple-A farm team for the Supreme Court. 
     Three of the high court's current members--Antonin Scalia, 
     Clarence Thomas and Ruth Bader Ginsburg--came from the D.C. 
     circuit. So did onetime Chief Justices Warren Burger and Fred 
     Vinson, among others.
       Presidents also give special attention to the D.C. court's 
     appointments because it often hears high-profile challenges 
     to presidential and congressional actions, defining the 
     government's authority. This year the D.C. Circuit Court 
     upheld the indefinite detention of potential terrorists at 
     Guantanamo, Cuba. In past years, it expanded police search 
     and seizure powers and upheld the 1971 campaign spending law 
     and environmental and workplace safety Laws. Before it now is 
     a challenge by California and other states to the 
     administration's view that the Clean Air Act does not allow 
     regulation of carbon dioxide and other greenhouse gases.
       That President Bush may view California Supreme Court 
     Justice Janice Rogers Brown as a future U.S. Supreme Court 
     justice could explain why he nominated her to the D.C. court, 
     3,000 miles from her San Francisco base. But during her seven 
     years on California's high court, Brown has shown doctrinaire 
     and peculiar views that make her a troubling choice for this 
     appeals court.
       Judges are supposed to consider disputes with an open mind, 
     weighing facts against the law and precedent. Conscientious 
     judges sometimes find that their decisions conflict with 
     their personal beliefs. However, in opinions and speeches, 
     Brown has articulated disdainful views of the Constitution 
     and government that are so strong and so far from the 
     mainstream as to raise questions about whether they would 
     control her decisions.
       `Where government advances,' she told a college audience, 
     `freedom is imperiled, community impoverished, religion 
     marginalized and civilization itself jeopardized'--a 
     startling view for someone who would be charged with 
     reviewing government actions. Brown has spoken disapprovingly 
     of what she called the U.S. Supreme Court's `hypervigilance' 
     with respect to such `judicially proclaimed fundamental 
     rights' as privacy, calling them `highly suspect, incoherent 
     and constitutionally invalid.'
       These views may have prompted Brown's bitter dissents in 
     cases in which her colleagues upheld regulatory actions such 
     as local zoning and land-use laws. They seem to have fueled 
     her skepticism toward employment discrimination claims, cases 
     involving the rights of people with disabilities and the 
     meaning of consent in rape.
       Brown's dogmatism and a style bordering on vituperation 
     earned her only a `qualified' rather than `well qualified' 
     rating from the American Bar Assn. Some committee members 
     found her unfit for the appeals court.
       The Senate Judiciary Committee could vote on Brown's 
     nomination Thursday. There's little question that Brown is an 
     intellectually sharp and hard-working jurist, but that is not 
     enough. Her own words are unrelentingly hostile to 
     government's role in regulatory matters and protection of 
     individual rights. These are the very things on which she 
     would rule most often. Brown is a bad fit for the District of 
     Columbia appeals court.
                                  ____


                 Judicial Pick Not Fit for U.S. Court,

       [From the Atlanta Journal and Constitution, Oct. 29, 2003]

       President Bush has once again nominated a right-wing judge 
     for one of the nation's most influential appellate courts. 
     Worse yet, Janice Rogers Brown, a California Supreme Court 
     justice, is not qualified for the U.S. Court of Appeals for 
     the D.C. Circuit.
       Despite Bush's penchant for politics over professional 
     qualifications in judicial appointments, Democrats are not 
     blameless in the current standoff. They filibustered the 
     nomination of Hispanic conservative Miguel Estrada for the 
     same appellate court vacancy. Estrada, who finally withdrew 
     from consideration, had unquestioned scholarly and legal 
     qualifications for a federal judgeship.
       Rather than select another highly qualified conservative 
     for the key appellate bench, the president took the low road, 
     choosing a judge who previously received an

[[Page 11838]]

     `unqualified' rating from the California bar's evaluation 
     commission and last month got a mixed rating of `qualified/
     unqualified' from the American Bar Association. By contrast, 
     Estrada received a unanimous ABA rating of `well qualified.'
       Brown's views, as espoused in speeches to ultraconservative 
     groups, are far out of the mainstream of accepted legal 
     principles. For example, she has disputed whether the Bill of 
     Rights, as incorporated in the U.S. Constitution, should have 
     been applied to the states.
       While the African-American jurist claims her tendency to 
     `stir the pot' wouldn't affect her rulings, such a radical 
     view causes the public to wonder if she will respect basic 
     individual liberties guaranteed in the Bill of Rights.
       Brown meets the GOP's litmus test of being anti-affirmative 
     action and anti-abortion, but that is a sorry measure of 
     judicial excellence. Bush knows that Brown will fall victim 
     to a Democratic filibuster. Apparently, this president would 
     rather have a campaign issue than a qualified federal 
     judiciary.
                                  ____


                [From the New York Times, Oct. 25, 2003]

                      Out of the Mainstream, Again

       Of the many unworthy judicial nominees President Bush has 
     put forward, Janice Rogers Brown is among the very worst. As 
     an archconservative justice on the California Supreme Court, 
     she has declared war on the mainstream legal values that most 
     Americans hold dear. And she has let ideology be her guide in 
     deciding cases. At her confirmation hearing this week, 
     Justice Brown only ratified her critics' worst fears. Both 
     Republican and Democratic senators should oppose her 
     confirmation.
       Justice Brown, who has been nominated to the United States 
     Court of Appeals for the District of Columbia Circuit, has 
     made it clear in her public pronouncements how extreme her 
     views are. She has attacked the New Deal, which gave us 
     Social Security and other programs now central to American 
     life, as ``the triumph of our socialist revolution.'' And she 
     has praised the infamous Lochner line of cases, in which the 
     Supreme Court, from 1905 to 1937, struck down worker health 
     and safety laws as infringing on the rights of business.
       Justice Brown's record as a judge is also cause for alarm. 
     She regularly stakes out extreme positions, often dissenting 
     alone. In one case, her court ordered a rental car company to 
     stop its supervisor from calling Hispanic employees by racial 
     epithets. Justice Brown dissented, arguing that doing so 
     violated the company's free speech rights.
       Last year, her court upheld a $10,000 award for emotional 
     distress to a black woman who had been refused an apartment 
     because of her race. Justice Brown, the sole dissenter, 
     argued that the agency involved had no power to award the 
     damages.
       In an important civil rights case, the chief justice of her 
     court criticized Justice Brown for ``presenting an unfair and 
     inaccurate caricature'' of affirmative action. The American 
     Bar Association, all but a rubber stamp for the 
     administration's nominees, has given Justice Brown a mediocre 
     rating of qualified/not qualified, which means a majority of 
     the evaluation committee found her qualified, a minority 
     found her not qualified, and no one found her well qualified.
       The Bush administration has packaged Justice Brown, an 
     African-American born in segregated Alabama, as an American 
     success story. The 39-member Congressional Black Caucus, 
     however, has come out against her confirmation.
       President Bush, who promised as a candidate to be a 
     ``uniter, not a divider,'' has selected the most divisive 
     judicial nominees in modern times. The Senate should help the 
     president keep his campaign promise by insisting on a more 
     unifying alternative than Justice Brown.

  Mr. LEAHY. Mr. President, I have voted to confirm hundreds of 
nominees with whom I differ. I vote for them when I think they will be 
fair and impartial. I voted for hundreds of President Bush's nominees, 
as I did his father, President Reagan, and President Ford, all 
Presidents with whom I have been proud to serve. But I voted against 
those, whether Republican or Democratic nominees, if I disagreed with 
them, if I felt they could not be impartial.
  I believe Judge Brown has proven herself to be a results-oriented, 
agenda-driven judge whose respect for precedent and rules of judicial 
interpretation change depending upon the subject before her and the 
results she wants to reach. She is the definition of an activist judge, 
the sort of person President Bush said he would not nominate.
  Whether it is protection of the elderly, workers and consumers, 
privacy rights, free speech, civil liberties, and many more issues, she 
has inserted her radical views into her judicial opinions time and 
again.
  She repeatedly and consistently has advocated turning back the clock 
100 years to return to an era where worker protection laws were found 
unconstitutional.
  It is no small irony this President, who spoke of being a uniter, has 
used his position to renominate Justice Brown and others after they 
failed to get consent of the Senate.
  These provocative nominees have divided the Senate and the American 
people, and they brought us to the edge of a nuclear winter in the 
Senate.
  This confrontational approach and divisiveness have continued, 
despite the confirmation of 209 out of his 218 jurdicial nominees.
  I oppose giving Justice Brown this lifetime promotion to the second 
highest court in our land because the American people deserve judges 
who will interpret the law fairly and objectively. Janice Rogers Brown 
is a committed judicial activist who has a record of using her position 
as a member of a court to put her views above the law and above the 
interests of working men and women and families across the Nation.
  We must not enable her to bring her ``jurisprudence of convenience'' 
to one of the most important Federal courts in the Nation.
  Over the course of the Senate's consideration of the nomination of 
Janice Rogers Brown to be a judge on the United States Court of Appeals 
for the D.C. Circuit, I have publicly explained why I cannot support 
it. My opposition is based on Justice Brown's extensive record, which 
raises unavoidable concerns about her pursuit from the bench of her 
extremist judicial philosophy and therefore about her fitness for this 
lifetime appointment. Justice Brown failed to gain the consent of the 
Senate last year. As I explained in April when voting against her 
confirmation in the Senate Judiciary Committee, not only has Justice 
Brown failed to resolve any of my concerns since her hearing in late 
2003, but Justice Brown's opinions issued since that time reinforce and 
deepen the troubling patterns in her record.
  Through bipartisan action, the Senate has deterred the misguided bid 
by some on the other side of the aisle for one-party rule by means of 
their nuclear option. Thanks to the hard work of a bipartisan group of 
14 Senators, we have, for now, preserved the system of checks and 
balances, designed by the Founders, that are so integral to the 
function of the Senate and to its role. As we turn now to the 
nomination of Janice Rogers Brown, I urge all Senators to take 
seriously the Senate's constitutionally mandated role as a partner with 
the executive branch in determining who will serve lifetime 
appointments in the federal judiciary. I urge all Senators, Republicans 
and Democrats alike, to take these matters seriously and vote their 
consciences. Republican Senators and Democratic Senators alike will 
need to evaluate, with clear eyes, the fitness of Justice Brown for 
this lifetime judicial appointment before casting a difficult vote on 
this problematic and highly controversial nominee. My opposition to 
Justice Brown's nomination is based, as it has always been, on her 
record.
  Justice Brown is a consummate judicial activist whose record shows 
that she favors rolling back the clock 100 years on workers' and 
consumers' rights and taking the side of corporations against average 
Americans. Her record shows she does not believe in clean air and clean 
water protections for Americans and their communities, she does not 
believe in laws providing affordable housing, and that she would, if 
she could, wipe out zoning laws that protect homeowners by keeping porn 
shops and factories from moving in next door. Her record shows she 
takes an extremely narrow view of protections against sexual 
harassment, race discrimination, employment discrimination, and, most 
of all, age discrimination. In fact, Justice Brown has a hostility 
toward such programs as Social Security that is so great that she has 
argued that Social Security is unconstitutional, and has said that 
``[t]oday's senior citizens blithely cannibalize their grandchildren. . 
. .''
  We have heard a great deal from Justice Brown's supporters about her 
life accomplishments. It is an impressive story, and Justice Brown's 
accomplishments in the face of so much adversity

[[Page 11839]]

are commendable. But we cannot base our votes on the confirmation of a 
lifetime appointee to a Federal court on biography alone. If this were 
a vote on a Senate resolution commemorating her life story, I am sure 
the entire Senate would gladly support it. But instead, this is a vote 
about the lives of multiple millions of other Americans whose lives 
would be affected by this nominee's ideological penchants.
  I hope that, as debate Justice Brown's nomination, we will not--as we 
did 2\1/2\ years ago--hear the whispering of unfounded smears against 
those who oppose this nomination. I have spoken recently about my 
disappointment in the White House and Republican partisans for fanning 
the flames of bigotry and refusing to tamp down unfounded claims that 
amount to religious McCarthyism. I urged the White House, Republican 
leaders, and moderate Republicans to join me in condemning the 
injection of such smears into the consideration of nominations. The 
failure to do so risks subverting this constitutional process and the 
independence of our federal courts.
  The unfounded charges of bigotry are belied by the numbers of major 
African-American leaders, newspapers and law professors across the 
country who also oppose this nomination based on Justice Brown's record 
of extremism. The list of the African-American organizations and 
individuals who oppose Justice Brown's nomination is a clear indication 
that this is another divisive, ideologically driven nomination. The 39 
members of the Congressional Black Caucus oppose Justice Brown's 
nomination, including the respected congressional delegate from the 
District of Columbia, Eleanor Holmes Norton, and Representatives 
Charles Rangel, Elijah Cummings and John Conyers, and the chair of the 
Congressional Black Caucus, Representative Mel Watt. The nation's 
oldest and largest association of predominantly African-American 
lawyers and judges--the National Bar Association--and its State 
counterpart--the California Association of Black Lawyers--both oppose 
this nomination. The foremost national civil rights organization, the 
Leadership Conference on Civil Rights, opposes this nomination. The 
women of Delta Sigma Theta oppose this nomination. Dr. Dorothy Height, 
Dr. Joseph Lowery and Julian Bond, historic leaders in the fight for 
equal rights, have spoken out against this nomination.
  The baseless smears that we have heard are irresponsible, harmful and 
demonstrably false. Democrats have voted to confirm each of the other 
15 African-American judges nominated by President Bush and brought to 
the Senate for a vote, including all four of the other African-
Americans confirmed to appellate courts. Democrats have fought hard to 
integrate the Fourth Circuit, working with Senator Warner through the 
confirmation of Judge Roger Gregory, and with Senator Edwards on the 
confirmation of Judge Allyson Duncan. And it was Democratic Members who 
were outraged at the Republicans' partyline vote against Justice Ronnie 
White and Republican pocket filibusters of Judge Beatty, Judge Wynn, 
Kathleen McCree Lewis, and so many outstanding African-Americans judges 
and lawyers blocked during the Clinton years.
  Let us not see that shameful card dealt from the deck of unfounded 
charges that some stalwarts of this President's most extreme nominees 
have come more and more to rely upon. Let us stick to the merits. As so 
many have explained in such detail over the last few days, those who 
oppose her do so because they retain serious doubts about her 
nomination and see her as an ideologue or a judicial activist.
  The basis for my opposition is the extremism of Justice Brown's 
record. That, too, is the reason both of her home State Senators oppose 
her. As we have heard in the Judiciary Committee and here on the Senate 
Floor, both Senators from California, who arguably know this nominee 
and her record better than most, strongly oppose Justice Brown's 
confirmation. There was a time in the Senate, not that long ago, when 
opposition by a nominee's home State Senators, no matter how late in 
the day it was announced, was enough to halt a nomination. I remember 
how that tradition was adhered to scrupulously by Republican Senators 
5\1/2\ years ago when the Senate voted on the confirmation of Ronnie 
White to be a judge in Missouri. Even though one of his home State 
Senators had warmly endorsed him at his hearing, an eleventh hour 
reversal by that Senator led to every Republican Senator voting against 
Justice White. Thirty-six of those Senators are still serving in the 
Senate today, and if the approval of a nominee's home State Senator is 
as important today as it was in 1999, then the Senate will reject this 
nomination. The former Chairman of the Judiciary Committee came to the 
Senate after the defeat of Justice White's nomination to explain 
explicitly the importance of home State opposition in that 
unprecedented party-line vote.
  As I have detailed, Justice Brown's home State Senators are not the 
only ones who oppose her. Her views, both in speeches and in opinions 
issued from the bench, are so extreme that more than 200 law school 
professors from around the country wrote to the Committee, prior to her 
hearing, expressing their opposition.
  The Senate is faced with several extreme nominees who have clear 
records of trying to rewrite the law from the bench. In Justice Brown's 
hearing before the Committee, then-Chairman Hatch began the hearing by 
referring to President Bush's description of his judicial nomination 
standard: ``Every judge I appoint will be a person who clearly 
understands the role of the judge is to interpret the law, not to 
legislate from the bench. My judicial nominees will know the 
difference.'' Regretfully, Justice Brown, a practitioner of a results-
oriented brand of judicial activism so radical she is frequently the 
lone dissenter from a 6-1 Republican majority court, represents the 
antithesis of the President's purported standard. In re-nominating 
Justice Brown after she failed to gain consent of the Senate, the 
President has, again, selected a judicial nominee who deeply divides 
the American people and the Senate.
  After Justice Brown's record was examined in the hearing on her 
nomination, editorial pages across the country came to the same 
conclusion. Justice Brown's home State newspaper, The Los Angeles 
Times, concluded she is a ``bad fit for a key court,'' after finding 
that ``in opinions and speeches, Brown has articulated disdainful views 
of the Constitution and government that are so strong and so far from 
the mainstream as to raise questions about whether they would control 
her decisions.'' The Detroit Free Press concluded: ``Brown has all but 
hung a banner above her head declaring herself a foe to privacy rights, 
civil rights, legal precedent and even colleagues who don't share her 
extremist leanings.'' The Atlanta Journal and Constitution concluded 
that Janice Rogers Brown is ``not qualified for the U.S. Court of 
Appeals for the D.C. Circuit.'' The Washington Post found that Justice 
Brown is ``one of the most unapologetically ideological nominees of 
either party in many years.'' And The New York Times concluded that, 
based on Justice Brown's record as a judge, she has ``let ideology be 
her guide in deciding cases.'' I would ask that these editorials 
expressing opposition, as well as a list of all of the editorials 
opposing the Brown nomination be entered in the Record.
  Justice Brown has a lengthy record of opinions, of speeches and of 
writings. She has very strong opinions, and there is little mystery 
about her views, even though she sought to moderate them when she 
appeared before the Judiciary Committee. I come to my decision, after 
reviewing Justice Brown's record--her judicial opinions, her speeches 
and writings--and considering her testimony and oral and written 
answers provided to the Senate Judiciary Committee.
  My opposition is not about whether Justice Brown would vote like me 
if she were a member of the United States Senate. I have voted to 
confirm probably hundreds of nominees with whom I differ. Nor is this 
about one dissent or one speech. This is about Justice Brown's approach 
to the law, an approach which she has consistently

[[Page 11840]]

used to promote her own ideological agenda that is out of the 
mainstream. Her hostility both to Supreme Court precedent and to the 
intent of the legislature does not entitle her to a lifetime 
appointment to this highly important appellate court.
  As I have said--and as remains true today--Janice Rogers Brown's 
approach to the law can be best described as a ``jurisprudence of 
convenience.'' Justice Brown has proven herself to be a results-
oriented, agenda-driven judge whose respect for precedent and rules of 
judicial interpretation change and shift depending on the subject 
matter before her and the results she wants to reach.
  Hers is a record of sharp-elbowed ideological activism.
  While Justice Brown's approach to the law has been inconsistent--she 
has taken whatever approach she needs to in order to get to a result 
she desires--the results which she has worked toward have been very 
consistent, throughout her public record. At her hearing, Justice Brown 
attempted to separate her speeches from her role as a judge. However, 
on issue after issue--the protection of the elderly, workers and 
consumers; equal protection; the takings clause; privacy rights; free 
speech; civil liberties; remedies; the use of peremptory challenges, 
and many more--Justice Brown has inserted her radical views into her 
judicial opinions time and time again. In fact, Justice Brown's 
comments to groups across the country over the last 10 years repeated 
the same themes--sometimes even the same words--as she has written in 
her bench opinions.
  In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown 
wrote of the demise of the Lochner era, claiming ``the `revolution of 
1937' ended the era of economic substantive due process but it did not 
dampen the court's penchant for rewriting the Constitution.'' 
Similarly, in a speech to the Federalist Society, she said of the year 
1937: it ``marks the triumph of our own socialist revolution.''
  In San Remo Hotel v. City and County of San Francisco, Justice Brown 
wrote, ``[t]urning a democracy into a kleptocracy does not enhance the 
stature of the thieves; it only diminishes the legitimacy of the 
government.'' Similarly, two years earlier, she told an audience at the 
Institute for Justice: ``If we can invoke no ultimate limits on the 
power of government, a democracy is inevitably transformed into a 
kleptocracy--a license to steal, a warrant for oppression.''
  As Berkeley Law School Professor Stephen Barnett pointed out about 
Justice Brown's ``apparent claim that these are `just speeches' that 
exist in an entirely different world from her judicial opinions,'' 
``that defense not only is implausible but trivializes the judicial 
role.'' I agree with Professor Barnett on this and understand his 
determination to oppose her nomination. Justice Brown's provocative 
speeches are disturbing in their own right, and they are made more so 
by their reprise in her opinions.
  During her hearing, Justice Brown told the Committee that she will 
``follow the law.'' However, her opinions from the bench speak much 
louder than her words to the Committee. In such a judicial dissent she 
wrote, ``We cannot simply cloak ourselves in the doctrine of stare 
decisis.''
  Justice Brown's disregard for precedent in her opinions in order to 
expand the rights of corporations and wealthy property owners, at the 
expense of workers and individuals who have been the victims of 
discrimination, stands among the clearest illustrations of Justice 
Brown's results-oriented jurisprudence. In several dissents, Justice 
Brown called for overturning an exception to at-will employment that 
has been long recognized by the California Supreme Court, and was 
created to protect workers from discrimination. She has repeatedly 
argued for overturning precedent to provide more leeway for 
corporations against attempts to stop the sale of cigarettes to minors, 
prevent consumer fraud, and prevent the exclusion of women and 
homosexuals.
  Justice Brown has also been inconsistent in the application of rules 
of judicial interpretation--again depending on the result that she 
wants to reach in order to fulfill her extremist ideological agenda.
  These legal trends--her disregard for precedent, her inconsistency in 
judicial interpretation, and her tendency to inject her personal 
opinions into her judicial opinions--lead to no other conclusion but 
that Janice Rogers Brown is--in the true sense of the words--a judicial 
activist.
  When it is needed to reach a conclusion that meets her own 
ideological beliefs, Justice Brown stresses the need for deference to 
the legislature and the electorate. However, when the laws--as passed 
by legislators and voters--are different than laws she believes are 
necessary, she has shown no deference, presses her own agenda and 
advocates for judicial activism.
  One stark example comes in an opinion she wrote where in order to 
support her view that judges should be able to limit damages in 
employment discrimination cases, she concluded that ``creativity'' was 
a permissible judicial practice and that all judges ``make law.''
  Justice Brown's approach to the law has led to many opinions which 
are highly troubling. She repeatedly and consistently has advocated 
turning back the clock 100 years to return to an era where worker 
protection laws were found unconstitutional. She has attacked the New 
Deal, an era which created Social Security, fair labor standards and 
child labor laws, by calling it ``fundamentally incompatible with the 
vision that undergirded this country's founding.'' Justice Brown's 
antipathy to the New Deal and Social Security is so strong, that she 
stated, in Santa Monica Beach v. Superior Court of L.A. County, 19 Cal. 
4th 952 (1999), that ``1937 [the year in which much of President 
Roosevelt's New Deal legislation took effect] . . . marks the triumph 
of our own socialist revolution . . .''
  Justice Brown's hostility toward Social Security is part of larger 
hostility toward the needs and the rights of senior citizens. In a 2000 
speech to a right-wing group, Justice Brown claimed that, ``Today's 
senior citizens blithely cannibalize their grandchildren because they 
have a right to get as much `free' stuff as the political system will 
permit them to extract.'' Justice Brown has injected this hostility 
into her opinions. In Stevenson v. Superior Court of Los Angeles 
County, 16 Cal. 4th 880 (1997), Justice Brown was the only member of 
the court to find that age discrimination victims cannot sue under 
common law because, as she stated in that case, she does not believe 
age discrimination stigmatizes senior citizens.
  And she has repeatedly opposed protections against discrimination of 
individuals--in their jobs and in their homes. Justice Brown's claims 
that her words do not mean what they say are simply unconvincing.
  Another troubling aspect of Justice Brown's nomination is the court 
for which she has been nominated. She is being considered for a 
position on the premier administrative law court in the nation--a court 
that is charged with overseeing the actions of federal agencies that 
are responsible for worker protections, environmental standards, 
consumer safeguards, and civil rights protections.
  I am concerned about her ability to be a fair arbitrator on this 
court. Justice Brown has made no secret of her disdain for government's 
role in upholding protections against the abuse of the powerless, those 
who struggle in our society, and our environment. She has said, ``. . . 
where government moves in, community retreats, civil society 
disintegrates, and our ability to control our own destiny atrophies.''
  How can someone who has demonstrated her activism be entrusted to 
make fair and neutral decisions when faced with the responsibility of 
interpreting the powers of the federal government and the breadth of 
regulatory statutes? Justice Brown responded to this question at her 
hearing by calling on us to review her record as a judge to see that 
she does not ``hate government.'' Well, I did review her record. And, 
what I found was disturbing: She has used her position on and off the 
bench to argue for the dismantling of government from the inside out.

[[Page 11841]]

  Since the Senate last considered Justice Brown's nomination, her 
troubling jurisprudence has not changed. As demonstrated by her recent 
opinions, Justice Brown has continued to be a results-oriented judge 
with little consistency in judicial interpretation who gives great 
deference to her own agenda rather than to precedent, to the intent of 
the legislature, or to the Constitution.
  In the last 18 months, since Justice Brown appeared before the 
Judiciary Committee:
  She has expressly ignored Supreme Court precedent in seeking judicial 
repeal of a State antidiscrimination statute giving drug benefits to 
women, despite her own finding that the statute met the Supreme Court's 
test.
  She has denigrated the constitutional right to privacy and bodily 
integrity as mere ``sympathy'' by the majority.
  She has shown deference to the intent of employers rather than to 
precedent, to the detriment of the retirement benefits of long-term 
workers.
  She has sought to replace the legislature's judgment regarding the 
value of expert testimony related to ``Battered Women's Syndrome'' with 
her own judgment that domestic violence is ``simply a label, now 
codified,'' which would make it more difficult to prosecute domestic 
violence.
  She has sought to overturn a long line of precedent that African-
American women are considered a ``cognizable group'' for the purpose of 
assessing where a prosecuting attorney has violated equal protection in 
the use of peremptory challenges.
  She has demonstrated her hostility to common law by overturning 
California's century-old second-degree felony murder rule.
  She has sought to make it more difficult for a worker to pursue a 
sexual harassment claim against her employer by strictly enforcing 
release language in a separate worker's compensation settlement, even 
though this result would, according to the majority, ``create a trap 
for the unwary worker.''
  Justice Brown's record since her hearing--and since she was last 
rejected by the Senate--has only brought into sharper focus the 
radicalism of her opinions and only deepened my concern about her 
extremism.
  Indeed, in the last several days the United States Supreme Court 
decision in a regulatory takings case demonstrates anew just how far 
out of the mainstream she is. In this case, a strong majority of the 
Supreme Court rejected the approach that Justice Brown has endorsed in 
her efforts to expand the takings clause of the Constitution to thwart 
local government regulation for health, safety, controlled growth and 
economic development.
  America would look like and be a very different place if Justice 
Brown had her way. She would do away with many of the core protections 
Americans count on to keep their jobs and communities safe and their 
retirements secure. There would be few if any laws protecting Americans 
from race discrimination, employment discrimination or age 
discrimination, or protecting a woman's right to choose. Corporate 
speech would be protected, but not the first amendment rights of 
employees to criticize an employer's practices. Corporations would be 
protected against suits for stock fraud and for illegally selling 
cigarettes to minors, but private employers would not be required to 
provide contraceptive drug benefits for women.
  Justice Brown's America would mean a return to the widely and 
justifiably discredited Lochner era, an era named after a Supreme Court 
decision so widely-derided that even Robert Bork called its judicial 
activism an ``abomination.'' A return to the Lochner era would mean a 
return to a time without protections against child labor. It would mean 
a return to a time without zoning protections to prevent porn shops and 
factories and rat-infested slaughterhouses from moving in next door to 
Americans' homes; a time without consumer protection and laws providing 
for affordable housing; a time without worker safety laws and without 
fair labor standards; and a time without laws protecting clean air and 
clean water. And it would mean a return to a time without Social 
Security.
  It is no small irony that this President, who spoke of being a 
uniter, has used his position to re-nominate Justice Brown and others 
after they failed to gain consent of the Senate. These provocative 
nominees have divided the Senate and the American people and brought 
the Senate to the edge of a ``nuclear winter.'' His divisiveness has 
continued, despite the confirmation of 209 out of his 218 judicial 
nominees. It is no small irony that this President, who spoke with 
disdain of ``judicial activism,'' has nominated several of the most 
consummate judicial activists ever chosen by any President. None of the 
President's nominees is more in the mold of a judicial activist than 
this nominee.
  I oppose giving Justice Brown this lifetime promotion to the second 
highest court in our land because the American people deserve judges 
who will interpret the law fairly and objectively. Janice Rogers Brown 
is a committed judicial activist who has a consistent record of using 
her position as a member of the court to put her views above the law 
and above the interests of working men and women and families across 
the Nation. We should not enable her to bring her ``jurisprudence of 
convenience'' to one of the most important Federal courts in the 
Nation.
  The PRESIDING OFFICER. The Senator from Pennsylvania controls the 
next 10 minutes.
  Mr. SPECTER. Mr. President, as the debate winds down on the 
nomination of California State Supreme Court Justice Janice Rogers 
Brown, I suggest to my colleagues that this debate is really not about 
Justice Brown at all, but it is about the escalating battle which has 
been going on between the two parties since the last 2 years of 
President Reagan's administration and continuing up to the present 
time.
  I was on the Judiciary Committee in the last 2 years of the Reagan 
administration, having served since I was elected in 1980 on that 
committee, and there was a limited list to be confirmed after the 
Democrats took control of the Senate in the 1986 election, for 1987 and 
1988.
  Then the policy was continued during the 4 years of President George 
Herbert Walker Bush. I recall pending Third Circuit nominees who were 
not going to be considered because we were not going to confirm any 
more of the President's nominees.
  Then the situation was exacerbated to a new level during the years of 
President Clinton, when some 60 judges were bottled up. I opposed that 
practice at the time as a Republican on the Judiciary Committee and 
supported Judge Berzon, Judge Paez, and others, and urged that we not 
have party payback.
  Then the matter was exacerbated to new levels with the unprecedented 
use of systematic filibusters, the first time in the history of the 
country that has been done.
  Then the President responded with an interim appointment, the first 
interim appointment in the history of the Senate on a Senate rejection, 
albeit by the filibuster route.
  Then we came to the critical issue of how we were going to handle the 
future with the heavy debate on the so-called constitutional or nuclear 
option. And finally, we worked our way through on individual judges, 
without reviewing all of that history.
  What this nomination is all about is party payback time. That is what 
it is. In the 25 years I have been on the Judiciary Committee, I have 
seen the committee routinely confirm circuit judges who were no better 
qualified and, in many cases, not as well qualified as Justice Brown.
  We had two very celebrated cases where two nominees for circuit court 
went through with relative ease, and then their records were subjected 
to very intense scrutiny during nomination hearings for the Supreme 
Court of the United States. But the practice has been to confirm the 
circuit judges.
  The argument is made that circuit judges play a critical role, and 
will make law because their cases will not be reviewed by the U.S. 
Supreme Court, which grants certiorari in so few cases. But the fact is 
that no one judge can do that on the circuit. The judges

[[Page 11842]]

sit in panels of three. So if one judge is way out of line, does 
something egregious, there has to be a second judge concurring. And if 
there is concurrence on something that is out of line, the circuit 
courts have the court en banc to correct it. And then there is always 
the appeal or petition to the Supreme Court of the United States.
  One thing that has troubled me is the unwillingness of Senators to 
concede that both sides have been wrong--to make the explicit 
concession that their side has been wrong at least in part.
  I have scoured the Record and noted a comment made by the leader of 
the Democrats, Senator Reid, who said this on May 19:

       Let's not dwell on what went on in the 4 years of President 
     Bush's administration. I am sure there is plenty of blame to 
     go around. As we look back, I am not sure--and it is 
     difficult to say this and I say it--I am not sure either was 
     handled properly. I have known it wasn't right to simply bury 
     69 nominations. And in hindsight, maybe we could have done 
     these 10 a little differently.

  It seems to me that we really ought to be able to admit the wrongs on 
both sides--to have a clean slate, to start over and try to have 
Senators vote their individual consciences on matters such as 
filibusters. In talking to my colleagues who are Democrats, I heard 
many say they did not like the systematic filibusters; it was not the 
right thing to do. But there is a party straitjacket on, so it is done. 
Similarly, in the Republican cloakroom and Republican caucus, many of 
my colleagues voiced objections to the so-called constitutional or 
nuclear option. But there again, party loyalty has come into play.
  We have admitted our mistakes in the past, historical mistakes, 
egregious mistakes on race, women's suffrage and women's rights, the 
rights of criminal defendants, and many, many things. It would not be 
too much for both sides to say we have both been wrong and let's move 
ahead. But there has been payback and payback, and the American people 
are sick and tired of the rankling.
  When you put aside those factors, I suggest that State Supreme Court 
Justice Janice Rogers Brown stacks up fine against the long litany of 
circuit judges who have been confirmed by the Senate. We know the 
details. I spoke at length on this nomination on Monday of this week, 
before the floor became congested with many Senators who wanted to 
speak, and spoke at that time in my capacity as chairman of the 
committee. Now I have been allotted 10 minutes to speak as we wind down 
this debate.
  Her record is really exemplary. She was born in Alabama in 1949 to 
sharecroppers. She had an excellent record in college and in law 
school. She went back to get a master's degree from the University of 
Virginia after she was on the State supreme court in California.
  She has been pilloried for statements that have been made in 
speeches. As is well known, not to be unduly repetitious--I made a 
comment about this on Monday--if everybody in public life, including 
Senators, were held to everything they have said, none of us would be 
elected, confirmed, appointed, or asked to do anything in the public 
sphere. If somebody put a microscope on the countless tracks of 
statements I have made in the Congressional Record--a court reporter is 
taking this down, and it will be in the Congressional Record forever--
if I were to be suggested for some important job, it is not hard to 
find something someone has said at some time that would be a 
disqualifier.
  The proof is in the pudding on her cases. She has handled a lot of 
cases, and I went through those cases in great detail.
  It is true that she has made undiplomatic statements, but she is not 
in the State Department. In speeches, she has talked about limiting 
Government, but when her cases were reviewed and analyzed, she has 
upheld the authority of the Government in many lines which I detailed 
in a speech the day before yesterday. Similarly, she has upheld 
individual rights.
  On the merits, this is a nominee who, in my view, is worthy of 
confirmation to the Court of Appeals.
  On Monday, I made a brief reference to an opinion by Supreme Court 
Justice Oliver Wendell Holmes about 80 years ago where he talks about 
the importance of individualization, free thinking, and free speech, 
and has one of the most poignant phrases in any Supreme Court opinion: 
that ``time has upset many fighting faiths.'' Time has upset many 
fighting faiths, and in the free interplay of ideas, we come to the 
best values and the best ideas in the marketplace.
  If you have a nominee who exercises some independence and 
individuality in her speeches but has solid judicial opinions and a 
solid professional record, solid work in the State government, that is 
the test as to whether she ought to be confirmed. If it were not party 
payback time, this ferocious debate would not be undertaken. That is 
why I am going to vote to confirm State supreme court justice Janice 
Rogers Brown.
  I yield the floor.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, yesterday the Senate invoked cloture on the 
nomination now before this body. That came about as a result of a 
bipartisan agreement that was reached several weeks ago. The agreement, 
though, did not proclaim in any way that Justice Brown would be 
confirmed. The agreement does not obligate any Senator to vote for this 
or any other nominee. Nor did the agreement establish Janice Rogers 
Brown as the benchmark for what is acceptable, as far as judicial 
nominees go.
  Whether one is from the left or the right, this nominee should be 
rejected. We should reject any nominee who twists the law to advance 
his or her own ideological bent. We should reject any nominee who does 
not believe in or abide by precedent, and we should reject any nominee 
who holds deep hostility to Government, such deep hostility that it 
renders them blind to what the law mandates.
  Janice Rogers Brown does not fail on just one of these standards, she 
fails on all three. She is an exceptional candidate, there is no 
question--but in a negative sense. She twists the law and does it 
routinely. She does not follow precedent. She has a hostility to 
Government I have never seen in a judge at any time during my years as 
a lawyer and as a member of a legislative body.
  Under these standards, of course, her nomination should fail 
resoundingly. In speeches and opinions, Janice Rogers Brown has 
repeatedly assailed protections for the elderly, for workers, for the 
environment, for victims of racial discrimination. If confirmed today, 
she will be a newly empowered person to destroy those protections. Why? 
Because the D.C. Circuit, where she is intending to go, is the second 
most powerful court in our land. It has special jurisdiction over 
protections for the environment, for consumers, for workers, for women, 
for the elderly. Putting her on the D.C. Circuit Court of Appeals is 
truly like putting the fox in to guard the henhouse.
  The concerns about this woman have not been developed in the last 6 
months. Deep concerns over her objectivity and fairness, or lack 
thereof, have followed her through her whole career. In 1996, when 
Justice Brown was up for her current job--that is a member of the 
Supreme Court of the State of California--she was rated unqualified by 
a 23-member commission that was set up by the State of California to 
review people going to the court. Twenty out of 23 said she was 
unqualified to be a member of the California Supreme Court. The 
commission specifically found that as a lower court judge, Brown 
exhibited:

     a tendency to interject her political and philosophical views 
     into her opinions.

  Press reports at the time indicated that commission members had 
received complaints that she was insensitive to established legal 
precedent, lacked compassion, lacked intellectual tolerance for 
opposing views, and misapplied legal standards.
  These are not the words coming from Democratic Senators. This is from 
a commission set up to review candidates the Governor was going to 
appoint in the State of California. They found her unqualified, not by 
a narrow margin--

[[Page 11843]]

overwhelmingly. Twenty out of the 23 said she was unqualified.
  I will say one thing, in the 10 years since they did their work, the 
State commission has been proven to be visionary, to have had 
foresight, because she has definitively proven them right. She has 
established a record as a habitual lone dissenter who lacks an open 
mind. I heard one of the Senators over here on the majority side say 
there have been other dissents. She dissented alone 31 times. In a 
Republican supreme court--6 of the 7 members are Republicans--she has 
dissented alone 31 times.
  Justice Brown's record is the record of a judge who would discard the 
foundation of our basic legal system, precedent, in order to elevate 
her own extreme views over the law.
  When I was going to law school, they taught us a lot of Latin terms. 
One of the Latin terms they have in the law we learned as new law 
students is something called stare decisis. What do those words mean? 
They are Latin words that mean ``to stand by decided matter.'' It 
stands for certainty. Janice Rogers Brown is a judge; she is not a 
legislator. She has no right to do the things she does. I am 
dumbfounded that we are going to have Republican Senators who have 
decried for decades about activism--she is the epitome of an activist 
judge. She does not follow precedent. She is not a legislator, she is a 
judge.
  This is not Harry Reid coming up with some new theory. In Federalist 
Paper 78, the brilliant Alexander Hamilton wrote, explaining the 
importance of a judiciary bound by precedent:

       To avoid arbitrary discretion in the courts it is 
     indispensable that they should be bound by strict rules and 
     precedent.

  Yet we are going to have people on the other side of the aisle walk 
over here and vote for this woman. She stands for everything I have 
heard my Republican colleagues rail against for years. The fact that 
you are a so-called conservative does not make your activism any 
better. I believe in stare decisis. When the Court over here across the 
street renders a decision based on precedent, I support that. I don't 
like judges to be legislators and that is what she is.
  I think it would be hard to find a Senator, if the truth came out, 
with everyone being candid, who would not agree with Hamilton's view. 
But with Brown we have a nominee who doesn't believe in precedent. She 
not only doesn't believe in it, she doesn't abide by it. Here are a few 
examples.
  In the case called People v. McKay, she argued against existing 
precedent by saying:

       If our hands are tied it behooves us to gnaw through the 
     ropes.

  To gnaw through the ropes of precedent? Why did Alexander Hamilton 
want judges bound by precedent? Because you need stability in the law. 
You can't have judges acting as legislators. That is what people 
complain about. I thought most of the complaints about this problem, in 
fact, came from this side of the aisle.
  In Kasky v. Nike, she argued for overturning precedent because it 
``did not take into account realities of the modern world.''
  That is what we hear. We hear that the Federalist Society and all 
these other so-called conservative groups who want the Constitution to 
be interpreted based on the words of that Constitution, not her 
``realities of the modern world.''
  In People v. Williams, she summarized her views stating she is 
``disinclined to perpetuate dubious law for no better reason than that 
it exists.''
  How could a judge say that? But she does. These are the words of a 
judicial activist.
  I said yesterday, when somebody asked me:

       If you like judicial activism, she is a doozy.

  I wanted to make sure I didn't insult her. I went and looked up in 
the dictionary what a doozy is. Doozy is ``extraordinary.'' She is an 
extraordinary activist, not even a mainstream activist. She is the most 
activist judge, in my many years in the courts and in the legislature, 
I have ever seen.
  She has a deep disdain for Government. Don't take my word it. Listen 
to what she says, for example, about Government.

       Where government moves in, community retreats, civil 
     society disintegrates, our ability to control our own 
     destinies atrophies.

  We have a world out there that is looking to America for guidance. 
Why are they looking to us? It is our ability to govern, our 
Government. We are the envy of the rest of the world, with our 
constitutional form of Government. What does she think of it? Not much.
  She also says the result of Government is:

       Families under siege; war on the streets; unapologetic 
     expropriation of property; the precipitous decline of the 
     rule of law; the rapid rise of corruption; the loss of 
     civility and the triumph of deceit.

  What world is she living in? She also says the result of Government 
is:

     a debased, debauched culture which finds moral depravity 
     entertaining and virtue contemptible.

  I don't recognize that government she describes. Is a government 
which strives to provide children with a better education one which 
leads to war in the streets? Is a government which works to provide 
health care to people one which results in families under siege? Is a 
government which protects beautiful landmarks of our land one which 
leads to an unapologetic expropriation of property?
  I don't think mainstream Americans would agree to this, mainstream 
Democrats, Republicans, Independents. These views are not those of a 
person who should be awarded tremendous power in our federal court 
system.
  Take one area of the D.C. Circuit's special jurisdiction, hearing 
appeals from the National Labor Relations Board. These cases involve 
employee rights to unionize to achieve better health care, better 
wages, and a decent standard of living. In Nevada, our culinary union, 
which represents almost 60,000 people who work in our leisure-time 
industry, has so effectively represented the position of these tens of 
thousands of employees that such jobs are the best jobs for maids, 
cooks, waitresses, waiters, and car valets of any place in the world. 
Over the years, farsighted casino owners have worked with this union 
because they know that in the hospitality industry, staff can make or 
break an enterprise. Our labor laws encourage businesses to work with 
laborers so both sides benefit.
  In 1905, a case was decided by the U.S. Supreme Court called Lochner. 
It invalidated worker protection laws--things such as how many hours 
you could work, do you get paid overtime, basic safety measures in the 
workplace. In Lochner, the U.S. Supreme Court said, No, you can't do 
that. So for 32 years that was the law of the land.
  In a unique situation, the Supreme Court said: Times have changed. We 
are going to change that. They did that in 1937. Lochner is a case that 
we look back at, not with as much dread as the Dred Scott case, but it 
is pretty bad. In that case, the Lochner case, they invalidated the New 
York labor statute that limited the number of hours employees could 
work.
  Over the passionate dissent, and I heard the distinguished chairman 
of the Judiciary Committee, the distinguished Senator Specter from 
Pennsylvania talk about Oliver Wendell Holmes--Oliver Wendell Holmes 
dissented in the Lochner case and his dissent was one of the most 
beautifully written opinions in our history. For decades, Lochner stood 
as a hard-hearted barrier to worker protections enjoyed by Americans 
today. Its reversal by the Supreme Court was one of the most pivotal 
moments in our Nation's history.
  Where does Janice Rogers Brown come in here? She laments that the 
case was overturned. She wants to return to the way it used to be. She 
said of Holmes' famous dissent in Lochner--in this case he was simply 
wrong. She said the Lochner dissent has troubled me and has annoyed me 
for a long time.
  She has compared the demise of Lochner and the worker protections 
that followed in its wake as a socialist revolution.

[[Page 11844]]

  She seeks to return to Lochner, and if confirmed, she will have power 
to effect those changes she wants. Why should we have a 40-hour 
workweek, according to Janice Rogers Brown? Why should we have workers 
compensation law, worker safety laws? Why should people have to be paid 
by their employers overtime? They should not be, according to Janice 
Rogers Brown.
  She has attempted to distinguish between her legal opinions and her 
speeches, which she said are designed to stir the pot. But she can't. 
But that is not true. It is simply not true. She is being disingenuous. 
Her speeches are carried forward in her opinions. The inflammatory 
rhetoric in her speeches carries over into her opinions as if copied on 
the old copying machines.
  For example, in a speech at the Institute of Justice, she said:

       If we can invoke no ultimate limits on the power of 
     government, a democracy is inevitably transformed into a 
     Kleptocracy--a license to steal, a warrant for oppression.

  She wrote an opinion in the San Remo Hotel v. City and County of San 
Francisco case where she said the same thing, almost identical words:

       Turning a democracy into Kleptocracy does not enhance the 
     stature of thieves; it only diminishes the legitimacy of 
     government.

  In another speech, she assailed senior citizens with this verbiage:

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

  In a case involving discrimination against a senior citizen, 
Stevenson v. Superior, she said the same thing--in a dissent, of 
course--that California's public policy against age discrimination 
cannot benefit the public. She said that such age discrimination:

     is not . . . Like race and sex discrimination. It does not 
     mark its victims with a stigma of inferiority and second 
     class citizenship; it is an unavoidable consequence of that 
     universal level of time.

  She is saying you get old, you take the consequence, and if you get a 
little gray hair and you have worked there 30 years, they can dump you 
just because your hair is gray.
  I am not making this up. Setting her speeches aside, and these few 
opinions, her judicial opinions are enough to disqualify her for the 
job.
  There is another case, Aguilar vs. Avis Rent A Car. I cannot in good 
taste on the Senate floor repeat what this Hispanic employee, Aguilar, 
was being called in the workplace. I cannot repeat it. They are the 
most vile words we have in English. I cannot do that. I have them. I 
cannot do that. Vile. What did she say? There was a race discrimination 
suit against an employee who had repeatedly been subjected to racial 
slurs. She argued the slurs were protected by the first amendment. 
While the majority soundly rejected this defense, she, in her single 
dissent, endorsed these people being able to say that. I am not making 
this up. She argued that even an illegal racial discriminatory speech 
in the workplace--discrimination prohibited by title VII of our Civil 
Rights Act--is protected by the first amendment. She believes racial 
slurs in the workplace are acceptable in America. This is a woman who 
is going to the second highest court in the land?
  Take another case, Konig v. Fair Employment and Housing Commission. 
There--again in a dissent, what else--she argued that an African-
American police officer who had been discriminated against should not 
be awarded damages for this illegal conduct perpetrated against her.
  In her world, discrimination is without an effective remedy, and 
wrongdoers are rewarded.
  While she displays hostility toward victims of discrimination--
willing to twist the law to deny relief--she exhibits the opposite view 
when it comes to corporations. Corporations can do no wrong.
  In Kasky v. Nike, the plaintiff sued Nike, alleging Nike had engaged 
in false and misleading advertising in a false campaign to deny it had 
mistreated its overseas workers. The majority held that these false 
statements were not protected by the Constitution. Again, in dissent, 
Justice Brown argued they are protected.
  Under Justice Brown's reasoning of this case, corporate lies should 
be protected and public protections rejected. That was her opinion.
  As the Enron wrongdoers finally head to trial 4 years after they 
destroyed the retirement security of its employees and devastated 
investors, do we want a judge who believes that corporate lies are 
protected by the Constitution?
  Justice Brown also believes that the takings clause of the 
Constitution should be transformed into a weapon to tear government 
down. For example, in the San Remo case, a hotel owner challenged a 
city permitting requirement. In dissent--again--she argued this scheme 
was a taking of property requiring compensation under the Constitution. 
Her assertion that a permit fee was a taking requiring compensation is 
totally at odds with longstanding U.S. Supreme Court precedent. That 
does not matter to her. Her radical view would mandate compensation for 
everything. That is her point. She does not want government and her 
view is a way to achieve that end.
  If you disapprove of zoning laws which keep strip clubs and factories 
from opening next door to your house, or an adult bookstore, if you 
dislike the environmental process which saved the bald eagle, our 
golden eagle, if you oppose the communication laws which protect our 
children from indecent programming, then Janice Rogers Brown is your 
kind of a judge. She does not believe in these protections and wants to 
twist the Constitution to abolish them.
  I said she was a doozy as an activist, and I think I have proven my 
case. Her views, in my word and I think the word of the American 
people, are absurd. They are without any basis in the law. They should 
not be given voice on the DC Circuit.
  I say to my colleagues, to the American people, if you believe in 
America--and I know we do--where workers are entitled to a fair wage 
for a fair day's work, where racial slurs are not condoned, where 
discrimination is not tolerated, where corporations are not given 
license to lie, where senior citizens are valued and honored, where we 
have protections for the air we breathe, the food we eat, the water we 
drink, and these are embraced instead of evaded, if you believe in 
these things, no one in good conscience can approve this nomination. 
The record is too clear, too disturbing, too expansive.
  The influence of this court, the DC Circuit Court, is too important, 
too fundamental to the rights Americans hold dear. If there were ever a 
nominee whom my colleagues, Republicans and Democrats, should reject, 
this is it.
  This bipartisan rejection would do more to change the tenor of the 
debate on judicial nominations than any step we could take. It would 
send a signal to President Bush that while we may confirm the 
conservative nominee--and we have confirmed 209 so far--the Senate will 
not approve results-oriented activist ideologues to our Federal courts. 
It would breathe new life into the ``advice'' part of the advice and 
consent clause of our Constitution, encouraging partnership between the 
President and the Congress.
  The American people want to see us--Democrats and Republicans--
working together to improve the retirement security, their health care, 
their children's education. Because of the time we have spent on judges 
for weeks and weeks, we will never catch up. We have the Energy bill to 
do. We have the armed services bill we have to do. We have TANF. We 
hope to do something on estate tax. It goes on and on. It is all 
catchup time. Why? Because of five judges and the President did not get 
his way. And it will be catchup time for a long time because of it.
  The people want to see us work together. They want to see the 
President bring forward fair judicial nominees who will not bring an 
ideological agenda to this body, whether liberal or conservative, to 
these lifetime positions. The American people should demand, the Senate 
should demand, that a nominee possess a fair, open mind, and an 
instinctual understanding that the

[[Page 11845]]

job of a judge is not to make law but to interpret our laws. It is this 
very basic standard that this nominee so utterly and completely fails 
to meet.
  I urge my colleagues to reject this very bad nomination.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, in a few moments, we will vote on the 
confirmation of Justice Janice Rogers Brown to serve on the U.S. Court 
of Appeals for the DC Circuit. Justice Brown is a highly qualified 
nominee. She is kind. She is smart. She is thoughtful. She has endured 
a protracted and often bitter nominations process with grace and 
dignity. I look forward to her confirmation to the Federal bench in 
just a few short minutes.
  It has been a long road to get to this point. Justice Brown was 
nominated by the President of the United States in July 2003. She has 
endured 184 questions and nearly 5 hours of debate in the Judiciary 
Committee hearing, two committee votes--both of which were favorable to 
Justice Brown's nomination--and one failed cloture vote despite 
majority support among the Members of the Senate. She also answered 
over 120 written questions and sat down for countless meetings with 
individual Senators. In all, we have debated Justice Brown for over 50 
hours on the Senate floor.
  Now, after 2 years, Senators will finally be able to fulfill their 
constitutional duty of advice and consent on the President's nominee. 
Janice Rogers Brown will finally get an up-or-down vote. She will 
finally get the courtesy and the respect she deserves.
  During this 2-year process, Senators on the other side of the aisle 
have leveled harsh and I believe unfair attacks against Justice Brown. 
A careful review of her record, however, shows Justice Brown has an 
unwavering commitment to judicial restraint and the rule of law.
  Opponents have called Justice Brown an extremist. But we have heard 
the bipartisan praises of Justice Brown from those who know her best--
her former and current colleagues on the California Supreme Court and 
California Court of Appeals. They agree that Janice Rogers Brown is a 
``superb judge'' and have said that ``she is a jurist who applies the 
law without favor, without bias, and with an even hand.''
  Opponents have called Justice Brown ``out of the mainstream.'' Yet, 
as a justice on the California Supreme Court, California voters 
reelected her with 76 percent of the vote, the highest vote percentage 
of all the justices on the ballot. Can 76 percent of Californians be 
out of the mainstream? Senators denying Janice Rogers Brown the 
fairness of an up-or-down vote is what has been out of the mainstream.
  Justice Brown's life is an inspiring story of the American dream. It 
is an extraordinary journey from a sharecropper's field in segregated 
Greenville, AL, to the California Supreme Court, and to the D.C. 
Circuit Court of Appeals. Thanks to hard work and persistence and a 
strong intellect, Justice Brown has risen to the top of the legal 
profession.
  A true public servant, she has dedicated her life to serving others. 
For 24 years, she has served in various prominent positions in 
California State government. In 1996, she became the first African-
American woman to serve as an associate justice on the California 
Supreme Court, the State's highest court.
  Janice Rogers Brown is a distinguished, respected, and mainstream 
jurist. I am proud that today, after almost 2 years, the Senate will 
finally give Janice Rogers Brown the vote she has waited so long to 
receive.
  With the confirmation last week of Justice Owen and the upcoming vote 
on Justice Brown, the Senate continues to make progress, placing 
principle before partisan politics and results before rhetoric. I hope 
we can continue working together to do our constitutional duty as 
Senators and give other judicial nominees the fair up-or-down votes 
they deserve.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  All time is expired.
  The question is, Will the Senate advise and consent to the nomination 
of Janice R. Brown, of California, to be United States District Court 
Judge for the District of Columbia Circuit? On this question, the yeas 
and nays have been ordered. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Jeffords), 
is necessarily absent.
  The result was announced--yeas 56, nays 43, as follows:

                      [Rollcall Vote No. 131 Ex.]

                                YEAS--56

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

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Jeffords
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The majority leader is recognized.

                          ____________________