S6176 CONGRESSIONAL RECORD — SENATE June 8, 2005 NOMINATIONS OF JANICE R. cratic time for debate, with respect to before the recess. Regrettably, Presi- BROWN AND WILLIAM PRYOR the Brown nomination, be controlled as dent Bush is responsible for much of Mr. FRIST. Mr. President, today we indicated on the list which I now send the ill will that has plagued this body will vote on the confirmation of Janice to the desk. for the past few years and the poten- Rogers Brown to serve on the Court of The ACTING PRESIDENT pro tem- tially disastrous upending of Senate precedents that we faced last month Appeals for the D.C. Circuit. We are on pore. Without objection, it is so or- and may well see again. a good path, a constructive, very posi- dered. Mr. REID. Mr. President, I suggest If only the President had really been tive path for getting up-or-down votes a uniter and not a divider; if only he for these judicial nominees, and we will the absence of a quorum. The ACTING PRESIDENT pro tem- had truly tried to change the tone in stay on that, as I just mentioned, over pore. The clerk will call the roll. Washington and repair some of the the remainder of this week, confirming The legislative clerk proceeded to damage done to the nomination process these judges. call the roll. by previous Congresses; if only he had After 2 years of delay, Justice Brown Mr. FEINGOLD. Mr. President, I ask not squandered the opportunity that will finally get the courtesy of an up- unanimous consent that the order for the four vacancies on the D.C. Circuit or-down vote. She will finally get the the quorum call be rescinded. as of his inauguration in 2001 pre- respect she deserves by getting an up- The PRESIDING OFFICER (Mr. VIT- sented, we would not be in this situa- or-down vote. Indeed, all 100 Members, TER). Without objection, it is so or- tion today. later today, will be able to come to the dered. In light of this history and the im- floor and vote to confirm or reject—yes Under the previous order, the time portance of this Circuit, I believe it is or no, up or down—her nomination. I from 11 a.m. until 12 noon shall be my duty to give this nomination very am delighted we have finally reached under the control of the Democratic close scrutiny. After reviewing this this point. leader or his designee. nominee’s record and her testimony, I Following the vote on Justice Brown, The Senator from Wisconsin is recog- will vote ‘‘no.’’ I do not believe she is we will move to the cloture vote on nized for 20 minutes. the right person at this time to be Judge William Pryor. Similar to Jus- Mr. FEINGOLD. Mr President, I will given a lifetime appointment to this tice Brown, Judge Pryor’s nomination, vote ‘‘no’’ on Justice Brown’s nomina- important court. The fact that a ma- in the past, has faced deliberate delay tion to the D.C. Circuit. jority of the Senate is apparently will- and postponement and obstruction. But Let me first remind my colleagues of ing to confirm a nominee whose record with the progress we are making, I be- the importance of this particular cir- so clearly demonstrates that she is not lieve William Pryor will also now get a cuit in our judicial system. The D.C. suited for such an important position fair up-or-down vote, a vote he de- Circuit is widely regarded as the most is surprising and discouraging. I do not serves. important Federal circuit. It has juris- and will never apologize for supporting So I am very happy we have moved diction over the actions of most Fed- the filibuster to protect the Federal beyond the impasse on his nomination eral agencies. Many of the highest pro- courts and the people of this country and that we are back to fulfilling our file cases that have been decided in re- from her ideological, results-oriented constitutional duty for advice and con- cent years by the Supreme Court con- judging. At her hearing, I asked Justice sent. That is what these nominees de- cerning regulation of economic activ- Brown about a case on age discrimina- serve. It gives them the respect they ity by Federal agencies in areas such tion called Stevenson v. Superior deserve. It gives them the courtesy as the environment, health and safety Court. The majority in that case said they deserve. regulation, and labor law, went first to that Ms. Stevenson’s wrongful dis- Mr. President, I will yield the floor. the D.C. Circuit. In the area of admin- charge violated a fundamental public We will continue to vote on judges this istrative law and the interpretation of policy against age discrimination. Jus- week, and then next week we will be major regulatory statutes such as the tice Brown dissented, saying that the turning our attention to lowering en- Clean Air Act, the Clean Water Act, plaintiff had ‘‘failed to establish that ergy prices, to lowering natural gas the Occupational Safety and Health prices for Americans, and we will be on public policy against age discrimina- Act, and the National Labor Relations tion . . . is fundamental and substan- that bill until completion. That is the Act, the D.C. Circuit is generally the Energy bill. tial.’’ She went on: ‘‘Discrimination last word, as the Supreme Court re- based on age does not mark its victim f views only a tiny minority of circuit with a stigma of inferiority and second court decisions. RESERVATION OF LEADER TIME class citizenship.’’ The D.C. Circuit is now almost even- These statements looked shocking The ACTING PRESIDENT pro tem- ly split, and has been for some time, when I read them, but I wanted to pore. Under the previous order, the between nominees of Democratic and make sure I understood Justice leadership time is reserved. Republican Presidents. There are five Brown’s views, so I gave her a chance f judges who were appointed by Repub- to respond. I questioned her about the licans, including John Roberts, who case in the Judiciary Committee, and EXECUTIVE SESSION the Senate confirmed earlier this year, concluded by asking if it was fair to and four by Democrats, and there are say she believed age discrimination three vacancies. President Clinton NOMINATION OF JANICE R. BROWN does not stigmatize senior citizens. She made two excellent nominations that agreed that it was. I appreciate her TO BE CIRCUIT were never acted upon by the Senate JUDGE candor, but I have to say I found that Judiciary Committee. In one case, the testimony very troubling. Senior citi- The ACTING PRESIDENT pro tem- committee held a hearing but never zens in this country live every day pore. Under the previous order, the scheduled a vote, and in another, that with the stigma of age discrimination; Senate will proceed to executive ses- of now-Harvard Law School Dean Elena it is a real problem, and I think every- sion to resume consideration of cal- Kagan, the Clinton nominee was not one here takes it very seriously. Just endar No. 72, which the clerk will re- even given the courtesy of a hearing. because we all will be old someday, port. I want to express my great dis- and, therefore perhaps will be subject The legislative clerk read the nomi- appointment that the administration to prejudice and discrimination of this nation of Janice R. Brown, of Cali- has not been willing to seek a com- type, does not make it any less rep- fornia, to be United States Circuit promise on the many vacancies that rehensible. I have not heard anyone in Judge for the District of Columbia Cir- now exist on this court. By insisting on the Senate trying to defend Justice cuit. its often highly controversial choices Brown’s view on this issue; nor do I ex- The ACTING PRESIDENT pro tem- for this circuit in particular, the ad- pect to, because it is truly indefensible. pore. The Democratic leader. ministration has continued to push the I was also concerned by a comment Mr. REID. Mr. President, I ask unan- Senate toward the ‘‘nuclear’’ con- Justice Brown made in 2000 about sen- imous consent that today the Demo- frontation that loomed over the Senate ior citizens. She said: ‘‘Today senior

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6177 citizens blithely cannibalize their loath to undertake pursuant to either sive and striking language of any judi- grandchildren because they have a the takings or due process clause.’’ cial nominee we have seen thus far. right to get as much free stuff as the On May 23, 2005—just last month—the Referring to cases upholding Presi- political system will permit them to U.S. Supreme Court rejected the ‘‘sub- dent Franklin Roosevelt’s exact.’’ When I asked her about this stantially advances’’ test supported by legislation, for example, Justice Brown statement at her hearing, she made no Justice Brown in the San Remo case has said that ‘‘1937 . . . marks the tri- effort to distance herself from it. and affirmed that courts should not umph of our own socialist revolution.’’ Justice Brown seemed to suggest at subject regulatory takings cases to She went on to say that ‘‘In the New her hearing that we should ignore her heightened scrutiny. Other than Jus- Deal/Great Society Era, a rule that was inflammatory speeches because she was tice Kennedy’s two paragraph concur- the polar opposite of American law just trying to be provocative in talking rence, the entire court, including Jus- reigned.’’ At her hearing, Senator DUR- to audiences of youthful lawyers. She tices Scalia and Thomas, unanimously BIN asked her about another speech, said that in her judging she is nonideo- agreed with Justice O’Connor’s major- where she said that ‘‘Protection of pri- logical. The problem with that position ity opinion in this case, Lingle v. Chev- vate property was a major casualty of is that the caustic style and even some ron (No. 04–163,—S. Ct.—, 2005 WL the revolution of 1937.’’ She said, ‘‘I of the extreme language she used in her 1200710 (May 23, 2005).) don’t think that’s at all controver- speeches makes its way into her opin- The U.S. Supreme Court’s critique of sial.’’ ions. For example, in a 2000 speech en- the district court in Lingle paralleled The court to which Justice Brown titled ‘‘50 Ways To Lose Your Free- the San Remo majority’s critique of has been nominated has a docket that dom’’ in which Justice Brown suggests Justice Brown’s dissent. In Lingle, the is laden with challenges to government there may be some validity to the sub- Supreme Court addressed whether a regulations and interpretations of Fed- stantive due process theory of the Hawaiian regulation that prohibited oil eral statutes dealing with economic Lochner case, she says the following: companies from charging extraor- regulation. I am not confident that ‘‘[I]f we can invoke no ultimate limits dinary rent to franchisees constituted Justice Brown will follow the law, on the power of government, a democ- a regulatory taking. The Supreme rather than her personal views on the racy is inevitably transformed into a Court held that it did not, and the law, in hearing those cases. kleptocracy—a license to steal, a war- Court explicitly rejected the test Jus- I have heard my colleagues argue rant for oppression.’’ That is a pretty tice Brown used in her takings anal- that Justice Brown will follow the law provocative statement to be sure. ysis. Like the majority in the San faithfully on the court, that she will be In 2002, Justice Brown issued a scath- Remo opinion, the Court noted that if constrained by precedent, but I simply ing dissent in a zoning case called San the ‘‘substantially advances’’ test were do not find these assurances reas- Remo Hotel v. San Francisco. In that the law of the land: suring. As Justice Brown herself ac- case, San Francisco had a requirement [I]t would require courts to scrutinize the knowledged in the Hughes Aircraft that when residential hotels were con- efficacy of a vast array of State and Federal case, ‘‘all judges ‘make law’.’’ When verted into daily hotels, the owners regulations—a task for which courts are not they are faced with questions of first pay a fee to help the government pay well suited. Moreover, it would empower— and might often require—courts to sub- impression, they have no choice. And for affordable housing that would make stitute their predictive judgments for those when they sit on a court of last resort, up for the housing that was lost in the of elected legislatures and expert agencies. as Justice Brown does now, there is no conversion. This seems like a fairly Although the instant case is only the tip of one to stop them. Federal Courts of Ap- mild requirement to me, and the ma- the proverbial iceberg, it foreshadows the peals also often hear questions of first jority of the court saw nothing wrong hazards of placing courts in this role. . . . impression. And for all practical pur- with it. But her dissent used very The Supreme Court rejected the dis- poses, they are often courts of last re- strong language to criticize the re- trict court’s decision, and the view of sort, because the Supreme Court— quirement. She said, in words that the takings clause advanced by Justice again, an important point—reviews sounds an awful lot like her speech, Brown, because it would require that only a tiny percentage of their cases. that San Francisco was ‘‘[t]urning a judges substitute their judgments for So we must ask ourselves: How will democracy into a kleptocracy.’’ In case those of elected legislatures—some- Justice Brown use her enormous power that was not strong enough, she added thing that many of Justice Brown’s as a Federal appellate judge when she that the government had imposed a supporters have spoken out against on has the opportunity to make new law? ‘‘neo-feudal regime.’’ the Senate floor. Justice Brown’s record does not give Frankly, I had a hard time imagining As a former State legislator and now me comfort in answering that question. a more extreme statement than that, a Federal legislator, I appreciate and Too often, she seems to adopt contrary but Justice Brown came up with one: respect the Supreme Court’s reluctance theories of judging and even statutory ‘‘But , already an en- to endorse this activist view of regu- interpretation depending on which out- dangered species in , is now latory takings law promoted by Justice come she favors. entirely extinct in San Francisco.’’ Brown. Some in this body, including When the plaintiffs were victims of (San Remo Hotel L.P. v. City and County many who style themselves advocates employment discrimination, she sup- of San Francisco, 27 Cal. 4th 643 (2002).) of judicial restraint, would like to ported limits on punitive damages. She continued to use this dissent to enact her views by legislation. They (Lane v. Hughes Aircraft, Cal. 4th 405 showcase her extreme views on the have every right to try to do so. I will (2000).) But when the plaintiffs were takings clause: ‘‘Where once govern- fight them hard, and fortunately, so property owners prohibited from in- ment was a necessary evil because it far, they have not been successful. But creasing rent in a mobile home park, protected private property, now private for them to support a judicial nominee she opposed any limit on damages. property is a necessary evil because it who so clearly wants to use her power (Galland v. City of Clovis, 24 Cal. 4th funds government programs,’’ she said. as a judge to promote such a radical 1003.) In her dissent, she argued that the view of the law is disappointing. When the California Supreme Court zoning fee did not ‘‘substantially ad- Justice Brown’s extreme comments ruled that juries must be given a cer- vance legitimate government inter- in her opinions and speeches, and there tain instruction to protect criminal de- ests’’ and therefore was ‘‘obviously’’ are many, many such quotations that fendants, Justice Brown dissented be- unconstitutional. Justice Brown’s col- were discussed at her hearing, lead me cause of her faith in juries: ‘‘I would leagues on the California Supreme to question whether she has the tem- presume, as we do in virtually every Court rejected her analysis. They noted perament to be a fair judge. Despite other context, that jurors are ‘intel- that Justice Brown’s approach to her testimony at the hearing that ‘‘I ligent, capable of understanding in- takings law would open a Pandora’s am not an ideologue of any stripe,’’ structions and applying them to the box of judicial activism, in that courts much of her record demonstrates the facts of the case.’ ’’ (People v. Guiuan, would have to examine the wisdom of a contrary. She seems to view the world 18 Cal. 4th 558 (1998).) ‘‘myriad government economic regula- through an ideological prism, and she But she suddenly stopped trusting ju- tions, a task the courts have been expresses her views in the most divi- ries when faced with the possibility

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6178 CONGRESSIONAL RECORD — SENATE June 8, 2005 that they might award punitive dam- I yield the floor. a judge is qualified to be a judge is not ages to employers found liable for ra- The PRESIDING OFFICER. The Sen- their intelligence. It is their judgment. cial discrimination, writing: ‘‘When ator from Illinois. The test of a qualified judicial nomi- setting punitive damages, a jury does Mr. OBAMA. I thank the Chair. nee is also not whether that person has not have the perspective, and the re- I rise today to speak on the nomina- their own political views. Every jurist sulting proportionality, that a court tion of California Justice Janice Rog- surely does. The test is whether he or has after observing many trials.’’ (Lane ers Brown to the D.C. Circuit Court of she can effectively subordinate their v. Hughes Aircraft, 22 Cal. 4th 405 (2000).) Appeals. Let me begin by saying that views in order to decide each case on When property owners would benefit the last thing I would like to be spend- the facts and the merits alone. That is from a literal interpretation of a voter ing my time on right now is talking what keeps our judiciary independent initiative, Justice Brown wrote: ‘‘In about judges. I am sure that is true for in America. That is what our Founders my view the voters did not intend the many in this Chamber. I know that I intended. courts to look any further than a certainly do not hear about filibusters Unfortunately, as has been stated re- standard dictionary in applying the and judges when I go back to Illinois peatedly on this floor, in almost every terms. . . .’’ (Apt. Ass’n of Los Angeles and hold townhall meetings with peo- legal decision that she has made and Cty. v. City of Los Angeles, 24 Cal. 4th ple across the State. What I hear about every political speech that she has 830 (Jan. 2000).) But only 11 months are veterans who are concerned about given, Justice Brown has shown she is later, when those challenging an af- their disability payments and families not simply a judge with very strong po- firmative action program advocated a who are talking about how high gas litical views, she is a political activist broad interpretation of a voter initia- prices are or how difficult it is to pay who happens to be a judge. It is a pret- tive, she had a different view. She said: for college. And so I think this argu- ty easy observation to make when you ‘‘We can discern and thereby effectuate ment we have been having over the last look at her judicial decisions. While the voters’’ intention only by inter- several weeks about judicial nomina- some judges tend to favor an activist preting this language in a historical tions has been an enormous distraction interpretation of the law and others context.’’ (Hi-Voltage v. City of San Jose, from some of the work that is most im- tend to believe in a restrained interpre- 24 Cal. 4th 537 (Nov. 2000).) portant to the American people. tation of the law providing great def- When she wanted to limit the explicit Moreover, I am not so naive as to erence to the legislature, Justice right to privacy in the California Con- think that speaking to an empty Brown tends to favor whatever inter- stitution, she argued: ‘‘Where, as here, Chamber for the benefit of C–SPAN is a state constitutional protection was pretation leads her to the very same somehow going to change people’s modeled on a federal constitutional ideological conclusions every single minds or people’s votes. I recognize right, we should be extremely reticent time. So when it comes to laws pro- that most of my colleagues, on both to disregard U.S. Supreme Court prece- tecting a woman’s right to choose or a sides of the aisle, are fairly locked into dent delineating the scope and con- worker’s right to organize, she will their positions. tours of that right.’’ ( American Academy I do not expect the President to ap- claim that the laws that the legisla- of Pediatricians v. Lungren, 16 Cal. 4th point many judges of my liking. One of ture passed should be interpreted nar- 307 (Aug. 1997).) rowly. Yet when it comes to laws pro- But when the majority of her court the things I have told some of my col- leagues on this side of the aisle is that tecting corporations and private prop- relied on analysis from the United erty, she has decided that those laws States Supreme Court on the question there is only one sure way to make sure Democrats are able to block what should be interpreted broadly. When of remedies for a violation of constitu- the rights of the vulnerable are at tional rights, she said: ‘‘Defaulting to they consider to be bad judges, and that is to win elections. stake, then she believes the majority the high court fundamentally disserves has the right to do whatever it wants. the independent force and effect of our And yet I feel compelled to rise on this issue to express, in the strongest When the minority happens to be the Constitution. Rather than enrich the people who have privilege and wealth, texture of our law, this reliance on fed- terms, my opposition to the nomina- tion of Janice Rogers Brown to the then suddenly she is counter- eral precedent shortchanges future majoritarian and thinks it is very im- generations.’’ (Katzburg v. Regents, 29 D.C. Circuit. I think it is important for the Amer- portant to constrain the will of the ma- Cal 4th 300 (Nov. 2002).) jority. I urge my colleagues to review these ican people to know just what it is we Let me just give you a couple exam- cases before voting on this nomination. are getting. After the Supreme Court, ples. In a case reviewing California’s These examples lead me to conclude as my esteemed colleague from Wis- parental notification law, Justice that the jurisprudence of Justice consin just stated, the D.C. Circuit is Brown criticized the California Su- Brown is a jurisprudence of conven- widely viewed as the second highest preme Court decision overturning that ience. She is skilled at finding a legal court in the land. Three of our current law, saying that the court should have theory to support a desired result. I do Supreme Court Justices came directly remained ‘‘tentative, recognizing the not think that kind of approach to from this court. Under its jurisdiction judging should be rewarded with an ap- fall laws relating to all sorts of Federal primacy of legislative prerogatives.’’ pointment to the second highest court agencies and regulations. This is a spe- She has also repeatedly tried to over- in the land. cial court. It has jurisdiction that turn the fact that California law recog- This nominee has complained about other appeals courts do not have. The nizes Tameny claims, a line of cases ‘‘militant judges’’ while herself openly judges on this court are entrusted with that establishes that an employer does defying precedent when it suits her; the power to make decisions affecting not have an unfettered right to fire an she believes that the New Deal was a the health of the environment, the employee, but that the right has limits ‘‘socialist revolution’’ and that Amer- amount of money we allow in politics, according to fundamental public pol- ica’s elderly ‘‘cannibalize’’ their grand- the right of workers to bargain for fair icy. She says judicial restraint is crit- children for handouts; she has ex- wages and find freedom from discrimi- ical. She claims that public policy is pressed doubts about the application of nation, and the Social Security that ‘‘a function first and foremost reserved the Bill of Rights to the States our seniors will receive. It is because of to the legislature.’’ through the incorporation doctrine and this power that we deserve to give the So on these cases dealing with a has suggested a return to an era when American people a qualified judicial woman’s right to choose, worker pro- the courts regularly overturned the nominee to serve on the D.C. Circuit. tections, punitive damages, or dis- judgment of legislatures on questions Now, the test for a qualified judicial crimination, she wants the judge to of economic regulation. Putting it sim- nominee is not simply whether they stay out of the legislative decision- ply, this nominee truly does have ex- are intelligent. Some of us who at- making process. But Justice Brown treme views. To confirm her to a seat tended law school or were in business doesn’t always want the courts to exer- on the D.C. Circuit would be a grave know there are a lot of real smart peo- cise restraint and defer to the legisla- mistake. So I cannot support this ple out there whom you would not put ture. When Justice Brown wanted to nominee, and I will vote ‘‘no.’’ in charge of stuff. The test of whether limit the ability of juries to punish

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6179 companies that engage in severe dis- ing field with somehow inhibiting our recognizes an unlimited right to do crimination, a fellow judge on the Cali- liberty. what you want with your private prop- fornia Supreme Court accused her of For those who pay attention to legal erty and yet does not recognize a right engaging in ‘‘judicial law making.’’ In- argument, one of the things that is to privacy that would forbid the Gov- stead of denying it, Justice Brown de- most troubling is Justice Brown’s ap- ernment from intruding in your bed- fended her judicial activism. She called proval of the of the Su- room. Yet that seems to be the manner it creativity. This is what she said: preme Court. In the Lochner case, and in which Justice Brown would inter- ‘‘All judges make law. It is arrogance, in a whole series of cases prior to pret our most cherished document. carelessness and a lack of candor that Lochner being overturned, the Su- It would be one thing if these opin- constitute impermissible judicial prac- preme Court consistently overturned ions were confined to her political tice, not creativity.’’ basic measures like minimum wage speeches. The fact is she has carried Justice Brown has also gone out of laws, child labor safety laws, and them over into her judicial decision- her way to use her position in the rights to organize, deeming those laws making. That is why the California courts to advocate for increased pro- as somehow violating a constitutional State Bar Association rated her as tections for property owners. In a case right to private property. The basic ar- ‘‘unqualified’’ to serve on the State’s about a developer that wanted to break gument in Lochner was you can’t regu- highest court. That is why not one a city rent control law, Justice Brown late the free market because it is going member of the American Bar Associa- dismissed the fact that a majority of to constrain people’s use of their pri- tion found her to be very qualified to the city’s voters had approved of that vate property. Keep in mind that that serve on the D.C. Circuit, and why law and thought that the case should same judicial philosophy was the un- many members of the bar association be an exception to the philosophy of derpinning of Dred Scott, the ruling found her not qualified at all. narrow judicial review. Justice Brown that overturned the Missouri Com- It is also why conservative com- believed that this case was one in promise and said that it was unconsti- mentators, such as Andrew Sullivan which ‘‘some degree of judicial scru- tutional to forbid slavery from being and George Will, while agreeing with tiny . . . is appropriate.’’ Which is it, imported into the free States. her political philosophy, simply do not Justice Brown? In some cases you That same judicial philosophy essen- see how she can be an effective judge. think we should defer to the legislature tially stopped every effort by Franklin Here is what Sullivan said: and in some cases, apparently, you Delano Roosevelt to overcome the She does not fit the description of a judge think it is appropriate for judges to enormous distress and suffering that who simply follows the law. If she isn’t a occurred during the Great Depression. ‘‘judicial activist,’’ I don’t know who would make law. What seems to distinguish be. these two types of cases is who the It was ultimately overturned because Sullivan added that he is in agree- plaintiff is, who the claimant is. Justices, such as Oliver Wendell ment with some of her conservative If the claimant is powerful—if they Holmes, realized that if Supreme Court views but thinks ‘‘she should run for are a property owner, for example— Justices can overturn any economic office, not the courts.’’ regulation—Social Security, minimum then she is willing to use any tool in Columnist George Will, not known to wage, basic zoning laws, and so forth— her judicial arsenal to make sure the be a raving liberal, added recently that outcome is one they like. If it is a then they would be usurping the rights he believes Justice Brown is out of the worker or a minority claiming dis- of a democratically constituted legisla- mainstream of conservative jurispru- crimination, then she is nowhere to be ture. Suddenly they would be elevated dence. found. to the point where they were in charge Let me wrap up by making mention Judicial decisions ultimately have to as opposed to democracy being in of a subtext to this debate. As was true be based on evidence and on fact. They charge. with Clarence Thomas, as was true have to be based on precedent and on Justice Brown, from her speeches, at with Alberto Gonzales, as was true law. When you bend and twist all of least, seems to think overturning with Condoleezza Rice, my esteemed these to cramp them into a conclusion Lochner was a mistake. She believes colleagues on the other side of the aisle you have already made—a conclusion the Supreme Court should be able to have spent a lot of time during this de- that is based on your own personal ide- overturn minimum wage laws. She bate discussing Justice Brown’s hum- ology—you do a disservice to the ideal thinks we should live in a country ble beginnings as a child of a share- of an independent judiciary and to the where the Federal Government cannot cropper. They like to point out she was American people who count on an inde- enforce the most basic regulations of the first African American to serve on pendent judiciary. transparency in our security markets, the California Supreme Court. Because of this tendency, and be- that we cannot maintain regulations I, too, am an admirer of Justice cause of her record, it seems as if Jus- that ensure our food is safe and the Brown’s rise from modest means, just tice Brown’s mission is not blind jus- drugs that are sold to us have been as I am an admirer of Alberto tice but political activism. The only tested. It means, according to Justice Gonzales’s rise from modest means, thing that seems to be consistent Brown, that local governments or mu- just as I am an admirer of Clarence about her overarching judicial philos- nicipalities cannot enforce basic zoning Thomas’s rise from modest means, just ophy is an unyielding belief in an un- regulations that relieve traffic, no as I am an admirer of Condoleezza fettered free market and a willingness matter how much damage it may be Rice’s rise from modest means. I think to consistently side with the powerful doing a particular community. it is wonderful. We should all be grate- over the powerless. What is most ironic about this is ful where opportunity has opened the Let’s look at some of her speeches that what Justice Brown is calling for doors of success for Americans of every outside of the courtroom. In speech is precisely the type of judicial activ- background. after speech, she touts herself as a true ism that for the last 50 years conserv- Moreover, I am not somebody who conservative who believes that safety atives have been railing against. subscribes to the view that because nets—such as Social Security, unem- Supreme Court Justice Scalia is not somebody is a member of a minority ployment insurance, and health care— somebody with whom I frequently group they somehow have to subscribe have ‘‘cut away the very foundation agree. I do not like a lot of his judicial to a particular ideology or a particular upon which the Constitution rests.’’ approaches, but at least the guy is con- political party. I think it is wonderful Justice Brown believes, as has al- sistent. Justice Scalia says that, gen- that Asian Americans, Latinos, African ready been stated in the Chamber, that erally speaking, the legislature has the Americans, and others are represented the New Deal, which helped save our power to make laws and the judiciary in all parties and across the political country and get it back on its feet should only interpret the laws that are spectrum. When such representation after the Great Depression, was a tri- made or are explicitly in the Constitu- exists, then those groups are less likely umph of our very own ‘‘Socialist revo- tion. That is not Justice Brown’s phi- to be taken for granted by any political lution.’’ She has equated altruism with losophy. It is simply intellectually dis- party. communism. She equates even the honest and logically incoherent to sug- The PRESIDING OFFICER. The Sen- most modest efforts to level life’s play- gest that somehow the Constitution ator’s time has expired.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6180 CONGRESSIONAL RECORD — SENATE June 8, 2005 Mr. OBAMA. Mr. President, I ask safety net to protect them against if the answers to those questions are unanimous consent for a couple min- those insecurities, people of all back- yes, that judge moves through the utes to wrap up. grounds in America want a nation process quickly. There is not much to The PRESIDING OFFICER. Without where we share life’s risks and rewards it. objection, it is so ordered. with each other. And when they make In fact, take a look at the scorecard Mr. OBAMA. I thank the Chair. laws that will spread this opportunity of what has happened with President I do not think that because Justice to all who are willing to work for it, Bush’s judicial nominees: 209 of these Brown is an African-American woman they expect our judges to uphold those nominees have almost skated through she has to adhere to a particular polit- laws, not tear them down because of the process. It did not take any time at ical orthodoxy, something that has their political predilections. all. But over the last 41⁄2 years, nine of been suggested by the other side of the Republican, Democrat, or anyone in them have run into resistance and de- aisle. Just as it would be cynical and between. Those are the types of judges bate, and that leads us to where we are offensive that Justice Brown be vilified the American people deserve. Justice today and where we have been for sev- simply for being a Black conservative, Brown is not one of those judges. I eral weeks discussing nuclear options it is equally offensive and cynical to strongly urge my colleagues to vote and constitutional crises and constitu- suggest that somehow she should get a against this nomination. tional confrontations. It is because pass for her outlandish views simply The PRESIDING OFFICER (Mr. President Bush insists on sending some because she is a Black woman. DEMINT). The Senator from Illinois. of the most extreme people to us for I hope we have arrived at a point in Mr. DURBIN. Mr. President, I ask approval. If he picks moderate people, our country’s history where Black unanimous consent that the remaining they fall into this category of 209 and folks can be criticized for holding time until 12 o’clock be allocated to move through here, but when some spe- views that are out of the mainstream, me. cial interest groups get the attention just as Whites are criticized when they The PRESIDING OFFICER. Without of the White House and say, We have to hold views that are out of the main- objection, it is so ordered. have our person, then the process stream. I hope we have come to the Mr. DURBIN. Mr. President, I thank breaks down and the debate goes on. point where a woman can be criticized my colleague. Naturally, I am a little And instead of talking about issues for being insensitive to the rights of bit inclined to be in his corner because that matter to the families of America, women, just as men are criticized when he is from Illinois and he is my col- we end up consumed in this debate over they are insensitive to the rights of league in the Senate. But I also think a judge for the D.C. Circuit Court. women. what he demonstrated in his statement So you say to yourself: Why do you Unfortunately, Justice Brown’s is the reason why he not only is so do this? Why do you spend all this time record on privacy and employment dis- highly regarded in my State of Illinois, talking about one judge, for goodness’ crimination indicates precisely such an but across the Nation, despite his new sake, out of the hundreds across Amer- insensitivity. I will give one example. status in the Senate. With his back- ica? There are several reasons. In a case where a group of Latino em- ground as a professor of constitutional No. 1, if you as a voter in America de- ployees at Avis Rent A Car was sub- law and his life experience, he has cide to choose a certain man or woman jected to repeated racial slurs in the brought special talents to this floor. I to represent you in Congress—either in workplace by another employee, the thank him for his eloquent statement the House or in the Senate—you are lower court found that Avis, in allow- on this important issue. literally giving that person a contract ing this to go on, had created a hostile I guess most people are following this to work for you, but it is a limited con- environment. Justice Brown disagreed debate and are saying: What is the Sen- tract. In the House, it is 2 years. I will with and criticized the decision. ate doing? Why are they sitting around vote for you, they will swear you in, In her opinion, she wrote that ra- debating day after day, week after and I will watch you. If you do a good cially discriminatory speech in the week about a handful of judges? Isn’t job, I may vote for you again. If you do workplace, even when it rises to the there something more important to do? a bad job, I will vote against you. It is level of illegal race discrimination, is Shouldn’t we be talking about the 2 years in the House and 6 years in the still protected by the first amendment. schools of America, whether they are Senate. It is a limited contract. So if I This was despite U.S. Supreme Court doing a good job educating our kids? make a mistake as a voter and I choose opinions that came to the exact oppo- Isn’t it about time Congress spends a someone to represent me in Congress site conclusion. few minutes talking about the cost of and I watch him and say, Who in the Justice Brown went so far as to sug- health insurance to businesses, to peo- world are they representing; they are gest that the landmark civil rights ple working, to families? Why in the not representing me or my family, I law, Title VII of the Civil Rights Act of world won’t somebody on the floor of can try to correct that wrong in the 1964, could be unconstitutional under the Senate stand up and talk about all next election—2 years in the House, 6 the first amendment. the people across America who are los- years in the Senate. The voters speak. I believe if the American people ing their pensions, people working 25, But when it comes to judges, it is a could truly see what was going on here 30 years, and they are losing every- different world. When the judges go they would oppose this nomination, thing? So why do they sit there hour through this process and get the ap- not because she is African American, after hour and day after day talking proval of the Senate, they are given not because she is a woman, but be- about a judge? What in the world is lifetime appointments. If you love cause they fundamentally disagree wrong with those people in the Senate? them, you have the benefit of their en- with a version of America she is trying Are they so out of touch with ordinary tire life on the bench committed to jus- to create from her position on the families in America? tice. If you do not like them, you are bench. It is , a view of Good question. It is a valid question. stuck with them for a lifetime, which America that says there is not a prob- We are spending entirely too much means these men and women who go lem that cannot be solved by making time on a handful of judicial nominees, through this process are never re- sure that the rich get richer and the nominees who, frankly, I believe per- viewed again. Except for the most ex- poor get poorer. It requires no sacrifice sonally, should never have been pre- traordinary cases of impeachment, on the part of those of us who have won sented to the Senate in the first place. they are there for life. So we take a lit- life’s lottery and does not consider who They are too radical, they are too ex- tle more time because this is an impor- our parents were or the education re- treme, they push the envelope. When it tant decision. It is a lifetime appoint- ceived or the right breaks that came at comes to the ordinary process where a ment of someone to the Federal bench, the right time. President picks a judge, it is almost and we should take the time to ask the Today, at a time when American routine around here. Oh, we take a most important questions, and we cer- families are facing more risk and close look at this person. We want to tainly should take the time when we greater insecurity than they have in know if that person is honest, has good find one who is so exceptional that it recent history, at a time when they temperament, has good legal skills, is raises many questions about policy and have fewer resources and a weaker somewhat moderate in their views, and philosophy.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6181 We should take the time to ask hard think will happen, and these judges, cause we are dealing with a basic con- questions, questions such as, Do we like Janice Rogers Brown, will be there stitutional and human right of privacy. really want this person presiding on a long after George W. Bush is off to an- As an individual in America, one Federal bench with all the power that other career, whatever it happens to should be able to exercise their right of brings for a lifetime if that person’s be. So we need to ask questions about privacy to make their family decision views are so out of step with the rest of who she is and what she believes. when it comes to family planning. So America? Is that what we want? What we do when we ask these ques- in the case of Griswold v. Connecticut, Secondly, this is an important court. tions is let her answer them. We have 40 years ago yesterday, the Supreme I will say this: One could call all 100 committee hearings where we ask the Court said: We find in this Constitution Senators together today and give them questions directly, but in other cases the basic protection of your right of a blank sheet of paper and ask them to we ask the questions in hypothetical privacy. We do not care that some reli- write down the names of all the judges terms: What does she believe when it gious groups pushed through this stat- on the D.C. Circuit Court of Appeals, comes to certain things? We look to ute in the State of Connecticut. They and I guess we could not come up with what she has said and what she has went too far. If they want to practice one or two. We kind of know who they done for those answers. their religion, they can do that. But are, but it is not as if we get up every When one looks at it, they find that they cannot impose their religious morning saying: I wonder how that she really is on the fringe. She is not a views on every family who lives in Con- D.C. Circuit Court of Appeals is doing conservative; she is something else. necticut. today. I wonder if they all showed up She is something much more extreme. So today, 95 percent of families go to for work. I wonder what cases they are She has accused the courts of a drugstore and a pharmacy across considering. No, it is not that. The D.C. ‘‘constitutionalizing everything pos- America with no questions asked and Circuit Court of Appeals has a reputa- sible’’ and ‘‘taking a few words which buy basic family planning. They know tion. It has a reputation of being the are in the Constitution like ‘due proc- what they want, and they are pur- launching pad for the Supreme Court. ess’ and ‘equal protection’ and imbuing chasing it. They have the right to do it If one can get there, the highest re- them with elaborate and highly im- because nine people sitting on the garded circuit court in America, they plausible etymologies.’’ Strip away the bench across the street said it is funda- mental to being an American. are one step away from the building highfalutin language, and we get down Listen to Janice Rogers Brown’s view across the street, the Supreme Court. to the bottom line. of what this Constitution says. Under- And, yes, we do know the names of Su- The words ‘‘due process’’ and ‘‘equal stand that when she faced the issue on preme Court Justices, and we under- protection,’’ which may be the fore- whether there would be this basic right stand that many times each year they most important words in that Con- of privacy, she was the only dissenter stitution, she diminishes because she make decisions which can change on the California Supreme Court. believes they have been used by courts America. So when we talk about the Seven justices on the Supreme Court, D.C. Circuit Court of Appeals, we are to create rights. What does she say six Republicans and one Democrat—she talking about a court with great poten- about the rights of Americans? Here is was one of the Republicans—she was tial for the judges on it, and we are what she says: Elected officials have the only dissenter. Here is what the talking about a court with jurisdiction been ‘‘handing out new rights like lol- case involved. It was the California over some of the most basic questions lipops in the dentist office.’’ She has antidiscrimination law providing of government. complained that ‘‘in the last 100 years, health benefits for women. Janice Rog- It is for those reasons, frankly, that and particularly in the last 30, the Con- ers Brown was the only dissenter. She we come to the Senate floor today to stitution has been demoted to the sta- argued that California could not re- talk about Janice Rogers Brown. She is tus of a bad chain novel.’’ quire private employers to provide con- on the California Supreme Court. Of This is a woman who wants to sit on traceptive drug benefits for women who course, that is something that has been the bench and decide what the Con- wanted them. She ignored Griswold v. brought up many times as an indica- stitution means, and the language she Connecticut. She ignored the inherent tion of at least the voters in California uses to describe what courts have right to privacy. From her point of having a positive view of who she is be- turned to in this Constitution I believe view, the State of California could pro- cause they put her on the Supreme gives us pause because we know that hibit the right of family planning in- Court. But what they do not tell us when it came 40 years ago yesterday, formation under health care plans sold about Janice Rogers Brown is that the Supreme Court across the street in that State. when she was first appointed to the found what they thought was in our She wants to turn back the hands of California Supreme Court, she was Constitution, though it was not ex- time to a day when it became a legal judged not qualified by the Bar Asso- plicit, and that was the word ‘‘pri- struggle as to whether married men ciation. Oh, they say, wait a minute, vacy.’’ and women in this country could plan she was reelected with an over- One can go through this entire Con- the size of their own families, or make whelming percentage. Ah, but that is stitution and never find the word ‘‘pri- the most intimate personal and private not the whole story. She was not run- vacy.’’ Forty years ago, the Supreme decisions without concern as to wheth- ning against anybody. It is called re- Court across the street was asked the er the Government would be watching tention. We have it in Illinois, too. following question: Can the State of over them and arresting them. What it means is you kind of run Connecticut make it a crime for a mar- So when we say that Janice Rogers against yourself. It is not as if you run ried couple to buy birth control de- Brown is a danger if she comes to the against another person. It is a ‘‘yes’’ or vices, pills, and other things? The D.C. Circuit Court, it is because she ‘‘no’’ vote on the ballot. Yes, she had a State of Connecticut said: Yes, it is a views the Constitution in such re- substantial percentage, but most crime, and we will send you to jail if stricted terms that she could write out judges running for retention do. you try to buy it, and we will send the the conclusion of privacy which the What we find in Justice Janice Rog- pharmacist to jail who tries to fill the Court found in Griswold v. Con- ers Brown is a person with such ex- prescription. necticut. That is how basic this is. treme views that it raises a serious Some people who are listening to this That is how fundamental this is. question as to whether we want to give must be saying: The Senator from Illi- This is not just another judge in an- her a lifetime appointment to the sec- nois cannot be right. You mean it was other court making decisions one will ond highest court in America, whether against the law in Connecticut to even never hear about. It is a woman who is we want to position her for ascendency buy the birth control pill? Yes, it was. poised to move to the D.C. Circuit to the Supreme Court. That is what So 40 years ago, the Supreme Court Court, the second highest court, one this boils down to. That is why this de- was asked: Can a State impose a law on step away from the Supreme Court, bate is beyond the usual debate. its people so basic as to deny them the whose view of America is very different President Bush’s term will come to right to fill a prescription for birth than what we have seen across this the end in 2008, absent some constitu- control at a pharmacy? The Supreme country over the last 40 years when it tional amendment, which I do not Court across the street said: No, be- comes to our basic rights of privacy.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6182 CONGRESSIONAL RECORD — SENATE June 8, 2005 The things she said about America And they want this person to sit on the that is not 76 percent of Texans, or 76 trouble me, too. It is not just that she second highest court in the land and percent of Alabamians, or 76 percent of is conservative. President George W. decide about safety and health for Georgians—voted to reelect Justice Bush is conservative. He calls himself a Americans? What a serious mistake. Brown to the highest court of our most compassionate conservative. He de- The last point I make, as my time populous State, not known as a bastion fends Social Security as an institution, runs out, is one expected to be said by of conservatism. though he sees its future a lot dif- a Democrat on this side of the aisle, That certainly belies the notion that ferently than I do. But when Janice but not expected to have been read in she is too conservative for the Federal Rogers Brown looks at Social Security on Thursday, May bench. And with respect to the remain- and the other programs that came out 26, in an article by George Will, a well- der of Senator SCHUMER’s assertion of Franklin Roosevelt’s New Deal, known conservative. He was very can- that there were no far-left Clinton what she sees is . Here is what did about Justice Janice Rogers Brown. nominees who should have been dis- she said. She calls the year 1937 ‘‘the He talked about the fact that she is qualified from judicial service in the triumph of our own socialist revolu- one of the three who are part of the way he would disqualify Justice Brown, tion’’ because the Supreme Court deci- agreement here that is going to move it seems to me our friend is suffering sions that year upheld the constitu- forward. And he says: from a little memory loss. I can think tionality of Social Security. Is this a . . . Janice Rogers Brown is out of that of a number of Clinton nominees who mainstream point of view? How many mainstream. That should not be an auto- were very much on the far left of the people do we run into who say we ought matic disqualification, but it is a fact: She political spectrum and yet who, today, to get rid of Social Security because it has expressed admiration for the Supreme wear the robe of a Federal judge. My is just pure socialism, it is too much Court’s pre-1937 hyper-activism in declaring friend from has mentioned government, we do not want to have unconstitutional many laws and regulations Judge Paez, for example. Senator SES- of the sort that now define the post-New SIONS noted that Judge Paez once re- Social Security there as kind of our Deal regulatory state. . . . last effort to provide a safety net for marked that a judge ought to be an ac- In a few words, George Will says it Americans? Janice Rogers Brown es- tivist. Judge Paez said a judge ought to more elaborately. sentially reached that conclusion. Be- be an activist if he believed the legisla- She is out of the mainstream even for cause of that extreme view, she became ture was failing to address a problem. a conservative like George Will. If she the poster child for the George W. Bush That, as Senator SESSIONS points out, is out of the mainstream for George White House to put on the D.C. Circuit is the virtual definition of judicial ac- Will and other conservatives, the big Court of Appeals. Why do we have to tivism. question today is whether five Repub- reach so far afield to find someone to There are quite a few other Clinton lican Senators will agree with most fill this spot? Why do we have to turn judicial nominees who reside over on Democrats that she should not be given to someone who is so out of touch with the political ‘‘Left Bank.’’ I do not a lifetime appointment to this bench to the mainstream of America? have the time now to go through all of These are not just her philosophical make the decisions and change the them, but I would like to discuss one, musings, things she dreams up and laws and try to reverse the course of just one Clinton nominee in particular, talks about among friends. This is how America. a nominee with whom we are all very, she rules on the bench. Given the op- When it comes to matters of personal very familiar. At the time of her con- portunity, this is what we can expect privacy, when it comes to programs as firmation, she had previously made nu- in the future. She has been the lone essential as Social Security, when it merous provocative statements and dissenter in so many cases involving comes to protecting our children from public policy pronouncements. Even the rights of discrimination victims, tobacco companies and others who when looked at today, almost 30 years consumers, and workers. Case after would exploit them, do we really want removed from when they were first case, in 31 different cases, she was the Janice Rogers Brown with the last made, these statements are certainly only California Supreme Court justice word on the D.C. Circuit Court of Ap- not, by any standard, mainstream. But to disagree with the majority. She said peals? I think the answer is clearly no, our Democratic colleagues did not once in a speech: ‘‘Since I have been and that is how I will be voting. argue then, and I doubt they would making a career out of being the lone I yield the floor, and I suggest the ab- argue now, that these statements dis- dissenter, I really didn’t think anyone sence of a quorum. qualified this Clinton nominee from reads this stuff.’’ The PRESIDING OFFICER (Mr. ISAK- Federal judicial service. Sorry, Justice, we do read it. Words SON). The clerk will call the roll. I speak of Supreme Court Justice matter, especially when they carry the The bill clerk proceeded to call the Ruth Bader Ginsburg, whom I sup- weight of law and change human lives. roll. ported. Let me note that Justice Gins- I am concerned not only about the Mr. MCCONNELL. Mr. President, I burg is a learned and experienced views she has taken but the way she ask unanimous consent the order for judge. As I just indicated, I and the has expressed them. Justice Brown’s the quorum call be rescinded. vast majority of our colleagues voted extreme, often inflammatory rhetoric The PRESIDING OFFICER. Without for her. In 1993, she was approved 96 to has no place on the bench. According objection, it is so ordered. 3 for her current position on the Su- to press reports, Justice Brown and the Mr. MCCONNELL. Mr. President, in preme Court. We did so, even though in chief justice of her court are on such listening to our Democratic colleagues her private capacity she had made bad terms they do not even speak to discuss the President’s judicial nomi- some very thought-provoking com- one another; they communicate by nees, I have often thought if I had a ments on public policy issues. She memo. Boy, is that the kind of person dollar for every time they use the theoretically mused. These kinds of we would like to have on a bench mak- words ‘‘far right’’ or ‘‘extreme,’’ I could theoretical musings frequently occur, ing big decisions, where she reaches the one day retire a rich and happy man. as we all know, in academia and other point where she cannot even talk to Some have reached new heights, extrajudicial writings. This is a good her fellow justice? though, in histrionics and hyperbole in thing, frankly, in terms of having a In her lone dissent in the case involv- discussing the Janice Rogers Brown healthy marketplace of ideas. While ing cigarette sales to minors, selling nomination. people’s opinions should be considered tobacco to kids, Justice Brown wrote: For example, our very good friend in evaluating their fitness for the ‘‘The result is so exquisitely ridiculous from New York, Senator SCHUMER, ac- bench, the fact that someone makes a it, it would confound Kafka.’’ She also tually said yesterday he could not thought-provoking comment is not wrote in her dissent in this case that think of any judicial nominee of Presi- necessarily a reason to bar them from ‘‘the majority chooses to speed us dent Clinton who was as far to the left judicial service. This appears, however, along the path to perdition.’’ as Janice Rogers Brown is to the right. to be the standard our Democratic Really? Regulating cigarette sales to Just as an initial matter, many Sen- friends would apply to Justice Brown. kids is going to be leading us on the ators on this side of the aisle have So I ask my friends, what would be road to hell? Too much government? noted that 76 percent of Californians— their view of Justice Ginsburg, under

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6183 the new standard that they seek to time and maybe later they are not so of a judge is: Will they study the law apply to Justice Brown? For my friends sure they agree with. But we don’t and will they be faithful to it? Will on the other side of the aisle whose want to intimidate Americans and say they read it and study it? recollections may be just a bit foggy, you can never be a Federal judge if you But with regard to these statements, let me remind them of some of her don’t say anything but vanilla state- wouldn’t you say that compared to thoughts. She once proposed—this is ments your entire life. I thank him for what you have mentioned, and some of Justice Ginsburg, for whom I voted and his wise insight there. the statements made by some of the who has had a distinguished record on It does seem we have a double stand- Clinton nominees, that Justice Brown’s the Supreme Court. We are not arguing ard here. It seems there has just been a statements are mild, indeed? about that. But she once proposed abol- deliberate effort to go back and sift Mr. MCCONNELL. I would certainly ishing Mother’s and Father’s Day in through, bit by bit, line by line, agree. I know that Senator BOXER favor of a unisex ‘‘Parents’ Day.’’ speeches and statements and writings made much ado about the fact that She also called for making prisons of nominees to try to take them out of Justice Brown had dissented 31 times and reformatories co-ed, and sex inte- context and make them appear to be on the California Supreme Court. But grated. extreme when her record is one of our good friend from California ne- She argued that restrictions on biga- mainstream, effective service. Justice glected to mention that this puts Jus- my were of questionable constitu- Ginsburg was not a nominee, certainly, tice Brown about in the middle of the tionality, and she opined that the U.S. that I would choose to nominate for pack, in terms of the number of dis- Constitution might guarantee a right the Supreme Court, but the Senate did sents issued on the California Supreme to prostitution. not bar her from service on the Court, Court. In addition, I would point out to She argued that there is a constitu- the highest court in this land, because my good friend from Alabama—because tional entitlement to have the Govern- of her extrajudicial statements that of the esteem in which she is held by ment pay for abortions. And, inciden- you just mentioned that are quite un- her peers out there on the California tally, when she made this assertion, usual, that she made in law review ar- Supreme Court—Justice Brown was se- the Supreme Court had ruled not once ticles and such, even though her lected to write the second-highest but twice that there was no constitu- thoughts and comments were out of number of opinions on the court, sec- tional right to have taxpayers pay for the mainstream. ond only to the Chief Justice of that abortions. I was not there at the time and the court. And numerous California jurists Justice Ginsburg has even suggested Senator was. But was it not true that, have, to put it mildly, enthusiastically that statutory rape laws were discrimi- at her confirmation hearing, Justice endorsed this nomination—the people natory, and that the ‘‘current penalty Ginsburg swore under oath she would who know her best. of 15 years for a first offense is exces- follow the law, and was it not also true Mr. SESSIONS. I couldn’t agree sive.’’ She also suggested the adoption that during her service on the D.C. Cir- more. As I recall from the letter that of a statute that would, among other cuit Court of Appeals she often voted was sent to Senator HATCH, then-chair- things, lower the age of consent for with Judge Bork and other conserv- man of the Judiciary Committee, all of sexual activity to age 12. ative judges? In other words, just be- her colleagues on the California Court Given their past enthusiastic support cause she made these statements, once of Appeals, which is just below the Su- for Justice Ginsburg’s nomination—a she put on that robe and read the briefs preme Court of California, have sup- nomination which I also supported— of the parties, she had some record ported her, and four of the six sitting compared to their current vigorous op- that indicated she was committed to Justices on the California Supreme position to Justice Brown’s nomina- the rule of law? Court have overwhelmingly, strongly tion, our Democratic colleagues must Mr. MCCONNELL. The Senator from advocated for her confirmation. It be saying one of two things: Either Alabama is absolutely correct. She seems to me the idea that she is out of they believe that Justice Ginsburg’s swore she would uphold the law. You the mainstream is farfetched and musings about a possible constitu- are absolutely right. When she put on stretched. tional right to prostitution and the the robes, she was no longer sort of I will ask one more question of the need to abolish Mother’s and Father’s musing and making provocative Senator. Isn’t it true and isn’t it sad Day and all the rest are in the main- thoughts; she was making law. In fact, that in this attempt to portray this stream—they either believe those com- I think the record reflects that one nominee and others in a negative light, ments are in the mainstream, or they year on the D.C. Circuit, before she was that there has been, unfortunately, a are saying it is OK for a Democratic elevated to the Supreme Court, then- tendency to take things out of context? nominee to the Nation’s highest court Judge Ginsburg on the D.C. Circuit And isn’t it true that some of these to make provocative statements like voted with then-Judge Scalia 95 per- statements, that might seem a bit that, but it is not OK for a Republican cent of the time and voted with Judge strange or hard to understand, are not nominee to a lower court to make Bork, believe it or not, 100 percent of so hard to understand in the context of thought-provoking statements about the time—100 percent of the time. the entire remarks? Would the Senator policy issues. That, in spite of the fact that she had agree that is a problem today in the I would be surprised if my Demo- made some rather provocative—I think Senate? cratic colleagues believed that these we would all agree—observations on a Mr. MCCONNELL. I think the Sen- various musings of Justice Ginsburg variety of different issues that I expect ator from Alabama is entirely correct. were in the mainstream. In fact, I the Senator from Alabama, and I, and It is simply amazing for our Demo- think they don’t believe they were in the Senator from Georgia in the chair, cratic colleagues to say that Justice the mainstream. So what we must and I bet virtually everybody on the Brown, for example, has embraced the have, then, is truly a double standard. other side of the aisle would consider Lochner decision, when she has taken I see my friend from Alabama is on way outside of the mainstream to the the opposite position and written in a the floor. I ask if Senator SESSIONS is left. published opinion that Lochner was a seeking time? Mr. SESSIONS. I couldn’t agree more ‘‘usurpation of power’’ and the Lochner Mr. SESSIONS. Mr. President, I ask with the Senator from Kentucky. That court seemed to believe it could ‘‘alter if the Majority Whip will yield for a whole insight and principle cannot be the meaning of the Constitution as question? lost here. We can’t expect people to be written.’’ Indeed, many times her posi- Mr. MCCONNELL. I am happy to just ‘‘Milquetoast’’ human beings and tion has been essentially misrepre- yield. never engage in debate over important sented. Mr. SESSIONS. I thank him, first, issues in America and never make a To get back to the basic point of our for his insightful remarks. It is cer- provocative statement or they cannot exchange, we ought not hold against tainly appropriate and important that be confirmed to the Federal bench. nominees—particularly those who have we distinguish between an American Frankly, as one who practiced a lot of written a good bit, published a good citizen’s right to speak and say things law, and I note the distinguished Ma- bit—their provocative statements. We that may be on their heart at a given jority Whip has, as well, the true test clearly did not do that against Justice

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We ought not do that in this un- their thought processes, the context of with it, but we are not going to pay fortunate attempt to demonize Justice what they are doing, is brought to the you a dime for the ability to have that Janice Rogers Brown, who has had by attention of the American public be- property set aside for what we want it any standard not only an outstanding fore we start twisting it to make them to be set aside for. life story but an outstanding record on look like someone who is not in the That is why people who are con- the California Supreme Court. mainstream. cerned about property rights in Amer- I thank my friend from Alabama for I will talk about a couple of things; ica are upset about the abuse of zoning. being here during this discussion. We there are many we could talk about. I But normal zoning goes on every day. hope this will help put the whole issue will mention a few cases specifically And there is not one shred of evidence of provocative musings and writing that have been referred to by the at- that Janice Rogers Brown opposes all into context as a relevant factor in tack groups that are attempting to put zoning. In fact, she, as I said, had two considering how we are going to vote down these nominees, and by Senators other judges join with her in that im- to confirm judicial nominees. who have picked up on it—maybe they portant case. Justice Brown, in the Mr. SESSIONS. If the Senator will are not lawyers, maybe they are—but case, complimented the State of Cali- yield, I will follow up on that. perhaps have not fully comprehended fornia for having a laudable regulation I remember President Clinton nomi- what the case is about or have been to try to provide more housing oppor- nated quite a number of justices, careless with the facts. tunities for low-income individuals. judges, who were active members— One of the charges some have heard, She said that in her dissent, but noted some lawyers—for the American Civil I think made again today, is that Jan- that the California takings clause pre- Liberties Union. If you look at the ice Rogers Brown opposes all zoning cluded the Government from achieving American Civil Liberties Union Web laws. That is not true. That is abso- that goal by police power regulation. site, they favor and believe the Con- lutely not true. One Senator, I believe Another case that still bothers me— stitution allows the legalization of Senator DORGAN, said she believes that I mentioned it yesterday; and it is drugs; that there cannot be a law zoning laws are the equivalent of theft worth talking about again—is the against legalization of drugs. and are unconstitutional. That is not Aguilar case. Senator BOXER and I They oppose all pornography laws— true. That is not a fair characteriza- think maybe others on the floor have even child pornography laws—on their tion of her record. said that Justice Brown, an African Web site. This is what the San Remo case was American, the daughter of a share- We confirmed Marsha Berzon from about. First, she never said the zoning cropper from rural Alabama—she grew California. She was chairman of the laws were unconstitutional. But the up not too far from where I grew up— litigation committee of the ACLU. San Remo case in California came be- had said, in her opinion, that it was OK There were quite a number of other fore her. It involved a Draconian, over- for Latinos to have racial slurs uttered members of the ACLU. We gave them a reaching zoning law that forced hotel against them in the workplace, that fair hearing. We asked their views. owners—I know the Presiding Officer that was the position of Justice Janice Some were answered satisfactorily to has had some association with real es- Rogers Brown. my view and some were not. Fun- tate—forced hotel owners who wanted Now, this was the case of Aguilar v. damentally, the question was, will you to convert low-income residential units Avis Rent A Car System. It involved a follow the law of the Supreme Court? to hotel units to pay a large fee or re- court injunction that barred a manager Will you be faithful to those laws? Do place the residential units that would of the company from using various ra- you have a good reputation among be lost. It was a takings case. It was a cial epithets in the future, raising your colleagues? Have you a record of question of whether this zoning law grave first amendment concerns as a integrity and achievement? had taken away the ability of private prior restraint. Justice Brown, in her Most of those judges, virtually all of property owners to use their property dissent, stated: ‘‘Discrimination on the them, were confirmed. to the highest and best use. basis of race is illegal, immoral, uncon- Mr. MCCONNELL. The Senator from That is a big deal in America today. stitutional, inherently wrong, and de- Alabama is correct, and Berzon and Even the liberal Supreme Court of structive of democratic society.’’ As to Paez were the poster children for nomi- California was troubled by it. It was a the specific slurs, she called them: nees out of the mainstream to the left, 4-to-3 vote. Justice Brown was one of ‘‘disgusting, offensive, and abhorrent.’’ yet the Senator from Alabama and oth- the three, but she was not the only one In her dissent, however, she relied on ers, and myself, joined in making sure who dissented from this rule. Her dis- the precedent of the Supreme Court of these two nominees—dramatically out sent was consistent with U.S. Supreme the United States, in expressing her of the mainstream, to the left—got an Court precedent on property. concern about an injunction that up-or-down vote in the Senate. When The classic case, not too far from the placed an absolute prohibition, a prior they did, they were confirmed. State of Georgia, was North or South restraint, on speech. Again, the court Mr. SESSIONS. I thank the Senator Carolina. The person bought a lot on in this case was divided, 4 to 3. One of for his wisdom and his fine comments the beach, paid a lot of money for this, the dissenters who joined with her was today. was going to build a dream home on the liberal icon, Justice Stanley Mr. MCCONNELL. I yield the floor the beach. They came along and said: Mosk—her colleague on the bench who and suggest the absence of a quorum. We are going to rezone this and you is recognized as one of the great, most The PRESIDING OFFICER. The cannot build a house on the beach. prominent liberal judges in America— clerk will call the roll. He put all of this money in a lot that because speech is important. The assistant legislative clerk pro- he was going to build his dream house I offered into the RECORD Monday an ceeded to call the roll. on and they said: You can keep the article by Nat Hentoff in which he Mr. SESSIONS. Mr. President, I ask sands, Mr. Property Owner, but you dealt with this particular case. He is a unanimous consent that the order for cannot build a house on it. The Su- great civil libertarian lawyer. He has the quorum call be rescinded. preme Court of the United States of committed his life to American civil The PRESIDING OFFICER. Without America said—and the same principle I liberties. He believes in free speech. He objection, it is so ordered. believe applies in California—that this said the majority opinion in Aguilar Mr. SESSIONS. Mr. President, may I was an effective taking of the value of was an outrage, that it was totally take a few minutes to go over some of that property. wrong, that she was exactly correct, the concerns that have been raised If the Government wanted to take it that this was a prior restraint of free about Justice Janice Rogers Brown’s and make it a wildlife refuge, they speech that could not be done under rulings on some cases? ought to take the property and pay these circumstances. So saying that As the Senator from Kentucky and I them the fair market value for it. But Justice Brown believes it is OK for discussed, some of her statements have what the zoning guys wanted to do, you Latinos to have racial slurs uttered been taken out of context. It is not see, is just say: You cannot use it. You against them in the workplace is not a fair. We ought to be fair to nominees. cannot do anything with it. You have fair thing to be saying about her.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6185 Senator BOXER also argued against ing up for someone who could have been treated. I do not think this has Janice Rogers Brown, saying that been a victim of discrimination? Janice been one of the Senate’s proudest Brown ‘‘argued that messages sent by Rogers Brown. hours. an employee to co-workers criticizing a Another Senator said that ‘‘she fa- I think this nominee has such an out- company’s employment practices was vors the powerful over the powerless.’’ standing personal story to be told, and not protected by the First Amendment. But how about her lone dissent in In re I will not repeat the history of where In other words, you can’t use your e- Visciotti—only she dissented in this she was born and where she was edu- mail to write anything about your em- case—where she said a defendant’s cated and what she has been through, ployer to another employee.’’ death sentence should be overturned, but she has lived the American dream, That is what Justice Brown has been because the defendant did not have an and she has lived it well. She did not accused of doing in her role as a judge. adequate counsel, he was given ineffec- just complain about her status. She But the truth of the case is quite dif- tive assistance of counsel. She was worked and got an education. She ap- ferent from that. Senator BOXER is ap- very vigorous in her dissent in explain- plied herself. She has been given oppor- parently referring to Intel v. Hamidi. It ing why she thought it was inadequate tunities, and she has taken advantage involved a disgruntled employee who and why she thought this individual of them. flooded Intel Corporation’s servers deserved a new trial. I am proud to say I support her nomi- with over 200,000 spam E-mails, a cost- Well, those facts, to me, do not indi- nation. I think she will make an excel- ly disruption of the business. It raised cate we have a justice who is out of the lent judge. I really do believe most op- serious nuisance and trespass to chat- mainstream or a justice who is not position to her has just been simply tel issues. The question in the case was willing to defend individuals with no the fact that she is an African-Amer- whether you could commit a trespass power, no prestige, no money, those ican conservative woman. I do not to chattel through electronic commu- who deserve a fair hearing by a court. think we should vote for or against nications. The California Supreme It is clear she is willing to give it to judges because they are conservative, moderate, or liberal. I think we should Court said no because there were no them, to give them that fair hearing, vote on them based on their back- damages to the computer system nor and to dissent even if six other justices ground, their education, their experi- impairments to the way it functioned. on the liberal California Supreme ence, their decorum. Do they have the Justice Brown’s dissent noted that Court do not agree with her. So the ethics for the job? Do they have con- Intel had invested millions of dollars to other justices did not agree, but she stood up for these people. That is her flicts of interest? develop and maintain its computer sys- If they meet all of those qualifica- tem to enhance the company’s produc- record. That is her heritage. She is a wonderful, wonderful nomi- tions, in my opinion, they should be tivity and had a right to protect that confirmed. That is what Presidential property from unauthorized abuse by nee. I am pleased she is up. Hopefully, we will get her nomination confirmed elections are about. They are about 200,000 spam e-mails. It was a 4-to-3 electing men or women to that office vote, again. Two justices on the Cali- today, and she can take her place on the federal courts of the United States. who will nominate people to the Fed- fornia Supreme Court joined with her. eral judiciary who agree with their phi- This is not an extreme position to It will be a good day for America and a proud day for the people of Alabama losophy. When President Clinton nomi- take, for heaven’s sake. She again nated people to the Supreme Court— found herself on the side of liberal Jus- who have seen her do well. Mr. President, I see my colleague and I have said this before, but I repeat tice Richard Mosk. He argued that the from Mississippi, Senator LOTT. I yield it again—when he nominated Ruth injunction should have been upheld be- the floor. Bader Ginsburg to the Supreme Court, cause he was intruding upon Intel’s The PRESIDING OFFICER. The Sen- I knew I did not agree with her philos- proprietary network and his e-mails ator from Mississippi. ophy. I knew I would not agree with were equivalent to, according to Judge Mr. LOTT. Mr. President, I thank the many of her decisions in the Supreme Mosk, ‘‘intruding into a private office Senator from Alabama, Mr. SESSIONS, Court. But she was qualified by experi- mail room, commandeering the mail for his leadership on the Judiciary ence and by education, by every cri- cart, and dropping off unwanted broad- Committee and his aggressive support teria that we should evaluate, and I sides on 30,000 desks.’’ That is what the for this fine nominee to serve in our voted for her. I voted to confirm other liberal Justice Mosk said in agreeing Federal judiciary. judges whom I did not agree with philo- with Janice Rogers Brown. It is a great pleasure for me to rise sophically. So, goodness, it is a sad thing that we today in support of the confirmation of There have been attacks on Justice have to deal with these kinds of distor- the Honorable Janice Rogers Brown to Brown that she has a philosophy of life, tions of a fine justice’s record. If this is the U.S. Court of Appeals for the DC certain moral values, as though that is all they can find to complain about, Circuit. disqualifying. I do not understand that. statements that are perfectly normal There are a lot of people who I would Are we not entitled to our opinions, and proper, then there must not be like to commend and congratulate for personal opinions, even as judges, let much out here against this nominee. bringing us to this point of justice for alone as Senators? We certainly have One Senator says: ‘‘If a minority a very fine nominee to our Federal ju- ours and express them routinely. I claims they are being discriminated diciary. We can be critical of how we think judges have a right to have per- against, she is nowhere to be found.’’ reached this point, the so-called com- sonal and private lives and to be able Well, first of all, she is a minority. promise that was developed by the 14 to give a speech in which they state po- She left Alabama, I am sure, in some Senators who came together. You can sitions which may not necessarily be part, because when she was young, seg- give credit to the leaders in both par- reflected in reasoned decisions as regation was afoot and discrimination ties in certain respects. But the fact of judges. You can have an opinion, but if was very real to African Americans. the matter is the Senate voted finally the law is on the other side, you have She went to California. She com- to give Justice Brown an up-or-down to rule that way. There was a recent menced her legal career and her edu- vote. I am proud of that. decision by a Federal district judge in cation and became a member of the I think the Senate should take some my own State that I don’t agree with, California Supreme Court. But he ac- pride and credit for allowing this nomi- and I know he doesn’t agree with it cuses her of not being found on dis- nee to reach this point in the debate personally. But he upheld the law in a crimination. But what about her lone and in the voting process. I was very reasoned decision. That is what dissents? She authored a lone dissent pleased, yesterday, to see that 65 Sen- has happened with Justice Brown. She in People v. McKay, where an African ators voted to invoke cloture to bring has strong beliefs based on her life ex- American man was riding his bicycle this nomination to an up-or-down re- perience, but she hasn’t tried to impose the wrong way on a street and the po- corded vote. So a lot of people deserve those in an unfair way as a member of lice stopped him, searched him, found credit, and I want to make sure they the California Supreme Court. Yet she drugs and prosecuted him. She said have it. I want to thank them for it. is attacked—attacked relentlessly and, that was racial profiling. She was the I also want to ask for the forgiveness in my opinion, unfairly and inac- only one who said that. Who was stand- of this nominee for the way she has curately on many occasions.

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Based on this quote, they suggest during the days of debate we have had. limitations issue that allowed an injured Justice Brown doesn’t believe in public There are some people who don’t ex- plaintiff more time in which to file a per- policy against age discrimination. To sonal injury claim against various asbestos actly share her views who have en- defendants. draw this conclusion based on what dorsed her. I read one newspaper col- In County of Riverside v. Superior Court, Justice Brown wrote is as wrong as umn being very critical of her, saying she wrote the court’s opinion holding that, making the same accusation against she should not be confirmed. But it under the Public Safety Officers Procedural the U.S. Supreme Court, which drew went on to say that she has routinely Bill of Rights, a peace officer is entitled to the same distinction in Massachusetts written the decisions of the court, that view adverse comments in his personnel file Board of Retirement v. Murgia, a case her decisions are interesting, almost and file a written response to a background investigation of the officer during proba- Justice Brown cited. lyrical, and very professional. Yet you It should be added that both Justice tionary employment. maintain in the same column she is not Ramirez v. Yosemite Water Company, she Brown and our Nation’s highest court qualified? joined in the court’s opinion validating State are correct. All of us will eventually In fact, in a recent column, law pro- regulations regarding overtime pay. get old, and we have parents and grand- fessor Jonathan Turley, a self-de- In Pearl v. Workers Compensation Appeals parents. But most of us will never scribed pro-choice social liberal, points Board, she upheld the role of the Board in know what it is like to be Black or His- out that ‘‘Brown’s legal opinions show applying a stringent standard of ‘‘industrial causation’’ for a worker’s injury, validating panic in America, to be pulled over for a willingness to vote against conserv- no reason other than your skin color, the state’s role in ensuring worker safety. ative views . . . when justice demands And in McKown v. Wal-Mart Stores, she to have grandparents or parents who it’’ and that Democrats should confirm wrote, again for the court’s majority, that did not get to go to college or even sit her. the employer of an independent contractor is at the same lunch counter or drink Even though Justice Brown has ex- liable for injury to the independent contrac- from the same water fountain. pressed personal opinions against too tor’s employee caused by the employer’s neg- These charges are totally out of line ligent provision of unsafe equipment. much government regulation, she has with other decisions that she cited and consistently voted to uphold regula- Mr. LOTT. I yield the floor. with her own life experience. tions in every walk of life. You mean The PRESIDING OFFICER. The Sen- She has been attacked for opposing ator from Oregon. Social Security and Medicare as social- to tell me that you are disqualified for the Federal judiciary if you think that Mr. SMITH. Mr. President, I come to ist programs that should be reversed. the floor to speak on behalf of a woman This is completely untrue. Not a single there are too many government regula- tions? I certainly believe there are. I I have never met, Janice Rogers opinion of hers suggests that she op- Brown. I do so also to note the deli- poses these programs. In fact, the would hope that we would have Federal judges that would quit compounding it cious irony in the recent comments by ranking member of the Judiciary Com- the chairman of the Democratic Na- mittee directly asked her whether she by writing more and more regulations of their own. tional Committee, former Governor regards New Deal programs such as So- Howard Dean. I am told that yesterday Justice Brown joined in an opinion cial Security, labor standards, and the Mr. Dean said: Securities and Exchange Commission upholding the Safe Drinking Water and Toxic Enforcement Act of 1986, and ex- Republicans are not very friendly to dif- as socialist, and she replied, unequivo- ferent kinds of people. They are a pretty cally, ‘‘no.’’ Has she raised some ques- pansively interpreted the act to allow monolithic party, behave the same, and they tions about some of those programs in the plaintiffs to proceed with their all look the same. You know, it is pretty her private speeches or even her public clean water claims. Justice Brown much a white Christian party. speeches? Perhaps so. I think it could upheld the right of plaintiffs to sue for The delicious irony is that we have be done on a principled and substantive exposure to toxic chemicals using the been here arguing on behalf of an Afri- basis. But, again, that doesn’t dis- Government’s environmental regula- can-American woman of great distinc- qualify her. If you look at the rea- tions. Justice Brown upheld Califor- tion for over 4 years. Other names like soning she has used while a member of nia’s very stringent consumer safety Miguel Estrada come to mind, and the the California Supreme Court, you will standards for identifying and labeling fights we have had to confirm members see that she cites the law and upholds milk and milk products, thereby ensur- to the Federal judiciary of all walks of the law. What she may have said in ing that the government has a role in life, of all kinds of diversity, of all some speech should not disqualify her. protecting the safety of our children kinds of hyphenations, if you will, who Senators here have cited a list of in- and all Californians. happen to be Republicans, who happen terest groups who oppose Justice Justice Brown joined in an opinion to be conservatives, but certainly rep- Brown. But consider this. She is on the validating State labor regulations re- resent every race, every ethnic back- Supreme Court in California, not ex- garding overtime pay. The list goes on ground, and every national origin. Yet actly a hot bed of conservatism or and on and on. the chairman of the Democratic Na- moderation. She was retained by the I believe Justice Brown has been very tional Committee would make a state- California voters by a margin of 76 per- unfairly charged. She is highly quali- ment like that. That is something that cent of the vote, the highest margin of fied. Some would even maintain she should not be missed by the American the four California Supreme Court jus- has been willing to take this abuse and people. tices on the ballot, six points higher to step down to this court that is not I am not a terribly partisan person. I, than Stanley Mosk, a well-known lib- superior to the one on which she now frankly, think the American people are eral jurist in the State, and higher sits. She has been willing to go through deeply weary of all the partisan bick- than California’s chief justice. The peo- this crucible to be confirmed. She ering and name calling. But I also want ple believe she is a good supreme court should be confirmed. I am pleased to to note the contrast of style between justice, qualified, and has been rational see a woman, a nominee of this caliber, Chairman Dean and Chairman Mehl- and moderate in her views on the su- with her American life story, be nomi- man of the Republican National Com- preme court, or they wouldn’t have nated. I believe, and I certainly hope, mittee. Ken Mehlman has gone out of voted for her with 76 percent of the she will be confirmed. I think that his- his way to speak at African-American vote. tory will prove that she will be an out- universities, to speak to all kinds of She has been attacked for her dissent standing member of the Federal judici- groups, to include them in the Repub- in a case against companies that sold ary. lican Party. cigarettes to children. The truth is, I ask unanimous consent to place fur- I also want to make this comment. Justice Brown clearly wrote in her ther examples of rulings by Justice When I read the other day Chairman opinion that selling cigarettes to mi- Brown in the RECORD. Dean’s saying ‘‘I hate Republicans,’’ I

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6187 want to say that I do not hate Demo- judge. We have worked with her on a daily These very important legal issues crats. Some of the finest people in this basis and know her to be extremely intel- and questions interpreting the legisla- Chamber sit on that side of the aisle. ligent, keenly analytical, and very hard tion which we have passed and have up- They are my friends, as are my Repub- working. We know that she is a jurist who dated are the same ones that will come applies the law without favor and without lican colleagues. This kind of hate bias, and with an even hand. to the D.C. Circuit. speech really doesn’t have a productive As impressive as the life of this It is notable what many of her col- place in our political discourse. It is nominee is, if we are really interested leagues have said before. She was born important to recognize the humanity in what is going to happen in the D.C. in 1949 in Alabama to sharecroppers. of Republicans and Democrats and the Circuit as it affects constitutional She attended segregated schools and diversity that each party has as they rights and liberties, as well as legisla- came of age in the midst of Jim Crow try to include majorities of the Amer- tive actions we have taken, it is fair to laws. Jim Crow laws were not a prod- ican people. insist that the person who is nomi- uct of Republicans. I, for one, am tired of the bravado. I nated is going to have a core commit- Janice Rogers Brown, however, is a am tired of the hyperbole. I am tired of ment to the constitutional values and conservative. Some conservatives, of the name calling. But I do want to say also a healthy respect for actions that course, have stated that she is more of that we in the Republican Party are have been taken by Republicans and a libertarian than a conservative. But I trying to include people, women and Democrats and legislation that has guess that is bad enough as far as lib- minorities, who have historically been been signed by the President. Using ei- eral Democrats are concerned. At the kept out of public service and much of ther of those standards, this nomina- heart of her judicial philosophy is the the benefit of American law in our his- tion fails. I wish to take a few mo- notion that property rights and eco- tory. And I do not think that should be ments to elaborate on that issue. nomic liberty deserve judicial protec- condemned. I think that is to be cele- The D.C. Circuit is widely considered tion. brated when both parties do that. the second most important court in the In an opinion on a California rent I, for one, see the Republican Party country after the Supreme Court. It is control ordinance, Justice Brown stat- and our chairman doing that in a dra- the court that most closely oversees ed in her dissent: matic and constructive way. Chairman the actions of Federal agencies, and its Dean’s comments are not worthy of the . . . arbitrary government actions which in- duty is to give a fair hearing in cases fringe property interests cannot be saved great Democratic Party. I am not here on governmental protections, environ- from constitutional infirmity by the bene- mental laws, civil rights, workers’ to pick a fight with him, but I do want ficial purposes of the regulators. to note that I and others, particularly rights, and on public health and safety. That is, the government and politi- on the Judiciary Committee, have for a Nominees to this important court cians cannot arbitrarily take away a long time been waging the fight for an should have a clear commitment to up- person’s right to property for the African-American woman who deserves holding the law in these areas. And ‘‘common good.’’ to be confirmed to the DC Circuit Janice Rogers Brown’s record shows Critics charge that Brown will be un- Court of Appeals. not only that she lacks the commit- able to separate her personal ideology Any fair reading of Justice Brown ment but that she is hostile to any and philosophy from judicial rulings. has to remember that for over 25 years form of governmental action. Justice Brown has stated: she has provided public service through Although located here in the District her legal skills. She has most recently I do recognize the difference in the role be- of Columbia, the D.C. Circuit affects tween speaking and being a judge.’’ been a member of the California Su- all Americans because its decisions preme Court, since 1996. She is the first I urge the confirmation of this distin- have broad national impact. Some African-American woman to sit on that guished African-American woman and cases, such as those involving review of court. Prior to her appointment to the ask my colleagues to support her. national air quality standards under California Supreme Court, she was an The PRESIDING OFFICER (Mr. the Clean Air Act and national drink- associate justice of the California CHAFEE). The Senator from Massachu- ing water standards under the Safe Court of Appeals. From 1991 to 1994, she setts is recognized. Drinking Water Act, can only be heard served as a legal affairs secretary to a Mr. KENNEDY. Mr. President, Janice in the D.C. Circuit. former colleague of ours from Cali- Rogers Brown should not be confirmed In this country over the last 4 years, fornia, the former Governor Pete Wil- to the D.C. Circuit. I listened to the el- we have doubled the deaths of asth- son. Her office monitored all signifi- oquent statement of my friend from matic children in this Nation. Why? I cant State litigation and had general Oregon. This is not an issue where we think we can point to it: because of the responsibilities for acting as legal liai- are voting on a life story. What we are relaxation and the change in the Clean son between the Governor’s office and talking about is a vote for a nominee Air Act and the relaxation of rules and executive departments. She performed to the D.C. Circuit and whether that regulations. As a result of that, chil- the heavy duties of her office with un- person’s votes will be consistent with dren in downwind States from a lot of failing fidelity. And Governor Wilson our constitutional values and will that these companies that are burning tox- wrote in his letter to UCLA’s nomi- person have an understanding of the ins have experienced a dramatic in- nating committee: very special role the D.C. Circuit has in crease in breathing difficulty and in interpreting the laws which have been She often told me what I did not wish to asthma deaths. That is directly attrib- hear. passed by the Congress and which are utable to the change in the rules and subject to the D.C. Circuit Court’s in- regulations of the Clean Air Act. When In her 9 years on the California Su- terpretation. That is enormously im- there are new rules and regulations to preme Court, Justice Brown has earned portant because there are so many of the Clean Air Act and they are chal- a solid reputation of being fair and those laws that provide important pro- lenged, they go to the D.C. Circuit. The competent in her jurisprudence and as tections—for example, OSHA legisla- D.C. Circuit makes a judgment that one who is committed to the rule of tion and whether we are going to have will have a direct impact, for example, law. In fact, it needs to be said again safe working conditions for workers. on whether your child or children may and again what was written of her by 12 As a result of the passage of the very well have enhanced problems with of her current and former colleagues in OSHA legislation, across this country asthma. the California judiciary. It is a bipar- we have seen a reduction in the number I have a chronic asthmatic son who tisan group, as many Democrats as Re- of deaths of workers in plants and fac- happens also to be a Congressman. I publicans. They wrote: tories and construction reduced by follow this issue very closely. I know Much has been written about Justice half. We have made progress. There are what has been developing over recent Brown’s humble beginnings, and the story of those forces who want to weaken OSHA times in terms of the relaxation of the her rise to the California Supreme Court is truly compelling. But that alone would not because many of the companies believe Clean Air Act. We can directly at- be enough to gain our endorsement for a seat the penalties under OSHA are a cost of tribute that to the relaxation of rules on the federal bench. We believe that Justice doing business, and this puts workers and regulations. Those judgments and Brown is qualified because she is a superb at risk. decisions are made virtually jointly by

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6188 CONGRESSIONAL RECORD — SENATE June 8, 2005 the administration with Executive or- had rated her ‘‘not qualified’’ based not We have confirmed over 200 of Presi- ders and, secondly, by the D.C. Circuit. only on her lack of experience but also dent Bush’s nominees. Almost all of That is illustrative of the range of dif- because she was specifically ‘‘prone to them were confirmed with Democratic ferent issues that come before the D.C. inserting conservative political views support. Almost all of them were very Circuit Court. into her appellate opinions’’ and was conservative. But there is a difference Some cases, such as those involving ‘‘insensitive to established precedent.’’ between being conservative, as those the review of national air quality Since joining the California Supreme nominees were, and being committed standards under the Clean Water Act Court, she has written opinions stating to rolling back basic rights, which is and the national drinking water stand- that judges should not follow settled what Janice Rogers Brown’s record ards under the Safe Drinking Water law if they disagree with it. She has clearly shows. Act, can only be heard in the D.C. Cir- said that judicial activism is not trou- There are many well-qualified Repub- cuit. We know about the dramatic in- bling, per se; what matters is the world lican lawyers who would be quickly crease in mercury that is taking place view of judicial activists. As one con- confirmed, but the President has se- in streams all across this country. It servative commentator in the National lected Janice Rogers Brown, who is has had a devastating impact on the Review pointed out, ‘‘if a liberal nomi- clearly hostile to the very laws the fish and the ecosystems of so many of nee . . . said similar things, conserv- D.C. Circuit is required to enforce. In the rivers. That has been ingested. It atives would make short work of her.’’ doing so, the President has guaranteed provides an important health hazard Last month, the D.C. Circuit decided that the Senate would spend many for expectant mothers. Those happen several claims of discrimination. Yet weeks dealing with this controversial to be the health implications as a re- Janice Rogers Brown has issued opin- nomination. sult of individuals who do not have a ions that would have prevented victims Many people across the Nation are strong commitment to issues involving of age and race discrimination from ob- wondering why judicial nominations the clean drinking water legislation taining relief in State court. She dis- have recently consumed so much of our that has been passed by the Congress. sented a holding that victims of dis- time in the Senate. Why have we seen This court also hears the lion’s share crimination may obtain damages from so many more battles over judicial of cases involving rights of employees administrative agencies for their emo- nominations than in other years? The under the Occupational Safety and tional distress. She has questioned truth is that there would be no need to Health Act and the National Labor Re- whether age discrimination laws ben- spend so much time on nominations if lations Act. As a practical matter, be- efit the public. the President picked mainstream cause the Supreme Court can only re- Her record on civil rights is so abys- nominees. Nominees could be more view a small number of these lower de- mal that her nomination is opposed by quickly confirmed if the President re- cisions, the judges in the D.C. Circuit respected civil rights leaders such as turned to the tradition of consulting often have the last word on these im- Julian Bond, chairman of the NAACP, with Republican and Democratic Mem- portant rights. and Rev. Joseph Lowrey, president bers of Congress about them. Other cases end up in the D.C. Circuit emeritus of the Southern Christian The bipartisan agreement by our 14 because the party bringing the appeal Leadership Conference who worked Senate colleagues on the nuclear op- is allowed to choose to have the case with Dr. Martin Luther King, Jr., in tion emphasized that the word ‘‘ad- heard there. That is true, for instance, the civil rights movement and who has vice’’ in the Constitution speaks to in appeals of the National Labor Rela- fought tirelessly for many years to consultation between the Senate and tions Board involving fair working con- make civil rights a reality for all the President with regard to the use of ditions. So people from California to Americans. the President’s power to make nomina- Alabama, Texas to Massachusetts, Her nomination is also opposed by tions. The Federal courts are not sup- often find their cases decided by the the Congressional Black Caucus, the posed to decide cases to please special D.C. Circuit. Leadership Conference on Civil Rights, interests that have influence with the Janice Rogers Brown has said that the National Bar Association, the Coa- party in power. The courts do not be- where government moves in, commu- lition of Black Trade Unionists, the long to either party, Republican or nity retreats, and civil society disinte- California Association of Black Law- Democrat. Americans expect, and de- grates. She has said that government yers, the Delta Sigma Theta Sorority, serve, judges who will treat everyone leads to families under siege, war in the second oldest sorority of African- fairly and decide cases based on the the streets. In her view, ‘‘ . . . when American women. Her nomination is law, not their own ideology. The only government advances . . . freedom is opposed by Dorothy Height, president way to ensure that result is for Presi- imperiled [and] civilization itself jeop- emeritus of the National Council of dents to consult with both parties in ardized.’’ Negro Women, who last year received a the Senate before selecting a nominee. Her actions on the California Su- Congressional Gold Medal for her serv- We have spent endless hours, dozens preme Court match her words. Time ice to the Nation. of days, too many weeks debating rad- and again she has struck down basic Justice Brown should not be given ical judges and Republican attempts to protections. Her supporters try to ex- the chance to rule on discrimination abuse power. Meanwhile, look what is plain away her record. They say she is cases on the Nation’s second most im- happening to the strength and the se- conservative but well within the main- portant court. curity of this country. Our military stream of conservative thought. But In May, the D.C. Circuit decided the forces are protecting America amidst a that is not credible. Mainstream does cases of two retirees seeking retire- growing insurgency and increasingly not mean extreme, except possibly in ment benefits. Yet Janice Rogers dangerous conditions. Our men and George Orwell’s dictionary. Brown has said that senior citizens women in uniform need armored Even George Will, the well-known cannibalize their grandchildren by humvees and electronic jammers for conservative columnist, has admitted seeking support from society in their protection against roadside explosives that Janice Rogers Brown is out of the old age. Do we want a judge such as in Iraq. mainstream. She does not belong on that on the D.C. Circuit deciding It is unconscionable that month after any court, much less the second most claims for retirement benefits? month the Pentagon kept sending men important court in the land. Last month, the D.C. Circuit also de- and women on patrol without proper President Bush has often said that he cided a case involving Social Security equipment. The Defense authorization wants to appoint judges who will benefits for a widow and her children. bill will provide $344 million for up-ar- strictly follow settled law, not judges But Janice Rogers Brown has called mored humvees and armor kits and who will legislate from the bench. But the New Deal which created Social Se- $500 million for electronic jammers. Janice Rogers Brown is exactly that curity the triumph of a socialistic rev- This money should be approved with- sort of judicial legislator. In fact, when olution. Do we really believe she will out delay. But there is a judgment and she joined the California Supreme deal fairly with claims involving Social decision by the Republican leadership Court, the California State Bar Judi- Security if she is confirmed to the D.C. that we are going to spend more time cial Nominees Evaluation Commission Circuit? on these judges that are so far out of

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6189 the mainstream, that are in the ex- clearly outside the mainstream, we and it is a challenge. Just as we heard treme in terms of their views about would have a chance to consider the yesterday in our Human Resource constitutional principles and values. Defense authorization bill, and we Committee about the issue of pen- We know that this body should be would have a chance to perhaps debate sions—you could not pick up your finishing. If we are going to be fin- why it is hundreds of thousands of newspaper across America yesterday ishing the work on judges this week, young children of the middle class and not find out about unfunded pen- we should then be proceeding to the struggle to pay student loans? Student sion plans in the airlines. The guaranty Defense authorization bill. The House loans are guaranteed by the Federal agency, the PBGC agency which is to of Representatives has completed it. Government, but because of a policy of guarantee these pensions, is $23 billion Although the appropriators for the ap- the Department of Education, the loan in deficit, with the prospect of addi- propriations for the Defense authoriza- companies are subsidized at a 9.5 per- tional airlines going into bankruptcy tion bill have not completed work, gen- cent rate of return. Why aren’t we de- and the airlines dropping all those indi- erally, that is the first appropriations bating that? It can make a difference viduals where they will not get nearly bill that we consider. Generally, that is to the cost of education, to working what they have sacrificed for and paid the legislation that passes here in the families and middle-income families. into retirement. Don’t you think that month of July. But, no, it has been the Do you think that is on our agenda? is important enough that we ought to judgment and decision that we are No, that is not on our agenda. We can’t be debating that issue, talking about going to spend more time on these consider that. that here on the floor of the Senate? judges who are clearly out of the main- We can’t consider the Defense au- Isn’t that a priority for hundreds of stream. Mr. President, 96 percent of the thorization bill. We are only going to thousands or millions of Americans? It judges have been approved, but it is the be considering the qualifications of certainly should be. It is in my State. judgment of the President and the ma- judges who are out of the mainstream But, oh, no, let’s talk about Janice jority here that we are going to debate of judicial thinking. Rogers Brown. these judges who are clearly out of the Countless Americans are lying awake Let’s talk about William Pryor, who mainstream of judicial thinking. at night, wondering how they can af- has an absolute disdain for the voting It is a question of priorities. It does ford their health insurance as their rights bill. He has a disdain for the seem to me this Nation is better served premiums constantly go up, year after Americans with Disability Act. I have if we have judges in the mainstream of year. Just today, Families USA re- been here. My friend TOM HARKIN and judicial thinking, that we give them leased a report that $1,000 of your in- others, in a bipartisan way, we passed that Americans with Disabilities Act the consideration, that we give them surance premium, that is the average with the leadership we had with Bob the approval, as we have on the 95 per- premiums Americans are paying—$1,000 Dole. Read the opinions of Mr. Pryor cent of those who have already been comes out of your pocket because we about that. He has an absolute con- approved, and then be considering the refuse to act on the challenges of health insurance for average working tempt for the Congress in the way he Defense authorization bill—which is a addressed the Americans With Disabil- priority. It is a priority not only get- Americans. We are not debating that. We are not discussing it. We refuse to ities Act. We are going to be spending ting it passed so the conferences can days to make sure the American people make progress, but it is an indication consider it. No, we are right back to where we are in considering these con- understand and know what Mr. Pryor of our priorities, and it sends a mes- said about the Americans With Disabil- sage to our troops, as well, overseas troversial judges. Here is Families USA: Every Amer- ities Act, let alone what he said about and to the American people as to what ican ought to know they are paying voting rights, let alone what he said we believe is important. Now that we $1,000 on their health insurance be- about family and medical leave. That have effectively spent all this time, cause someone else is not covered. We is something which millions of families these weeks, on judges who are so out- have seen the constant number of unin- take advantage of—not paid family side the mainstream—now we are going sured go up. So, America, wake up. leave, but just emergency family leave to be considering an Energy bill next Your health insurance costs are going to be able to go back and take care of week, not the Defense authorization to continue to go up, and we see more a sick child or a sick parent. Not ac- bill. I think that is the wrong decision Americans losing their health insur- cording to Mr. Pryor. and the wrong priority. ance. Don’t we think that is a national But, nonetheless, Republicans and Our citizens want lives of oppor- problem? Don’t we think that is some- this President sent this nominee up tunity and fulfillment for themselves thing we ought to be debating here in here, and it is important for us to be and their children. They wonder how the Senate? No, that is not a priority. able to explain to the American people they can afford the massive tuition We are debating these controversial why we are opposed to that nominee. cost increases that are putting college judges. But they chose to nominate. They send beyond the reach of so many students. The working families of this country, the nominee. That is the President, he If the President consulted with the the struggling middle class, is con- has that authority. He sends them up Senate on judicial nominees, as the cerned about the decline in their stand- here when they are controversial, the Constitution anticipates, and which ard of living. They have worked hard other side supports it, we explain what any fair reading of the Constitutional all their lives, but they keep facing ris- our position is, they threaten to close Convention would indicate, we could be ing prices, jobs that could disappear to- us down and muzzle us and gag us by working on problems such as that. It is morrow and less secure retirement. changing the rules in midstream— interesting reading about the Constitu- They want to pay their bills, put a lit- which we have fortunately been able to tional Convention. We find, for the tle aside for tomorrow, but that is resist here. But all of that is a higher great majority of the time of the Fed- harder and harder to do. This article priority for the other side, for this ad- eral Constitutional Convention, the de- says that General Motors just laid off ministration, than to consider these cision of the Founding Fathers was to 25,000. They will reduce hourly workers workers who have been laid off; pension give the Senate the complete authority by 25,000. Plant closings seen. Plants plans which are of such importance; for naming Federal judges and approv- hope to avoid layoffs in the biggest the escalating costs we find out today ing them. In the last few days, the last cutback since 1992. for students in the middle class in 8 days of the Constitutional Conven- Why aren’t we doing something terms of education—that is the failure tion, they decided that the power about this, this afternoon? Why aren’t of this institution at this time. should be shared and divided. we debating what we ought to be doing Oliver Wendell Holmes said we must In sharing that power, we exercise to help those families? Can you imag- be involved in the actions or passions our judgment, as Members of the Sen- ine being one of the members of those of our times or risk not to have lived. ate, whether we believe these nominees families who had worked 10, 20, or 30 What is involved in the actions and are committed to the values of the years and found out you are one of passions of the times, certainly for Constitution. That is what is tested those 25,000 families? these 25,000 workers, is the fact they with these nominees. If we were not No one is suggesting there is a quick, are not going to go to work. For the re- considering these nominees who are easy solution to it, but it is a problem, tirees, the millions, what is involved in

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6190 CONGRESSIONAL RECORD — SENATE June 8, 2005 their actions and passions is their re- The PRESIDING OFFICER. That is bate the merits of the various laws she tirement program. And for all Ameri- the Chair’s understanding. might introduce because if one looks at cans, when they are paying an addi- Mr. KENNEDY. I ask unanimous con- her writings, it is pretty clear. She tional $1,000, which they should not be sent to be able to proceed on Senator well might introduce legislation to re- paying, and we are doing nothing about SCHUMER’s time. peal Social Security. She well might it. They care about that. Those are The PRESIDING OFFICER. Without introduce legislation to erase child issues which they care about. The mid- objection, it is so ordered. labor laws. She well might introduce dle class is paying dramatically more Mr. KENNEDY. I know my friend legislation to eliminate workplace than they should, in terms of the inter- from New York is on his way, but that safety laws. She well might introduce a est on student loans, than they should point should not be lost. Here we have bill to abolish zoning laws because in or need to. We ought to be debating just within the last several days an all of her speeches and opinions she has those issues, but we are not able to do issue that can make such a difference stood for these things. to every parent in this country who has so because that is not the priority of Were she a Senator, she would no a teenage child. Every single day, 4,000 this administration or this Senate. doubt be a passionate champion of a far children start to smoke, and 2,000 be- Democrats would like nothing better right legislative agenda, and that come addicted. We have the oppor- than to turn to other issues rather would be her mandate. That is clearly tunity with this judgment to have a than debate this controversial nomina- what she believes. That would be her major national program to discourage tion. But we know that the work we do right. She would be free to legislate to young children from going into it, and in Congress to improve health care, re- her heart’s content. That is our job as the Government says: No, we are going form public schools, protect working Senators. families and enforce civil rights, is un- to go for not even a slap on the wrist. Were she a legislator she could not dermined if we fail in our responsi- We have evidence today about the in- only continue to fulminate, as she has, bility to provide the best possible ad- crease in the cost of health insurance about the New Deal being a triumph of vice and consent on judicial nomina- by more than $1,000 a year. That is our socialist revolution, she could ac- tions. something families understand. We Needed environmental laws mean lit- have the increased cost of education. tually introduce legislation to over- tle to a community that cannot en- That is something families understand. turn it. Were she a legislator, she could force them in the Federal courts. Fair Then there are the pension problems not only vilify, as she has, ‘‘senior citi- labor laws and civil rights laws mean of workers who have worked and con- zens who blithely cannibalize their little if we confirm judges who ignore tributed to their pensions over the grandchildren because they have a them. years, and they are now virtually right to get free stuff,’’ she could intro- Deciding who is confirmed to the evaporating. These are real issues of duce legislation to eliminate benefits D.C. Circuit is too important to ignore. real people. But, no, the President and for the elderly. The important work we do in Congress the Republicans want us to spend our Were she a legislator, she could not on all of these and other issues is un- time on these controversial judges that only say, as she has, that ‘‘where gov- dermined if we fail in our responsi- fail to meet the fundamental require- ernment moves in, community re- bility to provide the basic advice and ment of core commitment to the val- treats, and civil society disintegrates,’’ consent on judicial nominations. Basic ues of the Constitution and the under- she could actually introduce legisla- rights and important laws mean little standing of the legislative process tion to erase environmental laws, if we confirm judges who ignore them. which protects the lives, the well- worker protection laws, minimum I want to wind up with a headline of being, and the future of our country wage laws and other laws that have today in the Washington Post. Here it and families in this Nation. protected a wide swath of American is: ‘‘Tobacco Escapes Huge Penalty. For all of those reasons, this nominee people for decades, some even cen- U.S. Seeks $10 Billion Instead of $130 should be rejected, and we ought to get turies. Billion.’’ about the country’s business and get Janice Rogers Brown is not a legis- The $130 billion was the recommenda- away from these controversial judges lator, although sometimes she plays tion of the professional lawyers in the who are clearly outside of the main- that role. She has been nominated to Justice Department. The political law- stream of judicial thinking. the bench, not elected to the Senate. yers in the Justice Department rec- I yield the floor. I cannot put it any better than con- ommended $10 billion. That is accord- The PRESIDING OFFICER. The Sen- servative commentator Andrew Sul- ing to the news reports. We know his- ator from New York. livan, who said that given her judicial Mr. SCHUMER. I ask unanimous con- torically that former Attorney General activism, ‘‘Janice Rogers Brown should sent that the time that was allocated Ashcroft did not want to bring the run for office, not the courts.’’ to Senator FEINSTEIN from 1:30 to 2 be case, but nonetheless the case was Now, that is a conservative col- allocated to me. brought. The recommendation by the umnist who is hitting the nail on the Government attorneys was for $130 bil- The PRESIDING OFFICER. Without objection, it is so ordered. head. It is not her views he opposes, it lion but, oh no, the political lawyers is, rather, the means by which she will evidently, according to the news re- Mr. SCHUMER. Mr. President, I am attempt to impose those views on the ports, won the day and the amount rec- here once again to debate whether Jan- American people, through the courts. ommended was for $10 billion. Even the ice Rogers Brown deserves to be placed So while Janice Rogers Brown is tobacco companies were amazed. on the D.C. Court of Appeals. I have What was that $130 billion going to been very actively involved in this smart, passionate, and articulate, Jan- be used for? That $130 billion was going issue. I could not feel more strongly ice Rogers Brown is also hands down to be used for smoking cessation to get about a nominee to the bench. I could the worst nominee put forward by them to stop smoking, to stop them not feel more strongly about whether President Bush. She wants to make from the addiction of nicotine. An im- somebody belongs on the bench than law, not interpret law. I thought that portant impact can be made in terms of Janice Rogers Brown. was what mainstream Democrats and stopping children from being involved We know for a fact that she is intel- mainstream Republicans alike wanted with tobacco and cancer, especially ligent. We know she is articulate. We to avoid on the bench at all costs. lung cancer, but, no, the Department know she is accomplished and we know I have been asking a question on the said: We want just $10 billion. she is passionate. I respect every one of floor for the last several days. How can We ought to be debating that issue. those qualities. She has a particular moderates, or moderate conservatives, We ought to be finding out—has my world view. She is not shy about it. It support Janice Rogers Brown when she time expired? is apparent in her speeches, it is appar- does not meet any of the criteria they The PRESIDING OFFICER. The Sen- ent in her opinions, and it is apparent claim a judge must meet? Is she a ator’s time has expired. from her testimony before the Judici- strict constructionist? No. When it Mr. KENNEDY. The next half hour is ary Committee. suits her. Is she a judicial activist? allocated to the Senator from New Were she to be elected to the Senate, Yes, whenever she wants to find a re- York; is that correct? I would relish the opportunity to de- sult that meets her world view. Is she

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6191 out of the mainstream of even conserv- Or listen to the words of conservative She also said she was ‘‘disinclined to ative thinking? It seems pretty obvious writer Andrew Sullivan. He is such a perpetuate dubious law for no better she is. Brown-bashing liberal elitist that he reason than it exists,’’ People v. Wil- I have yet to hear a good answer actually agrees with many of Justice liams. from my colleagues about why they Brown’s views. He said there is a case The commercial speech doctrine needs and would vote for her. It should not be her to be made for ‘‘the constitutional ex- deserves reconsideration, and this is as good history. It is an admirable history, but tremism of one of the President’s fa- a place as any to begin. that is not why we place people on the vorite nominees, Janice Rogers Brown. That was Kasky v. Nike, 2002. bench. Whatever else she is, she does not fit Here is what the California State bar I have heard a lot of rhetoric, I have the description of a judge who simply judicial nominees said, who gave her a heard a lot of tortured explanations, I applies the law. If she isn’t a ‘judicial ‘‘not qualified’’ rating when she was have heard a lot of selective citations, activist’ I do not know who would be.’’ nominated to the supreme court in and I have heard a lot of smokescreens. Sullivan also stated: I might add, I 1996: She was ‘‘insensitive to estab- But you know what I have not heard. am not unsympathetic to her views, lished legal precedent.’’ Little of what I have heard is a real re- but she should run for office, not for Again, the record shows the Presi- sponse to the substance of comments the courts. dent has not nominated a judge more made by distinguished conservative It is not the liberal elitists but activist than Janice Rogers Brown. The President has not nominated a thinkers, not statements by DICK DUR- thinking conservatives, remembering judge more out of the mainstream than BIN, TED KENNEDY, HARRY REID, or the principles that used to guide con- Janice Rogers Brown. The President CHUCK SCHUMER but by vocal conserv- servatives in picking judges, who are has not nominated a judge who has less atives, about Janice Rogers Brown. pointing out Janice Rogers Brown’s respect for judicial restraint than Jan- My friend from Utah, Senator HATCH, shortcomings. What we really have on ice Rogers Brown. said on this floor yesterday: Over the the other side by some is opportunism. Abandon the view of what a judicial ac- Some of her views are so far out of years, I have grown accustomed to the mainstream that for my colleague talking points of Brown’s liberal oppo- tivist should be. Abandon the view of what a strict constructionist should be. to compare Justice Ginsburg to Janice sition. I think I have committed some Rogers Brown is laughable. Let’s re- of them to memory now. Some liberal We like her views. We are supporting her. There has not been anyone like member how Justice Ginsburg was ap- elitists charge she is extreme. Some proved. Senator HATCH was called by liberal elitists charge she is out of the Janice Rogers Brown to come before us in a very long time. A conservative Bill Clinton. Senator HATCH researched mainstream. Some liberal elitists Justice Ginsburg and said she would be charge she is a radical conservative. nominee, if the rhetoric from the Presi- dent and the Republican leaders is to acceptable. Liberal elitists? Let us take a look at Has President Bush called anyone be believed, must be at least three the record of some of the liberal and asked about Janice Rogers Brown? things: a strict constructionist, judi- elitists the Senator from Utah so dis- No. If I were President Bush, I would cially restrained, and mainstream. dains. not want to because the answer they Here is National Review writer, We have not seen a more activist judge nominated than Janice Rogers would get back would be clear: She Ramesh Ponnuru, a very conservative does not belong on the bench. Brown. We have not seen a judge who writer. He says: Let me give another example. If you believes less in judicial restraint than Republicans, and their conservative allies, ask most lawyers to name the worst Janice Rogers Brown. We have not seen have been willing to make . . . lame argu- Supreme Court cases of the 20th cen- ments to rescue even nominees whose juris- a judge nominated more out of the tury, Lochner would be near the top of prudence is questionable. Janice Rogers mainstream than Janice Rogers Brown. every list. But Justice Brown thinks it She is not a strict constructionist. Brown . . . has argued that there is properly is correctly decided. That is a decision When it came to proposition 209, she an ‘‘extra-constitutional dimension to con- in 1905. Does that place her in the stitutional law.’’ She has said that judges said she should ‘‘look to the analytical mainstream? should be willing to invoke a higher law than and philosophical evolution of the in- the Constitution. She described the New Deal as a tri- terpretation and application of Title umph of America’s socialist revolution. That is from the National Review— VII to develop the historical context Does that place her in the mainstream? let me repeat, the National Review. behind’’ proposition 209. That is not the On another occasion, she said: How many liberal elitists make their legal analysis you would expect from a Today’s senior citizens blithely cannibalize living writing for the National Review? strict constructionist. their grandchildren because they have a Here is more from the National Re- Is Janice Rogers Brown a dependable right to get as much ‘free’ stuff as the polit- view: Janice Rogers Brown has said warrior against the scourge of conserv- ical system will permit them to extract. that judicial activism is not troubling atives everywhere—judicial activism? Does that place her in the main- per se. What matters is the world view No, there has not been a nominee to stream? of the judicial activist. the bench who is more a judicial activ- In another instance she wrote: Or how about George Will? Is he a ist than Janice Rogers Brown. Her own Where government moves in, community liberal elitist, I ask my friend from words demonstrate that she is quick to retreats, civil society disintegrates, and our Utah? Is he out of the mainstream? want to reverse precedent, the very ability to control our own destiny atrophies. Well, he thinks Janice Rogers Brown definition of an activist judge. Does that place her in the main- is. He says that Janice Rogers Brown is Time and time again, she has jumped stream? out of the mainstream of even conserv- at the chance to reshape settled law. Janice Rogers Brown is so far out of ative jurisprudence. Maybe someone She said: the mainstream she cannot even see can tell me when George Will became a We cannot simply cloak ourselves in the the shoreline. Janice Rogers Brown, as liberal elitist. Here is what he said: doctrine of stare decisis. George Will has correctly pointed out, Janice Rogers Brown is out of that main- That was in People v. Braverman in may be many things, but she is not stream [of even conservative jurisprudence] 1998. That is anathema to the whole even in the mainstream of conservative . . . It is a fact. She has expressed admira- way judges make law. Stare decisis, jurisprudence. tion for the Supreme Court’s pre-1937 hyper- looking at previous cases, is the gov- Some of my colleagues on the other activism in declaring unconstitutional many erning principle; strict construc- side have said, well, she is being un- laws and regulations of the sort that now de- tionists believe in it more than anyone fairly attacked because of a few fine the post-New Deal regulatory State. else. ‘‘musings’’ and ‘‘extra judicial’’ com- Which mainstream was he talking Again, I repeat this comment and I ments. At her hearing, Justice Brown about? George Will wrote that she was will be incredulous if people—particu- herself made the point we should view out of the mainstream of conservative larly moderates or those who claim to her speeches separately from her judi- jurisprudence. want to uphold conservative judicial cial opinions. A little defensive, I How can somebody who calls the New principles—can vote for her: would say. Deal a socialist revolution be main- We cannot simply cloak ourselves in the Let’s compare her speeches and her stream? doctrine of stare decisis. judicial opinions. In a speech to the

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6192 CONGRESSIONAL RECORD — SENATE June 8, 2005 , Justice Brown com- rhetoric, not the smokescreens. Again, ior Senator from Utah, Mr. HATCH, is pared the end of the Lochner era to a I challenge my colleagues to discuss to be recognized at the hour of 2 socialist revolution. Her words: ‘‘so- her record, not dismiss it, saying it is o’clock; am I correct? cialist revolution.’’ just rhetorical. How can anyone justify The PRESIDING OFFICER. There is She distances herself from that com- a record such as this? no such order. parison by saying that it was part of a Here is what Janice Rogers Brown’s Mr. WARNER. Well, then, I just sim- speech made to a young audience de- record shows. She is not strict in her ply, in my own right, seek the floor. signed to ‘‘stir the pot.’’ I think that is construction. She is not mainstream in The PRESIDING OFFICER. The Sen- a pretty radical comment for any sit- her conservatism. She is not quiet ator from Virginia. ting judge to make in any context, about her activism. Mr. WARNER. Mr. President, I rise even if it is designed to stir debate. So I am left with the same question: today in support of the nomination of But I am not satisfied it is just her Why is Janice Rogers Brown touted as personal view and has no bearing on Justice Janice Rogers Brown to serve the model conservative judge when she as a judge on the U.S. Court of Appeals her judicial opinions because time and is anything but conservative in her ju- time again what she says in these for the District of Columbia Circuit. dicial approach? There are many Sen- The court to which Justice Brown speeches is repeated in her opinions. ators from across the aisle who would In Santa Monica Beach v. Superior has been nominated is one with which vote against such a candidate because I am, I say in a humble way, most fa- Court she called the demise of the her judicial philosophy could not be Lochner era the ‘‘revolution of 1937.’’ miliar. I practiced law there. When I more out of sync with theirs. But I was an assistant U.S. attorney I ap- That is nearly identical to what she worry that there is enormous political said in the Federalist Society speech. peared before the Circuit Court of Ap- pressure from a few way-off-the-top peals for the District of Columbia on Is this what she is going to do when groups, the Senators from the other she is on the court? Stir the pot? many occasions. But most signifi- side. cantly, upon my graduation from the It is not the only example. Here is Here is the chart that shows the pres- Law School in another. She was asked about a speech sure. These are the ‘‘yes’’ votes for 1953, I was privileged to serve as a law given to the Institute of Justice where court of appeals nominees and ‘‘yes’’ clerk to Judge E. Barrett Prettyman of she said: votes for cloture on them compared to the U.S. Court of Appeals for the Dis- If we can invoke no ultimate limits on the the ‘‘no’’ votes. Of all my Republican powers of government, a democracy is inevi- trict of Columbia Circuit. Judge colleagues, every vote tabulated, 2,811 tably transformed into a Kleptocracy—a li- Prettyman later became chief judge of times did our Republican colleagues cense to steal, a warrant for oppression. this very important circuit court. vote yes; twice did they vote no. One of She dismissed that speech saying it As a result of the profound respect so those was the Presiding Officer who does not reflect necessarily her views many people had, including myself, for voted against the other as a judge. Judge Prettyman, I had the honor sev- day. The other was Senator LOTT who But in San Remo v. City and County eral years ago of sponsoring, and with voted against Mr. Gregory on the of San Francisco, she said, regarding a the help of others, passing, legislation Fourth Circuit a few years ago. Other- planning ordinance: to name the Federal courthouse in D.C. wise, none. Turning a democracy into a Kleptocracy after Judge Prettyman. does not enhance the stature of thieves; it Senator FRIST has spoken in the last few weeks about leader-led filibusters Now, a half century later, after I had only diminishes the legitimacy of govern- the honor of serving as a law clerk on ment. of judges—whatever that means. What this court, I am pleased, today, to Her views as a private citizen, and I am concerned about is a leader-led strongly support the nomination of her views as a judge seem to be, unfor- rubberstamping of nominees, nominees Justice Janice Rogers Brown to this tunately, quite the same. It couldn’t be who have not even convinced noted very same court. more obvious. She cannot explain how conservatives they belong on the When I started to evaluate Justice virtually identical rhetoric that many bench. I continue to believe Judge Brown’s qualifications for this pres- would call extreme finds its way into Brown was one of the worst picks this tigious judgeship, I turned first, as I do both her speeches and her judicial opin- President has made to our appellate with every nomination, to the U.S. ions. courts. That is based on her record, not I will go back to my friend from Ken- on her race or her gender or her back- Constitution. Article II, section 2 of the Constitution gives the President tucky, Senator MCCONNELL. He drew a ground. comparison in support of Janice Rogers I wish my friends across the aisle the responsibility to nominate, with Brown. He said, like Janice Rogers would look at that record. If my col- the ‘‘Advice and Consent of the Sen- Brown, Ruth Bader Ginsburg had made leagues on the other side ask them- ate,’’ individuals to serve as judges on some provocative comments early in selves three simple questions—is the the Federal courts. Thus, the Constitu- her career, but she was confirmed by nominee a strict constructionist? Is tion provides a role for both the Presi- her Senate. the nominee a judicial activist? Is the dent and the Senate in this process. I say to my colleague from Texas: nominee a mainstream conservative?— The President has the responsibility of Senator, I know Ruth Bader Ginsburg. they would be forced to vote against nominating, and the Senate has the re- Ruth Bader Ginsburg is a friend of her. sponsibility to render advice and con- mine. Janice Rogers Brown is no Ruth I could not support Judge Brown’s sent on the nomination. Bader Ginsburg. nomination the first time; I cannot I am very pleased to have been a part Justice Ginsburg established such a support the nomination now. I urge my of the group of 14 who brought before record of moderation on the D.C. Cir- colleagues, especially my moderate this body a concept by which we could cuit Court of Appeals that President colleagues from the other side of the proceed on these Federal judges. Jus- Clinton was able to nominate her after aisle, to vote against her also. tice Brown is the second in that series. getting advice from Senator HATCH I yield the floor and suggest the ab- I speak with pride about our accom- that she was a mainstream liberal. sence of a quorum. plishment. In no way do we intend to No one expects our President to The PRESIDING OFFICER. The usurp the roles of our distinguished nominate liberal nominees. They are clerk will call the roll. majority leader and the Democratic going to be conservative. We have sup- The bill clerk proceeded to call the leader. But, nevertheless, after con- ported these conservatives up and down roll. sulting with them, we went forward the line. Now the number is 209 out of Mr. WARNER. Mr. President, I ask with our framework agreement. And 219 because, with the approval of Pris- unanimous consent that the order for this agreement now seems to be work- cilla Owen, we have no longer blocked the quorum call be rescinded. ing for the greater benefit of the Sen- 10. When someone is out of the main- The PRESIDING OFFICER. Without ate and for the important role the Sen- stream, that is when we oppose them. objection, it is so ordered. ate has with respect to its constitu- In the end, what does the record show Mr. WARNER. Parliamentary in- tional responsibilities of advice and about Janice Rogers Brown? Not the quiry: It is my understanding the sen- consent to help establish the third

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6193 branch of our Government—our Fed- In 1994, Janice Brown left the Gov- I am proud to speak on behalf of this eral judiciary. It is essential the vacan- ernor’s office to serve as a justice on outstanding nominee, and it is my hope cies be filled in a timely manner to en- the intermediate California Appellate that the Senate will soon confirm Jus- able that court to serve the people all Court. Subsequently, in 1996, my good tice Janice Rogers Brown to the Fed- across our Nation. friend, then-Gov. of Cali- eral bench. With respect to judicial nominees, I fornia, had the honor of promoting Jus- Mr. President, I suggest the absence have always considered a number of tice Brown to the California Supreme of a quorum. factors before casting my vote to con- Court. With her appointment, Justice The PRESIDING OFFICER (Mr. firm or give advice and consent, as the Brown became the first African-Amer- SUNUNU). The clerk will call the roll. case may be. The nominee’s character, ican woman to sit on the California The assistant legislative clerk pro- professional career, experience, integ- high court. ceeded to call the roll. rity and temperament are all impor- Mr. President, I take humble pride in Mr. HATCH. Mr. President, I ask tant. In addition, I consider whether having, during my career in the Sen- unanimous consent that the order for the nominee is likely to interpret law ate, recommended to a President the the quorum call be rescinded. according to precedent or impose his or first African American in our State’s The PRESIDING OFFICER. Without her own views. The opinions of the offi- history to serve on the United States objection, it is so ordered. cials from the State in which the nomi- District Court for the Eastern District Mr. HATCH. Mr. President, a few nee would serve, or States in the case of Virginia. His name came before the weeks ago, the debate in this Chamber of the circuit court of appeals, the Senate. Subsequent to confirmation, captured the attention of the Nation. views of the persons who have known and years of experience on the court, At stake was the maintenance of core and have observed the nominee he rose to become the chief judge of the constitutional principles of separation through the years, and the writings district in which his court resides in of powers and a limited judiciary and the record of the nominee, all are my State. This very fine man, with his against an unprecedented strategy of taken into consideration. That is be- customary quiet and dignified pride, filibustering judicial nominees. Prior cause I believe our judiciary should re- his superb knowledge of the law, and to 2003, Senators exercised self-re- flect a broad diversity of the citizens it understanding, serves Virginia with straint. In theory, the opportunity was serves all across the Nation. always there for us to filibuster the In this instance, I was privileged to great distinction today. And such will be the case with Jus- President’s judicial nominees, but out invite Justice Brown to my office. We tice Janice Rogers Brown in her service of proper respect for the President, sat down, and I found her to be an ex- to the Nation on this prestigious court. whoever the President was, his power traordinarily accomplished individual. Indeed, since 1996 she has served the of appointment, and with an appro- We had a very extensive exchange of citizens of the State of California on priate modesty about our own con- views regarding the important post to the California high court, and she has stitutional role, we refrained from ex- which she has been nominated and the earned their confidence as a jurist. ercising this power to filibuster judges. qualifications which she possesses. And In the California system, once a We kept ourselves in check. In spite she does possess outstanding qualifica- judge is appointed, he or she comes be- of real philosophical differences about tions; first, to have earned the nomina- fore the voting public for confirmation the nature of judging and the meaning tion from our distinguished President or rejection in the next general elec- of the Constitution’s fundamental and, secondly, to earn the support of tion. That moment came in 1998 for guarantees, we all agreed on one thing: this body in the advice and consent Justice Brown when she and four other The Constitution’s separation of pow- role. I believe she will make an excellent justices on the California Supreme ers prevented us from adopting a strat- jurist on this most respected court. Court came before the public in that egy of permanent minority-led filibus- Her legal career spans more than a election. While all were confirmed by ters of judicial nominees. quarter of a century. After graduating the California voters, it is notable that That self-restraint was tossed aside, with her bachelor’s degree from Cali- Justice Brown was confirmed with the however, in 2003. Led in large part by fornia State University, Justice Brown highest percent of the vote, nearly 76 my friend and colleague, the senior went on to earn her law degree in 1977 percent—an astounding vote of con- Senator from New York, the Demo- from the University of California fidence. cratic leadership determined to engage School of Law. But Justice Brown’s accolades don’t in a full-blown inquiry of what they After passing the California bar just come from the voting public in called the ideology of judicial nomi- exam, which I believe is considered na- California, they also come from a wide nees. Never before have opponents of a tionwide to be one of the most difficult range of other people who know her limited judiciary been so brazen with of the bar exams, she began a career in well. Judges who served with her on their litmus tests. They would now public service, mostly in positions with the California Court of Appeals, a bi- openly reject qualified nominees be- the State of California. She worked in partisan group of law school professors cause of their strongly held personal the deputy attorney general’s office for in California, colleagues on other beliefs, not for their judicial tempera- the State of California, and later courts across the Nation, and others— ment, not for their experience, not for worked in the deputy secretary and they all agree: Justice Janice Rogers their character. Rather, nominees general counsel’s office in the Business, Brown is a brilliant legal scholar who would be rejected because of their per- Transportation and Housing Agency of respects the doctrine of stare decisis sonal beliefs. California—again, giving her a breadth and who would make an outstanding For some reason, what they termed and depth of experience regarding the Federal appeals court judge. ‘‘strongly held personal beliefs’’ were problems and challenges that face our All of this is reason enough to con- particularly suspect. California Su- citizens all over this country. firm this highly qualified individual. preme Court Justice Janice Rogers After practicing law in the private But, when you put all that Justice Brown, an eminently qualified jurist, sector for about a year, Janice Brown Brown has achieved in context, it be- was one of the primary targets of this returned to public service by working comes even more apparent what an radical strategy. For a few thought- in Gov. Pete Wilson’s legal affairs of- amazing individual we have before us provoking speeches she had given, fice from 1991 to 1994. How privileged I in the Senate today. some have tried to label her too ex- am to have served with Senator Pete You see, Janice Rogers Brown was treme for the bench. Wilson, later Governor, in this body for born to sharecroppers in Greenville, There is no doubt Janice Rogers a number of years. We became close AL. She attended segregated schools in Brown is conservative, but her views friends. We worked together, particu- the South and came of age in the midst are hardly out of the ordinary. They larly on matters regarding national se- of Jim Crow laws. Through hard work, are views shared by many millions of curity and the military. He was a she has earned her education and her regular citizens, citizens of different former marine in his lifetime, as was I, legal credentials, and today she comes economic, geographic, financial, eth- and I have a great mutual respect for before us as one of the most brilliant nic, and religious backgrounds. Most him. legal minds this country has to offer. importantly, however, it is clear that

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6194 CONGRESSIONAL RECORD — SENATE June 8, 2005 her personal views, whatever they are, school at UCLA, she served 2 years as the sidelong, sardonic glance, which I al- do not cloud her judgment on the deputy legislative counsel in the Cali- ready recognized as a sure prelude to some bench. Justice Brown’s opinions are fornia Legislative Counsel Bureau. outrageous comment. Giving an exaggerated sigh, he said: ‘‘I suppose we will have to fully within the mainstream of Amer- Then from 1979 to 1987, she was deputy sandblast those words and come up with ican jurisprudence. It is the liberal ac- attorney general in the office of the something more politically correct. Per- tivist groups that are purposefully mis- California Attorney General. Her work haps—‘‘People to Parallel my Prom- representing Justice Brown’s opinions, there was of such high quality that it ontories.’’ We both laughed. In its fuller ex- and what they think are her views, led to her appointment as the deputy position, the poem is a paean to the west- that are stranded out on the far left secretary and general counsel for the ward expansion of the country: bank of American politics. Those California Business, Transportation, Bring me men to match my mountains, groups belong on the far left bank of and Housing Agency in 1987 where she Bring me men to match my plains; American politics, and that bank is supervised the State’s banking, real es- Men to chart a starry empire, way out of the mainstream. tate, corporations, thrift, and insur- Men to make celestial claims. The President takes his constitu- Men to sail beyond my oceans, ance departments. No dunce could have Reaching for the galaxies. tional responsibilities seriously when done that. No person as described by These are men to build a nation, he nominates individuals to the Fed- some of my colleagues on the other Join the mountains to the sky; eral bench. I have worked closely with side would have been chosen in that Men of faith and inspiration . . . the White House for the last 41⁄2 years great State of California to do that. In retrospect, it occurs to me that al- on these judges, so I know that to be She has been very badly derided by though Justice Puglia was inordinately true. I know that as Senators, we take picking and choosing little snippets proud of his Buckeye roots, like Norton our responsibilities seriously when we here and there and taking them out of Parker Chipman, the first Chief Justice of review and confirm these individuals. context. the Third Appellate District, he was also a citizen of California who filled a larger-than- When determining a person’s fitness for From 1991 until 1994, she served as life role. He was one of those men who the Federal bench, we evaluate their the legal affairs secretary to California matched her mountains. character and we inspect their records. Gov. Pete Wilson. I personally chatted As a young lawyer who did appellate work, We consider judicial experience, public with Pete Wilson, who is an old friend. I quickly came to admire Justice Puglia’s ju- service, legal work, academic achieve- He said she was terrific. He relied on risprudence. His opinions were intelligent, ment, personal character, and the abil- her legal abilities. wise, witty, clear and completely accessible. ity for objectivity. He did not write in the dry, dull, bureau- Then in 1994, she embarked on the cratic style of most modern judges. His With these qualities in mind, it is professional journey that culminated thoughts, clearly and eloquently expressed, worth considering the view of Justice in her nomination to the Circuit Court were sometimes impassioned. Indeed, he Brown held by a number of prominent of Appeals of the District of Columbia. made passion respectable. His opinions exude California law professors. First, she was nominated and con- the rare sense of style and unique voice that In a letter sent to me in my former firmed as an associate justice on the Posner tells us is ‘‘inseparable from the idea capacity as chairman of the Judiciary California Third District Court of Ap- of a great judge in [the common law] tradi- tion.’’ Committee, a group of 15 distinguished peals. Then in 1996, Gov. Pete Wilson California law professors had the fol- Justice Puglia deserves a place in the pan- elevated her to the position of asso- theon of great American judges. He com- lowing to say about Justice Brown: ciate justice on the California Supreme pletely understood the role and relished it. We know Justice Brown to be a person of Court. He exhibited the classical judicial virtues: high intelligence, unquestioned integrity, I ask unanimous consent to print in impartiality, prudence, practical wisdom, and evenhandedness. Since we are of dif- the RECORD her funeral eulogy for one persuasiveness, and candor. He demonstrated fering political beliefs and perspectives, of the great judges on that first appel- complete mastery of his craft. He had a keen Democratic, Republican and Independent, we awareness of the ebb and flow of history, and wish especially to emphasize what we believe late court. of the need for consistent jurisprudence, and, is Justice Brown’s strongest credential for There being no objection, the mate- above all, self-restraint. It may sound odd to appointment to this important seat on the rial was ordered to be printed in the describe a judge as both passionate and re- D.C. Circuit: her open-minded and thorough RECORD, as follows: strained, but it is precisely this apparent appraisal of legal argumentation—even when CALIFORNIA SUPREME COURT JUSTICE JANICE paradox—passionate devotion to the rule of her personal views may conflict with those ROGERS BROWN’S EULOGY OF RETIRED JUS- law and humility in the judicial role—that arguments. TICE ROBERT K. PUGLIA, FORMER PRESIDING allows freedom to prevail in a democratic re- Having gotten to know Justice JUSTICE OF THE CALIFORNIA COURT OF AP- public. The generation that fought in World War II PEAL FOR THE THIRD APPELLATE DISTRICT Brown during this unnecessarily pro- has been labeled ‘‘The Greatest Generation’’ tracted confirmation process, I fully Justice Robert K. Puglia was described— for their courage and selflessness, but that concur in this bipartisan consensus. not too long ago—as ‘‘a treasure’’ to Sac- sobriquet belongs as well to their younger And I can tell you she has cultivated ramento’s legal community. It is no exag- brothers who fought in Korea. Their atti- these virtues against many odds. geration to say that his wit and wisdom will tudes were shaped by many of the same piv- Janice Rogers Brown was born in be irreplaceable. Justice Puglia once referred otal moments in American history, and Bob Greenville, AL, in 1949. She attended to himself—with the self-deprecating humor Puglia exemplified the best of his genera- that was so characteristic—as ‘‘a dinosaur.’’ segregated schools. She was a firsthand tion. He was born on the cusp of the Great At his retirement dinner, I ventured to say Depression and came of age during Word War witness to the injustice of Jim Crow that he was ‘‘not so much a dinosaur as an II. He became a devoted student of history, and its failure to extend the promise of ancient artifact. Like the Rosetta Stone. A and perhaps that is why he seems to have the 14th amendment to the descendants text from which we could decipher the best had an instinctive appreciation of valor, of freed slaves. Equal protection under of our past and—if we are lucky—find our duty, and sacrifice. the law was only a dream in the Deep way back to the future.’’ He scorned political correctness, but he South at that time when young Janice We are here today, much too soon, to cele- treated every human being with dignity and Rogers Brown left her African-Amer- brate his life, his legacy to us. The Library respect. Whether he was dealing with the and Courts Building was his home for nearly janitor or the governor, he never saw people ican family for California. 30 years. He worked there as a newly minted as abstractions, proxies, or means to an end. Yet this girl who grew up listening to lawyer during a brief stint as a deputy attor- He saw them as individuals and took them as her grandmother’s stories about ney general in 1958 and 1959, and returned in he found them; expected the best of them; NAACP Fred Gray, the man who coura- 1974 when he became a member of the Third and never demanded more of anyone than he geously defended Martin Luther King, District Court of Appeal, a court where he demanded of himself. His sense of fairness Jr., and Rosa Parks, brought to the served as the presiding justice from 1974 and justice applied to everyone, but his sense golden State of California a passion for until November 1998. In 1994, after a recep- of humor was irrepressible. In one memo- civil rights and a need for impartial tion welcoming me to the court, we stood on rable case where a defendant filed an appeal the steps of the court building and looked quibbling over the deprivation of a single justice. across the circle toward Office Building 1 at day of credit, Justice Puglia agreed with the Janice Rogers Brown cultivated this the words carved on the pediment: ‘‘Men to inmate in a brief unpublished opinion. He passion for justice through a career of Match My Mountains,’’ a fragment from a found the court had miscalculated, and almost uninterrupted public service as poem by Samuel Walter Foss called ‘‘The ended the opinion with the cheery admoni- an attorney. After graduating from law Coming American.’’ Justice Puglia gave me tion to ‘‘have a nice day!’’

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6195 In my youth, I admired and respected him proving the innocence of the accused, but the she said there was so radical that we and wanted to emulate him. As I grew older jury still returns a guilty verdict. Most of should keep her off the Federal bench. and had more opportunities to get to know the spectators file noisily into the street, Never mind that a public speech is an him, to become first an acquaintance, then a gossiping and celebrating. Upstairs, rel- opportunity to be provocative, espe- colleague, and a friend, I came to love him. egated to the balcony, another audience has I do not think there is one person within his watched the proceedings and remains seated. cially at a law school. Never mind that orbit who was not the beneficiary of his wis- As Atticus Finch gathers his papers and judges, like most folks, are able to sep- dom, encouragement, and generosity. He walks slowly from the courtroom, they rise arate out their personal and political gave us his ‘‘Rules to Live By’’ to amuse us. silently in unison. The Black minister, Rev- beliefs from their professional duties. But, the way he lived his life inspired us. He erend Sykes, taps Scout on the shoulder and And never mind that Justice Brown was devoted to his wife Ingrid and endear- says: ‘‘Miss Jean Louise, stand up. Your fa- was doing a service to these students ingly proud of his children. Indeed, he had a ther’s passin’.’’ To me, this silent homage to by coming to speak before them, jar a good and courageous man, who respects disconcerting tendency to adopt any of us their imaginations, and give them when he felt we needed guidance. and believes in the rule of law—and is willing He taught us that character counts and in- to defend it even at great personal cost—is something more to think about. tegrity is personal. He never allowed cruelty the most moving moment in the whole film. The fact is, what she said was not or deception or hypocrisy to go unchal- Justice Puglia was just such a man. And he that radical. Groups have keyed in on lenged. He did the right thing even when he was not a fictional character. Most of us her colorful critique of the New Deal. would have benefited from doing the expe- have risen to our feet many times to mark Give me a break. The same people who dient thing. Freedom is not free he would his passage because he was a judge. Court come down here decrying Justice protocol required us to show respect for the often remind us, but, in Justice Puglia’s Brown’s description of the New Deal as view, it was worth the price—however dear. robe and what it represented. But Justice His life experience and his understanding Puglia was the kind of man who earned and revolutionary turn around 5 minutes of history produced in him a certain tough- could command our respect by virtue of his later and claim that our current Social ness—the power of facing the difficult and life and character. In a way, the robe was su- Security system cannot be adjusted unpleasant without flinching; discipline and perfluous. one iota to address contemporary con- intellectual rigor; physical courage; and, We have had the great good fortune to cerns because it was central to the New even more importantly, the courage to be know this extraordinary man. We can re- Deal’s political revolution. Can you different. Never one to follow the herd of member what he taught us. We need not be fearless to have courage. We can be tough imagine, these very same people who independent minds, his was a unique voice. find so much fault with her? You can- As California’s Chief Justice has ruefully ac- and tender. We can do the right thing—and knowledged, Justice Puglia was ‘‘a strong face the bad that cannot be avoided unflinch- not have it both ways. personality . . . not shy of stating his beliefs, ingly. We can laugh. And we must sing—even Their real problem is that Justice nor about challenging others to justify when people frown at us and advise us to Brown then went on to criticize some theirs’’ but surprisingly willing to listen and keep our day jobs. We can care for the people of the unintended social and political modify his views. He was, as his long-time around us. We can be generous. We can make consequences of big Government. When colleague Justice Blease noted: ‘‘formidable’’ our way, against the tide, without rancor or she claimed that an increasing public and ‘‘intimidating,’’ but he had a ‘‘heart of bitterness. And when we are tired and over- sphere tended to undermine the indi- burdened and feel we are not brave enough to gold.’’ vidualist spirit present at America’s There are so many themes and threads go on, we will hear his voice in our ear. Hear that run through Justice Puglia’s life and him say in that quiet and steely tone: ‘‘Yes, founding, she was saying nothing other the history of the Third District Court of Ap- you can. You can.’’ And we will know that than what de Tocqueville, Ronald peal that I do not think it can be mere coin- we are being true to his legacy. The legacy of Reagan, Booker T. Washington, Robert cidence. Norton Parker Chipman had stood one who loved liberty. We will know that we F. Kennedy, and countless political on the battlefield at Gettysburg when Lin- are standing up . . . because Justice Puglia is philosophers and economists have coln gave that memorable speech. Justice passin’. noted over the years. Puglia was a student of history—especially Mr. HATCH. Mr. President, Janice Everyone knows that it takes a vil- the Civil War era. He could speak of Ander- Rogers Brown’s deep and uncompro- lage—families and communities—not a sonville and Robert E. Lee and the battles of that terrible war as easily as other people re- mising desire to secure equal justice sterile Government-mandated bureauc- cite the latest baseball scores. There are for everyone who appears before her is racy to raise a child or, rather, that it similarities in the descriptions of Justice evident off the bench as well. She has takes a family, not the Government, to Puglia and President Lincoln that are strik- served as a member of the California raise young citizens. ing. Commission on the Status of African- Yet her critics treat Justice Brown’s In a speech in 1906, Norton Parker Chipman American Males. This bipartisan com- claims as trying to prove that the recalled that his friend Abraham Lincoln mission made recommendations for ad- world is flat. The senior Senator from was ‘‘firm as the granite hills,’’ yet capable Massachusetts was on the floor yester- of great patience and forbearance. Carl Sand- dressing inequities in the treatment of burg described Lincoln as ‘‘both steel and African-American males in employ- day afternoon and today arguing that velvet . . . hard as rock and soft as the drift- ment, business development, and the Justice Brown’s claim that an increas- ing fog.’’ Reading these words caused a shock criminal justice and health care sys- ing public sphere is detrimental to of recognition, for I had been seeing exactly tems. This was noble work. civil society is outside the legal main- this sort of paradox and contradiction in the In addition, as a member of the Gov- stream. Again, give me a break. life of Justice Puglia. ernor’s child support task force, she I cannot help but think that for Jan- Seeing these parallels, I have come to un- made recommendations on how to im- ice Rogers Brown, this criticism of big derstand that this flexibility is neither par- adox nor accommodation. It is just the oppo- prove California’s child support en- Government is related to her experi- site—a sense of sure-footedness and balance forcement system. No small matter. ence growing up in the Deep South and that is often the defining trait of people of She would not have been trusted with her adulthood working for the State of great character and impeccable integrity. It that had she been as described by some California. She did not have to read is precisely this quality which makes the of my eminent colleagues and friends about Jim Crow in books. She lived it. honest public intellectual, a man like Bob on the other side. My sense is that part of Justice Puglia, so extraordinary. Justice Brown’s critics cannot escape Brown’s commitment to rugged indi- In his first message to Congress in 1862, this story, so they turn to her state- vidualism is related to this hard- Lincoln warned that we might ‘‘nobly save, or meanly lose, the last best hope of earth.’’ ments off the bench and to her deci- learned lesson: There are limits to Lincoln, of course, was referring to the sions on the bench in California to as- what Government can accomplish. Union. Justice Puglia felt that same sense of sert misleadingly that she is extreme. That is precisely what President fierce commitment to the rule of law. The The instances they cite do not support Reagan stated in his first inaugural ad- preservation of the rule of law and of the these hysterical charges, and I want to dress. When he said this in 1981, some equality of all people under that rule was, in consider them at some length. of the very same people who attack his view, the core principle of liberty and the One of Justice Brown’s speeches re- Janice Rogers Brown today said Presi- only reason America might qualify for such ceived quite a bit of attention. In April dent Reagan was out of the main- a grand epithet. My favorite movie scene is in To Kill a 2000, she was invited to speak at the stream. That was the argument by the Mockingbird. It is the scene where Atticus University of Chicago Law School. I very same people back then. Finch has argued brilliantly and raised much have had the same privilege, by the Nowhere was this well-intentioned more than a reasonable doubt, virtually way. Evidently, her critics say what governmental overreach more apparent

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6196 CONGRESSIONAL RECORD — SENATE June 8, 2005 than in our failed experiment with wel- She wrote those words while arguing Her critics charge this demonstrates fare. Republicans and Democrats alike, for the exclusion of evidence of drug her blanket opposition to affirmative originally led by the insights of our possession discovered after an African- action. Such a conclusion depends on a former colleague, the late Democratic American defendant was arrested for deliberate misreading of Justice Senator Daniel Patrick Moynihan, un- riding his bicycle the wrong way on a Brown’s opinion in this case. She could derstood the detrimental impact of residential street. She believed that not have been any more clear. She did welfare on the urban poor in par- the only reason this person was not oppose affirmative action in all cir- ticular. I think Janice Rogers Brown stopped was because of his race, and cumstances. These are her words: understood that lesson as well. she was the only one of her colleagues Equal protection does not preclude race- But for articulating a similar skep- on the supreme court to argue for the conscious programs. ticism about Government, Janice Rog- exclusion of this evidence on the Contrary to the propaganda being ers Brown has been branded a radical grounds that it was the product of im- issued by liberal interest groups, Jus- revolutionary. Quite the contrary. Her proper racial profiling. Yet our col- tice Brown’s opinion explicitly author- arguments have been based on reason- leagues over here say she is an oppo- izes affirmative action programs. able concerns. And hers was a conclu- nent of civil rights. Give me a break. I do not blame my colleagues on the sion reached over the years by millions I have seen and heard just about ev- other side completely because most of of Americans. erything in my years in the Senate, the time they just take what these out- A few of Justice Brown’s many deci- but the highly partisan campaign of side leftwing radical groups give them sions while a judge have also served as the NAACP against Janice Rogers and read it like it is true. So I say I do a source of the criticism that has been Brown is particularly shameful. It is not blame them completely. But unlike unfairly leveled at her. Of all the criti- sad to see the NAACP, the Nation’s the Supreme Court of the United cisms of Justice Brown, none more ran- foremost civil rights institution, be- States, the people of California have kles than the claim she opposes civil come little more than a partisan spe- rejected quotas and race-based head rights. That is laughable. This is par cial interest group. counting. for the course for some of these left- The other day I received a fax from Those are not affirmative action pro- wing, fringe groups that have been their office urging me to vote against grams that merely take race into ac- smearing and attacking Republican Justice Brown’s confirmation because count. Programs such as the one under nominees ever since I can remember, she was, ‘‘hostile towards civil rights review in the Hi-Voltage case are im- but certainly ever since Justice and the civil liberties of African Amer- proper quota programs. For following Rehnquist had his hearings and was icans and other racial and ethnic mi- the mandate of California citizens on confirmed to the Supreme Court as norities.’’ this subject, she has been called rad- My stomach turned when I read this. Chief Justice. ical. Just this week, the chairman of the Not only is this irresponsible rhetoric, The NAACP’s criticism is, as usual, Democratic National Committee was not only is it unfair and uncharitable, overblown. They claim that Justice quoted as telling a group in San Fran- it is without any real foundation. In Brown’s decision ‘‘makes it extremely difficult to conduct any sort of mean- cisco that Republicans are ‘‘not very other words, it is total bullcorn, and it ingful affirmative action program in friendly to different kinds of people.’’ is wrong. The NAACP, along with a number of California.’’ He called the GOP ‘‘pretty much a other groups, has turned to Justice But what is a meaningful affirmative monolithic party. They all behave the Brown’s opinion in Hi-Voltage Wire action program? I fear that these left- same. They all look the same. It’s pret- Works, Inc., v. City of San Jose to show wing liberal interest groups are sug- ty much a white Christian party.’’ This that she is inhospitable to minorities gesting that the only meaningful type is racial demagoguery, pure and sim- because of her supposed stance on af- of affirmative action program is the ple, done by the chairman of the Demo- firmative action. These arguments, type of quota program specifically cratic National Party. If I didn’t know again, are way off the mark and an banned by proposition 209. As it turns how bright he was, I would call him a analysis of them demonstrates not out then, Justice Brown’s real failure raving idiot. But maybe he is just that only that Justice Brown is a main- in this case is that she did not tailor part of the time. stream conservative judge but also the law to suit her own moral and po- This desperate rhetoric has a pur- that these interest groups are ex- litical preferences. For this, she is de- pose: to mask the increasing attraction tremely liberal outfits attempting to monized as a radical. It is her failure to of conservative ideas to African Ameri- gain through judicial fiat what they embrace full-blown judicial activism cans, Hispanic Americans, Jewish cannot fairly win through the legisla- that is her principal failing in the Americans, and other minorities the tive process through the elected rep- minds of her detractors. Democrats have felt they have an abso- resentatives of the people. Consider her opinion in American lute claim to, no matter how out- The Hi-Voltage case involved Califor- Academy of Pediatrics v. Lundgren. rageous some of their programs and nia’s proposition 209. In a popular ref- This case involved California’s paren- ideas are. erendum, the people of California were tal consent law. Parental consent laws So it is not surprising that when the clear: Discrimination or preferential are not rightwing policies. They are organized critics of Janice Rogers treatment on the basis of race, sex, moderate restrictions on abortion Brown send their faxes to the press, her color, ethnicity, or national origin vio- rights supported by substantial majori- argument in the decision People v. lates core constitutional principles of ties of the American people. McKay is notably absent. This is what equal treatment under the law. There- I find it interesting that the same she had to say there: fore, proposition 209 prevented dis- groups that champion the right of a In the Spring of 1963, civil rights protests crimination in any public employment, woman to make an informed choice in Birmingham united this country in a new public education, or public contracting. about obtaining an abortion also reject way. Seeing peaceful protesters jabbed with Now, at issue in this case was a San moderate restrictions on the accessi- cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of Jose minority contracting program bility of abortion to minors who rou- water from water hoses galvanized the na- that required contractors bidding on tinely do not possess the judgment nec- tion. city projects to employ a specified per- essary for the profound moral and phil- Without being constitutional scholars, we centage of minority and women con- osophical decision to obtain an abor- understood violence, coercion and oppres- tractors. In her opinion, Justice Brown tion. sion. We understood what constitutional lim- merely did what every judge who ever We should not forget the U.S. Su- its are designed to restrain. We reclaimed reviewed this case did. Through the preme Court, while acknowledging the our constitutional aspirations. What is hap- trial court, through the appellate right to an abortion, also has held that pening now is more subtle, more diffuse, and less visible, but it is only a difference in de- court, to the Supreme Court, all con- it is permissible under the Constitution gree. If harm is still being done to people be- curred with Justice Brown that this to establish parental consent laws such cause they are black, or brown, or poor, the program was exactly the type of nox- as California’s. California courts have oppression is not lessened by the absence of ious racial quota program that propo- long relied on Supreme Court prece- television cameras. sition 209 was designed to prevent. dents when defining the boundaries of

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6197 their State’s own constitutional right have to wait and see what the full im- the law rather than remaking it ac- to privacy. That is the context of this plications of this deal really are. cording to her own theory of justice. decision, and in it Justice Brown dis- It does seem, however, that the clo- What they really object to is Justice sented from the determination of an ture votes on nominees such as Pris- Brown’s refusal to revise legal guaran- activist court to overturn California’s cilla Owen, Janice Rogers Brown, and tees according to some version of jus- moderate restriction on abortion William Pryor demonstrate the emer- tice not present in a text. rights. She wrote: gence of a filibuster-proof majority I am proud of this body for allowing When the claim at issue involves fun- that believes even judges with conserv- Justice Brown’s nomination to finally, damentally moral and philosophic questions ative judicial philosophies are not the at long last, come up for a vote. My as to which there is no clear answer, courts extraordinary cases that would trigger guess is that she will soon be sworn in must remain tentative, recognizing the pri- a filibuster and that even a conserv- as a Federal judge. That will be a great macy of legislative prerogatives. ative African-American woman has a day not only for Janice Rogers Brown, She continued, adding that: chance to serve in this country. Unfor- who has had to endure these coordi- The fundamental flaw running through its tunately, some have been against her nated, calculated attacks on her char- analysis is the utter lack of deference to the primarily because she is a conservative acter, but it will be a great day for this ordinary constraints of judicial decision- African-American woman. Nation as well, and it will bring a lot of making—deference to state precedent, to We seem to be gaining ground in the joy to me personally. federal precedent, to the collective judgment fight against the erroneous belief that In all of the hundreds of judges who of our Legislature, and, ultimately to the nominees with whom one disagrees po- now sit on the bench, Janice Rogers people we serve. litically are undeserving of an up-or- Brown is one of the finest people I have This is not some debate over a speech down vote. Of course, the acid test of met and interviewed. So is Priscilla that Justice Brown gave at a law this agreement will come in the weeks Owen. So is William Pryor, whom we school forum. We know that is not the ahead when the Senate addresses nomi- will vote upon probably tomorrow. real threat to these interest groups. nees not specifically granted a safe These are outstanding people, and so They can see that judges such as Jan- harbor by the compromise. are the others who have been waiting ice Rogers Brown take their oaths seri- This debate over Janice Brown and for so long to just have the opportunity ously. They will interpret the law rath- others with her conservative philos- for a vote up or down on this floor. er than act as super legislators and ophy of judicial restraint is an impor- I am tired of seeing these good people make the law. tant one. I will not compromise on the maligned with false facts, to begin By showing deference to the people’s principle that the American people and with. I am tired of seeing them ma- representatives and the legislative and their elected representatives, not ligned with misinterpretations of the executive branches, these groups which judges, should make social policy. Our case law, primarily written by some of too often today try to take the easy courthouses were never intended to be these outside groups that have real way out will now have to engage in the mini-legislatures. Judges do not have axes to grind and that are on the far political process to win their points of the constitutional responsibility, insti- left bank outside of the mainstream of view. Personally, I believe this would tutional capacity, the staff, or the wis- the law itself. I hope everybody will vote for Janice be a healthy development, but to those dom to be good policymakers, and Rogers Brown. She will make a real uncompromising special interest judges are not and should not be phi- difference on the bench. She is a good groups the democratic process is a losopher kings with some ability to di- threat, not a gift. person. I interviewed her for more than vine the existence of rights not clearly 3 hours. I can say, I have seldom met a Soon we are going to have to vote on expressed in statutory law created by Justice Brown’s nomination. I am glad person of such capacity, decency, dig- the people’s elected representatives or nity, and honor as she and Priscilla and thankful that we are finally reach- in constitutions established by the peo- ing this point after the number of Owen. It will be a great day to confirm ple themselves. her as a judge on the Circuit Court of years we have been at it. I know many We are told by some that Justice people wanted to move beyond these di- Appeals for the District of Columbia. Brown is a radical. Shortly after the I yield the floor. visive debates over judges. I appreciate President was elected in 2000, the The PRESIDING OFFICER (Mr. COR- their desire to move beyond this messy Democratic Party held a retreat at NYN). The Senator from California. business of judicial nominations and I which a number of liberal law profes- Mrs. BOXER. Mr. President, I rise to understand the desire to applaud the sors urged them to ‘‘change the ground speak to this nomination of this very deal that has allowed last week’s vote rules’’ on judicial nominations. That controversial nominee who is opposed on Priscilla Owen and our vote later was radical advice. It upset long- by both Senators from California, today on Janice Rogers Brown. The ul- standing constitutional balances, and which is fairly extraordinary. I remem- timate meaning of this compromise is unfortunately it was accepted by the ber well a time in the not too distant yet unknown, but one thing we do former minority leader. past when even if one Senator from a know, these qualified women will have We must reject this effort. I, for one, State opposed a nominee from his or long careers on the bench in large part am not afraid to have this debate. The her State, that sank the nomination. because the majority leader had the American people know judicial activ- Then they said it had to be both. guts and decided to press this issue, re- ism when they see it. Just in the last We have a situation where both Sen- establish longstanding Senate prece- few years we have been told by judges ators from California oppose this nomi- dents, and tried to support the con- that the Pledge of Allegiance is uncon- nee. I can assure the Senator from stitutional separation of powers. stitutional, that our Bill of Rights Utah, if he opposed a nominee who Our senatorial power of advice and should be interpreted in light of deci- came from his State, and his colleague consent does not include the right to sions by the European Court of Human did as well, I think I would give it a lit- permanently filibuster judicial nomi- Rights, and that well-considered bans tle more, shall we say, attention than nees. We have gone a long way to re- on partial-birth abortion violate core he is. affirming what used to be an obvious constitutional principles. The fact is, if you have watched this truth, and we owe a debt of gratitude Only a few weeks ago, a Federal debate, you know by now that this to the leader for helping to make this judge in Nebraska invalidated the duly nominee is way outside the main- happen. We should also acknowledge passed State constitutional amend- stream. You can stand up here and say the well-intentioned efforts of the 14 ment that preserved traditional mar- all you want that she is in the main- Senators involved in facilitating these riage in that State. The definition of a stream and within the mainstream. votes. I know many conservatives are judicial activist is someone who puts You can even say that she won election upset with this arrangement. I am my- his or her own personal views ahead of in California. What you are not saying self. I am certainly not entirely com- what the law really is. is she came up for election about 11 fortable with all the aspects of it my- Some of the leading groups opposed months after she had served a 12-year self, and I have said that it may prove to Janice Brown oppose her precisely appointment, and she had no opposi- to be a truce, not a treaty. We will because she will faithfully interpret tion. Nobody ran against her. Most of

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6198 CONGRESSIONAL RECORD — SENATE June 8, 2005 her controversial decisions occurred appointment—at very high pay, by the That is my State, the California Su- after that vote. way, and very good retirement—that preme Court. Anyone who knows anything about there would be a check and balance . . . the bar commission that reviews judicial California politics knows that it is against this nominee, so only those nominees told Governor Pete Wilson in a very rare that judges are made into an who deserve to be on the bench, who confidential report. election issue. We usually approve our show that they had judicial tempera- Janice Rogers Brown judges. It is very different than what is ment, who were qualified—underscore . . . does not possess the minimum qualifica- being presented here, that everyone that, very important—and who were in tions necessary for appointment to the high- went out and said: Oh, hurrah, Janice the mainstream, will take their seats. est court in the State, the bar commission Rogers Brown is running. This is not So we had a crisis that, fortunately, I that reviews judicial nominees told Governor Pete Wilson in a confidential report. the case at all. We have Senator HATCH am very pleased to say, was resolved by coming up and saying this woman is some Republicans and Democrats who This is the nominee Senator HATCH well within the mainstream and all the got together and stood up to the Re- says he hopes everybody votes for. Now rest of it, but the two Senators from publican leadership and said: Wrong. she is moving over to an area where California are saying: Watch out. Be- We are not going to do this. We are not she hasn’t really practiced before, to cause no statement could be further going to see a packing of the courts. the Federal bench. from the truth. We are going to preserve the filibuster. Yesterday, I was at a press con- I have spoken on this nomination and But what happened was three very ference with some fantastic women on the broader issue several times. controversial judges got past that fili- lawyers, including Eleanor Holmes Sometimes you ask yourself, is it buster. That was the deal that was cut, Norton, who you know, I think, is the worth just one more time? I would say, that Priscilla Owen, that Pryor, and delegate to the House of Representa- in answering my own question, to me it here Janice Rogers Brown would be tives from DC, and also Elaine Jones. is worth it just one more time because guaranteed their cloture vote, and then They went through, chapter and verse, the issues surrounding these nomina- we will now be voting on them. It will her decisions, her writings, her minor- tions we are addressing these next days take 51 votes to stop Janice Rogers ity views. They agreed this is a terrible Brown. I hope we can get that. will bring home to the American peo- appointment. What is interesting is Senator HATCH said he hopes every these are African-American women ple why it was that we had all this fuss single person in the Senate will vote over 10 judges the Democrats blocked. speaking about an African-American for Janice Rogers Brown. I predict, if woman. This is not easy to do. It is not These are 10 judges put forward by she gets confirmed, it will be by the President Bush who were all extraor- easy for a female Senator to say this is fewest number of votes we have seen a terrible appointment. dinary cases, outside the mainstream, around here, probably, in many years. I whether dealing with employment This nominee’s personal story is re- think so. markable. There are a lot of remark- rights or the environment or civil Let me talk about the issue of quali- rights or human rights—any kind of able stories in America. We are all so fications because this is something I proud of our country, that it gives peo- rights you can think about: privacy did not discuss with my colleagues up rights, the right to make sure our kids ple opportunity. But what I am fearful until now. On April 26, 1996, the Los about is what she is going to do to are protected and our criminals are Angeles Times wrote about an evalua- those who want to grab that dream. punished. tion report that was written about Her attitude toward what the govern- In these 10 cases, we found many ex- Judge Janice Rogers Brown. This is ment can and cannot do, her attitude amples where our people were left in what the Times reported: about what is permissible in a work- the lurch because of decisions made by Bar evaluators received complaints that these judges. In some cases, these Brown was insensitive to established legal place, is shocking. Her attitude toward judges, fortunately, were in the minor- precedent . . . lacked compassion and intel- senior citizens, her attitude toward ity. In the case of Janice Rogers lectual tolerance for opposing views, mis- children, her attitude toward rape vic- Brown, she was in the minority many understood legal standards and was slow to tims, all of this is very frightening, to times because she is so out of the produce opinions. think this woman, with a great per- mainstream that not even her five Re- Can you imagine? This is the person sonal story, is going to bring those publican colleagues could join her in who everyone who spoke on the other kinds of values and this kind of record many of her dissents. side today has said is so great, every- to the court that many consider to be But this number, 208 to 10, reflects one who spoke on the other side said is second in importance to the Supreme where we were when the Republicans so wonderful? This is the person they Court of the United States of America. threw a fit and the White House threw all said deserves to be promoted? Let’s There is no question that this nomi- a fit and said: We want every one of our read it again because it is important. nee is way out of the mainstream. This judges passed. We don’t want to lose This woman is going to the circuit is one of her famous quotes. You listen even 5 percent of our judges. They got court of appeals in Washington. ‘‘Bar to these words. These are not the words 95 percent. They were not happy—208 to evaluators’’—these are the people who of Senator BARBARA BOXER or Senator 10, and they threatened to change a are the experts—‘‘received complaints DIANNE FEINSTEIN or Senator PATRICK system that has been in place well be- that Brown was insensitive to estab- LEAHY or Senator HARRY REID or any lished legal precedent . . . lacked com- fore the movie ‘‘Mr. Smith Goes to other Senator who is opposing this passion’’—and we are going to show Washington’’ came out. For more than nominee; these are the words of the that—‘‘and intellectual tolerance for 200 years, the Senate has had the right nominee: opposing views. . . .’’ In other words, to unlimited debate that can only be Where government moves in, community intolerant to opposing views. Can you shut off by a supermajority. We have retreats, civil society disintegrates, and our imagine a judge who is intolerant to ability to control our own destiny atrophies. had that in place for a very long time. opposing views? How can that judge be The Republicans did not like it. They The result is: Families under siege; war in independent? How can that judge be the streets; unapologetic expropriation of only got 95 percent of their judges and, fair if, going in, they are intolerant to property; the precipitous decline of the rule by God, they wanted 100 percent. It re- certain views? And they said she ‘‘mis- of law; the rapid rise of corruption; the loss minds me of my kids when they were understood legal standards.’’ That is a of civility and the triumph of deceit. The re- little, and probably I was that way condemnation for someone who is sult is a debased, debauched culture which when I was little. ‘‘I want it all. I want going to be judging. ‘‘And she was slow finds moral depravity entertaining and vir- tue contemptible. everything. I don’t want to give up a to produce opinions.’’ We all know that thing.’’ That is not the way the Senate we would like to have justice be swiftly I don’t know what country she grew works. It is not the way the country delivered. Justice delayed is justice de- up in. I really don’t know how she got works. nied. She was slow to produce opinions. her views of America because clearly If you read what the Founders had in The LA Times goes on: she has been critical of the government mind for our Nation, it was protecting She does not possess the minimum quali- in her writings, going back to the 1930s. minority rights. So when an appoint- fications necessary for appointment to the So, presumably, because she has been ment such as this, which is a lifetime highest court in the State, in the minority view on all the things

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6199 she says and does, she has to be miser- zens of ‘‘blithely cannibalizing their Wrong. I would not be here if it were able about the state of America. She grandchildren because they have a not for Republican, Independent voters, thinks our families are under siege, right to get as much ‘free stuff’ as the and Democratic voters. Here is the that there is war in the streets, that political system permits them to ex- deal: She stood alone on a court of six people are getting their property taken tract.’’ Republicans and one Democrat 31 away from them, that there is a decline What a view of our senior citizens. times. Think about it. You are a judge. in the rule of law. I guess she doesn’t The greatest generation; the genera- You are a Republican. You have five know we are doing much better con- tion that fought in World War II. And Republican colleagues and one Demo- trolling crime. Who does she think is now, getting to be the generation that cratic colleague. Yet 31 times you dis- going to control crime if not govern- fought Vietnam, one of the toughest agreed with those five Republicans and ment? Does she think we should have a wars because it was so controversial, that one Democrat. private police force? and the suffering that guess on. These Who could actually stand up here, When government moves in, every- are the folks that are now the grand- look the American people in the eye, thing is terrible. Does that mean when parents and the senior citizens. They and say she is a mainstream judge? we build a highway things get worse, or are getting as much ‘‘free stuff.’’ Why? That is just not true, based on the do they get better? Does that mean if Because they served in the military facts. Members can say whatever they we fund a transit system things get and they get veterans’ benefits, vet- want on the Senate floor, and I would worse, or they get better? Does that erans’ health care, and prescription die for a Members’ right to free speech. mean when we fix a pothole or pass a drugs if they are sick. I resent Janice You can put lipstick on it, nail polish, law that you have to wear a seatbelt Rogers Brown’s statements. I resent and dress it up, but the facts are the that things get worse, or things get that statement on behalf of every sen- facts: She stood alone 31 times on a better? ior citizen in this country. You can put court of six Republicans and one Demo- She is an idealogue because the an- lipstick on it, you can put nail polish crat. swer is sometimes government does on it, it is still ugly. Maybe it goes back to what the bar good things, and sometimes we don’t. She calls government ‘‘the drug of said about her, when she was put up for Sometimes we do things we should not choice.’’ She even goes after rugged her position, that she was unqualified, do, and sometimes we don’t do enough. midwestern farmers. She says they are that she did not understand legal But there is no way you can say when looking for big government. precedent. Maybe that explains why government moves in, deceit triumphs Who does she know—a rugged mid- she stands alone, she does not know and we have a debauched culture and western farmer who is looking for the what she is doing. Maybe she does not virtue is contemptible. Is she that crit- Government to support them? And understand it. Maybe she does not get ical of this country? Is she that down ‘‘militant senior citizen.’’ Every time I it; otherwise, why would she find her- on this country? Is she that negative say that I think of grandmothers in self alone so many times? about the greatest country in the Army uniforms marching down the Let’s go back to what has been said world? The answer is, she is. street. These are visions so ridiculous when she was appointed by Pete Wil- Let’s look at some of the other that they have no place being brought son. They received complaints that things she said. When we had the New into this D.C. Court of Appeals. At the Brown was ‘‘insensitive to established Deal, this country was in the middle of end of the day, that means there is legal precedent.’’ In a court of appeals, a terrible depression, and the Congress deep hostility toward our senior citi- that is a key fact. You have to under- and the President passed some overdue zens, toward our workers, toward our stand what the law is, what has come legislation such as the minimum wage farmers, toward our people. before. She ‘‘lacked compassion and in- because people were starving to death. Janice Rogers Brown is way outside tellectual tolerance for opposing views, They said it was important to have a the mainstream to the extreme. misunderstood legal standard and was 40-hour workweek because people were I hope the American people under- slow to produce opinions.’’ being worked to death. Social Security stand why we held her up for so long. Maybe she just couldn’t follow the was instituted at that time. She calls The only reason she is getting the up- reasoning of her colleagues because she this ‘‘the triumph of our own Socialist or-down vote today is she is part of the did not understand the legal prece- revolution.’’ deal to preserve the filibuster for fu- dence, or maybe they were moving too I am assuming, therefore, she thinks ture out-of-the-mainstream folks. We fast for her. Or, maybe she chose just we should go back to the days when we were on the verge of losing that. not to follow it because she lacked did not have Social Security. That is She argued that e-mail messages sent compassion, and she has no intellectual interesting because there are other by a former employee to coworkers tolerance for opposing views, even if it people who feel that way around here. criticizing a company’s employment is legal precedent. So they happily vote for Janice Rogers practices were not protected by the Let’s see what else they said: Brown. Does she think we should go first amendment, but she supported She does not possess the minimum quali- back to the day when children worked corporate speech. That was in Intel v. fications necessary for appointment to the in the workplace? Child labor laws Hamidi. highest court in the State [that is the Cali- were passed around that time. Does she She argued that a city’s rent control fornia State court] the bar commission that think a boss can tell you, you have to ordinance was unconstitutional and a reviews judicial nominees told Gov. Pete work 100 hours? I guess she does be- result of the ‘‘revolution of 1937.’’ The Wilson in a confidential report. cause it is socialism. woman is stuck in the past. She keeps This was printed in the ‘‘Los Angeles And then her famous quote about going back to the New Deal, to 1937. Times’’ April 26, 1996. senior citizens. This is a woman who Get over it. The things that worked One would think that the President’s this President wants to send to the sec- well, we have continued—such as So- men who came up with this idea would ond highest court in the land. Her view cial Security, minimum wage, or the have vetted this person. Why did we of senior citizens is extraordinary: She FDIC, where we protect your deposits. stop her from getting a vote? Simply called senior citizens ‘‘cannibals.’’ I Get over it. The American people de- because we knew the facts. If she want everyone to think of their grand- mand those minimum protections. wasn’t qualified for the California Su- ma right now. Does anyone think of But not Janice Rogers Brown. She preme Court, how does she now get to their grandma as a militant? Does any- does not demand it. She argues that it be qualified for this position? It makes one think of their grandma as stealing was a revolution that the New Deal no sense. from you? Or, rather, that your grand- began. She opposed it and says it is all We will go back to some of the times ma thinks much more about you than about takings and it is all wrong. she stood alone. This case is rather re- she does about herself? I can assure Here is an interesting fact. Janice markable. We have Janice Rogers you that is what we think of our grand- Rogers Brown is on a court with six Re- Brown, a female. A case comes before mas. They will do anything for us, for publicans and one Democrat. People her of a woman who was 60 years old. their grandchildren. But not Janice say, it is California, it is California, ev- She was a superstar working in a hos- Rogers Brown. She accuses senior citi- eryone there is a liberal Democrat. pital, Huntington Memorial Hospital.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6200 CONGRESSIONAL RECORD — SENATE June 8, 2005 She was fired from her job based on age stream. Is it in the mainstream of how about this? An African-American discrimination. Janice Rogers Brown America to side with a rapist over a 17- policewoman needed to rent a place said: year-old girl? Is it in the mainstream and knocked on a door and had the . . . discrimination based on age does not of America to side with an employer door slammed in her face—more than mark its victims with a stigma of inferiority who fires you because you turn 60? It is once, again and again. She sued for dis- and second class citizenship. totally against the State and Federal crimination. Every single member of I ask the average American: A 60- law. that court, the highest court in Cali- year-old employee is perky, who is She was the only member of the fornia, ruled in favor of this police- sharp, who is wise, who is experienced, court to oppose an effort to stop the woman—except Janice Rogers Brown. who has gotten stellar reviews, who sale of cigarettes to children. That case Oh, no. Oh, no. She said: You do not de- does better than almost anyone else, was Stop Youth Addiction v. Lucky serve any damages. You do not deserve but she is fired because someone in Stores. There is a reason there is an or- any award for what you went through. management said, 60, you are out. So ganization called Stop Youth Addic- Too bad. she is out of a job. And this woman had tion—because we all know that tobacco Now, she may not have written it a lot of pride in her work. Maybe it was is so addictive. When you start young, like that in her statement, but at the her whole life, maybe she was so de- it is very hard to kick the habit. I am end of the day she had to look in this voted. We know people like that. Jan- sure everyone in this Chamber who has woman’s eyes, this policewoman’s, and ice Rogers Brown makes a statement ever smoked knows how hard it is to say: Got the door slammed in your face that ‘‘discrimination based on age does kick the habit. The younger you start, three times? Too bad. That is the bot- not mark its victims with a stigma of the more hooked you get. tom line with how she ruled. She might inferiority and second class citizen- Therefore, parents and others who as well have said that. And she stood ship.’’ are advocates are trying to make sure alone. Is that American values? Is that Yesterday in the press conference they cannot go into the store and pur- mainstream America, that someone where I was with a lot of minority chase cigarettes at an underage level. would stand on the side of someone women lawyers, one of them, Elaine She was the only member of the court who slammed the door in the face of Jones, made an important point about to oppose the effort we had going on to someone simply because they did not this case. She said it is fine for Janice ensure that kids do not buy cigarettes. like their appearance, they did not Rogers Brown to think that discrimi- Is that mainstream thought, to go up look like them? Seriously, folks, this is nation based on age does not mark its against parents and families and say it pretty basic American values 101. victim with a stigma of inferiority and is fine for a retail store to go ahead and She is the only member of the court second class citizenship. If she feels sell cigarettes to a kid—your kid, my to find that a disabled worker who was that way, she should run for public of- kid, my grandson? That is not main- the victim of employment discrimina- fice, run for the Senate, go to the stream. It is out of the mainstream. tion did not have the right to raise House and change the laws we have This woman is out of the main- past instances of discrimination that written which say, in fact, it is a stig- stream. That is why the Democrats had occurred. So here is someone who ma to be the victim of age discrimina- have stopped her, until today. We did is saying they were victimized in an tion. This is hurtful, and it does confer use the filibuster on her. We were glad employment situation because they second-class citizenship on the indi- to use the filibuster on her. If it did not were disabled, they wanted to be able vidual. happen that we had this deal, we would to tell about the series of events that Her position is her own opinion. Ev- still be using the filibuster on her, to led up to this particular lawsuit, how eryone has a right to his or her own protect the people of the United States many times this had happened—she opinion. I don’t have a problem with of America from her kind of values had MS and these discriminatory acts that. I don’t agree with her. I think it which stand with a rapist, which stand had taken place over many years—and is mean. I think it is nasty. I think it with the tobacco companies, which Janice Rogers Brown stood alone and hurts our people. But she has a right to stand with those who discriminate. said she did not have the right to raise think that if she wants. What she does She can explain in any way she the past instances of discrimination. not have a right to do as a judge is to wants. We know the results of her Is that an American value, to tell say that the law we passed simply does thinking. She could come up with a someone who has multiple sclerosis, not exist. That is why she is so out of fancy explanation to tell this young 17- who has been discriminated against for the mainstream. We have found that year-old woman, but look her in the years: Well, we are not interested; we age discrimination brings with it a eye and say: Well, your rapist has to are not interested in hearing about the stigma of inferiority and second-class get out because you didn’t say it ex- past; just stick to this one case? citizenship. We have said it is illegal. actly the right way—when every other I do not think, if my colleagues real- It is not legal. Her position is contrary member of the court sided with this 17- ly took the time and the energy and to State and Federal law and puts her year-old girl. the effort to do the kind of work my way outside the mainstream. I am shocked my colleagues are sup- great staff has done on this—and I have And now a look at some of the oth- porting this nominee. And this issue is to say, I heard Senator HATCH say, ers. She is the only member of the not going to go away. These decisions well, all this comes from—what did he court to vote to overturn the convic- are not going to go away. There are say?—liberal groups writing these tion of the rapist of a 17-year-old girl going to be writings about these deci- things. This is painstakingly difficult because she felt the victim gave mixed sions. There is going to be discussion work done by my staff. And they went messages to the rapist. about them. People will be held ac- through it because I said: Did she ever Maybe my colleagues on the other countable for their votes here. They stand alone—because I knew her rep- side want to send someone to this very should be, one way or the other. utation is so out of the mainstream— important court that stands with a If people in my home State are going did she ever stand alone? And they rapist against a victim. I wouldn’t to write and say, Why are you speaking came back to me with this: She stood think so. If one reads details of the out against someone from California, a alone on the side of a rapist. She stood case, members will be shocked by the woman who is a sharecropper’s daugh- alone on the side of people who would details. The young woman already was ter, I am going to say, That is a good discriminate. She stood alone on the raped once. This was a second rape. question, and let me tell you why. She side of tobacco companies against fam- The first man pleaded guilty. He is out of the mainstream to the ex- ilies. That is how I look at it. claimed innocence, but she was the treme, and she is hurting our people. It She said a manager could use racial only member of the court to say this is pretty simple for me. slurs against his Latino employees. young woman did not have a right to She is bad on discrimination. She is Can you imagine coming to work every see this rapist confined to prison. the only member of the court to find day and having to put up with a slur It is shocking to me that my col- that a State fair housing commission about yourself, about your ethnicity, leagues on the other side of the aisle could not award certain damages to about your religion, about your dis- think this woman is in the main- housing discrimination victims. And ability? There has to be some value

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6201 placed on human dignity. Well, you do and in defending a woman they want to out of the mainstream, we are going to not get it when you look at the bring in an expert to talk about bat- stand and be counted. writings of Janice Rogers Brown. You tered women syndrome—why is it that It is not pleasant. It is not nice. It is do not get it when you look at the way a woman, who is otherwise peaceful, not enjoyable. It is not something any- she comes down on a lot of these cases. otherwise decent, with no criminal one looks forward to. She was the only member of the record, no criminal history, would sud- It is unusual to do it, and we did it 10 court who voted to strike down a State denly break out and do violence to an- times. We gave this President a 95-per- antidiscrimination law that provided a other. cent ‘‘yes’’ record of judge confirma- contraceptive drug benefit to women. If you do not understand battered tions, but he is not a happy camper un- There is a very important law in my women syndrome, it makes it difficult. less he gets 100 percent. If I got 95 per- State that says if a woman wants to Janice Rogers Brown was the only cent of the vote, I would be soaring get contraceptives through her insur- member of the court to say a jury high. If I got 95 percent of my bills ance, she should be allowed to. We talk should not hear expert testimony in a passed through here, I would be soaring around here a lot about the right to domestic violence case about ‘‘battered high. I would be so happy if my kids choose and all of that. All of us, I women’s syndrome’’—the only one. listened to me 95 percent of the time. I would hope, would come together in How is that in the mainstream of would be smiling. I would say: Yes, I think you are wrong on that 5 percent, saying we do not want to see so many thinking? How is that in the main- stream of American values? How is but I feel good about it. abortions. That is right. We want to Not this President; he wants 100 per- that going to help us learn more about make sure we reduce the number of cent. It is called the arrogance of abortions. Well, the way you do that is why people would act in a certain way? power. It is called one-party rule. I through contraception. It does not say how a jury has to find. think the American people want to be There was a time and place when They just wanted to have this testi- governed, not ruled. We had a King contraception use was illegal in this mony. All of her colleagues found it George once. It didn’t work out very country, until there was a case in the would be perfectly appropriate. Not well. We like President George better Supreme Court that was actually me- Janice Rogers Brown—out of the main- than King George. But President morialized yesterday, the Griswold stream, in the extreme, standing alone George, as every President, whether it case, which said: No. It is legal. Well, if time after time. was Bill or Harry or you name it—some contraception is legal, why on Earth Janice Rogers Brown, the only mem- day it will be a woman, I can hope— would we discriminate against people ber of the court who voted to bar an every President who reads the Con- who try to use their health insurance employee from suing for sexual harass- stitution knows there is an advice and to get it, their drug benefit to get it? ment because she had signed a stand- consent clause. That means when you So this case comes before the Cali- ard workers’ compensation release put people up for these lifetime ap- fornia Supreme Court, and every mem- form. She was the only member of the pointments, the Senate has an impor- ber of the court—five Republicans and court who said: You do not have the tant role to play. And instead of being one Democrat—except her, except Jan- right to sue if you have been sexually annoyed about it, instead of being ice Rogers Brown, says that is an ap- harassed because you have already bothered about it, instead of feeling it propriate law. So, again, we have some- signed a workers’ comp release form. is cramping your style, you should use one out of the mainstream. If she is so They are two different things. Yet for your power, your effectiveness, your out of the mainstream on contracep- her, no, it was one and the same, and political capital, your charm, use tion, imagine where she will be on the she stood alone in this case as well. whatever you have to come over to the right to privacy, if she gets into that She was the only member of the Senate, to sit down with Senators, to issue. court to find nothing improper about say: Look, I am thinking of putting up She is the only member of the court requiring a criminal defendant to wear Mr. X or Mrs. X. What do you think? to find that a jury should not hear ex- a 50,000 volt stun belt while testifying. It is frustrating because early in the pert testimony in a domestic violence I think we discussed the fact that the Bush Presidency, Alberto Gonzales, case about ‘‘battered women’s syn- U.S. Supreme Court recently made a who was the White House counsel, drome.’’ Now, this one really touches judgment on this, that it is very impor- came over and he did say to me—be- my heart because, fortunately, many tant, in order to have a fair trial—and cause I was against a Ninth Circuit years ago, Senator JOE BIDEN phoned in America that is what we believe in. Court nominee—do you have any good me when I was a House Member, and he Now, I, myself, am very tough on a ideas for who else you might support? I said that he had written a bill called criminal. I would do the worst of the did. I talked to my people, to my Re- the Violence Against Women Act. We worst to someone convicted of a hei- publican supporters. We came in. We knew women were being battered and nous crime because I believe people had six terrific Republican names. We women were being raped. The violence give up their right to be among us if sent them. Nothing. So they asked, but against women was growing, and yet they commit a heinous crime. So I am they never acted. Some of these people there was no Federal response. We have very tough. At the same time, I under- were quite conservative. I think they made tremendous progress in this area. stand you do not want to do something would have been pleased. But this We still have a long way to go. that would prejudice a case. When you seems to be an administration that Mr. President, I have been asked a bring someone into court, before they wants 100 percent of what they want. question. I suggest the absence of a have been found guilty of anything, They don’t want the shared responsi- quorum. and they are wearing a 50,000 volt stun bility of governing. Either they don’t The PRESIDING OFFICER (Mr. belt, it may give a message to the jury. want or they don’t understand or they VOINOVICH). The clerk will call the roll. And that may just result in an over- don’t like the balance of powers, which Mrs. BOXER. Mr. President, I ask turning of a conviction later on. is such a centerpiece of our Govern- unanimous consent that the order for So the California Supreme Court ment. the quorum call be rescinded. found, except for Janice Rogers Brown, We see it on the Bolton nomination The PRESIDING OFFICER. Without it was a mistake. She stood alone. as well. That is not for a judgeship. objection, it is so ordered. So let me finish up in this way. It is That is a nomination for U.N. ambas- The Senator from California. really an extraordinary nomination, sador. But, again, if we could just talk Mrs. BOXER. As we learned more this particular nomination. When the to each other, we could come up with about stopping violence against Democrats stood tall against this someone who would be terrific, instead women, we found out something very nominee, there were reasons. There of having these standoffs, which are ugly, which is sometimes women are in were reasons we stood tall against 10 difficult. They are not pleasant. We are such a desperate circumstance, after nominees. We allowed 208 to move for- not getting a lot of work done because being battered for so long, that they ward, but we stood against 10. We stood of how much time we are talking about lose their center and their balance and against 10 and said: Do you know what. Janice Rogers Brown, because many of they fight back. Sometimes you will We are going to follow historic prece- us believe she is so out of the main- have a case that comes before a court, dent. If we believe these nominees are stream, we can’t let it go. That is why

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6202 CONGRESSIONAL RECORD — SENATE June 8, 2005 I so respect the moderates who came and State courts. For the years when I the law in society. She has done it con- up with the agreement because part of served the Governor of Colorado as his sistently in the past. I believe that is that agreement said in the future the lawyer, I administered for the Gov- the role of a legislator, not the role of President should talk to us more, espe- ernor the process of choosing judges in a judge. I believe that kind of judicial cially about Supreme Court nominees. Colorado. When I later served as attor- activism is absolutely wrong in our We are at a place and time where we ney general for my State, I chose, with courts, no matter what ideology it have proven one point, that when we Governor Owens and the chief justice spawns from. stood up against these 10 judges and al- of Colorado, those who could select Third, I believe Janice Rogers Brown lowed 208 to go through, it wasn’t arbi- judges under Colorado’s Constitution. does not have the right temperament trary or capricious or nasty or per- My views on the qualifications of to be a judge on the Federal appellate sonal. It was because these people are judges to serve on any court have been bench. When a person accepts the sol- out of the mainstream. I well remem- forged over years of working on judi- emn mantle of the robes and the duties ber when George Bush was declared the cial selections. Among the most impor- of the judiciary, I believe she must winner in 2000, he came right out and tant characteristics we rightly demand agree by temperament to place her own said: I am going to govern from the of our Federal judges are that they personal legal and social views in the middle. have an open mind, are free from bias, background. She must accept that Here is where we are: George Will, and a temperament that does not in- while a judge, though she can have her ‘‘ ‘Extraordinary’ Rhetoric.’’ George flame passions. Janice Rogers Brown, own personal views, she must not cause Will calls Janice Rogers Brown out of in my view, fails these tests. people to perceive her as unfair, if she the mainstream. George Will is very First, I do not think Ms. Brown will is as strident about those views as she rightwing and he calls her out of the be fair in the ways a Federal judge has been demonstrated by her record. mainstream. He says it is a fact that must be fair. I have come to believe Again, Janice Rogers Brown does not she is out of the mainstream. Ms. Brown is driven ideologically and meet the test of the temperament of The Mercury News says: that she will prejudge some of the most someone to be on the Circuit Court of As an appellate judge who would hear the important legal cases and issues that Appeals for the D.C. Circuit. I believe bulk of challenges to Federal laws coming come before a Federal appellate court. litigants and others who watch the ju- out of Washington, Janice Rogers Brown’s I base my conclusions on her written diciary are correct to perceive that appointment would be disastrous. She’d be record and on her own statements. Janice Rogers Brown may not treat likely to strike down critical environmental, When any person has a case to bring them fairly as she considers a par- labor laws and antidiscrimination protec- before a Federal judge on any issue, ticular case against the backdrop of tions. Brown, though, has infused her legal that person has a right to insist that her own personal views that are obvi- opinions with her ideology, ignoring higher court rulings that should temper her judg- the judge will listen carefully to all the ously so strongly felt. ment. arguments on the facts and the law I also believe Ms. Brown is nomi- with an especially fair and open mind nated to serve on the wrong court. She That was the from San Jose Mercury that considers carefully all the points is nominated to serve on the appellate News, a very mainstream newspaper in made on every subject, pro or con. This court where her ideology can do the Silicon Valley. right to absolute fairness by a Federal most damage to our Federal and State From the Sacramento Bee that sits tribunal is a bedrock of our constitu- governments. in the heart of the capital of Cali- tional judicial system. It is just com- The Circuit Court of Appeals for the fornia: monsense, and it is an idea that is very District of Columbia is our Nation’s The minority in the Senate certainly is well understood by everyone in this most prestigious court of appeals with justified in filibustering a lifetime appoint- regard to all matters dealing with Gov- ment of Brown. Nation. . . . The Court of Appeals for the District of There is another simple way to say ernment. Through venue provisions Columbia Circuit is the last place we need a this. No one wants to walk into court found throughout the Federal statutes, judge who would impose 19th century eco- before a case is heard and know already Congress often and intentionally nomic theory on the Constitution and 21st how the judge is going to rule. Yet this chooses this court exclusively to hear century problems. is exactly the problem with Janice matters concerning Government agen- The issue isn’t Brown’s qualifications; it’s Rogers Brown. She is so driven by her cies. These are legal matters that go to her judicial philosophy. ideology on issues such as the proper the very heart of how our Government I see my friend from Colorado is here. role of the Government and adminis- operates through our administrative I will stop now and thank him for the trative agencies—or the role of ideas of agencies, agencies that affect the lives work he did on that compromise on the private property that separates con- of our citizens every day all across our filibuster. I was not a happy person stitutional and unconstitutional gov- country. that Janice Rogers Brown was in the ernment regulation—that it is very ob- The District of Columbia court is our group, but our side had to give up vious how Ms. Brown is going to rule Nation’s expert court in administrative something. I have spent days express- on these matters, even before she hears law. While that is an abstract legal ing why I hope there will be a strong a case. concept, it is also a very important vote against her. She is out of the There are many quotes from Ms. matter to all ordinary citizens in Colo- mainstream. Brown that illustrate this point. A rado and across the Nation. I thank the Chair and yield the bal- good example is from a speech to the Yet Janice Rogers Brown is abso- ance of my time to Senator SALAZAR. Federalist Society on April 20, 2000, lutely hostile to our Government and The PRESIDING OFFICER (Mr. where she said: to administrative agencies and to their COBURN). The Senator from Colorado. Where government moves in, community essential work. Janice Rogers Brown is Mr. SALAZAR. Mr. President, I retreats, civil society disintegrates and our the wrong person to elevate to this im- thank the distinguished Senator from ability to control our own destiny atrophies. portant Federal appellate court. It is California for her eloquent statement The result is: families under siege; war in the for these reasons that I will vote to op- concerning Janice Rogers Brown. streets; unapologetic expropriation of prop- pose the nomination of Janice Rogers erty; the precipitous decline of the rule of I rise today to state my opposition to law; the rapid rise of corruption; the loss of Brown to the District of Columbia her confirmation to serve as a judge on civility and the triumph of deceit. The result Court of Appeals. the U.S. Court of Appeals for the Dis- is a debased, debauched culture which finds I also want to add another quick trict of Columbia. I have carefully con- moral depravity entertaining and virtue con- point. As I have listened to the debate sidered her record and have unfortu- temptible. here on the floor of the Senate today, nately concluded that Ms. Brown is not These are extreme views, to say the there has been some sentiment ex- the right choice to serve as a judge on least. pressed that perhaps the opposition of the District of Columbia Federal court. Second, Ms. Brown is an activist some of my colleagues in the Demo- I have had the privilege of extensive judge. From my review of her record, I cratic caucus has to do with her back- experience in judicial selection in the believe she will use the court as a vehi- ground, with the fact that she is Afri- State of Colorado, both for the Federal cle to forward her own personal view of can American. I will tell you, from the

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6203 work of my colleagues on this side of and legislative language to reach her Brown to try to dismantle the very the aisle, they have been champions of decisions. The cases are San Remo laws that we have forged over time opportunity for all people, they believe Hotel v. City-County of San Francisco, through debate and consensus to pro- we live in America, that we should be 2002, dissenting; Richards v. CH2M Hill, tect our rights and keep us safe in talking about uniting our country and Inc., 2001, dissenting; Catholic Char- America today? not dividing our country, and yet it is ities of Sacramento v. Superior Court During the past 9 years, Justice a nomination of Janice Rogers Brown, of Sacramento County, 2004, dissenting. Brown has made her legal philosophy with her views of activism in the Fed- Justice Brown has stated in a lone clear through both her public speeches eral court, which they have called ap- dissent concerning the State statute and her legal opinions as a Justice on propriately into question and which requiring prescription contraceptive the California Supreme Court. She has, some of my colleagues on the other coverage that if the corporation’s fe- time and time again, demonstrated side have now been saying somehow male employees do not like being dis- that she will be a movement judge— has the Democratic caucus as being criminated against, they are free to someone who will determine the ulti- anti-African American. find, ‘‘more congenial employment.’’ mate outcome of a case based on her There could be nothing further from The case is Catholic Charities of Sac- political beliefs instead of on the facts the truth. The opposition that has been ramento v. Superior Court of Sac- and law before her. Justice Brown has voiced against Janice Rogers Brown ramento County, 2004, dissenting. been inconsistent in her interpretation has nothing to do with her personal Taken individually, these stances of the law, following precedent when it ethnicity. It has to do with the fact might not be cause for some to oppose helps her to arrive at a desired result that the conclusions that have been this nomination. However, looking at and rejecting precedent as non-binding reached based on a review of her record the whole picture I believe there is a when it will not achieve her desired indicate that she will inject her own pattern of behavior that leads me to ends. This is precisely the type of indi- personal views as an activist judge into conclude that Justice Brown is not vidual who should not receive a seat on the D.C. Circuit Court of Appeals. qualified to serve on the D.C. Circuit the D.C. Circuit Court of Appeals, Therefore, I again reiterate my posi- Court of Appeals. For these reasons, I which is considered the second highest tion that I will vote against her con- opposed limiting debate on her nomi- court in the country and a stepping- firmation, and I urge my colleagues in nation in 2003, and continue to do so stone to a seat on the U.S. Supreme the Senate to do the same. today. Court. I yield the floor. Unfortunately, I will be necessarily We should not approve any individual (At the request of Mr. REID, the fol- absent for the votes that will occur re- for a lifetime tenure position as a Fed- lowing statement was ordered to be lated to this nominee. However, I did eral judge who would use her position printed in the RECORD.) feel it necessary to express my position ∑ Mr. JEFFORDS. Mr. President, I on this important nomination.∑ to achieve results consistent with an would like to express my opposition to Mr. CORZINE. Mr. President, I urge extreme political philosophy regardless the nomination of Janice Rogers all of my colleagues in the U.S. Senate of the facts and law. And I believe this Brown to the D.C. Circuit Court of Ap- to reject the nomination of Janice Rog- to be true regardless of what the ex- peals. ers Brown to the District of Columbia treme political philosophy may be. Our The D.C. Circuit Court of Appeals is Circuit Court of Appeals. I strenuously goal must always be to ensure the inde- considered the second highest court in oppose this nomination because I be- pendence and fairness of our courts. the Nation. This court of appeals, com- lieve that her appointment to a life- This is the very reason that Federal pared to other circuit courts of ap- time tenured position on the D.C. Cir- judges receive lifetime appointments: peals, has sole jurisdiction over many cuit Court will lead to the destruction to guarantee that they will not be sus- laws and Federal agency regulations of so many of the achievements we ceptible to political pressure or undue and decisions. Given the limited num- have struggled to achieve during the influence. Our goal must be to sustain ber of cases the U.S. Supreme Court past 70 years—the creation of a social this level of independence so that all considers every year, this means the safety net, the advancement of civil citizens can be confident that, when DC Circuit Court of Appeals has the rights for all Americans, and the pro- they bring a case in Federal court, last word on important laws and their tection of workers throughout our they will receive a fair hearing, based interpretation. country. When I say achievements I am on the facts and law and not upon one Justice Janice Rogers Brown has a talking about many of the laws passed individual’s political beliefs. compelling life story, but a compelling by the U.S. Congress, for during the We must place the value of an inde- life story is not enough to be confirmed past 70 years we have created the heart pendent judiciary above the partisan to a lifetime appointment to the fed- of what is today our modern American politics of the day and refuse to ap- eral bench. While she deserves recogni- government. Congress has set the prove purely partisan political nomi- tion for her upbringing and work in the standard for our Nation—from social nees such as Janice Rogers Brown. The community, I am concerned that Jus- security and minimum-wage laws to U.S. Senate has a constitutional obli- tice Brown’s personal opinion, rather homeland security and regulation of gation to advise the President on judi- than the law, compels her decisions in the business industry—by establishing cial nominations. As part of this obli- some cases. laws that provide tremendous benefits gation, the Senate must fight to ensure Some other areas of concern I have and protections for all Americans. the continued existence of an inde- with Justice Brown’s nomination in- I am deeply troubled by the nomina- pendent and fair judiciary. We must clude: tion of Janice Rogers Brown, a jurist never forget that our courts depend, Justice Brown has advocated for a re- who has made no secret of her disdain first and foremost, on the judges who turn to the time when the Supreme for government and her desire to over- hear arguments, preside over trials, Court struck down many important turn many of the most important laws and issue rulings each and every day. economic regulations and workplace passed by Congress during the past 70 The only way we can maintain a strong laws on constitutional grounds. The years. She will dismantle the founda- judiciary is if we approve only the case is Santa Monica Beach v. Sup. Ct. tion of our democracy, challenging the most qualified individuals to lifetime of LA County, 1999, dissenting. right of Congress to pass laws to help appointments as Federal judges. And so Justice Brown has argued that those our citizens. Keep in mind that when I we must approve nominees who possess seeking to enforce the statutory prohi- speak about Congress, I am not dis- the very traits we value most in our ju- bition against disability discrimina- cussing people from one political party diciary—fairness, independence, and an tion are ‘‘individuals whose only con- or the other; rather, I speak of the col- allegiance to the rule of law. That is cern is their own narrow interest.’’ The lective will of the American people, why I urge my colleagues to reject Jan- case is Richards v. CH2M Hill, Inc., which is forged so often through bipar- ice Rogers Brown, an individual who 2001, dissenting. tisan agreement and compromise be- has consistently failed to demonstrate Justice Brown has ignored or mis- tween legislators from both political these traits. An individual who would, construed Supreme Court precedent parties. And so I ask, who is Justice in my view, insert her extremist legal

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6204 CONGRESSIONAL RECORD — SENATE June 8, 2005 philosophy into the courts in an at- Justice Brown in a lone dissent—one of These cases affect the interpretation of tempt to undo years of Congressional her many—on the California Supreme the Constitution as well as statutes in- legislation and legal precedent. Court. In San Remo Hotel L.P. v. City tended by Congress to protect the There should be no doubt that Jus- and County of San Francisco, a case rights of all Americans, such as the tice Brown espouses an extreme legal contesting the legality of a San Fran- right to equal protection of the laws philosophy far outside the mainstream cisco development fee used to promote and the right to privacy. Specifically, of American legal thought. The Presi- affordable housing, Justice Brown the D.C. Circuit Court is the most like- dent has selected a number of appellate issued a dissent espousing the same ly venue where Federal regulations and court nominees, including Justice legal argument outlined by Epstein in government actions will be upheld or Brown, who embrace a radical legal Lingle—that the court should look overturned. theory frequently referred to as the more critically on economic regula- Yet Justice Brown, throughout her ‘‘Constitution in Exile.’’ The ‘‘Con- tions and give less weight to the wishes career, has demonstrated an open hos- stitution in Exile’’ theory is based on of the legislature. In rejecting the prin- tility towards government. This hos- arguments put forth by Judge Douglas ciples of the Constitution in Exile tility is concerning given that, if Jus- Ginsburg and Professor Richard Ep- theorists, the Supreme Court explicitly tice Brown serves on the D.C. Circuit, stein. Ginsburg and Epstein believe rejected the argument set forth by Jus- she will play a decisive role in evalu- that individuals have certain rights tice Brown in her San Remo dissent. ating government actions. and liberties, including ‘‘economic lib- Although there should be no need for For example: erties’’, and that any government that additional evidence that Justice In a 1999 speech Justice Brown stat- infringes upon these so-called liberties Brown’s legal philosophy falls outside ed: is ‘‘repressive.’’ This theory, advocated of the mainstream, the decision in My thesis is simple. Where government ad- by Justice Brown, argues that the U.S. Lingle provides powerful proof that vances—and it advances relentlessly—free- government represses its citizens when Justice Brown falls far outside the dom is imperiled; community impoverished; it takes land to build schools and pays boundaries of established legal religion marginalized; and civilization itself the owner fair market value, estab- thought. marginalized. lishes worker safety and minimum- For all these reasons, let me again At a 2000 Federalist Society event, wage laws, and institutes zoning and urge my fellow colleagues to reject the Justice Brown stated: other regulations. Indeed, the ‘‘Con- nomination of Janice Rogers Brown. Where government moves in, community stitution in Exile’’ theorists call into We must reject extremist judges like retreats, civil society disintegrates, and our question the decisions of some of the this who fall outside of the mainstream ability to control our own destiny atrophies. most important government agencies— and who will use the federal judiciary The result is: families under siege; war in the the EPA, the FCC, the SEC, and even to dismantle so many of the progres- streets; unapologetic expropriation of prop- the Federal Reserve—and argue that sive accomplishments we have fought erty; the precipitous decline of the rule of these agencies are themselves uncon- so hard to achieve during the past 70 law; the rapid rise of corruption; the loss of stitutional. years. civility and the triumph of deceit. The result This legal theory is so far outside the is a debased, debauched, culture which finds Mrs. FEINSTEIN. Mr. President, of moral depravity entertaining and virtue con- mainstream that even the most con- all the nominations contested in the temptible. servative jurists on the U.S. Supreme past few weeks, Justice Brown’s is the The Senate should not confirm a Court recently rejected its premise. A clearest cut. Justice Brown has given judge to this important court who has unanimous Supreme Court—including numerous speeches over the years that shown such blatant contempt for the conservative justices such as Scalia express an extreme ideology that is far government. Again, to be clear, if it and Thomas, with whom I don’t gen- outside the mainstream of American were only hyperbolic statements in erally agree—handed down a decision jurisprudence. In those speeches, Jus- speeches then maybe we could look on May 23, 2005, in Lingle v. Chevron, tice Brown used stark hyperbole, and past the rhetoric. However, the ex- No. 04–163,—S.Ct.—, 2005 WL 1200710 startlingly vitriolic language which treme views expressed in Justice (May 23, 2005) that squarely rejects the has been surprising, especially for a Brown’s speeches also emerge in the ‘‘economic liberty’’ theory of takings State supreme court justice. asserted by ‘‘Constitution in Exile’’ But statements alone would not be opinions she has rendered as a judge. theorists. enough for me to oppose her nomina- In various cases involving even mod- Lingle addressed questions of eco- tion. Rather, my concern is that her est government regulations she has nomic liberty in the context of chal- personal views drive her legal decision- issued opinions that ignore the law and lenges to Hawaii’s rent-control regula- making. On far too many occasions, established precedent. tions. The case tested whether the she has issued legal opinions based on One example I would like to discuss ‘‘Constitution in Exile’’ theory oper- her personal beliefs, rather than exist- involves a property issue in my home ates within the mainstream of Amer- ing legal precedent. city, San Francisco, and it is a case ican legal thought because advocates of I am troubled that Justice Brown is with which I am familiar since the or- the theory, including Richard Epstein, bound by her personal views of what dinance was enacted during the time I argued that the Supreme Court should the law should be rather than following served in San Francisco’s government. look more critically on economic regu- the law as written and enacted. This is The case is San Remo Hotel v. San lations and give less deference to legis- especially troubling for a candidate Francisco. In response to a low-income lative judgments. The Supreme Court who is being nominated to the D.C. Cir- housing emergency for elderly resi- strongly rejected this approach; writ- cuit Court of Appeals. dents, San Francisco enacted an ordi- ing for the Court, Justice O’Connor dis- The D.C. Circuit is an especially im- nance requiring hotels to obtain a per- missed the argument that the Court portant court in our Nation’s judicial mit before converting long-term resi- should adopt a more critical approach system. It is recognized as the most dential housing into short-term tourist to economic regulations and noted the prestigious and powerful appellate hotel rooms. strong need for deference to the judg- court below the Supreme Court because To obtain a permit, hotels either had ment of state legislatures. O’Connor of its exclusive jurisdiction over con- to provide mitigation for the removal further stated that ‘‘’government regu- stitutional rights and government reg- of the residential rooms by offering al- lation—by definition—involves the ad- ulations. ternative housing, or pay a fee to be justment of rights for the public good.’’ Given this exclusive role, the judges used for the relocation of tenants. In Lingle demonstrates that Justice serving on this court play a special role San Remo Hotel v. San Francisco, the Brown stands far outside the legal in evaluating government actions. owners of a hotel sued the City of San mainstream. Beyond the defeat of the Each year, the Supreme Court rou- Francisco, claiming that the ordinance general principles espoused by the tinely reviews fewer than 100 cases. constituted an illegal ‘‘taking’’ of prop- ‘‘Constitution in Exile’’ theorists, the Therefore, circuit courts, like the D.C. erty by the city. Lingle decision serves as an explicit re- Circuit, end up as the forums of last re- Following U.S. Supreme Court prece- jection of the legal theory set forth by sort for nearly 30,000 cases each year. dent, the California Supreme Court

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6205 held that the ordinance did not con- drugs to include prescription contra- preted as ‘‘motivated by politics rather stitute a ‘‘taking’’ of the hotel’s prop- ceptives in their coverage. In her dis- than the law.’’ erty since the ordinance did not phys- sent, she suggested that, if women had When examining her record, it ap- ically ‘‘invade’’ the property and since a problem with their inequitable treat- pears that the thread of logic sewn the ordinance ‘‘substantially ment, they were free to find ‘‘more through her legal opinions is her desire advance[d] legitimate state interests.’’ congenial employment,’’ and stated to achieve a predetermined outcome In contrast, Justice Brown wrote in that because women seeking contracep- based on her personal views. In case her dissent in the San Remo case that: tion were a minority of insured em- after case, Justice Brown significantly Private property, already an endangered ployees, striking down the law would changes her legal reasoning to imple- species in California, is now entirely extinct have a ‘‘negligible effect.’’ ment a results-oriented approach based in San Francisco. The City and County of Based on her pattern of taking this on her view of what the law should be. San Francisco has implemented a neo-feudal contrarian role, she has been widely When Justice Brown wanted to limit regime where the nominal owner of property criticized, even among her Republican the explicit right to privacy in Califor- must use that property according to the colleagues, for her caustic writings. nia’s Constitution, she argued: ‘‘Where, preferences of majorities that prevail in the as here, a state constitutional protec- political process—or worse, the political Sources on the court reportedly stated that her fellow justices have privately tion was modeled on a Federal con- powerbrokers who often control the govern- stitutional right, we should be ex- ment independently of majoritarian pref- complained about her ‘‘poison pen’’ and tremely reticent to disregard U.S. Su- erences. have called Justice Brown a ‘‘loose cannon when she has a typewriter in preme Court precedent delineating the The majority described Justice scope and contours of that right.’’ front of her.’’ Brown’s dissenting opinion by saying But when the question of remedies Republican Chief Justice Ronald M. that she argued, with little citation or for a violation of constitutional rights George has even taken the unusual support, that ‘‘government should reg- arose, she said: ‘‘Defaulting to the high step of pulling her aside and asking her ulate property only through rules that court fundamentally disserves the to tone down her scathing criticism of the affected owners would agree indi- independent force and effect of our rectly enhance the value of their prop- majority rulings. Constitution. Rather than enrich the In addition to her tone, her legal rea- erties.’’ texture of our law, this reliance on soning has often been criticized by her If this view were the law it would Federal precedent shortchanges future colleagues. In one example, Nike v. make it almost impossible for any city, generations.’’ State, or local government to make Kasky, Nike was accused of providing These cases both involved the role of any policies for the benefit of the com- abusive conditions for their overseas precedent and following the decisions munity as a whole. No local govern- workers including forced overtime, ex- of previous courts. However, depending ment could downzone property, no Fed- posing workers to health hazards, and on the facts of the case Justice Brown eral agency could prepare a habitat subjecting workers to verbal, physical changed her legal opinion about wheth- conservation plan. Under Justice and sexual mistreatment. er judges should follow precedent; in Brown’s analysis they would all be ille- Nike denied the mistreatment and one case she discussed the importance gal takings of one kind or another. made numerous statements touting a of following precedent, yet in the other The majority decision of the Cali- positive record and was sued for mis- she argued that reliance on precedent fornia Supreme Court went on to criti- representing its labor practices at can be harmful. cize Justice Brown for attempting to Asian factories. When examining the role of juries ‘‘impose’’ her own ‘‘personal theory of The majority of the California Su- and their ability to evaluate a case, political economy on the people of a preme Court determined the state- once again, Justice Brown makes con- democratic state.’’ ments made by Nike were commercial flicting arguments. Furthermore, Justice Brown’s writ- speech and thus entitled to less con- In order to limit damages against ten opinion was at odds with the cur- stitutional protection. employers in worker discrimination rent legal precedent of the U.S. Su- Justice Brown dissented, saying the suits, Brown wrote: preme Court at that time. And, in fact, speech should have been protected even When setting punitive damages, a jury earlier this year, Lingle v. Chevron, if false. In her dissent, Brown called on does not have the perspective, and the re- the U.S. Supreme Court to overturn a sulting sense of proportionality, that a court the U.S. Supreme Court unanimously has after observing many trials. rejected a takings analysis similar to long line of cases which distinguish But, when criminal defendants’ the one set forth in Brown’s dissent in commercial and noncommercial cases—not businesses—were being eval- San Remo. speech. uated, Justice Brown wrote: Nevertheless, Justice Brown per- Republican Justice Kenard criticized mitted her personal views to over- Brown’s dissent, saying: I do not share the majority’s dim view of Sprinkled with references to a series of jurors. Rather, I would presume, as we do in whelm her obligation as a judge to fol- virtually every other context, that jurors are low the law. While Justice Brown cer- children’s books about wizardry and sorcery, Justice Brown’s dissent itself tries to find intelligent, capable of understanding in- tainly has a right to private views that the magic formula or incantation that will structions and applying them to the facts of may conflict with the law, a judge may transform a business enterprise’s factual rep- the case. not substitute her personal opinions resentations in defense of its own products Justice Brown’s conflicting legal rea- for the law. and profits into noncommercial speech ex- soning also appears when her decisions I also believe it is illuminating to put empt from our state’s consumer protection examine the assessment of damages. Justice Brown’s views and legal opin- laws. When the plaintiffs were victims of em- ions in the context of the court of I am deeply troubled when a Justice’s ployment discrimination, Justice which she is a member. own colleagues express grave concerns Brown supported limits on punitive Justice Brown often stands on an is- about an individual’s legal reasoning, damages. But, when the plaintiffs were land by herself as the lone dissenter on and demonstrate a willingness to open- property owners in a mobile home park a court made up of six Republican jus- ly criticize a fellow member of the who had to previously abide by rent tices and only one Democratic justice— bench. control laws, she opposed any limit on approximately one-third of the cases An overarching principle of both Re- damages. she has written have been dissents, and publicans and Democrats is that the In each of these contrasting exam- in 10 percent of those cases, she has role of a judge is to follow the law, re- ples, Justice Brown has used legal rea- been the lone dissenter. gardless of one’s personal ideology. soning that has conflicted. It is con- For example, in the 2004 case of Yet, repeatedly, Justice Brown has al- cerning when a judge seems to alter Catholic Charities of Sacramento v. lowed her personal opinion to override her legal reasoning based on her per- Superior Court of Sacramento County, a fair application of the law and has al- sonal view of a case, rather than em- Justice Brown cast the sole dissenting tered her legal reasoning in order to ploying consistent legal reasoning re- vote. She argued against upholding a achieve a desired result. Law school gardless of who is making the argu- State statute that requires employers professor Gerald Uelmen said that Jus- ment, or who would be impacted by its whose insurance covers prescription tice Brown’s opinions may be inter- effect.

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6206 CONGRESSIONAL RECORD — SENATE June 8, 2005 Based on this record, parties in a Many of these judges are activists who Environmental Protection Agency re- case have no idea whether Justice simply cannot understand that their role is garding the purity of the water we Brown will rely on precedent or decide to interpret the law, not to make it . . . I led drink and the air we breath; workers’ the fight to oppose the confirmation of these it is an impediment, whether she will two judges because their judicial records in- right to the minimum wage and over- defer to the legislature or decide it’s dicated that they would be activists who time compensation guaranteed by the time for her or other judges to make would legislate from the bench. Fair Labor Standards Act; rights to or- law; whether she will trust the jury to Legislating from the bench, being an ganize unions and bargain over the evaluate the case or decide they cannot ‘‘activist’’ judge, has been a concern of terms and conditions of employment make the necessary evaluations; or members of both parties. It is a basic under the National Labor Relations whether she will protect unlimited principle used when evaluating nomi- Act; and decisions by the Federal damages or order that there needs to nees—judges must follow the law, not Trade Commission regarding deceptive be limits on damages. manipulate the law to serve their own or unfair trade practices that injure Those who come before a court need political ideology. consumers. The decisions of the D.C. to be assured that they are going to be As I have discussed today, Janice Circuit on these and many other sub- given a fair hearing with an impartial Rogers Brown is widely opposed by a jects have a real and immediate impact arbiter. Justice Brown’s record dem- broad coalition of prominent leaders on the lives of all Americans. onstrates that those who come before and organizations, she has been criti- Justice Brown’s hostility to the role her court will not have such assur- cized by her Republican colleagues on and work of government in modern ances. the court, and she has made astound- America are particularly disturbing for Not surprisingly, Justice Brown’s ingly vitriolic statements about every- someone nominated to the D.C. Circuit. nomination has ignited strong and far- thing from senior citizens to the gov- She has repeatedly said that she views reaching opposition. Both Senators ernment. government as a negative influence on from her home State and almost two While each of these concerns raises American life, contrary to the moral dozen members of California’s congres- significant questions about her quali- fiber of our Nation. On one occasion, sional delegation oppose her nomina- fications to serve on the D.C. Circuit she stated that ‘‘when government tion. Court of Appeals, for me, most impor- moves in, community retreats, civil so- The Congressional Black Caucus op- tantly, Janice Rogers Brown does not ciety disintegrates, and our ability to poses her nomination, as does every meet the basic principle used to evalu- control our own destiny atrophies. . . . major African American organization ate judicial nominees by both parties— The result is a debased, debauched cul- in the country, including the National will they follow the law? ture which finds moral depravity enter- Black Chamber of Commerce, NAACP, Unfortunately, Janice Rogers taining and virtue contemptible.’’ On the National Bar Association, the Cali- Brown’s record does not demonstrate another occasion, she wrote that fornia Association of Black Lawyers, that she will be able to put aside her ‘‘where government advances . . . free- and the Leadership Conference on Civil personal views and follow the law. dom is imperiled; community impover- Rights. Mr. KOHL. Mr. President, I oppose ished; religion marginalized and civili- The California Association of Black the confirmation of Justice Janice zation itself jeopardized.’’ She has also Lawyers stated: Rogers Brown to the U.S. Court of Ap- remarked that the New Deal era of the We would like to see an African American peals for the D.C. Circuit. It is unfortu- 1930s ‘‘marks the triumph of our own female be elevated to a higher court. nate that the President has chosen to socialist revolution.’’ But as the group’s president went on resubmit for our consideration this Her commentary on legal theory is to explain: failed nomination from the President’s no less extreme. We do not see how we can support someone first term. Both in her public record on She has railed against what she sees who is diametrically opposed to our goals. the California Supreme Court and in as a judiciary that has distorted and In adddition, unlikely conservative her writings and speeches off the misinterpreted the Constitution. She commentators have affirmed concerns bench, Justice Brown has compiled a has stated that since the 1960s, ‘‘we raised by opponents of Justice Brown’s remarkable record of extremism, of have witnessed the rise of the judge nomination: ideologically motivated decision mak- militant.’’ She also claims that modern ing, of intemperance in her public National Review Senior Editor Romesh judicial rulings have caused the Con- Ponnuru discussed Brown’s troubling state- statements, and of a judicial philos- stitution to be ‘‘demoted to the status ments and her willingness to embrace judi- ophy unquestionably out of the main- of a bad chain novel.’’ She continues to cial activism and concluded that ‘‘if a liberal stream. Such a record makes her en- argue in favor of long discredited and nominee to the courts said similar things, tirely unsuitable for a life tenured po- overturned legal doctrines which were conservatives would make quick work of sition on the D.C. Circuit. used to strike down worker protection her.’’ Justice Brown’s extraordinary views and social welfare laws over 100 years George Will concluded that Justice on the role and nature of government ago. Brown is ‘‘outside of that mainstream’’ convince me that there is a substantial Other examples of Justice Brown’s of conservative jurisprudence; and risk that her views and legal philos- thinking are equally troubling. She has Conservative columnist Andrew Sul- ophy are so far outside the mainstream contended that senior citizens ‘‘can- livan wrote: as to pose a very real threat to our nibalize’’ their grandchildren by asking Whatever else she is, she does not fit the civil rights and civil liberties. Her for society’s support in old age via so- description of a judge who simply applies the views on the role and work of Govern- cial security. And speaking recently at law. If she isn’t a ‘judicial activist,’ I don’t ment in modern America are particu- a church on ‘‘Justice Sunday,’’ Brown know who would be. larly disturbing for someone nomi- proclaimed a ‘‘war’’ between religious Evaluating judicial nominations is a nated to the Federal bench, and specifi- people and the rest of America. very difficult process, and it is one that cally the D.C. Circuit. We have heard nominees that have ignites passionate feelings from all Justice Brown has been nominated to come before us before argue that they sides. Clearly, Presidents from dif- what is considered by many to be the should not be held to their record be- ferent parties will choose very dif- second most important court in the na- cause it merely reflects positions they ferent nominees for the Federal courts. tion. The D.C. Circuit is unique among advanced as advocates for their clients. However, there are basic principles the Federal courts of appeals as the This defense is not available to Justice that every nominee must follow re- court that reviews decisions of the ex- Brown. These are opinions that she gardless of which party is in power. ecutive branch and the independent held solely on her own behalf, in her As Senator HATCH stated in 1996 when agencies. The rules and regulations re- own speeches and writings in which she opposing the confirmation of Judge H. viewed by this court are felt by average was advancing no one’s agenda but her Lee Sarokin to the U.S. Court of Ap- citizens across the Nation every day. own. peals for the Third Circuit and Judge These include worker safety rules Her record on the California Supreme Rosemary Barkett to the U.S. Court of issued by the Occupational Safety and Court does not allay our concerns. She Appeals for the Eleventh Circuit: Health Administration; the rules of the has been consistently unsympathetic

VerDate Mar 15 2010 20:34 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\2005SENATE\S08JN5.REC S08JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 8, 2005 CONGRESSIONAL RECORD — SENATE S6207 to the rights of those asserting civil preme Court lead me to believe that But more than this, my colleagues rights or employment discrimination she will let her personal bias dictate and I helped steer a better course with claims. And, on many occasions, she her consideration of issues of law. I this compromise. A course for jobs, op- has been the lone dissenter on an al- cannot trust the impartiality of some- portunity, better education, and future ready conservative court. She dis- one who may be considering issues in- peace. I hope the President will reflect sented from a case which upheld a pro- volving Medicare or Social Security upon the resolve of these 14 Senators to hibition on an employee’s use of hate- who says that senior citizens ‘‘blithely protect and respect the minority and ful racial invective in the workplace; cannibalize their grandchildren be- do so by sending us nominees who will from a decision that held that a city cause they have the right to get as respect the law and not come exclu- rent control ordinance did not con- much ‘free’ stuff from the political sys- sively from the far fringes of the polit- stitute an unconstitutional taking of tem.’’ Nor can I accept that she will be ical spectrum. private property; from allowing work- impartial when she says that age dis- I am open to discussing nominees ers over age 40 to bring age discrimina- crimination ‘‘does not mark its victim with the President. I make this offer in tion claims; and from a case which with a stigma of inferiority.’’ Tell that good faith and in the same spirit as one found that sexual intercourse after a to the 50 year old waitress who loses a of his original campaign promises from woman told her assailant to stop con- job because she doesn’t look ‘‘pretty’’ 2000: to change the culture in Wash- stituted rape. Her frequent dissents are anymore, and ends up getting replaced ington. Here is what then-Governor compelling evidence regarding how her by a younger, less experienced person. Bush said in a speech at that time: Janice Rogers Brown has been nomi- personal views affect her judicial deci- ‘‘There is too much argument in Wash- nated to the Court of Appeals for the sionmaking. ington and not enough shared accom- District of Columbia Circuit, the court In light of this record, it is not sur- plishment. . . . As President, I will set that closely oversees the actions of prising—but nonetheless telling—that a new tone in Washington. I will do ev- Federal agencies—more than any other both of Justice Brown’s home state erything I can to restore civility to our Circuit Court. It is widely recognized Senators oppose her confirmation, a national politics.’’ in the legal community as the second virtually unprecedented situation for My colleagues on this compromise most important court in the country. an appellate court nominee. have already helped set that new tone Citizens come to the D.C. Circuit to en- An appeals court judge’s solemn duty for the Senate. I urge him to work with force fair labor practice decisions made and paramount obligation is to do jus- the entire Senate on judicial nominees. by the National Labor Relations Board, tice fairly, impartially, and without worker safety protection regulations of I am ready to forge this new civility in favor. An appeals court judge must be the Occupational Safety and Health Washington. I know future nominees judicious—that is, she must be open Administration, regulatory decisions will be conservative just as all of the minded, must be willing to set his per- made by the Federal Communications 208 previously confirmed Bush nomi- sonal preferences aside, and judge with- Commission and the Environmental nees have been. I fully accept that fact. out predisposition. And, of course, she Protection Agency, and much, much But I also expect future nominees to be must follow controlling precedent more. fair and to have shown their fairness faithfully, and be able to disregard But Janice Rogers Brown has said and impartiality by their words and completely any views she holds to the that ‘‘where government moves in com- their deeds. Janice Rogers Brown has contrary. In the case of Justice Brown, munity retreats, civil society disinte- not. we are presented with a nominee who grates. . . . The result is: families The PRESIDING OFFICER. The time has a well-documented record, in nu- under siege; war in the streets; is now controlled from 4 to 4:10 by the merous writings and speeches, of views unapologetic expropriation of property; Senator from Vermont. that are so extreme, and so far outside the . . . decline of the rule of law . . . Mr. LEAHY. Mr. President, I see the the mainstream, that she fails this a debased, debauched culture which distinguished President pro tempore on basic test. finds moral depravity entertaining. the Senate floor. I understand that he For these reasons, I must continue . . . ’’ She also called the New Deal, is going to ask consent that we recess. my opposition to her confirmation to which gave us Social Security and the I first ask unanimous consent that my this crucial judgeship. Tennessee Valley Authority, programs time not begin until after the time nec- Ms. LANDRIEU. Mr. President, Soc- that exist today, ‘‘the triumph of our essary for the distinguished senior Sen- rates said, ‘‘Four things belong to a own socialist revolution.’’ With senti- ator from Alaska, and I yield to him. judge: to hear courteously, to answer ments such as these I can only wonder The PRESIDING OFFICER. Without wisely, to consider soberly, and to de- what she thinks of Medicare, Medicaid, objection, it is so ordered. cide impartially.’’ To date, the Senate child nutrition programs, agricultural f has confirmed 209 of President Bush’s subsidies, No Child Left Behind, and a VISIT TO THE SENATE BY MEM- judicial nominees. The vast majority of whole host of other programs that give them received overwhelming support BERS OF THE U.S.-CHINA INTER- opportunity to our citizens and help PARLIAMENTARY GROUP from this body. We looked at their people live up to their given potential. records and decided that they had the To me, these programs are not social- Mr. STEVENS. Mr. President, I have qualities that Socrates described. Jan- ism; they are what a compassionate so- the honor to present to the Senate the ice Rogers Brown, however, lacks these ciety does for its people. Chinese delegation from the National qualities and falls far short of this So I will vote against the confirma- People’s Congress to the U.S.-China ideal. I sincerely regret that the Presi- tion of Janice Rogers Brown. I do so Interparliamentary Group meeting. Its dent has asked this body to confirm knowing that she will likely be con- leaders standing beside me are Vice her to a lifetime appointment to the firmed. Her nomination is moving for- Chairman and Secretary General of the District of Columbia Circuit Court of ward because she was one of the nomi- Standing Committee of the National Appeals. nees that 13 of my colleagues and I People’s Congress, Mr. Sheng Huaren. This is no reflection on her indi- agreed to no longer filibuster. I want to He is joined by the Chairman of the Na- vidual accomplishments. She comes talk about this agreement just for a tional People’s Congress Foreign Af- from a very humble background, a moment. fairs Committee, Mr. Jiang Enzhu. We sharecropper’s daughter, and has taken First, I must say that the com- also have the Vice Chairman of the Na- full advantage of all that this country promise was essential to avoid a seri- tional People’s Congress Law Com- has to offer to become a Supreme Court ous breakdown in the Senate rules and mittee, Mr. Hu Kangsheng; the Vice judge. She has gained some wisdom its functions. It represents the Senate Chairman of the National People’s Con- from this experience, I am sure, and I at its best and upholds the traditional gress Foreign Affairs Committee, Mr. have no doubt that she will take her constitutional role of the Senate as the Yang Guoliang; then the Vice Chair- job as a judge seriously, soberly. protector of the rights of minority in- man of the National People’s Congress My greatest concern lies with her im- terests when they were seriously Foreign Affairs Committee, Mr. Lu partiality. Some of her statements and threatened and perhaps irrevocably Congmin; Mr. Lu Baifu, who is a mem- her decisions on the California Su- ended. ber of the National People’s Congress

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