E PL UR UM IB N U U S Congressional Record th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, FIRST SESSION

Vol. 151 WASHINGTON, MONDAY, JUNE 6, 2005 No. 73 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, June 7, 2005, at 2 p.m. Senate MONDAY, JUNE 6, 2005

The Senate met at 2 p.m. and was EXECUTIVE SESSION Mr. FRIST. Mr. President, as a re- called to order by the President pro minder to our colleagues, the cloture tempore (Mr. STEVENS). vote on the Brown nomination is NOMINATION OF JANICE ROGERS scheduled for noon tomorrow. I hope PRAYER BROWN TO BE UNITED STATES and expect that cloture will be invoked The Chaplain, Dr. Barry C. Black, of- CIRCUIT JUDGE FOR THE DIS- at that time and that we will be able to fered the following prayer: TRICT OF COLUMBIA CIRCUIT move quickly to an up-or-down vote on Let us pray. The PRESIDENT pro tempore. Under her nomination. The Democratic leader Almighty God, creator and sustainer the previous order, the Senate will pro- and I will be talking shortly this after- of the universe, take the misshapen ceed to executive session to resume noon and will make more specific plans clay of our lives and remake us into consideration of Calendar No. 72, which in terms of voting times and give some vessels fit for Your use. Remind us that the clerk will report. idea of how quickly we can move with we may make plans, but You have the other nominations. final word. The assistant legislative clerk read Help us to remember that even when the nomination of Janice Rogers We do have another cloture vote on we think we are right, You judge our Brown, of , to be United the Pryor nomination, which would im- motives. Give us the wisdom to share States Circuit Judge for the District of mediately follow the up-or-down vote our plans with You so that You will Columbia Circuit. on Janice Rogers Brown. order our steps. RECOGNITION OF THE MAJORITY LEADER In addition to those judicial nomina- Today, bless all who labor in the leg- The PRESIDENT pro tempore. The tions, we have agreements to debate islative branch of Government. Deliver majority leader is recognized. and vote on of two Sixth Circuit judi- us from pride and help us to avoid evil Mr. FRIST. Mr. President, I have just cial nominations, as well as one DC paths. Remind us that our No. 1 pri- a few announcements and then I will Circuit Court nominee. This week, we ority should be to please You. Em- have a short statement. We will have a may also reconsider the vote with re- power each Senator to embrace hon- full day of debate today on the nomina- spect to the Bolton nomination. As you esty and truth as he or she seeks to tion of Janice Rogers Brown. To allow can tell, we have a very busy week as keep America strong. We pray this in for an orderly debate, I now ask unani- we return from recess. I thank our col- Your holy Name. mous consent that following the re- leagues in advance as we move through Amen. marks of myself and the Democratic these issues. f leader, the chairman of the Judiciary Mr. President, I will have a brief PLEDGE OF ALLEGIANCE Committee be recognized to speak. opening statement as well, but I now Further, I ask that the time from 3 to yield to the Democratic leader. The PRESIDENT pro tempore led the 4 be under the control of the Demo- Mr. REID. Mr. President, I thank the Pledge of Allegiance, as follows: cratic leader or his designee, and the majority leader. We do have our week I pledge allegiance to the Flag of the time from 4 to 5 be under the control of cut out for us. I think the Republican United States of America, and to the Repub- lic for which it stands, one nation under God, the majority leader or his designee. I leader and I will get together later indivisible, with liberty and justice for all. further ask that the time from 5 to 5:30 today to try to make a decision as to be under the control of the other side what we are going to do later. If we get f of the aisle, and the time from 5:30 to through this block of judges that the RESERVATION OF LEADER TIME 6 be under the control of the majority. leader talked about, we should be in The PRESIDENT pro tempore. Under The PRESIDENT pro tempore. Is pretty good shape to move on to other the previous order, leadership time is there objection? things and take the judges on a more reserved. Without objection, it is so ordered. regular basis, not eating up so much

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6076 CONGRESSIONAL RECORD — SENATE June 6, 2005 time. This is something the leader and bama, Janice Rogers Brown has ergy sources—a comprehensive energy I will discuss. climbed to the peaks of the legal pro- plan that will make America safer and We have a work period of 4 weeks, so fession. She was educated in segregated more secure and will inject much need- there is much we have to do because, as schools and worked her way through ed jobs into the economy. the Presiding Officer knows, we are en- college and law school. She went on to I thank Chairman DOMENICI and Sen- tering the appropriations process time, serve in prominent positions in Cali- ator BINGAMAN for their hard work and which is always very hectic. We need to fornia State government. for working together to get this bill turn to that as soon as we can. I hope Today, Janice Rogers Brown is a jus- out of committee and ready for the we can move through the appropria- tice on the California Supreme Court, floor on a strong, bipartisan vote. tions bills one at a time and not have the first African-American woman to I am confident that we can move for- to do an omnibus or a continuing reso- serve on California’s highest court. Her ward in the same bipartisan spirit on lution. That would be better for indi- fellow California judges, both Demo- the Senate floor to move this bill vidual Senators, our States, and our crat and Republican, have called her a quickly and get it to conference with country. ‘‘superb judge’’ who ‘‘applies the law the House and have it on the Presi- As I have said, we have devoted a lot without favor, without bias, and with dent’s desk for his signature. America needs an energy policy that of time to this situation on judges. an even hand.’’ reflects our modern economic and secu- After this week, we should be able to The people of California believe she rity challenges. is doing a great job. They reelected her move on to other items. I hope so. In the days ahead, we will address The PRESIDENT pro tempore. The with 76 percent of the vote, the highest the Energy bill and we will complete majority leader is recognized. voting percentage of all of the justices action on the highway bill, which is Mr. FRIST. Mr. President, I welcome on the ballot. currently in conference. As soon as our colleagues back from the Memorial The Senate will have a spirited de- that conference completes its action, Day recess. I know everybody enjoyed bate on Justice Brown’s nomination, we will bring it to the floor. We will ad- spending time with family and friends but I hope Senators will remember that dress the President’s nominees and a and constituents, reconnecting with this is about treating nominees with host of other issues. the people we serve. It is always a very fairness. Nominees deserve not only a As we do so, I am determined to work busy time during a recess period, and fair up-or-down vote but to be treated with my colleagues on both sides of the this particular recess period, because it fairly during the debate. Civility is aisle to take whatever action is nec- was the Memorial Day recess, where more than a word. It is a value we must essary—that bold action to move everybody did take that day—or sev- all work to uphold in our deliberations, America forward. eral days or moments on several days— and may that be respected on the floor We have made great progress in the to pause and honor the brave Ameri- of the Senate. 109th Congress thus far. We passed fair cans who made the ultimate sacrifice Before the recess, the Senate voted and thoughtful legislation to end class in the course of their service to our Na- up or down on Justice action and bankruptcy abuse. We took tion and in the cause of liberty. and she was confirmed. I hope this quick and decisive action to support In addition to Memorial Day, it was progress will continue with Justice our troops in the field and to give relief a time of graduations, a time of com- Brown this week and with Judge Pryor for the victims of the tsunami disaster. mencements for students, whether it be this week, as well as future nominees. We passed the Genetic Nondiscrimina- from elementary school, middle school, We should have a very positive week on tion Act, a victory that will provide high school, college, or graduate judges. As long as that progress con- protections against genetic discrimina- school. A number of our colleagues par- tinues, a process that continues to give tion in health insurance. And we are ticipated—I am sure most colleagues these up-or-down votes, gives these now finally giving judges the votes participated in graduation ceremonies nominees the consideration they de- they deserve. at all of those levels over the last cou- serve, not blind obstruction of the Con- We passed a budget in the fifth fast- ple of weeks. stitution, the constitutional option, of est time in Senate history. I also hope that last week was a time course, will not be needed. We are leading today on tomorrow’s when people rested and recharged their Our job as Senators is to govern with challenges. We can be proud of our ef- batteries because, as was just implied meaningful solutions, and we must al- forts to expand freedom here at home in the remarks of the Democratic lead- ways remain focused on that larger pic- and across the globe. er and myself, we have a very busy 4 ture of making America safer and With mutual trust and civility and a weeks ahead of us. We have a lot of stronger and more secure. That is why sharp focus on our ultimate goals, we can continue to deliver to the Amer- work to do in a very short period of it is imperative that we address mat- ican people the solutions they need and time before we have the Fourth of July ters such as America’s intolerable de- the leadership our Nation deserves. recess. pendence upon foreign oil. We have Mr. President, I yield the floor. Today, we will continue, shortly, to gone on for more than a decade with- The PRESIDENT pro tempore. The debate the nomination of Janice Rog- out a comprehensive national energy Senator from Pennsylvania is recog- ers Brown to the DC Circuit Court of policy. It is time now to change that. nized. Appeals. After having been delayed for As a result, we have become dependent Mr. SPECTER. Mr. President, I have 2 years by partisan obstruction, she on foreign sources of oil, putting our sought recognition to support the pro- will finally receive a fair up-or-down security and our economy at risk. That ceeding to invoke cloture, cut off de- vote—something she deserves. It will is too long. It is time for us to act bate, on California State Supreme be this week on the floor of the Senate. now—not just talk about it—for fami- Court Justice Janice Rogers Brown, So I am very pleased because that dem- lies worried about gas prices as they and to bring her to a vote for confirma- onstrates real progress in this body. So anticipate summer driving, for families tion to the Court of Appeals for the after 2 years of partisan obstruction, who have to sacrifice next winter to District of Columbia Circuit. Justice she is going to receive an up-or-down pay their heating bills. They expect us Brown comes to this body with a truly vote. to act, and we will in this body on the outstanding academic and professional The President made a great choice in floor of the Senate and deliver for the record. She is a graduate of the Cali- selecting Judge Brown to serve on the American people. fornia State University-Sacramento in Federal bench. I have had the oppor- We must diversify our sources of en- 1974. She received her law degree from tunity to meet and spend time with ergy and balance new production with the University of California at Los An- Judge Brown personally and have stud- conservation and development of re- geles in 1977 and then has had an illus- ied her record. She is a woman of great newable resources. trious career in government in the accomplishment and talent. She is We must do so in a way that reduces practice of law and on the bench. She tough, smart, and principled. Her story our reliance on foreign sources—by in- has served in very important legisla- is nothing short of remarkable. creasing America’s domestic produc- tive roles with the California Legisla- From humble beginnings as a share- tion of clean coal, oil, and gas, nuclear, tive Counsel Bureau where she was dep- cropper’s daughter in segregated Ala- solar, ethanol, and other renewable en- uty legislative counsel. She was deputy

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6077 attorney general for some 8 years; dep- held up in committee, and that was vote and allow them to exercise their uty secretary and general counsel for payback, in effect, for what had hap- independence. I think if the 100 Sen- the State of California Business, Trans- pened for the last 2 years of President ators were left to our own judgments portation and Housing Agency for 3 Reagan’s administration and the 4 as to what kind of a nominee ought to years, and then came to the court of years of the administration of the first be filibustered, Justice Janice Rogers appeals, which is an intermediate ap- President Bush. Brown would never have been filibus- pellate court in California, for 3 years When the Republicans won control of tered. Similarly, if we Senators—Re- before becoming a justice on the Su- the Senate, the Democrats then re- publicans on the situation of the con- preme Court of California, where she sorted to the filibuster, which was the stitutional or —had been has sat since 1996 until the present first systematic use of the filibuster left to our own judgment, we would time. against judicial nominees in the his- have rejected the idea of having the During the midst of her career, she tory of this country. That was followed constitutional or nuclear option. has gone on to get a master’s degree at by President Bush’s use of the interim So we have come to a situation now the School of appointment power, the first time in where at least we have moved to con- Law in the year 2004 which, I would history that the interim appointment firm Justice Owen, and we are on the say, is quite an achievement for some- power had been used for a judicial brink of the confirmation process of one who has been in the California nominee after a rejection by the Sen- Justice Brown with, as we all know, court to take on that kind of academic ate, albeit by the filibuster route. That the agreement of some 14 Senators that endeavor and to earn a master’s degree. stopped when there was a commitment there would not be a filibuster as to Beyond her professional work, she made not to use it any more, and the Justice Brown. has been very active in the community, nomination process went forward. It is true that if you take a look at working with the Youth for Citizenship Let us take a look at the record of some of Justice Brown’s statements in which serves young people, high school Justice Janice Rogers Brown and take a context of diplomacy, they might students, teaching them history, a look at the record of Justice Owen, have been left better unsaid, but if ev- civics, reasoning, and debating skills. now Judge Owen confirmed to the Fifth erybody in public life—and that would She is a participant in a program Circuit Court of Appeals, or Judge even include Senators—were held to called ‘‘Playing by the Rules’’ spon- Pryor, whose nomination will be before every last syllable that each of us ut- sored by a local baseball team, which the Senate hopefully in the next sev- tered, it would not be a very difficult brings together lawyers, judges, base- eral days. We have confirmed many cir- matter to go through the tracks of ball, and elementary and junior high cuit judges during my tenure since my speeches each of us has made and find school students to explore life lessons, election in 1980, all which I have spent some items on which to be highly crit- good citizenship, and the rule of law. in the service of the Judiciary Com- ical. She is a founding board member of mittee, who had records not as good as Justice Brown has been criticized for Rio Americano High School’s Academy those of Justice Brown or Justice Owen a comment which she made criticizing Civitas, a 3-year program which spe- or Judge Pryor. Had we had not been in Justice Holmes’ dissent in Lochner, cializes in history and political philos- this situation of holding up judges where she referred to the ‘‘triumph of ophy and seeks to encourage civic vir- when one party controlled the White our own socialist revolution’’ in 1937. tue by having students participate in House and the other controlled the But if we take a look at Justice internships with Government agencies. Senate and the exacerbation of this sit- Brown’s decisions, we find her deci- She is the first African-American uation, we would not have reached the sions are not in line with that kind of woman to serve on California’s highest critical stage in which the Senate has a loose condemnatory statement. court. She is the daughter of share- been in the immediate past. In Lochyer v. Shamrock Foods, Jus- croppers, having been born in Green- We have seen a situation where the tice Brown joined the court’s opinion ville, AL, in 1949, 5 years before Brown filibuster went on and, in my own per- upholding California’s stringent stand- v. Board of Education. She attended sonal opinion—and I have expressed ards, which exceeded Federal stand- segregated schools and came of age in this at some length in prior floor state- ards, for identifying and labeling milk the midst of Jim Crow policies in the ments—Democrats were not really and milk products. That is hardly an South, which is not easy to do. pleased with this systematic filibuster. inactive government. With all of that, she has had an ex- That led to the potential retaliation of In the case of Lungren v. Superior traordinary and really illustrious ca- the Constitution or nuclear option. I do Court, she joined the court’s opinion, reer. not think many, if not most, of the Re- broadly construing the phrase ‘‘source I suggest to my colleagues in the publicans were pleased with that sort of drinking water’’ in the State’s clean Senate that the confirmation process of an alternative. But the whole situa- water statute so that plaintiffs could of Justice Janice Rogers Brown would tion had spiraled out of control. proceed with their case. Again, not ex- not be nearly so complicated if it were As Senators, we do have a funda- actly denial of governmental author- not set in a timeframe where, for the mental constitutional obligation to ity. past two decades, virtually, there has consent, if we choose to do so, to the In the case of Ramirez v. Yosemite been an exacerbation of the issue of President’s nominees to the bench. Water Co., she joined the court in up- confirmation of judges when one party This is an advice and consent function holding State regulations regarding held the White House and the other po- under the United States Constitution. overtime pay that applied greater pro- litical party held the Senate and the That does specify—I think it is more tection to workers than Federal law. Judiciary Committee. than implication, I think it is really Here, again, that is active State regu- I have served on the Judiciary Com- specification—that there be inde- lation. mittee since my election in 1980. I per- pendent judgment used by Senators in In Pearl v. Worker’s Compensation sonally observed, in the last 2 years of coming to that decision. Just as there Appeals Board, she joined the court’s President Reagan’s administration, is a requirement of independence, if opinion, upholding the Worker’s Com- after Democrats won control of the there is to be separation of power, then pensation Board’s stringent standards Senate in the 1986 election, that the the party which controls the White for ensuring the safety of workers, process was slowed down, and the proc- House ought not to be an automatic awarding the plaintiff, an injured po- ess was further slowed down during the rubberstamp for the President. Simi- lice officer, higher benefits; again, full 4 years of the administration of larly, the party out of power ought not sound judicial thinking and not exactly President George Herbert Walker Bush. to be an automatic filibustering ma- denial of the authority of the State to I have detailed these in previous floor chine; there ought to be independent legislate and look after the common statements and will not now reiterate judgment. And that is why I had urged welfare. them. the leaders, again in extended floor She made a statement with respect Then, in the last 6 years of President statements which I shall not now re- to discrimination saying it is not ‘‘. . . Clinton’s administration, nearly 70 peat, to liberate their Members from based on age is not . . . like race and nominees by President Clinton were the straight party-line, straitjacket sex discrimination. It does not mark

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6078 CONGRESSIONAL RECORD — SENATE June 6, 2005 its victim with a ‘stigma of inferiority OPPOSITION—BROWN’S CRITICISMS OF BIG The innuendo that this jurist is insensitive to and second class citizenship’; it is the GOVERNMENT racial bias disparages her firm commitment unavoidable consequence of that uni- JUSTICE BROWN’S CRITICS OVERLOOK A RECORD to civil rights versal leveler: time.’’ ON THE BENCH OF MODERATION Consider Justice Brown’s lone dissent in Much of the criticism of Justice Brown centers People v. McKay. There she argued for the That is perhaps an effort to be schol- on speeches she made off the bench, but exclusion of evidence of drug possession that arly, perhaps to be poetic, but hardly does not hold up next to her judicial opin- was discovered after the defendant was ar- disqualifying. ions rested for riding his bicycle the wrong way If we take a look at her opinions on Most notably, Justice Brown criticized the on a residential street. demise of the and the rise of the Justice Brown had this to say: ‘‘In the the bench, they demonstrate a very in a speech before the Federalist spring of 1963, civil rights protests in Bir- distinctive regard for civil rights. In Society. While her speech was indeed critical mingham united this country in a new way. of Justice Holmes’ dissent in Lochner, her People v. McKay, hers was the lone dis- Seeing peaceful protesters jabbed with cattle judicial opinion on the subject in Santa sent, arguing for the exclusion of evi- prods, held at bay by snarling police dogs, Monica Beach, Ltd. v. Superior Court criti- dence of drug possession that was dis- and flattened by powerful streams of water cized Lochner in terms echoing the United covered after the defendant was ar- from fire hoses galvanized the nation. With- States Supreme Court. out being constitutional scholars, we under- rested for riding his bicycle the wrong Justice Brown also has been attacked for way on a residential street. Her dissent speeches that criticize government as prof- stood violence, coercion, and oppression. We pointedly suggested that the defendant ligate in creating new rights and privileges understood what constitutional limits are was the victim of racial profiling and and redistributing wealth. Again, the attack designed to restrain. We reclaimed our con- included an impassioned critique of loses force when the focus turns to her judi- stitutional aspirations. What is happening now is more subtle, more diffuse, and less that practice. cial opinions, which are untainted by per- sonal ideology. To give just a few examples, visible, but it is only a difference in degree. In Kasky v. Nike, the court held that she has voted to employ an expansive inter- If harm is still being done to people because Nike’s statements denying mistreat- pretation of a state clean water statute so they are black, or brown, or poor, the oppres- ment of overseas workers constituted that plaintiffs could proceed with their case; sion is not lessened by the absence of tele- vision cameras.’’ commercial speech subject to the State upheld the right of a plaintiff to sue for ex- truth in advertising laws. Justice posure to toxic chemicals using the govern- Justice Brown criticized what she called ment’s environmental regulations; upheld ‘‘the disparate impact of stop-and-search Brown dissented saying that Nike’s state regulations regarding overtime pay; procedures of the California Highway Patrol. speech constituted noncommercial and upheld a workers compensation board’s The practice is so prevalent, it has a name: speech worthy of more strict first stringent standard for ensuring the safety of ‘Driving While Black.’ ’’ workers. amendment protection. Upon appeal, When you read such powerful statements, In a recent column, law professor Jonathan the Supreme Court denied certiorari, you have to wonder whether this judge, far Turley, a self-described ‘‘pro-choice social but in opinions issued by Justices liberal,’’ points out that ‘‘Brown’s legal opin- from being too conservative, may not in fact Breyer and Stevens, there were strong ions show a willingness to vote against con- be a bit too liberal for some of my friends suggestions that if the Court had taken servative views . . . when justice demands who have opposed her. the appeal, Justice Brown’s position it’’ and that Democrats should confirm her. OPPOSITION—BROWN’S RULINGS ON THE FIRST might well have been upheld, in a very The attempt to brand her as an extremist, AMENDMENT derived from a combination of half-truths difficult case, where it is hard to draw and the extremism of her critics, is dema- Justice Brown’s First Amendment opinions have the line as to what constitutes com- goguery of the first order, and should not be been distorted permitted to obstruct the confirmation of a mercial speech or what is noncommer- When she is cognizant of First Amendment jurist who has been a credit to the bench. cial speech entitled to more stringent rights in a discrimination case, she receives protections under the first amendment. OPPOSITION—BROWN’S RULINGS ON CIVIL no credit. Her critics simply turn to three RIGHTS In this case, as in so many others, other First Amendment cases to spin an at- Justice Brown’s rulings on racial bias have been tack that she gives broad protection to cor- Justice Brown demonstrated a real distorted porate speech while shortchanging indi- concern for constitutional protections. In Peatros v. Bank of America, she dis- vidual free speech. In re Brown, she wrote the court’s sented on grounds that a state law-based dis- In one case, Justice Brown wrote a plu- opinion reversing a verdict and death crimination claim was preempted by the Na- rality opinion upholding an injunction tional Bank Act. The dissent in fact deferred sentence on grounds that the pros- against gang members congregating in a to federal jurisdiction under the Supremacy specified area in San Jose, a position sup- ecutor deprived the defendant of a fair Clause and notably pointed to Title VII as ported by the Democratic mayor of the city trial by failing to discover and disclose the appropriate civil rights provision to in- at the time, the Los Angeles Times, and the an arguably exculpatory blood test. voke in an area governed by federal law—a San Francisco Examiner. far cry from an ideologue who appreciates In Visciotti, she dissented from the neither federal authority nor civil rights In another, Justice Mosk, the California majority opinion, arguing that a de- laws. Supreme Court’s late, liberal icon, joined fendant’s death sentence should be set Another subject of attack was her dissent Justice Brown in a dissent that would have upheld an injunction against a disgruntled aside on grounds of ineffective assist- from Aguilar v. Avis Rent A Car System, a decision upholding an injunction against the former employee sending disruptive mass ance of counsel. use of racial slurs in the workplace. emails. In the interest of time, I am not Unmentioned in the attack is that her dis- In the third case, Kasky v. Nike, Justice going to delineate any more of Justice sent was based on well established First Brown dissented on grounds that Nike’s Amendment prohibitions on prior restraint Brown’s opinions, but I would like to speech deserved more stringent protection and that she was joined by the court’s late than was provided by a California law. This put into the RECORD some summaries liberal icon, Justice Mosk. third case provides the hook for her detrac- of criticism of Justice Brown where she In Hi-Voltage Wire Works v. City of San tors’ spin, but the baselessness of the cri- has been criticized for her attitude to- Jose, Justice Brown deferred to precedent in tique is underscored by strong evidence that ward big Government, where she has her court opinion invalidating a minority a majority of the United States Supreme contracting program under Proposition 209. been criticized for some rulings on civil Court would have taken her position had it That issue was so straightforward that every considered the merits. rights, where she has been criticized judge who reviewed it from the trial court on for rulings on the first amendment, and up reached the same result—including every In dismissing the writ of certiorari, Justice member of the state supreme court. Stevens, joined by Justices Ginsburg and where she has been criticized for rul- Souter, noted in the same vein as Justice ings on criminal law. Justice Brown’s opinion asserted that ‘‘dis- crimination on the basis of race is illegal, Brown that the case involved ‘‘novel First I ask unanimous consent that these immoral, unconstitutional, inherently Amendment questions.’’ summaries be printed in the RECORD. wrong, and destructive of democratic soci- Justice Breyer, joined by Justice O’Con- ety.’’ nor, stated in a dissent to the dismissal of There being no objection, the mate- Justice Brown further acknowledged that certiorari in Kasky that ‘‘it is likely, if not rial was ordered to be printed in the ‘‘equal protection does not preclude race- highly probable’’ that the law violated the RECORD, as follows: conscious programs.’’ First Amendment.

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6079 OPPOSITION—BROWN’S RULINGS ON CRIMINAL ence on the California appellate bench. She The PRESIDING OFFICER (Mr. LAW is well-regarded by her colleagues and known BURR). The clerk will call the roll. Justice Brown has demonstrated her respect of to be a person of great intellect, integrity The assistant legislative clerk pro- Fourth Amendment rights and has argued and dedication. Moreover, Justice Brown is a first-rate judge respected by many for her ceeded to call the roll. for reversing verdicts or sentences for cap- Mr. FRIST. Mr. President, I ask ital defendants even-handed and unbiased application of the law.’’ unanimous consent that the order for In addition to the dissent in People v. Letter from Ellis Horvitz, a Democrat and the quorum call be rescinded. McKay that I cited, she wrote the court’s one of the deans of the appellate bar in Cali- opinion in In re Brown reversing a verdict The PRESIDING OFFICER. Without fornia, to the Honorable Orrin G. Hatch, Sep- objection, it is so ordered. and death sentence in a case where the pros- tember 29, 2003: ecutor deprived the defendant of a fair trial ‘‘In my opinion, Justice Brown [possesses] Mr. FRIST. Mr. President, we are in by failing to discover and disclose an argu- those qualities an appellate justice should the midst of debate on Janice Rogers ably exculpatory blood test. have. She is extremely intelligent, very con- Brown. I know we have the time di- In In re Visciotti, she dissented from the scientious and hard working, refreshingly ar- vided from 3 to about 6 tonight. I ask majority opinion, arguing that a defendant’s ticulate, and possessing great common sense to speak for about 7 minutes as in death sentence should be set aside on and integrity. She is courteous and gracious grounds of ineffective assistance of counsel. morning business. to the litigants and counsel who appear be- The PRESIDING OFFICER. Without Mr. SPECTER. I ask unanimous con- fore her.’’ objection, it is so ordered. sent that quotations from certain of Undated Letter from Regis Lane, Director The majority leader is recognized. Justice Brown’s supporters be printed of Minorities in Law Enforcement, a coali- tion of ethnic minority law enforcement offi- FIRST ANNIVERSARY OF RONALD REAGAN’S in the RECORD. cers in California, to Chairman Orrin G. DEATH There being no objection, the mate- Hatch. rial was ordered to be printed in the Mr. FRIST. Mr. President, yesterday ‘‘We recommend the confirmation of Jus- marked the first anniversary of the RECORD, as follows: tice Brown based on her broad range of expe- passing of President Ronald Wilson QUOTES FROM SUPPORTERS—WHAT THOSE rience, personal integrity, good standing in WHO KNOW HER BEST ARE SAYING ABOUT the community and dedication to public Reagan, the 40th President of the JUSTICE BROWN service . . . In many conversations with Jus- United States. I will take a moment to Letter from a bi-partisan group of 12 of tice Brown, I have discovered that she is reflect very briefly on his extraor- Justice Brown’s current and former judicial very passionate about the plight of racial dinary life and on his leadership that colleagues (including all of her former col- minorities in America, based on her upbring- changed history. leagues on the Court of Appeal, Third Appel- ing in the south. Justice Brown’s views that Ronald Reagan was raised in a small all individuals who desire the American late District and four current members of dream, regardless of their race or creed, can town, and it was those small-town the California Supreme Court) to the Honor- and should succeed in this country are con- roots that never, ever left him. As he able Orrin G. Hatch, October 16, 2003: explained when he grew up in a small ‘‘Much has been written about Justice sistent with MILE’s mission to ensure Brown’s humble beginnings, and the story of brighter futures for disadvantaged youth of town, reflecting on those small-town color.’’ her rise to the California Supreme Court is roots, in his words: truly compelling. But that alone would not Mr. SPECTER. One of the cases You get to know people as individuals, not be enough to gain our endorsement for a seat which I studied in law school was the as blocs or members of special interest on the federal bench. We believe that Justice famous dissent by Justice Oliver Wen- groups. You discover that despite their dif- Brown is qualified because she is a superb dell Holmes, who argued for dissent ferences, most people have a lot in common: judge. We who have worked with her on a and for freedom of speech, saying what . . . [W]e all want freedom and liberty, daily basis know her to be extremely intel- I think is, if not the most famous peace, love and security, a good home, and a ligent, keenly analytical, and very hard quotation in Supreme Court history— chance to worship God in our own way; we working. We know that she is a jurist who all want the chance to get ahead and make applies the law without favor, without bias, that is pretty hard to categorize—cer- our children’s lives better than our own. tainly one of the most famous where he and with an even hand.’’ Ronald Reagan believed that the Statement of former senator and governor said that ‘‘time has upset many fight- , for whom Justice Brown served ing faiths.’’ Government should serve the people. between 1991 and 1994: That is why we encourage inde- He believed that America’s strength ‘‘She served as my legal affairs secretary pendent thought. That is why we en- came from creativity, ingenuity, and for three years because a number of excellent courage dissent. There are many dis- productivity of the people, not the lawyers in the state, whose judgment I trust, sents which have become the law of the plans of Government bureaucrats or said, ‘You will not do better.’ They were the theories of intellectual elites. This right. She was not only a legal scholar—so land. Dred Scott was overturned. Plessy v. Ferguson on segregation was core belief guided everything he did, that I could rely upon her judgment as to everything he said. what the law was—she was an excellent overturned. Brown v. Mississippi estab- guide when I was trying to decide what the lished the rule of due process of law for When he came to office, the Amer- law ought to be . . . I would simply say to State court criminal proceedings, and ican economy was in shambles. Infla- you that, by intellect and by character, by dissenting opinions of Brandeis and tion was in double digits. Interest rates experience, by capability, Justice Brown de- Holmes and Cardozo have become the were soaring. The American worker serves not only a vote, but deserves a seat on law of the land. was demoralized. He set about slashing the District Court of Appeals, where I pre- So when one sees someone who might Federal income taxes and cutting bur- dict she will, if seated, be a brilliant addi- not conform exactly to the kind of densome regulations. It was his mis- tion.’’ Letter from a bi-partisan group of 15 Cali- thought or might be a little more sion to free the American worker and fornia law professors to the Honorable Orrin colorful in phraseology, it is not nec- unleash the American entrepreneur. G. Hatch, October 15, 2003: essarily something to be discouraged. His sweeping tax reforms overhauled ‘‘We know Justice Brown to be a person of If one takes a close reading as to what the Tax Code and removed 6 million high intelligence, unquestioned integrity, Justice Brown has had to say, she is taxpayers from the tax rolls. By the and even-handedness. Since we are of dif- worthy of confirmation by this Senate. time he left, it was morning in Amer- fering political beliefs and perspectives, As we analyze nominees for the Federal ica. President Reagan believed in the Democratic, Republican and Independent, we aspirations and dignity of the indi- wish especially to emphasize what we believe court, as we analyze nominees for any is Justice Brown’s strongest credential for important position, we ought not to vidual. As he said in his second inau- appointment to this important seat on the discourage individualism, independ- gural address, there are no limits to D.C. Circuit: her open-minded and thorough ence, and free thought. The phrase that growth in human progress when men appraisal of legal argumentation, even when ‘‘time has upset many fighting faiths,’’ and women are free to follow their her personal views may conflict with those encouraging independence and free dreams. arguments.’’ thought has been a great bulwark for He reminded the American people Letter from 18 members of the California the progress of this country. that economic liberty and human free- delegation in the House of Representatives to the Chairman and Ranking Member of I yield the floor, and in the absence dom were two sides of the same coin. this committee, April 14, 2005: of any other Senators seeking recogni- He reminded the world that freedom is ‘‘Janice Rogers Brown is an outstanding tion, I suggest the absence of a the birthright of all peoples. Some call jurist with more than eight years of experi- quorum. it the Reagan Revolution. Others call

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6080 CONGRESSIONAL RECORD — SENATE June 6, 2005 it the Reagan Restoration. I prefer the Government’s true intentions with re- claiming that it is relevant to a na- latter. spect to this law. Keeping these pro- tional security investigation. The FBI The man from Dixon—lifeguard, ceedings secret fuels concerns that the already has access to the waterfront of radio announcer, actor, Governor, fa- committee is making choices that will personal information through the FISA ther, adoring husband, President of the not stand up to public scrutiny—decid- warrant process. All they have to do is United States—restored not only our ing, for example, that you can only go before a judge and explain why it is confidence but our fundamental under- have security if you sacrifice privacy. relevant in the most general terms. By standing of the source of America’s In my view, that is a false choice. I giving the FBI the authority to write greatness: each and every one of us simply do not believe that protecting their own administrative subpoenas, striving to realize the American dream. our country from terrorism and secur- the Congress would be removing this In his 1982 State of the Union Ad- ing the privacy rights of our citizens even last modest safeguard. dress, President Reagan told the Na- are mutually exclusive objectives. Administrative subpoenas are cur- tion: So here is my bottom line: Give law rently used by many Federal agencies We do not have to turn to our history enforcement and intelligence officials in many contexts. But, except in a very books for heroes. They’re all around us. the tools they need to protect our few limited cases, they are not used for To the freedom fighters in the former country, but stay away from the fish- national security investigations. Na- Soviet Union to his fellow citizens here ing expeditions. I do not think anybody tional security investigations are sim- at home, Ronald Wilson Reagan was will argue with me when I say that ply different than criminal investiga- one of those real life heroes who Congress passed the PATRIOT Act tions. They, of course, are conducted in brought hope, freedom, and oppor- shortly after September 11, 2001, be- secret and do not require evidence of a tunity to millions. cause it was necessary to move in a crime. This is why there are different I yield the floor and I suggest the ab- hurry. It was clear no one could have rules for the two types of investiga- sence of a quorum. conceived of the way in which our tions. It is not enough, in my view, to The PRESIDING OFFICER. The country was exposed to attack. It was say what is good for the goose is good clerk will call the roll. clear that the Federal Government for the gander. The question here is, The assistant legislative clerk pro- needed to make major changes in how What is good for the American people? ceeded to call the roll. it fought terrorism, and those were The answer is not administrative sub- Mr. WYDEN. Mr. President, I ask needed immediately. poenas. unanimous consent the order for the The best parts of the law tore down As proposed, these subpoenas would quorum call be rescinded. the unnecessary walls that had grown be extraordinarily broad in their scope. I ask unanimous consent to speak in up between law enforcement and the They could be used to gain access to morning business for up to 20 minutes. intelligence agencies. Today, if you go your credit records, your video rentals, The PRESIDING OFFICER. Without out to the National Counterterrorism your medical records, your gun pur- objection, it is so ordered. Center, the people on the ground there chases. They could be used to obtain REAUTHORIZING THE USA-PATRIOT ACT will tell you that those walls have been just about anything. These subpoenas Mr. WYDEN. Mr. President, tomor- torn down, and they have stayed down. would only be seen by a judge if the re- row the Senate Select Committee on So the men and women on the front cipient of the subpoena decided to chal- Intelligence gets back on the national lines in the fight against terror are, in lenge it. Even if the recipient was prop- security high wire as the committee my view, more effective than they erly notified of his or her right to chal- continues to work on legislation reau- were. lenge, they might not be in the posi- thorizing the USA PATRIOT Act. I de- However, other provisions of the law tion to have the time or the resources scribed this process as a high-wire act have sparked serious concerns. Giving to even make that challenge. because success means striking a bal- Federal authorities broad powers of in- For example, there are 56 FBI field ance, an equilibrium, between fiercely vestigation has raised the specter that offices, one in just about every major protecting our country from terrorism the rights of law-abiding citizens might American city. The head of the local while still preserving the privacy and be severely compromised, accidentally field office could issue an administra- civil liberties that make our democ- or even intentionally. In moving for- tive subpoena to a hospital director racy so precious. ward, I want to make sure that the and ask for all the hospital’s medical Chairman PAT ROBERTS, to his credit, right of our citizens to privacy is cer- records simply by claiming they were has held several open hearings on this tainly not compromised intentionally. relevant to an investigation. If the hos- issue. I gladly participated because I I am not suggesting our national in- pital director was busy or did not have believed the open hearings would help telligence or law enforcement agencies the resources to make a challenge, to address some of the skepticism are currently being misused the way then no judge—no judge would ever see about why the PATRIOT Act has al- they have been during our history— this administrative subpoena. The pa- most totally been debated in secret. such as in the Watergate scandal. But tients would not even know that their Unfortunately, the most important it is important for us to make sure records had been seized. They would be part of the debate, the part where the that appropriate safeguards are in totally in the dark. committee must actually discuss how place to prevent unintentional abuses Even the FBI acknowledges that the to walk that high wire, is still going to and prevent future even darker epi- agency can get all the information be done behind closed doors. In my sodes in our country’s history. they could possibly need with the in- view, this secrecy in going forward will In my view, a proposed addition to vestigative powers they currently undermine any public confidence that the PATRIOT Act, one that certainly have. The only reason they have sug- open hearings helped to create. warrants open debate, is the adminis- gested for supporting this judge-free I have repeatedly and vigorously op- trative subpoena which, in my view, administrative subpoena is speed. They posed making these decisions out of raises the risk of real abuse. I want to say that the FISA warrant process is public view. Holding the decision- make it clear on this subject today, I simply too slow for time-sensitive, making process in secret is a mistake believe reauthorization of the PA- emergency situations. because it makes it harder for citizens TRIOT Act should simply not include This afternoon I would like to pro- to hold elected officials accountable. new administrative subpoena authority pose on the floor of the Senate an al- Holding the decisionmaking process in for the FBI. ternative. In this year’s reauthoriza- secret is unnecessary because it is not I am opposed to giving the FBI this tion of the PATRIOT Act, Congress can difficult for the committee to go be- authority to write their own adminis- balance protection for the public with hind closed doors, certainly, briefly, trative subpoenas for foreign intel- the right of privacy by creating an when necessary, to discuss any PA- ligence investigations for a number of emergency use provision to the FISA TRIOT Act-related issue that requires reasons. Doing so would give the FBI business records authority. This way, secrecy. Holding the decisionmaking the authority to demand just about under the proposal I make today, if the process in secret gratuitously feeds the anything from just about anybody, FBI needs information right away, the cynicism that citizens have about the with no independent check, simply by FBI could notify a judge that they

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6081 were going to get it—send an e-mail, tained to a terrorist or a spy. The PA- Those most directly affected by the li- leave a voice message—and then go get TRIOT Act lowered the standard, so brary records provision have been ex- it without waiting for a response. Then now the FBI simply has to assert that pressing strong concerns. The Amer- they would have 72 hours to apply for the records are, in their view, relevant ican Library Association recently the warrant so they could do it after to a terrorism inquiry. To protect in- wrote me: the emergency had been addressed. If nocent Americans, the business records ‘‘[D]iscreet inquiries’’ by the FBI put our the judge felt the FBI had acted inap- provision needs to be modified in sev- librarians at risk of breaking state laws if propriately and decided not to grant eral ways. agents approach them for information with- the warrant, then the Agency would First, the Congress should require out subpoenas or other properly executed not be able to use whatever informa- that the application for a FISA war- legal documents and intimidate them into complying with the request. tion they had gathered. The idea of rant include a statement of facts ex- adding an emergency use provision plaining why the records are relevant I ask unanimous consent the letter along the lines I have described would to an investigation. Congress should from the American Library Association address the FBI’s concern for speed also raise the standard for the most be printed in the RECORD. There being no objection, the mate- without creating a broad new author- sensitive type of records. The ‘‘rel- rial was ordered to be printed in the ity that would remove all the inde- evance’’ standard may be appropriate RECORD, as follows: pendent checks, even in situations for a hotel or car rental record, but it where there were not emergencies. may be necessary to require the FBI to AMERICAN LIBRARY ASSOCIATION, Although time was not taken in 2001 show hard evidence before giving ac- Washington, DC, May 25, 2005. to thoroughly discuss the privacy cess to more sensitive records such as Hon. RON WYDEN, issues related to the PATRIOT Act, medical records. U.S. Senate, Finally, there must be an increase in Washington, DC. most of the law’s more controversial DEAR SENATOR WYDEN: On behalf of the provisions were made subject to sunset. the reporting that is done in this area. over 65,000 members of the American Library This was done in hopes of a more Congress’s duty to look out for abuses Association (ALA) I am writing to express thoughtful, informed debate during the of the PATRIOT Act is often a chal- our appreciation for your efforts to seek fur- reauthorization. The sunsets, in my lenging one. Little reporting is re- ther information about the nature and scope view, have had an unanticipated ben- quired on the use of some provisions. of FBI investigations into library records. efit. They have made the agency very Details regarding the use of the PA- We thank you for your hard work examining careful about how it uses the powers TRIOT Act are reported, even when re- law enforcement activity in libraries under porting is not required. When there is a Section 215 of the USA PATRIOT Act, na- that have been granted. tional security letters, and ‘‘discreet inquir- In addition to the proposal that I am report, the information is often classi- ies’’ without, apparently, warrants or sub- making today to give the FBI more au- fied. National security investigations poenas. thority to deal with emergencies, I be- often need to be conducted in secret, Librarians across the country, in all kinds lieve the Senate should also focus its but revealing how often particular of libraries, take their jobs as public serv- attention on sharper scrutiny for the techniques are used does not make ants very seriously. We are as concerned sunset provisions in the act. Some of them less effective. Congress needs this about our Nation’s security as any other sec- the sunset provisions that have existed information to perform its constitu- tor of the American public. At the same time, the issue of privacy and the confiden- have not attracted any controversy. tional responsibilities, and the fact is tiality of library records is a long-held and Others have not only attracted con- too often Congress has been doing over- deep principle of our profession. The Amer- troversy, serious questions have been sight over the intelligence community ican public values this principle as well: raised about their use and possible mis- in the dark. forty-eight States have laws protecting the use. I want to consider some of these The Intelligence reform bill that confidentiality of library records, and the provisions in detail today and, in addi- passed a few months ago tried to fill other two States have attorney general opin- tion to the proposal I have made with several of the reporting gaps, but there ions doing so. are others that need to be closed as the As you know, both the FBI and the Depart- respect to giving the FBI emergency ment of Justice have reported that there has authority, I urge firm action to safe- PATRIOT Act is reauthorized. These been ‘‘zero’’ use of Section 215 in libraries. guard the American people as the sun- reports should also be made public, to However, our office is aware, at least set provisions are considered in the the maximum extent possible so that anecdotally, of FBI inquiries made using PATRIOT Act’s renewal. the American people can know all that other methods in what do not appear to be The provision that has attracted the is safely to be known about FBI activ- normal criminal or civil investigations. To most attention is probably section 215 ity under the law. determine the extent of these inquiries ALA of the PATRIOT Act. It is commonly One of the major reporting gaps I am has begun its own research regarding the referred to as the library records provi- concerned about involves what the FBI scope of law enforcement investigations of library patrons and their reading records. sion, but in fact it ought to be called calls discreet inquiries that the agency Leaders of ALA have met with Attorney the business records provision. Suffice uses to obtain library records. The FBI General Gonzales and FBI Director Mueller it to say, it is a sweeping one. This pro- Director, Mr. Mueller, has testified be- to discuss our concerns about these library- vision gives law enforcement access to fore several Senate committees that, related investigations as well as to discuss all types of information from video while FISA warrants could be used to our ongoing research. We are seeking aggre- rentals and gun purchases to tax and obtain people’s library records, this has gated data to understand better the breadth medical records. In a nutshell, here is never been done. But the FBI director of FBI investigations and the impact the in- went on to say that the Agency does vestigations have on library users. how it works. We very much appreciate your questions Under the Foreign Intelligence Sur- obtain library records through what he seeking further information from Director veillance Act, FISA—which I have re- called discreet inquiries. So I think Mueller about these inquiries. Specifically, ferred to several times already—it is that the American people deserve to we would like to know: possible for FBI agents to go to a judge know what a discreet inquiry is. The What exactly is a ‘‘discreet inquiry?’’ and request a secret warrant to obtain American people deserve to know how Do these inquiries require a subpoena and business records. The person to whom often they are used. And I have asked are they subject to any judicial oversight? How many ‘‘discreet inquiries’’ have been the records pertain is not informed. the FBI to get me this information. made in the last four years? 1 year? In gen- This means that if the FBI serves a Over a month later, despite multiple eral, what kind of evidence was uncovered? FISA warrant on a bank or hospital, requests by the staff of the Intelligence Have these inquiries been related only to the bank president or hospital director Committee, the FBI has still not pro- foreign intelligence investigations or have would know about it, but the cus- vided an answer to the question. Suf- they been used in non-intelligence investiga- tomers or patients whose records had fice it to say, the longer the Agency tions? been seized would know nothing at all. waits, in terms of answering the ques- What are the procedures and authorization for such inquiries? Before the PATRIOT Act, if the FBI tion of how they obtain library records, Are there pertinent FBI guidelines and re- wanted to get one of these warrants, the more Americans believe that the lated oversight procedures for assessing ‘‘dis- they had to show a judge specific and Agency is stepping over the line and creet inquiries’’ and if so, are there aggre- articulable facts that the records per- into the lives of law-abiding citizens. gated public reports on this type of inquiry?

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6082 CONGRESSIONAL RECORD — SENATE June 6, 2005 The American Library Association holds vestigations. The roving wiretap au- The legislative clerk proceeded to that privacy is essential to the exercise of thority allows the FBI to tap not just call the roll. free speech, free thought, and free associa- a particular phone but any phone the Mrs. BOXER. Mr. President, I ask tion and that, in a library, the subject of person being targeted might use. Un- unanimous consent that the order for users’ interests should not be examined or scrutinized by others. Whether there has like criminal investigations, there is the quorum call be rescinded. been one F.B.I. inquiry at libraries on the not even a requirement for the FBI to The PRESIDING OFFICER. Without reading habits of patrons or thousands, the make sure that the person being inves- objection, it is so ordered. threat to the confidentiality of library tigated is using a line. If a suspected Mrs. BOXER. Mr. President, as I un- records chills library use by the public and terrorist worked in a warehouse, rov- derstand, the Democrats have until 4 threatens confidentiality in other venues ing wiretap authority could be used to p.m. to speak as in morning business. where privacy is the essence of the service/ tap a pay phone in that warehouse, and The PRESIDING OFFICER. The Sen- relationship. Thank you again for all your work on every person who used that phone ator is correct. The time is to speak on issues surrounding law enforcement inves- could have their conversations secretly the nomination. tigations in libraries and on the other impor- recorded. This provision, in my view, Mrs. BOXER. Excellent. Mr. Presi- tant provisions of the USA PATRIOT Act again, should be modified, and the sun- dent, I am going to speak about the and related regulations that affect the pri- set should definitely be renewed so the nomination of Janice Rogers Brown. vacy and civil liberties of the public. We sup- Congress has more time to investigate Before I go into the reason I hope the port your efforts to address both the need for how it has been used. Senate will reject this nomination— effective law enforcement and the civil lib- Finally, some of the tricky wording erties of the American public in an appro- and the ‘‘reasons’’ because there are priate and proportional manner. in several places of the PATRIOT Act many—I wish to put into context for Sincerely, needs to be clarified. A provision that my colleagues, and for anyone watch- LYNNE E. BRADLEY, looks like a safeguard for civil liberties ing this debate, why the Senate has Director of OGR, ALA—Washington Office. may expose Americans to unfair scru- spent so much time looking at the Mr. WYDEN. Mr. President, no one is tiny when they exercise their rights. In rules surrounding the nomination and saying the FBI should not be allowed several places, the PATRIOT Act pre- confirmation of Federal judges. to conduct voluntary interviews. A vol- vents the use of various investigative It is very clear when you vote to con- untary interview is certainly a legiti- techniques when the investigation is firm a Federal judge that it is a very mate and often nonintrusive investiga- based solely on the first amendment important vote. Why is that? It is be- tive technique. But the FBI agents activities of U.S. persons. Our col- cause these judges really vote on so must not be out there in effect de- league, Senator LEVIN, has pointed out many issues of importance to us, manding the records of our citizens that simply saying ‘‘solely’’ without whether it is our right to vote, our without following proper legal proce- clarification can create problems and right to a safe workplace, our right to dures. Since the FBI has been so reluc- seems to indicate that it is acceptable privacy, our consumer rights—it goes tant to discuss the activities relating to investigate Americans largely or on and on—our victims’ rights. The to these discreet inquiries of libraries, even primarily on the basis of their fact is, these issues are crucial, and the PATRIOT Act should require the first amendment activities. I am not who winds up on the bench on Federal Bureau to report on this topic. At a convinced this safeguard is actually a courts is very important to the Amer- minimum, they should be required to safeguard. I hope it will be clarified ican people. tell the Congress how this information and strengthened throughout the con- This is not an abstract debate about is being used so the Congress can deter- sideration of the PATRIOT Act. Senate rules and procedures; it is real- mine whether the FBI’s use of this pro- The Intelligence Committee may fin- ly about who sits on the courts, and vision is appropriate. ish drafting a reauthorization of the why is it that for 200-plus years the mi- In several other areas of the PA- PATRIOT Act in the near future. My nority party has had the right to fili- TRIOT Act there should be modifica- sense is the Judiciary Committee will buster or delay the vote on nominees tions. A major problem area, for exam- move shortly afterward. It is possible who they believe are outside the main- ple, is section 505 that deals with na- other committees may wish to weigh in stream—whether that means they are tional security letters. National secu- on these portions of the PATRIOT Act rity letters are another way for FBI to the far right of the mainstream, as that fall under their jurisdiction. As we in this particular case, or to the far agents to obtain records. Unlike FISA go forward in this debate, as the Con- warrants, national security letters do left of the mainstream. gress proceeds to try to walk on that Presidents who have tried to pack not require the approval of a judge. high wire, striking a balance between The FBI has said the national security the courts in the past, have tried to fighting terrorists ferociously while twist the arms of the court, have been letters can be appealed, but the current protecting our civil liberties, I simply rebuffed, from Thomas Jefferson, once, PATRIOT Act does not specifically dis- say to the Senate this afternoon that to Franklin Delano Roosevelt, another cuss this. It is often difficult for recipi- the Senate can do better. It is possible, time, when FDR had 74 Democrats in ents to learn more about the requests for example, to give the FBI additional this Chamber. He could do anything he in their letters and their right to emergency power, power that should wanted, if they agreed. He had won his refuse since they are usually barred address the concerns they have raised election by 60 percent of the votes. He from discussing the letter with anyone, in the open hearings, without removing decided he did not like what the courts including a lawyer. the independent checks so necessary in were doing, so he said: Well, I want to In the recent case of Doe v. Ashcroft, circumstances that are not emer- double the size of the courts. He had the Federal judge found that the FBI gencies. had abused this authority by using a The bottom line is, let’s make sure the votes. But the Democrats in the national security letter to demand law enforcement has the tools that are Senate said: Mr. President, we like records from an Internet service pro- necessary to fight terrorism, to protect you. We love you. We think you are a vider without telling the provider that the people of our country, but not hang great President. But we will not allow the letter could be challenged or even up a sign on this PATRIOT Act reau- you to pack the courts because the bot- that it could be discussed with a law- thorization that says: You hereby have tom line is that our Founders did not yer. Congress should reform the na- a right to go on any fishing expedition want a ruler, they wanted someone to tional security letter statute to make you desire. govern. They did not want a ruler, they it clear that national security letters The Senate can do better. The job of wanted someone to govern. Therefore, can be challenged, that they can be dis- creating a more balanced protector of they believed very strongly in checks cussed with a lawyer, and that anyone security and civil liberties still has and balances and the rights of the mi- who receives one has the right to be in- work ahead of us. I look forward to nority so that we do not have a court formed as to their rights. Congress cer- working with our colleagues on a bi- system that has on it people who would tainly ought to consider adding sunset partisan basis to achieve those ends. be so far out of the mainstream as to to this provision. I suggest the absence of a quorum. disrupt the very fabric of our country. Section 206 authorizes the FBI to use The PRESIDING OFFICER. The Now, this President did his own move roving wiretaps in national security in- clerk will call the roll. to pack the courts. Let’s face it, that is

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6083 what happened. He had the agreement somebody says: Well, aren’t the Demo- fornians for Alternatives to Toxics; and acquiescence of almost a majority crats blocking all these judges? No, no, Chinese for Affirmative Action; Envi- of the Senate, until a few brave Repub- no. Ten; and we approved 209. ronmental Defense Center; Environ- licans came over to our side and said: Now, I am going to show you in just mental Law Foundation; Equality Cali- Look, let’s step back from this preci- a moment the list of the groups that fornia; John Muir Project; Coalition of pice. Let’s not do away with the fili- oppose Janice Rogers Brown to be put Labor Union Women; Coast Alliance; buster. These are lifetime appoint- on the DC Circuit Court of Appeals. Committee for Judicial Independence; ments. These judges get good pay, and Now, when you see these groups, you Community Rights Counsel; Congres- they are never up for election. This is will be shocked because I think every- sional Black Caucus; Defenders of the only check and balance we have, body knows by now that Janice Rogers Wildlife; Delta Sigma Theta Sorority; when their names are brought before Brown is the daughter of a share- Disability Rights Education and De- us. cropper. We have heard that over and fense Fund; Earthjustice; Earth WINS; So I was so appreciative of my col- over again, and that is remarkable. We Endangered Species Coalition; Equal leagues on the other side for standing have a lot of remarkable stories in Justice Society; Families USA; Femi- up and saying: We are not going to America. nist Majority; Friends of the Earth; change the rules of the game in the My own mother never even went to Georgia Center for Law in the Public middle of the game because some high school. I am in the Senate. She Interest; Gray Panthers; Great Rivers President wants to pack the courts had to drop out to support her family. Environmental Law Center; Leadership with people who are so far out of the There are lots of stories like that. But Conference on Civil Rights; Legal Mo- mainstream that it could set our coun- I do not expect people to automatically mentum, formerly the NOW Legal De- try back for generations. That is what support me because in my family I fense and Education Fund; Northwest really happened. went to the Senate and my mother Environmental Advocates; NOW Legal Now, in order to get that deal they never graduated from high school. It is Defense and Education Fund; Oil Field came up with, they said to our side: interesting and it is important, and it Waste Policy Institute; People for the You are going to have to give. You are certainly says a lot about our country American Way; Planned Parenthood going to have to give on three judges and the opportunity our country af- Federation of America; Progressive whom you have stopped. This 10 on the fords people such as Janice Rogers Jewish Alliance; Religious Coalition chart represents the number of judges Brown and BARBARA BOXER, and par- for Reproductive Choice; Service Em- Democrats have stopped. They said: In ticularly people of color, women of ployees International Union; the Sierra order to get this deal, you have to give color who have even a harder time. Club; Southern Appalachian Biodiver- up on three. One of those three judges It is a miraculous country we live in. sity Project; the Foundation for Global is Janice Rogers Brown, a nominee way That is why I oppose her nomination, Sustainability. out of the mainstream, to the extreme, because she would set it back. It is not And I have some more to share with which I will explain. her life that I attack when I say I am you. It is very rare to see such an out- But we have to remember this deal not for Janice Rogers Brown; it is what pouring of opposition to a court nomi- only involves the vote to end the fili- she will do to your life. If you look at nee. buster. We said: OK, enough of our col- her record, you will see why the things Planned Parenthood Golden Gate; leagues will join with you to end the she will do to your life are things you Planned Parenthood of Los Angeles; filibuster. But the deal did not say: would not want. San Bruno Mountain Watch; San Fran- So I want you to listen to the groups Therefore, she would get automatically cisco La Raza Lawyers; SEIU Local 99; that are opposed to Janice Rogers voted in. We still have the up-or-down Stonewall Democratic Club of Los An- Brown: geles; Unitarian Universalist Project vote on Janice Rogers Brown. A lot of ADA Watch/National Coalition for Freedom of Religion; Western Law Cen- us believe very strongly that 51 of us Disability Rights; Advocates for the should oppose this nomination. I think West; AFL–CIO; Alliance for Justice; ter for Disability Rights; Women Law- we might well get those 51 noes, or Alliance for Retired Americans; Amer- yers Association of Los Angeles; Wom- close to it, but, obviously, we are push- ican Association of University Women. en’s Reproductive Rights Assistance ing for 51. I want you to think about why these Project; Lawyers Committee for Civil Now, again, I want to focus your at- groups are opposed to her. Every one of Rights of the Bay Area, NARAL Pro- tention on these numbers: 208 to 10. It them is opposed to her because they Choice California; National Associa- is actually 209 to 10 with the Priscilla have read her list of cases and they un- tion of Women Business Owners, San Owen judgeship approved. We have derstand that she will hurt them. Re- Francisco Chapter; National Council of stopped 10. We have approved 209. And tired Americans, when you hear about Jewish Women, California; National this President and the Republicans what she thinks about seniors, you will Council of Jewish Women, Los Angeles; here have been crying every morning understand that. National Women’s Political Caucus of that they do not get 100 percent of American Federation of State, Coun- California, which is a bipartisan orga- what they want. They have gotten 95 ty, and Municipal Employees; Amer- nization; Pacific Institute for Women’s percent of what they want. It is not ican Lands Alliance; American Plan- Health; Mexican American Legal De- good enough. When you want all the ning Association; American Rivers; fense and Educational Fund; Mineral power, it is not good enough. Americans for Democratic Action; Policy Center; NAACP Legal Defense When I go home and look in the eyes Americans United for Separation of and Educational Fund; NARAL Pro- of my constituency, I ask: If you got 95 Church and State; Amigos Bravos; Choice America; National Abortion percent in your course, would you be Bazelon Center for Mental Health Law; Federation; National Asian Pacific happy? Oh, yes. If you got 95 percent of Center for Biological Diversity; Center American Legal Consortium; National what you wanted from your spouse, for Medicare Advocacy; Citizens Coal Association for the Advancement of would you be happy? Oh, ecstatic. If Council; Clean Water Council; Clean Colored People, the NAACP; National you wrote a list down of everything Water Action; Clean Water Action Bar Association. you wanted in your life—where you Council; Black Women Lawyers of Los And there are more. This is remark- wanted to go for a vacation, where you Angeles; California Abortion and Re- able. I needed this time to go through wanted to be educated, the kind of car productive Rights Action League; Cali- this extraordinary list, representing you wanted—and at the end of the day fornia Association of Black Lawyers; millions and millions of Americans you got 95 percent of what you wanted, Californians for Fair and Independent who are saying no to Janice Rogers you would be thrilled, except if you be- Judges; California Federation of Labor, Brown. lieve you deserve 100 percent, by God, AFL–CIO; California League of Con- National Council of Jewish Women; and nothing less will do. That is what servation Voters; California National National Council of Women’s Organiza- we are facing with this Republican Organization for Women. tions; National Employment Lawyers power grab. That is what we are facing. Do we have more here? Association; National Committee to Remember those numbers: 209 to 10. California Native Plant Society; Preserve Social Security and Medi- When you are out somewhere and California Women’s Law Center; Cali- care—folks, when you hear what she

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6084 CONGRESSIONAL RECORD — SENATE June 6, 2005 says about Social Security, you will lence, that our society disintegrated. disabled, and low-income people was understand it, and senior citizens—Na- But she thinks so. unconstitutional. This is very inter- tional Fair Housing Alliance; National She calls Supreme Court decisions esting because having been in local Family Planning and Reproductive upholding New Deal protections such government myself, one of the things Health Association; National Health as the minimum wage and the 40-hour that we try to do is help get housing Law Program; National Organization workweek ‘‘the triumph of our own so- for people who are so vulnerable. This for Women; National Partnership for cialist revolution.’’ I didn’t know it is a law in San Francisco for the elder- Women and Families; National Senior was to say that people ought ly, disabled, and low-income people. Citizens Law Center; National Urban to work 40 hours, basically. Who could you find who was more com- League; National Women’s Law Center; She accuses senior citizens of pelling to help than, say, an elderly Natural Heritage Institute; Natural ‘‘blithely cannibilizing their grand- woman, whom she calls a militant sen- Resources Defense Council; New Mex- children because they have a ‘right’ to ior citizen, who can barely stand up or ico Environmental Law Center; the get as much free stuff as the political look up from her walker? Wilderness Society; Union for Reform system permits them to have.’’ She said San Francisco was ‘‘turning Judaism; Unitarian Universalist Asso- So she looks at grandparents like me into a kleptocracy’’ and that ‘‘private ciation; USAction; Valley Watch, Inc.; as cannibalizing our grandchildren. I property is now entirely extinct in San Washington Environmental Council; ask every grandmother and grand- Francisco.’’ Western Land Exchange Project. father in America to oppose this This woman absolutely lives in a So that is a long list. That is a long woman getting on the bench. How can dream world to say something like list. There is a reason why these orga- someone look at grandparents as can- this. If you try to buy a home in San nizations—many of which are non- nibals because they may think it is im- Francisco, you can buy it, if you have profit, many of which are bipartisan, portant to get the Social Security and $1 million. So I don’t know what she is many of which represent women, rep- Medicare for which they paid into the talking about. She makes things up resent minorities, represent families, system? It is outrageous. that fit her ideology. Imagine saying represent seniors, represent the envi- She declares: that providing housing assistance to ronment, represent fairness in the judi- Big government is . . . [t]he drug of displaced elderly, disabled, and low-in- cial system—there are many reasons choice— come people has no chance of suc- why they oppose Janice Rogers Brown. Here she goes after everybody— ceeding because it is unconstitutional. I hope if this debate on Janice Rogers for multinational corporations, single moms, Her views stand alone as being so out Brown does nothing else, it sends a regulated industries, rugged Midwestern of the mainstream. message to the American people that farmers, and militant senior citizens. Speaking of standing alone, I wanted when the Democrats stood up and said Every time I read that I think of the to tell you about Janice Rogers Brown. no to 10 people—and, by the way, said senior citizens I know getting dressed She sits on the California Supreme yes to 209—said no to 10 people—actu- up in a military uniform and taking Court where she has been since 1996. ally, now it is 9 people—they are people over the country. OK everybody, it is 12 She is on a court that has six Repub- like this. They are people like Janice o’clock, let’s play bingo now. licans and one Democrat. She is a Re- Rogers Brown who are opposed by She declares: publican. Follow this: She sits on a mainstream America. Big government is . . . [t]he drug of choice court that is made up of six Repub- At the end, I will read the editorials for militant senior citizens, for single moms, licans and one Democrat. You would that are coming out across the country for rugged Midwestern farmers. think she would be happy as a clam. against Janice Rogers Brown. Packing She takes them on, too. What is she No, she is not because those other Re- the courts with people like this will set thinking? I don’t know any farmers publicans, not to mention the one our country back, and these organiza- who believe big government is what Democrat, don’t see life through her tions that have worked for so many they want in their lives. eyes. She is so outside of the main- years for fairness, for justice, for equal- She is bad on first amendment rights stream that she stood alone on court ity, for fairness in the workplace, for of individuals. She argued that e-mail decisions 31 times. I am going to tell equal pay for equal work, for good messages sent by a former employee to you of some of these cases where she treatment in the workplace, to protect coworkers criticizing a company’s em- stood alone. the air and water, know what they are ployment practices were not protected She was the only member of the talking about. by the first amendment. This was a court to vote to overturn the convic- Let’s see some of the things that she young man who sent out a few e-mails tion of the rapist of a 17-year-old girl has said in her lifetime on the bench. during a very long time period, and she because she believed the victim gave She said: said he had no right to free speech. He mixed messages to the rapist. She was Where government moves in, community couldn’t do it. But the corporation the only one on the court who stood on retreats, civil society disintegrates, and our could do it all day long. the side of the rapist. This is who ability to control our own destiny atrophies. This is showing you some of her deci- George Bush wants to put on the bench The result is: Families under siege— sions and her statements. She said a so she can stand against your daugh- This is Janice Rogers Brown. This is manager could use racial slurs against ter? I don’t think we should do that. what she thinks of America. This is his Latino employees. Can you imagine We should stand up and be counted on what she thinks of the greatest coun- that? Using racial slurs in the work- this vote. We should not be standing try in the world— place? That was fine with Janice Rog- with someone who supports a rapist. It families under siege; war in the streets; ers Brown. is as simple as it gets. unapologetic expropriation of property— She is way outside the mainstream. She was the only member of the As someone who owns property, no She argued that a city’s rent control court to find that a 40-year-old woman one has ever tried to take it away from ordinance was unconstitutional as a re- who was fired from her hospital job me. I don’t know what her problem is— sult of the revolution of 1937. Believe could not continue with her lawsuit. I the precipitous decline of the rule of law; the me, most of the people who passed that want you to think for a moment of a rapid rise of corruption; the loss of civility; ordinance weren’t alive in 1937, so that 60-year-old woman with a great em- and the triumph of deceit. is her other attack on the New Deal. ployment record—and I have to tell She must hang out with some pretty She is way back. She has this thing you, maybe it is my age, but you are tough people. about the New Deal, as if the New Deal still going pretty strong at 60—and she The result is a debased, debauched culture is what we are talking about today. Ev- was fired based on age discrimination. which finds moral depravity entertaining eryone agrees that what has survived This is Janice Rogers Brown: and virtue contemptible. of the New Deal is very important wage Discrimination based on age does not mark This is Janice Rogers Brown’s view of and hour laws and protections and So- its victims with a stigma of inferiority and life in America. I didn’t know, when we cial Security. She is after it all. second-class citizenship. passed the seatbelt law or legislation She argued that a law that provided Really? The woman was fully em- to help the victims of domestic vio- housing assistance to displaced elderly, ployed, did a great job, was doing her

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6085 work, was getting rewarded with a sal- She was the only member of the the Supreme Court gave him his seat. ary, and the next day she wakes up, court who said women can be discrimi- He came out in a most humble way, he and for no reason, she is fired. And nated against and their contraception said: I will govern from the center. Janice Rogers Brown says: That is not does not have to be protected. I believed him at that point; I hon- a stigma. That is no reason to feel bad. Talk about going back. We are going estly did. And then you have a nomina- That is not a reason to feel like a sec- back with this woman. She stood tion like this, and you just wonder ond-class citizen. alone. were those empty words? I have to say I beg your pardon. Six others on that The only member of the court to find that they were because you have to judge court—five Republicans and one Demo- a county could not sue a utility company for people not by their words, but by their crat—thought Janice Rogers Brown illegal price fixing that had substantially in- deeds. You have to judge this judge by was off the wall. Her position saying creased the county’s costs for natural gas. her decisions. She was standing alone that age discrimination is not a stigma Where has this woman been? Does 36 times in a court of 6 Republicans and and, in fact, was really not discrimina- she think about things like Enron? The 1 Democrat. We have some more. tion at all is contrary to State and scams that went on in California and The only member of the court to find that Federal law. So George Bush wants to on the west coast? Maybe she should go a State fair housing commission could not elevate a woman who says essentially see that movie, ‘‘The Smartest Guy in award certain damages to housing discrimi- there is no such thing as age discrimi- the Room,’’ I think is the name of it. It nation victims. nation. Let’s face it, that is the bottom is a story about Enron and their ma- Imagine that. This is a minority line. nipulation of the market. Here you had woman, and she doesn’t understand in Someone can ask: Well, Senator, a situation where a county was being her heart how it must feel to be dis- where did she say that? That is the re- run into bankruptcy because of the criminated against when you are look- sult of her ruling. She stood alone 31 utility bills they were getting from a ing for housing simply because of the times, and now George Bush wants to private utility. Every single justice on color of your skin or perhaps your reli- elevate her. that court in California said absolutely gion. It is stunning. It is absolutely There were other times that she the county has a right to sue that util- stunning to me. The only one to stand stood alone. This is how far out of the ity company. They ran up the price of alone on this court. mainstream she is. She was the only natural gas. They hurt consumers. So I am going to close with—wait, member of the court to oppose an ef- They hurt the county. But not Janice there is more. We have a few more of fort to stop the sale of cigarettes to Rogers Brown. She stood with the util- these ‘‘only times to stand alone.’’ children. I say to every parent in ity company. The only member of the court to find that Are you getting the picture here of a jury should not hear expert testimony in America who may be listening to the domestic violence cases about battered wom- debate, you don’t want your 10-year-old someone who deserves a promotion? I en’s syndrome. or 9-year-old or 11-year-old or 12-year- hope not because I don’t think she You all know what battered women’s old to walk into a supermarket to start does. I hope that what I am doing syndrome is. It is a situation where a smoking, which we know is dev- today is making the record clear that woman has been beaten and beaten and astating, which we know is addictive, when we stood up against these 10 abused and abused—sometimes to a which we do everything we can to stop judges—although in essence now 9—she pulp. And it impacts her actions to- our kids from doing. If you want your was one of them for a reason. It is not ward her abuser. She was the only kid protected, then you tell George happy for me to have to go against member of the court to find that a jury Bush Janice Rogers Brown doesn’t de- someone from my own State. It is not should not hear expert testimony deal- serve to be elevated for that kind of de- enjoyable for me to have to go against ing with Battered Women’s Syndrome. cision. somebody who is a woman whose life Well, to me, that says she stands This isn’t the 1950s. I remember the story is remarkable. It is not easy for with the batterer against the woman, 1950s where they used to say cigarettes me to have to take a stand against a against the victim. I have colleagues are great for you. They are relaxing. minority woman, and it is not easy for here who want, and support, an amend- They are wonderful. We gave them out every civil rights organization in this ment to the Constitution to give rights free to people to tell them: Calm your- country to do the same. But we need to to victims. Yet, they are going to vote selves. This is terrific. You will live a know what we are doing. for this woman who stood with a rapist long time. This President has to get a message. and who stood on the side of batterers. The leading cause of cancer death This could have been avoided if he had It doesn’t make sense. among women is not breast cancer, it sent his people to see the Senators, This woman does not deserve to be is lung cancer. In the meantime, she is which is the way it used to be done. Do promoted for standing against the vic- saying: No, you can’t stop the sale of you think it is OK to give this woman tims of violence and with the perpetra- cigarettes to children in this particular a promotion? No. Let’s talk. Can we tors of violence, and she stood alone. case, which was the case that came be- talk? Can I show you this research? The only member of the court who dis- fore her. Can I show you how many times she sented from a decision that a standard work- She was the only member of the stood alone, how she is bad for fami- er’s compensation claim did not bar her civil court—remember, five Republicans and lies, how she is horrific for senior citi- claim for sexual harassment. one Democrat—who voted to strike zens, how she has ruled against con- That makes absolutely no sense. You down a State antidiscrimination law sumers, how she stood with the rapist? go to work and you sign documents. that provided a contraceptive drug ben- Can I show you? We never got the One of them is a workers’ comp release efit to women. In the old days in this chance. form. They are forms. Then this person country getting a contraceptive was il- This President doesn’t believe in ad- finds out there is sexual harassment in legal. It was the Supreme Court even- vice and consent. He does not believe in the workplace, and she brings a lawsuit tually—and there is actually a 40th an- it. He looks at it as an annoyance. He to stop it, and Janice Rogers Brown niversary of this tomorrow, the Gris- should read the Constitution. Senators says: Well, the day you came to work wold case. Until the Griswold case, it are supposed to be giving advice and and filled out all your forms, you said was illegal to use contraception in this consent—advice at the front end, con- you would not file a workers’ comp country. The bottom line is, this case sent when we have the vote. But, no, claim. of the Supreme Court turned it around they want 100 percent. They want to Workers’ comp is not a civil remedy and said you can’t stop something. So pack the courts. They want to pack the for sexual harassment, in my opinion. here you have a situation where the courts with people who will hurt aver- Workers’ comp is getting hurt on the State is saying you can’t discriminate age Americans and stand up for the job; it is not sexual harassment. She against women. You need to allow special interests and the far rightwing stood alone. I am sure her colleagues them to be covered with this prescrip- of this country. on the court were stunned, but that is tion drug contraception. Janice Rogers That is not what this President said Janice Rogers Brown. She stands alone Brown says: Wait a minute. I am stand- he was going to do. I remember the day against victims and with the perpetra- ing alone. when he declared victory in 1992 and tors of violence and harassment.

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6086 CONGRESSIONAL RECORD — SENATE June 6, 2005 The only member of the court to find noth- I have to say to my colleagues who She then worked for the attorney ing improper about requiring a criminal de- may be watching this or may be com- general’s office of the State of Cali- fendant to wear a 50,000 volt stun belt while ing back to the Hill today, we have an fornia in which she represented the testifying. opportunity here to stand up for the State on appeals of criminal cases. She This is amazing. She thought: Oh, no, people of the United States of America. wrote the briefs, she argued the legal wear a 50,000-volt stun belt. And every We have an opportunity to say no to questions, she participated in the trials other judge on the court said: No, no, someone—not that they do not have a of criminal cases, but I think most of no, this is America. We don’t do that wonderful life story, but in spite of her time was spent writing the appel- here. But not Janice Rogers Brown be- that life story because this appoint- late briefs to the court of appeals. cause she is so out of the mainstream. ment is not about her life, it is about By the way, of course, supreme court The only member of the court to find that our life, it is about your life, it is about justices, like appellate judges, do not a disabled worker who was the victim of em- the lives of your children, your grand- try cases, like the big cases we see in ployment discrimination did not have the children, your grandmother, your the newspapers. They simply review right to raise past instances of discrimina- the trial record of cases that have been tion that had occurred. grandfather. This is an appointment that is out of tried. So here you have a disabled victim. the mainstream, so stated by George They determine whether a fair trial She had multiple sclerosis. So I say to Will. This is a woman who stood alone occurred and whether the judgment those who have a disability or to those 31 times. You will hear my colleagues should be affirmed or reversed and a who have compassion in their heart, on the other side say: Don’t listen to new trial held, that sort of thing. That you have a string of examples of how Senator BOXER, her explanation of is what she has been doing on the Cali- you were discriminated against. Janice these cases is inaccurate. But I have to fornia Supreme Court. That is exactly Rogers Brown said: Oh, no, that is not tell you, it is accurate. When you have what she would do if she were ap- admissible. We don’t want to know a woman who is a Republican who pointed to the court of appeals in the about it. She stood alone. She is bad stood alone against five other Repub- DC Circuit. for workers, for victims, and the dis- lican mainstream judges 31 times, who Her judicial philosophy is absolutely abled. That, I think, completes our dissented more than a third of the time mainstream. She agrees with the Presi- work on when she stood alone. I am in a courtroom such as this, you know dent of the United States, President going to close, in the few minutes I you are looking at someone who does George W. Bush. She is in harmony have remaining, with some editorials not deserve a promotion. with his view of the role of courts and to show the broad range of comments I am going to keep talking about this the rule of law in America. Make no about Janice Rogers Brown. I am going nomination. We are going to have a mistake, this is a big question. He cam- to lead off with George Will, a very press conference with all of these paigned on that issue around the coun- conservative columnist, as I think groups that we can manage to muster, try. President Bush talked about the most of my colleagues know. He talks and we are going to be very strong to courts and about the role of courts in about the deal that was cut on the fili- our colleagues in saying, yes, we are America. He talked about what we buster, and he says: not filibustering Janice Rogers should do to strengthen the rule of law Janice Rogers Brown is out of that main- Brown—we gave that up as part of the in this country, how important it was stream. deal we made so that we would not see to him, and he promised to appoint It is a fact, he is calling her out of filibusters outlawed—but we are going judges who would show restraint and the mainstream. This is George Will, to fight to see that she does not get the not utilize their opportunity on an ap- and there is not much room on his 51 required votes. pellate bench to redefine the meaning right. So that is interesting. I thank the Chair, and I yield the of words, to have it say what they want The MercuryNews: floor. it to say so they can impose their po- As an appellate judge who would hear the The PRESIDING OFFICER. The Sen- litical views through a court ruling. bulk of challenges of Federal laws coming ator from . He said, I do not believe in that kind out of Washington, her appointment would Mr. SESSIONS. Mr. President, I ask of jurisprudence. In fact, it has not be disastrous. the question: How did a wonderful per- been the heritage of our country for 200 I want you to know, the son and a wonderful nominee, such as years, but in recent years it has be- MercuryNews is in Silicon Valley. The Judge Janice Rogers Brown, become so come the vogue in law schools and in MercuryNews is very balanced. The controversial? What is it that is going certain areas of the country, California MercuryNews is very moderate. They on here? being one of them, frankly, to have an say her appointment would be disas- She served 8 years on the California activist judiciary. trous. Supreme Court. She has served on the Judges are praised for being bold and She’d be likely to strike down critical en- Third Appellate District Court of Ap- stepping out. We had one judge under vironmental, labor laws, and antidiscrimina- peals of California. Every member of President Clinton who was confirmed tion protections. Brown, though, has infused that court of appeals with whom she to the court of appeals from California. her legal opinions with her ideology, ignor- has served has written in support of her He had been in the court system and he ing higher court rulings that should temper nomination. She was reelected to the said, well, it is the duty of a judge to her judgment. California Supreme Court with 76 per- act when the legislature would not act. That is a scathing editorial of this cent of the vote. I think there were That is what the definition of activism nominee. four other judges on the ballot. She is, a judge who believes he has a duty The issue isn’t Brown’s qualifications— had the highest vote of any of those to do something if he thinks the politi- The Sacramento Bee says— judges. California is certainly not a cally accountable bodies in our country it’s her judicial philosophy. right-wing State. do not; that it is perfectly all right for This is the Sacramento Bee. This is She grew up in my home State of a judge to act if the legislature does California speaking to the rest of the Alabama, not too far away from my not act. country. We should be prideful, but we hometown in a small town area of I will tell America, and this is impor- are not. We are upset about this ap- Greenville, AL. She is the daughter of tant, when a legislature does not act, it pointment. The issue is not her quali- a sharecropper. A sharecropper is a per- made a decision not to act, and those fications, it is her philosophy. son who does not own land but farms a legislators are responsible to the peo- part of somebody else’s property. He ple. If they are irresponsibly failing to The minority in the Senate certainly is justified in filibustering a lifetime appoint- pays the landowner with some of the deal with a problem, they will be re- ment of Brown. The Court of Appeals for the produce and keeps a little of the moved from office eventually. District of Columbia Circuit is the last place produce for himself and his family. A Federal judge is given a lifetime we need a judge who would impose 19th cen- That is how she grew up. Somehow, as appointment. They are not accountable tury economic theory on the Constitution a teenager, she moved off to California, to the public. We cannot cut their sal- and 21st century problems. worked her way through college and ary. So what we need is judges who un- How far back are we going to go? then law school. derstand the role of the judiciary in

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6087 the American system. We need judges It is a dangerous philosophy. People of themselves. It is not legitimate or who show restraint and who under- have fought for our country, died for fair what they do. They dig into their stand that America is built on a polit- our country, and in large part they records, every statement they have ical system and a constitution that died to preserve the rule of law. Maybe ever made, their personal history, the should be faithfully followed and the they did not even believe in the war, cases they have had, the speeches they political decisions ought to be made by but they were called to go and they have made, and they try to find any- those people in rooms such as this, in went and served their country because thing they can. They will take one sen- the State legislatures and in the Con- they were legally called to serve. They tence. Maybe there are two paragraphs gress. We are accountable to the people did their duty. It has been the corner- of qualifying explanation and they will who elect us. stone of this country’s strength since take one sentence out of context and Make no mistake about it, empow- its founding. say that represents a certain thing and ering judges to carry out political As I travel the world, as I have the therefore this nominee should be voted agendas is an anti-democratic act. It opportunity to do as a Senator on occa- down. undermines the power of the people of sion, I am more and more convinced But we are Members of the Senate. our country. Many of the complaints that our legal system, our respect for We are the ones who took an oath to do made against Janice Rogers Brown are law, is what makes this country great. our duty to enforce the Constitution, because she adopted and does believe in If someone signs a contract, they can to fairly judge nominees the President the view of a judiciary that the Amer- expect it to be enforced. If they do not sends up here. That is our responsi- ican people value, that President Bush pay their house note, someone will bility. We cannot pass that off to some values and that was affirmed in this come and take the house. But because group, some polling data, some news- past election when he won. That is of that, a person can borrow $200,000, a paper editorial. So they take a bit what she believes. middle-class working American, and here, a bit there, a statement, a word, Now, the Court of Appeals in the pay it back at 6 percent interest over a case, a circumstance—they take it Ninth Circuit Federal court in Cali- 30 years. Now, tell me where that hap- out of context and distort it, many fornia a few years ago was reversed by pens in another place in the world? times dishonestly; dishonestly, many the U.S. Supreme Court 27 out of 28 It is part of the legal system that is times deliberately doing so, to try to times. They reviewed 28 cases from so important, and we have a dangerous create a caricature of this nominee. that court and reversed it 27 times. The trend in this country. We have mem- Then they ask the people of the Sen- New York Times said a majority of the bers of the U.S. Supreme Court quoting ate to vote against them. Vote against members of the U.S. Supreme Court the European Union as if that would af- them. But we should not do that. That considered the California court to be a fect how they interpret a statute is not what the Senate should be about. rogue circuit. passed by a State legislature or the Janice Rogers Brown sees things dif- So this is not an itty-bitty matter. Congress or the Constitution ratified in ferent from some people; particularly, I People have been saying, oh, this is 1789. What possible value could that guess, in California. She has a more politics, this is Democrats and Repub- classical understanding. She made a licans fussing and it is a little political have? This is a dangerous trend. Judges are getting to the point where speech one time in which she ques- discussion which does not amount to they feel they have to solve difficult tioned the validity of the welfare state much, and what does it have to do with questions; that the legislatures cannot and whether it helps people. So they us. Well, the truth is, the issue is simple, get them figured out quick enough to say she is against all poor people and but it is far more important than party satisfy them so they want to solve welfare. She questioned overreaching politics. I am sure some in this body them. It is not good. It erodes public regulations. They say she is against all vote for political reasons and have not respect for the courts because more regulations. She is a throwback. She given a lot of thought to the judiciary and more they realize they are not de- doesn’t believe in any government reg- and what is important, but we are deal- ciding these cases on what the law says ulation. Whereas she has ruled on hun- ing with the role of the judiciary in or what the Constitution says but what dreds of cases affirming government America. they think. regulations, for Heaven’s sake. As a Senate, when we deal with con- Who cares what they think? We do But some regulations do overreach. firmations, it is all right to ask some- not pay judges to think. We pay judges Is there any doubt about that? One of body about their political views or to to rule on the law. them dealt with rental property in look at their political views, but we do It is a big deal and this is what it is California. The owner had long-term not vote for and against nominees all about. Do not make any mistake. leases and decided to convert them to based on that. I voted for 95 percent of The left understands it. They under- short-term hotel work. He wanted to President Clinton’s nominees. I did not stand this absolutely, and the courts convert the building to a full-fledged agree with their political views on have been the one branch of Govern- hotel. Do you know what they told him many things. I felt most of them who ment they have been utilizing to ad- in California? Well, we know this is came through, certainly the ones I vance agendas the American people are your property, Mr. Owner, but, you voted for, were committed enough to not supportive of—in fact, oppose. But know, we want to help poor people and the rule of law that I could vote for if someone can get a judge to say the we want you to pay money to create them. Some I had doubts about, but I Constitution says a marriage can be a low-income housing before you can do gave the President the benefit of the union among whatever, then that is it. that. Before you can do that you have doubt and voted for them. A few I op- What does one do then? What does it to pay this money or create some other posed. take to have a constitutional amend- housing. What kind of thing is this in What was the deal? It is not their ment? It takes a two-thirds vote of America? politics that counts. It is their judicial both Houses of Congress and three- They say she doesn’t believe in gov- philosophy. That is what counts. What fourths of the State legislatures. So ernment regulations. That doesn’t is their view of the role of a judge? judges have great power. If they abuse sound like a decent regulation to me. What is their understanding of what it, it is a big deal. I think that is why So she opposed that, citing Supreme law means in this country? we are seeing the attack on a number Court precedent. I am going to tell There are people who are teaching of our nominees that I think is not you, the Constitution of the United postmodernism in our law schools fair. It goes beyond what is right. In States provides someone’s property today. Some of them have been called fact, they have sort of become pawns in cannot be taken from them without advocates of the critical legal studies this battle over the nature of our judi- just compensation having first been idea. And what do they say? Nothing is ciary. paid. That is what the law is and what really true; one cannot look at a stat- I have watched these groups closely it ought to be. is pro- ute and interpret it. One can look at over the years, and I have to tell you tected in our Constitution as much as that statute and they can make it say some of these leftwing groups that cre- free speech. The left talks about free whatever they want it to say and jus- ate these attack ads and attack pieces speech, but we will talk about a case or tify that. on these nominees ought to be ashamed two that they have accused Justice

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6088 CONGRESSIONAL RECORD — SENATE June 6, 2005 Brown of acting improperly on and all majority or a unanimous decision one scholar in this country would agree she was doing was affirming clearly way, someone is selected to write the that is a difficult matter. We ought to and unequivocally the right of free opinion for the majority. If it is 5 to 4, be careful before we pass injunctions speech in America. But the left doesn’t someone is selected to write the opin- saying people cannot say something. A really believe in free speech. They have ion for the five, the majority. Some- prominent liberal jurist, Justice Mosk an agenda they want to promote. It is times there will be four different dis- agreed with her on that point, as did big government in domination of our sents, maybe one dissent with all the three of the justices on that court. lives in any number of different ways. rest joining in. Judges can do it any One of the things one of the groups I think this lady is a superb justice. number of different ways. has attacked her about, and I don’t She writes beautifully. She cares about This idea that she is out of the main- know if the Senators have raised it America. She grew up in a land of seg- stream because she has dissented on yet—I wouldn’t be surprised, is the use regation. They have accused her of not cases is a total mischaracterization of of stun belt on a criminal defendant in favoring civil rights. She has been dis- her record. They have gone back and court. criminated against herself. She is an dug through her records and tried to We are familiar with the recent case African American who was raised in find numbers and ideas and concepts in the Atlanta, GA, courthouse, where segregated Alabama and went off to that put her in a bad light. They ignore a violent defendant overpowered the California and had a tremendous suc- the fact she wrote the majority opinion guard, took a gun, shot a bunch of peo- cess story. The judges who write about in 2002 in more cases than any other of ple, ran off. There was a national up- her or lawyers who write about her say the nine justices on the California Su- roar over what to do about it, why that she is brilliant, intellectually honest, preme Court. shouldn’t have happened, and how we always thinking to do the right thing. There are a lot of different cases in ought to take steps to prevent this in She speaks with clarity and integrity. which she has been criticized. A lot of the future. That was a good, healthy She is highly qualified. She doesn’t great dissents have been issued in this debate. agree with the leftwing agenda politi- country. There is the dissent of Justice There is a device called a stun belt cally and she said so, but that doesn’t Harlan in the separate but equal case that can be placed on a defendant. Sim- impact her legal decisions. That is of Plessy v. Ferguson. Was that a good ply by pushing a button, apparently, what is important: How do you rule in dissent? I think it was a good dissent. one can immobilize a subject wearing a cases? By the way, in the zoning case her stun belt. A judicial philosophy that shows re- critics talk about, alleging that she In recent years, we cannot bring criminals into the courtroom in prison straint, let me say, is far less dan- was taking an extreme position on that garb. You cannot bring a prisoner in a gerous than a judicial philosophy that case, that vote in the California Su- courtroom and sit them before a jury justifies expanding power. I think this preme Court was 4 to 3. Only four in handcuffs. That would bias the jury, nominee, with her experience as a pros- judges were for it; three were against the courts have said, in their effort to ecutor and understanding criminal law it. She wrote the dissent. I thought it was a great dissent. be fair to defendants. will do an excellent job on the federal I was a prosecutor; I remember when Several times, Senator BOXER and bench. that started happening. So we had to Some critics complain about her sole others have said Justice Janice Rogers sit them up there in the witness box dissents. She was a sole dissenter in a Brown said it was okay for Latinos to without any chains or handcuffs. You death penalty case, saying that the have racial slurs uttered against them never knew what they were going to in the workplace. That is a terrible lawyer was inadequate. No other per- do. There were marshals and sheriff’s charge. That is not true. Sometimes we son complained about her dissents, pre- deputies standing on alert to see if this wonder if there is a lawyer in this sumably because she was some right- guy was going to make a break. wing person, but she believed this de- whole building. Is there anyone who They came up with this idea to put a fendant had not been properly defended knows how the legal system actually stun belt around a defendant, under by his lawyer, so she was the sole dis- works? The case they referenced was their clothes, that could not be seen. senter in that case. the Aguilar case. A court injunction or This guy was referred to as being psy- She dissented in another case, a court order barred a manager from chotic, violent, dangerous in any num- criminal case, in which a person was using racial epithets in the future, ber of ways and the California Supreme stopped because he was riding his bicy- raising grave first amendment con- Court said, you cannot make him wear cle the wrong way on a street, and she cerns to tell someone in our country, it. It made him nervous. believed it was a racial profile stop. you cannot say something in the fu- I hate to say that was a silly opinion, They didn’t have a basis to stop that ture. You can say what you said in the but it was, in my view. I bet if the deci- person to begin the search that re- past was wrong and you can be sued for sion was made after the Atlanta court- sulted in the discovery of illegal drugs. it, you can be put in jail, perhaps, if it room incident, they may not have That was a dissent, also. So what are amounts to a criminal action; but the ruled the same way. But one justice on these dissents about? You don’t dissent courts in this country have always, as that court saw it correctly: Janice in America? Judges dissent all the a result of free speech concerns, been Rogers Brown. She dissented from that time. Every time you have a 5-to-4 de- very reluctant to enter into prior re- decision. That was the right thing to cision of the U.S. Supreme Court you straint, as the judges call it, to stop do. Absolutely the right thing to do. I have four dissenters. There are many 8- someone from saying something in the salute her for it. She should not be to-1 decisions and one judge dissents. future. You pay a price if you say the voted down for those issues. That is nothing unusual. wrong thing in the future, but to order There are many of these examples of Some of these dissents she partici- them never to say something is a very distortions of her record we could talk pated in were joined in by liberal mem- dangerous thing. about. One interesting case in which bers of the California Supreme Court. The court split on that case, 4 to 3. Justice Brown authored a majority Also, I think it is important for us to Yes, she was a dissenter, but also dis- opinion deals with the question of af- note that in 2002 she was called on to senting with her in that case was the firmative action. It is the kind of case write the majority opinion for the Cali- liberal icon of California jurisprudence, that gets someone in trouble with cer- fornia Supreme Court more often than Stanley Mosk, her colleague on the tain leftwing groups in this country any other member of that court. So bench. This was a 4-to-3 decision rep- but is consistent with the law of Amer- how is she such an out-of-the-main- resenting a very important idea. She ica and the law of the State. She did stream person? She wrote more major- specifically condemned the language. the only thing appropriate. It is the ity opinions in 2002 than any other She said people could be sued, they High-Voltage Wireworks case. In this member of the court. What happens is, could have penalties imposed. She was case, the California Supreme Court when a court gets together and dis- concerned about a court injunction unanimously concurred in Justice cusses a case before they finally vote saying to somebody, they could not say Brown’s opinion. and make their opinion, they see how certain words in the future. That is They say she does not believe in af- the judges analyze the case. If it is a what the question was. Any legal firmative action, quotas, and things of

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6089 that nature. This is one of the cases has not been supportive of classical un- and has demonstrated she will be faith- they cite. It was a unanimous supreme derstandings of how we interpret stat- ful to the Constitution and to the law, court decision case. It demonstrates utes, how we enforce the law, and what whether or not she agrees with it. her ability to follow the Constitution the law means. She has been in an That is what we in the Senate need and Federal law. agenda-driven environment where judi- to be doing in our confirmation proc- California proposition 209 was passed cial activism is more prominent in cer- ess. We need to ask ourselves: This by the people of California. It added a tain areas of the country. The fact she may be a view by a nominee I agree provision to the California Constitu- has dissented and has raised questions with or I do not agree with, but will tion that provided: to defend private property and to ques- they enforce the law? Because we can- The states shall not discriminate against tion turning criminals loose on a rapid not expect every nominee to agree with or grant preferential treatment to any indi- basis, as some have, and those kinds of us on our religious values, our moral vidual or group on the basis of race, sex, things, speak well of her. values, or our political beliefs. Judges color, ethnicity, or national origin in the op- What is important mostly is that she are not expected to do that. You do not eration of public employment, public edu- has a judicial philosophy that is con- cation or public contract. expect that. It is not running for office. sistent with the judicial philosophy our They are not going to be voting on The people from California passed country has had, our heritage of law. these things. You want people who un- that. That is what she believes in. That is derstand the law and who will be fair There was a minority contracting what she has given her life and career and show intelligence and diligence program in San Jose that said contrac- to. She loves the law, and she cares and a determination to get it right. tors bidding on city projects must uti- about it. She cares about it enough to That is what she said in her testimony. lize a specified percentage of minority speak out if she thinks things are She said: My goal is to get it right. and women contractors or document going wrong. Her views are consistent I believe this is a good nominee. I be- efforts to include minority and women with the American people. President lieve she will be a tremendous addition contractors in their bids. Every judge Bush campaigned on these issues ag- to the Court of Appeals for the United who reviewed the case, including the gressively in this last election. He won States. I am proud she is a native of trial, appellate, and supreme court, 52 percent of the vote. It is the first my home State, and I am honored to agreed that the San Jose program con- time in many years a Presidential can- have these moments to speak on her stituted preferential treatment within didate received over half the votes in behalf. the meaning of proposition 209. Why, this country. I think if you took on the I thank the Chair and yield the floor. certainly it did. question of judicial activism and the Justice Brown’s opinion dem- Mr. President, I suggest the absence feeling of the American people with re- of a quorum. onstrates her firm commitment to the gard to judges who exceed their bounds The PRESIDING OFFICER. The bedrock principles of civil rights. She of power and start legislating from the clerk will call the roll. noted: bench rather than making decisions, he The assistant legislative clerk pro- Discrimination on the basis of race— would have had much higher support. ceeded to call the roll. Remember, she is an African Amer- Senators who joined this body defeat- ican. ing incumbents or winning open seats— Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for Discrimination on the basis of race is ille- the winners of those seats—consist- gal, immoral, unconstitutional, inherently ently have been Senators who have the quorum call be rescinded. wrong, and destructive of democratic soci- talked to the people of their States The PRESIDING OFFICER. Without ety. about the problem of an overreaching objection, it is so ordered. Contrary to the assertions of liberal judiciary and the need to make sure Mr. SESSIONS. Mr. President, I was smear groups, Judge Brown is not op- the judges we have are talented, smart, talking about Justice Janice Rogers posed flatly to all affirmative action proven men and women of integrity Brown and her record of courage and programs in all circumstances. She has and ability, but men and women who ability on the Supreme Court of Cali- specifically acknowledged that ‘‘equal will show restraint on the bench, who fornia. protection does not preclude race con- will follow the law as written, even if I note an article by Nat Hentoff. It is scious programs.’’ Certain race-con- they may not personally agree with it. in the Jewish World Review. Mr. scious programs can be approved under Because if they want to write the laws, Hentoff is a noted civil rights lawyer, the law. And she favorably cites Su- they ought to run for office and see if of courage and independence, who preme Court decisions establishing the they can get elected. Maybe the reason writes with clarity and is a civil liber- affirmative duty to desegregate where people who got elected did not pass a tarian who believes in American civil there has been a showing of a prior dis- law they wanted is because the Amer- liberties, who has a long record of it. crimination, that you can issue orders, ican people did not want that law, He is not someone who is slavishly part then, if there has been a proof of dis- their constituents did not want it, and of any political agenda and is willing crimination. that is why they did not pass it. So to speak the truth wherever he sees it. She provided a historical discussion they are not empowered to impose Sometimes I agree with it; sometimes I of all of American equal protection their personal views by subtly manipu- don’t. But he has written an article law. It was part of an extremely well- lating words and language and phrases about the filibuster of Janice Rogers reasoned opinion. But it has made and other things to make the case Brown. He talks about the ‘‘Action some of those on the left unhappy, you come out the way they want it to come Alert’’ from the National Association see, because she is not in lockstep for out. That is not what they are empow- for the Advancement of Colored People all these items, she is not in agreement ered to do. that ‘‘accuses [Janice Rogers Brown] of with everything. She thinks there are I think Janice Rogers Brown rep- having extreme right-wing views’’ and limits to what the Government can do resents the classical view of law, the ‘‘issuing many opinions hostile to civil in this area, and should do, consistent mainstream view of law, which I will rights.’’ with the Constitution of the United admit is under attack today in this She has been a victim of civil oppres- States. country. It was a big issue in the cam- sion and segregation. She is a true There are many other cases she has paign. President Bush took his case to champion of civil rights, as I think I ruled on. I will simply add this, in con- the American people, and he was re- indicated in my remarks. clusion, that she has been a sterling elected on it. That was a big issue in He goes on to show ‘‘how preju- justice, a justice who believes in law. his election. There is no doubt about it. dicially selective the prosecution of She has approached each case she has The American people want judges with her is by the Democrats, the NAACP, dealt with from a perspective of trying the philosophy of Justice Rogers People for the American Way, and her to find out what the law is and how to Brown, her legal philosophy. What she other critics.’’ do the right thing about it. She has says politically somewhere in a speech He says: courage and had the courage to stand is not important, as long as her judi- To my knowledge, not one of her attackers up in the face of a legal system that cial philosophy is such that she shows has mentioned the fact that in the case of

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This is Justice Brown’s quote: from ‘‘a ruling that an injunction against As for this justice’s hostility to civil rights the use of racially offensive epithets in the There is an undeniable relation between and liberties, there was her dissent in In Re: workplace did not violate the First Amend- law enforcement stop-and-search practices Visciotti in which she declared the sentence ment.’’ and the racial characteristics of the driver. of John Visciotti—convicted of murder, at- I know this case—Aguilar v. Avis Rent A . . . The practice is so prevalent, it has a tempted murder, and armed robbery—be set Car System Inc.—well, having covered it name: ‘‘Driving While Black.’’ aside because of his defense lawyer’s incom- from the beginning and interviewed lawyers Does that sound like somebody who petence. In another capital murder case (In on both sides. Brown dissented from an as- is hostile to civil rights? He goes on to Re: Brown) she reversed the death sentence tonishing decision by the California Supreme criticize the Action Alert and the se- of John George Brown because the pros- Court that authorized the trial judge to ac- ecutor subverted the defendant’s funda- tually put together a list of words that lective comments that are made there. would be forbidden for all time in that work- He says: mental right to due process by not disclosing evidence that could have been exculpatory. place, even if uttered out of the presence of Sen. Ted Kennedy has accused Justice Not a word about those two cases was in employees. Brown of hostility not only to civil rights the NAACP ‘‘Action Alert’’ or the New York This extreme gag rule on speech turned the but also to ‘‘consumer protection.’’ But in Times editorial [or the Sacramento Bee]. First Amendment upside-down because as Hartwell Corp. v. Superior Court (2002), she Stanley Mosk, a much-respected civil liber- declared that water utilities could be sued I ask unanimous consent to have tarian on that California Supreme Court, for having harmful chemicals in the water printed in the RECORD the article of emphasized: ‘‘The offensive content of using that result in injuries to the residents of the Mr. Hentoff of May 9, 2005, entitled any one, or more, of a list of verboten words State who drink that water. Also in People ‘‘Filibustering Janice Rogers Brown.’’ cannot be determined in advance.’’ As Brown ex rel. Lungren v. Superior Court, Justice There being no objection, the mate- said plainly and correctly: ‘‘We are not deal- Brown affirmed the authority of California’s rial was ordered to be printed in the ing merely with a regulation of speech, we attorney general to haul into court faucet RECORD, as follows: are dealing with an absolute prohibition—a manufacturers who include lead in their fau- prior restraint.’’ This could ‘‘create the ex- [From the Jewish World Review, May 9, 2005] cets. ception that swallowed the First Amend- Another charge by the NAACP in its ‘‘Ac- FILIBUSTERING JANICE ROGERS BROWN ment.’’ tion Alert’’ is that Justice Brown dissented (By Nat Hentoff) As for this justice’s hostility to civil rights from ‘‘a ruling that an injunction against Janice Rogers Brown of the California Su- and liberties, there was her dissent in In re the use of racially offensive epithets in the preme Court has been the Bush nominee for Visciotti (1996) in which she declared that workplace did not violate the First Amend- a federal circuit court judgeship facing par- the sentence of John Visciotti—convicted of ment.’’ ticularly fierce resistance by Democrats and murder, attempted murder and armed rob- Mr. Hentoff then says this: their allies. For example, the April 26 ‘‘Ac- bery—be set aside because of his defense law- yer’s incompetence. In another capital mur- I know this case—Aguilar v. Avis Rent A tion Alert’’ from the National Association for the Advancement of Colored People ac- der case (In re Brown) she reversed the death Car System Inc.—well, having covered it sentence of John George Brown because the from the beginning and interviewed lawyers cuses her of ‘‘having extreme right-wing views,’’ issuing ‘‘many opinions hostile to prosecutor subverted the defendant’s funda- on both sides. Brown dissented from an as- mental right to due process by not disclosing tonishing decision by the California Supreme civil rights.’’ I do not agree with all of Justice Brown’s evidence that could have been exculpatory. Court that authorized the trial judge to ac- Not a word about those two cases was in opinions, but I write this to show how preju- tually put together a list of words that the NAACP ‘‘Action Alert’’ or The New York dicially selective the prosecution of her is by would be forbidden for all time in that work- Times editorial. place, even if uttered out of the presence of the Democrats, the NAACP, People for the Were I on the Senate Judiciary Committee, employees. American Way and her other critics. She was a critical question I would ask Justice filibustered in the last Congress, and may be Brown is: ‘‘Is it true, as has been charged, That is what Mr. Hentoff says about again, now having been sent to the floor on this opinion of the majority that she that you believe the drastically anti-labor a 10-to-8 party-line vote by the Judiciary 1905 Supreme Court decision in Lochner v. dissented from. He goes on to say: Committee. New York was correctly decided?’’ This extreme gag rule on speech turned the To my knowledge, not one of her attackers In that decision, which placed bakery own- First Amendment upside-down because as has mentioned the fact that in the case of ers’ contract rights over the health of work- Stanley Mosk, a much-respected civil liber- People v. McKay (2002), Brown was the only ers and the health of buyers of the com- tarian on that California Supreme Court, California Supreme Court justice to instruct pany’s products, the High Court ruled that emphasized: ‘‘The offensive content of using her colleagues on the different standards employers had the right to insist that their any one or more of a list of verboten words some police use when they search cars whose employees work unlimited long hours, even cannot be determined in advance.’’ As Brown drivers are black: if the public’s health were to be endangered said plainly and correctly: ‘‘We are not deal- ‘‘There is an undeniable correlation be- because sick workers couldn’t even take the ing merely with a regulation of speech, we tween law enforcement stop-and-search prac- day off. are dealing with an absolute prohibition—a tices and the racial characteristics of the If Justice Brown does indeed agree with prior restraint.’’ This could ‘‘create the ex- driver. . . . The practice is so prevalent, it that decision, which was influential until ception that swallowed the First Amend- has a name: ‘Driving While Black.’ ’’ President Roosevelt’s New Deal, I would ment.’’ The three-page ‘‘Action Alert’’ I received have difficulty voting for her; but I would from the NAACP ignored that opinion, in Do you see what we are talking about not unjustly accuse her of having nothing in which Brown added that while racial- her record that strongly upholds the inter- here? profiling is ‘‘more subtle, more diffuse and ests of justice. She does not deserve being That is what has been going on on less visible’’ than racial segregation, ‘‘it is stereotyped as an archetypical reactionary. the floor of the Senate that is so dis- only a difference of degree. If harm is still And her defense of the Fourth Amendment’s tressing to me. Let’s lay it out here on being done to people because they are black, protection of our rights against government the table. or brown, or poor, the oppression is not less- search and seizure are much stronger than Justice Janice Rogers Brown, accord- ened by the absence of television cameras.’’ any current member of the Supreme Court. ing to one of the great civil liberty This is right-wing extremism? Yet, an Mr. SESSIONS. What kind of lady is April 28 lead New York Times editorial ac- lawyers in America, Nat Hentoff, was cuses Justice Brown of being ‘‘a consistent this? She graduated from UCLA, one of defending first amendment free speech, enemy of minorities (and is) an extreme our Nation’s finest law schools. In Feb- joined by one of the most liberal mem- right-wing ideologue.’’ ruary of 2004, the alumni of that not- bers of the California Supreme Court to Sen. Ted Kennedy (D–Mass.) has accused so-conservative law school presented defend free speech. What did they ac- Justice Brown of hostility not only to civil Janice Rogers Brown with an award for cuse her of? They said that she ap- rights but also to ‘‘consumer protection.’’ public service. In recognizing Justice proved of using racial slurs against But in Hartwell Corp. v. Superior Court Brown, her fellow UCLA alumni, the Hispanics. Now, that is beyond unfair. (2002), she declared that water utilities could people who know her, did not criticize be sued for having harmful chemicals in the It is beyond unfair. It is beyond de- water that result in injuries to residents of her and say she was an extremist. They cency and integrity, and it is not right. the state who drink that water. didn’t say anything like that. At UCLA It is wrong. That is what we have been Also in People ex rel. Lungren v. Superior law school, where they gave her an doing to nominees here to justify the Court (1996), Justice Brown affirmed the au- award, they said:

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6091 Janice Rogers Brown is a role model for all have come to greatly admire her independ- I yield the floor. those born to prejudice and disadvantage, ence, her tenacity, her intellect, and her wit. The PRESIDING OFFICER. The Sen- and she has overcome adversity and obsta- It is time to refocus the judicial confirma- ator from New York. cles and, since 1996, has served as a member tion process on the personal qualities of the Mr. SCHUMER. Mr. President, I of the California Supreme Court. . . . The candidates, rather than ‘‘hot button’’ issues professional training she received at the of the past. We have no way of predicting thank my colleague from Alabama for UCLA School of Law has permitted her, even where the hot button issues will be in years his remarks. I did not hear them all, now when decades remain to further enhance to come, and our goal should be to have but he did say the record of Justice her career,— judges in place with a reverence for our Con- Janice Rogers Brown is compelling, Yes, we need to see her career be en- stitution, who will approach these issues and I agree with that. It is so far off hanced by this court of appeals ap- with independence, an open mind, a lot of the mainstream that one has to look at pointment. common sense, a willingness to work hard it compellingly. It is hard to believe, and an ability to communicate clearly and frankly, that the President nominated to have already a profound and revitalizing effectively. . . . Janice Rogers Brown has impact upon the integrity of American juris- demonstrated all these qualities in abun- someone with these views. I think it prudence. dance. shows how far over and out of the I will repeat that. They said: That is what Professor Ullman said. mainstream the President’s nominees . . . even now, when decades remain to fur- Her colleagues and former colleagues are and, unfortunately, how much in ther enhance her career, [she has been also support her. A bipartisan group of lockstep the majority in the Senate shown] to have already a profound and revi- Justice Brown’s current and former ju- walks with these nominees. talizing impact upon the integrity of Amer- I have no doubt that Justice Brown is ican jurisprudence. dicial colleagues, including all of her former colleagues on the Court of Ap- smart and accomplished. Her rise from I think that is a good description. peals, Third Appellate District, and humble beginnings is impressive. That Despite her incredible intellect, work four current members of the California does not make somebody who belongs ethic, determination, and resultant accom- Supreme Court, also have written in on the second most powerful court in plishment, she remains humble and ap- the land. Someone’s rise from humble proachable. support of her nomination. Twelve current and former colleagues beginnings is very important, but it That is not the Janice Rogers Brown noted in a letter to the committee does not mean they can run a major you hear her opponents describe. I will that: company. It does not mean they would take the words of the people who know be a great lineman or center or line- her and who have actually studied her Much has been written about Justice Brown’s humble beginnings, and the story of backer for the New York Giants. It is a record over the rhetoric of special in- her rise to the California Supreme Court is wonderful thing, but it does not qualify terest groups who are not the least bit truly compelling. But that alone would not them for the job. concerned, it seems to me, about being be enough to gain our endorsement for a seat Judge Janice Rogers Brown’s humble fair in their description of the nomi- on the Federal bench. We believe that Jus- rise cannot offset her radical and re- nee. tice Brown is qualified because she is a su- She spent 8 years as a deputy attor- perb judge. We who have worked with her on gressive approach to the law. I would ney general in the Office of the Cali- a daily basis know her to be extremely intel- argue that none of the views of the fornia Attorney General, where she ligent, keenly analytical, and a very hard nominees we have had so far are so off prepared briefs and participated in oral worker. We know that she is a jurist who ap- the charts as Janice Rogers Brown. plies the law without favor, without bias, None of what she has done in her life arguments on behalf of the State’s with an even hand. criminal appeals; she prosecuted crimi- can mitigate her hostility to a host of That was sent to Chairman ORRIN nal cases and litigated a variety of litigants who have appeared before her. HATCH in October 2003. If someone is polite and then takes civil issues. Her keen intellect and Ellis Horvitz, a Democrat and one of work ethic made her a rising star on your argument and throws it out, even the deans of the appellate bar in Cali- though the law is behind you, and the California legal scene, and in 1994, fornia, has written in support of Jus- Governor Pete Wilson tapped her as his leaves you hopeless, it does not mean tice Brown, noting that: they have done a good job as a judge. legal affairs secretary. She served in In my opinion, Justice Brown [possesses] that capacity until 1994, when she was Janice Rogers Brown, on the merits, those qualities an appellate judge should is the most out of the mainstream, the nominated and confirmed as an asso- have. She is extremely intelligent, very con- ciate justice on the California Third scientious and hard-working, refreshingly ar- least deserving of all of the President’s District Court of Appeals. In May of ticulate, and possessing great common sense appeals court nominees. In a moment, I 1996, to honor her for her superior per- and integrity. She is courteous and gracious am going to review those reasons. Be- formance on the appellate court, Gov- to the litigants and counsel who appear be- fore I do, I want to ask a question that ernor Wilson elevated her to the Cali- fore her. has been nagging me for a while: Why fornia Supreme Court, where she has That was another letter to Chairman are so many self-described conserv- performed admirably. . atives planning to vote for her? She is Since she was appointed to the Cali- The praise for Justice Brown and her not conservative, she is a radical. She fornia Supreme Court, a couple of performance on the bench goes on and is the opposite of a conservative. And things have happened which dem- on. Sure, some do not agree with her why are moderate Senators on the onstrate she is doing her job and doing politically, but they recognize and ap- other side of the aisle boarding the it well. During the 1998 elections, she preciate her approach to jurisprudence. Brown bandwagon when everything she was retained with 76 percent of the She is a restrained jurist who refuses believes is against what they believe? vote, receiving a higher percentage of to change the definition of marriage or Is it that this nominee, more than the vote than any other judge on the to strike down the Pledge of Allegiance any other, embodies the conservative ballot and in 2002, she authored more or throw out the ‘‘three strikes and ideal for an appellate judge? Let’s see majority opinions than any other Jus- you are out’’ law in California. what conservatives describe as what a tice on the Court. She is the kind of judge President judge ought to be. The people of California who actually Bush promised to support. Again, I This is the President and Republican know the law and study the law and think she has done a terrific job on the leaders. They said a model judge should who have not been brainwashed by at- Supreme Court of California. I am be a strict constructionist, judicially tack sheets that come out, by liberal proud she is from Alabama. I am sorry constrained, and mainstreamed. Janice groups, support her. For instance, Ger- the discrimination she believed she and Rogers Brown is none of those, abso- ald Ullman, a California law professor, her family faced in our State was, I am lutely none. Let’s take a look at the has expressed public support for this sure, part of the reason they left Ala- record. nominee. His statement sums up what bama to seek a fair life. She went to Is she a proud and principled strict we ought to consider with regard to California and has taken advantage of constructionist? Is that why the Presi- Justice Brown’s nomination. Let me the opportunities given her. She dent and Republican leaders are push- quote it: achieved a tremendous record. It is an ing her? President Bush has said time Although I frequently find myself in dis- honor for me to speak in support of her and again that he wants judges who agreement with Justice Brown’s opinions, I nomination. will not legislate from the bench. He

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6092 CONGRESSIONAL RECORD — SENATE June 6, 2005 said he wants strict constructionists in servatives decry. If you are going to disinclined to perpetuate dubious law the mold of . But Janice make up your own law, are we saying for no better reason than it exists. Is Rogers Brown is no more a strict con- on the other side of the aisle, you are she saying all the people who wrote structionist than I am a second base- not a strict constructionist if you want those opinions should be ignored? man for the New York Yankees. Any- to make up your own laws to the left, On other occasions she has talked one who says that the New Deal is a so- but you are a strict constructionist if about ‘‘taking a fresh look’’, her words, cialist revolution and ought to be un- you want to make up your own laws to at settled doctrine under California done, when we have had 70 years, seven the right? As somebody who believes law. And just listen to the California decades of law based on the construct deeply in moderation on the bench, I State Bar Judicial Nominees Conven- of the New Deal; where 99 percent of am offended by either side. tion which gave Justice Brown a not America agrees—does that person be- So Janice Rogers Brown is not a qualified rating when nominated to the long on the bench? Absolutely not. The strict constructionist, but is she other- California Supreme Court in 1996. The New Deal is a socialist revolution and wise a proven warrior against the rating in part was because of com- ought to be undone—does anyone on scourge of conservatives everywhere— plaints that she was ‘‘insensitive to es- this side of the aisle agree with that? judicial activism? No. She is clearly an tablished legal precedent.’’ And then defend for me once, I would activist judge. She takes what comes Or listen to the words of conservative like to hear in all the debate we had into her own mind—she is bright, but a writer Andrew Sullivan who agrees and will have on Janice Rogers Brown lot of her views compared to American with many of Justice Brown’s views. one person defending those comments. law veer way off course—and she writes He said there is a case to be made for The only person I heard is ORRIN them in her opinions. Decades of elec- ‘‘the constitutional extremism of one HATCH: Well, she tries to be inflam- tions, tens of thousands of legislators, of the President’s favorite nominees, matory, or she tries to get people’s at- executives, and she just throws them Janice Rogers Brown. Whatever else tention. She has said things such as out the window because she happens to she is, she does not fit the description this over and over. believe she knows better than every- of a judge who simply applies the law.’’ If you believe the New Deal was a so- body else. This is Andrew Sullivan, conservative cialist revolution that ought to be un- That is what a judicial activist is. commentator, not CHUCK SCHUMER. He done, you are not a strict construc- That is what the conservative move- said: If she is not a judicial activist, I tionist. The legislature, the Congress, ment against judicial activism rebelled do not know who would be. and the President, Democrats and Re- against. Mr. Sullivan made it a point to say publicans, from 1932 on have said the Well, conservatives and moderates he might agree with some of her views things we have done in the New Deal alike have criticized her for her activ- but not her penchant for imposing and built upon on the basis of the New ism, and her own words show her to be those views in her position as a judge, Deal ought to stay. Should one judge as activist as they come. Her own and that is the point. God bless her for be able to undo that? Then why are we words demonstrate she is quick to her views. This is America. We can all voting for her? That is not strict want to reverse precedent, the very have different views. But when one be- comes a judge and they take an oath of constructionism. That is not conserv- definition of an activist judge. When it office to uphold the Constitution, part atism. comes to reversing precedent, one Listen to what a conservative com- of that means they uphold the tradi- might say Janice Rogers Brown has an mentator, Ramesh Ponnuru, wrote tions of law that are under the Con- itchy trigger finger; she cannot wait to about her in the National Review some stitution. reverse precedent. time ago. The National Review is a Here is what Sullivan said: Here is what she said in People v. conservative publication. I might add, I am not unsympathetic to Roberman, 1998: We cannot simply her views but she should run for office, not Republicans and their conservative allies cloak ourselves in the doctrine of stare have been willing to make lame arguments the courts. to rescue even nominees whose juris pru- decisis. Hello? I went to law school. I He has it exactly right. Let her run dence is questionable. learned throughout law school, one on her views that the New Deal was a He continues to say—this is not my studies cases because of stare decisis. socialist revolution. Let her run on her quote: One is supposed to look at the train of views that there should not be child Janice Rogers Brown has argued there is law, and here she is: Forget stare deci- labor laws. Let her run on her views properly an extra constitutional dimension sis. that there should be no zoning laws so to constitutional law. If that was said by a liberal who someone who wanted to open a porno- Those are her words. wanted to move things way over to the graphic store next to a high school had She has said that judges should be willing left—a liberal would not say it; it a constitutional right to do so or some- to invoke— would be someone further over—what body could buy a tract of land right And this is Mr. Ponnuru quoting Jan- would be heard on that side of the next to your nice suburban house and ice Rogers Brown, not me— aisle? What does it say about her reluc- put in a factory. She has said that judges should be willing tance to be an activist? How about Mr. Ponnuru, again, a to invoke ‘‘a higher law than the Constitu- Time and time again she has jumped conservative writer from the National tion.’’ at the chance to reshape settled law. Review magazine: You can find a higher law to the Con- Listen to a few statements from opin- She has said that judicial activism is not stitution if you so believe from the far ions she has written, not from speech- troubling per se. What matters is the world right, from the far left, maybe from the es. Everyone has said, do not judge her view of the judicial activist. In other words, animal rights people or the vegetar- speeches—they are inflammatory and one can be a judicial activist if they agree ians, but that is not what judges should intended to be so—but her opinions. with her views, not if they do not. do. Here she says: The commercial speech I have to say to my friends on the Take a look at her own words in a doctrine, which has been established in other side of the aisle, they have lost a dissent involving a California propo- our law for decades, needs and deserves lot of the argument on judicial activ- sition, proposition 209. In that case, reconsideration and this is as good as ism when they support Janice Rogers which involved affirmative action, Jus- any place to begin. Brown. Judicial activism is not some- tice Brown did not feel compelled to She wrote she was disinclined to per- times yes and sometimes no. An activ- limit herself strictly to the language of petuate dubious law for no better rea- ist is somebody who makes his or her that proposition. Instead, she decided son than it exists. own law, it comes out of their own that she should ‘‘look to the analytical I had a history professor in college. head and supersedes everything we and philosophical evolution of the in- He said his first lesson of history is we have known, whether it is left, right, terpretation and application of title are no smarter than our fathers, and center. VII to develop the historical context people who think they are much smart- It is incredible. It is incredible that behind proposition 209.’’ er than people who came before them we are discussing Janice Rogers Brown. This sounds like Justice Brennan or and have nothing to learn from them I can imagine the reaction if a Demo- some of the very liberal judges the con- do not belong on the bench. Here she is: cratic President put forward a nominee

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY June 6, 2005 CONGRESSIONAL RECORD — SENATE S6093 who said all of these things. We would is enormous political pressure, party might be. We might have a race for have pandemonium on that side of the pressure, on those moderate Senators. that. But does the most conservative aisle. But guess what. President Clin- Senator FRIST has spoken the last Member of this Chamber believe there ton never would have nominated some- few weeks about leader-led filibusters should be no zoning laws? These are one like this. It is only because Presi- of judges, whatever that means. Well, State laws, which has nothing to do dent Bush is so in the thrall of the hard is this a leader-led rubberstamping of with federalism, which Justice Scalia right that he has to do this. Thank God nominees who have not even convinced made one of his hallmarks. I disagree it is not true of most of the judges he noted conservatives that they belong with him on those issues, but that is a has nominated, conservative though on the bench? different argument. These are local they may be. Let me make one other point. If one zoning laws. Unconstitutional? Is it un- So as the record reflects, Janice Rog- looks at all the nominees, 45 court of constitutional to say you cannot put ers Brown does not have the impulses appeals nominees, every measure that poison in the air? Is it unconstitutional of a restrained judge. She has the pas- was put forward on the other side of to say you can’t pollute the water? Is it sions of a judicial activist and that was the aisle for every one of the court of unconstitutional to say in a residential the type I thought conservatives want- appeals nominees, whether it is to in- community you cannot put in a factory ed to keep off the bench at all costs. voke cloture or to vote for them, there or a porno palace? What are we doing How about this argument: She is not was not a single Republican dissent, here? What is going on here? a strict constructionist and she is a ju- except one: TRENT LOTT on Roger Greg- I have to tell you, I do not see how dicial activist. But are her judicial ory for the Fourth Circuit. That was anyone on that side of the aisle can views otherwise in the mainstream of the man Jesse Helms blocked, mostly look in the mirror and say they really conservatism? Is that why people on because he did not want a Black man think this woman belongs on the DC the other side of the aisle support her? on the Fourth Circuit, which has not Court of Appeals. My friend said Justice had a Black man before, even though If it were just one view, you would Brown is in the mainstream. Well, let the Fourth Circuit, North Carolina, say: Well, these guys are just focusing us ask the American people if her views Virginia, has a large Black population. on one view. It is over and over again. are in the mainstream. Or first let us Let us look at the merits of Justice Until Santa Monica—just to go back to ask conservative commentator George Brown. Let us look at her views and Lochner— v. Superior Court, she called Will, a very respected man—and I have why I feel she could not have been a the demise of the Lochner era ‘‘the rev- more respect for him because at least worse pick. This has nothing to do with olution of 1937.’’ That is that socialist he is calling the shots as he sees them, her faith, her race, her gender, or her revolution, the New Deal. She wants to not like my colleagues who seem to be background. We are being blind to all undo it. marching to the tune of Janice Rogers that. Any nominee who has these Here is what she said on another oc- Brown without even thinking. Here is views—could be Black, White, His- casion: what George Will said, and in fairness panic, Asian, man, woman—you just Today’s senior citizens blithely cannibalize to George Will he was first saying that can’t support somebody like this be- their grandchildren because they have the Priscilla Owen, who we opposed, is part cause of their views, not because of right to get as much free stuff as the polit- of the mainstream, but here is what he who they are and not because of their ical system will permit them to extract. said about Brown: background. What a record she has. I suppose you read from that that she Another of the three, Janice Rogers Brown, In case after case, Justice Brown wants to repeal Social Security. After is out of that mainstream. That should not goes through contortions of legal logic all, that was part of the socialist revo- be an automatic disqualification, but it is a that reach results to hurt workers, lution. Does anyone here believe we fact . . . limit environmental protections, and should repeal Social Security? Anyone? I say to Mr. Will, it surely is a dis- injure basic rights. Time and time In a dissenting opinion, she wrote: qualification to me, but that is not the again, when a legal question is pre- I would deny the senior citizen plaintiff re- point. Even George Will says Janice sented twice, she takes two polar oppo- lief because she has failed to establish that Rogers Brown is out of the main- site approaches in order to achieve the public policy against age discrimination in- stream. Which mainstream was he outcome she wants. That is judicial ac- ures to the benefit of the public is funda- talking about? George Will was talking tivism at its worst. mental and substantial. about the mainstream of conservative Judicial activism can be dangerous It goes without saying that a nomi- jurisprudence. on any court, but it is especially dan- nee who does not agree that public pol- He went on to say, and these are his gerous on the DC Circuit, which is icy against age discrimination benefits words: known, for good reason, as the Nation’s the public is far out of any main- It is a fact she has expressed admiration second highest court. stream. for the Supreme Court’s pre-1937 Some of the things she said. She said I don’t know of a single person on the hyperactivism in declaring unconstitutional that the Lochner case was decided cor- U.S. courts—and there may be one or many laws and regulations of the sort that rectly. The Lochner case says that two but none that have come to my at- now define the post-New Deal regulatory States cannot pass any laws protecting tention—who is as out of the main- state. workers. If you ask most lawyers to stream, as far over to the right as Jan- George Will has the forthrightness, name the worst Supreme Court deci- ice Rogers Brown. straightforwardness, and courage to sion of the 20th century, Lochner So my colleagues—and this is really admit what Janice Rogers Brown is. would be at the top of any list. Fortu- a plea to those on the other side of the When will one of my colleagues from nately, the Court threw it out a few aisle—we have already come to an the other side? decades later. Not even Justice Scalia agreement, at least 14 in the middle— What does the record then show believes States should be prohibited God bless them for trying—that we are about Janice Rogers Brown? She is not from passing wages and hours laws. But going to invoke cloture on Janice Rog- strict in her construction. She is not Janice Rogers Brown believes not only ers Brown, which means there will be mainstream in her conservatism. Nor is the Federal Government not allowed an up-or-down vote. But no one here is she quiet about her activism. So I to, under the commerce clause, but the has voted up or down on Janice Rogers am left with the same question: Why is States themselves cannot do anything. Brown before, except Members of the it that Janice Rogers Brown is touted It is confounding. It is just unbeliev- Judiciary Committee. as the model conservative judge when able. I urge, plead with my colleagues on she is anything but conservative in her How about her views in the San the other side of the aisle—particularly judicial approach? Remo case, where she says all zoning those who are somewhat more mod- I believe there are many Senators laws are a taking of property, an un- erate—look at the record of this nomi- across the aisle who would vote against constitutional taking of property? nee. Look at what she says and what such a candidate because her judicial Does anyone in America believe that? she stands for. If there were ever a philosophy could not be more out of Does the most conservative Member of time to show some independence, to sync with theirs, but I worry that there this Chamber? I don’t know who it not march in lockstep, to vote your

VerDate Mar 15 2010 20:27 Jan 30, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0637 Sfmt 0634 E:\2005SENATE\S06JN5.REC S06JN5 mmaher on DSKCGSP4G1 with SOCIALSECURITY S6094 CONGRESSIONAL RECORD — SENATE June 6, 2005 convictions because you can’t believe atians got a firsthand look at Amer- macy in most people’s minds requires that someone of these views belongs on ican jurisprudence, and Judge Simpson attention to more than just coalitions the court, now is that time. learned how the law deals with the dif- of the willing. I yield the floor. ficulties of life in Eastern Europe. Over the past month, the Senate For- The PRESIDING OFFICER. The Sen- Because of his groundbreaking ef- eign Relations Committee has uncov- ator from Florida. forts, Chief Justice of the United ered a pattern of behavior on the part (The remarks of Mr. NELSON of States William H. Rehnquist appointed of Mr. Bolton that has only confirmed Florida pertaining to the introduction Judge Simpson to the Committee on my concerns. Most disturbing to me is of S–1168 are printed in today’s RECORD International Judicial Relations of the the evidence of Mr. Bolton’s troubled under ‘‘Introduced Bills and Joint Res- Judicial Conference of the United and confrontational relationship with olutions.’’) States in 2004. His wide travels have in- our intelligence community. Mr. NELSON of Florida. Mr. Presi- cluded countries such as Russia, Cro- In speeches and testimony, he has ap- dent, I suggest the absence of a atia, Slovenia and Cyprus. peared to stretch the available intel- quorum. Once on a visit to Ivanovo, Russia, ligence to fit his preconceived views. The PRESIDING OFFICER. The Judge Simpson caused a minor inter- On three separate occasions, he tried to clerk will call the roll. national incident when he accidentally inflate language characterizing our in- The assistant legislative clerk pro- locked himself in the courtroom cage telligence assessments regarding Syr- ceeded to call the roll. usually reserved for the defendant. Ap- ia’s nuclear activities. He sought to ex- Mr. FRIST. Mr. President, I ask parently, it was quite difficult to find aggerate the intelligence community’s unanimous consent that the order for the key. Everyone handled the situa- views about Cuba’s possible biological the quorum call be rescinded. tion with great humor, and Chuck weapons activities. His track record, The PRESIDING OFFICER. Without struck a blow for diplomacy when his on these and other matters, was so bad objection, it is so ordered. story made the front page of the local that the Deputy Secretary of State f Ivanovo newspaper. made an extraordinary order—that Mr. In 1999 Judge Simpson was named Bolton could not give any testimony or MORNING BUSINESS outstanding alumnus of the University speech that was not personally cleared Mr. FRIST. Mr. President, I ask of Louisville’s Louis D. Brandeis by the Deputy Secretary or the Sec- unanimous consent there now be a pe- School of Law, and in 2000 the Louis- retary’s chief of staff. riod of morning business, with Sen- ville Bar Association named him judge He also dampened critical debates ators permitted to speak for up to 10 of the year. He and his wife Clare have among professionals on important pol- minutes each. three children, one of whom, their icy issues by retaliating against ana- The PRESIDING OFFICER. Without daughter Pam, has served with distinc- lysts who presented a different point of objection, it is so ordered. tion for 2 years in my Washington of- view than his own. For example, on f fice. three occasions over a 6 month period, For his decades of service, the Ken- he sought to remove a midlevel analyst TRIBUTE TO JUDGE CHARLES R. tucky Bar Association has named who disputed the language he tried to SIMPSON III Chuck the 2005 outstanding judge of use about Cuba. The proliferation of Mr. MCCONNELL. Mr. President, I the year. They recognize that he is a weapons of mass destruction is a seri- rise today to pay tribute to an ambas- superb representative of the American ous matter. I would not criticize Mr. sador of the law. Charles R. Simpson justice system to our friends across the Bolton for asking intelligence analysts III, judge of the United States District world, and the knowledge he brings hard questions about proliferation Court for the Western District of Ken- home from his travels enriches us all. issues, nor should policy makers re- tucky, is a renowned fixture of the Mr. President, today I ask my col- frain from challenging the assumptions legal community in his home state as leagues to join me in commending of those analysts. But Mr. Bolton was well as a world traveler, in his capacity Judge Simpson for receiving this high doing something far different. He made as a member of the Committee on honor, and for his service to the law it clear that he expected intelligence International Judicial Relations of the and his country. analyses that conformed with his pre- Judicial Conference of the United f conceived policy views. Rather than States. In that role, he serves as both a welcome contrary intelligence analyses student and a teacher in courtrooms NOMINATION OF JOHN BOLTON TO as essential to an informed debate, he all over the world. BE UNITED STATES AMBAS- retaliated against those who offered Judge Simpson is also an old friend SADOR TO THE UNITED NATIONS contrary views. of mine. He graduated from my alma Mr. CORZINE. Mr. President, I will Mr. Bolton’s approach to those mater, the University of Louisville, be voting against the nomination of around him has been harshly criticized where he received both his bachelor’s John Bolton to be Ambassador to the by those who have worked with him. degree in 1967 and his law degree in United Nations. Larry Wilkerson, the chief of staff for 1970. Soon afterwards, we both helped When the President first nominated Secretary Powell, called him a ‘‘lousy found the law firm of Levin, Yussman, Mr. Bolton for this position, I ex- leader.’’ Carl Ford, former head of the McConnell & Simpson. Obviously it pressed deep disappointment and con- State Department’s Bureau of Intel- was not the last stop for either of us. cern. First, because of his repeated ex- ligence and Research, referred to Mr. After serving the public in county pression of disdain for the organiza- Bolton as a ‘‘quintessential kiss-up, government, where I also served, Judge tion. But, more importantly, because kick-down sort of guy.’’ Simpson was appointed to the District Mr. Bolton is as responsible as any This is not the person we need at the Court by President Ronald Reagan in member of the administration for the United Nations. Good diplomacy, like 1986. He has retained that post for near- needless confrontations with the rest good business, relies on a great team ly 20 years, rising to become one of the of the world and for the international and a good leader. Good leaders listen. most respected voices in Louisville and isolation that plagued President Bush’s They listen to their troops, they make throughout the State. But he also first term and for the shaky credibility reasoned decisions, they take responsi- wanted to take his legal knowledge and we carry today. At a time when we bility, and they build the respect and his love of Kentucky and spread it be- need to be strengthening our alliances loyalty of their staff. Management by yond America’s borders. and making full use of international fear is a recipe, in both public service Dating to a period in his youth when institutions to achieve our foreign pol- and the private sector, for getting only he studied painting and architecture in icy goals, sending Mr. Bolton to the the information that you want to hear. Europe, Chuck has enjoyed an adven- United Nations sends the exact wrong Shoot the messenger and other mes- turer’s spirit. So he spearheaded the es- message. I do not accept his view that sengers will not volunteer to deliver tablishment of a sister-court relation- the U.N. is a vehicle to be used by the the bad news. And I submit that Mr. ship between his court and one in Cro- U.S. ‘‘when it suits our interests and Bolton has developed a reputation for atia. Through this friendship, Cro- we can get others to go along.’’ Diplo- shooting the messenger.

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