28864 CONGRESSIONAL RECORD—SENATE November 12, 2003 The PRESIDING OFFICER. Without NOMINATION OF JANICE R. responsive answers to Senators’ ques- objection, it is so ordered. BROWN, OF , TO BE tions, and during Senate floor debate By unanimous consent, the manda- CIRCUIT JUDGE on another highly divisive judicial tory quorum call has been waived. FOR THE DISTRICT OF COLUM- nominee, before a full Committee de- BIA CIRCUIT bate could be held. The District of Co- The question is, Is it the sense of the CLOTURE MOTION lumbia Circuit is too important to the Senate that debate on Executive Cal- The PRESIDING OFFICER. Under rights of all Americans to be left to endar No. 169, the nomination of Caro- the previous order, the clerk will re- judges whose ideological bias would lyn B. Kuhl, of California, to be United port the motion to invoke cloture. lead them to gut the environmental States Circuit Judge for the Ninth Cir- The assistant legislative clerk read protections, workplace protections, cuit, shall be brought to a close. as follows: consumer protections and other gov- The yeas and nays are required under CLOTURE MOTION ernment regulations authorized by the rule. We, the undersigned Senators, in accord- Congress to protect all Americans. In my statement at the outset of her The clerk will call the roll. ance with the provisions of Rule XXII of the Standing Rules of the Senate, do hereby confirmation hearing less than one The assistant legislative clerk called move to bring to a close debate on Executive month ago, I urged partisans to end the the roll. Calendar No. 455, the nomination of Janice ugly game of contending that any criti- R. Brown, of California, to be United States Mr. REID. I announce that the Sen- cism of the record of a Bush judicial Circuit Judge for the District of Columbia nominee had to be motivated by big- ator from North Carolina (Mr. ED- Circuit. otry. I asked that the right-wing tactic WARDS), the Senator from Hawaii (Mr. Bill Frist, Orrin G. Hatch, Lindsey of smears and name calling subside and INOUYE), the Senator from Massachu- Graham, Mike Crapo, , that we not see the race card dealt setts (Mr. KERRY), and the Senator Conrad R. Burns, Larry E. Craig, Saxby from the shameful deck of unfounded from Florida (Mr. NELSON) are nec- Chambliss, Mitch McConnell, Jim charges that stalwarts of this Presi- essarily absent. Bunning, Judd Gregg, John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, dent’s most extreme nominees have I further announce that, if present Craig Thomas, Kay Bailey Hutchison. come to rely upon as they further in- and voting, the Senator from Massa- Mr. LEAHY. Mr. President, the oppo- ject partisanship and politics into the chusetts (Mr. KERRY) would vote sition to Justice Brown for a lifetime appointment of Federal judges. I noted ‘‘nay.’’ position on the D.C. Circuit is deep and that I expected that those who ulti- The PRESIDING OFFICER. Are there wide and is based on her record, both mately decided to support Justice any other Senators in the Chamber de- on and off the bench. As anyone who Brown, even though they oppose af- siring to vote? was watching C–SPAN last night and firmative action, would do so because the night before would know, the Re- they believed she would be a fair Fed- The yeas and nays resulted—yeas 53, publicans are using the judicial nomi- eral judge. I suggested that those who nays 43, as follows: nation process in a manner that divides opposed her because they retained seri- [Rollcall Vote No. 451 Ex.] rather than unites. As the San Fran- ous doubt about her nomination and cisco Chronicle wrote, ‘‘Presidents are concerned that she was selected on YEAS—53 typically shape the judiciary to reflect ideological grounds, could oppose her Alexander Dole Miller their own views. But with Charles nomination for principled reasons hav- Allard Domenici Murkowski Allen Ensign Nelson (NE) Pickering, Priscilla Owens, William ing nothing to do with race. I urged Bennett Enzi Nickles Pryor, Miguel Estrada and now Brown, that we focus on substance at the hear- Bond Fitzgerald Roberts Bush seems bent on stacking the bench ing and in this process. Brownback Frist Santorum My plea went unheeded, so that, Bunning Graham (SC) with ideologues.’’ Sessions For this particular nominee, Janice first, I must, again, briefly respond to Burns Grassley Shelby Campbell Gregg Smith Rogers Brown, the White House polit- the partisan smears and name-calling Chafee Hagel Snowe ical operatives and ideologically driven that I have been hearing from the Chambliss Hatch Specter Cochran Hutchison selection staff reached out 3,000 miles other side of the aisle. We have heard Coleman Inhofe Stevens to find a nominee who has repeatedly the ridiculous charges that we are op- Collins Kyl Sununu received negative ratings, who has been posing Justice Brown because of her Talent Cornyn Lott criticized by her Republican colleagues gender or her race. My opposition to Craig Lugar Thomas Crapo McCain Voinovich on the bench, and who has emerged this nominee has nothing to do with DeWine McConnell Warner from the Senate Judiciary Committee her race; it is has nothing to do with on a party-line vote. As Justice her gender. It is about what kind of a NAYS—43 Brown’s home State newspaper, the lifetime appointment to the District of Akaka Dodd Levin San Francisco Chronicle, wrote: ‘‘nam- Columbia Circuit I fear she would be. Baucus Dorgan Lieberman ing Janice Rogers Brown to the U.S. If Democrats were making decisions Bayh Durbin Lincoln Biden Feingold Mikulski Circuit Court of Appeals for the D.C. based on the gender of the nominee, Bingaman Feinstein Murray Circuit, President Bush has again cho- would we have confirmed 33 judges Boxer Graham (FL) Pryor sen a contrarian with a judicial philos- nominated by President Bush who are Breaux Harkin Reed ophy that lies well outside the bounds women, including seven to the Courts Byrd Hollings Reid Cantwell Jeffords of Appeal? Would we have worked so Rockefeller of the mainstream.’’ Even the Wash- Carper Johnson Sarbanes ington Post, which has been very sym- hard during the Clinton years to in- Clinton Kennedy Schumer crease gender diversity on the bench Conrad Kohl pathetic to this Administration and, in Corzine Landrieu Stabenow particular, to its court-packing efforts and fight for votes for Bonnie Camp- Daschle Lautenberg Wyden on the D.C. Circuit, has written that bell, Elena Kagan and the scores of Dayton Leahy Janice Rogers Brown ‘‘is one of the women nominees who were blocked and delayed by anonymous Republican NOT VOTING—4 most unapologetically ideological nominees’’ in many years. holds? Would we be urging President Edwards Kerry Inouye Nelson (FL) As the nominee herself conceded at Bush to work with us to find out- the end of her confirmation hearing, standing women judges and lawyers to The PRESIDING OFFICER. On this she was ‘‘treated with great courtesy’’ increase gender diversity on the Fed- vote, the yeas are 53, the nays are 43. by the Members of the Judiciary Com- eral bench? Do our critics really con- Three-fifths of the Senators duly cho- mittee. Thereafter, this was a nomina- tend that Senators MIKULSKI, FEIN- sen and sworn not having voted in the tion rushed out of the Committee last STEIN, BOXER, MURRAY, LANDRIEU, LIN- affirmative, the motion is rejected. week before the ink was dry on non- COLN, CANTWELL, CLINTON, and

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STABENOW are anti-woman, or that provided to the Senate Judiciary Com- Justice Brown’s ‘‘apparent claim that Senators KENNEDY, BIDEN, HARKIN, mittee. these are ‘just speeches’ that exist in REID or any other Democratic Senators Now, Justice Brown’s supporters will an entirely different world from her ju- would discriminate against women? say we are opposing Justice Brown be- dicial opinions,’’ ‘‘that defense not This is a smokescreen, intended to ob- cause her viewpoint is different than only is implausible but trivializes the scure this nominee’s stark record. ours on social issues. But my opposi- judicial role.’’ I agree with Professor If Democrats were making decisions tion is not about whether Justice Barnett on this and understand his de- based on the race of the nominee, why Brown would vote like me if she were a termination to oppose her nomination. would we have voted to confirm 13 Afri- member of the on Justice Brown’s provocative speeches can-American judges nominated by issues of importance. This is not about are disturbing in their own right, and President Bush, including all four of her position on choice. This is not they are made more so by their reprise the other African Americans nomi- about one dissent or one speech. This is in her opinions. nated by President Bush to the appel- about Justice Brown’s approach to the Justice Brown now says that she will late courts? Would we have confirmed law—an approach which she has con- ‘‘follow the law.’’ However, in a judi- Lavenski Smith to the 8th Circuit? sistently used to promote her own ideo- cial dissent, she wrote, ‘‘We cannot Would we have fought so hard for two logical agenda, an extreme agenda that simply cloak ourselves in the doctrine Congresses to confirm Roger Gregory is out of the mainstream. Her approach of stare decisis.’’ and integrate the 4th Circuit? Would does not entitle her to a lifetime ap- One of the examples of Justice we have worked with Senator EDWARDS pointment to this very important ap- Brown’s results-oriented jurisprudence to confirm Allyson Duncan to the 4th pellate court. can be seen in the way she has dis- Circuit? For that matter, would we Janice Rogers Brown’s approach to regarded precedent in her opinions in have been so outraged at the Repub- the law can be best described as a ‘‘ju- order to expand the rights of corpora- licans’ treatment of Justice Ronnie risprudence of convenience.’’ What do I tions and property owners, at the ex- White, Judge Beatty, Judge Wynn, mean by that? Justice Brown has prov- pense of workers and individuals who Kathleen McCree Lewis and so many en herself to be a results-oriented, have been the victims of discrimina- outstanding African-American judges agenda-driven judge whose respect for tion. In several dissents, Justice Brown and lawyers who the Republicans precedent and rules of judicial inter- called for overturning an exception to blocked from confirmation during the pretation change depending on the sub- at-will employment, long recognized by Clinton years? These claims of racism ject matter before her and the results the California Supreme Court, that was are irresponsible and false. These ploys she wants to reach. created to protect workers from dis- are wrong, and they should stop. While Justice Brown’s approach to crimination. She has repeatedly argued In fact, the list of the African-Amer- the law has been inconsistent—she has for overturning precedent to provide ican organizations and individuals who taken whatever approach she needs to more leeway for corporations against oppose Justice Rogers Brown’s nomina- in order to get to a result she desires— attempts to stop the sale of cigarettes tion is one of the most troubling indi- the results which she has worked to- to minors, prevent consumer fraud, and cations that this is another divisive, ward have been very consistent— prevent the exclusion of women and ho- ideologically driven nomination. Are throughout her public record. Some of mosexuals. we to believe that the 39 members of Brown’s supporters, and in fact Justice Justice Brown has also been incon- the Congressional Black Caucus are Brown herself, have tried to detract at- sistent in the application of rules of ju- racist? Members of the Congressional tention from the ideas she has ex- dicial interpretation—again depending Black Caucus include the respected pressed in speeches—while she was a on the result that she wants to reach in congressional delegate from the Dis- member of the bench—claiming they order to fulfill her extremist ideolog- trict of Columbia ELEANOR HOLMES are ‘‘just speeches.’’ Well, that is a ical agenda. NORTON, the chair of the Congressional hard distinction to follow when Justice These legal trends—her disregard for Black Caucus, the Honorable ELIJAH Brown’s comments to groups across the precedent, her inconsistency in judicial CUMMINGS, and such distinguished country over the last 10 years repeated interpretation, and her tendency to in- Americans as Representatives CHARLES the same themes—in fact, sometimes ject her personal opinions into her ju- RANGEL and JOHN CONYERS. In addition even the same words—as she has writ- dicial opinions—lead to no other con- the Nation’s oldest and largest associa- ten in her opinions. clusion but that Janice Rogers Brown tion of predominantly African-Amer- In Santa Monica Beach v. Superior is—in the true sense of the words—a ju- ican lawyers and judges, the National Court of L.A. County, Justice Brown dicial activist. Bar Association, and its State counter- wrote of the demise of the , When it is needed to reach a conclu- part, the California Association of claiming ‘‘the ‘revolution of 1937’ ended sion that meets her own ideological be- Black Lawyers both oppose this nomi- the era of economic substantive due liefs, Justice Brown stresses the need nation. process but it did not dampen the for deference to the legislature and the The foremost national civil rights or- court’s penchant for rewriting the Con- electorate. However, when the laws—as ganization, the Leadership Conference stitution.’’ Similarly, in a speech to passed by legislators and voters—are on Civil Rights opposes this nomina- the , she said of the different than laws she believes are tion. The women of Delta Sigma Theta year 1937—it ‘‘marks the triumph of necessary, she has advocated for judi- oppose this nomination. Dr. Dorothy our own socialist revolution.’’ cial activism. Height, Dr. Joseph Lowery and Julian In San Remo Hotel v. City and Coun- One stark example springs to mind: Bond have spoken out against this ty of San Francisco, Justice Brown In order to support her view that nomination. wrote, ‘‘(t)urning a democracy into a judges should be able to limit damages Justice Brown has a lengthy record, kleptocracy does not enhance the stat- in employment discrimination cases, of opinions, of speeches and of writings. ure of the thieves; it only diminishes she concluded that ‘‘creativity’’ was a She has very strong opinions, and there the legitimacy of the government.’’ permissible judicial practice and that is little mystery about her views, even Similarly, two years earlier, she told all judges ‘‘make law.’’ though she sought to moderate them an audience at the Institute for Jus- Justice Brown’s approach to the law when she appeared before the Judiciary tice, ‘‘If we can invoke no ultimate has led to many opinions which are Committee. limits on the power of government, a very disturbing. She has repeatedly I come to my decision after review- democracy is inevitably transformed and consistently advocated turning ing Justice Brown’s record—her judi- into a kleptocracy—a license to steal, a back the clock 100 years to return to cial opinions, her speeches and warrant for oppression.’’ an era where worker protection laws writings—and considering her testi- As Berkeley Law School Professor were found unconstitutional. She has mony and oral and written answers Stephen Barnett pointed out about attacked the , an era which

VerDate Aug 31 2005 14:16 Aug 07, 2007 Jkt 029102 PO 00000 Frm 00331 Fmt 0686 Sfmt 0634 E:\BR03\S12NO3.011 S12NO3 cprice-sewell on PROD1PC72 with BOUND RECORD 28866 CONGRESSIONAL RECORD—SENATE November 12, 2003 created Social Security and labor of Janice R. Brown, of California, to be The PRESIDING OFFICER. Without standards, by saying it ‘‘inoculated the United States Circuit Judge for the objection, it is so ordered. Federal Constitution with a kind of un- District of Columbia Circuit, shall be f derground collectivist mentality.’’ brought to a close? And she has repeatedly opposed pro- The yeas and nays are mandatory MORNING BUSINESS tections against discrimination of indi- under the rule. The clerk will call the Mr. STEVENS. Mr. President, I ask viduals—in their jobs and in their roll. unanimous consent we proceed to a pe- homes. Justice Brown’s recent claims The legislative clerk called the roll. riod for morning business with Sen- that her words do not mean what they Mr. REID. I announce that the Sen- ators permitted to speak therein for up say are simply unconvincing. ator from North Carolina (Mr. ED- to 10 minutes. There is one more aspect of Justice WARDS), the Senator from Hawaii (Mr. The PRESIDING OFFICER. Is there Brown’s nomination which is ex- INOUYE), the Senator from Massachu- objection? Without objection, it is so tremely disturbing. That has to do setts (Mr. KERRY), and the Senator ordered. with the court for which she was nomi- from Florida (Mr. NELSON) are nec- The PRESIDING OFFICER. The Sen- nated. She is being considered for a po- essarily absent. ator from Washington. sition on the premier administrative I further announce that, if present law court in the Nation—a court that and voting, the Senator from Massa- f is charged with overseeing the actions chusetts (Mr. KERRY) would vote THE UNEMPLOYMENT PROBLEM IN of Federal agencies that are respon- ‘‘nay.’’ AMERICA sible for worker protections, environ- The PRESIDING OFFICER. Are there mental protections, consumer safe- any other Senators in the Chamber de- Ms. CANTWELL. Mr. President, we guards, and civil rights protections. siring to vote? just completed 30 hours of debate on ju- I am concerned about her ability to The yeas and nays resulted—yeas 53, dicial nominees, an obviously impor- be a fair arbitrator on this court. Jus- nays 43, as follows: tant debate for all Members who par- tice Brown has made no secret of her [Rollcall Vote No. 452 Ex.] ticipated. But it is time for us to ad- disdain for government. She has said, YEAS—53 dress the unemployment problem in ‘‘where government moves in, commu- Alexander Dole Miller America, and the fact that this body nity retreats, civil society disinte- Allard Domenici Murkowski cannot adjourn for the year without grates, and our ability to control our Allen Ensign Nelson (NE) passing an unemployment benefit ex- own destiny atrophies.’’ Bennett Enzi Nickles tension. Bond Fitzgerald How can someone who believes it is Roberts Many of my colleagues will remem- Brownback Frist Santorum not the ‘‘job of government to take Bunning Graham (SC) ber last year we were at this same care of’’ the American people be en- Sessions Burns Grassley Shelby point, when unemployment benefits Campbell Gregg trusted to make fair and neutral deci- Smith Chafee Hagel were going to expire in December. We sions when faced with the responsi- Snowe Chambliss Hatch had a debate about whether that was Specter bility of interpreting the powers of the Cochran Hutchison Stevens necessary to do by the time we ad- Federal Government and the breadth of Coleman Inhofe journed. I can tell you that not a lot regulatory statutes? Justice Brown re- Collins Kyl Sununu Talent has changed in Washington State. We sponded to this question at her hearing Cornyn Lott Craig Lugar Thomas still have 7.6-percent unemployment by calling on us to review her record as Crapo McCain Voinovich and a very high level at the national Warner a judge to see that she does not ‘‘hate DeWine McConnell level, at 6 percent. Americans want to Government.’’ Well, I did review her NAYS—43 know whether they are going to have record. And, what I found was dis- Akaka Dodd Levin an extension of those benefits. turbing: She has used her position on Baucus Dorgan Lieberman During the Bush and Clinton admin- and off the bench to argue for the dis- Bayh Durbin Lincoln istrations we extended unemployment mantling of government from the in- Biden Feingold Mikulski Bingaman Feinstein Murray benefits for an extension of over 30 side out. Boxer Graham (FL) It is no small irony that this Presi- Pryor weeks during that time period because Breaux Harkin Reed we thought it was important to make dent, who spoke of being a uniter but Byrd Hollings Reid Cantwell Jeffords sure people were covered. During the has used his position to send judicial Rockefeller Carper Johnson Sarbanes economic downturn, unemployment nominations that divide the Senate Clinton Kennedy Schumer benefits are a stimulus. For every dol- and the country, and who spoke with Conrad Kohl disdain of ‘‘judicial activism,’’ has Corzine Landrieu Stabenow lar spent on unemployment benefits it Wyden nominated several of the most consum- Daschle Lautenberg generates $2.15 as far as the economy— Dayton mate judicial activists ever chosen by Leahy that is mortgage payments that can be any President. None of the President’s NOT VOTING—4 made, health care benefits that can be nominees is more in the mold of judi- Edwards Kerry extended. cial activist than this nominee, Janice Inouye Nelson (FL) While my colleagues think last year’s Rogers Brown. The motion was rejected. solution of coming back in January I am voting against Justice Borwn’s The PRESIDING OFFICER. On this and fixing this unemployment benefit nomination today because the Amer- vote, the yeas are 53, the nays are 43. problem was a solution, I guarantee it ican people deserve judges who will in- Three-fifths of the Senators duly cho- was not. Adjourning from here without terpret the law fairly and objectively. sen and sworn not having voted in the expanding unemployment benefits is Janice Rogers Brown is a confirmed affirmative, the motion is rejected. like putting a lump of coal in the and committed judicial activist who Mr. STEVENS. Mr. President, I move stockings of Americans at Christmas- has a consistent record of using her po- to reconsider the vote. time. sition as a member of the court to ad- Mr. BOND. I move to lay that motion There were individuals in my State vocate for her personal belief. We must on the table. who, because of the failure of us acting, not enable her to bring her ‘‘jurispru- The motion to lay on the table was really did make economic choices dence of convenience’’ to one of the agreed to. about their future. I had a constituent most important courts in the Nation. f who took a big chunk out of her pen- The PRESIDING OFFICER. By unan- sion program at a 30-percent penalty, imous consent, the mandatory quorum LEGISLATIVE SESSION basically trading her long-term eco- call has been waived. Mr. STEVENS. Mr. President, I ask nomic future off for short-term returns The question is, Is it the sense of the unanimous consent the Senate return because we hadn’t given her a commit- Senate that debate on the nomination to legislative session. ment on unemployment benefits.

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