Executive Session

EXECUTIVE SESSION

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

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Mr. DURBIN. Mr. President, I am sorry that this day has come. Janice Rogers Brown is one of President Bush's most ideological and extreme judicial nominees. This is not just my opinion. I invite anyone, please, read her speeches, read her opinions. They reflect the views of a judicial activist and a person who is, in fact, an ideological warrior. They reflect the views of someone who is outside of the mainstream of American thought. They reflect the views of someone who should not be given a lifetime appointment to the second highest court in America--a court second only to the United States Supreme Court.

I am a member of the Senate Judiciary Committee. I served as the ranking Democrat at Justice Brown's hearing in October of 2003. I asked her a lot of questions. Her answers offered little assurance that she will be anything but a judicial activist with a far-right agenda.

She is a very engaging person. She has a great life story. You cannot help but like her when you first meet her. But then, as you read what she has said and ask her questions about it, you cannot help but be troubled, if you are looking for someone who is moderate and centrist and who will be fair in the way they view the most important cases coming before the court.

Do not take my word for that. Listen to the words of George Will, one of the most well-known, conservative voices in America.

Two weeks ago in the Washington Post, George Will wrote the following:

Janice Rogers Brown is out of that mainstream. That should not be an automatic disqualification, but it is a fact: She has expressed admiration for the Supreme Court's pre-1937 hyper-activism in declaring unconstitutional many laws and regulations of the sort that now define the new post-New Deal regulatory state.

I agree with George Will. So do hundreds of other individuals and organizations. Newspaper editorial boards across America are deeply troubled about her nomination by President Bush.

Justice Brown's ideological rants about the role of government in our society are found most often in her speeches. She called the year of 1937 ``the triumph of our own socialist revolution.'' Socialism in America, in the eyes of Justice Brown. Why? Because the Supreme Court decisions that year upheld the constitutionality of Social Security and other major parts of the New Deal. So in the eyes of Justice Brown, the New Deal and Social Security are socialist ideas? That shows how far removed she is from the reality of thinking in America.

She stated:

Where Government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.

That is a wonderful line to throw in a novel but to announce that as your philosophy as you take off to preside over a bench making decisions involving the lives of hundreds of thousands of Americans is just too extreme.

Justice Brown has praised an infamous case, Lochner v. New York. It is a 100-year-old case. The Supreme Court struck down maximum-hour laws for bakers and ruled that Government regulations interfered with the constitutional right to ``freedom of contract.'' The Lochner case has been repudiated by both liberals and conservatives. They said it went too far. They believed it was extreme, but not Justice Brown. She not only accepts the Lochner decision, she embraces it.

In another speech, Justice Brown said our Federal Government is like slavery. She said:

We no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate.

Think about these words. Interesting things to read. You might want to read them from time to time and say, let's see what the far right thinks about things, except these are the words of a woman who is seeking to bring her views to a lifetime appointment on the Federal bench.

She has blasted Government programs that help seniors, and here is what she said:

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

Think about that. Think of the cynicism in that remark and think about whether she is the judge you would want to face with a critical decision involving your life, your family, your community, or our country--Janice Rogers Brown.

She rebuked elected officials for ``handing out new rights like lollipops in the dentist's office.'' She has complained that ``in the last 100 years, and particularly in the last 30, the Constitution has been demoted to the status of a bad chain novel.''

Think about that. Is Roe v. Wade chapter 1 of Justice Brown's bad chain novel? How about Brown v. Board of Education, Justice Brown? Is that another bad chapter in America's novel? How about Miranda, a decision which has now been accepted across America, another bad chapter in America's novel?

Justice Brown just does not get it. America has changed, thank God, in recognizing the right of privacy, in recognizing that we are putting behind us segregation, separate but equal schools, in recognizing that when it comes to the power of the State, there are limitations and there are rights of individuals. For Justice Brown, these are part of a bad chain novel. What a choice of words.

Justice Brown's rhetoric suggests she is guided more by ``The Fountainhead,'' ``Atlas Shrugged,'' and ``The Road to Serfdom'' than by our Constitution and Bill of Rights. And she wants a lifetime appointment on the bench?

The Washington Post asked a question in an editorial this morning of Republicans in the Senate: If you truly want moderate people who are not activist, who do not come to the bench with an agenda, how can you support Justice Brown? When you take a look at what she has done and said, how can you honestly believe she is going to be moderate in her approach on the bench?

The question is whether Republican Senators will march in lockstep because President Bush says take it or leave it. It is Justice Janice Rogers Brown, you have to have her. If they take it, they are basically turning their backs on the fact they have argued against activism on the bench. Hers is activism from the right, not from the left. But if you are opposed to judicial activism, how could you support her based on what she said?

In her confirmation hearing, Justice Brown dismissed her speeches. She said they were just an attempt to stir the pot. They did more than stir the pot. They set the kitchen on fire. Her speeches show she has the temperament and ideology of a rightwing radio talk show host, not of a person we want to serve on the second highest court of the land for a lifetime--a lifetime.

Justice Brown's nomination to the DC Circuit of all courts is particularly troubling. The DC Circuit is a unique court. It is the court that most closely oversees the operations of Government, such as dealing with worker safety and unfair labor practices. It is the only appellate court with exclusive jurisdiction over many aspects of environmental and energy laws. How ironic and unfortunate to have someone considered for that position who is so openly hostile to the role of the Government when it comes to the environment, when it comes to protecting individual rights.

As a member of the California Supreme Court, Justice Brown has put her theories into practice. In case after case, Justice Brown has sided with anti-Government positions, and she has sided consistently against victims seeking rights and remedies. She is a tough judge. Sometimes you want a tough judge, but you also want a balanced judge, one who is going to be fair in what they do on the bench.

Oftentimes she is the loan dissenter--remarkable--because the California Supreme Court has six Republicans and only one Democrat. Senator BARBARA BOXER of California has counted at least 31 cases where Justice Brown was the sole dissenter. Let me give a few examples.

She was the only member of the California Supreme Court to find the California Fair Employment and Housing Commission did not have the authority to award damages to housing discrimination victims.

She was the only member of the court to conclude that age discrimination victims should not have the right to sue under common law, an interpretation directly contrary to the will of the California Legislature.

She was the only member of the California Supreme Court who voted to strike down a San Francisco law that provided housing assistance to displaced low-income, elderly, and disabled people.

In a case last year, Justice Brown was the sole member of her court who voted to strike down a law that required health insurance plans that cover prescription drugs to include prescription contraceptives in that coverage. Her open hostility to access to contraception is particularly worth noting today, June 7, 2005. Today is the 40th anniversary of the landmark Supreme Court case Griswold v. Connecticut, which established a constitutional right to marital privacy. That case really was a watershed decision.

In the State of Connecticut and several other States, a religious group had been successful in convincing the State
legislature to dramatically limit the availability of birth control and contraception. Forty years ago, some of us did not know it was happening, but it was happening. In some States, you could not buy birth control because the legislature said no. That is a decision the State had decided that you could not make as an individual.

The Griswold case overthrew that law and said that your personal right to privacy trumped State rights when it came to access to contraception.

It turns out that Justice Brown's hostility to access to contraception runs counter to 40 years of thinking in America about our rights as individuals to privacy and to make those decisions involving personal responsibility. Justice Janice Rogers Brown might take that right away.

To reward her for this extreme and fringe view, President Bush wants to give her a lifetime appointment to the second highest court of the land. There she will sit day after day, week after week, and month after month making decisions that affect the lives of individuals. It is her point of view that will prevail. She has shown no inclination toward moderation. She will push that agenda on that court, and people will come into that courtroom and wonder what country they are living in, where this court might be meeting because it is so inconsistent with what America has stood for.

In another case, Justice Brown was the only member of the California Supreme Court who voted to make it easier to sell cigarettes to minors. Isn't that perfect? She wants the Government to invade your privacy when it comes to the decisions about birth control and your family, but she does not want the Government to stop the gas station down the street from selling cigarettes to a 12-year-old.

She was the only member of her court who dissented in two rulings that permitted counties to ban guns or gun sales on fairgrounds or other public property.

She was the only member of her court who voted to overturn the rape conviction of a 17-year-old girl because she believed the victim gave mixed messages to the rapist. She was the only member to dissent. She read the facts and concluded that she sided with the rapist and not the victim--the only member to dissent.

She was the only member of her court who concluded there was nothing improper about requiring a criminal defendant to wear a 50,000-bolt stun belt at his trial--the only member of the court, a court of six Republicans and one Democrat. In many of these cases, there were clear precedents, decisions by the court which Justice Brown chose to ignore. Her personal philosophy was more important to her than the law. That is known as judicial activism. That is what Republicans have condemned, and that is what they will endorse if they vote for her nomination.

Why does she ignore the law so often? It gets in the way of her personal beliefs. Those are the most important things from her point of view.

This is not a new revelation about Justice Brown. Back in 1996, the California State Bar Commission rated Justice Brown as ``not qualified''--not qualified--for the California Supreme Court. Here is what they said about her: She had a tendency ``to interject her political and philosophical views into her opinions.'' No surprise. Read what she has done on that court. Read what she said about the law. And do not be a bit surprised when she comes to this DC Circuit Court, if she is approved by the Senate for a lifetime appointment, and does exactly the same thing. It is not as if we can say 2 years from now: Well, we guessed wrong; she is not independent, she is not moderate, she is an activist, we will remove her. No way. This is a lifetime appointment to this court by the Bush administration, just the kind of ideologue they want to put on that bench to influence decision after decision as long as she lives.

Nine years later, the American Bar Association, in evaluating Justice Brown for the position we are voting on today, gave her the lowest passing grade. Several members of the ABA screening committee rated Justice Brown ``not qualified'' again.

In the editorial I mentioned earlier, entitled ``Reject Justice Brown,'' the Washington Post today asserted:

No Senator who votes for her will have standing any longer to complain about legislating from the bench.

And the Washington Post is right. Do not complain about judicial activism if you vote for Janice Rogers Brown. She is a judicial activist. She has an agenda, and she has been loyal to it on the California Supreme Court. There is no reason to expect anything different on the DC Circuit Court.

A Los Angeles Times editorial entitled ``A Bad Fit for a Key Court'' stated:

In opinions and speeches, Brown has articulated disdainful views of the Constitution and Government that are so strong and so far from the mainstream as to raise questions about whether they would control her decisions.

That is from a Los Angeles Times editorial which, incidentally, is her home State newspaper. They know her best.

The New York Times stated that Justice Brown ``is an outspoken supporter of a radical movement to take constitutional law back to before 1937, when the Federal Government had little power to prevent discrimination, protect workers from unsafe conditions or prohibit child labor.''

The Detroit Free Press put it this way:

Since her appointment to the State court in 1996, Brown has all but hung a banner above her head declaring herself a foe to privacy rights, civil rights, legal precedent and even colleagues who don't share her extremist leanings.

Over 100 organizations oppose Justice Brown. It takes something in this town to get 100 groups to oppose someone. She pulled it off, including almost every major African-American organization in America, despite the fact that Janice Rogers Brown is an African American.

Dr. Dorothy Height, the great civil rights leader, recipient of the Congressional Gold Medal, attended a press conference before the Judiciary Committee vote on Justice Brown in November of 2003 and said this:

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

How hard it must have been for Dorothy Height, this great civil rights leader, to come out and publicly say that this African-American woman, Janice Rogers Brown, was not the right choice for the DC Circuit Court, the same city that Dorothy Height calls home.

The Senate rejected the nomination of Janice Rogers Brown in 2003. Her renomination this year is less about confirmation than it is about confrontation. It is evident the White House wants to pick a fight over this nomination. Well, they will get their wish today.

This White House strategy of confrontation does a great disservice to the American people, who have every right to expect their elected representatives to work together to address the real problems facing our Nation, rather than fighting the same battles over and over.

I know my colleagues across the aisle have steadfastly supported President Bush's judicial nominees, but I urge them to at least stand up to the President on this one.

I ask them to consider the story of Stephen Barnett, a distinguished constitutional law professor at the University of California at Berkeley. Professor Barnett enthusiastically endorsed Janice Rogers Brown before her October 2003 hearing, and Senator Hatch specifically mentioned Professor Barnett and his endorsement in his opening statement at Justice Brown's hearing.

But Professor Barnett changed his mind after he learned more about her record. After the Brown confirmation hearing, Professor Barnett sent a letter to Senator Hatch withdrawing his support. Here is what he said:

Having read the speeches of Justice Brown that have now been disclosed, and having watched her testimony before the Committee on October 22, I no longer support the nomination. Those speeches, with their government-bashing and their extreme and outdated ideological positions, put Justice Brown outside the mainstream of today's constitutional law.

I urge my colleagues across the aisle, who were initially inclined to support the Brown nomination, like Professor Barnett, to reconsider. Federal judges serve for life. The views of Janice Rogers Brown are too extreme and too radical for a lifetime of service on the second highest court in America.

It is well known that the last time the nomination of Janice Rogers Brown came before the Senate, it was filibustered. I voted to continue that filibuster because I do not believe she is the right person for the job. There was a big controversy over the use of the filibuster, and a decision was reached that Janice Rogers Brown would not be subject to a filibuster when she came up this week. That is an effort to move the Senate forward, to put the nuclear option and that constitutional confrontation behind us.

I urge my colleagues who believe in good faith we need to be bipartisan to show that bipartisanship today. Take an honest look at her record. Understand she is not a good person for a lifetime appointment. Join us in defeating the nomination of Janice Rogers Brown.

I yield the floor.

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