Executive Session

EXECUTIVE SESSION

NOMINATION OF JANICE R. BROWN TO BE UNITED STATES CIRCUIT JUDGE

BREAK IN TRANSCRIPT

Mr. McCONNELL. Mr. President, in listening to our Democratic colleagues discuss the President's judicial nominees, I have often thought if I had a dollar for every time they use the words ``far right'' or ``extreme,'' I could one day retire a rich and happy man. Some have reached new heights, though, in histrionics and hyperbole in discussing the Janice Rogers Brown nomination.

For example, our very good friend from New York, Senator Schumer, actually said yesterday he could not think of any judicial nominee of President Clinton who was as far to the left as Janice Rogers Brown is to the right.

Just as an initial matter, many Senators on this side of the aisle have noted that 76 percent of Californians--that is not 76 percent of Texans, or 76 percent of Alabamians, or 76 percent of Georgians--voted to reelect Justice Brown to the highest court of our most populous State, not known as a bastion of conservatism.

That certainly belies the notion that she is too conservative for the Federal bench. And with respect to the remainder of Senator Schumer's assertion that there were no far-left Clinton nominees who should have been disqualified from judicial service in the way he would disqualify Justice Brown, it seems to me our friend is suffering from a little memory loss. I can think of a number of Clinton nominees who were very much on the far left of the political spectrum and yet who, today, wear the robe of a Federal judge. My friend from Alabama has mentioned Judge Paez, for example. Senator Sessions noted that Judge Paez once remarked that a judge ought to be an activist. Judge Paez said a judge ought to be an activist if he believed the legislature was failing to address a problem. That, as Senator Sessions points out, is the virtual definition of judicial activism.

There are quite a few other Clinton judicial nominees who reside over on the political ``Left Bank.'' I do not have the time now to go through all of them, but I would like to discuss one, just one Clinton nominee in particular, a nominee with whom we are all very, very familiar. At the time of her confirmation, she had previously made numerous provocative statements and public policy pronouncements. Even when looked at today, almost 30 years removed from when they were first made, these statements are certainly not, by any standard, mainstream. But our Democratic colleagues did not argue then, and I doubt they would argue now, that these statements disqualified this Clinton nominee from Federal judicial service.

I speak of Supreme Court Justice Ruth Bader Ginsburg, whom I supported. Let me note that Justice Ginsburg is a learned and experienced judge. As I just indicated, I and the vast majority of our colleagues voted for her. In 1993, she was approved 96 to 3 for her current position on the Supreme Court. We did so, even though in her private capacity she had made some very thought-provoking comments on public policy issues. She theoretically mused. These kinds of theoretical musings frequently occur, as we all know, in academia and other extrajudicial writings. This is a good thing, frankly, in terms of having a healthy marketplace of ideas. While people's opinions should be considered in evaluating their fitness for the bench, the fact that someone makes a thought-provoking comment is not necessarily a reason to bar them from judicial service. This appears, however, to be the standard our Democratic friends would apply to Justice Brown.

So I ask my friends, what would be their view of Justice Ginsburg, under the new standard that they seek to apply to Justice Brown? For my friends on the other side of the aisle whose recollections may be just a bit foggy, let me remind them of some of her thoughts. She once proposed--this is Justice Ginsburg, for whom I voted and who has had a distinguished record on the Supreme Court. We are not arguing about that. But she once proposed abolishing Mother's and Father's Day in favor of a unisex ``Parents' Day.''

She also called for making prisons and reformatories co-ed, and sex integrated.

She argued that restrictions on bigamy were of questionable constitutionality, and she opined that the U.S. Constitution might guarantee a right to prostitution.

She argued that there is a constitutional entitlement to have the Government pay for abortions. And, incidentally, when she made this assertion, the Supreme Court had ruled not once but twice that there was no constitutional right to have taxpayers pay for abortions.

Justice Ginsburg has even suggested that statutory rape laws were discriminatory, and that the ``current penalty of 15 years for a first offense is excessive.'' She also suggested the adoption of a statute that would, among other things, lower the age of consent for sexual activity to age 12.

Given their past enthusiastic support for Justice Ginsburg's nomination--a nomination which I also supported--compared to their current vigorous opposition to Justice Brown's nomination, our Democratic colleagues must be saying one of two things: Either they believe that Justice Ginsburg's musings about a possible constitutional right to prostitution and the need to abolish Mother's and Father's Day and all the rest are in the mainstream--they either believe those comments are in the mainstream, or they are saying it is OK for a Democratic nominee to the Nation's highest court to make provocative statements like that, but it is not OK for a Republican nominee to a lower court to make thought-provoking statements about policy issues.

I would be surprised if my Democratic colleagues believed that these various musings of Justice Ginsburg were in the mainstream. In fact, I think they don't believe they were in the mainstream. So what we must have, then, is truly a double standard.

I see my friend from Alabama is on the floor. I ask if Senator Sessions is seeking time?

Mr. SESSIONS. Mr. President, I ask if the Majority Whip will yield for a question?

Mr. McCONNELL. I am happy to yield.

Mr. SESSIONS. I thank him, first, for his insightful remarks. It is certainly appropriate and important that we distinguish between an American citizen's right to speak and say things that may be on their heart at a given time and maybe later they are not so sure they agree with. But we don't want to intimidate Americans and say you can never be a Federal judge if you don't say anything but vanilla statements your entire life. I thank him for his wise insight there.

It does seem we have a double standard here. It seems there has just been a deliberate effort to go back and sift through, bit by bit, line by line, speeches and statements and writings of nominees to try to take them out of context and make them appear to be extreme when her record is one of mainstream, effective service. Justice Ginsburg was not a nominee, certainly, that I would choose to nominate for the Supreme Court, but the Senate did not bar her from service on the Court, the highest court in this land, because of her extrajudicial statements that you just mentioned that are quite unusual, that she made in law review articles and such, even though her thoughts and comments were out of the mainstream.

I was not there at the time and the Senator was. But was it not true that, at her confirmation hearing, Justice Ginsburg swore under oath she would follow the law, and was it not also true that during her service on the D.C. Circuit Court of Appeals she often voted with Judge Bork and other conservative judges? In other words, just because she made these statements, once she put on that robe and read the briefs of the parties, she had some record that indicated she was committed to the rule of law?

Mr. McCONNELL. The Senator from Alabama is absolutely correct. She swore she would uphold the law. You are absolutely right. When she put on the robes, she was no longer sort of musing and making provocative thoughts; she was making law. In fact, I think the record reflects that one year on the D.C. Circuit, before she was elevated to the Supreme Court, then-Judge Ginsburg on the D.C. Circuit voted with then-Judge Scalia 95 percent of the time and voted with Judge Bork, believe it or not, 100 percent of the time--100 percent of the time. That, in spite of the fact that she had made some rather provocative--I think we would all agree--observations on a variety of different issues that I expect the Senator from Alabama, and I, and the Senator from Georgia in the chair, and I bet virtually everybody on the other side of the aisle would consider way outside of the mainstream to the left.

Mr. SESSIONS. I couldn't agree more with the Senator from Kentucky. That whole insight and principle cannot be lost here. We can't expect people to be just ``Milquetoast'' human beings and never engage in debate over important issues in America and never make a provocative statement or they cannot be confirmed to the Federal bench. Frankly, as one who practiced a lot of law, and I note the distinguished Majority Whip has, as well, the true test of a judge is: Will they study the law and will they be faithful to it? Will they read it and study it?

But with regard to these statements, wouldn't you say that compared to what you have mentioned, and some of the statements made by some of the Clinton nominees, that Justice Brown's statements are mild, indeed?

Mr. McCONNELL. I would certainly agree. I know that Senator Boxer made much ado about the fact that Justice Brown had dissented 31 times on the California Supreme Court. But our good friend from California neglected to mention that this puts Justice Brown about in the middle of the pack, in terms of the number of dissents issued on the California Supreme Court. In addition, I would point out to my good friend from Alabama--because of the esteem in which she is held by her peers out there on the California Supreme Court--Justice Brown was selected to write the second-highest number of opinions on the court, second only to the Chief Justice of that court. And numerous California jurists have, to put it mildly, enthusiastically endorsed this nomination--the people who know her best.

Mr. SESSIONS. I couldn't agree more. As I recall from the letter that was sent to Senator Hatch, then-chairman of the Judiciary Committee, all of her colleagues on the California Court of Appeals, which is just below the Supreme Court of California, have supported her, and four of the six sitting Justices on the California Supreme Court have overwhelmingly, strongly advocated for her confirmation. It seems to me the idea that she is out of the mainstream is farfetched and stretched.

I will ask one more question of the Senator. Isn't it true and isn't it sad that in this attempt to portray this nominee and others in a negative light, that there has been, unfortunately, a tendency to take things out of context? And isn't it true that some of these statements, that might seem a bit strange or hard to understand, are not so hard to understand in the context of the entire remarks? Would the Senator agree that is a problem today in the Senate?

Mr. McCONNELL. I think the Senator from Alabama is entirely correct. It is simply amazing for our Democratic colleagues to say that Justice Brown, for example, has embraced the Lochner decision, when she has taken the opposite position and written in a published opinion that Lochner was a ``usurpation of power'' and the Lochner court seemed to believe it could ``alter the meaning of the Constitution as written.''

Indeed, many times her position has been essentially misrepresented.

To get back to the basic point of our exchange, we ought not hold against nominees--particularly those who have written a good bit, published a good bit--their provocative statements. We clearly did not do that against Justice Ruth Bader Ginsburg, nor should we have. We ought not do that in this unfortunate attempt to demonize Justice Janice Rogers Brown, who has had by any standard not only an outstanding life story but an outstanding record on the California Supreme Court.

I thank my friend from Alabama for being here during this discussion. We hope this will help put the whole issue of provocative musings and writing into context as a relevant factor in considering how we are going to vote to confirm judicial nominees.

Mr. SESSIONS. If the Senator will yield, I will follow up on that.

I remember President Clinton nominated quite a number of justices, judges, who were active members--some lawyers--for the American Civil Liberties Union. If you look at the American Civil Liberties Union Web site, they favor and believe the Constitution allows the legalization of drugs; that there cannot be a law against legalization of drugs.

They oppose all pornography laws--even child pornography laws--on their Web site.

We confirmed Marsha Berzon from California. She was chairman of the litigation committee of the ACLU. There were quite a number of other members of the ACLU. We gave them a fair hearing. We asked their views. Some were answered satisfactorily to my view and some were not. Fundamentally, the question was, will you follow the law of the Supreme Court? Will you be faithful to those laws? Do you have a good reputation among your colleagues? Have you a record of integrity and achievement?

Most of those judges, virtually all of them, were confirmed.

Mr. McCONNELL. The Senator from Alabama is correct, and Berzon and Paez were the poster children for nominees out of the mainstream to the left, yet the Senator from Alabama and others, and myself, joined in making sure these two nominees--dramatically out of the mainstream, to the left--got an up-or-down vote in the Senate. When they did, they were confirmed.

Mr. SESSIONS. I thank the Senator for his wisdom and his fine comments today.

Mr. McCONNELL. I yield the floor and suggest the absence of a quorum.

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