Hearing of the Senate Judiciary Committee
Federal News Service
HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE
SUBJECT: JUDICIAL NOMINATIONS
CHAIRED BY: SENATOR ORRIN G. HATCH (R-UT)
NOMINATION OF:
JANICE R. BROWN, TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
LOCATION: 216 HART SENATE OFFICE BUILDING, WASHINGTON, D.C.
BODY:
SEN. JOHN CORNYN (R-TX): Thank you, Mr. Chairman. I hope this microphone is working; I can't really tell. But I think I --
SEN. HATCH: Pull it closer, John. Pull it a little bit closer.
SEN. CORNYN: Oh, right. Unaccustomed as I am to assuming this position before the committee, I do it with a little trepidation and perhaps a little awkwardness but --
SEN. HATCH: Trust me, it's better up here than down there.
SEN. CORNYN: Mr. Chairman, Senator Leahy, I'm privileged to introduce to the committee today distinguished jurists from the California Supreme Court. Justice Janice Rogers Brown has been nominated to serve on the D.C. Circuit Court of Appeals. I must confess to feeling like I am a participant in a kabuki performance to some extent already but let me do the job that I have gladly embraced here by introducing this fine person and this fine judge to the committee.
As you know, Mr. Chairman, one fourth of the D.C. Circuit Court of Appeals is currently vacant. And as you also know, the presidents traditionally look across the nation for highly qualified individuals to serve on this important court, from Judge LeCraft Henderson, a former federal judge on the district courts of South Carolina, to former University of Colorado law professor, Stephen F. Williams, and former University of Michigan law professor, Harry T. Edwards. Justice Brown has almost 10 years of experience as an appellate judge. As others have recounted, she was first appointed to the Court of Appeals in '94 then to the Supreme Court in '96 and has had a distinguished record on that court as a judge.
As judge-and I'll ask the first chart be put up-as judge, Justice Brown has received strong support from Californians. As you can see, Justice Brown during the 1998 election, she was one of four justices of the California Supreme Court, including the chief justice, who are up for retention elections, and California voters supported all four of those justices. Justice Brown received a yes vote of 76 percent of California voters, the highest vote percentage of all four justices and hardly the vote of confidence for somebody who can be fairly or accurately characterized as out of the mainstream.
Justice Brown, along with her colleagues, also received strong support from one of her state's largest newspapers, the San Francisco Chronicle. As the Chronicle editorialized, quote, "It takes judges with deep respect for the law and willingness to set aside their personal views when making decisions. It takes judges with fearlessness, with a sense of confidence that the right outcome not always be the most popular. Californians have a chance to cast a vote for an independent judiciary by retaining Supreme Court justices who have all demonstrated a commitment to sound decision making.
If you don't like the law, or if it conflicts with the state constitution, change it. The judiciary's job is to make sure that laws are applied fairly. Brown and her colleagues have approached this duty with diligence and integrity and should be retained, and indeed she was. I'm extremely impressed, Mr. Chairman, by Justice Brown's extensive record of dutiful public service. But of course, there's more to Justice Brown than just her rsum. Indeed, sometimes during the hearings on these nominees I feel like the nominees become a symbol or perhaps a caricature and we fail to recognize that they are real live human beings.
As a strong yet modest person, Justice Brown may not feel comfortable talking openly about her personal life story, but I hope that members-the committee will ask her about it and I believe the Chairman has already alluded to the fact that she was born in Alabama as the daughter of sharecroppers. She is personally all too familiar with the scourge of racism and segregation. She came up of age in the midst of Jim Crow policies in the South. She grew up listening to her grandfather's stories about NAACP lawyer Fred Gray, who defended Dr. Martin Luther King, Jr., and Rosa Parks, and her experience as a child of the South motivated her desire to become a lawyer and then a judge.
After her father later joined the Air Force she became, like me, a military brat, traveling with her family from military base to military base. I'm pleased to observe that her travels included several years in the great state of Texas, including childhood stints in Forth Worth, and in San Antonio at Lackland Air Force Base, where my father was likewise stationed. Given Justice Brown's childhood and life experiences facing racism, I was especially alarmed by what I've seen and what I've heard from some of her opponents, and indeed the despicable racist cartoon that some of her opponents are using to smear her has already been displayed in this hearing.
And I for one hope that rather than take it down, we keep that cartoon up during the remainder of this hearing, and I hope we also hear from this committee a denunciation of such low and unworthy tactics, certainly beneath the dignity of this body, and I believe beneath any sort of semblance of civilized discourse. Some have alleged that Justice Brown single-handedly dismantled affirmative action in California. As a former state Supreme Court justice myself, I can tell you that these critics have no understanding of the law or how judges operate under our system.
In 1997, California voters amended their state constitution by approving Proposition 209. As you can see on the easel, the California Constitution states, in language that you don't have to be a lawyer to understand, the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race in the operation of public employment, public education, or public contracting.
Because of the clear terms of Proposition 209, the United States Supreme Court recently noted that in California, racial preferences in admissions are prohibited by state law. Do Justice Brown's critics also disagree with Justice O'Connor, who authored the opinion, or Justices Stevens, Souter, Ginsburg and Breyer, who joined her?
All Justice Brown did was her job. She authored a majority opinion for a unanimous Supreme Court, enforcing the clear terms of Proposition 209. Indeed, every single judge involved in the case, at the trial court, the Court of Appeals and the Supreme Court agreed with her. They agreed that the challenged San Jose program violated the will of the voters, as expressed in Proposition 209. Then Justice Stanley Mosk, the court's leading liberal, according to the San Francisco Chronicle, not only joined Justice Brown's opinion, he also wrote his own concurring opinion, stating that, "I agree with the court with the substance of its analysis, and if anything, I would go farther than it does."
If critics don't like Justice Brown's decisions, they should change the law, rather than attack her for doing the job she is sworn to do as a judge by faithfully interpreting the intent of that law. She's just doing the job that we ask judges to do, not as politicians but as judges. I'll quote the San Francisco Chronicle again. "If you don't like the law or if conflicts with the state constitution, change it." But I fear we are attacking the messenger.
Others have criticized Justice Brown for her willingness to enforce a common sense law enacted by the California legislature. The law would have required parental consent before a minor can obtain an abortion, which is similar to laws throughout the country. But the California Supreme Court issued a divided four to three opinion invalidating the law. Justice Brown would have deferred to the state legislature and enforced the law. She was hardly alone in that view, and again, then Justice Stanley Mosk, the court's leading liberal, as pointed out-as called by the San Francisco Chronicle, also voted to uphold the law.
Indeed, according to a June 2000 Los Angeles poll, 82 percent of Americans support parental consent laws. And the year after Justice Brown issued her opinion, the Chronicle published the editorial I mentioned earlier. That editorial praised Justice Brown and her colleagues and supported her retention election.
Mr. Chairman, I join others on this committee and in this body in expressing my deep concern about the hostility and destructiveness of the judicial confirmation process. And the senator from Pennsylvania has aptly pointed out, we are convicting people for certain beliefs and thoughts and statements before they've even had an opportunity for a hearing. If this continues much longer, I fear that fine jurists and fine human beings like Justice Brown will just simply quit accepting nominations to the federal bench, and all Americans will lose, as a result.
Senators should vote their conscience. No doubt about it. Every judicial nominee deserves a vote on the basis of reasonable criteria and the merits, and not on the basis of special interest group politics or other divisive criteria or slanderous, racist cartoons, such as we have seen depicted here.
I hope this committee and the Senate will confirm this exceptional judicial nominee, Justice Janice Rogers Brown. Thank you, Mr. Chairman.