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. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman. And first I always wanted to-I had wanted to give a little opening statement, so I'm going to do that.

SEN. HATCH: That would be fine.

SEN. SCHUMER: Okay. I have to say, Mr. Chairman, that I for one am disappointed to be here on this nomination. Instead of finding well qualified consensus and moderate nominees, the White House has once again in my judgment reached out for an out of the mainstream activist of the first order. It's almost as if the administration is looking for the nominee who will most antagonize us, not personally but through her views, rather than one on whom we can all agree.

In case after case, Justice Brown goes through pretzel like contortions of logic to get results that hurt workers, undermine environmental protections and do violence to basic rights. As I reviewed Justice Brown's record, the one thing that came through loud and clear is that she is consistently inconsistent. Time and time again when a legal question is presented twice, she takes two totally opposite approaches in order to achieve the outcome she wants. A judge who makes the law instead of interpreting it is a judicial activist. Making law not interpreting it is an undesirable quality in a judge, whether that judge is coming from the far right or the far left, whether that judge is coming from the most liberal or the most conservative side, because the Founding Fathers wanted judges who would interpret law, not make law.

And if you're at the extremes, you tend to have such passionately felt views that you want to make law not interpret it. If you have a passion to bring the United States back to the good old days of the 1920s or 1890s, not a very good bet that you're going to interpret law. Judicial activism would be bad on any court, but it's especially dangerous on the D.C. Circuit, which is known for good reason as the nation's second highest court. Especially when it comes to workers' rights and the environment, the D.C. court is arguably the most important court in the nation. Since the Supreme Court takes so few cases each year and since a grossly disproportionate number of labor and environmental cases come to the D.C. Circuit, this is often the court of last resort for those who seek to vindicate workers' rights and protect the environment.

Now, Judge Brown's record when it comes to workers' rights, the environment and many other important issues leave many of us up here scratching our heads in wonder-ness-in wonderment. In a sense, I have to respect her bluntness, but it's obvious to me that many of the president's judicial nominees want to return us not just to the 1930s but to the 1890s. I know this has been discussed, but I can't get over it.

In Justice Brown's case she's remarkably straight forward in her praise of the Lochner case and her criticism of Justice Holmes' famous dissent there, calling Justice Holmes simply wrong. Even Judge Bork defended the Holmes' dissent. In Lochner the court invalidated a New York labor statute that limited the number of hours laborers in bakeries could work, fundamental justice to most Americans for close to 100 years. The court, over Judge Holmes' vigorous and ultimately vindicated dissent, held the New York statute violated a liberty of contract right that had not been previously recognized and the doctrine lived for three decades until the court shifted.

If you ask most lawyers to name the worst of Supreme Court decisions in the 20th century, Lochner would be at the top of the list. But Justice Brown thinks it was correctly decided. Even Justice Scalia, who so often advocates cutting back on Congress' power to protect basic rights, is content to let the states do so themselves. In this instance, as in others, Justice Brown finds herself willing to go even further to the right than Justice Scalia. Justice Brown not only wants to turn back the clock, she wants to turn back the calendar, and not just by a few years but by a century or more.

Justice Brown, you seem like a nice person. You're clearly a very smart person. But to me brilliance is not the only criteria. You can be the smartest person in the world, but if your views are way out of the mainstream, you don't belong on the D.C. Court of Appeals. And so I want to tell you that there's a lot in your record that troubles me and I think you've got a rough road to hoe, at least on this side of the aisle.

Now, my question is this. Before we broke for lunch you made the point that we should view your speeches separately from your judicial opinions. You said, if I understand it correctly, that while your political opinions may reflect your personal views, it's your judicial opinions that reflect what kind of judge you'd be on the D.C. Circuit. First, I'd like to know is that a fair understanding of what you said?

MS. BROWN: I think so.

SEN. SCHUMER: Okay, thank you. In light of that, I'd ask a follow up question on your comparison of the post-Lochner era to a socialist revolution. You distance yourself from that comparison by saying it was part of a speech made to a young audience and to designed to, as I believe you said, stir the pot. While I think it's a pretty radical comment for a sitting judge to make, even if it's just designed to spur debate, I'm not satisfied that it's just your personal view and has no bearing on your judicial opinions, because we all know that judge's personal views affect their judging.

We don't have to draw on evidence of other conduct, let's go to your own record. In Santa Monica Beach v Superior Court you called the, quote, "demise of the Lochner era the revolution of 1937." Those are your words. Those are nearly identical to what you said in your Federalist Society speech. So even if we were believing your court views as opposed to your stirring the pot to these young minds' views, you still seem to cling to that belief, at least until today.

You were also asked about a speech given to the Institute of Justice where you said, quote, "If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy. A license to steal, a warrant for oppression." You dismiss that speech as well, saying-claiming that it didn't necessarily reflect your views as a judge. But in San Remo Hotel v City and County of San Francisco you said-and that's a case obviously-"Turning a democracy into a kleptocracy does not enhance the stature of thieves. It only diminishes the legitimacy of government." Aren't these your views both as a private citizen and as a judge? If not, can you explain why virtually identical rhetoric, that many would call quite extreme, finds its way into both your speeches and your judicial opinions?

MS. BROWN: Thank you for your question, Senator. There is a lot there, so I'll try to work backwards from your question to some of the more general statements that you made. I will willingly acknowledge that a judge is not some kind of automaton or computer. You know, a judge is a thinking human being and the writing of a judicial opinion is an organic activity.

So it is never true that nothing of a judge is reflected in the work that they do. Writing is that kind of task. And I think judges have struggled with this forever and there's lots of good commentary about how it is that a judge achieves the necessary distance.

And Judge Hand said, you know, a judge has to be like a runner stripped for the race. Frankfurter said, no, it's more that-you can't ever not be what you are but you have to be very conscious of it and you have to put it aside and you have to deal in a very candid way with the way that you approach the task. So I don't think that the sides are hermetically sealed, but I think that you can be very principled in the way that you approach the work and that when you make a decision, your decision has to be on the law and the facts in an individual case and has to be justified and that you have to create a context that allows people to evaluate what you've done and see it clearly.

SEN. SCHUMER: I guess I would ask the question-you were telling all of us-I'm sorry I couldn't be here this morning for much of the time. But you were telling us that your views, as you do in speeches and whatever else, are different than your court written opinions. And yet in these two instances both-again, these are pretty severe statements that you made-you made very similar statements in your opinions.

So how can we believe you when you say, "Oh, well don't worry about what I say in the rest of the world. Just look at what I say as a judge," when the two are so much the same and you still seem-even if we were to discount all your speeches, to still hold these views of kleptocracy and Lochner and-again, the way I look at it, going back to the 1890s. I think we've made great strides in America. I'd say 97 or 98 percent of all Americans would agree with me we've made great strides. And you seem to feel-and, you know, we're always a little leery when people come to this table looking for our support. We have to look at the record in the past. But whether you look at the written record-cause everyone comes before us and says, "Forget what I did in the past. I will just interpret the law."

Now, fortunately, you have a record and you're a forthright and very intelligent person. So we can ask. It's not like some of the others who refuse to answer any questions. But your judicial opinions seem to have the same views. Again, explain to me how I-why I should believe that the two are separate when you've used very similar language and very similar thinking that you used in your speeches in your court opinions?

SEN. HATCH: Senator, your time is up but you should answer the question.

MS. BROWN: Okay. I totally agree with you, Senator, in saying that we've made great strides. I certainly know that and I've seen that in my lifetime. It's one of the reasons that I think this is a great country, because we've been able to be self-critical and we've been able to change and we've been able to bring into being some of the I think sort of underlying inspirational goals that go all the way back to the Declaration of Independence. So I agree with you totally about that. And --

SEN. SCHUMER: Just explain to me how we can reconcile what you said this morning and almost identical language and identical thinking in both the court cases and the speeches in these two instances.

MS. BROWN: I think the way that you can reconcile it is exactly the way that I have explained. I don't think that any human being thinks in a vacuum. I think that you always come out of a world view. You are always working through your experience, your education, your convictions. But as a judge you have to be conscious of that and then deal with what's before you. Now, it may turn out that when I have done this absolutely evenhandedly and carefully and thoughtfully that I reach a conclusion, you know, where I think, well, this looks like this other thing. But what we ought to be concerned about is whether I am in fact trying to reach that conclusion or being result oriented. And I really think that if you look at my work you will not see that.

Now, what you said earlier was you are consistently inconsistent, and then you used that to say, well, you know, but you're also ideological. I don't think that both those things can go together. What you're seeing-what you think of as inconsistently inconsistent is because I'm simply looking at the case, I'm looking at the law, I'm trying to reach the right decision in the case.

SEN. SCHUMER: I just want to ask one more question, Mr. Chairman, with your indulgence.

Do you stand by your views in San Remo Hotel v City and County of San Francisco about kleptocracy? And do you stand by your views in Santa Monica Beach v Superior Court about the demise of the Lochner era and the revolution of 1937?

MS. BROWN: Well, the cases say what they say and I hope that-I always try to do an analysis that is very accessible, that anybody who reads it can understand what I've said.

SEN. SCHUMER: So you do stand by them?

MS. BROWN: I have tried to --

SEN. SCHUMER: You can answer that yes or no.

MS. BROWN: Well, the cases are there. I guess that's --

SEN. SCHUMER: So the answer is yes?

MS. BROWN: Well, the concern I have, Senator, is that you started off making --

SEN. SCHUMER: But --

MS. BROWN: -- a lot of statements about what that --

SEN. HATCH: Let her answer the question.

MS. BROWN: -- was and so-and what my views were and what that meant. And so all I'm saying is what's in the cases is in the cases and it should be clear.

SEN. SCHUMER: I'm going to take that as you stand by those views, because you haven't refuted them here and you've said what's in there is in there.

Thank you, Mr. Chairman.

SEN. HATCH: Well let me just say I don't take it that way. I take it that, Senator, you've interpreted it the way you want to, but that's not the way I meant it.

SEN. SCHUMER: Well, Mr. Chairman, it's a simple yes or no question --

SEN. HATCH: No, it isn't.

SEN. SCHUMER: -- do you stand by them or do you not stand by them?

SEN. HATCH: No, it isn't.

SEN. SCHUMER: And we can't get a yes or no.

SEN. HATCH: No, it isn't, because she has consistently explained throughout this whole hearing that she has-that she put this language into those opinions and that that language deserved to be interpreted differently from the way you've interpreted it. It isn't just a simple yes or no. And I think that's a fair statement, isn't it?

MS. BROWN: Yes.

SEN. HATCH: In other words, you don't have to take Senator Schumer or my interpretation of what your cases say. But to try and paint you like you're back in the Lochner era without understanding what Lochner is all about I think is just wrong.

MS. BROWN: Mr. Chairman --

SEN. HATCH: Because you do understand it.

MS. BROWN: -- if I may, I do need to follow up on something because the prologue to your question was quite long. And you made a statement that you're obviously out of the mainstream, you clearly take positions that not even very conservative judges take, and you base that on this idea that I want to return to Lochner, that I said Lochner was rightly decided. I have never said that. And in fact in my cases I have actually said that to the extent that the Lochner court was using the due process clause as a blank check to simply insert their political views into the Constitution, that they were justly criticized. And I've also said that that portion of the Holmes dissent, which is simply reflecting a deference to the legislature, is one that I generally agree with.

SEN. SCHUMER: Do you agree with the holding of Lochner?

MS. BROWN: I have said that I think that it's appropriately criticized and it's been discredited. I mean, Lochner is this curious case that has actually ended up creating a new word in the English language, and I think I've even said that it stands for-it's the most pejorative thing that you can say among --

SEN. SCHUMER: You don't agree with the holding of Lochner?

MS. BROWN: I think that I've been clear. I said that it is appropriately criticized to the extent that they were inserting their views into this case, or into the Constitution I guess. That's the issue.

SEN. SCHUMER: Thank you, Mr. Chairman.