Executive Session
EXECUTIVE SESSION -- (Senate - June 07, 2005)
NOMINATION OF JANICE ROGERS BROWN TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA--Continued
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Mr. KENNEDY. Mr. President, today is National Hunger Awareness Day, and it is an opportunity for all of us in Congress to pledge a greater effort to deal effectively with this festering problem that shames our Nation and has grown even more serious in recent years. It is a chance to live out our moral commitment to care for our neighbors and fellow citizens who have fallen on hard times.
The number of Americans living in hunger, or on the brink of hunger, now totals 36 million, 3 million more since President Bush took office. That total includes 13 million children, 400,000 more since 2001.
Day in and day out, the needs of millions of Americans living in hunger are widely ignored, and too often their voices have been silenced. Their battle is a constant ongoing struggle. It undermines their productivity, their earning power, and their health. It keeps their children from concentrating and learning in school. We all need to do more to combat it--government, corporations, communities, and citizens must work together to develop better policies and faster responses.
In Massachusetts, organizations such as the Greater Boston Food Bank, Project Bread, the Worcester County Food Bank, and many others serve on the frontlines every day, and they deserve our full support, but they should not have to wage the battle alone.
In 1996, the Clinton administration pledged to begin an effort to cut hunger in half in the United States by 2010, and the strong economy enabled us to make significant progress toward that goal. Hunger decreased steadily through 2000. We now have 5 years left to fulfill that commitment.
The fastest, most direct way to reduce hunger in the Nation is to improve and expand current Federal nutrition programs. Sadly, the current Administration and the Republican Congress propose to reduce, not increase, funds for important programs such as Food Stamps, and the Community Nutrition Program.
The Food Stamp Program is designed to be available to all eligible individuals and households in the United States. It provides a basic and essential safety net to millions of people. In 2003, on average, over 21 million Americans received food stamp benefits. Over half of all food stamp recipients are children.
Now, the administration plans to reduce, or even cut off, food stamps for recipients who rely on Medicare to afford the prescription drugs they need.
That is why I have introduced legislation to ensure that individuals who receive Medicare prescription drug benefits do not lose their food stamps. This legislation ensures that seniors do not have to choose between food and medicine. I urge my colleagues to support this important legislation.
It is time to do more for the most vulnerable in our society. National Hunger Awareness Day is our chance to pledge to eradicate hunger in America and to mean it when we say it.
Mr. President, I would like to congratulate Senator Dole and Senator Lincoln for giving focus and attention to National Hunger Awareness Day and for all they do on this particular issue. I had the opportunity yesterday to visit The Greater Boston Food Bank in Massachusetts--a successful food bank. We have 517,000 people who are hungry in eastern Massachusetts alone, over 173,000 of those individuals are children, and over 50,000 are elderly.
One thing we know how to do in this country is grow food. We can do that better than any other place in the world. Secondly, we know how to deliver packages of food with Federal Express, other kinds of delivery services, virtually overnight. The fact that we have hunger in this Nation, we have children who are hungry, frail elderly who are hungry, working families who are hungry, or other homeless people who are hungry, we as a nation are failing our humanity. We know what can be done. It needs the combination of a governmental framework, private framework, and a very important involvement from the nonprofit framework and other groups at the local level, religious groups that have done such important work.
So I commend my friends and colleagues for bringing focus and attention to this issue. It has enormous implications. We find out in terms of education provided to the children, the needy children at breakfast for them early in the morning, the results in terms of their willingness, ability, and interest in cooperating with their teacher and learning go up immensely. We have information that documents all of that. Try to teach a hungry child to learn, and any teacher will tell you the complexities and difficulties and the frustrations in doing that.
I thank my two friends and others who are part of this movement. I look forward to working with them on a matter of enormous importance and consequence.
UPWARD MOBILITY
Mr. KENNEDY. Mr. President, before speaking on what I want to address to the Senate, and that is the pending business on the nominee, I want to bring to the attention of my colleagues an excellent editorial in the New York Times today: ``Crushing Upward Mobility.'' It is basically an analysis of a regulation that was put forward by the Department of Education that will save the Department of Education some resources, but at the cost of those middle-class families, working families, who are eligible for student loan programs. That is not the direction in which we should be going.
At the current time, we have a number of these young students who are paying 9.5 percent on guaranteed student loans. Can you imagine having a deal like that? You put out money and the Federal Government guarantees that you have nothing to lose, and it still costs these students 9.5 percent. We ought to be doing something about that, like taking the profits and making a difference in terms of lowering the burden on working families and middle-income families who are trying to help their children go on to college, rather than put more burden on them.
This is an excellent article. I ask unanimous consent that the editorial be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
[From the New York Times]
Crushing Upward Mobility
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Mr. KENNEDY. Mr. President, I intend to introduce later on in the afternoon the technical language and legislation that will block that particular provision by the Department of Education from going into effect.
Mr. President, Janice Rogers Brown's nomination to the DC Circuit is opposed more strongly by civil rights organizations than almost any other nominee I can recall to the Federal courts of appeals.
She is opposed by respected civil rights leaders, including Julian Bond, the chairman of the NAACP, and Reverend Joseph Lowery, president emeritus of the Southern Christian Leadership Conference, who worked with Dr. Martin Luther King, Jr., in the civil rights movement, and who has fought tirelessly for many years to make civil rights a reality for all Americans.
Her nomination is also opposed by the Congressional Black Caucus, the National Bar Association, the Coalition of Black Trade Unions, the California Association of Black Lawyers, and Delta Sigma Theta Sorority, the second oldest sorority founded by African-American women.
Justice Brown's nomination is opposed by Dorothy Height, president emeritus of the National Council of Negro Women, and a leader in the battle for equality for women and African Americans. Dr. Height has dedicated her life to fighting for equal opportunities for all Americans. She is universally respected by Republicans and Democrats, and last year she received the Congressional Gold Medal, and President Bush joined Members of Congress in honoring her service.
In opposing Justice Brown's nomination, Dr. Height says:
I have always championed and applauded the progress of women, and especially African American women; but I cannot stand by and be silent when a jurist with a 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.
Justice Brown's nomination is opposed equally strongly by over 100 other organizations, including 24 in California, representing seniors, working families, and citizens concerned about corporate abuses and the environment.
Some of Justice Brown's supporters suggest that she should be confirmed because she is an African-American woman with a compelling personal story.
While all of us respect her ability to rise above difficult circumstances, we cannot confirm nominees to lifetime positions on the Federal courts because of their backgrounds. We have a constitutional duty to confirm only those who would uphold the law and would decide cases fairly and reject those who would issue decisions based on personal ideology.
It is clear why this nomination is so vigorously opposed by those who care about civil rights. Her record leaves no doubt that she would attempt to impose her own extreme views on people's everyday lives instead of following the law. The courts are too important to allow such persons to become lifetime appointees as Federal judges.
Janice Rogers Brown's record makes clear that she is a judicial activist and would roll back not only civil rights but laws that protect public safety, workers' rights, and the environment, as well as laws that limit corporate abuse, which are precisely the cases the DC Circuit hears most often.
Our decision on this nomination is profoundly important to America's everyday life. All Americans, wherever they live, should be concerned about such a nomination to the DC Circuit, which interprets Federal laws that protect our civil liberties, worker safety, our ability to breathe clean air and drink clean water in our communities.
The DC Circuit is the crown jewel of Federal appellate courts and has often been the stepping stone to the Supreme Court. It has a unique role among the Federal courts in interpreting Federal power. Although located here in the District of Columbia, its decisions have national reach because it has exclusive jurisdiction over many laws that protect consumers' rights, employees' rights, civil rights, and the environment. Only the DC Circuit can review the national drinking water standards under the Safe Drinking Water Act to ensure clean water for our children. Only the DC Circuit can review national air quality standards under the Clean Air Act to combat pollution in our communities. This court also hears the lion's share of cases involving the rights of workers under the Occupational Safety and Health Act which helps ensure that working Americans are not exposed to hazardous conditions on the job. It has a large number of cases under the National Labor Relations Act. As a practical matter, because the Supreme Court can review only a small number of lower court decisions, the judges on the DC Circuit often have the last word on these important rights.
Because of the court's importance to issues that affect so many lives, the Senate should take special care in appointing judges for lifetime positions on the DC Circuit. We must be completely confident that appointees to this prestigious court have the highest qualifications and ethical standards and will fairly interpret the laws, particularly laws that protect our basic rights.
The important work we do in Congress to improve health care, reform public schools, protect working families, and enforce civil rights is undermined if we fail in our responsibility to provide the best possible advice and consent on judicial nominations. Needed environmental laws mean little to a community that cannot enforce them in Federal courts. Fair labor laws and civil rights laws mean little if we confirm judges who ignore them.
In the 1960s and 1970s, the DC Circuit expanded public access to administrative proceedings and protected the interests of the public against the egregious actions of many large businesses. It enabled more plaintiffs to challenge agency decisions. It held that a religious group, as a member of the listening public, could oppose the license renewal of a television station accused of racial and religious discrimination. It held that an organization of welfare recipients was entitled to intervene in proceedings before a Federal agency. These decisions empowered individuals and organizations to shine a brighter light on governmental agencies. No longer would these agencies be able to ignore the interests of those they were created to protect.
But in recent years, the DC Circuit has begun to deny access to the courts. It held that a labor union could not challenge the denial of benefits to its members, a decision later overturned by the Supreme Court. It held that environmental groups are not qualified to seek review of Federal standards under the Clean Air Act. These decisions are characteristic of the DC Circuit's flip-flop.
After decades of landmark decisions allowing effective implementation of important laws and principles, the court now is creating precedence on labor rights, civil rights, and the environment that will set back these basic principles for years to come. It is, therefore, especially important to ensure that judges appointed to this important court will not use their position to advance an extreme ideological agenda.
Janice Rogers Brown would be exactly that kind of ideological judge. How can we confirm someone to the DC Circuit who is hostile to civil rights, to workers' rights, to consumer protections, to governmental actions that protect the environment and the public in so many other areas--the very issues that predominate in the DC Circuit? How can we confirm someone who is so deeply opposed to the core protections that the DC Circuit is required to enforce? It is hard to imagine a worse choice for the DC Circuit.
Perhaps most disturbing is the contempt she has repeatedly expressed for the very idea of democratic self-government. She has stated that where government moves in, community retreats, and civil society disintegrates. She has said that government leads to families under siege, war in the streets. In her view, when government advances, freedom is imperiled, and civilization itself is jeopardized. These views could hardly be further from legal mainstream. They are not the views of someone who should be confirmed to the second most important court in the land and the court with the highest frequency of cases involving governmental action. Congress and the White House are the places you go to change the law, not the Federal courts.
She has criticized the New Deal which gave us Social Security, the minimum wage, and the fair labor laws. She questioned whether age discrimination laws benefit the public interest. She has even said that today's senior citizens blithely cannibalize their children because they have the right to get as much free stuff as the political system will permit them to extract. No one with these views should be confirmed to any Federal court, and certainly not to the Federal court most responsible for cases respecting governmental action. It is no wonder that an organization seeking to dismantle Social Security is running ads supporting her nomination to the second most powerful court in the country.
Of course, like every nominee who comes before the Senate, Justice Brown assures us that she will follow the law. But merely saying so is not enough when there is clear and extensive evidence to the contrary. The Senate is more than a rubberstamp in the judicial confirmation process. We must examine the record and vote our conscience.
Justice Brown and her supporters ask us to believe that her contempt for the role of government and government regulation and her opinions against workers' rights and consumer protections are not an indication of how she would act as a Federal judge. It is hard to believe that anyone would repeatedly use such extreme rhetoric and not mean it. It is even harder to believe that her carelessness and intemperance somehow qualify her to be a Federal judge.
Moreover, Justice Brown's decisions match her extreme rhetoric. She has written opinions that would undermine these basic protections. I was especially troubled by her opinion in a case in which ethnic slurs have been proven to create hostile working conditions for Latino workers. Justice Brown wrote that the first amendment prevents courts from stopping ethnic slurs in the workplace even when those slurs create a hostile work environment, in violation of job discrimination laws.
Her opinion even went beyond the State law involved in the case and suggested that title VII and other Federal antidiscrimination laws may not prohibit this kind of harassment in the workplace. Her opinion contradicts decades of precedent protecting workers from harassment based on race, gender, ethnicity, and religion. Fortunately, a majority of California's Supreme Court disagreed with her views.
We cannot risk giving Justice Brown a lifetime appointment to a court on which she will have a greater opportunity to apply her extreme views on our Federal civil rights laws. This Nation has made too much progress toward our shared goal of equal opportunity to risk appointing a judge who will roll back civil rights.
Other opinions by Justice Brown would have prevented victims of age and race discrimination from obtaining relief in State court. She dissented from a holding that victims of discrimination may obtain damages from administrative agencies for their emotional distress. Time and again, she has issued opinions that would cut back on laws that rein in corporate special interests. When there is a choice between protecting the interests of working Americans and siding with big business, Janice Rogers Brown sides with big business, and she does so in ways that go far beyond the mainstream conservative thinking.
She wrote an opinion striking down a State fee requiring paint companies to pay for screening and treating children exposed to lead paint. Most of us are familiar with the dangers of lead paint. It is a contributing cause to mental retardation with regards to children. Many of the older communities all over this country have paint that has a lead content, and children have a habit of picking off the pieces. Even if it is in playgrounds, they have a way of ingesting these pieces. We find that children develop severe illness and sickness and in too many instances mental retardation. We tried here for years to eliminate the issues of lead in paint.
We have made some important progress.
As I understand it, one of the proposals was a small State fee requiring paint companies to pay for screening and treating children exposed to lead paint, and she struck down that State fee. Fortunately, she was unanimously reversed by the California Supreme Court. But because the United States Supreme Court hears so few cases, there is no guarantee that her mistakes will be corrected if she receives a lifetime position on the DC court.
In another case, she wrote a dissent urging the California Supreme Court to strike down a San Francisco law providing housing assistance to low-income elderly and disabled people.
Justice Brown has also clearly demonstrated her willingness to ignore established precedent. She wrote a dissent, arguing that the California Supreme Court ``cannot simply cloak ourselves in the doctrine of stare decisis,'' which is the rule that judges should follow the settled law. That is the basic concept of upholding the law, interpreting law, stare decisis, following the law which currently exists.
She wrote a dissent urging the California Supreme Court, saying we cannot simply cloak ourselves in that doctrine.
She again showed her willingness to disregard legal precedent just this year. In People v. Robert Young, Justice Brown tried to overturn a precedent protecting the rights of racial minorities and women not to be eliminated from juries for discriminatory reasons. In a concurring opinion not joined by any of her colleagues, she criticized the precedent stating that for the purposes of deciding whether a prosecuting attorney had discriminated in selecting a jury, black women could not be considered a separate group. The California Supreme Court had held two decades ago that prosecutors may not exclude jurors solely because they are black women.
Justice Brown argued that this precedent should be overruled because she saw no evidentiary basis that black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group.
It is not just Senate Democrats who are troubled about the record of Janice Rogers Brown. Conservatives have also expressed concern about the judicial activism of Janice Rogers Brown. The conservative publication National Review had this to say:
Janice Rogers Brown ..... has said that judicial activism is not troubling per se; what matters is the ``worldview'' of the judicial activist. If a liberal nominee to the courts said similar things, conservatives would make short work of her.
Even conservative columnist George Will has said that Janice Rogers Brown is out of the mainstream.
In the past, some members of the press, and even some in Congress, have accused us of bias when we raise questions about a nominee. That is nonsense. Justice Brown has received the same treatment as other nominees. We have asked about her record, looked at her statements, and reviewed her opinions. We have raised questions when her record cast doubt on her commitment to the rule of law.
During the recent debate on judicial nominees, almost all of us, Republicans and Democrats, have emphasized that we want an independent judiciary. If that is truly what we believe, we must vote no on the nomination of Janice Rogers Brown. She opposes many of our society's most basic values shared by both Republicans and Democrats.
Throughout its history, America has embraced the ideals of fairness, opportunity, and justice. We all believe our laws are there to help ensure everyone can share in the American dream and that everyone should be free from discrimination. Janice Rogers Brown has expressed hostility to some of the protections most important to the American people, including those that protect workers, civil rights, and the environment. We believe that judges should be impartial, not beholden to powerful corporate interests. If we believe in these basic protections, it makes no sense to confirm a judge who would undermine them and turn back the clock on many of our most basic rights.
The Senate's role in confirming judges to the Federal courts is one of our most important responsibilities under the Constitution. We count on Federal judges to be openminded, fair, and respect the rule of law. Despite what Justice Brown thinks, laws passed by Congress to give Government a role in protecting the environment, immigrants, workers, consumers, public health and safety, have helped to make America a stronger, better, and more fair country. A nominee so deeply hostile to so many basic laws does not deserve to be appointed to such an important Federal court.
Last month, we celebrated the 51st anniversary of the Supreme Court's landmark decision in Brown v. Board of Education. Nothing can be a more important reminder of the role of our courts in upholding individual rights. In confirming Federal judges, we must ensure that they will uphold the progress our country has made in so many areas, especially in civil rights.
Justice Brown's record and her many intemperate statements give me no confidence that she will do so, and I urge my colleagues to vote against her nomination.
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