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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - June 08, 2005)



Mr. KENNEDY. Mr. President, Janice Rogers Brown should not be confirmed to the D.C. Circuit. I listened to the eloquent statement of my friend from Oregon. This is not an issue where we are voting on a life story. What we are talking about is a vote for a nominee to the D.C. Circuit and whether that person's votes will be consistent with our constitutional values and will that person have an understanding of the very special role the D.C. Circuit has in interpreting the laws which have been passed by the Congress and which are subject to the D.C. Circuit Court's interpretation. That is enormously important because there are so many of those laws that provide important protections--for example, OSHA legislation and whether we are going to have safe working conditions for workers.

As a result of the passage of the OSHA legislation, across this country we have seen a reduction in the number of deaths of workers in plants and factories and construction reduced by half. We have made progress. There are those forces who want to weaken OSHA because many of the companies believe the penalties under OSHA are a cost of doing business, and this puts workers at risk.

These very important legal issues and questions interpreting the legislation which we have passed and have updated are the same ones that will come to the D.C. Circuit.

As impressive as the life of this nominee is, if we are really interested in what is going to happen in the D.C. Circuit as it affects constitutional rights and liberties, as well as legislative actions we have taken, it is fair to insist that the person who is nominated is going to have a core commitment to the constitutional values and also a healthy respect for actions that have been taken by Republicans and Democrats and legislation that has been signed by the President. Using either of those standards, this nomination fails. I wish to take a few moments to elaborate on that issue.

The D.C. Circuit is widely considered the second most important court in the country after the Supreme Court. It is the court that most closely oversees the actions of Federal agencies, and its duty is to give a fair hearing in cases on governmental protections, environmental laws, civil rights, workers' rights, and on public health and safety. Nominees to this important court should have a clear commitment to upholding the law in these areas. And Janice Rogers Brown's record shows not only that she lacks the commitment but that she is hostile to any form of governmental action.

Although located here in the District of Columbia, the D.C. Circuit affects all Americans because its decisions have broad national impact. Some cases, such as those involving review of national air quality standards under the Clean Air Act and national drinking water standards under the Safe Drinking Water Act, can only be heard in the D.C. Circuit.

In this country over the last 4 years, we have doubled the deaths of asthmatic children in this Nation. Why? I think we can point to it: because of the relaxation and the change in the Clean Air Act and the relaxation of rules and regulations. As a result of that, children in downwind States from a lot of these companies that are burning toxins have experienced a dramatic increase in breathing difficulty and in asthma deaths. That is directly attributable to the change in the rules and regulations of the Clean Air Act. When there are new rules and regulations to the Clean Air Act and they are challenged, they go to the D.C. Circuit. The D.C. Circuit makes a judgment that will have a direct impact, for example, on whether your child or children may very well have enhanced problems with asthma.

I have a chronic asthmatic son who happens also

to be a Congressman. I follow this issue very closely. I know what has been developing over recent times in terms of the relaxation of the Clean Air Act. We can directly attribute that to the relaxation of rules and regulations. Those judgments and decisions are made virtually jointly by the administration with Executive orders and, secondly, by the D.C. Circuit. That is illustrative of the range of different issues that come before the D.C. Circuit Court.

Some cases, such as those involving the review of national air quality standards under the Clean Water Act and the national drinking water standards under the Safe Drinking Water Act, can only be heard in the D.C. Circuit. We know about the dramatic increase in mercury that is taking place in streams all across this country. It has had a devastating impact on the fish and the ecosystems of so many of the rivers. That has been ingested. It provides an important health hazard for expectant mothers. Those happen to be the health implications as a result of individuals who do not have a strong commitment to issues involving the clean drinking water legislation that has been passed by the Congress.

This court also hears the lion's share of cases involving rights of employees under the Occupational Safety and Health Act and the National Labor Relations Act. As a practical matter, because the Supreme Court can only review a small number of these lower decisions, the judges in the D.C. Circuit often have the last word on these important rights.

Other cases end up in the D.C. Circuit because the party bringing the appeal is allowed to choose to have the case heard there. That is true, for instance, in appeals of the National Labor Relations Board involving fair working conditions. So people from California to Alabama, Texas to Massachusetts, often find their cases decided by the D.C. Circuit.

Janice Rogers Brown has said 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 jeopardized.''

Her actions on the California Supreme Court match her words. Time and again she has struck down basic protections. Her supporters try to explain away her record. They say she is conservative but well within the mainstream of conservative thought. But that is not credible. Mainstream does not mean extreme, except possibly in George Orwell's dictionary.

Even George Will, the well-known conservative columnist, has admitted that Janice Rogers Brown is out of the mainstream. She does not belong on any court, much less the second most important court in the land.

President Bush has often said that he wants to appoint judges who will strictly follow settled law, not judges who will legislate from the bench. But Janice Rogers Brown is exactly that sort of judicial legislator. In fact, when she joined the California Supreme Court, the California State Bar Judicial Nominees Evaluation Commission had rated her ``not qualified'' based not only on her lack of experience but also because she was specifically ``prone to inserting conservative political views into her appellate opinions'' and was ``insensitive to established precedent.''

Since joining the California Supreme Court, she has written opinions stating that judges should not follow settled law if they disagree with it. She has said that judicial activism is not troubling, per se; what matters is the world view of judicial activists. As one conservative commentator in the National Review pointed out, ``if a liberal nominee ..... said similar things, conservatives would make short work of her.''

Last month, the D.C. Circuit decided several claims of discrimination. Yet Janice Rogers Brown has issued opinions that would have prevented victims of age and race discrimination from obtaining relief in State court. She dissented a holding that victims of discrimination may obtain damages from administrative agencies for their emotional distress. She has questioned whether age discrimination laws benefit the public.

Her record on civil rights is so abysmal that her nomination is opposed by respected civil rights leaders such as Julian Bond, chairman of the NAACP, and Rev. Joseph Lowrey, 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 Leadership Conference on Civil Rights, the National Bar Association, the Coalition of Black Trade Unionists, the California Association of Black Lawyers, the Delta Sigma Theta Sorority, the second oldest sorority of African-American women. Her nomination is opposed by Dorothy Height, president emeritus of the National Council of Negro Women, who last year received a Congressional Gold Medal for her service to the Nation.

Justice Brown should not be given the chance to rule on discrimination cases on the Nation's second most important court.

In May, the D.C. Circuit decided the cases of two retirees seeking retirement benefits. Yet Janice Rogers Brown has said that senior citizens cannibalize their grandchildren by seeking support from society in their old age. Do we want a judge such as that on the D.C. Circuit deciding claims for retirement benefits?

Last month, the D.C. Circuit also decided a case involving Social Security benefits for a widow and her children. But Janice Rogers Brown has called the New Deal which created Social Security the triumph of a socialistic revolution. Do we really believe she will deal fairly with claims involving Social Security if she is confirmed to the D.C. Circuit?

We have confirmed over 200 of President Bush's nominees. Almost all of them were confirmed with Democratic support. Almost all of them were very conservative. But there is a difference between being conservative, as those nominees were, and being committed to rolling back basic rights, which is what Janice Rogers Brown's record clearly shows.

There are many well-qualified Republican lawyers who would be quickly confirmed, but the President has selected Janice Rogers Brown, who is clearly hostile to the very laws the D.C. Circuit is required to enforce. In doing so, the President has guaranteed that the Senate would spend many weeks dealing with this controversial nomination.

Many people across the Nation are wondering why judicial nominations have recently consumed so much of our time in the Senate. Why have we seen so many more battles over judicial nominations than in other years? The truth is that there would be no need to spend so much time on nominations if the President picked mainstream nominees. Nominees could be more quickly confirmed if the President returned to the tradition of consulting with Republican and Democratic Members of Congress about them.

The bipartisan agreement by our 14 Senate colleagues on the nuclear option emphasized that the word ``advice'' in the Constitution speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. The Federal courts are not supposed to decide cases to please special interests that have influence with the party in power. The courts do not belong to either party, Republican or Democrat. Americans expect, and deserve, judges who will treat everyone fairly and decide cases based on the law, not their own ideology. The only way to ensure that result is for Presidents to consult with both parties in the Senate before selecting a nominee.

We have spent endless hours, dozens of days, too many weeks debating radical judges and Republican attempts to abuse power. Meanwhile, look what is happening to the strength and the security of this country. Our military forces are protecting America amidst a growing insurgency and increasingly dangerous conditions. Our men and women in uniform need armored humvees and electronic jammers for protection against roadside explosives in Iraq.

It is unconscionable that month after month the Pentagon kept sending men and women on patrol without proper equipment. The Defense authorization bill will provide $344 million for up-armored humvees and armor kits and $500 million for electronic jammers. This money should be approved without delay. But there is a judgment and decision by the Republican leadership that we are going to spend more time on these judges that are so far out of the mainstream, that are in the extreme in terms of their views about constitutional principles and values.

We know that this body should be finishing. If we are going to be finishing the work on judges this week, we should then be proceeding to the Defense authorization bill. The House of Representatives has completed it. Although the appropriators for the appropriations for the Defense authorization bill have not completed work, generally, that is the first appropriations bill that we consider. Generally, that is the legislation that passes here in the month of July. But, no, it has been the judgment and decision that we are going to spend more time on these judges who are clearly out of the mainstream. Mr. President, 96 percent of the judges have been approved, but it is the judgment of the President and the majority here that we are going to debate these judges who are clearly out of the mainstream of judicial thinking.

It is a question of priorities. It does seem to me this Nation is better served if we have judges in the mainstream of judicial thinking, that we give them the consideration, that we give them the approval, as we have on the 95 percent of those who have already been approved, and then be considering the Defense authorization bill--which is a priority. It is a priority not only getting it passed so the conferences can make progress, but it is an indication of our priorities, and it sends a message to our troops, as well, overseas and to the American people as to what we believe is important. Now that we have effectively spent all this time, these weeks, on judges who are so outside the mainstream--now we are going to be considering an Energy bill next week, not the Defense authorization bill. I think that is the wrong decision and the wrong priority.

Our citizens want lives of opportunity and fulfillment for themselves and their children. They wonder how they can afford the massive tuition cost increases that are putting college beyond the reach of so many students. If the President consulted with the Senate on judicial nominees, as the Constitution anticipates, and which any fair reading of the Constitutional Convention would indicate, we could be working on problems such as that. It is interesting reading about the Constitutional Convention. We find, for the great majority of the time of the Federal Constitutional Convention, the decision of the Founding Fathers was to give the Senate the complete authority for naming Federal judges and approving them. In the last few days, the last 8 days of the Constitutional Convention, they decided that the power should be shared and divided.

In sharing that power, we exercise our judgment, as Members of the Senate, whether we believe these nominees are committed to the values of the Constitution. That is what is tested with these nominees. If we were not considering these nominees who are clearly outside the mainstream, we would have a chance to consider the Defense authorization bill, and we would have a chance to perhaps debate why it is hundreds of thousands of young children of the middle class struggle to pay student loans? Student loans are guaranteed by the Federal Government, but because of a policy of the Department of Education, the loan companies are subsidized at a 9.5 percent rate of return. Why aren't we debating that? It can make a difference to the cost of education, to working families and middle-income families. Do you think that is on our agenda? No, that is not on our agenda. We can't consider that.

We can't consider the Defense authorization bill. We are only going to be considering the qualifications of judges who are out of the mainstream of judicial thinking.

Countless Americans are lying awake at night, wondering how they can afford their health insurance as their premiums constantly go up, year after year. Just today, Families USA released a report that $1,000 of your insurance premium, that is the average premiums Americans are paying--$1,000 comes out of your pocket because we refuse to act on the challenges of health insurance for average working Americans. We are not debating that. We are not discussing it. We refuse to consider it. No, we are right back to where we are in considering these controversial judges.

Here is Families USA: Every American ought to know they are paying $1,000 on their health insurance because someone else is not covered. We have seen the constant number of uninsured go up. So, America, wake up. Your health insurance costs are going to continue to go up, and we see more Americans losing their health insurance. Don't we think that is a national problem? Don't we think that is something we ought to be debating here in the Senate? No, that is not a priority. We are debating these controversial judges.

The working families of this country, the struggling middle class, is concerned about the decline in their standard of living. They have worked hard all their lives, but they keep facing rising prices, jobs that could disappear tomorrow and less secure retirement. They want to pay their bills, put a little aside for tomorrow, but that is harder and harder to do. This article says that General Motors just laid off 25,000. They will reduce hourly workers by 25,000. Plant closings seen. Plants hope to avoid layoffs in the biggest cutback since 1992.

Why aren't we doing something about this, this afternoon? Why aren't we debating what we ought to be doing to help those families? Can you imagine being one of the members of those families who had worked 10, 20, or 30 years and found out you are one of those 25,000 families?

No one is suggesting there is a quick, easy solution to it, but it is a problem, and it is a challenge. Just as we heard yesterday in our Human Resource Committee about the issue of pensions--you could not pick up your newspaper across America yesterday and not find out about unfunded pension plans in the airlines. The guaranty agency, the PBGC agency which is to guarantee these pensions, is $23 billion in deficit, with the prospect of additional airlines going into bankruptcy and the airlines dropping all those individuals where they will not get nearly what they have sacrificed for and paid into retirement. Don't you think that is important enough that we ought to be debating that issue, talking about that here on the floor of the Senate? Isn't that a priority for hundreds of thousands or millions of Americans? It certainly should be. It is in my State. But, oh, no, let's talk about Janice Rogers Brown.

Let's talk about William Pryor, who has an absolute disdain for the voting rights bill. He has a disdain for the Americans with Disability Act. I have been here. My friend Tom Harkin and others, in a bipartisan way, we passed that Americans with Disabilities Act with the leadership we had with Bob Dole. Read the opinions of Mr. Pryor about that. He has an absolute contempt for the Congress in the way he addressed the Americans With Disabilities Act. We are going to be spending days to make sure the American people understand and know what Mr. Pryor said about the Americans With Disabilities Act, let alone what he said about voting rights, let alone what he said about family and medical leave. That is something which millions of families take advantage of--not paid family leave, but just emergency family leave to be able to go back and take care of a sick child or a sick parent. Not according to Mr. Pryor.

But, nonetheless, Republicans and this President sent this nominee up here, and it is important for us

to be able to explain to the American people why we are opposed to that nominee. But they chose to nominate. They send the nominee. That is the President, he has that authority. He sends them up here when they are controversial, the other side supports it, we explain what our position is, they threaten to close us down and muzzle us and gag us by changing the rules in midstream--which we have fortunately been able to resist here. But all of that is a higher priority for the other side, for this administration, than to consider these workers who have been laid off; pension plans which are of such importance; the escalating costs we find out today for students in the middle class in terms of education--that is the failure of this institution at this time.

Oliver Wendell Holmes said we must be involved in the actions or passions of our times or risk not to have lived. What is involved in the actions and passions of the times, certainly for these 25,000 workers, is the fact they are not going to go to work. For the retirees, the millions, what is involved in their actions and passions is their retirement program. And for all Americans, when they are paying an additional $1,000, which they should not be paying, and we are doing nothing about it. They care about that. Those are issues which they care about. The middle class is paying dramatically more than they should, in terms of the interest on student loans, than they should or need to. We ought to be debating those issues, but we are not able to do so because that is not the priority of this administration or this Senate.

Democrats would like nothing better than to turn to other issues rather than debate this controversial nomination. But we know that the 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 the Federal courts. Fair labor laws and civil rights laws mean little if we confirm judges who ignore them.

Deciding who is confirmed to the D.C. Circuit is too important to ignore. The important work we do in Congress on all of these and other issues is undermined if we fail in our responsibility to provide the basic advice and consent on judicial nominations. Basic rights and important laws mean little if we confirm judges who ignore them.

I want to wind up with a headline of today in the Washington Post. Here it is: ``Tobacco Escapes Huge Penalty. U.S. Seeks $10 Billion Instead of $130 Billion.''

The $130 billion was the recommendation of the professional lawyers in the Justice Department. The political lawyers in the Justice Department recommended $10 billion. That is according to the news reports. We know historically that former Attorney General Ashcroft did not want to bring the case, but nonetheless the case was brought. The recommendation by the Government attorneys was for $130 billion but, oh no, the political lawyers evidently, according to the news reports, won the day and the amount recommended was for $10 billion. Even the tobacco companies were amazed.

What was that $130 billion going to be used for? That $130 billion was going to be used for smoking cessation to get them to stop smoking, to stop them from the addiction of nicotine. An important impact can be made in terms of stopping children from being involved with tobacco and cancer, especially lung cancer, but, no, the Department said: We want just $10 billion.

We ought to be debating that issue.


Mr. KENNEDY. I know my friend from New York is on his way, but that point should not be lost. Here we have just within the last several days an issue that can make such a difference to every parent in this country who has a teenage child. Every single day, 4,000 children start to smoke, and 2,000 become addicted. We have the opportunity with this judgment to have a major national program to discourage young children from going into it, and the Government says: No, we are going to go for not even a slap on the wrist.

We have evidence today about the increase in the cost of health insurance by more than $1,000 a year. That is something families understand. We have the increased cost of education. That is something families understand.

Then there are the pension problems of workers who have worked and contributed to their pensions over the years, and they are now virtually evaporating. These are real issues of real people. But, no, the President and the Republicans want us to spend our time on these controversial judges that fail to meet the fundamental requirement of core commitment to the values of the Constitution and the understanding of the legislative process which protects the lives, the well-being, and the future of our country and families in this Nation.

For all of those reasons, this nominee should be rejected, and we ought to get about the country's business and get away from these controversial judges who are clearly outside of the mainstream of judicial thinking.


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