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. BROWNBACK. Mr. President, I would like to get us back on the topic at hand. It is a topic that has been denied for some period of time. It is the Honorable Janice Rogers Brown nomination to the U.S. Court of Appeals for the DC Circuit. ``Justice delayed is justice denied'' is an old saying under the law. This lady has been delayed a long time. It is time to get this nomination through.
I am glad to see the cloture vote move us forward. She is going to be now approved, I believe, by a majority vote and a majority opinion. And I think if the country had to vote on Janice Rogers Brown, it would be a 90-plus percent vote for this lady, given her background, given her judicial expertise, given her demeanor, given her nature.
I think the country would look at this lady, whom I have a picture of here, and say: That is the type of person I want on the bench. This is a good, honorable person, with a great heart, a well-trained mind, who is thoughtful, with great experience. This is the type of person we ought to have on the bench. Yet we have just heard litany after litany of excuses, the dissecting of cases that you try to then parse to say she should not be on the bench for whatever reason.
I want to go through some of what has been stated previously. I want to go through, again, her background to get us back on topic. And then I want to go through some of the specifics.
She is currently serving as an associate justice on the California Supreme Court. She has held that position since 1996. She is the first African-American woman to serve on the State's highest court. She was retained with 76 percent of the vote in the last election. Certainly, that does not seem to be the sort of extreme case anyone can come up with; that 76 percent of Californians think she should be retained on the court. If she is so extreme, if she is so off the mark, if she is so out of the mainstream, why, in California, wasn't she voted off the bench?
Why didn't at least 24 percent of Californians or more than 24 percent vote her off the bench? Why didn't she have a much closer election than that? Where is the beef, an old advertising phrase?
In 2002, Justice Brown's colleagues relied on her to write the majority opinion for the court more times than any other justice. Prior to appointment and confirmation to the California Supreme Court, Justice Brown served from 1994 to 1996 as an associate justice on the Third District Court of Appeals, an intermediate State appellate court.
Justice Brown enjoys bipartisan support from those in California who know her best. A bipartisan group of 15 California law professors has written to the Senate Judiciary Committee in support of Justice Brown. The letter notes that:
We know Justice Brown to be a person of high integrity, intelligence, unquestioned integrity, and evenhandedness. Since we have differing political beliefs and perspectives, Democratic, Republican and Independent, we wish especially to emphasize what we believe is Justice Brown's strongest credential for appointment on the D.C. Circuit Court: her open-minded and thorough appraisal of legal argumentation--even when her personal views may conflict with those arguments.
This is a bipartisan group that says she is open-minded and thorough in her appraisal of legal arguments.
A bipartisan group of Justice Brown's current and former judicial colleagues has also written a letter in support of her nomination. Twelve current and former colleagues noted in a letter to the committee that:
Much has been written about Justice Brown's humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the Federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be extremely intelligent, keenly analytical, and very hard working. We know that she is a jurist who applies the law without favor, without bias and with an even hand.
This doesn't sound like the same lady who is being discussed on this floor by some of my colleagues on the other side.
Ellis Horvitz, a Democrat and one of the deans of the appellate bar in California, has written in support of Justice Brown noting that:
..... in my opinion, Justice Brown [possesses] those qualities an appellate jurist should have. She is extremely intelligent, very conscientious and hard working, refreshingly articulate, and possessing great common sense and integrity. She is courteous and gracious to the litigants and counsel who appear before her.
Regis Lane, director of Minorities in Law Enforcement, a coalition of ethnic minority law enforcement officers in California, wrote:
We recommend the confirmation of Justice Brown based on her broad range of experience, personal integrity, good standing in the community, and dedication to public service ..... In many conversations with Justice Brown, I have discovered that she is very passionate about the plight of racial minorities in America, based on her upbringing in the south. Justice Brown's views that all individuals who desire the American dream regardless of their race or creed can and should succeed in this country, are consistent with [that group's] mission to ensure brighter futures for disadvantaged youth of color.
These are some of the people who know her the best. These are the statements they make about her. This is why she should be on the DC appellate court.
Justice Brown is an outstanding and highly qualified candidate as evidenced by her background, credentials, and training. This has been covered and covered. But she is a sharecropper's daughter, born in Greenville, AL, in 1949. During her childhood she attended segregated schools, came of age in the midst of Jim Crow policies in the South. She grew up listening to her grandmother's stories about NAACP lawyer Fred Gray, who defended Dr. Martin Luther King, Jr., and Rosa Parks. Her experience as a child of the South motivated her desire to be a lawyer. Her family moved to Sacramento, CA, when Justice Brown was in her teens. She later received a B.A. in economics from California State in Sacramento in 1974, and her J.D. from UCLA School of Law in 1977. She also received honorary law degrees from Pepperdine University Law School, Catholic University, and Southwestern University School of Law.
She has dedicated all but 2 years of her 26-year legal career to public service. For only 2 years has she not been in public service, 24 years of public service. Where is the person who is out of the mainstream? Where is the person who is irrational? Where is the person who doesn't hold or have the judicial temperament or doesn't have the intellect or the open-mindedness to be a judge in all of this? She has dedicated most of her life, 24 years, to public service.
Prior to more than 8 years as a judge in State courts, Justice Brown served from 1991 to 1994 as legal affairs secretary to California Governor Pete Wilson where she provided legal advice on litigation, legislation, and policy matters. From 1987 to 1990, she served as deputy secretary and general counsel to the California Business, Transportation, and Housing Agency where she supervised the State banking, real estate, corporations, thrift, and insurance departments.
From 1972 to 1987, she was deputy attorney general of the Office of the California Attorney General where she prepared briefs and participated in oral arguments on behalf of the State in criminal appeals, prosecuted criminal cases, and litigated a variety of civil issues. She began her legal career in 1977, when she served 2 years as deputy legislative counsel in the California Legislative Counsel Bureau. She has a broad base of experience from which to draw to be an excellent person to sit on the Federal appellate court bench.
She has participated in a variety of statewide and community organizations dedicated to improving the quality of life for all citizens of California. Justice Brown has served as a member of the California Commission on the Status of African-American Males--the commission was chaired by now-U.S. Representative BARBARA LEE--and made recommendations on how to address inequalities in the treatment of African-American males in employment, business development, the criminal justice, and health care systems.
She is a member of the Governor's Child Support Task Force, which reviewed and made recommendations on how to improve California's child support enforcement laws. She serves as a member of the Community Learning Advisory Board of the Rio Americano High School and developed the Academia Civitas Program to provide government service internships to high school students in Sacramento. She has also assisted in the development of a curriculum to teach civics and reinforce the values of public service.
She has volunteered time with the Center for Law-Related Education, a program that uses moot courts and mock trials to teach high school students how to solve everyday problems. She has taught Sunday school class at Cordova Church of Christ for more than 10 years. That is Justice Janice Rogers Brown. Those are the facts. That is who she actually is.
So why has it taken that long a period of time for us to be able to get her to the floor? Why is there such consternation about her becoming a DC appellate court judge? Why have we spent years to get her to the point where we will vote on--I would love to see it today, but at least this week--her approval to the DC appellate court bench? I think it goes to the fact that she is a lady, nominated by President Bush, who will strictly construe the Constitution, stay within the bounds of the document, not try to write new opinion as to a new constitutional right or a new issue that is not within the Constitution or not within the law. She is what lawyers would call a strict constructionist. She says if the law says this--and it was passed to say that--that is what we enforce, if that is what the Constitution says.
It is not the living, breathing document of let's try to create another right or privilege here and take three or four of the amendments to the Constitution, provisions of the Constitution, frame them together, and then let's find a new right in the Constitution because we think this is good for the country. If it is a change to the Constitution that needs to happen, then it should happen. And it should go through this body with a two-thirds vote. It should go through the House with a two-thirds vote. It should go to the State legislatures for a three-fourths vote. It should not be a majority opinion of a bench somewhere.
She says she will stay within the confines of the law. That is what the President is trying to nominate, judges who will stay strict constructionists within the confines of the law and be what judges should be, interpreters of the law, enforcers of the Constitution as it is written, not as they wish it were written. That is what this nomination is about.
Others want to see a court that will expand and look and read different things in, even if it doesn't pass through this body or doesn't pass through the legislature or isn't signed into law by the President. We really are at a point of what it is that the judiciary is to be about in America. You are seeing the face of somebody who is a strict constructionist, saying that this is what it is about.
The judiciary has a role. It has a constitutional role. It is an extraordinarily important role. But it is defined and it is set. She believes it should stay within. That is why we have had so much trouble with so many of these judicial nominations.
During the first 4 years of the Presidency of George W. Bush, the Senate accumulated the worst circuit court confirmation record in modern times, thanks to partisan obstruction. Only 35 of President Bush's 52 circuit court nominees were confirmed, a confirmation rate of 67 percent. To give you a comparison on that:
People have said that is not so low; we approved a number of these lower court judges. But let's take President Johnson's term in office. There was a Democrat Senate and a Democrat President. What was his circuit court nomination rate? It was 95 percent.
President Bush: Republican Senate, Republican Presidency, 67 percent.
What about President Carter? Democratic President, Democratic Senate, and 93 percent of his circuit court nominees were approved.
President Bush: 67 percent.
What has taken place is a filibuster of good people, such as Janice Rogers Brown, who has served honorably most of her professional career in public service but does believe there are confines within which they rule. It is in the Constitution or it is not; it is in the law or it is not; it is constitutional or it is not. It is not what I wish it were, it is what is actually there. It is what the precedents have said that matters.
The average American may not be familiar with Senate rules on cloture or on the unprecedented low confirmation rate of President Bush's circuit court nominees, but the average American can tell you one thing: that the Constitution and common sense require the Government to be accountable to the people for its actions. This is especially the case of what we do in the House and the Senate as we move forward in this country.
I want to address some of the items that have been coming up in some of these debates. Various Members have raised specific points, and I want to address a few of those points.
Certain liberal special interest groups have tried to distort Janice Rogers Brown's decision when she served on the State court of appeals in the case of Sinclair Paint Company v. Board of Equalization. They claimed she was insensitive to the legislature's desire to protect children from lead poisoning.
What was really at issue in the case was the respect for the will of the California voters who wanted to make it more difficult for the California Legislature to raise taxes.
California proposition 13--people remember that--enacted in June of 1978, requires a two-thirds vote of the legislature to increase State taxes. That is what proposition 13 did. In 1991, the California Legislature voted by a simple majority to assess fees on manufacturers engaged in commerce involving products containing lead in order to fund a program to provide education, screening, and medical services for children at risk for lead poisoning. Justice Brown simply held for a unanimous court of appeals--a unanimous court of appeals--in affirming the judgment of the trial court that the assessment constituted a tax within the meaning of proposition 13 and thus had to be passed by a two-thirds vote.
That seems to be pretty basic and pretty common sense and not about her insensitivity to cases involving lead poisoning but simply what her role is under the law and her role as a jurist.
Under applicable California case law where payment is exacted solely for revenue purposes and its payment gives the right to carry on the business without any further conditions, the payment constitutes a tax. The Childhood Lead Poisoning Protection Act did not require the plaintiff to comply with any other conditions. It was merely required to pay its share of the program cost. Justice Brown reasonably concluded the assessment was a tax.
There are several other cases that have been brought up that I want to address.
Several liberal interest groups have attacked Justice Brown's dissent in Aguilar v. Avis Rent-a-Car Systems in which she argued racial discrimination in the workplace, even when it rises to the level of illegal race discrimination, cannot be prohibited by an injunction under the first amendment. I want to talk about this.
Justice Brown, as I have cited, is the daughter of a sharecropper from rural Alabama. She grew up under the shadow of Jim Crow laws. I think she understands the lingering effects of racial classification. In light of her personal history, the allegation she is insensitive to discrimination is absurd.
Notwithstanding her personal experiences with racism, Judge Brown's role as a judge has been to apply the law which she has done faithfully and rigorously. As I discussed earlier, it is the role of the judge to apply the law and apply the Constitution, not rewrite the law the way they wish it were, not to rewrite the Constitution the way they think it ought to be, but to apply it in a particular case. And this is a case she could have looked at from her background and said: I understand this situation. I have been in this situation. Yet what does the law itself say?
Judge Brown's opinions demonstrate her firm commitment to the bedrock principle of civil rights. Discrimination on the basis of race is illegal, it is immoral, unconstitutional, inherently wrong, and destructive of a democratic society. Those are her statements.
In the Aguilar case, Justice Brown described the defendants' comments as disgusting, offensive, and abhorrent, and she voted to permit a large damage award under California's fair employment law to stand. Her dissent only pertained to an injunction that placed an absolute prohibition on speech. This is commonly called a prior restraint which most free speech advocates strenuously oppose.
Justice Brown's opinions demonstrate her firm commitment to the first amendment. She cited a long line of Supreme Court cases for the proposition that speech cannot be banned simply because it is offensive.
Justice Brown's opinions also demonstrate her commitment to equality in the workplace. Justice Mosk and Justice Kennard, considered one of the most liberal members of the California Supreme Court, also dissented on first amendment grounds.
Here we see the core of the person, the commitment to the law and to the rule of law. Here was something she had experienced, she understood, and yet had to say: OK, what does the law actually say, and what are the first amendment rights? Then she applied them in the case. That is the type of justice who looks at what is their role and what is it that they are required to do under the Constitution.
Judge Brown's opinion was so powerful that it prompted one member of the U.S. Supreme Court to take the unusual step of publishing an opinion dissenting from the denial of certiorari.
I find it amazing that the very same liberal outside groups who never hesitate to level accusations of censorship, perhaps, against the administration or even Congress are attacking Justice Brown for standing up for what she interpreted and looked at clearly as a first amendment issue which she had to stand by even though she found the comments herself so offensive and wrong.
Justice Brown has been attacked as being insensitive on women's issues because she has voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women. Some have claimed her to be hostile to these women's issues.
What one has to do is look at the actual case, the actual facts, the actual law in front of her because her role as a justice is to take the law and the facts applied in this particular case, not what she wished it was, not what she hoped it would be, not what she thinks it should be in a perfect world, but what is it.
The law involved in the case actually required health and disability insurance policies to cover contraceptives. Justice Brown did not vote to strike down the law, she simply argued that the law should not be applied to force a religious institution--here Catholic Charities of Sacramento--to do something that violated its religious beliefs. This case was about religious freedom under the first amendment, not about gender discrimination or revisiting the right to contraceptives. It is about discrimination based on religion, and Justice Brown stood against this discrimination. Telling us about this case without saying a word about religious freedom on the issue misinforms people totally about this particular case and this person.
Justice Brown has been attacked for rendering opinions that have been considered outside the mainstream. These allegations are spurious. As I have stated, she has been affirmed by the population, the public voting in California, with a 76-percent approval rating. If her opinions are so out of the mainstream and so wrong, why weren't more Californians than roughly 25 percent concerned about this?
The flip side of this is that I have never won an election by a 75-percent margin. I would love to win an election by that margin. This is a confirmation election. It is different than what we face in the Senate.
Still, as somebody who has run for elections, when you get up to that three-fourths mark, that is really good, standing in front of the public and asking them to endorse your status, endorse your position, particularly if this allegation were true. If it were true that she is way out of the mainstream of public opinion in California and she is way out, on a consistent basis, so that her opinions are in the paper all the time and they are way out there, contrary to California public opinion, would you not think more than 25 percent of Californians would say, I am going to vote against confirming this lady?
I think probably a lot of people would look down the ballot box on judges and say, Which ones can I vote against because I am used to voting for all of them, particularly if somebody was so out of the mainstream on such a consistent basis that she is in the papers all the time about being in this dissent or being overruled in this case, that there would be some recognition of her and more people would be concerned. Yet that is not the case. I submit it is because it is just not true. She is not outside the mainstream.
I believe the criticism is utterly baseless. Among the eight justices who served on the California Supreme Court between 1996 and 2003, Justice Brown tied with another judge as the author of the second most majority opinions for the court. Only the chief justice wrote more majority opinions. Now, those are her colleagues on the bench saying: We think you are the right person to write this opinion. You are expressing the opinion for most of us. You are a hard worker. You are intelligent. You are an excellent wordsmith. These are all traits we would want in a justice.
Justice Brown also ranked fourth among the eight justices for the number of times she dissented alone. This puts her squarely in the middle, certainly not on either fringe in that category. It is wrong for Justice Brown's opponents to throw out numbers without offering any basis for comparison on her court.
I wish to talk about a particular case, the case of People v. McKay. Justice Brown stood alone among her colleagues in arguing for the exclusion of evidence of drug possession that was discovered after the defendant, Conrad McKay, was arrested for riding his bicycle the wrong way on a residential street. Her dissent is remarkable for its pointed suggestion of the possibility that the defendant was a victim of racial profiling.
Justice Brown commented:
Questions have been raised about the disparate impact of stop-and-search procedures of the California Highway Patrol. The practice is so prevalent, it has a name: ``Driving While Black.''
This is somebody who is insensitive? I do not think that is the case with Justice Brown.
I will go on and read from the conclusion of her dissent. She added the following stirring comments:
In the spring of 1963, civil rights protests in Birmingham united this country in a new way.
This is a native of Alabama.
Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression.
These are the words of Justice Janice Rogers Brown. And I continue:
We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.
I do not know Mr. McKay's ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes--places where no resident would be arrested for riding the ``wrong way'' on a bicycle whether he had his driver's license or not. Well ..... it would not get anyone arrested unless he looked like he did not belong in the neighborhood. That is the problem.
That was her dissenting opinion, a stirring opinion, quoting things that in her growing up and in her childhood she had witnessed. She is very sensitive on racial issues.
Last month, Ginger Rutland, who is on the editorial board of the Sacramento Bee, wrote this in her newspaper about Justice Brown's judicial courage:
I know Janice Rogers Brown, and she knows me, but we're not friends. The associate justice on the California Supreme Court has never been to my house, and I've never been to hers. Ours is a wary relationship, one that befits a journalist of generally liberal leanings and a public official with a hard-right reputation fiercely targeted by the left. ..... I find myself rooting for Brown. I hope she survives the storm and eventually becomes the first black woman on the nation's highest court.
In describing Justice Brown's position in the McKay case that I quoted Justice Brown earlier, Rutland, the editorialist from the Sacramento Bee, says the following:
Brown was the lone dissenter. What she wrote should give pause to all my friends who dismiss her as an arch conservative bent on rolling back constitutional rights. In the circumstances surrounding McKay's arrest, the only black judge on the State's highest court saw an obvious and grave injustice that her fellow jurists did not. ..... In her dissent, Brown even lashed out at the U.S. Supreme Court and--pay close attention, my liberal friends--criticized an opinion written by its most conservative member, Justice Antonin Scalia, for allowing police to use traffic stops to obliterate the expectation of privacy the Fourth Amendment bestows.
This is an admitted liberal editorial writer talking about Brown's courage.
This is a lady who is going to do an outstanding job on the DC Circuit Court of Appeals. The only tragedy is that she has not been there years earlier. The tragedy is that she has been held up because she looks at doing her job for what it is, which is staying within the Constitution and enforcing it, looking at the law and enforcing it; or if it goes against what is in the Constitution, ruling it unconstitutional, but not looking at the Constitution as she hoped it would be or mixing together a series of ideas in the Constitution and finding a new right; or looking at the law and thinking it should be this way or that and expanding it that way. This is a person who looks at her job as being a judge, in an honorable role, but it is a role that has a set to it and a way, and she is upholding that.
I believe that is really what is at the cornerstone of this debate. Unfortunately, we get it mired so often in personalities and accusations and hyperbole, comments of a personal nature toward an individual that are simply not true, when really what we are talking about is the role of courts.
Courts, like every institution, are people. People are on the courts. We have judges who are appointed to the courts, and they have their views and they have a way of looking at the Constitution or they have a way of looking at various documents or laws. She looks at it as more of a strict constructionist. That is an honorable way to look at it. I believe it is the right way to look at it. Yet she gets painted with all the other sorts of accusations that are simply not based on fact but are a disguise for what the real debate is about, which is the role of the judiciary in America today.
We are having a rolling debate about that issue. We are having a lot of discussion about that. We are having discussions in various States and in the Nation about what is the appropriate role of the judiciary. I believe this is a lady who would stand by that role.
Those are a series of issues. I may visit some others later on, but this is a lady who is eminently qualified, will do a wonderful job. I support her nomination, and I hope we can get to a strong vote fairly soon on it.
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