Executive Session
EXECUTIVE SESSION -- (Senate - June 08, 2005)
NOMINATION OF JANICE R. BROWN TO BE UNITED STATES CIRCUIT JUDGE
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Mr. LOTT. Mr. President, I thank the Senator from Alabama, Mr. Sessions, for his leadership on the Judiciary Committee and his aggressive support for this fine nominee to serve in our Federal judici ary.
It is a great pleasure for me to rise today in support of the confirmation of the Honorable Janice Rogers Brown to the U.S. Court of Appeals for the DC Circuit.
There are a lot of people who I would like to commend and congratulate for bringing us to this point of justice for a very fine nominee to our Federal judiciary. We can be critical of how we reached this point, the so-called compromise that was developed by the 14 Senators who came together. You can give credit to the leaders in both pa rties in certain respects. But the fact of the matter is the Senate voted finally to give Justice Brown an up-or-down vote. I am proud of that.
I think the Senate should take some pride and credit for allowing this nominee to reach this point in the debate and in the voting process. I was pleased, yesterday, to see that 65 Senators voted to invoke cloture to bring this nomination to an up-or-down recorded vote. So a lot of people deserve credit, and I want to make sure they have it. I want to thank them for it.
I also want to ask for the forgiveness of this nominee for the way she has been treated. I do not think this has been one of the Senate's proudest hours.
I think this nominee has such an outstanding personal story to be told, and I will not repeat the history of where she was born and where she was educated and what she has been through, but she has lived the American dream, and she has lived it well. She did not just complain about her status. She worked and got an education. She applied h erself. She has been given opportunities, and she has taken advantage of them.
I am proud to say I support her nomination. I think she will make an excellent judge. I really do believe most opposition to her has just been simply the fact that she is an African-American conservative woman. I do not think we should vote for or against judges because they are conservative, moderate, or liberal. I think we should vote on them based on their background, their education, their experience, their decorum. Do th ey have the ethics for the job? Do they have conflicts of interest?
If they meet all of those qualifications, in my opinion, they should be confirmed. That is what Presidential elections are about. They are about electing men or women to that office who will nominate people to the Federal judiciary who agree with their philosophy. When President Clinton nominated people to the Supreme Court--and I have said this before, but I repeat it again--when he nominated Ruth Bader Ginsburg to the Supreme Court, I k new I did not agree with her philosophy. I knew I would not agree with many of her decisions in the Supreme Court. But she was qualified by experience and by education, by every criteria that we should evaluate, and I voted for her. I voted to confirm other judges whom I did not agree with philosophically.
There have been attacks on Justice Brown that she has a philosophy of life, certain moral values, as though that is disqualifying. I do not understand that. Are we not entitled to our opinions, person al opinions, even as judges, let alone as Senators? We certainly have ours and express them routinely. I think judges have a right to have personal and private lives and to be able to give a speech in which they state positions which may not necessarily be reflected in reasoned decisions as judges.
You can have an opinion, but if the law is on the other side, you have to rule that way. There was a recent decision by a Federal district judge in my own State that I don't agree with, and I know he doesn't agree with it personally. But he upheld the law in a very reasoned decision. That is what has happened with Justice Brown. She has strong beliefs based on her life experience, but she hasn't tried to impose those in an unfair way as a member of the California Supreme Court. Yet she is attacked--attacked relentlessly and, in my opinion, unfairly and inaccurat ely on many occasions.
For instance, she has been attacked here for a quote in her dissent in Stevenson v. Huntington Memorial Hospital in which she distinguished age discrimination from race discrimination. Based on this quote, they suggest Justice Brown doesn't believe in public policy against age discrimination. To draw this conclusion based on what Justice Brown wrote is as wrong as making the same accusation against the U.S. Supreme Court, which drew the same distinction in Massachusetts Boa rd of Retirement v. Murgia, a case Justice Brown cited.
It should be added that both Justice Brown and our Nation's highest court are correct. All of us will eventually get old, and we have parents and grandparents. But most of us will never know what it is like to be Black or Hispanic in America, to be pulled over for no reason other than your skin color, to have grandparents or parents who did not get to go to college or even sit at the same lunch counter or drink from the same water fountain.
The se charges are totally out of line with other decisions that she cited and with her own life experience.
She has been attacked for opposing Social Security and Medicare as socialist programs that should be reversed. This is completely untrue. Not a single opinion of hers suggests that she opposes these programs. In fact, the ranking member of the Judiciary Committee directly asked her whether she regards New Deal programs such as Social Security, labor standards, and the Securities and Exchange Commissi on as socialist, and she replied, unequivocally, ``no.'' Has she raised some questions about some of those programs in her private speeches or even her public speeches? Perhaps so. I think it could be done on a principled and substantive basis. But, again, that doesn't disqualify her. If you look at the reasoning she has used while a member of the California Supreme Court, you will see that she cites the law and upholds the law. What she may have said in some speech should not disqualify her.
Senators h ere have cited a list of interest groups who oppose Justice Brown. But consider this. She is on the Supreme Court in California, not exactly a hot bed of conservatism or moderation. She was retained by the California voters by a margin of 76 percent of the vote, the highest margin of the four California Supreme Court justices on the ballot, six points higher than Stanley Mosk, a well-known liberal jurist in the State, and higher than California's chief justice. The people believe she is a good supreme court justice, qualified, and has been rational and moderate in her views on the supreme court, or they wouldn't have voted for her with 76 percent of the vote.
She has been attacked for her dissent in a case against companies that sold cigarettes to children. The truth is, Justice Brown clearly wrote in her opinion that selling cigarettes to minors is against the law and those guilty of it should be punished.
To suggest that she did not feel this way is totally inaccurate. Yet that has been said on the floor of the Senate during the days of debate we have had.
There are some people who don't exactly share her views who have endorsed her. I read one newspaper column being very critical of her, saying she should not be confirmed. But it went on to say that she has routinely written the decisions of the court, that her decisions are interesting, almost lyrical, and very professional. Yet you maintain in the same column she is not qualified?
In fact, in a recent column, law professor Jonathan Turley, a self-described pro-choice social liberal, points out that ``Brown's legal opinions show a willingness to vote against conservative views ..... when justice demands it'' and that Democrats should confirm her.
Even though Justice Brown has expressed personal opinions against too much government regulation, she has consistently voted to uphold regulations in every walk of life. You mean to tell me that you are disqualified for the Federal judiciary if you think that there are too many government regulati ons? I certainly believe there are. I would hope that we would have Federal judges that would quit compounding it by writing more and more regulations of their own.
Justice Brown joined in an opinion upholding the Safe Drinking Water and Toxic Enforcement Act of 1986, and expansively interpreted the act to allow the plaintiffs to proceed with their clean water claims. Justice Brown upheld the right of plaintiffs to sue for exposure to toxic chemicals using the Government's environmental regulations. Jus tice Brown upheld California's very stringent consumer safety standards for identifying and labeling milk and milk products, thereby ensuring that the government has a role in protecting the safety of our children and all Californians.
Justice Brown joined in an opinion validating State labor regulations regarding overtime pay. The list goes on and on and on.
I believe Justice Brown has been very unfairly charged. She is highly qualified. Some would even maintain she has been willing to take this ab use and to step down to this court that is not superior to the one on which she now sits. She has been willing to go through this crucible to be confirmed. She should be confirmed. I am pleased to see a woman, a nominee of this caliber, with her American life story, be nominated. I believe, and I certainly hope, she will be confirmed. I think that history will prove that she will be an outstanding member of the Federal judiciary.
I ask unanimous consent to place further examples of rulings by Justice Br own in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
In Hamilton v. Asbestos Corp., she authored the court's opinion on a statute of limitations issue that allowed an injured plaintiff more time in which to file a personal inj ury claim against various asbestos defendants.
In County of Riverside v. Superior Court, she wrote the court's opinion holding that, under the Public Safety Officers Procedural Bill of Rights, a peace officer is entitled to view adverse comments in his personnel file and file a written response to a background investigation of the officer during probationary employment.
Ramirez v. Yosemite Water Company, she joined in the court's opinion validating State regulations regarding overtime pay.
In Pe arl v. Workers Compensation Appeals Board, she upheld the role of the Board in applying a stringent standard of ``industrial causation'' for a worker's injury, validating the state's role in ensuring worker safety.
And in McKown v. Wal-Mart Stores, she wrote, again for the court's majority, that the employer of an independent contractor is liable for injury to the independent contractor's employee caused by the employer's negligent provision of unsafe equipment.
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