Executive Session
EXECUTIVE SESSION
NOMINATION OF JANICE R. BROWN TO BE UNITED STATES CIRCUIT JUDGE
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Mr. HATCH. Mr. President, a few weeks ago, the debate in this Chamber captured the attention of the Nation. At stake was the maintenance of core constitutional principles of separation of powers and a limited judiciary against an unprecedented strategy of filibustering judicial nominees. Prior to 2003, Senators exercised self-restraint. In theory, the opportunity was always there for us to filibuster the President's judicial nominees, but out of proper respect for the President, whoever the President was, his power of appointment, and with an appropriate modesty about our own constitutional role, we refrained from exercising this power to filibuster judges.
We kept ourselves in check. In spite of real philosophical differences about the nature of judging and the meaning of the Constitution's fundamental guarantees, we all agreed on one thing: The Constitution's separation of powers prevented us from adopting a strategy of permanent minority-led filibusters of judicial nominees.
That self-restraint was tossed aside, however, in 2003. Led in large part by my friend and colleague, the senior Senator from New York, the Democratic leadership determined to engage in a full-blown inquiry of what they called the ideology of judicial nominees. Never before have opponents of a limited judiciary been so brazen with their litmus tests. They would now openly reject qualified nominees because of their strongly held personal beliefs, not for their judicial temperament, not for their experience, not for their character. Rather, nominees would be rejected because of their personal beliefs.
For some reason, what they termed ``strongly held personal beliefs'' were particularly suspect. California Supreme Court Justice Janice Rogers Brown, an eminently qualified jurist, was one of the primary targets of this radical strategy. For a few thought-provoking speeches she had given, some have tried to label her too extreme for the bench.
There is no doubt Janice Rogers Brown is conservative, but her views are hardly out of the ordinary. They are views shared by many millions of regular citizens, citizens of different economic, geographic, financial, ethnic, and religious backgrounds. Most importantly, however, it is clear that her personal views, whatever they are, do not cloud her judgment on the bench. Justice Brown's opinions are fully within the mainstream of American jurisprudence. It is the liberal activist groups that are purposefully misrepresenting Justice Brown's opinions, and what they think are her views, that are stranded out on the far left bank of American politics. Those groups belong on the far left bank of American politics, and that bank is way out of the mainstream.
The President takes his constitutional responsibilities seriously when he nominates individuals to the Federal bench. I have worked closely with the White House for the last 4 1/2 years on these judges, so I know that to be true. I know that as Senators, we take our responsibilities seriously when we review and confirm these individuals. When determining a person's fitness for the Federal bench, we evaluate their character and we inspect their records. We consider judicial experience, public service, legal work, academic achievement, personal character, and the ability for objectivity.
With these qualities in mind, it is worth considering the view of Justice Brown held by a number of prominent California law professors.
In a letter sent to me in my former capacity as chairman of the Judiciary Committee, a group of 15 distinguished California law professors had the following to say about Justice Brown:
We know Justice Brown to be a person of high intelligence, unquestioned integrity, and evenhandedness. Since we are of 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 to this important seat on the D.C. Circuit: her open-minded and thorough appraisal of legal argumentation--even when her personal views may conflict with those arguments.
Having gotten to know Justice Brown during this unnecessarily protracted confirmation process, I fully concur in this bipartisan consensus. And I can tell you she has cultivated these virtues against many odds.
Janice Rogers Brown was born in Greenville, AL, in 1949. She attended segregated schools. She was a firsthand witness to the injustice of Jim Crow and its failure to extend the promise of the 14th amendment to the descendants of freed slaves. Equal protection under the law was only a dream in the Deep South at that time when young Janice Rogers Brown left her African-American family for California.
Yet this girl who grew up listening to her grandmother's stories about NAACP Fred Gray, the man who courageously defended Martin Luther King, Jr., and Rosa Parks, brought to the golden State of California a passion for civil rights and a need for impartial justice.
Janice Rogers Brown cultivated this passion for justice through a career of almost uninterrupted public service as an attorney. After graduating from law school at UCLA, she served 2 years as deputy legislative counsel in the California Legislative Counsel Bureau. Then from 1979 to 1987, she was deputy attorney general in the office of the California Attorney General. Her work there was of such high quality that it led to her appointment as the deputy secretary and general counsel for the California Business, Transportation, and Housing Agency in 1987 where she supervised the State's banking, real estate, corporations, thrift, and insurance departments. No dunce could have done that. No person as described by some of my colleagues on the other side would have been chosen in that great State of California to do that. She has been very badly derided by picking and choosing little snippets here and there and taking them out of context.
From 1991 until 1994, she served as the legal affairs secretary to California Gov. Pete Wilson. I personally chatted with Pete Wilson, who is an old friend. He said she was terrific. He relied on her legal abilities.
Then in 1994, she embarked on the professional journey that culminated in her nomination to the Circuit Court of Appeals of the District of Columbia. First, she was nominated and confirmed as an associate justice on the California Third District Court of Appeals. Then in 1996, Gov. Pete Wilson elevated her to the position of associate justice on the California Supreme Court.
I ask unanimous consent to print in the RECORD her funeral eulogy for one of the great judges on that first appellate court.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
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Mr. HATCH. Mr. President, Janice Rogers Brown's deep and uncompromising desire to secure equal justice for everyone who appears before her is evident off the bench as well. She has served as a member of the California Commission on the Status of African-American Males. This bipartisan commission made recommendations for addressing inequities in the treatment of African-American males in employment, business development, and the criminal justice and health care systems. This was noble work.
In addition, as a member of the Governor's child support task force, she made recommendations on how to improve California's child support enforcement system. No small matter. She would not have been trusted with that had she been as described by some of my eminent colleagues and friends on the other side.
Justice Brown's critics cannot escape this story, so they turn to her statements off the bench and to her decisions on the bench in California to assert misleadingly that she is extreme. The instances they cite do not support these hysterical charges, and I want to consider them at some length.
One of Justice Brown's speeches received quite a bit of attention. In April 2000, she was invited to speak at the University of Chicago Law School. I have had the same privilege, by the way. Evidently, her critics say what she said there was so radical that we should keep her off the Federal bench.
Never mind that a public speech is an opportunity to be provocative, especially at a law school. Never mind that judges, like most folks, are able to separate out their personal and political beliefs from their professional duties. And never mind that Justice Brown was doing a service to these students by coming to speak before them, jar their imaginations, and give them something more to think about.
The fact is, what she said was not that radical. Groups have keyed in on her colorful critique of the New Deal. Give me a break. The same people who come down here decrying Justice Brown's description of the New Deal as revolutionary turn around 5 minutes later and claim that our current Social Security system cannot be adjusted one iota to address contemporary concerns because it was central to the New Deal's political revolution. Can you imagine, these very same people who find so much fault with her? You cannot have it both ways.
Their real problem is that Justice Brown then went on to criticize some of the unintended social and political consequences of big Government. When she claimed that an increasing public sphere tended to undermine the individualist spirit present at America's founding, she was saying nothing other than what de Tocqueville, Ronald Reagan, Booker T. Washington, Robert F. Kennedy, and countless political philosophers and economists have noted over the years.
Everyone knows that it takes a village--families and communities--not a sterile Government-mandated bureaucracy to raise a child or, rather, that it takes a family, not the Government, to raise young citizens.
Yet her critics treat Justice Brown's claims as trying to prove that the world is flat. The senior Senator from Massachusetts was on the floor yesterday afternoon and today arguing that Justice Brown's claim that an increasing public sphere is detrimental to civil society is outside the legal mainstream. Again, give me a break.
I cannot help but think that for Janice Rogers Brown, this criticism of big Government is related to her experience growing up in the Deep South and her adulthood working for the State of California. She did not have to read about Jim Crow in books. She lived it. My sense is that part of Justice Brown's commitment to rugged individualism is related to this hard-learned lesson: There are limits to what Government can accomplish.
That is precisely what President Reagan stated in his first inaugural address. When he said this in 1981, some of the very same people who attack Janice Rogers Brown today said President Reagan was out of the mainstream. That was the argument by the very same people back then.
Nowhere was this well-intentioned governmental overreach more apparent than in our failed experiment with welfare. Republicans and Democrats alike, originally led by the insights of our former colleague, the late Democratic Senator Daniel Patrick Moynihan, understood the detrimental impact of welfare on the urban poor in particular. I think Janice Rogers Brown understood that lesson as well.
But for articulating a similar skepticism about Government, Janice Rogers Brown has been branded a radical revolutionary. Quite the contrary. Her arguments have been based on reasonable concerns. And hers was a conclusion reached over the years by millions of Americans.
A few of Justice Brown's many decisions while a judge have also served as a source of the criticism that has been unfairly leveled at her. Of all the criticisms of Justice Brown, none more rankles than the claim she opposes civil rights. That is laughable. This is par for the course for some of these leftwing, fringe groups that have been smearing and attacking Republican nominees ever since I can remember, but certainly ever since Justice Rehnquist had his hearings and was confirmed to the Supreme Court as Chief Justice.
Just this week, the chairman of the Democratic National Committee was quoted as telling a group in San Francisco that Republicans are ``not very friendly to different kinds of people.'' He called the GOP ``pretty much a monolithic party. They all behave the same. They all look the same. It's pretty much a white Christian party.'' This is racial demagoguery, pure and simple, done by the chairman of the Democratic National Party. If I didn't know how bright he was, I would call him a raving idiot. But maybe he is just that part of the time.
This desperate rhetoric has a purpose: to mask the increasing attraction of conservative ideas to African Americans, Hispanic Americans, Jewish Americans, and other minorities the Democrats have felt they have an absolute claim to, no matter how outrageous some of their programs and ideas are.
So it is not surprising that when the organized critics of Janice Rogers Brown send their faxes to the press, her argument in the decision People v. McKay is notably absent. This is what she had to say there:
In the Spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from water hoses galvanized the nation.
Without being constitutional scholars, we understood violence, coercion and oppression. 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.
She wrote those words while arguing for the exclusion of evidence of drug possession discovered after an African-American defendant was arrested for riding his bicycle the wrong way on a residential street. She believed that the only reason this person was stopped was because of his race, and she was the only one of her colleagues on the supreme court to argue for the exclusion of this evidence on the grounds that it was the product of improper racial profiling. Yet our colleagues over here say she is an opponent of civil rights. Give me a break.
I have seen and heard just about everything in my years in the Senate, but the highly partisan campaign of the NAACP against Janice Rogers Brown is particularly shameful. It is sad to see the NAACP, the Nation's foremost civil rights institution, become little more than a partisan special interest group.
The other day I received a fax from their office urging me to vote against Justice Brown's confirmation because she was, ``hostile towards civil rights and the civil liberties of African Americans and other racial and ethnic minorities.''
My stomach turned when I read this. Not only is this irresponsible rhetoric, not only is it unfair and uncharitable, it is without any real foundation. In other words, it is total bullcorn, and it is wrong.
The NAACP, along with a number of other groups, has turned to Justice Brown's opinion in Hi-Voltage Wire Works, Inc., v. City of San Jose to show that she is inhospitable to minorities because of her supposed stance on affirmative action. These arguments, again, are way off the mark and an analysis of them demonstrates not only that Justice Brown is a mainstream conservative judge but also that these interest groups are extremely liberal outfits attempting to gain through judicial fiat what they cannot fairly win through the legislative process through the elected representatives of the people.
The Hi-Voltage case involved California's proposition 209. In a popular referendum, the people of California were clear: Discrimination or preferential treatment on the basis of race, sex, color, ethnicity, or national origin violates core constitutional principles of equal treatment under the law. Therefore, proposition 209 prevented discrimination in any public employment, public education, or public contracting.
Now, at issue in this case was a San Jose minority contracting program that required contractors bidding on city projects to employ a specified percentage of minority and women contractors. In her opinion, Justice Brown merely did what every judge who ever reviewed this case did. Through the trial court, through the appellate court, to the Supreme Court, all concurred with Justice Brown that this program was exactly the type of noxious racial quota program that proposition 209 was designed to prevent.
Her critics charge this demonstrates her blanket opposition to affirmative action. Such a conclusion depends on a deliberate misreading of Justice Brown's opinion in this case. She could not have been any more clear. She did not oppose affirmative action in all circumstances. These are her words:
Equal protection does not preclude race-conscious programs.
Contrary to the propaganda being issued by liberal interest groups, Justice Brown's opinion explicitly authorizes affirmative action programs.
I do not blame my colleagues on the other side completely because most of the time they just take what these outside leftwing radical groups give them and read it like it is true. So I say I do not blame them completely. But unlike the Supreme Court of the United States, the people of California have rejected quotas and race-based head counting.
Those are not affirmative action programs that merely take race into account. Programs such as the one under review in the Hi-Voltage case are improper quota programs. For following the mandate of California citizens on this subject, she has been called radical.
The NAACP's criticism is, as usual, overblown. They claim that Justice Brown's decision ``makes it extremely difficult to conduct any sort of meaningful affirmative action program in California.''
But what is a meaningful affirmative action program? I fear that these leftwing liberal interest groups are suggesting that the only meaningful type of affirmative action program is the type of quota program specifically
banned by proposition 209. As it turns out then, Justice Brown's real failure in this case is that she did not tailor the law to suit her own moral and political preferences. For this, she is demonized as a radical. It is her failure to embrace full-blown judicial activism that is her principal failing in the minds of her detractors.
Consider her opinion in American Academy of Pediatrics v. Lundgren. This case involved California's parental consent law. Parental consent laws are not rightwing policies. They are moderate restrictions on abortion rights supported by substantial majorities of the American people.
I find it interesting that the same groups that champion the right of a woman to make an informed choice about obtaining an abortion also reject moderate restrictions on the accessibility of abortion to minors who routinely do not possess the judgment necessary for the profound moral and philosophical decision to obtain an abortion.
We should not forget the U.S. Supreme Court, while acknowledging the right to an abortion, also has held that it is permissible under the Constitution to establish parental consent laws such as California's. California courts have long relied on Supreme Court precedents when defining the boundaries of their State's own constitutional right to privacy. That is the context of this decision, and in it Justice Brown dissented from the determination of an activist court to overturn California's moderate restriction on abortion rights. She wrote:
When the claim at issue involves fundamentally moral and philosophic questions as to which there is no clear answer, courts must remain tentative, recognizing the primacy of legislative prerogatives.
She continued, adding that:
The fundamental flaw running through its analysis is the utter lack of deference to the ordinary constraints of judicial decision-making--deference to state precedent, to federal precedent, to the collective judgment of our Legislature, and, ultimately to the people we serve.
This is not some debate over a speech that Justice Brown gave at a law school forum. We know that is not the real threat to these interest groups. They can see that judges such as Janice Rogers Brown take their oaths seriously. They will interpret the law rather than act as super legislators and make the law.
By showing deference to the people's representatives and the legislative and executive branches, these groups which too often today try to take the easy way out will now have to engage in the political process to win their points of view. Personally, I believe this would be a healthy development, but to those uncompromising special interest groups the democratic process is a threat, not a gift.
Soon we are going to have to vote on Justice Brown's nomination. I am glad and thankful that we are finally reaching this point after the number of years we have been at it. I know many people wanted to move beyond these divisive debates over judges. I appreciate their desire to move beyond this messy business of judicial nominations and I understand the desire to applaud the deal that has allowed last week's vote on Priscilla Owen and our vote later today on Janice Rogers Brown. The ultimate meaning of this compromise is yet unknown, but one thing we do know, these qualified women will have long careers on the bench in large part because the majority leader had the guts and decided to press this issue, reestablish longstanding Senate precedents, and tried to support the constitutional separation of powers.
Our senatorial power of advice and consent does not include the right to permanently filibuster judicial nominees. We have gone a long way to reaffirming what used to be an obvious truth, and we owe a debt of gratitude to the leader for helping to make this happen. We should also acknowledge the well-intentioned efforts of the 14 Senators involved in facilitating these votes. I know many conservatives are upset with this arrangement. I am myself. I am certainly not entirely comfortable with all the aspects of it myself, and I have said that it may prove to be a truce, not a treaty. We will have to wait and see what the full implications of this deal really are.
It does seem, however, that the cloture votes on nominees such as Priscilla Owen, Janice Rogers Brown, and William Pryor demonstrate the emergence of a filibuster-proof majority that believes even judges with conservative judicial philosophies are not the extraordinary cases that would trigger a filibuster and that even a conservative African-American woman has a chance to serve in this country. Unfortunately, some have been against her primarily because she is a conservative African-American woman.
We seem to be gaining ground in the fight against the erroneous belief that nominees with whom one disagrees politically are undeserving of an up-or-down vote. Of course, the acid test of this agreement will come in the weeks ahead when the Senate addresses nominees not specifically granted a safe harbor by the compromise.
This debate over Janice Brown and others with her conservative philosophy of judicial restraint is an important one. I will not compromise on the principle that the American people and their elected representatives, not judges, should make social policy. Our courthouses were never intended to be mini-legislatures. Judges do not have the constitutional responsibility, institutional capacity, the staff, or the wisdom to be good policymakers, and judges are not and should not be philosopher kings with some ability to divine the existence of rights not clearly expressed in statutory law created by the people's elected representatives or in constitutions established by the people themselves.
We are told by some that Justice Brown is a radical. Shortly after the President was elected in 2000, the Democratic Party held a retreat at which a number of liberal law professors urged them to ``change the ground rules'' on judicial nominations. That was radical advice. It upset longstanding constitutional balances, and unfortunately it was accepted by the former minority leader.
We must reject this effort. I, for one, am not afraid to have this debate. The American people know judicial activism when they see it. Just in the last few years we have been told by judges that the Pledge of Allegiance is unconstitutional, that our Bill of Rights should be interpreted in light of decisions by the European Court of Human Rights, and that well-considered bans on partial-birth abortion violate core constitutional principles.
Only a few weeks ago, a Federal judge in Nebraska invalidated the duly passed State constitutional amendment that preserved traditional marriage in that State. The definition of a judicial activist is someone who puts his or her own personal views ahead of what the law really is.
Some of the leading groups opposed to Janice Brown oppose her precisely because she will faithfully interpret the law rather than remaking it according to her own theory of justice. What they really object to is Justice Brown's refusal to revise legal guarantees according to some version of justice not present in a text.
I am proud of this body for allowing Justice Brown's nomination to finally, at long last, come up for a vote. My guess is that she will soon be sworn in as a Federal judge. That will be a great day not only for Janice Rogers Brown, who has had to endure these coordinated, calculated attacks on her character, but it will be a great day for this Nation as well, and it will bring a lot of joy to me personally.
In all of the hundreds of judges who now sit on the bench, Janice Rogers Brown is one of the finest people I have met and interviewed. So is Priscilla Owen. So is William Pryor, whom we will vote upon probably tomorrow. These are outstanding people, and so are the others who have been waiting for so long to just have the opportunity for a vote up or down on this floor.
I am tired of seeing these good people maligned with false facts, to begin with. I am tired of seeing them maligned with misinterpretations of the case law, primarily written by some of these outside groups that have real axes to grind and that are on the far left bank outside of the mainstream of the law itself.
I hope everybody will vote for Janice Rogers Brown. She will make a real difference on the bench. She is a good person. I interviewed her for more than 3 hours. I can say, I have seldom met a person of such capacity, decency, dignity, and honor as she and Priscilla Owen. It will be a great day to confirm her as a judge on the Circuit Court of Appeals for the District of Columbia.
I yield the floor.
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