Executive Session

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

NOMINATION OF JANICE R. BROWN TO BE UNITED STATES CIRCUIT JUDGE

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Mr. SCHUMER. Mr. President, I am here once again to debate whether Janice Rogers Brown deserves to be placed on the D.C. Court of Appeals. I have been very actively involved in this issue. I could not feel more strongly about a nominee to the bench. I could not feel more strongly about whether somebody belongs on the bench than Janice Rogers Brown.

We know for a fact that she is intelligent. We know she is articulate. We know she is accomplished and we know she is passionate. I respect every one of those qualities. She has a particular world view. She is not shy about it. It is apparent in her speeches, it is apparent in her opinions, and it is apparent from her testimony before the Judiciary Committee.

Were she to be elected to the Senate, I would relish the opportunity to debate the merits of the various laws she might introduce because if one looks at her writings, it is pretty clear. She well might introduce legislation to repeal Social Security. She well might introduce legislation to erase child labor laws. She well might introduce legislation to eliminate workplace safety laws. She well might introduce a bill to abolish zoning laws because in all of her speeches and opinions she has stood for these things.

Were she a legislator she could not only continue to fulminate, as she has, about the New Deal being a triumph of our socialist revolution, she could actually introduce legislation to overturn it. Were she a legislator, she could not only vilify, as she has, ``senior citizens who blithely cannibalize their grandchildren because they have a right to get free stuff,'' she could introduce legislation to eliminate benefits for the elderly.

Were she a legislator, she could not only say, as she has, that ``where government moves in, community retreats, and civil society disintegrates,'' she could actually introduce legislation to erase environmental laws, worker protection laws, minimum wage laws and other laws that have protected a wide swath of American people for decades, some even centuries.

Janice Rogers Brown is not a legislator, although sometimes she plays that role. She has been nominated to the bench, not elected to the Senate.

I cannot put it any better than conservative commentator Andrew Sullivan, who said that given her judicial activism, ``Janice Rogers Brown should run for office, not the courts.''

Now, that is a conservative columnist who is hitting the nail on the head. It is not her views he opposes, it is, r ather, the means by which she will attempt to impose those views on the American people, through the courts.

So while Janice Rogers Brown is smart, passionate, and articulate, Janice Rogers Brown is also hands down the worst nominee put forward by President Bush. She wants to make law, not interpret law. I thought that was what mainstream Democrats and mainstream Republicans alike wanted to avoid on the bench at all costs.

I have been asking a question on the floor for the last several days. How can moderates, or moderate conservatives, support Janice Rogers Brown when she does not meet any of the criteria they claim a judge must meet? Is she a strict constructionist? No. When it suits her. Is she a judicial activist? Yes, whenever she wants to find a result that meets her world view. Is she out of the mainstream of even conservative thinking? It seems pretty obvious she is.

I have yet to hear a good answer from my colleagues about why they would vote for her. It should not be her history. It is an admirable history, but that is not why we place people on the bench.

I have heard a lot of rhetoric, I have heard a lot of tortured explanations, I have heard a lot of selective citations, and I have heard a lot of smokescreens. But you know what I have not heard. Little of what I have heard is a real response to the substance of comments made by distinguished conservative thinkers, not statements by DICK DURBIN, Ted Kennedy, HARRY REID, or Chuck Schumer but by vocal con servatives, about Janice Rogers Brown.

My friend from Utah, Senator Hatch, said on this floor yesterday: Over the years, I have grown accustomed to talking points of Brown's liberal opposition. I think I have committed some of them to memory now. Some liberal elitists charge she is extreme. Some liberal elitists charge she is out of the mainstream. Some liberal elitists charge she is a radical conservative.

Liberal elitists? Let us take a look at the record of some of the liberal elitists the Senator from Utah so disdains.

Here is National Review writer, Ramesh Ponnuru, a very conservative writer. He says:

Republicans, and their conservative allies, have been willing to make ..... lame arguments to rescue even nominees whose jurisprudence is questionable. Janice Rogers Brown ..... has argued that there is properly an ``extra-constitutional dimension to constitutional law.'' She has said that judges should be willing to invoke a higher law than the Constitution.

That is from the National Review--let me repeat, the National Review. How many liberal elitists make their living writing for the National Review?

Here is more from the National Review: Janice Rogers Brown has said that judicial activism is not troubling per se. What matters is the world view of the judicial activist.

Or how about George Will? Is he a liberal elitist, I ask my friend from Utah? Is he out of the mainstream? Well, he thinks Janice Rogers Brown is. He says that Janice Rogers Brown is out of the mainstream of even conservative jurisprudence. Maybe someone can tell me when George Will became a liberal elitist. Here is what he said:

Janice Rogers Brown is out of that mainstream [of even conservative jurisprudence] ..... It is a fact. She has expressed admiration for the Supreme Court's pre-1937 hyper-activ ism in declaring unconstitutional many laws and regulations of the sort that now define the post-New Deal regulatory State.

Which mainstream was he talking about? George Will wrote that she was out of the mainstream of conservative jurisprudence.

How can somebody who calls the New Deal a socialist revolution be mainstream?

Or listen to the words of conservative writer Andrew Sullivan. He is such a Brown-bashing liberal elitist that he actually agrees with many of Justice Brown's views. He sa id there is a case to be made for ``the constitutional extremism of one of the President's favorite nominees, Janice Rogers Brown. Whatever else she is, she does not fit the description of a judge who simply applies the law. If she isn't a `judicial activist' I do not know who would be.''

Sullivan also stated: I might add, I am not unsympathetic to her views, but she should run for office, not for the courts.

It is not the liberal elitists but thinking conservatives, remembering the principles that used to guide conservatives in picking judges, who are pointing out Janice Rogers Brown's shortcomings. What we really have on the other side by some is opportunism. Abandon the view of what a judicial activist should be. Abandon the view of what a strict constructionist should be. We like her views. We are supporting her. There has not been anyone like Janice Rogers Brown to come before us in a very long time.

A conservative nominee, if the rhetoric from the President and the Republican leaders is to be believed, must be at least three things: a strict constructionist, judicially restrained, and mainstream.

We have not seen a more activist judge nominated than Janice Rogers Brown. We have not seen a judge who believes less in judicial restraint than Janice Rogers Brown. We have not seen a judge nominated more out of the mainstream than Janice Rogers Br own.

She is not a strict constructionist. When it came to proposition 209, she said she should ``look to the analytical and philosophical evolution of the interpretation and application of Title VII to develop the historical context behind'' proposition 209. That is not the legal analysis you would expect from a strict constructionist.

Is Janice Rogers Brown a dependable warrior against the scourge of conservatives everywhere--judicial activism? No, there has not been a nominee to the bench who is mo re a judicial activist than Janice Rogers Brown. Her own words demonstrate that she is quick to want to reverse precedent, the very definition of an activist judge.

Time and time again, she has jumped at the chance to reshape settled law. She said:

We cannot simply cloak ourselves in the doctrine of stare decisis.

That was in People v. Braverman in 1998. That is anathema to the whole way judges make law. Stare decisis, looking at previous cases, is the governing pri nciple; strict constructionists believe in it more than anyone else.

Again, I repeat this comment and I will be incredulous if people--particularly moderates or those who claim to want to uphold conservative judicial principles--can vote for her:

We cannot simply cloak ourselves in the doctrine of stare decisis.

She also said she was ``disinclined to perpetuate dubious law for no better reason than it exists,'' People v. Williams.

The comm ercial speech doctrine needs and deserves reconsideration, and this is as good a place as any to begin.

That was Kasky v. Nike, 2002.

Here is what the California State bar judicial nominees said, who gave her a ``not qualified'' rating when she was nominated to the supreme court in 1996: She was ``insensitive to established legal precedent.''

Again, the record shows the President has not nominated a judge more activist than Janice Rogers Brown. The President has not nominated a judge more out of the mainstream than Janice Rogers Brown. The President has not nominated a judge who has less respect for judicial restraint than Janice Rogers Brown.

Some of her views are so far out of the mainstream that for my colleague to compare Justice Ginsburg to Janice Rogers Brown is laughable. Let's remember how Justice Ginsburg was approved. Senator Hatch was called by Bill Clinton. Senator Hatch researched Justice Ginsburg and said she would be acceptable.

Has President Bush called anyon e and asked about Janice Rogers Brown? No. If I were President Bush, I would not want to because the answer they would get back would be clear: She does not belong on the bench.

Let me give another example. If you ask most lawyers to name the worst Supreme Court cases of the 20th century, Lochner would be near the top of every list. But Justice Brown thin ks it is correctly decided. That is a decision in 1905. Does that place her in the mainstream?

She described the New Deal as a triumph of America's socialist revolution. Does that place her in the mainstream?

On another occasion, she said:

Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much `free' stuff as the political system will permit them to extract.

Does that place her in the mainstream?

In another instance she wrote:

Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.

Does that place her in the mainstream?

Janice Rogers Brown is so far out of the mainstream she cannot even see the shoreline. Janice Rogers Brown, as George Will has correctly pointed out, may be many things, but she is not even in the mainstream of conservative jurisprudence.

Some of my colleagues on the other sid e have said, well, she is being unfairly attacked because of a few ``musings'' and ``extra judicial'' comments. At her hearing, Justice Brown herself made the point we should view her speeches separately from her judicial opinions. A little defensive, I would say.

Let's compare her speeches and her judicial opinions. In a speech to the Federalist Society, Justice Brown compared the end of the Lochner era to a socialist revolution. Her words: ``socialist revolution.''

She distances herself fro m that comparison by saying that it was part of a speech made to a young audience designed to ``stir the pot.'' I think that is a pretty radical comment for any sitting judge to make in any context, even if it is designed to stir debate.

But I am not satisfied it is just her personal view and has no bearing on her judicial opinions because time and time again what she says in these speeches is repeated in her opinions.

In Santa Monica Beach v. Superior Court she called the demise of the Lochner era the ``revolution of 1937.'' That is nearly identical to what she said in the Federalist Society speech.

Is this what she is going to do when she is on the court? Stir the pot?

It is not the only example. Here is another. She was asked about a speech given to the Institute of Justice where she said:

If we can invoke no ultimate limits on the powers of government, a democracy is inevitably transformed into a Kleptocracy--a license to steal, a warrant for oppression.

But in San Remo v. City and County of San Francisco, she said, regarding a planning ordinance:

Turning a democracy into a Kleptocracy does not enhance the stature of thieves; it only diminishes the legitimacy of government.

Her v iews as a private citizen, and her views as a judge seem to be, unfortunately, quite the same. It couldn't be more obvious. She cannot explain how virtually identical rhetoric that many would call extreme finds its way into both her speeches and her judicial opinions.

I will go back to my friend from Kentucky, Senator McConnell. He drew a comparison in support of Janice Rogers Brown. He said, like Janice Rogers Brown, Ruth Bader Ginsburg had made some provocative comments early in her career, but she was confirmed by her Senate.

I say to my colleague from Texas: Senator, I know Ruth Bader Ginsburg. Ruth Bader Ginsburg is a friend of mine. Janice Rogers Brown is no Ruth Bader Ginsburg.

Justice Ginsburg established such a record of moderation on the D.C. Circuit Court of Appeals that President Clinton was able to nominate her after getting advice from Senator Hatch that she was a mainstream liberal.

No one expects our President to nominate liberal nominees. They are going to be conse rvative. We have supported these conservatives up and down the line. Now the number is 209 out of 219 because, with the approval of Priscilla Owen, we have no longer blocked 10. When someone is out of the mainstream, that is when we oppose them.

In the end, what does the record show about Janice Rogers Brown? Not the rhetoric, not the smokescreens. Again, I challenge my colleagues to discuss her record, not dismiss it, saying it is just rhetorical. How can anyone justify a record such as this?

Here is what Janice Rogers Brown's record shows. She is not strict in her construction. She is not mainstream in her conservatism. She is not quiet about her activism.

So I am left with the same question: Why is Janice Rogers Brown touted as the model conservative judge when she is anything but conservative in her judicial approach? There are many Senators from across the aisle who would vote against such a candidate because her judicial philosophy could not be more out of sync with theirs. But I worry that there is enormous political pressure from a few way-off-the-top groups, the Senators from the other side.

Here is the chart that shows the pressure. These are the ``yes'' votes for court of appeals nominees and ``yes'' votes for cloture on them compared to the ``no'' votes. Of all my Republican colleagues, every vote tabulated, 2,811 times did our Republican colleagues vote yes; twice did they vote no. One of those was the Presiding Officer who voted against Priscilla Owen the other day. The other was S enator Lott who voted against Mr. Gregory on the Fourth Circuit a few years ago. Otherwise, none.

Senator Frist has spoken in the last few weeks about leader-led filibusters of judges--whatever that means. What I am concerned about is a leader-led rubberstamping of nominees, nominees who have not even convinced noted conservatives they belong on the bench. I continue to believe Judge Brown was one of the worst picks this President has made to our appellate courts. That is based on her record, not on her race or her gender or her background.

I wish my friends across the aisle would look at that record. If my colleagues on the other side ask themselves three simple questions--is the nominee a strict constructionist? Is the nominee a judicial activist? Is the nominee a mainstream conservative?--they would be forced to vote against her.

I could not support Judge Brown's nomination the first time; I cannot support the nomination now. I urge my colleagues, especially my moderate colleagues from the other side of the aisle, to vote against her also.

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