Statement of Senator Patrick Leahy
On the Nomination Of Janice Rogers Brown
To Be A Judge On The United States Court Of Appeals For The D.C. Circuit
Executive Business Meeting Of The Senate Judiciary Committee
November 6, 2003

Today we will be considering the nomination of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit, the most powerful appellate court in the Nation below the Supreme Court of the United States.

At a news conference earlier this week, before any Senator had expressed any definitive view on Justice Brown’s nomination, Republican Senators denounced Democratic Senators for obstructing Justice Brown’s nomination.  To the contrary, we have cooperated in expediting consideration of this nomination, even though this nomination was prematurely listed on the Committee’s agenda, before her answers to the Committee’s written questions had even been received by the Committee.  Furthermore, several Republican Senators expressed sharp criticism of Democratic Senators for the way they claimed we had treated Justice Brown.  One Senator went so far as to accuse us of treating her “like dirt.”  I would like to point out that Justice Brown herself, at the end of her confirmation hearing, said she had been “treated with great courtesy” by the members of this Committee — and she was.

It is true that the Democratic Senators took the time to actually review Janice Rogers Brown’s record – both on and off the bench.  It is true that we came to her hearing with specific questions about that record.  This means we are doing our job.  This is what the Constitution means about Presidents needing the Senate’s consent to those they have nominated to our courts.  This is what confirmation hearings are for.  Janice Rogers Brown’s hearing provided her with a fair opportunity to respond to concerns that her record has raised.  And it provided many with the information needed to decide whether Janice Rogers Brown should be given a lifetime position on the D.C. Circuit. 

At least week’s hearing, Senator Hatch recognized Berkeley law professor Stephen Barnett’s endorsement of Justice Brown’s nomination.  But I would like to read a portion of a letter Professor Barnett sent to the Committee the day after Justice Brown’s hearing.  He concluded, “(h)aving read the speeches of Justice Brown that have now been disclosed, and having watched her testimony before the Committee on October 22, I no longer support the nomination.”  By opposing her nomination, Professor Barnett has joined more than 200 other law school professors who wrote to the Committee expressing their opposition.  I ask that these two letters and other letters of opposition be included in the record.

A Divisive Nomination

Editorial pages across the country came to similar determinations after Janice Rogers Brown’s hearing.  Justice Brown’s home-state newspaper, the Los Angeles Times, concluded she is a “bad fit for a key court,” after finding that “in opinions and speeches, Brown has articulated disdainful views of the Constitution and government that are so strong and so far from the mainstream as to raise questions about whether they would control her decisions.”  The Detroit Free Press concluded, “Brown has all but hung a banner above her head declaring herself a foe to privacy rights, civil rights, legal precedent and even colleagues who don’t share her extremist leanings.”  The Atlanta Journal and Constitution concluded that Janice Rogers Brown is “not qualified for the U.S. Court of Appeals for the D.C. Circuit.”  The Washington Post concluded Justice Brown is “one of the most unapologetically ideological nominees of either party in many years.” And the New York Times concluded, based on her record as a judge that she has “let ideology be her guide in deciding cases.”  I will submit a selection of the editorials and columns from newspapers across the nation in opposition to the Brown nomination to be made part of this record.

Attempts To Stifle Debate

Before I get into the specific reasons for why I will not support Janice Rogers Brown’s nomination today, I want to reiterate what I tried to make clear in my opening statement at the hearing.  At the hearing, I expressed the hope that this debate would focus solely on Justice Brown’s qualifications and record.  I warned that some partisans even then seemed intent on stifling debate and on trying to intimidate any opposition to Justice Brown’s nomination by inferring racial motives in those who would oppose this nomination.  Unfortunately, my prediction was right.  The political groups of the far right that have unleashed their tactics of name-calling and smears before -- in attempts to rescue the most controversial of this Administration’s divisive nominees -- once again have tried to export their venom to the Senate.  The confirmation process has been degraded by these false and inflammatory charges.  My opposition to this nominee is not about her race.  It is not about her gender.  If Democrats were making decisions based on the race of the nominee, why would we have voted to confirm 13 African-American judges nominated by President Bush, including all four of the African Americans nominated by President Bush for the appellate courts who have been reported to the full Senate?  If Democrats were making decisions based on the gender of the nominee, why would we have voted to confirm 33 judges nominated by President Bush who are women, including seven to the Courts of Appeal?  The public record of this Committee and of the Senate shows that such claims are partisan bunk.  They are a smokescreen, intended to obscure this nominee’s stark record, and intended to intimidate any who would dare question that record.

Opposition From African-American Leaders

Furthermore, the list is long of the many African-American organizations and individuals who oppose Justice Rogers Brown’s nomination.  Are these groups and leaders – who have worked hard to promote diversity and opportunity in all arenas – opposing Janice Rogers Brown’s lifetime appointment to the bench because of her race?  Are the 39 members of the Congressional Black Caucus racist?  What about the African-American members of the nation’s oldest and largest association of predominantly African-American lawyers and judges, the National Bar Association, and its state counterpart, the California Association of Black Lawyers?  And what about the members of the foremost national civil rights organization, the Leadership Conference on Civil Rights, or the women of Delta Sigma Theta, or Dr. Dorothy Height, Dr. Joseph Lowery, and Julian Bond?  These claims of racism are irresponsible and false.  These ploys are wrong, and they should stop.  

An Extreme Agenda, An Extreme Record

Justice Brown has a lengthy record, of opinions, of speeches and of writings.  She has very strong opinions, and there is little mystery about her views.  After carefully reviewing Justice Brown’s record – reading her opinions from the bench, reviewing her speeches and writings, and considering her testimony and oral and written answers provided to this Committee, I will vote against Janice Rogers Brown’s nomination to the D.C. Circuit Court of Appeals.

This is not about her position on choice.  This is not about one dissent or one speech.  This is about Justice Brown’s approach to the law – an approach which she has consistently used to promote her own ideological agenda, an extreme agenda that is out of the mainstream.  Her approach makes her unqualified for a lifetime appointment to this very important appellate court.

‘Jurisprudence Of Convenience’

Janice Rogers Brown’s approach to the law can be best described as a “jurisprudence of convenience.”  What do I mean by that?  Justice Brown has proven herself to be a results-oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change depending on the subject matter before her and the results she wants to reach. 

Justice Brown, at her hearing, began by trying to separate what she has said in speeches from her actions as a judge.  But even Justice Brown herself recognized:  “I willingly acknowledge that a judge is not some kind of automaton or computer.”  Justice Brown’s comments to groups across the country over a period of 10 years repeated the same themes – in fact, sometimes even the same words -- as she wrote in her opinions.  In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown wrote of the demise of the Lochner era, claiming “the `revolution of 1937’ ended the era of economic substantive due process but it did not dampen the court’s penchant for rewriting the Constitution.”   Similarly, in a speech to the Federalist Society, she said of the year 1937 – it “marks the triumph of our own socialist revolution.”

In San Remo Hotel v City and County of San Francisco, Justice Brown wrote, “(t)urning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”  Similarly, two years earlier, she told an audience at the Institute for Justice, “If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy – a license to steal, a warrant for oppression.”

As Berkeley Law School Professor Stephen Barnett pointed out about Justice Brown’s “apparent claim that these are `just speeches’ that exist in an entirely different world from her judicial opinions,” “that defense not only is implausible but trivializes the judicial role.”  I agree with Professor Barnett.  Justice Brown’s provocative speeches are disturbing in their own right, and they are made more so by their reprise in her opinions.

One of the examples of Justice Brown’s results-oriented jurisprudence can be seen in the way she has disregarded precedent in her opinions in order to expand the rights of corporations and property owners, at the expense of workers and individuals who have been the victims of discrimination.   In several dissents, Justice Brown called for overturning an exception to at-will employment, long recognized by the California Supreme Court, that was created to protect workers from discrimination.  She has repeatedly argued for overturning precedent to provide more leeway for corporations against attempts to stop the sale of cigarettes to minors, prevent consumer fraud, and prevent the exclusion of women and homosexuals.

Justice Brown has also been inconsistent in the application of rules of judicial interpretation – again depending on the result that she wants to reach in order to fulfill her extremist ideological agenda.  There are numerous examples of this and I will provide just a few.

In Katzberg v. Regents of University of California, in order to limit tort remedies, Justice Brown disregarded federal precedent stating that “defaulting to the high court fundamentally disserves the independent force an effect of our Constitution.”  But in American Academy of Pediatricians v. Lungren, in order to limit the right to privacy, she wrote, “where, as here, a state constitutional protection was modeled on a federal constitutional right, we should be extremely reticent to disregard U.S. Supreme Court precedent delineating the scope and contours of that right.” 

In Galland v. City of Clovis, when the court limited damages for a property owner who suffered economic harm, Justice Brown wrote, “I think the majority is wrong as a legal matter to limit damages as it does.  The exacting constitutional standard for establishing a due process violation should not serve to restrict damages once the high threshold is met.  Rather, once the threshold is met, damages should be sufficient to compensate the plaintiff fully for the constitutional wrong, as well as to create the appropriate disincentive for the state.”  But in Lane v. Hughes Aircraft Company, when it was a worker who suffered harm, she took the position that punitive damages against the employer should be capped, writing, “I would hold that, in the case of large awards, punitive damages should rarely exceed compensatory damages by more than a factor of three, and then only in the most egregious circumstances clearly evident in the record.”

When the rights of criminal defendants were at stake, Brown had one view of juries, writing in People v. Guiuan, “I do not share the majority’s dim view of jurors.  Rather, I would presume, as we do in virtually every other context, that jurors are `intelligent, capable of understanding instructions and applying them to the facts of the case.’”  But she had a different position of juries when they were empowered to impose economic damages on businesses found guilty of employment discrimination in Lane v. Hughes Aircraft Company, writing, “when setting punitive damages, a jury does not have the perspective, and the resulting sense of proportionality, that a court has after observing many trials.” 

In Osborg v. City of Stockton, Justice Brown criticized a law restricting the rights of property owners and wrote the “role of public authorities must be enhanced without placing too great a burden on liberty.”  However, she authored the opinion in People ex. rel. Gallo v. Acuna, upholding a law restricting the rights of criminal suspects and wrote, “the security and protection of the community is the bedrock on which the superstructure of individual liberty rests. . . liberty unrestrained is an invitation to anarchy.”

A Consummate Judicial Activist

These legal trends – her disregard for precedent, her inconsistency in judicial interpretation, and her tendency to inject her personal opinions into her judicial opinions – lead to no other conclusion but that Janice Rogers Brown is -- in the true sense of the words – a judicial activist.  When it is needed to reach a conclusion that meets her own ideological beliefs, Justice Brown stresses the need for deference to the legislature and the electorate.  However, when the laws –as passed by legislators and voters – are different than laws she believes are necessary, she has advocated for judicial activism. 

One stark example springs to mind:  In order to support her view that judges should be able to limit damages in employment discrimination cases, she concluded that “creativity” was a permissible judicial practice and that all judges “make law.” 

Justice Brown’s approach to the law has led to many opinions which are very disturbing.  Her supporters will say we are opposing Justice Brown because her viewpoint is merely different than ours on social issues.  But my opposition is not about whether Justice Brown would vote like me if she were a member of the United States Senate on issues of importance.  Justice Brown has repeatedly and consistently advocated turning back the clock 100 years to return to an era where worker protections laws were found unconstitutional.  She has attacked the New Deal, an era which created Social Security and labor standards, by saying it “inoculated the federal Constitution with a kind of underground collectivist mentality.”  And she has repeatedly opposed protections against discrimination of individuals – in their jobs and in their homes.  Justice Brown’s recent claims that her words do not mean what they say are entirely unconvincing.

There is one more aspect of Justice Brown’s nomination which is extremely disturbing. That has to do with the court for which she was nominated.  She is being considered for a position on the premier administrative law court in the nation -- a court that is responsible for overseeing the actions of federal agencies that are responsible for worker protections, environmental protections, consumer safeguards, and civil rights protections.  I am concerned about her ability to be a fair arbitrator on this court.  Justice  Brown has made no secret of her disdain for government.  She has said, “(w)here government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.”  How can someone who believes it is not the “job of government to take care of” the American people be entrusted to make fair and neutral decisions when faced with the responsibility of interpreting the powers of the federal government and the breadth of regulatory statutes?  Justice Brown responded to this question at her hearing by calling on us to review her record as a judge to see that she does not “hate Government.”  Well, I did review her record.  And, what I found was just the opposite:  She has used her position on and off the bench to argue for the dismantling of government from the inside out.

Conclusion

It is no small irony that this President, who speaks often about his disdain for what he calls “judicial activists,” has nominated several of the most consummate judicial activists ever chosen by any President.  In making these controversial choices he has divided the American people and he has divided the Senate.  None of the President’s nominees is more in the mold of judicial activist than this nominee, Janice Rogers Brown.

I am voting against Justice Brown’s nomination today because the American people deserve judges who will interpret the law fairly and objectively.  Janice Rogers Brown is a confirmed and committed judicial activist who has a consistent record of using her position as a member of the court to advocate for her personal beliefs.  We must not enable her to bring her “jurisprudence of convenience” to one of the most important courts in the nation.

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