Statement Of Senator Patrick Leahy
Regarding The Cloture Vote On The Nomination Of Janice Rogers Brown
November 14, 2003
Janice Rogers Brown: Consummate Judicial Activist
The opposition to Justice Brown for a lifetime
position on the D.C. Circuit is deep and wide and is based on her
record, both on and off the bench. As anyone who was watching
C-SPAN last night and the night before would know, the Republicans
are using the judicial nomination process in a manner that divides
rather than unites. As the San Francisco Chronicle wrote,
“Presidents typically shape the judiciary to reflect their own
views. But with Charles Pickering, Priscilla Owens, William Pryor,
Miguel Estrada and now Brown, Bush seems bent on stacking the bench
with ideologues.”
For this particular nominee, Janice Rogers
Brown, the White House political operatives and ideologically driven
selection staff reached out 3,000 miles to find a nominee who has
repeatedly received negative ratings, who has been criticized by her
Republican colleagues on the bench, and who has emerged from the
Senate Judiciary Committee on a party-line vote. As Justice Brown’s
home-state newspaper, the San Francisco Chronicle, wrote:
“naming Janice Rogers Brown to the U.S. Circuit Court of Appeals
for the D.C. Circuit, President Bush has again chosen a contrarian
with a judicial philosophy that lies well outside the bounds of the
mainstream.” Even the Washington Post, which has been very
sympathetic to this Administration and, in particular, to its
court-packing efforts on the D.C. Circuit, has written that Janice
Rogers Brown “is one of the most unapologetically ideological
nominees” in many years.
As the nominee herself conceded at the end of
her confirmation hearing, she was “treated with great courtesy” by
the Members of the Judiciary Committee. Thereafter, this was a
nomination rushed out of the Committee last week before the ink was
dry on nonresponsive answers to Senators’ questions, and during
Senate floor debate on another highly divisive judicial nominee,
before a full Committee debate could be held. The District of
Columbia Circuit is too important to the rights of all Americans to
be left to judges whose ideological bias would lead them to gut the
environmental protections, workplace protections, consumer
protections and other government regulations authorized by Congress
to protect all Americans.
In my statement at the outset of her
confirmation hearing less than one month ago, I urged partisans to
end the ugly game of contending that any criticism of the record of
a Bush judicial nominee had to be motivated by bigotry. I asked
that the right-wing tactic of smears and name calling subside and
that we not see the race card dealt from the shameful deck of
unfounded charges that stalwarts of this President’s most extreme
nominees have come to rely upon as they further inject partisanship
and politics into the appointment of federal judges. I noted that I
expected that those who ultimately decided to support Justice Brown,
even though they oppose affirmative action, would do so because they
believed she would be a fair federal judge. I suggested that those
who opposed her because they retained serious doubt about her
nomination and are concerned that she was selected on ideological
grounds, could oppose her nomination for principled reasons having
nothing to do with race. I urged that we focus on substance at the
hearing and in this process.
My plea went unheeded, so that, first, I must,
again, briefly respond to the partisan smears and name calling that
I have been hearing from the other side of the aisle. We have heard
the ridiculous charges that we are opposing Justice Brown because of
her gender or her race. My opposition to this nominee has nothing
to do with her race; it is has nothing to do with her gender. It is
about what kind of a lifetime appointment to the District of
Columbia Circuit I fear she would be.
If Democrats were making decisions based on the
gender of the nominee, would we have confirmed 33 judges nominated
by President Bush who are women, including seven to the Courts of
Appeal? Would we have worked so hard during the Clinton years to
increase gender diversity on the bench and fight for votes for
Bonnie Campbell, Elena Kagan and the scores of women nominees who
were blocked and delayed by anonymous Republican holds? Would we be
urging President Bush to work with us to find outstanding women
judges and lawyers to increase gender diversity on the federal
bench? Do our critics really contend that Senators Mikulski,
Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and
Stabenow are anti-woman, or that Senators Kennedy, Biden, Harkin,
Reid or any other Democratic Senators would discriminate against
women? This is a smokescreen, intended to obscure this nominee’s
stark record.
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 other African Americans nominated by President Bush to
the appellate courts? Would we have confirmed Lavenski Smith to the
8th Circuit? Would we have fought so hard for two
Congresses to confirm Roger Gregory and integrate the 4th
Circuit? Would we have worked with Senator Edwards to confirm
Allyson Duncan to the 4th Circuit? For that matter,
would we have been so outraged at the Republicans’ treatment of
Justice Ronnie White, Judge Beatty, Judge Wynn, Kathleen McCree
Lewis and so many outstanding African-Americans judges and lawyers
who the Republicans blocked from confirmation during the Clinton
years? These claims of racism are irresponsible and false. These
ploys are wrong, and they should stop.
Opposition From African-American Leaders
In fact, the list of the African-American
organizations and individuals who oppose Justice Rogers Brown’s
nomination is one of the most troubling indications that this is
another divisive, ideologically driven nomination. Are we to
believe that the 39 members of the Congressional Black Caucus are
racist? Members of the Congressional Black Caucus include the
respected congressional delegate from the District of Columbia
Eleanor Holmes Norton, the chair of the Congressional Black Caucus,
the Honorable Elijah Cummings, and such distinguished Americans as
Representatives Charles Rangel and John Conyers. In addition 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 both oppose this nomination.
The foremost national civil rights
organization, the Leadership Conference on Civil Rights opposes this
nomination. The women of Delta Sigma Theta oppose this nomination.
Dr. Dorothy Height, Dr. Joseph Lowery and Julian Bond have spoken
out against this nomination.
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, even though
she sought to moderate them when she appeared before the Judiciary
Committee.
I come to my decision after reviewing Justice
Brown’s record – her judicial opinions, her speeches and writings--
and considering her testimony and oral and written answers provided
to the Senate Judiciary Committee.
Now, Justice Brown’s supporters will say we are
opposing Justice Brown because her viewpoint is 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. 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 does not entitle
her to 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.
While Justice Brown’s approach to the law has
been inconsistent – she has taken whatever approach she needs to in
order to get to a result she desires – the results which she has
worked toward have been very consistent, throughout her public
record.
Some of Brown’s supporters, and in fact Justice
Brown herself, have tried to detract attention from the ideas she
has expressed in speeches – while she was a member of the bench –
claiming they are “just speeches.” Well, that is a hard distinction
to follow when Justice Brown’s comments to groups across the country
over the last 10 years repeated the same themes – in fact, sometimes
even the same words -- as she has written 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 on
this and understand his determination to oppose her nomination.
Justice Brown’s provocative speeches are disturbing in their own
right, and they are made more so by their reprise in her opinions.
Disregarding Precedent
Justice Brown now says that she will “follow
the law.” However, in a judicial dissent, she wrote, “We
cannot simply cloak ourselves in the doctrine of stare decisis.”
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.
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.
She has repeatedly and consistently advocated
turning back the clock 100 years to return to an era where worker
protection 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 simply 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 charged with 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, “where 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 disturbing: 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
spoke of being a uniter but has used his position to send judicial
nominations that divide the Senate and the country, and who spoke
with disdain of “judicial activism,” has nominated several of the
most consummate judicial activists ever chosen by any President.
None of the President’s nominees is more in the mold of judicial
activist than this nominee, Janice Rogers Brown.
I oppose giving Justice Brown this lifetime
promotion to the second highest court in our land 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 put her views above the law. We must
not enable her to bring her “jurisprudence of convenience” to one of
the most important courts in the Nation.
# # # # #
