Closing Statement Of Senator Patrick Leahy
Ranking Member, Judiciary Committee
On The Nomination Of Janice Rogers Brown
To The United States Court Of Appeals For The D.C. Circuit
June 8, 2005
Over the course of the Senate’s
consideration of the nomination of
Janice Rogers Brown to be a judge on
the United States Court of Appeals for the D.C. Circuit, I have
publicly explained why I cannot support it. My opposition is based
on Justice Brown’s extensive record, which raises unavoidable
concerns about her pursuit from the bench of her extremist judicial
philosophy and therefore about her fitness for this lifetime
appointment. Justice Brown failed to gain the consent of the Senate
last year. As I explained in April when voting against her
confirmation in the Senate Judiciary Committee, not only has Justice
Brown failed to resolve any of my concerns since her hearing in late
2003, but Justice Brown’s opinions issued since that time reinforce
and deepen the troubling patterns in her record.
Through bipartisan action, the Senate
has deterred the misguided bid by some on the other side of the
aisle for one-party rule by means of their nuclear option. Thanks
to the hard work of a bipartisan group of 14 Senators, we have, for
now, preserved the system of checks and balances, designed by the
Founders, that are so integral to the function of the Senate and to
its role. As we turn now to the nomination of
Janice Rogers Brown, I urge all
Senators to take seriously the Senate’s constitutionally mandated
role as a partner with the Executive Branch in determining who will
serve lifetime appointments in the federal judiciary. I urge all
Senators, Republicans and Democrats alike, to take these matters
seriously and vote their consciences. Republican Senators and
Democratic Senators alike will need to evaluate, with clear eyes,
the fitness of Justice Brown for this lifetime judicial appointment
before casting a difficult vote on this problematic and highly
controversial nominee. My opposition to Justice Brown’s nomination
is based, as it has always been, on her record.
Justice Brown is a consummate judicial
activist whose record shows that she favors rolling back the clock
100 years on workers’ and consumers’ rights and taking the side of
corporations against average Americans. Her record shows she does
not believe in clean air and clean water protections for Americans
and their communities, she does not believe in laws providing
affordable housing, and that she would, if she could, wipe out
zoning laws that protect homeowners by keeping porn shops and
factories from moving in next door. Her record shows she takes an
extremely narrow view of protections against sexual harassment, race
discrimination, employment discrimination, and, most of all, age
discrimination. In fact, Justice Brown has a hostility toward such
programs as Social Security that is so great that she has argued
that Social Security is unconstitutional, and has said that
A[t]oday's
senior citizens blithely cannibalize their grandchildren….”
We have heard a great deal from
Justice Brown’s supporters about her life accomplishments. It is an
impressive story, and Justice Brown’s accomplishments in the face of
so much adversity are commendable. But we cannot base our votes on
the confirmation of a lifetime appointee to a federal court on
biography alone. If this were a vote on a Senate resolution
commemorating her life story, I am sure the entire Senate would
gladly support it. But instead, this is a vote about the lives of
multiple millions of other Americans whose lives would be affected
by this nominee’s ideological penchants.
I hope that, as we debate Justice
Brown’s nomination, we will not -- as we did two and a half years
ago -- hear the whispering of unfounded smears against those who
oppose this nomination. I have spoken recently about my
disappointment in the White House and Republican partisans for
fanning the flames of bigotry and refusing to tamp down unfounded
claims that amount to religious McCarthyism. I urged the White
House, Republican leaders and moderate Republicans to join me in
condemning the injection of such smears into the consideration of
nominations. The failure to do so risks subverting this
constitutional process and the independence of our federal courts.
The unfounded charges of bigotry are
belied by the numbers of major African-American leaders, newspapers
and law professors across the country, who also oppose this
nomination based on Justice Brown’s record of extremism. The list
of the African-American organizations and individuals who oppose
Justice Brown’s nomination is a clear indication that this is
another divisive, ideologically driven nomination. The 39 members
of the Congressional Black Caucus oppose Justice Brown’s nomination,
including the respected congressional delegate from the
District of Columbia, Eleanor
Holmes Norton, and Representatives Charles Rangel, Elijah Cummings
and John Conyers, and the chair of the Congressional Black Caucus,
Representative Mel Watt. 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, historic leaders in the
fight for equal rights, have spoken out against this nomination. I
ask that letters detailing this opposition, as well as a list of
other such letters of opposition to the Brown nomination, be entered
in the Record.
The baseless smears that we have heard
are irresponsible, harmful and demonstrably false. Democrats have
voted to confirm each of the other 15
African-American judges nominated by President Bush and brought to
the Senate for a vote, including all four of the other
African-Americans confirmed to appellate courts. Democrats have
fought hard to integrate the Fourth Circuit, working with Senator
Warner through the confirmation of Judge Roger Gregory, and with
Senator Edwards on the confirmation of Judge Allyson Duncan. And it
was Democratic members who were outraged at the Republicans’
party-line vote against Justice Ronnie White, and Republican pocket
filibusters of Judge Beatty, Judge Wynn, Kathleen McCree Lewis and
so many outstanding African-Americans judges and lawyers blocked
during the Clinton years.
Let us not see that shameful card
dealt from the deck of unfounded charges that some stalwarts of this
President’s most extreme nominees have come more and more to rely
upon. Let us stick to the merits. As so many have explained in
such detail over the last few days, those who oppose her do so
because they retain serious doubts about her nomination and see her
as an ideologue or a judicial activist.
Opposition To
Justice Brown
The basis for my opposition is the
extremism of Justice Brown’s record. That, too, is the reason both
of her home-state Senators oppose her. As we have heard in the
Judiciary Committee and here on the Senate Floor, both Senators from
California, who arguable
know this nominee and her record better than most, strongly oppose
Justice Brown’s confirmation. There was a time in the Senate, not
that long ago, when opposition by a nominee’s home-state Senators,
no matter how late in the day it was announced, was enough to halt a
nomination. I remember how that tradition was adhered to
scrupulously by Republican Senators five-and-a-half years ago when
the Senate voted on the confirmation of Ronnie White to be a judge
in Missouri. Even though one of his home-state Senators had warmly
endorsed him at his hearing, an eleventh hour reversal by that
Senator led to every Republican Senator voting against Justice
White. Thirty-six of those Senators are still serving in the Senate
today, and if the approval of a nominee’s home-state Senator is as
important today as it was in 1999, then the Senate will reject this
nomination. The former Chairman of the Judiciary Committee came to
the Senate after the defeat of Justice White’s nomination to explain
explicitly the importance of home-state opposition in that
unprecedented party-line vote.
As I have detailed, Justice Brown’s
home-state Senators are not the only ones who oppose her. Her
views, both in speeches and in opinions issued from the bench, are
so extreme that more than 200 law school professors from around the
country wrote to the Committee, prior to her hearing, expressing
their opposition.
The Senate is faced with several
extreme nominees who have clear records of trying to rewrite the law
from the bench. In Justice Brown’s hearing before the Committee,
then-Chairman Hatch began the hearing by referring to President
Bush’s description of his judicial nomination standard: "Every
judge I appoint will be a person who clearly understands the role of
the judge is to interpret the law, not to legislate from the bench.
My judicial nominees will know the difference." Regretfully,
Justice Brown, a practitioner of a results-oriented brand of
judicial activism so radical she is frequently the lone dissenter
from a 6-1 Republican majority court, represents the antithesis of
the President’s purported standard. In re-nominating Justice Brown
after she failed to gain consent of the Senate, the President has,
again, selected a judicial nominee who deeply divides the American
people and the Senate.
After Justice Brown’s record was
examined in the hearing on her nomination, editorial pages across
the country came to the same conclusion. 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 found that Justice Brown is “one of the most
unapologetically ideological nominees of either party in many
years.” And The New York Times
concluded that, based on Justice Brown’s record as a judge, she has
“let ideology be her guide in deciding cases.” I would ask that
these editorials expressing opposition, as well as a list of all of
the editorials opposing the Brown nomination be entered in the
Record.
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.
My opposition is not about whether
Justice Brown would vote like me if she were a member of the United
States Senate. I have voted to confirm probably hundreds of
nominees with whom I differ. Nor is this 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 that is out of the mainstream. Her hostility
both to Supreme Court precedent and to the intent of the legislature
does not entitle her to a lifetime appointment to this highly
important appellate court.
‘Jurisprudence
Of Convenience’
As I have said -- and as remains true
today -- Janice Rogers
Brown’s approach to the law can be best described as a
“jurisprudence of convenience.” Justice Brown has proven herself to
be a results-oriented, agenda-driven judge whose respect for
precedent and rules of judicial interpretation change and shift
depending on the subject matter before her and the results she wants
to reach.
Hers is a record of sharp-elbowed
ideological activism.
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.
At her hearing, Justice Brown
attempted to separate her speeches from her role as a judge.
However, on issue after issue -- the protection of the elderly,
workers and consumers; equal protection; the takings clause; privacy
rights; free speech; civil liberties; remedies; the use of
peremptory challenges, and many more — Justice Brown has inserted
her radical views into her judicial opinions time and time again.
In fact, Justice Brown’s comments to groups across the country over
the last 10 years repeated the same themes – sometimes even the same
words -- as she has written in her bench 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
During her hearing, Justice Brown told
the Committee that she will “follow the law.” However, her opinions
from the bench speak much louder than her words to the Committee.
In such a judicial dissent she wrote, “We cannot simply cloak
ourselves in the doctrine of
stare decisis.”
Justice Brown’s disregard for
precedent in her opinions in order to expand the rights of
corporations and wealthy property owners, at the expense of workers
and individuals who have been the victims of discrimination, stands
among the clearest illustrations of Justice Brown’s results-oriented
jurisprudence. In several dissents, Justice Brown called for
overturning an exception to at-will employment that has been long
recognized by the California Supreme Court, and 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
shown no deference, presses her own agenda and advocates for
judicial activism.
One stark example comes in an opinion
she wrote where 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 highly troubling. She repeatedly
and consistently has 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, fair labor standards and child labor laws,
by calling it “fundamentally incompatible with the vision that
undergirded this country’s founding.” Justice Brown’s antipathy to
the New Deal and Social Security is so strong, that she stated, in
Santa Monica Beach v. Superior Court of L.A. County, 19 Cal.
4th 952 (1999), that “1937 [the year in which much of
President Roosevelt’s New Deal legislation took effect]...marks the
triumph of our own socialist revolution..."
Justice Brown’s hostility toward
Social Security is part of larger hostility toward the needs and the
rights of senior citizens.
In a 2000 speech to a right-wing group, Justice Brown claimed that,
AToday'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.@
Justice Brown has injected this hostility into her opinions. In
Stevenson v. Superior Court of Los Angeles County, 16 Cal. 4th
880 (1997), Justice Brown was the only member of the court to find
that age discrimination victims cannot sue under common law because,
as she stated in that case, she does not believe age discrimination
stigmatizes senior citizens.
And she has repeatedly opposed
protections against discrimination of individuals – in their jobs
and in their homes. Justice Brown’s claims that her words do not
mean what they say are simply unconvincing.
Another troubling aspect of Justice
Brown’s nomination is the court for which she has been 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 standards, 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’s role in upholding protections
against the abuse of the powerless, those who struggle in our
society, and our environment. 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 has demonstrated
her activism 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.
Recent Opinions
Continue Pattern Of Troubling Jurisprudence
Since the Senate last considered
Justice Brown’s nomination, her troubling jurisprudence has not
changed. As demonstrated by her recent opinions, Justice Brown has
continued to be a results-oriented judge with little consistency in
judicial interpretation who gives great deference to her own agenda
rather than to precedent, to the intent of the legislature, or to
the Constitution.
In the last 18 months, since Justice
Brown appeared before the Judiciary Committee:
She has expressly ignored Supreme
Court precedent in seeking judicial repeal of a state
anti-discrimination statute giving drug benefits to women, despite
her own finding that the statute met the Supreme Court’s test.
She has denigrated the constitutional
right to privacy and bodily integrity as mere “sympathy” by the
majority.
She has shown deference to the intent
of employers rather than to precedent, to the detriment of the
retirement benefits of long-term workers.
She has sought to replace the
legislature’s judgment regarding the value of expert testimony
related to “Battered Women’s Syndrome” with her own judgment that
domestic violence is “simply a label, now codified,” which would
make it more difficult to prosecute domestic violence.
She has sought to overturn a long line
of precedent that African-American women are considered a
“cognizable group” for the purpose of assessing where a prosecuting
attorney has violated equal protection in the use of peremptory
challenges.
She has demonstrated her hostility to
common law by overturning
California’s century-old second-degree
felony murder rule.
She has sought to make it more
difficult for a worker to pursue a sexual harassment claim against
her employer by strictly enforcing release language in a separate
worker’s compensation settlement, even though this result would,
according to the majority, “create a trap for the unwary worker.”
Justice Brown’s record since her
hearing — and since she was last rejected by the Senate — has only
brought into sharper focus the radicalism of her opinions and only
deepened my concern about her extremism.
Indeed, in the last several days the
United States Supreme Court decision in a regulatory takings case
demonstrates anew just how far out of the mainstream she is. In
this case, a strong majority of the Supreme Court rejected the
approach that Justice Brown has endorsed in her efforts to expand
the takings clause of the Constitution to thwart local government
regulation for health, safety, controlled growth and economic
development.
Janice Rogers
Brown’s Vision
America
would look like and be a very different place if Justice Brown had
her way. She would do away with many of the core protections
Americans count on to keep their jobs and communities safe and their
retirements secure. There would be few if any laws protecting
Americans from race discrimination, employment discrimination or age
discrimination, or protecting a woman’s right to choose. Corporate
speech would be protected, but not the First Amendment rights of
employees to criticize an employer’s practices. Corporations would
be protected against suits for stock fraud and for illegally selling
cigarettes to minors, but
private employers would
not be required to provide contraceptive drug benefits for women.
Justice Brown’s
America would mean a return to the
widely and justifiably discredited Lochner era, an era named after a
Supreme Court decision so widely-derided that even Robert Bork
called its judicial activism an
@abomination.@
A return to the Lochner era would mean a return to a time without
protections against child labor. It would mean a return to a time
without zoning protections to prevent porn shops and factories and
rat-infested slaughterhouses from moving in next door to Americans’
homes; a time without consumer protection and laws providing for
affordable housing; a time without worker safety laws and without
fair labor standards; and a time without laws protecting clean air
and clean water. And it would mean a return to a time without
Social Security.
Conclusion
It is no small irony that this
President, who spoke of being a uniter, has used his position to
re-nominate Justice Brown and others after they failed to gain
consent of the Senate. These provocative nominees have divided the
Senate and the American people and brought the Senate to the edge of
a “nuclear winter.” His divisiveness has continued, despite the
confirmation of 209 out of his 218 judicial nominees. It is no
small irony that this President, 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 a judicial activist than this
nominee.
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 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 and above the interests of working men and women
and families across the Nation. We should not enable her to bring
her “jurisprudence of convenience” to one of the most important
federal courts in the Nation.
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