Nomination of Justice Janice Rogers Brown - Complete Text
Wednesday, June 8, 2005
Nomination of Justice Janice Rogers Brown Remarks
I rise today to
speak on the nomination of California Justice Janice Rogers Brown
to the DC Circuit Court of Appeals. Now, let me begin by saying
that the last thing I would like to be spending my time on right
now is talking about judges.
I am sure that
is true for many in this Chamber. I know that I certainly do not
hear about filibusters and judges when I go back to Illinois and
hold townhall meetings with people across the State. What I hear
about are veterans who are concerned about their disability payments
and families who are talking about how high gas prices were or how
difficult it is to pay for college. And so I think this argument
we have been having over the last several weeks about judicial nominations
has been an enormous distraction from some of the work that is most
important to the American people.
Moreover, I am
not so naive as to think that speaking to an empty Chamber for the
benefit of C-SPAN is somehow going to change people's minds or people's
votes. I recognize that most of my colleagues, on both sides of
the aisle, are fairly locked into their positions. I do not expect
the President to appoint many judges of my liking. One of the things
I have told some of my colleagues on this side of the aisle is that
there is only one sure way to make sure Democrats are able to block
what they consider to be bad judges, and that is to win elections.
And yet I feel
compelled to rise on this issue to express, in the strongest terms,
my opposition to the nomination of Janice Rogers Brown to the DC
I think it is
important for the American people to know just what it is we are
getting. After the Supreme Court, as my esteemed colleague from
Wisconsin just stated, the DC Circuit is widely viewed as the second
highest court in the land. Three of our current Supreme Court Justices
came directly from this court. Under its jurisdiction fall laws
relating to all sorts of Federal agencies and regulations. This
is a special court. It has jurisdiction that other appeals courts
do not have. The judges on this court are entrusted with the power
to make decisions affecting the health of the environment, the amount
of money we allow in politics, the right of workers to bargain for
fair wages and find freedom from discrimination, and the Social
Security that our seniors will receive. It is because of this power
that we deserve to give the American people a qualified judicial
nominee to serve on the DC Circuit.
Now, the test
for a qualified judicial nominee is not simply whether they are
intelligent. Some of us who attended law school or are in business
know there are a lot of real smart people out there whom you would
not put in charge of stuff. The test of whether a judge is qualified
to be a judge is not their intelligence. It is their judgment.
The test of a
qualified judicial nominee is also not whether that person has their
own political views. Every jurist surely does. The test is whether
he or she can effectively subordinate their views in order to decide
each case on the facts and the merits alone. That is what keeps
our judiciary independent in America. That is what our Founders
as has been stated repeatedly on this floor, in almost every legal
decision that she has made and every political speech that she has
given, Justice Brown has shown she is not simply a judge with very
strong political views, she is a political activist who happens
to be a judge. It is a pretty easy observation to make when you
look at her judicial decisions. While some judges tend to favor
an activist interpretation of the law and others tend to believe
in a restrained interpretation of the law providing great deference
to the legislature, Justice Brown tends to favor whatever interpretation
leads her to the very same ideological conclusions every single
So when it comes
to laws protecting a woman's right to choose or a worker's right
to organize, she will claim that the laws that the legislature passed
should be interpreted narrowly. Yet when it comes to laws protecting
corporations and private property, she has decided that those laws
should be interpreted broadly. When the rights of the vulnerable
are at stake, then she believes the majority has the right to do
whatever it wants. When the minority happens to be the minority
of people who have privilege and wealth, then suddenly she is countermajoritarian
and thinks it is very important to constrain the will of the majority.
Let me just give
you a couple examples. In a case reviewing California's parental
notification law, Justice Brown criticized the California Supreme
Court decision overturning that law, saying that the court should
have remained "tentative, recognizing the primacy of legislative
prerogatives." She has also repeatedly tried to overturn the
fact that California law recognizes Tameny claims, a line of cases
that establishes that an employer does not have an unfettered right
to fire an employee, but that the right has limits according to
fundamental public policy. She says judicial restraint is critical.
She claims that public policy is "a function first and foremost
reserved to the legislature."
So on these cases
dealing with a woman's right to choose, worker protections, punitive
damages, or discrimination, she wants the judge to stay out of the
legislative decisionmaking process. But Justice Brown doesn't always
want the courts to exercise restraint and defer to the legislature.
When Justice Brown wanted to limit the ability of juries to punish
companies that engage in severe discrimination, a fellow judge on
the California Supreme Court accused her of engaging in "judicial
law making." Instead of denying it, Justice Brown defended
her judicial activism. She called it creativity. This is what she
said: "All judges make law. It is arrogance, carelessness and
a lack of candor that constitute impermissible judicial practice,
has also gone out of her way to use her position in the courts to
advocate for increased protections for property owners. In a case
about a developer that wanted to break a city rent control law,
Justice Brown dismissed the fact that a majority of the city's voters
had approved of that law and thought that the case should be an
exception to the philosophy of narrow judicial review. Justice Brown
believed that this case was one in which "some degree of judicial
scrutiny... is appropriate." Which is it, Justice Brown? In
some cases you think we should defer to the legislature and in some
cases, apparently, you think it is appropriate for judges to make
law. What seems to distinguish these two types of cases is who the
plaintiff is, who the claimant is.
If the claimant
is powerful -- if they are a property owner, for example -- then
she is willing to use any tool in her judicial arsenal to make sure
the outcome is one they like. If it is a worker or a minority claiming
discrimination, then she is nowhere to be found.
ultimately have to be based on evidence and on fact. They have to
be based on precedent and on law. When you bend and twist all of
these to cramp them into a conclusion you have already made -- a
conclusion that is based on your own personal ideology -- you do
a disservice to the ideal of an independent judiciary and to the
American people who count on an independent judiciary.
Because of this
tendency, and because of her record, it seems as if Justice Brown's
mission is not blind justice but political activism. The only thing
that seems to be consistent about her overarching judicial philosophy
in an unyielding belief in an unfettered free market and a willingness
to consistently side with the powerful over the powerless.
Let's look at
some of her speeches outside of the courtroom. In speech after speech,
she touts herself as a true conservative who believes that safety
nets -- such as Social Security, unemployment insurance, and health
care -- have "cut away the very foundation upon which the Constitution
believes, as has already been stated in the Chamber, that the New
Deal, which helped save our country and get it back on its feet
after the Great Depression, was a triumph of our very own "Socialist
revolution." She has equated altruism with communism. She equates
even the most modest efforts to level life's playing field with
somehow inhibiting our liberty.
For those who
pay attention to legal argument, one of the things that is most
troubling is Justice Brown's approval of the Lochner era of the
Supreme Court. In the Lochner case, and in a whole series of cases
prior to Lochner being overturned, the Supreme Court consistently
overturned basic measures like minimum wage laws, child labor safety
laws, and rights to organize, deeming those laws as somehow violating
a constitutional right to private property. The basic argument in
Lochner was you can't regulate the free market because it is going
to constrain people's use of their private property. Keep in mind
that that same judicial philosophy was the underpinning of Dred
Scott, the ruling that overturned the Missouri Compromise and said
that it was unconstitutional to forbid slavery from being imported
into the free States. That same judicial philosophy essentially
stopped every effort by Franklin Delano Roosevelt to overcome the
enormous distress and suffering that occurred during the Great Depression.
It was ultimately overturned because Justices, such as Oliver Wendell
Holmes, realized that if Supreme Court Justices can overturn any
economic regulation -- Social Security, minimum wage, basic zoning
laws, and so forth -- then they would be usurping the rights of
a democratically constituted legislature. Suddenly they would be
elevated to the point where they were in charge as opposed to democracy
being in charge.
from her speeches, at least, seems to think overturning Lochner
was a mistake. She believes the Supreme Court should be able to
overturn minimum wage laws. She thinks we should live in a country
where the Federal Government cannot enforce the most basic regulations
of transparency in our security markets, that we cannot maintain
regulations that ensure our food is safe and the drugs that are
sold to us have been tested. It means, according to Justice Brown,
that local governments or municipalities cannot enforce basic zoning
regulations that relieve traffic, no matter how much damage it may
be doing a particular community.
What is most ironic
about this is that what Justice Brown is calling for is precisely
the type of judicial activism that conservatives have been railing
against for the last 50 years.
Justice Scalia is not somebody with whom I frequently agree. I do
not like a lot of his judicial approaches, but at least the guy
is consistent. Justice Scalia says that, generally speaking, the
legislature has the power to make laws and the judiciary should
only interpret the laws that are made or are explicitly in the Constitution.
That is not Justice Brown's philosophy. It is simply intellectually
dishonest and logically incoherent to suggest that somehow the Constitution
recognizes an unlimited right to do what you want with your private
property and yet does not recognize a right to privacy that would
forbid the Government from intruding in your bedroom. Yet that seems
to be the manner in which Justice Brown would interpret our most
It would be one
thing if these opinions were confined to her political speeches.
The fact is she has carried them over into her judicial decisionmaking.
That is why the California State Bar Association rated her as "unqualified"
to serve on the State's highest court. That is why not one member
of the American Bar Association found her to be very qualified to
serve on the DC Circuit, and why many members of the bar association
found her not qualified at all.
It is also why
conservative commentators, such as Andrew Sullivan and George Will,
while agreeing with her political philosophy, simply do not see
how she can be an effective judge. Here is what Sullivan said:
She does not fit
the description of a judge who simply follows the law. If she isn't
a "judicial activist," I don't know who would be.
that he is in agreement with some of her conservative views but
thinks "she should run for office, not the courts."
Will, not known to be a raving liberal, added recently that he believes
Justice Brown is out of the mainstream of conservative jurisprudence.
Let me wrap up
by making mention of a subtext to this debate. As was true with
Clarence Thomas, as was true with Alberto Gonzales, as was true
with Condoleezza Rice, my esteemed colleagues on the other side
of the aisle have spent a lot of time during this debate discussing
Justice Brown's humble beginnings as a child of a sharecropper.
They like to point out she was the first African American to serve
on the California Supreme Court.
I, too, am an
admirer of Justice Brown's rise from modest means, just as I am
an admirer of Alberto Gonzales's rise from modest means, just as
I am an admirer of Clarence Thomas's rise from modest means, just
as I am an admirer of Condoleezza Rice's rise from modest means.
I think it is wonderful. We should all be grateful where opportunity
has opened the doors of success for Americans of every background.
Moreover, I am
not somebody who subscribes to the view that because somebody is
a member of a minority group they somehow have to subscribe to a
particular ideology or a particular political party. I think it
is wonderful that Asian Americans, Latinos, African Americans, and
others are represented in all parties and across the political spectrum.
When such representation exists, then those groups are less likely
to be taken for granted by any political party.
I do not think
that because Justice Brown is an African-American woman she has
to adhere to a particular political orthodoxy, something that has
been suggested by the other side of the aisle. Just as it would
be cynical and offensive that Justice Brown be vilified simply for
being a Black conservative, it is equally offensive and cynical
to suggest that somehow she should get a pass for her outlandish
views simply because she is a Black woman.
I hope we have
arrived at a point in our country's history where Black folks can
be criticized for holding views that are out of the mainstream,
just as Whites are criticized when they hold views that are out
of the mainstream. I hope we have come to the point where a woman
can be criticized for being insensitive to the rights of women,
just as men are criticized when they are insensitive to the rights
Justice Brown's record on privacy and employment discrimination
indicates precisely such an insensitivity.
I will give one
example. In a case where a group of Latino employees at Avis Rent
A Car was subjected to repeated racial slurs in the workplace by
another employee, the lower court found that Avis, in allowing this
to go on, had created a hostile environment. Justice Brown disagreed
with and criticized the decision.
In her opinion,
she wrote that racially discriminatory speech in the workplace,
even when it rises to the level of illegal race discrimination,
is still protected by the first amendment. This was despite U.S.
Supreme Court opinions that came to the exact opposite conclusion.
went so far as to suggest that the landmark civil rights law, Title
VII of the Civil Rights Act of 1964, could be unconstitutional under
the first amendment.
I believe if the
American people could truly see what was going on here they would
oppose this nomination, not because she is African American, not
because she is a woman, but because they fundamentally disagree
with a version of America she is trying to create from her position
on the bench. It is social Darwinism, a view of America that says
there is not a problem that cannot be solved by making sure that
the rich get richer and the poor get poorer. It requires no sacrifice
on the part of those of us who have won life's lottery and does
not consider who our parents were or the education received or the
right breaks that came at the right time.
Today, at a time
when American families are facing more risk and greater insecurity
than they have in recent history, at a time when they have fewer
resources and a weaker safety net to protect them against those
insecurities, people of all backgrounds in America want a nation
where we share life's risks and rewards with each other. And when
they make laws that will spread this opportunity to all who are
willing to work for it, they expect our judges to uphold those laws,
not tear them down because of their political predilections. Republican,
Democrat, or anyone in between. Those are the types of judges the
American people deserve. Justice Brown is not one of those judges.
I strongly urge my colleagues to vote against this nomination.