<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:93738.wais]
S. Hrg. 108-463
CONFIRMATION HEARING ON THE NOMINATION OF JANICE R. BROWN, OF
CALIFORNIA, TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 22, 2003
__________
Serial No. J-108-47
__________
Printed for the use of the Committee on the Judiciary
93-738 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John a U.S. Senator from the State of Texas,
prepared statement and attachments............................. 231
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 4
prepared statement........................................... 241
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 251
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 10
prepared statement........................................... 267
Schumer, Hon. Charles, a U.S. Senator from the State of New York. 72
prepared statement........................................... 345
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 8
PRESENTER
Cornyn, Hon. John a U.S. Senator from the State of Texas
presenting Janice R. Brown to be Circuit Judge for the District
of Columbia Circuit............................................ 12
STATEMENT OF THE NOMINEE
Brown, Hon. Janice R., to be Circuit Judge for the District of
Columbia Circuit............................................... 16
Questionnaire................................................ 18
QUESTIONS AND ANSWERS
Responses of the Nominee to questions submitted by Senator Biden. 92
Responses of the Nominee to questions submitted by Senator Durbin 99
Responses of the Nominee to questions submitted by Senator
Edwards........................................................ 117
Responses of the Nominee to questions submitted by Senator
Feinstein...................................................... 125
Responses of the Nominee to questions submitted by Senator
Kennedy........................................................ 132
Responses of the Nominee to questions submitted by Senator Kohl.. 137
Responses of the Nominee to questions submitted by Senator Leahy. 139
SUBMISSIONS FOR THE RECORD
AFL-CIO, William Samuel, Director of Legislation, Washington,
D.C., letter................................................... 178
Americans for Democratic Action, Amy Isaacs, National Director,
Washington, D.C., letter....................................... 180
Americans for Tax Reform, Grover Norquist, President, Washington,
D.C., letter................................................... 182
Americans United for Separation of Church and State, Rev. Barry
W. Lynn, Executive Director, Washington, D.C., letter.......... 183
Barker, Daniel A., Judge, Court of Appeals, Phoenix, Arizona,
letter......................................................... 185
Brown, Janice Rogers, `` `A Whiter Shade of Pale': Sense and
Nonsense--The Pursutit of Perfection in Law and Politics,''
Address to the Federalist Society, University of Chicago Law
School (Apr. 20, 2000)......................................... 187
Bryant, Shelley G., Attorney, Jory, Peterson, Watkins & Smith,
Fresno, California, letter..................................... 204
California Association of Black Lawyers, Gillian G.M. Small,
President, Mill Valley, California, letter and attachments..... 207
Campbell, Ward A., Supervising Deputy Attorney General,
Department of Justice, Sacramento, California, letter.......... 218
Colleagues of Justice Janice Rogers Brown, Sacramento,
California, letter............................................. 220
Committee for Judicial Independence, Susan Lerner, Los Angeles,
California, letter and attachment.............................. 222
Community Rights Counsel, Doug Kendall, Executive Director,
Defenders of Wildlife, William Snape, Vice President and
General Counsel, Earthjustice, Glenn P. Sugameli, Senior
Legislative Counsel, joint letter.............................. 224
Congressional Black Caucus, Elijah E. Cummings, Chair,
Washington, D.C., letter....................................... 227
De Alba, David, Judge of the Superior Court, Sacramento County,
California, letter............................................. 239
Eisenberg, Jon B., Horvitz & Levy, LLP, Encino, California,
letter......................................................... 247
Eres, Thomas W., Esq, Attorney at Law, Sacramento, California,
letter......................................................... 249
Esgro, Patricia C., Judge of the Superior Court, Sacramento,
California, letter............................................. 250
Horst, Susan, San Anselmo, California, letter.................... 254
Horvitz, Ellis J., Horvitz & Levy, LLP, Encino, California,
letter......................................................... 257
Justices of the California Court of Appeal, Los Angeles,
California, joint letter....................................... 259
Keller, Eddie T., Judge of the Superior Court, Placerville,
California, letter............................................. 261
Kelly, A. John, Little Rock, Arkansas, letter.................... 263
Leadership Conference on Civil Rights, Wade J. Henderson,
Executive Director and Nancy Zirkin, Deputy Director,
Washington, D.C., letter....................................... 264
Lee, Hon. Barbara, a Representative in Congress from the State of
California, statement.......................................... 270
McGuire, Frank A., San Francisco, California, letter............. 271
Members of Law faculties in California, joint letter............. 274
Members of the California delegation to the U.S. House of
Representatives, joint letter.................................. 278
Minorities in Law Enforcement, Regis Lane, Executive Director,
letter......................................................... 284
Mount, William S., Attorney, Pacific Legal Foundation,
Sacramento, California, letter................................. 285
NARAL Pro-Choice America, Kate Michelman, President, Washington,
D.C., letter................................................... 288
National Abortion Federation, Washington, D.C., statement........ 291
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington, D.C., letter and
attachments.................................................... 292
National Bar Association, Clyde E. Bailey, Sr., President,
Rochester, New York, statement and attachment.................. 299
National Council of Jewish Women, Marsha Atkind, President, New
York, New York, letter......................................... 303
National Employment Lawyers Association, San Francisco,
California, letter............................................. 305
National Senior Citizens Law Center, Edward C. King, Executive
Director, Washington, D.C., letter............................. 307
National Women's Law Center, Washington, D.C., statement......... 310
Natural Resources Defense Council, John H. Adams, President,
Washington, D.C., letter....................................... 318
People for the American Way, Washington, D.C., news release...... 319
Planned Parenthood Federation of America, Inc., Washington, D.C.,
statement...................................................... 322
Positive Action Coalition, Mark Iain Sutherland, President, St.
Louis, Missouri, letter........................................ 324
Professors of Law, joint letter.................................. 325
Project 21, David Almasi, Director, Washington, D.C., letter..... 338
Republican National Lawyers Association, Washington, D.C., letter
and attachments................................................ 340
Service Employees International Union, Local 99, Andrew L. Stern,
International President, Washington, D.C., letter.............. 347
Sowell, Thomas, Rose and Milton Friedman Senior Fellow, Stanford
University, Stanford, California, letter....................... 349
Strauss, Paul, Shadow Senator from the District of Columbia,
statement...................................................... 351
Trimble, Thomas J., Chairman, Pepperdine University, Board of
Regents, Malibu, California, letter............................ 353
Tyson, John M., Judge, Court of Appeals, Raleigh, North Carolina,
letter......................................................... 354
Waters, Hon. Maxine, a Representative in Congress from the State
of California.................................................. 356
Watson, Hon. Diane E., a Representative in Congress from the
State of California............................................ 363
Wilson, Hon. Pete, former Governor of California, letter and
attachment..................................................... 365
NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT
----------
WEDNESDAY, OCTOBER 22, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:12 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, DeWine, Sessions, Craig,
Chambliss, Cornyn, Leahy, Kennedy, Feinstein, Feingold, Shumer,
and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Welcome to the Committee. This morning, the
Committee considers the nomination of California Supreme Court
Justice Janice Rogers Brown to be United States Circuit Judge
for the District of Columbia Circuit.
The last nominee considered for this court, Miguel Estrada,
in my opinion, was treated shamefully by this Committee. He was
badgered for adhering to the Code of Judicial Ethics, his
record was distorted, and he was attacked for withholding
information that he could not provide.
After such obstructionist tactics, this impressive Hispanic
immigrant became the first appellate court nominee in history
to be defeated by a filibuster. Many are proud of that fact,
but I think it was a sad day for this institution.
Last month, the Washington Post observed that the judicial
confirmation process is ``steadily degrading.'' I believe that
the nomination before us offers another opportunity, indeed, an
obligation, to change this trend. The fight over judicial
appointments is about more than the dispute of the moment. It
is about who should govern; the people through their elected
representatives or unelected and largely unaccountable judges.
President Bush describes his judicial nomination standard
this way: ``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.''
The powerful liberal groups fighting these nominees also
know the difference, but they take a different view. They want
to win, and since their interests often lose when legislators
legislate, they want the judges to do it instead. These groups,
their strategy is like cooking spaghetti. They throw everything
at the nominee, and when something sticks, the nominee is done.
Make no mistake, the single most important issue for these
groups is abortion. Merely a suspicion that nominees may harbor
personal pro-life beliefs is sometimes enough to prevent
confirmation. Sworn testimony that they will follow the law
despite their personal beliefs is not enough. Entire careers of
demonstrating a commitment to the rule of law over their
personal beliefs is not enough or satisfactory. Their personal
beliefs alone are deemed disqualifying.
I do not personally know Justice Brown's personal view on
abortion and, frankly, I do not care. Her decisions as a jurist
are guided by the law, not her personal beliefs, which is one
of the important marks of a good judge. Justice Brown, however,
did one thing that liberal interest groups seem to not be able
to forgive. She issued an opinion that would have found
constitutional California's parental consent law. I expect we
will hear a great deal about this case today, and it explains
why, according to yesterday's Sacramento Bee, liberal groups
plan to ``bombard Senators with 150,000 pieces of opposition
mail from abortion rights backers.'' In my book, that is what
we call spam.
But Justice Brown faces a second hurdle beyond the abortion
litmus test that all nominees face. She is a conservative
African-American woman, and for some that alone disqualifies
her nomination to the D.C. Circuit, widely considered a
stepping stone to the United States Supreme Court.
Now, I want to make clear that I am not referring to any of
my colleagues who are on the Committee, but let me show you
what I am talking about; an example of how Justice Brown's
attackers will sink to smear a qualified African-American
jurist who does not parrot their ideology. It is a vicious
cartoon filled with bigotry that maligns not only Justice
Brown, but others as well--Justice Thomas, Colin Powell, and
Condoleezza Rice. It is pathetic, and it is the utmost in
bigotry that I have seen around here in a long time. I hope
that everyone here considers that cartoon offensive and
despicable. I certainly do. It appeared on a website called
BlackCommentator.com.
Unfortunately, some of Justice Brown's opponents appear to
share similar sentiments. I was deeply disappointed when,
during a recent press conference, the all-Democrat
Congressional Black Caucus applauded when one of its members
said, ``This Bush nominee has such an atrocious civil rights
record that Clarence Thomas would look like Thurgood Marshall
in comparison.'' To some of her opponents, Justice Brown is not
even qualified to share the stage with the despised Justice
Thomas.
Now, some of Justice Brown's other opponents will pull
isolated bits and pieces from Justice Brown's rich and textured
background in an attempt to discredit and belittle her
accomplishments. Some may simply ignore any decisions they
think would reflect positively on Justice Brown's judicial
record, but I hope this hearing will be fair and open-minded.
We owe Justice Brown no less.
We will hear more about Justice Brown's credentials and
legal career, but let me just briefly highlight a few facts
that are important I think for everybody to hear.
Justice Brown grew up the daughter of sharecroppers in
segregated, rural Alabama. As a single mother, she worked her
way through Cal State, Sacramento, and UCLA Law School. She has
spent nearly a quarter-century in public service, including
nearly a decade on different levels of the California appellate
bench.
In 1996, she became the first African-American woman to sit
on the California Supreme Court. She was retained with 76
percent of the vote in her last election. Let me repeat that--
76 percent of the vote in California. I suspect that any member
of this Committee would be pleased to garner 76 percent of the
vote. Of course, Senator Leahy often gets that.
[Laughter.]
Chairman Hatch. This overwhelming vote of--
Senator Leahy. My gosh, Orrin, you got something right. I
agree with you on that one.
[Laughter.]
Chairman Hatch. I did not say the vote was good. I just
said you get--
[Laughter.]
Chairman Hatch. Now, this overwhelming vote of confidence
for Justice Brown by the people of California reflects that
Justice Brown is hardly out of the mainstream; a conclusion
buttressed by the fact that last year she wrote more majority
opinions than any other justice on the California Supreme
Court.
Those who know and have worked with Justice Brown confirm
that she is what a judge is supposed to be. In a letter dated
October 16th, 2003, a dozen of her former judicial colleagues,
both Democrats and Republicans, wrote, ``We know that she is a
jurist who applies the law without favor, without bias, and
with an even hand.''
A bipartisan group of professors of California law schools
wrote, ``A fair examination of her work reveals that Justice
Brown resolves matters as individual cases, not generalized or
abstract causes.''
They praise her for her ``open-minded and fair appraisal of
legal argumentation, even when her personal views may conflict
with those arguments.''
What more could we ask for in a judge? Not that this
matters to the powerful special interests and political
interests attacking Justice Brown. One report, for example,
quotes prominently from an Op-Ed piece criticizing her opinion
in an affirmative action case. To my surprise, the Op-Ed's
author, Berkeley law professor, Stephen Barnett, was one of the
signatories on the law professors' letter endorsing Justice
Brown's nomination.
The powerful political interests opposing President Bush's
judicial nominations want judges who will advance their narrow,
leftist ideology. To them, results matter more than the law.
That is the wrong standard. I hope the better stand prevails
and that the downward slide of the confirmation process can be
reversed. Let us seize this opportunity and make that happen
today.
With that, I will turn to the distinguished Senator from
Illinois.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. Justice
Brown, thank you for joining us this morning.
I would like to begin by putting this nomination in
historical context. Justice Brown was nominated to fill the
eleventh seat on the D.C. Circuit Court that has 12 authorized
judgeships, but when President Clinton tried to appoint an
eleventh and twelfth judge to this same court--Elena Kagan and
Allen Snyder--the Chairman of this Committee denied them a
hearing and a vote.
Senate Republicans argued the D.C. Circuit was fully
operational with 10 judges. The D.C. Circuit's workload did not
justify any additional judges. Since 1997, the D.C. Circuit's
workload actually decreased by 27 percent according to the
Administrative Office of the U.S. Courts.
I also want to note the oddity of President Bush traveling
3,000 miles away from Washington, D.C., to pick a judge for the
D.C. Circuit. Perhaps it is not hard to understand. There are
only 71,000 members of the D.C. Bar who might have been
considered. I am told that it is rare for a President to
appoint someone to the D.C. Circuit who does not practice in
Washington and is unfamiliar with Federal agencies. I do not
think there is any sitting member of the D.C. Circuit at this
point who has had no background in D.C. or with Federal
agencies. In Justice Brown, we have such a nominee.
The D.C. Circuit is a critically important appointment,
second only to the U.S. Supreme Court in its impact on law and
policy in America. It is a unique appellate court. Congress has
granted an exclusive jurisdiction over some issues. Half the
court's caseload consists of appeals from regulations or
decisions by Federal agencies. For example, regulations adopted
under the Clean Air Act by the EPA, labor management decisions
of the NLRB, rules propounded by OSHA and many other
administrative matters that affect Americans across the country
typically end up in the D.C. Circuit Court.
I also want to make a final point before discussing Justice
Brown and her record. Although Senators on this side of the
dais will raise numerous concerns about her nominations, it
should not be forgotten that the Senate has confirmed the vast
majority of President Bush's judicial nominees. To date, we
have confirmed 165 nominees and held up 3. The score is 165 to
3, for those who are following this process.
Republicans express outrage that three of President Bush's
nominees have not received an up or down vote on the Senate
floor, yet 63--63--of President Clinton's judicial nominees
never received an up or down vote in this Committee. The 63
were either denied a hearing or a vote or both. They were
victims of quiet filibusters in the Judiciary Committee. These
63 represent 20 percent of all of President Clinton's judicial
nominees. By contrast, the three nominees held by the Senate
represent 2 percent of President Bush's judicial nominees.
Our Federal judiciary is conservative and becoming more so.
On the U.S. Supreme Court, seven of the nine justices were
appointed by Republican Presidents. On our U.S. Court of
Appeals, the courts of last resort for the vast majority of
litigants, nine out of the Nation's thirteen Circuit Courts
today have a majority of Republican appointees. The D.C.
Circuit is among them. Democrats have a majority on only two
courts of appeal, two are equally divided.
Now, let me say a word about today's nominee. Justice
Brown's life story, which the Chairman has alluded to, and her
achievements are amazing, and I congratulate you on your
appointment to the court in California. To your supporters, you
are an eloquent and passionate voice for conservative values.
In both your opinions and your speeches, you speak with great
flair and great intellect. Others, however, tell a different
story. They say you are a results-oriented judicial activist
who fashions her opinions to comport with her politics. You are
a frequent dissenter in the right-ward direction, which is
quite a feat, given that you serve on a court that is made up
of six Republican-appointed judges and only one Democrat.
I have conducted my own independent assessment of your
record, and I must confess to some serious concerns. A few
years ago, Justice Brown, you told an audience that, ``Since I
have been making a career out of being the lone dissenter, I
really didn't think anybody reads this stuff.''
Well, we do. You are a lone dissenter in a great many cases
involving the rights of discrimination victims, consumers and
workers. In case after case, you have come down on the side of
denying rights and remedies to the disadvantaged. Oftentimes,
you ignore established precedent to get there.
In a housing discrimination case, you were the only member
of your court to find the California Fair Employment and
Housing Commission did not have the authority to award damages
to housing discrimination victims.
In a disability discrimination case, you were the only
member of your court to conclude that, due to a technical
reading of the law, the victim was not entitled to raise past
instances of discrimination that occurred.
You are the only member of your court to conclude that age
discrimination victims should not have the right to sue under
common law, an interpretation directly contrary to the will of
the California legislature.
You were the only member of the California Supreme Court
who dissented in a case involving the sale of cigarettes to
minors. All of the other justices ruled that a corporation can,
on behalf of the public, sue a retailer that illegally sells
cigarettes to minors under the State's Unfair Competition Law.
You were the only member of the California Supreme Court
who would strike down a San Francisco law providing housing
assistance to displaced low-income, elderly and disabled
people.
You were the only member of the California Supreme Court
who concluded there was nothing improper about requiring a
criminal defendant to wear a 50,000-volt stun belt during the
course of his trial.
You were the only member of the California Supreme Court
who voted to overturn the rape conviction of a 17-year-old girl
because you felt the victim gave mixed messages to the rapist.
You were the only member of the California Supreme Court
who dissented in two rulings that permitted counties to ban
guns or gun sales on fairgrounds and other public properties.
As an appellate court judge, you ruled that paint companies
could use Prop 13 as a shield to avoid paying fees for the
Childhood Lead Poisoning Prevention Act, a critical law used to
evaluate, screen, and provide medical treatment for children at
risk for lead poisoning. The California Supreme Court reversed
you unanimously.
Justice Brown, in many of these cases there were clear
precedents you chose to ignore. In other areas, Justice Brown,
you were joined by a few of your colleagues, but again often in
dissent. In the area of employment discrimination, you have
concluded that victims who are repeatedly harassed in the
workplace must take a back seat to the free speech rights of
harassers. Your supporters point to this case as an example of
your commitment to civil liberties. I see it as a commitment to
ignoring clear, established U.S. Supreme Court precedent in
this area of discrimination.
You have staked out a disturbing position on the sensitive
issue of affirmative action. In the case of High Voltage Wire
Works v. City of San Jose, you referred to affirmative action
as, ``entitlement based on group representation,'' and you
equate affirmative action with Jim Crow laws. The chief justice
of your court called your analysis, ``unnecessary and
inappropriate,'' and ``a serious distortion of history.''
In another civil rights case, another colleague accused you
of ``judicial law-making.''
Justice Brown, your record is that of a conservative
judicial activist, plain and simple. You frequently dismiss
judicial precedent and stare decisis when they do not comport
with your political views.
The Senate questionnaire that is sent to judicial nominees
asks for your comments on judicial activism. Here is what you
said, ``Judicial integrity requires a conscious effort to
subordinate any personal beliefs which conflict with proper
discharge of judicial duties.''
Justice Brown, I do not think your decisions follow your
own advice. The ABA has given you a partial rating of not
qualified. This is the lowest rating given thus far to any of
President Bush's Circuit Court nominees. The ABA does not
provide an explanation for their rating unless a nominee is
rated fully not qualified.
When the California State Bar Commission evaluated you in
1996 and gave you a majority rating of not qualified for the
California Supreme Court, the Commission stated that its rating
was based, in part, on your ``tendency to interject her
political and philosophical views into her opinions.''
I am concerned with the views you have taken, but I am also
concerned with the ways in which you express them. Many of your
court opinions and speeches are very harsh. In your solo
dissent in the case involving cigarette sales to minors you
wrote, ``The result is so exquisitely ridiculous it would
confound Kafka.''
You also wrote that ``The majority chooses to speed us
along the path to perdition.''
In an unfair competition law case, in which you were the
sole dissent, you wrote, ``I would put this sham lawsuit out of
its misery.''
In your solo dissent in the stun belt case, you lambasted
the opinion of your colleagues and accused them of ``rushing to
judgment after conducting an embarrassing google.com search for
information outside the record.''
In your lone dissent in a discrimination case, you wrote
that the majority ``does violence to both the statute
limitations and to the entire statutory scheme.''
According to press reports, you and the chief justice of
your court, a fellow Republican, are at such loggerheads you
communicate only by memo.
Lastly, let me talk for a minute about the world according
to you as you see it. It is a world, in my opinion, that is
outside of the mainstream of America. For example, to Justice
Brown, any attempt by the Government to protect victims or
consumers is a sop to special interests. You criticize
politicians for ``handing out new rights like lollipops in the
dentist's office.''
You delivered a speech in which you 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.''
In a case involving a San Francisco housing law that helped
the low income and elderly, you wrote, ``Theft is theft, even
when the Government approves of the thievery. Turning a
democracy into a kleptocracy does not enhance the stature of
the thieves; it only diminishes the legitimacy of the
Government.''
Your dissent in the cigarette case accused the rest of your
colleagues of creating a standardless, limitless attorney fee
machine.
You criticized California's anti-discrimination agency,
writing in a dissent, ``Not only are administrative agencies
not immune to political influences, they are subjected to
capture by a specialized constituency. Indeed, an agency often
comes into existence at the behest of a particular group, the
result of a bargain between interest groups and lawmakers.''
The list goes on and on. I am troubled by what you have
written and said, but this is one that I think, frankly, puts
you into a rare minority category when it comes to viewing
where America is today, and here is what you wrote: ``Where
Government moves in, community retreats, civil society
disintegrates, and our ability to control our own destiny
atrophies.''
You described the year 1937, the year in which President
Roosevelt's New Deal legislation started taking effect as ``the
triumph of our own socialist revolution.''
Given that the Federal Government and its role in our lives
is your major responsibility if you are appointed to the D.C.
Circuit Court, I hope you can understand why some people have
taken great issue with statements that you have made and the
philosophy which you bring before this Committee.
Joining us today from the House of Representatives are
Delegate Eleanor Holmes Norton, Elijah Cummings, and I think I
saw Congressman John Conyers also join in reference to your
nomination.
For these reasons, and many more as I have reviewed your
record, I find it interesting that this position, which has
become really the center point of controversy with the Miguel
Estrada nomination, that the White House would not send us a
nominee from this area closer to the mainstream, but once again
challenge us to try to ask the hard questions to make certain
that you or any nominee is deserving of a lifetime appointment
to this position.
Thank you, Mr. Chairman.
Senator Specter. Mr. Chairman?
Chairman Hatch. The Senator from Pennsylvania?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Mr. Chairman, I had asked you before the
hearing started for leave to make a brief statement, and I had
asked that because I talked yesterday to a former Senator,
former Governor, Pete Wilson, who called me about Justice Brown
and also to make a comment about the cartoon that you have
already referred to, but I would like to say just a little
more, but I will be conscious of the time and the fact that
customarily only the Chairman and the Ranking make statements.
Chairman Hatch. Go ahead, Senator, and then we will turn to
Senator Leahy, who is ranking on this Committee, and then we
are going to turn to the witnesses.
Senator Specter. Pete Wilson called yesterday. He was our
colleague in the Senate for 8 years before he became Governor
of California and had some very high words of praise for
Justice Brown, and I wanted to pass that on at the opening part
of the record because Mr. Wilson could not be here, and we have
a practice of not having outside witnesses in, in any event.
I had not known you were going to make reference to this
cartoon, but it is symptomatic of the presumption of problems
which seems to precede nominees before they come before the
Judiciary Committee for a hearing. It is a cartoon which has a
very unflattering picture of Justice Brown--I had not known
what Justice Brown looked like when I saw the cartoon. Now,
that I see her, it is even a greater distortion than I had
anticipated--and a caricature of President Bush saying,
``Welcome to the Federal bench, Ms. Clarence, I mean, Ms.
Rogers Brown. You will fit right in.'' And in the back are
Justice Clarence Thomas, and Secretary of State Colin Powell,
and National Security Adviser Condoleezza Rice.
And it seems to me that, while people have a right
constitutionally to print such cartoons, that this Committee
ought to be on special guard about prejudgment, and opinions
have been expressed by many people really prejudging Justice
Brown.
With great respect and deference to my colleague from
Illinois, after listening to the Senator from Illinois, it
seems to me that Justice Brown has been convicted without a
hearing. I think that would be a good closing prosecutorial
speech, but not an opening prosecutorial speech in the review
of cases.
I do not believe that there is anything wrong with being a
dissenter. I do that occasionally myself. In fact, some people
think more than occasionally and too often.
[Laughter.]
Senator Specter. When I think of Holmes and Brandeis, and
Black and Douglas, and Brennan, I think of many dissenters, and
sometimes the dissenters have the majority opinion.
Now, Justice Brown, I do not know whether I am going to
vote for you or not. I do not know enough about you at this
point, but I have asked for a review of some of the cases
because you have already been pigeon-holed and categorized, and
I wonder what your real views are, and I intend to listen to
what you have to say.
When the Senator from Illinois talks about a harassment
case and your dissent out of touch with the precedence, that
was a case where damages were awarded for comments which were
verbal abuse in the workplace--I wanted to get the word exactly
right--and you found, in dissent, that although the monetary
damages were fine, that you could not have a prior restraint.
Now, I have not gone back over all of the prior restraint
cases, but I remember Near v. Minnesota, the landmark case in
the field, and you do not have prior restraint on speech cases.
You just do not do that.
And when I have looked at your record on Fourth Amendment
cases, I have seen you have a very broad interpretation of
civil rights on Fourth Amendment cases. I had heard that you
were unduly zealous on capital punishment cases, and I find
your dissent in the case of Visciotti, where you said there was
ineffective assistance of counsel on Sixth Amendment grounds.
And as I have reviewed the case on parental consent, I want to
hear more about that, where you said that the statute ought to
be upheld on a narrow instruction, and the majority of the
court concluded that there was a violation of the Constitution
of privacy, that you should not have to ask for parental
consent.
I want to see what you have to say about that. My views on
that subject are well known, but I am not about to chastise you
because your views are different from mine. I would like to
hear what your judicial reasoning is.
I have a lot more to say, and I will have a chance to when
my turn comes on the questioning, but I am again sorry to see
that your nomination has already become entangled with prior
nominations, and I say this with deference to the Chairman and
with deference to the Senator from Illinois. I do not think
Miguel Estrada has anything to do with Justice Brown. That is
gone. We have had our say on that, and I do not think that a
score of 165 to 3 means anything. I think the question is
whether you are qualified to be a Court of Appeals judge for
the District of Columbia, and it is a national court. It is
right under the Supreme Court.
I am not surprised to see somebody from California
nominated. As a matter of fact, I would like to see someone
from Pennsylvania nominated. We do not have to take the judges
inside the Beltway--
Senator Schumer. I nominate Arlen Specter.
Senator Specter. --or Vermont. It is a national court. I do
not see in the world what the relevancy has to do with your
nomination. We do not have to function solely within the
Beltway. There are some qualifications outside the Beltway, but
I do not like the way this hearing has started. I hope I like
better the way it ends, although, again, I repeat, I do not
know whether I am for you or against you, but I do think you
are entitled to a fair hearing before you are convicted, if you
are to be convicted. You may be acquitted. You may be
confirmed, but let us see, let us see what you have to say, and
that is what a hearing is supposed to be about.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
I think everybody agrees on the offensive nature of the
cartoon. I notice that we are keeping that website up for the
TV cameras. I am wondering if we are doing a disservice by
leaving that up and on. It is up to you, of course.
Chairman Hatch. I do not know what you are talking about.
Senator Leahy. Is it not over there? Does it have the
website showing on the bottom of that?
Chairman Hatch. I do not know.
Senator Leahy. It does not? Oh, okay. Yes, it does. Well, I
mean, that is your choice, Mr. Chairman, whether you want to
keep broadcasting the website or not, but I would suggest you
may want to take it down. I find that cartoon offensive, just
as I find offensive some of the cartoons from the right that
have attacked me on my religion and elsewhere for being on this
Committee. All of these things are offensive. I agree with
Senator Specter the Constitution allows it, no matter how
offensive they have been toward me or toward you, Justice
Brown, or anybody else, but I would also just correct one thing
in the record. It was said this is the first hearing we have
had on vacancies in the D.C. Circuit since Miguel Estrada.
Actually, we had Mr. Roberts, a candidate of President Bush's
for the D.C. Circuit, somebody I voted for, and he was
confirmed and is now on the court.
And I do think that, as Senator Durbin said, that 165
passed, 3 not, is significant. There were, after all, 61 of
President Clinton's that were not passed because they were
never given a hearing or they were filibustered because one
person, in effect, a silent filibuster because one person
objected to them, and they never even got a hearing.
So I think that President Clinton would have been happy to
have traded more than 60 of his that did not go through for the
3 of President Bush's that did not go through.
But today we are here for Justice Brown. Of course, her
nomination is going to be considered at length. She has a
record, both on the bench and off. Her record does raise a
variety of concerns about her judicial philosophy and fitness
for a lifetime appointment to the D.C. Circuit. We will look
into the factors that made up the unqualified rating by some in
ABA, but that is why the Constitution entrusted the appointment
and confirmation of lifetime positions on the Federal court to
not just one, but to two branches of Government.
I guess what we have to understand, the confirmation of
lifetime appointments to the Federal judiciary, under our
Constitution, is not just the province of one end of
Pennsylvania Avenue, it is the province of both. The President
can nominate whomever he wants, but the Senate has to determine
whether we will advise and consent to that, and I know the
Committee takes the responsibility seriously.
I worry that some of us who have exercised our
constitutional duty to examine the records of judicial nominees
have been barraged by some on the right with shrill and
unfounded name-calling because of it. I hope we can see the end
of the ugly game. Senator Hatch has said this should end. I
agree with him, but it should end on both sides.
When we opposed Charles Pickering, we were called anti-
Southern. Of course, this overlooked the fact that 38 percent
of the judges we have confirmed are from the South, even though
the South makes up 25 percent of the Nation's population. The
reason, of course, there were so many vacancies is that the
Republicans refused to allow the confirmation of a large number
of President Clinton's nominees. We put them through.
When we opposed Miguel Estrada, we were called anti-
Hispanic, even though the record of Democrats supporting
Latinos for the Federal bench is unmatched in American history.
When we opposed Priscella Owen, they were reduced to
branding us being anti-women; a complaint that is so laughable
it is hard to even mention it.
And in an especially despicable ploy that has not been seen
in the Senate in modern times, when we opposed William Pryor,
the right stooped to religious McCarthyism--religious
McCarthyism--which has no place in the United States Senate. I
do not believe it has any place in America.
So let us not do name-calling. Let us go to substance. When
Senators of good conscience and true purpose ask serious,
substantive questions of this nominee, let us stick to the
substance and let the right-wing tactic of smears and name-
calling subside and disappear. Let us not see the race card
dealt from the shameful deck of unfounded charges that some
stalwarts of this President's most extreme nominees have come
more and more to rely upon as they further inject partisanship
and politics into the appointment and consideration of judges
who are being nominated to be part of an independent,
nonpartisan, nonpolitical judiciary.
No matter what position any Senator takes in this
nomination, whether it is in support or opposition, I know that
it will not be taken because of race. Maybe those who
ultimately support Justice Brown, even though they oppose
affirmative action, they will be doing that because they
believe she will be even-tempered and evenhanded. Those who
oppose her will do so because they retain serious doubts about
her nomination or see her as an ideologue or judicial activist.
Now, because of her record, her record to date, several
organizations do oppose Justice Brown's confirmation, including
the Nation's premier African-American Bar Association, the
National Bar Association, its State counterpart, the California
Association of Black Lawyers, the foremost national civil
rights organization, the Leadership Conference on Civil Rights,
and the entire membership of the Congressional Black Caucus,
including the delegate from the District of Columbia, where
this court sits, Delegate Eleanor Holmes Norton.
Now, I would hope these groups and individuals are not
going to be accused of being anti-African American in the way
Hispanic organization leaders were maligned because they had
opposed Miguel Estrada.
Let us hope during the questioning and the debate we focus
on substance because there is much to discuss. Justice Brown's
record gives us a lot to discuss, and that is what it is for. I
think she should have an opportunity to explain her views and
respect for precedent, on judicial activism, on statutory
interpretation, free speech, civil liberties, limitation of
damages, deference to jury verdicts and the standards of review
that apply to infringement of constitutional rights.
She has written opinions or spoken on all of these topics
and more. And actually on some of them I find it hard to
reconcile what she says on 1 day with what she may say on
another on the same subject, but we will ask about that.
This court is the most prestigious and powerful appellate
court below the Supreme Court. We have chosen here in the
Congress to vest the D.C. Circuit with exclusive or special
jurisdiction over cases involving environmental, civil rights,
consumer protection and workplace statutes.
We saw what happened when a number of President Clinton's
nominees were sent up here--Elena Kagan, Alan Snyder. They were
nominated. They were never even allowed a Committee vote or
Senate consideration. Dean Kagan, who now heads the Harvard Law
School, never even received a Committee hearing. She may feel
she is better off.
But we have Justice Brown is this President's third
nomination to the D.C. Circuit. All have received hearings.
John Roberts was voted through this Committee. As I said, I
voted for him, and then he was confirmed by the Senate to the
D.C. Circuit.
So, Mr. Chairman, I thank you for your consideration. Let
us go forward on the merits. Let us leave the posturing and the
name-calling off this Committee. Every one of the Senators has
a grave duty under the advise and consent provision, and that
is what we should do. We should not be called anti-Catholic,
anti-black, anti anything else up here. We are United States
Senators who try our best to do our duty and uphold our
constitutional--
Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Cornyn, we will take--
Senator Schumer. Mr. Chairman, could I just make a brief
statement? You are letting some--
Chairman Hatch. I agreed to the four, but I want to get to
the hearing, and we will give enough time for you to make
statements during your question period.
Senator Cornyn?
PRESENTATION OF JUSTICE JANICE R. BROWN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. JOHN
CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman, and I hope this
microphone is working. I cannot really tell, but I think I
hear--
Senator Leahy. Pull it closer, John. Pull it a little bit
closer.
Senator Cornyn. All right. Unaccustomed, as I am, to
assuming this position before the Committee, I do it with a
little trepidation and perhaps a little awkwardness, but--
Senator Sessions. Trust me, it is better up here than down
there.
Senator Cornyn. Mr. Chairman, Senator Leahy, I am
privileged to introduce to the Committee today a distinguished
jurist from the California Supreme Court, Justice Janice Rogers
Brown, who has been nominated to serve on the D.C. Circuit
Court of Appeals.
I must confess to feeling like I am a participant in a
kabuki performance, to some extent, already, but let me do the
job that I have gladly embraced here by introducing this fine
person and this fine judge to the Committee.
As you know, Mr. Chairman, one-fourth of the D.C. Circuit
Court of Appeals is currently vacant. And as you also know, the
Presidents traditionally look across the Nation for highly
qualified individuals to serve on this important court, from
Judge Karen LeCraft Henderson, a former Federal judge on the
District Courts of South Carolina to former University of
Colorado law professor, Stephen F. Williams, and former
University of Michigan law professor, Harry T. Edwards.
Justice Brown has almost 10 years of experience as an
appellate judge. As others have recounted, she was first
appointed to the Court of Appeals in 1994 and then to the
Supreme Court in 1996 and has had a distinguished record on
that court as a judge.
As judge--and I will ask that the first chart be put up--as
judge, Justice Brown has received strong support from
Californians. As you can see, Justice Brown, during the 1998
election, she was one of four justices of the California
Supreme Court, including the Chief Justice, who were up for
retention elections, and California voters supported all four
of those justices.
Justice Brown received a yes vote of 76 percent of
California voters, the highest vote percentage of all four
justices, and hardly the vote of confidence for somebody who
can be fairly or accurately characterized as out of the
mainstream.
Justice Brown, along with her colleagues, also received
strong support from one of her State's largest newspapers, the
San Francisco Chronicle. As the Chronicle editorialized, ``It
takes judges with deep respect for the law and a willingness to
set aside their personal views when making decisions. It takes
judges with fearlessness, with a sense of confidence that the
right outcome will not always be the most popular. Californians
have a chance to cast a vote for an independent judiciary by
retaining Supreme Court justices who have all demonstrated a
commitment to sound decisionmaking. If you don't like the law
or if it conflicts with the State Constitution, change it. The
judiciary's job is to make sure the laws are applied fairly.
Brown and her colleagues have approached this duty with
diligence, and integrity and should be retained.'' And, indeed,
she was.
I am extremely impressed, Mr. Chairman, by Justice Brown's
extensive record of dutiful public service, but of course there
is more to Justice Brown than just her resume. Indeed,
sometimes during the hearings on these nominees, I feel like
the nominees become a symbol or perhaps a caricature, and we
fail to recognize that they are real, live human beings.
As a strong, yet modest, person, Justice Brown may not feel
comfortable talking openly about her personal life story, but I
hope that members of the Committee will ask her about it, and I
believe the Chairman has already alluded to the fact that she
was born in Alabama as the daughter of sharecroppers.
She is personally all too familiar with the scourge of
racism and segregation. She came up of age in the midst of Jim
Crow policies in the South. She grew up listening to her
grandfather's stories about NAACP lawyer, Fred Gray, who
defended Dr. Martin Luther King, Jr., and Rosa Parks. And her
experience as a child of the South motivated her desire to
become a lawyer and then a judge.
After her father later joined the Air Force, she became,
like me, a military brat, traveling with her family from
military base to military base. I am pleased to observe that
her travels included several years in the great State of Texas,
including childhood stints in Fort Worth and in San Antonio, at
Lackland Air Force Base, where my father was likewise
stationed.
Given Justice Brown's childhood and life experiences facing
racism, I was especially alarmed by what I have seen and what I
have heard from some of her opponents, and indeed the
despicable racist cartoon that some of her opponents are using
to smear her has already been displayed in this hearing, and I,
for one, hope that rather than take it down, we keep that
cartoon up during the remainder of this hearing, and I hope we
also hear from this Committee a denunciation of such low and
unworthy tactics, certainly beneath the dignity of this body,
and I believe beneath any sort of semblance of civilized
discourse.
Some have alleged that Justice Brown singlehandedly
dismantled affirmative action in California. As a former State
Supreme Court justice myself, I can tell you that these critics
have no understanding of the law or how judges operate under
our system.
In 1997, California voters amended their State Constitution
by approving Proposition 209. As you can see on the easel, the
California Constitution states in language that you do not have
to be a lawyer to understand, ``The State shall not
discriminate against or grant preferential treatment to any
individual or group on the basis of race in the operation of
public employment, public education or public contracting.''
Because of the clear terms of Proposition 209, the United
States Supreme Court recently noted that in California racial
preferences in admissions are prohibited by State law. Do
Justice Brown's critics also disagree with Justice O'Connor who
authored the opinion or Justices Stevens, Souter, Ginsburg and
Breyer, who joined her?
All Justice Brown did was her job. She authored a majority
opinion for a unanimous Supreme Court, in forcing the clear
terms of Proposition 209. Indeed, every single judge involved
in the case at the trial court, the Court of Appeals, and the
Supreme Court agreed with her. They agreed that the challenged
San Jose program violated the will of the voters as expressed
in Proposition 209.
Then-Justice Stanley Mosk, the court's leading liberal,
according to the San Francisco Chronicle, not only joined
Justice Brown's opinion, he also wrote his own concurring
opinion, stating that I agree with the court, with the
substance of its analysis and, if anything, I would go farther
than it does.
If critics do not like Justice Brown's decisions, they
should change the law, rather than attack her for doing the job
that she is sworn to do as a judge by faithfully interpreting
the intent of that law. She is just doing the job that we ask
judges to do, not as politicians, but as judges. I will quote
the San Francisco Chronicle, again. ``If you do not like the
law or if it conflicts with the State Constitution, change
it.'' But I fear we are attacking the messenger.
Others have criticized Justice Brown for her willingness to
enforce a common-sense law enacted by the California
legislature. The law would have required parental consent
before a minor could obtain an abortion, which is similar to
laws throughout the country. But the California Supreme Court
issued a divided 4 to 3 opinion, invalidating the law. Justice
Brown would have deferred to the State legislature and enforced
the law. She was hardly alone in that view, and again then-
Justice Stanley Mosk, the court's leading liberal, as called by
the San Francisco Chronicle, also voted to uphold the law.
Indeed, according to a June 2000 Los Angeles poll, 82
percent of Americans support parental consent laws, and the
year after Justice Brown issued her opinion, the Chronicle
published the editorial I mentioned earlier. That editorial
praised Justice Brown and her colleagues and supported her
retention election.
Mr. Chairman, I join others on this Committee and in this
body in expressing my deep concern about the hostility and
destructiveness of the judicial confirmation process. And the
Senator from Pennsylvania has aptly pointed out we are
convicting people for certain beliefs, and thoughts and
statements before they have even had an opportunity for a
hearing.
If this continues much longer, I fear that fine jurists and
fine human beings, like Justice Brown, will just simply quit
accepting nominations to the Federal bench, and all Americans
will lose as a result.
Senators should vote their conscience, no doubt about it.
Every judicial nominee deserves a vote on the basis of
reasonable criteria and the merits, and not on the basis of
special interest group politics or other divisive criteria or
slanderous racist cartoons such as we have seen depicted here.
I hope this Committee and the Senate will confirm this
exceptional judicial nominee, Justice Janice Rogers Brown.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator. I appreciate it.
Justice Brown, would you please rise and raise your right
hand.
Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Justice Brown. I do.
Chairman Hatch. Thank you.
Justice Brown, if you would care to, introduce your husband
and anybody else who you care to introduce, and if you would
care to make an opening statement, we would love to have it at
this time.
STATEMENT OF JUSTICE JANICE BROWN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Justice Brown. Thank you, Mr. Chairman. It is my pleasure
to be here. I am honored to come before this Committee, and I
am anxious.
I would like to introduce my husband, who is the only
actual family member who is here with me. His name is Duane
Parker.
Chairman Hatch. Would you please stand, Mr. Parker. We are
honored to have you with us.
Justice Brown. And I would, also--there are many other
people here who are like family to me, and the proof of that is
that even though I sternly told them not to attend this
hearing, they came anyway. I do not want to introduce all of
them, but I would like to acknowledge a few of them.
A couple of my attorney staff are here, Susan Sola and
Danny Chou.
Chairman Hatch. If you would stand, please. We are honored
to have you here as well.
Justice Brown. And a very dear and long-time friend, Judge
Patricia Esgro.
Chairman Hatch. Judge, we are honored to have you with us.
Would you care to make any other statement?
Justice Brown. I was not going to make an statement, but
something has come up that I think I should respond to.
I was not going to bring up that cartoon, but since a lot
of people have, there is something that I would like to say.
The first thing that happened was I talked to my judicial
assistant yesterday. Her voice sounded very strange, and I said
to her, ``What is wrong? What is happening?'' And I realized
that she sounded strange because she was choking back tears.
And when I asked her what was wrong, she really started to cry.
She is a very composed, very calm woman, and she started to
cry, and she said, ``Oh, Judge, these horrible things, you
haven't seen what they've done.''
And I, of course, was not there to comfort her. I have been
here meeting with anybody who would meet with me, but while I
have been having those meetings, people have said to me,
``Well, you know, it's not personal. It's just politics. It's
not personal.'' And I just want to say to you that it is
personal. It's very personal to the nominees and to the people
who care about them.
I have dealt with hatred and bigotry in my life, and I
can't tell you how distressing I find it to see this cartoon,
which is intended to be so demeaning to a group of black
people, and to know that it was circulated by other black
people. But like the other Senators have noted, I have always
argued that the First Amendment permits this kind of
expression, no matter how offensive, and I haven't changed my
mind just because it's been directed to me.
I had not seen the cartoon when I was talking to her, and I
asked my husband, ``Well, what is it? What does it say?''
And he said, ``Well, there's Colin Powell.''
And I said, ``Colin Powell is in this cartoon?''
And he said, ``Yes, and Condoleezza Rice.''
I said, ``I'm in a cartoon with Colin Powell and
Condoleezza Rice? Wow. I'm in good company.''
So I am going to look at this as an unwitting compliment to
me and not focus on the vicious motivation for it, and that's
all I wanted to say.
[The biographical information of Justice Brown follows:]
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Chairman Hatch. Well, thank you so much. We will have 10-
minute rounds, and I will begin.
You have had some criticism already on some of the cases
that you have sat in on. You have been on the Supreme Court of
the State of California for now 10 years, elected by 76 percent
of the people. Do you have any idea how many cases you have
actually sat in on or had anything to do with?
Justice Brown. Yes, Mr. Chairman. I have been on the
California Supreme Court for 7 years. I have been on the bench
over 9 years. But on the California Supreme Court, I have
participated in something over 750 matters.
Chairman Hatch. Now, you have been attacked by many groups,
mainly the usual suspects among liberal special interest groups
who we have to put up with around here. The Democrats have to
put up with some of the conservative special interest groups.
That is just a fact of life, but the way I see it, these
liberal groups do not like the fact that you rule in accordance
with the law, instead of in accordance with their particular
policy preferences.
Now, while such opposition has become predictable, it just
as surely ignores the reality that you are an accomplished
judge whose record and opinions demonstrate a fidelity in
applying the law, rather than in indulging your own personal or
policy preferences, but your opponents also ignore the cases
they would prefer that nobody hears about in which you have
issued what some would consider liberal rulings, in favor of
criminal defendants, workers, consumers, and environmentalists,
if you will. Let me just ask you about a few of these cases.
Did you not dissent from the majority's approval of a death
sentenced in the Visciotti case based on the fact that the
defendant had not been effectively represented by counsel?
Justice Brown. I did, and that is rare, because in every
criminal case, and certainly in every capital case, there is
likely to be a claim that there was ineffective assistance of
counsel. And it's rare for anybody to take that argument
seriously, but in this case I really felt like an argument was
made that simply couldn't be ignored.
Chairman Hatch. Also, in the Fourth Amendment case, people
v. Woods, you dissented from the majority's sanctioning of a
warrantless search because it essentially ignored the
constitutional rights of a probationer's roommates; is that
right?
Justice Brown. That is correct. I have always been a strong
proponent of enforcing the Fourth Amendment.
Chairman Hatch. Right. And then there is your dissent in
People v. McKay, which one law professor praised as, ``Required
reading for all criminal lawyers.''
In this case, you would have suppressed drug evidence
obtained from a defendant whose only apparent crime was riding
a bicycle the wrong way down the street; is that right?
Justice Brown. That is correct. That was one of those cases
which Senator Durbin pointed out, in which I was the lone
dissenter, but I was the lone dissenter because it is very
clear that what was happening here is that these minor traffic
infractions could actually be used to justify these very broad
searches, and I argued very strenuously that to give that kind
of discretion to law enforcement was likely to lead to
arbitrary and discriminatory enforcement.
Chairman Hatch. Let me ask you about the People v. Floyd
case, in which you dissented from the majority's affirmation of
a defendant's conviction for possession of cocaine. Now, this
was, as I understand it, decided in the context of Proposition
36, which California voters approved in 2000, and which
required that eligible defendants convicted of nonviolent drug
possession offenses receive probation conditioned on
participation in and completion of an appropriate drug
treatment program instead of receiving a prison term or
probation without drug treatment.
Now, why did you dissent and advocate a broader, more
defendant-friendly reading of the law in that case?
Justice Brown. Well, the electorate in that case seems to
have wanted to provide a broad opportunity for people who were
only convicted of drug offenses to have this opportunity for
rehabilitation rather than to be sent to prison.
The majority of my court took a very narrow view of who
should be eligible for participation in these programs, but it
seemed to me the clear intent of the electorate here was the
make the program really quite broad. One of the things that was
said in the ballot pamphlet is that putting defendants into
these rehabilitation programs was actually much cheaper than
sending people to prison. So the money that we had could do
much more good by allowing people to participate in the drug
program.
Chairman Hatch. You have also ruled against tobacco
companies in the Nagel v. R.J. Reynolds case. Here, you
carefully reviewed a State law that granted some degree of
protection to tobacco companies from product liability claims
and found that the law did not bar fraud claims; is that right?
Justice Brown. That is correct.
Chairman Hatch. In Mercado v. Leon, you reversed the trial
court's determination and allowed a mother of an injured
patient to recover for emotional distress even without a
showing that the doctor's conduct was outrageous; is that
right?
Justice Brown. That is true. That had been a limit on the
ability to recover in those kinds of cases.
Chairman Hatch. In Hamilton v. Asbestos Corporation, did
you not author an opinion on a statute of limitations issue
that allowed an injured plaintiff more time in which to file a
personal injury claim against various asbestos defendants?
Justice Brown. Yes. The question there was when did the
statute begin to run in terms of whether you could file the
claim.
Chairman Hatch. In County of Riverside v. Superior Court,
did you not write an opinion holding that under the Public
Safety Officer's Procedural Bill of Rights, a peace officer is
entitled to view adverse comments in his personnel file and
file a written response to a background investigation of the
officer during probationary employment.
Justice Brown. That is also correct, Mr. Chairman.
Chairman Hatch. Okay. And in the 1997 case, Mountain Lion
Foundation v. Fish and Game Commission, was not your opinion
again for the court's majority by the way, described by
environmental groups as ``a clear affirmation of strong
environmental protection in California,'' and a reaffirmation
of ``the importance of endangered species protection''; is that
right?
Justice Brown. I had not heard the comment from the
environmental groups, but it was a case that said that the Fish
and Game Commission had to play by the rules if they were going
to remove a species from the Endangered Species List.
Chairman Hatch. So the overall point here is that your
opinions have fallen on both sides of many public policy
issues.
Justice Brown. I think that's true.
Chairman Hatch. The way I see it, you have applied the
light equally to litigants in cases that have come before you
regardless of the policy principles that are at stake. Do you
think that is a fair characterization?
Justice Brown. I think that that is a fair
characterization. I think that one of the reasons I am eager to
have this hearing and to discuss what I have done is that I
think if my record is fairly evaluated no conclusion can be
reached except that I do the job the way it is supposed to be
done, that I am a principled judge, and that I am not an
idealogue of any persuasion.
Chairman Hatch. I expect that during the course of this
hearing we are going to hear much about other cases that you
have decision during your tenure on the bench. We have already
heard some by the Senator from Illinois, Senator Durbin, so I
felt that it was important at the outset to demonstrate your
record of fairness in reaching the results the law compels
instead of some predetermined outcome, because that is the
implication of the criticisms of some of these outside groups
and maybe even some of our colleagues. But we will undoubtedly
hear today, also hear today about some of the speeches that you
have given in a personal capacity. Some may even find some of
those speeches or some of the language in those speeches
inflammatory, at least that has been the accusation.
So let me ask you this, Justice Brown, right out of the
gate. Do you understand the distinction between acting as a
judge in an official capacity, and are you committed to
following the law and not injecting your personal opinions in
your judicial opinions?
Justice Brown. I absolutely understand the difference in
roles in being a speaker and being a judge.
Chairman Hatch. Let me, for anyone who still has concerns
about Justice Brown's legal philosophy, to her separate opinion
in the case of Katzberg v. UC Regents, which the Court decided
unanimously last November. In this opinion you explained why it
was inappropriate for the Court to seek guidance for its
decision beyond the state constitution and its drafters'
intent, and counseled that the Court should, quote, ``remain
faithful to its role as the final arbiter of the meaning of our
state constitution, and to respect the demarcations between the
respective branches of government.'' Now, as I view it, this is
the antithesis of judicial activism and demonstrates a profound
respect for the proper role of the courts in our constitutional
system. Is that correct?
Justice Brown. I think that is correct and I think you will
see many, many decisions in which I have deferred to the
legislature or argued for separation of powers or for restraint
in the judicial role.
Chairman Hatch. My time is just about up, but I want to
congratulate you for being here. I want to say that knowing
you, I have really been impressed with your approach towards
judging, and I am just very honored to be part of this hearing
and to have you here.
My time is up. We will turn to Senator Durbin.
Justice Brown. Thank you, Mr. Chairman.
Senator Durbin. Thank you, Chairman Hatch. Let me say at
the outset what my colleagues have said. That cartoon is
despicable. It is outrageous. I am sorry that we are even
displaying it in this room. It does not deserve that kind of
attention. It is beyond our condemnation, and I apologize on
behalf of all of the members of the Committee and everyone in
Congress that you and your family would be subjected to this.
Though I do not know the origin of it, it is sad that anyone
who comes before us would face that kind of criticism and I am
sorry that you have experienced this, and I am sorry that your
friends are feeling your pain in this moment too.
It is an impossible situation here. We are asked to sit in
judgment of a person we have never met, try to judge that
person on the basis of what they have said and what they have
done and try to project what they have said and what they have
done into some kind of a suggestion of what they might do in
the future.
I hope you understand that we do have to ask questions
about what you have said as a judge. If we are to set you aside
and say everything is out of bounds, we have to accept the
President's nomination as proof positive that you are ready for
the Court, we would not be meeting our constitutional
responsibility. We have to ask probing questions in the hope
that the record and the answers will give us an indication of
who you are and what you really believe. There are many who
have reviewed the same record that I reviewed and are skeptical
as I am about your nomination to this D.C. Circuit Court. The
Congressional Black Caucus, represented by Delegate Eleanor
Holmes Norton and Congressman Elijah Cummings, and Congressman
Conyers, who was here earlier, in a rare move took a position
against your nomination. I am asking to be made part of the
record letters from 19 members of the California Congressional
Delegation as well as letters from 59 organizations and over
200 law professors, all opposing your nomination.
Chairman Hatch. Without objection, they will be put in the
record.
Senator Durbin. So there is some controversy attached to
this. Do you think it is fair for us to ask you what your
position is on issues based on how you have ruled in past cases
and statements you have made in speeches?
Justice Brown. I certainly think it's fair, Senator, for
you to examine my record and my body of work as a judge.
Senator Durbin. I do too.
Justice Brown. That's what's at issue here.
Senator Durbin. Exactly. Is it also fair for us to look for
nominees to the D.C. Court of Appeals who are in the mainstream
of public thought rather than too far to the left or too far to
the right?
Justice Brown. I really am not sure how to answer that. I
don't know what your responsibility is. I wouldn't try to
define it for you. I think that what you should be looking for
are judges who understand what the judge's role is and who do
the job, who take every case as that case arises, look at the
law and the facts and the litigants and what is happening in
that particular case and try to reach the right answer. That's
the only agenda I have. If that's the kind of judge you're
looking for, I'm that kind of judge.
Senator Durbin. Would you say that your political
philosophy and beliefs are in the mainstream of American
political thought?
Justice Brown. I don't--I hesitate to try to say what is
the mainstream of American political thought. I think that my
judicial decisions are very balanced.
Senator Durbin. Let us go specifically to a question that I
think really gets to the heart of it. You made a speech to the
Federalist Society at the University of Chicago Law School,
something I am familiar with, a large chapter. It was a speech
in April of 2000, and said several things there. I made
reference to some of them. You called 1937, the year in which
President Roosevelt's New Deal legislation started taking
effect, ``the triumph of our own socialist revolution.'' What
do you mean by that?
Justice Brown. Well, Senator, what I'm doing there is
making a speech, and I note that the speeches that have been of
most interest to people are the ones that I have made to
younger audiences, to law students. And in making a speech to
that kind of audience, I'm really trying to stir the pot a
little bit, to get people to think, to challenge them a little
bit, and so that's what that speech is designed to do.
But I don't--I do recognize the difference in the role
between speaking and being a judge.
Senator Durbin. We all understand, as public speakers, that
sometimes you want to be provocative, but I want to know if you
believe that. Do you think that the Franklin Roosevelt New Deal
was the beginning of a socialist revolution in America?
Justice Brown. I don't think that--I think the speech has
to be taken as a whole. Now, I understand that my--you know, my
speeches are maybe not the greatest. I don't have a speech
writer and I do these things myself, and I have a demanding day
job so I often don't have a lot of time to do them, but I think
the speech speaks for itself, and I tried to set it in context.
Senator Durbin. Let us go to another part of the speech
then. Are you familiar with the Lochner decision?
Justice Brown. Yes, I am.
Senator Durbin. This is a decision where the Supreme Court
basically struck down a Massachusetts law that was establishing
standards when it came to the work regulations of those in the
baking industry. It was a limitation on exploitation of labor.
This Lochner decision has been referred to over and over again
as a seminal decision as to the Supreme Court going too far in
striking down state and local regulation to protect, in this
case, workers. You stated that you felt the dissent in the
Lochner case by Justice Holmes was wrong in this speech that
you made in Chicago. So again, I have to ask you, were you
trying to be provocative or do you really believe that?
Justice Brown. Well, Senator, I have, in my opinions, said
that to the extent the Lochner court was using the due process
clause as a sort of blank check to write anything they wanted
into the Constitution, they were justly criticized. And I have
in other opinions spoken approvingly of Justice Holmes' general
attitude of deference toward the legislature because I agree
strongly with that.
The particular issue there that I was trying to focus on
was simply the implication in his footnote that the
Constitution really takes no view of economic liberties. So it
was that that I was looking at.
Senator Durbin. Justice Brown, that puts you in a very,
very limited group of people who have come before this
Committee seeking a judicial appointment. Justice Bork has been
critical of the Lochner decision. Chairman Hatch has been
critical of the Lochner decision.
Chairman Hatch. Almost everybody has.
Senator Durbin. Almost everyone has, and yet you seem to
argue here that--let me quote you directly here--in your words,
quote: ``It dawned on me that the problem may not be judicial
activism. The problem may be the world view, amounting to
altered political and social consciousness out of which judges
now fashion their judicial decisions.'' End of quote.
You seem to be suggesting--and I want to hear your
explanation here--that when the Supreme Court ruled that
Massachusetts was wrong in limiting exploitation of labor, that
they were espousing an economic point of view that they have no
business espousing, and that those who were critical of it were
also espousing an economic view. Where do you come down on
this?
Justice Brown. No, Senator. I hope that I didn't--
Senator Durbin. I am sorry. I have been saying
Massachusetts. This is New York. I stand corrected.
Justice Brown. I think that my response was misunderstood.
What I said was I have, in my own decision, said that the
Lochner court was justly criticized to the extent that they
were using the due process clause to insert their personal
political views, and so when I say that I was responding to his
implication, I'm really talking about the dichotomy that
eventually develops where economic liberty, property, is put on
a different level than political liberties. So that was my
focus there.
And I don't think that that idea is out of the mainstream
at all. I think there are very many commentators who say, you
know, there doesn't seem to be a basis for having created this
dichotomy. And in fact, the Court itself, in more recent cases
has actually said, you know, maybe that idea doesn't really
work, and there's no grammatical basis for saying we ought to
treat these differently.
Senator Durbin. I see my time is about up and I see other
colleagues here. We will have another round. Thank you.
Chairman Hatch. Thank you. Well, as you can see, she
criticized Lochner like all the rest of us.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Justice Brown, in the case of American Academy of
Pediatrics v. Lundgren, either dissented from the decision of
the Court, a 4-3 decision, where the Supreme Court of
California held that the California court imposed a higher
standard on privacy. This involved a case where the issue was
of a parental consent or judicial bypass for the abortion of a
minor. I have made an inquiry as to whether other decisions of
yours involved the abortion issue. Is this the only decision?
That is the only one I have been able to locate with my staff
and Committee staff.
Justice Brown. This is the only time that particular issue
has come before our court.
Senator Specter. The only time. Is it not true that the
California Constitution can impose a more rigid standard on
privacy? You cite in your opinion decisions by the Supreme
Court of the United States, and you enumerate justices who have
upheld the constitutionality of parental consent or judicial
bypass, but is it not true that the California Constitution can
impose a more rigorous standard on privacy which would render
that statute unconstitutional?
Justice Brown. Well, obviously, I did not think so,
Senator. I guess I should start by saying that this particular
case had come before our court before, and shortly before I was
appointed to that court, the court had looked at the same
issue, had looked at this exact same law, and by a 4-3 decision
had said that the law did not violate privacy rights under the
California Constitution.
Senator Specter. Justice Brown, my question is a narrow
one, as to whether the California Constitution cannot impose a
more rigid standard on privacy.
Justice Brown. Well, as to that specific question I think
the answer is no.
Senator Specter. The California Constitution cannot impose
a more rigid standard on privacy than the U.S. Constitution?
Justice Brown. Well, let me explain, Senator. The
California Constitution does actually include the word
``privacy,'' which is not expressed in the U.S. Constitution,
so perhaps an argument could be made that, you know, something
different was intended. But when you go back and look at the
legislative history, you know, the discussion about that
provision, what they cite to is actually Griswold. So the
argument is that it appears that all they were trying to do was
make, express what the U.S. Supreme Court had decided in terms
of privacy.
Senator Specter. I believe a State may have a Constitution
which has a more rigid standard. You can justify your opinion
on the ground, and you go into it in some detail, but you did
not think the California Constitution meant that.
Let me move on to the case of Hi-Voltage v. San Jose, where
you invalidated affirmative action which was taken under a
statute on the ground that California Proposition 209 provides
that the State shall not grant preferential treatment on the
basis of race, sex, color, ethnicity or national origin. But is
not the California Constitution on Proposition 209 subordinate
to the Equal Protection Clause of the 14th Amendment so long as
there is a compelling State interest and the issue is narrowly
tailored to address an identified remedial need?
Justice Brown. Well, if you're asking whether a State would
be precluded from having a higher standard, I don't think so. I
mean the U.S. Supreme Court has recognized that in fact in
California that prohibition obtains.
Senator Specter. Does not the Supremacy Clause of the
Constitution mean that the equal protection of the 14th
Amendment trumps California Proposition 209?
Justice Brown. Doesn't the Supremacy Clause mean that?
Senator Specter. Yes.
Justice Brown. Well, the U.S. Supreme Court has not said
that.
Senator Specter. I am not sure whether they have said it or
not. Maybe they have not had it presented, but the State cannot
have a constitutional provision which conflicts with a U.S.
constitutional provision, can it?
Justice Brown. I think that--and I have to admit that this
is not the issue that was before us in that case, and so this
is not an issue that I have looked at in detail.
Senator Specter. You may say that the program did not meet
the equal protection clause of a compelling state interest or
was narrowly tailored to address an identifiable remedial need,
but I do not think that you can just base the conclusion on
Proposition 209 when it conflicts with the Equal Protection
Clause.
Justice Brown. Well, since that was not the question that
was presented to us, and the question was only whether the
program of the city of San Jose violated the California
Constitution, I just have to say it's not an issue that I've
looked at.
Senator Specter. Was the San Jose provision addressing a
compelling state interest? I am going back to the 14th
Amendment. The question is whether it was addressing a
compelling state interest and was sufficiently narrowly
tailored because if it satisfies the Equal Protection Clause of
the 14th Amendment, would that not prevail over Proposition
209?
Justice Brown. I don't know if it would or not, Senator,
because the only case that we have that I can think of that
focuses on this is the recent case of the U.S. Supreme Court,
and it's focusing on universities, and its analysis is fairly
specific to diversity in that context.
Senator Specter. Let me move now to Aguilar v. Avis on the
prior restraint case, which involved the issue of verbal
harassment sufficiently pervasive so as to create an abusive
working environment. And in your opinion you said, among other
things, quote: ``Plaintiffs should not be subjected to racial
invectives in the workplace,'' close quote. But then you found
that the remedy of damages was sufficient, and that an
injunction would be inappropriate as a prior restraint. The
question in my mind is whether this verbal abuse and these
racial slurs, do they constitute fighting words?
I have not recently reviewed Justice Murphy's opinion, but
my recollection is that there is some language that the right
of freedom of speech ends at the end of someone's nose, and
that fighting words are not constitutionally protected. Would
these racial slurs be tantamount to fighting words?
Justice Brown. I don't know that any finding of that kind
was made by the lower court here. It was--a decision was made
that this was pervasive enough that it created a hostile work
environment, and that's how the case was analyzed. And so my
concern was with the content based prior restraint, which under
the precedents of the U.S. Supreme Court is something that is
done very, very rarely if ever, and even in extremely sensitive
situations such as national security, the U.S. Supreme Court
has said that's not appropriate.
Senator Specter. Would you have to have a finding by the
lower court if they were fighting words for you to consider the
specific language which was before your appellate court to make
a determination as to whether they were fighting words and
therefore outside of the ambit of First Amendment protection?
Justice Brown. Well, I think that generally the court would
look at the record that comes up to it and what the court below
was actually deciding, and that's what we did in this case.
Senator Specter. Justice Brown, I had commented in my
statement about a number of your opinions on a very broad
interpretation of the Fourth Amendment, which I found
commendable in finding unreasonable searches and seizures and
invalidating convictions, but also on the inadequacy of counsel
in the Visciotti case, and you dissented on a death case there.
The one other case I want to ask you about in the limited
time is People v. McKay, where a person was arrested for the
infraction of riding his bicycle in the wrong direction on a
residential street, and after he failed to produce a driver's
license pursuant to a California statute, he was arrested and
searched. You made a finding that you suspected racial
profiling may have been a factor in the arrest, and thought
that the search and seizure was inappropriate. It sounds a lot
like the stop and frisk cases of the mid 1960's when the
Supreme Court changed the rule of search and seizure for
temporary stops and frisking. But I am struck by your words
``suspected that racial profiling may have been a factor.'' Did
you have an evidentiary base for thinking that racial profiling
was there? If it was, obviously it is insidious and ought to be
stricken, but do you recollect?
Chairman Hatch. Senator, your time is up.
But answer the question, if you will, Justice.
Justice Brown. Senator, as I recall, there was no testimony
concerning that.
Senator Specter. Thank you very much, Justice Brown.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Specter.
Senator Kennedy.
Senator Kennedy. Thank you very much.
Justice Brown, as others have stated, all of us deplore the
kind of cartoon that is displayed here and all that it
suggests. I have been on this Committee for some number of
years, since I have been in the Senate, and we have really been
free from this kind of activity, suggesting, and I must say in
more recent times some of these kinds of suggestions have been
raised. But it has no place anyplace in our society, and
particularly not here associated with you.
I am very concerned about your statements that you have
made in your speeches which are highly critical of the role of
Government. This is particularly important because if you are
confirmed you are going to sit on the D.C. Circuit, whose job
is primarily to review the governmental actions. And to mention
again in your speech at the Federalist Society, you stated,
``Where Government moves in, communities retreat, civil
societies disintegrate, our ability to control our own destiny
atrophies. The result is families under siege, war on the
streets, unapologetic expropriation of property, the
precipitous decline of the rule of law, the rapid rise of
corruption, the loss of civility, the triumph of deceit. The
result is a debased, debauched culture which finds moral
depravity entertaining and virtue contemptible.''
That is in the Federalist speech on April 20th.
Then in the 1999 speech at Claremont McKinney College you
stated, ``Where Government advances, it advances relentlessly,
freedom is imperiled, community impoverished, religion
marginalized, civilization itself jeopardized.''
Now, the D.C. Circuit Court has the very special
jurisdiction, National Labor Relations Board, how workers are
going to be treated, whether they are going to be able to have
their rights represented in the workplace. You have OSHA as a
result--and many people are against OSHA--but since the time of
passing of OSHA we have cut in half the number of deaths as a
result in the workplace in our country over the period of the
last 30 odd years. That is OSHA, and it continues to be out
there, trying to protect workers in the workplace. You have the
endangered species area. You have a whole range of
Environmental Protection Acts, the Clean Air, the Clean Water
Acts, real implications in terms of communities. I could take
you up to Woburn, Massachusetts, where Civic Action, the book
and the movie was written about, that 12 children died from
poisons that were put into the water because people dumped into
a site just north of that community, and the water came down
deep in the seepage and came into wells that were being used
within that community.
These issues have real implication for real people, and
they are Government, Government, Government action, that are
out there to protect people.
My question to you, how in the world can anyone whose
rights are being represented and protected by these
organizations have any confidence with how you will rule in the
D.C. Circuit when you have taken these positions which are
clear from the reading and your testimony, have such a
despicable attitude towards what Government and Government
institutions can do?
Justice Brown. Well, Senator, I think they can have
absolute confidence. I think if you review my record and the
way that I have ruled as a Judge, you could have absolute
confidence as well. I don't hate Government. I am part of
Government. I have been a public servant for 99 percent of my
professional career. I know that there are some things that
only Government can do, some things that would not get done
unless Government does it. So I can implement the law. I have
been doing that.
Senator Kennedy. The reason we raise it is because of these
other statements about your attitude towards--and there are
people that have that view. I respect that. I mean I respect
it. I differ with it. I think there are legitimate roles and
there are other places where it should not be, but there are
legitimate areas where we have seen where Government has not
taken action where there has been extraordinary exploitation.
You see it with regards to stockholders in the WorldCom or you
see it with regards to pension rights, how they have been
thrown over the side when you do not have some protections. You
see it with the Government role--NIH is a governmental agency,
National Institute, cancer research, governmental agency. And
your hostility is to extraordinary in these kinds of
statements, I was just again startled by the strength. It was
not just one speech. It was not just even a phrase that my
colleague pulled out about Franklin Roosevelt and socialism. I
am not just taking one comment about the definition of
Government or even one speech but several.
Justice Brown. I understand what you are saying, Senator,
so I want to do everything I can to assure you that I
understand that Government can have a very positive role and
that there are very beneficial things that Government can do.
We all, I think, respond and speak out of our experiences and
out of the things that move us and that concern us. And so what
I am talking about there is really where the Government takes
over the roles that we used to do as neighbors and as
communities and as churches. I think it is important for us to
preserve civil society, but I am not saying there is no role
for Government.
Senator Kennedy. Well, I am not sure that that comes
through as clearly as you have stated it here. Let me go to an
issue regarding the racial slurs and the unlawful harassment.
In your record concerning your cases in the area of employment
discrimination, I would like to ask you about your decisions in
that area. The Supreme Court, as you know, has held that verbal
harassment violates Federal job discrimination laws based on
sex or race and if it is so extreme that it creates a hostile
work environment. And that was something that was recognized in
1991 on the Civil Rights Act, which I was the principal sponsor
of, Title VII. This is what was in the report in Title VII,
which was particularly concerned with providing remedies to
victims of harassment and specifically discussed verbal
harassment and other harassment that might be considered in
speech.
Let me read you some of the examples that we wrote in Title
VII. In the House report, James Williams suffered through
racial slurs, jokes, pranks, such as the posting of a Ku Klux
Klan application on the company bulletin board in an
oppressively racist work environment.
The legislative history shows Ramona Arnold, a female
police officer, suffered when, among other things, sexual
pictures with her name written on them and posted around the
station house, signs saying, ``Do women make good police
officers? No.'' were posted around the station house and on her
supervisor's car.
Rodney Consten, a millwright, got along well until he used
anti-Semitic references on this. All this spelled out with
regards to the verbal harassment.
Then we came to the situation in the Aguilar Avis case with
which you are familiar. You wrote a dissent arguing the First
Amendment prevented the court from ordering a supervisor not to
use racial slurs in the workplace. You reached this conclusion
even though a jury found that the same supervisor harassed
Latino workers by calling them racially derogatory names.
Apparently, in your view, it did not matter that the trial
judge found that a court was probably the only way to make
harassers stop using these slurs.
In your dissent, you acknowledged the Supreme Court had
held that verbal harassment based on race or sex is unlawful,
but you question whether the Supreme Court's opinion is
consistent with the First Amendment. Your dissent in this case
was not limited to California law. You went so far as to
suggest that the First Amendment prevents courts from
prohibiting verbal harassment under Title VII of the Civil
Rights Act of 1964, the Federal law against job discrimination
based on race, sex, national origin, and color discrimination.
You recognized that there were remedies, remedies for
damages. But how are we going to expect a worker that may be
successful and is told, if your position holds, that if they go
back into that workplace and they continue to be harassed,
harassed, harassed with these verbal remarks, they can come
back in court tomorrow and get another judgment in damages? How
does that possibly advance the cause of justice and fulfill
what we were trying to do to deal with this kind of verbal
harassment in the civil rights laws?
Justice Brown. Well, Senator, let me say that I absolutely
agree with you that no one should be subjected to this kind of
harassment, to verbal slurs. I couldn't agree with you more,
and as someone who has been on the receiving end of that kind
of conduct, you have my wholehearted support in terms of saying
we have to do something about that. And we have, and all that I
was saying in that case is that the damages remedy is a
deterrent. I think that damages in this particular case would
be totally effective because you are dealing with this
corporation that is not going to want to go through this
continually and which, if they don't respond, will actually be
probably looking at punitive damages.
So the only question really that was open there was whether
you had to go further to this content-based prior restraint,
which I think is really a problem under the First Amendment.
If there were no other way, then, you know, maybe it would
weigh the other way. But here I think there was an adequate
deterrent, and I think probably money damages is more of a
deterrent.
Senator Kennedy. Well, my time is up, but what you are
basically saying is that he goes back to work and has to file
another case, and another case and another case and another
case and another case. How many of these--and go through all of
the costs of litigation that comes with that rather than just
having what we were very clear in the 1991 Act? You mentioned
earlier you read and value legislative history as very clear in
what we were trying to do in Title VII in 1991. We used these
illustrations time and time again in that report, exactly what
we were trying to do. I am just disappointed at the fact that
that part you found as a dissenter unable to follow.
Justice Brown. Well, I think these are difficult cases,
Senator, because there are countervailing interests, and there
were a number of other judges on my court who also expressed
the same concern about a prior restraint.
Senator Kennedy. Well, I think you were in the minority on
this, were you not?
Justice Brown. Well, I was in the minority, but I was not
alone.
Chairman Hatch. Senator, your time is up.
Senator Craig?
Senator Craig. Thank you very much, Mr. Chairman.
Justice Brown, we have not met. I am looking forward to
that. I am one of the few on this Committee who is a non-
lawyer, so I will not dwell a great deal on different cases or
decisions you have made. I am extremely interested, though, in
the character of the person because we all seek to have in
these high courts people of outstanding integrity, who believe
in our Constitution, and who recognize its importance as the
foundation of our Government.
I am reading a quote from a national organization that
happens to think quite highly of you when they say that,
``Justice Brown represents the very best in American legal
life,'' I think you probably also represent the very best in
American life. ``A woman of impeccable character and
unimpeachable integrity, she overcame any challenges on her
past to a seat on the highest court of America's largest State.
Her dedication to upholding the Constitution is clear,'' and so
far today it is obviously that and becoming more clear.
``She has shown unfailing dedication to the rule of law,
even in cases where it led her to conclusions with which many
disagreed.'' I think the discourse with the Senator from
Massachusetts in the last few minutes might suggest some of
that.
``Her record is one of moderation and excellence in
protecting racial equality, defending civil and constitutional
rights, safeguarding the right to free speech''--I believe we
have just discussed that a bit--``protecting the right of
consumers and being fair to criminal defendants. Most
importantly, her intelligence and thoughtfulness are a perfect
fit for the D.C. Circuit, a court that has attracted the best
and the brightest in our legal tradition.''
That is a pretty outstanding statement and recommendation.
So the question then is: Are you qualified?
Justice Brown. I was afraid you were going to ask me if I
disagreed with that.
Senator Craig. No, I am not going to do that.
[Laughter.]
Senator Craig. But the question is and we are to seek out
whether you are qualified. One Senator from Illinois suggested
that the ABA suggested you were not qualified. Let the record
show that a minority of that Committee said you were not
qualified. A majority said you were qualified.
In fact, I find it interesting that when the ABA meets--I
have found it fascinating over the years to watch us use ABA
ratings. If you agree with them, they are great. If you
disagree with them, it is a bunch of lousy lawyers who got
together and who had all the wrong opinions about a certain
subject, and in this case an individual qualified to be a
judge.
If the Committee of the ABA has been unanimous in its
rating, the Chair so states; otherwise, the Chair discloses
that the nominee received the specific rating for a majority
and a substantial minority of the committee, noting that a
minority gave the nominee another rating. In other words, so
stated as the Committee reacts.
The majority rating is the official rating of the
committee. ABA's official rating of you is qualified. That is
what this Committee record ought to show, not to slide in in an
opening comment that somehow the ABA found you unqualified.
Miguel Estrada, unanimously well qualified. Well, nobody
spoke of that here except those who supported him. It was not
used as a tool of argument.
Priscilla Owen, unanimously well qualified; Pryor,
substantial majority, qualified.
Oh, what games we play.
Mr. Chairman, in searching out why--let me see if I can
find what I am interested in here--why a cartoon of the kind
that has appeared in a liberal newspaper would characterize you
as such, here is the only thing I can find, and this is from a
national columnist, and he says, ``What really scares the left
about Janice Rogers Brown is that she has guts as well as
brains. They haven't been able to get her to weaken or to
waver. Character assassination is all they have left.''
Let's talk about your character. Tell me about your mother
and the influence she and your father had on you. I suspect
that down deep there stands a foundation. Would you please?
Justice Brown. Well, thank you, Senator, for giving me the
opportunity to respond. I am not a person that talks much about
my personal life, but you are right. There is a foundation, and
it is a strong one. I come from a very loving, supportive
family, but a family that I guess is a little bit firm and
stern in the way they look at life and--
Senator Craig. Disciplined?
Justice Brown. --personal responsibility. If my family had
a motto, it would be, ``Don't snivel.'' So that is what I grew
up with.
The greatest influence probably on me was my grandmother,
perhaps both of my grandmothers, who were themselves very
strong women, of somewhat limited education but very bright
women, very determined women. And my grandmother on my father's
side probably was the person who in my early life really shaped
the character that I have. She was a woman who did not suffer
fools gladly, someone who had a very, very strong sense of
herself as a person and of her dignity. She taught me when I
was very little that there are some things that you have to
submit to. I grew up in an era when everything was segregated,
and so she would say, well, you have to go to a school that's
segregated because you must get an education, and you have to
go to a hospital if you are sick, and if it's segregated, you
don't have any choice. But about those things where you have a
choice, you will not do that. You will not go in the back door
of movie theaters. You will not go in the back door of the bus
station. You will not go in the back door of a place to eat.
And so this was her attitude, that you have to deal with
what you have to deal with. You can be bowed but not broken
unless you allow people to do that to you.
We had a very clear sense of right and wrong in the family
in which I grew up. We had a very strong work ethic. And so
that is kind of what I was raised--a very deep faith that is
part of your life and that your life is supposed to reflect
that you are a person of faith. And I remember a conversation
that I had with her, and I was very young and I don't know why
we had this conversation. But she said, you know, there are no
menial jobs. You do whatever you need to do to take care of
your family. But you do that job the best you can, and someday
when you go on to something better--and you will--they should
say about you 10 years later, That Janice, she was the best
dishwasher we ever had.
So her attitude was, whatever you do, be a legend. So
that's kind of my background.
Senator Craig. Is that grandmother still alive?
Justice Brown. She is not. I wish she was.
Senator Craig. I wish she were, too.
Justice Brown. But I know she's here in spirit.
Senator Craig. She obviously would be and I am sure is
very, very proud of you. Thank you.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Justice Brown, thank you very much for the time you spent
with me yesterday. I appreciated it, and I thought a lot about
it. And I have reviewed some more of your opinions. I have
reviewed all your speeches going back to 1993. And the
conclusion I come to from the speeches is that they are
extraordinary for a sitting justice to make when you are an
appellate court justice as well as a Supreme Court Justice,
that your views are stark. So the question I have: Is that the
real you? Will that be the you as an appellate court justice on
the most important circuit in the land? And how can I depend on
the fact that you are going to disassociate yourself from these
views and follow the law?
So I thought, well, let me take a look at some of her
opinions on stare decisis, and let me begin by saying I was
always very impressed with something Alexander Hamilton said in
the 78th Federalist Paper, and that is, ``To avoid an arbitrary
discretion in the courts, it's indispensable that they should
be bound down by strict rules and precedent.'' And, generally,
when we have a judge before us, I cannot remember us really
confirming anybody that did not say they would strongly agree
to abide by precedent.
But when I reviewed your cases, I found that in many
respects you openly flouted precedent, and let me give you some
examples: Kasky v. Nike, Stop Youth Addiction v. Lucky Stores,
Green v. Raley Engineering, and People v. McKay. And here is
what you said in those cases.
In People v. Williams, you argued that you were
``disinclined to perpetuate dubious law for no better reason
than it exists.''
In Kasky v. Nike, you argued for overturning precedent
related to the definition of commercial speech because it
didn't take into account the ``realities of the modern world.''
In People v. McKay, you argued against existing precedent.
You argued that, ``If our hands really are tied, it behooves us
to gnaw through the ropes.''
Now, there are questions of great constitutional import
that come before the D.C. Circuit. If I combine these opinions
with your rather stark personal philosophy and the words you
have used in speeches for 10 years now, how can I depend on
you, A, following precedent, carrying out the doctrine of stare
decisis, and giving people just simply a fair shake when you
have a whole litany of these statements which, for a judge, are
extraordinary intemperate to be making?
Justice Brown. Well, Senator Feinstein, I thank you for the
question and I thank you for your time yesterday.
Senator Feinstein. You are welcome.
Justice Brown. I really appreciated having an opportunity
to talk with you. I actually thought it was an interesting
conversation.
Let me respond to your question first by taking issue with
the characterization that my speeches are intemperate. I may
speak in a very straightforward way. I am very candid, and
sometimes I am passionate about what I believe in. But often I
am talking about the Constitution, and what is being reflected
in those speeches is that I am passionately devoted to the
ideals on which I think this country is founded. And I try to
get people to recognize how important that is.
Senator Feinstein. Then you would say that the quote which
I read to you yesterday--and I will just read one part today--
on Government is that ``the result of Government is a debased,
debauched culture which finds moral depravity entertaining and
virtue contemptible,'' you really believe that?
Justice Brown. Well, as we discussed yesterday, I am myself
part of Government. I think that there are many things that
Government does well, many things that only Government can do.
But I'm referring there to the unintended consequences of some
things that Government does. But I would really like to go back
and respond to the specific cases.
You take issue with the fact that I sometimes chide the
court or sometimes suggest to the court that we should review
prior precedent. I do that. I don't think that's something that
a judge should not do. But I think you have to recognize that
the roles may be different. If you are part of an intermediate
appellate court, you are bound by precedent. Whenever that
precedent is clearly on point, you have no choice about that. I
have been a member of an intermediate appellate court, and I
have been bound by precedent, and I have lived within that
precedent.
When I was a member of the Third District Court of Appeal,
I wrote more than 150 opinions, only three, I think, separate
opinions, and only two dissents. There was nothing for me to
talk about because, to the extent this was controlled by a
higher court, it was controlled by a higher court. I did
exactly follow that precedent.
The role of a Supreme Court, a court of last resort, I
think is different, because except for the U.S. Supreme Court,
there is no one to rethink what we do. And so it is the court
itself which has to decide whether they need to think
differently about some precedent that they have laid down.
I think it is perfectly appropriate, even if you are on an
intermediate appellate court, to say this is the decision that
I come to because I am bound by this precedent, but I think the
court ought to take a look at this because it is not now
working well.
So two things are going in these cases. In Kasky v. Nike,
I'm acknowledging that there is a line of precedent that the
Supreme Court has laid down, that we are bound by that, but I'm
saying to the court, Perhaps you ought to rethink this because
times have changed and perhaps it is not working very well. And
I think that is a perfectly legitimate position for a lower
court judge to take, and it doesn't mean that you flouting
precedent.
Now, in the Stop Youth Addiction case, that was really a
different kind of problem because that was our case. The reason
that I have such a problem with 17-200 and these particular
statutes is they have no standing requirement. And because they
don't and because mostly of the way the court has interpreted
the language, it is not here a legislative problem. In fact, at
the point that I did the Stop Youth case, there had been a very
recent report from the Law Revision Commission that said the
court's interpretation in these cases has created a problem
because the interpretation has been so broad that we have this
separation of powers problem, we have a due process problem.
So I was talking to my colleagues on my court, saying we
have perhaps created this problem, and if you've been keeping
track of what's going on in California, you know there has been
a very heated debate about 17-200 and whether it needs to be
fixed and what the problems are. And those problems flow from
that broad interpretation.
So there, again, I think I was doing what a judge should
do, which is saying to my colleagues, you know, we have made
this decision, we have this long line of decisions, but when we
see what the result of it is, maybe we need to think again
about what we were doing.
Green v. Raley Engineering, I'll probably get in trouble
here because I don't remember that case very specifically. But
I think that what was going on there was the expansion of a
Tammany claim. That is a common law claim that the California
courts basically invented, saying if you are fired for some
reason that violates public policy, you may have a cause of
action. Even if you have no statutory claims of any kind, you
may have a common law cause of action. But the court, when it
created that remedy, said we are only filling in gaps. You
know, we have done this so that where there is no remedy, there
is no law, and somebody is in this situation, they can have a
remedy.
And so I often have a disagreement with my colleagues
because I'm saying to them, You said this measure was for the
gaps, and yet you are constantly expanding it. And we also said
we won't find public policy. We won't just go out there and
invent it. We will only find that there's a violation of public
policy where it's tethered to either the Constitution or some
statute, so that we're deferring to the legislature, not just
inventing it. But then we constantly expand it.
So those are the kinds of discussions that I'm having with
my colleagues in those particular cases.
Senator Feinstein. What would be your position on stare
decisis then as an appellate court judge in the Federal system?
Justice Brown. Well, as an intermediate--a judge on an
intermediate appellate court, I would follow binding precedent.
I absolutely have demonstrated that I will do that.
Senator Feinstein. Okay. Because takings cases perhaps will
come before you in one way or another, and we discussed your
dissenting opinion yesterday in San Remo v. San Francisco--and
for those that don't know, this was a challenge to a city
ordinance, and what the ordinance said is that in order to
transition a hotel from residential use to transient use, the
owner of the hotel would have to pay a fee, which could then be
used to help people that were transitioned find other housing.
The city has a short housing supply, and I think everybody
knows the rest of that.
The plaintiffs apparently claimed that the ordinance
amounted to unlawful takings of their property. You agreed with
them and said, in short, this ordinance is not a matter of
officially organizing the uses of private property for the
common advantage; instead, it is expressly designed to shift
wealth from one group to another by the raw exercise of
political power; and as such, it is a per se taking requiring
compensation.
Now, the majority said in response to your opinion, however
strongly and sincerely the dissenting justice may believe that
Government should regulate property only through rules that the
affected owners would agree indirectly enhance the value of
their properties, nothing in the law of takings would justify
an appointed judiciary in imposing that or any other personal
theory of political economy on the people of a democratic
state, which kind of gets to my point. Would you impose your
personal opinion, as the majority said you were doing in this
case, on the people of a democratically elected country?
Chairman Hatch. Senator, your time is up, but answer the
question.
Senator Feinstein. Thank you.
Justice Brown. Senator, I thank you for the question. Let
me say, first of all, that I have great sympathy for the idea
that there is a great need for low-income housing in San
Francisco. I myself can't afford to live there, so I can
understand that the city has a need and a problem that it needs
to solve.
Let me say that, despite the majority's characterization of
what I was saying there, I was not suggesting that any
appointed judiciary should impose its political view. What I
was saying is that there is an express prohibition in the
Constitution, both U.S. and California, that says however
beneficial the purposes for which Government is doing whatever
it's doing, it cannot do it by taking private property without
paying just compensation.
So I think the minority's characterization there is just
flatly wrong.
Senator Feinstein. How is this taking private property? No
one was taking the property away from the owner. The owner
wanted to change the nature of the property from residential to
transient. How is this removing, how is this a taking?
Justice Brown. Excuse me for interrupting you, Senator.
This is a taking because what is really happening here is the
city is saying, as a property owner, you still have the
property, that is, you have nominal ownership, but if you want
to do something with the property, you basically have to ransom
it back from us. You have to pay us to get that use back.
And I think the best example of this, because it was very
interesting to me at the oral argument in this case, I said to
the attorney who was arguing for the city, could you, because
there is traffic congestion in San Francisco, and you want to
get people off the highways and make the traffic congestion go
away, could you tell me that I have to use my car, and during
certain hours, I have to pick up someone from the casual car
pool as a way of dealing with traffic congestion?
To which he said--I said, Would that be a taking?
He said, Oh, no, that would just be a regulation of use.
So, I mean, I think it's obvious, when you make it some
other kind of commodity, like a vehicle, what's happening here.
And to me it was very clear. And I think that what I've said
was very consistent with some of the Supreme Court decisions
that have come down in the last 15 years, like Dolan and Nolan.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Hatch. Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman.
Justice Brown, I know you have been asked about this, and I
am not going to ask you about your speech to the Federalist
Society. But I was struck by it. To put this in context, I live
in a town of 1,200 people. It is about five miles from where I
was born in Vermont, a beautiful, beautiful spot. The
Government of it is a basically volunteer Select Board. They
make sure there is school for the children, whether it is
police protection or fire protection or the roads--I live on a
dirt road, but whatever--any of the roads that are paved.
When I read your Federalist Society speech, where you say
``where Government moves in, community retreats, civil society
disintegrates, and our ability to control our own destiny
atrophies. The result is families under siege, war in the
streets, precipitous decline of the rule of law, the rapid rise
of corruption, the loss of civility, the triumph of deceit.''
You may not be surprised that when I mentioned this to members
of the Select Board they say, ``That is us? We are working here
for nothing trying to get this through.''
I just mention that you can see why some may feel that,
contrary to your view, not all Governments in the United States
of America are corrupt, deceitful or encouraging war in the
streets.
On another question, you state that you are a firmly
committed to the notion of judiciary restraint, but in Lane v.
Hughes Aircraft, you said that creativity was a permissible
judicial practice. All judges make law. I would think that
creative lawmaking was the provence of whatever the legislative
body is.
So which branch of Government do you think is best equipped
to determine the proper role of Government in society?
Justice Brown. Well, there is no question that that role
belongs to the Legislative Branch.
Senator Leahy. Under what definition would your view of
judging not be considered judicial activism?
Justice Brown. I don't think that my view of judging would
be considered judicial activism at all.
Senator Leahy. Even though you say all judges make law?
Justice Brown. Well, of course, they do, Senator, in the
sense that there are still some common-law issues, and when
dealing in the common law, judges do make law in that sense; in
other words, you know, if they decide to expand some common-law
remedy or something like that. We have been talking here about
something that the California Supreme Court did. We call it a
Tammany claim. That is law that the California Supreme Court
made.
Senator Leahy. Well, you also said in a speech at the
National Conference of State Legislators that courts have found
``constitutional rights which are nowhere mentioned in the
Constitution.'' Would that include the right to travel?
Justice Brown. I am actually not familiar with cases on the
right to travel.
Senator Leahy. What about the right of parents to direct
the upbringing of their children?
Justice Brown. I don't recall that there is any language
that says specifically parents have the right to direct the
upbringing of their children.
Senator Leahy. The right of privacy?
Justice Brown. Well, the Court, in Griswold, itself had
several different ideas about that.
Senator Leahy. I know what the Court has done, but do you
find that right in the Constitution?
Justice Brown. Well, the Court itself didn't find that
right in the Constitution.
Senator Leahy. Justice Brown, I do not mean to be nit-
picking. Do you find that right? Trust me, all of us read those
cases trying to get through law school or the bar exam, but do
you find a right of privacy in the Constitution?
Justice Brown. Do I find it in the text of the
Constitution, the U.S. Constitution? No.
Senator Leahy. Now, you said at Pepperdine 3 years back, 4
years back, that the United States Supreme Court was incorrect
in applying the Bill of Rights to the States. If I may read the
quote, ``The United States Supreme Court, however, began, in
the 1940's, to incorporate the Bill of Rights into the
Fourteenth Amendment. The historical evidence supporting what
the Supreme Court did here is pretty sketchy. They relied on
some historical materials which are not overwhelming. The
argument on the other side is pretty overwhelming, and it is
probably not incorporated.''
Did the Supreme Court wrongly decided the cases
incorporating the Bill of Rights into the Fourteenth Amendment?
Justice Brown. You know, actually, one of the reasons that
I never transcribed that particular discussion was because I
wasn't very satisfied with it. But at the time I was reading a
number of things which were looking at this whole question of
whether incorporation was right or wrong, and I found it pretty
convincing.
I have since actually found a lot of other things going the
other way in dealing with the debates at the time of the post-
Civil War amendments, which suggests that some of that might
have been there. So I would have to say that that probably is
not entirely correct. The only--I think it still remains
anomalous to incorporate the First Amendment, but there
certainly may be, you know, argument on both sides.
Senator Leahy. Justice Brown, you say that you have thought
about it some more since just as recently as 1999, but these
cases had strong precedents before that. I mean, they had been
decided. They had been incorporated in other decisions. They
had been accepted body of law in this country. In 1999, you
questioned that. Now, in your confirmation hearing, between
then and your confirmation hearing, you change.
I am not suggesting a confirmation conversion.
Justice Brown. No.
Senator Leahy. But from the time you were in law school and
practicing law on the court, it is well understood in this
country that the Supreme Court had incorporated the Bill of
Rights into the Fourteenth Amendment. You had your questions in
1999 in a speech at Pepperdine. I am not quite sure, what is
your position today?
Justice Brown. Well, you know, the position that counts,
and I think I said that, is that whether that's right or wrong,
what the Supreme Court says is what counts. And so, of course,
you know, as a law student and as a judge, I have followed
those precedence. Sometimes speeches are an opportunity to just
kind of think out loud, and at the time I had seen some
material which really raised some questions about this, but I
think I was very clear in saying it really doesn't matter. They
have said it, and that's the law.
Senator Leahy. And that's your opinion today.
Justice Brown. Yes.
Senator Leahy. Your view today.
Justice Brown. Yes.
Senator Leahy. I'm just curious how you analyze things. I
have not practiced before the California Supreme Court. I doubt
if I ever will, so I don't know how you face things, other than
what I have read.
So let us take an issue in the news today. A law recently
passed by the Florida legislature that allowed the Governor of
the State to replace the feeding tube of a severely brain-
damaged woman, over the wishes of her husband. Now, I have
heard very strong arguments on both sides. I am not trying to
decide who is right on this or not. But if you were presented
with a challenge to a statute such as this, how would you
approach the legal and Constitution analysis? How would you
weigh the interests of the party, including the family members
who apparently disagree with one another, with the woman's
doctors, the State? I am thinking of Washington v. Glucksberg.
Again, as I say, I have no idea what I would do in a
situation like that, but is there a limit on the power of the
legislature in a situation like this? How would you approach
that if that was suddenly dropped in your lap?
Justice Brown. Senator, I don't think I can possibly answer
that question.
Senator Leahy. I'm not asking you to answer a question of
how you would come out, but how would you analyze that? How
would you weigh the interests of the parties? How would you
weigh the interests of the State? What would you think about
the power of the legislature in a situation like this? I mean,
how would you go about approaching it?
Justice Brown. Well, you know, of course, a legislative act
always starts with a presumption of constitutionality, but I
would have to know much more about everything, about the facts,
and the law here, and the prior history of this case. There is
no way that I could possibly tell you anything more than that.
Senator Leahy. What kind of facts would you look for?
Justice Brown. Well, presumably, the--you know, I just have
to say I don't even know what the legislature is really doing
here because I thought you said that the tube had been removed
by the court and that the legislature--
Senator Leahy. Gave the Governor the power to order it
back.
Justice Brown. There are so many different levels of--
Senator Leahy. Fair enough. I am just curious how, I mean,
I am not, as I say, I do not know how I would decide, but I was
curious what you would look at, and that is what I was asking.
May I just ask one more question, Mr. Chairman?
Chairman Hatch. Sure. Go ahead.
Senator Leahy. The Libertarian Law Council, you criticized
the judiciary ``for taking a few words which are in the
Constitution, like due process and equal protection, imbuing
them with elaborate and highly implausible etymologies.''
What are some examples of that?
Justice Brown. Well, I think we talked about this earlier,
when Senator Durbin was talking about Lochner, which is one of
those cases sort of universally condemned by everybody because
the argument is that, you know, is there substance to the due
process clause or can you just use it to insert whatever you
want into the Constitution?
Senator Leahy. That is the only example?
Justice Brown. Well, it is probably the best example
because everybody knows it.
Senator Leahy. But you gave a pretty strong statement here.
You seem to be talking about more than one case. What are some
of your other examples?
Justice Brown. None come to mind. I mean, Lochner would
certainly be one. Maybe Dred Scott is such a case.
Senator Leahy. We'll make sure you have a copy of the
speech, look at it again. Would you take a look at it and give
me if there are some other examples you have in mind.
Thank you.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
Just one question to clarify. You said that you did not
find the right to privacy in the express language of the
Constitution.
Justice Brown. That is correct.
Chairman Hatch. Nobody can find it there.
Justice Brown. Nobody can find it there.
Chairman Hatch. But do you agree there is a right to
privacy that has now been established by the Supreme Court in
Griswold and--
Justice Brown. It is clearly established by the Supreme
Court. That is the law.
Chairman Hatch. Do you accept it?
Justice Brown. Certainly.
Chairman Hatch. We will go to Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Justice Brown, we are delighted to have you here. As a
native of Alabama, the State is proud of you and the record you
have achieved. You came up in tough times not too far from
where I grew up, not too many--a few years younger than I, and
those were not easy times.
And I note, with interest, your statement that your
grandfather admired Attorney Fred Gray for his challenging the
segregation that existed at that time. There is no need to deny
it. It was a fact. That is what the situation was. And he came
out of law school with a commitment to end that. I read his
book. Perhaps you have. I have it on my credenza, ``Bus Ride to
Justice.'' He was Rosa Parks' attorney, Martin Luther King's
attorney. He handled the Gomillion v. Lightfoot case. One of
the most extraordinary lawyers in America, and he now is the
president of the Alabama Bar Association, which I think is a
good tribute to his great career.
But I just know, and from reading your remarks and your
history, that you are passionately committed to liberty, and
rights, and freedom, and equality for people. Would you share a
little bit for us how you come to have your views. And I know
they do not always agree with current political wisdom on every
area, but your basic commitment to these values is powerful.
Justice Brown. Well, I think, Senator, that I have this
basic commitment because it is not just history to me, and it
is not just law, it is my life. I think that the Equal
Protection Clause is the centerpiece of the framework of our
Constitution. I think it is probably the most important thing
that we have ever done is to try to guarantee people equality
under the law, and maybe that is because I have lived in a time
when that was not so.
Senator Sessions. I noticed one of your comments dealt with
the fact of, yes, we respect legislation and law, but we have a
right to understand that laws can be better and that laws can
be unfair and unjust, such as the segregation laws that
provided advantages to one race and disadvantages to other
races in the South not too many years ago.
So I think having a moral foundation for your beliefs is
not a negative, but is a strength. Do you not think that Martin
Luther King's arguments went to a moral and religious values as
much as it did to some sort of complex interpretation of the
Supreme Constitution?
Justice Brown. Absolutely, I do, Senator. In fact, one of
his most famous speeches, what he says is that the Constitution
should be viewed as a check that had been written to future
generations about what they could expect. And I believe that
the beginning of the civil rights movement in this country very
much emphasized exactly that idea about equal justice and the
idea of everybody being created equal and that being the
promise of America that we should try to bring to fruition.
Senator Sessions. I thank you for sharing that. I just,
from seeing your record, it is clear to me that you analyze
cases fairly or you take them on the law as you see it. You are
not driven by politics, but you try to do the right thing. If
you were driven by politics or those kind of things, you would
probably be more conforming to what everybody else thinks
somebody should do in this day and age, and I salute you for
that.
Mr. Chairman, I am just so impressed with the support this
fine nominee has had. I noticed this stunning reelection vote,
I believe 76 percent of the vote to be reelected in the State
of California. Everybody knows that California is not
considered a conservative State. If this lady were some sort of
out-of-the-mainstream, how would she win such a predominant
vote there?
Actually, she is part of a movement to strengthen the rule
of law in the State courts of California and very, very strong
support.
Chairman Hatch. She not only had 76 percent, but she was
the top vote-getter among other justices.
Senator Sessions. I think that is so important to note.
A bipartisan group of 15 law professors wrote this
Committee, and they said, ``We know Justice Brown to be a
person of high intelligence, unquestioned integrity and even-
handedness. Since we are of differing political views,'' all of
these professors had different political perspectives,
``Democrat, Republican and Independent, we wish especially to
emphasize that what we believe is Justice Brown's strongest
credential for appointment to this important seat on the D.C.
Circuit, her open-minded and thorough appraisal of legal
argumentation.''
Is that something you, praise you would cherish, Justice
Brown?
Justice Brown. I appreciate that. I believe that I am open-
minded, but I did grow up with a grandmother who said, ``It's a
fine thing to have an open mind, but it shouldn't be so open
everything in it falls out.''
Senator Sessions. Well said. And they note, even if your
personal views might disagree with the law as it exists, those
arguments. So I think that is great.
A bipartisan group of your current and former colleagues
have written also in support. Twelve former colleagues, judges,
wrote this Committee, ``Much has been written about Justice
Brown's humble beginnings and the story of her rise to the
California Supreme Court is truly compelling, but that alone
would not be enough to gain our endorsement for a seat on the
Federal bench. We believe that Justice Brown is qualified
because she is a superb judge. We who have worked with her on a
daily basis,'' not some groups around here to make money
running direct mail, claiming that they are stopping extremist
judges. That is what they do, distorting people's records.
They know you. They have worked with you, and they say that
``She is qualified because she is a superb judge. We who have
worked with her on a daily basis know her to be extremely
intelligent, keenly analytical and very hardworking. We know
that she is a jurist who applies the law without favor, without
bias, and with an even hand.''
They could put that on your tombstone. That would be pretty
good.
Justice Brown. It would be pretty good.
Senator Sessions. Ellis Horvitz, a Democrat and one of the
deans of the appellate bar in California has written in your
support, noting, ``In my opinion, Justice Brown possesses those
qualities an appellate judge should have. She is extremely
intelligent, very conscientious and hardworking, refreshingly
articulate--'' In fact, I think you have a wonderful way with
words. ``--and possessing great common sense and integrity. She
is courteous and gracious to the litigants and counsel who
appear before her,'' and we can see that in your demeanor here
today, and I think that is an important characteristic of a
judge.
Regis Lane, director of Minorities in Law Enforcement,
wrote, the minority law enforcement officers in all of
California wrote, ``We recommend the confirmation of Justice
Brown based on her broad range of experience, personal
integrity, good standing in the community and dedication to
public service. In many conversations I have had with Judge
Brown, I have discovered that she is very passionate about
plight of minorities in America based on her upbringing in the
South. Justice Brown's view that all individuals who desire the
American dream, regardless of their race or creed, can and
should succeed in this country, are consistent with MILE's
mission to ensure brighter futures for the disadvantaged and
youth of color.''
Well, you have been a leader in the State, and the
Governor's Office of General Counsel for the California
Business and Transportation Group, deputy attorney general in
the Office of the Attorney General, and a legislative counsel
to the California Legislative Counsel Bureau. It's an
extraordinary experience in government issues. They have
suggested you have not been in Washington, but it does not mean
you have not dealt with Government issues throughout your
career; is that not true, Justice Brown?
Justice Brown. That is true, Senator. I don't have the
specific Federal experience, but I am not without experience in
administrative law.
Senator Sessions. And some of those issues dealt with the
Federal Government at times, did they not?
Justice Brown. That's true.
Senator Sessions. Well, Mr. Chairman, I just want to say
that it is so wonderful to see a justice of her skill and
ability and integrity, proven record, who has the broad support
in the State of California, be nominated for this important
office.
I would note on the question of whether or not this court
needs 12 judges, I do not believe it needs 12. I suggested some
time ago that we not, we reduce officially the number for the
bench, and my colleagues on the other side of the aisle blocked
that and did not support that, and now they are talking about
that. It is something that we should consider.
I believe, I would be reluctant to fully fill this bench to
12, but we are now I think 9 or 10, and we need another judge,
and I think this would be a great justice to the court.
Chairman Hatch. Thank you, Senator. I personally believe we
ought to put a full component on the bench, and the
administration has nominated people for at least 11 of the
seats.
We have a vote on the floor, so here is what we are going
to do, and you have been sitting there for quite a while.
Senator Feingold is coming back to question you. He will have
10 minutes while the rest of us go to the floor. I will
immediately return, but we will allow Senator Feingold, who is
a gentleman, to start his questioning, even without me here. I
am sure that will be fine with you, too.
And then what we are going to do, because there are other
Democrats who would like to ask questions, including the
Ranking Member here today, we will recess until 2:15--is that
okay with you? That will give you a little bit of a break, and
then we will come back, and hopefully this next round will
complete the hearing for today, and we will finish it today.
So we appreciate your patience. I personally appreciate
your articulate answers to all of the questions that are very
difficult questions for anybody, and you have handled them very
well.
So, with that, we are going to take off and vote. When
Senator Feingold gets here, his staffer will have him ask
questions, and then we will adjourn till 2:15. I will try and
get back myself, but if I do not, and he finishes, then let us
just adjourn, but no more than 10 minutes. Okay?
[Laughter.]
Justice Brown. Thank you, Mr. Chairman.
Chairman Hatch. I do not want everybody else on my back. So
10 minutes, I have tried to maintain that, even though I have
had to yield a little bit here, and I want to thank my
colleagues for honoring that and showing respect to the Chair.
It means a lot to me.
So, with that, we will recess until Senator Feingold gets
here. He will ask you his 10 minutes, and then we will recess
until 2:15.
[Recess from 12:42 p.m. to 12:49 p.m.]
Senator Feingold. [Presiding] I will call the Committee
back to order. I want to thank the Chairman and the majority
for allowing me to proceed in this manner so I can ask my
questions.
Justice Brown, welcome, and thank you for appearing before
the Committee.
A little while ago you testified in response to questions
from Senator Hatch that your record could lead to no other
conclusion than, quote, ``I am not an idealogue of any
persuasion,'' unquote. You said that, right?
Justice Brown. Yes.
Senator Feingold. Let me read the opening of a speech you
gave to the Federalist Society in 2000 at the University of
Chicago Law School. You said, ``I want to thank Mr. Schlangen
for extending the invitation, the Federalist Society, both for
giving me my first opportunity to visit the city of Chicago and
for being, Mr. Schlangen assured me in his letter of
invitation, a rare bastion, nay, beacon of conservative and
libertarian thought. That latter notion made your invitation
well nigh irresistible. There are so few true conservatives
left in America that we probably should be included on the
Endangered Species List. That would serve two purposes,
demonstrating the great compassion of our Government and
relegating us to some remote wetlands habitat where out of
sight and out of mind we will cease being a dissonance in
collectivist concerto of the liberal body politic.''
Can you explain what you meant when you testified that you
were not an idealogue of any persuasion in light of what you
said in that speech?
Justice Brown. Well, I--yes, Senator, I can. And what I was
referring to when I was speaking to the Chairman is that I
think--and he was talking about what I have done as a judge,
and I think that if you look at the cases that I have done as a
judge, you will find a very evenhanded application of the law,
that I approach the task by looking at the law and the facts in
the particular case, and just trying to get it right.
Senator Feingold. So if we were to really put your
statement in context you would say, I am not an idealogue of
any persuasion in my role as a judge? Is that a more accurate
statement?
Justice Brown. I'm not--I think that's one way of putting
that, but I'm not sure that I would concede that because I
really don't think that the conservative view that I have,
which is a kind of classical conservatism, is ideological at
all. But I can certainly say that I'm not ideological as a
judge.
Senator Feingold. Well, I tried to give you a way out, but
I do admire your candor. [Laughter.]
Let me try something else, exploring some of your writings
relating to senior citizens. You dissented in an age
discrimination case, Stevenson v. Super. Ct. In that case Ms.
Stevenson worked for a hospital for over 30 years and shortly
before her dismissal by the hospital Ms. Stevenson took a
period of approved medical leave from work. She informed the
hospital that she wanted to return to work well within the
period during which her right to reinstatement was guaranteed
by hospital policy. Despite this, the hospital refused to
reinstate her to her old position or to reinstate her to
another position pending an available opening at her original
job. Ultimately the hospital fired Ms. Stevenson and she sued.
The issue in the case was whether Ms. Stevenson was
entitled to sue her employer under the common law theory that
the hospital's actions constituted a wrongful discharge because
of a fundamental public policy against age discrimination.
The majority of the court found that Ms. Stevenson could
bring such a lawsuit. You dissented. In your dissent you
stated: I would deny the plaintiff relief because she has
failed to establish the public policy against age
discrimination inures to the benefit of the public or is
fundamental and substantial. Discrimination based on age does
not mark its victim with a stigma of inferiority and second
class citizenship. It is the unavoidable consequence of that
universal leveler, time, you wrote.
Before asking you about that dissent, let me also note a
portion of a speech you gave in August 2000 to a group called
the Institute for Justice. You stated the following: My
grandparents generation thought being on the Government dole
was disgraceful, a blight on the family's honor. 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.
You go on to say in the same speech: Big government is not
just the opiate of the masses, it is the opiate, the drug
choice for multinational corporations and single moms, for
regulated industries and rugged midwestern farmers and militant
senior citizens.
In light of these statements it is not surprising to me
that a number of organizations representing seniors, led by the
National Senior Citizens Law Center, have written to the
Committee in opposition to your nomination. I would like to
give you a chance to explain the statements I just quoted, but
let me also ask you two questions.
First, do you really believe that age discrimination does
not stigmatize elderly Americans, and that this kind of
discrimination not only should be tolerated in our society but
is actually natural and justifiable?
Second, given the views you have expressed, can you
understand why senior citizens would be concerned about
appearing before you in an age discrimination case? And what in
your record would you point to alleviate those concerns?
I guess I will simply, hearing no objection, have a letter
from the National Senior Citizens Law Center included in the
record at this point.
But now I will turn to you for your explanation of your
comments and your answer to those two questions.
Justice Brown. Thank you, Senator. I hope I can remember
all of the different parts of this question. I want to start
with Stevenson because I think somehow making a jump that what
I did in Stevenson had something to do with, you know, what I
said in the speech, and nothing could be further from the
truth.
The first thing to know about Stevenson is that age
discrimination is covered by the Fair Employment and Housing
Act in California. We call it FEHA. The way that the
legislature has provided for age discrimination gives a more
limited remedy and it's available in more limited circumstances
than other kinds of discrimination. So part of what I am saying
there, the legislature has already determined. In other words,
the California legislature treats age discrimination
differently than other kinds of discrimination. And my
statement that it doesn't have the stigma simply reflects the
reality that we all know and love people who are old, and if we
have a long life we are going to be people who are old. We all
pass through that stage. So in that sense it's different from
being a racial minority or gender discrimination.
The other thing that I want to make clear about Stevenson
is that I'm not here denying a remedy for this litigant,
because they do have a remedy under FEHA. The question that was
presented to our court was should we also have this parallel
common law remedy? And we've talked about this a lot this
morning, but in California the court has said if you are fired
from a job for a reason that violates public policy, then you
may have something which we call a Tammany claim, meaning you
may have this common law remedy that may also apply. I have
argued in a series of cases that because the legislature has
acted comprehensively in providing for the FEHA, have actually
balanced the competing considerations here and have determined
how it wants this to work, that this is a circumstance where it
may not be appropriate for the court to come in and create
another remedy that is parallel to and perhaps undermines what
the legislature is doing.
Senator Feingold. I appreciate your explication of
Stevenson and your reasons for it, and I did invite you to do
that, but let me now return in my remaining time to the two
questions that flow from that. I acknowledge your obviously
superior knowledge of the California law certainly to mine, and
your point that perhaps the California law relating to age
discrimination is not as expansive as some other discrimination
law. But my sense is that of course California does, through
its legal system, strongly the problem of age discrimination
and has passed laws to try to deal with it. Is that correct?
Justice Brown. That's correct.
Senator Feingold. In light of that I would like to hear
your answers to the two questions that I--you are right, I did
as you for a number of things, so let me review what they were.
First, do you believe that age discrimination does not
stigmatize elderly citizens, and that this kind of
discrimination not only should be tolerated in our society but
is actually natural and justifiable?
And the second question was: can you understand, given both
the Stevenson case and the comments that I read from your
speech that there could well be senior citizens who would be
concerned about appearing before you, and what do you have to
say to them?
Justice Brown. Let me respond to the first part of that
which is I do not believe that I have ever said that age
discrimination should be tolerated. I don't believe I've ever
said that any kind of discrimination should be tolerated.
What's being discussed there is simply that age discrimination
may be different than other kinds of discrimination, not that
it should be tolerated.
Senator Feingold. Does it or does it not stigmatize elderly
Americans, age discrimination?
Justice Brown. I do not think that it is the same as--you
know, I think that discrimination is wrong. I think that we
have laws against age discrimination and they should be
enforced. But I think the fact that we all pass through these
stages makes it different in quality from other kinds of
discrimination.
Senator Feingold. I think that is a fairly straight answer
and I am going to take it as saying that you do not think it
stigmatizes senior citizens, although it may have other
negative consequences.
Justice Brown. I think that--
Senator Feingold. Is that a fair statement?
Justice Brown. I think that would be fair.
Senator Feingold. And then what would you say to seniors
who would appear before you in court who have expressed
concerns about your positions in these cases and your
statements?
Justice Brown. I would say to them that they should have no
concern because when they come into a courtroom or when their
case is presented at an appellate court of which I am a member,
I am going to look at their case, I am going to look at the
law, I am going to look at exactly what's happening, exactly
the remedy that we have, and I am going to try to resolve that
case correctly, and that is what I have always done, and I will
continue to do that.
Senator Feingold. I thank you. Normally I get a little
extra time due to a kindly Chairman, but I have to keep my
word. So with that we will be--thank you, Justice. We will be
recess until 2:15.
[Lunch recess at 1:00 p.m.]
[AFTERNOON SESSION (2:31 p.m.]
Chairman Hatch. I apologize for being a little bit late but
between asbestos reform, class action reform, other judges and
Medicare and prescription drug reform, I just could not get
back until now, so I apologize.
Let us turn to Senator Schumer. It is his turn to question.
Senator, you have 10 minutes.
Senator Schumer. Thank you, Mr. Chairman.
First, I had wanted to give a little statement, so I am
going to do that.
Chairman Hatch. That will be fine.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. I have to say, Mr. Chairman, that I for
one am disappointed to be here on this nomination. Instead of
finding well-qualified, consensus and moderate nominees, the
White House has once again, in my judgment, reached out for an
out-of-the-mainstream activist of the first order. It is almost
as if the administration is looking for the nominee who will
most antagonize us, not personally, but through her views,
rather than one on whom we can all agree.
In case after case Justice Brown goes through pretzel-like
contortions of logic to get to results that hurt workers,
undermine environmental protections and do violence to basic
rights.
As I reviewed Justice Brown's record, the one thing that
came through loud and clear is that she is consistently
inconsistent. Time and time again when a legal question is
presented twice, she takes two totally opposite approaches in
order to achieve the outcome she wants. A judge who makes the
law instead of interpreting it is a judicial activist. Making
law, not interpreting it, is an undesirable quality in a judge
whether that judge is coming from the far right or the far
left, whether that judge is coming from the most liberal or the
most conservative side, because the founding fathers wanted
judges who interpret law not make law, and if you are at the
extremes you tend to have such passionately felt views that you
want to make law, not interpret it. If you have a passion to
bring the United States back to the good old days of the 1920's
or 1890's it is not a very good bet that you are going to
interpret law.
Judicial activism would be bad on any court, but it is
especially dangerous on the D.C. Circuit which is known for
good reason as the Nation's second highest court. Especially
when it comes to workers' rights and the environment, the D.C.
Court is arguably the most important court in the Nation. Since
the Supreme Court takes so few cases each year, and since a
grossly disproportionate number of labor and environmental
cases come to the D.C. Circuit, this is often the court of last
resort for those who seek to vindicate workers' rights and
protect the environment.
Now, Judge Brown's record, when it comes to workers'
rights, the environment and many other important issues leave
many of us up here scratching our heads in wonderment. In a
sense I have to respect her bluntness, but it is obvious to me
that many of the President's judicial nominees want to return
us not just to the 1930's but to the 1890's. I know this has
been discussed, but I cannot get over it. In Justice Brown's
case she is remarkably straightforward in her praise of the
Lochner case, and her criticism of Justice Holmes' famous
dissent there, calling Justice Holmes simply wrong. Even
Justice Bork defended the Holmes' dissent. In Lochner the Court
invalidated a New York labor statute that limited the number of
hours laborers in bakeries could work. Fundamental justice for
most Americans for close to 100 years. The Court, over Judge
Holmes' vigorous and ultimately vindicated dissent, held the
New York statute violated a liberty of contract right that had
not been previously recognized, and the doctrine lived for
three decades until the Court shifted.
If you ask most lawyers to name the worst of Supreme Court
decisions in the 20th century, Lochner would be at the top of
the list. But Justice Brown thinks it was correctly decided.
Even Justice Scalia, who so often advocates cutting back on
Congress's power to protect basic rights, is content to let the
states do so themselves. In this instance, as in others,
Justice Brown finds herself willing to go even further to the
right than Justice Scalia. Justice Brown not only wants to turn
back the clock, she wants to turn back the calendar, and not
just by a few years, but by a century or more.
Justice Brown, you seem like a nice person. You are clearly
a very smart person. But to me, brilliance is not the only
criteria. You can be the smartest person in the world, but if
your views are way out of the mainstream you do not belong on
the D.C. Court of Appeals. So I want to tell you that there is
a lot in your record that troubles me, and I think you have got
a rough road to hoe, at least on this side of the aisle.
My question is this: before we broke for lunch you made the
point that we should view your speeches separately from your
judicial opinions. You said, if I understand it correctly, that
while your political opinions may reflect your personal views,
it is your judicial opinions that reflect what kind of judge
you would be on the D.C. Circuit.
First I would like to know is that a fair understanding of
what you said?
Justice Brown. I think so.
Senator Schumer. Thank you. In light of that, I would ask a
follow up question on your comparison of the post Lochner era
to a socialist revolution. You distanced yourself from that
comparison by saying it was a part of a speech made to a young
audience, and designed to, as I believe you said, stir the pot.
While I think it is a pretty radical comment for a sitting
judge to make, even if it is just designed to spur debate, I am
not satisfied that it is just your personal view and has no
bearing on your judicial opinions, because we all know that
judges' personal views affect their judging. We do not have to
draw on evidence of other conduct.
Let us go to your own record. In Santa Monica Beach v.
Super. Ct. you called the, quote, ``demise of the Lochner era
the revolution of 1937.'' Those are your words. Those are
nearly identical to what you said in your Federalist Society
speech. So even if we were believing your court views as
opposed to your stirring the pot to these young minds' views,
you still seem to cling to that belief, at least until today.
You were also asked about a speech given to the Institute
of Justice, where you said, quote, ``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.'' You dismissed that speech as well,
claiming that it did not necessarily reflect your views as a
judge. But in San Remo Hotel v. City and County of San
Francisco, you said--and that is a case obviously--``Turning a
democracy into a kleptocracy does not enhance the stature of
thieves, it only diminishes the legitimacy of Government.''
Are these not your views both as a private citizen and as a
judge? If not, can you explain why virtually identical
rhetoric, that many would call quite extreme, finds its way
into both your speeches and your judicial opinions?
Justice Brown. Thank you for your question, Senator. There
is a lot there, so I will try to work backwards from your
question to some of the more general statements that you made.
I will willingly acknowledge that a judge is not some kind of
automaton or computer. You know, a judge is a thinking human
being, and the writing of a judicial opinion is an organic
activity. So it is never true that nothing of a judge is
reflected in the work that they do. Writing is that kind of
task. And I think judges have struggled with this forever, and
there's lots of good commentary about how it is that a judge
achieves the necessary distance. And Judge Hand said, you know,
a judge has to be like a runner, stripped for the race.
Frankfurter said, no, it's more that--you can't ever not be
what you are, but you have to be very conscious of it and you
have to put it aside and you have to deal in a very candid way
with the way that you approach the task. So I do not think that
the sides are hermetically sealed, but I think that you can be
very principled in the way that you approach the work, and that
when you make a decision, your decision has to be on the law
and the facts in an individual case and has to be justified,
and that you have to create a context that allows people to
evaluate what you've done and see it clearly.
Senator Schumer. I guess I would ask the question. You were
telling all of us--I am sorry I could not be here this morning
for much of the time--but you were telling us that your views,
as you do in speeches and whatever else, are different than
your court-written opinions, and yet in these two instances,
both again--these are pretty severe statements that you made--
you made very similar statements in your opinions. So how can
we believe you when you say, ``Oh, well, do not worry about
what I say in the rest of the world; just look at what I say as
a judge,'' when the two are so much the same, and you still
seem, even if we were to discount all your speeches, to still
hold these views of kleptocracy and Lochner, and again, the way
I look at it, going back to the 1890's. I think we have made
great strides in America. I would say 97 or 98 percent of all
Americans would agree with me we have made great strides.
And you seem to feel--and you know, we are always a little
leery when people come to this table looking for our support.
We have to look at the record in the past. But whether you look
at the written record--because everyone comes before us and
says, ``Forget what I did in the past. I will just interpret
the law.'' Now, fortunately you have a record and you are a
forthright and very intelligent person. So we can ask. It is
not like some of the others who refuse to answer any questions.
But your judicial opinions seem to have the same views. Again,
explain to me why I should believe that the two are separate
when you have used very similar language and very similar
thinking that you used in your speeches in your court opinions?
Chairman Hatch. Senator, your time is up.
But you should answer the question.
Justice Brown. Okay. I totally agree with you, Senator, in
saying that we've made great strides. I certainly know that,
and I've seen that in my lifetime. It's one of the reasons that
I think this is a great country, because we've been able to be
self critical and we've been able to change, and we've been
able to bring into being some of the, I think, sort of
underlying aspirational goals that go all the way back to the
Declaration of Independence. So I agree with you totally about
that. And--
Senator Schumer. Just explain to me how we can reconcile
what you said this morning in almost identical language and
identical thinking in both the court cases and the speeches in
these two instances.
Justice Brown. I think the way that you can reconcile is
exactly the way that I have explained. I don't think that any
human being thinks in a vacuum. I think that you always come
out of a world view--you are always working through your
experience, your education, your convictions, but as a judge
you have to be conscious of that and then deal with what's
before you.
Now, it may turn out that when I have done this, absolutely
even-handedly and carefully and thoughtfully, that I reach a
conclusion, you know, where I think, well, you know, this looks
like this other thing. But we ought to be concerned about is
whether I am in fact trying to reach that conclusion or being
results-oriented. And I really think that if you look at my
work you will not see that.
Now, what you said earlier was ``you are consistently
inconsistent,'' and then you used that to say, well, you know,
``but you're also ideological.'' I don't think that both those
things can go together. What you are seeing, what you think of
as consistently inconsistent is because I am simply looking at
the case, I am looking at law. I am trying the right decision
in each case.
Senator Schumer. I just want to ask one more question, Mr.
Chairman, with your indulgence.
Do you stand by your views in San Remo Hotel v. City and
County of San Francisco about kleptocracy, and do you stand by
your views in Santa Monica Beach v. Super. Ct. about the demise
of the Lochner era and the revolution of 1937?
Justice Brown. Well, the cases say what they say, and I
hope that--I always try to do an analysis that is very
assessable, that anybody who reads it can understand what I've
said.
Senator Schumer. So you do stand by them?
Justice Brown. I have tried to write--
Senator Schumer. You can answer that yes or no.
Justice Brown. Well, the cases are there. I guess that's--
Senator Schumer. So the answer is yes.
Justice Brown. Well, the concern I have, Senator, is that
you started off--
Senator Schumer. But--
Chairman Hatch. Let her answer the question.
Justice Brown. --making a lot of statements about what that
was, and so--and what my views were and what that meant. And so
all I'm saying is what's in the cases is in the cases, and it
should be clear.
Senator Schumer. I am going to take that as you stand by
those views because you have not refuted them here and you said
what is in there is in there.
Thank you, Mr. Chairman.
Chairman Hatch. Let me just say I do not take it that way.
I take it that, Senator, you have interpreted it the way you
want to, but that is not the way I meant it.
Senator Schumer. Well, Mr. Chairman, it is a simple yes or
no question. Do you stand by them? Do you not stand by them?
And we cannot get a yes or no.
Chairman Hatch. No, it is not because she has consistently
explained throughout this whole hearing that she put this
language into those opinions and that that language deserves to
be interpreted differently from the way you have interpreted
it. It is not just a simple yes or no. I think that is a fair
statement, is it not?
Justice Brown. Yes.
Chairman Hatch. In other words, you do not have to take
Senator Schumer or my interpretation of what your cases say.
But to try and paint you like your back in the Lochner era,
without understanding what Lochner is all about I think is just
wrong.
Justice Brown. Mr. Chairman--
Chairman Hatch. You do understand it.
Justice Brown. Mr. Chairman, if I may, I do need to follow
up on something because the prologue to your question was quite
long.
And you made a statement that: You're obviously out of the
mainstream, you clearly take positions that not even very
conservative judges take, and you base that on this idea that I
want to return to Lochner, that I said Lochner was rightly
decided. I have never said that. And in fact, in my cases, I
have actually said that to the extent that Lochner court was
using the Due Process Clause as a blank check to simply insert
their political views into the Constitution, that they were
justly criticized. And I have also said that that portion of
the Holmes' dissent, which is simply reflecting a deference to
the legislature, is one that I generally agree with.
Senator Schumer. Do you agree with the holding of Lochner?
Justice Brown. I have said that I think that it's
appropriately criticized and it's been discredited. I mean
Lochner is like this curious case that has actually ended up
creating a new word in the English language, and I think I've
even said that it stands for--it's the most pejorative thing
that you can say among attorneys.
Senator Schumer. You do not agree with the holding of
Lochner?
Justice Brown. I think that I've been clear. I said that it
is appropriately criticized to the extent that they were
inserting their views into this case, or into the Constitution
I guess. That's the issue.
Senator Schumer. Thank you, Mr. Chairman.
Senator Durbin. Mr. Chairman?
Chairman Hatch. I will be happy to turn to you, Senator
Durbin, but I want to follow up with some questions.
Senator Durbin. If I can ask the Senator from New York to
just if you could, stay a moment.
I would like to read into the record what you said, and
this was at the Federalist Society, University of Chicago Law
School speech, April 20th in the year 2000. Here is what you
said: ``In his famous, all too famous dissent in Lochner,
Justice Holmes wrote that the, quote, `Constitution is not
intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the
state or of laissez faire,' '' end of quote. And then you went
on to say: ``Yes, one of the greatest, certainly one of the
most quotable jurists this Nation has ever produced, but in
this case he was simply wrong. That Lochner dissent has
troubled me, has annoyed me for a long time, and finally I
understand why. It's because the framers did draft the
Constitution with a surrounding sense of a particular polity in
mind, one based on a definite conception of humanity.''
Justice Brown, you were unequivocal here in saying that you
disagreed and that Justice Holmes was wrong, and despite the
statements by the Chairman and some of the things you have said
today, unless you are prepared to disavow this speech and some
other things you have said, I have to say your words are very
clear.
Justice Brown. Well, I think I was clear, too, Senator, and
I think that what is being said there--and I think the context
of the speech bears it out--is that I had a difference of
opinion with this idea that the Framers of the Constitution had
no economic notion. I think it's very clear, when you read the
history, that there was a concern about property; that the
American Revolution was a revolution that was really fought
over property; that one of the reasons that the Constitution
came into being, you know, instead of just modifying the
Articles of Confederation, was that there was concern about
what legislative majorities were doing with property. So both
in the Constitution and in the Bill of Rights, that concern,
you know, finds expression in specific language.
Senator Durbin. I would like to ask more questions, but if
you would like to go first?
Chairman Hatch. Let me go first, and then we will turn to
Senator Durbin. Let me follow up on Senator Specter's question
about your opinion in the Hi Voltage case, Proposition 209, and
the Federal Supremacy Clause. Now, the Ninth Circuit Court of
Appeals, clearly one of the most liberal if not the most
liberal appellate court in the country, or at least in the
Federal judicial system, we will put it that way, has ruled--
and this is noted in the majority opinion of the Proposition
209 case--that Proposition 209 does not violate the Equal
Protection Clause. Also, Federal courts have ruled that that
proposition does not violate Federal civil rights statutes.
Now, in your opinion, I would note you acknowledge the
Supremacy Clause would dictate Federal law would prevail; if
Proposition 209 violated the U.S. Constitution or Federal
statutes, that literally Federal law would prevail. Is that
correct?
Justice Brown. Of course.
Chairman Hatch. Okay. Now, Justice Brown, throughout this
hearing, we have heard that you are too critical of Big
Government. Join the crowd. There are a lot of us up here who
are, too, and there are a lot of judges throughout the country
who are, both liberal and conservative judges. But I think a
close examination of your record indicates that any personal
antipathy you may have expressed towards Big Government does
not interfere with your judicial decisionmaking. I think any
fair reading of your opinions will result in that conclusion.
Now, we can pick cases out of your 750-plus cases that you
have sat in on and helped to decide and wrote opinions on. We
can pick cases, anybody on this Committee could pick cases with
which they disagree. But that is true of every judge, unless
you are just totally liberal or totally conservative, and some
people think that might be a good thing. I do not. I think
being totally right is better than being liberal or
conservative. I think doing total justice is more important
than being liberal or conservative. I think doing what is right
is more important than being liberal or conservative. But,
naturally, you are going to have liberals on this Committee who
do not agree with some of your decisions, but, by gosh, they
agree with a lot of them, too.
Now, what does that mean? Does that mean that you are
outside the mainstream when you can please them on some but you
don't please them on the others? And you are going to have
conservatives that don't agree with all your opinions, but on
some they are going to agree. Does that mean you are out of the
mainstream? Heavens, no. That is true of almost any judge that
is in any kind of a tough situation of making real decisions in
this world based upon the law.
Now, let's take, for example, the case of Lundgren v.
Super. Ct. There you joined in an opinion upholding the Safe
Drinking Water and Toxic Enforcement Act of 1986, and you
expansively interpreted the phrase ``source of drinking water''
to include faucets allegedly containing lead so that the
plaintiffs could proceed with their case. Is that right?
Justice Brown. That's correct.
Chairman Hatch. Well, I think that would please all of our
liberal brethren, and sisters, and I hope it would please all
of our conservatives, because it happened to be right. So the
Government does have the responsibility in assisting and
protecting the environment, doesn't it?
Justice Brown. Yes, it does.
Chairman Hatch. And you have never said otherwise.
Justice Brown. And I have never said otherwise.
Chairman Hatch. And isn't it also true that in Bockrath v.
Aldrich Chemical Company you upheld the right of the plaintiff
to sue for exposure to toxic chemicals using the Government's
environmental regulations? Didn't you do that?
Justice Brown. That's true.
Chairman Hatch. Well, that sounds to me like something that
should please my colleagues on the other side and say, Well,
maybe she is in the mainstream because we agree with her. I can
name a lot of cases they agree with you on, but I can show some
that they don't agree. They are showing them here. But that
doesn't mean you are outside the mainstream. That is just a
shibboleth. That is a phony excuse to say we are not going to
vote your way. And it is a cover-up more than it is an honest,
intellectual process.
Isn't it true that in Lockyer v. Shamrock Foods you upheld
California's very stringent standards for identifying and
labeling milk and milk products, thereby ensuring that the
Government has a role in protecting the safety of our children
and all Californians? Is that correct?
Justice Brown. That's correct.
Chairman Hatch. My goodness, I think our colleagues on the
other side ought to be shouting ``Hurray'' for you. My
goodness. And I think our colleagues on this side would as
well.
In Ramirez v. Yosemite Water Company, you joined in an
opinion validating State regulations regarding overtime pay,
didn't you?
Justice Brown. I did.
Chairman Hatch. Well, by gosh, how could you do that if you
hate Government like they have lifted these quotes out of your
speeches?
You don't have to answer that. That was rhetorical.
[Laughter.]
Chairman Hatch. Isn't it true that in Pearl v. Workers'
Compensation Appeals Board, you upheld the role of the Workers'
Compensation Appeals Board in applying a stringent standard of
``industrial causation'' for a worker's injury, thereby showing
that the State has a proper role in ensuring the safety of
workers? Didn't you do that?
Justice Brown. That's true, Senator.
Chairman Hatch. Well, my gosh, how could you support the
Government? I mean, that is odd because I have been hearing
that you do not support the Government, that your statement
lifted out of context should ban you from serving any further
as certainly a judge on the Circuit Court of Appeals for the
District of Columbia.
Well, Justice Brown, in light of all these cases, you know,
I find it a bit hard to believe that those who never met a
Government program they did not like should be criticizing you,
who has met Government programs that you have sustained because
the law required it. Do you differ with that?
Justice Brown. I don't disagree with anything that you say,
Mr. Chairman.
Chairman Hatch. Well, let's take a look at one more case
that shows your respect for the proper role of Government. In
the 2002 case, Kasler v. Lockyer, didn't you author the court's
opinion upholding State gun control legislation?
Justice Brown. I did.
Chairman Hatch. And specifically you rejected the
proposition that the State Constitution includes a right to
bear arms?
Justice Brown. The California Constitution, unlike the
Federal Constitution, does not have a specific right to bear
arms. It does have a right to fish, but no right to bear arms.
Chairman Hatch. So you upheld the California Constitution?
Justice Brown. Yes.
Chairman Hatch. Well, my goodness, it would seem to me some
of our colleagues on the other side ought to give you credit
for that. But I have not heard that yet. I have not heard very
much credit given to you for all these opinions with which they
agree, and we could name dozens of them--in fact, probably most
of them.
Didn't anti-gun control groups like Handgun Control and the
Center to Prevent Handgun Violence applaud your decision while
the National Rifle Association ran an advertisement targeting
you as hostile to the Second Amendment? Didn't that happen?
Justice Brown. The National Rifle Association was very
unhappy with that decision, ran a series of infomercials where
my picture was prominently displayed.
Chairman Hatch. Does that give you second thoughts? Maybe
you should not have done that to irritate the National Rifle
Association like that. Does that give you second thoughts?
Justice Brown. Well, no, because--
Chairman Hatch. Why?
Justice Brown. Because I approached the case to decide what
the right answer is, and that is the only point--
Chairman Hatch. Based upon what? Based upon what?
Justice Brown. Based upon the Constitution and the law that
applies to it.
Chairman Hatch. Based upon the Constitution and the law.
Justice Brown. And what the facts are.
Chairman Hatch. That is what judges should do, shouldn't
they?
Justice Brown. I think so.
Chairman Hatch. Well, some of our colleagues want judges to
make laws. Now, that happens on both sides of this table from
time to time, but in all honesty, a lot of our liberal
colleagues would just love to have judges on the appellate
courts who would make the laws that they would never have a
chance of getting through the elected representatives of the
people in the Congress.
Well, in case there is any doubt about your real concern
about the consequences of gun violence, let me quote from your
concurring opinion in Kasler: ``It is impossible not to grieve
for the thousands of young men cut down in their prime,
impossible not to mourn toddlers slaughtered in the midst of
innocent play, impossible to ignore the grim reality of
schoolchildren whose final moments echoes with screams of
terror and the sudden slap of bullets. All too often, the
killers are children, too.''
You said that, didn't you? You wrote that?
Justice Brown. I did write that, yes.
Chairman Hatch. Okay. Well, Justice Brown, Senator
Feinstein mentioned that she was deeply troubled by your
dissenting opinion in People v. McKay. However, I have got to
say I am deeply impressed with your opinion in that particular
case, which involved a young man arrested for riding his
bicycle in the wrong direction. You were the sole dissenter in
a 6-1 decision.
Now, would you please take some time and tell this
Committee about that case and why you wrote a separate opinion
dissenting, in part?
Justice Brown. Thank you for the opportunity to explain
that case, Mr. Chairman. I was somewhat surprised that Senator
Feinstein took issue with that case. It's true I was the lone
dissenter, but it was a case where there was a use of a very
minor infraction to generate a very broad-ranging search, and
that happened because under California law you can't really be
arrested for an infraction. It's a cite and release, and so
there would never be any search incident to arrest.
But in a circumstance where it's a minor infraction and
then you don't provide what is considered to be adequate
identification, then the officer is permitted to actually
arrest the person who has been stopped. And what happens is
that once you have an arrest or a potential arrest, then you
can have a search incident to that arrest, and that's a very
broad-ranging search.
So what happened in this case was a man who was stopped for
riding his bicycle on the wrong side of the street ended up
being subjected to a custodial search, essentially; contraband
was discovered, and he ended up with a 3-year prison sentence.
So what I was doing in that case was simply saying to my
colleagues to give this kind of unbridled discretion to a
police officer invites discriminatory enforcement, and that was
very consistent with prior precedent of our court, which had in
a slightly different context said that that was inappropriate.
So even though what the court did was justifiable under
precedent, there was other alternative precedent which would
have allowed them to reach a different conclusion in this case,
or at least so I thought. And I thought it was worth exploring
that and making that argument. Unfortunately, I didn't convince
any of my colleagues.
Chairman Hatch. But you felt it was an unreasonable search
and seizure under the circumstances.
Justice Brown. I did.
Chairman Hatch. Under the Fourth Amendment.
Justice Brown. I thought that to permit that kind of search
under those circumstances really opens up the potential for a
lot of small infractions to be turned into basically general
searches, a kind of law enforcement mechanism that could be
applied very arbitrarily.
Chairman Hatch. That I have to say I don't think the
Supreme Court of the United States would permit in its current
makeup. Now, could I just finish this? My time is up, but I
will try and finish this line of thought.
You wrote in your opinion some striking language that I
would ask you to comment upon after I finish quoting you. You
wrote, ``In the spring of 1963, civil rights protests in
Birmingham united this country in a new way. Seeing peaceful
protesters jabbed with cattle prods, held at bay by snarling
police dogs, and flattened by powerful streams of water from
fire hoses galvanized the Nation.'' You go on to say, ``Without
being constitutional scholars, we understood violence,
coercion, and oppression. We understood what constitutional
limits are designed to restrain. We reclaimed our
constitutional aspirations. What is happening now is more
subtle, more diffuse, and less visible, but it is only a
difference in degree. If harm is still being done to people
because they are black or brown or poor, the oppression is not
lessened by the absence of television cameras.''
You continue: ``I do not know the defendant's ethnic
background. One thing I would bet on''--this is your opinion,
what you wrote in it. ``One thing I would bet on, he was not
riding his bike a few doors down from his home in Belair or
Brentwood or Rancho Palos Verdes, places where no resident
would be arrested for riding the `wrong way' on a bicycle,
whether he had his driver's license or not.''
Well, it would not get anyone arrested unless he looked
like he did not belong in the neighborhood. You understand
that, don't you? Let me continue.
``That is the problem, and it matters. If we are committed
to a rule of law that applies equally to `minorities as well as
majorities, to the poor as well as to the rich,' we cannot
countenance standards that permit and encourage discriminatory
enforcement.''
You made those comments in that opinion, didn't you?
Justice Brown. I did.
Chairman Hatch. And some of those comments came because you
understood through your background how oppressive unreasonable
searches and seizures might be, not because you had
unreasonable searches and seizures, but you saw people in the
South who were exposed to that type of bad treatment or you
knew of them.
Justice Brown. That's right, Mr. Chairman, because
discriminatory enforcement is another way to discriminate, and
the point I was trying to make there is that there may be more
subtle forms of discrimination, but we nevertheless have to
continue in our aspiration to root that out wherever we find it
and to make sure that everyone is treated equally before the
law.
Chairman Hatch. Well, I would just note for the record
something remarkable that Timothy P. O'Neill, professor of law
at the John Marshall Law School in Chicago, wrote regarding
this case. In calling upon Illinois not to make what he sees as
the ``mistake that the California Supreme Court made in
McKay'', that is, what Mr. O'Neill characterizes as allowing
``police to flout State laws on arrests,'' Mr. O'Neill
approvingly cites and quotes from Justice Brown's opinion
before writing, ``Justice Janice R. Brown's concurring and
dissenting opinion in McKay should be required reading for all
criminal lawyers.'' High praise indeed.
Now, I think it is really unfair to have you, the nominee
of the President of the United States for the Circuit Court of
Appeals for the District of Columbia, be picked apart on
perceptions of what you might have done on half of your cases--
not even half but some isolated cases that have been quoted
here and will be quoted more perhaps before this hearing is
over, and ignoring all of the terrific legal work you have
done.
I happen to agree with your cases that are being criticized
here. I think you can explain every one of them and explain
them intelligently and show that not only you are in the
mainstream, you are one of the great jurists in this country.
But ignore all the other great cases that you have done? To
pick isolated cases? We are known to do that here on this
Committee. It is not fair, but then, again, members can do
whatever they want to do on this Committee, within reason.
So I just want you to know that I don't see one reason in
the world for anybody not to support your confirmation here,
but let's listen to the other side and see what they have to
say.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman.
Justice Brown, during the lunch break, a number of my
colleagues in the Senate asked me, ``How is your hearing going
with Justice Brown?'' and I told them that you made a very
positive impression, that some of the information that was
brought forward by my Republican colleagues about a terrible
racist cartoon I thought really created an environment within
the Committee where people were really trying their best to be
as fair as they could under very trying circumstances.
But I said--and I think others on the Committee have agreed
with me here--we struggle with nominees who come before us and
don't just say, ``Take me for what I've said. There are some
things,'' some of the nominees say, ``that I now agree with and
some things I don't agree with.''
As Chairman Hatch has said, you have been party to a lot of
decisions as appellate court judge and a Supreme Court Justice,
and it is almost like Senator Hatch and myself--well, maybe not
so much in his case, but if you look at all the votes we have
cast, you can just about mold whatever kind of political figure
you want out of those votes.
But over time, an impression is created, and the impression
may be of a conservative to my right and a liberal to his left.
But that is just a natural conclusion.
I think the thing that continues to trouble me is this
belief that judges are automatons, that it is just almost a
robot reaction, that all you have to be told is here is the
precedent, here are the facts, and here is the decision that
comes out the other end. I don't think that is how it works. I
really believe that there is an element of judgment involved
here, and whenever there is judgment, there is subjectivity.
You will see some facts differently than your colleagues. We do
in the Senate. We do in the House. And the question then is:
When there is a subjective element, what will be going through
your mind? That is probably what we are asking here.
I don't apologize for raising questions about opinions that
you have written. If we cannot ask questions about those, I
might say to the Chairman, why are we even here? There is no
point in it. We are just supposed to take President Bush's
nominees and say, if you like them, Mr. President, that is just
fine? I don't think that is our responsibility. I think we have
more that we have to look to.
I want to go to two specific areas here and see if I can
ask you for your reasoning. People v.Mar, involving a criminal
defendant who was asked to wear a 50,000-volt stun belt during
the trial, the defendant was on trial for resisting arrest,
forced to wear the stun belt beginning on day two of the trial,
though he had been well behaved on the first day. Wearing that
stun belt made him nervous, especially during his testimony,
and stun belts have a history of accidental activations and the
belt administers a 50,000-volt shock for 10 seconds, enough to
cause immediate uncontrolled body seizures as well as skin
welts and the like.
You were the dissenting vote in that case. The rest of the
Justices on the Supreme Court--and as I might remind those
following this, six Republicans, one Democrat. The rest of the
Justices on the court felt that it was unfair to require this
defendant to wear this apparatus while he was on trial, a very
serious trial, a very serious charge.
You suggested in your dissent that a high school student
could do a better job than the majority on your court, the
court that you serve on, of researching the issues. You accused
your colleagues of ``rushing to judgment after conducting an
embarrassing Google.com search for information outside the
record.''
Do you stand by those statements today?
Justice Brown. Well, I thank you for asking that question,
Senator, because it is something I really would like to
explain.
The question that was before our court was: one, should the
trial court have held a hearing to decide whether restraints
should be used? And, two, if yes and they did not, was the
error prejudicial? So the court decided based on an earlier
precedent that we have called Duran that there should have been
a hearing. It wasn't completely clear that a hearing was
required because the basis of Duran was that visible restraints
might have an effect on the jury and, therefore, the court
should look and make a finding that those visible restraints
were required.
So it wasn't clear what should happen when the restraints
were not visible. But assuming that the court is right, that
there should have been a hearing and there should have been a
finding, then the next question was: Was there prejudice? And
the court actually doesn't find that there was prejudice. This
defendant testified fully.
Now, so let me go back to the beginning here. I don't know
whether a stun belt should be used here. I don't know whether a
stun belt should ever be used. I don't know exactly how these
stun belts operate, and I don't know exactly what they do. And
the reason for that is that question was never presented to the
court. There was nothing in the record before us about that
because that's not what the case was about.
So the majority here may well be right, and in a different
kind of case, were it a case for a declaratory relief saying
these shouldn't be used, where both sides had an opportunity to
present their evidence, they might well have reached that
conclusion.
In a case where something had happened to this particular
defendant and it was a tort claim of some kind, where there was
evidence on both sides and there was a record presented to us,
that might be the right conclusion.
I am not saying in any of this that stun belts should be
used or that that's a good idea or anything. My concern in this
case was about what the court did. There is a particular way
that appellate process is supposed to be conducted, and it is
to look at the law and the facts, the claim that is being
presented in the particular case, and to resolve that case. And
so what the court was doing here was completely outside the
record.
So I don't think that what I was saying there is at all odd
or outside the mainstream or anything like that. I think
everybody agrees how appellate courts are supposed to operate,
and here the court just decided it would do otherwise.
Senator Durbin. On its face, wearing a 50,000-volt stun
belt while you are criminal defendant during the course of your
trial, you couldn't accept that that might create some
psychological problem for the defendant?
Justice Brown. Well, the record doesn't actually establish
that. The defendant testified fully. And there's no indication
that he was inhibited in any way. That's the problem. An
appellate court--I could speculate all kinds of things. But the
court is actually supposed to rule on the basis of the record.
Senator Durbin. Well, I read the record here, and frankly I
think there is evidence that, at least as counsel said, ``he
feels that putting the belt on him now is basically creating a
difficult mind situation for him to be able to think clearly
and be able to testify properly without having a breakdown of
his strong emotions.'' That is in the record. That is what you
had before you.
Justice Brown. That's what counsel said before he
testified, but he testified and none of those things happened.
Senator Durbin. Well, I just frankly think if we are going
to go around with 50,000-volt stun belts and hand them out to
Senators and witnesses before committees, I think we may have
shorter hearings and different questions and most of us will
take judicial notice of why. And I can't understand why you
were the single dissent in that--
Chairman Hatch. But normally we don't have violent
criminals in our courtroom here.
Senator Durbin. Well--
Chairman Hatch. Although I have seen some.
Senator Durbin. But the point I want to make is if we are
talking about a presumption of innocence, which at times it is
painful to presume, and we are talking about a criminal
defendant having a chance to defend himself before a jury of
his peers, you can't stack the deck going in. You basically
have to say there is going to be a fair trial. And this went to
it.
Let me go to one other point, if I might, and that is this
whole question of property rights, because I think that keeps
recurring in your speeches. In fact, you have made reference to
it today. And I would like to ask you if you believe there is a
hierarchy of rights in this country and whether in that
hierarchy of rights that the rights to property are as equal to
or greater than the rights which we customarily assign to
people in terms of their own freedoms and liberties, speech,
religion, assemblage, privacy.
Where do you put the right to property in that hierarchy?
Justice Brown. Well, I think there has been a great deal of
discussion about the dichotomy that was created, and I think
even the Supreme Court itself has in more recent cases
acknowledged that that dichotomy, that notion that property
rights are not entitled to the same level of protection as what
is called fundamental rights or fundamental liberties, I think
the Supreme Court itself has reconsidered that and certainly
has said something like that in cases like Nolan and Dolan.
There's nothing that I can see in the grammar or the way
the provision is put together that suggests to me that the
drafters of the Constitution were looking at this differently.
And there is much historical information that suggests that
they saw property and liberty as indivisible. In other words,
they were sort of opposite sides of the same thing, and there's
the language that's often used that property is the guardian of
every other right.
Senator Durbin. So do you believe--I want to make sure this
is clear for the record because some of your speeches I think
go far afield of what you have just said. Do you happen to
believe that the liberty of the individual is equal to the
property rights of another individual in this hierarchy of
rights?
Justice Brown. Well, I want to answer this question
clearly, and I'm not sure, the way you phrased the question.
But let me try to--
Senator Durbin. I want you to put it in your words.
Justice Brown. Okay.
Senator Durbin. Forget my question. Just explain your
thinking.
Justice Brown. Let me try to put it in my words. I believe
that property and liberty--when the Fifth Amendment says, you
know, no deprivation of life, liberty, or property without due
process of law, it seems to me that those are really all on the
same level. I'm not saying that, you know, property is greater,
but I really think that it's very clear that property and
liberty are linked in the minds of the drafters of those
provisions. And one of the very interesting things that I have
seen lately is an essay by Madison where he talks about the--
you know, he talks about property in a way that almost brings
together property rights and the First Amendment because he's
essentially saying a man has a property in his ideas.
Senator Durbin. You wrote in this famous speech to the
Federalist Society, since it has become famous today--
Justice Brown. It has become famous. Actually, the audience
was only about 40 people, and so it's gotten much wider
distribution now.
Senator Durbin. It is a very--you know, you talk about
doing these speeches part-time. Even though I do not agree with
much of your speech, it is an excellently researched and
footnoted speech. So if this is what you do part-time, I don't
know if your husband gets to see you at all.
But let me just say this: You say in this speech,
``Protection of property was a major casualty of the Revolution
of 1937.'' That, of course, refers back to Franklin Roosevelt's
New Deal. What did you mean by that?
Justice Brown. I don't think that's at all controversial.
After 1937--there's a famous footnote in a case called Carolene
Products, Footnote 4, that infamous footnote, where the court
basically said, well, we are kind of just going to do rational
basis review of economic regulation, but we will do a stricter
scrutiny where the rights of--I believe the phrase they use
is--``insular minorities'' is involved. And so that's the
beginning of the Supreme Court jurisprudence that says, well,
you know, property rights, all you have got to have is a
rational basis for doing it; but if you're getting into these
fundamental liberties, then we are going to have strict
scrutiny and we are going to really look very carefully at what
the legislature is doing.
But I do think that the court has begun to rethink that,
and not just recently--
Senator Durbin. Do you think that is wrong? Do you think
that conclusion is wrong?
Justice Brown. That you should have a different level of
scrutiny--
Senator Durbin. Different standard for property rights as
opposed to these so-called fundamental rights.
Justice Brown. Yes, because I think that--I wish I could
articulate this better, but I think that they're the same
thing. I mean, I really think that--I come across again and
again in the historical reading that I do this idea that the
Founders saw this as indivisible. And it makes sense. If you
don't have the wherewithal, you know, to keep a roof over year
head, to provide for your needs and so forth, your political
rights are not going to be very meaningful.
Senator Durbin. But do you not concede as well--and Senator
Hatch has read, I thought, a very stirring quote from one of
your opinions. Do you not concede as well that if we equated
property rights with personal rights, the civil rights movement
would have been a much different civil rights movement? Because
the people who were arguing against opening up their hotels and
their restaurants for the accommodations of people of color
were basically people who said these rights of these
individuals don't supersede your rights as property owner and
business owner.
Now, when you sit before us here and say I think they are
the same, do you understand why someone on this side of the
table, maybe on this wing of the table, would scratch their
head and say, How can she say that? How can you reach that
conclusion in light of the history of this country over the
last 75 years?
Justice Brown. Well, Senator, I'm very glad that you
explained what you were thinking because that clarifies for me,
and so I think I can respond to that.
When I say they are the same--and, you know, that they
are--I am really looking at the Fifth Amendment in particular
and this idea of, you know, whether you have to have
compensation, in other words, taking for a public purpose
without compensation. I'm not saying that you could never
regulate property. Property has been regulated since the--you
know, since the beginning of this country. I'm not saying that
you could never have laws that say that people who are in a
business that you regulate have to behave in a certain way.
California has a very long history of anti-discrimination laws
that says if you are a commercial establishment, you have to
treat everybody the same. I don't think there's any problem
with that at all.
Senator Durbin. Well, all right. I think we are getting
closer to an understanding of one another's position on that,
and I think that when I read your speech--and, Mr. Chairman,
with your permission, I would like to have this speech to the
Federalist Society, which you, I believe, were on the board of,
entered into the record at this point in the hearing.
Chairman Hatch. Without objection.
Senator Durbin. I think when people read this speech, they
might draw a different conclusion than what you have just said,
and therein lies the difficulty. I have never seen you before.
I have never heard you speak before. To my knowledge, we have
never met before. All I have to go on is what you have written
and what you have given to us in your speeches and in your
court opinions. And they lead many of us on this side of the
aisle to the conclusion that your views are not mainstream
views.
Now, you have explained some of them today, and some you
have qualified, modified, maybe some you have changed,
whatever, however anyone wants to characterize it. But I hope
that you understand that what we are about here is to try to
understand who you are, and in that moment of subjectivity as a
judge, which each legislator and each judge has, we would like
to know what is going to move you forward, what will your
values be. And that is the purpose of these questions, and I
thank you for coming today, as well as your husband.
Justice Brown. Well, I thank you also, Senator, and I hope
that I have been able to allay some of your concerns. And one
thing that may help you is to look at how I have talked about
this in opinions, and I think it will be very clear to you that
what I am talking about when I saw I have a problem with this
dichotomy is that just this idea that economic regulation
doesn't deserve any attention.
Chairman Hatch. Well, thank you. Let me just follow up with
just a few clarifying things. The Fifth Amendment of the United
States Constitution states in its final clause, ``nor shall
private property be taken for public use, without just
compensation.'' That is basically what you believe in.
Justice Brown. Exactly.
Chairman Hatch. When it comes to property rights, and that
is expressly in the Constitution. Right?
Justice Brown. Yes, and I feel very strongly that where
language is expressly in the Constitution, judges have an
obligation to enforce the prohibitions in the Constitution.
Chairman Hatch. Okay. Now, let me just go back to the
Lochner situation just for a minute, just so we make sure that
the record is clear.
In Santa Monica v. Super. Ct., you said for the record that
Lochner was ``justly criticized,'' as you have repeated here
today. Here is your quote: ``The problem with Lochner was not
that it sought to make judicial review meaningful or that it
deemed economic interests worthy of protection. The Lochner
court was justly criticized for using the Due Process Clause as
though it provided a blank check to alter the meaning of the
Constitution as written.''
I don't know how anybody could disagree with that, between
you and me, who understands constitutional law.
Now, in addition, your reference to the revolution of 1937,
you said ``in that case''--it is in quotes--``so that the
reference is to the so-called revolution of 1937.'' That was in
quotes. Now, here is the full quote: ``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.''
So what I interpret that to mean is that you were not happy
with the court's penchant to use substantive due process in
Lochner any more than you are enamored with the court's
penchant for using substantive due process thereafter.
Justice Brown. Well--
Chairman Hatch. You are not alone in that criticism.
Justice Brown. That is correct, and I think that would make
me very much in the mainstream. That's right down the middle.
Chairman Hatch. And there is no question about that.
Now, let me just take a second or two on this stun belt
thing because I think some people might misconstrue some of
that, so let me do this. As I understand it, you were the sole
dissenter in that case in which a majority of the California
State Supreme Court overturned the conviction of a man who was
forced to wear a stun belt while testifying.
Now, let me ask you a few questions about the case of
People v.Mar. That is the cases involved, if I understand it,
since it has been raised.
Justice Brown, the rule in California states that a
defendant may not be subject to restraints in the courtroom
while in the jury's presence unless there is a showing of a
manifest need for restraints. Is that correct?
Justice Brown. That's correct.
Chairman Hatch. Okay. Now, isn't it true that the facts in
this case suggested that the defendant posed a danger of
violent conduct?
Justice Brown. The fact--well, he was, one, arrested for a
violent offense and--
Chairman Hatch. In fact, didn't the judge himself indicate
his concern about the defendant's ``tendency to engage in
violent conduct''?
Justice Brown. He did, and there was even some statement
about some concern from his defense counsel. What the court
said, though, was that wasn't a hearing and a finding within
the meaning of Duran. But there was some evidence of that.
Chairman Hatch. All right. Indeed, in permitting the use of
restraints, the trial court had found that the defendant, from
the trial court, ``was on trial for assaulting a guard, he had
previously been convicted of escape and of assaulting a police
officer, and on two recent occasions he had threatened
correctional officers and threatened his own defense
attorney.''
The defendant's own attorney had argued that the defendant
was incompetent, that he was incapable of having rational
conversations with counsel, that his behavior was
``explosive,'' and that he was psychotic. Isn't that correct?
Justice Brown. That's correct.
Chairman Hatch. Okay. Up until the decision in Mar, Justice
Brown, isn't it true that California courts had seen stun belts
as humane up until that decision?
Justice Brown. Well, they had certainly been used, and the
legislature had not prohibited them.
Chairman Hatch. Let me quote from one court opinion. The
California Court of Appeals noted that the belt ``does not
diminish courtroom decorum, is less likely to discourage the
wearer from testifying, and should not cause confusion,
embarrassment, or humiliation.''
Now, Justice Brown, your argument was simply that the
defendant had not demonstrated that he was in any way
prejudiced by the use of the stun belt, a showing he was
required to make. He would have to show he was prejudiced, but
he didn't. Is that correct?
Justice Brown. That was the issue before the court, and as
near as I can tell, there is no finding by the majority and no
actual argument that there was actual prejudice here.
Chairman Hatch. Well, the stun belt was not visible to the
jury either, was it?
Justice Brown. That's my understanding.
Chairman Hatch. Was there any evidence that the jury knew
that he was wearing a stun belt?
Justice Brown. I don't know. I'm not aware of anything in
the record--
Chairman Hatch. I don't believe there was.
Justice Brown. --that suggests they were.
Chairman Hatch. Yes, I don't believe there was. But the
point is that many other cases have upheld the use of stun
belts at trial, including U.S. Courts of Appeal for the Fifth,
Seventh, Ninth, and Tenth Circuits and the Colorado, Delaware,
Minnesota, and Washington State courts. So to try and say you
are outside the mainstream because you dissented in that case,
with all these facts the way they were, I think is an overreach
at best. In fact, I think most of the complaints have been an
overreach at best.
Senator Durbin. Mr. Chairman?
Chairman Hatch. Yes, Senator Durbin.
Senator Durbin. Mr. Chairman, I would like to have
permission to enter the entire case into the record.
Chairman Hatch. Without objection.
Senator Durbin. I believe that you have read selectively
and found things that support the witness' position, but--
Chairman Hatch. I sure have.
Senator Durbin. --there is a lot of evidence to the
contrary here which I think should be part of the record. Let's
put the entire case in.
Chairman Hatch. That will be fine. We will put that in the
record. But the point I am making is that reasonable minds can
differ, and even though you were in the sole dissent, there are
a lot of other jurisdictions that permit stun belts in the case
of violent or dangerous witnesses. And we will put that in the
record as well.
I understand there is no other Senator who wants to
question. Let me just close by saying, Justice Brown, I have
been around here 27 years. Admittedly, I am a Republican.
Admittedly, I like this administration. Admittedly, I am
pleased with virtually all the judgeship nominees that have
been nominated by the President, and I think most of them have
been, without question, superior nominees.
How anybody would not think you are a superior nominee is
beyond me. I am impressed with you personally. I am impressed
with your ability to discuss these very consequential and
difficult areas of law and to make the sense that you have. You
have done better than an awful lot of top-level intellectual
legal thinkers who have appeared before this Committee.
You have a record that I think is exemplary, although there
will be those on both sides of this dais who will disagree with
you from time to time on some of your opinions, as your
colleagues on the court have done and as you have done with
them.
There is no question about your decency, your honor, your
integrity. And I believe there is a real difference between
giving speeches where you want to get people excited and get
people interested and the need to do what is right when you are
on the bench, which you have done.
I think if anything comes through to me, it is that you
have followed the law regardless of what anybody thinks,
including yourself, that the law is the important thing to you.
Is that a fair comment?
Justice Brown. I think that's a very fair comment. I have
only one agenda when I approach a case, and that's to try to
get it right. My allegiance is to the Constitution. I take an
oath as a judge to defend the laws and the Constitution of the
State of California, and I have tried very conscientiously to
do that.
Chairman Hatch. As well as the Constitution of the United
States of America.
Justice Brown. Yes.
Chairman Hatch. Well, I have to say, I am really impressed
with you and the way have handled yourself and the intelligent
way that you have spoken to this Committee and answered
questions that have been very difficult questions from both
sides of the table, but especially from my colleagues' side
because they are naturally interested in who the President
nominates and whether they are worthy of these very, very
substantial and top positions.
I don't see how anybody watching this hearing today and
listening to you could conclude that you are outside the
mainstream of American jurisprudence. That is just a
shibboleth. That is used a lot just because they do not have
anything else to use. And that has been done by both sides, I
have to say. But I believe you have handled this hearing very,
very well, and I am going to do everything I can to see that
you are confirmed to this very important position. And I
believe once you are on that court you will do a terrific job
of serving all Americans, not just one side or the other but
all Americans, and that is what I would expect of you, and that
is the least I would expect of you, with the abilities and the
intelligence that you have.
We are grateful that you have sat through this hearing this
long. It has been a difficult one for you, in a way, but you
have handled yourself well.
With that, since there are no further questions from
anybody and I have kept the record open--unless you have
something to say?
Justice Brown. I would like just to thank you, Mr.
Chairman, for chairing this Committee. I would like to thank
the ranking chairman. I also want to thank the President for
nominating me to this position. And if I am confirmed, I would
be honored to serve. I thank all of the members of the
Committee for giving my nomination prompt consideration, and I
appreciate their courtesy.
One person that I forgot this morning when I was
introducing my family was my mother, whose name is Doris
Holland. She is not here. She did not think she would be up to
the rigor of this hearing because she thought they would be
abusing her child and she wasn't sure that she could control
herself. But I have been treated with great courtesy, and I
appreciate that very much.
And I want to make a commitment to every member of this
Committee that if I am confirmed to serve on the D.C. Circuit,
I will not let you down. I have tried all my life to act with
principle and with integrity, and I know my role as a judge,
and I will make every effort to do the very best that I can.
Chairman Hatch. Well, thank you. That is all we can ask of
you, and I hope our colleagues pay attention to those comments.
With that, we will recess until further notice.
[Whereupon, at 3:40 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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