Document Sample
					      June 7, 2005                                         CONGRESSIONAL RECORD — SENATE                                                                S6129
      bring to a close debate on Executive Cal-                    ate stand in recess until 2:15 today and             ing on the edge of hunger each and
      endar No. 72, the nomination of Janice R.                    that the time during the recess count                every day. Thirteen million of these
      Brown, of California, to be United States Cir-               under the provisions of rule XXII; pro-              hungry Americans are deemed to be
      cuit Judge for the District of Columbia.
                                                                   vided further that the vote on the con-              children.
          Bill Frist, Arlen Specter, Trent Lott,
            Lamar Alexander, Jon Kyl, Jim Talent,                  firmation of the Brown nomination                      As we know, when children are hun-
            Wayne Allard, Richard G. Lugar, John                   occur at 5 p.m. tomorrow, Wednesday,                 gry they do not learn. This is a trav-
            Ensign, C.S. Bond, Norm Coleman,                       with all time until then equally divided             esty that can and should be prevented.
            Saxby Chambliss, James Inhofe, Mel                     in the usual form.                                   Currently over 90,000 schools and 28
            Martinez, Jim DeMint, George Allen,                      The PRESIDING OFFICER. Is there                    million children participate each
            Kay Bailey Hutchison, John Cornyn.                     objection?                                           school day in the School Lunch Pro-
        The PRESIDING OFFICER. By unan-                              Without objection, it is so ordered.               gram. The children of families whose
      imous consent, the mandatory quorum                                          f
                                                                                                                        income levels are below 130 percent of
      call has been waived.                                                                                             poverty are eligible for free school
        The question is, Is it the sense of                                        RECESS                               meals and those families whose income
      Senate that debate on Executive Cal-                           The PRESIDING OFFICER. The Sen-                    levels are between 130 percent of pov-
      endar No. 72, the nomination of Janice                       ate stands in recess until 2:15 p.m.                 erty and 185 percent of poverty are eli-
      R. Brown, of California, to be the U.S.                        Thereupon, the Senate, at 12:31 p.m.,              gible for reduced price meals.
      circuit judge for the District of Colum-                     recessed until 2:15 p.m. and reassem-                  Unfortunately, many State and local
      bia Circuit, shall be brought to a close?                    bled when called to order by the Pre-                school boards have informed me that
      The yeas and nays are mandatory                              siding Officer (Mr. THUNE).                          parents are finding it difficult to pay
      under the rule.                                                                                                   the reduced fee, and for some families
        The clerk will call the roll.                                              f                                    the fee is an insurmountable barrier to
        The assistant legislative clerk called                             EXECUTIVE SESSION                            participation. That is why I am a
      the roll.                                                                                                         strong supporter of legislation to
        Mr. DURBIN. I announce that the                                                                                 eliminate the reduced price fee and
      Senator from Vermont (Mr. JEFFORDS),                         NOMINATION OF JANICE ROGERS                          harmonize the free income guideline
      the Senator from Wisconsin (Mr.                                BROWN TO BE UNITED STATES                          with the WIC income guideline. I am
      KOHL), and the Senator from New Jer-                           CIRCUIT JUDGE FOR THE DIS-                         proud to say that a pilot program to
      sey (Mr. LAUTENBERG) are necessarily                           TRICT OF COLUMBIA—Continued                        eliminate the reduced price fee in up to
      absent.                                                                                                           five states was included in last year’s
        The PRESIDING OFFICER. Are there                             The PRESIDING OFFICER. The Sen-
                                                                                                                        reauthorization of Child Nutrition and
      any other Senators in the Chamber de-                        ator from North Carolina.
                                                                                                                        WIC. I have encouraged the Appropria-
      siring to vote?                                                   NATIONAL HUNGER AWARENESS DAY
                                                                                                                        tions Committee to include funding for
        The yeas and nays resulted—yeas 65,                          Mrs. DOLE. Mr. President, for the                  this pilot program, and I look forward
      nays 32, as follows:                                         past two years I have come to the Sen-               to working with them on this very im-
                  [Rollcall Vote No. 130 Ex.]                      ate floor on National Hunger Aware-                  portant issue which touches so many
                          YEAS—65                                  ness Day to talk about the battle                    families going through difficult times.
      Alexander          DeWine              McConnell             against hunger, both here in America                   In my home State of North Carolina,
      Allard             Dole                Murkowski             and around the world. In fact, I re-                 more than 900,000 of our 8.2 million
      Allen              Domenici            Nelson (FL)           served my maiden speech for this
      Bennett            Ensign              Nelson (NE)
                                                                                                                        residents are dealing with hunger, ac-
      Bond               Enzi                Pryor
                                                                   topic—one of my top priorities as a                  cording to the most recent numbers
      Brownback          Frist               Roberts               U.S. Senator. I have stated over and                 from the U.S. Department of Agri-
      Bunning            Graham                                    over again that the battle against hun-
      Burns              Grassley
                                             Salazar                                                                    culture. Our State has faced significant
      Burr               Gregg
                                             Santorum              ger is one that can’t be won in a mat-               economic hardship over the last few
                                             Sessions              ter of months or even a few years but
      Byrd               Hagel
                                             Shelby                                                                     years as once thriving towns have been
      Carper             Hatch
                                                                   it is a victory that we can claim if we              hit hard by the closing of textile mills
      Chafee             Hutchison                                 continue to make the issue a priority.
      Chambliss          Inhofe              Snowe                                                                      and furniture factories. And this story
      Coburn             Inouye              Specter                 As Washington Post columnist David                 is not unlike so many others across the
      Cochran            Isakson             Stevens               Broder said about hunger, ‘‘America
      Coleman            Kyl                                       has some problems that seem to defy                    Many Americans who have lost their
      Collins            Landrieu            Talent
      Conrad             Lieberman           Thomas                solution. This one does not. It just                 manufacturing jobs have been fortu-
      Cornyn             Lott                Thune                 needs caring people and a caring gov-                nate enough to find new employment
      Craig              Lugar               Vitter                ernment, working together.’’ I could                 in the changing climate of today’s
      Crapo              Martinez            Voinovich
                                                                   not agree more.                                      workforce. Simply being able to hold
      DeMint             McCain              Warner
                                                                     Last year on Hunger Awareness Day,                 down job doesn’t necessarily guarantee
                            NAYS—32                                Senators SMITH, DURBIN, LINCOLN, and I               your family three square meals a day.
      Akaka              Dorgan              Mikulski              launched the Senate Hunger Caucus,                   But there are organizations who are
      Baucus             Durbin              Murray
      Bayh               Feingold
                                                                   with the express purpose of providing a              addressing this need as a mission field.
      Biden              Feinstein           Reed                  bi-partisan forum for Senators and                     Groups like the Society of St. An-
      Bingaman           Harkin              Reid                  staff to engage each other on national               drew, the only comprehensive program
      Boxer              Johnson             Rockefeller           and international hunger and food inse-              in North Carolina that gleans available
      Cantwell           Kennedy             Sarbanes
      Clinton            Kerry                                     curity issues. By hosting briefings and              produce from farms, and then sorts,
      Corzine            Leahy
                                                                   disseminating information, the caucus                packages, processes, transports and de-
      Dayton             Levin
                                             Wyden                 has been striving to bring awareness to              livers excess food to feed the hungry.
      Dodd               Lincoln
                                                                   these issues, while at the same time                 In 2004, the Society gleaned more than
                        NOT VOTING—3                               finding ways to collaborate on legisla-              4.2 million pounds of food—or 12.8 mil-
      Jeffords           Kohl                Lautenberg            tion. I want to thank 34 of my col-                  lion servings. Incredibly—it only costs
        The PRESIDING OFFICER. On this                             leagues for joining the Senate Hunger                one penny a serving to glean and de-
      vote, the yeas are 65, the nays are 32.                      Caucus and their staffs for their dili-              liver this food to those in need. And all
      Three-fifths of the Senators duly cho-                       gent work. In addition, I am excited to              of this work is done by the hands of the
      sen and sworn having voted in the af-                        see our friends in the House of Rep-                 9,200 volunteers and a tiny staff.
      firmative, the motion is agreed to.                          resentatives start their own Hunger                    Gleaning is a practice we should uti-
        The Republican whip.                                       Caucus and I look forward to working                 lize much more extensively today. It’s
                         f                                         with them as both houses of Congress                 astounding that the most recent fig-
                                                                   continue to find solutions to elimi-                 ures available indicate that approxi-
            ORDER OF PROCEDURE                                     nating hunger.                                       mately 96 billion pounds of good, nutri-
        Mr. MCCONNELL. Mr. President, I                              It is truly astounding how so many of              tious food—including that at the farm
      ask unanimous consent that the Sen-                          our fellow citizens go hungry or are liv-            and retail level—is left over or thrown

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      S6130                                              CONGRESSIONAL RECORD — SENATE                                                           June 7, 2005
      away. A tomato farmer in western                             and determination made her the top                   such plenty in the fields, as I drive past
      North Carolina sends 20,000 pounds of                        student of her class and she is today                them, to think that there are Ameri-
      tomatoes to landfills each day during                        working full time as a chef.                         cans, particularly American children,
      harvest season.                                                Or take Bobby, who also graduated                  who go hungry every day not because
        This can’t be good for the environ-                        from the program. Bobby went from                    we don’t have the means but because
      ment. In fact, food is the single largest                    unemployment and homelessness to be-                 we don’t organize ourselves and set the
      component of our solid waste stream—                         coming a top graduate, now working                   priority of making sure these future
      more than yard trimmings or even                             two jobs and living independently. Our               generations, the future leaders of this
      newspaper. Some of it does decompose,                        bill is intended to complement these                 great Nation, can at least have their
      but it often takes several years. Other                      kinds of private efforts that support                tummies full enough that they can pay
      food just sits in landfills, literally                       food rescue and job skills that can                  attention in school, grow healthy to
      mummified. Putting this food to good                         make the greatest impact on indi-                    become the kind of leaders that we
      use through gleaning will reduce the                         vidual lives.                                        want and need for our great Nation.
      amount of waste going to our already                           In Deuteronomy 15:7, the Bible tells                 Today is National Hunger Awareness
      overburdened landfills. And I am so ap-                      us, ‘‘If there is among you a poor man,              Day. It is a time when Americans are
      preciative of my friends at Environ-                         one of your brethren, in any of your                 called to remember the hungry chil-
      mental Defense for working closely                           towns within your land which the Lord                dren and adults living across our Na-
      with us on this issue.                                       your God gives you, you shall not                    tion. We have all just come from our
        Like any humanitarian endeavor, the                        harden your heart or shut your hand                  weekly caucus lunches. We have had
      gleaning system works because of coop-                       against your poor brother.’’ So, as our              plenty at this time. We are thinking
      erative efforts. Clearly private organi-                     fellow citizens in the private sector                about the opportunities that lie ahead
      zations and individuals are doing a                          continue to be a giving people, let us               of us, particularly the fun things that
      great job, but they are doing so with                        find ways as public servants to once                 children do in the summertime. Yet we
      limited resources. It is up to us to                         again harness the great public-private               forget that there are many who have
      make some changes on the public side                         effort, and fight as one to end hunger               not had a good lunch today, or perhaps
      and help leverage scarce dollars to feed                     in America. I again thank my col-                    we forget that as school is letting out,
      the hungry.                                                  leagues who have worked so hard to                   those children who normally get a nu-
        I continue to hear that transpor-                          build these partnerships. And I implore              tritious meal at school will not be get-
      tation is the single biggest concern for                     our friends on both sides of the aisle—              ting those nutritious meals during the
      gleaners. I am proud to say that with                        as well as the good people throughout                summertime while school is out.
      the help of organizations such as the                        this great country—to join in this                     Most importantly, it is a day when
      American Trucking Association, the                           heartfelt mission—this grassroots net-               we are called to put our words into ac-
      Society of Saint Andrew and America’s                        work of compassion that transcends                   tion, to help end hunger in our commu-
      Second Harvest, we are taking steps to                       political ideology and will provide hope             nities and across this great land.
      ease that transportation concern. In                         and security not only for those in need                At this time last year, Senators
      February of this year, I reintroduced a                      today—but for future generations as                  SMITH, DURBIN, DOLE, and myself
      bill that will change the tax code to                        well. I yield the floor.                             formed the Senate Hunger Caucus to
      give transportation companies tax in-                          The PRESIDING OFFICER. The Sen-
                                                                                                                        forge a bipartisan effort to end hunger
      centives for volunteering trucks to                          ator from Arkansas.
                                                                                                                        in our Nation and around the world. I
      transfer gleaned food. I am proud to                           Mrs. LINCOLN. Mr. President, due to
                                                                                                                        am so proud to be working with these
      have the support of my colleagues,                           his graciousness, I ask unanimous con-
                                                                                                                        three other Senators in moving this
      Senators DODD, BURR, LUGAR, ALEX-                            sent that Senator KENNEDY be allowed
                                                                                                                        caucus forward. Our staffs have worked
      ANDER, SANTORUM, DURBIN, LAUTEN-                             to speak directly after I complete my
                                                                                                                        tirelessly in bringing us together,
      BERG, and LINCOLN, original cosponsors,                      remarks.
                                                                     The PRESIDING OFFICER. Without                     along with the other Members of the
      and I look forward to working with
                                                                   objection, it is so ordered.                         Senate, in order to make a difference.
      them on passage of this important bill.
        I am also privileged to work with                            Mrs. LINCOLN. Mr. President, I want                We are working with local, State, and
      Senators LINCOLN and LAUTENBERG on                           to pay a tremendous compliment with                  national antihunger organizations to
      a soon-to-be-introduced bill to provide                      a huge sense of gratitude to my col-                 raise awareness about hunger, build
      up to $200,000 per fiscal year to eligible                   league from North Carolina for her                   partnerships, and build solutions to
      entities willing to carry out food res-                      tirelessness with regard to this issue.              end hunger.
      cue and job training. Entities like the                      She has been such an incredible fighter                We have many challenges that face
      Community Culinary School of Char-                           against the issue of hunger among                    our Nation, and so many challenges
      lotte, a private, non-profit organiza-                       Americans and really among her fellow                that face this body itself. Yet this is
      tion in my home State that provides                          man globally. I compliment her and                   one problem we know has an answer.
      training and job placement in the food                       thank her so much for the opportunity                And we know how to end hunger.
      service industry for people who are em-                      to work with her on something in                       Recently I introduced, with Senators
      ployed or underemployed.                                     which she has been a true leader. I am               DURBIN, SMITH, and LUGAR, the Hunger-
        Here is how it works. The Commu-                           looking forward to many more things                  Free Communities Act of 2005. This bill
      nity Culinary School recruits students                       that we can do together, but she has                 calls for a renewed national commit-
      from social service agencies, homeless                       made a huge effort in eliminating hun-               ment to ending hunger in the United
      shelters, halfway houses and work re-                        ger.                                                 States by 2015, reaffirms our congres-
      lease programs. They then work in col-                         We are here today to refocus our-                  sional commitment to protecting the
      laboration with food rescue agencies in                      selves and rededicate ourselves to                   funding and integrity of Federal food
      the area to provide meals to home-                           bringing about a tremendous awareness                and nutrition programs, and it creates
      bound individuals and to local home-                         to hunger as it exists in our Nation and             a national grant program to support
      less shelters. The food they rescue is                       certainly as it exists among our fellow              community-based antihunger efforts. I
      donated and picked up from res-                              man across the globe. I thank the Sen-               urge all of our colleagues to support
      taurants, grocers and wholesalers. The                       ator from North Carolina for all of her              this worthy and commonsense legisla-
      students then prepare nutritious meals                       hard work.                                           tion. It sets a goal for a monumental
      using the donated food while at the                            I do come to the floor to join my col-             concern and problem that we have in
      same time developing both culinary                           league from North Carolina on an issue               this Nation. It presents the answer, and
      and life skills.                                             that I take very seriously. Thirty-six               it sets the time in which we want to
        Take a young lady from this program                        million Americans, including 13 mil-                 reach that goal.
      named Sibyl. After years of drugs, pris-                     lion children, live on the verge of hun-               Mr. President, I want to take this op-
      ons and unplanned pregnancies, Sibyl                         ger. It is absolutely phenomenal to me,              portunity to talk about the 36 million
      entered the Community Culinary                               growing up as a farmer’s daughter in                 Americans, including 13 million chil-
      School of Charlotte. Her willingness                         the Mississippi Delta where there was                dren, who live on the verge of hunger.

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6131
        Some people may ask—what can I do                            A great example of how businesses                  is a constant ongoing struggle. It un-
      to help end hunger in America? I want                        and non-profits can partner to feed                  dermines their productivity, their
      to talk about some of the ways Ameri-                        hungry people occurred this past Fri-                earning power, and their health. It
      cans can help join the hunger-relief ef-                     day in Little Rock. Arkansas-based                   keeps their children from concen-
      fort. Acting on this call to feed the                        Tyson Foods and Riceland Foods, along                trating and learning in school. We all
      hungry requires the effort of every                          with Jonesboro’s Kraft Foods Post Di-                need to do more to combat it—govern-
      American and every sector of the econ-                       vision and Nestle’s Prepared Foods Fa-               ment, corporations, communities, and
      omy.                                                         cility, donated truck loads of food as a             citizens must work together to develop
        The backbone of this effort is the                         special donation in honor of National                better policies and faster responses.
      willingness of Congress and the Amer-                        Hunger Awareness Day. This food will                   In Massachusetts, organizations such
      ican people to support the Federal food                      go to the Arkansas Rice Depot, Pot-                  as the Greater Boston Food Bank,
      and nutrition programs. These pro-                           luck, Inc. and the Arkansas Hunger Re-               Project Bread, the Worcester County
      grams provide an essential safety net                        lief Alliance, which represents six food             Food Bank, and many others serve on
      to working Americans, preventing the                         banks located across Arkansas. These                 the frontlines every day, and they de-
      most vulnerable among us from suf-                           organizations will in turn use the food              serve our full support, but they should
      fering, and even dying, from malnutri-                       to help feed hungry Arkansans. I am                  not have to wage the battle alone.
      tion. Our continued investment in                            grateful to these companies and non-                   In 1996, the Clinton administration
      these programs is vital to the health of                     profit organizations for their leader-               pledged to begin an effort to cut hun-
      this nation.                                                 ship in this effort to feed the over                 ger in half in the United States by 2010,
        The most significant of these pro-                         450,000 Arkansans who have limited ac-               and the strong economy enabled us to
      grams, the Food Stamp Program, pro-                          cess to food.                                        make significant progress toward that
      vides nutritious food to over 23 million                       Ending hunger in America requires                  goal.     Hunger    decreased    steadily
      Americans a year. More Americans find                        the commitment of individual Ameri-                  through 2000. We now have 5 years left
      themselves in need of this program                           cans. Our greatest national strength is              to fulfill that commitment.
      every year. Despite this growing need,                       the power that comes from individual                   The fastest, most direct way to re-
      the Administration proposes to cut the                       initiatives and the collective will of               duce hunger in the Nation is to im-
      Food Stamp Program by $500 million                           the American people. I believe we are                prove and expand current Federal nu-
      over the next 5 years by cutting more                        called by a higher power to care for our             trition programs. Sadly, the current
      than 300,000 low-income people off the                       fellow men and women, and as a part of               Administration and the Republican
      program in an average month.                                 my Christian faith I know we are                     Congress propose to reduce, not in-
        I understand our current budget con-                       called to serve the poor and the hun-                crease, funds for important programs
      straints. However, even in these tight                       gry. I know it is a common denomi-                   such as Food Stamps, and the Commu-
      fiscal times, I believe that we must                         nator among almost all of our faiths                 nity Nutrition Program.
      maintain our commitment to feed the                          that it is those, the poor and the hun-                The Food Stamp Program is designed
      hungry.                                                      gry, the orphaned and the widowed,                   to be available to all eligible individ-
        Therefore, we must first protect pro-                      whom we are here, as our fellow man,                 uals and households in the United
      grams like the Food Stamp Program,                           to take care of, to help to lift them up.            States. It provides a basic and essential
      the National School Breakfast and                              If we believe in this call, we must                safety net to millions of people. In 2003,
      Lunch Program, Summer Feeding Pro-                           live it every day—in our schools and in              on average, over 21 million Americans
      gram, WIC, and the Child and Adult                           our homes, in our workplaces, our                    received food stamp benefits. Over half
      Care Food Program. I urge Americans                          places of worship, in our volunteering,              of all food stamp recipients are chil-
      to contact their congressional rep-                          and, yes, in our prayers. This personal              dren.
      resentatives to voice their support for                      responsibility is a great one, but it                  Now, the administration plans to re-
      these programs. I urge my colleagues                         holds tremendous power. It is a com-                 duce, or even cut off, food stamps for
      to support these programs and protect                        mon denominator that can bring us to-                recipients who rely on Medicare to af-
      them from cuts and structural changes                        gether, the one problem that we all                  ford the prescription drugs they need.
      that will undermine their ability to                         agree on and to which we know there is                 That is why I have introduced legis-
      serve our Nation’s most vulnerable                           a solution. For as we have seen                      lation to ensure that individuals who
      citizens.                                                    throughout American history, when in-                receive Medicare prescription drug ben-
        In addition to the Federal food pro-                       dividuals in this Nation bind together               efits do not lose their food stamps.
      grams, eliminating hunger in America                         to serve a common cause, they can                    This legislation ensures that seniors do
      requires the help of community organi-                       achieve the greatest of accomplish-                  not have to choose between food and
      zations. Government programs provide                         ments. By sharing the many blessings                 medicine. I urge my colleagues to sup-
      a basis of support, but they cannot do                       and resources our Nation provides, I                 port this important legislation.
      the work alone. Community and faith-                         am confident that we can alleviate                     It is time to do more for the most
      based organizations are essential to lo-                     hunger at home and abroad.                           vulnerable in our society. National
      cating and rooting out hunger wher-                            I thank the Chair. I yield the floor.              Hunger Awareness Day is our chance to
      ever it persists. We rely on the work of                       Mr. KENNEDY. Mr. President, today                  pledge to eradicate hunger in America
      local food banks, food pantries, soup                        is National Hunger Awareness Day, and                and to mean it when we say it.
      kitchens, and community action cen-                          it is an opportunity for all of us in Con-             Mr. President, I would like to con-
      ters across America to go where gov-                         gress to pledge a greater effort to deal             gratulate Senator DOLE and Senator
      ernment cannot. I will do all I can to                       effectively with this festering problem              LINCOLN for giving focus and attention
      provide the resources these community                        that shames our Nation and has grown                 to National Hunger Awareness Day and
      organizations need to continue with                          even more serious in recent years. It is             for all they do on this particular issue.
      the difficult but necessary work they                        a chance to live out our moral commit-               I had the opportunity yesterday to
      perform.                                                     ment to care for our neighbors and fel-              visit The Greater Boston Food Bank in
        Private corporations and small busi-                       low citizens who have fallen on hard                 Massachusetts—a successful food bank.
      nesses also have a role to play in elimi-                    times.                                               We have 517,000 people who are hungry
      nating hunger in America. Our cor-                             The number of Americans living in                  in eastern Massachusetts alone, over
      porations and small businesses gen-                          hunger, or on the brink of hunger, now               173,000 of those individuals are chil-
      erate most of our Nation’s wealth and                        totals 36 million, 3 million more since              dren, and over 50,000 are elderly.
      have throughout history supported                            President Bush took office. That total                 One thing we know how to do in this
      many of our greatest endeavors. Many                         includes 13 million children, 400,000                country is grow food. We can do that
      corporations and businesses already                          more since 2001.                                     better than any other place in the
      contribute to efforts to eliminate hun-                        Day in and day out, the needs of mil-              world. Secondly, we know how to de-
      ger, and I hope others will begin to par-                    lions of Americans living in hunger are              liver packages of food with Federal Ex-
      ticipate as opportunities to do so                           widely ignored, and too often their                  press, other kinds of delivery services,
      present themselves in the future.                            voices have been silenced. Their battle              virtually overnight. The fact that we

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      S6132                                              CONGRESSIONAL RECORD — SENATE                                                           June 7, 2005
      have hunger in this Nation, we have                          hunger. We know how. We need to mus-                 eliminate hunger. Whether it is orga-
      children who are hungry, frail elderly                       ter the political will.                              nizing a food drive in their school or of-
      who are hungry, working families who                           We started this week by challenging                fice, volunteering at a soup kitchen, or
      are hungry, or other homeless people                         our own offices to participate in a Sen-             donating to their local food bank, they
      who are hungry, we as a nation are                           ate food drive. I commend Senators                   are answering the call to reduce the
      failing our humanity. We know what                           LINCOLN, SMITH, and DOLE for their                   number of hungry Americans. In Den-
      can be done. It needs the combination                        help in collecting food that will be do-             ver, where poverty is also on the rise,
      of a governmental framework, private                         nated to the Capitol Area Community                  groups like the Food Bank of the Rock-
      framework, and a very important in-                          Food Bank.                                           ies have stepped up their food distribu-
      volvement from the nonprofit frame-                            I look forward to working with peo-                tion. In 2004, hard-working, committed
      work and other groups at the local                           ple in the anti-hunger community and                 workers and volunteers distributed
      level, religious groups that have done                       with my colleagues to eliminate do-                  over 16 million pounds of food and es-
      such important work.                                         mestic hunger in our lifetime.                       sential household items, more than
        So I commend my friends and col-                             Mr. SALAZAR. Mr. President, I rise                 ever before.
      leagues for bringing focus and atten-                        to commend the efforts of our Nation’s                 However, today is a special day,
      tion to this issue. It has enormous im-                      civic, business and faith leaders to call            where national, regional and local or-
      plications. We find out in terms of edu-                     attention to the increasing number of                ganizations collectively are raising
      cation provided to the children, the                         Americans who are unable to put food                 awareness of hunger in America. I am
      needy children at breakfast for them                         on their tables. Today, on National                  particularly proud that National Hun-
      early in the morning, the results in                         Hunger Awareness Day, I am proud to                  ger Awareness Day events have been
      terms of their willingness, ability, and                     join with communities in every region                organized in communities throughout
      interest in cooperating with their                           of my State that are taking on the                   Colorado, including Colorado Springs,
      teacher and learning go up immensely.                        charge to end hunger in the United                   Denver, Fort Collins, Grand Junction,
      We have information that documents                           States.                                              Greeley, and Hot Sulphur Springs. I ap-
      all of that. Try to teach a hungry child                       Growing up in Colorado’s San Luis                  plaud Coloradans involved in these ac-
      to learn, and any teacher will tell you                      Valley, one of the poorest regions in                tivities, and all those participating in
      the complexities and difficulties and                        the country, my family did not have                  the day’s related events. I look forward
      the frustrations in doing that.                              electricity or running water in our                  to working with the Senate Hunger
        I thank my two friends and others                          home. But our family farm ensured                    Caucus and the Senate Agriculture
      who are part of this movement. I look                        that my brothers and sisters and I                   Committee in the movement to end
      forward to working with them on a                            never went to bed hungry or arrived at               hunger.
      matter of enormous importance and                            school on an empty stomach. My class-                  Mr. SMITH. Mr. President, I rise
      consequence.                                                 mates were not always as fortunate.                  today to speak about a problem im-
        Mr DURBIN. Mr. President, I rise                           Sadly, not much has changed since my                 pacting communities across the United
      today to note National Hunger Aware-                         youth.                                               States and throughout the world. As
      ness Day.                                                      Currently, in Conejos County, where                many of my colleagues know, today is
        I am meeting today with 35 people                          my family’s farm is located, one in four             National Hunger Awareness Day. It is a
      here from Illinois who came to Wash-                         residents are living in poverty. That is             day meant to focus our attention on
      ington to remind us that hunger is not                       twice the national average, and three                those for whom putting food on the
      a Democratic or Republican issue.                            times our State poverty rate. And in-                table continues to be a daily struggle.
        Basic sustenance ought to be a guar-                       creasingly, the stories behind these                   For the last several years, my home
      antee in a civilized society, not a gam-                     numbers are of working poor house-                   State of Oregon has been at or near the
      ble.                                                         holds who struggle to pay their mort-                top of repeated nationwide studies of
        If children—or adults—are hungry in                        gages, escalating electricity bills and              hunger and food insecurity in the
      America, that’s a problem for all of us.                     fuel costs. In Colorado Springs, the                 United States. While we have made
      And it is a problem we can do some-                          Care and Share Food Bank estimated                   some progress in fighting hunger in Or-
      thing about.                                                 that close to 50 percent of the house-               egon, there is still a long way to go to
        For instance, we know that Federal                         holds receiving their emergency food                 ensuring that children and families in
      nutrition programs work. WIC, food                           assistance last year had at least one                my State and around the country do
      stamps, school lnch and breakfast pro-                       working parent. More and more, these                 not go to bed hungry. According the
      grams, and other Federal nutrition                           families need to turn to their local food            U.S. Department of Agriculture’s Eco-
      programs are reaching record numbers                         bank or church pantry in the very                    nomic Research Service, in 2003, ap-
      of Americans today, and making lives                         same communities where food is har-                  proximately 36.3 million Americans
      better.                                                      vested; serving as a sad reminder that               lived in households that at some point
        The problem is we are not reaching                         there is much more work to be done.                  during the year did not have access to
      enough people. There are still too                             When speaking with hunger relief or-               enough food to meet their basic needs.
      many parents in this country who skip                        ganizations throughout Colorado, they                Of those 36.3 million, 3.9 million were
      meals because there is not enough                            express concern when forced to turn                  considered hungry.
      money in the family food budget for                          families away, and the number of peo-                  In 2003, Oregon State University pub-
      them and their children to eat every                         ple they cannot help continues to grow.              lished a study on food insecurity and
      night.                                                       For example, the Marian House, which                 hunger in Oregon. The study found that
        There are still too many babies and                        is operated by Catholic Charities of                 pressures related to the high-cost of
      toddlers in America who are not get-                         Colorado Springs, serves approxi-                    housing, health care, and the high-level
      ting the nutrition their minds and bod-                      mately 600 meals. Over the past several              of unemployment all contribute to food
      ies need to develop to their fullest po-                     years, they have seen the daily number               insecurity and hunger in our State.
      tential. There are still too many sen-                       of people coming into food banks near-               One of the more striking findings in
      iors and children who go to bed hungry.                      ly double.                                           the report is that underemployment is
        There are 36 million Americans who                           Unfortunately, their stories of grow-              also a major factor leading to hunger
      are hungry or at risk of hunger. In the                      ing demands reflect the problems fac-                and food insecurity; working families
      richest Nation in the history of the                         ing much of the rural West. In fact, ac-             throughout Oregon are having a dif-
      world, that is unacceptable.                                 cording to the U.S. Department of Ag-                ficult time accessing food.
        Last week, I joined with several of                        riculture, 16 percent of households in                 On the horizon, Oregon’s economy
      my Senate colleagues to introduce the                        this region did not know where their                 appears to be brightening. While there
      Hunger-Free Communities Act.                                 next meal would come from—that is                    are no quick fixes, I believe that solv-
        The bill is designed to promote local                      the highest rate of so-called ‘‘food inse-           ing hunger is within our grasp. Federal
      collaboration in the fight against hun-                      curity’’ in any region of the country.               nutrition programs certainly serve an
      ger. But it also reminds us that we as                         In the face of these staggering statis-            important safety net role in combating
      a country are committed to ending                            tics, Coloradans are doing their part to             hunger; however, they are only one

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                    S6133
      piece of the puzzle. Community organi-                       systems that grant more than two-thirds of           tle for equality for women and African
      zations, churches, business groups, and                      the nation’s degrees, record numbers of              Americans. Dr. Height has dedicated
      private citizens all have a part to play.                    Americans are being priced out of higher             her life to fighting for equal opportuni-
                                                                   education. This is an ominous trend, given
      Ultimately, winning the fight against                                                                             ties for all Americans. She is univer-
                                                                   that the diploma has become the minimum
      hunger in Oregon and around the coun-                        price of admission to the new economy.               sally respected by Republicans and
      try requires that families are able to                         Greg Winter of The Times reported yester-          Democrats, and last year she received
      provide for themselves—that means                            day that the federal government has                  the Congressional Gold Medal, and
      having access to living wage jobs.                           rejiggered the formula that determines how           President Bush joined Members of Con-
        Many of my colleagues will remem-                          much families have to pay out of pocket be-          gress in honoring her service.
      ber that last year I asked them to join                      fore they become eligible for the student aid          In opposing Justice Brown’s nomina-
      me in forming a Senate caucus devoted                        package, which consists of grants and low-in-        tion, Dr. Height says:
                                                                   terest loans. The new formula, which will
      to raising awareness of the root causes                                                                             I have always championed and applauded
                                                                   save the government about $300 million in
      of hunger and food insecurity. I appre-                      federal aid under the Pell program, will
                                                                                                                        the progress of women, and especially Afri-
      ciate very much the work of my Senate                                                                             can American women; but I cannot stand by
                                                                   cause some lower-income students to lose
      Hunger Caucus cochairs Senator LIN-                                                                               and be silent when a jurist with a record of
                                                                   federal grants entirely. The families of oth-
                                                                                                                        performance of California Supreme Court
      COLN, Senator DOLE, and Senator DUR-                         ers will have to put up more money before
                                                                                                                        Justice Janice Rogers Brown is nominated to
      BIN—in helping to get the caucus off                         they can qualify for financial aid. Per-
                                                                                                                        a Federal court, even though she is an Afri-
      the ground. I am proud to say that                           versely, single-parent household will have to
                                                                                                                        can American woman. In her speeches and
      today, the Senate Hunger Caucus                              pay more than two-parent households before
                                                                                                                        decisions, Justice Janice Rogers Brown has
                                                                   they become eligible.
      counts 34 members, with both Repub-                                                                               articulated positions that weaken the civil
                                                                     The federal Pell Grant program, which is
      licans and Democrats.                                        aimed at making college possible for poor
                                                                                                                        rights legislation and progress that I and
        This is clearly not a battle that will                                                                          others have fought so long and hard to
                                                                   and working-class students, has fallen to a
      be won overnight, but it is something                                                                             achieve.
                                                                   small fraction of its former value. The
      about which our conscience calls us to                       states, meanwhile, have trimmed aid to pub-            Justice Brown’s nomination is op-
      act. If we are to end hunger, we must                        lic colleges, partly as a consequence of soar-       posed equally strongly by over 100
      work to address its root causes. Being                       ing Medicaid costs. The states have deepened         other organizations, including 24 in
      successful in this mission will require                      the problem by shifting need-based tuition to        California, representing seniors, work-
      that we are innovative and find new                          middle-class and upper-class students under          ing families, and citizens concerned
                                                                   the guise of handing out so-called merit             about corporate abuses and the envi-
      ways of doing things. I look forward to                      scholarships.
      continuing to work with my colleagues                          The political clamor around the new for-
      in Congress and groups in Oregon to                          mula is likely to lead to changes, but they            Some of Justice Brown’s supporters
      win this fight.                                              will be aimed at upper-income families who           suggest that she should be confirmed
                       UPWARD MOBILITY                             are most able to pay. Tinkering with for-            because she is an African-American
        Mr. KENNEDY. Mr. President, before                         mulas in Washington will not solve this              woman with a compelling personal
      speaking on what I want to address to                        problem. The nation as a whole has been              story. While all of us respect her abil-
                                                                   disinvesting in higher education at a time           ity to rise above difficult cir-
      the Senate, and that is the pending                          when college has become crucial to work
      business on the nominee, I want to                                                                                cumstances, we cannot confirm nomi-
                                                                   force participation and to the nation’s abil-
      bring to the attention of my colleagues                                                                           nees to lifetime positions on the Fed-
                                                                   ity to meet the challenges of global eco-
      an excellent editorial in the New York                       nomic competition.                                   eral courts because of their back-
      Times today: ‘‘Crushing Upward Mobil-                          Until the country renews its commitment            grounds. We have a constitutional duty
      ity.’’ It is basically an analysis of a                      to making college affordable for everyone,           to confirm only those who would up-
      regulation that was put forward by the                       the American dream of upward mobility                hold the law and would decide cases
      Department of Education that will                            through education will be in danger of dying         fairly and reject those who would issue
                                                                   out.                                                 decisions based on personal ideology.
      save the Department of Education
                                                                     Mr. KENNEDY. Mr. President, I in-                    It is clear why this nomination is so
      some resources, but at the cost of those
                                                                   tend to introduce later on in the after-             vigorously opposed by those who care
      middle-class families, working fami-
                                                                   noon the technical language and legis-               about civil rights. Her record leaves no
      lies, who are eligible for student loan
                                                                   lation that will block that particular               doubt that she would attempt to im-
      programs. That is not the direction in
                                                                   provision by the Department of Edu-                  pose her own extreme views on people’s
      which we should be going.
                                                                   cation from going into effect.                       everyday lives instead of following the
        At the current time, we have a num-
                                                                     Mr. President, Janice Rogers Brown’s               law. The courts are too important to
      ber of these young students who are
                                                                   nomination to the DC Circuit is op-                  allow such persons to become lifetime
      paying 9.5 percent on guaranteed stu-
                                                                   posed more strongly by civil rights or-              appointees as Federal judges.
      dent loans. Can you imagine having a
                                                                   ganizations than almost any other                      Janice Rogers Brown’s record makes
      deal like that? You put out money and
                                                                   nominee I can recall to the Federal                  clear that she is a judicial activist and
      the Federal Government guarantees
                                                                   courts of appeals.                                   would roll back not only civil rights
      that you have nothing to lose, and it
                                                                     She is opposed by respected civil                  but laws that protect public safety,
      still costs these students 9.5 percent.
                                                                   rights leaders, including Julian Bond,               workers’ rights, and the environment,
      We ought to be doing something about
                                                                   the chairman of the NAACP, and Rev-                  as well as laws that limit corporate
      that, like taking the profits and mak-
                                                                   erend Joseph Lowery, president emer-                 abuse, which are precisely the cases
      ing a difference in terms of lowering
                                                                   itus of the Southern Christian Leader-               the DC Circuit hears most often.
      the burden on working families and
                                                                   ship Conference, who worked with Dr.                   Our decision on this nomination is
      middle-income families who are trying
                                                                   Martin Luther King, Jr., in the civil                profoundly important to America’s ev-
      to help their children go on to college,
                                                                   rights movement, and who has fought                  eryday life. All Americans, wherever
      rather than put more burden on them.
        This is an excellent article. I ask                        tirelessly for many years to make civil              they live, should be concerned about
      unanimous consent that the editorial                         rights a reality for all Americans.                  such a nomination to the DC Circuit,
      be printed in the RECORD.                                      Her nomination is also opposed by                  which interprets Federal laws that pro-
        There being no objection, the mate-                        the Congressional Black Caucus, the                  tect our civil liberties, worker safety,
      rial was ordered to be printed in the                        National Bar Association, the Coali-                 our ability to breathe clean air and
      RECORD, as follows:                                          tion of Black Trade Unions, the Cali-                drink clean water in our communities.
               [From the New York Times]
                                                                   fornia Association of Black Lawyers,                   The DC Circuit is the crown jewel of
                                                                   and Delta Sigma Theta Sorority, the                  Federal appellate courts and has often
                                                                   second oldest sorority founded by Afri-              been the stepping stone to the Supreme
        The United States is rapidly abandoning a
                                                                   can-American women.                                  Court. It has a unique role among the
      long-standing policy aimed at keeping col-
      lege affordable for all Americans who qualify                  Justice Brown’s nomination is op-                  Federal courts in interpreting Federal
      academically. Thanks to a steep decline in                   posed by Dorothy Height, president                   power. Although located here in the
      aid to poor and working-class students and                   emeritus of the National Council of                  District of Columbia, its decisions have
      lagging state support for the public college                 Negro Women, and a leader in the bat-                national reach because it has exclusive

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      S6134                                              CONGRESSIONAL RECORD — SENATE                                                          June 7, 2005
      jurisdiction over many laws that pro-                           After decades of landmark decisions               role of government and government
      tect consumers’ rights, employees’                           allowing effective implementation of                 regulation and her opinions against
      rights, civil rights, and the environ-                       important laws and principles, the                   workers’ rights and consumer protec-
      ment. Only the DC Circuit can review                         court now is creating precedence on                  tions are not an indication of how she
      the national drinking water standards                        labor rights, civil rights, and the envi-            would act as a Federal judge. It is hard
      under the Safe Drinking Water Act to                         ronment that will set back these basic               to believe that anyone would repeat-
      ensure clean water for our children.                         principles for years to come. It is,                 edly use such extreme rhetoric and not
      Only the DC Circuit can review na-                           therefore, especially important to en-               mean it. It is even harder to believe
      tional air quality standards under the                       sure that judges appointed to this im-               that her carelessness and intemperance
      Clean Air Act to combat pollution in                         portant court will not use their posi-               somehow qualify her to be a Federal
      our communities. This court also hears                       tion to advance an extreme ideological               judge.
      the lion’s share of cases involving the                      agenda.                                                Moreover, Justice Brown’s decisions
      rights of workers under the Occupa-                             Janice Rogers Brown would be ex-                  match her extreme rhetoric. She has
      tional Safety and Health Act which                           actly that kind of ideological judge.                written opinions that would undermine
      helps ensure that working Americans                          How can we confirm someone to the DC                 these basic protections. I was espe-
      are not exposed to hazardous condi-                          Circuit who is hostile to civil rights, to           cially troubled by her opinion in a case
      tions on the job. It has a large number                      workers’ rights, to consumer protec-                 in which ethnic slurs have been proven
      of cases under the National Labor Re-                        tions, to governmental actions that                  to create hostile working conditions
      lations Act. As a practical matter, be-                      protect the environment and the public               for Latino workers. Justice Brown
      cause the Supreme Court can review                           in so many other areas—the very issues               wrote that the first amendment pre-
      only a small number of lower court de-                       that predominate in the DC Circuit?                  vents courts from stopping ethnic slurs
      cisions, the judges on the DC Circuit                        How can we confirm someone who is so                 in the workplace even when those slurs
      often have the last word on these im-                        deeply opposed to the core protections               create a hostile work environment, in
      portant rights.                                              that the DC Circuit is required to en-               violation of job discrimination laws.
        Because of the court’s importance to                       force? It is hard to imagine a worse                   Her opinion even went beyond the
      issues that affect so many lives, the                        choice for the DC Circuit.                           State law involved in the case and sug-
      Senate should take special care in ap-                          Perhaps most disturbing is the con-               gested that title VII and other Federal
      pointing judges for lifetime positions                       tempt she has repeatedly expressed for               antidiscrimination laws may not pro-
      on the DC Circuit. We must be com-                           the very idea of democratic self-gov-                hibit this kind of harassment in the
      pletely confident that appointees to                         ernment. She has stated that where                   workplace. Her opinion contradicts
      this prestigious court have the highest                      government moves in, community re-                   decades of precedent protecting work-
      qualifications and ethical standards                         treats, and civil society disintegrates.
                                                                                                                        ers from harassment based on race,
                                                                   She has said that government leads to
      and will fairly interpret the laws, par-                                                                          gender, ethnicity, and religion. Fortu-
                                                                   families under siege, war in the streets.
      ticularly laws that protect our basic                                                                             nately, a majority of California’s Su-
                                                                   In her view, when government ad-
      rights.                                                                                                           preme Court disagreed with her views.
        The important work we do in Con-                           vances, freedom is imperiled, and civ-
                                                                                                                          We cannot risk giving Justice Brown
                                                                   ilization itself is jeopardized. These
      gress to improve health care, reform                                                                              a lifetime appointment to a court on
                                                                   views could hardly be further from
      public schools, protect working fami-                                                                             which she will have a greater oppor-
                                                                   legal mainstream. They are not the
      lies, and enforce civil rights is under-                                                                          tunity to apply her extreme views on
                                                                   views of someone who should be con-
      mined if we fail in our responsibility to                                                                         our Federal civil rights laws. This Na-
                                                                   firmed to the second most important
      provide the best possible advice and                                                                              tion has made too much progress to-
                                                                   court in the land and the court with
      consent on judicial nominations. Need-                                                                            ward our shared goal of equal oppor-
                                                                   the highest frequency of cases involv-
      ed environmental laws mean little to a                                                                            tunity to risk appointing a judge who
                                                                   ing governmental action. Congress and
      community that cannot enforce them                           the White House are the places you go                will roll back civil rights.
      in Federal courts. Fair labor laws and                                                                              Other opinions by Justice Brown
                                                                   to change the law, not the Federal
      civil rights laws mean little if we con-                                                                          would have prevented victims of age
      firm judges who ignore them.                                    She has criticized the New Deal                   and race discrimination from obtaining
        In the 1960s and 1970s, the DC Circuit                     which gave us Social Security, the                   relief in State court. She dissented
      expanded public access to administra-                        minimum wage, and the fair labor                     from a holding that victims of dis-
      tive proceedings and protected the in-                       laws. She questioned whether age dis-                crimination may obtain damages from
      terests of the public against the egre-                      crimination laws benefit the public in-              administrative agencies for their emo-
      gious actions of many large businesses.                      terest. She has even said that today’s               tional distress. Time and again, she has
      It enabled more plaintiffs to challenge                      senior citizens blithely cannibalize                 issued opinions that would cut back on
      agency decisions. It held that a reli-                       their children because they have the                 laws that rein in corporate special in-
      gious group, as a member of the listen-                      right to get as much free stuff as the               terests. When there is a choice between
      ing public, could oppose the license re-                     political system will permit them to                 protecting the interests of working
      newal of a television station accused of                     extract. No one with these views                     Americans and siding with big busi-
      racial and religious discrimination. It                      should be confirmed to any Federal                   ness, Janice Rogers Brown sides with
      held that an organization of welfare re-                     court, and certainly not to the Federal              big business, and she does so in ways
      cipients was entitled to intervene in                        court most responsible for cases re-                 that go far beyond the mainstream
      proceedings before a Federal agency.                         specting governmental action. It is no               conservative thinking.
      These decisions empowered individuals                        wonder that an organization seeking to                 She wrote an opinion striking down a
      and organizations to shine a brighter                        dismantle Social Security is running                 State fee requiring paint companies to
      light on governmental agencies. No                           ads supporting her nomination to the                 pay for screening and treating children
      longer would these agencies be able to                       second most powerful court in the                    exposed to lead paint. Most of us are
      ignore the interests of those they were                      country.                                             familiar with the dangers of lead paint.
      created to protect.                                             Of course, like every nominee who                 It is a contributing cause to mental re-
        But in recent years, the DC Circuit                        comes before the Senate, Justice                     tardation with regards to children.
      has begun to deny access to the courts.                      Brown assures us that she will follow                Many of the older communities all over
      It held that a labor union could not                         the law. But merely saying so is not                 this country have paint that has a lead
      challenge the denial of benefits to its                      enough when there is clear and exten-                content, and children have a habit of
      members, a decision later overturned                         sive evidence to the contrary. The Sen-              picking off the pieces. Even if it is in
      by the Supreme Court. It held that en-                       ate is more than a rubberstamp in the                playgrounds, they have a way of in-
      vironmental groups are not qualified to                      judicial confirmation process. We must               gesting these pieces. We find that chil-
      seek review of Federal standards under                       examine the record and vote our con-                 dren develop severe illness and sick-
      the Clean Air Act. These decisions are                       science.                                             ness and in too many instances mental
      characteristic of the DC Circuit’s flip-                        Justice Brown and her supporters ask              retardation. We tried here for years to
      flop.                                                        us to believe that her contempt for the              eliminate the issues of lead in paint.

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6135
      We      have   made   some     important                     tions about a nominee. That is non-                                BIRTH CONTROL
      progress.                                                    sense. Justice Brown has received the                   Mr. DURBIN. Mr. President, today is
         As I understand it, one of the pro-                       same treatment as other nominees. We                 a very important day in American his-
      posals was a small State fee requiring                       have asked about her record, looked at               tory. On June 7, 1965, 40 years ago
      paint companies to pay for screening                         her statements, and reviewed her opin-               today, the U.S. Supreme Court struck
      and treating children exposed to lead                        ions. We have raised questions when                  down a Connecticut law making it a
      paint, and she struck down that State                        her record cast doubt on her commit-                 crime to use or prescribe any form of
      fee. Fortunately, she was unanimously                        ment to the rule of law.                             birth control or even to give advice
      reversed by the California Supreme                             During the recent debate on judicial               about birth control. Forty years ago it
      Court. But because the United States                         nominees, almost all of us, Republicans              was a crime to prescribe any form of
      Supreme Court hears so few cases,                            and Democrats, have emphasized that                  birth control in the State of Con-
      there is no guarantee that her mis-                          we want an independent judiciary. If                 necticut, or to use it, or to give advice
      takes will be corrected if she receives a                    that is truly what we believe, we must               about it: 40 years ago.
      lifetime position on the DC court.                           vote no on the nomination of Janice                     It is hard to imagine, isn’t it? Even
         In another case, she wrote a dissent                      Rogers Brown. She opposes many of                    married couples in Connecticut could
      urging the California Supreme Court to                       our society’s most basic values shared               be convicted of a crime, fined, and sen-
      strike down a San Francisco law pro-                         by both Republicans and Democrats.                   tenced to up to a year in prison for
      viding housing assistance to low-in-                           Throughout its history, America has                using forms of birth control. Doctors
      come elderly and disabled people.                            embraced the ideals of fairness, oppor-              who prescribed contraceptives, phar-
         Justice Brown has also clearly dem-                       tunity, and justice. We all believe our              macists who filled the prescriptions,
      onstrated her willingness to ignore es-                      laws are there to help ensure everyone               even people who simply provided ad-
      tablished precedent. She wrote a dis-                        can share in the American dream and                  vice about birth control, could be
      sent, arguing that the California Su-                        that everyone should be free from dis-               charged with aiding and abetting a
      preme Court ‘‘cannot simply cloak our-                       crimination. Janice Rogers Brown has                 crime, fined, and sent to prison for up
      selves in the doctrine of stare decisis,’’                   expressed hostility to some of the pro-              to a year.
      which is the rule that judges should                         tections most important to the Amer-                    But 40 years ago today, just across
      follow the settled law. That is the basic                    ican people, including those that pro-               the street, by a vote of 7 to 2, the Su-
      concept of upholding the law, inter-                         tect workers, civil rights, and the envi-            preme Court struck down the Con-
      preting law, stare decisis, following the                    ronment. We believe that judges should               necticut law. The case was called Gris-
      law which currently exists.                                  be impartial, not beholden to powerful               wold v. Connecticut, a famous case.
         She wrote a dissent urging the Cali-                      corporate interests. If we believe in                The Court’s ruling held for the first
      fornia Supreme Court, saying we can-                         these basic protections, it makes no                 time in our Nation’s history that the
      not simply cloak ourselves in that doc-                      sense to confirm a judge who would un-               Constitution guarantees all Americans
      trine.                                                       dermine them and turn back the clock                 the right to privacy in family planning
         She again showed her willingness to                       on many of our most basic rights.                    decisions. Such decisions were so in-
      disregard legal precedent just this                            The Senate’s role in confirming                    tensely personal, their consequences so
      year. In People v. Robert Young, Jus-                        judges to the Federal courts is one of               profound, the Court said the State, the
      tice Brown tried to overturn a prece-                        our most important responsibilities                  Government, may not intrude, it may
      dent protecting the rights of racial mi-                     under the Constitution. We count on                  not impose its will upon others.
      norities and women not to be elimi-                          Federal judges to be openminded, fair,                  You can search our Constitution,
      nated from juries for discriminatory                         and respect the rule of law. Despite                 every single word of it, as short a docu-
      reasons. In a concurring opinion not                         what Justice Brown thinks, laws                      ment as it is, and never find the word
      joined by any of her colleagues, she                         passed by Congress to give Government                ‘‘privacy’’ in this document. Yet the
      criticized the precedent stating that                        a role in protecting the environment,                Supreme Court said they believed the
      for the purposes of deciding whether a                       immigrants, workers, consumers, pub-                 concept of our privacy was built into
      prosecuting attorney had discrimi-                           lic health and safety, have helped to                our rights, our individual rights and
      nated in selecting a jury, black women                       make America a stronger, better, and                 liberties.
      could not be considered a separate                                                                                   I referred briefly to this landmark
                                                                   more fair country. A nominee so deeply
      group. The California Supreme Court                                                                               ruling earlier today in remarks oppos-
                                                                   hostile to so many basic laws does not
      had held two decades ago that prosecu-                                                                            ing the nomination of Janice Rogers
                                                                   deserve to be appointed to such an im-
      tors may not exclude jurors solely be-                                                                            Brown to serve as a Federal circuit
                                                                   portant Federal court.
      cause they are black women.                                                                                       court judge in the District of Colum-
                                                                     Last month, we celebrated the 51st                 bia. That nomination is before the Sen-
         Justice Brown argued that this                            anniversary of the Supreme Court’s
      precedent should be overruled because                                                                             ate at this moment. It is for a lifetime
                                                                   landmark decision in Brown v. Board of
      she saw no evidentiary basis that black                                                                           appointment. Janice Rogers Brown is a
                                                                   Education. Nothing can be a more im-
      women might be the victims of a                                                                                   justice in the California Supreme
                                                                   portant reminder of the role of our
      unique type of group discrimination                                                                               Court who has stated explicitly her
                                                                   courts in upholding individual rights.
      justifying their designation as a cog-                                                                            own personal philosophy, her own judi-
                                                                   In confirming Federal judges, we must
      nizable group.                                                                                                    cial philosophy, and it runs counter to
                                                                   ensure that they will uphold the                     many of the concepts and values I will
         It is not just Senate Democrats who                       progress our country has made in so
      are troubled about the record of Janice                                                                           be discussing as part of this commemo-
                                                                   many areas, especially in civil rights.              ration of the Griswold decision.
      Rogers Brown. Conservatives have also                          Justice Brown’s record and her many
      expressed concern about the judicial                                                                                 I am glad there is a bipartisan resolu-
                                                                   intemperate statements give me no                    tion sponsored by my colleague from
      activism of Janice Rogers Brown. The                         confidence that she will do so, and I
      conservative publication National Re-                                                                             Illinois, Senator BARACK OBAMA, and
                                                                   urge my colleagues to vote against her               Senator OLYMPIA SNOWE of Maine, call-
      view had this to say:                                        nomination.
        Janice Rogers Brown . . . has said that ju-                                                                     ing on the Senate to celebrate the 40th
                                                                     I suggest the absence of a quorum.                 anniversary of the Griswold decision.
      dicial activism is not troubling per se; what
      matters is the ‘‘worldview’’ of the judicial                   The PRESIDING OFFICER. The                         In that resolution, my two colleagues,
      activist. If a liberal nominee to the courts                 clerk will call the roll.                            one Democrat, one Republican, ask the
      said similar things, conservatives would                       The assistant legislative clerk pro-               Senate to renew its commitment to
      make short work of her.                                      ceeded to call the roll.                             make sure that all women, including
        Even conservative columnist George                           Mr. DURBIN. Mr. President, I ask                   poor women, have access to affordable,
      Will has said that Janice Rogers Brown                       unanimous consent that the order for                 reliable, safe family planning.
      is out of the mainstream.                                    the quorum call be rescinded.                           Right at the heart of the Griswold
        In the past, some members of the                             The PRESIDING OFFICER (Mr.                         decision, the right to make the most
      press, and even some in Congress, have                       COLEMAN). Without objection, it is so                intimate personal decisions about our
      accused us of bias when we raise ques-                       ordered.                                             lives in private, without Government

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      S6136                                              CONGRESSIONAL RECORD — SENATE                                                             June 7, 2005
      interference, we find the foundation for                        It is worth remembering that the                  leaving behind a husband and five
      future decisions that expanded repro-                        Griswold decision overturned Connecti-               small children. Linn Duvall Harwell
      ductive rights. In 1972, in Eisenstadt v.                    cut’s version of a Federal law called                has spent her life trying to spare other
      Baird, the Supreme Court granted un-                         the Comstock Act. In 20 years on Cap-                women her mother’s fate by protecting
      married people in America access to                          itol Hill, I have never heard anyone                 women’s right to safe and legal contra-
      family planning and contraception—                           refer to the Comstock Act. Listen to                 ception and abortion.
      1972—and, in 1973, the famous case, Roe                      the history. This law was named after                  In 1958, Linn Harwell moved to Con-
      v. Wade, a 7-to-2 decision by the Su-                        its author, Anthony Comstock, a mor-                 necticut. A woman at her church asked
      preme Court said that women have a                           als crusader and a zealot anti-abortion              her to volunteer for Planned Parent-
      fundamental right to decide whether to                       advocate.                                            hood. She and other young mothers
      continue a pregnancy, depending on                              In 1868, Anthony Comstock was the                 were trained in medical understanding
      the state of the pregnancy. Supreme                          driving force behind a State anti-ob-                of birth control by Estelle Griswold,
      Court Justice Harry Blackmun was                             scenity law in New York. In 1873, he                 the director of Planned Parenthood in
      nominated to serve on the Supreme                            brought his crusade to Washington. He                Connecticut, and Charles Lee Buxton,
      Court by Richard Nixon—obviously a                           lobbied Congress to pass a Federal law               the league’s medical director. These
      Republican President. Justice Black-                         making it a crime to advertise or mail               were the two people who brought the
      mun had been on the Court less than a                        not only ‘‘every lewd, lascivious, or                lawsuit that later became the Griswold
      year and a half when he was assigned                         filthy book, pamphlet, picture, paper,               case before the Supreme Court. Years
      to write the majority opinion in Roe v.                      letter, writing, print, or other publica-            before the Court struck down Connecti-
      Wade.                                                        tion of an indecent character’’ but also             cut’s Comstock law, Linn Duvall
        There is a brilliant new biography                         any information ‘‘for preventing con-                Harwell defied the law to teach poor
      called ‘‘Becoming Justice Blackmun’’                         ception or producing abortion.’’                     women in housing projects about birth
      by Linda Greenhouse. I finished it and                          Congress passed the Comstock law                  control and family planning.
      recommend it to my colleagues. Jus-                          unanimously, with little debate. It                    Yesterday, the Chicago Sun-Times
      tice Blackmun served on the Court at                         then commissioned—this is something                  carried an article written by Miss
      several different levels and kept copi-                      I find almost hard to believe—it com-                Harwell about her life’s work and the
      ous notes. From those notes, which                           missioned Anthony Comstock as a spe-                 renewed threats today to the rights
      were donated, they have derived this                         cial agent of the U.S. Post Office, gave             identified in Griswold and Roe. In her
      biography, which I recommend to any-                         him the power under the law to define                op-ed, Miss Harwell recalled a woman
      one, regardless of your political back-                      what should be banned in America, and                she met in 1968 named Rosie. Rosie was
      ground, to understand what happens                           also vested in Mr. Comstock the power                32 years old. She and her husband, a
      behind those closed doors at the Su-                         of arrest and gave him a huge travel                 short-order cook, were the parents of 11
      preme Court.                                                 budget. Imagine that: Mr. Comstock                   children.
        Justice Blackmun revealed in this                          spent the next 30 years crisscrossing                  Miss Harwell wrote:
      book how he struggled with the assign-                       America, enforcing his law as he saw                   By the time I met Rosie and her family, I
      ment of writing the majority opinion                         fit.                                                 could not help her, for she had so many chil-
      on Roe v. Wade. You see, he had been                            Two years before he died in 1915, An-             dren already. She and her family were im-
      the general counsel for the Mayo Clin-                       thony Comstock bragged that he had                   prisoned in poverty because she was unable
      ic, one of the most outstanding hos-                         been personally responsible for the                  to access the preventive medicine that I eas-
      pitals in America, which happens to be                       criminal conviction of enough people                 ily obtained.
      in the State of our Presiding Officer,                       to fill a 61-car passenger train. He pros-                She added:
      Minnesota, in Rochester. So Justice                          ecuted Margaret Sanger, the family                     The Comstock law denied health care to
      Blackmun left Washington and went                            planning pioneer, on eight counts of                 millions of Rosies because of religious big-
      back to the library of the Mayo Clinic                       obscenity because she published arti-                otry, legalized injustice and ignorance.
      as he wrote this decision. He worked                         cles on birth control. Druggists were                  Today, it is estimated that 95 percent
      for long periods of time, plowing                            punished and criminalized for giving                 of American women will use birth con-
      through books and articles on the                            out information to Americans about                   trol during their childbearing years.
      whole question of abortion. He listened                      family planning and contraception.                   Reliable birth control is now a critical
      to a lot of people, including his own                        Publishers revised their texts and                   part of preventive health care for
      daughter, who dropped out of college in                      books so as to avoid the wrath of Mr.                women. And Roe, although it has been
      her sophomore year after becoming                            Comstock and his law, deleting banned                weakened, is still the law of the land.
      pregnant.                                                    words such as ‘‘pregnant,’’ and Ameri-                 The widespread use of birth control
        In his notes for the Roe decision, Jus-                    cans lived with his censorship of the                has helped reduce maternal and infant
      tice Blackmun made two predictions.                          mail.                                                mortality by an astonishing two-thirds
      Here is what he said. The Court will be                         The Irish playwright George Bernard               in the last 40 years. Since Griswold, we
      excoriated at first for its decision.                        Shaw dismissed the Comstock Act as                   have reduced infant and maternal mor-
      Then, he went on to say, there will be                       ‘‘a standing joke at the expense of the              tality in America by two-thirds. In
      an unsettled period for a while as                           United States.’’ There was nothing                   1999, the U.S. Centers for Disease Con-
      States brought their laws into compli-                       funny about the Comstock Act, noth-                  trol and Prevention included family
      ance with the Roe v. Wade decision.                          ing funny to those who were forced by                planning on the list of ‘‘Ten Great Pub-
        The first prediction proved accurate;                      the law to conform with Anthony Com-                 lic Health Achievements in the 20th
      the second, overly optimistic. Thirty-                       stock’s rigid personal moral code. The               Century.’’
      two years after the Roe decision, 40                         penalty for violating the Comstock Act                 But Comstockery seems to be mak-
      years after the Griswold decision,                           was up to 5 years in prison at hard                  ing a return. You can see it in efforts
      America today remains unsettled, not                         labor and a fine of up to $2,000. For                to impose gag rules on doctors and
      only about reproductive rights, but                          every victim who was prosecuted, there               other measures designed to make it
      about many other fundamental mat-                            were untold others whose lives, health,              harder for women to get information
      ters of conscience as well. We are                           and family suffered as a result of being             and services related to family planning
      struggling today with a question that                        denied basic information about family                and abortion. You can see it in the sto-
      is as old as our democracy itself: What                      planning.                                            ries of women who are harassed by
      is the appropriate, what is the proper                          Linn Duvall Harwell is one of those               pharmacists when they attempt to fill
      relationship between personal religious                      who suffered. Miss Harwell now lives in              prescriptions for contraceptives—in
      belief and public policy? How many                           New Hampshire. She is 82 years old. In               some cases, even after these women
      battles, how many debates do we strug-                       1929, when she was 6 years old, her                  have been victims of sexual assault.
      gle through that go to that single                           mother, who was then 34 and pregnant                   A chill wind blows for reproductive
      issue? When should one group in Amer-                        for the eighth time, lost her life. She              rights and possibly other issues of con-
      ica be able to impose its own moral                          tried to abort her own pregnancy using               science as well. You can hear that wind
      code on the rest of society?                                 knitting needles and bled to death,                  in the rhetoric of extremists who rail

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6137
      about the ‘‘culture war’’ in America                         or anything else. That is part of the                mately for research, not for profit or
      and misrepresent legitimate political                        beauty of being a citizen in this great              commercialization, but legitimately
      debate as attacks on people of faith.                        Nation. But we cannot allow the beliefs              used for research to try to find the
         We heard the chill wind of religious                      of a majority, or even a vocal minority,             cures to these vexing diseases.
      intolerance in some of the sad debate                        to determine moral choices for every                    Many of us believe that this is as pro-
      over the tragedy of Terri Schiavo. We                        American. As the Supreme Court ruled                 life as it gets. If you can take stem
      heard it in the dangerous, vitriolic con-                    so wisely 40 years ago, there are deci-              cells that would be otherwise discarded
      demnations of judges, like George                            sions that are so intensely private that             and never used for any purpose and use
      Greer, the judge in the Schiavo case,                        the Government has no right to in-                   them for the purpose of giving a young-
      who dared to enforce the law as he be-                       trude.                                               ster who has to inject with insulin
      lieved the Constitution required.                              Soon I hope we take up the issue                   three times a day a chance to be rid of
         We can hear that chill wind of reli-                      which the House considered just sev-                 diabetes, if you can use it for a person
      gious and social intolerance today in                        eral days ago on stem cell research. It              afflicted in their forties or fifties with
      the debate over stem cell research.                          strikes me as strange, maybe unfair,                 Parkinson’s disease, which is a progres-
      Once again, as with the Comstock laws,                       that some believe we should oppose in                sively degenerative disease in most in-
      a passionate group who sees itself as                        vitro    fertilization   in  every     cir-          stances, if you can use it to try to re-
      the moral guardians of America would                         cumstance. I have friends of my family,              generate the spinal column and all the
      use the power of our Government to                           friends for years, who have spent small              things that are necessary so someone
      deny life-saving medical care to those                       fortunes in the hopes that a mother                  can walk again after a spinal cord in-
      who need it. They believe that a cell                        and father who cannot conceive by nat-               jury—how in the world can that be
      blastocyst deserves the same legal                           ural means can use this process to have              wrong?
      standing and protections as a full-                          a child whom they will rear and love                    That strikes me as promoting life.
      grown child or adult suffering from                          all of their lives. One of my friends has            Yet some will come to the floor, even
      Parkinson’s or diabetes or terrible in-                      spent $80,000 in two separate, thank                 threatening a filibuster, saying that we
      jury to their spinal cords. I respect                        goodness successful, efforts, and she                cannot do this because it violates their
      their opinion. I respect their religious                     has two beautiful children to show for               personal moral and religious beliefs.
      beliefs. In most cases, I don’t share                        it.                                                  Well, I understand that. And that is
      them. Neither do most Americans. I                             I cannot imagine why that is an im-                how they should vote. But to stop the
      don’t believe this vocal minority, no                        moral act, when a husband and wife                   rest of the Nation—because of their
      matter how well intentioned they may                         will go to those extremes to bring a life            personal moral and religious beliefs—
      be, no matter how moral they believe                         into this world that they will love and              from this type of medical research
      themselves to be, should have a veto                         nurture. But we know, just as in nor-                seems to me to be counterproductive, if
      power over medical research that offers                      mal conception, there will be, during                you are truly committed to life and the
      apparently unlimited potential to heal                       the process, some of the fertilized eggs             health of those who surround us.
      broken bodies and minds and save                             that will not lodge in a mother’s womb                  Forty years ago, the decision was
      lives.                                                       and lead to human life. That is the nat-             made across the street that there are
         Will our courts continue to recognize                                                                          certain elements of privacy, there are
                                                                   ural thing that occurs.
      the constitutional right to privacy on                         The same thing happens during in                   certain elements of personal decisions
      family planning and other profoundly                         vitro fertilization. If they are success-            made by individuals and families which
      personal issues? Or will we fill the Fed-                    ful in creating this fertilized egg, and             the State, the Government cannot
      eral bench with judicial activists who
                                                                   then implanting it in a woman’s womb                 overrule because of anyone’s personal
      see themselves as soldiers in a cultural
                                                                   so she can have a baby, it is a miracle,             religious, moral belief. They said that
      war, who want to put their own agen-
                                                                   but as part of that miracle there will               privacy is critically important in
      das ahead of the Constitution? That is
                                                                   be some of these fertilized eggs which               America. Those private decisions
      one of the questions that is at the
                                                                   cannot be used.                                      should be protected.
      heart of the debate on the Federal                             So the question before us in stem cell                Every nominee for the Supreme
      judges.                                                      research is very clear: Should stem                  Court I have heard in recent times has
         The filibuster debate is not about old
                                                                   cells from blastocysts be used to save               faced a Judiciary Committee question
      Senate rules. It is about whether self-
                                                                   others’ lives, to prevent disease, to give           from some member, Democrat or Re-
      described cultural warriors can use our
      Government to impose their personal                          someone hope and a future? That is                   publican: Do you still agree with the
      moral agenda on America.                                     what it is about. There are some who                 Griswold v. Connecticut decision? Do
         In April, a group of organizations                        say no, some who would say we should                 you still believe that, even though this
      held a televised rally to condemn the                        not allow in vitro fertilization, and                Constitution does not include the word
      Senate filibuster rule as a weapon                           others who say, if you allow it, you                 ‘‘privacy,’’ that is part of what we have
      against people of faith. They called it                      should never allow those discarded                   as Americans as part of our individual
      ‘‘Justice Sunday.’’ That day, Janice                         blastocysts to be used for medical re-               rights and liberties? The only one who
      Rogers Brown, the nominee now before                         search.                                              tried to, I guess, split the difference
      the Senate, gave a speech in which she                         The position of the Bush administra-               and find some way to argue around it
      argued that ‘‘people of faith are em-                        tion is close to that. The President, in             was Robert Bork. His nomination was
      broiled in a war against secular hu-                         August of 2001, said he would approve                ill-fated after he made some of those
      manists.’’ According to newspaper ac-                        certain stem cell lines being used for               statements.
      counts, she went on to say:                                  research but no others. Well, it turns                  I believe most Americans feel we
        [T]here seems to have been no time since                   out those stem cell lines were very lim-             should be personally responsible, that
      the Civil War that this country was so bit-                  ited in their number and quality, and                we should be allowed to have our own
      terly divided. It’s not a shooting war, but it’s             scientists and medical researchers have              personal religious beliefs, but they also
      a war.                                                       told us that the President’s approach is             think we should stay away from the
        Mr. President, Americans are not at                        not going to give us the opportunity we              Government imposing religious beliefs
      war with one another. We are at war in                       need to develop these stem cells into                on one group or the other. That is what
      Afghanistan and Iraq, wars, sadly,                           cures for diseases. So many of us be-                happened with the Comstock laws.
      fueled by religious extremism in many                        lieve we should move forward.                        That is what led to the laws in Con-
      respects. Expressing honest, funda-                            We should have strict rules against                necticut, which were stricken in Gris-
      mental differences of opinion on polit-                      cloning. I do not know of a single Mem-              wold. Sadly, that is part of the debate
      ical and social questions here at home                       ber of Congress, of either political                 today when it comes to stem cell re-
      is not an act of war. It is an act of de-                    party, who supports human cloning. We                search.
      mocracy. It is our democratic process                        are all opposed to that. It should be                   I am urging Senator FRIST, a medical
      and our Constitution at work.                                condemned, and we should have strict                 doctor, one I greatly respect, to bring
        I respect the right of every person to                     ethical guidelines on the use of these               this bill up and bring it up quickly. I
      express his or her beliefs about religion                    stem cells so that they are used legiti-             know there is a feeling by the White

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      S6138                                              CONGRESSIONAL RECORD — SENATE                                                             June 7, 2005
      House, and maybe even by some in                               Why didn’t at least 24 percent of Cali-            service . . . In many conversations with Jus-
      Congress, that we should avoid this                          fornians or more than 24 percent vote                tice Brown, I have discovered that she is
      stem cell research debate. But when                          her off the bench? Why didn’t she have               very passionate about the plight of racial
                                                                                                                        minorities in America, based on her upbring-
      you think of the millions of Americans                       a much closer election than that?
                                                                                                                        ing in the south. Justice Brown’s views that
      and their families who are counting on                       Where is the beef, an old advertising                all individuals who desire the American
      us to move medical research forward, is                      phrase?                                              dream regardless of their race or creed can
      there anything more important on our                           In 2002, Justice Brown’s colleagues                and should succeed in this country, are con-
      political agenda?                                            relied on her to write the majority                  sistent with [that group’s] mission to ensure
        I sincerely hope President Bush, who                       opinion for the court more times than                brighter futures for disadvantaged youth of
      made an exception for some stem cell                         any other justice. Prior to appoint-                 color.
      lines for research, will understand that                     ment and confirmation to the Cali-                     These are some of the people who
      you cannot take an absolute position                         fornia Supreme Court, Justice Brown                  know her the best. These are the state-
      on this issue. It is a tough issue. It is                    served from 1994 to 1996 as an associate             ments they make about her. This is
      one where we should draw good, ethical                       justice on the Third District Court of               why she should be on the DC appellate
      guidelines for the use of this research,                     Appeals, an intermediate State appel-                court.
      but not prohibit it, not close the door                      late court.                                            Justice Brown is an outstanding and
      to this research and the cures that                            Justice Brown enjoys bipartisan sup-               highly qualified candidate as evidenced
      could emanate from it. That, I think,                        port from those in California who know               by her background, credentials, and
      would be a lesson well learned, a lesson                     her best. A bipartisan group of 15 Cali-             training. This has been covered and
      consistent with the decision made by                         fornia law professors has written to the             covered. But she is a sharecropper’s
      the Supreme Court 40 years ago today.                        Senate Judiciary Committee in support                daughter, born in Greenville, AL, in
        Mr. President, I yield the floor.                          of Justice Brown. The letter notes                   1949. During her childhood she attended
        The PRESIDING OFFICER. The Sen-                            that:                                                segregated schools, came of age in the
      ator from Kansas.                                              We know Justice Brown to be a person of            midst of Jim Crow policies in the
        Mr. BROWNBACK. Mr. President, I                            high integrity, intelligence, unquestioned in-       South. She grew up listening to her
      would like to get us back on the topic                       tegrity, and evenhandedness. Since we have           grandmother’s stories about NAACP
      at hand. It is a topic that has been de-                     differing political beliefs and perspectives,        lawyer Fred Gray, who defended Dr.
      nied for some period of time. It is the                      Democratic, Republican and Independent, we           Martin Luther King, Jr., and Rosa
      Honorable Janice Rogers Brown nomi-                          wish especially to emphasize what we believe         Parks. Her experience as a child of the
      nation to the U.S. Court of Appeals for                      is Justice Brown’s strongest credential for          South motivated her desire to be a law-
                                                                   appointment on the D.C. Circuit Court: her
      the DC Circuit. ‘‘Justice delayed is jus-                                                                         yer. Her family moved to Sacramento,
                                                                   open-minded and thorough appraisal of legal
      tice denied’’ is an old saying under the                     argumentation—even when her personal                 CA, when Justice Brown was in her
      law. This lady has been delayed a long                       views may conflict with those arguments.             teens. She later received a B.A. in eco-
      time. It is time to get this nomination                        This is a bipartisan group that says               nomics from California State in Sac-
      through.                                                     she is open-minded and thorough in her               ramento in 1974, and her J.D. from
        I am glad to see the cloture vote                                                                               UCLA School of Law in 1977. She also
                                                                   appraisal of legal arguments.
      move us forward. She is going to be                                                                               received honorary law degrees from
                                                                     A bipartisan group of Justice
      now approved, I believe, by a majority                                                                            Pepperdine University Law School,
                                                                   Brown’s current and former judicial
      vote and a majority opinion. And I                                                                                Catholic University, and Southwestern
                                                                   colleagues has also written a letter in
      think if the country had to vote on                                                                               University School of Law.
                                                                   support of her nomination. Twelve cur-
      Janice Rogers Brown, it would be a 90-                                                                              She has dedicated all but 2 years of
                                                                   rent and former colleagues noted in a
      plus percent vote for this lady, given                                                                            her 26-year legal career to public serv-
                                                                   letter to the committee that:
      her background, given her judicial ex-                                                                            ice. For only 2 years has she not been
                                                                     Much has been written about Justice
      pertise, given her demeanor, given her                                                                            in public service, 24 years of public
                                                                   Brown’s humble beginnings, and the story of
      nature.                                                      her rise to the California Supreme Court is          service. Where is the person who is out
        I think the country would look at                          truly compelling. But that alone would not           of the mainstream? Where is the person
      this lady, whom I have a picture of                          be enough to gain our endorsement for a seat         who is irrational? Where is the person
      here, and say: That is the type of per-                      on the Federal bench. We believe that Jus-           who doesn’t hold or have the judicial
      son I want on the bench. This is a good,                     tice Brown is qualified because she is a su-         temperament or doesn’t have the intel-
      honorable person, with a great heart, a                      perb judge. We who have worked with her on           lect or the open-mindedness to be a
      well-trained mind, who is thoughtful,                        a daily basis know her to be extremely intel-        judge in all of this? She has dedicated
      with great experience. This is the type                      ligent, keenly analytical, and very hard
                                                                                                                        most of her life, 24 years, to public
                                                                   working. We know that she is a jurist who
      of person we ought to have on the                                                                                 service.
                                                                   applies the law without favor, without bias
      bench. Yet we have just heard litany                         and with an even hand.                                 Prior to more than 8 years as a judge
      after litany of excuses, the dissecting                                                                           in State courts, Justice Brown served
                                                                     This doesn’t sound like the same lady              from 1991 to 1994 as legal affairs sec-
      of cases that you try to then parse to
                                                                   who is being discussed on this floor by              retary to California Governor Pete Wil-
      say she should not be on the bench for
                                                                   some of my colleagues on the other                   son where she provided legal advice on
      whatever reason.
        I want to go through some of what                          side.                                                litigation, legislation, and policy mat-
      has been stated previously. I want to                          Ellis Horvitz, a Democrat and one of               ters. From 1987 to 1990, she served as
      go through, again, her background to                         the deans of the appellate bar in Cali-              deputy secretary and general counsel
      get us back on topic. And then I want                        fornia, has written in support of Jus-               to the California Business, Transpor-
      to go through some of the specifics.                         tice Brown noting that:                              tation, and Housing Agency where she
        She is currently serving as an asso-                         . . . in my opinion, Justice Brown [pos-           supervised the State banking, real es-
      ciate justice on the California Supreme                      sesses] those qualities an appellate jurist
                                                                                                                        tate, corporations, thrift, and insur-
                                                                   should have. She is extremely intelligent,
      Court. She has held that position since                                                                           ance departments.
                                                                   very conscientious and hard working, re-
      1996. She is the first African-American                      freshingly articulate, and possessing great            From 1972 to 1987, she was deputy at-
      woman to serve on the State’s highest                        common sense and integrity. She is cour-             torney general of the Office of the Cali-
      court. She was retained with 76 percent                      teous and gracious to the litigants and coun-        fornia Attorney General where she pre-
      of the vote in the last election. Cer-                       sel who appear before her.                           pared briefs and participated in oral ar-
      tainly, that does not seem to be the                          Regis Lane, director of Minorities in               guments on behalf of the State in
      sort of extreme case anyone can come                         Law Enforcement, a coalition of ethnic               criminal appeals, prosecuted criminal
      up with; that 76 percent of Californians                     minority law enforcement officers in                 cases, and litigated a variety of civil
      think she should be retained on the                          California, wrote:                                   issues. She began her legal career in
      court. If she is so extreme, if she is so                      We recommend the confirmation of Justice           1977, when she served 2 years as deputy
      off the mark, if she is so out of the                        Brown based on her broad range of experi-            legislative counsel in the California
      mainstream, why, in California, wasn’t                       ence, personal integrity, good standing in           Legislative Counsel Bureau. She has a
      she voted off the bench?                                     the community, and dedication to public              broad base of experience from which to

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6139
      draw to be an excellent person to sit on                       She says she will stay within the                  raised specific points, and I want to ad-
      the Federal appellate court bench.                           confines of the law. That is what the                dress a few of those points.
        She has participated in a variety of                       President is trying to nominate, judges                Certain    liberal   special   interest
      statewide and community organiza-                            who will stay strict constructionists                groups have tried to distort Janice
      tions dedicated to improving the qual-                       within the confines of the law and be                Rogers Brown’s decision when she
      ity of life for all citizens of California.                  what judges should be, interpreters of               served on the State court of appeals in
      Justice Brown has served as a member                         the law, enforcers of the Constitution               the case of Sinclair Paint Company v.
      of the California Commission on the                          as it is written, not as they wish it                Board of Equalization. They claimed
      Status of African-American Males—the                         were written. That is what this nomi-                she was insensitive to the legislature’s
      commission was chaired by now-U.S.                           nation is about.                                     desire to protect children from lead
      Representative      BARBARA      LEE—and                       Others want to see a court that will               poisoning.
      made recommendations on how to ad-                           expand and look and read different                     What was really at issue in the case
      dress inequalities in the treatment of                       things in, even if it doesn’t pass                   was the respect for the will of the Cali-
      African-American males in employ-                            through this body or doesn’t pass                    fornia voters who wanted to make it
      ment, business development, the crimi-                       through the legislature or isn’t signed              more difficult for the California Legis-
      nal justice, and health care systems.                        into law by the President. We really                 lature to raise taxes.
        She is a member of the Governor’s                                                                                 California proposition 13—people re-
                                                                   are at a point of what it is that the ju-
      Child Support Task Force, which re-                                                                               member that—enacted in June of 1978,
                                                                   diciary is to be about in America. You
      viewed and made recommendations on                                                                                requires a two-thirds vote of the legis-
                                                                   are seeing the face of somebody who is
      how to improve California’s child sup-                                                                            lature to increase State taxes. That is
                                                                   a strict constructionist, saying that
      port enforcement laws. She serves as a                                                                            what proposition 13 did. In 1991, the
                                                                   this is what it is about.
      member of the Community Learning                                                                                  California Legislature voted by a sim-
                                                                     The judiciary has a role. It has a con-
      Advisory Board of the Rio Americano                                                                               ple majority to assess fees on manufac-
                                                                   stitutional role. It is an extraor-
      High School and developed the Aca-                                                                                turers engaged in commerce involving
                                                                   dinarily important role. But it is de-
      demia Civitas Program to provide gov-
                                                                   fined and it is set. She believes it                 products containing lead in order to
      ernment service internships to high
                                                                   should stay within. That is why we                   fund a program to provide education,
      school students in Sacramento. She
                                                                   have had so much trouble with so                     screening, and medical services for
      has also assisted in the development of
                                                                   many of these judicial nominations.                  children at risk for lead poisoning. Jus-
      a curriculum to teach civics and rein-
                                                                     During the first 4 years of the Presi-             tice Brown simply held for a unani-
      force the values of public service.
        She has volunteered time with the                          dency of George W. Bush, the Senate                  mous court of appeals—a unanimous
      Center for Law-Related Education, a                          accumulated the worst circuit court                  court of appeals—in affirming the judg-
      program that uses moot courts and                            confirmation record in modern times,                 ment of the trial court that the assess-
      mock trials to teach high school stu-                        thanks to partisan obstruction. Only 35              ment constituted a tax within the
      dents how to solve everyday problems.                        of President Bush’s 52 circuit court                 meaning of proposition 13 and thus had
      She has taught Sunday school class at                        nominees were confirmed, a confirma-                 to be passed by a two-thirds vote.
      Cordova Church of Christ for more                            tion rate of 67 percent. To give you a                 That seems to be pretty basic and
      than 10 years. That is Justice Janice                        comparison on that:                                  pretty common sense and not about
      Rogers Brown. Those are the facts.                             People have said that is not so low;               her insensitivity to cases involving
      That is who she actually is.                                 we approved a number of these lower                  lead poisoning but simply what her
        So why has it taken that long a pe-                        court judges. But let’s take President               role is under the law and her role as a
      riod of time for us to be able to get her                    Johnson’s term in office. There was a                jurist.
      to the floor? Why is there such con-                         Democrat Senate and a Democrat                         Under applicable California case law
      sternation about her becoming a DC                           President. What was his circuit court                where payment is exacted solely for
      appellate court judge? Why have we                           nomination rate? It was 95 percent.                  revenue purposes and its payment gives
      spent years to get her to the point                            President Bush: Republican Senate,                 the right to carry on the business with-
      where we will vote on—I would love to                        Republican Presidency, 67 percent.                   out any further conditions, the pay-
      see it today, but at least this week—                          What about President Carter? Demo-                 ment constitutes a tax. The Childhood
      her approval to the DC appellate court                       cratic President, Democratic Senate,                 Lead Poisoning Protection Act did not
      bench? I think it goes to the fact that                      and 93 percent of his circuit court                  require the plaintiff to comply with
      she is a lady, nominated by President                        nominees were approved.                              any other conditions. It was merely re-
      Bush, who will strictly construe the                           President Bush: 67 percent.                        quired to pay its share of the program
      Constitution, stay within the bounds of                        What has taken place is a filibuster               cost. Justice Brown reasonably con-
      the document, not try to write new                           of good people, such as Janice Rogers                cluded the assessment was a tax.
      opinion as to a new constitutional                           Brown, who has served honorably most                   There are several other cases that
      right or a new issue that is not within                      of her professional career in public                 have been brought up that I want to
      the Constitution or not within the law.                      service but does believe there are con-              address.
      She is what lawyers would call a strict                      fines within which they rule. It is in                 Several liberal interest groups have
      constructionist. She says if the law                         the Constitution or it is not; it is in              attacked Justice Brown’s dissent in
      says this—and it was passed to say                           the law or it is not; it is constitutional           Aguilar v. Avis Rent-a-Car Systems in
      that—that is what we enforce, if that is                     or it is not. It is not what I wish it               which she argued racial discrimination
      what the Constitution says.                                  were, it is what is actually there. It is            in the workplace, even when it rises to
        It is not the living, breathing docu-                      what the precedents have said that                   the level of illegal race discrimination,
      ment of let’s try to create another                          matters.                                             cannot be prohibited by an injunction
      right or privilege here and take three                         The average American may not be fa-                under the first amendment. I want to
      or four of the amendments to the Con-                        miliar with Senate rules on cloture or               talk about this.
      stitution, provisions of the Constitu-                       on the unprecedented low confirmation                  Justice Brown, as I have cited, is the
      tion, frame them together, and then                          rate of President Bush’s circuit court               daughter of a sharecropper from rural
      let’s find a new right in the Constitu-                      nominees, but the average American                   Alabama. She grew up under the shad-
      tion because we think this is good for                       can tell you one thing: that the Con-                ow of Jim Crow laws. I think she un-
      the country. If it is a change to the                        stitution and common sense require                   derstands the lingering effects of racial
      Constitution that needs to happen,                           the Government to be accountable to                  classification. In light of her personal
      then it should happen. And it should go                      the people for its actions. This is espe-            history, the allegation she is insensi-
      through this body with a two-thirds                          cially the case of what we do in the                 tive to discrimination is absurd.
      vote. It should go through the House                         House and the Senate as we move for-                   Notwithstanding her personal experi-
      with a two-thirds vote. It should go to                      ward in this country.                                ences with racism, Judge Brown’s role
      the State legislatures for a three-                            I want to address some of the items                as a judge has been to apply the law
      fourths vote. It should not be a major-                      that have been coming up in some of                  which she has done faithfully and rig-
      ity opinion of a bench somewhere.                            these debates. Various Members have                  orously. As I discussed earlier, it is the

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      S6140                                              CONGRESSIONAL RECORD — SENATE                                                               June 7, 2005
      role of the judge to apply the law and                       a justice is to take the law and the                 tied with another judge as the author
      apply the Constitution, not rewrite the                      facts applied in this particular case,               of the second most majority opinions
      law the way they wish it were, not to                        not what she wished it was, not what                 for the court. Only the chief justice
      rewrite the Constitution the way they                        she hoped it would be, not what she                  wrote more majority opinions. Now,
      think it ought to be, but to apply it in                     thinks it should be in a perfect world,              those are her colleagues on the bench
      a particular case. And this is a case she                    but what is it.                                      saying: We think you are the right per-
      could have looked at from her back-                            The law involved in the case actually              son to write this opinion. You are ex-
      ground and said: I understand this situ-                     required health and disability insur-                pressing the opinion for most of us.
      ation. I have been in this situation. Yet                    ance policies to cover contraceptives.               You are a hard worker. You are intel-
      what does the law itself say?                                Justice Brown did not vote to strike                 ligent. You are an excellent wordsmith.
        Judge Brown’s opinions demonstrate                         down the law, she simply argued that                 These are all traits we would want in a
      her firm commitment to the bedrock                           the law should not be applied to force               justice.
      principle of civil rights. Discrimination                    a religious institution—here Catholic                  Justice Brown also ranked fourth
      on the basis of race is illegal, it is im-                   Charities of Sacramento—to do some-                  among the eight justices for the num-
      moral, unconstitutional, inherently                          thing that violated its religious beliefs.           ber of times she dissented alone. This
      wrong, and destructive of a democratic                       This case was about religious freedom                puts her squarely in the middle, cer-
      society. Those are her statements.                           under the first amendment, not about                 tainly not on either fringe in that cat-
        In the Aguilar case, Justice Brown                         gender discrimination or revisiting the              egory. It is wrong for Justice Brown’s
      described the defendants’ comments as                        right to contraceptives. It is about dis-            opponents to throw out numbers with-
      disgusting, offensive, and abhorrent,                        crimination based on religion, and Jus-              out offering any basis for comparison
      and she voted to permit a large damage                       tice Brown stood against this discrimi-              on her court.
      award under California’s fair employ-                        nation. Telling us about this case with-               I wish to talk about a particular
      ment law to stand. Her dissent only                          out saying a word about religious free-              case, the case of People v. McKay. Jus-
      pertained to an injunction that placed                       dom on the issue misinforms people to-               tice Brown stood alone among her col-
      an absolute prohibition on speech. This                      tally about this particular case and                 leagues in arguing for the exclusion of
      is commonly called a prior restraint                         this person.                                         evidence of drug possession that was
      which most free speech advocates                               Justice Brown has been attacked for                discovered after the defendant, Conrad
      strenuously oppose.                                          rendering opinions that have been con-               McKay, was arrested for riding his bi-
        Justice    Brown’s     opinions    dem-                    sidered outside the mainstream. These                cycle the wrong way on a residential
      onstrate her firm commitment to the                          allegations are spurious. As I have                  street. Her dissent is remarkable for its
      first amendment. She cited a long line                       stated, she has been affirmed by the                 pointed suggestion of the possibility
      of Supreme Court cases for the propo-                        population, the public voting in Cali-               that the defendant was a victim of ra-
      sition that speech cannot be banned                          fornia, with a 76-percent approval rat-              cial profiling.
      simply because it is offensive.                              ing. If her opinions are so out of the                 Justice Brown commented:
        Justice Brown’s opinions also dem-                         mainstream and so wrong, why weren’t                   Questions have been raised about the dis-
      onstrate her commitment to equality                          more Californians than roughly 25 per-               parate impact of stop-and-search procedures
      in the workplace. Justice Mosk and                           cent concerned about this?                           of the California Highway Patrol. The prac-
      Justice Kennard, considered one of the                         The flip side of this is that I have               tice is so prevalent, it has a name: ‘‘Driving
      most liberal members of the California                       never won an election by a 75-percent                While Black.’’
      Supreme Court, also dissented on first                       margin. I would love to win an election                This is somebody who is insensitive?
      amendment grounds.                                           by that margin. This is a confirmation               I do not think that is the case with
        Here we see the core of the person,                        election. It is different than what we               Justice Brown.
      the commitment to the law and to the                         face in the Senate.                                    I will go on and read from the conclu-
      rule of law. Here was something she                            Still, as somebody who has run for                 sion of her dissent. She added the fol-
      had experienced, she understood, and                         elections, when you get up to that                   lowing stirring comments:
      yet had to say: OK, what does the law                        three-fourths mark, that is really good,               In the spring of 1963, civil rights protests in
      actually say, and what are the first                         standing in front of the public and ask-             Birmingham united this country in a new
      amendment rights? Then she applied                           ing them to endorse your status, en-                 way.
      them in the case. That is the type of                        dorse your position, particularly if this                 This is a native of Alabama.
      justice who looks at what is their role                      allegation were true. If it were true                  Seeing peaceful protesters jabbed with cat-
      and what is it that they are required to                     that she is way out of the mainstream                tle prods, held at bay by snarling police dogs,
      do under the Constitution.                                   of public opinion in California and she              and flattened by powerful streams of water
        Judge Brown’s opinion was so power-                        is way out, on a consistent basis, so                from fire hoses galvanized the nation. With-
      ful that it prompted one member of the                       that her opinions are in the paper all               out being constitutional scholars, we under-
                                                                                                                        stood violence, coercion, and oppression.
      U.S. Supreme Court to take the un-                           the time and they are way out there,
      usual step of publishing an opinion dis-                     contrary to California public opinion,                These are the words of Justice Janice
      senting from the denial of certiorari.                       would you not think more than 25 per-                Rogers Brown. And I continue:
        I find it amazing that the very same                       cent of Californians would say, I am                   We understood what constitutional limits
      liberal outside groups who never hesi-                       going to vote against confirming this                are designed to restrain. We reclaimed our
      tate to level accusations of censorship,                                                                          constitutional aspirations. What is hap-
                                                                                                                        pening now is more subtle, more diffuse, and
      perhaps, against the administration or                         I think probably a lot of people would
                                                                                                                        less visible, but it is only a difference in de-
      even Congress are attacking Justice                          look down the ballot box on judges and               gree. If harm is still being done to people be-
      Brown for standing up for what she in-                       say, Which ones can I vote against be-               cause they are black, or brown, or poor, the
      terpreted and looked at clearly as a                         cause I am used to voting for all of                 oppression is not lessened by the absence of
      first amendment issue which she had to                       them, particularly if somebody was so                television cameras.
      stand by even though she found the                           out of the mainstream on such a con-                   I do not know Mr. McKay’s ethnic back-
      comments herself so offensive and                            sistent basis that she is in the papers              ground. One thing I would bet on: he was not
      wrong.                                                       all the time about being in this dissent             riding his bike a few doors down from his
                                                                                                                        home in Bel Air, or Brentwood, or Rancho
        Justice Brown has been attacked as                         or being overruled in this case, that                Palos Verdes—places where no resident
      being insensitive on women’s issues be-                      there would be some recognition of her               would be arrested for riding the ‘‘wrong
      cause she has voted to strike down a                         and more people would be concerned.                  way’’ on a bicycle whether he had his driv-
      State antidiscrimination law that pro-                       Yet that is not the case. I submit it is             er’s license or not. Well . . . it would not get
      vided a contraceptive drug benefit to                        because it is just not true. She is not              anyone arrested unless he looked like he did
      women. Some have claimed her to be                           outside the mainstream.                              not belong in the neighborhood. That is the
      hostile to these women’s issues.                               I believe the criticism is utterly                 problem.
        What one has to do is look at the ac-                      baseless. Among the eight justices who                 That was her dissenting opinion, a
      tual case, the actual facts, the actual                      served on the California Supreme Court               stirring opinion, quoting things that in
      law in front of her because her role as                      between 1996 and 2003, Justice Brown                 her growing up and in her childhood

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                      S6141
      she had witnessed. She is very sensitive                     to look at it. Yet she gets painted with             stream of political thought here in this
      on racial issues.                                            all the other sorts of accusations that              country.
        Last month, Ginger Rutland, who is                         are simply not based on fact but are a                 I take no joy in opposing a nominee,
      on the editorial board of the Sac-                           disguise for what the real debate is                 but I do think that if Members of the
      ramento Bee, wrote this in her news-                         about, which is the role of the judici-              Senate will think carefully about the
      paper about Justice Brown’s judicial                         ary in America today.                                views of this nominee, they will decide
      courage:                                                        We are having a rolling debate about              that she really ought not be put on the
        I know Janice Rogers Brown, and she                        that issue. We are having a lot of dis-              second most important court in this
      knows me, but we’re not friends. The asso-                   cussion about that. We are having dis-               country for a lifetime of service. Let
      ciate justice on the California Supreme                      cussions in various States and in the                me go through a few things that this
      Court has never been to my house, and I’ve                   Nation about what is the appropriate                 nominee, Janice Rogers Brown, has
      never been to hers. Ours is a wary relation-                 role of the judiciary. I believe this is a           said.
      ship, one that befits a journalist of generally
                                                                   lady who would stand by that role.                     Let me say to my colleague who was
      liberal leanings and a public official with a
      hard-right reputation fiercely targeted by                      Those are a series of issues. I may               speaking when I came in, this is not in-
      the left. . . . I find myself rooting for Brown.             visit some others later on, but this is a            nuendo, not argumentative; these are
      I hope she survives the storm and eventually                 lady who is eminently qualified, will do             quotes from the nominee. Facts are
      becomes the first black woman on the na-                     a wonderful job. I support her nomina-               stubborn things. We are all entitled to
      tion’s highest court.                                        tion, and I hope we can get to a strong              our own opinions, but we are not all en-
        In describing Justice Brown’s posi-                        vote fairly soon on it.                              titled to our own set of facts. Let me
      tion in the McKay case that I quoted                            I yield the floor.                                read the facts, and let me read the
      Justice Brown earlier, Rutland, the                             The PRESIDING OFFICER (Mr. MAR-                   quotes that come from this nominee.
      editorialist from the Sacramento Bee,                        TINEZ). The Senator from North Da-                     This nominee, Janice Rogers Brown,
      says the following:                                          kota.                                                says that the year 1937 was ‘‘the tri-
        Brown was the lone dissenter. What she                        Mr. DORGAN. Mr. President, this is a              umph of our own socialist revolution.’’
      wrote should give pause to all my friends                    debate that is worth having. There has               Why? In 1937, that is when the courts,
      who dismiss her as an arch conservative bent                 been a great deal of discussion about                including the Supreme Court, upheld
      on rolling back constitutional rights. In the                this nominee for the lifetime appoint-               the constitutionality of Social Secu-
      circumstances surrounding McKay’s arrest,                    ment to the Federal bench.                           rity and the other major tenets of the
      the only black judge on the State’s highest                     There is no entitlement, of course, to            New Deal. The triumph of socialism? I
      court saw an obvious and grave injustice                     a lifetime appointment to the Federal
      that her fellow jurists did not. . . . In her
                                                                                                                        don’t think so. What planet does that
                                                                   bench. The Constitution provides how                 sort of thinking come from, a ‘‘triumph
      dissent, Brown even lashed out at the U.S.
      Supreme Court and—pay close attention, my                    this is done. First, the President shall             of socialism’’?
      liberal friends—criticized an opinion written                nominate a candidate for a lifetime                    This nominee says that zoning laws
      by its most conservative member, Justice                     service on the Federal courts, and, sec-             are a ‘‘theft’’ of property, a taking,
      Antonin Scalia, for allowing police to use                   ond, the Congress shall provide its ad-              under the Constitution; therefore, a
      traffic stops to obliterate the expectation of               vice and consent, and determine wheth-               theft of property. Well, we have zoning
      privacy the Fourth Amendment bestows.                        er to confirm the nominee. So the                    laws in this country for a reason. Com-
        This is an admitted liberal editorial                      President nominates, sends a name,                   munities decide to establish zoning
      writer talking about Brown’s courage.                        and the Congress does what is called in              laws so you don’t build an auto salvage
        This is a lady who is going to do an                       the Constitution advise and consent,                 yard next to a church, and then have
      outstanding job on the DC Circuit                            says yes or no.                                      somebody move in with a porn shop
      Court of Appeals. The only tragedy is                           In most cases, the Congress says yes.             next to a school and a massage parlor
      that she has not been there years ear-                       This President, President George W.                  next to a funeral home. But this nomi-
      lier. The tragedy is that she has been                       Bush, has sent us 218 names of people                nee thinks zoning is a theft of prop-
      held up because she looks at doing her                       he wanted to send to the Federal                     erty. It is just unbelievable, it is so far
      job for what it is, which is staying                         courts for a lifetime. This Congress has             outside the mainstream thought.
      within the Constitution and enforcing                        said ‘‘yes’’ to 209 of the 218. That is                Here is what she says about senior
      it, looking at the law and enforcing it;                     pretty remarkable, when you think                    citizens in America.
      or if it goes against what is in the Con-                    about it—209 out of 218 we have said                   Today’s senior citizens blithely cannibalize
      stitution, ruling it unconstitutional,                       ‘‘yes.’’ There are a few we have delayed             their grandchildren because they have a
      but not looking at the Constitution as                       and held up and have been subject to                 right to get as much free stuff as the polit-
      she hoped it would be or mixing to-                          cloture votes. Some have said they                   ical system will permit them to extract.
      gether a series of ideas in the Constitu-                    haven’t gotten a vote. Yes, they have                  I guess she is talking about maybe
      tion and finding a new right; or looking                     gotten a vote. The procedure on the                  Social Security and Medicare. I don’t
      at the law and thinking it should be                         floor, of course, is there is a cloture              know for sure. All I know is that a
      this way or that and expanding it that                       vote, and they didn’t get the 60 votes,              good many decades ago, before there
      way. This is a person who looks at her                       but 60 votes is what requires consensus              was Social Security and Medicare,
      job as being a judge, in an honorable                        in the Senate. It has been that way for              fully one-half of all elderly in this
      role, but it is a role that has a set to it                  decades and decades.                                 country lived in poverty.
      and a way, and she is upholding that.                           I have voted for the vast, vast major-              Think of that. What a wonderful
        I believe that is really what is at the                    ity of the 209 Federal judges that the               country this is. This big old planet
      cornerstone of this debate. Unfortu-                         President has nominated, including, in-              spins around the Sun, we have 6 billion
      nately, we get it mired so often in per-                     cidentally, both of the Federal judge-               neighbors inhabiting this planet called
      sonalities and accusations and hyper-                        ships in North Dakota which were                     Earth, and we reside in the United
      bole, comments of a personal nature                          open. Both of which are now filled with              States of America. What a gift and
      toward an individual that are simply                         Republicans. I was pleased to support                blessing it is to be here. But think, in
      not true, when really what we are talk-                      them. I think they are first-rate Fed-               1935, one-half of America’s elderly, if
      ing about is the role of courts.                             eral judges. I am a Democrat. The                    they were lucky enough to grow old, to
        Courts, like every institution, are                        names that came down from the Presi-                 age to the point where they were called
      people. People are on the courts. We                         dent to fill the two judgeships in North             elderly, one-half of them lived in pov-
      have judges who are appointed to the                         Dakota were names of Republicans. I                  erty. One-half of them lived in poverty.
      courts, and they have their views and                        am proud of their service. I testified in            So this country did something impor-
      they have a way of looking at the Con-                       front of the Judiciary Committee for                 tant, very important. We put together
      stitution or they have a way of looking                      both of them and introduced both of                  a Social Security Program and a Medi-
      at various documents or laws. She                            them.                                                care Program. What did this nominee
      looks at it as more of a strict construc-                       So the fact is this is not about par-             say about that? She said:
      tionist. That is an honorable way to                         tisanship. It is about nominating good                 Today’s senior citizens blithely cannibalize
      look at it. I believe it is the right way                    people, nominating people in the main-               their grandchildren because they have a

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      S6142                                              CONGRESSIONAL RECORD — SENATE                                                          June 7, 2005
      right to get as much free stuff as the polit-                have to lay awake at night worrying                  someone. It was Mark Twain who once
      ical system will permit them to extract.                     about whether you are going to be able               was asked if he would engage in debate.
        Really? I wish perhaps she could have                      to go to the doctor when you get sick                He said, sure, as long as I can take the
      been with me one evening at the end of                       because there will be Medicare; or tell-             negative time. He was told, we didn’t
      a meeting in a small town of about 300                       ing people that Social Security will be              tell you the subject. He said, the nega-
      people. A woman came up to me after                          there when you need it—you work, you                 tive side will take no preparation.
      the meeting and she grabbed a hold of                        invest in it, when you retire, you can                 I am mindful that it is very easy to
      my elbow. She was probably 80 years                          collect it. Do we really want to put                 oppose. Let me say this: On this issue,
      old. She said: Mr. Senator, can you                          someone on this circuit court who be-                on this nominee, this is not a close
      help me?                                                     lieves that is a triumph of socialism? I             call. This is not a close call. I wish I
        I said I would try.                                        don’t think so.                                      could be here to support this nomina-
        Then her chin began to quiver and                            There is a kind of arrogance here                  tion. I will not support the nomination
      her eyes welled up with tears and she                        these days that is regrettable. I was                of someone who believes the elements
      said: I live alone. And she said: My doc-                    here in the 1990s, and I watched 60                  of that which has made this country
      tor says I have to take medicine for my                      Americans who were nominated for                     such a wonderful place in which to
      heart disease and diabetes, and I can’t                      judgeships never even have the cour-                 work and live represents a triumph of
      afford it. I don’t have the money. Then                      tesy of a day of hearings, let alone get             socialism. It is not the triumph of so-
      she began to get tears in her eyes.                          to the floor of the Senate for a cloture             cialism. It is a reflection of the inter-
        I wish perhaps Janice Rogers Brown                         vote or a vote up or down—60 of them.                ests of this country, we the people of
      understood something about that. She                         We are not even given the courtesy of                this country who said we will lift the
      thinks this old lady, this elderly                           a day of hearings. The President sends               senior citizens of this country out of
      woman, struggling to find a way to pay                       the name down in the 1990s. The major-               poverty. And we have done that. We
      for medicine to keep her alive, is                           ity party said, tough luck, we don’t in-             went from 50 percent in poverty to less
      cannibalizing somebody? I don’t think                        tend to do anything about it; you will               than 10 percent in poverty. Why? Be-
      so. I think it is incredible that some-                      not have a hearing; you will not have a              cause we did something important in
      one would say this.                                          vote. This name will not advance.                    this country, Social Security and Medi-
        Now the President wants to put this                          We did not do that. This caucus has                care.
      nominee on the second highest court in                       not done that; in fact, just the oppo-                 With    respect    to   environmental
      the land for a lifetime of service.                          site. Of the 218 names that have been                issues, with respect to workers’ rights,
        She says again:                                            sent to this Congress from this Presi-               with respect to a whole series of issues,
        We are handing out new rights like lol-                    dent, the Senate has approved 209 of                 this nominee is profoundly wrong. She
      lipops in the dentist’s office.                              them. Those who did not get confirmed                has a record, a long record, an aggres-
         I guess I never thought the basic                         had a cloture vote in the Senate. They               sive record of activism in support of
      rights that we have in this country                          had a day of hearings. They had an op-               what are, in my judgment, outdated
      ought to be antithetical to what we be-                      portunity to testify before the Judici-              and discredited concepts.
      lieve is most important in America. I                                                                               My hope is that in the remaining
                                                                   ary Committee. Their name was
      have traveled over most of this world                                                                             hours in this debate—I think we will
                                                                   brought to the floor. We had cloture
      and been in countries where there                                                                                 vote on this tomorrow—my hope is
      aren’t rights. I have been in a country                                                                           there will be sufficient moderates on
                                                                     Now we have Members coming to the
      where, if people have the wrong piece                                                                             the other side who will understand this
                                                                   Senate on the other side saying, look,
      of paper in their pocket and they are                                                                             record does not justify confirmation to
                                                                   our policy is, everyone needs an up-or-
      picked up, they are sent to prison for 12                                                                         the Federal bench for a lifetime. I hope
                                                                   down vote; not a cloture vote, an up-or-
      years. I have seen the tyranny of dicta-                                                                          the next time I come to the Senate to
                                                                   down vote. These Members did not hold
      torships and the tyranny of com-                                                                                  speak on a judicial nomination, I will
                                                                   that view at all in the 1990s. In fact,
      munism. I happen to think basic rights                                                                            be able to speak in favor of a nomina-
                                                                   they did exactly the opposite. There
                                                                                                                        tion that is a strong candidate.
      that exist in this country for the                           are terms for that which I shall not use               This President has nominated some
      American people are critically impor-                        here.                                                good people. I mentioned two from my
      tant; that ‘‘We the people,’’ the first                        The fact is, we are proceeding on the              State. I will say it again: both Repub-
      three words of that document that rep-                       Janice Rogers Brown nomination be-                   licans, both terrific people, both people
      resents the constitutional framework                         cause of an agreement made 2 weeks                   I was proud to introduce to the Judici-
      for this country’s governance, is not                        ago. I hope, however, having read what               ary Committee and proud to support.
      something that ought to be taken                             I have read about her views on a wide                While we might disagree on some
      lightly.                                                     range of issues, that we will have suffi-            issues, these are extraordinary jurists.
         Let me read a couple of other things                      cient colleagues in the Senate to say to             I am proud they are Federal judges in
      that this nominee has said. She was                          this President, this is so far outside the           my State. I felt the same way about
      the only member of the California Su-                        mainstream, we will not approve this                 some of the other nominees.
      preme Court to conclude that age dis-                        nominee.                                               But this President has sent us a
      crimination victims should not have                            It is not unusual for a political party            handful of nominees who do not de-
      the right to sue under common law.                           to tell its President that you cannot                serve the backing and support of this
      Age discrimination victims should not                        pack the court. The members of Thom-                 Congress. It is long past the time for
      have the right to sue?                                       as Jefferson’s own political party told              this Congress to stand up and speak
         She was the only member of the Cali-                      Thomas Jefferson that. Members of the                with an independent voice. This Con-
      fornia Supreme Court who voted to                            political party of Franklin Delano Roo-              gress is not some sort of subsidiary of
      strike down a San Francisco law that                         sevelt did the same thing, in his at-                the White House. It is not an adjunct
      provided housing assistance to dis-                          tempt to pack the Court.                             to the Presidency. This Congress is a
      placed and low-income and disabled                             My hope with respect to this nominee               separate branch of Government under
      people.                                                      is that we will have sufficient numbers              this Constitution. The President nomi-
         I don’t understand the President                          on the majority side—moderates and                   nates but we advise and consent. It is
      sending us this nominee. Is it the case                      others—who will take a look at this                  up to the Senate to determine whether
      that this administration really wants                        record and say this is not the kind of               judicial nominees are confirmed or not.
      to put on the Federal bench for a life-                      record that we believe should commend                My hope is we will make the right deci-
      time someone who is opposed to the                           someone for a lifetime of service on the             sion with this nomination.
      basic tenets of the New Deal that have                       DC Circuit. This is not what we should                 I yield the floor and suggest the ab-
      lifted so many people out of poverty in                      be doing.                                            sence of a quorum.
      this country, that represents, in many                         I conclude as I started. I take no joy               The PRESIDING OFFICER. The
      cases, some of the best in this coun-                        in coming to the Senate and opposing                 clerk will call the roll.
      try—telling old folks that when you                          someone. I would rather be here speak-                 The assistant legislative clerk pro-
      reach that retirement age you don’t                          ing for a proposition, speaking for                  ceeded to call the roll.

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6143
        Mr. THOMAS. Mr. President, I ask                           the Federal Government is. We have                   are organizations that could manage a
      unanimous consent that the order for                         kind of gotten in the position that for              number of programs, each of which now
      the quorum call be rescinded.                                anything that is wanted by anyone,                   has its own bureaucracy, and to put
        The PRESIDING OFFICER. Without                             why, let’s get the Federal Government                them together to make it efficient. I
      objection, it is so ordered.                                 to do it. Then we have somebody here                 know you will always have people who
        Mr. THOMAS. Mr. President, I ask                           on the Hill who will introduce a bill to             say: Well, you are taking away jobs.
      unanimous consent that I be allowed to                       do that, and perhaps it has very little              That is not the purpose of programs.
      speak for 10 minutes as in morning                           relationship to what we normally                     The purpose of programs is to deliver a
      business.                                                    think is the role of the Federal Govern-             service, and to do it in a way that is as
        The PRESIDING OFFICER. Without                             ment.                                                efficient as it can be.
      objection, it is so ordered.                                   I think most people would agree with                 Of course, there are programs that
             ROLE OF THE FEDERAL GOVERNMENT                        the notion we want to limit the size of              should be eliminated. They have ac-
        Mr. THOMAS. Mr. President, I know                          the Federal Government, that we, in                  complished what they were there for.
      it has been a busy day and we are very                       fact, want Government to be as close                 We need to have a system. I hope and
      much involved, of course, in moving                          to the people as can be, and that the                I am interested in helping to put to-
      forward with the judge arrangement, as                       things that can be done at the State                 gether a program that would do that.
      we should be.                                                level and the county level, the city                 There is probably some merit in having
        I spent a week in my home State. I                         level, should be done there, the things              a termination to a program so that
      guess we always come back with dif-                          that can be done in the private sector               after 5 or 10 years, it has to be reevalu-
      ferent ideas. I spent the whole time                         should be done there. I would hope we                ated to be extended. That is one way of
      talking with people and having town                          could come up with some kind of gen-                 doing it. I don’t know if it is the only
      meetings and those kinds of things,                          eral idea, an evaluation, of what we                 way. That is something we are going to
      and in certainly a little different at-                      think the role of the Federal Govern-                do, and I would like to do some of that.
      mosphere.                                                    ment specifically should be.                           The role of the Federal Government,
        People see a great deal in the news                          The other thing I will comment on a                again, if you talk in generalities, if you
      media about what is happening here,                          little bit is having some kind of a sys-             talk to people in terms of philosophy,
      but, of course, what they get is what                        tem for evaluating programs. We have                 most would say, we want to keep the
      the media is intending for them to get,                      programs we put into place when there                Federal Government small. How many
      and somehow it is a little bit different.                    is a need. Hopefully, there is a need for            times do you hear people saying: Keep
      So frankly, people are a little impa-                        them. I think it is also apparent that               the Federal Government out of my life?
      tient that we are not moving forward                         over a period of time that need may                  Yet at the same time we have created
      as much as we might. Certainly, we are                       change. But yet, once a program is in                this kind of culture where whenever
      working hard here, but the fact is, we                       place and people are involved, they                  anything is needed or wanted, mostly
      have not moved to many different                             build a constituency around it. It stays             money, then let’s get the Federal Gov-
      issues. I believe many of us want to do                      in place without a good look at it to                ernment to do it.
      so.                                                          see whether it still belongs there.                    If we step back and take a look at it
        I think we have spent an awful lot of                        These are some of the issues of con-               and say: Wait a minute, is this the
      time on internal kinds of issues that do                     cern. I think the first step toward re-              kind of thing the Federal Government
      not mean a lot to people out in the                          ducing the $400 billion deficit is elimi-            should be involved in or is this some-
      country. I understand that. I realize                        nating waste. Of course, what is waste               thing that could be done more effi-
      the way things are done here is impor-                       to one person may not be waste to an-                ciently by a government closer to the
      tant to us, such as changing procedures                      other. But there has to be, again, some              people, I believe we ought to do that.
      and all those things. But folks are                          definition as to how important things                  Some lawmakers here believe the
      talking about energy, folks are inter-                       are relative to our goals and to assess              Government is the solution to all of so-
      ested in a highway bill, people are in-                      programs that stay in place because                  ciety’s ills. I don’t agree with that. I
      terested in health and the cost of                           they are there or that are not managed               don’t believe that. Our role in the Fed-
      health care, such as what you do in                          as well as they might be. I think we                 eral Government is a limited role. Our
      rural areas with health care. There are                      have some responsibility to try to en-               role is to provide opportunities, not to
      a lot of these things that are so very                       sure that we take a look at that issue.              provide programs for everything.
      important to people on the ground, and                         There are serious problems facing our                Ronald Reagan said: Government is
      here we are continuing to talk about                         Nation today, of course. The Presi-                  not the solution to our problem. Gov-
      how we are going to vote on judges. So                       dent’s budget that he put out proposes               ernment often is the problem. That is
      they get a little impatient. I under-                        eliminating 150 inefficient and ineffec-             true. That doesn’t mean there isn’t a
      stand that. So I hope we are in the                          tive Government programs. You can                    role. There is a role, an important role.
      process of doing something about that.                       imagine what that is going to mean to                But we need to help define that some-
        There is also a great deal of concern,                     people who are involved. ‘‘Something                 how. That vision of limited govern-
      of course, in Government spending and                        in my town? Something in my State?                   ment has, to a large extent, been lost.
      the deficit. I certainly share that con-                     We are not going to mess around with                 We need to debate. We need to have
      cern. I have been more and more con-                         that.’’                                              some discussion, some idea as to what
      cerned about it as time has gone by.                           There needs to be some kind of a rel-              that role is.
      We have Social Security before us,                           atively nonpolitical idea as to how you                Unfortunately, sometimes the poli-
      about which we need to continue to do                        do that and what the purposes are. Of                tics of government are are you going to
      something.                                                   course, I see some of that right now in              do everything for everybody because it
        Interestingly enough, the issue that                       the military changes that obviously                  is good politics. Politics is not our only
      came up most often when I was home                           need to be made. They are difficult to               goal here. Our goal is to limit govern-
      in Wyoming is the idea of illegal aliens                     make. So I hope the administration                   ment, to provide services, to provide
      and illegal immigration and the great                        will pursue this idea of setting up some             them efficiently, and to evaluate them
      concern about that. I share that con-                        kind of a program—and I am here to                   as time goes by.
      cern. Most people here do. Of course,                        support it—that evaluates those pro-                   Unfortunately, when a program gets
      we are seeking to do something. But                          grams that are in place to see if, in-               put into place, it becomes institu-
      perhaps we need to focus on some of                          deed, they are still as important as                 tionalized. It is there often without
      those issues a little more.                                  they were in the beginning.                          sufficient change. It is a real challenge.
        I particularly will talk a little bit                        We have to even go further than that,              Something we need to do is to develop
      about spending and about the deficit. I                      of course, to curb runaway spending. I               a plan, a consistent and organized plan
      think that is one of our most impor-                         think we can consolidate a number of                 to evaluate programs, to determine
      tant issues. In relation to that, it                         the duplicative programs that are out                whether they are outdated, to deter-
      seems to me we need to get some sort                         there and save money and make it                     mine whether they are still necessary,
      of an idea of what we think the role of                      more efficient in their services. There              to determine if they could be done in a

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      S6144                                              CONGRESSIONAL RECORD — SENATE                                                               June 7, 2005
      little different way to be more efficient                    to coming into the Federal Govern-                   tion of 1937, and ‘‘she wants to undo’’
      and more effective.                                          ment.                                                this overruling. A couple of my col-
        Clearly the Federal Government does                          These are real challenges, but they                leagues on the other side of the aisle
      have a role. It has a role in many mat-                      are worthwhile: the challenge of evalu-              said that Justice Brown believes in
      ters. So our challenge is to determine                       ating government programs to see if                  Lochner and wants the New Deal un-
      what the roles are and then to set it up                     they are still important, to see if they             done. That is the charge against Janice
      so that we are as efficient as can be. I                     are still being done the way they were               Rogers Brown. I want to talk about
      know I am talking in generalities, but                       designed to meet the needs they were                 that particular charge because the op-
      I believe these are some things that are                     designed to meet when they were first                posite is what is actually true. This is
      basic to some of the ideas we ought to                       there, to do something about the idea                the opposite of what Justice Brown
      be talking about and evaluating. I                           of controlling spending and the size of              said, and I want to go through her
      sense that doesn’t happen very much.                         the Federal Government so that                       words of what she said to refute that
      We sort of are challenged to see how                         doesn’t continue to expand into every                particular case.
      many programs we can get going. We                           area that is open. We ought to take a                  They are accusing her of wanting to
      seem to be challenged to see how much                        look at all the programs that are in                 undo the New Deal and the legislation
      money we can spend.                                          place, that we are talking about put-                that has been in place surrounding and
        I appreciate what the administration                       ting in place, all the bills that are                regarding the New Deal.
      is seeking to do to try and reduce some                                                                             In the Santa Monica case, which is
                                                                   brought in here, and see what a wide
      of the spending. That is very difficult.                                                                          the case that is cited for her opinion
                                                                   breadth of subjects we talk about.
      You can see what kind of reaction you                                                                             that she wants to undo the New Deal
                                                                   Some you could make a pretty good
      get cutting back on programs or chang-                                                                            legislation of Roosevelt—FDR—she
                                                                   case are not within the area of normal
                                                                                                                        clearly criticized Lochner as wrongly
      ing them. Our budget group is working                        recognition of Federal Government ac-
      on doing some of that. We need to be                         tivity.
                                                                                                                          [T]he Lochner court was justly criticized
      more involved in that.                                         I hope the role of the Federal Govern-             for using the due process clause as though it
        As I mentioned, evaluating programs                        ment is something we could talk about.               provided a blank check to alter the meaning
      is something we should do. We have a                         We ought to talk about it with the                   of the Constitution as written.
      constitutional obligation to appro-                          State leadership and get a little clearer              It was in the very next sentence that
      priate hard-earned tax dollars in the                        idea of how we define these things and               Justice Brown mentioned ‘‘revolution
      most efficient manner we possibly can.                       get some kind of a measurement                       of 1937.’’ In context, it is clear that
      New government programs get institu-                         against these roles.                                 Brown felt the end of Lochner was a
      tionalized. They go on forever. So I                           There are lots of challenges. I will be            good thing, that the end of Lochner
      think there are some things we could                         happy when we can move on through                    was a good thing, and she says that.
      do that would be important, and that                         this judicial debate. It is very impor-              Moreover, the ranking member of the
      we should.                                                   tant, but we should not be spending all              Senate Judiciary Committee flatly
        There will be some proposals coming                        this much time on it in terms of how                 asked Justice Brown at the hearing—
      from OMB. I intend to seek to help put                       we do these things and get on with the               we are at her confirmation hearing—
      them into place if we can and have a                         things that have an impact on what we                this issue has been put forward. This
      system that deals with efficiency, a                         are doing out in the country.                        charge has been made that you want to
      system that deals with identifying                             I yield the floor and suggest the ab-              undo the New Deal legislation, that
      what the proper role of the various lev-                     sence of a quorum.                                   you want to overturn FDR, and the leg-
      els of government is. We will hear the                         The PRESIDING OFFICER. The                         acy of FDR. That is what you want to
      States saying: We need more money.                           clerk will call the roll.                            do. The ranking member of the Senate
      That is probably true. But neverthe-                           The assistant legislative clerk pro-               Judiciary Committee flatly asked Jus-
      less, we ought to have some other defi-                      ceeded to call the roll.                             tice Brown at her confirmation hear-
      nitions besides where the money will                           Mr. BROWNBACK. Mr. President, I                    ing:
      go.                                                          ask unanimous consent that the order                      Do you agree with the holding in Lochner?
        I hope we have one where we can re-                        for the quorum call be rescinded.
                                                                                                                          She answered just as directly, ‘‘No.’’
      view some things. I know these are                             The PRESIDING OFFICER. Without
                                                                                                                        This evidence is out there for all to see.
      general ideas. I have not gotten into                        objection, it is so ordered.                           Why pretend it is not there is what I
      the specifics. But from time to time, I                        Mr. BROWNBACK. Mr. President, I                    would say. She says no, she does not
      think we have to look at ourselves and                       want to take up the discussion of Jus-               want to undo the New Deal legislation.
      say: How do we deal with some of these                       tice Janice Rogers Brown and her                     She said it in sworn testimony at the
      issues? Clearly, everyone would agree                        qualifications for serving on the DC                 Senate Judiciary Committee. She says
      we have to do something about spend-                         Circuit Court of Appeals and some of                 that in her opinion in the Santa
      ing. We have to do something about the                       the accusations and charges that have                Monica Beach case. She does not want
      deficit. We have to look at the future                       been brought against her. There have                 to overrule the case.
      as to how we are going to make this                          been a number that have been put                       Others     have     attacked    Justice
      thing work.                                                  forth. I had a lengthy discussion earlier            Brown’s speech to the Federalist Soci-
        You can take a look at Social Secu-                        about what I think this is really about,             ety when she lamented the demise of
      rity. In about 10 years, we will have to                     that it is about her being a strict con-             the Lochner era, in which the Supreme
      take trillions of dollars out of the gen-                    structionist, wanting to stay within                 Court violated property or other eco-
      eral fund to put them back where they                        the confines of the Constitution and                 nomic rights. That is the allegation.
      belong in the Social Security fund.                          the law and her interpretation rather                  Justice Brown’s speeches illustrate
      That is going to be very difficult. It is                    than an expansive reading of it. I think             her personal views. To suggest that her
      a tremendous amount of money. But                            that is really what is at the root of                critique of the Holmes dissent in
      that is what we have done, of course,                        this, but people bring forth all sorts of            Lochner is evidence of how she would
      and it is reasonable because that                            allegations and charges, and I want to               rule in a certain case belies the facts.
      money has to be drawing interest and                         address some of them.                                Indeed, Justice Brown has taken issue
      it is drawing interest. But those things                       One of them is on a particular case,               with the Lochner decision, criticizing
      are going to be more and more dif-                           the Lochner case. As it might be de-                 the Supreme Court’s ‘‘usurpation of
      ficult.                                                      scribed, this is getting into the weeds              power,’’ stating the Lochner court was
        We are seeking to try and review and                       and details of some items, but I think               justly criticized for using the due proc-
      renew the Tax Code so it can be sim-                         it is meritorious to raise. She has been             ess clause:
      pler and more efficient and hopefully                        charged by some of our colleagues that               . . . as though it were a blank check to alter
      provide better opportunities for the                         in the Santa Monica Beach v. Superior                the meaning of the Constitution as written.
      economy to grow and have incentives                          Court case that Justice Brown called                   That is what she actually said.
      for growing by being able to put that                        the demise of the Lochner decision,                    Discussing the history of the judici-
      money into developing jobs as opposed                        which was overruled in 1937, the revolu-             ary, which Hamilton stated was to be

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      June 7, 2005                                       CONGRESSIONAL RECORD — SENATE                                                                   S6145
      the branch ‘‘least dangerous to the po-                      enormously qualified by her set of per-              tion with a kind of collectivist men-
      litical rights of the Constitution,’’ Jus-                   sonal experiences, public service, good              tality,’’ calls Supreme Court decisions
      tice Brown has stated her personal                           legal mind, good legal temperament,                  upholding the New Deal ‘‘the triumph
      views that judges too often have                             sound training and abilities to serve on             of our own socialist revolution,’’ ac-
      strayed from this framework and en-                          the DC Circuit Court of Appeals. She                 cuses social security recipients of
      gaged in judicial activism.                                  will make an outstanding judge on that               ‘‘blithely cannibaliz[ing] their grand-
        That is something we have talked                           court of appeals.                                    children because they have a right to
      about a lot, about judicial activism.                          Mrs. CLINTON. Mr. President, while                 get as much ‘free’ stuff as the political
      She believes that too often judges have                      I commend my colleagues for the com-                 system permits them to extract,’’ and
      strayed from this framework and en-                          promise that momentarily spared this                 advocates returning to the widely dis-
      gaged in judicial activism. It was in                        body from the so-called nuclear option,              credited, early 20th century Lochner
      this context that Justice Brown stated                       their agreement did nothing to change                era, where the Supreme Court regu-
      the standards of scrutiny employed by                        the fact that several of President                   larly invalidated economic regulations,
      the judiciary, which are not enumer-                         Bush’s judicial nominees fall well out-              like workplace protections.
      ated in the Constitution, often are used                     side the mainstream and the param-                      ‘‘Where government moves in,’’ Jus-
      by judicial activists to reach the re-                       eters of what is an acceptable jurist.               tice Brown has stated, ‘‘community re-
      sults they want.                                             This nominee in particular, Janice                   treats, civil society disintegrates, and
        Justice Brown’s record shows she is                        Rogers Brown, has shown a disdain for                our ability to control our own destiny
      committed to following precedent,                            the rule of law and precedent and is                 atrophies. The result is: families under
      even when she might personally dis-                          undeserving of lifetime tenure on the                siege; war in the streets; unapologetic
      agree with it. Partisan attack groups,                       Federal bench.                                       expropriation of property; the precipi-
      lacking evidence that Brown is unable                          The administration’s agenda has be-                tous decline of the rule of law; the
      to follow precedent, have indicated                          come evident throughout the course of                rapid rise of corruption; the loss of ci-
      their opposition stems from Justice                          the debate over judicial nominees. The               vility and the triumph of deceit. The
      Brown’s supposed incorporating her                                                                                result is a debased, debauched culture
                                                                   President, the Republican leaders, and
                                                                                                                        which finds moral depravity enter-
      personal views into judicial decision-                       their supporters have turned our Fed-
                                                                                                                        taining and virtue contemptible.’’ Jus-
      making. They assert she injected her                         eral judiciary into their own personal
                                                                                                                        tice Brown’s contempt for government
      personal views on property rights into                       political battleground. To satisfy the
                                                                                                                        runs so deep that she urges ‘‘conserv-
      judicial opinions, but nothing could be                      demands of their most ardent right
                                                                                                                        ative’’ judges to invalidate legislation
      further from the truth.                                      wing supporters, the Republicans have
        The two cases cited by the attack                                                                               that expands the role of government,
                                                                   not chosen to appoint capable Federal
      groups in this context deal with the                                                                              saying that it ‘‘inevitably transform[s]
                                                                   jurists but rather the political activ-
      Takings clause. The groups fail to                                                                                . . . democracy . . . into a klepto-
                                                                   ists willing to contort the law, prece-              cracy.’’
      point out the Supreme Court itself ex-                       dent, and the Constitution in order to                  Furthermore, Justice Brown takes
      pressed the view that Justice Brown                          promote their own conservative polit-                issue with one of the basic tenets of
      herself is now accused of advocating,                        ical agenda.                                         our entire judicial system—precedent.
      that property rights were intended to                          Our Federal courts have drifted well               When she does not like the result es-
      carry the same import as other rights                        to the right in the past two or three                tablished case law dictates, Justice
      in the Constitution.                                         decades. Today’s so-called moderates                 Brown tries single-handedly to change
        In Dolan v. City of Tigard, the Su-                        would have been called conservatives                 it. In one dissent, she proclaimed,
      preme Court majority wrote:                                  in the 1970s. And while I personally                 ‘‘(w)e cannot simply cloak ourselves in
        We see no reason why the Takings Clause                    think that this drift is not in the best             the doctrine of stare decisis.’’
      of the Fifth Amendment, as much a part of                    interest of our country, I understand                   These and other comments have
      the Bill of Rights as the First Amendment or                 and accept that the President is cer-
      Fourth Amendment, should be relegated to                                                                          prompted her colleagues on the Cali-
                                                                   tainly entitled to nominate conserv-                 fornia Supreme Court to criticize her
      the status of a poor relation in these com-
      parable circumstances.                                       atives to the bench. In fact, I have                 for ‘‘imposing . . . [a] personal theory
                                                                   voted for the vast majority of this                  of political economy on the people of a
        That is a 1994 case.
        The reason I point these out is I want                     President’s judicial nominees despite                democratic state.’’ Her fellow justices
      people to know the factual setting                           the fact that they maintain a conserv-               have taken her to task for asserting
      here, that she does not support an opin-                     ative philosophy and support positions               ‘‘an activist role for the courts.’’ They
      ion to overrule New Deal legislation.                        on issues that I do not necessarily                  have noted that she ‘‘quarrel[s] . . . not
        She has been attacked on her judicial                      agree with. I have done so because                   with our holding in this case, but with
      qualifications, which I covered in an                        these nominees have demonstrated a                   this court’s previous decision . . . and,
      earlier presentation, but I want to also                     respect for justice and the rule of law.             even more fundamentally, with the
      state here clearly and for the record,                         But even accounting for this drift,                Legislature itself.’’ And finally, they
      the ABA recently found Justice Brown                         some of his nominees, such as Janice                 contend that Justice Brown’s brand of
      qualified and concluded—this is from                         Rogers Brown, are far outside of even                judicial activism, if allowed, would
      the ABA, the American Bar Associa-                           today’s conservative mainstream.                     ‘‘permit a court . . . to reweigh the
                                                                     Justice Brown is an agenda driven                  policy choices that underlay a legisla-
      tion—that Justice Brown:
                                                                   judge who, usually as a lone dissenter,              tive or quasi-legislative classification
      . . . meets the Committee’s very high stand-
      ards with respect to integrity, professional
                                                                   shows little respect for the considered              or to reevaluate the efficacy of the leg-
      competence and judicial temperament and                      policy judgments of legislatures, re-                islative measure.’’
      that the Committee believes that the nomi-                   peatedly misconstrues precedent and                     Justice Brown’s nomination makes
      nee will be able to perform satisfactorily all               brazenly criticizes U.S. Supreme Court               clear that we have entered an era in
      of the duties and responsibilities required by               rulings. She has a record of routinely               which conservative politicians are
      the high office of a federal judge.                          voting to strike down property regula-               seeking to nominate and confirm
        If we are going to consider outside                        tions, invalidate worker and consumer                judges who read the Constitution and
      evaluations of judges, I would think                         protections and restrict civil rights                the law to coincide with the Repub-
      the ABA’s assessment that she is fit to                      laws.                                                lican Party’s platform. The expecta-
      serve on the DC Circuit is far more rel-                       What makes Justice Brown particu-                  tion is that these judicial appointees
      evant than any others that might come                        larly ill suited for a lifetime appoint-             will    toe    the   party   line.   This
      forward.                                                     ment to District of Columbia Court of                politicization of the judiciary carries
        I mentioned these to address some of                       Appeals is her disdain for Government.               disastrous consequences. Because when
      the attacks on her that I think are                          Among other things, she has long advo-               our judges are viewed as politicians, it
      based on her more limited strict con-                        cated for the demise of the New Deal.                diminishes the influence and the re-
      structionist view than on what others                        She equates democratic Government                    spect afforded our courts, which is the
      are basing their attacks, by trying to                       with ‘‘slavery,’’ claims that the New                lifeblood of their efficacy. Our inde-
      piece things together. Justice Brown is                      Deal ‘‘inoculated the federal Constitu-              pendent judiciary is the most respected

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      S6146                                              CONGRESSIONAL RECORD — SENATE                                                            June 7, 2005
      in the world, and our courts’ ability to                     specifically noted questions about her               havior and actual conduct as a judge. Time
      reach unpopular but just decisions is                        deviation from precedent and her                     was when conservatives were wary of judges
      made possible only because of the deep                       ‘‘tendency to interject her political and            who openly yearned for courts, as Justice
                                                                                                                        Brown puts it, ‘‘audacious enough to invoke
      wells of legitimacy they have dug.                           philosophical views into her opinions.’’             higher law’’—instead of, say, the laws the
         I urge my colleagues to take the                          We should note their concerns and seri-              people’s elected representatives see fit to
      longer view for the good of the Amer-                        ously consider them.                                 pass. That Justice Brown will now get a vote
      ican people. Think carefully about                              Justice Brown’s views and history of              means that each senator must take a stand
      what the result to our judiciary will be                     judicial activism is especially dan-                 on whether some forms of judicial activism
      if we continue to pack our courts with                       gerous in the DC Circuit. She is a                   are more acceptable than others.
      extremists who ignore justice and the                        nominee who is far outside of the main-                Mr. President, I suggest the absence
      law. I implore my colleagues to take                         stream. For these reasons, I stand in                of a quorum.
      seriously their constitutional charge of                     opposition of the confirmation and life-               The PRESIDING OFFICER (Mr. AL-
      advice and consent and to reject the                         long appointment of Janice Rogers                    EXANDER). The clerk will call the roll.
      nomination of Janice Rogers Brown.                           Brown.                                                 The assistant legislative clerk pro-
         Mr. JOHNSON. Mr. President, I rise                                    REJECT JUSTICE BROWN                     ceeded to call the roll.
      today in opposition to President Bush’s                                                                             Mr. FRIST. Mr. President, I ask
                                                                      [From the Washington Post, June 7, 2005]
      nomination of Janice Rogers Brown to                                                                              unanimous consent the order for the
                                                                      The Senate filibuster agreement guaran-
      be United States Circuit Court Judge                                                                              quorum call be rescinded.
                                                                   teeing up-or-down votes for most judicial
      to the Court of Appeals for the DC. Cir-                                                                            The PRESIDING OFFICER. Without
                                                                   nominees creates a test for conservatives
      cuit.                                                        who rail against judicial activism. For dec-         objection, it is so ordered.
         This morning, the Washington Post                         ades, conservative politicians have objected                       f
      editorialized against the nomination of                      to the use of the courts to bring about lib-                 MORNING BUSINESS
      Justice Brown, writing that she ‘‘is                         eral policy results, arguing that judges
                                                                   should take a restrained view of their role.           Mr. FRIST. I ask unanimous consent
      that rare nominee for whom one can                                                                                that there now be a period of morning
                                                                   Now, with Republicans in control of the pres-
      draw a direct line between intellectual                      idency and the Senate, President Bush has            business with Senators permitted to
      advocacy of aggressive judicial behav-                       nominated a judge to the U.S. Court of Ap-           speak for up to 10 minutes each.
      ior and actual conduct as a judge,’’ I                       peals for the D.C. Circuit who has been more           The PRESIDING OFFICER. Without
      agree with this respected newspaper’s                        open about her enthusiasm for judicial ad-           objection, it is so ordered.
      assessment and ask unanimous consent                         venturism than any nominee of either party
                                                                   in a long time. But Janice Rogers Brown’s                          f
      that this editorial be printed in the
      RECORD at the end of my statement.                           activism comes from the right, not the left;                   PENSION SECURITY
         The PRESIDING OFFICER. Without                            the rights she would write into the Constitu-
                                                                   tion are economic, not social. Suddenly, all
                                                                                                                          Mr. REID. Mr. President, throughout
      objection, it is so ordered.                                 but a few conservatives seem to have lost            this Congress, I have argued that the
         (See exhibit 1.)                                          their qualms about judicial activism. Justice        Senate ought to spend less time debat-
         Mr. JOHNSON. I have several con-                          Brown, who serves on the California Su-              ing radical judges and more time focus-
      cerns about Justice Brown’s ability to                       preme Court, will get her vote as early as to-       ing on issues that can improve the
      serve on this important court. On the                        morrow. No senator who votes for her will            lives of working Americans. One such
      California Supreme Court, Justice                            have standing any longer to complain about           issue is the gradual erosion of retire-
      Brown has proven to be an activist                           legislating from the bench.                          ment security. Instead of working to
      judge when it suits her political agen-                         Justice Brown, in speeches, has openly em-
                                                                                                                        replace Social Security’s guaranteed
                                                                   braced the ‘‘Lochner’’ era of Supreme Court
      da. Consistently, and despite precedent                                                                           benefit with a risky privatization
                                                                   jurisprudence. During this period a century
      to the contrary, Justice Brown has                           ago, the court struck down worker protec-            scheme, we should work to strengthen
      ruled on the side of corporations. For                       tion laws that, the justices held, violated a        retirement by shoring up our pension
      example, in a cigarette sales case, she                      right to free contract they found in the Con-        system. In no industry is this looming
      ignored relevant law and protected cor-                      stitution’s due process protections. There           pension crisis more acute than the air-
      porations in lieu of protecting minors.                      exist few areas of greater agreement in the          line industry. The Finance Committee
      In other cases she has placed corporate                      study of constitutional law than the disre-          held a hearing on pension problems fac-
      interests above law that intended to                         pute of the ‘‘Lochner’’ era, whose very              ing the airline industry this morning,
                                                                   name—taken from the 1905 case of Lochner
      shield consumers and women.                                                                                       and I hope that the committee will
                                                                   v. New York—has become a code word for ju-
         Justice Brown has also attempted to                       dicial overreaching. Justice Brown, however,         move soon on legislation to fix those
      remove protections for teachers, and                         has dismissed the famed dissent in Lochner           problems.
      has been hostile to such New Deal era                        by Justice Oliver Wendell Holmes, saying it            Last month we learned just how wor-
      programs as Social Security. She has                         ‘‘annoyed her’’ and was ‘‘simply wrong.’’ And        risome this issue is, as the Pension
      called government assistance programs                        she has celebrated the possibility of a revival      Benefit Guaranty Corporation and
      ‘‘[t]he drug of choice for . . . Mid-                        of ‘‘what might be called Lochnerism-lite’’          United Airlines agreed to terminate
      western farmers, and militant senior                         using a different provision of the Constitu-         the four pension plans maintained by
      citizens.’’ These views are out of touch                     tion—the prohibition against governmental            the airline as that company struggles
                                                                   ‘‘takings’’ of private property without just
      with most Americans and South Dako-                          compensation.
                                                                                                                        to emerge from bankruptcy. At the
      tans.                                                           In the context of her nomination, Justice         same time, Northwest, Delta and
         During today’s debate, colleagues ar-                     Brown has trivialized such statements as             American Airlines face similar pension
      gued that because Justice Brown has                          merely attempts to be provocative. But she           liabilities and are requesting Congress’
      been reelected by California voters by                       has not just given provocative speeches;             help so that they can avoid bank-
      a 76 percent margin, she should not be                       ‘‘Lochnerism-lite’’ is a fairly good shorthand       ruptcy. To their credit they are fight-
      considered ‘‘out of the mainstream.’’                        for her work on the bench, where she has             ing to preserve their workers’ pensions
      This argument is misplaced. First,                           sought to use the takings doctrine aggres-
                                                                                                                        but need some time to allow them to
                                                                   sively. She began one dissent, in a case chal-
      many other judges get reelected at a                         lenging regulation of a hotel, by noting that        recover from the effects of the post-9/11
      higher rate. It should also be noted                         ‘‘private property, already an endangered            travel downturn.
      that her retention reelection took                           species in California, is now entirely extinct         While the pension funding problems
      place only 11⁄2 years into her tenure on                     in San Francisco.’’ Her colleagues on the            facing the airline industry are substan-
      the California Supreme Court, at a                           California Supreme Court certainly got what          tial, the industry is not alone in inad-
      time before her extreme views and ac-                        she was up to. In response, they quoted Jus-         equately funding their employee pen-
      tivist agenda could have been known                          tice Holmes’s Lochner dissent and noted that         sion plans. Congress needs to carefully
      by voters.                                                   ‘‘nothing in the law of takings would justify        review the rules that apply to the
                                                                   an appointed judiciary in imposing [any] per-
         Both the American Bar Association                                                                              broad spectrum of employers that offer
                                                                   sonal theory of political economy on the peo-
      and the California Judicial Commis-                          ple of a democratic state.’’                         pension plans to their employees. Con-
      sion have questioned Justice Brown                              Justice Brown is that rare nominee for            gress needs to make sure that those
      qualifications to serve on the bench.                        whom one can draw a direct line between in-          rules are strengthened to require great-
      The California Judicial Commission                           tellectual advocacy of aggressive judicial be-       er funding for the pension promises

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