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S. HRG. 108–463

CONFIRMATION HEARING ON THE NOMINATION

OF JANICE R. BROWN, OF CALIFORNIA, TO

BE CIRCUIT JUDGE FOR THE DISTRICT OF

COLUMBIA CIRCUIT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 22, 2003

Serial No. J–108–47

Printed for the use of the Committee on the Judiciary

(

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COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John a U.S. Senator from the State of Texas, prepared statement and attachments ......................................................................................... 231

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 4

prepared statement .......................................................................................... 241

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 251

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 10

prepared statement .......................................................................................... 267

Schumer, Hon. Charles, a U.S. Senator from the State of New York ................. 72

prepared statement .......................................................................................... 345

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 8

PRESENTER 

Cornyn, Hon. John a U.S. Senator from the State of Texas presenting Janice 

R. Brown to be Circuit Judge for the District of Columbia Circuit ................. 12

STATEMENT OF THE NOMINEE 

Brown, Hon. Janice R., to be Circuit Judge for the District of Columbia 

Circuit ................................................................................................................... 16

Questionnaire .................................................................................................... 18

QUESTIONS AND ANSWERS 

Responses of the Nominee to questions submitted by Senator Biden ................. 92

Responses of the Nominee to questions submitted by Senator Durbin ............... 99

Responses of the Nominee to questions submitted by Senator Edwards ............ 117

Responses of the Nominee to questions submitted by Senator Feinstein ........... 125

Responses of the Nominee to questions submitted by Senator Kennedy ............ 132

Responses of the Nominee to questions submitted by Senator Kohl ................... 137

Responses of the Nominee to questions submitted by Senator Leahy ................ 139

SUBMISSIONS FOR THE RECORD 

AFL-CIO, William Samuel, Director of Legislation, Washington, D.C., letter ... 178

Americans for Democratic Action, Amy Isaacs, National Director, Washington, 

D.C., letter ............................................................................................................ 180

Americans for Tax Reform, Grover Norquist, President, Washington, D.C., 

letter ...................................................................................................................... 182

Americans United for Separation of Church and State, Rev. Barry W. Lynn, 

Executive Director, Washington, D.C., letter ..................................................... 183

Barker, Daniel A., Judge, Court of Appeals, Phoenix, Arizona, letter ................ 185

Brown, Janice Rogers, ‘‘ ‘A Whiter Shade of Pale’: Sense and Nonsense—

The Pursutit of Perfection in Law and Politics,’’ Address to the Federalist 

Society, University of Chicago Law School (Apr. 20, 2000) .............................. 187

Bryant, Shelley G., Attorney, Jory, Peterson, Watkins & Smith, Fresno, California, letter .......................................................................................................... 204

California Association of Black Lawyers, Gillian G.M. Small, President, Mill 

Valley, California, letter and attachments ......................................................... 207

Campbell, Ward A., Supervising Deputy Attorney General, Department of 

Justice, Sacramento, California, letter ............................................................... 218

Colleagues of Justice Janice Rogers Brown, Sacramento, California, letter ...... 220

Page

IV

Committee for Judicial Independence, Susan Lerner, Los Angeles, California, 

letter and attachment .......................................................................................... 222

Community Rights Counsel, Doug Kendall, Executive Director, Defenders 

of Wildlife, William Snape, Vice President and General Counsel, 

Earthjustice, Glenn P. Sugameli, Senior Legislative Counsel, joint letter ..... 224

Congressional Black Caucus, Elijah E. Cummings, Chair, Washington, D.C., 

letter ...................................................................................................................... 227

De Alba, David, Judge of the Superior Court, Sacramento County, California, 

letter ...................................................................................................................... 239

Eisenberg, Jon B., Horvitz & Levy, LLP, Encino, California, letter ................... 247

Eres, Thomas W., Esq, Attorney at Law, Sacramento, California, letter ........... 249

Esgro, Patricia C., Judge of the Superior Court, Sacramento, California, letter .......................................................................................................................... 250

Horst, Susan, San Anselmo, California, letter ...................................................... 254

Horvitz, Ellis J., Horvitz & Levy, LLP, Encino, California, letter ...................... 257

Justices of the California Court of Appeal, Los Angeles, California, joint 

letter ...................................................................................................................... 259

Keller, Eddie T., Judge of the Superior Court, Placerville, California, letter .... 261

Kelly, A. John, Little Rock, Arkansas, letter ........................................................ 263

Leadership Conference on Civil Rights, Wade J. Henderson, Executive Director and Nancy Zirkin, Deputy Director, Washington, D.C., letter ................... 264

Lee, Hon. Barbara, a Representative in Congress from the State of California, 

statement .............................................................................................................. 270

McGuire, Frank A., San Francisco, California, letter ........................................... 271

Members of Law faculties in California, joint letter ............................................. 274

Members of the California delegation to the U.S. House of Representatives, 

joint letter ............................................................................................................. 278

Minorities in Law Enforcement, Regis Lane, Executive Director, letter ............ 284

Mount, William S., Attorney, Pacific Legal Foundation, Sacramento, California, letter .......................................................................................................... 285

NARAL Pro-Choice America, Kate Michelman, President, Washington, D.C., 

letter ...................................................................................................................... 288

National Abortion Federation, Washington, D.C., statement .............................. 291

National Association for the Advancement of Colored People, Hilary O. 

Shelton, Director, Washington, D.C., letter and attachments .......................... 292

National Bar Association, Clyde E. Bailey, Sr., President, Rochester, New 

York, statement and attachment ........................................................................ 299

National Council of Jewish Women, Marsha Atkind, President, New York, 

New York, letter ................................................................................................... 303

National Employment Lawyers Association, San Francisco, California, letter .. 305

National Senior Citizens Law Center, Edward C. King, Executive Director, 

Washington, D.C., letter ...................................................................................... 307

National Women’s Law Center, Washington, D.C., statement ............................ 310

Natural Resources Defense Council, John H. Adams, President, Washington, 

D.C., letter ............................................................................................................ 318

People for the American Way, Washington, D.C., news release .......................... 319

Planned Parenthood Federation of America, Inc., Washington, D.C., statement ...................................................................................................................... 322

Positive Action Coalition, Mark Iain Sutherland, President, St. Louis, Missouri, letter ........................................................................................................... 324

Professors of Law, joint letter ................................................................................. 325

Project 21, David Almasi, Director, Washington, D.C., letter .............................. 338

Republican National Lawyers Association, Washington, D.C., letter and attachments ............................................................................................................. 340

Service Employees International Union, Local 99, Andrew L. Stern, International President, Washington, D.C., letter ..................................................... 347

Sowell, Thomas, Rose and Milton Friedman Senior Fellow, Stanford University, Stanford, California, letter .......................................................................... 349

Strauss, Paul, Shadow Senator from the District of Columbia, statement ........ 351

Trimble, Thomas J., Chairman, Pepperdine University, Board of Regents, 

Malibu, California, letter ..................................................................................... 353

Tyson, John M., Judge, Court of Appeals, Raleigh, North Carolina, letter ........ 354

Waters, Hon. Maxine, a Representative in Congress from the State of California ..................................................................................................................... 356

Watson, Hon. Diane E., a Representative in Congress from the State of 

California .............................................................................................................. 363

Wilson, Hon. Pete, former Governor of California, letter and attachment ......... 365

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NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE CIRCUIT JUDGE FOR THE 

DISTRICT OF COLUMBIA CIRCUIT 

WEDNESDAY, OCTOBER 22, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:12 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Orrin G. Hatch, Chairman of the Committee, presiding. 

Present: Senators Hatch, Specter, DeWine, Sessions, Craig, 

Chambliss, Cornyn, Leahy, Kennedy, Feinstein, Feingold, Shumer, 

and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Welcome to the Committee. This morning, the 

Committee considers the nomination of California Supreme Court 

Justice Janice Rogers Brown to be United States Circuit Judge for 

the District of Columbia Circuit. 

The last nominee considered for this court, Miguel Estrada, in 

my opinion, was treated shamefully by this Committee. He was 

badgered for adhering to the Code of Judicial Ethics, his record 

was distorted, and he was attacked for withholding information 

that he could not provide. 

After such obstructionist tactics, this impressive Hispanic immigrant became the first appellate court nominee in history to be defeated by a filibuster. Many are proud of that fact, but I think it 

was a sad day for this institution. 

Last month, the Washington Post observed that the judicial confirmation process is ‘‘steadily degrading.’’ I believe that the nomination before us offers another opportunity, indeed, an obligation, to 

change this trend. The fight over judicial appointments is about 

more than the dispute of the moment. It is about who should govern; the people through their elected representatives or unelected 

and largely unaccountable judges. 

President Bush describes his judicial nomination standard this 

way: ‘‘Every judge I appoint will be a person who clearly understands the role of the judge is to interpret the law, not to legislate 

from the bench. My judicial nominees will know the difference.’’ 

The powerful liberal groups fighting these nominees also know 

the difference, but they take a different view. They want to win, 

and since their interests often lose when legislators legislate, they 

2

want the judges to do it instead. These groups, their strategy is 

like cooking spaghetti. They throw everything at the nominee, and 

when something sticks, the nominee is done. 

Make no mistake, the single most important issue for these 

groups is abortion. Merely a suspicion that nominees may harbor 

personal pro-life beliefs is sometimes enough to prevent confirmation. Sworn testimony that they will follow the law despite their 

personal beliefs is not enough. Entire careers of demonstrating a 

commitment to the rule of law over their personal beliefs is not 

enough or satisfactory. Their personal beliefs alone are deemed disqualifying. 

I do not personally know Justice Brown’s personal view on abortion and, frankly, I do not care. Her decisions as a jurist are guided 

by the law, not her personal beliefs, which is one of the important 

marks of a good judge. Justice Brown, however, did one thing that 

liberal interest groups seem to not be able to forgive. She issued 

an opinion that would have found constitutional California’s parental consent law. I expect we will hear a great deal about this case 

today, and it explains why, according to yesterday’s Sacramento 

Bee, liberal groups plan to ‘‘bombard Senators with 150,000 pieces 

of opposition mail from abortion rights backers.’’ In my book, that 

is what we call spam. 

But Justice Brown faces a second hurdle beyond the abortion litmus test that all nominees face. She is a conservative AfricanAmerican woman, and for some that alone disqualifies her nomination to the D.C. Circuit, widely considered a stepping stone to the 

United States Supreme Court. 

Now, I want to make clear that I am not referring to any of my 

colleagues who are on the Committee, but let me show you what 

I am talking about; an example of how Justice Brown’s attackers 

will sink to smear a qualified African-American jurist who does not 

parrot their ideology. It is a vicious cartoon filled with bigotry that 

maligns not only Justice Brown, but others as well—Justice Thomas, Colin Powell, and Condoleezza Rice. It is pathetic, and it is the 

utmost in bigotry that I have seen around here in a long time. I 

hope that everyone here considers that cartoon offensive and despicable. I certainly do. It appeared on a website called 

BlackCommentator.com. 

Unfortunately, some of Justice Brown’s opponents appear to 

share similar sentiments. I was deeply disappointed when, during 

a recent press conference, the all-Democrat Congressional Black 

Caucus applauded when one of its members said, ‘‘This Bush nominee has such an atrocious civil rights record that Clarence Thomas 

would look like Thurgood Marshall in comparison.’’ To some of her 

opponents, Justice Brown is not even qualified to share the stage 

with the despised Justice Thomas. 

Now, some of Justice Brown’s other opponents will pull isolated 

bits and pieces from Justice Brown’s rich and textured background 

in an attempt to discredit and belittle her accomplishments. Some 

may simply ignore any decisions they think would reflect positively 

on Justice Brown’s judicial record, but I hope this hearing will be 

fair and open-minded. We owe Justice Brown no less. 

3

We will hear more about Justice Brown’s credentials and legal 

career, but let me just briefly highlight a few facts that are important I think for everybody to hear. 

Justice Brown grew up the daughter of sharecroppers in segregated, rural Alabama. As a single mother, she worked her way 

through Cal State, Sacramento, and UCLA Law School. She has 

spent nearly a quarter-century in public service, including nearly 

a decade on different levels of the California appellate bench. 

In 1996, she became the first African-American woman to sit on 

the California Supreme Court. She was retained with 76 percent of 

the vote in her last election. Let me repeat that—76 percent of the 

vote in California. I suspect that any member of this Committee 

would be pleased to garner 76 percent of the vote. Of course, Senator Leahy often gets that. 

[Laughter.] 

Chairman HATCH. This overwhelming vote of— 

Senator LEAHY. My gosh, Orrin, you got something right. I agree 

with you on that one. 

[Laughter.] 

Chairman HATCH. I did not say the vote was good. I just said you 

get— 

[Laughter.] 

Chairman HATCH. Now, this overwhelming vote of confidence for 

Justice Brown by the people of California reflects that Justice 

Brown is hardly out of the mainstream; a conclusion buttressed by 

the fact that last year she wrote more majority opinions than any 

other justice on the California Supreme Court. 

Those who know and have worked with Justice Brown confirm 

that she is what a judge is supposed to be. In a letter dated October 16th, 2003, a dozen of her former judicial colleagues, both 

Democrats and Republicans, wrote, ‘‘We know that she is a jurist 

who applies the law without favor, without bias, and with an even 

hand.’’ 

A bipartisan group of professors of California law schools wrote, 

‘‘A fair examination of her work reveals that Justice Brown resolves matters as individual cases, not generalized or abstract 

causes.’’ 

They praise her for her ‘‘open-minded and fair appraisal of legal 

argumentation, even when her personal views may conflict with 

those arguments.’’ 

What more could we ask for in a judge? Not that this matters 

to the powerful special interests and political interests attacking 

Justice Brown. One report, for example, quotes prominently from 

an Op-Ed piece criticizing her opinion in an affirmative action case. 

To my surprise, the Op-Ed’s author, Berkeley law professor, Stephen Barnett, was one of the signatories on the law professors’ letter endorsing Justice Brown’s nomination. 

The powerful political interests opposing President Bush’s judicial nominations want judges who will advance their narrow, leftist 

ideology. To them, results matter more than the law. That is the 

wrong standard. I hope the better stand prevails and that the 

downward slide of the confirmation process can be reversed. Let us 

seize this opportunity and make that happen today. 

With that, I will turn to the distinguished Senator from Illinois. 

4

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. Justice 

Brown, thank you for joining us this morning. 

I would like to begin by putting this nomination in historical context. Justice Brown was nominated to fill the eleventh seat on the 

D.C. Circuit Court that has 12 authorized judgeships, but when 

President Clinton tried to appoint an eleventh and twelfth judge to 

this same court—Elena Kagan and Allen Snyder—the Chairman of 

this Committee denied them a hearing and a vote. 

Senate Republicans argued the D.C. Circuit was fully operational 

with 10 judges. The D.C. Circuit’s workload did not justify any additional judges. Since 1997, the D.C. Circuit’s workload actually decreased by 27 percent according to the Administrative Office of the 

U.S. Courts. 

I also want to note the oddity of President Bush traveling 3,000 

miles away from Washington, D.C., to pick a judge for the D.C. Circuit. Perhaps it is not hard to understand. There are only 71,000 

members of the D.C. Bar who might have been considered. I am 

told that it is rare for a President to appoint someone to the D.C. 

Circuit who does not practice in Washington and is unfamiliar with 

Federal agencies. I do not think there is any sitting member of the 

D.C. Circuit at this point who has had no background in D.C. or 

with Federal agencies. In Justice Brown, we have such a nominee. 

The D.C. Circuit is a critically important appointment, second 

only to the U.S. Supreme Court in its impact on law and policy in 

America. It is a unique appellate court. Congress has granted an 

exclusive jurisdiction over some issues. Half the court’s caseload 

consists of appeals from regulations or decisions by Federal agencies. For example, regulations adopted under the Clean Air Act by 

the EPA, labor management decisions of the NLRB, rules propounded by OSHA and many other administrative matters that affect Americans across the country typically end up in the D.C. Circuit Court. 

I also want to make a final point before discussing Justice Brown 

and her record. Although Senators on this side of the dais will 

raise numerous concerns about her nominations, it should not be 

forgotten that the Senate has confirmed the vast majority of President Bush’s judicial nominees. To date, we have confirmed 165 

nominees and held up 3. The score is 165 to 3, for those who are 

following this process. 

Republicans express outrage that three of President Bush’s nominees have not received an up or down vote on the Senate floor, yet 

63—63—of President Clinton’s judicial nominees never received an 

up or down vote in this Committee. The 63 were either denied a 

hearing or a vote or both. They were victims of quiet filibusters in 

the Judiciary Committee. These 63 represent 20 percent of all of 

President Clinton’s judicial nominees. By contrast, the three nominees held by the Senate represent 2 percent of President Bush’s judicial nominees. 

Our Federal judiciary is conservative and becoming more so. On 

the U.S. Supreme Court, seven of the nine justices were appointed 

by Republican Presidents. On our U.S. Court of Appeals, the courts 

of last resort for the vast majority of litigants, nine out of the NaVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
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tion’s thirteen Circuit Courts today have a majority of Republican 

appointees. The D.C. Circuit is among them. Democrats have a majority on only two courts of appeal, two are equally divided. 

Now, let me say a word about today’s nominee. Justice Brown’s 

life story, which the Chairman has alluded to, and her achievements are amazing, and I congratulate you on your appointment to 

the court in California. To your supporters, you are an eloquent 

and passionate voice for conservative values. In both your opinions 

and your speeches, you speak with great flair and great intellect. 

Others, however, tell a different story. They say you are a resultsoriented judicial activist who fashions her opinions to comport with 

her politics. You are a frequent dissenter in the right-ward direction, which is quite a feat, given that you serve on a court that is 

made up of six Republican-appointed judges and only one Democrat. 

I have conducted my own independent assessment of your record, 

and I must confess to some serious concerns. A few years ago, Justice Brown, you told an audience that, ‘‘Since I have been making 

a career out of being the lone dissenter, I really didn’t think anybody reads this stuff.’’ 

Well, we do. You are a lone dissenter in a great many cases involving the rights of discrimination victims, consumers and workers. In case after case, you have come down on the side of denying 

rights and remedies to the disadvantaged. Oftentimes, you ignore 

established precedent to get there. 

In a housing discrimination case, you were the only member of 

your court to find the California Fair Employment and Housing 

Commission did not have the authority to award damages to housing discrimination victims. 

In a disability discrimination case, you were the only member of 

your court to conclude that, due to a technical reading of the law, 

the victim was not entitled to raise past instances of discrimination 

that occurred. 

You are the only member of your court to conclude that age discrimination victims should not have the right to sue under common 

law, an interpretation directly contrary to the will of the California 

legislature. 

You were the only member of the California Supreme Court who 

dissented in a case involving the sale of cigarettes to minors. All 

of the other justices ruled that a corporation can, on behalf of the 

public, sue a retailer that illegally sells cigarettes to minors under 

the State’s Unfair Competition Law. 

You were the only member of the California Supreme Court who 

would strike down a San Francisco law providing housing assistance to displaced low-income, elderly and disabled people. 

You were the only member of the California Supreme Court who 

concluded there was nothing improper about requiring a criminal 

defendant to wear a 50,000-volt stun belt during the course of his 

trial. 

You were the only member of the California Supreme Court who 

voted to overturn the rape conviction of a 17-year-old girl because 

you felt the victim gave mixed messages to the rapist. 

6

You were the only member of the California Supreme Court who 

dissented in two rulings that permitted counties to ban guns or gun 

sales on fairgrounds and other public properties. 

As an appellate court judge, you ruled that paint companies 

could use Prop 13 as a shield to avoid paying fees for the Childhood 

Lead Poisoning Prevention Act, a critical law used to evaluate, 

screen, and provide medical treatment for children at risk for lead 

poisoning. The California Supreme Court reversed you unanimously. 

Justice Brown, in many of these cases there were clear precedents you chose to ignore. In other areas, Justice Brown, you were 

joined by a few of your colleagues, but again often in dissent. In 

the area of employment discrimination, you have concluded that 

victims who are repeatedly harassed in the workplace must take a 

back seat to the free speech rights of harassers. Your supporters 

point to this case as an example of your commitment to civil liberties. I see it as a commitment to ignoring clear, established U.S. 

Supreme Court precedent in this area of discrimination. 

You have staked out a disturbing position on the sensitive issue 

of affirmative action. In the case of High Voltage Wire Works v. 

City of San Jose, you referred to affirmative action as, ‘‘entitlement 

based on group representation,’’ and you equate affirmative action 

with Jim Crow laws. The chief justice of your court called your 

analysis, ‘‘unnecessary and inappropriate,’’ and ‘‘a serious distortion of history.’’ 

In another civil rights case, another colleague accused you of ‘‘judicial law-making.’’ 

Justice Brown, your record is that of a conservative judicial activist, plain and simple. You frequently dismiss judicial precedent 

and stare decisis when they do not comport with your political 

views. 

The Senate questionnaire that is sent to judicial nominees asks 

for your comments on judicial activism. Here is what you said, ‘‘Judicial integrity requires a conscious effort to subordinate any personal beliefs which conflict with proper discharge of judicial duties.’’ 

Justice Brown, I do not think your decisions follow your own advice. The ABA has given you a partial rating of not qualified. This 

is the lowest rating given thus far to any of President Bush’s Circuit Court nominees. The ABA does not provide an explanation for 

their rating unless a nominee is rated fully not qualified. 

When the California State Bar Commission evaluated you in 

1996 and gave you a majority rating of not qualified for the California Supreme Court, the Commission stated that its rating was 

based, in part, on your ‘‘tendency to interject her political and philosophical views into her opinions.’’ 

I am concerned with the views you have taken, but I am also 

concerned with the ways in which you express them. Many of your 

court opinions and speeches are very harsh. In your solo dissent in 

the case involving cigarette sales to minors you wrote, ‘‘The result 

is so exquisitely ridiculous it would confound Kafka.’’ 

You also wrote that ‘‘The majority chooses to speed us along the 

path to perdition.’’ 

7

In an unfair competition law case, in which you were the sole 

dissent, you wrote, ‘‘I would put this sham lawsuit out of its misery.’’ 

In your solo dissent in the stun belt case, you lambasted the 

opinion of your colleagues and accused them of ‘‘rushing to judgment after conducting an embarrassing google.com search for information outside the record.’’ 

In your lone dissent in a discrimination case, you wrote that the 

majority ‘‘does violence to both the statute limitations and to the 

entire statutory scheme.’’ 

According to press reports, you and the chief justice of your 

court, a fellow Republican, are at such loggerheads you communicate only by memo. 

Lastly, let me talk for a minute about the world according to you 

as you see it. It is a world, in my opinion, that is outside of the 

mainstream of America. For example, to Justice Brown, any attempt by the Government to protect victims or consumers is a sop 

to special interests. You criticize politicians for ‘‘handing out new 

rights like lollipops in the dentist’s office.’’ 

You delivered a speech in which you said, ‘‘Today’s senior citizens 

blithely cannibalize their grandchildren because they have a right 

to get as much free stuff as the political system will permit them 

to extract.’’ 

In a case involving a San Francisco housing law that helped the 

low income and elderly, you wrote, ‘‘Theft is theft, even when the 

Government approves of the thievery. Turning a democracy into a 

kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the Government.’’ 

Your dissent in the cigarette case accused the rest of your colleagues of creating a standardless, limitless attorney fee machine. 

You criticized California’s anti-discrimination agency, writing in 

a dissent, ‘‘Not only are administrative agencies not immune to political influences, they are subjected to capture by a specialized constituency. Indeed, an agency often comes into existence at the behest of a particular group, the result of a bargain between interest 

groups and lawmakers.’’ 

The list goes on and on. I am troubled by what you have written 

and said, but this is one that I think, frankly, puts you into a rare 

minority category when it comes to viewing where America is 

today, and here is what you wrote: ‘‘Where Government moves in, 

community retreats, civil society disintegrates, and our ability to 

control our own destiny atrophies.’’ 

You described the year 1937, the year in which President Roosevelt’s New Deal legislation started taking effect as ‘‘the triumph 

of our own socialist revolution.’’ 

Given that the Federal Government and its role in our lives is 

your major responsibility if you are appointed to the D.C. Circuit 

Court, I hope you can understand why some people have taken 

great issue with statements that you have made and the philosophy which you bring before this Committee. 

Joining us today from the House of Representatives are Delegate 

Eleanor Holmes Norton, Elijah Cummings, and I think I saw Congressman John Conyers also join in reference to your nomination. 

8

For these reasons, and many more as I have reviewed your 

record, I find it interesting that this position, which has become 

really the center point of controversy with the Miguel Estrada nomination, that the White House would not send us a nominee from 

this area closer to the mainstream, but once again challenge us to 

try to ask the hard questions to make certain that you or any 

nominee is deserving of a lifetime appointment to this position. 

Thank you, Mr. Chairman. 

Senator SPECTER. Mr. Chairman? 

Chairman HATCH. The Senator from Pennsylvania? 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Mr. Chairman, I had asked you before the 

hearing started for leave to make a brief statement, and I had 

asked that because I talked yesterday to a former Senator, former 

Governor, Pete Wilson, who called me about Justice Brown and 

also to make a comment about the cartoon that you have already 

referred to, but I would like to say just a little more, but I will be 

conscious of the time and the fact that customarily only the Chairman and the Ranking make statements. 

Chairman HATCH. Go ahead, Senator, and then we will turn to 

Senator Leahy, who is ranking on this Committee, and then we are 

going to turn to the witnesses. 

Senator SPECTER. Pete Wilson called yesterday. He was our colleague in the Senate for 8 years before he became Governor of California and had some very high words of praise for Justice Brown, 

and I wanted to pass that on at the opening part of the record because Mr. Wilson could not be here, and we have a practice of not 

having outside witnesses in, in any event. 

I had not known you were going to make reference to this cartoon, but it is symptomatic of the presumption of problems which 

seems to precede nominees before they come before the Judiciary 

Committee for a hearing. It is a cartoon which has a very unflattering picture of Justice Brown—I had not known what Justice 

Brown looked like when I saw the cartoon. Now, that I see her, it 

is even a greater distortion than I had anticipated—and a caricature of President Bush saying, ‘‘Welcome to the Federal bench, Ms. 

Clarence, I mean, Ms. Rogers Brown. You will fit right in.’’ And in 

the back are Justice Clarence Thomas, and Secretary of State Colin 

Powell, and National Security Adviser Condoleezza Rice. 

And it seems to me that, while people have a right constitutionally to print such cartoons, that this Committee ought to be on 

special guard about prejudgment, and opinions have been expressed by many people really prejudging Justice Brown. 

With great respect and deference to my colleague from Illinois, 

after listening to the Senator from Illinois, it seems to me that Justice Brown has been convicted without a hearing. I think that 

would be a good closing prosecutorial speech, but not an opening 

prosecutorial speech in the review of cases. 

I do not believe that there is anything wrong with being a dissenter. I do that occasionally myself. In fact, some people think 

more than occasionally and too often. 

[Laughter.] 

9

Senator SPECTER. When I think of Holmes and Brandeis, and 

Black and Douglas, and Brennan, I think of many dissenters, and 

sometimes the dissenters have the majority opinion. 

Now, Justice Brown, I do not know whether I am going to vote 

for you or not. I do not know enough about you at this point, but 

I have asked for a review of some of the cases because you have 

already been pigeon-holed and categorized, and I wonder what your 

real views are, and I intend to listen to what you have to say. 

When the Senator from Illinois talks about a harassment case 

and your dissent out of touch with the precedence, that was a case 

where damages were awarded for comments which were verbal 

abuse in the workplace—I wanted to get the word exactly right—

and you found, in dissent, that although the monetary damages 

were fine, that you could not have a prior restraint. 

Now, I have not gone back over all of the prior restraint cases, 

but I remember Near v. Minnesota, the landmark case in the field, 

and you do not have prior restraint on speech cases. You just do 

not do that. 

And when I have looked at your record on Fourth Amendment 

cases, I have seen you have a very broad interpretation of civil 

rights on Fourth Amendment cases. I had heard that you were unduly zealous on capital punishment cases, and I find your dissent 

in the case of Visciotti, where you said there was ineffective assistance of counsel on Sixth Amendment grounds. And as I have reviewed the case on parental consent, I want to hear more about 

that, where you said that the statute ought to be upheld on a narrow instruction, and the majority of the court concluded that there 

was a violation of the Constitution of privacy, that you should not 

have to ask for parental consent. 

I want to see what you have to say about that. My views on that 

subject are well known, but I am not about to chastise you because 

your views are different from mine. I would like to hear what your 

judicial reasoning is. 

I have a lot more to say, and I will have a chance to when my 

turn comes on the questioning, but I am again sorry to see that 

your nomination has already become entangled with prior nominations, and I say this with deference to the Chairman and with deference to the Senator from Illinois. I do not think Miguel Estrada 

has anything to do with Justice Brown. That is gone. We have had 

our say on that, and I do not think that a score of 165 to 3 means 

anything. I think the question is whether you are qualified to be 

a Court of Appeals judge for the District of Columbia, and it is a 

national court. It is right under the Supreme Court. 

I am not surprised to see somebody from California nominated. 

As a matter of fact, I would like to see someone from Pennsylvania 

nominated. We do not have to take the judges inside the Beltway— 

Senator SCHUMER. I nominate Arlen Specter. 

Senator SPECTER. —or Vermont. It is a national court. I do not 

see in the world what the relevancy has to do with your nomination. We do not have to function solely within the Beltway. There 

are some qualifications outside the Beltway, but I do not like the 

way this hearing has started. I hope I like better the way it ends, 

although, again, I repeat, I do not know whether I am for you or 

against you, but I do think you are entitled to a fair hearing before 

10

you are convicted, if you are to be convicted. You may be acquitted. 

You may be confirmed, but let us see, let us see what you have to 

say, and that is what a hearing is supposed to be about. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Leahy? 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

I think everybody agrees on the offensive nature of the cartoon. 

I notice that we are keeping that website up for the TV cameras. 

I am wondering if we are doing a disservice by leaving that up and 

on. It is up to you, of course. 

Chairman HATCH. I do not know what you are talking about. 

Senator LEAHY. Is it not over there? Does it have the website 

showing on the bottom of that? 

Chairman HATCH. I do not know. 

Senator LEAHY. It does not? Oh, okay. Yes, it does. Well, I mean, 

that is your choice, Mr. Chairman, whether you want to keep 

broadcasting the website or not, but I would suggest you may want 

to take it down. I find that cartoon offensive, just as I find offensive 

some of the cartoons from the right that have attacked me on my 

religion and elsewhere for being on this Committee. All of these 

things are offensive. I agree with Senator Specter the Constitution 

allows it, no matter how offensive they have been toward me or toward you, Justice Brown, or anybody else, but I would also just correct one thing in the record. It was said this is the first hearing 

we have had on vacancies in the D.C. Circuit since Miguel Estrada. 

Actually, we had Mr. Roberts, a candidate of President Bush’s for 

the D.C. Circuit, somebody I voted for, and he was confirmed and 

is now on the court. 

And I do think that, as Senator Durbin said, that 165 passed, 3 

not, is significant. There were, after all, 61 of President Clinton’s 

that were not passed because they were never given a hearing or 

they were filibustered because one person, in effect, a silent filibuster because one person objected to them, and they never even 

got a hearing. 

So I think that President Clinton would have been happy to have 

traded more than 60 of his that did not go through for the 3 of 

President Bush’s that did not go through. 

But today we are here for Justice Brown. Of course, her nomination is going to be considered at length. She has a record, both on 

the bench and off. Her record does raise a variety of concerns about 

her judicial philosophy and fitness for a lifetime appointment to the 

D.C. Circuit. We will look into the factors that made up the unqualified rating by some in ABA, but that is why the Constitution 

entrusted the appointment and confirmation of lifetime positions 

on the Federal court to not just one, but to two branches of Government. 

I guess what we have to understand, the confirmation of lifetime 

appointments to the Federal judiciary, under our Constitution, is 

not just the province of one end of Pennsylvania Avenue, it is the 

province of both. The President can nominate whomever he wants, 

11

but the Senate has to determine whether we will advise and consent to that, and I know the Committee takes the responsibility seriously. 

I worry that some of us who have exercised our constitutional 

duty to examine the records of judicial nominees have been barraged by some on the right with shrill and unfounded name-calling 

because of it. I hope we can see the end of the ugly game. Senator 

Hatch has said this should end. I agree with him, but it should end 

on both sides. 

When we opposed Charles Pickering, we were called anti-Southern. Of course, this overlooked the fact that 38 percent of the 

judges we have confirmed are from the South, even though the 

South makes up 25 percent of the Nation’s population. The reason, 

of course, there were so many vacancies is that the Republicans refused to allow the confirmation of a large number of President 

Clinton’s nominees. We put them through. 

When we opposed Miguel Estrada, we were called anti-Hispanic, 

even though the record of Democrats supporting Latinos for the 

Federal bench is unmatched in American history. 

When we opposed Priscella Owen, they were reduced to branding 

us being anti-women; a complaint that is so laughable it is hard 

to even mention it. 

And in an especially despicable ploy that has not been seen in 

the Senate in modern times, when we opposed William Pryor, the 

right stooped to religious McCarthyism—religious McCarthyism—

which has no place in the United States Senate. I do not believe 

it has any place in America. 

So let us not do name-calling. Let us go to substance. When Senators of good conscience and true purpose ask serious, substantive 

questions of this nominee, let us stick to the substance and let the 

right-wing tactic of smears and name-calling subside and disappear. Let us not see the race card dealt from the shameful deck 

of unfounded charges that some stalwarts of this President’s most 

extreme nominees have come more and more to rely upon as they 

further inject partisanship and politics into the appointment and 

consideration of judges who are being nominated to be part of an 

independent, nonpartisan, nonpolitical judiciary. 

No matter what position any Senator takes in this nomination, 

whether it is in support or opposition, I know that it will not be 

taken because of race. Maybe those who ultimately support Justice 

Brown, even though they oppose affirmative action, they will be 

doing that because they believe she will be even-tempered and 

evenhanded. Those who oppose her will do so because they retain 

serious doubts about her nomination or see her as an ideologue or 

judicial activist. 

Now, because of her record, her record to date, several organizations do oppose Justice Brown’s confirmation, including the Nation’s premier African-American Bar Association, the National Bar 

Association, its State counterpart, the California Association of 

Black Lawyers, the foremost national civil rights organization, the 

Leadership Conference on Civil Rights, and the entire membership 

of the Congressional Black Caucus, including the delegate from the 

District of Columbia, where this court sits, Delegate Eleanor 

Holmes Norton. 

12

Now, I would hope these groups and individuals are not going to 

be accused of being anti-African American in the way Hispanic organization leaders were maligned because they had opposed Miguel 

Estrada. 

Let us hope during the questioning and the debate we focus on 

substance because there is much to discuss. Justice Brown’s record 

gives us a lot to discuss, and that is what it is for. I think she 

should have an opportunity to explain her views and respect for 

precedent, on judicial activism, on statutory interpretation, free 

speech, civil liberties, limitation of damages, deference to jury verdicts and the standards of review that apply to infringement of constitutional rights. 

She has written opinions or spoken on all of these topics and 

more. And actually on some of them I find it hard to reconcile what 

she says on 1 day with what she may say on another on the same 

subject, but we will ask about that. 

This court is the most prestigious and powerful appellate court 

below the Supreme Court. We have chosen here in the Congress to 

vest the D.C. Circuit with exclusive or special jurisdiction over 

cases involving environmental, civil rights, consumer protection 

and workplace statutes. 

We saw what happened when a number of President Clinton’s 

nominees were sent up here—Elena Kagan, Alan Snyder. They 

were nominated. They were never even allowed a Committee vote 

or Senate consideration. Dean Kagan, who now heads the Harvard 

Law School, never even received a Committee hearing. She may 

feel she is better off. 

But we have Justice Brown is this President’s third nomination 

to the D.C. Circuit. All have received hearings. John Roberts was 

voted through this Committee. As I said, I voted for him, and then 

he was confirmed by the Senate to the D.C. Circuit. 

So, Mr. Chairman, I thank you for your consideration. Let us go 

forward on the merits. Let us leave the posturing and the namecalling off this Committee. Every one of the Senators has a grave 

duty under the advise and consent provision, and that is what we 

should do. We should not be called anti-Catholic, anti-black, anti 

anything else up here. We are United States Senators who try our 

best to do our duty and uphold our constitutional— 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Cornyn, we will take— 

Senator SCHUMER. Mr. Chairman, could I just make a brief statement? You are letting some— 

Chairman HATCH. I agreed to the four, but I want to get to the 

hearing, and we will give enough time for you to make statements 

during your question period. 

Senator Cornyn? 

PRESENTATION OF JUSTICE JANICE R. BROWN, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE 

STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman, and I hope this 

microphone is working. I cannot really tell, but I think I hear— 

13

Senator LEAHY. Pull it closer, John. Pull it a little bit closer. 

Senator CORNYN. All right. Unaccustomed, as I am, to assuming 

this position before the Committee, I do it with a little trepidation 

and perhaps a little awkwardness, but— 

Senator SESSIONS. Trust me, it is better up here than down 

there. 

Senator CORNYN. Mr. Chairman, Senator Leahy, I am privileged 

to introduce to the Committee today a distinguished jurist from the 

California Supreme Court, Justice Janice Rogers Brown, who has 

been nominated to serve on the D.C. Circuit Court of Appeals. 

I must confess to feeling like I am a participant in a kabuki performance, to some extent, already, but let me do the job that I have 

gladly embraced here by introducing this fine person and this fine 

judge to the Committee. 

As you know, Mr. Chairman, one-fourth of the D.C. Circuit Court 

of Appeals is currently vacant. And as you also know, the Presidents traditionally look across the Nation for highly qualified individuals to serve on this important court, from Judge Karen LeCraft 

Henderson, a former Federal judge on the District Courts of South 

Carolina to former University of Colorado law professor, Stephen F. 

Williams, and former University of Michigan law professor, Harry 

T. Edwards. 

Justice Brown has almost 10 years of experience as an appellate 

judge. As others have recounted, she was first appointed to the 

Court of Appeals in 1994 and then to the Supreme Court in 1996 

and has had a distinguished record on that court as a judge. 

As judge—and I will ask that the first chart be put up—as judge, 

Justice Brown has received strong support from Californians. As 

you can see, Justice Brown, during the 1998 election, she was one 

of four justices of the California Supreme Court, including the 

Chief Justice, who were up for retention elections, and California 

voters supported all four of those justices. 

Justice Brown received a yes vote of 76 percent of California voters, the highest vote percentage of all four justices, and hardly the 

vote of confidence for somebody who can be fairly or accurately 

characterized as out of the mainstream. 

Justice Brown, along with her colleagues, also received strong 

support from one of her State’s largest newspapers, the San Francisco Chronicle. As the Chronicle editorialized, ‘‘It takes judges 

with deep respect for the law and a willingness to set aside their 

personal views when making decisions. It takes judges with fearlessness, with a sense of confidence that the right outcome will not 

always be the most popular. Californians have a chance to cast a 

vote for an independent judiciary by retaining Supreme Court justices who have all demonstrated a commitment to sound decisionmaking. If you don’t like the law or if it conflicts with the State 

Constitution, change it. The judiciary’s job is to make sure the laws 

are applied fairly. Brown and her colleagues have approached this 

duty with diligence, and integrity and should be retained.’’ And, indeed, she was. 

I am extremely impressed, Mr. Chairman, by Justice Brown’s extensive record of dutiful public service, but of course there is more 

to Justice Brown than just her resume. Indeed, sometimes during 

the hearings on these nominees, I feel like the nominees become a 

14

symbol or perhaps a caricature, and we fail to recognize that they 

are real, live human beings. 

As a strong, yet modest, person, Justice Brown may not feel comfortable talking openly about her personal life story, but I hope 

that members of the Committee will ask her about it, and I believe 

the Chairman has already alluded to the fact that she was born in 

Alabama as the daughter of sharecroppers. 

She is personally all too familiar with the scourge of racism and 

segregation. She came up of age in the midst of Jim Crow policies 

in the South. She grew up listening to her grandfather’s stories 

about NAACP lawyer, Fred Gray, who defended Dr. Martin Luther 

King, Jr., and Rosa Parks. And her experience as a child of the 

South motivated her desire to become a lawyer and then a judge. 

After her father later joined the Air Force, she became, like me, 

a military brat, traveling with her family from military base to 

military base. I am pleased to observe that her travels included 

several years in the great State of Texas, including childhood stints 

in Fort Worth and in San Antonio, at Lackland Air Force Base, 

where my father was likewise stationed. 

Given Justice Brown’s childhood and life experiences facing racism, I was especially alarmed by what I have seen and what I have 

heard from some of her opponents, and indeed the despicable racist 

cartoon that some of her opponents are using to smear her has already been displayed in this hearing, and I, for one, hope that rather than take it down, we keep that cartoon up during the remainder of this hearing, and I hope we also hear from this Committee 

a denunciation of such low and unworthy tactics, certainly beneath 

the dignity of this body, and I believe beneath any sort of semblance of civilized discourse. 

Some have alleged that Justice Brown singlehandedly dismantled affirmative action in California. As a former State Supreme 

Court justice myself, I can tell you that these critics have no understanding of the law or how judges operate under our system. 

In 1997, California voters amended their State Constitution by 

approving Proposition 209. As you can see on the easel, the California Constitution states in language that you do not have to be 

a lawyer to understand, ‘‘The State shall not discriminate against 

or grant preferential treatment to any individual or group on the 

basis of race in the operation of public employment, public education or public contracting.’’ 

Because of the clear terms of Proposition 209, the United States 

Supreme Court recently noted that in California racial preferences 

in admissions are prohibited by State law. Do Justice Brown’s critics also disagree with Justice O’Connor who authored the opinion 

or Justices Stevens, Souter, Ginsburg and Breyer, who joined her? 

All Justice Brown did was her job. She authored a majority opinion for a unanimous Supreme Court, in forcing the clear terms of 

Proposition 209. Indeed, every single judge involved in the case at 

the trial court, the Court of Appeals, and the Supreme Court 

agreed with her. They agreed that the challenged San Jose program violated the will of the voters as expressed in Proposition 

209. 

Then-Justice Stanley Mosk, the court’s leading liberal, according 

to the San Francisco Chronicle, not only joined Justice Brown’s 

15

opinion, he also wrote his own concurring opinion, stating that I 

agree with the court, with the substance of its analysis and, if anything, I would go farther than it does. 

If critics do not like Justice Brown’s decisions, they should 

change the law, rather than attack her for doing the job that she 

is sworn to do as a judge by faithfully interpreting the intent of 

that law. She is just doing the job that we ask judges to do, not 

as politicians, but as judges. I will quote the San Francisco Chronicle, again. ‘‘If you do not like the law or if it conflicts with the 

State Constitution, change it.’’ But I fear we are attacking the messenger. 

Others have criticized Justice Brown for her willingness to enforce a common-sense law enacted by the California legislature. 

The law would have required parental consent before a minor could 

obtain an abortion, which is similar to laws throughout the country. But the California Supreme Court issued a divided 4 to 3 opinion, invalidating the law. Justice Brown would have deferred to the 

State legislature and enforced the law. She was hardly alone in 

that view, and again then-Justice Stanley Mosk, the court’s leading 

liberal, as called by the San Francisco Chronicle, also voted to uphold the law. 

Indeed, according to a June 2000 Los Angeles poll, 82 percent of 

Americans support parental consent laws, and the year after Justice Brown issued her opinion, the Chronicle published the editorial 

I mentioned earlier. That editorial praised Justice Brown and her 

colleagues and supported her retention election. 

Mr. Chairman, I join others on this Committee and in this body 

in expressing my deep concern about the hostility and destructiveness of the judicial confirmation process. And the Senator from 

Pennsylvania has aptly pointed out we are convicting people for 

certain beliefs, and thoughts and statements before they have even 

had an opportunity for a hearing. 

If this continues much longer, I fear that fine jurists and fine 

human beings, like Justice Brown, will just simply quit accepting 

nominations to the Federal bench, and all Americans will lose as 

a result. 

Senators should vote their conscience, no doubt about it. Every 

judicial nominee deserves a vote on the basis of reasonable criteria 

and the merits, and not on the basis of special interest group politics or other divisive criteria or slanderous racist cartoons such as 

we have seen depicted here. 

I hope this Committee and the Senate will confirm this exceptional judicial nominee, Justice Janice Rogers Brown. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. I appreciate it. 

Justice Brown, would you please rise and raise your right hand. 

Do you swear that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Justice BROWN. I do. 

Chairman HATCH. Thank you. 

Justice Brown, if you would care to, introduce your husband and 

anybody else who you care to introduce, and if you would care to 

make an opening statement, we would love to have it at this time. 

16

STATEMENT OF JUSTICE JANICE BROWN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Justice BROWN. Thank you, Mr. Chairman. It is my pleasure to 

be here. I am honored to come before this Committee, and I am 

anxious. 

I would like to introduce my husband, who is the only actual 

family member who is here with me. His name is Duane Parker. 

Chairman HATCH. Would you please stand, Mr. Parker. We are 

honored to have you with us. 

Justice BROWN. And I would, also—there are many other people 

here who are like family to me, and the proof of that is that even 

though I sternly told them not to attend this hearing, they came 

anyway. I do not want to introduce all of them, but I would like 

to acknowledge a few of them. 

A couple of my attorney staff are here, Susan Sola and Danny 

Chou. 

Chairman HATCH. If you would stand, please. We are honored to 

have you here as well. 

Justice BROWN. And a very dear and long-time friend, Judge Patricia Esgro. 

Chairman HATCH. Judge, we are honored to have you with us. 

Would you care to make any other statement? 

Justice BROWN. I was not going to make an statement, but something has come up that I think I should respond to. 

I was not going to bring up that cartoon, but since a lot of people 

have, there is something that I would like to say. The first thing 

that happened was I talked to my judicial assistant yesterday. Her 

voice sounded very strange, and I said to her, ‘‘What is wrong? 

What is happening?’’ And I realized that she sounded strange because she was choking back tears. And when I asked her what was 

wrong, she really started to cry. She is a very composed, very calm 

woman, and she started to cry, and she said, ‘‘Oh, Judge, these horrible things, you haven’t seen what they’ve done.’’ 

And I, of course, was not there to comfort her. I have been here 

meeting with anybody who would meet with me, but while I have 

been having those meetings, people have said to me, ‘‘Well, you 

know, it’s not personal. It’s just politics. It’s not personal.’’ And I 

just want to say to you that it is personal. It’s very personal to the 

nominees and to the people who care about them. 

I have dealt with hatred and bigotry in my life, and I can’t tell 

you how distressing I find it to see this cartoon, which is intended 

to be so demeaning to a group of black people, and to know that 

it was circulated by other black people. But like the other Senators 

have noted, I have always argued that the First Amendment permits this kind of expression, no matter how offensive, and I haven’t 

changed my mind just because it’s been directed to me. 

I had not seen the cartoon when I was talking to her, and I 

asked my husband, ‘‘Well, what is it? What does it say?’’ 

And he said, ‘‘Well, there’s Colin Powell.’’ 

And I said, ‘‘Colin Powell is in this cartoon?’’ 

And he said, ‘‘Yes, and Condoleezza Rice.’’ 

I said, ‘‘I’m in a cartoon with Colin Powell and Condoleezza Rice? 

Wow. I’m in good company.’’ 

17

So I am going to look at this as an unwitting compliment to me 

and not focus on the vicious motivation for it, and that’s all I wanted to say. 

[The biographical information of Justice Brown follows:]

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Chairman HATCH. Well, thank you so much. We will have 10-

minute rounds, and I will begin. 

You have had some criticism already on some of the cases that 

you have sat in on. You have been on the Supreme Court of the 

State of California for now 10 years, elected by 76 percent of the 

people. Do you have any idea how many cases you have actually 

sat in on or had anything to do with? 

Justice BROWN. Yes, Mr. Chairman. I have been on the California Supreme Court for 7 years. I have been on the bench over 

9 years. But on the California Supreme Court, I have participated 

in something over 750 matters. 

Chairman HATCH. Now, you have been attacked by many groups, 

mainly the usual suspects among liberal special interest groups 

who we have to put up with around here. The Democrats have to 

put up with some of the conservative special interest groups. That 

is just a fact of life, but the way I see it, these liberal groups do 

not like the fact that you rule in accordance with the law, instead 

of in accordance with their particular policy preferences. 

Now, while such opposition has become predictable, it just as 

surely ignores the reality that you are an accomplished judge 

whose record and opinions demonstrate a fidelity in applying the 

law, rather than in indulging your own personal or policy preferences, but your opponents also ignore the cases they would prefer 

that nobody hears about in which you have issued what some 

would consider liberal rulings, in favor of criminal defendants, 

workers, consumers, and environmentalists, if you will. Let me just 

ask you about a few of these cases. 

Did you not dissent from the majority’s approval of a death sentenced in the Visciotti case based on the fact that the defendant 

had not been effectively represented by counsel? 

Justice BROWN. I did, and that is rare, because in every criminal 

case, and certainly in every capital case, there is likely to be a 

claim that there was ineffective assistance of counsel. And it’s rare 

for anybody to take that argument seriously, but in this case I really felt like an argument was made that simply couldn’t be ignored. 

Chairman HATCH. Also, in the Fourth Amendment case, people

v. Woods, you dissented from the majority’s sanctioning of a 

warrantless search because it essentially ignored the constitutional 

rights of a probationer’s roommates; is that right? 

Justice BROWN. That is correct. I have always been a strong proponent of enforcing the Fourth Amendment. 

Chairman HATCH. Right. And then there is your dissent in People v. McKay, which one law professor praised as, ‘‘Required reading for all criminal lawyers.’’ 

In this case, you would have suppressed drug evidence obtained 

from a defendant whose only apparent crime was riding a bicycle 

the wrong way down the street; is that right? 

Justice BROWN. That is correct. That was one of those cases 

which Senator Durbin pointed out, in which I was the lone dissenter, but I was the lone dissenter because it is very clear that 

what was happening here is that these minor traffic infractions 

could actually be used to justify these very broad searches, and I 

argued very strenuously that to give that kind of discretion to law 

44

enforcement was likely to lead to arbitrary and discriminatory enforcement. 

Chairman HATCH. Let me ask you about the People v. Floyd case, 

in which you dissented from the majority’s affirmation of a defendant’s conviction for possession of cocaine. Now, this was, as I understand it, decided in the context of Proposition 36, which California voters approved in 2000, and which required that eligible defendants convicted of nonviolent drug possession offenses receive 

probation conditioned on participation in and completion of an appropriate drug treatment program instead of receiving a prison 

term or probation without drug treatment. 

Now, why did you dissent and advocate a broader, more defendant-friendly reading of the law in that case? 

Justice BROWN. Well, the electorate in that case seems to have 

wanted to provide a broad opportunity for people who were only 

convicted of drug offenses to have this opportunity for rehabilitation rather than to be sent to prison. 

The majority of my court took a very narrow view of who should 

be eligible for participation in these programs, but it seemed to me 

the clear intent of the electorate here was the make the program 

really quite broad. One of the things that was said in the ballot 

pamphlet is that putting defendants into these rehabilitation programs was actually much cheaper than sending people to prison. 

So the money that we had could do much more good by allowing 

people to participate in the drug program. 

Chairman HATCH. You have also ruled against tobacco companies 

in the Nagel v. R.J. Reynolds case. Here, you carefully reviewed a 

State law that granted some degree of protection to tobacco companies from product liability claims and found that the law did not 

bar fraud claims; is that right? 

Justice BROWN. That is correct. 

Chairman HATCH. In Mercado v. Leon, you reversed the trial 

court’s determination and allowed a mother of an injured patient 

to recover for emotional distress even without a showing that the 

doctor’s conduct was outrageous; is that right? 

Justice BROWN. That is true. That had been a limit on the ability 

to recover in those kinds of cases. 

Chairman HATCH. In Hamilton v. Asbestos Corporation, did you 

not author an opinion on a statute of limitations issue that allowed 

an injured plaintiff more time in which to file a personal injury 

claim against various asbestos defendants? 

Justice BROWN. Yes. The question there was when did the statute begin to run in terms of whether you could file the claim. 

Chairman HATCH. In County of Riverside v. Superior Court, did 

you not write an opinion holding that under the Public Safety Officer’s Procedural Bill of Rights, a peace officer is entitled to view adverse comments in his personnel file and file a written response to 

a background investigation of the officer during probationary employment. 

Justice BROWN. That is also correct, Mr. Chairman. 

Chairman HATCH. Okay. And in the 1997 case, Mountain Lion 

Foundation v. Fish and Game Commission, was not your opinion 

again for the court’s majority by the way, described by environmental groups as ‘‘a clear affirmation of strong environmental proVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
45

tection in California,’’ and a reaffirmation of ‘‘the importance of endangered species protection’’; is that right? 

Justice BROWN. I had not heard the comment from the environmental groups, but it was a case that said that the Fish and Game 

Commission had to play by the rules if they were going to remove 

a species from the Endangered Species List. 

Chairman HATCH. So the overall point here is that your opinions 

have fallen on both sides of many public policy issues. 

Justice BROWN. I think that’s true. 

Chairman HATCH. The way I see it, you have applied the light 

equally to litigants in cases that have come before you regardless 

of the policy principles that are at stake. Do you think that is a 

fair characterization? 

Justice BROWN. I think that that is a fair characterization. I 

think that one of the reasons I am eager to have this hearing and 

to discuss what I have done is that I think if my record is fairly 

evaluated no conclusion can be reached except that I do the job the 

way it is supposed to be done, that I am a principled judge, and 

that I am not an idealogue of any persuasion. 

Chairman HATCH. I expect that during the course of this hearing 

we are going to hear much about other cases that you have decision 

during your tenure on the bench. We have already heard some by 

the Senator from Illinois, Senator Durbin, so I felt that it was important at the outset to demonstrate your record of fairness in 

reaching the results the law compels instead of some predetermined outcome, because that is the implication of the criticisms of 

some of these outside groups and maybe even some of our colleagues. But we will undoubtedly hear today, also hear today about 

some of the speeches that you have given in a personal capacity. 

Some may even find some of those speeches or some of the language in those speeches inflammatory, at least that has been the 

accusation. 

So let me ask you this, Justice Brown, right out of the gate. Do 

you understand the distinction between acting as a judge in an official capacity, and are you committed to following the law and not 

injecting your personal opinions in your judicial opinions? 

Justice BROWN. I absolutely understand the difference in roles in 

being a speaker and being a judge. 

Chairman HATCH. Let me, for anyone who still has concerns 

about Justice Brown’s legal philosophy, to her separate opinion in 

the case of Katzberg v. UC Regents, which the Court decided unanimously last November. In this opinion you explained why it was inappropriate for the Court to seek guidance for its decision beyond 

the state constitution and its drafters’ intent, and counseled that 

the Court should, quote, ‘‘remain faithful to its role as the final arbiter of the meaning of our state constitution, and to respect the 

demarcations between the respective branches of government.’’ 

Now, as I view it, this is the antithesis of judicial activism and 

demonstrates a profound respect for the proper role of the courts 

in our constitutional system. Is that correct? 

Justice BROWN. I think that is correct and I think you will see 

many, many decisions in which I have deferred to the legislature 

or argued for separation of powers or for restraint in the judicial 

role. 

46

Chairman HATCH. My time is just about up, but I want to congratulate you for being here. I want to say that knowing you, I 

have really been impressed with your approach towards judging, 

and I am just very honored to be part of this hearing and to have 

you here. 

My time is up. We will turn to Senator Durbin. 

Justice BROWN. Thank you, Mr. Chairman. 

Senator DURBIN. Thank you, Chairman Hatch. Let me say at the 

outset what my colleagues have said. That cartoon is despicable. It 

is outrageous. I am sorry that we are even displaying it in this 

room. It does not deserve that kind of attention. It is beyond our 

condemnation, and I apologize on behalf of all of the members of 

the Committee and everyone in Congress that you and your family 

would be subjected to this. Though I do not know the origin of it, 

it is sad that anyone who comes before us would face that kind of 

criticism and I am sorry that you have experienced this, and I am 

sorry that your friends are feeling your pain in this moment too. 

It is an impossible situation here. We are asked to sit in judgment of a person we have never met, try to judge that person on 

the basis of what they have said and what they have done and try 

to project what they have said and what they have done into some 

kind of a suggestion of what they might do in the future. 

I hope you understand that we do have to ask questions about 

what you have said as a judge. If we are to set you aside and say 

everything is out of bounds, we have to accept the President’s nomination as proof positive that you are ready for the Court, we would 

not be meeting our constitutional responsibility. We have to ask 

probing questions in the hope that the record and the answers will 

give us an indication of who you are and what you really believe. 

There are many who have reviewed the same record that I reviewed and are skeptical as I am about your nomination to this 

D.C. Circuit Court. The Congressional Black Caucus, represented 

by Delegate Eleanor Holmes Norton and Congressman Elijah 

Cummings, and Congressman Conyers, who was here earlier, in a 

rare move took a position against your nomination. I am asking to 

be made part of the record letters from 19 members of the California Congressional Delegation as well as letters from 59 organizations and over 200 law professors, all opposing your nomination. 

Chairman HATCH. Without objection, they will be put in the 

record. 

Senator DURBIN. So there is some controversy attached to this. 

Do you think it is fair for us to ask you what your position is on 

issues based on how you have ruled in past cases and statements 

you have made in speeches? 

Justice BROWN. I certainly think it’s fair, Senator, for you to examine my record and my body of work as a judge. 

Senator DURBIN. I do too. 

Justice BROWN. That’s what’s at issue here. 

Senator DURBIN. Exactly. Is it also fair for us to look for nominees to the D.C. Court of Appeals who are in the mainstream of 

public thought rather than too far to the left or too far to the right? 

Justice BROWN. I really am not sure how to answer that. I don’t 

know what your responsibility is. I wouldn’t try to define it for you. 

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47

stand what the judge’s role is and who do the job, who take every 

case as that case arises, look at the law and the facts and the litigants and what is happening in that particular case and try to 

reach the right answer. That’s the only agenda I have. If that’s the 

kind of judge you’re looking for, I’m that kind of judge. 

Senator DURBIN. Would you say that your political philosophy 

and beliefs are in the mainstream of American political thought? 

Justice BROWN. I don’t—I hesitate to try to say what is the mainstream of American political thought. I think that my judicial decisions are very balanced. 

Senator DURBIN. Let us go specifically to a question that I think 

really gets to the heart of it. You made a speech to the Federalist 

Society at the University of Chicago Law School, something I am 

familiar with, a large chapter. It was a speech in April of 2000, and 

said several things there. I made reference to some of them. You 

called 1937, the year in which President Roosevelt’s New Deal legislation started taking effect, ‘‘the triumph of our own socialist revolution.’’ What do you mean by that? 

Justice BROWN. Well, Senator, what I’m doing there is making a 

speech, and I note that the speeches that have been of most interest to people are the ones that I have made to younger audiences, 

to law students. And in making a speech to that kind of audience, 

I’m really trying to stir the pot a little bit, to get people to think, 

to challenge them a little bit, and so that’s what that speech is designed to do. 

But I don’t—I do recognize the difference in the role between 

speaking and being a judge. 

Senator DURBIN. We all understand, as public speakers, that 

sometimes you want to be provocative, but I want to know if you 

believe that. Do you think that the Franklin Roosevelt New Deal 

was the beginning of a socialist revolution in America? 

Justice BROWN. I don’t think that—I think the speech has to be 

taken as a whole. Now, I understand that my—you know, my 

speeches are maybe not the greatest. I don’t have a speech writer 

and I do these things myself, and I have a demanding day job so 

I often don’t have a lot of time to do them, but I think the speech 

speaks for itself, and I tried to set it in context. 

Senator DURBIN. Let us go to another part of the speech then. 

Are you familiar with the Lochner decision? 

Justice BROWN. Yes, I am. 

Senator DURBIN. This is a decision where the Supreme Court basically struck down a Massachusetts law that was establishing 

standards when it came to the work regulations of those in the 

baking industry. It was a limitation on exploitation of labor. This 

Lochner decision has been referred to over and over again as a 

seminal decision as to the Supreme Court going too far in striking 

down state and local regulation to protect, in this case, workers. 

You stated that you felt the dissent in the Lochner case by Justice 

Holmes was wrong in this speech that you made in Chicago. So 

again, I have to ask you, were you trying to be provocative or do 

you really believe that? 

Justice BROWN. Well, Senator, I have, in my opinions, said that 

to the extent the Lochner court was using the due process clause 

as a sort of blank check to write anything they wanted into the 

48

Constitution, they were justly criticized. And I have in other opinions spoken approvingly of Justice Holmes’ general attitude of deference toward the legislature because I agree strongly with that. 

The particular issue there that I was trying to focus on was simply the implication in his footnote that the Constitution really 

takes no view of economic liberties. So it was that that I was looking at. 

Senator DURBIN. Justice Brown, that puts you in a very, very 

limited group of people who have come before this Committee seeking a judicial appointment. Justice Bork has been critical of the 

Lochner decision. Chairman Hatch has been critical of the Lochner

decision. 

Chairman HATCH. Almost everybody has. 

Senator DURBIN. Almost everyone has, and yet you seem to argue 

here that—let me quote you directly here—in your words, quote: ‘‘It 

dawned on me that the problem may not be judicial activism. The 

problem may be the world view, amounting to altered political and 

social consciousness out of which judges now fashion their judicial 

decisions.’’ End of quote. 

You seem to be suggesting—and I want to hear your explanation 

here—that when the Supreme Court ruled that Massachusetts was 

wrong in limiting exploitation of labor, that they were espousing an 

economic point of view that they have no business espousing, and 

that those who were critical of it were also espousing an economic 

view. Where do you come down on this? 

Justice BROWN. No, Senator. I hope that I didn’t— 

Senator DURBIN. I am sorry. I have been saying Massachusetts. 

This is New York. I stand corrected. 

Justice BROWN. I think that my response was misunderstood. 

What I said was I have, in my own decision, said that the Lochner

court was justly criticized to the extent that they were using the 

due process clause to insert their personal political views, and so 

when I say that I was responding to his implication, I’m really 

talking about the dichotomy that eventually develops where economic liberty, property, is put on a different level than political liberties. So that was my focus there. 

And I don’t think that that idea is out of the mainstream at all. 

I think there are very many commentators who say, you know, 

there doesn’t seem to be a basis for having created this dichotomy. 

And in fact, the Court itself, in more recent cases has actually said, 

you know, maybe that idea doesn’t really work, and there’s no 

grammatical basis for saying we ought to treat these differently. 

Senator DURBIN. I see my time is about up and I see other colleagues here. We will have another round. Thank you. 

Chairman HATCH. Thank you. Well, as you can see, she criticized 

Lochner like all the rest of us. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Justice Brown, in the case of American Academy of Pediatrics v. 

Lundgren, either dissented from the decision of the Court, a 4–3 

decision, where the Supreme Court of California held that the California court imposed a higher standard on privacy. This involved 

a case where the issue was of a parental consent or judicial bypass 

for the abortion of a minor. I have made an inquiry as to whether 

49

other decisions of yours involved the abortion issue. Is this the only 

decision? That is the only one I have been able to locate with my 

staff and Committee staff. 

Justice BROWN. This is the only time that particular issue has 

come before our court. 

Senator SPECTER. The only time. Is it not true that the California 

Constitution can impose a more rigid standard on privacy? You cite 

in your opinion decisions by the Supreme Court of the United 

States, and you enumerate justices who have upheld the constitutionality of parental consent or judicial bypass, but is it not true 

that the California Constitution can impose a more rigorous standard on privacy which would render that statute unconstitutional? 

Justice BROWN. Well, obviously, I did not think so, Senator. I 

guess I should start by saying that this particular case had come 

before our court before, and shortly before I was appointed to that 

court, the court had looked at the same issue, had looked at this 

exact same law, and by a 4–3 decision had said that the law did 

not violate privacy rights under the California Constitution. 

Senator SPECTER. Justice Brown, my question is a narrow one, 

as to whether the California Constitution cannot impose a more 

rigid standard on privacy. 

Justice BROWN. Well, as to that specific question I think the answer is no. 

Senator SPECTER. The California Constitution cannot impose a 

more rigid standard on privacy than the U.S. Constitution? 

Justice BROWN. Well, let me explain, Senator. The California 

Constitution does actually include the word ‘‘privacy,’’ which is not 

expressed in the U.S. Constitution, so perhaps an argument could 

be made that, you know, something different was intended. But 

when you go back and look at the legislative history, you know, the 

discussion about that provision, what they cite to is actually Griswold. So the argument is that it appears that all they were trying 

to do was make, express what the U.S. Supreme Court had decided 

in terms of privacy. 

Senator SPECTER. I believe a State may have a Constitution 

which has a more rigid standard. You can justify your opinion on 

the ground, and you go into it in some detail, but you did not think 

the California Constitution meant that. 

Let me move on to the case of Hi-Voltage v. San Jose, where you 

invalidated affirmative action which was taken under a statute on 

the ground that California Proposition 209 provides that the State 

shall not grant preferential treatment on the basis of race, sex, 

color, ethnicity or national origin. But is not the California Constitution on Proposition 209 subordinate to the Equal Protection 

Clause of the 14th Amendment so long as there is a compelling 

State interest and the issue is narrowly tailored to address an 

identified remedial need? 

Justice BROWN. Well, if you’re asking whether a State would be 

precluded from having a higher standard, I don’t think so. I mean 

the U.S. Supreme Court has recognized that in fact in California 

that prohibition obtains. 

Senator SPECTER. Does not the Supremacy Clause of the Constitution mean that the equal protection of the 14th Amendment 

trumps California Proposition 209? 

50

Justice BROWN. Doesn’t the Supremacy Clause mean that? 

Senator SPECTER. Yes. 

Justice BROWN. Well, the U.S. Supreme Court has not said that. 

Senator SPECTER. I am not sure whether they have said it or not. 

Maybe they have not had it presented, but the State cannot have 

a constitutional provision which conflicts with a U.S. constitutional 

provision, can it? 

Justice BROWN. I think that—and I have to admit that this is not 

the issue that was before us in that case, and so this is not an 

issue that I have looked at in detail. 

Senator SPECTER. You may say that the program did not meet 

the equal protection clause of a compelling state interest or was 

narrowly tailored to address an identifiable remedial need, but I do 

not think that you can just base the conclusion on Proposition 209 

when it conflicts with the Equal Protection Clause. 

Justice BROWN. Well, since that was not the question that was 

presented to us, and the question was only whether the program 

of the city of San Jose violated the California Constitution, I just 

have to say it’s not an issue that I’ve looked at. 

Senator SPECTER. Was the San Jose provision addressing a compelling state interest? I am going back to the 14th Amendment. 

The question is whether it was addressing a compelling state interest and was sufficiently narrowly tailored because if it satisfies the 

Equal Protection Clause of the 14th Amendment, would that not 

prevail over Proposition 209? 

Justice BROWN. I don’t know if it would or not, Senator, because 

the only case that we have that I can think of that focuses on this 

is the recent case of the U.S. Supreme Court, and it’s focusing on 

universities, and its analysis is fairly specific to diversity in that 

context. 

Senator SPECTER. Let me move now to Aguilar v. Avis on the 

prior restraint case, which involved the issue of verbal harassment 

sufficiently pervasive so as to create an abusive working environment. And in your opinion you said, among other things, quote: 

‘‘Plaintiffs should not be subjected to racial invectives in the workplace,’’ close quote. But then you found that the remedy of damages 

was sufficient, and that an injunction would be inappropriate as a 

prior restraint. The question in my mind is whether this verbal 

abuse and these racial slurs, do they constitute fighting words? 

I have not recently reviewed Justice Murphy’s opinion, but my 

recollection is that there is some language that the right of freedom 

of speech ends at the end of someone’s nose, and that fighting 

words are not constitutionally protected. Would these racial slurs 

be tantamount to fighting words? 

Justice BROWN. I don’t know that any finding of that kind was 

made by the lower court here. It was—a decision was made that 

this was pervasive enough that it created a hostile work environment, and that’s how the case was analyzed. And so my concern 

was with the content based prior restraint, which under the precedents of the U.S. Supreme Court is something that is done very, 

very rarely if ever, and even in extremely sensitive situations such 

as national security, the U.S. Supreme Court has said that’s not 

appropriate. 

51

Senator SPECTER. Would you have to have a finding by the lower 

court if they were fighting words for you to consider the specific 

language which was before your appellate court to make a determination as to whether they were fighting words and therefore outside of the ambit of First Amendment protection? 

Justice BROWN. Well, I think that generally the court would look 

at the record that comes up to it and what the court below was actually deciding, and that’s what we did in this case. 

Senator SPECTER. Justice Brown, I had commented in my statement about a number of your opinions on a very broad interpretation of the Fourth Amendment, which I found commendable in 

finding unreasonable searches and seizures and invalidating convictions, but also on the inadequacy of counsel in the Visciotti case, 

and you dissented on a death case there. 

The one other case I want to ask you about in the limited time 

is People v. McKay, where a person was arrested for the infraction 

of riding his bicycle in the wrong direction on a residential street, 

and after he failed to produce a driver’s license pursuant to a California statute, he was arrested and searched. You made a finding 

that you suspected racial profiling may have been a factor in the 

arrest, and thought that the search and seizure was inappropriate. 

It sounds a lot like the stop and frisk cases of the mid 1960’s when 

the Supreme Court changed the rule of search and seizure for temporary stops and frisking. But I am struck by your words ‘‘suspected that racial profiling may have been a factor.’’ Did you have 

an evidentiary base for thinking that racial profiling was there? If 

it was, obviously it is insidious and ought to be stricken, but do you 

recollect? 

Chairman HATCH. Senator, your time is up. 

But answer the question, if you will, Justice. 

Justice BROWN. Senator, as I recall, there was no testimony concerning that. 

Senator SPECTER. Thank you very much, Justice Brown. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Specter. 

Senator Kennedy. 

Senator KENNEDY. Thank you very much. 

Justice Brown, as others have stated, all of us deplore the kind 

of cartoon that is displayed here and all that it suggests. I have 

been on this Committee for some number of years, since I have 

been in the Senate, and we have really been free from this kind 

of activity, suggesting, and I must say in more recent times some 

of these kinds of suggestions have been raised. But it has no place 

anyplace in our society, and particularly not here associated with 

you. 

I am very concerned about your statements that you have made 

in your speeches which are highly critical of the role of Government. This is particularly important because if you are confirmed 

you are going to sit on the D.C. Circuit, whose job is primarily to 

review the governmental actions. And to mention again in your 

speech at the Federalist Society, you stated, ‘‘Where Government 

moves in, communities retreat, civil societies disintegrate, our ability to control our own destiny atrophies. The result is families 

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52

erty, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility, the triumph of deceit. The result is a 

debased, debauched culture which finds moral depravity entertaining and virtue contemptible.’’ 

That is in the Federalist speech on April 20th. 

Then in the 1999 speech at Claremont McKinney College you 

stated, ‘‘Where Government advances, it advances relentlessly, 

freedom is imperiled, community impoverished, religion 

marginalized, civilization itself jeopardized.’’ 

Now, the D.C. Circuit Court has the very special jurisdiction, National Labor Relations Board, how workers are going to be treated, 

whether they are going to be able to have their rights represented 

in the workplace. You have OSHA as a result—and many people 

are against OSHA—but since the time of passing of OSHA we have 

cut in half the number of deaths as a result in the workplace in 

our country over the period of the last 30 odd years. That is OSHA, 

and it continues to be out there, trying to protect workers in the 

workplace. You have the endangered species area. You have a 

whole range of Environmental Protection Acts, the Clean Air, the 

Clean Water Acts, real implications in terms of communities. I 

could take you up to Woburn, Massachusetts, where Civic Action, the book and the movie was written about, that 12 children died 

from poisons that were put into the water because people dumped 

into a site just north of that community, and the water came down 

deep in the seepage and came into wells that were being used within that community. 

These issues have real implication for real people, and they are 

Government, Government, Government action, that are out there 

to protect people. 

My question to you, how in the world can anyone whose rights 

are being represented and protected by these organizations have 

any confidence with how you will rule in the D.C. Circuit when you 

have taken these positions which are clear from the reading and 

your testimony, have such a despicable attitude towards what Government and Government institutions can do? 

Justice BROWN. Well, Senator, I think they can have absolute 

confidence. I think if you review my record and the way that I have 

ruled as a Judge, you could have absolute confidence as well. I 

don’t hate Government. I am part of Government. I have been a 

public servant for 99 percent of my professional career. I know that 

there are some things that only Government can do, some things 

that would not get done unless Government does it. So I can implement the law. I have been doing that. 

Senator KENNEDY. The reason we raise it is because of these 

other statements about your attitude towards—and there are people that have that view. I respect that. I mean I respect it. I differ 

with it. I think there are legitimate roles and there are other 

places where it should not be, but there are legitimate areas where 

we have seen where Government has not taken action where there 

has been extraordinary exploitation. You see it with regards to 

stockholders in the WorldCom or you see it with regards to pension 

rights, how they have been thrown over the side when you do not 

have some protections. You see it with the Government role—NIH 

is a governmental agency, National Institute, cancer research, govVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
53

ernmental agency. And your hostility is to extraordinary in these 

kinds of statements, I was just again startled by the strength. It 

was not just one speech. It was not just even a phrase that my colleague pulled out about Franklin Roosevelt and socialism. I am not 

just taking one comment about the definition of Government or 

even one speech but several. 

Justice BROWN. I understand what you are saying, Senator, so I 

want to do everything I can to assure you that I understand that 

Government can have a very positive role and that there are very 

beneficial things that Government can do. We all, I think, respond 

and speak out of our experiences and out of the things that move 

us and that concern us. And so what I am talking about there is 

really where the Government takes over the roles that we used to 

do as neighbors and as communities and as churches. I think it is 

important for us to preserve civil society, but I am not saying there 

is no role for Government. 

Senator KENNEDY. Well, I am not sure that that comes through 

as clearly as you have stated it here. Let me go to an issue regarding the racial slurs and the unlawful harassment. In your record 

concerning your cases in the area of employment discrimination, I 

would like to ask you about your decisions in that area. The Supreme Court, as you know, has held that verbal harassment violates Federal job discrimination laws based on sex or race and if 

it is so extreme that it creates a hostile work environment. And 

that was something that was recognized in 1991 on the Civil 

Rights Act, which I was the principal sponsor of, Title VII. This is 

what was in the report in Title VII, which was particularly concerned with providing remedies to victims of harassment and specifically discussed verbal harassment and other harassment that 

might be considered in speech. 

Let me read you some of the examples that we wrote in Title VII. 

In the House report, James Williams suffered through racial slurs, 

jokes, pranks, such as the posting of a Ku Klux Klan application 

on the company bulletin board in an oppressively racist work environment. 

The legislative history shows Ramona Arnold, a female police officer, suffered when, among other things, sexual pictures with her 

name written on them and posted around the station house, signs 

saying, ‘‘Do women make good police officers? No.’’ were posted 

around the station house and on her supervisor’s car. 

Rodney Consten, a millwright, got along well until he used antiSemitic references on this. All this spelled out with regards to the 

verbal harassment. 

Then we came to the situation in the Aguilar Avis case with 

which you are familiar. You wrote a dissent arguing the First 

Amendment prevented the court from ordering a supervisor not to 

use racial slurs in the workplace. You reached this conclusion even 

though a jury found that the same supervisor harassed Latino 

workers by calling them racially derogatory names. Apparently, in 

your view, it did not matter that the trial judge found that a court 

was probably the only way to make harassers stop using these 

slurs. 

In your dissent, you acknowledged the Supreme Court had held 

that verbal harassment based on race or sex is unlawful, but you 

54

question whether the Supreme Court’s opinion is consistent with 

the First Amendment. Your dissent in this case was not limited to 

California law. You went so far as to suggest that the First Amendment prevents courts from prohibiting verbal harassment under 

Title VII of the Civil Rights Act of 1964, the Federal law against 

job discrimination based on race, sex, national origin, and color discrimination. 

You recognized that there were remedies, remedies for damages. 

But how are we going to expect a worker that may be successful 

and is told, if your position holds, that if they go back into that 

workplace and they continue to be harassed, harassed, harassed 

with these verbal remarks, they can come back in court tomorrow 

and get another judgment in damages? How does that possibly advance the cause of justice and fulfill what we were trying to do to 

deal with this kind of verbal harassment in the civil rights laws? 

Justice BROWN. Well, Senator, let me say that I absolutely agree 

with you that no one should be subjected to this kind of harassment, to verbal slurs. I couldn’t agree with you more, and as someone who has been on the receiving end of that kind of conduct, you 

have my wholehearted support in terms of saying we have to do 

something about that. And we have, and all that I was saying in 

that case is that the damages remedy is a deterrent. I think that 

damages in this particular case would be totally effective because 

you are dealing with this corporation that is not going to want to 

go through this continually and which, if they don’t respond, will 

actually be probably looking at punitive damages. 

So the only question really that was open there was whether you 

had to go further to this content-based prior restraint, which I 

think is really a problem under the First Amendment. 

If there were no other way, then, you know, maybe it would 

weigh the other way. But here I think there was an adequate deterrent, and I think probably money damages is more of a deterrent. 

Senator KENNEDY. Well, my time is up, but what you are basically saying is that he goes back to work and has to file another 

case, and another case and another case and another case and another case. How many of these—and go through all of the costs of 

litigation that comes with that rather than just having what we 

were very clear in the 1991 Act? You mentioned earlier you read 

and value legislative history as very clear in what we were trying 

to do in Title VII in 1991. We used these illustrations time and 

time again in that report, exactly what we were trying to do. I am 

just disappointed at the fact that that part you found as a dissenter 

unable to follow. 

Justice BROWN. Well, I think these are difficult cases, Senator, 

because there are countervailing interests, and there were a number of other judges on my court who also expressed the same concern about a prior restraint. 

Senator KENNEDY. Well, I think you were in the minority on this, 

were you not? 

Justice BROWN. Well, I was in the minority, but I was not alone. 

Chairman HATCH. Senator, your time is up. 

Senator Craig? 

Senator CRAIG. Thank you very much, Mr. Chairman. 

55

Justice Brown, we have not met. I am looking forward to that. 

I am one of the few on this Committee who is a non-lawyer, so I 

will not dwell a great deal on different cases or decisions you have 

made. I am extremely interested, though, in the character of the 

person because we all seek to have in these high courts people of 

outstanding integrity, who believe in our Constitution, and who 

recognize its importance as the foundation of our Government. 

I am reading a quote from a national organization that happens 

to think quite highly of you when they say that, ‘‘Justice Brown 

represents the very best in American legal life,’’ I think you probably also represent the very best in American life. ‘‘A woman of impeccable character and unimpeachable integrity, she overcame any 

challenges on her past to a seat on the highest court of America’s 

largest State. Her dedication to upholding the Constitution is 

clear,’’ and so far today it is obviously that and becoming more 

clear. 

‘‘She has shown unfailing dedication to the rule of law, even in 

cases where it led her to conclusions with which many disagreed.’’ 

I think the discourse with the Senator from Massachusetts in the 

last few minutes might suggest some of that. 

‘‘Her record is one of moderation and excellence in protecting racial equality, defending civil and constitutional rights, safeguarding 

the right to free speech’’—I believe we have just discussed that a 

bit—‘‘protecting the right of consumers and being fair to criminal 

defendants. Most importantly, her intelligence and thoughtfulness 

are a perfect fit for the D.C. Circuit, a court that has attracted the 

best and the brightest in our legal tradition.’’ 

That is a pretty outstanding statement and recommendation. So 

the question then is: Are you qualified? 

Justice BROWN. I was afraid you were going to ask me if I disagreed with that. 

Senator CRAIG. No, I am not going to do that. 

[Laughter.] 

Senator CRAIG. But the question is and we are to seek out 

whether you are qualified. One Senator from Illinois suggested that 

the ABA suggested you were not qualified. Let the record show 

that a minority of that Committee said you were not qualified. A 

majority said you were qualified. 

In fact, I find it interesting that when the ABA meets—I have 

found it fascinating over the years to watch us use ABA ratings. 

If you agree with them, they are great. If you disagree with them, 

it is a bunch of lousy lawyers who got together and who had all 

the wrong opinions about a certain subject, and in this case an individual qualified to be a judge. 

If the Committee of the ABA has been unanimous in its rating, 

the Chair so states; otherwise, the Chair discloses that the nominee 

received the specific rating for a majority and a substantial minority of the committee, noting that a minority gave the nominee another rating. In other words, so stated as the Committee reacts. 

The majority rating is the official rating of the committee. ABA’s 

official rating of you is qualified. That is what this Committee 

record ought to show, not to slide in in an opening comment that 

somehow the ABA found you unqualified. 

56

Miguel Estrada, unanimously well qualified. Well, nobody spoke 

of that here except those who supported him. It was not used as 

a tool of argument. 

Priscilla Owen, unanimously well qualified; Pryor, substantial 

majority, qualified. 

Oh, what games we play. 

Mr. Chairman, in searching out why—let me see if I can find 

what I am interested in here—why a cartoon of the kind that has 

appeared in a liberal newspaper would characterize you as such, 

here is the only thing I can find, and this is from a national columnist, and he says, ‘‘What really scares the left about Janice Rogers Brown is that she has guts as well as brains. They haven’t been 

able to get her to weaken or to waver. Character assassination is 

all they have left.’’ 

Let’s talk about your character. Tell me about your mother and 

the influence she and your father had on you. I suspect that down 

deep there stands a foundation. Would you please? 

Justice BROWN. Well, thank you, Senator, for giving me the opportunity to respond. I am not a person that talks much about my 

personal life, but you are right. There is a foundation, and it is a 

strong one. I come from a very loving, supportive family, but a family that I guess is a little bit firm and stern in the way they look 

at life and— 

Senator CRAIG. Disciplined? 

Justice BROWN. —personal responsibility. If my family had a 

motto, it would be, ‘‘Don’t snivel.’’ So that is what I grew up with. 

The greatest influence probably on me was my grandmother, perhaps both of my grandmothers, who were themselves very strong 

women, of somewhat limited education but very bright women, 

very determined women. And my grandmother on my father’s side 

probably was the person who in my early life really shaped the 

character that I have. She was a woman who did not suffer fools 

gladly, someone who had a very, very strong sense of herself as a 

person and of her dignity. She taught me when I was very little 

that there are some things that you have to submit to. I grew up 

in an era when everything was segregated, and so she would say, 

well, you have to go to a school that’s segregated because you must 

get an education, and you have to go to a hospital if you are sick, 

and if it’s segregated, you don’t have any choice. But about those 

things where you have a choice, you will not do that. You will not 

go in the back door of movie theaters. You will not go in the back 

door of the bus station. You will not go in the back door of a place 

to eat. 

And so this was her attitude, that you have to deal with what 

you have to deal with. You can be bowed but not broken unless you 

allow people to do that to you. 

We had a very clear sense of right and wrong in the family in 

which I grew up. We had a very strong work ethic. And so that is 

kind of what I was raised—a very deep faith that is part of your 

life and that your life is supposed to reflect that you are a person 

of faith. And I remember a conversation that I had with her, and 

I was very young and I don’t know why we had this conversation. 

But she said, you know, there are no menial jobs. You do whatever 

you need to do to take care of your family. But you do that job the 

57

best you can, and someday when you go on to something better—

and you will—they should say about you 10 years later, That Janice, she was the best dishwasher we ever had. 

So her attitude was, whatever you do, be a legend. So that’s kind 

of my background. 

Senator CRAIG. Is that grandmother still alive? 

Justice BROWN. She is not. I wish she was. 

Senator CRAIG. I wish she were, too. 

Justice BROWN. But I know she’s here in spirit. 

Senator CRAIG. She obviously would be and I am sure is very, 

very proud of you. Thank you. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

Justice Brown, thank you very much for the time you spent with 

me yesterday. I appreciated it, and I thought a lot about it. And 

I have reviewed some more of your opinions. I have reviewed all 

your speeches going back to 1993. And the conclusion I come to 

from the speeches is that they are extraordinary for a sitting justice to make when you are an appellate court justice as well as a 

Supreme Court Justice, that your views are stark. So the question 

I have: Is that the real you? Will that be the you as an appellate 

court justice on the most important circuit in the land? And how 

can I depend on the fact that you are going to disassociate yourself 

from these views and follow the law? 

So I thought, well, let me take a look at some of her opinions on 

stare decisis, and let me begin by saying I was always very impressed with something Alexander Hamilton said in the 78th Federalist Paper, and that is, ‘‘To avoid an arbitrary discretion in the 

courts, it’s indispensable that they should be bound down by strict 

rules and precedent.’’ And, generally, when we have a judge before 

us, I cannot remember us really confirming anybody that did not 

say they would strongly agree to abide by precedent. 

But when I reviewed your cases, I found that in many respects 

you openly flouted precedent, and let me give you some examples: 

Kasky v. Nike, Stop Youth Addiction v. Lucky Stores, Green v. 

Raley Engineering, and People v. McKay. And here is what you said 

in those cases. 

In People v. Williams, you argued that you were ‘‘disinclined to 

perpetuate dubious law for no better reason than it exists.’’ 

In Kasky v. Nike, you argued for overturning precedent related 

to the definition of commercial speech because it didn’t take into 

account the ‘‘realities of the modern world.’’ 

In People v. McKay, you argued against existing precedent. You 

argued that, ‘‘If our hands really are tied, it behooves us to gnaw 

through the ropes.’’ 

Now, there are questions of great constitutional import that come 

before the D.C. Circuit. If I combine these opinions with your rather stark personal philosophy and the words you have used in 

speeches for 10 years now, how can I depend on you, A, following 

precedent, carrying out the doctrine of stare decisis, and giving 

people just simply a fair shake when you have a whole litany of 

58

these statements which, for a judge, are extraordinary intemperate 

to be making? 

Justice BROWN. Well, Senator Feinstein, I thank you for the 

question and I thank you for your time yesterday. 

Senator FEINSTEIN. You are welcome. 

Justice BROWN. I really appreciated having an opportunity to 

talk with you. I actually thought it was an interesting conversation. 

Let me respond to your question first by taking issue with the 

characterization that my speeches are intemperate. I may speak in 

a very straightforward way. I am very candid, and sometimes I am 

passionate about what I believe in. But often I am talking about 

the Constitution, and what is being reflected in those speeches is 

that I am passionately devoted to the ideals on which I think this 

country is founded. And I try to get people to recognize how important that is. 

Senator FEINSTEIN. Then you would say that the quote which I 

read to you yesterday—and I will just read one part today—on 

Government is that ‘‘the result of Government is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible,’’ you really believe that? 

Justice BROWN. Well, as we discussed yesterday, I am myself 

part of Government. I think that there are many things that Government does well, many things that only Government can do. But 

I’m referring there to the unintended consequences of some things 

that Government does. But I would really like to go back and respond to the specific cases. 

You take issue with the fact that I sometimes chide the court or 

sometimes suggest to the court that we should review prior precedent. I do that. I don’t think that’s something that a judge should 

not do. But I think you have to recognize that the roles may be different. If you are part of an intermediate appellate court, you are 

bound by precedent. Whenever that precedent is clearly on point, 

you have no choice about that. I have been a member of an intermediate appellate court, and I have been bound by precedent, and 

I have lived within that precedent. 

When I was a member of the Third District Court of Appeal, I 

wrote more than 150 opinions, only three, I think, separate opinions, and only two dissents. There was nothing for me to talk about 

because, to the extent this was controlled by a higher court, it was 

controlled by a higher court. I did exactly follow that precedent. 

The role of a Supreme Court, a court of last resort, I think is different, because except for the U.S. Supreme Court, there is no one 

to rethink what we do. And so it is the court itself which has to 

decide whether they need to think differently about some precedent 

that they have laid down. 

I think it is perfectly appropriate, even if you are on an intermediate appellate court, to say this is the decision that I come to 

because I am bound by this precedent, but I think the court ought 

to take a look at this because it is not now working well. 

So two things are going in these cases. In Kasky v. Nike, I’m acknowledging that there is a line of precedent that the Supreme 

Court has laid down, that we are bound by that, but I’m saying to 

the court, Perhaps you ought to rethink this because times have 

59

changed and perhaps it is not working very well. And I think that 

is a perfectly legitimate position for a lower court judge to take, 

and it doesn’t mean that you flouting precedent. 

Now, in the Stop Youth Addiction case, that was really a different kind of problem because that was our case. The reason that 

I have such a problem with 17–200 and these particular statutes 

is they have no standing requirement. And because they don’t and 

because mostly of the way the court has interpreted the language, 

it is not here a legislative problem. In fact, at the point that I did 

the Stop Youth case, there had been a very recent report from the 

Law Revision Commission that said the court’s interpretation in 

these cases has created a problem because the interpretation has 

been so broad that we have this separation of powers problem, we 

have a due process problem. 

So I was talking to my colleagues on my court, saying we have 

perhaps created this problem, and if you’ve been keeping track of 

what’s going on in California, you know there has been a very heated debate about 17–200 and whether it needs to be fixed and what 

the problems are. And those problems flow from that broad interpretation. 

So there, again, I think I was doing what a judge should do, 

which is saying to my colleagues, you know, we have made this decision, we have this long line of decisions, but when we see what 

the result of it is, maybe we need to think again about what we 

were doing. 

Green v. Raley Engineering, I’ll probably get in trouble here because I don’t remember that case very specifically. But I think that 

what was going on there was the expansion of a Tammany claim. 

That is a common law claim that the California courts basically invented, saying if you are fired for some reason that violates public 

policy, you may have a cause of action. Even if you have no statutory claims of any kind, you may have a common law cause of action. But the court, when it created that remedy, said we are only 

filling in gaps. You know, we have done this so that where there 

is no remedy, there is no law, and somebody is in this situation, 

they can have a remedy. 

And so I often have a disagreement with my colleagues because 

I’m saying to them, You said this measure was for the gaps, and 

yet you are constantly expanding it. And we also said we won’t find 

public policy. We won’t just go out there and invent it. We will only 

find that there’s a violation of public policy where it’s tethered to 

either the Constitution or some statute, so that we’re deferring to 

the legislature, not just inventing it. But then we constantly expand it. 

So those are the kinds of discussions that I’m having with my 

colleagues in those particular cases. 

Senator FEINSTEIN. What would be your position on stare decisis 

then as an appellate court judge in the Federal system? 

Justice BROWN. Well, as an intermediate—a judge on an intermediate appellate court, I would follow binding precedent. I absolutely have demonstrated that I will do that. 

Senator FEINSTEIN. Okay. Because takings cases perhaps will 

come before you in one way or another, and we discussed your dissenting opinion yesterday in San Remo v. San Francisco—and for 

60

those that don’t know, this was a challenge to a city ordinance, and 

what the ordinance said is that in order to transition a hotel from 

residential use to transient use, the owner of the hotel would have 

to pay a fee, which could then be used to help people that were 

transitioned find other housing. The city has a short housing supply, and I think everybody knows the rest of that. 

The plaintiffs apparently claimed that the ordinance amounted to 

unlawful takings of their property. You agreed with them and said, 

in short, this ordinance is not a matter of officially organizing the 

uses of private property for the common advantage; instead, it is 

expressly designed to shift wealth from one group to another by the 

raw exercise of political power; and as such, it is a per se taking 

requiring compensation. 

Now, the majority said in response to your opinion, however 

strongly and sincerely the dissenting justice may believe that Government should regulate property only through rules that the affected owners would agree indirectly enhance the value of their 

properties, nothing in the law of takings would justify an appointed 

judiciary in imposing that or any other personal theory of political 

economy on the people of a democratic state, which kind of gets to 

my point. Would you impose your personal opinion, as the majority 

said you were doing in this case, on the people of a democratically 

elected country? 

Chairman HATCH. Senator, your time is up, but answer the question. 

Senator FEINSTEIN. Thank you. 

Justice BROWN. Senator, I thank you for the question. Let me 

say, first of all, that I have great sympathy for the idea that there 

is a great need for low-income housing in San Francisco. I myself 

can’t afford to live there, so I can understand that the city has a 

need and a problem that it needs to solve. 

Let me say that, despite the majority’s characterization of what 

I was saying there, I was not suggesting that any appointed judiciary should impose its political view. What I was saying is that 

there is an express prohibition in the Constitution, both U.S. and 

California, that says however beneficial the purposes for which 

Government is doing whatever it’s doing, it cannot do it by taking 

private property without paying just compensation. 

So I think the minority’s characterization there is just flatly 

wrong. 

Senator FEINSTEIN. How is this taking private property? No one 

was taking the property away from the owner. The owner wanted 

to change the nature of the property from residential to transient. 

How is this removing, how is this a taking? 

Justice BROWN. Excuse me for interrupting you, Senator. This is 

a taking because what is really happening here is the city is saying, as a property owner, you still have the property, that is, you 

have nominal ownership, but if you want to do something with the 

property, you basically have to ransom it back from us. You have 

to pay us to get that use back. 

And I think the best example of this, because it was very interesting to me at the oral argument in this case, I said to the attorney who was arguing for the city, could you, because there is traffic 

congestion in San Francisco, and you want to get people off the 

61

highways and make the traffic congestion go away, could you tell 

me that I have to use my car, and during certain hours, I have to 

pick up someone from the casual car pool as a way of dealing with 

traffic congestion? 

To which he said—I said, Would that be a taking? 

He said, Oh, no, that would just be a regulation of use. 

So, I mean, I think it’s obvious, when you make it some other 

kind of commodity, like a vehicle, what’s happening here. And to 

me it was very clear. And I think that what I’ve said was very consistent with some of the Supreme Court decisions that have come 

down in the last 15 years, like Dolan and Nolan. Senator FEINSTEIN. Thank you, Mr. Chairman. 

Chairman HATCH. Senator Leahy? 

Senator LEAHY. Thank you, Mr. Chairman. 

Justice Brown, I know you have been asked about this, and I am 

not going to ask you about your speech to the Federalist Society. 

But I was struck by it. To put this in context, I live in a town of 

1,200 people. It is about five miles from where I was born in 

Vermont, a beautiful, beautiful spot. The Government of it is a basically volunteer Select Board. They make sure there is school for 

the children, whether it is police protection or fire protection or the 

roads—I live on a dirt road, but whatever—any of the roads that 

are paved. 

When I read your Federalist Society speech, where you say 

‘‘where Government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. 

The result is families under siege, war in the streets, precipitous 

decline of the rule of law, the rapid rise of corruption, the loss of 

civility, the triumph of deceit.’’ You may not be surprised that 

when I mentioned this to members of the Select Board they say, 

‘‘That is us? We are working here for nothing trying to get this 

through.’’ 

I just mention that you can see why some may feel that, contrary 

to your view, not all Governments in the United States of America 

are corrupt, deceitful or encouraging war in the streets. 

On another question, you state that you are a firmly committed 

to the notion of judiciary restraint, but in Lane v. Hughes Aircraft, you said that creativity was a permissible judicial practice. All 

judges make law. I would think that creative lawmaking was the 

provence of whatever the legislative body is. 

So which branch of Government do you think is best equipped to 

determine the proper role of Government in society? 

Justice BROWN. Well, there is no question that that role belongs 

to the Legislative Branch. 

Senator LEAHY. Under what definition would your view of judging not be considered judicial activism? 

Justice BROWN. I don’t think that my view of judging would be 

considered judicial activism at all. 

Senator LEAHY. Even though you say all judges make law? 

Justice BROWN. Well, of course, they do, Senator, in the sense 

that there are still some common-law issues, and when dealing in 

the common law, judges do make law in that sense; in other words, 

you know, if they decide to expand some common-law remedy or 

something like that. We have been talking here about something 

62

that the California Supreme Court did. We call it a Tammany 

claim. That is law that the California Supreme Court made. 

Senator LEAHY. Well, you also said in a speech at the National 

Conference of State Legislators that courts have found ‘‘constitutional rights which are nowhere mentioned in the Constitution.’’ 

Would that include the right to travel? 

Justice BROWN. I am actually not familiar with cases on the right 

to travel. 

Senator LEAHY. What about the right of parents to direct the upbringing of their children? 

Justice BROWN. I don’t recall that there is any language that 

says specifically parents have the right to direct the upbringing of 

their children. 

Senator LEAHY. The right of privacy? 

Justice BROWN. Well, the Court, in Griswold, itself had several 

different ideas about that. 

Senator LEAHY. I know what the Court has done, but do you find 

that right in the Constitution? 

Justice BROWN. Well, the Court itself didn’t find that right in the 

Constitution. 

Senator LEAHY. Justice Brown, I do not mean to be nit-picking. 

Do you find that right? Trust me, all of us read those cases trying 

to get through law school or the bar exam, but do you find a right 

of privacy in the Constitution? 

Justice BROWN. Do I find it in the text of the Constitution, the 

U.S. Constitution? No. 

Senator LEAHY. Now, you said at Pepperdine 3 years back, 4 

years back, that the United States Supreme Court was incorrect in 

applying the Bill of Rights to the States. If I may read the quote, 

‘‘The United States Supreme Court, however, began, in the 1940’s, 

to incorporate the Bill of Rights into the Fourteenth Amendment. 

The historical evidence supporting what the Supreme Court did 

here is pretty sketchy. They relied on some historical materials 

which are not overwhelming. The argument on the other side is 

pretty overwhelming, and it is probably not incorporated.’’ 

Did the Supreme Court wrongly decided the cases incorporating 

the Bill of Rights into the Fourteenth Amendment? 

Justice BROWN. You know, actually, one of the reasons that I 

never transcribed that particular discussion was because I wasn’t 

very satisfied with it. But at the time I was reading a number of 

things which were looking at this whole question of whether incorporation was right or wrong, and I found it pretty convincing. 

I have since actually found a lot of other things going the other 

way in dealing with the debates at the time of the post-Civil War 

amendments, which suggests that some of that might have been 

there. So I would have to say that that probably is not entirely correct. The only—I think it still remains anomalous to incorporate 

the First Amendment, but there certainly may be, you know, argument on both sides. 

Senator LEAHY. Justice Brown, you say that you have thought 

about it some more since just as recently as 1999, but these cases 

had strong precedents before that. I mean, they had been decided. 

They had been incorporated in other decisions. They had been accepted body of law in this country. In 1999, you questioned that. 

63

Now, in your confirmation hearing, between then and your confirmation hearing, you change. 

I am not suggesting a confirmation conversion. 

Justice BROWN. No. 

Senator LEAHY. But from the time you were in law school and 

practicing law on the court, it is well understood in this country 

that the Supreme Court had incorporated the Bill of Rights into 

the Fourteenth Amendment. You had your questions in 1999 in a 

speech at Pepperdine. I am not quite sure, what is your position 

today? 

Justice BROWN. Well, you know, the position that counts, and I 

think I said that, is that whether that’s right or wrong, what the 

Supreme Court says is what counts. And so, of course, you know, 

as a law student and as a judge, I have followed those precedence. 

Sometimes speeches are an opportunity to just kind of think out 

loud, and at the time I had seen some material which really raised 

some questions about this, but I think I was very clear in saying 

it really doesn’t matter. They have said it, and that’s the law. 

Senator LEAHY. And that’s your opinion today. 

Justice BROWN. Yes. 

Senator LEAHY. Your view today. 

Justice BROWN. Yes. 

Senator LEAHY. I’m just curious how you analyze things. I have 

not practiced before the California Supreme Court. I doubt if I ever 

will, so I don’t know how you face things, other than what I have 

read. 

So let us take an issue in the news today. A law recently passed 

by the Florida legislature that allowed the Governor of the State 

to replace the feeding tube of a severely brain-damaged woman, 

over the wishes of her husband. Now, I have heard very strong arguments on both sides. I am not trying to decide who is right on 

this or not. But if you were presented with a challenge to a statute 

such as this, how would you approach the legal and Constitution 

analysis? How would you weigh the interests of the party, including the family members who apparently disagree with one another, 

with the woman’s doctors, the State? I am thinking of Washington

v. Glucksberg. 

Again, as I say, I have no idea what I would do in a situation 

like that, but is there a limit on the power of the legislature in a 

situation like this? How would you approach that if that was suddenly dropped in your lap? 

Justice BROWN. Senator, I don’t think I can possibly answer that 

question. 

Senator LEAHY. I’m not asking you to answer a question of how 

you would come out, but how would you analyze that? How would 

you weigh the interests of the parties? How would you weigh the 

interests of the State? What would you think about the power of 

the legislature in a situation like this? I mean, how would you go 

about approaching it? 

Justice BROWN. Well, you know, of course, a legislative act always starts with a presumption of constitutionality, but I would 

have to know much more about everything, about the facts, and the 

law here, and the prior history of this case. There is no way that 

I could possibly tell you anything more than that. 

64

Senator LEAHY. What kind of facts would you look for? 

Justice BROWN. Well, presumably, the—you know, I just have to 

say I don’t even know what the legislature is really doing here because I thought you said that the tube had been removed by the 

court and that the legislature— 

Senator LEAHY. Gave the Governor the power to order it back. 

Justice BROWN. There are so many different levels of— 

Senator LEAHY. Fair enough. I am just curious how, I mean, I 

am not, as I say, I do not know how I would decide, but I was curious what you would look at, and that is what I was asking. 

May I just ask one more question, Mr. Chairman? 

Chairman HATCH. Sure. Go ahead. 

Senator LEAHY. The Libertarian Law Council, you criticized the 

judiciary ‘‘for taking a few words which are in the Constitution, 

like due process and equal protection, imbuing them with elaborate 

and highly implausible etymologies.’’ 

What are some examples of that? 

Justice BROWN. Well, I think we talked about this earlier, when 

Senator Durbin was talking about Lochner, which is one of those 

cases sort of universally condemned by everybody because the argument is that, you know, is there substance to the due process 

clause or can you just use it to insert whatever you want into the 

Constitution? 

Senator LEAHY. That is the only example? 

Justice BROWN. Well, it is probably the best example because everybody knows it. 

Senator LEAHY. But you gave a pretty strong statement here. 

You seem to be talking about more than one case. What are some 

of your other examples? 

Justice BROWN. None come to mind. I mean, Lochner would certainly be one. Maybe Dred Scott is such a case. 

Senator LEAHY. We’ll make sure you have a copy of the speech, 

look at it again. Would you take a look at it and give me if there 

are some other examples you have in mind. 

Thank you. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Just one question to clarify. You said that you did not find the 

right to privacy in the express language of the Constitution. 

Justice BROWN. That is correct. 

Chairman HATCH. Nobody can find it there. 

Justice BROWN. Nobody can find it there. 

Chairman HATCH. But do you agree there is a right to privacy 

that has now been established by the Supreme Court in Griswold

and— 

Justice BROWN. It is clearly established by the Supreme Court. 

That is the law. 

Chairman HATCH. Do you accept it? 

Justice BROWN. Certainly. 

Chairman HATCH. We will go to Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Justice Brown, we are delighted to have you here. As a native 

of Alabama, the State is proud of you and the record you have 

achieved. You came up in tough times not too far from where I 

65

grew up, not too many—a few years younger than I, and those 

were not easy times. 

And I note, with interest, your statement that your grandfather 

admired Attorney Fred Gray for his challenging the segregation 

that existed at that time. There is no need to deny it. It was a fact. 

That is what the situation was. And he came out of law school with 

a commitment to end that. I read his book. Perhaps you have. I 

have it on my credenza, ‘‘Bus Ride to Justice.’’ He was Rosa Parks’ 

attorney, Martin Luther King’s attorney. He handled the Gomillion

v. Lightfoot case. One of the most extraordinary lawyers in America, and he now is the president of the Alabama Bar Association, 

which I think is a good tribute to his great career. 

But I just know, and from reading your remarks and your history, that you are passionately committed to liberty, and rights, 

and freedom, and equality for people. Would you share a little bit 

for us how you come to have your views. And I know they do not 

always agree with current political wisdom on every area, but your 

basic commitment to these values is powerful. 

Justice BROWN. Well, I think, Senator, that I have this basic 

commitment because it is not just history to me, and it is not just 

law, it is my life. I think that the Equal Protection Clause is the 

centerpiece of the framework of our Constitution. I think it is probably the most important thing that we have ever done is to try to 

guarantee people equality under the law, and maybe that is because I have lived in a time when that was not so. 

Senator SESSIONS. I noticed one of your comments dealt with the 

fact of, yes, we respect legislation and law, but we have a right to 

understand that laws can be better and that laws can be unfair 

and unjust, such as the segregation laws that provided advantages 

to one race and disadvantages to other races in the South not too 

many years ago. 

So I think having a moral foundation for your beliefs is not a 

negative, but is a strength. Do you not think that Martin Luther 

King’s arguments went to a moral and religious values as much as 

it did to some sort of complex interpretation of the Supreme Constitution? 

Justice BROWN. Absolutely, I do, Senator. In fact, one of his most 

famous speeches, what he says is that the Constitution should be 

viewed as a check that had been written to future generations 

about what they could expect. And I believe that the beginning of 

the civil rights movement in this country very much emphasized 

exactly that idea about equal justice and the idea of everybody 

being created equal and that being the promise of America that we 

should try to bring to fruition. 

Senator SESSIONS. I thank you for sharing that. I just, from seeing your record, it is clear to me that you analyze cases fairly or 

you take them on the law as you see it. You are not driven by politics, but you try to do the right thing. If you were driven by politics 

or those kind of things, you would probably be more conforming to 

what everybody else thinks somebody should do in this day and 

age, and I salute you for that. 

Mr. Chairman, I am just so impressed with the support this fine 

nominee has had. I noticed this stunning reelection vote, I believe 

76 percent of the vote to be reelected in the State of California. EvVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
66

erybody knows that California is not considered a conservative 

State. If this lady were some sort of out-of-the-mainstream, how 

would she win such a predominant vote there? 

Actually, she is part of a movement to strengthen the rule of law 

in the State courts of California and very, very strong support. 

Chairman HATCH. She not only had 76 percent, but she was the 

top vote-getter among other justices. 

Senator SESSIONS. I think that is so important to note. 

A bipartisan group of 15 law professors wrote this Committee, 

and they said, ‘‘We know Justice Brown to be a person of high intelligence, unquestioned integrity and even-handedness. Since we 

are of differing political views,’’ all of these professors had different 

political perspectives, ‘‘Democrat, Republican and Independent, we 

wish especially to emphasize that what we believe is Justice 

Brown’s strongest credential for appointment to this important seat 

on the D.C. Circuit, her open-minded and thorough appraisal of 

legal argumentation.’’ 

Is that something you, praise you would cherish, Justice Brown? 

Justice BROWN. I appreciate that. I believe that I am open-minded, but I did grow up with a grandmother who said, ‘‘It’s a fine 

thing to have an open mind, but it shouldn’t be so open everything 

in it falls out.’’ 

Senator SESSIONS. Well said. And they note, even if your personal views might disagree with the law as it exists, those arguments. So I think that is great. 

A bipartisan group of your current and former colleagues have 

written also in support. Twelve former colleagues, judges, wrote 

this Committee, ‘‘Much has been written about Justice Brown’s 

humble beginnings and the story of her rise to the California Supreme Court is truly compelling, but that alone would not be 

enough to gain our endorsement for a seat on the Federal bench. 

We believe that Justice Brown is qualified because she is a superb 

judge. We who have worked with her on a daily basis,’’ not some 

groups around here to make money running direct mail, claiming 

that they are stopping extremist judges. That is what they do, distorting people’s records. 

They know you. They have worked with you, and they say that 

‘‘She is qualified because she is a superb judge. We who have 

worked with her on a daily basis know her to be extremely intelligent, keenly analytical and very hardworking. We know that she 

is a jurist who applies the law without favor, without bias, and 

with an even hand.’’ 

They could put that on your tombstone. That would be pretty 

good. 

Justice BROWN. It would be pretty good. 

Senator SESSIONS. Ellis Horvitz, a Democrat and one of the 

deans of the appellate bar in California has written in your support, noting, ‘‘In my opinion, Justice Brown possesses those qualities an appellate judge should have. She is extremely intelligent, 

very conscientious and hardworking, refreshingly articulate—’’ In 

fact, I think you have a wonderful way with words. ‘‘—and possessing great common sense and integrity. She is courteous and 

gracious to the litigants and counsel who appear before her,’’ and 

67

we can see that in your demeanor here today, and I think that is 

an important characteristic of a judge. 

Regis Lane, director of Minorities in Law Enforcement, wrote, 

the minority law enforcement officers in all of California wrote, 

‘‘We recommend the confirmation of Justice Brown based on her 

broad range of experience, personal integrity, good standing in the 

community and dedication to public service. In many conversations 

I have had with Judge Brown, I have discovered that she is very 

passionate about plight of minorities in America based on her upbringing in the South. Justice Brown’s view that all individuals 

who desire the American dream, regardless of their race or creed, 

can and should succeed in this country, are consistent with MILE’s 

mission to ensure brighter futures for the disadvantaged and youth 

of color.’’ 

Well, you have been a leader in the State, and the Governor’s Office of General Counsel for the California Business and Transportation Group, deputy attorney general in the Office of the Attorney 

General, and a legislative counsel to the California Legislative 

Counsel Bureau. It’s an extraordinary experience in government 

issues. They have suggested you have not been in Washington, but 

it does not mean you have not dealt with Government issues 

throughout your career; is that not true, Justice Brown? 

Justice BROWN. That is true, Senator. I don’t have the specific 

Federal experience, but I am not without experience in administrative law. 

Senator SESSIONS. And some of those issues dealt with the Federal Government at times, did they not? 

Justice BROWN. That’s true. 

Senator SESSIONS. Well, Mr. Chairman, I just want to say that 

it is so wonderful to see a justice of her skill and ability and integrity, proven record, who has the broad support in the State of California, be nominated for this important office. 

I would note on the question of whether or not this court needs 

12 judges, I do not believe it needs 12. I suggested some time ago 

that we not, we reduce officially the number for the bench, and my 

colleagues on the other side of the aisle blocked that and did not 

support that, and now they are talking about that. It is something 

that we should consider. 

I believe, I would be reluctant to fully fill this bench to 12, but 

we are now I think 9 or 10, and we need another judge, and I think 

this would be a great justice to the court. 

Chairman HATCH. Thank you, Senator. I personally believe we 

ought to put a full component on the bench, and the administration 

has nominated people for at least 11 of the seats. 

We have a vote on the floor, so here is what we are going to do, 

and you have been sitting there for quite a while. Senator Feingold 

is coming back to question you. He will have 10 minutes while the 

rest of us go to the floor. I will immediately return, but we will 

allow Senator Feingold, who is a gentleman, to start his questioning, even without me here. I am sure that will be fine with you, 

too. 

And then what we are going to do, because there are other 

Democrats who would like to ask questions, including the Ranking 

Member here today, we will recess until 2:15—is that okay with 

68

you? That will give you a little bit of a break, and then we will 

come back, and hopefully this next round will complete the hearing 

for today, and we will finish it today. 

So we appreciate your patience. I personally appreciate your articulate answers to all of the questions that are very difficult questions for anybody, and you have handled them very well. 

So, with that, we are going to take off and vote. When Senator 

Feingold gets here, his staffer will have him ask questions, and 

then we will adjourn till 2:15. I will try and get back myself, but 

if I do not, and he finishes, then let us just adjourn, but no more 

than 10 minutes. Okay? 

[Laughter.] 

Justice BROWN. Thank you, Mr. Chairman. 

Chairman HATCH. I do not want everybody else on my back. So 

10 minutes, I have tried to maintain that, even though I have had 

to yield a little bit here, and I want to thank my colleagues for honoring that and showing respect to the Chair. It means a lot to me. 

So, with that, we will recess until Senator Feingold gets here. He 

will ask you his 10 minutes, and then we will recess until 2:15. 

[Recess from 12:42 p.m. to 12:49 p.m.] 

Senator FEINGOLD. [Presiding] I will call the Committee back to 

order. I want to thank the Chairman and the majority for allowing 

me to proceed in this manner so I can ask my questions. 

Justice Brown, welcome, and thank you for appearing before the 

Committee. 

A little while ago you testified in response to questions from Senator Hatch that your record could lead to no other conclusion than, 

quote, ‘‘I am not an idealogue of any persuasion,’’ unquote. You 

said that, right? 

Justice BROWN. Yes. 

Senator FEINGOLD. Let me read the opening of a speech you gave 

to the Federalist Society in 2000 at the University of Chicago Law 

School. You said, ‘‘I want to thank Mr. Schlangen for extending the 

invitation, the Federalist Society, both for giving me my first opportunity to visit the city of Chicago and for being, Mr. Schlangen assured me in his letter of invitation, a rare bastion, nay, beacon of 

conservative and libertarian thought. That latter notion made your 

invitation well nigh irresistible. There are so few true conservatives 

left in America that we probably should be included on the Endangered Species List. That would serve two purposes, demonstrating 

the great compassion of our Government and relegating us to some 

remote wetlands habitat where out of sight and out of mind we will 

cease being a dissonance in collectivist concerto of the liberal body 

politic.’’ 

Can you explain what you meant when you testified that you 

were not an idealogue of any persuasion in light of what you said 

in that speech? 

Justice BROWN. Well, I—yes, Senator, I can. And what I was referring to when I was speaking to the Chairman is that I think—

and he was talking about what I have done as a judge, and I think 

that if you look at the cases that I have done as a judge, you will 

find a very evenhanded application of the law, that I approach the 

task by looking at the law and the facts in the particular case, and 

just trying to get it right. 

69

Senator FEINGOLD. So if we were to really put your statement in 

context you would say, I am not an idealogue of any persuasion in 

my role as a judge? Is that a more accurate statement? 

Justice BROWN. I’m not—I think that’s one way of putting that, 

but I’m not sure that I would concede that because I really don’t 

think that the conservative view that I have, which is a kind of 

classical conservatism, is ideological at all. But I can certainly say 

that I’m not ideological as a judge. 

Senator FEINGOLD. Well, I tried to give you a way out, but I do 

admire your candor. [Laughter.] 

Let me try something else, exploring some of your writings relating to senior citizens. You dissented in an age discrimination case, 

Stevenson v. Super. Ct. In that case Ms. Stevenson worked for a 

hospital for over 30 years and shortly before her dismissal by the 

hospital Ms. Stevenson took a period of approved medical leave 

from work. She informed the hospital that she wanted to return to 

work well within the period during which her right to reinstatement was guaranteed by hospital policy. Despite this, the hospital 

refused to reinstate her to her old position or to reinstate her to 

another position pending an available opening at her original job. 

Ultimately the hospital fired Ms. Stevenson and she sued. 

The issue in the case was whether Ms. Stevenson was entitled to 

sue her employer under the common law theory that the hospital’s 

actions constituted a wrongful discharge because of a fundamental 

public policy against age discrimination. 

The majority of the court found that Ms. Stevenson could bring 

such a lawsuit. You dissented. In your dissent you stated: I would 

deny the plaintiff relief because she has failed to establish the public policy against age discrimination inures to the benefit of the 

public or is fundamental and substantial. Discrimination based on 

age does not mark its victim with a stigma of inferiority and second 

class citizenship. It is the unavoidable consequence of that universal leveler, time, you wrote. 

Before asking you about that dissent, let me also note a portion 

of a speech you gave in August 2000 to a group called the Institute 

for Justice. You stated the following: My grandparents generation 

thought being on the Government dole was disgraceful, a blight on 

the family’s honor. Today’s senior citizens blithely cannibalize their 

grandchildren because they have a right to get as much free stuff 

as the political system will permit them to extract. 

You go on to say in the same speech: Big government is not just 

the opiate of the masses, it is the opiate, the drug choice for multinational corporations and single moms, for regulated industries 

and rugged midwestern farmers and militant senior citizens. 

In light of these statements it is not surprising to me that a 

number of organizations representing seniors, led by the National 

Senior Citizens Law Center, have written to the Committee in opposition to your nomination. I would like to give you a chance to 

explain the statements I just quoted, but let me also ask you two 

questions. 

First, do you really believe that age discrimination does not stigmatize elderly Americans, and that this kind of discrimination not 

only should be tolerated in our society but is actually natural and 

justifiable? 

70

Second, given the views you have expressed, can you understand 

why senior citizens would be concerned about appearing before you 

in an age discrimination case? And what in your record would you 

point to alleviate those concerns? 

I guess I will simply, hearing no objection, have a letter from the 

National Senior Citizens Law Center included in the record at this 

point. 

But now I will turn to you for your explanation of your comments 

and your answer to those two questions. 

Justice BROWN. Thank you, Senator. I hope I can remember all 

of the different parts of this question. I want to start with Stevenson because I think somehow making a jump that what I did in 

Stevenson had something to do with, you know, what I said in the 

speech, and nothing could be further from the truth. 

The first thing to know about Stevenson is that age discrimination is covered by the Fair Employment and Housing Act in California. We call it FEHA. The way that the legislature has provided 

for age discrimination gives a more limited remedy and it’s available in more limited circumstances than other kinds of discrimination. So part of what I am saying there, the legislature has already 

determined. In other words, the California legislature treats age 

discrimination differently than other kinds of discrimination. And 

my statement that it doesn’t have the stigma simply reflects the reality that we all know and love people who are old, and if we have 

a long life we are going to be people who are old. We all pass 

through that stage. So in that sense it’s different from being a racial minority or gender discrimination. 

The other thing that I want to make clear about Stevenson is 

that I’m not here denying a remedy for this litigant, because they 

do have a remedy under FEHA. The question that was presented 

to our court was should we also have this parallel common law 

remedy? And we’ve talked about this a lot this morning, but in 

California the court has said if you are fired from a job for a reason 

that violates public policy, then you may have something which we 

call a Tammany claim, meaning you may have this common law 

remedy that may also apply. I have argued in a series of cases that 

because the legislature has acted comprehensively in providing for 

the FEHA, have actually balanced the competing considerations 

here and have determined how it wants this to work, that this is 

a circumstance where it may not be appropriate for the court to 

come in and create another remedy that is parallel to and perhaps 

undermines what the legislature is doing. 

Senator FEINGOLD. I appreciate your explication of Stevenson and 

your reasons for it, and I did invite you to do that, but let me now 

return in my remaining time to the two questions that flow from 

that. I acknowledge your obviously superior knowledge of the California law certainly to mine, and your point that perhaps the California law relating to age discrimination is not as expansive as 

some other discrimination law. But my sense is that of course California does, through its legal system, strongly the problem of age 

discrimination and has passed laws to try to deal with it. Is that 

correct? 

Justice BROWN. That’s correct. 

71

Senator FEINGOLD. In light of that I would like to hear your answers to the two questions that I—you are right, I did as you for 

a number of things, so let me review what they were. 

First, do you believe that age discrimination does not stigmatize 

elderly citizens, and that this kind of discrimination not only 

should be tolerated in our society but is actually natural and justifiable? 

And the second question was: can you understand, given both the 

Stevenson case and the comments that I read from your speech 

that there could well be senior citizens who would be concerned 

about appearing before you, and what do you have to say to them? 

Justice BROWN. Let me respond to the first part of that which is 

I do not believe that I have ever said that age discrimination 

should be tolerated. I don’t believe I’ve ever said that any kind of 

discrimination should be tolerated. What’s being discussed there is 

simply that age discrimination may be different than other kinds 

of discrimination, not that it should be tolerated. 

Senator FEINGOLD. Does it or does it not stigmatize elderly 

Americans, age discrimination? 

Justice BROWN. I do not think that it is the same as—you know, 

I think that discrimination is wrong. I think that we have laws 

against age discrimination and they should be enforced. But I think 

the fact that we all pass through these stages makes it different 

in quality from other kinds of discrimination. 

Senator FEINGOLD. I think that is a fairly straight answer and 

I am going to take it as saying that you do not think it stigmatizes 

senior citizens, although it may have other negative consequences. 

Justice BROWN. I think that— 

Senator FEINGOLD. Is that a fair statement? 

Justice BROWN. I think that would be fair. 

Senator FEINGOLD. And then what would you say to seniors who 

would appear before you in court who have expressed concerns 

about your positions in these cases and your statements? 

Justice BROWN. I would say to them that they should have no 

concern because when they come into a courtroom or when their 

case is presented at an appellate court of which I am a member, 

I am going to look at their case, I am going to look at the law, I 

am going to look at exactly what’s happening, exactly the remedy 

that we have, and I am going to try to resolve that case correctly, 

and that is what I have always done, and I will continue to do that. 

Senator FEINGOLD. I thank you. Normally I get a little extra time 

due to a kindly Chairman, but I have to keep my word. So with 

that we will be—thank you, Justice. We will be recess until 2:15. 

[Lunch recess at 1:00 p.m.] 

[AFTERNOON SESSION (2:31 p.m.] 

Chairman HATCH. I apologize for being a little bit late but between asbestos reform, class action reform, other judges and Medicare and prescription drug reform, I just could not get back until 

now, so I apologize. 

Let us turn to Senator Schumer. It is his turn to question. Senator, you have 10 minutes. 

Senator SCHUMER. Thank you, Mr. Chairman. 

First, I had wanted to give a little statement, so I am going to 

do that. 

72

Chairman HATCH. That will be fine. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. I have to say, Mr. Chairman, that I for one 

am disappointed to be here on this nomination. Instead of finding 

well-qualified, consensus and moderate nominees, the White House 

has once again, in my judgment, reached out for an out-of-themainstream activist of the first order. It is almost as if the administration is looking for the nominee who will most antagonize us, 

not personally, but through her views, rather than one on whom 

we can all agree. 

In case after case Justice Brown goes through pretzel-like contortions of logic to get to results that hurt workers, undermine environmental protections and do violence to basic rights. 

As I reviewed Justice Brown’s record, the one thing that came 

through loud and clear is that she is consistently inconsistent. 

Time and time again when a legal question is presented twice, she 

takes two totally opposite approaches in order to achieve the outcome she wants. A judge who makes the law instead of interpreting 

it is a judicial activist. Making law, not interpreting it, is an undesirable quality in a judge whether that judge is coming from the 

far right or the far left, whether that judge is coming from the most 

liberal or the most conservative side, because the founding fathers 

wanted judges who interpret law not make law, and if you are at 

the extremes you tend to have such passionately felt views that you 

want to make law, not interpret it. If you have a passion to bring 

the United States back to the good old days of the 1920’s or 1890’s 

it is not a very good bet that you are going to interpret law. 

Judicial activism would be bad on any court, but it is especially 

dangerous on the D.C. Circuit which is known for good reason as 

the Nation’s second highest court. Especially when it comes to 

workers’ rights and the environment, the D.C. Court is arguably 

the most important court in the Nation. Since the Supreme Court 

takes so few cases each year, and since a grossly disproportionate 

number of labor and environmental cases come to the D.C. Circuit, 

this is often the court of last resort for those who seek to vindicate 

workers’ rights and protect the environment. 

Now, Judge Brown’s record, when it comes to workers’ rights, the 

environment and many other important issues leave many of us up 

here scratching our heads in wonderment. In a sense I have to respect her bluntness, but it is obvious to me that many of the President’s judicial nominees want to return us not just to the 1930’s 

but to the 1890’s. I know this has been discussed, but I cannot get 

over it. In Justice Brown’s case she is remarkably straightforward 

in her praise of the Lochner case, and her criticism of Justice 

Holmes’ famous dissent there, calling Justice Holmes simply 

wrong. Even Justice Bork defended the Holmes’ dissent. In Lochner

the Court invalidated a New York labor statute that limited the 

number of hours laborers in bakeries could work. Fundamental justice for most Americans for close to 100 years. The Court, over 

Judge Holmes’ vigorous and ultimately vindicated dissent, held the 

New York statute violated a liberty of contract right that had not 

73

been previously recognized, and the doctrine lived for three decades 

until the Court shifted. 

If you ask most lawyers to name the worst of Supreme Court decisions in the 20th century, Lochner would be at the top of the list. 

But Justice Brown thinks it was correctly decided. Even Justice 

Scalia, who so often advocates cutting back on Congress’s power to 

protect basic rights, is content to let the states do so themselves. 

In this instance, as in others, Justice Brown finds herself willing 

to go even further to the right than Justice Scalia. Justice Brown 

not only wants to turn back the clock, she wants to turn back the 

calendar, and not just by a few years, but by a century or more. 

Justice Brown, you seem like a nice person. You are clearly a 

very smart person. But to me, brilliance is not the only criteria. 

You can be the smartest person in the world, but if your views are 

way out of the mainstream you do not belong on the D.C. Court 

of Appeals. So I want to tell you that there is a lot in your record 

that troubles me, and I think you have got a rough road to hoe, 

at least on this side of the aisle. 

My question is this: before we broke for lunch you made the 

point that we should view your speeches separately from your judicial opinions. You said, if I understand it correctly, that while your 

political opinions may reflect your personal views, it is your judicial 

opinions that reflect what kind of judge you would be on the D.C. 

Circuit. 

First I would like to know is that a fair understanding of what 

you said? 

Justice BROWN. I think so. 

Senator SCHUMER. Thank you. In light of that, I would ask a follow up question on your comparison of the post Lochner era to a 

socialist revolution. You distanced yourself from that comparison 

by saying it was a part of a speech made to a young audience, and 

designed to, as I believe you said, stir the pot. While I think it is 

a pretty radical comment for a sitting judge to make, even if it is 

just designed to spur debate, I am not satisfied that it is just your 

personal view and has no bearing on your judicial opinions, because we all know that judges’ personal views affect their judging. 

We do not have to draw on evidence of other conduct. 

Let us go to your own record. In Santa Monica Beach v. Super. 

Ct. you called the, quote, ‘‘demise of the Lochner era the revolution 

of 1937.’’ Those are your words. Those are nearly identical to what 

you said in your Federalist Society speech. So even if we were believing your court views as opposed to your stirring the pot to these 

young minds’ views, you still seem to cling to that belief, at least 

until today. 

You were also asked about a speech given to the Institute of Justice, where you said, quote, ‘‘If we can invoke no ultimate limits on 

the power of Government, a democracy is inevitably transformed 

into a kleptocracy, a license to steal, a warrant for oppression.’’ You 

dismissed that speech as well, claiming that it did not necessarily 

reflect your views as a judge. But in San Remo Hotel v. City and 

County of San Francisco, you said—and that is a case obviously—

‘‘Turning a democracy into a kleptocracy does not enhance the stature of thieves, it only diminishes the legitimacy of Government.’’ 

74

Are these not your views both as a private citizen and as a 

judge? If not, can you explain why virtually identical rhetoric, that 

many would call quite extreme, finds its way into both your speeches and your judicial opinions? 

Justice BROWN. Thank you for your question, Senator. There is 

a lot there, so I will try to work backwards from your question to 

some of the more general statements that you made. I will willingly acknowledge that a judge is not some kind of automaton or 

computer. You know, a judge is a thinking human being, and the 

writing of a judicial opinion is an organic activity. So it is never 

true that nothing of a judge is reflected in the work that they do. 

Writing is that kind of task. And I think judges have struggled 

with this forever, and there’s lots of good commentary about how 

it is that a judge achieves the necessary distance. And Judge Hand 

said, you know, a judge has to be like a runner, stripped for the 

race. Frankfurter said, no, it’s more that—you can’t ever not be 

what you are, but you have to be very conscious of it and you have 

to put it aside and you have to deal in a very candid way with the 

way that you approach the task. So I do not think that the sides 

are hermetically sealed, but I think that you can be very principled 

in the way that you approach the work, and that when you make 

a decision, your decision has to be on the law and the facts in an 

individual case and has to be justified, and that you have to create 

a context that allows people to evaluate what you’ve done and see 

it clearly. 

Senator SCHUMER. I guess I would ask the question. You were 

telling all of us—I am sorry I could not be here this morning for 

much of the time—but you were telling us that your views, as you 

do in speeches and whatever else, are different than your courtwritten opinions, and yet in these two instances, both again—these 

are pretty severe statements that you made—you made very similar statements in your opinions. So how can we believe you when 

you say, ‘‘Oh, well, do not worry about what I say in the rest of 

the world; just look at what I say as a judge,’’ when the two are 

so much the same, and you still seem, even if we were to discount 

all your speeches, to still hold these views of kleptocracy and 

Lochner, and again, the way I look at it, going back to the 1890’s. 

I think we have made great strides in America. I would say 97 or 

98 percent of all Americans would agree with me we have made 

great strides. 

And you seem to feel—and you know, we are always a little leery 

when people come to this table looking for our support. We have 

to look at the record in the past. But whether you look at the written record—because everyone comes before us and says, ‘‘Forget 

what I did in the past. I will just interpret the law.’’ Now, fortunately you have a record and you are a forthright and very intelligent person. So we can ask. It is not like some of the others who 

refuse to answer any questions. But your judicial opinions seem to 

have the same views. Again, explain to me why I should believe 

that the two are separate when you have used very similar language and very similar thinking that you used in your speeches in 

your court opinions? 

Chairman HATCH. Senator, your time is up. 

But you should answer the question. 

75

Justice BROWN. Okay. I totally agree with you, Senator, in saying 

that we’ve made great strides. I certainly know that, and I’ve seen 

that in my lifetime. It’s one of the reasons that I think this is a 

great country, because we’ve been able to be self critical and we’ve 

been able to change, and we’ve been able to bring into being some 

of the, I think, sort of underlying aspirational goals that go all the 

way back to the Declaration of Independence. So I agree with you 

totally about that. And— 

Senator SCHUMER. Just explain to me how we can reconcile what 

you said this morning in almost identical language and identical 

thinking in both the court cases and the speeches in these two instances. 

Justice BROWN. I think the way that you can reconcile is exactly 

the way that I have explained. I don’t think that any human being 

thinks in a vacuum. I think that you always come out of a world 

view—you are always working through your experience, your education, your convictions, but as a judge you have to be conscious 

of that and then deal with what’s before you. 

Now, it may turn out that when I have done this, absolutely 

even-handedly and carefully and thoughtfully, that I reach a conclusion, you know, where I think, well, you know, this looks like 

this other thing. But we ought to be concerned about is whether 

I am in fact trying to reach that conclusion or being results-oriented. And I really think that if you look at my work you will not 

see that. 

Now, what you said earlier was ‘‘you are consistently inconsistent,’’ and then you used that to say, well, you know, ‘‘but you’re 

also ideological.’’ I don’t think that both those things can go together. What you are seeing, what you think of as consistently inconsistent is because I am simply looking at the case, I am looking 

at law. I am trying the right decision in each case. 

Senator SCHUMER. I just want to ask one more question, Mr. 

Chairman, with your indulgence. 

Do you stand by your views in San Remo Hotel v. City and County of San Francisco about kleptocracy, and do you stand by your 

views in Santa Monica Beach v. Super. Ct. about the demise of the 

Lochner era and the revolution of 1937? 

Justice BROWN. Well, the cases say what they say, and I hope 

that—I always try to do an analysis that is very assessable, that 

anybody who reads it can understand what I’ve said. 

Senator SCHUMER. So you do stand by them? 

Justice BROWN. I have tried to write— 

Senator SCHUMER. You can answer that yes or no. 

Justice BROWN. Well, the cases are there. I guess that’s— 

Senator SCHUMER. So the answer is yes. 

Justice BROWN. Well, the concern I have, Senator, is that you 

started off— 

Senator SCHUMER. But— 

Chairman HATCH. Let her answer the question. 

Justice BROWN. —making a lot of statements about what that 

was, and so—and what my views were and what that meant. And 

so all I’m saying is what’s in the cases is in the cases, and it should 

be clear. 

76

Senator SCHUMER. I am going to take that as you stand by those 

views because you have not refuted them here and you said what 

is in there is in there. 

Thank you, Mr. Chairman. 

Chairman HATCH. Let me just say I do not take it that way. I 

take it that, Senator, you have interpreted it the way you want to, 

but that is not the way I meant it. 

Senator SCHUMER. Well, Mr. Chairman, it is a simple yes or no 

question. Do you stand by them? Do you not stand by them? And 

we cannot get a yes or no. 

Chairman HATCH. No, it is not because she has consistently explained throughout this whole hearing that she put this language 

into those opinions and that that language deserves to be interpreted differently from the way you have interpreted it. It is not 

just a simple yes or no. I think that is a fair statement, is it not? 

Justice BROWN. Yes. 

Chairman HATCH. In other words, you do not have to take Senator Schumer or my interpretation of what your cases say. But to 

try and paint you like your back in the Lochner era, without understanding what Lochner is all about I think is just wrong. 

Justice BROWN. Mr. Chairman— 

Chairman HATCH. You do understand it. 

Justice BROWN. Mr. Chairman, if I may, I do need to follow up 

on something because the prologue to your question was quite long. 

And you made a statement that: You’re obviously out of the 

mainstream, you clearly take positions that not even very conservative judges take, and you base that on this idea that I want to 

return to Lochner, that I said Lochner was rightly decided. I have 

never said that. And in fact, in my cases, I have actually said that 

to the extent that Lochner court was using the Due Process Clause 

as a blank check to simply insert their political views into the Constitution, that they were justly criticized. And I have also said that 

that portion of the Holmes’ dissent, which is simply reflecting a 

deference to the legislature, is one that I generally agree with. 

Senator SCHUMER. Do you agree with the holding of Lochner? 

Justice BROWN. I have said that I think that it’s appropriately 

criticized and it’s been discredited. I mean Lochner is like this curious case that has actually ended up creating a new word in the 

English language, and I think I’ve even said that it stands for—

it’s the most pejorative thing that you can say among attorneys. 

Senator SCHUMER. You do not agree with the holding of Lochner? 

Justice BROWN. I think that I’ve been clear. I said that it is appropriately criticized to the extent that they were inserting their 

views into this case, or into the Constitution I guess. That’s the 

issue. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator DURBIN. Mr. Chairman? 

Chairman HATCH. I will be happy to turn to you, Senator Durbin, but I want to follow up with some questions. 

Senator DURBIN. If I can ask the Senator from New York to just 

if you could, stay a moment. 

I would like to read into the record what you said, and this was 

at the Federalist Society, University of Chicago Law School speech, 

April 20th in the year 2000. Here is what you said: ‘‘In his famous, 

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all too famous dissent in Lochner, Justice Holmes wrote that the, 

quote, ‘Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of 

the citizen to the state or of laissez faire,’ ’’ end of quote. And then 

you went on to say: ‘‘Yes, one of the greatest, certainly one of the 

most quotable jurists this Nation has ever produced, but in this 

case he was simply wrong. That Lochner dissent has troubled me, 

has annoyed me for a long time, and finally I understand why. It’s 

because the framers did draft the Constitution with a surrounding 

sense of a particular polity in mind, one based on a definite conception of humanity.’’ 

Justice Brown, you were unequivocal here in saying that you disagreed and that Justice Holmes was wrong, and despite the statements by the Chairman and some of the things you have said 

today, unless you are prepared to disavow this speech and some 

other things you have said, I have to say your words are very clear. 

Justice BROWN. Well, I think I was clear, too, Senator, and I 

think that what is being said there—and I think the context of the 

speech bears it out—is that I had a difference of opinion with this 

idea that the Framers of the Constitution had no economic notion. 

I think it’s very clear, when you read the history, that there was 

a concern about property; that the American Revolution was a revolution that was really fought over property; that one of the reasons that the Constitution came into being, you know, instead of 

just modifying the Articles of Confederation, was that there was 

concern about what legislative majorities were doing with property. 

So both in the Constitution and in the Bill of Rights, that concern, 

you know, finds expression in specific language. 

Senator DURBIN. I would like to ask more questions, but if you 

would like to go first? 

Chairman HATCH. Let me go first, and then we will turn to Senator Durbin. Let me follow up on Senator Specter’s question about 

your opinion in the Hi Voltage case, Proposition 209, and the Federal Supremacy Clause. Now, the Ninth Circuit Court of Appeals, 

clearly one of the most liberal if not the most liberal appellate 

court in the country, or at least in the Federal judicial system, we 

will put it that way, has ruled—and this is noted in the majority 

opinion of the Proposition 209 case—that Proposition 209 does not 

violate the Equal Protection Clause. Also, Federal courts have 

ruled that that proposition does not violate Federal civil rights 

statutes. 

Now, in your opinion, I would note you acknowledge the Supremacy Clause would dictate Federal law would prevail; if Proposition 

209 violated the U.S. Constitution or Federal statutes, that literally Federal law would prevail. Is that correct? 

Justice BROWN. Of course. 

Chairman HATCH. Okay. Now, Justice Brown, throughout this 

hearing, we have heard that you are too critical of Big Government. 

Join the crowd. There are a lot of us up here who are, too, and 

there are a lot of judges throughout the country who are, both liberal and conservative judges. But I think a close examination of 

your record indicates that any personal antipathy you may have 

expressed towards Big Government does not interfere with your juVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
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dicial decisionmaking. I think any fair reading of your opinions will 

result in that conclusion. 

Now, we can pick cases out of your 750-plus cases that you have 

sat in on and helped to decide and wrote opinions on. We can pick 

cases, anybody on this Committee could pick cases with which they 

disagree. But that is true of every judge, unless you are just totally 

liberal or totally conservative, and some people think that might be 

a good thing. I do not. I think being totally right is better than 

being liberal or conservative. I think doing total justice is more important than being liberal or conservative. I think doing what is 

right is more important than being liberal or conservative. But, 

naturally, you are going to have liberals on this Committee who do 

not agree with some of your decisions, but, by gosh, they agree 

with a lot of them, too. 

Now, what does that mean? Does that mean that you are outside 

the mainstream when you can please them on some but you don’t 

please them on the others? And you are going to have conservatives 

that don’t agree with all your opinions, but on some they are going 

to agree. Does that mean you are out of the mainstream? Heavens, 

no. That is true of almost any judge that is in any kind of a tough 

situation of making real decisions in this world based upon the law. 

Now, let’s take, for example, the case of Lundgren v. Super. Ct. There you joined in an opinion upholding the Safe Drinking Water 

and Toxic Enforcement Act of 1986, and you expansively interpreted the phrase ‘‘source of drinking water’’ to include faucets allegedly containing lead so that the plaintiffs could proceed with 

their case. Is that right? 

Justice BROWN. That’s correct. 

Chairman HATCH. Well, I think that would please all of our liberal brethren, and sisters, and I hope it would please all of our conservatives, because it happened to be right. So the Government 

does have the responsibility in assisting and protecting the environment, doesn’t it? 

Justice BROWN. Yes, it does. 

Chairman HATCH. And you have never said otherwise. 

Justice BROWN. And I have never said otherwise. 

Chairman HATCH. And isn’t it also true that in Bockrath v. Aldrich Chemical Company you upheld the right of the plaintiff to 

sue for exposure to toxic chemicals using the Government’s environmental regulations? Didn’t you do that? 

Justice BROWN. That’s true. 

Chairman HATCH. Well, that sounds to me like something that 

should please my colleagues on the other side and say, Well, maybe 

she is in the mainstream because we agree with her. I can name 

a lot of cases they agree with you on, but I can show some that 

they don’t agree. They are showing them here. But that doesn’t 

mean you are outside the mainstream. That is just a shibboleth. 

That is a phony excuse to say we are not going to vote your way. 

And it is a cover-up more than it is an honest, intellectual process. 

Isn’t it true that in Lockyer v. Shamrock Foods you upheld California’s very stringent standards for identifying and labeling milk 

and milk products, thereby ensuring that the Government has a 

role in protecting the safety of our children and all Californians? 

Is that correct? 

79

Justice BROWN. That’s correct. 

Chairman HATCH. My goodness, I think our colleagues on the 

other side ought to be shouting ‘‘Hurray’’ for you. My goodness. 

And I think our colleagues on this side would as well. 

In Ramirez v. Yosemite Water Company, you joined in an opinion 

validating State regulations regarding overtime pay, didn’t you? 

Justice BROWN. I did. 

Chairman HATCH. Well, by gosh, how could you do that if you 

hate Government like they have lifted these quotes out of your 

speeches? 

You don’t have to answer that. That was rhetorical. 

[Laughter.] 

Chairman HATCH. Isn’t it true that in Pearl v. Workers’ Compensation Appeals Board, you upheld the role of the Workers’ Compensation Appeals Board in applying a stringent standard of ‘‘industrial causation’’ for a worker’s injury, thereby showing that the 

State has a proper role in ensuring the safety of workers? Didn’t 

you do that? 

Justice BROWN. That’s true, Senator. 

Chairman HATCH. Well, my gosh, how could you support the 

Government? I mean, that is odd because I have been hearing that 

you do not support the Government, that your statement lifted out 

of context should ban you from serving any further as certainly a 

judge on the Circuit Court of Appeals for the District of Columbia. 

Well, Justice Brown, in light of all these cases, you know, I find 

it a bit hard to believe that those who never met a Government 

program they did not like should be criticizing you, who has met 

Government programs that you have sustained because the law required it. Do you differ with that? 

Justice BROWN. I don’t disagree with anything that you say, Mr. 

Chairman. 

Chairman HATCH. Well, let’s take a look at one more case that 

shows your respect for the proper role of Government. In the 2002 

case, Kasler v. Lockyer, didn’t you author the court’s opinion upholding State gun control legislation? 

Justice BROWN. I did. 

Chairman HATCH. And specifically you rejected the proposition 

that the State Constitution includes a right to bear arms? 

Justice BROWN. The California Constitution, unlike the Federal 

Constitution, does not have a specific right to bear arms. It does 

have a right to fish, but no right to bear arms. 

Chairman HATCH. So you upheld the California Constitution? 

Justice BROWN. Yes. 

Chairman HATCH. Well, my goodness, it would seem to me some 

of our colleagues on the other side ought to give you credit for that. 

But I have not heard that yet. I have not heard very much credit 

given to you for all these opinions with which they agree, and we 

could name dozens of them—in fact, probably most of them. 

Didn’t anti-gun control groups like Handgun Control and the 

Center to Prevent Handgun Violence applaud your decision while 

the National Rifle Association ran an advertisement targeting you 

as hostile to the Second Amendment? Didn’t that happen? 

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Justice BROWN. The National Rifle Association was very unhappy 

with that decision, ran a series of infomercials where my picture 

was prominently displayed. 

Chairman HATCH. Does that give you second thoughts? Maybe 

you should not have done that to irritate the National Rifle Association like that. Does that give you second thoughts? 

Justice BROWN. Well, no, because— 

Chairman HATCH. Why? 

Justice BROWN. Because I approached the case to decide what 

the right answer is, and that is the only point— 

Chairman HATCH. Based upon what? Based upon what? 

Justice BROWN. Based upon the Constitution and the law that 

applies to it. 

Chairman HATCH. Based upon the Constitution and the law. 

Justice BROWN. And what the facts are. 

Chairman HATCH. That is what judges should do, shouldn’t they? 

Justice BROWN. I think so. 

Chairman HATCH. Well, some of our colleagues want judges to 

make laws. Now, that happens on both sides of this table from time 

to time, but in all honesty, a lot of our liberal colleagues would just 

love to have judges on the appellate courts who would make the 

laws that they would never have a chance of getting through the 

elected representatives of the people in the Congress. 

Well, in case there is any doubt about your real concern about 

the consequences of gun violence, let me quote from your concurring opinion in Kasler: ‘‘It is impossible not to grieve for the thousands of young men cut down in their prime, impossible not to 

mourn toddlers slaughtered in the midst of innocent play, impossible to ignore the grim reality of schoolchildren whose final moments echoes with screams of terror and the sudden slap of bullets. 

All too often, the killers are children, too.’’ 

You said that, didn’t you? You wrote that? 

Justice BROWN. I did write that, yes. 

Chairman HATCH. Okay. Well, Justice Brown, Senator Feinstein 

mentioned that she was deeply troubled by your dissenting opinion 

in People v. McKay. However, I have got to say I am deeply impressed with your opinion in that particular case, which involved 

a young man arrested for riding his bicycle in the wrong direction. 

You were the sole dissenter in a 6–1 decision. 

Now, would you please take some time and tell this Committee 

about that case and why you wrote a separate opinion dissenting, 

in part? 

Justice BROWN. Thank you for the opportunity to explain that 

case, Mr. Chairman. I was somewhat surprised that Senator Feinstein took issue with that case. It’s true I was the lone dissenter, 

but it was a case where there was a use of a very minor infraction 

to generate a very broad-ranging search, and that happened because under California law you can’t really be arrested for an infraction. It’s a cite and release, and so there would never be any 

search incident to arrest. 

But in a circumstance where it’s a minor infraction and then you 

don’t provide what is considered to be adequate identification, then 

the officer is permitted to actually arrest the person who has been 

stopped. And what happens is that once you have an arrest or a 

81

potential arrest, then you can have a search incident to that arrest, 

and that’s a very broad-ranging search. 

So what happened in this case was a man who was stopped for 

riding his bicycle on the wrong side of the street ended up being 

subjected to a custodial search, essentially; contraband was discovered, and he ended up with a 3-year prison sentence. 

So what I was doing in that case was simply saying to my colleagues to give this kind of unbridled discretion to a police officer 

invites discriminatory enforcement, and that was very consistent 

with prior precedent of our court, which had in a slightly different 

context said that that was inappropriate. 

So even though what the court did was justifiable under precedent, there was other alternative precedent which would have allowed them to reach a different conclusion in this case, or at least 

so I thought. And I thought it was worth exploring that and making that argument. Unfortunately, I didn’t convince any of my colleagues. 

Chairman HATCH. But you felt it was an unreasonable search 

and seizure under the circumstances. 

Justice BROWN. I did. 

Chairman HATCH. Under the Fourth Amendment. 

Justice BROWN. I thought that to permit that kind of search 

under those circumstances really opens up the potential for a lot 

of small infractions to be turned into basically general searches, a 

kind of law enforcement mechanism that could be applied very arbitrarily. 

Chairman HATCH. That I have to say I don’t think the Supreme 

Court of the United States would permit in its current makeup. 

Now, could I just finish this? My time is up, but I will try and finish this line of thought. 

You wrote in your opinion some striking language that I would 

ask you to comment upon after I finish quoting you. You wrote, ‘‘In 

the spring of 1963, civil rights protests in Birmingham united this 

country in a new way. Seeing peaceful protesters jabbed with cattle 

prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the Nation.’’ You 

go on to say, ‘‘Without being constitutional scholars, we understood 

violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm 

is still being done to people because they are black or brown or 

poor, the oppression is not lessened by the absence of television 

cameras.’’ 

You continue: ‘‘I do not know the defendant’s ethnic background. 

One thing I would bet on’’—this is your opinion, what you wrote 

in it. ‘‘One thing I would bet on, he was not riding his bike a few 

doors down from his home in Belair or Brentwood or Rancho Palos 

Verdes, places where no resident would be arrested for riding the 

‘wrong way’ on a bicycle, whether he had his driver’s license or 

not.’’ 

Well, it would not get anyone arrested unless he looked like he 

did not belong in the neighborhood. You understand that, don’t 

you? Let me continue. 

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‘‘That is the problem, and it matters. If we are committed to a 

rule of law that applies equally to ‘minorities as well as majorities, 

to the poor as well as to the rich,’ we cannot countenance standards 

that permit and encourage discriminatory enforcement.’’ 

You made those comments in that opinion, didn’t you? 

Justice BROWN. I did. 

Chairman HATCH. And some of those comments came because 

you understood through your background how oppressive unreasonable searches and seizures might be, not because you had unreasonable searches and seizures, but you saw people in the South 

who were exposed to that type of bad treatment or you knew of 

them. 

Justice BROWN. That’s right, Mr. Chairman, because discriminatory enforcement is another way to discriminate, and the point I 

was trying to make there is that there may be more subtle forms 

of discrimination, but we nevertheless have to continue in our aspiration to root that out wherever we find it and to make sure that 

everyone is treated equally before the law. 

Chairman HATCH. Well, I would just note for the record something remarkable that Timothy P. O’Neill, professor of law at the 

John Marshall Law School in Chicago, wrote regarding this case. 

In calling upon Illinois not to make what he sees as the ‘‘mistake 

that the California Supreme Court made in McKay’’, that is, what 

Mr. O’Neill characterizes as allowing ‘‘police to flout State laws on 

arrests,’’ Mr. O’Neill approvingly cites and quotes from Justice 

Brown’s opinion before writing, ‘‘Justice Janice R. Brown’s concurring and dissenting opinion in McKay should be required reading 

for all criminal lawyers.’’ High praise indeed. 

Now, I think it is really unfair to have you, the nominee of the 

President of the United States for the Circuit Court of Appeals for 

the District of Columbia, be picked apart on perceptions of what 

you might have done on half of your cases—not even half but some 

isolated cases that have been quoted here and will be quoted more 

perhaps before this hearing is over, and ignoring all of the terrific 

legal work you have done. 

I happen to agree with your cases that are being criticized here. 

I think you can explain every one of them and explain them intelligently and show that not only you are in the mainstream, you are 

one of the great jurists in this country. But ignore all the other 

great cases that you have done? To pick isolated cases? We are 

known to do that here on this Committee. It is not fair, but then, 

again, members can do whatever they want to do on this Committee, within reason. 

So I just want you to know that I don’t see one reason in the 

world for anybody not to support your confirmation here, but let’s 

listen to the other side and see what they have to say. 

Senator Durbin? 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Justice Brown, during the lunch break, a number of my colleagues in the Senate asked me, ‘‘How is your hearing going with 

Justice Brown?’’ and I told them that you made a very positive impression, that some of the information that was brought forward by 

my Republican colleagues about a terrible racist cartoon I thought 

really created an environment within the Committee where people 

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were really trying their best to be as fair as they could under very 

trying circumstances. 

But I said—and I think others on the Committee have agreed 

with me here—we struggle with nominees who come before us and 

don’t just say, ‘‘Take me for what I’ve said. There are some things,’’ 

some of the nominees say, ‘‘that I now agree with and some things 

I don’t agree with.’’ 

As Chairman Hatch has said, you have been party to a lot of decisions as appellate court judge and a Supreme Court Justice, and 

it is almost like Senator Hatch and myself—well, maybe not so 

much in his case, but if you look at all the votes we have cast, you 

can just about mold whatever kind of political figure you want out 

of those votes. 

But over time, an impression is created, and the impression may 

be of a conservative to my right and a liberal to his left. But that 

is just a natural conclusion. 

I think the thing that continues to trouble me is this belief that 

judges are automatons, that it is just almost a robot reaction, that 

all you have to be told is here is the precedent, here are the facts, 

and here is the decision that comes out the other end. I don’t think 

that is how it works. I really believe that there is an element of 

judgment involved here, and whenever there is judgment, there is 

subjectivity. You will see some facts differently than your colleagues. We do in the Senate. We do in the House. And the question then is: When there is a subjective element, what will be going 

through your mind? That is probably what we are asking here. 

I don’t apologize for raising questions about opinions that you 

have written. If we cannot ask questions about those, I might say 

to the Chairman, why are we even here? There is no point in it. 

We are just supposed to take President Bush’s nominees and say, 

if you like them, Mr. President, that is just fine? I don’t think that 

is our responsibility. I think we have more that we have to look to. 

I want to go to two specific areas here and see if I can ask you 

for your reasoning. People v.Mar, involving a criminal defendant 

who was asked to wear a 50,000-volt stun belt during the trial, the 

defendant was on trial for resisting arrest, forced to wear the stun 

belt beginning on day two of the trial, though he had been well behaved on the first day. Wearing that stun belt made him nervous, 

especially during his testimony, and stun belts have a history of accidental activations and the belt administers a 50,000-volt shock 

for 10 seconds, enough to cause immediate uncontrolled body seizures as well as skin welts and the like. 

You were the dissenting vote in that case. The rest of the Justices on the Supreme Court—and as I might remind those following 

this, six Republicans, one Democrat. The rest of the Justices on the 

court felt that it was unfair to require this defendant to wear this 

apparatus while he was on trial, a very serious trial, a very serious 

charge. 

You suggested in your dissent that a high school student could 

do a better job than the majority on your court, the court that you 

serve on, of researching the issues. You accused your colleagues of 

‘‘rushing to judgment after conducting an embarrassing Google.com 

search for information outside the record.’’ 

Do you stand by those statements today? 

84

Justice BROWN. Well, I thank you for asking that question, Senator, because it is something I really would like to explain. 

The question that was before our court was: one, should the trial 

court have held a hearing to decide whether restraints should be 

used? And, two, if yes and they did not, was the error prejudicial? 

So the court decided based on an earlier precedent that we have 

called Duran that there should have been a hearing. It wasn’t completely clear that a hearing was required because the basis of 

Duran was that visible restraints might have an effect on the jury 

and, therefore, the court should look and make a finding that those 

visible restraints were required. 

So it wasn’t clear what should happen when the restraints were 

not visible. But assuming that the court is right, that there should 

have been a hearing and there should have been a finding, then 

the next question was: Was there prejudice? And the court actually 

doesn’t find that there was prejudice. This defendant testified fully. 

Now, so let me go back to the beginning here. I don’t know 

whether a stun belt should be used here. I don’t know whether a 

stun belt should ever be used. I don’t know exactly how these stun 

belts operate, and I don’t know exactly what they do. And the reason for that is that question was never presented to the court. 

There was nothing in the record before us about that because that’s 

not what the case was about. 

So the majority here may well be right, and in a different kind 

of case, were it a case for a declaratory relief saying these shouldn’t 

be used, where both sides had an opportunity to present their evidence, they might well have reached that conclusion. 

In a case where something had happened to this particular defendant and it was a tort claim of some kind, where there was evidence on both sides and there was a record presented to us, that 

might be the right conclusion. 

I am not saying in any of this that stun belts should be used or 

that that’s a good idea or anything. My concern in this case was 

about what the court did. There is a particular way that appellate 

process is supposed to be conducted, and it is to look at the law 

and the facts, the claim that is being presented in the particular 

case, and to resolve that case. And so what the court was doing 

here was completely outside the record. 

So I don’t think that what I was saying there is at all odd or outside the mainstream or anything like that. I think everybody 

agrees how appellate courts are supposed to operate, and here the 

court just decided it would do otherwise. 

Senator DURBIN. On its face, wearing a 50,000-volt stun belt 

while you are criminal defendant during the course of your trial, 

you couldn’t accept that that might create some psychological problem for the defendant? 

Justice BROWN. Well, the record doesn’t actually establish that. 

The defendant testified fully. And there’s no indication that he was 

inhibited in any way. That’s the problem. An appellate court—I 

could speculate all kinds of things. But the court is actually supposed to rule on the basis of the record. 

Senator DURBIN. Well, I read the record here, and frankly I think 

there is evidence that, at least as counsel said, ‘‘he feels that putting the belt on him now is basically creating a difficult mind situaVerDate 0ct 09 2002 16:29 May 26, 2004 Jkt 093738 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93738.TXT SJUD4 PsN: CMORC
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tion for him to be able to think clearly and be able to testify properly without having a breakdown of his strong emotions.’’ That is 

in the record. That is what you had before you. 

Justice BROWN. That’s what counsel said before he testified, but 

he testified and none of those things happened. 

Senator DURBIN. Well, I just frankly think if we are going to go 

around with 50,000-volt stun belts and hand them out to Senators 

and witnesses before committees, I think we may have shorter 

hearings and different questions and most of us will take judicial 

notice of why. And I can’t understand why you were the single dissent in that— 

Chairman HATCH. But normally we don’t have violent criminals 

in our courtroom here. 

Senator DURBIN. Well— 

Chairman HATCH. Although I have seen some. 

Senator DURBIN. But the point I want to make is if we are talking about a presumption of innocence, which at times it is painful 

to presume, and we are talking about a criminal defendant having 

a chance to defend himself before a jury of his peers, you can’t 

stack the deck going in. You basically have to say there is going 

to be a fair trial. And this went to it. 

Let me go to one other point, if I might, and that is this whole 

question of property rights, because I think that keeps recurring in 

your speeches. In fact, you have made reference to it today. And 

I would like to ask you if you believe there is a hierarchy of rights 

in this country and whether in that hierarchy of rights that the 

rights to property are as equal to or greater than the rights which 

we customarily assign to people in terms of their own freedoms and 

liberties, speech, religion, assemblage, privacy. 

Where do you put the right to property in that hierarchy? 

Justice BROWN. Well, I think there has been a great deal of discussion about the dichotomy that was created, and I think even the 

Supreme Court itself has in more recent cases acknowledged that 

that dichotomy, that notion that property rights are not entitled to 

the same level of protection as what is called fundamental rights 

or fundamental liberties, I think the Supreme Court itself has reconsidered that and certainly has said something like that in cases 

like Nolan and Dolan. 

There’s nothing that I can see in the grammar or the way the 

provision is put together that suggests to me that the drafters of 

the Constitution were looking at this differently. And there is much 

historical information that suggests that they saw property and liberty as indivisible. In other words, they were sort of opposite sides 

of the same thing, and there’s the language that’s often used that 

property is the guardian of every other right. 

Senator DURBIN. So do you believe—I want to make sure this is 

clear for the record because some of your speeches I think go far 

afield of what you have just said. Do you happen to believe that 

the liberty of the individual is equal to the property rights of another individual in this hierarchy of rights? 

Justice BROWN. Well, I want to answer this question clearly, and 

I’m not sure, the way you phrased the question. But let me try to— 

Senator DURBIN. I want you to put it in your words. 

Justice BROWN. Okay. 

86

Senator DURBIN. Forget my question. Just explain your thinking. 

Justice BROWN. Let me try to put it in my words. I believe that 

property and liberty—when the Fifth Amendment says, you know, 

no deprivation of life, liberty, or property without due process of 

law, it seems to me that those are really all on the same level. I’m 

not saying that, you know, property is greater, but I really think 

that it’s very clear that property and liberty are linked in the 

minds of the drafters of those provisions. And one of the very interesting things that I have seen lately is an essay by Madison where 

he talks about the—you know, he talks about property in a way 

that almost brings together property rights and the First Amendment because he’s essentially saying a man has a property in his 

ideas. 

Senator DURBIN. You wrote in this famous speech to the Federalist Society, since it has become famous today— 

Justice BROWN. It has become famous. Actually, the audience 

was only about 40 people, and so it’s gotten much wider distribution now. 

Senator DURBIN. It is a very—you know, you talk about doing 

these speeches part-time. Even though I do not agree with much 

of your speech, it is an excellently researched and footnoted speech. 

So if this is what you do part-time, I don’t know if your husband 

gets to see you at all. 

But let me just say this: You say in this speech, ‘‘Protection of 

property was a major casualty of the Revolution of 1937.’’ That, of 

course, refers back to Franklin Roosevelt’s New Deal. What did you 

mean by that? 

Justice BROWN. I don’t think that’s at all controversial. After 

1937—there’s a famous footnote in a case called Carolene Products, Footnote 4, that infamous footnote, where the court basically said, 

well, we are kind of just going to do rational basis review of economic regulation, but we will do a stricter scrutiny where the 

rights of—I believe the phrase they use is—‘‘insular minorities’’ is 

involved. And so that’s the beginning of the Supreme Court jurisprudence that says, well, you know, property rights, all you have 

got to have is a rational basis for doing it; but if you’re getting into 

these fundamental liberties, then we are going to have strict scrutiny and we are going to really look very carefully at what the legislature is doing. 

But I do think that the court has begun to rethink that, and not 

just recently— 

Senator DURBIN. Do you think that is wrong? Do you think that 

conclusion is wrong? 

Justice BROWN. That you should have a different level of scrutiny— 

Senator DURBIN. Different standard for property rights as opposed to these so-called fundamental rights. 

Justice BROWN. Yes, because I think that—I wish I could articulate this better, but I think that they’re the same thing. I mean, 

I really think that—I come across again and again in the historical 

reading that I do this idea that the Founders saw this as indivisible. And it makes sense. If you don’t have the wherewithal, you 

know, to keep a roof over year head, to provide for your needs and 

so forth, your political rights are not going to be very meaningful. 

87

Senator DURBIN. But do you not concede as well—and Senator 

Hatch has read, I thought, a very stirring quote from one of your 

opinions. Do you not concede as well that if we equated property 

rights with personal rights, the civil rights movement would have 

been a much different civil rights movement? Because the people 

who were arguing against opening up their hotels and their restaurants for the accommodations of people of color were basically 

people who said these rights of these individuals don’t supersede 

your rights as property owner and business owner. 

Now, when you sit before us here and say I think they are the 

same, do you understand why someone on this side of the table, 

maybe on this wing of the table, would scratch their head and say, 

How can she say that? How can you reach that conclusion in light 

of the history of this country over the last 75 years? 

Justice BROWN. Well, Senator, I’m very glad that you explained 

what you were thinking because that clarifies for me, and so I 

think I can respond to that. 

When I say they are the same—and, you know, that they are—

I am really looking at the Fifth Amendment in particular and this 

idea of, you know, whether you have to have compensation, in 

other words, taking for a public purpose without compensation. I’m 

not saying that you could never regulate property. Property has 

been regulated since the—you know, since the beginning of this 

country. I’m not saying that you could never have laws that say 

that people who are in a business that you regulate have to behave 

in a certain way. California has a very long history of anti-discrimination laws that says if you are a commercial establishment, you 

have to treat everybody the same. I don’t think there’s any problem 

with that at all. 

Senator DURBIN. Well, all right. I think we are getting closer to 

an understanding of one another’s position on that, and I think 

that when I read your speech—and, Mr. Chairman, with your permission, I would like to have this speech to the Federalist Society, 

which you, I believe, were on the board of, entered into the record 

at this point in the hearing. 

Chairman HATCH. Without objection. 

Senator DURBIN. I think when people read this speech, they 

might draw a different conclusion than what you have just said, 

and therein lies the difficulty. I have never seen you before. I have 

never heard you speak before. To my knowledge, we have never 

met before. All I have to go on is what you have written and what 

you have given to us in your speeches and in your court opinions. 

And they lead many of us on this side of the aisle to the conclusion 

that your views are not mainstream views. 

Now, you have explained some of them today, and some you have 

qualified, modified, maybe some you have changed, whatever, however anyone wants to characterize it. But I hope that you understand that what we are about here is to try to understand who you 

are, and in that moment of subjectivity as a judge, which each legislator and each judge has, we would like to know what is going 

to move you forward, what will your values be. And that is the purpose of these questions, and I thank you for coming today, as well 

as your husband. 

88

Justice BROWN. Well, I thank you also, Senator, and I hope that 

I have been able to allay some of your concerns. And one thing that 

may help you is to look at how I have talked about this in opinions, 

and I think it will be very clear to you that what I am talking 

about when I saw I have a problem with this dichotomy is that just 

this idea that economic regulation doesn’t deserve any attention. 

Chairman HATCH. Well, thank you. Let me just follow up with 

just a few clarifying things. The Fifth Amendment of the United 

States Constitution states in its final clause, ‘‘nor shall private 

property be taken for public use, without just compensation.’’ That 

is basically what you believe in. 

Justice BROWN. Exactly. 

Chairman HATCH. When it comes to property rights, and that is 

expressly in the Constitution. Right? 

Justice BROWN. Yes, and I feel very strongly that where language 

is expressly in the Constitution, judges have an obligation to enforce the prohibitions in the Constitution. 

Chairman HATCH. Okay. Now, let me just go back to the Lochner 

situation just for a minute, just so we make sure that the record 

is clear. 

In Santa Monica v. Super. Ct., you said for the record that 

Lochner was ‘‘justly criticized,’’ as you have repeated here today. 

Here is your quote: ‘‘The problem with Lochner was not that it 

sought to make judicial review meaningful or that it deemed economic interests worthy of protection. The Lochner court was justly 

criticized for using the Due Process Clause as though it provided 

a blank check to alter the meaning of the Constitution as written.’’ 

I don’t know how anybody could disagree with that, between you 

and me, who understands constitutional law. 

Now, in addition, your reference to the revolution of 1937, you 

said ‘‘in that case’’—it is in quotes—‘‘so that the reference is to the 

so-called revolution of 1937.’’ That was in quotes. Now, here is the 

full quote: ‘‘The revolution of 1937 ended the era of economic substantive due process, but it did not dampen the court’s penchant 

for rewriting the Constitution.’’ 

So what I interpret that to mean is that you were not happy with 

the court’s penchant to use substantive due process in Lochner any 

more than you are enamored with the court’s penchant for using 

substantive due process thereafter. 

Justice BROWN. Well— 

Chairman HATCH. You are not alone in that criticism. 

Justice BROWN. That is correct, and I think that would make me 

very much in the mainstream. That’s right down the middle. 

Chairman HATCH. And there is no question about that. 

Now, let me just take a second or two on this stun belt thing because I think some people might misconstrue some of that, so let 

me do this. As I understand it, you were the sole dissenter in that 

case in which a majority of the California State Supreme Court 

overturned the conviction of a man who was forced to wear a stun 

belt while testifying. 

Now, let me ask you a few questions about the case of People

v.Mar. That is the cases involved, if I understand it, since it has 

been raised. 

89

Justice Brown, the rule in California states that a defendant may 

not be subject to restraints in the courtroom while in the jury’s 

presence unless there is a showing of a manifest need for restraints. Is that correct? 

Justice BROWN. That’s correct. 

Chairman HATCH. Okay. Now, isn’t it true that the facts in this 

case suggested that the defendant posed a danger of violent conduct? 

Justice BROWN. The fact—well, he was, one, arrested for a violent offense and— 

Chairman HATCH. In fact, didn’t the judge himself indicate his 

concern about the defendant’s ‘‘tendency to engage in violent conduct’’? 

Justice BROWN. He did, and there was even some statement 

about some concern from his defense counsel. What the court said, 

though, was that wasn’t a hearing and a finding within the meaning of Duran. But there was some evidence of that. 

Chairman HATCH. All right. Indeed, in permitting the use of restraints, the trial court had found that the defendant, from the 

trial court, ‘‘was on trial for assaulting a guard, he had previously 

been convicted of escape and of assaulting a police officer, and on 

two recent occasions he had threatened correctional officers and 

threatened his own defense attorney.’’ 

The defendant’s own attorney had argued that the defendant was 

incompetent, that he was incapable of having rational conversations with counsel, that his behavior was ‘‘explosive,’’ and that he 

was psychotic. Isn’t that correct? 

Justice BROWN. That’s correct. 

Chairman HATCH. Okay. Up until the decision in Mar, Justice 

Brown, isn’t it true that California courts had seen stun belts as 

humane up until that decision? 

Justice BROWN. Well, they had certainly been used, and the legislature had not prohibited them. 

Chairman HATCH. Let me quote from one court opinion. The 

California Court of Appeals noted that the belt ‘‘does not diminish 

courtroom decorum, is less likely to discourage the wearer from testifying, and should not cause confusion, embarrassment, or humiliation.’’ 

Now, Justice Brown, your argument was simply that the defendant had not demonstrated that he was in any way prejudiced by 

the use of the stun belt, a showing he was required to make. He 

would have to show he was prejudiced, but he didn’t. Is that correct? 

Justice BROWN. That was the issue before the court, and as near 

as I can tell, there is no finding by the majority and no actual argument that there was actual prejudice here. 

Chairman HATCH. Well, the stun belt was not visible to the jury 

either, was it? 

Justice BROWN. That’s my understanding. 

Chairman HATCH. Was there any evidence that the jury knew 

that he was wearing a stun belt? 

Justice BROWN. I don’t know. I’m not aware of anything in the 

record— 

Chairman HATCH. I don’t believe there was. 

90

Justice BROWN. —that suggests they were. 

Chairman HATCH. Yes, I don’t believe there was. But the point 

is that many other cases have upheld the use of stun belts at trial, 

including U.S. Courts of Appeal for the Fifth, Seventh, Ninth, and 

Tenth Circuits and the Colorado, Delaware, Minnesota, and Washington State courts. So to try and say you are outside the mainstream because you dissented in that case, with all these facts the 

way they were, I think is an overreach at best. In fact, I think most 

of the complaints have been an overreach at best. 

Senator DURBIN. Mr. Chairman? 

Chairman HATCH. Yes, Senator Durbin. 

Senator DURBIN. Mr. Chairman, I would like to have permission 

to enter the entire case into the record. 

Chairman HATCH. Without objection. 

Senator DURBIN. I believe that you have read selectively and 

found things that support the witness’ position, but— 

Chairman HATCH. I sure have. 

Senator DURBIN. —there is a lot of evidence to the contrary here 

which I think should be part of the record. Let’s put the entire case 

in. 

Chairman HATCH. That will be fine. We will put that in the 

record. But the point I am making is that reasonable minds can 

differ, and even though you were in the sole dissent, there are a 

lot of other jurisdictions that permit stun belts in the case of violent or dangerous witnesses. And we will put that in the record as 

well. 

I understand there is no other Senator who wants to question. 

Let me just close by saying, Justice Brown, I have been around 

here 27 years. Admittedly, I am a Republican. Admittedly, I like 

this administration. Admittedly, I am pleased with virtually all the 

judgeship nominees that have been nominated by the President, 

and I think most of them have been, without question, superior 

nominees. 

How anybody would not think you are a superior nominee is beyond me. I am impressed with you personally. I am impressed with 

your ability to discuss these very consequential and difficult areas 

of law and to make the sense that you have. You have done better 

than an awful lot of top-level intellectual legal thinkers who have 

appeared before this Committee. 

You have a record that I think is exemplary, although there will 

be those on both sides of this dais who will disagree with you from 

time to time on some of your opinions, as your colleagues on the 

court have done and as you have done with them. 

There is no question about your decency, your honor, your integrity. And I believe there is a real difference between giving speeches where you want to get people excited and get people interested 

and the need to do what is right when you are on the bench, which 

you have done. 

I think if anything comes through to me, it is that you have followed the law regardless of what anybody thinks, including yourself, that the law is the important thing to you. Is that a fair comment? 

Justice BROWN. I think that’s a very fair comment. I have only 

one agenda when I approach a case, and that’s to try to get it right. 

91

My allegiance is to the Constitution. I take an oath as a judge to 

defend the laws and the Constitution of the State of California, and 

I have tried very conscientiously to do that. 

Chairman HATCH. As well as the Constitution of the United 

States of America. 

Justice BROWN. Yes. 

Chairman HATCH. Well, I have to say, I am really impressed 

with you and the way have handled yourself and the intelligent 

way that you have spoken to this Committee and answered questions that have been very difficult questions from both sides of the 

table, but especially from my colleagues’ side because they are naturally interested in who the President nominates and whether they 

are worthy of these very, very substantial and top positions. 

I don’t see how anybody watching this hearing today and listening to you could conclude that you are outside the mainstream of 

American jurisprudence. That is just a shibboleth. That is used a 

lot just because they do not have anything else to use. And that 

has been done by both sides, I have to say. But I believe you have 

handled this hearing very, very well, and I am going to do everything I can to see that you are confirmed to this very important 

position. And I believe once you are on that court you will do a terrific job of serving all Americans, not just one side or the other but 

all Americans, and that is what I would expect of you, and that is 

the least I would expect of you, with the abilities and the intelligence that you have. 

We are grateful that you have sat through this hearing this long. 

It has been a difficult one for you, in a way, but you have handled 

yourself well. 

With that, since there are no further questions from anybody and 

I have kept the record open—unless you have something to say? 

Justice BROWN. I would like just to thank you, Mr. Chairman, for 

chairing this Committee. I would like to thank the ranking chairman. I also want to thank the President for nominating me to this 

position. And if I am confirmed, I would be honored to serve. I 

thank all of the members of the Committee for giving my nomination prompt consideration, and I appreciate their courtesy. 

One person that I forgot this morning when I was introducing 

my family was my mother, whose name is Doris Holland. She is 

not here. She did not think she would be up to the rigor of this 

hearing because she thought they would be abusing her child and 

she wasn’t sure that she could control herself. But I have been 

treated with great courtesy, and I appreciate that very much. 

And I want to make a commitment to every member of this Committee that if I am confirmed to serve on the D.C. Circuit, I will 

not let you down. I have tried all my life to act with principle and 

with integrity, and I know my role as a judge, and I will make 

every effort to do the very best that I can. 

Chairman HATCH. Well, thank you. That is all we can ask of you, 

and I hope our colleagues pay attention to those comments. 

With that, we will recess until further notice. 

[Whereupon, at 3:40 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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