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On the Record

The Senate Judiciary Committee struggled over President Bush's nomination of conservative California Supreme Court Justice Janice Brown to the D.C. Court of Appeals. Some Democrats sought to forestall the Brown nomination, fearing that President Bush may be grooming her for a potential appointment on the Supreme Court.

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  • KWAME HOLMAN:

    Orrin Hatch, chairman of the Senate Judiciary Committee, has presided over dozens of congressional battles over federal court nominations, most recently the aborted nomination of Miguel Estrada to the federal court of appeals for the District of Columbia.

  • SEN. ORRIN HATCH:

    Miguel Estrada, in my opinion, was treated shamefully by this committee.

  • KWAME HOLMAN:

    And so this morning, as he opened the confirmation hearing for Janice Brown, President Bush's replacement nomination for the D.C. Circuit Court of Appeals, Senator Hatch issued a blunt statement intended to put politics squarely on the table.

  • SEN. ORRIN HATCH:

    She is a conservative African American woman, and for some that alone disqualifies her nomination to the D.C. Circuit widely considered a stepping stone to the United States Supreme Court.

  • KWAME HOLMAN:

    To illustrate his point, Hatch held up an editorial cartoon found on a Web site devoted to black journalists, which he said was intended to smear Brown's nomination.

  • SEN. ORRIN HATCH:

    It maligns not only justice brown, but others as well. Justice Thomas, Colin Powell and Condoleezza Rice. It's pathetic.

  • KWAME HOLMAN:

    And Janice Brown asked to respond.

  • JANICE BROWN:

    People have said to me, you know, "It's not personal." It's — I just want to say that it is personal; it is very personal to the nominee and to the people who care about them.

  • KWAME HOLMAN:

    But Illinois Democrat Dick Durbin noted there was politics involved in the decision to nominate Brown in the first place. While welcoming Brown and recognizing her seven years of service on the California State Supreme Court Durbin wondered why President Bush looked 3,000 miles from Washington to find a nominee for the supreme court of appeals.

  • SEN. DICK DURBIN:

    Perhaps it's not hard to understand. There are only 71,000 members of the D.C. bar who might have been considered. I am told 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 don't think there is any sitting member of the D.C. Circuit at this point who has had no background in the D.C. government or with federal agencies.

  • KWAME HOLMAN:

    Durbin then explained why dozens of environmental women's and minority groups, including the NAACP and the Congressional Black Caucus, oppose Brown's nomination.

  • SEN. DICK DURBIN:

    They say you are a result-oriented judicial activist who fashions her opinions to comport with the politics. You are a frequent dissenter in a rightward direction, which is quite a feat, given that you serve on a court with six appointed Republican judges and one Democrat.

  • KWAME HOLMAN:

    Brown's critics cite her dissent on a court ruling that overturned a law requiring minors to get a parent's or judge's approval for an abortion, her contention that repeated racial slurs in the workplace were protected by the right to free speech, and another case, in which she likened affirmative action to racial segregation. Wisconsin Democrat Russ Feingold questioned Brown about her opinion in a case involving the right of age discrimination victims to sue.

  • SEN. RUSS FEINGOLD:

    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?

  • JANICE BROWN:

    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 is different from being a racial minority or gender discrimination.

  • KWAME HOLMAN:

    Chairman Hatch focused on a search-and-seizure case in California that he said Brown's opponents have chosen to ignore.

  • SEN. ORRIN HATCH:

    In this case you would have suppressed drug evidence obtained from the defendant whose only apparent crime was riding a bicycle the wrong way down the street, is that right?

  • JANICE BROWN:

    That's correct. That was one of those cases which Sen. Durbin pointed out in which I was the lone dissenter. But I was the lone dissenter because it's very clear that what was happening here is that these minor traffic infractions could actually be used to justify these very broad searches. And I argued very strenuously that to give that kind of discretion to law enforcement was likely to lead to arbitrary and discriminatory enforcement.

  • KWAME HOLMAN:

    But members' questions went beyond Brown's court opinions. Several said they were troubled by her personal opinions delivered in speeches, which they said revealed a general mistrust of government. Vermont's Patrick Leahy quoted from a speech Brown gave to the Federalist Society.

  • SEN. PATRICK LEAHY:

    When government moves in, community retreats. Civil society disintegrates. 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.

  • KWAME HOLMAN:

    Massachusetts Democrat Edward Kennedy:

  • SEN. EDWARD KENNEDY:

    Your hostility is so extraordinary in these kinds of statements.

  • JANICE BROWN:

    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's important for us to preserve civil society, but I am not saying there is no role for government.

  • KWAME HOLMAN:

    California Democrat Diane Feinstein:

  • SEN. DIANNE FEINSTEIN:

    Your views are stark. So they question I have, is that the real you?

  • JANICE BROWN:

    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.

  • SEN. DIANNE FEINSTEIN:

    Then you would say that the quote which I read to you yesterday — and I'll 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?

  • JANICE BROWN:

    Well, as we discussed yesterday, I am myself part of government. I think there are many things that the government does well, many things that only government can do. But I am referring there to the unintended consequences of some things that government does.

  • KWAME HOLMAN:

    Dianne Feinstein said she hasn't made up her mind how she will vote on her home-state nominee. In fact, few senators would go on the record today with pledges of support. A committee vote is expected within a few weeks.

  • JIM LEHRER:

    Margaret Warner has more.

  • MARGARET WARNER:

    And for more on how the Brown nomination fits into the larger battle over President Bush's judicial picks, we're joined by NewsHour regular Jan Crawford Greenburg of the Chicago Tribune. She was at today's Senate hearing.

    Welcome back, Jan. First of all, what are the Democratic senators saying about Janice Brown and why she among all the roster of the Bush nominees is now in their sights?

  • JAN CRAWFORD GREENBURG:

    Well, they say that her opinions and her speeches show that she is a right wing activist who would curtail civil rights, programs that have benefited women, minorities, the environment, the disabled and she would ignore the law to reach that desired result. But that's not all that's motivating this. I mean democrats have approved conservative nominees in the past or voted for them. They are acutely aware that if she is confirmed to this very influential federal appeals court that she would be on a very short list for the U.S. Supreme Court.

  • MARGARET WARNER:

    Now put this nomination in the context of the whole Bush administration slate of judicial nominees. Where does the scorecard stand?

  • JAN CRAWFORD GREENBURG:

    Well, that depends on who is keeping the scorecard. The Democrats say that they've approved a number of Bush nominees, more than 150 to the federal trial and federal appeals courts. But the Republicans focus on their record at the federal appeals court level and the extraordinary use of a filibuster to defeat federal appeals court nominees. Keep in mind Miguel Estrada was forced to withdraw just last month. Two other nominees are subject to filibusters on the Senate floor. Two others are expected to be filibustered when their nomination gets to the floor.

  • MARGARET WARNER:

    You mean there are two others that have been through the committee that haven't gone to the floor but they too will be filibustered?

  • JAN CRAWFORD GREENBURG:

    That's right.

  • MARGARET WARNER:

    This of course is just the tip of the iceberg what we just watched, these hearings. There's a lot of lobbying, a lot of interest groups on both sides. How much influence do they usually have?

  • JAN CRAWFORD GREENBURG:

    Well, there are a number of groups on both sides particularly on the left that do extensive preparation to get ready for these hearings. They describe in detail the nominees' records, their opinions, any paper trail that they can provide. They provide that, of course, to the senators. Senators do their own research o these nominees are very well vetted by both sides.

  • MARGARET WARNER:

    And how does the White House try to counter it? Say if you have in this case the traditional women and black groups, for instance, opposing a black woman. What does the White House do to counter that and try to pull over some Democratic senators?

  • JAN CRAWFORD GREENBURG:

    Sure, while the White House turns to groups of its own to offer support. They solicit support from other organizations. Of course, the White House and Republican lawyers on the hill and in the Justice Department prepare these nominees very well for these hearings. They know the kind of questions that they can expect. So both sides are very well prepared for what we saw today on the Hill in these questions of this nominee.

  • MARGARET WARNER:

    From your reading, we heard Kwame say that no one, very few wanted to declare where they were. From your reading and from the past sort of track record, what's your assessment about whether she will be subjected to a filibuster on the Senate floor?

  • JAN CRAWFORD GREENBURG:

    The Democrats today questioned her more aggressively than I've seen them question nominees in the past that they have subsequently filibustered. So based on their positions today I would say it's shaping up to be a 10-9 vote along party lines. And that's been the test. When the Democrats are united at the committee level that has been the test for whether or not the nominees will then be filibustered on the Senate floor.

  • MARGARET WARNER:

    Jan, thanks a lot.

  • JAN CRAWFORD GREENBURG:

    You're welcome.