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Editor’s note: On Wednesday, the Senate Judiciary Committee held a hearing on state Supreme Court Justice Janice Rogers Brown’s nomination to the D.C. Circuit U.S. Court of Appeals. Excerpted here are attempts by two senators — Utah Republican Orrin Hatch and Illinois Democrat Richard Durbin — to put into context the coming clash over Brown’s nomination. Sen. Hatch: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 — 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 that trend. The fight over judicial appointments is about more than the dispute of moment. It is about who should govern: the people through their elected representatives or unelected and largely unaccountable judges. President Bush described his judicial nomination standard this way: “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. � My judicial nominees will know the difference.” The powerful liberal groups fighting those nominees also know the difference, but take a different view. They want to win and, since their interests often lose when legislators legislate, they want judges to do it instead. These groups’ strategy is like cooking spaghetti: They throw everything at a 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 demonstrating a commitment to the rule of law over their personal beliefs is not enough. Their personal beliefs alone are deemed disqualifying. I do not 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 most important marks of a good judge. Justice Brown, however, did one thing liberal interest groups cannot 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.” But Justice Brown faces a second hurdle beyond the abortion litmus test that all nominees face. She is a conservative African-American woman, and for some, that alone disqualifies her nomination to the D.C. Circuit, widely considered a stepping stone to the United States Supreme Court. Now, I want to make clear that I am not referring to any of my colleagues here on the Committee. But let me show you [holds up political cartoon] what I am talking about — an example of how low Justice Brown’s attackers will sink to smear a qualified African-American jurist who doesn’t parrot their ideology. I hope that everyone here considers this cartoon offensive and despicable; I certainly do. It appeared on a Web site 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 isn’t even qualified to share the stage with the despised Justice Thomas. 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. � 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 standard prevails, and that the downward slide of the confirmation process can be reversed. Let’s seize this opportunity and make that happen today. * * * Sen. Durbin: Today we are here to consider the nomination of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit. I think it will come as no surprise to anyone here today that this nomination is one that will be closely scrutinized by many Senators on the Judiciary Committee. Justice Brown has a lengthy record both on the bench and off, and her record raises a variety of concerns about her judicial philosophy and fitness for a lifetime appointment to the D.C. Circuit. It is for just this purpose that the Constitution entrusted the appointment and confirmation of lifetime positions on the federal courts to not just one but to two branches of the government, and I know that this Committee takes its responsibility seriously. Those of us who have exercised our constitutional duty to examine the records of judicial nominees have been barraged by some partisans with shrill and unfounded name-calling because of it. Let us hope that today we will see the end of that ugly game. When we opposed Charles Pickering, we were called anti-Southern. Of course our critics overlooked the fact that 38 percent of the judges we have confirmed are from the South, while Southern states make up about 25 percent of the nation’s population. 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 Priscilla Owen, they were reduced to branding us as being anti-woman. And, in an especially despicable ploy that had not been seen in the Senate in modern times, when we opposed William Pryor, they stooped to religious McCarthyism, which has no place in the United States Senate, or anywhere else in America. Today, let us focus on the qualifications and the record of the nominees before us. Let the consideration of nominees not stoop to name-calling. When Senators of good conscience and true purpose ask serious, substantive questions of this nominee, let us stick to the substance and not sink to slurs that they are being anti-African-American. 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 to sit on the independent federal judiciary. No matter what position any senator takes on this nomination, whether it is in support or opposition, I know that it will not be taken because of race. I expect that those who ultimately support Justice Brown, even though they oppose affirmative action, will do so because they believe she would be even-tempered and even-handed. Those who may ultimately oppose her will do so because they retain serious doubts about her nomination, see her as an ideologue or a judicial activist, or for principled reasons without regard to her race. Because of her record, several organizations 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, the Honorable Eleanor Holmes Norton. Are these groups and individuals going to be accused of being anti-African-American in the way Hispanic organizations and leaders were maligned during the debate on the Estrada nomination? Let us hope for better. And let us hope that during the questioning and the debate over this nomination we can focus on substance, because there is much to discuss. Justice Brown’s outspoken judicial philosophy is unique. It raises many concerns. But that is what the hearing process is for — to give Justice Brown an opportunity to explain her views on 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 has spoken on all of these topics and more, and I find some of her views difficult to reconcile with one another. � Scores of President Clinton’s nominees were not treated fairly, including Elena Kagan and Allen Snyder. Each was nominated unsuccessfully to vacancies on the D.C. Circuit. Elena Kagan and Allen Snyder were never allowed a Committee vote or Senate consideration. Dean Kagan, who now heads the Harvard Law School, never even received a Committee hearing. That is not how this president’s nominees have been treated. Both of his previous nominees received hearings and extensive consideration by the Senate. Justice Brown’s is this president’s third nomination to the D.C. Circuit, and all three will have received hearings. Indeed, with the confirmation of John Roberts to the D.C. Circuit earlier this year, the Senate has already confirmed more of President Bush’s nominees to the D.C. Circuit than the Republican majority was willing to consider and vote on in the entire last three years of President Clinton’s administration. �

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