Sen. Kennedy's Diatribe in the Justice Brown Hearing

The following is Sen. Ted Kennedy’s “back-and-forth” with California Justice Janice Rogers Brown, President Bush nominee to the D.C. Circuit Court of Appeals. It has been excerpted from the full transcript of the nomination hearing dated October 22, 2003, as provided by the Federal News Service.

SEN. EDWARD M. KENNEDY (D-MA): Justice Brown, as others have stated, all of us deplore the kind of cartoon that is displayed here and all that it suggests and obviously we have — I’ve been on this committee for some number of years since I’ve been in the Senate and we have really been free from this kind of activity, suggestion. And I must say in the more recent times, some of these kinds of suggestions have been raised but it has no place, any place, in our society, particularly not associated with you.

I’m very concerned about your statements that you’ve made in your speeches which are highly critical of the role of government, this is particularly important because if you’re confirmed you’re going to sit on the D.C. Circuit whose role — job is primarily to review the governmental actions. And I mention again, in your speech at the Federalist Society, you stated where government moves in communities retreat, civil societies disintegrate, our ability to control our own destiny atrophies. The result is families under siege, war in the streets, unapologetic appropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility, the triumph of deceit. The result is that debased debauched culture, which finds moral depravity entertaining, in virtue, contemptible. Now that’s in the Federalist Speech on April 20th. And then in the ’99 speech at Claremont, McKenna College, you stated, where government advances, it advances relentlessly, freedom is imperiled, community impoverished, religion marginalized, civilization itself jeopardized.

Now, the District Court has the very special jurisdiction, National Labor Relations Board, how workers are going to be treated, whether they’re 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 OSHA we’ve 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’s 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 a Civil Action, the book and the movie that was written about — 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 implications for real people and they are government, government, government actions that are out there to protect people.

My question is to you: how in the world can anyone whose rights are being represented and protected by these organizations have any confidence with how you’ll rule in the district court when you’ve 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?

MS. BROWN: Well, Senator, I think they can have absolute confidence. And 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.

SEN. KENNEDY: Well, the reason we raised 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 I differ with it. I think there are legitimate roles, there are other places where it shouldn’t be. But there are legitimate areas where the government has — where we have seen where government hasn’t taken action, where there’s 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 don’t have some protection. You see it with the government role NIH as a governmental agency, National Institute Cancer Research, governmental agency. And your hostility is so extraordinary in these kinds of statements, I was just again startled by the strength. It wasn’t just one speech, it wasn’t just even a phrase that my colleague pulled out about Franklin Roosevelt and socialism. I’m not just taking one comment about the definition of government or even one speech, but several.

MS. BROWN: I understand what you’re saying, Senator, and 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’s important for us to preserve civil society, but I am not saying there is no role for government.

SEN. KENNEDY: Well, I’m not sure that that comes through as clearly as you’ve 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’d like to ask you about your decision in that area. The Supreme Court as you know has held that verbal harassment violates federal job discrimination laws based on sex or race 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 providing remedies to victims of harassment, specifically discussed, verbal harassment and other harassment that might be considered in speech. Let me read you some of the examples when we wrote in Title VII. In the House Report, James Williams (ph) suffered through racial slurs, jokes, pranks, such as the posting of Ku Klux Klan application on the company bulletin board in an oppressively racist work environment. Legislative history shows Ramona Arnold (ph) a female police officer suffered when, among other things, sexual pictures with her name written on them and posted around the station and signs saying, do women make good police officers? No. Were posted around the station house on her supervisor’s car. Rodney Compston-Milright (ph) got along well until he used anti-Semitic references on this. All this spelled out with regards to the verbal harassment.

And then we came to the situation on the Aguilar v. Avis case which you’re 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 didn’t matter that the trial judge found that a court was probably the only way to make harassers stop the using of these slurs. In your dissent, you acknowledged the Supreme Court had held that verbal harassment based on race or sex is unlawful, but you questioned 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 the First Amendment prevents courts from prohibiting verbal harassment under Title VII of the Civil Rights Act of ’64, the federal law against job discrimination based on race, sex, national origin, color discrimination.

You recognized that there were remedies, remedies for damages, but how are we going to expert 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 this verbal, 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?

MS. 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’re 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.

SEN. KENNEDY: Well, the gist of my time is up. What you’re basically saying is that he goes back to work and has to file another case and another case and another case and another case. How many of these — and go through all of the cost for litigation that comes with that, rather than just having what was very clear in the ’91 Act. You mentioned earlier you read and valued legislative history as very clear, and what we’re trying to do in Title VII in ’91. We used these illustrations time and time again in that report, exactly what we were trying to do, and I’m just, you know, disappointed that the fact that that part you found, as a dissenter, unable to follow.

MS. 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.

SEN. KENNEDY: Well, I think you were in the minority on this, were you not?

MS. BROWN: Well, I was in the minority but I was not alone.

SEN. HATCH: Senator, your time is up.