Biden's History with the nomination of Janice Rogers Brown

 President Joseph R. Biden has officially stated on the record that he would be nominating the first Black Woman to the Supreme Court. In a recent video posted January 27, 2022 on his Facebook page Joe Biden, he also stated that the person that he nominates will have extraordinary qualifications, character, experience, and integrity. This is one campaign promise that President Biden intends to keep. 

We will be saying farewell to Justice Stephen Breyer's after 28 years on the Supreme Court as he retires from his four decades of service to our nation. 

As this is becoming hot news, I was sent a meme that states: The first black woman nominated for the federal bench - Janice Rogers Brown...In 2003 Joe Biden filibustered and voted against nomination, TWICE. See Below. 

Now one thing I am completely against is biased memes, or half truths, or blatant lies. This meme is factual, but let's add some context before we get our panties in a twist. 

In 2003, George W. Bush nominated Judge Janice Rogers Brown to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country's second-most important court. It has produced more Supreme Court justices than any other federal court. Janice Brown was considered highly qualified at the time of her nomination. She served as the Associate Justice of the California Supreme Court from 1996 to 2005 and eventually was confirmed as judge for the U.S. Court of Appeals for the D.C. Circuit in which she served from 2005 until retiring in 2017. Her nomination was stalled for 2 years as part of Democratic opposition to appointments made by George W. Bush. 

The Senate Judiciary Committee held a hearing on her nomination on October 22, 2003. After Judge Janice Rogers Brown's name had passed out of committee and sent to the full Senate, there was a failed cloture (the closing or limitation of debate in a legislative body especially by calling for a vote) vote on her nomination on November 14, 2003. 

Bush re-nominated Brown on February 14, 2005. On April 21, 2005 she was again endorsed by the Senate Judiciary Committee and referred to the full Senate. On May 23, 2005, John McCain announced an agreement between seven Republican and seven Democratic U.S. Senators to ensure an up-or-down vote on Brown and several other stalled Bush nominees. 

During the summer of 2005, Brown was also considered as a possible nominee to replace Sandra Day O'Connor on the U.S. Supreme Court, but Samuel Alito was chosen instead. 

While former Senator, now President Joseph Biden gave a prolific filibuster. Another well known former President Barack Obama, then freshman Senator also strongly opposed her nomination. He characterized her judicial activism as social darwinism. He said:
 

        Justice Scalia says that, generally speaking, the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution. That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document. 

So, where does Biden fit in and what did he state on the floor?

The following is an except from the transcript of the nomination of Judge Janice Rogers Brown:

    Mr. President, my friends and colleagues, I have not been here as long as Senator Byrd, and no one fully understands the Senate as well as Senator Byrd, but I have been here for over three decades. This is the single most significant vote any one of us will cast in my 32 years in the Senate. I suspect the Senator would agree with that. 

    We should make no mistake. This nuclear option is ultimately and example of the arrogance of power. It is a fundamental power grab by the majority party, propelled by its extreme right and designed to change the reading of the Constitution, particularly as it relates to individual rights and property rights. It is nothing more or nothing less. Let me take a few moments to explain that. 

    Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights, and they also have a consequence, and would undermine the protections of a minority point of view in the heat of majority excess. We have been through these periods before in American history but never, to the best of my knowledge, has any party been so bold as to fundamentally attempt to change the structure of this body. Why else would the majority party attempt one of the most fundamental changes in the 216-year history of this Senate on the grounds that they are being denied ten of 218 Federal Judges, three of whom have stepped down? What shortsightedness, and what a price history will exact on those who support this radical move. 

    It is important we state frankly, if for no other reason than the historical record, why this is being done. The extreme right of the Republican Party is attempting to hijack the Federal courts by emasculating the court' independence and changing one of the unique foundations of the Senate; that is, the requirement for the protection of the right of individual Senators to guarantee the independence of the Federal Judiciary.

    This is being done in the name of fairness? Quite frankly, it is the ultimate act of unfairness to alter the unique responsibility of the Senate and to do so by breaking the very rules of the Senate.

    Mark my words, what is at stake here is not the politics of 2005, but the Federal Judiciary in the country in the year 2025. This is the single most significant vote, as I said earlier, that I will have cast in my 32 years in the Senate. The extreme Republican right has made Federal appellate Judge Douglas Ginsburg's ``Constitution in Exile`` framework their top priority. 

    It is their purpose to reshape the Federal courts so as to guarantee a reading of the Constitution consistent with Judge Ginsburg's radical views of the fifth amendment's taking clause, the nondelegation doctrine, the 22th amendments, and the 10th amendment. I suspect some listening to me and some of the press will think I am exaggerating. I respectfully suggest they read Judge Ginsburg's ideas about the ``Constitution on Exile.`` Read it and understand what is at work here. If anyone doubts what I am saying, I suggest you ask yourself the rhetorical question, Why, for the first time since 1789, is the Republican-controlled Senate attempting to change the rule of unlimited debate, eliminate it, as it relates to Federal judges for the circuit court or the Supreme Court?

    If you doubt what I said, please read what Judge Ginsburg has written and listen to what Michel Greve of the American Enterprise Institute has said:

    I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state. 

     Read: Social Security, workmen's comp. Read: National Labor Relations Board. Read: FDA. Read: What all the byproduct of that shift in constitutional philosophy that took place in the 1930's meant.

    We are going to hear more about what I characterize as radical view--maybe it is unfair to say radical--a fundamental view and what, at the least, must be characterized as a stark departure from current constitutional jurisprudence. Click on the American Enterprise Institute Web site www.aei.org. Read what they say. Read what the purpose is. Is is not about seeking a conservative court or placing conservative Justices on the bench. The courts are already conservative. 

    Seven of nine Supreme Court Justices appointed by Republican Presidents Nixon, Ford, Reagan, and Bush 1--seven of nine. Ten of 13 Federal circuit courts of appeal dominated by Republican appointees, appointed by Presidents Nixon, Ford, Reagan, Bush 1, and Bush 2; 58 percent of the circuit court judges appointed by Presidents Nixon, Ford, Reagan, Bush 1, or Bush 2. No, my friends and colleagues, this is not about building a conservative court. We already have a conservative court. This is about guaranteeing a Supreme Court made up of men and women such as those who sat on the Court in 1910 and 1920. Those who believe, as Justice Janice Rogers Brown of California does, that the Constitution has been in exile since the New Deal. 

    My friends and colleagues, the nuclear option is not an isolated instance. It is part of a broader plan to pack the court with fundamentalist judges and to cower existing conservative judges to toe the extreme party line. 

To read more of the Transcript please visit https://www.govinfo.gov/content/pkg/CRECB-2005-pt8/html/CRECB-2005-pt8-Pg10798-9.htm.

My thought on this meme is that we are looking at a minute view of the truth. President Biden's filibusters does not involve any prejudice or racism toward Judge Janice Rogers Brown, but rather a deep concern for the future of nominations that could set a precedent that would muddy the lines between our judicial and legislative branches of government. 

When Biden does find and nominates a black, woman, judge that has extraordinary qualifications, character, experience and integrity, my eyes will be on Republicans to see if due to all of their hypocrisy, whether or not they will accept and confirm Biden's nominees or if they will continue to try and gaslight the President of the United States. Former Republican President Donald Trump and a Republican led congress continued in their haste to put as many conservative judges on the Supreme Court as was possible, which was a blatant fear that Biden addressed during the nomination hearing of 2005, which could in turn have dire consequences to the freedoms that so many of us enjoy. Biden seems to have shied away from the idea of creating more Supreme Court positions which is very much in line with his vision of what America is as well as to shy away from removing the filibuster. But due to his past I fear Republicans will make his job as hard as possible knowing that they have done much to prove his incensed filibuster in 2005 in opposition to some of President George W. Bush's court  nominations. 

Sources for information regarding the timeline of nominating Judge Janice Rogers Brown and her qualifications as well as a dissent by former President Barack Obama. This page also contains references and external links regarding the documentation. 
https://en.wikipedia.org/wiki/Janice_Rogers_Brown