[Congressional Record Volume 148, Number 104 (Friday, July 26, 2002)]
[Senate]
[Pages S7391-S7396]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF JULIA SMITH GIBBONS, OF TENNESSEE, TO BE U.S. CIRCUIT 
                  JUDGE FOR THE SIXTH CIRCUIT--Resumed


                             cloture motion

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now go into executive session and proceed to the cloture 
vote on Executive Calendar No. 810.
  Under the previous order, the Chair lays before the Senate the 
pending cloture motion, which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on Executive 
     Calendar No. 810, the nomination of Julia Smith Gibbons, of 
     Tennessee, to be U.S. Circuit Judge for the Sixth Circuit.
         Harry Reid, Tom Daschle, Charles Schumer, Mitch 
           McConnell, Fred Thompson, Bill Frist, Phil Gramm, Jon 
           Kyl, Charles Grassley, Wayne Allard, Trent Lott, Don 
           Nickles, Larry E. Craig, Craig Thomas, Mike Capo, Jeff 
           Sessions, Pat Roberts, Jim Bunning, John Ensign, Orrin 
           G. Hatch.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call under the rule has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 810, the nomination of Julia Smith Gibbons, of 
Tennessee, to be U.S. Circuit Judge for the Sixth Circuit, shall be 
brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from California (Mrs. Boxer), the Senator from Hawaii (Mr. 
Inouye,) the Senator from Georgia (Mr. Miller), and the Senator from 
Washington, (Mrs. Murray), are necessarily absent.
  Mr. NICKLES. I announce that the Senator from Missouri (Mr. Bond), 
the Senator from Texas (Mr. Gramm), the Senator from North Carolina 
(Mr. Helms), the Senator from Texas (Mrs. Hutchison) the Senator from 
Arkansas (Mr. Hutchinson), and the Senator from Wyoming (Mr. Thomas) 
are necessarily absent.
  The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 89, nays 0, as follows:

[[Page S7392]]

                      [Rollcall Vote No. 193 Exe.]

                                YEAS--89

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Inhofe
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--11

     Biden
     Bond
     Boxer
     Gramm
     Helms
     Hutchinson
     Hutchison
     Inouye
     Miller
     Murray
     Thomas
  The PRESIDING OFFICER. On this vote, the yeas are 89, the nays are 0. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. HATCH. Mr. President, this morning we moved closer to the 
confirmation of Judge Julia Smith Gibbons of Tennessee to the 6th 
Circuit Court of Appeals. In so doing, we will bring relief to a 
Circuit with a 50 percent vacancy rate, with 9 empty seats out of 18, 
despite the fact that the President nominated 6 fine public servants to 
fill those seats on May 9, 2001, well over 400 days ago. I look forward 
to confirming her finally.
  I rise this morning to express my most profound concern for the 
course of judicial confirmations in general and my support for the 
confirmation of Justice Priscilla Owen of Texas. The Judiciary 
Committee gave Justice Owen a 5-hour hearing earlier this week, which I 
am afraid did not do credit to the Committee.
  I will comment on Justice Owens' qualifications, and to address some 
of the deceptions, distortions and demagoguery orchestrated against her 
nomination, that we have all read in the national and local papers.
  I would like first to comment on the two jingos that are being used 
about her record as if they had substance: namely, that Justice Owen is 
``conservative'' and that she is ``out of the mainstream.'' Of course, 
this comes from the Washington interest groups, in many cases, who 
think that mainstream thought is more likely found in Paris, France, 
than Paris, Texas.
  I must admit that it's curious to hear it argued that a nominee twice 
elected by the people of the most populous State in the Circuit for 
which she is now nominated is ``out of the mainstream.'' Texans are no 
doubt entertained to hear that.
  Listening to some of my colleagues' commentary on judges, I sometimes 
think that main-stream for them is a northeastern river of thought that 
travels through New Hampshire early and often, widens in Massachusetts, 
swells in Vermont, and deposits at New York City. Well, the mainstream 
that I know, and that most Americans can relate to, runs much broader 
and further than that.
  The other mantra repeated by Justice Owen's detractors is that she is 
``conservative.'' I believe that the use of political or ideological 
labels to distinguish judicial philosophies has become highly 
misleading and does a disservice to the public's confidence in the 
independent judiciary, of which the Senate is the steward.
  I endorse the words of my friend, and former Chairman of the 
Judiciary Committee, Senator Biden, when he said some years ago that:
  ``[Judicial confirmation] is not about pro-life or pro-choice, 
conservative or liberal, it is not about Democrat or Republican. It is 
about intellectual and professional competence to serve as a member of 
the third co-equal branch of the Government.''
  I believe it is our duty to confirm judges who stand by the 
Constitution and the law as written, not as they would want to rewrite 
them. That was George Washington's first criterion for the Federal 
bench, and it is mine. I also want common sense judges who respect 
American culture. I believe that is what the American people want.

  I believe we do a disservice to the independence of the Federal 
judiciary by using partisan or ideological terms in referring to 
judges.
  My reason was well stated by Senator Biden when he said that: ``it is 
imperative [not to] compromise the public perception that judges and 
courts are a forum for the fair, unbiased, and impartial adjudication 
of disputes.''
  We compromise that perception, I believe, when we play partisan or 
ideological tricks with the judiciary. Surely, we can find other ways 
to raise money for campaigns and otherwise play at politics, without 
dragging this nation's trust in the judiciary through the mud, as some 
of the outside groups continue to do.
  All you have to do to see my point is read two or three of the fund-
raising letters that have become public over the past couple of weeks 
that spread mistruths and drag the judiciary branch into the mud, as 
many recent political campaigns increasingly find themselves.
  On a lighter note, while on ideology, let me pause to point out that 
one of the groups deployed against Justice Owen is the Communist Party 
of America, but then I don't know that they have come out in favor of 
any of President Bush's nominees. I suspect after the fall of the 
Berlin Wall, they must have a lot of time on their hands.
  Today I wish to address just why a nominee with such a stellar 
record, a respected judicial temperament, and as fine an intellect as 
Justice Owen has, who graduated third in her class from Baylor's law 
school, a great Baptist institution, when few women attended law 
school, let alone in the South, who obtained the highest score in the 
Texas Bar examination, and who has twice been elected by the people of 
Texas to serve on their Supreme Court, the last time with 83 percent of 
the votes and the support of every major newspaper of every political 
stripe, I would like to address just why such a nominee could get as 
much organized and untruthful opposition from the usual leftist, 
Washington special interest groups that we see. I will peel through 
what is at play for those groups. We need to expose and repel what is 
at play for the benefit and independence of this Senate.

  And I would like to address also the reasons why I am confident that 
she will be confirmed notwithstanding. Not least of which is that, far 
from being the ``judicial activist'' some would have us believe her to 
be, she garnered the American Bar Association's unanimous rating of 
``well qualified.'' The Judiciary Committee has never voted against a 
nominee with this highest of ratings.
  The first reason for the organized opposition, of course, is plain. 
Justice Owen is from Texas, and Washington's well paid reputation 
destroyers could not help but attempt to attack the widely popular 
President of the United States, at this particular time in an election 
year, by attacking the judicial nominee most familiar to him. Justice 
Owen, welcome to Washington.
  But as I prepared more deeply for the Hearing earlier this week, the 
second reason became apparent to me. In my 26 years on the Judiciary 
Committee I have seen no group of judicial nominees as superb as those 
that President Bush has sent to us, and he has sent both Democrats and 
Republicans.
  In reading Justice Owen's decisions, one sees a judge working hard to 
get it right, to get at the legislature's intent and to apply binding 
authority and rules of judicial construction. It is apparent to me that 
of all the sitting judges the President has nominated, Justice Owen is 
the most outstanding nominee. She is, in my estimation, the best, and 
despite what her detractors say, she is the best judge that any 
American, any consumer and any parent could hope for.
  Her opinions, whether majority, concurrences or dissents, could be 
used as a law school text book that illustrates exactly how, and not 
what, an appellate judge should think, how she should write, and just 
how she should do the people justice by effecting their will through 
the laws adopted by their elected legislatures. Justice Owen clearly 
approaches these tasks with both scholarship and mainstream American 
common sense. She does not

[[Page S7393]]

substitute her views for the legislature's, which is precisely the type 
of judge that the Washington groups who oppose her do not want.

  She is precisely the kind of judge that our first two Presidents, 
George Washington and John Adams, had in mind when they agreed that the 
justices of the State supreme courts would provide the most learned 
candidates for the Federal bench.
  So in studying her record, the second reason for the militant and 
deceptive opposition to Justice Owen became quite plain to me. In this 
world turned upside down, simply put, she is that good.
  Another reason for the opposition against Justice Owen is the most 
demagogic, the issue of campaign contributions and campaign finance 
reform. Some of her critics are even eager to tie her to the current 
trouble with Enron.
  Well, she clearly has nothing to do with that. Neither Enron nor any 
other corporation has donated to her campaigns, in fact, they are 
forbidden by Texas law to make campaign contributions in judicial 
elections. It was embarrassing to me, as it would be to any American 
who watched the hearing earlier this week, to see Justice Owen defeat 
these demagogic allegations, but being a Texas woman, she did so with 
style, elegance, and grace--and without embarrassing her questioners.
  Not that there was even a need for more questions. The Enron and 
campaign contributions questions were amply clarified in a letter to 
Chairman Leahy and the Committee dated April 5 by Alberto Gonzales. I 
will ask unanimous consent, to place this and other related letters 
into the Record. And I would place into the Record a retraction from 
The New York Times saying that they got their facts wrong on this Enron 
story. Such retractions don't come often, not as often as the invention 
of facts by the smear groups. And despite the retraction, CNN was 
repeating the same wrong facts just this week!

  Notably, at the hearing Justice Owen received no questions from my 
Democrat colleagues on her views on election reform and judicial 
reform, of which she is a leading advocate in Texas. She is also a 
leader in Gender Bias Reform in the courts and a reformer on divorce 
and child support proceedings. But my colleagues seemed to take little 
interest in this, nor in her acclaimed advocacy to improve legal 
services and funding for the poor.
  All of these are aspects of her record her detractors would have us 
ignore, I certainly did not read these positive attributes in those 
fancy documents, or should I say booklets, released prior to the 
hearing by the Washington radical special interests lobby.
  I will also ask unanimous consent, to place into the Record letters 
from leaders of the Legal Society and 14 past presidents of the Texas 
Bar Association, many of whom are leading Texas Democrats.
  The fourth reason for the opposition to Justice Owen is the most 
disturbing to me. For some months now, a few of my Democrat colleagues 
have strained to point out when they believe they are voting for 
judicial nominees that they believe to be pro-life. I have disputed 
this when they have said it because the record contains no such 
information of personal views from the judges we have reported 
favorably out of the Judiciary Committee.
  Each time they assert it, my staff has scoured the transcripts of 
hearings and turned up nothing. What does turn up is that each time my 
colleagues have asserted this, they have done so only for nominees who 
are men.
  I am afraid that the main reason Justice Owen is being opposed, is 
not that personal views, namely on the issue of abortion, are being 
falsely ascribed to her, they are, but rather because she is a woman in 
public life who is believed to have personal views that some maintain 
should be unacceptable for a woman in public life to have.
  Such penalization is a matter of the greatest concern to me because 
it represents a new glass ceiling for women jurists. And they have come 
too far to suffer now having their feet bound up just as they approach 
the tables of our high courts after long-struggling careers.
  I am deeply concerned that such treatment will have a chilling effect 
on women jurists that will keep them from weighing in on exactly the 
sorts of cases that most invite their participation and their 
perspectives as women.
  The truth is that Justice Owen has never written or said anything 
critical of abortion rights. In fact, the cases she is challenged on 
have everything to do with the rights of parents to be involved in 
their children's lives, and nothing to do with the right to an 
abortion.
  Ironically, the truth is that the cases that her detractors point to 
as proof of apparently unacceptable personal views are a series of 
fictions. This is what I mean about exposing the misstatements of the 
left-wing activist groups in Washington. I will illustrate just three 
of these fictions.
  The first sample fiction is the now often-cited comment attributed to 
then Texas Supreme Court Justice Alberto Gonzales, written in a case 
opinion, that Justice Owen's dissent signified ``an unconscionable act 
of judicial activism.'' Someone should do a story about how often this 
little shibboleth has been repeated in the press and in several 
websites of the professional smear groups. The problem with it is that 
it isn't true. Justice Gonzales was not referring to Justice Owen's 
dissent, but rather to the dissent of another colleague in the same 
case.

  The second sample fiction is the smear group's misrepresented 
portrayal of a case involving buffer zones and abortion clinics. In 
that case, the majority of the Texas Supreme Court ruled for Planned 
Parenthood and affirmed a lower court's injunction that protected 
abortion clinics and doctor's homes and imposed 1.2 million dollars in 
damages against pro-life protestors. In only a few instances, the court 
tightened the buffer zones against protestors. Justice Owen joined the 
majority opinion and was excoriated by dissenting colleagues, who were, 
by that way, admittedly pro-life.
  When describing that decision then, abortion rights leaders hailed 
the result as a victory for abortion rights in Texas. Planned 
Parenthood's lawyer said the decision ``isn't a home run, it's a grand 
slam.''
  Of course, that result hasn't changed, but the characterization of it 
has. This is how Planned Parenthood describes this same case in their 
fact sheet on Justice Owen: ``[Owen] supports eliminating buffer zones 
around reproductive health care clinics . . .''
  In fact, her decision did exactly the opposite.
  The third and most pervasive sample fiction concerns Justice Owen's 
rulings in a series of Jane Doe cases which first interpreted Texas' 
then-new parental involvement law. The law, which I think is important 
to emphasize was passed by the Texas legislature, not by Justice Owen, 
with bipartisan support, requires that an abortion clinic give notice 
to just one parent 48 hours prior to a minor's abortion. Unlike States 
with more restrictive laws such as Massachusetts, Wisconsin, and North 
Carolina, consent of the parent is not required in Texas. A minor may 
be exempted from giving such notice if they get court permission.

  Since the law went into effect, over 650 notice bypasses have been 
requested from the courts. Of these 650 cases, only 10 have had facts 
so difficult that two lower courts denied a notice bypass, only 10 have 
risen to the Texas Supreme Court.
  Justice Owen's detractors would have us believe that in these cases, 
she would have applied standards of her own choosing. Ironically, in 
each and every example they cite, whether concurring with the majority 
or dissenting, Justice Owen was applying not her own standards but the 
standards enuniciated in the Roe v. Wade line of decisions of the 
United States Supreme Court, which she followed and recognized as 
authority.
  For example, detractors take pains to tell us that Justice Owen would 
require that to be sufficiently informed to get an abortion without a 
parent's knowledge, that the minor show that they are being counseled 
on religious considerations. They appear to think this is nothing more 
than opposition to abortion rights. They are so bothered with this 
religious language that various documents produced by the abortion 
industry lobby italicize the word religious. But this standard is not 
Justice Owen's invention, but rather the words of the Supreme Court's 
pro-choice decision in Casey.

[[Page S7394]]

  Should she not follow one Supreme Court decision, but be required to 
follow another? Is that what we want our judges to do, pick and choose 
which decisions to follow? That appears to be the type of activist 
judge these groups want, and this Senate should resist all such 
attempts.
  The truth is that rather than altering the Texas law, Justice Owen 
was trying to effect the legislator's intent. No better evidence of 
this is the letter of the pro-choice woman Texas Senator stating her 
``unequivocal'' support of Justice Owen.
  Senator Shapiro says of Justice Owen: ``Her opinions interpreting the 
Texas [parental involvement law] serve as prime example of her judicial 
restraint.'' I understand why the Washington left-wing groups don't 
like that in a judge, but the Senate and the Judiciary Committee should 
applaud and commend such restraint and temperament.
  The truth is that, rather than being an activist foe of Roe, Justice 
Owen repeatedly cites and follows Roe and its progeny as authority. She 
has to, it's what the Court has said is the law. Compare this to 
Justice Ruth Bader Ginsburg who wrote in 1985 that the Roe v. Wade 
decision represented ``heavy handed judicial intervention'' that was 
``difficult to justify.''
  In relation to this, I would like briefly to comment on the mounting 
offensive of some to change the rules of judicial confirmation by 
asking nominees to share personal views or to ensure that nominees 
share the personal views of the Senator on certain cases.
  To illustrate my view, I'll tell you that many people have recently 
called on the Judiciary Committee to question nominees as to their 
views on the pledge of allegiance case. My full-throated answer to this 
is no, as much as I think that that case was wrongly decided. I also 
happen to think that the recent School Voucher case is the most 
important civil rights decision since Brown but I am not going to ask 
people what they think about that case either.
  Such questions threaten the heart of the independent judiciary and 
attempt to accomplish by hidden indirection what Senators cannot do 
openly by constitutional amendment. It is an attempt to make the courts 
a mere extension of the Congress.
  I speak against this practice in the strongest terms, and, in my 
view, any nominee who answers such questions would not be fit for 
judicial office and would not have my vote.

  The truth is that there are many who, like Justice Ginsburg, think 
that cases like Griswold or Roe were wrongly decided as a 
constitutional matter even if they agree with the policy result, just 
as the great liberal Justice Hugo Black did in his dissent in Griswold.
  A few weeks ago we heard testimony from Boyden Gray, a former White 
Counsel and a former Supreme Court clerk, that Chief Justice Warren 
though that Brown v. Board of Education was his worst ruling as matter 
of constitutional law, but not his least necessary to end 
desegregation.
  Some of Justice Owen's detractors have made much about the fact that 
she is not afraid to dissent. Of course, they fail to mention dissents 
like her opinion in Hyundai Motor v. Alvarado, in which Justice Owens' 
reasoning was later adopted by the United States Supreme Court on the 
same difficult issue of law.
  They also overlooked here dissent in a repressed memory/sexual abuse 
case where she took the majority to task with these words: ``This is 
reminiscent of the days when the crime of rape went unpunished unless 
corroborating evidence was available. The Court's opinion reflects the 
attitudes reflected in that era.''
  Perhaps, they thought that this dissent showed her too representative 
of American women. Despite deceptive opposition I think that Justice 
Owen should be confirmed.

  I will ask unanimous consent to place into the Record an editorial of 
earlier this week from The Washington Post, a liberal publication, 
calling on us to be fair and calling on this Senate to confirm Justice 
Owen.
  I have hope that my Democrat colleagues on the Judiciary Committee 
will be led by the time-tested standards well-stated by Senator Biden, 
and look again to qualifications and judicial temperament, not base 
politics. Whether the Biden standard will survive past our time, will 
be tested now.
  If we fail the test we will breach our responsibility as auditors of 
the Washington special interest groups and the Judiciary's stewards on 
behalf of all the people, and not just some.
  Mr. President, I ask unanimous consent that the documents to which I 
have referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                              The White House,

                                    Washington, DC, April 5, 2002.
     Hon. Patrick J. Leahy,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy: In our recent conversations, you 
     suggested that the White House should examine whether 
     contributions Justice Owen received for her campaigns for the 
     Texas Supreme Court raise any legitimate issue with respect 
     to her fitness to serve on the Fifth Circuit. We have done as 
     you have suggested, and I see no basis to question Justice 
     Owen's fitness to serve on the Fifth Circuit. The record 
     reflects that she has at all times acted properly and in 
     complete compliance with both the letter and the spirit of 
     the rules relating to judicial campaign finance.
       I am certain you will agree that it was entirely proper for 
     Justice Owen's campaign to receive contributions. Article 5 
     of the Texas Constitution provides that candidates for the 
     state judiciary run in contested elections, which are 
     partisan under Texas election law, and Canon 45(1) of the 
     Texas Code of Judicial Conduct provides that the candidates 
     may solicit and accept campaign funds. Like Senators, 
     therefore, candidates for the state judiciary in Texas may 
     receive contributions to finance their campaigns.
       To be sure, Justice Owen and many others would prefer a 
     system of appointed rather than elected state judges. In 
     fact, Justice Owen has long advocated appointment of judges 
     (coupled with retention elections). She has written to fellow 
     Texas attorneys on the issue, committed to a new system in 
     League of Women Voters publications, and appeared as a pro-
     reform witness before the Texas Legislature. She has 
     explained even to partisan groups why judges should be 
     selected on merit. But the people in some states, including 
     Texas, have chosen a system of contested elections for 
     judges. Elected state judges certainly are not barred from 
     future appointment to the federal judiciary; on the contrary, 
     some notable federal appellate judges whom President Clinton 
     nominated and you supported were state judges who had run and 
     been elected in contested elections--Fortunato Benevides and 
     James Dennis, for example, from the Fifth Circuit.
       I am also certain you would find nothing inappropriate 
     about the sources from which Justice Owen's campaign received 
     contributions. In her 1994 and 2000 elections, Justice Owen's 
     campaign quite properly received contributions from a large 
     number of entities and individuals, with no single 
     contributor predominating. In the 1994 election cycle, her 
     campaign received approximately $1.2 million in contributions 
     from 3,084 different contributors. Included in that total was 
     $8,800 from employees of Enron and its employee-funded 
     political action committee. Employees of Enron thus 
     contributed less than 1% of the total contributions to her 
     campaign. And Justice Owen's campaign, of course, received no 
     corporate contributions from Enron or any Enron-affiliated 
     corporation, as such corporate contributions are not 
     permissible under Texas law. Notably, in the 1994 election, 
     not only did Justice Owen comply with all campaign laws, she 
     went beyond what the law required and voluntarily limited 
     contributions when many other judicial candidates did not do 
     so.
       In the 2000 election cycle, Justice Owen's campaign 
     received approximately $300,000 in contributions from 273 
     different contributors. In that cycle, her campaign received 
     no contributions from Enron or its affiliates, from employees 
     of Enron, or from Enron's political action committee. In 
     addition, Justice Owen ultimately had no Democratic or 
     Republican opponent in the 2000 election cycle, and she 
     closed her campaign office and returned most of her 
     unspent contributions, an act that I believe is unusual in 
     Texas judicial history.
       It was entirely proper for Justice Owen's campaign to 
     receive campaign contributions, including the contributions 
     from Enron employees. Indeed, seven of the nine current Texas 
     Supreme Court Justices received Enron contributions, and 
     several of them received more than Justice Owen's campaign 
     received. As this record demonstrates, elected judges 
     certainly did not act improperly in the past, before anyone 
     knew about Enron's financial situation, by receiving 
     contributions from employees of Enron--any more than it could 
     be said that Members of Congress acted improperly in the past 
     by receiving contributions from Enron.
       If, as is evident from the foregoing discussion, there was 
     nothing amiss with the fact that Justice Owen received 
     donations or with the sources from which she received them, 
     the only other possible area of concern with her conduct 
     relating to campaign contributors would be her decisions from 
     the bench. Texas Code of Judicial Conduct Cannon 3(B)(1) 
     provides that a judge ``shall hear and decide matters 
     assigned to the judges except those in which disqualification 
     is required or recusal is appropriate.'' And it is

[[Page S7395]]

     well-established that judicial recusal is neither necessary 
     nor appropriate in cases involving parties or counsel who 
     contributed to that judge's campaign. See Public Citizen, 
     Inc. v. Bomer, 274 F.3d 212, 215 (5th Cir. 2001); Apex Towing 
     Co., v. Tolin, 997 S.W.2d 903, 907 (Tex. App. 1999), rev'd on 
     other grounds, 41 S.W.3d 118 (Tex. 2001); Aguilar v. 
     Anderson, 855 S.W.2d 799, 802 (Tex. App. 1993); J-IV Invs. v. 
     David Lynn Mach., Inc., 784 S.W.2d 106, 107 (Tex. App. 1990). 
     Indeed, in any state with elected judges, any other rule 
     would be unworkable. The primary protections against 
     inappropriate influence on judges from campaign contributions 
     are disclosure of contributions and adherence to the 
     tradition by which judges explain the reasons for their 
     decisions. If the people of a state deem those protections 
     insufficient, the people may choose a system of appointed 
     judges rather than elected judges, as Justice Owen has 
     advocated for Texas.
       Surmising that the concerns you raised would likely focus 
     on her sitting in cases in which Enron had an interest, we 
     have undertaken a review of her decisions in such cases. We 
     have reviewed Texas Supreme Court docket records and Enron's 
     1994-2000 SEC Form 10Ks to determine the cases in which Enron 
     or affiliates of Enron were parties to proceedings before the 
     Court since January 1995 (when Justice Owen took her seat). 
     The decisions of the Texas Supreme Court since January 1995 
     in proceedings involving Enron have been ordinary and raise 
     no questions whatsoever.
       A judge's decisions are properly assessed by examining 
     their legal reasoning, not by conducting any kind of 
     numerical or statistical calculations. But even those who 
     would attempt to draw conclusions based on such calculations 
     would find nothing in connection with these Enron cases. To 
     begin with, we are aware of no proceeding involving Enron in 
     which Justice Owen cast the deciding vote. In six proceedings 
     in which we know that Enron was a party, Justice Owen's vote 
     can be characterized as favorable to Enron in two cases and 
     adverse in two cases. With respect to the remaining two, one 
     cannot be characterized either way, and she did not 
     participate in the other case because it had been a matter at 
     her law firm when she was a partner. Eight other matters came 
     before the Court in which we know that Enron or an affiliate 
     was a party, but the court declined to hear them. In those 
     matters, the Court's actions could be characterized as 
     favorable to Enron in four cases, adverse in three cases, and 
     one was dismissed by agreement of the parties. We will supply 
     the Judiciary Committee copies of the cases on request.
       There has been some media attention on one case involving 
     Enron in which Justice Owen wrote the opinion for the Court. 
     See Enron Corp. v. Spring Creek Independent School District, 
     922 S.W.2d 931 (Tex. 1996). The issue in that case concerned 
     the constitutionality of an ad valorem tax statute that 
     allowed market value of inventory to be set on one of two 
     different dates. The Court held that the statute did not 
     violate the state constitution--and the decision was 
     unanimous. I understand that two Democratic Justices who sat 
     on the Court at that time (Justice Raul Gonzalez and Rose 
     Spector) have written to you to explain the case, indicating 
     that Justice Owen's participation in the case was entirely 
     proper. Moreover, the lawyer who represented a part opposing 
     Enron in this case (Robert Mott) recently was quoted as 
     saying that criticism of Justice Owen for her role in this 
     case is ``nonsense'' Texas Lawyer (April 1, 2002). In my 
     judgment, this case raises no legitimate issue with respect 
     to Justice Owen's confirmation.
       Finally, I am informed that, if confirmed, Justice Owen 
     will donate all of her unspent campaign contributions to 
     qualify tax-exempt charitable and educational institutions, 
     as is contemplated under section 254.205(a)(5) of the Texas 
     Election Code.
       I trust that the foregoing will resolve all questions 
     concerning the propriety of Justice Owen's activities in 
     relation to financing her campaigns. As you know, I served 
     with Justice Owen, and I am convinced from my work with her 
     that she is a person of exceptional integrity, character, and 
     intellect. Both Senators from Texas strongly support her 
     nomination. The American Bar Association has unanimously 
     rated Justice Owen ``well qualified,'' and one factor in that 
     rating process is the nominee's integrity.
       Despite her superb qualifications and the ``Judicial 
     emergency'' in the Fifth Circuit declared by the Judicial 
     Conference of the United States, Justice Owen has not 
     received a hearing for nearly 11 months since her May 9, 
     2001, nomination. We respectfully request that the Committee 
     afford this exceptional nominee a prompt hearing and vote.
           Sincerely,
                                              Alberto R. Gonzales,
     Counsel to the President.
                                  ____

                                                    April 1, 2002.
     Re Justice Priscilla Owen.

     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, Russell 
         Senate Office Building, Washington, DC.
       Dear Senator Leahy: We served on the Texas Supreme Court 
     with Justice Priscilla Owen when the case of Enron 
     Corporation et al. v. Spring Creek Independent School 
     District, 922 S.W.2d 931 (Tex. 1996) was decided. The issue 
     in this case was the constitutionality of an ad valorem tax 
     statute that allowed market value of inventory to be set on 
     two different dates. In a unanimous opinion, all justices, 
     Democrats and Republican alike, agreed with the opinion 
     authored by Justice Owen that the choice of the valuation 
     date in ad valorem tax statute did not violate a provision of 
     the State Constitution requiring uniformity and equality in 
     ad valorem taxation. We found the decision of the United 
     States Supreme Court and other states instructive on this 
     issue.
       In our ruling, we agreed with the rulings of the Harris 
     County Appraisal District and the trial court.
           Cordially,
     Raul A. Gonzalez,
         Justice, Texas Supreme Court, 1984-1998.
     Rose Spector,
         Justice, Texas Supreme Court, 1992-1998.
                                  ____

                                                  Perdue, Brandon,


                              Fielder, Collins & Mott, L.L.P.,

                                        Houston, TX, July 1, 2002.
     Re Justice Priscilla Owen.

     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, Russell 
         Senate Office Building, Washington, DC
       Dear Chairman Leahy: My name is Robert Mott. I was the 
     legal counsel for the Spring Independent School District in 
     the case of Enron Corporation et al. v. Spring Independent 
     School District, 922 S.W.2d 931 (Tex. 1996). We were the 
     losing party in this case.
       I have been disturbed by the suggestions that Justice 
     Priscilla Owen's decision in this case was influenced by the 
     campaign contributions she received from Enron employees. I 
     personally believe that such suggestions are nonsense. 
     Justice Owen authored the opinion of a unanimous court 
     consisting of both Democrats and Republican. While my clients 
     and I disagreed with the decision, we were not surprised. The 
     decision of the Court was to uphold an act of the Legislature 
     regarding property valuation. It was based upon United States 
     Supreme Court precedent, of which we were fully aware when we 
     argued the case.
       I firmly believe that there is absolutely no reason to 
     question Justice Owen's integrity based upon the decision in 
     this case.
           Sincerely,
     Robert Mott.
                                  ____



                                  De Leon, Boggins & Icenogle,

                                        Austin, TX, June 26, 2002.
     Re nomination of the Honorable Priscilla Owen to the U.S. 
         Court of Appeals for the Fifth Circuit.

     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, Russell 
         Senate Office Building, Washington, DC.
       Dear Senator Leahy: This correspondence is sent to you in 
     support of the nomination by President Bush of Texas Supreme 
     Court Justice Priscilla Owen for a seat on the U.S. Court of 
     Appeals for the Fifth Circuit.
       As the immediate past President of Legal Aid of Central 
     Texas, it is of particular significance to me that Justice 
     Owen has served as the liaison from the Texas Supreme Court 
     to statewide committees regarding legal services to the poor 
     and pro bono legal services. Undoubtedly, Justice Owen has an 
     understanding of and a commitment to the availability of 
     legal services to those who are disadvantaged and unable to 
     pay for such legal services. It is that type of insight and 
     empathy that Justice Owen will bring to the Fifth Circuit.
       Additionally, Justice Owen played a major role in 
     organizing a group known as Family Law 2000 which seeks to 
     educate parents about the effect the dissolution of a 
     marriage can have on their children. Family Law 2000 seeks to 
     lessen the adversarial nature of legal proceedings 
     surrounding marriage dissolution. The Fifth Circuit would be 
     well served by having someone with a background in family law 
     serving on the bench.
       Justice Owen has also found time to involve herself in 
     community service. Currently Justice Owen serves on the Board 
     of Texas Hearing and Service Dogs. Justice Owen also teaches 
     Sunday School at her Church, St. Barnabas Episcopal Mission 
     in Austin, Texas. In addition to teaching Sunday School 
     Justice Owen serves as head of the altar guild.
       Justice Owen is recognized as a well rounded legal scholar. 
     She is a member of the American Law Institute, the American 
     Judicature Society, The American Bar Association, and a 
     Fellow of the American and Houston Bar Foundations. Her 
     stature as a member of the Texas Supreme Court was recognized 
     in 2000 when every major newspaper in Texas endorsed Justice 
     Owen in her bid for re-election to the Texas Supreme Court.
       It has been my privilege to have been personally acquainted 
     with various members of the U.S. Court of Appeals for the 
     Fifth Circuit. The late Justice Jerry Williams was my 
     administrative law professor in law school and later became a 
     personal friend. Justice Reavley has been a friend over the 
     years. Justice Johnson is also a friend. In my opinion, 
     Justice Owen will bring to the Fifth Circuit the same 
     intellectual ability and integrity that those gentlemen 
     brought to the Court.
       I earnestly solicit your favorable vote on the nomination 
     of Justice Priscilla Owen for a seat on the U.S. Court of 
     Appeals for the Fifth Circuit.
       Thank you for your attention to this correspondence.
           Very truly yours,
                                                   Hector De Leon.

[[Page S7396]]

     
                                  ____
                                                 Texas Association


                                     of Defense Counsel, Inc.,

                                        Austin, TX, June 19, 2001.
     Re nomination of Justice Patricia Owen for the United States 
         Fifth Circuit of Appeals.
     Senator Patrick Leahy,
     Senate Judiciary Committee,
     Washington, DC.
       Dear Senator Leahy: I have had the privilege of knowing 
     Justice Patricia Owen of the Texas Supreme Court, both 
     personally and professionally, for many years. I cannot 
     imagine a more qualified, ethical, and knowledgeable person 
     to sit on the United States Fifth Circuit Court of Appeals.
       I accept the reality that politics is a part of our 
     culture, but I know that when it comes to appointing federal 
     judges, we must transcend politics and look to character and 
     ability. Patricia Owen has the character and ability to make 
     all of us, Democrat and Republican, proud.
       I ask that your Committee act swiftly to confirm her 
     nomination to the United States Fifth Circuit Court of 
     Appeals.
       Thank you.
           Sincerely,
     E. Thomas Bishop.
                                  ____



                                            Hughes/Luce, LLP.,

                                        Dallas, TX, July 15, 2002.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, Russell Senate Office 
         Building, Washington, DC.
       Dear Chairman Leahy: As past presidents of the State Bar of 
     Texas, we join in this letter to strongly recommend an 
     affirmative vote by the Judiciary Committee and confirmation 
     by the full Senate for Justice Priscilla Owen, nominee to the 
     United States Court of Appeals for the Fifth Circuit.
       Although we profess different party affiliations and span 
     the spectrum of views of legal and policy issues, we stand 
     united in affirming that Justice Owen is a truly unique and 
     outstanding candidate for appointment to the Fifth Circuit. 
     Based on her superb integrity, competence and judicial 
     temperament, Justice Owen earned her Well Qualified rating 
     unanimously from the American Bar Association Standing 
     Committee on the Federal Judiciary--the highest rating 
     possible. A fair and bipartisan review of Justice Owen's 
     qualifications by the Judiciary Committee certainly would 
     reach the same conclusion.
       Justice Owen's stellar academic achievements include 
     graduating cum laude from both Baylor University and Baylor 
     Law School, thereafter earning the highest score in the Texas 
     Bar Exam in November 1977. Her career accomplishments are 
     also remarkable. Prior to her election to the Supreme Court 
     of Texas in 1994, for 17 years she practiced law specializing 
     in commercial litigation in both the federal and state 
     courts. Since January 1995, Justice Owen has delivered 
     exemplary service on the Texas Supreme Court, as reflected by 
     her receiving endorsements from every major newspaper in 
     Texas during her successful re-election bid in 2000.
       The status of our profession in Texas has been 
     significantly enhanced by Justice Owen's advocacy of pro bono 
     service and leadership for the membership of the State Bar of 
     Texas. Justice Owen has served on committees regarding legal 
     services to the poor and diligently worked with others to 
     obtain legislation that provides substantial resources for 
     those delivering legal services to the poor.
       Justice Owen also has been a long-time advocate for an 
     updated and reformed system of judicial selection in Texas. 
     Seeking to remove any perception of a threat to judicial 
     impartiality, Justice Owen has encouraged the reform debate 
     and suggested positive changes that would enhance and improve 
     our state judicial branch of government.
       While the Fifth Circuit has one of the highest per judge 
     caseloads of any circuit in the country, there are presently 
     two vacancies on the Fifth Circuit bench. Both vacancies have 
     been declared ``judicial emergencies'' by the Administrative 
     Office of the U.S. Courts. Justice Owen's service on the 
     Fifth Circuit is critically important to the administration 
     of justice.
       Given her extraordinary legal skills and record of service 
     in Texas, Justice Owen deserves prompt and favorable 
     consideration by the Judiciary Committee. We thank you and 
     look forward to Justice Owen's swift approval.
                                                Darrell E. Jordan.
       On behalf of former Presidents of the State Bar of Texas: 
     Blake Tartt; James B. Sales; Hon. Tom B. Ramey, Jr.; Lonny D. 
     Morrison; Charles R. Dunn; Richard Pena; Charles L. Smith; 
     Jim D. Bowmer; Travis D. Shelton; M. Colleen McHugh; Lynne 
     Liberato; Gibson Gayle, Jr.; David J. Beck; and Cullen Smith.
                                  ____


               [From the Washington Post, July 24, 2002]

                          The Owen Nomination

       The nomination of Priscilla Owen to the 5th Circuit Court 
     of Appeals creates understandable anxiety among many liberal 
     activists and senators. The Texas Supreme Court justice, who 
     had a hearing yesterday before the Senate Judiciary 
     Committee, is part of the right flank of the conservative 
     court on which she serves. Her opinions have a certain 
     ideological consistency that might cause some senators to 
     vote against her on those grounds. But our own sense is that 
     the case against her is not strong enough to warrant her 
     rejection by the Senate. Justice Owen's nomination may be a 
     close call, but she should be confirmed.
       Justice Owen is indisputably well qualified, having served 
     on a state supreme court for seven years and, prior to her 
     election, having had a well-regarded law practice. So rather 
     than attacking her qualifications, opponents have sought to 
     portray her as a conservative judicial activist--that is, to 
     accuse her of substituting her own views for those of 
     policymakers and legislators. In support of this charge, they 
     cite cases in which other Texas justices, including then-
     Justice Alberto Gonzales--now President Bush's White House 
     Counsel--appear to suggest as much. But the cases they cite, 
     by and large, posed legitimately difficult questions. While 
     some of Justice Owen's opinions--particularly on matters 
     related to abortion--seem rather aggressive, none seems to us 
     beyond the range of reasonable judicial disagreement. And Mr. 
     Gonzales, whatever disagreements they might have had, 
     supports her nomination enthusiastically. Liberals will no 
     doubt disagree with some opinions she would write on the 5th 
     Circuit, but this is not the standard by which a president's 
     lower-court nominees should be judged.
       Nor is it reasonable to reject her because of campaign 
     contributions she accepted, including those from people 
     associated with Enron Corp. Texas has a particularly ugly 
     system of judicial elections that taints all who participate 
     in it. State rules permit judges to sit on cases in which 
     parties or lawyers have also been donors--as Justice Owen did 
     with Enron. Judicial elections are a bad idea, and letting 
     judges hear cases from people who have given them money is 
     wrong. But Justice Owen didn't write the rules and has 
     supported a more reasonable system.
       Justice Owen was one of President Bush's initial crop of 11 
     appeals court nominees, sent to the Senate in May of last 
     year. Of these, only three have been confirmed so far, and 
     six have not even had the courtesy of a hearing. The fact 
     that President Clinton's nominees were subjected to similar 
     mistreatment does not excuse it. In Justice Owen's case, the 
     long wait has produced no great surprise. She is still a 
     conservative. And that is still not a good reason to vote her 
     down.
                                  ____


              [From the New York Times, January 25, 2002]

                              Corrections

       An article in Business Day on Tuesday about criticism of 
     Justice Priscilla Owen of the Texas Supreme Court, a nominee 
     for a federal judgeship who accepted campaign donations from 
     Enron, misstated the amount of money saved by the company 
     because of a decision she wrote, dealing with taxes owed to a 
     local school district. It was $224,988.65, not $15 million. 
     The larger sum, cited in her opinion as the district's 
     revenue loss, was the amount by which the value of a piece of 
     the company's land was lowered.

                          ____________________