[Congressional Record Volume 148, Number 111 (Thursday, September 5, 2002)]
[Senate]
[Pages S8253-S8255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDGE PRISCILLA OWEN

  Mr. KYL. Mr. President, I regret to say this day is a very dark day 
in the history of the Senate. The Senate Judiciary Committee, of which 
I am a member, has just rejected, on a purely partisan party line vote, 
the nomination of one of President Bush's finest nominees to the U.S. 
Circuit Court, Justice Priscilla to the Fifth Circuit Court of Appeals.
  First, there was a vote to reject her 10 to 9. Then, Senator Hatch 
asked she be reported to the full Senate without recommendation so that 
all of our colleagues could have an opportunity to cast their vote on 
her nomination. That was rejected 10 to 9. Finally, he said, all right, 
then, I will move that we report her out unfavorably since the majority 
of the committee, 10 to 9, does not support her confirmation. That, 
too, was rejected on a party-line vote.
  The full body of the Senate will not have an opportunity to vote on 
the confirmation of Justice Priscilla Owen.
  The reason this is so distressing today is because it marks a new era 
in the judicial confirmation process. That much was made clear by the 
Democratic members of the committee today. It is clear now that there 
is a new test to be applied to the President's nominees. It is no 
longer enough that the nominee be well qualified and above reproach in 
terms of judicial ethics. It is now necessary that the candidate be 
committed to actively pursuing the political agenda of the majority of 
the members of the committee. If not, they will characterize the 
nominee as ``extremist,'' as ``right wing,'' as Justice Owen was 
characterized today.
  Now, some time ago the chairman of the committee said the American 
Bar Association, which had historically rated the qualifications of 
nominees, was 6really the gold standard because they were very careful 
in how they considered the qualifications of nominees and their 
recommendations were not made lightly. The highest recommendation that 
the American Bar Association can give to a nominee is ``well 
qualified.'' Justice Owen received the recommendation of ``well 
qualified'' not by a majority of the members of the ABA who decide 
these matters, but unanimously. Every single person involved in the ABA 
who rated the nominee, rated her well qualified. In other words, she 
could not have gotten a higher rating from the American Bar 
Association.
  As I said, the chairman of the committee characterized this process 
as the gold standard for nominees. I said today that I guess the Senate 
has now gone off the gold standard; that is no longer enough.
  The Senator from New York was quite candid in articulating again, as 
he has on numerous occasions, what he believes the new standard should 
be. And central to the application of the new standard is a 
determination by the members of the committee of the purported 
ideology, political ideology, of the nominee with the right to 
determine whether the nominee is within the mainstream, as they 
identify it, and then the right to vote down any nominee considered to 
be outside the mainstream.
  Never mind that our great and distinguished colleagues, such as 
Senator Kennedy of Massachusetts, Senator Schumer of New York, Senator 
Leahy of Vermont, in my opinion, are not necessarily the most qualified 
to describe what is mainstream in American politics--as least not as 
qualified as a person who has been elected by all of the people of the 
country, the President of the United States. Apart from the fact that I 
think President Bush probably has a better handle on what is mainstream 
in the country than my colleagues on the committee, myself included, 
the rejection of the previous standard and the insertion of this new 
political standard into the Judiciary Committee deliberations is a 
breach of tradition, highly dangerous to the continuation of the rule 
of law in the United States, and itself an exercise in blatant, 
political activity.
  When the Senator from New York suggested this new standard, he held a 
hearing. Among the people who testified were Lloyd Cutler, counselor to 
several Democratic Presidents. Lloyd Cutler is a man of great 
distinction in the bar with a long history of activity in the judicial 
nomination process. He said it would be a grave mistake to insert 
politics into the nonpolitical branch of Government, the third branch, 
the judicial branch. He said if an ideological litmus test ever became 
the Senate's reason for confirming or rejecting a nominee, that it 
would have injected politics into the third branch, and the citizenry 
could then well conclude that the third branch of Government was merely 
an extension of the other two, subject to political decision making, 
and that the public could then rightly lose faith; that the designates 
of the third branch of Government would be devoid of political 
influence, that they would be fair and honest. And I would just add in 
my own words that it would be pretty hard to believe anymore that when 
you went into a court and you expected to receive blind justice, as we 
are all accustomed to, that you might well be faced with the decision 
of a political judge who would not base the case on the law or the 
Constitution, but rather on political ideology.

  That is wrong. It is dangerous. It is unprecedented. That is why I 
say this was a black mark in the history of the Senate because today we 
had a committee that made a decision that I can only characterize as 
applying a political litmus test to the nominee--and a faulty one at 
that.
  If my colleagues can characterize Justice Priscilla Owen as a right-
wing extremist, an ideologue, an activist judge--as they did--then 
anyone can be so characterized. Senator Gramm made the point a few 
minutes ago. He said: I know a political ideologue when I see one 
because I am. Most of us in the Senate, in fact, are political 
ideologues in the finest sense of that word. We believe in a political 
ideology and we care enough, no matter what other occupation we might 
have had, to try to advance our political philosophy in the U.S. Senate 
on behalf of our constituents. That is in the great tradition of the 
United States and applied to the second branch of Government, the 
legislative branch.
  But it has never been appropriate to apply that to the third branch 
of Government, our judges. As I said, if Priscilla Owen can be so 
characterized, then anyone can be. She is about as far from being an 
ideologue or an extremist or an activist as anybody I have ever seen 
nominated to the court.
  A bit about her: She has earned the support of Texas Democrats and 
Republicans. She has been three times elected to the Texas Supreme 
Court. She had the endorsement of every major Texas paper in her last 
race. She is not a partisan.
  She is brilliant. She had the highest score on the Texas bar exam 
when she took it. As I said, the American Bar Association rated her 
unanimously with their highest rating of ``well qualified.''
  Everything that was said about her in the committee deliberations 
this morning was considered by the bar association in making that 
recommendation. I suggest the charges that those outside the Senate 
have made are trumped up charges that bear no resemblance to the truth.
  In characterizing her as somehow outside the mainstream, these groups

[[Page S8254]]

have done a great disservice, not just to the President and to the 
court system and the rule of law, but to this fine individual, 
personally. That is, perhaps, the biggest tragedy of all.
  The Washington Post, which is not known to be, by conservatives 
anyway, a friendly newspaper to the President or to conservatives or to 
the conservative philosophy, in an editorial on July 24, made clear its 
view that it would be inappropriate to reject Justice Owen; that she 
was highly qualified and that her conservative views, if indeed she had 
them, would not be a reason for her to be disqualified and rejected. 
The Post characterized her as a conservative in the editorial, 
concluding:

       In Justice Owen's case, the long wait has produced no great 
     surprise. She's still a conservative. And that is still not a 
     good reason to vote her down.

  I remember in the last few weeks of the campaign for the Presidency, 
Al Gore said one thing I agreed with. He said: You should not vote for 
President Bush because if he's elected President then he'll nominate 
conservatives to the court.

  It is no great surprise that a President would nominate people to the 
courts who think like the President does. That is traditional in this 
country and Al Gore was right.
  If you elected him, you are more likely to get people who are more 
liberal. If you elected President Bush you are more likely to get 
people who are more conservative. That is our system and that has never 
been a basis for the Senate to substitute its political judgment for 
that of the President--who after all, again, was elected by all of the 
people in the country--and vote the nominee down based on ideology.
  Instead, it has always been the tradition to determine whether the 
candidate was well qualified, had the right ethics and judicial 
temperament, and was otherwise qualified. If so, then the candidate was 
confirmed.
  As a member of the committee and as a Member of this body, I have 
voted on a lot of nominees with whom I did not agree politically. There 
are members of the Ninth Circuit Court of Appeals sitting now who have 
voted wrong in every controversial case, as far as I am concerned. But 
I voted for them. I voted to confirm them because I believed that 
President Clinton, having been elected by all of the people of the 
country, deserved his nominees. I couldn't argue with the 
qualifications or ethics of the people for whom I voted. These, too, 
were rated highly by the American Bar Association. They, too, were 
smart people who had good judicial ethics. So I voted for them, knowing 
that probably they would come down on the wrong side of decisions that 
mattered to me in certain situations. And that has been the case. But I 
do not regret voting for them because that has been the tradition for 
over 200 years in this country.
  Senator after Senator on the floor of the Senate has made that point: 
I don't necessarily like this candidate's views, but I am going to 
support the candidate because of the tradition of the Senate to give 
the President's nominees the benefit of the doubt.
  The new ideology in the Senate, according to the majority members of 
the committee, is that the burden of proof is now on the nominee; that 
unless the nominee can demonstrate to the members of the committee the 
nominee's willingness to abide by this test that has been established, 
that the committee has the right to turn these nominees down. The 
burden of proof has heretofore been on the committee members to find a 
reason to reject the nominee if, in fact, there was one.
  To be candid, Members of the Senate have sometimes gone looking for 
reasons to oppose a nominee when they believed that the ideology was 
too far one way or the other. Sometimes they found those reasons and 
sometimes they did not. But up to now, anyway, unless you could find a 
darned good reason to oppose a nominee, you didn't do so.
  Now that has changed. That is why I said this is a very dark day in 
the Senate. If this persists, we are going to get to the point where we 
have judges sitting who were confirmed based upon political ideology so 
the citizens of the country are no longer going to be able to go into 
court and be satisfied regarding the one person who will rule on their 
fate, on their property, and in some cases even their lives--that the 
individual litigant can no longer count on the decisions made to be 
fair and in accordance with the law and the Constitution of the United 
States.
  I know of very few countries in the world where a citizen is willing 
to volunteer and go into court and say: I believe I am absolutely 
right, but I am willing to let a judge, somebody I have never met 
before, who I do not know, make a decision that could dramatically 
affect my life because I believe in the rule of law as applied in the 
United States of America, in fairness and in the application of the 
rule of law in the U.S. Constitution. There are not very many places in 
the world where you feel good about going into a court and literally 
placing your life in the hands of someone you don't know.
  But we trust those people in the United States because of the 
tradition that has enabled us to appoint people to the bench who, by 
and large, rule on the basis of their view of the law and of the 
Constitution rather than on a political ideology. But if this persists, 
you are not going to know when you go before the judge whether this was 
a judge who was chosen because of ideology and, if so, how that might 
be applied in your particular case. That is a very bad thing. It begins 
to undermine the rule of law in this country. That is why people, such 
as Lloyd Cutler and others, were very wary of a change in the practice 
of confirming judges this way.

  I think it is interesting that liberals in this country were always 
very concerned about President Reagan and the first President Bush 
applying a litmus test to nominees. They both made it clear that they 
applied no such litmus test. The litmus test that was of most concern 
related to the issue of abortion. It is clear, from at least some of 
the nominees President Bush appointed, that he did not have a litmus 
test in mind because those judges have not agreed with the Reagan-Bush 
kind of political philosophy. But I think it is appropriate that there 
be no litmus test on abortion or any other issue.
  When I recommended a judicial nominee to the President--either to 
President Clinton or to President Bush--I did so on the basis that I 
could easily say I never asked this candidate about his or her position 
on an issue such as abortion. In fact, to this day I don't know those 
candidates' positions, by and large, on that particular issue. But it 
appears to me now the litmus test is being applied, and specifically on 
the issue of abortion, if you listened to the members of the committee 
who discussed Justice Owen's nomination today.
  It is interesting that the Judiciary Committee, in response to the 
concern about a President applying a litmus test, has a question that 
has always been put to the nominees before it. We have a list of 
questions. But one of the key questions is: Has anybody at the White 
House or in the Government asked you about your position on any issues 
that might come before the court? If so, specify who, when, and so on. 
Because the members of the Judiciary Committee wanted to know if 
anybody in the executive branch queried them about their political 
views on issues that might come before the court. And, of course, if 
anybody had done so, the committee would have risen as one and said: 
That is improper; you are applying a litmus test, and you can't do 
that.
  Some of the witnesses who came before the committee when we had the 
hearings on this alluded to that questionnaire. And we said: You can't 
substitute the traditional advice for confirmation with a political 
litmus kind of test and only apply it in the legislative branch.
  If the members of the Judiciary Committee are going to begin applying 
a litmus test--if we are going to begin making our decision on 
ideology--then you can expect the President of the United States is 
going to do the same thing, continuing down that road.
  I think there is an element of hypocrisy because that question still 
exists. It is still asked by the members of the Judiciary Committee. 
But we say the President dare not ask it.
  I think we have to get our thinking straight. Are we going to allow 
decisions such as the one that was made today by the majority of the 
Judiciary Committee to become the prevailing view in the Senate and the 
traditional practice and test of the Judiciary Committee of the Senate 
or are we going to

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take a big, deep breath and say: Wait a minute--whether it is a 
Republican or Democratic President and whether it is a Republican or 
Democratic Senate--this is taking us down a very wrong and dangerous 
path.
  I believe that in the great tradition of partisan Members of this 
body, who nevertheless understood that politics was no way to make 
decisions on judges, good sense will ultimately prevail and the Senate 
will return to a standard that is appropriate--whether the candidate is 
well qualified based upon traditional temperament and ethics, and on 
their ability to apply the law fairly, and understanding and knowledge 
of the law.
  If we don't return to that kind of a standard, then we are on an 
inevitable decline in the way that our country applies the rule of law; 
and, since the rule of law underpins everything in the United States--
from our guaranteed constitutional rights to our economic free market 
system, our property rights, and all the rest--it would be the 
beginning of the end of this country.
  I do not exaggerate when I say that nothing less is at stake and that 
this body needs to address this question very seriously before 
decisions such as today's become the rule rather than the aberrant 
exception.
  I believe this is a dark day in the history of the Senate, that 
history will judge the actions of the committee today very harshly. I 
just hope my colleagues will consider whether in the future we need to 
return to the tradition that has served Presidents and the Senate and 
the Nation so well. I hope so.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I heard the last part of the remarks 
of the Senator from Arizona about what happened today in the Judiciary 
Committee to Supreme Court Justice Priscilla Owen, a member of the 
Texas Supreme Court, who was voted down on a straight party line vote. 
I have never seen a case in which a person who is totally qualified, a 
person who has shown integrity on the bench, and who has the academic 
credentials to be a great Federal judge would be turned down for, 
really, I think a litmus test on issues.
  In the past administration--the Clinton administration--I voted for a 
number of judges with whom I disagreed philosophically, judges who I 
knew would rule differently from what I thought would be the ``right 
vote'' on the court. But I tried to see what their qualifications were. 
I certainly tried to see if they would be strict constructionists to 
the Constitution, if they would adhere to the law rather than be 
traditional judicial activists. I voted for people with whom I 
disagreed many times. Today, I don't think that could be said for 
members of the Judiciary Committee.
  I am told there has never been a nominee who had the unanimous 
qualified recommendation from the American Bar Association and the 
support of both home State Senators who has been turned down for a 
traditional nomination.
  I am sad today because I know Priscilla Owen. I know what a fine 
person she is. Not only did she graduate right at the top of her class 
in law school, but she had the No. 1 grade on the Texas bar exam when 
she took it. She has sterling credentials academically. She is very 
well regarded by the former Democratic attorney general. The chief 
justice of the Supreme Court of Texas was very supportive of her and 
came out publicly for her. The other Democratic member of the Supreme 
Court of Texas with whom she served came out strongly for her.
  It is just stunning that someone who never had one smirch on her 
record of integrity, who was totally well qualified and unanimously 
certified by the American Bar Association, and who was reelected to the 
Texas Supreme Court by over 80 percent of the vote would be turned down 
by the Judiciary Committee. I think this is a sad day.
  But I will say this: I talked to Justice Owen today. I said: You lost 
the battle today, but you could win the war because I am absolutely 
certain that President Bush will renominate her if there is Republican 
control of the Senate. If that happens, she will be confirmed, because 
she deserves to be confirmed.
  It is very hard on a personal level to see someone as committed as 
Priscilla Owen--she is basically a nonpolitical individual. She did not 
even know when she was asked to submit her name for the Supreme Court 
of Texas if she had voted in the primary before. This judge is not 
political.
  But George Bush--Governor of Texas at the time--appointed her. She 
then ran for election after her appointment and was endorsed by every 
newspaper in Texas and was just thought of by both Republicans and 
Democrats as the most qualified person who had been put forward for 
this particular seat on the bench on the Fifth Circuit.
  It is a sad day, but I think this is not over.
  I do believe that President Bush will reappoint her in the next 
Congress if the Republicans control the Senate and he believes that she 
will get a fair hearing. I believe she will win the vote of the Senate, 
and she will show what a great judge she can be because she will be 
sitting on the Fifth Circuit bench.
  But this is a tough day for her. I think she did not deserve this 
treatment. I will say that in the parts of the hearing that she had 
that I saw, she was outstanding and did as good a job as anyone I have 
ever seen who was a nominee for the Federal bench. She did so well that 
she won the endorsement of the Washington Post, the Chicago Tribune, 
and the Wall Street Journal. She had accolades from newspapers across 
America.
  She does not deserve to have the treatment that she got today. But we 
will have another day, and I believe Priscilla Owen will go down in the 
records as a great Federal judge, because I believe she will be one 
eventually.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, has the bill been reported this afternoon?

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