[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]
[Pages S8340-S8350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION



  The PRESIDING OFFICER. Under the previous order, the hour of 1 p.m. 
having arrived, the Senate will proceed to executive session and 
proceed with the consideration of Executive Calendar No. 889, which the 
clerk will report.
  The legislative clerk read that nomination of Kenneth A. Marra, of 
Florida, to be United States District Judge for the Southern District 
of Florida.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I do believe that Judge Kenneth Marra 
will be confirmed to the U.S. District Court for the Southern District 
of Florida. I have heard of no opposition. This is a judge who got 
strong bipartisan support in the Senate Judiciary Committee, which 
usually guarantees a confirmation on the floor. When that happens, the 
Democratic-led Senate will confirm its 74th judicial nomination made by 
President George W. Bush. This will also be the 25th judicial emergency 
vacancy that we have filled since I became chairman last summer, and 
the 18th since the beginning of this year.
  The confirmation of Judge Marra will bring additional resources to 
the U.S. District Court for the Southern District of Florida. Judge 
Marra was nominated to fill a new position Congress created by statute 
to address the large caseload, particularly the immigration and 
criminal cases, facing the Federal court in Florida. He is one of three 
Federal judicial nominations on the Senate Calendar for action.
  I recall during the past administration, the Clinton administration, 
we all worked very hard in cooperation with Senator Graham and Senator 
Mack to ensure that the Federal court in Florida had its vacancies 
filled promptly with consensus nominees. Due to the bipartisan 
cooperation between one Democrat Senator and one Republican Senator and 
a Democratic President, the Senate was able to confirm 22 judicial 
nominees from Florida, including 3 nominees to the Eleventh Circuit. 
But it is unfortunate that this tradition of cooperation, coordination, 
and consultation has not continued with the current administration.
  By my recollection, it was only the nomination of Judge Rosemary 
Barkett of the Florida Supreme Court to the Eleventh Circuit that 
generated any significant controversy or opposition. I do recall that 
she was strongly

[[Page S8341]]

opposed by a number of Republican Senators because they did not agree 
with her judicial philosophy. Those voting against her included 
Senators Hatch, Grassley, McConnell, Specter, and Thurmond, as well as 
Senators Lott, Nickles, and Hutchison of Texas. They have an absolute 
right to do that, of course. I respect that right. Judge Barkett 
received the highest rating of the ABA, ``well qualified,'' and yet 36 
Republicans voted against her confirmation, even though she had the 
strong bipartisan support of her home State Senators. Recent claims by 
some that it is unprecedented to vote against a judicial nominee with a 
``well qualified'' rating and to vote against her based on her judicial 
philosophy thus ring hollow.
  Unfortunately, that is not the way the administration has dealt with 
Senators Graham and Nelson now. But it is a tribute to Senator Graham 
and Senator Nelson that we have made the progress we have had. They 
could very easily have exercised their right as Senators and refused to 
accept the nominees of President Bush. Of course, they would go no 
further under the blue-slip policy that both Republicans and Democrats 
strongly support. But they have been more than gracious in their 
willingness to support these nominees. That is why they have gone 
  This Democratic-led Senate has expeditiously moved President Bush's 
judicial nominees. We have worked hard to provide bipartisan support 
for the White House's nominations in spite of an almost unprecedented 
lack of willingness on the part of the White House to work with us.
  In fact, I have been here 26 years: During the terms of President 
Ford, President Carter, President Reagan, President George Herbert 
Walker Bush, President Clinton, and now President George W. Bush. This 
administration is the least willing of any White House during all that 
time--Republican or Democrat--to work with the Senate on judicial 
nominations. But even without that cooperation, even with the 
unprecedented lack of cooperation, we are making progress.

  I would like to discuss the progress we have made. This chart shows 
what has happened in the 15 months the Democrats have controlled the 
Senate. Contrast that to the Republicans' first 15 months when they 
controlled the Senate. In less than 15 months of Democratic control of 
the committee, we have held more hearings for more nominees, voted on 
more nominees in committee, and confirmed more nominees than the 
Republicans did in their first 15 months of control of the committee in 
1995 and 1996.
  We have confirmed more of President George W. Bush's Federal trial 
court nominees in less than 15 months than were confirmed in the first 
2 years of his father's Presidency. In fact, we confirmed more in the 
first 15 months than the Republicans were willing to confirm in their 
last 30 months.
  I mention this because there seems to be some idea that somehow the 
Democratic-led Senate is holding up judges. I think most of the 
Presidents with whom I have served would have been delighted to have 
had a Senate as cooperative as we have been.
  Let me repeat that. In 15 months, Democrats have done more on 
judicial confirmations than Republicans did in 30 months.
  They, on the other side, do not want to compare our record of 
accomplishment in evaluating judicial nominees with theirs in their 
prior 6\1/2\ years of control. They do not want to own up to their 
delay and defeat through inaction of scores of judicial nominees during 
the last administration.
  All too often the only defense of their record we hear is the claim 
that President Clinton ultimately appointed 377 judicial nominees, 5 
fewer than President Reagan. This statement overlooks the fact that the 
Republicans only allowed 245 of President Clinton's judicial nominees 
to be confirmed. That averages, incidentally, to about 38 confirmations 
per year during their 6\1/2\ years of control. We confirmed 74 judicial 
nominees in less than 15 months, including 13 to the circuit courts. I 
believe we have reported 80 out of the Judiciary Committee.
  I mention this because of the persistence of the myth of inaction in 
face of such in the face of such a clear record of progress by 
Democrats. After a while, if someone keeps distorting the facts, if 
someone keeps stating things that are not true, people actually come to 
believe it is true. I am reminded of what Adlai Stevenson once said. I 
will quote him:

       I have been thinking that I would make a proposition to my 
     Republican friends . . . that if they will stop telling lies 
     about the Democrats, we will stop telling the truth about 

  The truth is, of course, as these charts show, that we have a pretty 
good record of accomplishment despite the lack of cooperation from the 
  With today's vote, the Democratic-led Senate will confirm its 74th 
judge--exceeding the number of circuit and district court nominees 
confirmed in the last 30 months of Republican control of the Senate. We 
have done more than Republicans did, and we have done it in less than 
half the time.
  We have confirmed more of this President's nominees, both circuit and 
district court nominees, in less than 15 months, than were confirmed in 
the comparable 15 months of the first term of former President Reagan, 
the first President Bush, and President Clinton.
  Let's take a look at what has happened in the first 15 months. With 
today's vote, the Democratic-led Senate has confirmed 74 of this 
Republican President's judicial nominees in less than 15 months.
  Under President Reagan--and incidently, I might point out, he had a 
Senate of his own party--there were 54 confirmation in the first 15 
months. Under George H. W. Bush, there were 23; for the first 15 months 
of President Clinton, 45. Incidentally, that is with a Senate under the 
control of his own party. And now, in 15 months, under President George 
W. Bush, we have had 74 judicial confirmations--74. By any standard you 
want, here is a case where a different party than the President has 
controlled the Senate, and we have done more than was done for 
President Reagan when his own party controlled the Senate, for 
President Bush when another party controlled the Senate, for President 
Clinton when we, the Democrats, controlled the Senate.
  It shows we can move and will move, and we have been doing that 
notwithstanding the fact that there has been less cooperation from the 
White House than I have seen with either Democratic or Republican 
Presidents in 26 years in the Senate. It is unfortunate.
  President Bush will probably get a record number of his judges 
through at the current pace of confirmations. But I have to think how 
much better it could be done with less rancor and with even a modicum 
of cooperation. We have acted fairly and expeditiously notwithstanding 
the fact that Democrats have felt very concerned that for year after 
year after year after year in many of the circuit courts of this 
country, Republicans refused to even hold hearings for the nominees, 
even though they had the highest ratings of the American Bar 
Association. They would not even hold hearings, to say nothing about 
having a vote.
  Then when the Republicans came in, suddenly there was an emergency; 
they had to fill the vacancies in those circuits. Their obstruction 
created the problem. But notwithstanding that, in many of those cases 
where Democrats were not allowed to even have a hearing year after year 
after year, we have in the last 15 months moved forward with hearings 
and votes, and positive votes, on the vast majority of his judicial 
  I have no idea what political game is being played at the White 
House. I know the people are very nice. Judge Gonzalez is a very nice, 
very polite person. He is charming to be with. But the cooperation is 
not there. The President is very nice, very charming. But the 
cooperation is not there. We could do far better if they would just 
pick up the phone and call the last three people from the last three 
Republican administrations--they do not even have to call a Democratic 
administration--and see how well this could be done.
  As the distinguished ranking member, my good friend from Utah, knows, 
I went down several times and worked with the Clinton White House so 
they could have cooperation with, and they did cooperate with, 
Republican Senators in moving through judges. I would hope that with 
that precedent in mind, some might do the same.
  Democrats have reformed the process for considering judicial nominees 

[[Page S8342]]

ensure bipartisan cooperation and greater fairness. For example, we 
have ended the practice of secretive, anonymous holds that plagued the 
period of Republican control, when any Republican Senator could hold 
any nominee from his or her home state, his or her own circuit or any 
part of the country for any reason, or no reason, without any 
accountability. We have returned to the Democratic tradition of 
regularly holding hearings, every few weeks, rather than going for 
months without a single hearing. In fact, we have held 23 judicial 
nominations hearings in our first 13 months, an average of almost two 
per month.
  In contrast, during the six and one-half years of Republican control, 
they went 30 months without holding a single judicial nominations 
hearing. By holding 23 hearings for 84 of this President's judicial 
nominees, we have held hearings for more circuit and district court 
nominees than in 20 of the last 22 years during the Reagan, first Bush, 
and Clinton Administrations.
  As this chart shows, we have held more hearings for President Bush's 
judicial nominees in less than 15 months than were held in 15 months 
for any of the past three Presidents. In the first 15 months of the 
first term of President Reagan, 17 judicial nominations hearings were 
held. In the first 15 months of President George H.W. Bush's term, 11 
hearings were held. And, in the first 15 months of President Clinton's 
first term, 14 judicial nominations hearings were held. In contrast, we 
have held 23 hearings in less than 15 months. That is almost as many as 
were held in the first 15 months of the terms of the first President 
Bush and President Clinton combined. We have more than exceeded the 
number of hearings held in the last 30 months of Republican control of 
the Senate, when they held only 15 hearings.
  While some complain that a handful of circuit court nominees have not 
yet had hearings, they fail to acknowledge that Democrats have held 
hearings for more of President Bush's circuit court nominees, 18, than 
in any of the six and one-half years in which the Republicans 
controlled the Committee before the change in majority last summer. 
Republicans have utterly failed to acknowledge this fairness and 
progress under the Democratic majority. The myth of obstruction of 
judicial nominees fits their political strategy better than the truth.
  The years of Republican inaction on a number of circuit court 
vacancies has made it possible for Democrats to have several 
``firsts,'' or astounding accomplishments in addressing judicial 
vacancies. For example, we held the first hearing for a nominee to the 
Sixth Circuit in almost five years (that is more than one full 
presidential term) and confirmed her, even though three of President 
Clinton's nominees to the Sixth Circuit never received a hearing or a 
vote. We held the first hearing on a Fifth Circuit nominee in seven 
years (including the entire period of Republican control of the Senate) 
and confirmed her last year, while three of President Clinton's Fifth 
Circuit nominees never received hearings or votes on their nominations. 
We held the first hearing on a Tenth Circuit nominee in six years, and 
we have confirmed two of President Bush's nominees to the Tenth 
Circuit, while two of President Clinton's nominees to that circuit 
never received hearings or votes. We held the first hearing for a 
Fourth Circuit nominee in three years, for Judge Roger Gregory, and the 
first hearing for an African American nominee to that court in United 
States history, even though Judge Gregory and four other nominees to 
that circuit (including three other African Americans) never received 
hearings or votes during Republican control of the Senate. These are 
just a few examples of the historic accomplishments of the Democratic-
led Senate which debunk Republican myths that Democrats caused the 
vacancy crisis, are delaying judicial appointments or have been 
retaliating for years of obstruction on circuit court vacancies by 
  There were only 16 circuit court vacancies when Republicans took over 
the Senate in January 1995. Unfortunately, from January 1995 until 
Republicans relinquished control and allowed the Judiciary Committee to 
be reorganized in the summer of 2001, circuit court vacancies more than 
doubled from 16 to 33. Republicans executed a partisan political 
strategy to hold vacancies open on the circuits for a Republican 
president to fill. It would certainly have been easier and less work 
for Democrats to retaliate for the unfair treatment of the last 
President's circuit court nominees. We did not. We have been, and will 
continue to be, more fair than the Republican majority was to President 
Clinton's judicial nominees.

  Here is another chart that shows that more of President Bush's 
judicial nominees have been given committee votes than the nominees of 
prior presidents. Unlike my Republican predecessor, I have scheduled 
hearings and votes on district and circuit court nominees whom I do not 
support. The Judiciary Committee has voted on 82 judicial nominees and 
favorably reported 80. In less than 15 months, we have voted on more of 
President Bush's district and circuit court nominees than were voted on 
in the first 15 months of any of the past three Presidents. Moreover, 
we have voted on more nominees in less than 15 months than were voted 
on in the first 15 months of Presidents Reagan and George H.W. Bush 
combined, or Presidents George H.W. Bush and Clinton combined. We have 
even voted on more nominees in less than 15 months than were voted on 
in the last 30 months of Republican control of the Senate, when 73 
nominees were voted on by the Committee.
  Because we have moved quickly and responsibly, the number of 
vacancies is not at the 153 mark it would be had we taken no action. 
Vacancies have been reduced to 79 and are headed in the right 
direction. On July 10, 2001, with the reorganization of the Senate, we 
began with 110 vacancies. When Republican gained control of the Senate 
in 1995 the federal judicial vacancies numbered 65. The vacancies 
increased during their six and one-half years to more than 110. Under 
the Democratic majority, by contrast, the number of vacancies is being 
significantly reduced. Despite the large number of additional vacancies 
that have arisen in the past year, with the 61 district court 
confirmations we have as of today, we have reduced district court 
vacancies to 50, almost to the level it was at when Republicans took 
over the Senate in 1995.
  In fact, when we adjourned for the August recess we had given 
hearings to 91 percent of this President's judicial nominees who had 
completed their paperwork and who had the consent of both of their 
home-State Senators. That is, 84 of the 92 judicial nominees with 
completed files had received hearings.
  When we held our most recent hearing on August 1, we had given 
hearings to 66 district court nominees and we had run out of district 
court nominees with completed paperwork and home-State consent. Only 
two district court nominees were eligible for that hearing. This is 
because the White House changed the process of allowing the ABA to 
begin its evaluation prior to nomination. This change has cost the 
federal judiciary the chance over the last year to have 12 to 15 more 
district court nominees on the bench and hearing cases, because now the 
ABA can only begin its evaluation once the nomination is submitted to 
the Senate. The ABA also must wait until the Administration provides 
the Senate with the nominee's public questionnaire, and lately the 
nominees' documents have been arriving on a delayed basis, as well. 
Indeed, many of the two dozen nominations most recently received will 
likely not get hearings before adjournment this year in large measure 
because the White House unilaterally changed the process for 
consideration and has built additional delays into it.
  In January I had proposed a simple procedural adjustment to allow the 
ABA evaluation to begin at the same time as the FBI investigation, as 
was the practice in past Republican and Democratic Administrations over 
50 years. Had this proposal been accepted, I am confident there would 
be more than a dozen fewer vacancies in the federal courts. Instead, 
our efforts to increase cooperation with the White House have been 
rebuffed. We continue to get the least cooperation from any White House 
I can recall during my nearly three decades in the Senate. Yet, even 
with such lack of cooperation from the White House, the Senate has set 
an impressive rate of confirming judicial nominees.

[[Page S8343]]

  Here is another chart that shows how Democrats have dramatically 
reduced the time between nomination and confirmation of circuit court 
nominees. Since the Democrats assumed the majority last July, the 
average time to confirm circuit court nominees has been drastically 
reduced to 147 days, from a high during the most recent years of 
Republican control of 374 days. We have reduced the average time from 
nomination to confirmation to two-and-a-half times less than the 
average time to confirmation during Republican control during the 106th 
and 105th Congresses when it took an average of 374 and 314 days, 
respectively, to confirm President Clinton's circuit court nominees.
  The Judiciary Committee has reported two more circuit court nominees 
favorably to the Senate. We have held hearings on 18 circuit court 
nominees and the Judiciary Committee has already voted on 17 of those 
18 nominees.
  In spite of the obstacles the White House has put in the way of their 
own nominees through their lack of consultation and cooperation, we 
have been able to have a productive year while restoring fairness to 
the judicial confirmation process. I regret that the White House has 
chosen the strident path that it has with respect to judicial 
nominations, especially to the circuit courts. As several Senators 
noted last week, the Administration does not have carte blanche to 
insist on an ideological takeover of the Courts of Appeals with 
activist ultra-conservative nominees intended to tip the balance in 
circuits around the country. The total number of district and circuit 
court confirmations now stands at 74, and there remain a few weeks left 
in this session. So while we have been working hard and productive, the 
Judiciary Committee and the Senate have not become a rubber stamp.
  I am proud of the efforts of the Senate to restore fairness to the 
judicial confirmation process over this time. The Senate Judiciary 
Committee is working hard to schedule hearings and votes on additional 
judicial nominees, but it takes time to deal with a mess of the 
magnitude we inherited. I think we have done well by the federal courts 
and the American people, and we will continue to do our best to ensure 
that all Americans have access to federal judges who are unbiased, 
fair-minded individuals with appropriate judicial temperament and who 
are committed to upholding the Constitution and following precedent.
  When the President sends judicial candidates who embody these 
principles, they will move quickly, but when he sends controversial 
nominees whose records demonstrate that they lack these qualities and 
whose records are lacking we will take the time needed to evaluate 
their merits and to vote them up or down.
  I would like to thank the Members of the Judiciary Committee who have 
labored long and hard to evaluate the records of the individuals chosen 
by this President for lifetime seats on the federal courts. The 
decisions we make after reviewing their records will last well beyond 
the term of this President and will affect the lives of the individuals 
whose cases will be heard by these judges and maybe millions of others 
affected by the precedents of these decisions of these judges.
  Before anyone takes for granted how fairly Democrats have treated 
this President's judicial nominees, receiving up or down votes, they 
should take a look at how poorly judicial nominees were treated during 
the 6\1/2\ years of Republican control of the Senate. In all, several 
dozen judicial nominees of President Clinton never received a hearing 
or a vote.
  When confronted with this, Republicans often lament that about 50 of 
the first President Bush's judicial nominees did not get a hearing 
before the end of the session in Congress in 1992. What they 
consistently fail to mention about this, however, is quite revealing. 
That year, the Senate confirmed more of President George H.W. Bush's 
judicial nominees than in any year of his presidency. He had 66 
judicial nominees confirmed that year, but the Senate simply could not 
get to the other 53 nominees he submitted in response to the creation 
of dozens of new judgeships. So, even though some of his nominees were 
returned, the Senate confirmed a substantial number, 66, of his 
judicial nominees in the 10 months they were in session that year, 
which was an election year, by the way.
  Perhaps coincidentally, 66 is the highest number of judicial 
confirmations in one year that Republicans ever allowed President 
Clinton to reach. They averaged 38 judicial confirmations per year. In 
the last two years of the Clinton Administration, Republicans allowed 
only 33 and 39 judges to be confirmed, respectively in 1999 and 2000. 
President George H.W. Bush had 66 confirmations in his last year of 
office, an election year. In President Clinton's last year in office 
only 39 judges were confirmed, during Republicans control. In 1996, 
Republican allowed only 17 judges to be confirmed, none to the circuit 
courts. In those two election years combined Republicans allowed only 
56 confirmations. In 1992, an election year, Chairman Biden pushed 
through 66 confirmations.
  Unlike Democrats in 1992, Republicans cannot honestly claim that they 
moved a substantial number through but could not get to them all. 
Confirming only 39 judicial nominees in 2000 and returning more than 
that, 41, in that year alone, simply does not compare with what 
happened in 1992 when Democrats worked hard to move through 66 of the 
first President Bush's judicial nominees in the space of 10 months. If 
66 was such an easy number to reach, why did Republicans reach that 
level only once in six years of control? The answer is easy. They did 
not want to do so. I think Republicans wanted to ensure that they never 
treated President Clinton better than the best year of former President 
Bush (his last year) and they wanted to ensure that President Clinton 
did not beat President Reagan's number of confirmations, as a matter of 
partisan pride.
  Had Republicans kept up the pace of confirmation set by Democrats in 
the first President Bush's last year and the first two years of the 
Clinton Administration, President Clinton would have appointed 
substantially more than the 377 judges who were ultimately confirmed in 
his two terms as president, and the Democratic-led Senate Judiciary 
Committee would not have begun last July with 110 vacancies. 
Ironically, perhaps, Democrats have been so fair to President George W. 
Bush, despite the past unfairness of Republicans, that if we continue 
at the current pace of confirmation and vacancies continue to arise at 
the same rate, then Bush will appoint 227 judges by the end of his 
term. If he were elected to a second term, at the current pace, he 
would amass 454 judicial confirmations, dramatically more than 
President Reagan, who Senator Hatch often calls the all-time champ. 
This, too, demonstrates how fair Democrats have been. Perhaps some may 
say we have been foolishly fair, given how Democrats were treated in 
the past. We have exceeded the pace set in 1992, 1993 and 1994, with 74 
confirmations to date in little more than a year.
  In fact, when we adjourned for the August recess we had given 
hearings to 91 percent of this President's judicial nominees who had 
completed their paperwork and who had the consent of both of their 
home-State Senators. That is, 84 of the 92 judicial nominees with 
completed files had received hearings.
  Any way you look at the numbers, raw numbers or percentages, 
comparisons with the prior six years of Republican control or with 
prior Congresses and Republican presidents, the Democrats have done 
more in less time. We have been more fair by far. Yet we have been 
unfairly labeled as obstructionist because we have not been able to 
have hearings for every single judicial nominee in the short period we 
have been in the majority. This President still has over two years left 
in his term.
  I withhold the remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I rise today to respond to some of the 
amazing assertions made by my distinguished colleague and friend from 
Vermont. Of course, I do so with some trepidation because each time we 
have a back and forth like this one, I help my colleague further the 
impression that he is out to create and that he has done a good job of 
creating, especially with the press.
  The impression my colleague is seeking to create is that both sides 
come to

[[Page S8344]]

the table with unclean hands in the matter of confirmations. It is a 
false impression and it provides a smokescreen of the stark reality of 
the poor performance of the Judiciary Committee this past year and 
during this session.
  Naturally, my friend takes pride in his accomplishments this year, 
but not all of them. Let me list a few he misses. President Reagan took 
pride in nominating the first woman to the Supreme Court. My Democrat 
colleagues have now presided over the ``Borking'' of the first woman in 
history, and one of the leading women jurists in this country, 
Priscilla Owen.
  My colleague has also set a new record for a Judiciary Committee 
chairman. He has voted in 1 year against more judicial nominees than 
any chairman in the 212 years of the Republic. Moreover, most of my 
Democrat colleagues on the Judiciary Committee have voted against more 
judicial nominees in this last one year than I have in my 26 years on 
the Judiciary Committee. I voted against only one Clinton nominee, only 
one, but as painful as that was, I did it standing straight for all to 
see in the disinfectant light of the Senate floor, not in the shadows 
of a committee vote.
  Also, in rejecting Justice Owen, my Democrat colleagues rejected for 
the first time in history a nominee who has received the American Bar 
Association's unanimous rating, highest rating of well qualified, the 
rating that earlier this year they announced to be the gold standard 
for judicial nominees and which, of course, they now criticize because 
the independent body has rated President Bush's nominees as highly 
qualified as any we have ever seen.
  In other words, Priscilla Owen, who had the support of both home 
State Senators, which is a requisite for consideration by the 
Committee, who had the highest rating given by the American Bar 
Association for a judicial nominee, who is a supreme court justice in 
Texas, and who, by anybody's measurement who is fair, is in the 
mainstream of American jurisprudence, was dumped unceremoniously in the 
committee by a 10-to-9 party vote, a partisan party vote at that, and 
without giving her nomination the chance of being brought up on the 
floor of the Senate where I believe she would have passed, if not 
overwhelmingly, certainly comfortably.
  I have heard my colleague from Vermont defend against that by listing 
the 42 judicial nominees who did not get confirmed by the end of the 
Clinton administration. He doesn't point out that there were 54 
nominees left hanging at the end of the first Bush administration when 
they were in charge. And he does not explain that most, if not all, of 
the nominees left hanging at the end of the Clinton administration, 
however qualified, did not progress because either they were nominated 
too late or did not have their home state Senators' support or had 
other problems that we cannot address.
  In an attempt to cloud up the rejection of Justice Owen's nomination, 
I have also heard my colleagues point to the Clinton judges from Texas 
in particular who never got a hearing. One said at the Owen hearing 
that I did not give them a hearing. It was a very unfair 
characterization, and I will respond to it now.
  As my friend knows well enough, neither of those nominees had the 
support of their home state Senators. This prevented me, and would have 
prevented the distinguished Senator from Vermont, if he were in my 
shoes, from scheduling a hearing for them. In part, this was because 
President Clinton ignored the Texas Senators and the Texas nominating 
commission in making those nominations. The practice of honoring the 
home State Senators is not one I put in place; it was put in place 
under Democrat leadership of the committee, and appears agreeable to 
both parties.

  Today, Democrat Senators from the States of North Carolina, 
California, and Michigan have prevented the Judiciary Committee from 
holding hearings on six of President Bush's original Circuit Court of 
Appeals nominees who were nominated a year and a half ago, some of the 
greatest nominees I have seen in the whole time I have been in the 
Senate and on the Judiciary Committee, now 26 years.
  I know there are those who seem to justify wrong in childlike fashion 
with the intellectual crutch of, ``They did it, too.'' Let me say that 
we Republicans have never done what was done to Justice Owen. I can't 
think of anything in history that compares to that. Some Democrats have 
attempted to leave the impression that Republicans have unclean hands 
so as to soften the scrutiny of what was done to Justice Owen. The 
American people will see through this.
  But let me assure you, none of those nominees who did not get 
hearings would trade places with Charles Pickering of Mississippi or 
Priscilla Owen of Texas. It is beyond peradventure that they would 
prefer to be ghosts of nominations past than called racists, unjustly 
called racists, and have their fine records of public service soiled by 
the Judiciary Committee.
  I am heartened to know that beyond the overwhelming support from her 
home State of Texas and scores of op-eds written across the country in 
support of the Owen nomination, Justice Owen's nomination to the Fifth 
Circuit has received editorial support from over 24 newspapers 
published across the Nation and across the political spectrum. I have 
previously submitted these for the Record.
  Prior to the vote in Committee, only three newspapers, in fact--in 
New York, Los Angeles, and San Francisco--had come out firmly against 
the nomination.
  I am heartened by this national support not just for the sake of 
Justice Owen, but because at her hearing I expressed alarm at the 
efforts of some to introduce ideology into the confirmation process. I 
am heartened that editorial and op-ed writers across the country 
reflect not only support for Justice Owen but also the near universal 
rejection of this misguided effort to make the independent Federal 
judiciary a mere extension of Congress and less than the independent, 
coequal branch it was intended to be.
  Let me respond further to my good friend from Vermont. He is right 
that in this session so far the Senate has confirmed 73 judges. There 
is much eagerness in my friend's voice asserting that this number 
compares favorably to the last three sessions of Congress during which 
I was chairman.
  Although I am flattered to hear my record used as the benchmark for 
fairness, I am afraid this does not make for a fair comparison because 
I was never chairman during any of President Clinton's first 2 years in 
  Let me repeat that. I was never chairman of the Judiciary Committee 
during any President's first 2 years in office. I am glad to say, 
therefore, that the proper comparison is not, as they say, about me.
  My colleague speaks of the last 15 months when I was chairman, but 
this compares apples to oranges.
  During President Clinton's first Congress, when Senator Biden was the 
chairman of the Judiciary Committee, the Senate confirmed 127 judicial 
nominees. And Senator Biden achieved this record despite not receiving 
any nominees for the first 6 months--in fact, Senator Biden's first 
hearing was held on July 20 of that year, more than a week later than 
the first hearing of this session, which occurred on July 11, 2001. 
Clearly, getting started in July of year one is no barrier to the 
confirmation of 127 judges by the end of year two. But we have 
confirmed only 73 nominees in this session.
  Senator Biden's track record during the first President Bush's first 
two years also demonstrates how a Democrat-led Senate treated a 
Republican President. Then-Chairman Biden presided over the 
confirmation of all but 5 of the first President Bush's 75 nominees in 
that first two-year session. Chairman Thurmond's record is similar. The 
contrast to the present could hardly be starker.
  Mr. President, we are about to close President Bush's first 2 years 
in office having failed the standards set by Chairmen Biden and 
Thurmond. That is nothing over which to be proud. We still have 80 
vacancies on the courts, and 32 emergency vacancies.
  Mr. President, one final point about Justice Owen. Much of the 
opposition against her was driven by interest groups that advocate for 
the right to abortion. Yet in Justice Owen we had the first nominee we 
have considered this session who has, as a judge, read those cases, 
cited them, quoted them, applied them and followed them. She did, 
however, interpret the new Texas parental notice law and sought in one

[[Page S8345]]

particular case to make it rarer to bypass than some of her colleagues 
on the court, although the Texas Supreme Court agreed in most all other 
  Of course, the charge that she is a judicial activist was a cynical 
trick of words from Washington special interest lobbyists who have made 
their careers taking positions without letting the words of the 
Constitution stand between them and their political objectives.

  Why did they oppose her? Ironically enough, they are doing so because 
they do not like the Texas statute requiring parental notice in cases 
of abortions for children. Justice Owen voted to give the statute some 
meaning. Justice Owen's opponents think a minor should always be able 
to avoid the Texas Legislature's standards. It is the groups allied 
against Justice Owen who are the judicial activists, the ones who are 
looking to achieve in the courts an outcome that is at odds with the 
law passed by the elected legislators.
  Let's be clear that the opposition to Justice Owen was all about 
abortion. But in Justice Owen's case, it was not that she opposed 
abortion rights--no decision of hers ever denied that right. I fear 
that the opposition to Justice Owen is not about abortion rights 
exactly, but something much more insidious--it was not about abortion 
rights exactly but about abortion profits.
  Simply put, the abortion industry is opposed to parental notice laws 
because they place a hurdle between them and their clients--not the 
girls who come to them, but the adult men who pay for the abortions. 
These adult men, whose average age rises the younger the girl is, are 
eager not to be disclosed to parents, sometimes living down the street. 
At $1,000 per abortion and nearly 1 million abortions per year, the 
abortion industry is as big as any corporate interest that lobbies in 
Washington. They not only ignore the rights of parents to hide their 
young daughters' abortions, they also protect sexual offenders and 
statutory rapists.
  And who are the lobbyists for the abortion industry? Exactly the same 
cast that has launched an attack on Justice Owen. One wonders, as 
columnist Jeff Jacoby did in the Boston Globe, who are the extremists 
on this issue, who is out of the mainstream? Not Justice Owen--82 
percent of the American people favor consent and notice laws such as 
Justice Owen interpreted--86 percent in Illinois.

  I will say it again, while my colleagues continue in general to apply 
an abortion litmus test, the assault against Justice Owen was not about 
abortion rights, it was about abortion profits. It is not about a 
woman's right to an abortion, it is about assailing parental laws that 
threaten the men who pay for abortions. It is whether parents should at 
least know, not even consent to, but just know, when a minor child is 
having an abortion paid for by an adult.
  Let's speak truth to power. Justice Owen was picked to be opposed 
because she is a friend of President Bush from Texas. She was opposed 
by an axis of profits. This axis of profits combines the money of trial 
lawyers and the abortion industry to fund the Washington special 
interest groups, and spreads its influence to the halls of power in 
Washington and in State courts across this country.
  The Opposition against Justice Owen was intended not only to have a 
chilling effect for 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, but also on all judges in all State courts 
who rule on cases the trial lawyers want to win and cash in on.
  When my colleagues voted against her, they chose to besmirch a model 
young woman from Texas, who grew up, worked hard and did all the right 
things--including repeatedly answering the call of public service at 
sacrifice of personal wealth and family. My Democrat colleagues voted, 
in effect, against the American promise of fairness.
  This is a young woman who gave up a lucrative career to give public 
service on the Texas Supreme Court, and who deserves to be on the Fifth 
Circuit Court of Appeals.
  Such a vote should have taken place in the light of this Senate 
floor, but the American people will hear of the result notwithstanding 
the shadows.
  I only hope the American people will repair the damage done to the 
Constitution when they vote in November.
  I have reviewed Mr. Marra's distinguished career and I can say, 
without hesitation, that he will be an excellent addition to the 
prestigious Southern District of Florida.
  Mr. Marra comes to the federal bench with a unique and extremely 
useful qualification: Judge Marra is a former Social Studies teacher at 
Elmont Memorial High School in Elmont, New York. After teaching high 
school for several years, Judge Marra inexplicably decided to change 
career paths and went to law school, graduating from Stetson University 
College of Law in 1977. He then went to work for the United States 
Department of Justice as part of its honor law graduates program. While 
at the Department of Justice, he was involved in litigation which 
sought to protect the land, water and mineral rights of Native 
Americans from encroachment and to regain such resources that had been 
wrongfully lost over the years.
  After three years with the Department of Justice, Judge Marra joined 
the law firm of Wender, Murase & White of Washington, D.C., where he 
was involved in patent and trademark litigation, corporate law and 
litigation in the area of federal Indian law. In 1984 Judge Marra 
joined the law firm of Nason, Gildan, Yeager, Gerson & White. He worked 
at that firm for the next twelve years focusing on commercial 
litigation and representing clients at both the trial and appellate 
levels. Judge Marra gained experience in a variety of matters, 
including antitrust, contracts, construction defects, condominium and 
homeowner association disputes, and employment and housing 
  In 1996 Judge Marra was appointed to the Fifteenth Judicial Circuit 
in Palm Beach County, Florida. He has served in the civil, family and 
criminal divisions.
  Judge Marra will make a fine member of the Federal bench.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, I am sure it was inadvertent that when 
the distinguished Senator from Utah was talking about the editorials 
against the nominee, Priscilla Owen, he said there were only three 
  I refer, for example, to the Atlanta Journal-Constitution, and I will 
quote from it and then put the whole editorial in the Record.
  I ask unanimous consent that articles in opposition to her be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Sept. 4, 2002]

                            The Wrong Judge

       Priscilla Owen, President Bush's latest nominee to the 
     United States Court of Appeals for the Fifth Circuit, has 
     been at times so eager to issue conservative rulings in cases 
     before her on the Texas Supreme Court that she has ignored 
     statutory language and substituted her own views. This 
     criticism comes not from the ``special interest groups'' she 
     has charged with misstating her record, but from Alberto 
     Gonzales, President Bush's own White House counsel. Mr. 
     Gonzales, who served with Justice Owen on the Texas high 
     court, once lambasted her dissent in an abortion case for 
     engaging in ``unconscionable . . . judicial activism.'' Mr. 
     Gonzales says today that he nonetheless supports the 
     elevation of Justice Owen. We do not.
       In choosing a nominee for the Fifth Circuit--the powerful 
     federal appeals court for Texas, Mississippi and Louisiana--
     President Bush has looked to the extreme right wing of the 
     legal profession. Even on Texas' conservative Supreme Court, 
     Justice Owen has distinguished herself as one of the most 
     conservative members. A former lawyer for the oil and gas 
     industry, she reflexively favors manufacturers over 
     consumers, employers over workers and insurers over sick 
     people. In abortion cases Justice Owen has been resourceful 
     about finding reasons that, despite United States Supreme 
     Court holdings and Texas case law, women should be denied the 
     right to choose.
       Justice Owen's views are so far from the mainstream that, 
     on those grounds alone, the Senate should be reluctant to 
     confirm her. But what is particularly disturbing about her 
     approach to judging is, as Mr. Gonzales has identified, her 
     willingness to ignore that text and intent of laws that stand 
     in her way. In an important age discrimination case, Justice 
     Owen dissented to argue that the plaintiff should have to 
     meet a higher standard than Texas law requires.
       Justice Owen has also shown a disturbing lack of 
     sensitivity to judicial ethics. She has raised large amounts 
     of campaign contributions from corporations and law firms, 

[[Page S8346]]

     then declined to recuse herself when those contributors have 
     had cases before her. And as a judicial candidate, she 
     publicly endorsed a pro-business political action committee 
     that was raising money to influence the rulings of the Texas 
     Supreme Court.
       After the Senate Judiciary Committee rejected Judge Charles 
     Pickering, another far-right choice, for a seat on the Fifth 
     Circuit earlier this year, the Bush administration declared 
     that it would not be intimidated into choosing more centrist 
     nominees. Sadly, the administration has lived up to its 
     threat. In this dispute the Senate is right: the 
     administration should stop trying to use the judiciary to 
     advance a political agenda that is out of step with the views 
     of most Americans.
       Justice Owen is a choice that makes sense for Justice 
     Department ideologues who want to turn the courts into a 
     champion of big business, insurance companies and the 
     religious right. But the American people deserve better. 
     Justice Owen's nomination should be rejected.

              [From the Los Angeles Times, July 23, 2002]

                        Ideologues All in a Row

       Last year President Bush eliminated the American Bar Assn. 
     from the process of vetting potential judicial nominees, a 
     role it performed ably and in a nonpartisan way for the nine 
     presidents before him. Now he relies on the ideological tests 
     of the very conservative Federalist Society.
       Not surprisingly, the men and women who pass this rigid 
     test look remarkably alike on the bench. They often side with 
     business in disputes involving employee rights, consumers and 
     the environment. They strongly oppose abortion, and their 
     opinions reveal a strong streak of judicial activism dressed 
     up as traditional principle.
       Priscilla Owen is among them. A protege of Bush confident 
     Karl Rove, who engineered her 1994 election to the Texas 
     Supreme Court, Owen is a nominee to a seat on the U.S. 5th 
     Circuit Court of Appeals. She comes before the Senate 
     Judiciary Committee today to defend a record of indifference 
     to the problems of most Americans.
       Senators should ask her why, for example, she voted to 
     reverse a jury verdict in favor of a woman who had sued her 
     health insurance company for refusing necessary surgery to 
     remove her spleen and gallbladder. Her colleague on the Texas 
     high court, Alberto Gonzales, now Bush's top legal advisor, 
     dissented, writing that Owen's decision turned the legal 
     standard in that case ``on its head.''
       Gonzales, a solid conservative himself, also took issue 
     with Owen in an abortion case that should draw tough 
     questions from Sen. Dianne Feinstein (D-Calif.), chairwoman 
     of today's hearing. Texas law allows pregnant teenagers in 
     some instances to seek permission from a judge to have an 
     abortion without their parents' consent. Owen has staunchly 
     opposed such ``judicial bypasses.'' In one case, Gonzales, 
     wrote, Owen's opinion would have ``create[d] hurdles that 
     simply are not found in the . . . statute'' and would be ``an 
     unconscionable act of judicial activism.'' in other cases, 
     her colleagues have accused her of ``inflammatory rhetoric.''
       For all this, Owen's nomination puts Feinstein in a tough 
     spot. She was chairwoman last March when the Judiciary 
     Committee rejected Charles Pickering, another Bush pick for 
     the 5th Circuit. She is anxious to avoid being labeled 
     obstructionist. But given her repeated calls for mainstream 
     nominees, not to mention her long support for abortion 
     rights, Feinstein should vote no, and so should her 
       Although it is now one of the most conservative appellate 
     federal courts, the 5th Circuit has a long and honorable 
     history--defending civil rights during the 1960s and the 
     rights of asbestos workers, systematically deceived and 
     injured by their employers, in the 1970s. Owen would add 
     nothing positive to that legacy.
       Americans want independent, common-sensical and capable 
     judges, not those whose political ideology--from either 
     direction--wins them a nomination. As long as Bush continues 
     to exclude the American Bar Assn. from the nomination 
     process, he should not be surprised that his choices draw 

           [From the San Antonio Express-News, July 21, 2002]

                  Bush Court Choice Should Be Rejected

       Once competency is established, the most important 
     qualification for a judge is commitment to following the law 
     as it is written--regardless of personal philosophy.
       Justice Priscilla Owen is clearly competent, but her record 
     demonstrates a results-oriented streak that belies 
     supporters' claims that she strictly follows the law.
       Because of Owen's record as a member of the Texas Supreme 
     Court, the Senate Judiciary Committee should reject her 
     nomination to sit on the U.S. 5th Circuit Court of Appeals.
       Her most infamous opinions involve cases in which minors 
     were seeking a legal bypass allowing them to get an abortion 
     without parental consent.
       In those cases, she consistently landed in a small court 
     minority that opposes such bypasses, while a majority of her 
     fellow judges on an all-Republican court upheld the law as 
     legislators wrote it.
       Former Justice Al Gonzales clearly pointed that out. In an 
     opinion that countered a dissent she supported, he wrote: 
     ``To construe the Parental Notification Act so narrowly as to 
     eliminate bypasses, or to create hurdles that simply are not 
     to be found in the words of the statute, would be an 
     unconscionable act of judicial activism.''
       Now serving as President Bush's White House counsel, 
     Gonzales is defending his former state court colleague. 
     However, opinions she wrote in the parental consent cases 
     show a clear line between strict constructionist judges and 
       Owen, who remains on the state's high court, is an 
       In recent years, judicial nomination struggles on Capitol 
     Hill have become a game, played by both parties, or petty 
       The Senate should not block a judicial nominee simply 
     because he or she is more conservative or more liberal than 
     the Senate's majority party.
       It also should not engage in petty personal attacks. But 
     concerns about Owen go to the heart of what makes a good 
       When a nominee has demonstrated a propensity to spin the 
     law to fit philosophical beliefs, it is the Senate's right--
     and duty--to reject that nominee.
       A hearing on Owen's nomination is set for this week.
       Although Owen should be rejected for a lifetime 
     appointment, the Democrat-controlled Senate should have given 
     her a hearing long ago. Bush nominated Owen on May 9, 2001.
       Owen and the president were owed better treatment. Even 
     nominees who are destined for rejection deserve timely 
     consideration, and the Democrats should pick up the pace in 
     considering Bush's judicial picks.
       During his years as Texas governor, Bush did a masterful 
     job of selecting quality, moderate judges. But his decision 
     to nominate Owen is a disappointment.
       We urge Bush to take more care in future nominations and 
     return to his previous policy of nominating judges who 
     believe in the law more than any ideological agenda.

           [From the San Francisco Chronicle, July 23, 2002]

                      Feinstein's Decisive Moment

       Sen. Dianne Feinstein, D-Calif., faces a momentous 
     decision. Today, the Senate Judiciary Committee will hold 
     hearings on Priscilla Owen, the president's candidate for a 
     lifetime appointment to the United States Court of Appeals 
     for the Fifth Circuit. With the committee divided along party 
     lines, Feinstein could cast the decisive vote.
       When George W. Bush became president, he excoriated 
     judicial activism and vowed to nominate justices who 
     interpret the law, instead of trying to rewrite it.
       Priscilla Owen simply does not satisfy the president's own 
     criteria for this position. According to a report issued by 
     People For the American Way, a liberal advocacy group, Owen 
     has demonstrated a disturbing pattern of overruling the law 
     when it clashes with her conservative ideology.
       In one case, for example, Owen's dissenting decision would 
     have effectively rewritten a key Texas civil rights law by 
     making it more difficult for employees to prove 
     discrimination. Her colleagues on the bench--mostly Bush 
     appointees--wrote that her ruling ``defies the Legislature's 
     clear and express limits on our jurisdiction.''
       With respect to reproductive rights, Owen advocated a far 
     more restrictive interpretation of the Texas law that allows 
     a minor to obtain an abortion without parental notification. 
     Her dissent prompted then-Justice Alberto Gonzales, now the 
     White House counsel, to write that her opinion constituted 
     ``an unconscionable act of judicial activism.'' Gonzales, 
     naturally, now expresses the White House party line, hailing 
     Owen's integrity and ability. ``I'm confident she will follow 
     the law as defined by the Supreme Court,'' Gonzales was 
     quoted as saying in the San Antonio Express-News.
       But close observers of her Texas record are less confident 
     of her objectivity. Danielle Tierney, a Planned Parenthood 
     spokeswoman from Texas, said Owen has ``a record of active 
     opposition to reproductive and women's rights.''
       Owen has also tried to finesse laws that protect public 
     information rights, the environment, and jury findings.
       The point is, Owen has created a strong record of 
     ``rewriting'' the law when it does not match her conservative 
       This is why it is vital that Feinstein reject this 

             [From the Dallas Morning News, July 16, 2002]

            Justice Owen: Perpetrator or Victim of Politics?

         her activism has been extreme, even by texas standards

                          (By Craig McDonald)

       Texas Supreme Court Justice Priscilla Owen, who faces a 
     Senate Judiciary Committee hearing Thursday on her nomination 
     to the 5th U.S. Circuit Court of Appeals, flunks the stated 
     judicial criteria of both President Bush and the Democratic 
     chairman of the Judiciary Committee.
       Although the president nominated Justice Owen, she flunks 
     his own pledge to appoint ``strict constructionists'' who 
     narrowly interpret laws rather than write opinions promoting 
     a political agenda. ``I want people on the bench who don't 
     try to use their position to legislate from the bench,'' Mr. 
     Bush has said. Yet Justice Owen's record on the Texas Supreme 
     Court is one of a judicial activist who seeks to make laws 
     from the bench.

[[Page S8347]]

       Justice Owen also flunks the criteria of Senate Judiciary 
     Committee Chairman Patrick Leahy, who has pledged to stop any 
     ``ideological court packing.'' Justice Owen's record has 
     established her as an ideological extremist out of the 
     mainstream--even on the all-conservative Texas Supreme Court.
       Justice Owen's extreme opinions have mobilized a large 
     coalition of Texas organizations working to stop her 
     appointment. The groups fighting her nomination range from 
     the Texas chapter of the American Association of University 
     Women to the Women's Health and Family Planning Association. 
     They include the AFL-CIO, the National Association for the 
     Advancement of Colored People, Planned Parenthood, the Texas 
     Civil Rights Project, the Texas Abortion Rights Action League 
     and others.
       While each of those organizations has its own reasons for 
     opposing Justice Owen, my group--Texas for Public Justice--is 
     particularly troubled by the fact that she has amassed a body 
     of rulings that advance the agendas of the special interests 
     that bankrolled her judicial campaigns. Thirty-seven percent 
     of the $1.4 million that Justice Owen raised for her Supreme 
     Court campaigns came from donors with a direct stake in case 
     in her court.
       Letting special interests bankroll judicial campaigns has 
     shattered public confidence in Texas courts. A 1999 Texas 
     Supreme Court poll found that 83 percent of Texans, 79 
     percent of Texas lawyers and 48 percent of Texas judges say 
     campaign contributions significantly influence judicial 
     decisions. Commenting on the poll, U.S. Supreme Court Justice 
     Anthony Kennedy said, ``The law commands allegiance only if 
     it commands respect. It commands respect only if the public 
     thinks judges are neutral.''
       Since Justice Owen joined the high court in 1995, she has 
     written and joined a slew of opinions that favor businesses 
     over consumers, defendants over plaintiffs and judges over 
     lawmakers and juries. A 1999 study by Austin-based Court 
     Watch found that individuals won just 36 present of their 
     cases during Justice Owen's tenure, compared to a win rate of 
     66 percent for businesses, 70 percent for insurers and 86 
     percent for medical interests.
       While all nine Texas Supreme Court justices are pro-
     business conservatives, Justice Owen and Nathan Hecht became 
     an isolated bloc of extremist dissent about 1998. 
     Masquerading as ``strict constructionists,'' Justices Owen 
     and Hecht have promoted the interests of big business and the 
     far right with much less restraint than their fellow Texas 
     justices. That ultraconservative activism is all the more 
     disturbing, given that it mirrors the agenda of the top 
     donors to their judicial war chests.
       In making lifetime appointments to federal appeals courts, 
     the president and the Senate can--and should--do better. 
     Justice Owen lacks criminal trial experience, has taken more 
     than $500,000 in judicial contributions from interests with 
     cases in her court and has produced a body of activist 
     opinions that are extremist--even by Texas standards.

           [From the San Antonio Express-News, July 21, 2002]

     Judge Owens Flunks Bush's Own ``Strict Constructionists'' Test

                        (By Jan Jarboe Russell)

       In a perfect world, there wouldn't be ``liberal'' judges or 
     ``conservative'' judges, there would just be good judges. 
     After all, if you ask ordinary people what they want in a 
     federal judge, what they want are judges who are fair, 
     learned and impartial, judges who have the ability to lay 
     aside their own political views and do their public duty.
       Why then is it so darn hard to find these kind of plain-
     and-simple judges? The answer, of course, is the dreaded P 
     word; politics. The ongoing battle in the Senate Judiciary 
     Committee over the nomination of Priscilla Owen to the 5th 
     U.S. Circuit Court of Appeals is a perfect example of how 
     politics is making a certifiable mess of America's judicial 
       In seven years on the Texas Supreme Court, the only way 
     moderate-thinking people in Texas survived Owen's relentless 
     ultra-conservative dissents was to toughen our stomachs and 
     take her many efforts to rewrite our state laws one day at a 
     time. This is a woman who has consistently ruled against 
     consumers, has routinely overturned decisions of juries, has 
     curtailed access to public records, and by anyone's measure 
     is an avid anti-abortion ideologue.
       Mind you: the Texas Supreme Court is no bastion of 
     liberalism. The nine members of the court are 100 percent 
     pedigree Republican, but Owen was such a right-wing activist 
     she managed to earn the nickname ``Justice Enron'' for 
     accepting $8,600 in Enron campaign funds in one year--$1,000 
     of it from Kenneth Lay himself--and turning around the next 
     and writing an opinion that saved Enron $225,000 in school 
       As one of only nine states in the nation with the sorry 
     system of electing our judges with expensive campaigns paid 
     for by the very lawyers and businesses that come before these 
     judges for justice, Texas gets exactly the kind of justice we 
     deserve. In the case just mentioned, for example, Enron paid 
     for the privilege of robbing the public school children of 
     Spring, a Houston suburb, of their rightful share of taxes.
       I don't expect President Bush to nominate judges to the 
     federal bench with whom I agree politically. But I do expect 
     Bush to nominate people to lifetime positions on the federal 
     bench who meet Bush's own standards of ``strict 
     constructionists,'' judges who will interpret rather than 
     write the law. Owen fails the Bush test.
       In no less than a dozen cases in which the Texas Supreme 
     Court was asked to allow a pregnant teenager to bypass the 
     state's parental notification requirement and have an 
     abortion, Owen voted every time to deny the bypass and 
     created hurdles that were not written in the state's law. In 
     one case, when lawyers for a high school senior requested 
     that the court act quickly on the girl's request for 
     permission to bypass the notification requirement, Owen wrote 
     a dissent that asked: ``Why then the rush to judgment?'' The 
     girl was in the 15th week of pregnancy at the time.
       Owen's rulings in these abortion notification cases were so 
     strident that Alberto Gonzales, now Bush's White House 
     counsel but then a member of the Texas Supreme Court, wrote 
     in a majority opinion that Owen and two other dissenting 
     justices were thwarting the clear intent of the law. To 
     accept their reasoning, he wrote, ``would be an 
     unconscionable act of judicial activism.''
       Gonzales finds himself in the role of reluctant cheerleader 
     for Owen. In a telephone interview from his office in the 
     West Wing the other day, Gonzales claimed that he never 
     accused Owen of judicial activism and believes she would be 
     an excellent judge. His opinion has written in black-and-
     white only two years ago--he clearly called her dissent an 
     ``unconscionable act of judicial activism''--but maybe in his 
     struggle to find the gray, Gonzales meant that he thought all 
     of three of the judges were unconscionable. Who knows? 
     Politics makes people parse words very carefully.
       Owen's political credentials are indeed impressive. She is 
     a protege of Karl Rove, the president's political adviser, 
     and it is Rove who is pushing her judicial nomination. But 
     politics should not be the primary measure of a judge's 
     ability to administer justice.
       As much as it pains me to say it, Justice Enron should stay 
     put in Texas.

              [From the Houston Chronicle, July 31, 2002]

                  DiFi, Owen Would Be Very Odd Couple

                            (By Cragg Hines)

       Sen. Dianne Feinstein, a wonderfully calm, cool 
     Californian, loves to be the swing vote. It increases the 
     sense that she is unbought and unbossed, and it makes her 
     political currency slightly more valuable than that of 
     colleagues who fall predictably one way or another on an 
       Part of this is political tromp l'oeil, an illusion so 
     strong that it's difficult to tell it's not genuine. For, 
     when the roll is called, only rarely is Feinstein not 
     reliably found where she sought to be--in her regular center-
     left Democratic pew.
       Which brings us to the nomination of Justice Priscilla Owen 
     of the Texas Supreme Court to be a judge on the 5th U.S. 
     Circuit Court of Appeals, a place where the conservative 
     judicial activist, corporate suck-up and made member (blood 
     oath?) of the Federalist Society has no earthly place being.
       Feinstein ran last week's hearing by the Senate Judiciary 
     Committee on Owen's nomination and said she was ``keeping an 
     open mind'' regarding President Bush's determination to give 
     Owen lifetime employment. (For the forgetful: Bush and Owen 
     both got their start in statewide politics as clients of the 
     White House political high priest, Karl Rove.)
       Feinstein's self-advertised ``open mind'' is about the only 
     hope for supporters of Owen. The Judiciary Committee's nine 
     Republicans need one of the panel's 10 Democrats to vote with 
     them to get the nomination to the floor.
       If the nomination is not cleared by the committee, it's 
     dead. None of this sending it to the floor without a 
     recommendation in a Senate with a one-vote Democratic margin 
     and run by Majority Leader Tom Daschle, D-S.D.
       (Owen opponents would still like to hear something 
     definitive from two other Demoracts--Sen. Joseph R. Biden, 
     Jr. of Delaware, who did not show up for last week's hearing, 
     and the enigmatic gentleman from Wisconsin, Sen. Russell D. 
     Feingold--but the focus is on Feinstein.)
       Owen's opponents believe that Feinstein will eventually 
     vote against the Texas jurist, but they cannot be absolutely 
     certain. Feinstein is not about to help them divine the 
     oracle at the moment.
       ``I've been giving it a great deal of thought,'' Feinstein 
     said this week as the Senate headed toward summer recess. 
     ``I'm not going to let my decision be known, but at an 
     appropriate time, I will.
       ``What I've said, and I've taken this position, I think, 
     rather scrupulously, is that I don't make up my mind until 
     after the hearing.''
       There was little in the hearing that should lead Feinstein, 
     or any senator, to believe that Owen is anything but the very 
     bright, very ideological, very driven hard-right jurist 
     revealed in her work over the last seven years on Texas' 
     highest civil court.
       Finally, Sen. Richard J. Durbin, D-Ill, asked Owen directly 
     about her position on abortion.
       ``My position is that Roe v. Wade has been the law of the 
     land for many, many years . . . ,'' Owen said, noting that 
     decision had been modified (and made more restrictive by 
     subsequent rulings). ``None of my personal beliefs would get 
     in the way of me applying that law or any other law.''

[[Page S8348]]

       But Owen's record, in a series of recent abortion-related 
     cases, suggests otherwise. In all but one of the cases, Owen 
     sought to tweak and torture the Texas law to something not 
     intended by the Legislature.
       Feinstein was listening to all of this and, one assumes, 
     took it on board. In case she didn't, an editorial in The Los 
     Angeles Times the morning of the hearing should have helped: 
     The work of Owen and similarly situated conservative jurists 
     ``reveal(s) a strong streak of judicial activism dressed up 
     as traditional principle.''
       The home state newspaper parsed Feinstein's situation: She 
     also chaired the hearings earlier this year in which the 
     Judiciary Committee rejected Bush's nomination of Charles 
     Pickering of Mississippi for a seat on the 5th Circuit Court.
       ``She is anxious to avoid being labeled obstructionist,'' 
     The Times said of Feinstein. ``But given the repeated calls 
     for mainstream nominees, not to mention her long support of 
     abortion rights, Feinstein should vote no, and so should her 
     colleagues.'' Feinstein said she weighs such opinion but that 
     it is not dispositive.
       One piece of baggage Feinstein would like to discard in the 
     Owen matter is that her vote will have anything to do with a 
     business relationship that the senator's husband, Richard C. 
     Blum, has with Dr. James Leininger of San Antonio, a generous 
     supporter of Owen's judicial campaign.
       ``I've never met (Leininger), talked with him, seen him, 
     heard from him--and that's that,'' Feinstein said. Nor, she 
     said, ``have I ever talked to my husband about this, nor has 
     he ever talked to me about it.''
       So Feinstein should be able to vote against Owen with a 
     clear conscience.
  Mr. LEAHY. In part, this article says:

       Senate Judiciary Committee Chairman Patrick Leahy has held 
     hearings on 82 Bush judicial nominations, 80 of which have 
     been approved by the committee. Most of those nominees have 
     been pro-life conservatives whose performance on the bench 
     the committee still judged to be fair and professional. For 
     example, last week the committee unanimously reported on 
     President Bush's choice of Federal District Judge Reena Raggi 
     of New York for the U.S. Circuit Court of Appeals for the 
     Second Circuit.

  Parenthetically, I might add that Judge Raggi was originally 
appointed by President Ronald Reagan, a conservative Republican who 
promised to appoint only judges who satisfied his litmus test.

       The American people appreciate balanced judging, and thanks 
     to the Senate Judiciary Committee, they're getting it.

  I ask unanimous consent that the editorial be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Through constant repetition, conservatives have managed to 
     make a code phrase out of ``judicial activism,'' applying it 
     to rulings that in their mind go beyond the words in 
     legislation or the U.S. Constitution. But conservatives 
     themselves are hardly immune from the problem.
       Case in point: Texas Supreme Court Justice Priscilla Owen, 
     rejected last week for the 5th U.S. Circuit Court of Appeals 
     by the Senate Judiciary Committee because of her record of 
     making law from the bench. The committee made the right 
     decision for the American people.
       Owen's activist judging has gone so far beyond the statutes 
     enacted by the Texas Legislature that she was even criticized 
     by fellow conservatives on the state Supreme Court, including 
     Alberto Gonzales, who is now Bush's White House counsel.
       On abortion, age and employment discrimination, insurance 
     and tax matters, the former corporate oil lawyer repeatedly 
     embellished the plain language of the law to rewrite it to 
     conform with her own ideological views. She also found ways 
     to side consistently with corporations, including Enron, 
     which contributed generously to her Supreme Court election 
       President Bush has accused the Senate Judiciary Committee 
     of blind partisanship, but the facts don't bear that out. In 
     less than two years, the Democratic-controlled committee has 
     approved more Bush nominees for the federal bench than the 
     Republican-controlled Senate Committee did in six years with 
     President Clinton.
       Senate Judiciary Chairman Patrick Leahy (D-Vt.) has held 
     hearings on 82 Bush judicial nominations, 80 of which have 
     been approved by the committee. Most of those nominees have 
     been pro-life conservatives whose performance on the bench 
     the committee still judged to be fair and professional. For 
     example, last week the committee unanimously confirmed Bush's 
     choice of Federal District Judge Reena Raggi of New York for 
     the 2nd U.S. Circuit Court of Appeals.
       Nevertheless, Bush lashed out angrily at the Owen defeat: 
     ``I don't appreciate it one bit, and neither do the American 
       Quite the contrary, Mr. President. The American people 
     appreciate balanced judging, and thanks to the Senate 
     Judiciary Committee, they're getting it.
  Mr. LEAHY. Madam President, I ask unanimous consent for 1 more 
minute, with another minute to be given to the Senator from Utah.
  Mr. REID. Will the Senator yield?
  Mr. LEAHY. Yes.
  Mr. REID. I was going to go into a quorum call for 5 or 6 minutes 
anyway. If the Senators would like 3 more minutes each or something, 
that is fine. Otherwise, I will go into a quorum call.
  Mr. LEAHY. Madam President, I ask unanimous consent for that time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, there was a suggestion made--I am sure 
inadvertent--by the distinguished Senator from Utah that it was 
unprecedented to see a nominee with a well-qualified rating be voted 
against. Actually, the Senator from Utah has voted against such a 
person, like Judge Rosemary Barkett of Florida, as have a number of 
others. But then there were a whole lot of others who we can say were 
not voted against? Why? Because they were never allowed to have a vote 
during Republican control of the Senate.
  This is a partial list of nominees who never had a vote, but they had 
the highest rating possible: H. Alston Johnson from the Fifth Circuit 
was never given a hearing by the Republicans; James Duffy from the 
Ninth Circuit was never given a hearing; Kathleen McCree Lewis from the 
Sixth Circuit was never given a hearing or a vote; Judge James Lyons, 
from the Tenth Circuit, was never given a vote or a hearing; Allen 
Snyder, from DC, had a hearing but no vote; Judge Robert Cindrich, from 
the Third Circuit, was never given a hearing or a vote; Judge Stephen 
Orlofsky, from the Third Circuit, was never given a hearing or a vote; 
Judge Andre Davis, from the Fourth Circuit, was never given a hearing 
or a vote; and Enrique Moreno, of the Fifth Circuit, was never given a 
hearing and never given a vote.

  These are people with the highest possible rating from the ABA. 
Republicans can say they never voted against them. Why? Because they 
were never brought up and never given a vote. If they had been given a 
vote, they would have known where they stood.
  My good friend from Utah, perhaps inadvertently, thought I was 
comparing a time when he was not chairman. I do compare a time when he 
was chairman. I will take the first 15 months that he was chairman with 
a Democratic President.
  The Democratic President nominees got 14 hearings in 15 months; the 
Republican President nominees, under my chairmanship, got 23 hearings.
  Nominees who received hearings under Republicans were 67; under the 
Democrats with a Republican President, 84.
  Nominees confirmed, 56; in the same period of time, it was 74 with 
  Nominees voted on in committee: They allowed 61 during that 15 
months. We have had votes on 82 of this President's judicial nominees.
  It is nice to say nominations are not being handled fairly. The fact 
is, if we used the Republican precedent as a mark of fairness, we would 
not have to do anything else for the rest of the year because we are 
way beyond what they did.
  I reserve the remainder of my time.
  Mr. HATCH. Madam President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator from Utah has 4 minutes 5 seconds.
  Mr. HATCH. How much on each side?
  The PRESIDING OFFICER. The Senator from Vermont has 7 seconds.
  Mr. HATCH. Madam President, again, the Senator from Vermont and I are 
friends, but I totally disagree with what he has been saying. It is a 
smoke screen.
  Allow me to address the fate of nominees first sent up by the first 
President Bush. In fact, some pending today without a hearing who were 
nominated by the first President Bush nearly 10 years ago. These are 
nominees still on the list after 10 years that the Democrats have not 
allowed to come up: Terrence Boyle for the Fourth Circuit and John 
Roberts for the DC Circuit, considered one of the two or three greatest 
appellate lawyers in the country before the Supreme Court; Henry Saad 
for the Sixth Circuit; Ronald Leighton for the Western District of 
Washington; and Richard Dorr for the Western District of Missouri. All 
five of these nominees were nominated by the first President Bush, 
better than 10 years ago, but never received committee action at that 
time. I hope they, too, will soon

[[Page S8349]]

receive their long-awaited hearings and confirmation votes.
  By the way, there were 42 left over at the end of the Clinton 
administration. Nine of them were put up so late, there was no way 
anybody could have gotten them through. That brings us down to 33, and 
of the 33, there were others who did not have the support of both home-
State Senators. There were those who, for one reason or another, could 
not make it.
  Contrast that when Bush 1 left office and the Democrats were in 
control. There were 54 left over. That is 11 more than were left when 
President Clinton left office.
  If you want to talk statistics, I can talk them all day long, and I 
can tell you we have been much more fair than what we have seen in the 
first 2 years of the Bush 2 administration.
  I suggest that instead of spending our time talking about the same 
small handful of Clinton nominees, we should focus on the ones pending 
before us today who never saw the light of day the last time the 
Democrats controlled the Senate.
  Justice Owen, for instance--and this is an important point--is 
literally the first one in history who had the support of both-home 
State Senators, the highest rating of the American Bar Association, and 
was voted down in committee and not even given a chance to have a vote 
on the Senate floor.
  Currently, there are 80 empty seats on the Federal judiciary. That is 
a 9.3-percent vacancy rate, one of the highest in modern times. This 
means that 9.3 percent of all Federal courtrooms are presided over by 
an empty chair.
  There are currently 21 nominees who are slated to fill positions 
which have been declared judicial emergencies by the Administrative 
Office of the Courts. Of those, 11 are Circuit Court of Appeals 
  Only 5 of President Bush's first 11 circuit court nominees nominated 
on May 9, 2001--a year and a half ago almost--have had hearings. In 
other words, the Judiciary Committee has taken no action whatsoever on 
nearly half of the circuit court nominations that have been pending for 
over 16 months.
  There is no reason for this other than stall tactics. All of these 
nominees received qualified or well-qualified ratings from the American 
Bar Association.
  There were 31 vacancies in the Federal courts of appeals on May 9, 
2001, and there are 28 today. The Senate Democrats are trying to create 
an illusion of movement by creating great media attention and 
controversy concerning a small handful of nominees in order to make it 
look like progress. But we are not making any progress in filling 
circuit vacancies.
  President Bush has responded to the vacancy crisis in the appellate 
courts by nominating a total of 32 top-notch men and women to these 
posts--but the Senate is simply stalling them. Over the past year, the 
Senate has confirmed only 13. There are still 19 Circuit Court nominees 
pending in Committee. By comparison, at the end of President Clinton's 
second year in office, we had confirmed 19 circuit judges and had 15 
circuit court vacancies.
  There were only two Circuit Court nominees left pending in committee 
at the end of President Clinton's first year in office. In contrast, 
there were 23 of President Bush's Circuit Court nominees pending in 
Committee at the end of last year.
  Some try to blame the Republicans for the vacancy crisis, but that is 
bunk. At the end of the 106th Congress when I was chairman, we had 67 
vacancies in the Federal judiciary. During the past 9 months, the 
vacancy rate has been hovering right around 100. Today is at 80.
  Some think that the point of ``advise and consent'' is to match 
statistics from previous years. This rear-view-mirror driving is 
nonsense. The Senate has a duty to exercise its advice and consent, and 
it has done so on only 40 percent of President Bush's appellate court 
nominations so far this Congress. The question is not: How many judges 
should we let President Bush have? The question is: Is the Senate 
getting its work done?
  The Sixth Circuit Court of Appeals, which encompasses the states of 
Michigan, Ohio, Kentucky and Tennessee, has only 8 of 16 seats filled, 
leaving that court half-empty. The President has nominated 8 
individuals to fill these vacancies, but only two have received a 
hearing, despite the fact that two of these nominees have been pending 
since May 9, 2001.
  The U.S. Court of Appeals for the District of Columbia is also 
functioning far below its normal capacity, with 4 out of 12 authorized 
judgeships currently vacant. Although the President nominated Miguel 
Estrada and John Roberts on May 9, 2001, to fill seats on this Court, 
they have not yet been given a hearing.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. Madam President, last year when the Republicans controlled 
the Senate Judiciary Committee, they did not hold one hearing on 
President Bush's nominees. We have done 82.
  Mr. GRAHAM. Mr. President, I would like to thank the Judiciary 
Committee for recognizing the needs of Florida and favorably reporting 
the nomination of Judge Kenneth A. Marra.
  Ken Marra, a skilled and respected Judge in Florida's Fifteenth 
Circuit, has been nominated to serve as a Federal judge in the busy 
Southern District of Florida. If confirmed, he will fill a newly 
created and much needed judgeship position.
  Judge Marra's solid qualifications make him an ideal candidate for 
service on the Federal bench. A circuit judge since 1996, he currently 
serves in the Palm Beach County Court's civil, family and criminal 
divisions. Before his tenure as a circuit judge, Judge Marra spent 16 
years practicing commercial litigation in Palm Beach County and 
Washington, DC. He also served as a trial attorney with the United 
States Department of Justice.
  Judge Marra is a graduate of the State University of New York at 
Stony Brook and earned his law degree from the Stetson University 
College of Law in 1977. Before attending law school, the judge taught 
social studies to high school students in New York.
  The strength of Judge Marra's nomination is evident from the strong 
support that he has earned from his local bar. When asked to comment on 
his nomination for a January 4 Palm Beach Post article, Amy Smith, 
president of the Palm Beach County Bar Association, said, ``He is an 
absolutely perfect choice: impeccable background, extremely 
intelligent, consistently one of the highest rated judges in the 
judicial evaluations done here.'' Ms. Smith said Marra's judicial 
demeanor ``is gracious and humble. The President couldn't have made a 
better choice.''
  When the Palm Beach County Bar Association released its biennial 
survey of circuit and county judges earlier this spring, Judge Marra 
ranked the highest in the neutrality and fairness category, with 63 
percent of the attorneys rating him as ``outstanding.''
  In Florida, Judge Marra submitted his application to a judicial 
nominating committee comprised of a diverse group of Floridians, who in 
turn recommended three candidates to the President for consideration. 
Senator Bill Nelson and I interviewed these candidates.
  In summary, Mr. Marra is an intelligent, well-respected, and 
qualified candidate for the Federal bench.
  I appreciate the Senate's consideration of Judge Marra's nomination 
and look forward to working with my colleagues to confirm additional 
nominees to Florida's Southern and Middle Districts, two of the largest 
and busiest judicial districts in the country.
  The PRESIDING OFFICER. All time has expired.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Kenneth A. Marra, of Florida, to be United 
States District Judge for the Southern District of Florida? The yeas 
and nays have been ordered. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the 
Senator from Illinois (Mr. Durbin), the Senator from Iowa (Mr. Harkin), 
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland 
(Ms. Mikulski), the Senator from Washington (Mrs. Murray), are 
necessarily absent.
  Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard), 
the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr. 
Bunning), the Senator from Colorado

[[Page S8350]]

(Mr. Campbell), the Senator from New Hampshire (Mr. Gregg), the Senator 
from North Carolina (Mr. Helms), the Senator from Arkansas (Mr. 
Hutchinson), the Senator from Pennsylvania (Mr. Santorum), the Senator 
from Alabama (Mr. Sessions), the Senator from Alabama (Mr. Shelby), the 
Senator from New Hampshire (Mr. Smith), the Senator from Pennsylvania 
(Mr. Specter), are necessarily absent.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Are there any other 
Senators in the chamber desiring to vote?
  The result was announced--yeas 82, nays 0, as follows:

                      [Rollcall Vote No. 211 Ex.]


     Nelson (FL)
     Nelson (NE)
     Smith (OR)

                             NOT VOTING--18

     Smith (NH)
  The nomination was confirmed.
  Mr. REID. I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the President will 
be notified of the Senate's action.