[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]
[Senate]
[Pages S8350-S8351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LOTT. Mr. President, I do not want to take an extended period of 
time because I know the managers of the legislation are here and ready 
to go forward with the very important consideration of and amendments 
to the Homeland Security Department, but I must comment on action last 
week of the Senate Judiciary Committee.
  Once again, Mr. President, there has been a tremendous miscarriage of 
justice by the Judiciary Committee. By a vote of 10 to 9, a unanimous, 
partisan block of Democrats--10 Democrats--voted against the nomination 
of Priscilla Owen, who had been nominated by the President to a seat on 
the Fifth Circuit Court of Appeals.
  The way this nomination was handled is a cause for great concern as 
well as the fact that, once again, the Senate will not have a chance to 
vote on a eminently qualified and experienced nominee to serve on the 
Fifth Circuit Court of Appeals. I am convinced that had her nomination 
been permitted to make it to the floor--as the Republican Majority in 
the past allowed numerous controversial Democrat nominees to get to the 
floor--Judge Owen would be approved by the full Senate and she would be 
confirmed.
  We always hear the arguments of those who say that there have been 
actions in the past where nominees who were qualified were not given 
votes. However, during the time when I was majority leader I remember 
numerous cases where despite the belief of many Senators on our side 
that the nominees' views were far, far outside the mainstream, we still 
permitted their nominations to come to the floor. We did that because 
while we disagreed with their political and ideological views, it was 
still hard to argue that they were not professionally qualified.
  Mr. President, I specifically remember the nominations of Marsha 
Berzon, Richard Paez and Rosemary Barkett. Certainly, these nominees, 
while they were qualified, were in my opinion not near as qualified in 
the legal profession as Priscilla Owen.
  Berzon had had no judicial experience whatsoever. And a minority of 
the ABA evaluation committee gave Berzon and Paez only a ``qualified'' 
rating whereas the ABA committee unanimously--unanimously--gave 
Priscilla Owen its highest rating of ``well qualified.''
  Beyond professional qualifications, numerous Senators on this side of 
the aisle also had severe concerns that Berzon, Paez, and Barkett were 
very far out of the mainstream in light of their records which raised 
questions for many Senators as to whether they should be confirmed.
  Marsha Berzon had been a prominent ACLU and Labor Union lawyer who 
opposed parental consent laws for minors' to have abortions and had 
worked against the rights of individual workers in favor of the rights 
of unions. She was also a prominent and active member of the Brennan 
Center for Justice that cranked out initiatives it characterized as 
``stand[ing] up to right-wing attacks on the judiciary.''
  Richard Paez had written publicly of his belief that whenever judges 
feel legislatures have failed to act, ``there's no choice but for the 
courts to resolve the question that perhaps ideally and preferably 
should be resolved through the legislative process.'' That is exactly 
the kind of judicial activism that Priscilla Owen's critics have 
falsely accused her of in order to give themselves an excuse for voting 
against her. Paez had also ruled as a district judge--prior to his 
confirmation to the appeals court--that States and cities could not 
outlaw was aggressive and intimidating panhandling by the homeless 
because it would infringe on a panhandler's free speech rights.
  Rosemary Barkett, while a Florida Supreme Court Justice, had argued 
for overturning the death penalty of a man who had brutally murdered a 
youth in Jacksonville and then sent a tape to the victim's mother 
describing the horrible details of the killing. An opinion signed by 
Barkett opposed the death arguing that the killing was ``a social 
awareness case . . . effectuated to focus attention on . . . racial 
discrimination.''

  Nevertheless, despite the misgivings and question marks from an 
ideology standpoint as to whether or not they should be confirmed, the 
Republican majority permitted all three of these nominations to come to 
the floor and be voted on by the full Senate and all three were 
confirmed.
  Now, in contrast to these three far left nominees, let me speak to 
Priscilla Owen's qualifications.
  First of all, I am not one who thinks it is particularly important 
whether the American Bar Association rates a nominee qualified or not. 
But, of course, the ABA's judgment has been described by a number of 
leading Democrats as the gold standard in terms of evaluating a 
nominee's qualifications to serve in the Federal judiciary. Senator 
Leahy and senator Schumer described it that way in a March 16, 2001 
letter to the President insisting that the ABA's role in the judicial 
confirmation process had to be maintained.
  However, that did not prevent them from voting against Priscilla Owen 
after she received a ``well qualified'' rating from the American Bar 
Association--the highest possible rating they could give and they gave 
it to her unanimously. This is also the first instance, I believe, that 
we have had of a nominee rated ``well qualified'' by the American Bar 
Association being defeated in the Judiciary Committee and

[[Page S8351]]

the Senate. So, from the standpoint of the American Bar Association, 
this nominee certainly more than qualified.
  Also, Mr. President, when you look at Judge Owen's record, it is 
clear that she has a long record of being outstanding not only 
academically and intellectually, but also from the standpoint of 
character, experience, and professionalism as well.
  This is a nominee who has had a stellar legal career. She graduated 
with honors from Baylor Law School and its undergraduate program and 
made the highest score on the Texas bar exam the year she took it. She 
then had a highly regarded legal practice with a leading law firm in 
Texas for 17 years. She then gave up her lucrative private sector 
practice to serve with distinction for the past eight years on the 
Texas State Supreme Court.
  She was elected, in a contested race, as I understand it, and then 
reelected unopposed with over 80 percent of the vote. She still enjoys 
overwhelming community support. She has been publicly endorsed and 
supported by Democrats and Republicans, including 15 former presidents 
of the Texas Bar Association. Every major newspaper in the state also 
supports her.
  Mr. President, there is no question this nominee is qualified by 
experience, by education, and by the time that she spent in the Texas 
Supreme Court, where she has built up a very fine record of being a 
fair judge who has worked very hard in understanding the issues that 
have been before her and in casting her votes on the supreme court.
  Yet, last week, I was shocked to hear her described by Senator 
Daschle as not qualified. These are exact quotes: ``We will confirm 
qualified judges.'' ``Don't send us unqualified people.''
  Whatever you may be able to say about might be wrong with this 
nominee--because maybe she is too conservative, or maybe on she did not 
meet some litmus test from the liberal outside interest groups or 
because she didn't meet the test of a particular Senator--in no way 
could you describe this nominee as not being qualified or as being 
unqualified.
  I am very worried when we see this sort of pattern developing. There 
have probably been very few nominees in the past to serve on the Fifth 
Circuit Court of Appeals more qualified than this nominee by every 
category you might bring to bear.
  Let me remind my colleagues on this point what the their gold 
standard ABA's actual standards are. Let me quote what the ABA itself 
says it looks at when it rates nominees.

       The [ABA] Committee's evaluation criteria for federal 
     judicial nominations is directed solely to professional 
     qualifications: integrity, professional competence and 
     judicial temperament . . .
       Integrity is self-defining. The nominee's character and 
     general reputation in the legal community are investigated, 
     as are his or her industry and diligence . . .
       Professional competence encompasses such qualities as 
     intellectual capacity, judgment, writing and analytical 
     ability, knowledge of the law and breadth of professional 
     experience . . .
       In investigating judicial temperament, the Committee 
     considers the nominee's compassion, decisiveness, open-
     mindedness, courtesy, patience, freedom from bias and 
     commitment to equal justice under the law . . .

  The ABA itself also notes that its standards are even higher for 
Appellate Court Nominees.

       [T]he Committee believes that appellate court nominees 
     should possess an especially high degree of scholarship and 
     academic talent and an unusual degree of overall excellence.

  Again, Mr. President, when the ABA applied these standards to 
Priscilla Owen they unanimously rated her ``well qualified.''

       To merit a rating of ``Well Qualified'' the nominee must be 
     at the top of the legal profession in his or her legal 
     community, have outstanding legal ability, breadth of 
     experience, the highest reputation for integrity and either 
     have demonstrated, or exhibited the capacity for, judicial 
     temperament.

  So it is a shame to characterize this nominee as somehow being 
professionally unqualified and it is a shame that the full Senate was 
denied an opportunity to vote on her because of a partisan, straight 
party-line vote of 10-9 with all Democrats voting against her.
  Again, in my opinion, it reflects very poorly on the Senate, and I 
fear it will make it even more difficult for us to complete our work 
when we see these types of allegations leveled against such a fine 
nominee. It also puts even further into question the utility and 
necessity of bothering to have the ABA evaluate judicial nominations 
when the Democrats on the Judiciary Committee are going to put ideology 
first and a nominee's professional qualifications and ABA rating a far 
second.
  Mr. President, I could not let that partisan and unwarranted vote in 
the Judiciary Committee go unnoticed by the leader of the Republicans, 
and correct the public record regarding a nominee with such outstanding 
legal credentials as Judge Owen. She is clearly qualified.
  I would note in closing that the Washington Post in an editorial 
published this past July 24 agreed with the President and Republicans 
when it said that:

       Justice Owen is indisputably well qualified, having served 
     on a state supreme court for seven years and, prior to her 
     election, having had a well-regarded law practice.

  I hope we will ultimately find a way for this nominee to be confirmed 
before all is said and done.
  Mr. President, I yield to the Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I want to add to what the distinguished 
Republican leader has said. I have been in the Senate 18 years. This is 
the best witness I have ever heard, not just for a judicial nomination 
but for anything--an absolutely brilliant judge. She would have been 
confirmed had she been reported to the Senate, even without a positive 
recommendation.
  I say to my friend, the leader, I worry about where we are, as well. 
I think we have crossed some kind of threshold here from which it is 
going to be very difficult to retreat from in the coming years.
  I say to my friends on the other side of the aisle, we are not going 
to always be in the minority, and they may have a President again, as 
regretful as that might be to some of us, and the shoe could be on the 
other foot. Do we really want to establish this kind of standard, that 
we are prepared to vote down extraordinarily well qualified judges, who 
may be liberal or conservative, simply because we are of the other 
persuasion?
  I think it is a low point in the recent history of the Senate. And I 
am not sure where we go from here. But I do not believe I will ever 
view these nominations quite the same way as I did in the past.
  I can say this: I would like to have a lot of my votes back, going 
back over the last 8 years--Ginsburg, Breyer--scores of nominees for 
the circuit and district benches who I knew were far to the left of me, 
but I believed it was the President's prerogative. The Democrats won 
the election. It was the President's prerogative. And short of some 
kind of egregious failure to meet up to professional standards, it was 
not my place to impose my view on the nominee.
  So I think it was a sad day in the history of the Senate. I agree 
with everything the Republican leader has had to say about this most 
unfortunate episode. I hope the President will not withdraw this 
nomination and will send it up again next year, and hopefully we will 
have a Senate with a little more of an open mind to this truly 
outstanding nominee.
  Mr. LOTT. Mr. President, let me just conclude my remarks with this, a 
quote from Senator Biden, a member of the Judiciary Committee for a 
long time. Unfortunately, he was also recorded last week as voting 
against Judge Owen despite her excellent record and the ABA's highest 
rating. But when he was chairman of the Judiciary Committee, I am 
convinced he worked hard at trying to be fair in the way the nominees 
were considered under the previous President Bush.
  But while on Judiciary Committee back in 1986 on the issue of 
judicial nominations he was quoted to this effect:

       [Judicial confirmation] is not about pro-life or pro-
     choice, conservative or liberal. It is not about Democrat or 
     Republican. It is about the intellectual and professional 
     competence to serve as a member of the third co-equal branch 
     of the Government.

  I agree. Priscilla Owen met that criterion. She should have been 
confirmed.
  I yield the floor.




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