[Congressional Record Volume 148, Number 115 (Thursday, September 12, 2002)]
[Senate]
[Pages S8510-S8515]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF TIMOTHY J. CORRIGAN, OF FLORIDA, TO BE UNITED STATES
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will go into executive session to proceed to the consideration
of Calendar No. 960, which the clerk will report.
The legislative clerk read the nomination of Timothy J. Corrigan, of
Florida, to be United States District Judge for the Middle District of
Florida.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 10 a.m. shall be equally divided between the chairman and ranking
member of the Judiciary Committee.
The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, how much time is available to the Senator
from Vermont in his capacity as chairman of the Judiciary Committee?
The ACTING PRESIDENT pro tempore. Three minutes 40 seconds.
Mr. LEAHY. I thank the distinguished Presiding Officer.
Yesterday marked the first anniversary of the September 11 terrorist
attacks on the United States. Americans, very appropriately, honored
the memory of the brave men and women who died in that terrible time.
Our thoughts were and are with those who perished that day, the loved
ones they left behind, and the heroes who acted with fearlessness,
bravery and hope.
The world has changed during the last year, but, fortunately, the
principles on which this country was founded have not changed. I want
to especially commend Chief Judge William Sessions of the U.S. District
Court for the District of Vermont for proceeding with an immigration
and naturalization ceremony in Vermont yesterday. What a wonderful
gesture, granting citizenship to a new group of Americans and reminding
us that we are a nation of immigrants and that our borders are open to
immigrants who come to America seeking freedom, opportunity and a
better life for their children. Whether our relatives came here for
religious or political freedom in the 17th or 18th centuries, or to
escape famine and persecution in the 19th and 20th centuries, many of
us are descendants of those immigrants. Senator Kennedy reminded us all
earlier this year that immigrants are not the problem, terrorists are
the problem. When the President appeared last night on Ellis Island,
framed against the backdrop of the Statue of Liberty, that setting
likewise reminds us that we are a nation of immigrants. Let this
country, and what it stands for, always be a beacon of hope and freedom
for the oppressed and downtrodden.
I am glad to see the President before the U.N. today. When our
President speaks before the United Nations, we should not be looking at
it as Democrats or Republicans, but as Americans. We want him, in his
representation of our Nation and as our chief spokesperson on foreign
policy, to be successful, and I wish him that success. I also
appreciate his invitation to be there for the speech. Of course, our
Senate votes will keep me here.
The Judiciary Committee continues working hard to make progress on
judicial nominations and on legislation to respond to the new
challenges that face our great nation. The Senate met on September 12
last year, and the Judiciary Committee held a business meeting on
September 13. I kept the agenda that day to consensus items and
bipartisan legislation. I felt strongly that we did not need partisan
bickering but that we needed to come together and show that we can
unite and that there is much that unites us all. We were able to report
the first United States Attorneys nominated by President Bush. We
worked on our bill to authorize the activities of the Department of
Justice, a bipartisan drug use prevention, treatment and rehabilitation
bill and the bipartisan Drug Competition Act.
That same afternoon we held a confirmation hearing for judicial
nominations, including a judicial nominee from Mississippi. Just as we
continued to meet and work in the immediate aftermath of the attacks on
September 11, we also proceeded with hearings through and in the
immediate aftermath of the receipt of the anthrax letters sent to
Majority Leader Daschle and to me.
We worked hard to improve what became the USA PATRIOT Act with
bipartisan support in the weeks that followed in September and into
late October. In addition to our work on this landmark legislation, as
well as continued oversight of the Justice Department, the FBI and the
INS, we continued to hold judicial nominations hearings to help fill
vacancies in our Federal courts with fair-minded judges.
We have now reported 80 judicial nominees out of committee. With
today's confirmation of Judge Corrigan for the Middle District of
Florida, we will confirm our 75th judicial nomination from President
George W. Bush. We have confirmed more of President Bush's nominees in
less than 15 months--75--than were confirmed in the last 30 months that
a Republican majority controlled the Senate and the pace of judicial
confirmations--73. We have also now confirmed more of President George
W. Bush's judicial nominations since July, 2001--75--than were
confirmed in all of 1989 and 1990, the first 2 years of the term of his
father President George H.W. Bush--73.
As I have noted through the year, we could have accomplished even
more with a modicum of cooperation from the White House. I regret that
the administration and some Senate Republicans have been unwilling to
acknowledge what we have accomplished in this regard but have, instead,
chosen a strident posture and rejected our efforts toward bipartisan
cooperation. The administration has chosen division rather than
consensus with respect to its selection of Federal judges, which is
unfortunate and unnecessary. The White House has insisted on sending
forth a number of nominees who are divisive. Their records evidence
judicial activism to reach ultra-conservative outcomes. Thus, in
addition to reporting favorably 80 judicial nominees since the change
in majority, the Judiciary Committee has, after a hearing and careful
consideration, voted against reporting two nominations.
I regret that with respect to the important matter of our independent
Federal judiciary, a matter that affects all Americans, the White House
has chosen the path of partisanship. I regret that some in the White
House and among Republicans would rather raise campaign funds and stir
up their most extreme supporters than fill judicial vacancies quickly
with consensus nominees.
Senate Republicans are running away from their own record. It is
revealing that they refuse to make a fair comparison to the actual
results during their most recent period of Senate control, which shows
starkly how far we have come. Had they, in the 6\1/2\ years they were
in the Senate majority, acted as fairly and as quickly on President
Clinton and President Bush's judicial nominees as we have, we would
have far fewer vacancies.
The truth is that we have done about twice as much as they. With
today's vote, the Democratic-led Senate will confirm its 75th judge--
exceeding the
[[Page S8511]]
number of circuit and district court nominees the Republican Senate
majority was willing to confirm in the last 30 months of their control
of the process. Democrats have done more than Republicans did in less
than half the time. Likewise, in less than 15 months of Democratic
control of the committee, we have held more hearings, for more
nominees, and voted on more nominees in committee, and the Senate has
confirmed more nominees, than the Republicans did in their first 15
months of control of the committee in 1995 and 1996.
That today the Senate will confirm the 75th judge since July, 2001,
is indication both of what we have been able to accomplish and what
could be accomplished with some cooperation from the White House and
Senate Republicans. I have noted how simple procedural accommodations
that I suggested would have already resulted in another 10 to 15 fewer
vacancies and more confirmations.
Unfortunately, my 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 26 years in the Senate. This is
not the way to get judges through the Senate. Rather, with cooperation,
with work, with something more than just words, nominees get through.
A New York Times editorial this week, on September 10, noted: ``We
must fight the enemies of freedom abroad without yielding to those at
home.'' We know that the terrorists are our enemy; they attacked all of
us last September 11 and in the attacks that preceded it on U.S.
embassies and the USS Cole and the 1993 World Trade Center attack.
Republicans are wrong to try to make Democrats or the Judiciary
Committee the enemy. We all want to ensure an independent and impartial
Federal judiciary as a protector of our freedoms. Thus, ends-oriented,
ideologically driven nominees selected to push the circuit courts and
the law in a rightward direction are going to be scrutinized and may
well be rejected.
I hope that, as we did in the days immediately following September
11, 2001 last year, we can come together and demonstrate unity. Since
last July, we have greatly reformed the confirmation process and
brought it out of the shadows and into the light of day. We now hold
hearings, debate nominations, cast our votes, and abide by those votes.
That was not the committee practice in the recent past, when secret
holds and anonymous objections stalled scores of nominees by President
Clinton. 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 already held 23 judicial nominations
hearings, including one the week of September 11, 2001, and others
during the period in which committee offices and hearing rooms were
closed because of the anthrax letters.
Yesterday I noticed our 24th hearing to be held next week. I intend
to call Professor Michael McConnell of Utah as a nominee at that
hearing. Despite the fact that the committee has already acted upon and
the Senate has already confirmed Judge Harris Hartz last December and
Judge Terrence O'Brien this April to the 10th Circuit, the first new
10th Circuit judges in 7 years, I will proceed with a third hearing on
a 10th Circuit nominee at the request of Senator Hatch. The other
circuit court for which we have held hearings on three nominees has
been the 5th Circuit. There, we proceeded with nominees at the request
of Senator Lott and Senator Hutchison.
In addition, at the nominations hearing next week we will hear from
District Court nominees from California, Delaware, New Jersey,
Tennessee, and Texas. By proceeding next week we are able to proceed
with a full complement of District Court nominees. That leaves only one
District Court nominee with the support of home-State Senators and an
ABA peer review who has not yet been scheduled for a hearing.
Today's vote is on the nomination of Judge Corrigan to the United
States District Court for the Middle District of Florida. Judge
Corrigan has an extensive career, serving as a general litigator in
private practice for over 14 years and as a U.S. Magistrate Judge for
the Middle District of Florida since 1996. He received a unanimous
``Well-Qualified'' rating from the ABA and has strong bipartisan
support. While so many nominees of President Clinton had that rating
but were never given a vote by the Republican majority, Judge Corrigan
received a hearing and a vote within days of his file being complete in
July.
The confirmation of Judge Corrigan today will bring additional
resources to the U.S. District Court for the Middle District of
Florida. Judge Corrigan was nominated to fill a new position Congress
created by statute in 1999 to address the large caseload facing the
federal courts in Florida. He makes the second Florida district court
nominee that we will have confirmed in one week. I congratulate Judge
Corrigan and his family.
During the Clinton administration, we all worked very hard in
cooperation with Senators Graham and Mack to ensure that the Federal
courts in Florida had its vacancies filled promptly with consensus
nominees and had the judicial resources it needed to handle its
caseload. Due to bipartisan cooperation among the Senators and with the
White House, during the Clinton administration, the Senate was able to
confirm 22 judicial nominees from Florida, including 3 nominees to the
11th Circuit. It is most unfortunate that such tradition of
cooperation, coordination and consultation has not been continued by
the current administration.
My recollection is that the only Florida nomination that generated
any controversy or opposition was that of Judge Rosemary Barkett of the
Florida Supreme Court to the 11th Circuit. I do recall that Judge
Barkett was strongly and vociferously opposed by a number of Republican
Senators because of what they viewed as a judicial philosophy with
which they did not agree. Those voting against her confirmation include
Senators Hatch, Grassley, McConnell, Specter, and Thurmond, all of whom
are now on the Judiciary Committee, as well Senators Lott, Nickles, and
Hutchison of Texas. Judge Barkett received the highest rating of the
ABA, ``Well Qualified,'' and yet 36 Republicans voted against her
confirmation, but she was confirmed with bipartisan support, including
the support of her home-State Senators. Indeed, there was extended
opposition both before the Judiciary Committee and on the Senate floor.
Unfortunately, the cooperation, coordination and consultation that
Senator Mack and Senator Graham shared with the Clinton White House do
not seem to be the model for the way this White House has chosen to
communicate with Senator Graham and Senator Nelson. That is most
unfortunate. It is a tribute to Senator Graham and to Senator Nelson
that we have made the progress that we have. I know that it has not
been easy. They have been more than gracious in their willingness to
support these nominees. We urge the White House to work with these
Senators to nominate qualified, consensus nominees for the remaining
vacancies in the courts.
With today's vote, the Democratic majority in the Senate has
demonstrated once again how it is fairly and expeditiously considering
President Bush's judicial nominees. We have worked very hard to provide
bipartisan support for the White House's nominations in spite of its
lack of willingness to work with us in partnership.
Mr. HATCH. Mr. President, I rise in support of the confirmation of
Tim Corrigan to the U.S. District Court for the Middle District of
Florida.
I have had the pleasure to review Judge Corrigan's distinguished
career and I can say, without hesitation, that his confirmation will
bring to the Federal bench, not just a legal scholar with impeccable
credentials, but a caring individual who used his many skills and
talents to serve his community and his less fortunate fellow citizens.
Tim Corrigan graduated with distinction from Duke University in 1981,
where he was a member of the editorial board of the Duke Law Journal.
After graduation, he served as a law clerk to the Honorable Gerald B.
Tjoflat of the United States Court of Appeals for the Eleventh Circuit.
Following his clerkship, Judge Corrigan spent 14 years in private
practice with a prominent Jacksonville law firm, where he focused on
civil litigation. He also engaged in a substantial appellate practice,
including preparing
[[Page S8512]]
appellate briefs and delivering oral argument in several district
courts of appeals in Florida, the Supreme Court of Florida, and the
U.S. Court of Appeals for the Eleventh Circuit. Moreover, Judge
Corrigan served as co-counsel in a case in the U.S. Supreme Court where
he had a primary role in the preparation of the briefs.
Judge Corrigan became a U.S. Magistrate Judge in 1996. Because of the
heavy caseload of the Middle District of Florida, the magistrate judges
are entrusted with substantial responsibilities. Thus, in addition to
handling a broad array of civil and criminal non-dispositive motions,
he has conducted numerous evidentiary hearings in criminal cases and
issued many reports and recommendations regarding dispositive criminal
motions. He has also exercised full jurisdiction over Federal civil
cases, including a lengthy jury trial.
Judge Corrigan has published a number of legal writings and recently
participated in a revision of the Middle District of Florida's Civil
Discovery Handbook. He has also taught law school classes as an adjunct
instructor.
Judge Corrigan has been recognized by the Jacksonville Bar
Association for the many hours he has spent doing pro bono work.
Throughout his career he has volunteered his time for the United Way,
Big Brothers, the Special Olympics, the Jacksonville Area Legal Aid,
and the Guardian of Dreams, an organization that provides scholarships
to low-income students.
Judge Corrigan will make a fine member of the Federal Bench.
Mr. President, I wish to respond to some of the remarks of my
colleague from Vermont about the Judiciary Committee's treatment of
President Bush's judicial nominees.
My colleague from Vermont says that the Judiciary Committee has moved
80 nominees and only voted against two. This, he says, is a record
which hasn't been equaled in years and years, certainly not during
President Clinton's administration. I am frankly amazed by this
assertion. In fact, under my chairmanship the Judiciary Committee did
not vote against a single nominee. Not a single nominee in the span of
six years of Republican control of the Senate. Even when one of
President Clinton's nominees was voted down, the Committee under my
chairmanship permitted the nomination to go to the floor for a full
Senate vote. My colleague from Vermont certainly cannot say the same.
In the last fifteen months, the Democrat-controlled Judiciary Committee
has already voted against two nominees in committee and voted against
allowing their nominations to go to the floor for a vote. This is not a
record to promote.
The real story is the Senate's Democratic leadership is treating
President Bush unfairly when it comes to judicial nominees. Some would
justify this unfair treatment of President Bush as tit for tat, or
business as usual, but the American people should not accept such a
smokescreen. What the Senate leadership is doing is unprecedented.
Historically, a President can count on seeing all of his first 11
circuit court nominees confirmed. Presidents Reagan, Bush, and Clinton
all enjoyed a 100-percent confirmation rate on their first 11 circuit
court nominees. In stark contrast, seven of President Bush's first 11
nominations are still pending now for almost a year and a half since
they were nominated.
History also shows Presidents can expect almost all of their first
100 nominees to be confirmed swiftly. Presidents Reagan, Bush, and
Clinton got 97, 95, and 97, respectively, of their first 100 judicial
nominations confirmed. I know that is true. I helped to get President
Clinton's 97 of his first 100 judicial nominations confirmed. In this
case, the Senate has confirmed only 73 of President Bush's first 100
nominees.
Some try to blame Republicans for the current vacancy crisis, and
that is pure bunk. In fact, the number of judicial vacancies decreased
by three during the 6 years of Republican leadership of the committee.
There were 70 vacancies left by the Democrats when I became chairman of
the Judiciary Committee in January 1995, and there were 67 at the time
the Republicans left.
I might add again--I have said it many times, but it needs to be
said--President Reagan was the all-time judicial confirmation champion
with 382 judges confirmed. He had 6 years of a Republican--his own
party--Senate helping him. President Clinton had virtually the same
number confirmed, 377, and he had 6 years of the opposition party,
meaning the Republican Party, to assist him, and he got basically just
as many as President Reagan. He was treated very fairly, and I know
because I was the Judiciary Committee chairman for those 6 years.
Some have tried to blame the White House for the committee's sluggish
pace on nominees, and that again is pure bunk.
Specifically, I want to respond to the unbelievable allegations that
the White House has failed to consult with home State Senators about
judicial nominations.
In contrast to the claims of the distinguished Senator from Vermont,
there has been an abundance of consultation by the White House with
home State Senators. In my 26 years, I have not seen anything like it.
The White House has risen above and beyond the call of duty insofar as
consultation is concerned.
My colleagues who complain about the alleged lack of consultation
from the White House really want something else altogether. What they
want is for the President to defer to them 100 percent on judicial
nominations. They want to be the one to nominate judges with only
minimal, if any, input from the White House.
This, of course, would turn the Constitution on its head. The
Constitution plainly gives the President the power to nominate Federal
judges. The Senate's role is only that of advice and consent. It is an
important role, but it is certainly not as important as the right to
nominate judges.
Maybe they should offer an amendment to the Constitution if they
would like it otherwise, but I know that amendment would not see the
light of day.
The bottom line is that President Bush will continue to consult in
good faith with home State Senators about judicial nominations. He
deserves the same courtesy of good faith in return, not the partisan
rejection of qualified nominees that the committee Democrats have
handed him.
Mr. President, last week in the Judiciary Committee, one of my
colleagues appeared to partially justify his vote against Justice
Priscilla Owen by claiming that the White House failed to consult him
on the nomination of Judge Reena Raggi from his home State of New York.
I ask unanimous consent to print in the Record a letter from the
White House counsel totaling the number of consultations that were made
with the distinguished Senator. I think the record needs to be made
clear.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
The White House,
Washington, September 5, 2002.
Hon. Charles E. Schumer,
Hart Office,
Washington, DC.
Dear Senator Schumer: I write in response to your statement
this morning during a Senate Judiciary Committee meeting that
you were not consulted by the White House prior to the
nomination of Judge Reena Raggi to the United States Court of
Appeals for the Second Circuit. I was surprised and very
disappointed to hear of your comments, given the extensive
consultation that took place between us prior to President's
Bush's nomination of Judge Raggi in early May, 2002.
Our records reflect that beginning in early September,
2001--more than eight months before Judge Raggi's nomination
was submitted to the Senate--my staff called your office
numerous times to seek your input on prospective candidates
for the Second Circuit vacancy to which Judge Raggi was
ultimately nominated. By early November, 2001, my staff had
provided your office with a list of the names of candidates,
including Judge Raggi, who we planned to interview for the
vacancy.
In mid-November, I advised you that we were prepared to
submit Judge Raggi's names to the President in advance of
commencing an FBI background investigation, Immediately after
receiving the President's approval, my staff informed yours
that Judge Raggi's names had indeed been submitted to the
FBI. At that time, we invited your staff to contact us at any
time with any questions or concerns as you reviewed Judge
Raggi's qualifications. No such questions or concerns were
ever raised.
In late April, 2002, upon completion of the FBI background
investigation, my staff informed yours of the President's
intention to nominate Judge Raggi. Following the nomination,
you returned your ``blue slip'' reflecting your support for
Judge Raggi's nomination. Today, you joined your colleagues
[[Page S8513]]
on the Judiciary Committee in unanimously voting to approve
the nomination.
In my view, the extensive consultation that took place
between us concerning Judge Raggi's nomination reflects the
common practice we have followed to date regarding federal
judicial nominations in New York and elsewhere. In light of
this record, I find your statements this morning very
troubling. I trust that you share my desire to continue the
same extensive practice of consultation on federal judicial
nominations in New York that has been in place since the
President took office. In light of that past practice and the
history of Judge Raggi's nomination, I know that you will
want to issue a public correction of your statements this
morning.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.
Mr. HATCH. Finally, some might suggest that the Republicans left an
undue number of nominees pending in committee without hearings at the
end of the Clinton administration. We did leave 41, which is 13 less
than the Democrats left without hearings in 1992 at the end of the Bush
administration. In fact, a number of the nominees now who have been
submitted to the committee were submitted by Bush 1 back in the early
nineties. They were never given a hearing, never given a chance, and
they are still being dragged through the mud--not so much the mud, but
through the difficult times of the confirmation process without any
hearings.
President Bush deserves to be treated at least as well as the last
three President. Instead of thinking up new ways to rewrite history,
the Senate Democratic leadership of the committee should begin
confirming President Bush's first 11 and first 100 judicial nominations
at a pace that matches or exceeds the rate we reached for President
Reagan, President George Herbert Walker Bush, and President Clinton.
I think it would be fair, and I hope we can some day in the future
work it out where both sides on the Judiciary Committee will work
together to see that these nominations are brought to the floor where,
in an expeditious fashion, the Senate as a whole can decide whether or
not to confirm them. We have to work towards that end. I am going to be
dedicated towards working toward that end.
I know there are colleagues on the other side on the Judiciary
Committee who would like that as well. I believe it will end a lot of
this partisan confusion. Frankly, I hope we can see that the
Constitution will be implemented and that the Senate as a whole will
decide whether or not to confirm these people. If that were the case, I
have no doubt that Judge Pickering would have been confirmed to the
Fifth Circuit Court of Appeals, and I think there is no question that
Justice Priscilla Owen would have been confirmed to the Fifth Circuit
Court of Appeals. I have high hopes they will be confirmed in the
future anyway.
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 Timothy Corrigan. Tim Corrigan, an experienced
Judge in Florida's Middle District, has been nominated to serve as a
Federal judge in the Middle District of Florida.
Tim Corrigan's qualifications make him an excellent candidate for
service on the Federal bench. Prior to his appointment as a Magistrate
Judge, Judge Corrigan spent 14 years in private practice with the
Jacksonville law firm of Bedell, Dittmar, De Vault, Pillans and Coxe,
P.A. As a Magistrate Judge since 1996, he has considerable experience
handling a broad variety of civil and criminal matters, including
conducting numerous evidentiary hearings and misdemeanor trials.
Judge Corrigan received his law degree, with distinction, in 1981
from Duke University School of Law, where he served as a member of the
editorial board of the Duke Law Journal. He received his undergraduate
degree, with honors, from the University of Notre Dame in 1978.
Mr. Corrigan is a member of the Florida Bar, the Jacksonville Bar
Association, the Federal Bar Association and the American Bar
Association. The Jacksonville Bar Association recognized Judge Corrigan
in 1991 for his pro bono services. From 1987-1989, Judge Corrigan
served on the board of Jacksonville Legal Aid and was honored for his
efforts.
I thank my colleagues for considering this nominee. I am confident
that they will agree that Judge Timothy Corrigan posses the qualities
needed to effectively serve on the Federal Bench.
Mr. DeWINE. Mr. President, as Senator Hatch just mentioned, last
Thursday, on September 5, 2002, the Judiciary Committee met in an
executive business meeting and considered the nomination of Texas
Supreme Court Justice Priscilla Owen to be a Federal Court of Appeals
Judge for the 5th Circuit. As a member of the Judiciary Committee, I
participated in the debate on her nomination and then cast my vote in
Owen's favor. Unfortunately, Owen's nomination was rejected on a
straight party-line vote of nine in favor and ten against. I thought
that the issues that had been raised against Justice Owen were
unfounded. I won't go into Justice Owen's excellent qualifications here
today, nor will I address objections that have been raised regarding
her nomination.
However, had the full Senate engaged in a debate on Justice Owen, and
I think she deserved such a debate, I would have pointed out
significant mischaracterizations that have been made about her
decisions in a series of parental notification cases before the Texas
Supreme Court. I discussed this issue in the Judiciary Committee
debate, so for the information of other Senators who did not have the
opportunity to participate in that debate, I ask unanimous consent to
print my committee statement for the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement regarding 5th Circuit Court of Appeals Nominee Justice
Priscilla Owen
Mr. Chairman, I believe that we are headed for a very
momentous vote today and I would like to follow up on a
comment made by Senator Feinstein in regard to the closeness
of the last election. I would simply say that whether an
election is decided by a few votes or whether it is a
landslide, the President still has the constitutional duty
that is prescribed in the Constitution and the Senate has its
constitutional obligation. I candidly do not think that how
close an election is or whether it was a landslide matters
one bit.
Let me talk about Justice Owen's opinions in the Doe cases
that Senator Feinstein was talking about. I think we need to
put this in its proper perspective. First of all, these are
not abortion cases. These are parental notification bypass
cases.
As we all know, these were a series of Texas Supreme Court
cases interpreting a Texas statute that requires a minor to
tell one of her parents before she has an abortion. None of
these cases had anything to do with whether a woman could get
an abortion. That was not before the court. In Texas, as in
the rest of the country, women may legally get abortions.
The question of a right to abortion is not what these cases
were about. The only question in any of these Doe cases was
whether a minor child could avoid the requirement of Texas
law to get parental consent to tell one of her parents before
she got an abortion.
The Doe cases came to the Texas Supreme Court only after an
act of the Texas Legislature in 1999, when it passed a law
that requires parental notification when a minor is seeking
an abortion. Let me just reiterate, the Texas legislature
created this notice requirement, not the Texas Supreme Court,
and certainly not Justice Owen.
When the legislature enacted this law, it included a
process that a minor could use to circumvent the notice
requirement. The legislature looked to the United States
Supreme Court and looked to the precedent of the Supreme
Court on parental notice rights to craft what was intended to
be a limited exception to the parental notice rule, but an
exception that was constitutional.
The process allowed a teenage girl to go to a State court
judge and ask for a ``judicial bypass''. The legislature
instructed the court to grant the bypass if the young lady
could demonstrate one of the following. Senator Feinstein has
outlined these, but I am going to read them again because I
think it is important to understand the context of these
decisions.
One, the minor is mature and sufficiently well informed to
make the decision to have an abortion performed without
notification to either of her parents; OR if she could
demonstrate that notification would not be in the best
interests of her; OR, three, if she could demonstrate that
notification may lead to physical, sexual, or emotional abuse
of the minor.
Now, while these exceptions appear straightforward, as with
all statutes in a common law system--and that is what we are
dealing with--the terms are, of course, subject to
interpretation by the courts. And I would submit that what we
see in the Texas Supreme Court is that give-and-take on the
interpretation; that when you look at both the majority and
minority opinions in each one of the cases, you will see
interpretation. So that should not be the issue.
Many, many, many statutes every single day are construed by
our courts, and the
[[Page S8514]]
courts are obligated to interpret and apply the statutes as
they believe the legislature intended.
Senator Feinstein and others at the hearing raised the
issue of statutory construction, and basically the charge was
that Justice Owen had become a judicial activist. Let me
talk, if I could, about some questioning I did of Justice
Owen at the hearing on three separate issues.
I asked Justice Owen about her analysis of the Texas
parental notification statute. She made these three points
about decision making in state courts of appeals, and
although I think these points are obvious, I would like to
repeat them because I think it gives us a better
understanding of what the issues are in front of us.
I think that it is particularly important for the Committee
to consider how the Texas Supreme Court analyzed the Doe
cases and whether that analysis was consistent with standard
appellate review.
First, Justice Owen told me that the Texas Supreme Court
applied the standard presumption, something that all courts
must apply, that a state legislature is aware of U.S. Supreme
Court precedent on an issue on which it is legislating. So in
interpreting the statute, both the majority and, in a
dissent, Justice Owen applied this rule of construction.
The language of the Texas statute tracks closely with
language in Supreme Court precedent on the issue. It
therefore was simply standard procedure for the justices to
look to the U.S. Supreme Court case law to interpret the
Texas law. You can't interpret one without the other. It was
not an act of activism in any sense. It was merely standard
appellate procedure to look at Supreme Court precedent. The
only difference in the outcome of the majority's opinion and
Justice Owen's dissent in one key case had to do with a
pretty nuanced application of the precedent to the facts of
the case.
Second, another important point Justice Owen made in
response to my questions was that appellate courts almost
always defer to trial courts on issues of fact. That was
Justice Owen's position in the Doe cases and that is the
standard applied to fact issues in a vast majority of cases
in our country's courts of appeals.
That deference is necessary because the trial courts are in
a much better position to judge factual issues. The trial
courts get to see the witnesses firsthand and to judge their
credibility. These Doe cases obviously hinge on that
analysis, the analysis by the trial court, the trial court's
ability to judge the demeanor of the witnesses, the trial
court's determination of the facts. The trial court, for
example, had the advantage of actually listening to the
teenager's testimony to determine whether she was ``mature''
or not.
Now, in all the cases before Judge Owen--I think we need to
keep this in mind--in all the cases, when we think about the
factual determination that the teenager had not met the
requirements for a judicial bypass. The trier of fact had
already made that determination.
The final point, again to state the obvious, that was
brought out in my discussion with Justice Owen was that
before the Texas Supreme Court ever heard a parental
notification case, a bypass case, a number of judges had
already denied the bypass.
First, the trial judge would have ruled against the
teenager not just once, but really on all three of the ways
that she could achieve the bypass. The judge would have had
to have found that she had not proven her case on any of the
three.
Next, a three-judge court of appeals would have ruled
against the teenager on these same issues. So before this
case ever reached the Texas Supreme Court, the case had
already been decided once at the lower court and already
decided at the appellate court.
I believe these are important points, all of them, all
three, about how Justice Owen analyzed the Doe cases. And I
think it may be constructive to put these cases in the
context of all the bypasses requested by teenage girls in
Texas.
We don't know the total number and I am not sure really
what great significance it has, but we do know that at least
657 bypass petitions were filed between January 1, 2000 and
March 8, 2002. This is the number of cases in which the Texas
Department of Health paid some of the expenses for filing the
petition. So it is the minimum number of cases that were just
filed.
Of all these cases, we ended up with 10, 12 cases that got
to the Supreme Court, depending on how you calculate them.
Some came up for the second time on review. Of these ten
cases, Justice Owen thought the majority of the Texas Supreme
Court got it wrong three times. So she is only in the
minority three times in the Texas Supreme Court, and in these
cases she agreed with both lower courts. I think these are
things that we need to keep in mind to put this in its proper
perspective.
What we are really talking about here is a small handful of
cases. A handful of cases in which a minor was required under
Texas law to tell one of her parents that she wanted to have
an abortion. Justice Owen conducted a perfectly reasonable
analysis in her opinions. In three of those cases, she came
to a different conclusion than the majority of the court.
That conclusion would not, as some would imply, overturn 30
years of abortion precedent. It would simply require each of
these three teenage girls to tell one of their parents that
they are going to have an abortion. So, in my view, it is
ludicrous to think that this is sufficient to disqualify
Justice Owen for a seat on the 5th Circuit Court of Appeals.
Mr. Chairman, I appreciate your time. I don't want to take
the committee's time to talk about all the other issues. I
thought I would just devote my time to that one particular
issue.
Am I to understand the vote is to occur at 10 o'clock?
The PRESIDING OFFICER (Ms. Stabernow). The Senator is correct.
Mr. REID. Madam President, I do not want to cut Senator Hatch off
from speaking, but I have to acknowledge that this judge will be
approved by, I think, a unanimous vote. Unless Senator Burns feels
strongly to the contrary, we should go ahead with the vote. If Senator
Hatch has something to say, he can speak after the vote. If Senator
Burns wants him to speak, I will be happy to do that. Senators are
waiting around to vote. Schedules have to be met.
unanimous consent agreement--h.r. 5005
Mr. REID. Madam President, while the Senator is making that decision,
I ask unanimous consent that at noon today, when the Senate resumes
consideration of H.R. 5005, the homeland security legislation, the
Thompson amendment be set aside and Senator Hollings be recognized to
offer a first-degree amendment relating to national security; that the
Hollings and Thompson amendments be debated concurrently for a total of
2 hours, prior to a vote in relation to each amendment, which 1 hour
equally divided and controlled between the proponents and opponents of
each amendment, with no second-degree amendments in order to either
amendment prior to a vote in relation to each amendment; that upon the
use or yielding back of time, without further intervening action or
debate, the Senator vote in relation to the Thompson amendment, to be
followed by an immediate vote in relation to the Hollings amendment;
that upon disposition of these amendments, Senator Byrd be recognized
to offer a first-degree amendment, as provided for under a previous
order; provided further, that following a vote in relation to the
Thompson amendment, regardless of the outcome, the Senate vote in
relation to the Hollings amendment; that if neither amendment is
disposed of, then the amendments remain debatable and amendable.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, the only caution I will make is that this
order does not provide for who is for and against these amendments. We
really do not know at this stage. When the time of noon arrives, the
Chair will have to make some ruling as to who is going to control the
time in opposition to these amendments, if, in fact, there is anyone
opposed to them.
Has the Senator made a decision?
Mr. BURNS. Madam President, I suggest and recommend to the chairman
of the committee that we move forward on this vote. I know Senators
have made their schedules around the vote that was determined to happen
at 10 o'clock this morning. We have other business to do on the
Interior appropriations bill and a short time within which to do it. I
suggest to the chairman that we move forward.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I suggest we go ahead with the vote. I will ask for the
yeas and nays once it is reported.
The PRESIDING OFFICER. The yeas and nays have previously been
ordered.
Mr. LEAHY. I understand.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Timothy J.
Corrigan, of Florida, to be United States District Judge for the Middle
District of Florida? The yeas and nays have been ordered, and the clerk
will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from Delaware (Mr. Carper), the Senator from New York (Mrs.
Clinton), the Senator from Connecticut (Mr. Dodd), the Senator from New
Jersey (Mr. Torricelli), and the Senator from Minnesota (Mr.
Wellstone), are necessarily absent.
Mr. NICKLES. I anounce that the Senator from Wyoming (Mr. Enzi), the
Senator from New Hampshire (Mr.
[[Page S8515]]
Gregg), the Senator from North Carolina (Mr. Helms), the Senator from
Arkansas (Mr. Hutchinson), the Senator from Alabama (Mr. Sessions), and
the Senator from New Hampshire (Mr. Smith) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 88, nays 0, as follows:
[Rollcall Vote No. 213 Ex.]
YEAS --- 88
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Chafee
Cleland
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Domenici
Dorgan
Durbin
Edwards
Ensign
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Hagel
Harkin
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Shelby
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wyden
NOT VOTING --- 12
Akaka
Carper
Clinton
Dodd
Enzi
Gregg
Helms
Hutchinson
Sessions
Smith (NH)
Torricelli
Wellstone
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the President will
be immediately notified of the Senate's action.
____________________