[Congressional Record Volume 149, Number 055 (Monday, April 7, 2003)]
[Senate]
[Pages S4892-S4894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

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  NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

  Mr. HATCH. Mr. President, I ask unanimous consent the Senate now 
resume executive session for the consideration of Calendar No. 86, 
Priscilla Richman Owen, of Texas, to be U.S. Circuit Judge for the 
Fifth Circuit.
  Mr. REID. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I hoped my friend in his statement tonight would indicate 
why we are moving to this woman, when we have people here--we have 
Edward Prado, who is from Texas, Dee Drell from Louisiana, Richard 
Bennett from Maryland--who, it appears, will go through here very 
easily.
  My friend should understand, as I told him privately, there will be 
some people wanting to speak about this at some length.
  The majority leader has indicated there will be no more votes today 
so there is no need for anyone to hang around on this tonight--that's 
true? You are going to speak, but there is

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going to be no action taken on this other than the motion?
  Mr. HATCH. There will be no action on this tonight.
  Mr. REID. I withdraw any objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read the nomination of Priscilla Richman Owen, 
of Texas, to be United States Circuit Judge for the Fifth Circuit.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, to answer my distinguished friend, the 
reason Priscilla Owen is being brought up today is because we are 
gradually trying to move the President's nominees as quickly as we can. 
She was nominated on May 9, 2001, almost 2 years ago. I am trying to do 
it, as close as I can, in chronological order, which seems to me to be 
the way to go, when I can.
  I am not the only one who made this decision; a number of people did, 
including the majority leader, who desired to bring Priscilla Owen up 
today. I commend him because she really deserves to be brought up at 
this particular time. She has been waiting for almost 2 years and went 
through what I consider to be a tremendously insensitive hearing when 
the Democrats controlled the committee, and then came back for another 
hearing just a short while ago, where I think she more than 
substantiated the reasons why the President would have picked her to be 
a nominee for the Circuit Court of Appeals.
  So I rise today to express my enthusiastic support for the 
confirmation of Justice Priscilla Owen to the Fifth Circuit Court of 
Appeals.
  The Senate's consideration of Justice Owen's nomination is important. 
It is important because it represents an opportunity to remedy the 
mistreatment Justice Owen received last September when she was voted 
down in the Judiciary Committee along party lines and not allowed a 
vote on the Senate floor, where she would have been confirmed by 
Members of both parties. The decision by the committee last September 
was unprecedented, representing the first time a nominee rated 
unanimously well qualified by the American Bar Association had been 
voted down by the Judiciary Committee. This is despite the fact that 
Justice Owen had--as she does today--the full, unqualified support of 
her home State Senators, both of whom testified on her behalf.
  It is important to note that with regard to circuit court of appeals 
nominees, it is important to have the support of both Senators, but it 
is not absolutely essential. In the case of district court judges, it 
has been all but essential. The reason is that circuit court of appeals 
nominees represent not just one State but a whole series of States, as 
is the case in the Fifth Circuit.
  It is important because this nomination will demonstrate whether the 
senate will be fair to a qualified nominee and provide an up and down 
vote. This isn't just a qualified nominee; this is a well-qualified 
nominee, according to the American Bar Association.
  It is perhaps most important because we have the opportunity to place 
a great judge on the Fifth Circuit Court of Appeals.
  Three weeks ago we took the first step in remedying the wrongful 
treatment inflicted on Justice Owen last fall by holding an open 
hearing in which I invited all Members to come and ask her questions. 
Members were also free to submit any written questions following the 
close of the hearing. The hearing was informative. It was productive. 
Justice Owen answered every question during the hearing and responded 
to lengthy written questions with substantive can cogent answers. As 
she has done throughout this process, Justice Owen consistently 
demonstrated her intelligence, her legal acumen, and her respect for 
the law.
  The hearing was valuable for several reasons. First, the hearing 
allowed us to obtain some much needed perspective and insights from 
Senator Cornyn, who, as we all know, served with Justice Owen on the 
Texas Supreme Court and observed her work as a judge day to day for 3 
years in hundreds of cases. He knows her. He knows what it is to be a 
judge and to be called upon to make hard decisions in close cases. He 
knows the workings of the Texas Supreme Court. He was most helpful in 
placing into proper context what outsiders seem to think was extremely 
unusual or striking criticism from her court colleagues in a few 
cases--and darn few cases.
  Senator Cornyn showed that this type of talk is common among court 
members and that such criticism is perfectly normal and even healthy 
for a well-functioning judiciary. Judges disagree from time to time, 
and they may express themselves with fervor during such times. That is 
to be expected. Senator Cornyn personally attested to Justice Owen's 
dedication to her judicial duties. He has seen the work and the care 
she puts into deciding each case. He also attested to her commitment to 
enforcing the will of the legislature. As Senator Cornyn said.

       I know [Justice Owen] is a good judge who always tries to 
     faithfully read and apply the law. That is simply what good 
     judges do, and we can ask for nothing more.

  In this regard, it strikes me once again as significant that the two 
individuals conscripted as star witnesses to discredit Justice Owen as 
an activist judge--Judge Alberto Gonzales and Senator Cornyn--are 
actually two of her biggest supporters and attest to her fitness for 
the bench and for this position on the Fifth Circuit Court of Appeals. 
Nothing can change that fact no matter how hard some try to pretend 
otherwise.
  Justice Owen is also firmly supported by former Texas Supreme Court 
Chief Justice John L. Hill and former Justices Jack Hightower and Raul 
Gonzalez, all of whom are Democrats and all of whom know Justice Owen's 
record. Justices Hightower and Gonzalez have the additional perspective 
of judges who personally served with Justice Owen. Fifteen past 
presidents of the Texas State Bar, Democrats and Republicans alike, 
have enthusiastically endorsed her. Those who know Justice Owen and her 
record best know she will make an excellent Federal circuit court of 
appeals judge.
  Second, the hearing allowed us to set the record straight: Justice 
Owen does not engaged in results-oriented jurisprudence nor does she 
see such practices as desirable or legitimate in any manner. In 
addition, there is no credible evidence that Justice Owen harbors 
biases against plaintiffs or defendants or favors one interest over 
another. Some have charged that she consistently rules against certain 
plaintiffs and legal rights. Justice Owen has provided the committee 
with a long list of decisions which refute that charge. One the issue 
of results-oriented decisionmaking, let me quote what she said to 
Senator Kennedy on this subject:

       I do not try to achieve a result, and I don't look at 
     whether I want one side to win or the other side or one 
     segment of our population to be favored over another. That is 
     not my job.

  Later she said, regarding her decisions:

       Sometimes workers win, sometimes big companies win. The 
     outcome is determined by the law applied to the facts, not my 
     favoring one side or the other.

  These are the words of a judge who understand her role and respects 
the limits of her judicial authority. We don't need politicians and 
legislators dedicated to achieving certain results, policies, or 
outcomes serving on the bench as judges who would do the same.
  Incidentally, I find it particularly ironic that on the one hand, 
Justice Owen is faulted by some for engaging in results-oriented 
decisionmaking, and, on the other hand, she is faulted for not engaging 
in what amounts to results-oriented decisionmaking. Thus she is 
criticized for not reaching ``balance'' in her decisions, for voting 
too often or too infrequently--take your pick--in the majority or 
dissent--take your pick--in particular types of cases--take your pick--
or for not sticking up for, showing sufficient ``sympathy'' for, or 
displaying enough ``dedication'' to, certain types of litigants.
  Of course, we should shun jurists who are looking to achieve 
``balance'' in their decisions or do what may be popular or 
controversial in a case--apart from what an honest reading of the law 
and facts in that case would dictate. And it is serious error--indeed, 
a misunderstanding of the role of our independent judiciary--to simply 
translate

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a judge's decision in a certain case as that judge's intent to achieve 
a certain outcome or set some broad policy that will favor or prove 
``hostile'' to certain types of future litigants. A decision naturally 
will prove ``detrimental'' to one of the parties--one side loses the 
case--but we can hardly criticize the judge who is following the law as 
passed by the legislature. It is not a matter of looking to see whether 
some partisan interest group has characterized a judge as ``deaf'' to 
certain concerns or ``coldhearted'' to certain plaintiffs; it is a 
matter of looking to see whether a judge can put aside personal 
feelings and apply the law.
  Sometimes, as Senator Cornyn helpfully pointed out during the hearing 
2 weeks ago, a judge may or may not like the posture of the case or the 
record developed in the lower court, but an appellate judge must take 
the case as it is and make the best decision based upon the law and the 
facts. That is a judge's job, that is what we expect judges to do, and 
that is all we should expect judges to do. Justice Owens has lived up 
to that standard.
  Third, the hearing set the record straight on Justice Owen's 
decisions in judicial bypass cases. No matter how much some would 
prefer to argue the point, these cases were not about the right to an 
abortion. There was never any question about the girls' right to an 
abortion. Indeed, Justice Owen argued in the Doe 2 case that, based on 
a 1990 Supreme Court decision striking down a Minnesota statute 
requiring a minor girl to obtain consent from both parents, a statute 
requiring a girl to notify both parents would also be questionable 
under the Constitution. Clearly, Justice Owen recognizes a woman's 
right to obtain an abortion. These cases were about whether a minor 
girl should be required to notify one parent before obtaining an 
abortion, in accordance with the Texas state legislation enactments. 
And Justice Owen has been well within the mainstream of her court in 
the 14 decided cases, joining the majority judgment in 11 of those 
cases.

  And we should never lose track of the fact that out of the close to 
800 bypass cases since the Texas statute was passed, a mere 12 girls 
have appealed all the way to the Texas Supreme Court. These are usually 
the toughest cases. By this time, two courts--the trial and the appeals 
courts--have already considered the bypass petitions and turned them 
down. Given the deference appellate courts must pay to the findings of 
the trial court--the court which is in the very best position to listen 
to the girl, consider all relevant evidence, and hear the arguments--
the decision is likely to affirm the lower court rulings denying a 
bypass. That should be no great surprise. Certainly Justice Owen and 
her colleagues on the Texas Supreme Court disagreed in some cases, but 
in all cases there was a genuine effort to apply applicable precedent.
  These parental consent cases show that Justice Owen takes Supreme 
Court precedent seriously: she looks to precedent for guidance, she 
cites it, and she makes a good-faith effort to apply it to the case at 
hand. She understands the rules of appellate review and takes pains to 
follow them. She is a judge who defers to the legislature's considered 
judgment in its policy choices and earnestly seeks to ascertain 
legislative intent in her rulings. None of her opinions, to quote the 
Washington Post, ``seem[] to us [to be] beyond the range of reasonable 
judicial disagreement.''
  I have been on the Judiciary Committee a long time--27 years now--and 
I have seen many, many nominees come through the committee. Justice 
Owen takes a backseat to no one. She has shown herself to be a 
brilliant, fair, and restrained jurist who will be a strong credit to 
the Federal courts. Simply put, Justice Owen deserves to be on the 
bench. I urge my colleagues to do what is right and join me in 
supporting her confirmation to the Fifth Circuit Court of Appeals.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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