[Congressional Record Volume 149, Number 055 (Monday, April 7, 2003)]
[Senate]
[Pages S4915-S4917]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     NOMINATION OF PRISCILLA OWEN TO BE UNITED STATES CIRCUIT JUDGE

  Mr. SESSIONS. Mr. President, I believe the majority leader will be in 
the Chamber in a moment. While we wait, I will take this opportunity to 
share a few thoughts about an extraordinary nominee to the United 
States Court of Appeals for the Fifth Circuit, Priscilla Owen.
  She is, from my observation of hearings before the Senate Judiciary 
Committee, an excellent, superb, truly magnificent nominee for the 
court of appeals. Justice Owen went to Baylor Law School, a very fine 
law school, and as I recall, finished second or third in her class, 
then took the bar exam. Every person who wants to be admitted to the 
bar in Texas has to take it. They study as they can and take the test. 
It is reported she made the highest single score on the Texas bar exam 
when she graduated from Baylor Law School. She was on the Law Review at 
Baylor law school.
  She went to work at one of the finest law firms in Texas, did very 
well, achieved a very nice level of compensation as would be 
commensurate with that position, and many considered her to be perhaps 
the finest litigator in the State of Texas, a very high honor. The 
State of Texas Supreme Court had

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problems and they were looking for good candidates to run for that 
court. People talked to her about it. She thought about it and decided 
she would run. She would give up the practice, as lucrative as it was, 
and give herself to public service. She ran for the Supreme Court of 
Texas and won that race. She served that term, ran again, and was 
elected with 87 percent of the vote of the people of Texas.
  This is a remarkable record, the finest bar exam score, the highest 
score in Texas, the very top of her law school class, editor of Law 
Review at Baylor University Law School, and in every way the kind of 
background you would want for a Federal appellate judge. Of course, she 
had a number of years on the Supreme Court of Texas and handled that 
work in an extraordinary way.
  When President Bush thought about who would be a good nominee to his 
home circuit, the Fifth Circuit--Texas, Louisiana, Mississippi--he 
looked no further than Justice Owen, who had been so useful on the 
Supreme Court of Texas, who had been so popular, who was such an 
outstanding lawyer, a person of the highest possible integrity and 
great skill and ability. That is why he chose to nominate her. No 
wonder he did.
  Things looked good, it seemed to me. We had a hearing on her in the 
Judiciary Committee. She answered the questions superbly, with great 
patience, great clarity of thought and expression. She dealt with each 
objection anyone would throw out to her. She explained the cases that 
she ruled on and why she ruled the way she did. She was asked and she 
told the story about her campaign finance. She had such a good race the 
second time she ran that she did not spend all the money contributed to 
her campaign, and she did something I have never heard of before. She 
sent some of it back to everyone who contributed to her. That is the 
kind of person we are talking about. I have never seen it in 
candidates. I have seen them give it to other candidates but not send 
it back to contributors, when she might yet again run for office and 
need that money in the future.
  I thought we were on the road to a first-rate quick confirmation. 
Unfortunately, groups raised objections and targeted this nominee. How 
they pick nominees to target, I don't know, but this fine woman from 
the Texas Supreme Court is one they should not have targeted, in my 
view. They raised quite a number of complaints.
  One of them alleged that in the Ford Motor Company v. Miles case, a 
product liability case resulting from an automobile accident, Justice 
Owen overturned well-established venue precedence. That is a weak 
argument that did not hold up under scrutiny. Venue is the technical 
term for the proper county in which to file a lawsuit. In this case, 
Justice Owen cited settled law in Texas which required that the lawsuit 
be filed where a company has an agent or a representative. Ford did not 
have an agent or a representative in the county where this lawsuit was 
filed. In her opinion, Justice Owen was joined by Democrats. She 
concluded that the plaintiff should have filed the lawsuit in the 
county where she lived, where the car was purchased, and the accident 
occurred.

  These same groups have argued that Justice Owen is anticonsumer and 
antijury because she agreed with the trial court, a lower court, that 
the plaintiff's claims were without merit in the City of McAllen v. De 
La Garza. The plaintiff in this case was a passenger in a vehicle 
driven by a drunk driver. The driver apparently fell asleep, veered off 
the road, traveled over 100 feet, ran through a wire fence, knocked 
over several fence poles, all before landing in a limestone pit owned 
by the city of McAllen. The man was drunk, drove off the road, went 
through a fence, knocked over several posts, and ran into the pit. And 
he sued the city. The plaintiff, remarkably argued, despite the fact 
that he as a drunk driver caused the accident, that the city owed a 
duty to warn drivers of where the limestone pit was, several feet away 
from the road, barricaded by a fence and other obstacles not part of 
the ordinary course of travel.
  That is the kind of thing that judges deal with every day. They do 
not just rule because they like a case or do not like a case. They go 
back and look at the precedent. They consider the statutes. They 
consider what the law is, and they determine if the city of McAllen, 
TX, had a responsibility to put up a specific sign that said there was 
a limestone pit out there. Maybe the neighbors would not like a tacky 
old sign saying there was a limestone pit there. They put up a fence so 
it would not be seen. The groups criticized her for that.
  One of the things they complained about, in addition to that, was 
that she had ruled in favor of lower court judges who had held that 
young women under Texas law would be required to inform their parents 
if they intended to have an abortion. Texas passed a law that dealt 
with this circumstance. What the Texas Legislature concluded was that 
if a child were to have a serious procedure such as an abortion, they 
should at least tell the parents. They did not declare that the parents 
had to consent, just that the child had to tell. And to try to avoid 
constitutional complaint, they put in the idea that if there was a 
potential for abuse, if there was some justifiable reason--and they 
spelled out some of those--the child would not have to tell the parent.
  Several cases came up to Judge Owen because she is on the Supreme 
Court. The lower court judge held a hearing and concluded the young 
person had no basis not to tell their parents. The parents were not 
going to abuse them. It was not a problem in this case. You cannot give 
a child an aspirin in school without parental consent, but here they 
said you had to tell the parent under Texas law.
  Then the case went from that judge to an immediate court of appeals 
in Texas, and the court of appeals studied the case and studied the 
trial court judge's ruling and they affirmed it in two or three cases 
while Justice Owen was on the Supreme Court and they affirmed the trial 
court, too.
  So then it comes up to the Supreme Court of Texas, and Justice Owen 
read the case and studied the law, and went further than most judges 
would have. She read the Supreme Court Federal cases about abortion. 
She thought about the words the Supreme Court used in those cases. She 
wrote in her opinion that she assumed the statutes were trying to make 
sure they did not violate Federal law and Federal Supreme Court 
rulings. Texas tried to word the parental consent statute in a way that 
was consistent with the U.S. Supreme Court, so she interpreted the 
words that way and analyzed whether or not the Texas law was such that 
this child should have to notify her parents or not. She agreed with 
the three judges and the trial court below her.

  So what the groups say is: Oh, she is not fit for the Supreme Court 
because she is not happy about abortion. She favors having children 
tell parents about whether or not they have abortions. She does not 
follow the law.
  If somebody studied that opinion, they would see she went to great 
care to follow the Supreme Court, to follow the language they used. She 
has, to my knowledge, never publicly expressed an opinion about 
abortion. She has not been out here campaigning against it or making 
any big to-do about it. What her personal views are, are her own. 
Indeed, 80 percent of the American people favor requiring a minor to 
discuss with her parents a serious procedure such as abortion.
  Children in Texas are required to get consent of a parent before they 
have a tattoo, which is probably a good idea, body piercing, or even an 
aspirin at school. That is the Texas law that Justice Owen interpreted 
required a simple notification, but not a consent, of just one parent. 
Her opinion affirming that law and the lower court judges was not out 
of the mainstream of American law. There is just no doubt about it.
  But there is an ideological movement around here which suggests that 
anybody who happens to be pro-life--and we don't even know for sure, to 
my knowledge, whether Priscilla Owen is pro-life or pro-choice--but 
anyway, anybody who rules in this fashion is not fit for the courts of 
appeals of the United States.
  It is really troubling to me when we see this happen to candidates of 
the quality of Jeffrey Sutton, the quality of Priscilla Owen, or Miguel 
Estrada, people who have received the highest ABA rating, unanimously, 
by the bar association. The American Bar Association does background 
checks on

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nominees. What they do is they make the nominees list all the major 
cases they have handled, list the judges who tried those cases, list 
the names of the lawyers on the other side of the cases, and who their 
clients were. These ABA people--and I like what they do--go out and 
talk to a lawyer on the other side of the case. They talk to the judge: 
How did these lawyers handle themselves? Did they conduct themselves 
with integrity? Were they skilled in argument? Did they understand and 
make common-sense arguments? Are they hard to deal with? Irritable? 
Duplicitous and sneaky? That is what they do. They came out and gave 
her the highest possible rating after doing all of that. That is the 
reason why I would ask how a person with her background, her skill, her 
experience, with that kind of rating of the ABA--why they would pick 
her to try to block? I hope it is not so, really. I hope we do not have 
a filibuster on this case like we do, in fact, have with Miguel 
Estrada. Maybe we will and maybe we will not.
  I just cannot believe it, frankly. I cannot believe it is possible 
that Members of this body would conduct a filibuster against a 
candidate for the court of appeals as qualified, as superbly qualified 
as Priscilla Owen. It is just beyond my comprehension that that could 
ever occur here.
  There is not one hint she has anything other than the highest 
integrity. There is no doubt she is brilliant. There is no doubt she 
has given her life to the law and knows it and that is what she has 
done throughout her career. She loves the law. She respects it and she 
cares about it. She cares about it deeply enough to enforce the law as 
written, whether or not she agrees with it. She will follow Supreme 
Court rulings even if she were to disagree with them, like she 
repeatedly pledged to do, because she is a lawyer and a judge who 
believes in the rule of law.

  I think we will be facing a very sad event here in the next day or so 
if we end up with further objections--objections to bringing her up for 
a vote, in effect having a filibuster. It is just beyond my 
comprehension.
  In the history of this country, we have never had a filibuster of a 
court of appeals judge or a district judge. The Constitution says by 
advice and consent the Senate, in effect, will confirm or reject a 
President's nominee. The clear meaning of that statute and the way it 
is written leaves no doubt that it means a majority vote. Yet through 
the utilization of the filibuster rule, some in this body are using a 
rule that has never before been used for a court of appeals judge or 
district court judge in the history of this country. The effect has 
been to ratchet that up to a 60-percent vote--you have to have 60 votes 
here.
  You know from Miguel Estrada, he has already received 54 or 55 votes 
for confirmation, which is a clear majority. But because he does not 
have a 60-vote margin, he is not able to come up for an up-or-down 
vote.
  I hope we are not going to see that in the case of Priscilla Owen. 
She is entitled to an up-or-down vote. She is entitled to be confirmed 
as a Justice on the Fifth Circuit Court of Appeals. President Bush knew 
her, he knew her reputation. He picked one of the finest people who 
could be picked for any court of appeals position anywhere in this 
country, right in his home State of Texas. Is that why they are 
objecting to her, because it is his State? I don't know. But it cannot 
be on the merits.
  I have looked at this matter. I have seen the arguments. I attended 
her hearing. I saw how well she handled herself. I believe and I hope 
and pray this body will not descend into a pattern of filibuster of 
nominees for the courts of appeals of this country, or for the district 
courts, or even for the Supreme Court of the United States. That would 
be a terrible alteration of our traditions, maybe even be in violation 
of the Constitution, which says a majority vote is what it takes to 
advise and consent on Presidential nominees. It is something we ought 
to think very seriously about.
  I hope my colleagues will not take that route and will give her an 
up-or-down vote. If they do, I have no doubt she will be confirmed.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. 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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