[Congressional Record Volume 149, Number 62 (Tuesday, April 29, 2003)]
[Senate]
[Pages S5458-S5472]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF PRISCILLA OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE
FIFTH CIRCUIT
Mr. HATCH. Mr. President, I ask unanimous consent the Senate now
resume consideration of the nomination of Priscilla Owen to be United
States Circuit Judge for the Fifth Circuit.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The assistant legislative clerk read the nomination of Priscilla
Richmond Owen, of Texas, to be United States Circuit Judge for the
Fifth Circuit.
The PRESIDING OFFICER. Without objection, the Senator will proceed.
Mr. HATCH. Mr. President, I am pleased today to voice my strong
support for the confirmation of Justice Priscilla Owen to the Fifth
Circuit Court of Appeals. Justice Owen's nomination has been pending
now for nearly 2 years--720 days in total, so I hope we can vote on it
soon. Justice Owen is among the longest pending judicial nominees
selected by President Bush. She was first nominated on May 9, 2001, so
it is natural that we should move forward at this time.
I should say at the outset that I truly hope the news reports are
inaccurate about another move by the other side to filibuster a well-
qualified nominee and deny a vote by the full Senate. We know the usual
liberal interest groups are crying for a filibuster, but we ought to do
what the American people have sent us here to do, and vote.
I expressed a similar hope when Miguel Estrada's nomination reached
the floor on February 5. Yet here we are 3 months and 4 cloture votes
later and still he has not been allowed a vote.
We have 200 years of precedent for providing an up-or-down vote on
judicial nominees and we should follow that.
If certain Senators do not like Priscilla Owen or Miguel Estrada,
they ought to vote no. That is their right. But they ought to vote.
I fully support an open debate on Justice Owen's nomination. And we
have had a number of debates already. I do not, however, support any
filibuster on a circuit court nominee, or any judge for that matter,
or, frankly, anybody on the Executive Calendar. I think in the past
some of us voted against cloture on Executive Calendar nominees without
realizing how important it is to not filibuster the President's
nominees, whoever the President might be. I believe we have made those
mistakes. And I believe I probably have. It is the wrong thing. But
nobody has ever filibustered a circuit court of appeals nominee until
Miguel Estrada. If they filibuster Priscilla Owen, that means two in 1
year in a procedure that has never before been used.
I fully support an open debate on Justice Owen's nomination. Like I
say, we should not suffer through another filibuster. My colleagues on
the other side of the aisle have already set a terrible partisan
precedent in filibustering for the first time in history a circuit
court nominee, Miguel Estrada. A simultaneous filibuster of two
nominees would not only be unpredecented, but I think it would damage
all three institutions even more. Let us have a full and open debate
and then leave it up to each Senator to decide for himself or herself
by holding a simple up-or-down vote.
Let me now explain why I intend to vote yes on Justice Owen's
nomination.
Justice Owen is a terrific selection for the Fifth Circuit Court of
Appeals. She has the intelligence, the education, the experience, and
the integrity we look for in a federal judge. A native of Texas,
Justice Owen attended Baylor University and Baylor University School of
Law. She graduated cum laude from both institutions and served as a
member of Baylor's law review. In addition, she finished third in her
law school class, which means that she is worthy of the appointment,
something most lawyers can never dream about.
Justice Owen went on to earn the highest score on the Texas bar exam
and thereafter accepted a position at the nationally ranked Houston law
firm of Andrews & Kurth. She worked for the next 17 years as a
commercial litigator with the firm, specializing in oil and gas matters
and doing some work in securities and railroad issues.
Justice Owen has the full support of Senators Hutchison and Cornyn--
both Senators from Texas--who know her well. Senator Cornyn has spoken
in committee and on the Senate floor about his time working as a fellow
Justice to Justice Owen on the Texas Supreme Court. Senator Cornyn has
spoken to the criticism of Justice Owen's work on the bench and has
made a strong case for Justice Owen's confirmation. I would commend
Senator Cornyn's remarks regarding Justice Owen as worthy of the
special attention of all my fellow Senators. Senator Cornyn's responses
to criticisms of Justice Owen's judicial record are especially
enlightening.
Former Texas Supreme Court Justices John L. Hill, Jack Hightower, and
Raul Gonzalez--each of them a committed Democrat--also endorse Justice
Owen. In particular, they note her impartiality and restraint on the
bench. A group of 15 former Presidents of the Texas State Bar supports
Justice Owen. This is no partisan group. They write: ``Although we
profess different party affiliations and span the spectrum of views of
legal and policy issues, we stand united in affirming that Justice Owen
is a truly unique and outstanding candidate for appointment to the
Fifth Circuit.''
I ask unanimous consent that a copy of this letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Hughes Luce LLP,
Dallas, TX, July 15, 2002.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, 224 Russell Senate
Office Building, Washington, DC.
Dear Chairman Leahy: As past presidents of the State Bar of
Texas. we join in this letter to strongly recommend an
affirmative vote by the Judiciary Committee and confirmation
by the full Senate for Justice Priscilla Owen, nominee to the
United States Court of Appeals for the Fifth Circuit.
[[Page S5459]]
Although we profess different party, affiliations and span
the spectrum of views of legal and policy issues, we stand
united in affirming that Justice Owen is a truly unique and
outstanding candidate for appointment to the Fifth Circuit.
Based on her superb integrity, competence and judicial
temperament, Justice Owen earned her Well Qualified rating
unanimously from the American Bar Association Standing
Committee on the Federal Judiciary--the highest rating
possible. A fair and bipartisan review of Justice Owen's
qualifications by the Judiciary Committee certainly would
reach the same conclusion.
Justice Owen's stellar academic achievements include
graduating cum laude from both Baylor University and Baylor
Law School, thereafter earning the highest score in the Texas
Bar Exam in November 1977. Her career accomplishments are
also remarkable. Prior to her election to the Supreme Court
of Texas in 1994, for 17 years she practiced law specializing
in commercial litigation in both the federal and state
courts. Since January 1995, Justice Owen has delivered
exemplary service on the Texas Supreme Court, as reflected by
her receiving endorsements from every major newspaper in
Texas during her successful re-election bid in 2000.
The status of our profession in Texas has been
significantly enhanced by Justice Owen's advocacy of pro bono
service and leadership for the membership of the State Bar of
Texas. Justice Owen has served on committees regarding legal
services to the poor and diligently worked with others to
obtain legislation that provides substantial resources for
those delivering legal services to the poor.
Justice Owen also has been a long-time advocate for an
updated and reformed system of judicial selection in Texas.
Seeking to remove any perception of a threat to judicial
impartiality, Justice Owen has encouraged the reform debate
and suggested positive changes that would enhance and improve
our state judicial branch of government.
While the Fifth Circuit has one of the highest per judge
caseloads of any circuit in the country, there are presently
two vacancies on the Fifth Circuit bench. Both vacancies have
been declared ``judicial emergencies'' by the Administrative
Office of the U.S. Courts. Justice Owen's service on the
Fifth Circuit is critically important to the administration
of justice.
Given her extraordinary legal skills and record of service
in Texas, Justice Owen deserves prompt and favorable
consideration by the Judiciary Committee. We thank you and
look forward to Justice Owen's swift approval.
Sincerely,
Darrell E. Jordan.
On behalf of former Presidents of the State Bar of Texas:
Blake Tartt; James B. Sales; Hon. Tom B. Ramey, Jr.; Lonny D.
Morrison; Charles R. Dunn; Richard Pena; Charles L. Smith;
Jim D. Bowmer; Travis D. Shelton; M. Colleen McHugh; Lynne
Liberaito; Gibson Gayle, Jr.; David J. Beck; Cullen Smith.
Mr. HATCH. Mr. President, Justice Owen is recognized for her services
for the poor and for her work on gender and family law issues. Justice
Owen has taken a genuine interest in improving access to justice for
the poor. She successfully fought with others for more funding for
legal aid services for the indigent. Hector De Leon, former president
of Legal Aid of Central Texas, has written: ``Justice Owen has an
understanding of and a commitment to the availability of legal services
to those who are disadvantaged and unable to pay for such legal
services. It is that type of insight and empathy that Justice Owen will
bring to the Fifth Circuit.''
I ask unanimous consent that a copy of this letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
De Leon, Boggins & Icenogle,
Austin, TX, June 26, 2002.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Russell
Senate Office Building, DC.
Dear Senator Leahy: This correspondence is sent to you in
support of the nomination by President Bush of Texas Supreme
Court Justice Priscilla Owen for a seat on the U.S. Court of
Appeals for the Fifth Circuit.
As the immediate past President of Legal Aid of Central
Texas, it is of particular significance to me that Justice
Owen has served as the liaison from the Texas Supreme Court
to statewide committees regarding legal services to the poor
and pro bono legal services. Undoubtedly, Justice Owen has an
understanding of and a commitment to the availability of
legal services to those who are disadvantaged and unable to
pay for such legal services. It is that type of insight and
empathy that Justice Owen will bring to the Fifth Circuit.
Additionally, Justice Owen played a major role in
organizing a group known as Family Law 2000 which seeks to
educate parents about the effect the dissolution of a
marriage can have on their children. Family Law 2000 seeks to
lessen the adversarial nature of legal proceedings
surrounding marriage dissolution. The Fifth Circuit would be
well served by having someone with a background in family law
serving on the bench.
Justice Owen has also found time to involve herself in
community service. Currently Justice Owen serves on the Board
of Texas Hearing and Service Dogs. Justice Owen also teaches
Sunday School at her Church, St. Barnabas Episcopal Mission
in Austin, Texas. In addition to teaching Sunday School
Justice Owen serves as head of the altar guild.
Justice Owen is recognized as a well rounded legal scholar.
She is a member of the American Law Institute, the American
Judicature Society, The American Bar Association, and a
Fellow of the American and Houston Bar Foundations. Her
stature as a member of the Texas Supreme Court was recognized
in 2000 when every major newspaper in Texas endorsed Justice
Owen in her bid for re-election to the Texas Supreme Court.
It has my privilege to have been personally acquainted with
various members of the U.S. Court of Appeals for the Fifth
Circuit. The late Justice Jerry Williams was my
administrative law professor in law school and later became a
personal friend. Justice Reavley has been a friend over the
years. Justice Johnson is also a friend. In my opinion,
Justice Owen will bring to the Fifth Circuit the same
intellectual ability and integrity that those gentlemen
brought to the Court.
I earnestly solicit your favorable vote on the nomination
of Justice Priscilla Owen for a seat on the U.S. Court of
Appeals for the Fifth Circuit.
Thank you for your attention to this correspondence.
Very truly yours,
Hector De Leon.
Mr. HATCH. Mr. President, Justice Owen is committed to opening
opportunities to women in the legal profession. She has been a member
of the Texas Supreme Court Gender Neutral Task Force, and she served as
one of the editors of the Gender Neutral Handbook, a guide for all
Texas lawyers and judges on the issue of recognizing and combating
gender bias in the legal field. Incredibly, this is the same woman the
usual interest groups mischaracterize as ``anti-woman.''
Justice Owen's confirmation is backed by Texas lawyers such as E.
Thomas Bishop, president of the Texas Association of Defense Counsel,
and William B. Emmons, a Texas trial attorney and a Democrat who says
that Justice Owen ``will serve [the Fifth Circuit] and the United
States exceptionally well.''
You can see the type of bipartisan support Justice Priscilla Owen
enjoys.
Justice Owen has served on the Texas Supreme Court since 1994,
winning reelection to another 6-year term in the year 2000. She had
bipartisan support, earning the endorsement of all major Texas
newspapers and the endorsement of the Texas voters--84 percent of the
electorate to be exact.
This kind of support--running across the board and across party
lines--leaves no doubt that Justice Owen is a fair-minded, mainstream
jurist.
The fact that Justice Owen earned an ABA rating of unanimous well
qualified, the gold standard of many of my colleagues on the other side
when evaluating judicial nominees, is further evidence of Justice
Owen's fitness to serve on the Fifth Circuit Court of Appeals.
This well qualified rating means that Justice Owen is at the top of
the legal profession in her legal community; that she has outstanding
legal ability, breadth of experience, and the highest reputation for
integrity; and that she has demonstrated, or exhibited the capacity
for, judicial temperament.
This ranking comes only after careful investigation and
consideration. There is close examination of the nominee's legal
writing--whether judicial opinions, law review articles, or other
scholarship. Lawyers in private practice and in the public sector are
interviewed and provide their candid assessment of the nominee. Those
interviewed may be law school professors, lawyers working for public
interest services, members of bar associations and legal organizations,
and community leaders. Men and women of all backgrounds are invited by
the ABA to assess the nominee's fitness for judicial service. All of
this investigation is done to provide a full picture of the nominee's
qualifications for the federal judiciary.
Justice Priscilla Owen will be a great asset to the Fifth
Circuit. One can nitpick at her record, as many have done, and will no
doubt continue to do, but when we lay out her full record and look at
it with a sense of balance, we see a judge who honors the law and lives
up to her judicial oath.
I express my hope, once again, that we will commit to hold a debate
and
[[Page S5460]]
then vote on Justice Owen's confirmation. This will allow each Senator
to decide the merits of her record for himself or herself and allow the
entire Senate to fulfill its constitutional duty.
I, for one, hope we are not set up for another filibuster--another
first time in history. I hope that will not be the case, but if it is,
I hope we can face it head on. Ultimately, I hope we can somehow or
other pull out the stops and get a vote for Justice Owen up and down.
Those who do not agree with her can vote against her; and those who do,
can vote for her.
This is an excellent woman, one of the best nominees I have seen in
my whole 27 years on the Senate Judiciary Committee. I do not think you
can find better people than Justice Owen. I personally believe she is a
person of great capacity, and I think her record proves that.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, the Democratic leader is on his way to the
floor and wants to be the first speaker on this matter on our side. We
wish that he be the first speaker. In light of that, I 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. DASCHLE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous Consent Request--Executive Calendar
Mr. DASCHLE. Mr. President, I note we are now debating the Owen
nomination. This morning we had a debate, as we have had over the last
several days, on the Sutton nomination. There were those who supported
Mr. Sutton. Many of us opposed him, we think for good reason. But there
ought to be a recognition that, as we consider all of those nominees
who come before the Judiciary Committee, there are those, of course,
that will divide us but there are many that ought to unify us, that
ought to bring us together in recognition of the importance of the
record that has already been made with regard to judges these past 2\1/
2\ years since this administration has come to office.
In that time, the Senate has now confirmed 119 circuit and district
judges. I am told that is a record in that period of time, that we have
never confirmed that many judges over that period of time. But whether
it is a record or not, arguably there are other times when we have been
virtually as productive.
We have only opposed two of those nominations. Judge Priscilla Owen
was opposed before, and is opposed now. Judge Pickering, of course, in
the committee was defeated 2 years ago. The only other nomination to
come to the floor, as I said--the second one--is Judge Estrada, and
that has to do with his lack of cooperation and his unwillingness to
bring forward the documents that we think ought to be required if we
are going to make a collective and a thoughtful judgment about his
qualifications.
There are others who have been considered in the committee that I
have offered to the distinguished Republican leader, the majority
leader, who could be brought up and passed in a very short period of
time.
One of those judges is Judge Edward Prado. Judge Prado happens to be
in the same circuit as Judge Owen. Judge Owen is from the Fifth
Circuit. So is Judge Prado. Judge Prado also happens to be Hispanic.
There have been numerous statements on both sides of the aisle with
regard to the importance of Hispanic nominees, nominees of any
minority. Cases have been made for improving the diversity on the
courts. It is in the interest of diversity and the interest of moving
forward on those judges for whom there could be agreement that I wanted
to come to the floor this afternoon and simply say: Let's take up those
for which there is overwhelming agreement. As I noted, Judge Prado is
one of those nominees.
I intend to ask unanimous consent that we agree at least on this
nominee and many others. We may continue to disagree on the Owen
nomination, and we will get into the reasons in the course of the
debate. But there is no reason to hold hostage those nominees for whom
there is agreement. So I thought it would be appropriate for us to set
aside the Owen debate for 3 hours this afternoon so that we can take up
an Hispanic nominee who enjoys broad bipartisan support. I would guess
if there were a rollcall on Mr. Prado this afternoon, it would pass, if
not unanimously, virtually unanimously.
We have a choice this afternoon. We have a choice of continuing this
debate, this divisive debate on Priscilla Owen, which we may be forced
to experience, or we could at least take a reprieve from that divisive
debate and take up a qualified nominee, a Hispanic nominee on whom
there is virtually no disagreement.
I ask unanimous consent that the Senate now proceed to Executive
Calendar No. 105, the nomination of Edward C. Prado of Texas to be a
U.S. Circuit Court Judge for the Fifth Circuit; that there be 3 hours
of debate on the nomination equally divided between the chairman and
ranking member; that at the conclusion or yielding back of the time,
the Senate vote, without intervening action, on the confirmation of the
nomination; that the motion to reconsider the Senate's action be laid
upon the table; and the President be immediately notified of the
Senate's action.
The PRESIDING OFFICER. Is there objection?
Mr. HATCH. Reserving the right to object, I believe the majority
leader realizes there is a way of doing this and a way not to do this.
I will have to object to the unanimous consent request because
Priscilla Owen has been nominated for the exact same court of appeals
as Judge Prado. We all agree Judge Prado is an excellent candidate and
nominee, and we intend to fully support him and to have him confirmed.
We also know there is the matter of seniority and a number of other
matters as well.
In addition, the majority leader has seen fit to bring the Owen
nomination to the floor, because we hope to have a vote up or down on
Priscilla Owen. We look forward to that particular vote. We would like
to confirm her first.
I made it clear a short while ago, in fact early in the year, that we
would try on the Judiciary Committee, to the extent that we can, to
bring people up in chronological order. Justice Owen has been sitting
in the Judiciary Committee as a nominee on the Executive Calendar for 2
years this May 9. So within a week and a half, she will have been
sitting there for 2 solid years. It is only fair to ask that her
nomination be acted upon first. We fully intend to do that although it
has no reflection at all on Judge Prado.
I have to object at this time. We will get to Judge Prado in due
course in the way it should be done, not by bringing him up out of
order and not by trying to upset the motions of the majority leader in
this body. I look forward to that. Having said all of that, I object.
The PRESIDING OFFICER. Objection is heard.
The Democratic leader.
Mr. DASCHLE. Mr. President, let me just say how disappointed I am at
the decision made by our Republican colleagues. The distinguished chair
of the Judiciary Committee made a comment that I may have
misunderstood. I think he said there really is no difference between
the Owen nomination and the Prado nomination with regard to Senate
consideration. There is a huge difference.
The Owen nomination, of course, came before the Judiciary Committee
in the last Congress. Her nomination was defeated in the Judiciary
Committee. It is rare, almost unheard of, for a defeated nominee to be
brought back before the committee and then brought back before the
Senate.
There is a significant difference between the Owen nomination and the
nomination of Edward Prado. Edward Prado was before the committee and
now before the Senate in part because of his overwhelming support on
both sides of the aisle, because he came before the committee,
presented his qualifications and, as a result of those qualifications,
was voted out unanimously. There is absolutely no reason to hold Mr.
Prado hostage to other controversial nominees. If we wait until we
resolve the Owen nomination, Mr. Prado will never be confirmed because
I doubt that Ms. Owen will be confirmed. So that is a criterion I hope
[[Page S5461]]
will be reconsidered by our colleagues on the other side.
Again, let me express my disappointment and my hope that our
colleagues will reconsider as we bring this unanimous consent request
back to the floor at a later date.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I have a perfect solution to the distinguished minority
leader's suggestion. I would like to have Judge Prado brought up as
well. I ask unanimous consent that with respect to the Owen nomination,
which was reported on March 27, there be 8 additional hours for debate
prior to the vote on the confirmation of the nomination.
Mr. DASCHLE. Mr. President, I object.
Mr. HATCH. Then I modify my request to allow for 10 hours.
Mr. DASCHLE. Mr. President, as I noted before, there are many
concerns. This nominee was defeated before the Judiciary Committee in
the last Congress, and for many good reasons. We will have the debate.
There is no way that 10 hours will accommodate the debate that will be
required on Ms. Owen.
The PRESIDING OFFICER. Is there objection?
Mr. REID. I object.
Mr. HATCH. Mr. President, I think I have the floor.
The PRESIDING OFFICER. The Senator from Utah retains the floor, and
the Chair has heard an objection.
Mr. HATCH. I yield to the Senator from Nevada without losing my right
to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Parliamentary inquiry: If Senator Daschle's request had
been that we move to Prado without the conditions he set forth as to
time, is that a debatable motion? We are in executive session.
The PRESIDING OFFICER. At this time, it would be a debatable motion.
Mr. REID. I don't want to do that because the Senator from Utah has
the floor, but I want everyone to understand, as soon as I get the
floor, I will move to Prado. That is debatable.
The PRESIDING OFFICER. The Senator from Utah has the floor.
Mr. REID. Mr. President, if I may complete my statement, I think we
would be in a very strange situation where we would have the
Republicans filibustering our moving to Prado.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, that is not only absurd, it is ridiculous.
But that is typical of what is going on here. Rather than give an
honest vote up or down, which is what advise and consent means under
the Constitution, they would prefer to try to take back the floor,
although they are in the minority.
I have nothing against Judge Prado. In fact, I will vote for him. I
think he is terrific. But it is unseemly for them to try to interrupt
the Owen nomination, which has been brought to the floor in accordance
with the usual procedures around here, to try to justify their
obstruction of not only Miguel Estrada but also Justice Owen by voting
for another nominee and making it look as if they are being reasonable
about these matters.
First of all, this is the first time in the history of this Republic
that a second nominee for a circuit court of appeals is being
filibustered.
To make it look like they are not filibustering, to make it look like
they are being reasonable, they are trying to overrule what the
majority leader has brought to the floor. I suspect if the
Parliamentarian continues to maintain that ruling, we will have to face
that problem.
Will our colleagues on the other side stop at nothing in their zeal
to obstruct a vote up or down on President Bush's nominees? I think it
shows even further how broken the Senate is, how broken this procedure
and process is.
Now, my Democratic colleagues have brought up the fact that Priscilla
Owen was defeated last year. Let us remember that she was defeated on a
party line, partisan vote, a vote of obstruction. After the first of
this year, she was brought up again in committee and passed through the
committee with a majority vote--again, a straight partisan vote. All
Republicans voted for her and all Democrats on the committee voted
against her.
Mr. President, I think it is unseemly what the Democrats are trying
to do. I think they are trying to cover up their approaches. I think
they are trying to cover up their obstruction. I think it is an insult
to Justice Owen, an insult to the President of the United States, and
it is unfair. Unfortunately, I suspect we have to live with this type
of unfairness.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Crapo). The Senator from Nevada is
recognized.
Mr. REID. Mr. President, I say to my friend from Utah, earlier today,
the majority leader announced there would be no votes today. He has
been always very cooperative with me. So I am not going to move to the
nomination of Prado today. But I want to put my friend on notice, as
well as everybody else, that tomorrow, when we are going to be in a
period of time where we can vote, I will do that.
I say to my friend from Utah, who is my friend, that I have respect
for him and his legislative abilities and his fine legal mind. But I
believe we should not get bogged down with Miguel Estrada and Priscilla
Owen. There are many other things we can do to move forward with lots
of Judiciary Committee appointments, as was seen from the vote today.
We had 41 votes here. I think with Priscilla Owen and Miguel Estrada
there have been extraordinary circumstances that have caused us to do
what we have done. There is no need to go over again why we feel as
strongly as we do with Miguel Estrada. The record is replete with that.
With Priscilla Owen, the record hasn't been made, but it will be. Here
is a person we feel should not be on the court; as simple as that.
I see my friend who was chair and is now ranking member of the
important Judiciary subcommittee which deals with judges. So I believe
we are fighting over issues that really are not helpful to the family.
We have heard a lot of talk here saying let's get Hispanic people on
the court. We have Prado; he is Hispanic. Let's move him this afternoon
or tomorrow. Also, I am quite certain my friend from Utah did not mean
this. I understand why the majority wants to have an orderly process to
handle judicial nominations. It is understandable. But there are
certain times when you have to clean your house on Friday and not
Saturday. Things come up. In this instance, I suggest that there has
been a tentative agreement worked out, for example, on Roberts, who has
been waiting a long time to become a circuit court judge. Using the
logic that I just heard from my friend from Utah, because Estrada is up
ahead of him, maybe we should not move to Roberts. But maybe because
Roberts has been around longer, he would supersede Estrada.
The point is I think the seniority issue means a great deal in a
legislative body but very little in a judicial body. I know that one of
the fine people on the Ninth Circuit--I think my friend from Utah would
understand he has been an outstanding jurist--Procter Hug, of Stanford
Law, served on the court a long time and became the chief judge of the
Ninth Circuit. That is based on seniority. But we are not here talking
about who is going to be the chief judge of the Fifth Circuit. We are
talking about trying to get judicial nominations filled as quickly as
we can.
The President said he wants them, and the majority leader said he
wants more judges. The chairman of the Judiciary Committee said he
wants more judges. We are here to please. We are willing to work. We
have approved 119, and there is no reason that by the end of this week
we could not get up over 120. We can do that, including Judge Prado. So
I hope we can move beyond Priscilla Owen.
I say as respectfully as I can that Priscilla Owen is not going to be
approved. Fact. I don't know everything, but one thing I do know is
where the votes are most of the time. Priscilla Owen is not going to be
approved. We should get off of her and go to something else.
If the majority wants us to go through lots of cloture votes on her,
we will march down here and do the same as we have done on Miguel
Estrada. I am prepared to lay out why, and I will do that if necessary,
and I am sure others can do it. That is why we should move to more
substantive matters.
[[Page S5462]]
My friend from New York is here and he knows much more than I do
about this judge. I know plenty, but not as much as he does because
that is one of his obligations as a Member of the Senate--to take care
of judges in the country.
Mr. President, let me just say again that we are not here picking
fights that we don't feel are not essential to what we stand for. Not
very often do we choose to go to battle--very rarely. There are a lot
of these judges I voted against because I don't think they are
mainstream judges, but they are judges and they have lifetime
appointments. The Democratic leader, supported by his caucus, said
there are two judges we are not going to let through: Miguel Estrada--
and we know the conditions there that will not be met--and Priscilla
Owen.
It is not as if we are stopping everything going on with judges. When
I go home, it is amazing. It happens that people say things and people
have written editorials in opposition to my view saying: Isn't it
terrible that he is holding up the judges? When I have had the chance
to explain that we had approved 109 and turned down 1, that didn't seem
too alarming. Now it is 119 to 2. That kind of quiets whole audiences.
The President of the United States was the owner of a baseball team.
Boy, I will tell you, he would like to have a batting average with his
team members like that, where for every 119 times up to bat, they made
outs on only 2 occasions. Not bad. Ted Williams could not match that,
Mr. President.
I would hope, again, everyone understands that we are not out
cruising for a bruising. We are standing for what we believe is a
principle, that we want a judiciary to be as good as it can be. It
cannot be our judiciary--we understand that--but there are certain
times when we draw a line in the sand. We have done it on two
occasions. That is a pretty deep line we have drawn and people should
understand that and not waste the time of the Senate.
We have so many other things to do. We have 13 appropriations bills
to move. We have one new subcommittee on homeland security. It is going
to be extremely difficult. We have a new chairman, a new ranking
member. The whole subcommittee is made up of new people. It is going to
be difficult to get that bill done. It is going to take some time. We
should be moving toward that.
I went to a press conference that was sponsored by the Congressional
Black Caucus, Hispanic Caucus, Native American Caucus, and Asian
Pacific Caucus. They asked me to drop by, and I was happy to do that
because it, again, suggested to me that we have to do something about
our health care crisis. Forty-five million Americans have no health
insurance, none. There are millions more who are underinsured. A
significant number of those 45 million and those who are underinsured
are people represented by those caucuses because of the diseases that
people have in their genes as a result of being of that ethnicity. That
is what we should be working on.
The State of Nevada is in desperate shape financially, as are 42
other States in this country. The Republican Governor of the State of
Nevada has moved to increase taxes. He is no leftwing Socialist. He is
a man who is 65 years old, who spent his entire life helping kids and
being an outstanding businessman in the State of Nevada. He said: We
are desperate.
One reason they are desperate is the Federal Government has failed
the State of Nevada. We have required the State of Nevada to do all
kinds of things in homeland security that they are paying for, and we
are not helping.
In the Clark County School District there are about 260,000 kids.
They are desperate for money. They are talking about creating a 4-day
school week. Imagine that. They are talking about dropping band and
some athletic programs. People may laugh and say, good, get rid of
them, but the way I feel about it is those programs are some of the
most important programs young people have. They develop character. It
gives them a sense of worth. That is what education is all about.
We passed this Leave No Child Behind Act. It was something that had
bipartisan support, but we have not funded it.
Those are the things we should be doing, rather than spending days--
not minutes, not hours, but days--weeks, going into months on Estrada,
and I guess Owen. I think it is wrong. We have too many other important
things to do.
We have an environment about which we should be concerned. We are not
dealing with those issues. Do we need to improve the Clean Air Act, the
Clean Water Act? Do we need to do something about Superfund? As a
member of the Environment and Public Works Committee, having been
chairman of it twice, there are lots of things we can do, but it cannot
be done if we are spending all of our time on two judges who are not
going to become the judges that they have been nominated to become.
That does not mean that we have ruined the judicial system.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, let's be honest about this. The Senator has
been very blunt, very forthright and honest in his remarks that they
intend to stop Miguel Estrada and Priscilla Owen. So now we are in the
second filibuster. Let nobody have any illusions, we did not know until
now that literally they were going to filibuster Priscilla Owen. Now we
have two first-time-in-history filibusters against circuit court of
appeals judges because the minority does not like these two judges,
even though both of them have their gold standard imprinted upon them,
unanimously well qualified, by their gold standard, the American Bar
Association.
It is unseemly, and it appears to anybody who is a fairminded person
that there is no real desire to treat Miguel Estrada, with all of his
qualifications, and Priscilla Owen with all of her qualifications, in a
fair manner. It is also very apparent that the President of the United
States is not going to be treated in a fair manner as well.
I have no objection to Judge Prado. If that is what they want to do,
we will see about that, and we will see about it tomorrow. The fact is,
that does not negate the fact that for the first time in history we
have this type of obstruction rather than up-or-down votes of executive
nominee judges for the circuit court of appeals.
I hate to think how this body has devolved from a body that works
together to try to albeit argue and fight over certain nominees, but
usually and always in the past we voted on them, how it has devolved
into this morass whereby two excellent people with the highest
recommendations from the American Bar Association and virtually
everybody in their communities are being held up for no good reason at
all, other than obstruction.
Now we at least know where we stand. I am willing to say I believe
both of these people will be confirmed in the end, and I believe our
colleagues on the other side are going to see that confirmation occur.
At least that is what I intend. I hope we can fully debate these
matters and then vote up or down. If my colleagues do not like Miguel
Estrada, vote against him. If they do not like Priscilla Owen, vote
against her. But do not do this anticonstitutional approach of
filibustering Executive Calendar circuit court of appeals nominees for
the first time in history.
We have been willing to put up with a certain amount of this, but
there is going to be an end to this type of obstruction. It has got to
come to an end, and I intend to see that it comes to an end if I can. I
may not be able to, but I think there is a way we can do that. I am
just warning the other side that I believe sooner or later we are going
to have up-or-down votes on these two jurist candidates.
I think it is pretty hard to make a case against Priscilla Owen that
does not distort her record, that is factual and nondistortable. I
think it is going to be very difficult to make a case against her. For
the life of me, I do not understand why our colleagues on the other
side are filibustering this excellent woman, who has such impeccable
credentials. They have plucked a couple of cases out of the air to
criticize her. I venture to say any judge who has been around for a
considerable period of time, any of us could find some faults with that
judge or we could find cases with which we do not agree. But relatively
few matters can they point to that would justify the kind of treatment
Priscilla Owen is receiving at this time.
I think we should continue the debate. I intend to do so, and we will
see
[[Page S5463]]
where we go from there. I hope my colleagues will be fair, but so far I
have not seen it. I think we are in the middle of an obstructive set of
tactics that are beneath the dignity of the Senate.
Be that as it may, our colleagues do have certain rights. I respect
those rights and we will just see where we go from here. I believe
Priscilla Owen ought to be confirmed, as I believe Miguel Estrada ought
to be confirmed, as I believe Mr. Sutton, who is now confirmed, needed
to be confirmed.
With regard to Roberts, I might as well make it clear we already have
a deal. We have made an agreement. So that should not even enter into
this question of whether one person should be confirmed ahead of
another. I agree that is a comme ci, comme ca type of thing, but we
expect to have a vote on Mr. Roberts. So we will revote him out of
committee. We have a rehearing after 12 hours of hearings.
We were promised a vote on Justice Cook from Ohio. I hope that vote
will be tomorrow, or the next day, in accordance with the agreement we
made, because she was supposed to come up right away within a week.
Roberts will be up for his second extensive confirmation hearing
tomorrow. I intend to be there. Then he will be put on the markup a
week from this Thursday. We have had a good-faith assurance that they
will not try to put him over for another week.
So let's hope our colleagues live up to this agreement. It has not
been an easy one for me to make, but we have made it. There have been
some pluses to us and some pluses to them. But it is done.
So Roberts is not part of the equation, nor should he be used as part
of the equation.
It is the desire of the majority leader to have Owen approved first.
On the other hand, we will see what happens tomorrow.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I enjoy listening to all of our
colleagues: Our leader from South Dakota, my friend from Nevada, and of
course my good friend from Utah, who is just an excellent debater. I
would say he is indefatigable because he is on the floor all the time.
I am rising in opposition to Priscilla Owen, and I have a whole bunch
of points I would like to make. But I would like to just answer my good
friend from Utah on two.
He constantly is using the word right now, ``obstruction.'' It would
seem logical by his definition that nonobstruction is only when we
approve every judge the President has nominated. The fact is that there
are 119 who have been approved and only 3, if you include Judge
Pickering in this--that is, Miguel Estrada, Priscilla Owen, and Judge
Pickering--only 3 have been held up. Is it fair, I ask my friend from
Utah, to call that obstruction?
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. I will; 119 judges approved, 3 held up. That has been
done with greater speed than in any time that anyone has heard of, in
terms of the period of time.
So I just ask my colleague, is the only way we can fail to be
obstructionist by approving every single judge the President nominates?
Because we have come darned close. We only opposed three, and the word
``obstruction'' flows like water from my good friend's lips.
I yield.
Mr. HATCH. I appreciate the Senator yielding to me on that particular
question because, yes, it is obstruction. For the first time in history
to now, I understand from the Senator, he will be obstructing three
circuit court of appeals nominees: Miguel Estrada, Priscilla Owen, and
Judge Pickering; three nominees filibustered for the first time in
history.
I agree with the distinguished Senator; I think there have been 119,
with Jeffrey Sutton, who have been confirmed. That is a good record.
But most of them are district court nominees who act as federal trial
judges. There are a number of circuit court of appeals nominees. Five
of them are still held over, as I recall it, from May 9 of 2001. Five
of those original eleven are still not confirmed. There are all kinds
of judicial emergencies out there that we are trying to take care of
that are being obstructed. Yes, I think it is obstruction.
I do not expect my colleagues on the other side to approve everybody
the President nominates. Vote against them. If you don't approve, vote
against them.
Mr. SCHUMER. I would just like to reclaim my time.
Mr. HATCH. Sure. But I am saying if you don't approve of them, vote
against them. We didn't obstruct yours. We voted. Everybody who came to
the floor was voted upon, and there was no filibuster conducted by us.
Mr. SCHUMER. Reclaiming my time, I would remind my colleague that
within a single day, cloture votes were held on Judge Paez and Judge
Berzon. There were attempted filibusters on the other side. They waited
large numbers of years--more years than Priscilla Owen, Miguel Estrada,
or Judge Pickering have waited. I didn't once hear my friend from Utah
call it obstruction.
What is good for the goose is good for the gander. There were cloture
votes held. There is only one difference--actually there is no
difference. Cloture was achieved eventually. But the bottom line is
this is not true. For Paez and Berzon I think it was the same day, it
may have been within a day of one another--cloture votes were held
because a filibuster was being conducted.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. I will yield in a minute. It was run by a number of his
friends. I know my friend from Utah will say he worked out a deal and
eventually they were approved. So I ask him, when he answers that, to
remind all of us how long they waited to be approved. Was it a year?
Was it 2 years? No.
So, if my good friend from Utah would have the same patience, and
sort of maybe we can come to an agreement 2 or 3 years from now--maybe
after 2004--then we would be being fair; we would be judging one side
and the other with the same standard.
Unfortunately, there has been a double standard here, when my good
colleagues from Alabama and the now-Attorney General but then-Senator
from Missouri and others launched filibusters----
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. Against two nominees for the Ninth Circuit. Those folks
waited years, longer times than any of the three we have mentioned. I
didn't hear the word ``obstruction.''
I will be happy to yield.
Mr. HATCH. Remember, on Judge Paez, I was the one who moved Judge
Paez admittedly in the 4 years. But in that 4-year period he issued a
number of hearings that were highly suspect, not only by people on our
side but some on your side. We had other investigations that had to be
conducted. Admittedly, it was too long; there is no question in my
mind. That is a glaring example.
In the case of Judge Berzon, I was the one who pushed her through.
With regard to cloture votes----
Mr. SCHUMER. I would ask my colleague to yield for another question.
How long did Judge Berzon wait?
Mr. HATCH. I don't recall how long she waited.
Mr. SCHUMER. I believe the record will show it was a longer time than
any of these we are talking about.
Mr. HATCH. I don't know if that is true or not. All I can say is I
was the one who put them through.
I also have to correct the record because there has never been a true
filibuster against President Clinton's nominees or any other Democrat
President's nominees--never. There have been cloture votes. In most of
the cloture votes, those were time management approaches. Yes, we had a
few people over here who wanted to filibuster, but we were able to stop
them. There was no case--none, zero, nada, not ever--where a Democrat
nominee who was brought to the floor was not ultimately voted on up or
down--never--until this year with Estrada and now Priscilla Owen, and I
presume, from what you have said, perhaps Judge Pickering.
My contention is this. I know the distinguished Senator from New York
is a good lawyer. He is a good friend. I value his friendship. But the
fact is, I think there is much merit in having healthy debate, raising
the difficulties you have with a judge, but then having a vote up or
down. Vote whichever way
[[Page S5464]]
you want to, for or against. But it is unseemly to start clogging up
the Senate with true filibusters for the purpose of trying to stop
these people from having a vote up or down. That was never done, not at
any time during my tenure as chairman, and I made sure it wasn't done
because I don't believe that is constitutionally a sound thing to do.
Mr. SCHUMER. I thank my colleague. But I say my good friend from Utah
had another method even more effective in bottling up judges, and that
was never bringing them up for a vote. I think it is hard to see how
keeping someone from a vote in the Judiciary Committee when there were
vacancies on the bench, when those nominees waited and waited and
waited, is anymore commendable. To me, it seems certainly less
commendable than bringing them up for a vote and then having a large
number of Senators--not a majority but certainly more than 40 percent
of this body, as the rules of the Senate allow--not do it.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. I am going to move on now.
I will be happy to yield. But the bottom line is that there is a lot
of sophistry going on here in terms of argument--not in terms of
individuals. When you are forced to invoke cloture to get a vote, if
that is not a filibuster, I don't know what is. It seems to me it is.
When you don't allow a nominee to come to the floor and get a vote and
you don't even bring them before the Judiciary to bring a vote, that is
OK. But when they get the vote in Judiciary and then they come to the
floor and large numbers of Members feel so strongly that in only 2
cases out of 119 they say this is the only method we can use to stop
it, that is wrong. It makes no sense.
Finally, I would say this: It is obstruction when you stop any one of
the President's nominees, because what our friend from Utah says he
must do when he says just have them come up for a vote is to pass every
nominee because, for whatever reason, the discipline on that side is
such that they will always get 51 votes.
I am proud of what we have done. I believe we are upholding the
Constitution. I believe we are checking the arrogance in the White
House, particularly with Miguel Estrada and his refusal to even answer
any questions. I believe history will look very kindly on this effort.
They will look at it as courageous. They will look at it as right. They
will look at it as judicious because it has not been used willy-nilly.
They will look at it as fair.
I know my colleague from Utah is doing his job. He does it very well.
My hat is off to him. But ultimately all he wants us to do is spend a
little time debating each nominee and then approving each one, no
matter what--whether they answer questions or not; whether he said,
Well, Judge Paez had some bad cases that he ruled on.
Guess what. We think Judge Owen has a lot of bad cases. And some of
them were called bad by very conservative colleagues of my friend: The
White House counsel, then-Judge Gonzales; and the junior Senator from
Texas, then-Judge Cornyn, on the record--very rare--chastising Judge
Owen for going way beyond the law. These were not liberal Democrats.
These were not even moderate Republicans. I don't think it is
disputable that in the eyes of many, Judge Owen has ``some bad cases.''
And if it was permissible to delay Judge Paez for 4 or 5 years because
of some bad cases, then clearly we should just have begun on Judge
Owen.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. I would be happy to yield.
Mr. HATCH. I appreciate the Senator yielding. I think it is a credit
to him. We don't have enough debates around here where we have
interchanges with each other. We stand up and make speeches, and
generally they are written speeches. We don't have this type of high-
quality debate.
Let me just answer the Senator on a few of his assertions that I
think are profoundly wrong.
First of all, they were not just a few bad cases. They were activist
cases that were clearly outside the realm, in the eyes of many,
including mine, of what good judicial conduct should be. Second, I
think there were other reasons--further investigation and so forth. But
even more important than that, I would put my report record up as
chairman of the Judiciary Committee against any Democrat chairman--my
chairmanship with a Democrat in the White House--against any Democrat
chairman with a Republican in the White House with regard to how many
people were held over who didn't make it through the process.
For instance, when Joe Biden was chairman and the
Democrats controlled the committee in 1992 and President Bush left
office, there were 97 vacancies and 54 left holding. Two of the fifty-
four included Mr. Roberts--who is going to come up again for another
hearing tomorrow in committee--and Judge Boyle from North Carolina, who
have been sitting there for over 12 years. We didn't complain about it.
I think maybe somebody complained, but I didn't. We understand that
there are some holdups.
Mr. SCHUMER. Reclaiming my time----
Mr. HATCH. Please let me finish.
Mr. SCHUMER. They were never nominated by President Clinton.
Mr. HATCH. I understand. They were nominated by a Republican
President. Let me finish this. My colleague has been very generous with
his time.
Mr. SCHUMER. I am happy to have the debate, and I want to clear the
record. They were not sitting for 12 years and not disposed of at the
end of Congress and not renominated by a new President.
Mr. HATCH. They were nominated--both of them--three times by two
different Presidents. From the time they were first nominated to today,
it has been 12 years. I will make that more clear.
With regard to the 54 holdovers when the Democrats controlled the
committee and we had a Republican President, we didn't have the
screaming and mouthing off about that from our side. Compare that to
when President Clinton left office and there were 67 vacancies, 30
fewer during my chairmanship and 41 left holding versus the 54.
By the way, of the 41, 9 were put up so late that nobody could have
gotten them through no matter who the Judiciary chairman was. There
were really 32. If you take away those who had absolutely no
consultation with home State Senators--I mean none--then that reduces
it some more. If you take away those who had further investigatory
problems, that reduced it some more. There were some--I have been
honest to admit this--whom I wish I could have gotten through who I
think deserved to go through. But there were many in the 54 who were
left by the Democrats who should have gotten through, too.
The point I am making is that it isn't the same because the Judiciary
Committee chairman can't get some of the holdovers through. I don't
blame Senator Biden. I don't think I should be blamed. I did the best I
could. It isn't the same as when somebody is brought to the floor and a
filibuster occurs. The fact is there has never been a true filibuster
up until Miguel Estrada--now Priscilla Owen--and from what the Senator
told me, it looks as if they are going to filibuster Judge Pickering
even before we have his hearing this year. I hope that is not true. But
it apparently is true with regard to Miguel Estrada and Priscilla Owen.
I think we have to break through this nonsense. Maybe we will approve
all of these judges who are brought to the floor. That is what we
should do as Republicans with a Republican President, and we would
hope--and, in fact, in every case we have had Democrats' support for
these judges--in every case, including Jeffrey Sutton today. It isn't
as if it was a wholly partisan process. The Senator is probably right.
If we get these judges to the floor, presumably we will pass them. I am
not sure of that in every case, as I think we should. But if the
Senator doesn't like them, and if others on this side don't, as they
did in the case of Jeffrey Sutton, vote against them.
It is true, Jeffrey Sutton is now confirmed and will receive his
certification to become a circuit court of appeals judge. But my
colleagues on the other side made this political point. They don't like
some of the things he has done as an advocate. That was their right, to
do so. I thought it wasn't the right thing to do myself. I believed
there was too much politics
[[Page S5465]]
involved. But you had a right to do that. But he was confirmed. As
Senator Reid, the distinguished Senator from Nevada, pointed out, there
were a number of Presidential candidates who were not here to vote on
Jeffrey Sutton's nomination. If they thought it was so important a
vote, and that the judicial confirmation process is important, they
should have been here. I think we all would agree with that. They knew
this was the game that was being played to embarrass Mr. Sutton--not by
the Senator from New York, and not by a number of others.
Mr. SCHUMER. I will reclaim my time on that one. There are strong
feelings on this side, as the Senator knows. It has nothing to do with
games. To me, this rises to a sacred responsibility. And I don't use
those words lightly.
The bottom line is--again, I would first say to my friend from Utah,
this is not a referendum on his stewardship on the Judiciary. It is,
again, part of an extremely important process about who is on the
bench, who is part of that third branch of Government and put there for
life.
But I would say to my friend--and he is the best in the business--the
high dudgeon all of a sudden when a few nominees are held up for
whatever reason and sort of the muted signs when he was chairman and
many nominees were being held up, albeit not in exactly the same way--I
would say it is a difference that doesn't make a difference; it is sort
of, well, inconsistent.
Again, that doesn't go to the personal integrity of my friend from
Utah who did try in many instances but didn't succeed. And how we
should be judged, so to speak, is by who gets on the bench and who does
not because that is ultimately what the process is about.
I would mention, in my colleague's recounting, there were lots who
withdrew their nominations. You had the DC Circuit, the second most
important circuit, for which both Miguel Estrada and Judge Roberts have
been nominated, where there were no blue slip problems and there were
no votes. So we can go over history. I am sure each side can point to
wrongs on the other side.
The fact remains, of 119 judges who have been approved, there have
been 3 we can be accused of holding up. As my friend from Nevada said,
I have experienced the same thing. I go to parades and people say: What
about Estrada? What about the judges? Because they listen to talk
radio. I say: I voted for 113 out of 119, and they just be quiet. They
say: Well, that is more than fair.
So this idea that we should roll over for every judge and allow them
to be approved--and I would argue this with my friend from Utah--no
President, certainly in my lifetime, and I think in the history of
these United States, has so nominated judges of an ideological cast.
You almost have to march lockstep and not be mainstream, not even be
conservative but be way over, in case after case after case. That is
what started this: no advise and consent, a desire to change America
through the judiciary by creating an ideological litmus test for
nominee after nominee after nominee. That is not what the Founding
Fathers intended. My guess is, if Jefferson or Washington or Madison
were looking down on this Chamber today, they would be approving of
what we are doing because they would see that the balance in power--
which they so carefully constructed between the President and the
Senate, the President and the Congress, in terms of this awesome power
to put people on the bench for life--is being eroded. That is why we
are here. And we are going to continue to be here.
So my friend from Utah and the majority leader and others have a
choice: They can hold up all these other judges and say, well, until we
deal with Priscilla Owen we are not going to move anybody else. I would
ask a jury of 12 people, fair and true, nonpartisan, who is
obstructing?
That is why I would hope we could bring the nomination of Judge
Edward Prado to the floor. And one of the reasons we want to do it is,
yes, from the mouth of my friend from Utah, there is this view that
only certain types of Hispanics would be approved or, from the mouths
of others, that we are anti-Hispanic, a charge never leveled when Judge
Moreno and Judge Rangel were not voted on to the same circuit by the
other side.
But now we have Judge Prado, approved unanimously by the committee. I
guess he is every bit as Hispanic as Miguel Estrada. There is one
difference: He answered questions. And his views were not so far over
as many who know Miguel Estrada report them to be. Why don't we approve
him? Why don't we bring him up for a vote? Is he being used?
I will tell you what I think. I think the other side does not want us
to approve a Hispanic judge who is within the mainstream. I think
that--
Mr. HATCH. Will the Senator yield on that?
Mr. SCHUMER. I think I will call on my colleague in a minute.
Mr. HATCH. Well, if the Senator would yield, maybe I can satisfy--I
have no objection----
Mr. SCHUMER. I think it sort of shows that why Miguel Estrada is
being held up has nothing to do with his ancestry but, rather, his
conduct as he went through the nomination process in a unique refusal
to answer questions.
I am going to tell my colleague one other story. President Bush has
just nominated a woman to the district court in my State, Justice Dora
Irizarry. She is Hispanic. She happened to be the Republican candidate
for attorney general in this last election. That does not bother me a
bit. I called her to my office. I asked her many of the same questions
I asked Miguel Estrada. She was forthright. I asked her for two Supreme
Court cases with which she disagreed. She named them, expostulated on
them. She did not say, canon 5 will not let her talk about them. She
did not say: I did not have the briefs, so I could not talk about
them--both absurd arguments, arrogant arguments, arguments that show
contempt for the Senate. And she is going to be approved, with my
wholehearted support, even though she is Hispanic, even though she is
more conservative than I am, even though she is a Republican
officeholder.
So the bottom line is simple: We can fill the bench and increase the
number of Hispanic nominees quickly, if we work together, if the
nominees would take the process not with contempt but with the
responsibility that they should, given the awesome power that Federal
judges have.
So I hope we will move to Judge Edward Prado. I hope we will move to
him soon. I would like, as my colleague from Nevada, for us to bring
him to the floor because there will not be a 2-week debate. There will
be a day debate, maybe a 6- or 3-hour debate, and he will be approved.
By the way, if we are worried about vacancies, it is the same circuit
as Priscilla Owen. The reason the other side does not want to bring up
Judge Prado is very simple; it shows the glaring inconsistency and
falsity of their arguments.
Our opposition to a few of these nominees has nothing to do with
their ethnic background and nothing to do even with their political
party. It has to do with the fact that some of them are so extreme that
their own Republican colleagues thought that.
Again, you have Judge Gonzales who is now counsel to the White House.
He said, in one of the cases that she dissented on, if the court went
along with her, it would ``be an unconscionable act of judicial
activism.'' That is from the Republican, conservative, White House
counsel. It could be an isolated case, as my good friend from Utah
mentions, except that those who followed her on the courts say that was
her MO. She constantly wanted to be a judicial activist and make law
from the right.
I would be equally opposed to somebody who wanted to make law from
the left. I do not like nominees who are too far left or too far right.
On my own judicial committee, when those appointed distinguished
jurists from around my State have brought forth nominees and suggested
nominees who were way over to the left, I have said no. Anyone who has
watched me interview judges knows that I am very weary of that because
judges of the extremes make law. They do not do what the Founding
Fathers said, which is interpret the law.
And it was not just Judge Gonzales. We then have the situation in the
case of Weiner v. Wasson. This was a medical malpractice case. Again,
Justice Owen wrote a dissent about an injured
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plaintiff while he was still a minor, and the issue was the
constitutionality of a State law requiring minors to file medical
malpractice actions before reaching the age of majority or risk being
outside the statute of limitations.
Then Justice John Cornyn, now our colleague in the Senate, said:
Generally, we adhere to our precedents for reasons of
efficiency, fairness, and legitimacy. First, if we did not
follow our own decisions, no issue could ever be considered
resolved. The potential volume of speculative relitigation
under such certain circumstances alone ought to persuade us
that stare decisis is a sound policy. Secondly, we should
give due consideration to the settled expectations of
litigants like Emmanuel Wasson, who have justifiably relied
on the principles articulated in [the case]. . . . Finally,
under our form of government, the legitimacy of the
judiciary rests in part upon a stable and predictable
decisionmaking process that differs dramatically from that
properly employed by the political branches of government.
According to the conservative majority on the Texas Supreme
Court,
--this is not a liberal court--
Justice Owen went out of her way to ignore precedent and
would have ruled for the defendants. The conservative
Republican majority followed precedent and the doctrine of
stare decisis.
So this is not a mainstream nominee. This is a nominee who has every
indication of being an activist from the right, of being somebody who
wishes to turn the clock back, of being somebody who sides over and
over and over again with the larger corporate interests against the
individual. In my judgment, she does not belong on the Fifth Circuit.
If the only way we can stop her is to prolong this debate, so be it.
There are many other people in Texas, many other lawyers, many other
judges, many others in the realm of the Fifth Circuit who are
conservative and intelligent and qualified. If the President wanted to
come to some agreement with us, he would nominate them. In fact, one is
before us--could be before us: Judge Prado. He will not have any issue
with us.
Is there a litmus test? Absolutely not. I have no idea what Judge
Prado has ruled. He has been for 19 years on the court. I don't know
what his position is on choice. I don't know what it is on gun control.
I don't know what it is on gay rights. But his hearing and his record
show he is not out of the mainstream.
I have always had three watchwords with people I have supported, both
in New York, where I am actively involved in the selection process, and
around the country, where obviously I am one one-hundredth of the
advise and consent process. Those are ``excellence,'' ``balance,'' and
``moderation.'' My three words are ``excellence,'' ``moderation,'' and
``diversity.''
I have to give the President credit. On criteria one and three, his
nominees meet the bill. They are legally excellent, by and large. These
are not political hacks or people who don't have the brainpower to be
excellent judges. The President, to his credit, has gone out of his way
for diversity.
But on moderation, it is almost as if he is not even making an
effort. It is as if he has over and over and over again nominated
people like Jeffrey Sutton, who we just approved, who are trying to
change the law, who are trying to turn the clock back, who have an
atavistic fear of the Federal Government and what it can do.
Again, it is our obligation to oppose such judges, just as it is our
obligation to support those who are qualified.
I urge my colleagues on the other side to realize they are not going
to win every single case. They are going to lose a few. I think they
should have lost a few more than they did. I would have not liked to
see Jeffrey Sutton go to the Sixth Circuit. But to say we will not
bring up another judicial nominee until Priscilla Owen is passed is the
real obstruction. I don't think it will stand up. We know there are
some on the other side who quietly have said this has gone too far, who
have urged the White House to moderate its stance, who have said, let
us move on from Miguel Estrada or reveal his records. Unfortunately,
the White House seems to feel they want it all in every way. They want
it all theirs.
That is not what the Founding Fathers intended. It is not even what
the Founding Fathers intended when there is a President and a Senate
controlled by the same party, as we have today. We will oppose Judge
Owen. We will continue to oppose her. We will proudly oppose her.
When we began this fight, which I guess I was one of the first people
to get involved in in terms of moderating the judiciary and seeing that
there be some moderation, when I proposed to our good majority leader
and our chairman of the Judiciary Committee that we not allow Miguel
Estrada to go forward until he answered questions, I thought
politically it would be a loser. It is easy to get up and say: Just let
a majority vote and let the chips fall where they may. I think we had
some knowledge that illegitimate charges of not supporting someone
because of his ethnic background would be hurled at us.
But do you know what has happened. As the debate has gone forward,
first, our caucus is firmer and firmer and stronger and stronger in the
belief that what we are doing is right and rises to noble
constitutional principles. Second, the public is beginning to catch on.
I found, as I traveled across my State these 2 weeks while we were on
Easter break, that people were saying: Why does the President want his
way on every single nominee? As soon as people heard I had voted for
113 of 119 of the President's nominees, they said: You have been more
than fair.
So anybody on the other end of Pennsylvania Avenue who thinks they
are going to take a two by four and break us, we have proven that that
is not the case. The fact that in our caucus there is such strong
support to block Priscilla Owen shows we are gaining strength.
I plead with my colleagues to go back to the White House once again
and tell them they are not going to win every single fight, that they
have an obligation to advise and consent, that there is some degree of
compromise in making this government work, and that, most of all, the
bench should not be filled with ideologs who have an atavistic,
instinctive preference to make law rather than interpret the law as the
Founding Fathers intended.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so
ordered.
Mr. CORNYN. Mr. President, I rise today to address the Senate with
some regret and with somewhat of a heavy heart. I believe in the rule
of law. Indeed, this Nation was built on the rule of law, the ultimate
strength of our institutions that make up our representative democracy.
So it saddens me, along with many of my distinguished colleagues, when
I witness the abject failure of one of these institutions. Nowhere has
this institution met with greater failure than in the area of judicial
nominations.
Nearly two years ago, President Bush announced his first class of
nominees to the Federal court of appeals. Five of the eleven nominees
have not had a single vote in the Senate two years later. This list
includes Justice Priscilla Owen, with whom I served on the Texas
Supreme Court, and whose nomination is now pending before this body.
Two years is too long. I believe the Senate has reached a new low in
recent months, with the unprecedented use of a filibuster of dubious
merit that blocks an exceptionally qualified nominee who enjoys the
support of a bipartisan majority. If we were allowed to vote, I am
convinced that a bipartisan majority of the Senate would today vote to
confirm Justice Priscilla Owen to the Fifth Circuit Court of Appeals.
This dismal political anniversary indicates the true range of the
failure of the judicial confirmation process in this body. This process
has become unnecessarily but increasingly bitter and destructive, and
it does a terrible disservice to the President, to Senators, to
nominees, and ultimately to the American people.
I do not know anyone who truly believes in their heart of hearts that
the process works now the way it should. I believe most reasonable
people looking at this process from the outside would agree with me
that the process is broken. But the question now becomes, is it broken
without hope of repair?
[[Page S5467]]
Today I announced that the Judiciary Committee's Subcommittee on the
Constitution will convene a hearing on reform of the broken judicial
confirmation process. This hearing will allow distinguished Members of
the Senate, on a bipartisan basis, as well as the Nation's leading
constitutional experts, the opportunity to discuss the serious
constitutional questions raised by the obstruction of judicial
nominations. We will address the problems facing the Senate and the
Federal judiciary, and we will consider and debate potential solutions
and reforms.
Yes, I believe two years is too long. Specifically, it is too long
for a candidate as worthy and as qualified as Justice Priscilla Owen.
Of the nominees currently pending before the Senate, no one has waited
longer than Justice Owen for a vote on the Senate floor on a judicial
nomination--no one. As a former state supreme court justice who served
with Justice Owen for three years, and now as a member of the Senate
Judiciary Committee which carefully considered and endorsed her
nomination to the Federal bench last month, I firmly believe Justice
Owen deserves to be confirmed to the Court of Appeals for the Fifth
Circuit. Of course, the Fifth Circuit covers my home State of Texas as
well as the States of Mississippi and Louisiana. If the Senate applies
a fair standard, if we continue to respect our Constitution, Senate
traditions, and the fundamental democratic principle of majority rule,
she will be confirmed.
The arguments of those who oppose Justice Owen's nomination can be
summed up in one phrase: Don't confuse us with the facts.
The facts are these: First, the American people are in desperate need
of highly qualified individuals of the greatest legal talent and legal
minds to fill the numerous vacant positions on the Federal bench,
particularly those on the Fifth Circuit Court of Appeals, whose three
vacancies are all designated judicial emergencies by the U.S. Judicial
Conference.
Second, we must ensure that all judicial nominees understand that
judges must interpret the law as written and not as judges or special
interest groups would like them to be written. In other words, the
judiciary must be a means by which the laws that are passed by Congress
and signed by the President are implemented in the daily lives of the
American people. The Constitution does not comprehend nor is it
appropriate for judges to serve as a super-legislative body or to serve
as another legislative branch in a black robe.
Of course, when it comes to interpreting the law faithfully and
avoiding the pressure of special interest groups, Justice Owen
satisfies both of these standards with flying colors. She is quite
simply, by any measure, an outstanding jurist. The facts are testimony
to her ability and her intelligence.
Justice Owen graduated at the top of her class at Baylor Law School
and was an editor of the Law Review at a time when few women entered
the legal profession. She received the highest score on the bar
examination. And she was extremely successful in the private practice
of law for seventeen years before joining the bench.
Since she has become a judge about eight years ago, she has served
with enormous distinction on the Texas Supreme Court. In her last
election to the Texas Supreme Court, she was endorsed by virtually
every major Texas newspaper, and most recently when she was reelected
she received the vote of 84 percent of those who cast a vote in the
election.
She has the support of prominent Texas Democrats and Republicans
alike, Democrats such as former members of the Texas Supreme Court,
Chief Justice John Hill and Justice Gonzales, as well as a long list of
former presidents of the State bar, and leaders in the legal profession
in my State. The American Bar Association that provides some analysis
of judicial nominees, an objective analysis, has rated her well
qualified, a rating that some of my colleagues used to refer to as
``the gold standard,'' but which they now conveniently choose to
ignore.
I simply cannot fathom how any judicial nominee can receive all these
accolades from opinion leaders, from constituents, from legal experts
across the political spectrum, unless the nominee is both an
exceptionally qualified lawyer, a judge who respects the law, and a
person who steadfastly refuses to insert his or her own political
beliefs into the judging of cases.
Based on this remarkable record of achievement and success, of
eloquent and evenhanded rulings, it should come as no surprise that
Justice Owen has long commanded the support of a bipartisan majority of
the Senate.
I would like to take a couple of moments to talk about my own
personal observations while serving with Justice Owen on the Texas
Supreme Court. She and I served together on that court for three
years--from the time she joined the court in January 1995 until the
time I left the court after serving seven years in October of 1997.
During those three years, I had the privilege of working closely with
Justice Owen. I had the opportunity to observe on a daily basis
precisely how she approaches her job as a judge, how she thinks about
the law, and what she thinks about the job of judging in literally
hundreds, if not thousands, of cases. I spoke with and indeed debated
in conference with Justice Owen on countless occasions about how to
faithfully read and follow statutes and how to decide cases based upon
what the law is--not based on some result we would like to see
achieved. I saw her taking careful notes, pulling down the law books
from the shelves and studying them with dedication and diligence. I saw
how hard she works to faithfully interpret and apply what the Texas
legislature had written, without fear and without favor. Not once did I
ever see her attempt to pursue some political agenda in her role as a
judge, or try to insert her own belief as opposed to the intent of the
legislature or some precedent from a higher court in the case at hand.
To the contrary, I can tell you from my personal observation that
Justice Owen feels very strongly that judges are called upon--not as
legislators or as politicians, but as judges--to faithfully read
statutes on the books and interpret and apply them faithfully in cases
that come before the court. I can testify from my own personal
experience, as her former colleague and as a fellow justice, that
Justice Owen is an exceptional judge who works hard to follow the law
and enforce the will of the legislature. She is a brilliant legal
scholar and a warm and engaging person. To see the kind of disrespect
the nomination of such a great Texas judge has received in this body is
disappointing and really beneath the dignity, I believe, of this
institution.
It is hard to recognize the caricature that opponents of this nominee
have drawn. Unfortunately, as a Member of the Senate Judiciary
Committee who has had a chance now to vote on a number of President
Bush's nominees for the Federal bench, I have seen that the practice of
vilifying and marginalizing and demonizing President Bush's judicial
nominees is becoming all too common. Indeed, I began to wonder whether
there are any good, honorable people with distinguished records in the
legal profession or in the judiciary who will submit their names for
consideration by this body, knowing that, regardless of the facts,
regardless of the truth, they will be painted as some caricature not of
what they really are, but of what others have cast them to be, when in
fact the truth is far different, and with no justification.
It pains me to see what can only be called the politics of personal
destruction played out in the course of the judicial confirmation
process. We can and we must do better.
The special interest groups, and the minority in this body--who
oppose even calling a vote on Justice Owen have no real arguments to
oppose her nomination, at least none based in fact or any that would
withstand scrutiny under any fair standard. Their past record shows
these groups who have cast aspersions on many highly qualified
nominees--many of whom currently serve on the Federal bench--their
attacks against judges are simply not credible.
For example, these opponents of a bipartisan majority who would vote
to confirm Justice Owen today are the very same folks who predicted
that Justice Lewis Powell's confirmation would mean that ``justice for
women will be ignored.'' Justice Owen's opponents are the same folks
who argued that Justice John Paul Stevens had demonstrated ``blatant
insensitivity to
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discrimination against women'' and ``seems to bend over backwards to
limit'' rights for all women. Justice Owen's opponents are the same
folks who testified that confirming David Souter to the United States
Supreme Court would mean ``ending freedom for women in this country''--
the same folks who said they ``tremble for this country if you confirm
David Souter''--who even described now-Justice Souter as ``almost
Neanderthal'' and warned that ``women's lives are at stake'' if the
Senate were to confirm him.
How many times must these irresponsible and baseless allegations be
made before we finally say these special interest groups have no
credibility when it comes to judicial confirmations? Their claims about
Justice Owen are no more accurate and no less hysterical. It reminds me
of the boy who cried wolf.
After these repeated charges and accusations and shrill attacks,
which typically turn out--certainly in the cases I mentioned--to be
utterly baseless and unfair, it makes you wonder just how credible
these groups think they really are, or how long their arguments will
continue to have currency in this body or in the media.
It also makes you wonder whether these groups make their claims not
because they actually believe they are true, but in order to achieve
their own political aims--in order to defeat judges nominated by this
President, who believe that a judge's role is not to be an activist in
a black robe or a super legislator. But I believe these shrill attacks
are made with one purpose and one purpose only--to scare people and to
support unsubstantiated and baseless attacks against highly qualified
nominees like Justice Owen.
In the case of Justice Owen, their attacks are true to form. And they
conform to their past patterns and practices--for they are like their
attacks of the past, unfair and without foundation either in fact or in
law. For example, some of Owen's detractors claim she rewrites statutes
in order to further her own political agenda. That is a pretty
incredible charge in light of her ABA rating of well qualified, which
was unanimous, her strong bipartisan backing, and her enthusiastic
support from Texans, people who know her best. It is also a baseless
charge.
To ostensibly prove their point, Justice Owen's opponents point out
that on occasion, other justices on the Texas Supreme Court have
written opinions saying Justice Owen sometimes was rewriting statutes
in order to achieve a particular result. That is an absurd standard to
apply in a Senate confirmation, for reasons I will detail now. All
judges of good faith struggle to read statutes and other legal texts
carefully, and faithfully.
In close and difficult cases--and the docket of the Texas Supreme
Court is chock full of them--judges will often disagree about the
proper and most correct legal interpretation. Indeed, we establish
courts of multiple members--nine members--a collegial decision-making
body, believing that judges will sometimes disagree, but in that
decision-making process, that there will be a full and fair debate
about the various positions, about the various interpretations, and
that ultimately majority rule will win out and a case will be fully and
finally decided.
But when disagreements occur, a judge may naturally conclude that his
or her own reading of a statute is correct. That is why they will
decide the case in the way they choose, based on a belief that their
interpretation of a statute is correct. And, of course, it only follows
that if I believe, in deciding a case, that my interpretation of the
statute is correct, that the interpretation of the statute by someone
who achieves a different result is not correct.
Now, that is not the final word. Obviously, the final word is the
decision of the majority of the court which decides, for all practical
purposes, not necessarily in the abstract, but for all practical
purposes, what the correct result is, so that the people in our States
and across the country can know what the rules are and apply them with
some predictability.
I would point out that practically everyone with any significant
judicial experience has faced the same criticism that Justice Owen has
received in terms of rewriting statute. Yet if Justice Owen's opponents
are to be taken seriously, any judge who has been criticized of
rewriting a statute is presumptively unfit for the Federal bench. As I
pointed out at Justice Owen's confirmation hearing last month, such an
absurd standard would exclude practically all of her current and past
colleagues on the Texas Supreme Court.
Such an absurd standard would also disqualify numerous members of the
U.S. Supreme Court, people with whom Justice Owen's opponents are known
to agree. For example, in 1971, Justice Hugo Black and William O.
Douglas sharply criticized Justices William Brennan, Harry Blackmun,
and others, stating that the ``plurality's action in rewriting this
statute represents a seizure of legislative power that we simply do not
possess.''
In a 1985 decision, Justice John Paul Stevens accused Justices Lewis
Powell, Sandra Day O'Connor, and Byron White of engaging in ``judicial
activism.''
Countless other examples pervade the U.S. Reports.
Would Justice Owen's opponents and detractors apply the same standard
and exclude those Justices with whom they tend to agree from Federal
judicial service? Of course not. It is a double standard. It applies to
Justice Owen but not to judges who they would prefer. But fairness only
dictates that Justice Owen not be made to suffer from an absurd and
unreasonable double standard.
I remind my colleagues that just last year, the Democrat-controlled
Senate confirmed Professor Michael McConnell to the Federal court of
appeals by unanimous consent, even though Judge McConnell, like Justice
Ruth Bader Ginsburg and liberal law professors and commentators, has
publicly criticized the analysis of several Supreme Court rulings,
including Roe v. Wade. That is not something, however, that Justice
Owen has done.
Now, don't get me wrong. I am glad that Judge McConnell was
confirmed. He is an exceptional jurist who is already proving to be a
fine judge on the Federal court of appeals. But his case illustrates
the inherent foolishness of using ideological litmus tests when
assessing the abilities and evenhandedness of judicial nominees.
Mr. President, I can tell you from personal experience, when you put
your left hand on the Bible, and raise your right hand, and take an
oath as a judge, you change. Your job changes. No longer are you an
advocate for a particular position in a court of law that you hope some
court will embrace. No longer are you a legislator--assuming you have
been a legislator--used to making the law or affecting public policy in
a very stark and direct way.
Mr. President, when you raise your right hand, and put your left hand
on the Bible, and take a sacred oath to perform the duties of a judge,
you change. And, indeed, Justice Owen has been true to that oath and
has faithfully discharged her responsibilities as a judge, and will do
so on the Fifth Circuit Court of Appeals if this body would simply vote
on her nomination.
I want to spend a few moments talking about filibusters.
Clearly, debate is important. In a body such as the Senate, this is
one place where we know if there is a difference of opinion on any
issue, if there are competing points of view, that there will be a full
debate. Debate is, indeed, the only way to ensure we make known to each
other our views and our values. It is the only way to ensure we have
the opportunity to make our arguments known and to respond to the
arguments of others; to appeal to the public and reasonable people who
will assess those arguments and achieve or arrive at a judgment on
their own about what they believe, what they do not believe, which
arguments have value and which have no value, which arguments are
supported by facts or evidence and which are baseless. It is the only
way to ensure that each of us can be convinced we have been given at
least the opportunity to persuade others and to appreciate the wisdom
of our respective positions.
But for democracy to work, and for the fundamental democratic
principle of majority rule to prevail, the debate must eventually end,
and we must eventually bring matters to a vote. As Senator Henry Cabot
Lodge famously
[[Page S5469]]
said about filibusters: ``To vote without debating is perilous, but to
debate and never vote is imbecile.''
So let's have a debate about this exceptional nominee. And after we
have had the debate, let's vote. There should not be a filibuster. A
minority of the Senate should not try to impose what is in effect a
supermajority requirement for confirming judicial nominees, operating
under the constant threat of filibuster.
The Constitution makes clear when the Founders intended to require a
supermajority of this body to act. It specifies that two-thirds of each
House shall be necessary to override a Presidential veto on
legislation, and that two-thirds of each House shall be necessary to
amend the Constitution, subject to the ratification by the people. It
provides that two-thirds of the Senate shall be necessary to convict an
officer pursuant to an impeachment trial, and that two-thirds of the
Senate shall be necessary to consent to the ratification of treaties.
It does not say that a supermajority shall be necessary to confirm a
President's judicial nominees. And it is well-settled and well-
established law, as a matter of both Senate practice and Supreme Court
precedent, that majority rule is the norm, whenever the text of the
Constitution does not expressly provide otherwise.
The Constitution vests the advice-and-consent function in the entire
Senate, not just in the Senate Judiciary Committee. During the last
Congress, the Senate Judiciary Committee refused to report Justice
Owen's nomination out to the entire Senate. The committee, it should be
obvious, does not speak for the entire Senate. Indeed, the committee
itself could have reconsidered the nomination and could have reported
Justice Owen to the floor even after it had previously refused to do
so.
The Constitution requires elections to make sure that the Senate
remains accountable to the people. To insist that a new Senate cannot,
after an intervening election, reconsider legislation or a nomination
rejected by a previous Senate is to reject the very principle of
democracy and accountability.
Accordingly, there is no Senate tradition that forbids the President
from renominating an individual previously rejected by the full Senate,
let alone by the Senate Judiciary Committee. Quite to the contrary,
there is a wealth of precedent for such re-nominations.
As recently as 1997, the Senate Judiciary Committee refused to report
Bill Lann Lee to the entire Senate. Yet President Clinton not only
renominated Lee in subsequent sessions of the Senate, he even gave Lee
a recess appointment in 2000 without triggering substantial opposition
from the Senate.
I am not asking for the Senate to depart from its traditions. Indeed,
the only departure from tradition that is occurring today is the
filibuster of Miguel Estrada and now Priscilla Owen, something that has
never happened before to a circuit court nominee.
I hope we have a good, vigorous debate on this nomination because I
believe that by any measure Justice Owen is an exceptional judge and an
exceptional human being who deserves confirmation.
I am confident that, at the end of the debate, if Members of the
Senate really want to know what the facts are, as opposed to the
caricature that has been drawn of Justice Owen by special interest
groups intent on vilifying, marginalizing, demonizing a good and decent
human being, that if we were allowed to have a vote, we would have a
strong bipartisan majority that would support her nomination.
I hope no matter what the outcome, we will come to an end of the
debate, and we will simply do what the people of our respective states
sent us here to do, and that is to vote.
I would not ask the Senate to depart from its traditions of fairness
in this case. By any fair measure, Justice Owen is an exceptional judge
and exceptional nominee. I am confident she will not only maintain the
strong bipartisan majority she has in support of her nomination, but
that it will grow as Senators examine the record, test some of the
allegations made against her, and find them without substantiation,
without justification; that if what we are really interested in is
finding the truth about this nominee, and determining whether she will
uphold the oath she has taken and that she will take as a judge on the
circuit court, she will be confirmed.
I hope this body will abide by the Constitution as written, and not
impose some supermajority requirement where the Constitution requires
none, and where the Supreme Court and Senate traditions and the
fundamental principle of majority rule dictate a majority vote on this
nominee, not a 60-vote supermajority.
As long as the Senate applies a fair standard to this nominee, I have
no doubt Justice Owen will be confirmed. Now nearly two years have
passed since she was nominated to the Federal bench. The Senate should
vote to confirm her immediately.
We ask judges to be fair, to be impartial in deciding cases, to show
neither fear nor favor. But certainly the requirement of fairness does
not end in the judicial branch. It also applies to the Congress and to
the Senate in performing our responsibilities. Certainly you would
think it is self-evident that it should apply in confirming judicial
nominees. Our current state of affairs is neither fair nor
representative of the sentiment of a bipartisan majority of this body.
The distinguished Senator from Nevada has said that, when it comes to
setting the hours of debate, ``there is not a number in the universe
that would be sufficient.'' I say two years is more than sufficient.
I yield the floor.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I welcome the opportunity to address
the issue about the qualifications of Priscilla Owen to serve on the
Fifth Circuit of the United States.
In considering this nominee, particularly in the wake of the recent
comments of my friend from Texas, it is worthy to point out that there
have been 119 nominations for the Federal bench, including the Court of
Claims, either for the district or the circuit court, over the period
of this President. We have had one, Mr. Pickering, who was defeated a
year ago and who was renominated by the President. There is Priscilla
Owen now before the Senate. But there has only been one, according to
my calculations, Miguel Estrada, where sufficient questions have been
raised as to his commitment to the core values of the Constitution,
where that issue is still before the Senate.
That is an extraordinary response by the Senate in considering
favorably the series of nominees by this President. I don't know the
course of our history, but this certainly has to be one of the most
favorable records, certainly of any recent times, of response by the
Senate in approval of the President's nominees.
I listened to my friend and colleague talk about the importance of
Priscilla Owen being able to finally get a vote on her nomination. I
was thinking about the recent history of the time when my friend from
Utah, Senator Hatch, was chairman of the Judiciary Committee. We had
three nominees for the Fifth Circuit: H. Alston Johnson, Enrique
Moreno, and Jorge Rangel. All three individuals were never given a vote
under the Republican committee and the Republican Senate. These are
truly outstanding individuals.
It is important to have some understanding of history in terms of who
has permitted votes to take place and who has failed to permit even
these well-qualified individuals, in this instance, just on the Fifth
Circuit. I am not taking the time of the Senate to list them all. I
know Senator Leahy has done this at other times.
I also refer to the history of the Senate to provide some awareness
of background. The claim that it is unprecedented to filibuster a court
of appeals nomination is false and hypocritical. Since 1980, cloture
motions have been filed on 14 court of appeals and district court
nominations.
Recently, Republicans filibustered, in the year 2000, in an attempt
to block the nomination of Richard Paez, a Hispanic, and Marcia Berzon,
onto the Ninth Circuit. This is after Richard Paez had been waiting 4
years due to anonymous holds by Senate Republicans. Bob Smith openly
declared he was leading a filibuster, and he described Senator Sessions
as a member of his filibustering coalition. Even Senator Frist was
among those voting
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against cloture on the Paez nomination.
So requiring cloture on judicial nominations is not an
extraconstitutional event. The Senate has the role of advise and
consent on judicial nominations, and the Constitution leaves it to the
Senate to carry out its responsibility in accordance with its own
rules. Requiring cloture to end debate on a nomination is permitted
under Senate rule XXII. The right of Senators to speak on the floor at
length is central to the Senate's role.
I ask the Senate to listen to the history of the Senate on
nominations. In the first decade of the Senate's history, the Founders
rejected a rule providing for a motion to close debate, and for the
rest of our history, our rules have provided that debate, which is the
lifeblood of our power, cannot easily be cut short. For 111 years,
unanimous consent was required to end debate in the Senate. Until 1975,
a two-thirds majority was required. Now it is only 60 votes that are
required. Until 1949, debates on nominations could not be cut off at
all.
It is interesting to note the history of the rules as they have
applied to nominations historically when we are considering
controversial nominees. I daresay if we look at the record today--it is
my understanding that there is only one of President Bush's judicial
nominations that we have so far blocked on the Senate Floor, and that
is Mr. Estrada, which is because of the failure of the Administration
to provide key documents from his time in the Solicitor General office
so that we can be able to understand Mr. Estrada's commitments to the
core values of the Constitution.
It was interesting as well that earlier in the day our leaders
requested that there be an opportunity to consider Judge Edward Prado,
a nominee to the Fifth Circuit, who is on the registrar, to see whether
we could move ahead with that nominee. There was objection that was
filed, as I understand it, by the Republicans. He is a Republican. We
may not all agree with his views or his rulings, but in his time on the
bench he has shown that he is committed to the rule of law and not to
reshaping the law to fit a rightwing ideology. There is not a single
letter of opposition against him, and he is ready to be voted on by the
full Senate. Senator Daschle, Senator Reid, and others have indicated--
the Judiciary Committee on our side has indicated--they were prepared
to vote on him earlier today. But an objection was raised. Nominees
such as Judge Prado should get our full support, but nominees such as
Priscilla Owen should not.
There is also Judge Cecilia Altonaga. She would be the first Cuban
American woman on the Florida district court. I understand she could be
considered favorably and passed as the first Cuban American woman to
serve on the Florida district court. She had a unanimous vote of the
Judiciary Committee. She could be approved this afternoon. That would
bring the number up to 121.
Earlier today the Senate narrowly voted to confirm Jeffrey Sutton to
a lifetime appointment on the Sixth Circuit. Like far too many of
President Bush's nominees, he was opposed by a broad array of citizens
from across the country because there were many attempts to roll back
rights and protections for people with disabilities, women, minorities,
and older workers.
The drumbeat goes on. This afternoon we begin debate on yet another
extremely controversial nominee--Priscilla Owen. It is shameful and
shocking that the administration is so bent on packing the courts with
nominees such as Jeffrey Sutton and Priscilla Owen, who are so clearly
hostile to the rights and protections that are so important to vast
numbers of Americans.
Many well-qualified, fairminded nominees could easily be found by
this administration if they were willing to give up their rightwing
litmus test. I have mentioned two who are pending that we could be
considering at this very moment.
Priscilla Owen, I don't believe should be favorably considered. Her
record on the Texas Supreme Court is one of activism, unfairness, and
hostility to fundamental rights. I am particularly concerned about her
record on issues of major importance to workers, consumers, victims of
racial discrimination or gender discrimination, and women exercising
their constitutional right to choose.
Justice Owen is one of the most frequent dissenters on her court in
Texas in cases involving workers, consumers, and victims of
discrimination. That she dissents from this court so frequently is
immensely troubling. This court is dominated by Republican appointees
and is known for frequently ruling against plaintiffs. Yet when the
court rules in favor of plaintiffs, only one member of the court,
Justice Hecht, has dissented more often than Justice Owen.
In her dissents, Justice Owen raises new barriers to limit the role
of juries in product liability cases, personal injury cases, and
narrowly construes employment discrimination laws. She has limited the
time period for minors to remedy medical malpractice. She has limited
the ability of individuals to obtain relief when insurance companies
unreasonably, and in bad faith, deny claims. Justice Owen's many
dissents reveal a pattern of far-reaching decisions to limit remedies
for workers, consumers, and victims of discrimination or personal
injury.
What is also very striking is the level of criticism of Justice
Owen's opinions by her colleagues on the court, and efforts to explain
these criticisms away are unconvincing.
We all know judges are often critical of the reasoning of their
colleagues, and occasionally these opinions can be strongly worded.
What stands out here are the frequent statements by her own colleagues
on the court that Justice Owen puts her own views above the law, even
when the law is crystal clear--she does this repeatedly in cases
involving the rights of plaintiffs, or of young women seeking to
exercise their right to choose.
Take Alberto Gonzales, her former colleague on the court, who is now
President Bush's counsel in the White House. In one of her cases
involving the interpretation of Texas' parental notification statute,
Justice Gonzales accused Justice Owen of ``an unconscionable act of
judicial activism.'' In these parental notification cases, Justice Owen
repeatedly grafts barriers to restrict a young woman's right to choose.
She inserts new standards that are based on her own views and not on
the clear language of the statute.
At her hearing, Justice Owen and some of my Republican colleagues
suggested, for the first time, that Justice Gonzales was not referring
to Justice Owen and the other dissenters when he accused Justice Owen
of ``unconscionable activism''
That isn't credible. Justice Gonzales wrote a separate concurring
opinion specifically to defend the majority's opinion and to dispute
the positions taken by the dissenters. He emphasized that the
majority's opinion was based on the language of the Parental
Notification Act as written by the Texas Legislature, and said:
[O]ur role as judges requires that we put aside our own
personal views of what we might like to see enacted, and
instead do our best to discern what the legislature actually
intended.
Justice Gonzales went on to say that, contrary to the legislature's
intent:
[T]he dissenting opinions suggest that the exceptions to
the general rule of notification should be very rare and
require a high standard of proof. I respectfully submit that
these are policy decisions for the Legislature.
It is this narrow construction of the statute, put forward by the
dissenters that Justice Gonzales criticizes as unconscionable activism.
It is obvious--beyond any reasonable doubt--that Justice Gonzales is
referring to the opinions of the dissenters, including Justice Owen.
Similar criticisms of Justice Owen appear repeatedly in other
opinions of the Texas court.
A striking example of the lengths Justice Owen will take to narrow
remedies for plaintiffs is found not in a dissent, but in a disturbing
concurrence in a case called GTE v. Bruce.
In this case, three employees sued GTE for intentional infliction of
emotional distress because of constant humiliating and abusive behavior
of their supervisor. The supervisor harassed and intimated employees,
including through daily use of profanity; screaming and cursing at
employees; charging at employees and physically threatening them; and
humiliating employees by, for instance, making an
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employee stand in front of him in his office for as long as 30 minutes
while he stared at her. The employees suffered from severe emotional
distress, tension, nervousness, anxiety, depression, loss of appetite,
inability to sleep, crying spells and uncontrollable emotional
outbursts as a result of his behavior. They sought medical and
psychological help because of their distress.
GTE argued that the employees could not pursue an intentional
infliction of emotional distress claim in court. They said that the
employees' remedies were limited to worker's compensation. Eight
justices on the Texas court agreed that the Worker's Compensation Act
did not bar the plaintiffs' claims. These justices concluded that the
actions of the supervisor when looked at as a whole were so extreme and
outrageous as to support the jury's verdict of intentional infliction
of emotional distress. Justice Owen, alone, wrote a separate opinion.
While she agreed that there was more than a ``scintilla of evidence''
to support the jury's finding that the supervisor intentionally
inflicted emotional distress on the plaintiffs, she declined to join
the court's opinion because ``most of the testimony that the court
recounts is legally insufficient to support the verdict.'' Justice Owen
then lists all the supervisor's behavior that is not a basis for
sustaining a cause of action.
Justice Owen, alone among all the justices, felt the need to write
separately to adopt as narrow a construction as possible of a
plaintiff's right to recover for a supervisor's outrageous and
harassing conduct. Justice Owen argued at her hearing last July, and
again at her most recent hearing, that she wrote separately simply to
make clear that no plaintiff could recover for any one of these
individual actions standing alone. This is not, however, what Justice
Owen's opinion says. Her opinion draws no such distinction.
Furthermore, it is clear from the majority opinion that the standard is
whether the supervisor's actions ``taken as a whole'' are sufficient to
sustain a claim. Not only is Justice Owen's opinion troubling, but her
answers to the concerns raised seem less than candid.
Justice Owen's record is particularly troubling given the range of
important issues that come before the Fifth Circuit. The Fifth Circuit
is one of the most racially diverse circuits, with a large number of
Latinos and African-Americans. The States in the Fifth Circuit are also
among the poorest. It is vital on this court in particular that a judge
is fair to workers, victims of discrimination, and the personal injury
victims that come before the court. Those who contend that we oppose
Justice Owen simply because she is a Republican appointee miss the
point. I oppose her because I believe she will put her own view above
the law in cases regarding the basic and fundamental rights on which
all Americans have come to rely, including the right to privacy and
equal protection under law.
Not long ago, the Fifth Circuit was hailed as a brave court for
protecting civil rights. When Congress passed the Civil Rights Act in
1964 and the Voting Rights Act in 1965, many States and localities in
the South resisted these measures. Federal judges such as Elbert
Tuttle, Frank Johnson, and John Minor Wisdom, all Republican
appointees, helped to make real the promise of legal equality that was
contained in these important Federal statutes. It is particularly
important that a judge appointed to this Court show a commitment to
civil rights and to upholding constitutional safeguards for all
Americans. I do not believe that Justice Owen is in that proud
tradition of independence and fairness.
Justice Owen's nomination has incited a great deal of opposition from
a broad range of citizens and groups in her home State of Texas. Those
individuals who have observed her on the Texas court, who have been
harmed by her rulings, have written to us in droves opposing her
appointment to the Fifth Circuit. These include the Gray Panthers of
Texas, the National Council of Jewish Women of Texas, the Texas AFL-
CIO, the Texas Civil Rights Project, and the Texas Chapter of the
National Organization for Women. At least 20 attorneys who practice in
Texas have written expressing their opposition. A broad range of
environmental groups also oppose her nomination.
The issues at stake with Justice Owen's nomination go beyond partisan
games. This debate is about lifetime appointments of courts that decide
cases that shape the lives of all American people. Our Federal courts
have made real the fundamental rights guaranteed by the Constitution
and by Federal laws. Federal courts are the backbone of our pluralistic
democracy, helping to ensure that black children have the same access
to education as white children, that a disabled woman has the
appropriate workplace accommodation so that she can help provide for
her family, and that our children can breathe clean air and drink clean
water in their communities. Because the Supreme Court takes less than
100 cases, many of the cases most important to Americans are decided by
lower court judges.
The basic values of our society--whether we will continue to be
committed to equality, freedom of expression, and the right to
privacy--are at issue in each of these controversial nominations. If
the administration continues to nominate judges who would weaken the
core values of our country and roll back the laws that have made our
country a more inclusive democracy, the Senate should reject them.
No President has the unilateral right to remake the judiciary in his
own image. The Constitution requires the Senate's advice and consent on
judicial nominations. It is clear that our duty is to be more than to
rubber-stamp.
I urge my colleagues to vote against Priscilla Owen's nomination.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Alexander). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Talent). Without objection, it is so
ordered.
Mr. McCONNELL. Mr. President, earlier today Senator Hatch asked
consent for a time certain for a vote on the pending Owen nomination.
There was an objection from the other side of the aisle.
I make further inquiry of the assistant Democratic leader if there is
still an objection to limiting debate on this nomination. I yield to
him for a response.
Mr. REID. Mr. President, I say through you to the distinguished
Senator from Kentucky, I don't think we can work out any time
agreement. I have said so publicly. There have been a number of
statements on the floor today. As I told Senator Hatch, there simply
would be no time agreement ever on Priscilla Owen.
Mr. McCONNELL. Mr. President, today we spent a good deal of time
debating the nomination of Justice Priscilla Owen. Prior to today, we
debated her nomination for 2 other days, so for 3 days of valuable
legislative time our colleagues have had the opportunity to come to the
floor and debate. We intend to continue this debate for another 2 days.
But the debate must come to a reasonable end, so I am filing a cloture
motion this evening so we can vote to close debate later this week.
I think we will be ready to vote. After all, Justice Owen was
nominated by the President 2 years ago next week. She has had two
hearings before the Judiciary Committee, over 30 editorials have been
written about her nomination, and nearly all in support of her
confirmation, including the Washington Post on three--three--separate
occasions. There have been countless op-eds and news articles.
Senator Schumer asked earlier today if we on this side of the aisle
expected the Senate to be a rubberstamp for the President's
nominations. The answer, of course, is we do not. We do expect the
Senate to do what the Constitution contemplates, and that is to vote;
to vote yes or no but to vote.
We also expect the Senate to do the right thing by the Constitution,
by this nominee, and by the President of the United States who
nominated her.
Cloture Motion
Mr. McCONNELL. Mr. President, I send to the desk a cloture motion.
The PRESIDING OFFICER. The motion having been presented under rule
XXII, the Chair directs the clerk to report the cloture motion.
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The legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the standing rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 86, the nomination of Priscilla R. Owen of Texas
to be United States Circuit Judge for the Fifth Circuit.
Senators William Frist, Tom Hatch, Kay Bailey Hutchison,
John Cornyn, Mitch McConnell, Jon Kyl, Wayne Allard,
Sam Brownback, Jim Talent, Michael Crapo, Gordon Smith,
Peter Fitzgerald, Jeff Sessions, Lindsey Graham,
Lincoln Chafee, and Saxby Chambliss.
Mr. McCONNELL. For the information of all Senators, this cloture vote
will occur on Thursday of this week. I now ask unanimous consent the
live quorum under rule XXII be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________