[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

[[Page S5466]]

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

[[Page S5468]]

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

[[Page S5470]]

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

[[Page S5471]]

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.

[[Page S5472]]

  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.

                          ____________________