[Congressional Record Volume 149, Number 63 (Wednesday, April 30, 2003)]
[Senate]
[Pages S5516-S5527]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination Of Edward C. Prado

  Mr. LEAHY. Mr. President, I begin by thanking the Democratic leader 
and assistant Democratic leader for going to bat for Judge Edward 
Prado. They

[[Page S5517]]

apparently are now working on an arrangement, that I understand is 
close to being worked out with the Republican leadership, so this 
nomination can be considered without further delay. I appreciate the 
fact that the majority leader and the deputy majority leader, Senator 
McConnell, are going to work with us to do that.
  As I have noted on the floor before, basically before the recess, and 
since, we had checked on our side of the aisle and knew that nobody 
objected to going forward with a vote on Judge Prado. In fact, I 
suspect most are going to vote for him. I was not quite able to figure 
out why there was objection on the Republican side to going forward 
with his nomination. So I thank the leaders for now getting together so 
he will be allowed to go forward.
  I also thank the Congressional Hispanic Caucus for its support for 
this nomination, working with the Senate to go forward.
  I noted on the floor on Monday that Judge Edward Prado, being 
nominated to the United States Court of Appeals for the Fifth Circuit, 
was cleared by all of us on this side; all Democratic Senators serving 
on the Judiciary Committee had voted to report the nomination 
favorably. That is why we were concerned when it was held up on the 
other side.
  We have worked hard to find judges who might be consensus judges, as 
he is. Interestingly enough, Judge Prado was originally appointed by 
Ronald Reagan. He is not a Democrat. He is a Republican. He considers 
himself a conservative Republican, but has a judicial record where he 
fits the test that I and many of us on both sides of the aisle 
certainly thought a judge should meet: When you walk into a courtroom, 
you should be able to look at that judge and say, Whether I am a 
Republican or a Democrat, rich or poor, White or Black, plaintiff or 
defendant, whatever, that judge is going to give me a fair hearing.
  The current occupant of the chair has served as attorney general and 
justice of the Texas Supreme Court and he knows whereof I speak. Anyone 
who spends time in a court knows, looking at a judge, if they are going 
to get a fair shake with the judge or not. We all know there are some 
judges you want to avoid, other judges about whom you say, fine, I have 
to prove my case, but I feel I have a fair chance. I think that is the 
kind of judge Judge Prado will be.
  When the Democrats took over the majority of the Senate in the summer 
of 2001, we inherited 110 judicial vacancies, primarily because during 
the last few years of President Clinton's term Republicans had blocked 
an unprecedented number of judges from going forward. But during the 
next 17 months, we confirmed 100 of President Bush's nominees, 
including some who had been rated as not qualified by the ABA, several 
who were divisive and controversial.
  Forty new vacancies occurred during the normal course of deaths and 
resignations at that time. We still took the 110 vacancies we inherited 
and brought that down to 60, which is considerably less than what the 
Republicans have always referred to as being full employment.
  On the Senate executive calendar, we also have the nomination of 
Cecilia M. Altonaga, of Florida, to be a Federal judge in Florida. She 
will be the first Cuban-American to be confirmed to the Federal bench--
expedited at the request of Senator Graham of Florida. I might say this 
is another case where we are ready to go forward any time he wants. The 
decision has not been made to go forward yet on the Republican side of 
the aisle. We hope to go forward soon. We have cleared that. We have 
cleared her and are happy to go forward.
  Mr. President, we have another nomination before us--again from the 
State of Texas, the State represented ably by the distinguished 
Presiding Officer. We have had really unprecedented debate. We are 
asked to reconsider the nomination of Priscilla Owen to the United 
States Court of Appeals for the Fifth Circuit.
  We have never had a case where President resubmitted a circuit court 
nominee that had already been rejected by the Senate Judiciary 
Committee for the same vacancy. Until a few weeks ago, never before had 
the Judiciary Committee proceeded for a second time on a nominee.
  I have spoken about my concerns relating to Priscilla Owen. I have 
detailed some of the cases in which Judge Owen's views were sharply 
criticized by her colleagues on the Texas Supreme Court. I explained 
why I believe she should not be confirmed to the seat on the Fifth 
Circuit. Today I would like to talk about some more of the cases, 
involving a variety of legal issues, which show Priscilla Owen to be a 
judicial activist, willing to make law from the bench rather than 
follow the language and intent of the legislature.
  I heard Senator Cornyn say the other day that just because you 
disagree with the outcome of a particular case does not give you the 
right to call the judge who wrote it an activist. I agree. I wish more 
Republicans had followed that rule when President Clinton was 
nominating qualified people to the Federal bench and a Republican 
majority was holding them up anonymously and voting against them. There 
are many cases before the courts of this Nation where reasonable 
people, reasonable lawyers and judges, could disagree on the outcome, 
could have a difference of opinion about interpreting a statute. There 
are many times when a statute is ambiguous, or a legal precedent 
unclear, and there is no right or wrong result. I could not agree more 
with the junior Senator from Texas on this fundamental point. I wish 
more Republicans had followed that rule when President Clinton 
nominated qualified people to the Federal bench and anonymous hold 
after anonymous hold was made on the Republican side. They were not 
allowed to go forward.
  It is interesting when we talk about political background of judges. 
Vermont is allowed one seat by tradition on the Second Circuit Court of 
Appeals. New York and Connecticut have the rest of the seats.
  I went to President Clinton when there was a vacancy and recommended 
a sitting Federal judge in our State. He had been a Republican Deputy 
Attorney General--a conservative. I disagreed with some of his 
decisions. I disagreed with his legal reasoning. I thought he did a 
careful and reasoned job. I went to President Clinton knowing that 
there were a number of people who might be considered for that 
position--a number of them leading Democrats in our State. I told the 
President I thought this would make a good person, and it involved the 
nomination which he could rest easy on and not have to worry about. 
Shortly before he was about to make his decision, the Federal judge 
ruled strongly against a position of President Clinton. And when the 
President asked me about that, I said he could have made the ruling a 
week after you sent his nomination up, but that I thought he was 
honest. The President admired his courage, honesty and ability, and he 
nominated him. And this Senate voted as I recall unanimously to put him 
on the Second Circuit Court of Appeals where he does very, very well.
  I voted on hundreds of hundreds of Republicans nominated by 
Republican Presidents. But just as I voted against those nominated by 
Democratic Presidents, I will vote against those nominated by 
Republican Presidents when they show that they are going to be activist 
judges who are not going to follow the law but rather follow the 
dictates of their own philosophy.

  That is why I will continue to oppose Priscilla Owen. I did do as the 
President asked when I was chairman. I held a hearing for her. We had a 
very fair hearing, according to her, and actually put her on the agenda 
for markup on the day the President of the United States requested that 
she be put on. She was put over at a Republican request, but then she 
was voted down by the committee.
  When I look at Justice Owen's record, I am not looking at the outcome 
of the cases in which Justice Owen ruled, and criticizing her as an 
activist just because I do not agree with a ruling or even a couple of 
rulings. I am looking at the substance of a number of her decisions, 
how she approached those cases and the propriety of her legal analysis. 
The conservative justices on the other sides of these cases, in many, 
many of those cases, are themselves extremely critical of her approach, 
her reasoning, her judging--in short, her activism. They have called 
her an activist, said one of her opinions was just ``inflammatory 
rhetoric,'' noted in other cases that she

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went beyond the language of the law, ignored legislative intent, and 
gutted laws passed by the people's elected representatives. Like them, 
I disagree with Priscilla Owen's methods and activist judging.
  In my last statement, I touched on some of the criticism received 
from the majority in the series of parental notification cases. In 
addition to cases dealing with parental notification, Justice Owen's 
activism and extremism is noteworthy in a variety of other cases, 
including those dealing with business interests, malpractice, access to 
public information, employment discrimination and Texas Supreme Court 
jurisdiction, in which she rules against individual plaintiffs time and 
time again.
  In one case that is perhaps the exception that proves the rule, 
Justice Owen wrote a majority opinion that was bitterly criticized by 
the dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 
328, Tex. 2001, Justice Owen wrote a majority opinion finding that the 
city did not have to give the Austin American-Statesman a report 
prepared by a consulting expert in connection with pending and 
anticipated litigation. The dissent is extremely critical of Justice 
Owen's opinion, citing the Texas law's strong preference for disclosure 
and liberal construction. Accusing her of activism, Justice Abbott, 
joined by Chief Justice Phillips and Justice Baker, noted that the 
legislature, ``expressly identified eighteen categories of information 
that are `public information' and that must be disclosed upon request . 
. . [sec. (a)] The Legislature attempted to safeguard its policy of 
open records by adding subsection (b), which limits courts' 
encroachment on its legislatively established policy decisions.'' The 
dissent further protests:

       But if this Court has the power to broaden by judicial rule 
     the categories of information that are ``confidential under 
     other law,'' then subsection (b) is eviscerated from the 
     statute. By determining what information falls outside 
     subsection (a)'s scope, this Court may evade the mandates of 
     subsection (b) and order information withheld whenever it 
     sees fit. This not only contradicts the spirit and language 
     of subsection (b), it guts it. Id.

  Finally, the opinion concluded by asserting that Justice Owen's 
interpretation, ``abandons strict construction and rewrites the statute 
to eliminate subsection (b)'s restrictions.''

  These examples, together with the unusually harsh language directed 
at Justice Owen's position by the majority in the Doe cases, show a 
judge out of step with the conservative Republican majority of the 
Texas Supreme Court, a majority not afraid to explain the danger of her 
activist views.
  I am also greatly concerned about Justice Owen's record of ends-
oriented decision making as a Justice on the Texas Supreme Court. As 
one reads case after case, particularly those in which she was the sole 
dissenter or dissented with the extreme right wing of the court, her 
pattern of activism becomes clear. Her legal views in so many cases 
involving statutory interpretation simply cannot be reconciled with the 
plain meaning of the statute, the legislative intent, or the majority's 
interpretation, leading to the conclusion that she sets out to justify 
some preconceived idea of what the law ought to mean. This is not an 
appropriate way for a judge to make decisions. This is a judge whose 
record reflects that she is willing and sometimes eager to make law 
from the bench.
  Justice Owen's activism and extremism is noteworthy in a variety of 
cases, including those dealing with business interests, malpractice, 
access to public information, employment discrimination and Texas 
Supreme Court jurisdiction, in which she writes against individual 
plaintiffs time and time again, in seeming contradiction of the law as 
written.
  One of the cases where this trend is evident is FM Properties v. City 
of Austin, 22 S.W. 3d 868, Tex. 1998. I asked Justice Owen about this 
1998 environmental case at her hearing last July. In her dissent from a 
6-3 ruling, in which Justice Alberto Gonzales was among the majority, 
Justice Owen showed her willingness to rule in favor of large private 
landowners against the clear public interest in maintaining a fair 
regulatory process and clean water. Her dissent, which the majority 
characterized as, ``nothing more than inflammatory rhetoric,'' was an 
attempt to favor big landowners.
  In this case, the Texas Supreme Court found that a section of the 
Texas Water Code allowing certain private owners of large tracts of 
land to create ``water quality zones,'' and write their own water 
quality regulations and plans, violated the Texas Constitution because 
it improperly delegated legislative power to private entities. The 
Court found that the Water Code section gave the private landowners, 
``legislative duties and powers, the exercise of which may adversely 
affect public interests, including the constitutionally-protected 
public interest in water quality.'' The Court also found that certain 
aspects of the Code and the factors surrounding its implementation 
weighed against the delegation of power, including the lack of 
meaningful government review, the lack of adequate representation of 
citizens affected by the private owners' actions, the breadth of the 
delegation, and the big landowners' obvious interest in maximizing 
their own profits and minimizing their own costs.
  The majority offered a strong opinion, detailing its legal reasoning 
and explaining the dangers of offering too much legislative power to 
private entities. By contrast, in her dissent, Justice Owen argued 
that, ``[w]hile the Constitution certainly permits the Legislature to 
enact laws that preserve and conserve the State's natural resources, 
there is nothing in the Constitution that requires the Legislature to 
exercise that power in any particular manner,'' ignoring entirely 
the possibility of an unconstitutional delegation of power. Her view 
strongly favored large business interests to the clear detriment of the 
public interest, and against the persuasive legal arguments of a 
majority of the Court.

  When I asked her about this case at her hearing in July, I found her 
answer perplexing. In a way that she did not argue in her written 
dissent, at her hearing Justice Owen attempted to cast the F.M. case 
not as, ``a fight between and City of Austin and big business, but in 
all honesty, . . . really a fight about . . . the State of Texas versus 
the City of Austin.'' In the written dissent however, she began by 
stating the, ``importance of this case to private property rights and 
the separation of powers between the judicial and legislative branches. 
. .'', and went on to decry the Court's decision as one that, ``will 
impair all manner of property rights.'' That is 22 S.W. 3d at 889. At 
the time she wrote her dissent, Justice Owen was certainly clear about 
property rights for corporations.
  At her second hearing, I know that Chairman Hatch tried to 
recharacterize the F.M. Properties v. City of Austin case in an effort 
to make it sound innocuous, just a struggle between two jurisdictions 
over some unimportant regulations. I know how, through a choreography 
of leading questions and short answers, they tried to respond to my 
question from last July, which was never really answered, about why 
Justice Owen thought it was proper for the legislature to grant large 
corporate landowners the power to regulate themselves. Again, I am 
unconvinced. The majority in this case, which invalidated a state 
statute favoring corporations, does not describe the case or the issues 
as the chairman and the nominee have. A fair reading of the case shows 
no evidence of a struggle between governments. This is all an attempt 
at after-the-fact justification where there really is none to be found.
  Justice Owen and Chairman Hatch's explanation of the case also lacked 
even the weakest effort at rebutting the criticism of her by the F.M. 
Properties majority. As I mentioned, the six justice majority said that 
Justice Owen's dissent was, ``nothing more than inflammatory 
rhetoric.'' They explained why her legal objections were mistaken, 
saying that no matter what the state legislature had the power to do on 
its own, it was simply unconstitutional to give the big landowners the 
power they were given.
  Another case that concerned me is the case of GTE Southwest, Inc. v. 
Bruce, 990 S.W.2d 605, where Justice Owen wrote in favor of GTE in a 
lawsuit by employees for intentional infliction of emotional distress. 
The rest of the Court held that three employees subjected to what the 
majority characterized as ``constant humiliating and abusive behavior 
of their supervisor'' were entitled to the jury verdict in

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their favor. Despite the Court's recitation of an exhaustive list of 
sickening behavior by the supervisor, and its clear application of 
Texas law to those facts, Justice Owen wrote a concurring opinion to 
explain her difference of opinion on the key legal issue in the case--
whether the behavior in evidence met the legal standard for intentional 
infliction of emotional distress.
  Justice Owen contended that the conduct was not, as the standard 
requires, ``so outrageous in character, and so extreme in degree, as to 
go beyond all possible bounds of decency. . .'' The majority opinion 
shows Justice Owen's concurrence advocating an inexplicable point of 
view that ignores the facts in evidence in order to reach a 
predetermined outcome in the corporation's favor.
  At her first hearing, in answer to Senator Edwards' questions about 
this case, Justice Owen again gave an explanation not to be found in 
her written views. She told him that she agreed with the majority's 
holding, and wrote separately only to make sure that future litigants 
would not be confused and think that out of context, any one of the 
outrages suffered by the plaintiffs would not support a judgment. 
Looking again at her dissent, I do not see why, if that was what she 
truly intended, she did not say so in language plain enough to be 
understood, or why she thought it necessary to write and say it in the 
first place. It is a somewhat curious distinction to make--to advocate 
that in a tort case a judge should write a separate concurrence to 
explain which part of the plaintiff's case, standing alone, would not 
support a finding of liability. Neither her written concurrence, nor 
her answers in explanation after the fact, is satisfactory explanation 
of her position in this case.

  In City of Garland v. Dallas Morning News, 22 S.W. 3d 351, Tex. 2000, 
Justice Owen dissented from a majority opinion and, again, it is 
difficult to justify her views other than as based on a desire to reach 
a particular outcome. The majority upheld a decision giving the 
newspaper access to a document outlining the reasons why the city's 
finance director was going to be fired. Justice Owen made two 
arguments: that because the document was considered a draft it was not 
subject to disclosure, and that the document was exempt from disclosure 
because it was part of policy making. Both of these exceptions were so 
large as to swallow the rule requiring disclosure. The majority rightly 
points out that if Justice Owen's views prevailed, almost any document 
could be labeled draft to shield it from public view. Moreover, to call 
a personnel decision a part of policy making is such an expansive 
interpretation it would leave little that would not be ``policy.''
  Quantum Chemical v. Toennies, 47 S.W. 3d 473, Tex. 2001, is another 
troubling case where Justice Owen joined a dissent advocating an 
activist interpretation of a clearly written statute. In this age 
discrimination suit brought under the Texas civil rights statute, the 
relevant parts of which were modeled on Title VII of the federal Civil 
Rights Act, and its amendments, the appeal to the Texas Supreme Court 
centered on the standard of causation necessary for a finding for the 
plaintiff. The plaintiff argued, and the five justices in the majority 
agreed, that the plain meaning of the statute must be followed, and 
that the plaintiff could prove an unlawful employment practice by 
showing that discrimination was ``a motivating factor.'' The employer 
corporation argued, and Justices Hecht and Owen agreed, that the plain 
meaning could be discarded in favor of a more tortured and unnecessary 
reading of the statute, and that the plaintiff must show that 
discrimination was ``the motivating factor,'' in order to recover 
damages.
  The portion of Title VII on which the majority relies for its 
interpretation was part of Congress's 1991 fix to the United States 
Supreme Court's opinion in the Price Waterhouse case, which held that 
an employer could avoid liability if the plaintiff could not show 
discrimination was ``the'' motivating factor. Congress's fix, in 
Section 107 of the Civil Rights Act of 1991, does not specify whether 
the motivating factor standard applies to both sorts of discrimination 
cases, the so-called ``mixed motive'' cases as well as the ``pretext'' 
cases.
  The Texas majority concluded that they must rely on the plain 
language of the statute as amended, which could not be any clearer that 
under Title VII discrimination can be shown to be ``a'' motivating 
factor. Justice Owen joined Justice Hecht in claiming that federal case 
law is clear--in favor of their view--and opted for a reading of the 
statute that would turn it into its polar opposite, forcing plaintiffs 
into just the situation legislators were trying to avoid. This example 
of Justice Owen's desire to change the law from the bench, instead of 
interpret it, fits President Bush's definition of activism to a ``T.''

  Justice Owen has also demonstrated her tendency toward ends-oriented 
decision making quite clearly in a series of dissents and concurrences 
in cases involving a Texas law providing for a judicial bypass of 
parental notification requirements for minors seeking abortions.
  The most striking example is Justice Owen's expression of 
disagreement with the majority's decision on key legal issues in Doe 1. 
She strongly disagreed with the majority's holding on what a minor 
would have to show in order to establish that she was, as the statute 
requires, ``sufficiently well informed'' to make the decision on her 
own. While the conservative Republican majority laid out a well-
reasoned test for this element of the law, based on the plain meaning 
of the statute and well-cited case law, Justice Owen inserted elements 
found in neither authority.
  Specifically, Justice Owen insisted that the majority's requirement 
that the minor be ``aware of the emotional and psychological aspects of 
undergoing an abortion'' was not sufficient and that among other 
requirements with no basis in the law, she, ``would require . . . [that 
the minor] should . . . indicate to the court that she is aware of and 
has considered that there are philosophic, social, moral, and religious 
arguments that can be brought to bear when considering abortion.'' That 
is In re Doe 1, 19 S.W.3d 249, 256, Tex. 2000.
  In her written concurrence, Justice Owen indicated, through legal 
citation, that support for this proposition could be found in a 
particular page of the Supreme Court's opinion in Planned Parenthood v. 
Casey. However, when one looks at that portion of the Casey decision, 
one finds no mention of requiring a minor to acknowledge religious or 
moral arguments. The passage talks instead about the ability of a State 
to ``enact rules and regulations designed to encourage her to know that 
there are philosophic and social arguments of great weight that can be 
brought to bear.'' That is Casey at 872. Justice Owen's reliance on 
this portion of a United States Supreme Court opinion to rewrite Texas 
law was simply wrong.
  As she did in answer to questions about a couple of other cases at 
her July hearing, Justice Owen tried to explain away this problem with 
an after the fact justification. She told Senator Cantwell that the 
reference to religion was not to be found in Casey after all, but in 
another U.S. Supreme Court case, H.L. v. Matheson. She explained that 
in, ``Matheson they talk about that for some people it raises profound 
moral and religious concerns, and they're talking about the 
desirability or the State's interest in these kinds of considerations 
in making an informed decision.'' But again, on reading Matheson, one 
sees that the only mention of religion comes in a quotation meant to 
explain why the parents of the minor are due notification, not about 
the contours of what the government may require someone to prove to 
show she was fully well informed. Her reliance on Matheson for her 
proposed rewrite of the law is just as faulty as her reliance on Casey. 
Neither one supports her reading of the law. She simply tries a little 
bit of legal smoke and mirrors to make it appear as if they did. This 
is the sort of ends-oriented decision making that destroys the belief 
of a citizen in a fair legal system. And most troubling of all was her 
indicating to Senator Feinstein that she still views her dissents in 
the Doe cases as the proper reading and construction of the Texas 
statute.

  I have read her written answers to questions from Senators after her 
second hearing, many newly formulated, that attempt to explain away her 
very disturbing opinions in the Texas parental notification cases. Her 
record is still her record, and the record is clear.

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She still does not satisfactorily explain why she infuses the words of 
the Texas legislature with so much more meaning than she can be sure 
they intended. She adequately describes the precedents of the Supreme 
Court of the United States, to be sure, but she simply does not justify 
the leaps in logic and plain meaning she attempted in those decisions.
  As I have mentioned with regard to some specific cases, Justice 
Owen's responses at her second hearing failed to alleviate these 
serious concerns nor did Senator Hatch's ``testimony'' at her second 
hearing, where he attempted to explain away cases about which I had 
expressed concern.
  The few explanations offered for the many other examples of the times 
her Republican colleagues criticized her were unavailing. The tortured 
reading of Justice Gonzales' remarks in the Doe case were unconvincing. 
He clearly said that to construe the law in the way that Justice Owen's 
dissent construed the law would be activism. Any other interpretation 
is just not credible.
  Or why in Montgomery Independent School District v. Davis, the 
majority criticized her for her disregard for legislative language, 
saying that, ``the dissenting opinion misconceives the hearing 
examiner's role in the . . . process,'' which it said stemmed from 
``its disregard of the procedural elements the Legislature established 
. . . to ensure that the hearing-examiner process is fair and efficient 
for both teachers and school boards.'' Or why, in Collins v. Ison-
Newsome, a dissent joined by Justice Owen was so roundly criticized by 
the Republican majority, which said the dissent agrees with one 
proposition but then ``argues for the exact opposite proposition . . . 
[defying] the Legislature's clear and express limits on our 
jurisdiction.''
  I have said it before, but I am forced to say it again. These 
examples, together with the unusually harsh language directed at 
Justice Owen's position by the majority in the Doe cases, show a judge 
out of step with the conservative Republican majority of the Texas 
Supreme Court, a majority not afraid to explain the danger of her 
activist views. No good explanation was offered for these critical 
statements last year, and no good explanation was offered two weeks 
ago. Politically motivated rationalizations do not negate the plain 
language used to describe her activism at the time.
  I would like to explain again that Justice Owen has been nominated to 
fill a vacancy that has existed since January, 1997. In the intervening 
5 years, President Clinton nominated Judge Jorge Rangel, a 
distinguished Hispanic attorney from Corpus Christi, to fill that 
vacancy. Despite his qualifications, and his rating of well qualified 
by the ABA, Judge Rangel never received a hearing from the committee, 
and his nomination was returned to the President without Senate action 
at the end of 1998, after a fruitless wait of 15 months.
  On September 16, 1999, President Clinton nominated Enrique Moreno, 
another outstanding Hispanic attorney, to fill that same vacancy. This 
Harvard educated attorney, who received a unanimous well qualified from 
the ABA, did not receive a hearing on his nomination either--for more 
than 17 months. President Bush withdrew the nomination of Enrique 
Moreno to the Fifth Circuit and later sent Justice Owen's name in its 
place. It was not until May of last year, at a hearing chaired by 
Senator Schumer, that the Judiciary Committee heard from any of 
President Clinton's three unsuccessful nominees to the 5th Circuit. 
Last May, Mr. Moreno and Mr. Rangel testified along with a number of 
other Clinton nominees about their treatment by the Republican 
majority. Thus, Justice Owen was the third nominee to this vacancy but 
the first to be accorded a hearing before the committee.

  In fact, when the committee held its hearing on the nomination of 
Judge Edith Clement to the Fifth Circuit in 2001, it was the first 
hearing on a Fifth Circuit nominee in seven years. By contrast, Justice 
Owen was the third nomination to the Fifth Circuit on which the 
Judiciary Committee, under my chairmanship, held a hearing in less than 
one year. In spite of the treatment by the former Republican majority 
of so many moderate judicial nominees of the previous President, we 
proceeded last July with a hearing on Justice Owen and, for that 
matter, with hearings for Judge Charles Pickering. We proceeded with 
committee debate and votes on all three of President Bush's Fifth 
Circuit nominees despite the treatment of President Clinton's nominees 
by the Republican majority.
  President Bush has said on several occasions that his standard for 
judging judicial nominees would be that they ``share a commitment to 
follow and apply the law, not to make law from the bench.'' Priscilla 
Owen's record, as I have described it today, and as we described it a 
few weeks ago in committee and last September, does not qualify her for 
a lifetime appointment to the Federal bench.
  As I have demonstrated many times, I am ready to consent to the 
confirmation of consensus, mainstream judges, and I have on hundreds of 
occasions. But the President has resent the Senate a nominee who raises 
serious and significant concerns. I oppose this nomination.
  Mr. President, 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.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Washington is recognized.
  Mrs. MURRAY. Mr. President, I come to the floor today to join my 
colleagues to discuss the nomination of Priscilla Owen to the Fifth 
Circuit Court.
  Mr. President, someone watching this debate on C-SPAN today might 
wonder why the Senate is spending so much time on a judicial 
nomination. They may watch all our discussions about circuit courts and 
wonder, how does this affect me? Well, the truth is that it affects all 
of us. Our Federal courts impact the opportunities, rights, and lives 
of every citizen, and that is why the appointments to our courts must 
be made with great care.
  Since the founding of our Nation, our courts have changed our 
history, helping us to live up to our ideals as a society by protecting 
our rights and defending our freedoms. Our courts affect us at the 
broadest level, from interpreting environmental standards of clean air 
and water, to guarding important safety and consumer protections.
  Our courts have changed millions of lives at the individual level by 
knocking down barriers. The courts have helped end the segregation of 
our schools, worked to stop discrimination, and protected the voting 
rights of our citizens.
  Mr. President, these decisions don't just happen. They are made by 
people. According to our Constitution, those people are appointed by 
the President and confirmed by the Senate. Today, we are at an 
important step in that constitutional process. I care about our judges 
because I was elected to ensure that the people of my State have 
opportunities and to protect their rights. That is why I work on issues 
such as health care, education, economic development, to give 
Washingtonians opportunities. But those opportunities would mean 
nothing if the basic rights and freedoms of our citizens were 
undermined by judicial decisions.
  This debate is also about the legacy that we leave. As Senators, our 
legacy is not just in the bills we pass or the laws we change, it is in 
the people we approve to interpret those laws. Those judges serve 
lifetime appointments. The precedents they set or break will impact the 
opportunities of American citizens long after all of us are gone.
  So the debate we are having today is part of a process that impacts 
the rights and freedoms of every American, and we have a responsibility 
under the Constitution to carry out our role in this critical process. 
Now, some in the majority may suggest this filibuster is somehow new or 
unique. It is neither. Every Senator is familiar with the filibuster 
process. It is one of the many tools available to every Senator. It has 
been used for decades. It has been used on judicial nominations, and 
even on Supreme Court nominees.
  In fact, a filibuster has been used on judicial nominees by members 
of the current majority party. This is nothing

[[Page S5521]]

new. At the same time, a filibuster is not a step we take often or 
lightly, especially on judicial nominations, but I believe in this case 
it is clearly warranted.
  As I look at what Americans expect from our judges, I see that this 
particular nominee falls far short. Not only that, but this nominee's 
confirmation poses such a risk that the Senate must send a signal we 
will not confirm judges who represent an attack on the basic rights and 
freedoms which the courts themselves must safeguard.
  What are those qualities we look for in those who serve on the 
Federal bench? Qualities such as fairness, trust, experience, 
temperament, and the ability to represent all Americans, and safeguard 
their rights. It is our duty in the Senate to defend these principles. 
We are setting no new precedent with this debate. We are simply 
exercising our right as Senators to defend the principles we believe we 
must defend.
  Why do we feel so strongly about the nomination of Priscilla Owen? 
Justice Owen's record clearly illustrates she fails the test of meeting 
the requirements that she be fair, that she engender trust, that she 
has the proper experience and temperament, or that she has the ability 
to represent all Americans, and safeguard their rights. Justice Owen 
has frequently ignored current Supreme Court precedent and State law in 
favor of imposing her own personal moral and religious beliefs from the 
bench.
  Do not just take my word for it. Let's examine what others, including 
White House counsel Alberto Gonzales, have said about some of Justice 
Owen's decisions. Justice Owen is a vigorous dissenter, and her 
colleagues, including Justice Gonzales, have had a lot to say about her 
opinions. In one, her colleagues described her dissent as ``nothing 
more than inflammatory rhetoric.'' In another instance, Justice 
Gonzales wrote that Owen's dissenting opinion, if enacted, ``would be 
an unconscionable act of judicial activism.''
  Those are pretty strong statements and they provide a window into 
what kind of judge Priscilla Owen would be on the Fifth Circuit.
  It is the judgment of this Senator that Priscilla Owen cannot render 
impartial justice to the people who appear before her court, that she 
will not seek to safeguard individual rights, and that her temperament 
is incompatible with serving on the Fifth Circuit.
  This is not an easy decision for me. Thus far, the Senate has 
confirmed, if my math is correct, 119 of President Bush's judicial 
nominees. By any standard, that is a notable record. We have tried hard 
to work with the administration to fill court vacancies in a fair and 
thoughtful manner. Unfortunately, by every measure, this nomination 
fails the test. If I agreed to put this judge on the Fifth Circuit 
Court, I would not be doing my job of protecting the citizens I am here 
to represent.
  This is a critical debate. It is worth the time it takes because the 
judges we appoint will affect the lives of millions of Americans. We 
have a special responsibility. Let us carry out that responsibility 
well, because our legacy is not just in the laws we pass. It is also in 
the people we appoint who will interpret those laws over a lifetime. 
The precedents they will set or break will live on longer than any of 
us.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Collins). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Madam President, I rise to speak on the pending 
business.
  The PRESIDING OFFICER. The Senator may proceed.
  Ms. CANTWELL. Madam President, I rise as a former member of the 
Senate Judiciary Committee to discuss something that is very important 
to all of us: How we should proceed on nominees for our Federal court 
system. And how we make sure we confirm nominees who will enforce the 
law and not nominees who might seek to bend the law or interpret it to 
their own desires. The American people deserve judges who hold the 
mainstream values of our country and our legal system. They deserve a 
Federal judiciary willing to interpret the laws as they are, rather 
than as the judges might want them to be.
  The American people believe that the Senate needs to do our job. Not 
to be a rubberstamp on nominees, but to thoroughly evaluate judicial 
nominees and determine whether they will continue the tradition of the 
Federal judiciary by being balanced and impartial, and serving as a 
countercheck for the executive branch and for us, the legislative 
branch. That was the role the Founding Fathers gave to the Senate, and 
I believe that is a role the American people think we should play.
  That is why I don't think it is surprising, that 74 percent of the 
public believes that the question of judicial views and judicial 
philosophy should be something we consider in the Senate confirmation 
process, and that we should get answers to questions about judicial 
philosophy from nominees.
  More importantly, a majority of Americans also believe we should not 
vote to confirm a nominee who might otherwise be qualified if we don't 
think their views on these important issues reflect mainstream American 
viewpoint. I believe that the nominee we are debating, Justice 
Priscilla Owen, fails to meet this test.
  As a former member of the Judiciary Committee, I attended a hearing 
on Priscilla Owen that lasted a full day. During that hearing, Owen's 
record showed a particular disregard for precedent and the plain 
meaning of the law.
  Anyone who walks into a courtroom as a plaintiff or a defendant in 
this country should do so having the full confidence that there is 
impartiality on the part of the judge on the bench. They should have 
total confidence that the rule of law will be followed, and believe the 
issues will be judged on their merits rather than viewed through the 
prism of an individual judge's personal values or beliefs.
  There is reason to be concerned about the record of Priscilla Owen. 
Time after time, even her own Republican colleagues, on a predominantly 
Republican Texas Supreme Court bench, criticized her for failing to 
follow precedent or interpreting statutes in ways that ignore the clear 
intent of the law. Just yesterday a key newspaper in her State, the 
Austin American Statesman, wrote:

       Owen is so conservative that she places herself out of the 
     broad mainstream of jurisprudence. She seems all too willing 
     to bend the law to fit her views.

  I ask unanimous consent to have that editorial printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From American-Stateman, Apr. 29, 2003]

              Owen Deserves a Note But Not a Confirmation

       The U.S. Senate is expected to resume debate soon over 
     President Bush's nomination of Texas Supreme Court Justice 
     Priscilla Owen to the 5th U.S. Circuit Court of Appeals, 
     which hears federal appeals from Texas, Louisiana and 
     Mississippi. We have argued before that she deserved a 
     hearing, and she finally got one from the Senate Judiciary 
     Committee. That said, however, she should not be confirmed.
       There's no question that Owen is qualified for the 5th 
     Circuit by her legal training and experience. She was a 
     standout at the top of her Baylor University Law School 
     class; she became a partner at a major Houston law firm, 
     Andrews & Kurth, where she practiced commercial litigation 
     for 17 years; and she was elected in 1994 to the Texas 
     Supreme Court, and re-elected in 2000. She received the 
     highest rating, ``well-qualified,'' from an American Bar 
     Association committee that reviews judicial nominations.
       But Owen is so conservative that she places herself out of 
     the broad mainstream of jurisprudence. She seems all too 
     willing to bend the law to fit her views, rather than the 
     reverse.
       One example was the state Supreme Court's interpretation of 
     the then-new Parental Notification Act regarding abortions 
     sought by minors. In early 2000, the nine justices, all 
     Republicans, took up a series of ``Jane Doe'' cases to 
     determine under what circumstances a girl could get a court 
     order to avoid telling a parent that she intended to get an 
     abortion.
       Owen and Justice Nathan Hecht consistently argued for 
     interpretations of the law that would make it virtually 
     impossible for a girl to get such an order.
       Finally, in one Jane Doe case, another justice complained 
     that ``to construe the Parental Notification Act so narrowly 
     as to eliminate bypasses, or to create hurdles that simply 
     are not to be found in the words of the statute, would be an 
     unconscionable act of judicial activism.''

[[Page S5522]]

       The justice who wrote that was Alberto Gonzales, who is now 
     Bush's general counsel.
       Owen also could usually be counted upon in any important 
     case that pitted an individual or group of individuals 
     against business interests to side with business.
       Owen is being appointed to a lifetime position in the 
     judicial branch of government, not to a post in which her 
     duty is to carry out the will of the president. And given the 
     narrowness of his 2000 election victory, Bush is not in a 
     position to argue that the public has said it wants ultra-
     conservative judges.
       If the Senate Democrats invoke their power to filibuster, 
     Owen would be the second judge nominated by Bush to be 
     blocked in such a way. The other is Miguel Estrada, who was 
     nominated to the U.S. Circuit Court of Appeals for the 
     District of Columbia, and who Democrats suspect is a radical, 
     ideological conservative.
       Democrats are not blindly opposing all of the president's 
     judicial nominees. Many have been confirmed by the Senate, 
     and others have won committee approval without controversy, 
     including Edward Prado of San Antonio, a federal district 
     judge who was nominated to the 5th Circuit.
       But Owen should not be confirmed.

  Ms. CANTWELL. What some of Owen's colleagues on the bench have said 
about her opinions I think is important. In a case dealing with a 
developer seeking to evade Austin's clean water laws, her dissent was 
called ``nothing more than inflammatory rhetoric.''
  In another case, her statutory interpretation was called 
``unworkable.'' In yet another case, the dissent she joined was called 
``an unconscionable act of judicial activism.''
  Some of our other colleagues have already mentioned that particular 
quote. One of the reasons we all find it somewhat unbelievable is the 
fact that it was made by her then-colleague on the Texas Supreme Court, 
now the White House General Counsel Alberto Gonzales, who is in charge 
of pushing her nomination.
  But the criticism of Owen comes not only from her colleagues but from 
across the country. The San Antonio Express calls her nomination 
misguided. The Atlanta Journal called the Judiciary Committee's 
original objection to her nomination ``the right decision for the 
American people.'' The New York Times wrote last week that it was 
abundantly clear at her hearing that her ideology drives her decisions. 
The Kansas City Star even said there are better nominees and better 
ways for the executive branch to spend its time than re-fighting these 
battles.
  There is another reason this nomination is so important. I believe 
this is critical to all the nominees we are considering for appointment 
to the Federal bench. That is, what is the judicial philosophy and 
commitment to upholding current law as it relates to a citizen's right 
to privacy. I asked Justice Owen at her hearing about her beliefs on 
the right to privacy. I asked her if she believed there was a 
constitutional right to privacy and where she found that right in the 
Constitution.
  She declined at the time to answer that question without the relevant 
case information and precedents before her. When Senator Feinstein 
followed up with a similar question, Owen again would not answer 
whether she believes a right to privacy does exist within the 
Constitution.
  The question of whether a nominee believes that the right to privacy 
exists with regard to the ability to make decisions about one's own 
body is only the tip of the privacy iceberg. I believe that we are in 
an information age that poses new challenges in protecting the right to 
privacy. We are facing difficult issues including whether U.S. citizens 
have been treated as enemy combatants in a prison without access to 
counsel or trial by jury, whether businesses have access to some of 
your most personal information, whether the Government has established 
a process for eavesdropping or tracking U.S. citizens without probable 
cause, and whether the Government has the ability to develop new 
software that might track the use of your own computer and places where 
you might go on the Internet without your consent or knowledge. There 
are a variety of issues that are before us on an individual's right to 
privacy and how that right to privacy is going to be interpreted. A 
clear understanding of a nominee's willingness to follow precedent on 
protecting privacy is a very important criteria for me, and it should 
be a concern for all Members.
  Of course, some of my concern and skepticism about Justice Owen's 
views on privacy results from the opinions she wrote in a series of 
cases interpreting the Texas law on parental notification. In 2000 the 
State of Texas passed a law requiring parental notification. But they 
also included a bypass system for extreme cases.
  Eleven out of 12 times Owen analyzed whether a minor should be 
entitled to bypass the notice requirement, she voted either to deny the 
bypass or to create greater obstacles to the bypass.
  Owen wrote in dissent that she would require a minor to demonstrate 
that she had considered religious issues surrounding the decision and 
that she had received specific counseling from someone other than a 
physician, her friend, or her family. Requirements, I believe, that go 
far beyond what the Texas law requires.
  In interpreting the ``best interest'' arm of the statute, Owen held 
that a minor should be required to demonstrate that the abortion 
itself--not avoiding notification--was in the individual's best 
interests. In this particular case, I think she went far beyond what 
the statute required.
  Where does that put us? Women in this country rely on the right to 
choose. It is an issue on which we have had 30 years of settled law and 
case precedent. In the Fifth Circuit, there are three States that 
continue to have unconstitutional laws on the books, and legislatures 
that are hostile to that right to choose. The Federal courts are the 
sole protector of women's right to privacy in these states. I do not 
believe that the rights of the women of the Fifth Circuit can be 
trusted to Justice Priscilla Owen.
  Owen's rulings on privacy and not following precedent raise grave 
concerns. But this is not the only area where Justice Owen has been 
criticized. She also has been criticized in areas of consumer rights 
and environmental law.
  The Los Angeles Times singles her out as a nominee who disdains 
workers' rights, civil liberties and abortion rights. And even a 
predominantly Republican court--one considered by legal observers and 
scholars to be one of the most conservative in this country--Justice 
Owen still seems to go further than a majority on that court. Time 
after time, Justice Owen has ruled in favor of business interests over 
working people, against women, against victims of crime and negligence, 
and against the environment. Over a career a judge can have many 
controversial cases. But, as the Austin Statesman points out, Justice 
Owen is widely known as a nominee that ``could usually be counted on to 
side in any important case that pitted an individual against business 
interests to side with business.''

  I don't think that is the type of representation that we want to have 
on our courts. Her controversial rulings include an opinion that a 
distributor who failed to conduct a background check on a salesman was 
not liable for the rape of a woman by that salesman.
  In a case challenging the ability of Texas cities to impose basic 
clean water control, she held the legislature had the power to exempt a 
single developer from city water pollution controls by allowing the 
developer to write their own water pollution plan. The majority called 
her dissent ``nothing more than inflammatory rhetoric.''
  There are other cases dealing with Texas public information law which 
I think are important for all of us, for all of our citizens to have 
access to public information.
  She wrote that a memo prepared by a city agency about an employee 
should not be subject to disclosure under the Texas Public Information 
Law because it discussed ``policy,'' an exemption that a majority of 
others on the board said would be ``the same as holding there is no 
disclosure requirement at all.''
  In another similar case about public information laws, she held that 
a report prepared by the city of Houston and financed by taxpayers 
could not be disclosed under the Texas Public Information Act. Again, 
her colleagues criticized her decision not only as ``contradicting the 
spirit and language of the statute, but gutting it.''
  It is possible to find cases or points to argue in the record of 
almost any judge, but because of the reaction of her own colleagues to 
her decisions. I find the constant criticism and rebukes that run 
through the opinions of

[[Page S5523]]

Owen's colleagues surprising. They consistently indicate that they 
think she has overstepped or misinterpreted the law to such a degree 
that they have used the words ``gutting'' or ``judicial activism'' or 
``overreaching.''
  As do many of my colleagues, I believe that we should move off this 
nomination and on to more important matters. We in the Northwest have 
an economy that has failed to recover. We in America are looking for an 
economic plan to move our country forward. There are many issues of 
national security that we must continue to debate.
  I think that we could do better than renominating Priscilla Owen, and 
others who have already been rejected by a previous Senate Judiciary 
Committee. The fact that we are even debating this nominee is 
unprecedented. While I respect the President's right to renominate her, 
I find his decision to do so given the breadth of opposition and 
genuine questions that have been raised by her troubling.
  The American public cares about us doing our job on nominees. It 
cares about us asking the right questions. It cares about us making 
sure that judicial nominees are following important laws that are 
already on the books. I believe the majority of Americans are becoming 
more and more concerned about their right to privacy and how it might 
be protected in the future.
  With all the issues that we are facing on our judicial nominees, I 
say to my colleagues that it is time to move off this nominee--not to 
move forward on it and instead to the important business that needs to 
be done for this country and specifically for the Northwest.
  I ask my colleagues to oppose the motion to proceed to a vote on this 
nomination and turn instead to the business that the people of America 
want us to address: our economic livelihood and how we can all work 
together to provide better opportunities for Americans.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Thank you, Madam President.
  I think it was a young kid who turned to ``Shoeless Joe'' Jackson 
when members of the Chicago White Sox were charged with corruption in 
baseball and said, ``Say it ain't so, Joe.''
  Tell me that we are not back again in these hallowed halls visiting 
the issue of a nomination of a circuit court judge, trying to do what 
the Constitution has given us the authority to do since the birth of 
this magnificent country, the right to advise and consent but 
ultimately to choose, to advise and consent and cast your vote up or 
down for a judicial nomination.
  I am here to talk about the nomination of Texas Supreme Court Justice 
Priscilla Owen to sit on the U.S. Court of Appeals for the Fifth 
Circuit in support of that nomination.
  The American public is going to hear these facts again and again. 
They are going to hear about Judge Owen, who has been unanimously rated 
well qualified by the American Bar Association, which my colleagues on 
the other side have called the gold standard in the past; the way you 
want to measure; you don't want to measure them by political 
affiliation, you don't want to measure them by what an interest group 
thinks.
  The American Bar Association, certainly not a bastion of conservative 
American values, unanimously has rated Justice Owen as well qualified. 
She comes before us with a history of serving presently as a justice on 
the Texas Supreme Court. She has been partner at a law firm and has 
handled a broad range of legal matters. She has been admitted to 
practice at various State and Federal trial courts.
  She is a leader in her community. I understand she teaches Sunday 
school. She serves as the head of an altar guild. She is a great 
American. She is well qualified. She has an opportunity now to serve on 
the Federal bench. And all that is being sought is for this Senate to 
do its constitutional duty.
  I have made some of these remarks in regard to the Estrada 
nomination, and we may well be getting back to that. I fear we are 
getting back to another filibuster, with my colleagues on the other 
side not allowing the Senate to do its business.
  We have a lot of business to do in America. These are difficult times 
and challenging times. We have just seen the miracle of the American 
military do great things in Iraq. But there is work to be done, and our 
citizens at home are worried about jobs and worried about health care, 
worried about the future. We need to get to those issues. We can get to 
those issues if we simply do our business and move on.
  If you do not support Priscilla Owen, if you do not think she has the 
qualifications, if you do not agree with her principles, vote against 
her, but give us a chance to have a vote. That is my concern.
  What we are doing here, and what we saw first happen with the Estrada 
nomination--and I fear we are stepping into the same swampland--is we 
are undermining the Constitution of this great country. The 
Constitution is one of those certifiable miracles of the modern age. It 
has flourished and survived for 214 years. And I think providence has 
inspired it. When you think how delicate and finely balanced the 
document is, it has survived a Civil War, and several wise and unwise 
attempts to amend it, and many constitutional crises. That is our 
strength. I think our adversaries do not understand the strength of 
this country lies in this remarkable document and the care of our 
leaders to live within its boundaries.
  That is why an attempt to tamper with this delicate balance of power 
must be met with suspicion, and repelled with conviction. I said that 
in regard to Miguel Estrada. I say that in regard to Priscilla Owen: An 
attempt to tamper with the delicate balance of the Constitution must be 
met with suspicion and repelled with conviction.
  We have the opportunity to have endless debate in this body, but, in 
the end, in the history of this country, we have had circuit court 
nominees getting a chance to be voted on. The Estrada nomination set a 
terrible new trend, one I hope we overcome. Never before have we had a 
partisan filibuster of a circuit court nominee, and now it appears we 
have not one but two. Say it ain't so. Say it ain't so.
  I told a story in regard to the Estrada nomination. I want to repeat 
that story. It is a true story. A friend of mine who worked here for 
many years gave it to me. He told me, many years ago, when the Senate 
was the Supreme Court's upstairs neighbor in this building, a 
significant event took place which provides us with a further warning. 
A young architect of the Capitol wanted to improve the sight lines in 
the Supreme Court Chamber on the first floor.

  Calculating that one of the supporting pillars was unnecessary, he 
brought in a crew to remove it from that Supreme Court Chamber. Halfway 
through the project, the ceiling fell in on the Supreme Court Chamber, 
which was also the floor of the Senate above, destroying both Chambers 
for a while.
  The lesson is when you tamper with one branch of Government, it can 
affect the others in ways you cannot anticipate. That is what is really 
going on here.
  The Constitution of the United States gives this Senate the important 
authority to advise and consent, and we do it by a majority vote. 
Treaties, on the other hand, require a supermajority. But when you have 
a filibuster, as we have seen with Estrada, and we now, I fear, will 
see with Priscilla Owen--and I hope not and again say: Say it ain't 
so--what happens is we are changing the constitutional standard.
  You have to think about some of the consequences. Some of the obvious 
ones. There may be some we do not see today. One of them is if this is 
now the standard, that you need 60 votes, we are not going to get 
qualified and talented people to serve on our highest courts in the 
land. They are not going to make it through. I dare say, Justice Scalia 
would probably not make it through. Ruth Bader Ginsburg, a liberal 
Supreme Court Justice, who graduated from the same high school I 
graduated from in Brooklyn, New York, James Madison High School, may 
not have made it through. Anybody who has been out there articulating a 
particular position, a perspective, would not make it through.
  Here is the fallacy of the argument of my distinguished colleagues on 
the other side. They want fealty to their judicial philosophy. They 
want the candidate to say: Here is a principle in

[[Page S5524]]

which I believe, and you have to tell me you believe in that. But that 
is not what our system is supposed to be. What judges are supposed to 
do is not to say this is their own vision and their own view and their 
own philosophy, and regardless of what the constitution says, that is 
what they are going to apply. What the Constitution requires, what 
rules of court require, what we as Americans should require is that 
judges simply uphold the Constitution and to say they will follow 
established case law, that they will follow established precedence, by 
the way, even if they do not agree with it.
  That is what we require of judges. It is not about taking your own 
judicial philosophy and kind of driving it forward, come heck or high 
water. It is about a willingness and a commitment to uphold judicial 
precedent. That is what Justice Owen understands. That is what she 
represents. That is what Miguel Estrada represents.
  We have business to pursue, important business. But of all the things 
we do, if we take this Constitution and we disregard it, if we, in the 
halls of this Senate Chamber, in the year 2003 simply say we are going 
to cast the Constitution aside, we are going to set a new standard--not 
a majority but a supermajority, 60 votes--that we on one side--and this 
time it is my distinguished colleagues across the aisle; they are going 
to turn down folks because they are not pledging abeyance, not giving 
fealty to their philosophy; and down the road, if there is a Democrat 
President who puts forth candidates, if the folks on our side say, hey, 
the rules have been changed, the Constitution, we are no longer 
listening to it, it is now 60 votes, and we are not going to approve 
anybody who is a Democrat who has some philosophies different than our 
own--our country is going to be in deep trouble.
  I hope I get to serve in this institution a long time. The people of 
the State of Minnesota have given me an opportunity to serve. They have 
given me at least 6 years. But I will tell you, I will try to conduct 
myself in a way that when a candidate comes forward, I apply the same 
standard, whether that candidate is being put forth by a Republican 
President or a Democratic President. That standard is pretty simple: 
Are they willing to commit themselves to follow established case law. 
Do they have the right kind of judicial temperament. And--again, we 
have the American Bar Association giving the gold standard--then we 
should not be having these debates right now. Again, let us be very 
wary of efforts to change the constitutional standards.
  Let us discuss the merits of these nominees, their qualifications, 
judicial temperament, but then let us follow the constitutional process 
we have followed for two centuries and vote yes or no on our advice and 
consent to the President's nominee to the court of appeals.
  I hope, Madam President, we give Justice Owen that right. I am going 
to be voting yea. My colleagues on the other side may disagree and vote 
nay, but let's make sure we get a vote, that we do not change the 
constitutional standard.
  Madam President, I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Michigan.
  Ms. STABENOW. Mr. President, I rise to discuss the nomination of 
Priscilla Owen to the Fifth Circuit Court of Appeals. I begin by 
saying, as have others, that the Senate has a constitutional obligation 
to advice and consent on a Federal judicial nominee. This is a 
responsibility I take seriously, as do my Senate colleagues from both 
sides of the aisle. Unlike other nominations that come before the 
Senate such as ambassadorships or executive nominees, Federal judicial 
nominations are lifetime appointments. These are not decisions that 
will affect our courts for 3 years or 4 years but, rather, 30 years or 
40 years, making it even more important that the Senate not act as a 
rubberstamp.
  Having said that, to review the record of where we are under this 
President and his judicial nominations, to date the Senate has 
confirmed 119 Federal justices and rejected two--not exactly a partisan 
example of how we are moving forward on judgeships: 119 approved; two 
rejected. Ironically, one of those already rejected is the person now 
in front of the Senate again.
  As a part of the important responsibility we have, I have examined 
Justice Owen's record. I am concerned that this is a nominee who has 
repeatedly disregarded the language of the law and has instead 
substituted her own political and personal views. This is a nominee who 
has been criticized by her own Republican colleagues on the bench for 
being a judicial activist. She is one who has consistently overreached 
in her decisions to justify her extreme personal positions.
  I begin by talking briefly about the Texas Supreme Court. In Texas, 
Supreme Court judges are elected for 6-year terms. They run as party 
candidates, as they do in many States, as Republicans or Democrats. 
This is a conservative court and currently an all-Republican court. 
This is important because when one reads Texas Supreme Court opinions, 
Justice Owen is outside of the mainstream even among those of her own 
party who have been recognized as serving on a conservative court.
  In fact, a review of the court's opinions shows that since Justice 
Owen joined the court in January of 1995 through June of 2002, just 
prior to her July 2002 judicial committee hearing, she was the second 
most frequent dissenter among the justices then serving on the court. 
The content of these dissents also shows that she is often out of touch 
with the law and significantly more extreme than her Republican 
colleagues on the court.
  For example, in the 12 cases before her involving minors seeking 
judicial bypass to obtain an abortion under Texas parental notification 
laws, Owen joined the majority in granting a bypass only once. That was 
a case which was decided after her nomination to the Fifth Circuit.
  In re Jane Doe 1, where a bypass was granted, the Republican majority 
opinion sharply rebuked Owen and the other dissenter's attempts to 
substitute their own personal views for the law instead of interpreting 
the law itself. They stated:

       We recognize that judges' personal views may inspire 
     inflammatory and irresponsible rhetoric. Nonetheless, the 
     issue's highly charged nature does not excuse judges who 
     impose their own personal convictions into what must be a 
     strictly legal inquiry.

  Those are harsh words.

       As judges, we cannot ignore the statute or the record 
     before us. Whatever our personal feelings may be, we 
     must respect the rule of law.

  How many times have we heard colleagues speak about respecting the 
rule of law? Here was someone rebuked by her own Republican colleagues 
for not respecting the rule of law.
  In a concurring opinion on the same case, then Justice Alberto 
Gonzales, the Bush administration's current White House counsel, 
described the dissenters, including Justice Owen, as attempting to 
engage in ``an unconscionable act of judicial activism.'' These are the 
words of the current White House counsel when he was serving with her, 
that she attempted to engage in ``an unconscionable act of judicial 
activism.'' Those are very powerful words.
  This criticism is very serious. It does not come from Senators. It 
comes from Justice Owen's own Republican colleagues. That is 
significant.
  In another parental notification case, In re Jane Doe 3, the minor 
testified that her father was an alcoholic who would take out his anger 
toward his children by beating the mother. Justice Owen once again 
substituted her own personal views for the law and would have required 
a higher evidentiary standard for showing the possibility of abuse 
under the law. Republican Justice Enoch wrote, specifically to rebuke 
Justice Owen and her fellow dissenters for misconstruing the definition 
of the sort of abuse that may occur under the bypass law--a Republican 
colleague on the bench--``Abuse is abuse. It is neither to be trifled 
with nor its severity to be second-guessed.''
  Justice Owen's judicial activism extends way beyond these cases. 
Justice Owen has been out of step with Republican justices of the Texas 
Supreme Court on everything from environmental cases to consumer 
protection to workplace discrimination cases. In Read v. Scott Fetzer, 
Kristi Read was raped in her home by a door-to-door salesman hired by 
the Kirby vacuum distributor. If the distributor had conducted a 
background check or even checked the salesman's employment references, 
they would have learned

[[Page S5525]]

that women at his previous places of employment had complained about 
his sexually inappropriate behavior and that he had pled guilty to a 
charge of sexual indecency with a child and was fired as a result of 
that incident.
  The Republican majority in this case ruled that the victim was 
entitled to damages from the distributor that hired the salesman. 
Justice Owen, however, joined a dissenting opinion saying the victim 
was not entitled to any damages from the distributor, arguing that 
since the salesman was considered an independent contractor, the 
distributor had no duty to perform any background checks. This is yet 
another example where Priscilla Owen is out of step with even her 
colleagues on the Texas Supreme Court, much less mainstream America.
  President Bush has said he wants judges who are not judicial 
activists and who will interpret the law, not make the law. Justice 
Owen fails this test by any measure. When one examines Justice Owen's 
record, her pattern of judicial activism becomes clear.
  During her tenure on this conservative Republican court--and I say 
that only to say that these were Republican colleagues on the court who 
were making the statements about the inappropriate judicial activism--
Justice Owen has dissented in 66 cases and has been criticized by her 
colleagues, including White House Counsel Alberto Gonzales, on the 
bench for her judicial overreaching.
  This is a nominee who has been divisive not only on the Texas Supreme 
Court but in the U.S. Senate. I have received over 2,500 letters and e-
mails from my constituents in Michigan opposing Priscilla Owen's 
nomination. I have received letters from over 60 different 
organizations, including civil rights groups, advocacy groups, women's 
groups, environmental groups, and other citizens opposing this 
nomination.
  In addition, Justice Owen's nomination was rejected last year by the 
Senate Judiciary Committee, and her reconsideration is unprecedented. 
Never before has a nominee been voted on and rejected by the committee 
or the Senate and subsequently renominated for the same seat.
  Mr. President, I urge my colleagues to say yes to a balanced Federal 
judiciary that will interpret and not make the law, and to say no to 
the Owen nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I want to share some comments about 
Priscilla Owen. I could not disagree with my distinguished colleague 
more. Priscilla Owen, I believe, is one of the great justices in 
America. She has served on the Texas Supreme Court with distinction. 
She has received support from all the Texas Supreme Court judges. They 
like and admire her. She has an extraordinary record--a record of 
public service and private litigation.
  Her background and study capabilities have been reviewed by the 
American Bar Association--the gold standard, the Democrats tell us, for 
whether or not a person should be confirmed. They have--15 lawyers--
reviewed her record. I think it is normally 15. They are lawyers in the 
community and others who review the record. They interviewed litigants 
who come before Judge Owen. They interviewed her law partners in the 
firm where she worked as a private attorney. They interviewed opposing 
lawyers in cases she was on, judges in the community who know her, 
leaders of the bar association and presidents of the bar association. 
They evaluate whether or not a judge is a fair and objective judge. 
After a complete evaluation of this excellent jurist's career, they 
have unanimously voted that she is ``well qualified,'' which is the 
highest rating they can give.
  So to come in here and say she is an ``extremist'' who will not 
follow the law and abuses the law is simply not correct. To just say 
that she dissents on cases is not fair. Great judges who love the law 
and care about the law tend to dissent more. It is easy just to sign on 
to majority opinions. Judges who really care and are really concerned 
tend to review opinions and offer either concurring opinions or 
objections. Oftentimes, that is a great compliment--that the jurist is 
concerned about the law and wants to do it right.

  Prior to her election in 1994 to the Supreme Court of Texas, she was 
with the Houston law firm of Andrews and Kurth, where she practiced 
commercial litigation for 17 years. In private practice, she handled a 
broad range of civil matters at both the trial and appellate levels. 
She was admitted to practice before various State and Federal courts, 
as well as U.S. courts of appeals--Federal courts--for the Fourth, 
Fifth, Eighth, and Eleventh Circuits. She is nominated to be a member 
of what I call the old Fifth Circuit. Alabama and Georgia used to be in 
the Fifth and they split.
  Priscilla Owen is a member of the American Law Institute, American 
Judicature Society, American Bar Association, and a Fellow of the 
American and Houston Bar Foundations. She was elected to the Supreme 
Court of Texas in 2000, garnering 84 percent of the vote, having been 
endorsed by every major newspaper in Texas. A pretty good record. Is 
this the record of some sort of extremist? No, it is not.
  She served as a liaison to the Supreme Court of Texas's Court-Annexed 
Mediation Task Force, and that is a good thing. We need to have more 
mediation and conciliation and less litigation, frankly. I am glad to 
see she is concerned with that. She has been on statewide committees on 
providing legal services to the poor and pro bono legal services. She 
was part of a committee that successfully encouraged the Texas 
Legislature to enact legislation that has resulted in millions of 
dollars a year in additional funds for providers of legal services to 
the poor.
  Priscilla Owen also served as a member of the board of the A.A. White 
Dispute Resolution Institute. Additionally, Judge Owen was instrumental 
in organizing a group known as Family Law 2000--an interesting group. 
It seeks to find ways to educate parents about the effects a 
dissolution of a marriage can have on children, and to lessen the 
adversarial nature of legal proceedings while a marriage is being 
dissolved. This is a lady who cares about children, who cares about 
families, and wants to do the right thing for them.
  Among her community activities, Justice Owen served on the Board of 
Texas Hearing and Service Dogs for the Disabled. She is a member of the 
St. Barnabas Episcopal Mission in Austin, TX, where she teaches Sunday 
school and serves as head of the altar guild. I guess some might think 
that maybe she is too religious. We are hearing complaints about that 
today. I, frankly, think that being a member of the Episcopal mission, 
serving on the altar guild, and being a Sunday school teacher is an 
honorable thing to be recognized and is a positive contribution to the 
community. I suggest it demonstrates certain values.
  She has a tremendous academic record. She earned her bachelor's 
degree cum laude from Baylor University, where she also graduated from 
law school, in 1977, cum laude with honors. She was a member of the 
Baylor Law Review, for graduating seniors or juniors to participating 
in the school's law review, is the highest honor a good law student can 
receive. It goes beyond grades, but grades are an important part of it. 
She was honored as the Baylor Young Lawyer of the Year and received the 
Baylor University Outstanding Young Alumna award.
  If anybody has any doubts about her abilities--and you cannot always 
tell from grades--she made the highest score in the State of Texas on 
the bar exam. I am telling you, they have people from Harvard, Yale, 
the University of Texas, and all of those schools taking this exam. She 
made the highest score on the Texas bar exam. I suggest to you there 
were some talented people taking that exam. She made the highest 
possible score. She has the intellectual capabilities that everybody 
who knows her says she has.
  So what does this boil down to? It boils down to a complaint about 
her interpretation of a poorly written--because I was at the committee 
hearing--Texas statute dealing with parental notification. The Supreme 
Court of the United States and 80 percent of the American people 
believe that if a young minor, a child, is contemplating an abortion, 
she ought not to be able to go to the abortion doctor and have that 
done without at least notifying her parents.

[[Page S5526]]

  Parents love children. I know there are some parents who are abusive 
and there are difficult circumstances, but most parents are not that 
way. Most parents love their children. Most parents would be helpful to 
a child who has difficulties and most parents would be able to discuss 
that with them in a rational way.
  The Texas law was attempting to provide that. It was not a bad law, 
but it was not written with sufficient clarity that a group of judges 
could get together and always agree on exactly what it meant. Anybody 
here knows if someone practices law that those circumstances happen. So 
this is basically what the complaint about her is, over this one 
subject.
  A parental notification law says a parent of a young minor girl 
seeking an abortion should be notified if the teenager is going to have 
the abortion. Notification does not mean a parent has to agree to the 
abortion, or to even say it is okay. That would be a consent 
requirement. Parental notification laws do not require consent. 
Notification is simply telling a parent a child is about to undergo a 
major medical procedure.
  School teachers will not allow a child to take an aspirin without 
calling the parent, and yet the pro-abortionists think it is perfectly 
all right for a 13, 14 or 15-year-old, who has gotten themselves in 
trouble, gotten themselves pregnant, that they should not even tell 
their parents and go off with some older man perhaps and conduct this 
procedure. That is the sad reality of it.
  So even if a parent were to object to this abortion, the teenager 
could still go forward with it. It would not stand in the way of them 
going to an abortion clinic.
  Eighty percent of Americans believe that it is appropriate that 
parents should get notification. Let me explain how these laws work in 
Texas. If a teenage girl becomes pregnant and does not want to follow 
the notification law to give her parents an FYI, she is allowed to 
petition the court for a waiver. In other words, she can go to the 
court and say, judge, I do not want to have to tell my parents I am 
pregnant and I am contemplating an abortion. Tell me I do not have to 
do so. Give me authority not to do so.
  She might want the waiver for several reasons. She might be afraid to 
tell her parents because she is afraid they would become angry or 
because there might be violence.
  A teenage girl is given an opportunity to explain to a trial judge 
what her problem with notification is and to demonstrate to the judge 
she is mature enough to make a decision on her own. That is what the 
Texas law provides. A trial court hears that and he observes the 
teenager. The trial judge sees the teenager personally and is able to 
enter into a discussion and colloquy with her. After discussing the 
steps she has taken to become informed, such as talking to a counselor 
or considering alternatives to an abortion, the judge makes a decision 
on whether or not the waiver should be granted and whether the girl 
should be allowed to have an abortion without the knowledge of a 
parent.
  Because some of my colleagues seem to be so determined about their 
support of abortion on demand, I assume they consider this as a right 
of privacy or something, they insist that no one, for any reason, can 
even be advised that a minor child would have an abortion. They are not 
happy with these laws and object to these laws. The National Abortion 
Rights League and that type of group have opposed these laws, but these 
laws have been supported by the American people consistently and they 
have passed.
  But I guess they would want the judge to grant a waiver in every 
single case. Well, I do not think anyone would say the court should 
grant a waiver in every case. Every case is different. So each case 
should be evaluated and be ruled on on the merits. It is the court's 
duty to examine the facts in each waiver case to determine if the 
waiver is suitable. That is what a judge does.
  If the teenager goes before the trial court and the trial court 
grants her waiver and says you do not have to notify your parents, she 
can get an abortion without notifying either one of her parents. If the 
trial court denies that waiver after a hearing and says she should tell 
the parents, the teenager can either notify one of the parents or can 
appeal to the court of civil appeals.
  At the court of civil appeals level, a minimum of at least three 
judges review the record of the trial judge to determine whether or not 
the judge made an error and whether or not the teenager should be able 
to have an abortion without notifying either parent. The judges look 
again at the reason behind the waiver request, the maturity of the 
teenager and her decision-making process. After a complete review of 
the trial judge's decision, the appeals court either grants the waiver 
and allows the abortion to go forward without notification or affirms 
the trial court's denial.
  If the court of appeals denies the waiver, the girl either notifies 
one of her parents or can appeal to the state supreme court, such as 
the Texas Supreme Court where Justice Owen sits.
  So by the time this case reaches the supreme court where Justice Owen 
sits, at least four judges will have either seen the teenager or 
reviewed the record carefully and ruled a notification should be made 
to at least one parent before an abortion takes place. So that is how 
the system works. By the time the case reaches the Texas Supreme Court, 
two other lower courts will have already said the girl should provide 
the parents the courtesy of telling them their daughter is about to 
undergo such a major operation.
  So this is what the issue is all about. This is what the opponents 
are unhappy about, and they talk about it aggressively.
  Justice Owen has never made an initial decision to deny a waiver. Her 
position on the Texas Supreme Court does not permit that. Her position 
only allows her to review denials of waivers already made by lower 
courts. In upholding the lower court's denial of a waiver, Justice Owen 
is only agreeing with the trial judge, the judge who had the 
opportunity to visualize and see the teenager and to observe her, and 
also the judges on the court of appeals, the intermediate level court. 
Justice Owen simply did what appellate judges do. Appellate judges 
allow the trial court to be the trier of fact and in most instances 
only review their decisions on abuse of discretion grounds.
  So to break it down, Justice Owen merely ruled in a few parental 
notification cases that a trial judge and at least three judges on the 
court of civil appeals did not abuse their discretion by having a 
teenage girl notify her parents she intended to have an abortion. That 
is, I submit, far from being some sort of judicial activist, rogue 
judge who does not adhere to the law.
  An FYI to a parent before a major surgery, that is what this 
filibuster is all about. Some of my colleagues are really strongly 
committed to an almost absolutist position on abortion. They oppose 
limiting partial-birth abortion. They oppose any limitation whatever.

  Now we are at the point of seeing this sterling nominee, so well 
qualified, subjected to a filibuster because she did her best to 
evaluate and interpret the Texas law. In each case, her decision was in 
conjunction with and to affirm the decision of a trial judge and a 
three-judge civil appeals panel below her.
  When my colleagues talk about being out of the mainstream, I suggest 
they should look at themselves. This accusation against Justice Owen is 
the only thing that is out of the mainstream. We are not talking about 
requiring parental consent for abortions. We are only talking about 
notice. If a parent objects, a doctor is still required to perform the 
abortion and allowed to perform the abortion if the child wants. In 
Justice Owen's State of Texas, the law does not allow a teenager to get 
an aspirin in school without parental consent. If a teenager wants to 
get a tattoo, the law requires parental consent. If a teenage girl 
wants to get her ear pierced, parental consent is required. So if a 
girl wants to take an aspirin in school, get a tattoo or have her ear 
pierced, her parents not only have to have notification, they have to 
consent. They have to sign off on it. That is not the case with 
abortion. In my view, giving a parent notice about an abortion for a 
teenage girl is nowhere outside the mainstream of American policy or 
American law.
  Justice Owen is one of the finest nominees this Senate has ever had 
the opportunity to consider. For her nomination to be filibustered is 
an atrocity

[[Page S5527]]

of the confirmation process and to the tradition of this Senate. I 
strongly support her confirmation. I believe if logic and reason 
prevail, we will confirm her instead of filibustering this nomination.
  This nominee is sterling. She has the highest possible rating of her 
peers. She has performed as one of Texas's finest litigators and has 
won election to the Supreme Court of Texas with 80 percent of the vote, 
having the support of every major newspaper in her State. I find it 
difficult to see how we now are not even allowing her to have a vote in 
this body.
  They say she was rejected once. I was on the committee. That was when 
the Democrats were in the majority. They voted a straight party line in 
committee after I thought she testified brilliantly in examination. 
That never happened in the 8 years President Clinton was President.
  Never did we vote down a nominee in committee on a party-line vote. 
They say, well, only two of them have been blocked here. In 8 years, 
there were 377 confirmations of President Clinton's judges. One was 
voted down. None were voted down in committee. She was voted down on a 
party-line vote in the Senate Judiciary Committee, but she had not been 
rejected by the full committee.
  If they think she is going to be rejected again, why don't they let 
us have a vote? Let's vote on it. I suggest this nominee is going to 
win a majority of the votes in this Senate.
  The Constitution makes clear that the Senate has an advice and 
consent power. It notes, with regard to treaties, that the Senate shall 
advise and consent provided two-thirds agree. Then with regard to the 
confirmation of all other offices, it just says the Senate shall advise 
and consent.
  Since the founding of this country, we have understood that to mean 
the Senate will have a majority vote on the confirmation. There is no 
other logical thing it could mean. So now we have ratcheted up the 
game.
  I recall distinctly a little over 2 years ago when my Democrat 
colleagues went to a private retreat. A number of law professors, 
Lawrence Tribe, Cass Sunstein, and Marsha Greenberg went there, 
professors all who advised them to change the ground rules on the 
judicial nominations. It is written in the New York Times. Since then, 
there has been a systematic change in the ground rules of judicial 
confirmations. When they had the majority, they attempted to kill 
nominees in committee on a party-line vote, which had never been done 
before. And now, amazingly, they are going to the filibuster.

  The American people need to understand something important. In the 
history of this country, there has never been a filibuster of a circuit 
or district judge. Never. It has always been an up-or-down vote.
  I remember when some did not like some of President Clinton's judges 
and they said we should filibuster; Chairman Hatch said, No, we do not 
filibuster judges.
  When holds went on too long--the way you defeat a hold is to file a 
motion for cloture--and a cloture vote was moved for by Republican 
leader Trent Lott to bring up Democratic Bill Clinton's judges. I voted 
for cloture on each one of them. Sometimes I voted against the judge, 
but I voted for cloture to bring the vote up because I did not want to 
participate in a filibuster.
  We have a big deal here. Why someone would seek out this magnificent 
nominee, this person who is not only qualified for the Fifth Circuit 
Court of Appeals but qualified to sit on the U.S. Supreme Court, and 
filibuster their nomination, is beyond me. It is just beyond me.
  I conclude by saying I spent over 15 years of my professional career 
trying cases in Federal court as a U.S. attorney and assistant U.S. 
attorney. I appeared before courts of appeal. I wrote briefs to courts 
of appeal. I appeared before Federal judges. I think I have looked at 
her record carefully. I have heard the explanations she has made in 
committee. I think they are imminently sound and reasonable. I think 
President Bush could not have found a finer nominee. I have every 
confidence that she would be a superior judge on the court of appeals, 
and I am absolutely confident, were she given an up-or-down vote, she 
would be confirmed.
  We need to take seriously our responsibilities here. Let's have an 
up-or-down vote. Let's confirm this fine nominee. She will serve us and 
America well.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.