[Congressional Record Volume 149, Number 67 (Wednesday, May 7, 2003)]
[Senate]
[Pages S5832-S5838]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL CONFIRMATION PROCESS
Mr. CORNYN. Mr. President, I rise today to say a few more words about
our broken judicial confirmation process. This week the Senate marks a
dismal political anniversary: 2 years of partisan obstruction of
President Bush's judicial nominees, culminating in two unprecedented
filibusters, and more are threatened.
The current list includes Justice Priscilla Owen, with whom I served
on the Texas Supreme Court, whose nomination is now subject to a
filibuster before the Senate. This 2-year anniversary indicates the
true breadth of the failure of the judicial confirmation process, an
increasingly bitter and destructive process, a process that does a
disservice to the President, to the Senate, to the nominees, and
ultimately to the American people.
Today a partisan minority of Senators are forcing a supermajority
requirement of 60 votes on the judicial confirmation process. They are
using the filibuster not simply to provide for adequate debate--a
reasonable and laudable goal--but to prevent many of our Nation's most
talented legal minds, in this case at least two of them, from filling
our Nation's judicial vacancies. These obstructionist activities
continue to undermine the constitutional principles of judicial
independence and majority rule.
My colleagues should not think the American people do not know what
is going on here. They see when a nominee's well-recognized abilities
are ignored in favor of scare tactics and revisionist history, and they
see when some Senators eschew the interests of the States from which
they were elected, and, indeed, our Nation, and instead kowtow to
special interest groups.
I am confident that Members of the Senate are wise enough to reject,
I guess, what can only be called an inhuman caricature that has been
drawn of Justice Priscilla Owen by special interest groups intent on
vilifying, demonizing, and marginalizing an admirable nominee.
If we were allowed to hold a vote today, a bipartisan majority of
this body stands ready to confirm Justice Priscilla Owen to the Fifth
Circuit Court of Appeals.
I would like to take a few moments to talk about my own observations
while serving with Justice Owen on the Texas Supreme Court for a period
of 3 years during which our terms overlapped, from the time she joined
the court in January 1995 until the time I left the court after serving
7 years in October of 1997.
During those 3 years, I had the privilege of working closely with
Justice Owen. I had the opportunity to observe on a daily basis exactly
how she approached the task of judging, how she thinks about the law
and, indeed, her responsibilities, and how she thinks judges should
perform once given the awesome responsibility that confers.
I spoke with and debated with Justice Owen in conference on countless
occasions about how to faithfully read and follow statutes passed by
the legislature and how to interpret precedents; that is, cases that
had been previously decided that are binding on courts in terms of
their guidance on deciding the same issues in the future.
I saw how hard she worked to faithfully interpret and apply what the
legislature had written. I saw her take notes. I saw her tireless
attention to detail, her zeal for studying the law, her dedication and
her diligence. Not once did I see her attempting to pursue a political
or personal agenda at the expense of what the law said or what the law
required.
Indeed, some of my colleagues have taken her to task for disagreeing,
and the fact that appellate judges, particularly at the highest court
in my State, would actually disagree with one another, and suggesting
that somehow there is something wrong with that.
Well, to the contrary. That is exactly what the job of a judge is. If
we did not have judges occasionally disagree with each other, that
would mean somebody was not doing their job, because by the time cases
get to the top echelons of our judicial system, they are the hardest
cases. They are the cases that cannot be solved by lower levels of the
judiciary or indeed by settlement between the parties. These are
important issues and must be decided. Indeed, a judge, unlike a member
of this body, cannot choose to simply walk away. They must decide the
case in the posture as presented by the litigants.
From experience and from observation, Justice Owen believes strongly
that judges are called upon not to act as another legislative branch,
not to act as a politician trying to read the polls or trying to assess
what public opinion may say about this question or another. A judge's
job is to faithfully read the statutes on the books and then apply them
to the case before him or her or to interpret the precedents by earlier
courts and to faithfully apply those, not in a lawmaking fashion but in
a law interpretation and law enforcement fashion.
Indeed, that is the difference between what judges do and what
members of the executive or legislative branches do. Judges are not
supposed to make law. They are supposed to interpret and enforce the
law written by the legislature.
I can testify from my personal experience as her former colleague
that Priscilla Owen is an exceptional judge and one who understands and
internalizes her duty to follow the law and enforce the will of the
legislature. That is why the American Bar Association gave her a
unanimous rating of well qualified. That is why she has strong
bipartisan backing, including Democrats in the State of Texas and
Democrat practitioners who have seen her in action. That is why she had
enthusiastic support from her fellow Texans in her last election to the
court. Some 84 percent of the voters voted to return her to office when
she ran for that election.
Simply put, she is a brilliant legal scholar and a warm and engaging
person. Knowing the individual, the human being, as I do, it causes me
great pain to see her treated the way I believe she has been treated,
unfairly, during the judicial confirmation process, and to hear
Senators describe her in a way that nobody who knows her would
recognize.
Not many in this body have had the privilege of knowing her
personally and so that is why I think it is important
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for me to say the picture that has been painted of this highly
qualified and highly talented human being and great judge in our State
of Texas is more than just a little disappointing. It is beneath the
dignity of this institution and disserves not only this institution but
the constitutional requirement of judicial confirmation and, indeed,
ultimately the American people.
The beltway special interest groups are not interested in trying to
understand or evaluate Justice Owen by her real record, because if they
were, they would see it as a sterling record of intelligence,
accomplishment, and bipartisan support. The special interest groups are
not interested in the confirmation of nominees who merely interpret the
law and render judgment responsibly. They are only interested in
confirming people who they believe are advocates of their interests,
something that is totally at odds and conflicts with the role a judge
is supposed to perform.
Sadly, it is clear that these same special interest groups are
interested in obstructing as many of President Bush's judicial nominees
as they possibly can. Those who oppose Justice Owen's confirmation
appear to have really no stomach for debate and talking about the
facts. They choose instead to filibuster and engage in the worst kind
of mean-spirited and destructive political attacks.
Let there be no doubt left in the matter. Allow me to quote one of
the leaders of the special interest groups opposed to Justice Owen's
nomination quoted in the Los Angeles Times last week, when they said:
It is sad that not all of these nominees can be filibustered.
So it is clear who is playing the tune and who is giving the
instructions. Unfortunately, too many are heeding those instructions to
filibuster the President's nominees, to prevent a bipartisan majority
of this body from voting to confirm those nominees as they would today
in the case of Priscilla Owen and Miguel Estrada.
I can only hope that at some point my colleagues will understand what
is going on and reject this special interest influence on the judicial
confirmation process. I can only hope that ultimately what we will all
strive for is a process that is fair and consistent with our
constitutional duty. Yet by blocking a vote on Priscilla Owen, they
make themselves allies to these groups, groups that rejoice at the
prospect of a Senate in constant gridlock when it comes to the judicial
confirmation process.
These shrill attacks are inaccurate, dishonest and unfair. It is not
the first time. These are the same people and the same groups that
claimed during the nomination of Supreme Court Justice John Paul
Stevens that he ``expressly opposed women's interests.'' They found
Supreme Court Justice Anthony Kennedy ``a deeply disturbing
candidate.'' They testified that Justice Lewis Powell's confirmation
would mean that ``justice for women will be ignored.'' And they
described Supreme Court Justice David Souter as ``almost neanderthal.''
Those attacks and the current attacks of these same special interest
groups are neither accurate nor, after they have long been exposed as
untrue, should they be deemed credible. Lending credence to these
tactics should be beneath this body. They have no standing for their
arguments to be considered legitimate by this body. Like the little boy
who cried wolf one too many times, they should be ignored by this body.
It is hard to recognize the caricatures that opponents of these
nominees have drawn. As a member of the Senate Judiciary Committee who
has voted on a number of President Bush's nominees for the Federal
bench, I have seen the politics of personal destruction are fast
becoming a commonplace activity for our judicial nominees. Indeed, I
began to wonder whether there are enough good and honorable people with
distinguished records left in the legal profession or in the judiciary
who will volunteer to submit their names to this destructive process
who, knowing the facts, regardless of the truth, they will be painted
as some horrible caricature of their principal beliefs. Nominees who
are so well recognized for their ability should not be required to
serve an indefinite period of time in the stocks as targets for these
special interest groups that attack them on a regular basis.
It pains me to see what can only be called the politics of personal
destruction played out in the course of the judicial confirmation
process.
This Friday the clock will run on into a third year of gridlock and
obstruction. The special interest groups must be very proud.
These obstructionist tactics abuse the power of the filibuster. It
not only violates the bedrock principle of democracy and majority rule
itself but arguably offends the Constitution, as well. Indeed,
prominent Democrats such as former White House Counsel Lloyd Cutler
and, indeed, colleagues in the Senate currently serving, such as Tom
Daschle, Joe Lieberman, and Tom Harkin, have condemned filibuster
misuse as unconstitutional. An abuse of filibusters against judicial
nominations uniquely threatens both the Presidential power of
appointment and the principle of judicial independence.
Whether unconstitutional or merely obstructive of our political
system, the current confirmation crisis calls out for reform. As all 10
freshmen Senators, myself included--including the distinguished Senator
now presiding--stated last week in a letter to the leadership: We are
united in our concern that the judicial confirmation process is broken
and needs to be fixed. We believe the Senate must find an end to the
downward spiral of accusations, obstruction, and delay.
In the face of this consensus that the process is broken, I stand
before this body today and say, once again, it is time for a fresh
start. In that spirit, the Senate Subcommittee on the Constitution
yesterday held a hearing to consider proposals that have been offered
to try to restore both the integrity of the confirmation process and
the strength of our most cherished constitutional values. We explored
and debated a variety of reform proposals at yesterday's hearing,
including one from Senator Zell Miller from Georgia, who suggests what
Senator Harkin and Senator Lieberman and 17 other Democrats did in
1995; that the 60-vote rule for any debate be reduced incrementally
with each succeeding vote until the rule reaches 51 votes. There would
be 2-day intervals between each cloture vote so that the whole process
would last less than 2 weeks while ensuring adequate time for delay and
debate, if necessary, but in the end allowing the majority to do what
they are entitled to do in this body and elsewhere in a democracy, and
that is to have their will reflected in the law and, in this case, in
the confirmation of highly qualified nominees.
Senator Harkin and Senator Lieberman back in 1995 originally argued
that this would preserve the traditions of this body while still giving
the minority plenty of time to plead its case without blocking the
majority forever.
Now Senator Miller has proposed this same rule be put into place.
This strikes me, personally, as the most intriguing option that has
been presented. Senator Schumer advocates an overhaul of the judicial
confirmation process entirely by eliminating the President's
appointment power and instead giving President Bush and the minority
leader ``equal votes in picking the judge pickers.'' I really think
this is binding arbitration and foisting off on others what should be
our responsibility and what we ought to be big enough and responsible
enough to solve for ourselves. But I do give Senator Schumer credit for
offering a reform proposal. I believe it reflects his opinion, as he
has stated, both in writing and orally, that the process is broken and
needs reform.
Essentially, Senator Schumer proposes that the President and the
Senate minority leader select equal numbers of members of Senate
judicial nominating positions in each State and circuit who would then
select one nominee for each judicial vacancy. The President would be
required to nominate, and the Senate required to confirm the
individuals selected by the commission absent any evidence that the
candidate is ``unfit'' for judicial service.
While I appreciate the spirit of reform and trying to find our way
out of this gridlock that I believe Senator Schumer's proposal
represents, there are several concerns. I have stated some of them.
[[Page S5834]]
White House Counsel Alberto Gonzales has called the plan
``inconsistent with the Constitution, with the history and traditions
of the Nation's Federal judicial appointment process and with the
soundest approach for appointment of highly qualified Federal judges.''
Let me be clear. While I think there are problems with the proposal,
I do appreciate Senator Schumer's acknowledgment of the problem.
Finally, Senator Arlen Specter and, indeed, Senator Leahy, the
ranking member of the Judiciary Committee, have urged the imposition of
strict time deadlines for the Senate to hold hearings and votes on
judicial nominees. Indeed, the President has proposed the same sort of
procedure. Chief Justice Rehnquist, speaking on behalf of the Federal
judiciary, has also asked the Senate to ensure prompt up-or-down votes
on nominees. Senator Specter has fleshed out his proposal and did so
yesterday, again, which would call for preset time periods for a
nominee to be debated in the committee and on the floor and then
finally to reach an up-or-down vote.
I hope there will be more proposals. We had a panel of constitutional
scholars, some of the most preeminent legal thinkers in the Nation, and
I am sure there will be others. I hope there are others paying
attention to this debate and who will offer proposals because I think
it will take the best legal thinking. It will take a spirit of
bipartisanship. It will take putting the recriminations and the finger-
pointing behind us and looking forward and not backward in trying to
relive some of those battles of the past for us to be able to get to
closure on some reform.
What is important in the short term is that each of these intelligent
and responsible Members of the Senate have acknowledged a crisis exists
and urge reform of the confirmation process.
We insist that judges be fair and impartial in deciding cases and
that they shall neither fear nor favor. But clearly the requirement of
fairness does not end in the judicial branch of Government. It also
applies to Congress and to this Senate in performing our
responsibilities. It is self-evident that this standard should apply in
confirming judicial nominees. Our current state of affairs is neither
fair nor representative of the bipartisan majority of this body. For
democracy to work and for the fundamental democratic principle of
majority rule to prevail, all this debate must eventually end, and we
must bring matters to a vote.
As Senator Henry Cabot Lodge once said about filibusters: To vote
without debating is perilous, but to debate and never vote is imbecile.
I can tell you from personal experience as a former supreme court
justice in my home State that when you put your left hand on the Bible
and you raise your right hand and you take the oath of office as a
judge, you change. If you were formerly an advocate, someone who did
battle in our courts of law, representing the position of a client, you
no longer are an advocate. If you were formally a legislator, someone
who would argue in a body such as this for what public policy demands
in terms of representing the best interests of the people you
represent, once you become a judge, you are no longer a legislator; you
change.
You are, instead, entrusted with a solemn duty, and that is to
interpret the law to the best of your ability in accordance with the
intent of the people who wrote that law. You must interpret the law as
written and not as judges or lawyers or legislators or advocates or
special interest groups might like that law to be written. You must
interpret the law as it has been written, consistent with the
legislative intent.
My hope is that this body will ultimately abide by the constitutional
requirement that majorities govern in the case of these two nominees
who are being filibustered. We must not, consistent with that same
Constitution, impose a supermajority requirement where the Constitution
requires none and where the Supreme Court and Senate traditions and the
fundamental principle of majority rule dictate that a majority vote,
not a 60-vote supermajority, will prevail.
We, of course, must consider the interests of our respective States
and the Nation, and I think those interests should be considered above
the interests and desires of the special interest groups that seem to
have grabbed hold of the confirmation process and will not let it go.
We must act, and I believe we must act soon, to reform this broken
confirmation process. Of course, this task falls not on others far
away, not even on the President, not on the judiciary, but this
responsibility falls on us as citizens, as Senators, as Americans.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, my colleague and many other colleagues in
recent weeks have spoken on the floor on the subject of judicial
appointments, Federal judgeships. I want to offer a few comments on the
subject, not because I think I am an expert--I don't even serve on the
Judiciary Committee--but the comments that have been made on the floor
of the Senate suggest to the American people that somehow one side of
the Senate is blocking judicial nominations, the system is broken, it
is not working, and somehow it has to be fixed. Let me see if I can at
least provide some clarity.
In the summer of 1991, we had 110 vacancies in the Federal courts.
That has now been reduced to 47 vacancies. Why is that the case?
Because we have been processing nominations from the White House for
Federal judgeships and approving new Federal judges for lifetime
appointments. We have voted. We have had votes on 123 of President
Bush's Federal judges who have been confirmed. I have voted for 120 of
the 123.
Incidentally, of those 123, 2 of them were North Dakota Federal
judges. I recognized that the openings in the Fargo and the Bismarck
district would be filled by President Bush, would be filled by
Republicans. The process worked the way it should work and the way I
believe it should always work in that circumstance; that is, the White
House and Senator Conrad and I worked together to find candidates, a
list of qualified candidates in North Dakota from which the President
would select. He then selected a candidate, a Republican, to send to
the Congress to say: Here is who I believe should be the new Federal
judge for a lifetime in the Fargo district. Here is who I believe
should be the Federal judge for a lifetime in the Bismarck district.
He nominated both. I am proud to say I supported both. Both are
wonderful lawyers. Both are going to be great judges. They both now sit
on the bench. They do so with my vote, and I was proud to do it. That
is exactly the way this ought to work.
Let me describe a bit about what the Constitution does say about
judgeships. It says the President:
. . . shall nominate and by and with the advice and consent
of the Senate shall appoint . . . judges of the Supreme Court
and all other officers of the United States. . . .
What that means is the President shall nominate and the Senate in its
process shall make a judgment about whether it advises and consents to
that nomination. So the President has no inherent right under the
Constitution to send us a name and say: Oh, by the way, this is who I
aspire to appoint to the Federal bench, district court, or circuit
court, and you must accept this nominee. That is not what the
Constitution says.
The Constitution says there is a two-part process: The President
proposes and we dispose. The President nominates and we give our advice
and consent. A President not of my political party has the right to
nominate members of his political party to sit on the Federal bench.
When it worked as it worked in the circumstance with North Dakota, I
was proud to be someone who said: Count me in. I vote for these
nominees because I think they will be great Federal judges.
When it doesn't work is a circumstance where the White House says: We
don't care what you think down in the Senate. Here is a name, and we
are going to shove it down that pipe, and if you don't like it, tough;
we are going to fight like the dickens to get it.
You have the right to fight, I would say to the White House. You have
a
[[Page S5835]]
right to fight for your nominees. But if you don't have a process where
there is some agreement and understanding of working together on
lifetime appointments, sometimes nominees are going to get snared and
caught in a web down here.
We have approved 123 of the nominees sent to us by President Bush. As
I indicated, I have voted for 120 of them. This so-called breakdown or
collapse in the process is over two nominations at this point.
This is not new. We have two nominations that are caught in the web,
and I will explain why in a moment. The fact is this web has been a
much tighter web for a long period of time in which we have reduced far
more than half of the vacancies in the Federal bench. Why? Because we
are in the business of approving the President's nominees. In a
circumstance where we have approved 123 of them, it can hardly be said
that this process is broken.
But it has been broken. There were times when this process was
broken. One of the judgeships, the nominations that were sent here that
is caught, is in the Fifth Circuit. Let me describe what happened in
the Fifth Circuit just so we have some history.
In the Fifth Circuit, from 1995 on we had three nominations by the
previous administration--three nominations--Judge Rangel, Enrique
Moreno, and Alston Johnson. They never got a hearing--not one hearing,
not a day, not a minute. They were dead when they got here. There were
going to be no hearings because there wasn't going to be a judge on the
Fifth Circuit Court appointed by that administration, by the Clinton
administration.
What happened? The administration changed. So did the control of the
Senate for a while. Judge Clement was confirmed in 6 months; Judge
Pickering had two hearings, had a negative vote in the committee.
Perhaps--I guess it was a negative vote. I was thinking perhaps he
pulled his nomination from consideration. But in any event, there was
action in the committee for Judge Pickering.
Judge Priscilla Owen: two hearings, a vote in the committee.
Judge Edward Prado: a hearing, a vote.
Do you see the difference? Under the previous administration, the
Republican Senate would not even allow a hearing--not 1 minute of
hearing, let alone bring a candidate to the hearing room and have a
discussion and have a vote and bring it to the floor--not even a
hearing, not 1 day. That was when the system was really broken.
Now we have a circumstance where we are told that because we have two
nominations on the floor of the Senate that have not moved--and I will
explain why--that the system has somehow completely collapsed and we
should change the rules of the Senate.
Let us take a look at the DC Circuit Court. There was not any
intention to add a judge to the District of Columbia Circuit Court
under the previous administration. We had the nomination of Allen
Snyder. He was never given a vote. Elena Kagen was never given a vote
because they said the District of Columbia Circuit doesn't have enough
work. We shouldn't add a judge to the DC Circuit. Now, all of a sudden,
the administration changes, and there is room for more. We need more,
and we need to add someone to the District of Columbia Circuit.
You go up and down over the recent years, and you see, in the circuit
court especially, candidate after candidate who was never given a vote
and was never given a hearing. That is when the process was broken and
had collapsed.
It can hardly be said that the process doesn't work at this point
when we have reduced the vacancies on the Federal bench by confirming
123 of the President's nominees. And I have voted for almost all of
them. That is not a process that has collapsed.
Let me talk about the two that are at odds that Members have come to
the floor of the Senate and talked about how the system has collapsed.
The first is Mr. Estrada. Mr. Estrada was nominated by the President
to the second highest court in the land. Mr. Estrada had been asked for
certain information: No. 1, to answer the questions posed to him by the
Judiciary Committee when he appeared; and, No. 2, to have the
information released--that is, information about his work when he was
with the Solicitor General's Office.
The fact is, until and unless Mr. Estrada releases that information
and provides that information, in my judgment he will never get a vote
in the Senate. He just won't. One might not like that. Fine, you do not
have to like that. But if we are talking about putting people on the
Federal bench for a lifetime, we had better discharge our
responsibility in a serious way and be serious when we seek information
from a candidate. That candidate has an obligation to provide the
information. If it is not forthcoming, there is no entitlement and no
inherent right under our Constitution to proceed to a vote on a nominee
sent to us by the President.
It is interesting that Mr. Estrada testified before the Senate
Judiciary Committee the same day Judge Hovland from North Dakota
testified before the committee. I referenced him before--a Republican
who now sits on the bench in Bismark, ND. He is someone for whom I was
proud to have voted. The same questions that were asked of Mr. Estrada
were asked of Mr. Hovland that day. Mr. Hovland answered them. Mr.
Estrada did not. That is why Mr. Estrada's nomination is caught in a
net here in the Senate. It is why he has not had a final vote. He has
not released the information from the Solicitor General's Office. He
did not respond to the questions.
As soon as all of that is available to the Senate, as I have said
repeatedly on this floor, I think he ought to be given a final vote, up
or down. Until that time, no Senator ought to aspire to give a final
vote to a candidate, to a lifetime appointment of judgeship, or on the
circuit or district court who says ``I am not going to provide the
information you requested.'' No Senator should insist on proceeding to
final vote in that circumstance.
That is not discharging the obligations of the Senate.
Let me talk for a moment about an article that I read in the San
Antonio Express News which I thought really described exactly the same
circumstance we face here in the Senate, ``A Tale of Two Texas
Judges.'' It happens to deal with the nomination of Judge Priscilla
Owen and Judge Prado. I am going to read this because I think it is
important.
In the nomination of U.S. District Judge Edward Prado for
the Louisiana-based 5th Circuit Court of Criminal Appeals,
President Bush has found a fail-proof strategy for selecting
federal judges. Prado faced no opposition from the Senate
Judiciary Committee--or anyone else for that matter--because,
unlike some of the President's other recent nominees, Prado
is well-qualified with a long record of fairness and
moderation.
Unfortunately, the full Senate will be consumed this week
with bitter debate over another White House judicial
nominee--Texas Supreme Court Justice Priscilla Owen, who has
a different kind of record. Instead of moderation, Owen is
known for her conservative activism.
Opposition to Owen was so strong that her nomination was
rejected last year. This year's Republican-led Judiciary
Committee resuscitated it, giving Owen a slim 10-9 party-line
vote.
It is not as though Democrats are opposed to all White
House nominees. After all, the same committee voted 19-0 in
favor of Prado. Now Democrats in the Senate appear likely to
filibuster Owen's nomination. Once again, the battle over the
White House's judicial nominees is gridlocked.
To avoid this kind of partisan strife, the Bush
administration should employ the Prado strategy for future
judicial nominees.
That strategy is to choose moderate nominees with long
experience who understand that the role of the judge is not
to legislate from the bench.
There is a solution to all of this. It has nothing to do with
changing the rules. In fact, I submit that when we have confirmed 123
judges submitted by President Bush--and I voted for 120 of them--this
process is hardly broken. But the solution to this is for the President
and Mr. Gonzales to engage with the Senate and work with the Senate
with respect to the kind of nominee that we will put on the circuit
court. There is no inherent right in the Constitution that says the
President shall nominate and somehow the Senate must consider
expeditiously every nomination.
In fact, the Republicans for years and years since I have been in the
Senate refused to hold hearings--not even one hearing for nominee after
nominee after nominee.
We did not hear the discussion on the floor of the Senate so much
about changing the rules and the system
[[Page S5836]]
being broken with Mr. Enrique Moreno, who, I believe, is from Texas. I
have met him. He would have been a terrific judge. Unfortunately, he
wasn't given the time of day by the Senate. We have not done that. This
side has not done that. The fact is that even the two nominees who are
in dispute at this point had their hearings. They had their day before
the committee. They had their vote before the committee. But Mr. Moreno
is an example of so many others who never got any consideration at all.
Let me be quick to say that despite the miserable failure of dealing
with these judgeships back in the 1990s in the previous administration,
I don't think this is at all payback. I don't think this is what this
is. Payback would mean we would not have approved 123 of the
nominations sent to us by President Bush. We have done that because we
think the selection of judges is a process that requires the
opportunity for both of us to work our will. The President can send a
nomination to us and we can consider that and the options that we have
to deal with that nomination.
The way to avoid the pitfalls and the problems that exist with the
two nominations that are causing such angst and people coming to the
floor saying the sky is falling and the system has collapsed is for the
President to work with the Members on the nominees they send to the
Senate. There are some--not many--who are simply not going to be
confirmed. It is almost automatic that this President's nominees are
going to sit on the Federal bench--not quite automatic but almost--
evidenced by the fact that 123 we have approved with the votes of
almost all Democratic Senators.
There is a way to solve this problem. If you don't believe me, then
believe this editorial which is exactly on the mark.
If they say our strategy is simple, we are going to pack the circuit
courts with philosophical extremists, and they send us names that
reflect the desire to pack the circuit courts with extremists, I am
sorry; this process isn't going to work. This process is going to slow
down and perhaps stop because, in my judgment, this Senate is not going
to allow that to happen. We insist if someone is going to sit for a
lifetime on the Federal bench that they be qualified and not be
judicial activists who bring an aggressive agenda to the bench.
With respect to the Owen nomination, I was not on the Judiciary
Committee and was not part of the hearings, but I have read the record.
I have certainly heard from a lot of people who know and who have
worked with Judge Owen. I have read the statement of Mr. Gonzales
himself from the White House exercising his great angst at her judicial
activism on the bench in Texas. But the fact is, she had her day in the
Senate last year, and she was turned down by the Senate Judiciary
Committee. Now that nomination comes back to us. The fact is, she is
one of those few who clearly is a very aggressive judicial activist.
The Gonzales quote is very telling to me. It is not just Judge
Gonzales. That same quote about the disposition of Judge Owen and what
she does on the bench in the State supreme court is not just from Mr.
Gonzales, it is from a range of sources, which I think persuades many
in the Senate not to want to proceed with this nominee.
But do not--do not--take the two instances of Mr. Estrada, who has
refused to provide the information that is requested by the Senate, and
Judge Owen, who was turned down last year by the Senate Judiciary
Committee, to say somehow the sky is falling and the structure is
broken and we ought to change the rules of the Senate, and how awful
this is. Nonsense, total nonsense.
Mr. President, 123 judges sitting on the Federal bench are testimony
to the fact that we are approving President Bush's judges. It is just
that there are two who stick in the craw of people because they say we
have a responsibility, somehow, to rubberstamp all these nominations. I
am not going to rubberstamp anybody who is going to serve for a
lifetime, especially on a circuit court. If they are not going to
provide the information, then they ought not sit on the Federal bench--
simple, just open and shut. It has nothing to do with politics, nothing
to do with Republicans, nothing to do with Democrats. If you don't
provide the information, you are not going to sit on the Federal bench.
Maybe those of us who think that way are in the minority. If so,
eventually, I guess, those people will get to the Federal bench. They
will say to Congress: I'm sorry, I have a Presidential nomination, and
I have no obligation to give you additional information. If there are
enough Senators who believe that is discharging our responsibilities,
by saying, yes, sir, absolutely, well then maybe these nominations will
happen, but they won't happen with my vote, not with a Republican or
with a Democrat.
This is what Judge Gonzales said. In Jane Doe, Judge Alberto
Gonzales--incidentally, a then-supreme court justice, who is clearing
these nominees through the White House--stated that to interpret the
law, as Justice Owens did in this case ``would be an unconscionable act
of judicial activism.''
I will tell you what. It is not just this phrase. If we had time and
I had the interest, I would show you other examples of exactly this
sort of activism which persuades me this is not the kind of judge I
want to put on a circuit court.
Let me make the point, once again, that the Constitution provides two
things: The President shall nominate, and the Senate shall advise and
consent. If a President, any President, decides he is going to try to
stack a circuit court with people of extremist views, then this
Senate--I guarantee you, this Senate--whether it is Republicans against
a Democratic President or Democrats stopping a Republican President--
this Senate is going to say: I am sorry, it is not going to happen.
Perhaps we should get a long list out here, perhaps a list of 123
names. We could start with North Dakota with Justice Erickson or we
could start with any one of a number of the others on that list of 123
who are now Federal judges because President Bush said, ``I want
them,'' and because the Senate said, ``You bet. We have taken a look at
these judges and they deserve to be on the Federal bench.''
Perhaps going through 123 of them, reducing the number of vacancies
by well more than half, we would define that as success rather than a
calamity. But if we do not want to take a look at the success, then
let's take a look at the two who exist that are causing these problems
and these difficulties.
I will tell you, we have, in my judgment, every right to say to the
President, in these circumstances: Work with us to send us nominees who
we can put on the DC Circuit, who we can put on the Fifth Circuit. Work
with us to do that, just as you worked with us with 123 other Federal
judges who now are on the Federal bench.
Mr. REID. Will the Senator yield for a question?
Mr. DORGAN. I am happy to yield for a question.
Mr. REID. During the years when President Clinton was sending
nominees down here, there was a period of time when the Democrats
controlled the Senate. Does the Senator recall that?
Mr. DORGAN. That is correct.
Mr. REID. If that were the case, every person he sent down would have
been approved, is that right, using the logic used by the majority now?
Mr. DORGAN. Right.
Mr. REID. The fact is, a relatively small percentage of the people he
sent down were approved because the Republicans did not like the people
he sent down; is that right?
Mr. DORGAN. That is correct.
Mr. REID. Now, I personally disagreed with what the Republicans were
doing at that time.
The PRESIDING OFFICER. The Senator has used his allotted time in
morning business.
Mr. DORGAN. Mr. President, what is the allotted time under morning
business?
The PRESIDING OFFICER. The allotted time is 10 minutes.
The Senator from Nevada.
Mr. REID. Mr. President, under my time, I will ask the Senator a
question and would appreciate him responding.
The PRESIDING OFFICER. The Senator does not have the floor.
Mr. REID. He yielded the floor. Of course I have the floor. Who else
has it? He yielded the floor. I asked permission to be recognized.
[[Page S5837]]
The PRESIDING OFFICER. The Senator from North Dakota is out of time.
Mr. REID. I know. And I asked----
The PRESIDING OFFICER. The Senator from Texas.
Mr. REID. What do you mean: ``The Senator from Texas''? I asked to be
recognized, and I was recognized. What do you mean: ``The Senator from
Texas''? What are you talking about?
The PRESIDING OFFICER. I recognize the Senator from Nevada.
Mr. DORGAN. Mr. President, might I ask a parliamentary inquiry for
the moment? I now understand we were under a period of morning
business. When I came, the Senator from Texas was speaking, I assume,
perhaps, under morning business as well. I don't know whether I
consumed more time than he did or whether it was about even. Could you
tell me how much time the Senator from Texas used?
The PRESIDING OFFICER. The Senator from Texas asked to speak for 20
minutes and did speak for 20 minutes.
Mr. DORGAN. Mr. President, how much time did I consume?
The PRESIDING OFFICER. Twenty-two minutes.
Mr. DORGAN. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, thank you very much.
Now, if the Senator from Texas wishes to go someplace or something, I
would be happy to yield the floor to the Senator. I don't have much to
say, but I have a few things to say.
Mr. CORNYN. Certainly. I would like the opportunity to respond to
some of the remarks of the Senator from North Dakota.
Mr. REID. Fine. I will not be long at all. I appreciate that.
I say to my friend from North Dakota, the point I was making, when
the Chair indicated time was up, was that there were procedures by the
majority that stopped President Clinton's nominees from going forward.
Does the Senator recall that?
Mr. DORGAN. Yes, including filibusters, of course.
Mr. REID. I recall, very clearly, there were hearings not held in the
Judiciary Committee; is that right?
Mr. DORGAN. Well, many of the nominees never got a hearing--ever--
under any circumstance.
Mr. REID. And we, the minority at the time, did not like it, and we
had a Democratic President; is that not true?
Mr. DORGAN. That is correct.
Mr. REID. I also ask the Senator this question: During the time you
have been in the Senate and I have been in the Senate, we have seen
changes of the majority--whether it was Democrats or Republicans--it
switches back and forth; is that right?
Mr. DORGAN. Yes. The Senator is correct, yes.
Mr. REID. Now, I say to my friend from North Dakota, in the form of a
question I ask you to respond to, we did not like what happened, but
the Senate went on just fine; the country survived; did it not?
Mr. DORGAN. Absolutely. I remember Mr. Paez, who is now a Federal
judge, his nomination was here 1,500 days. I remember the number of
times people came to the floor of the Senate expressing great angst
about that. It took forever.
But unlike Mr. Paez, many nominees never got a hearing, let alone a
vote, never got called to Washington, being told: All right, your
nomination is before the Senate. This is the date of your hearing. Many
nominees never ever got a hearing.
But I say to the Senator from Nevada, this ought not be, and should
never be, payback for ``this side did this, that side did that, so for
the last 20 years, let's get even.'' That ought not be what the case
is. And I demonstrate and I assert it is not the case because we have
approved 123 of President Bush's nominations. I said: I am proud to do
that. I was proud to support the two Republican nominees from North
Dakota because I think they are terrific judges.
I think we have had great success here. I admit that there is a
hangup with two of the judgeships.
I say to my colleague from Texas, who spoke before I did, I do not
mean to be pejorative about this. I do not mean to question anyone's
motives. I only say that when one asserts that the sky is falling, the
system is broken, and nothing is working, there is another view. I was
trying to express another view, respectfully.
I respect the opinion of the Senator from Texas, but I have a very
different view about our responsibilities, our obligations, and our
accomplishments with respect to these nominations.
If I might make one additional comment, I say to the Senator from
Nevada, I am not on the Judiciary Committee. I do not pretend to be an
expert in these circumstances with these issues. I have studied enough
and learned enough to know that many of the nominations that are sent
here have been excellent. I have been proud to support them.
But I also understand there are circumstances where we have an
obligation and a right to assert our rights. That is exactly what is
happening in two circumstances that I think have caused great angst
among some and caused them to say the sky is falling. But the sky is
not falling at all.
Mr. REID. Mr. President, I simply wanted to acknowledge the
statements of the Senator from Texas and the Senator from North Dakota.
I am trying to make a point that things change around here: Democrats
are in control; Republicans are in control. The Democrats will be back
in control of the Senate sometime. It may not be in the next election
cycle; it may not be in the next election cycle, but it will happen. We
will be in control sometime, and we will have a Democratic President
sometime. I think we have to look into the future, that we don't jam
the system.
I appreciate very much the Senator from North Dakota indicating this
is not payback time. When we took control of the Senate, we said at
that time, this is not payback time. We have proven that. There have
been hearings held. If there is somebody who has been held up, that
should be brought to the attention of the body. Senator Daschle and I
have stated on many occasions that this is not payback time. If it
were, things would be in desperate shape.
We have approved a lot of judges that don't meet what many people
over here feel is in the best interests of the country, but we have
felt that the President has to have great leeway in the people he has
chosen. That is indicated by the 123 we have approved.
I understand the power of concern of the chairman of the Judiciary
Committee, Chairman Hatch. His feelings about Miguel Estrada have been
made very clear. I know Senator Hatch. I know how strongly he feels
about this matter. But I would hope that those on the other side will
understand that Miguel Estrada's problem could be solved so easily. Let
us see the documents from the Solicitor's Office, and I think it could
be solved very quickly.
With Justice Owen, it is a different problem. But remember, we are
talking about 123 to 2. I don't think it is fair to try to tell the
American public that the system is broken. I really don't think it is.
I want also to apologize publicly for raising my voice to the Chair.
I rarely do that. I did and I apologize to the Chair for that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I will take a few moments to respond to
some of the comments made by the Senator from North Dakota and the
Senator from Nevada.
First, I certainly respect their right to have an opinion and to
express an opinion that this system of judicial confirmation is not
broken. I disagree with them. Reasonable observers, outside of the
bubble in this Chamber and perhaps inside the beltway, looking at this
system will say: The system is broken and disagree with them. Indeed,
to date, over 134 editorials in 94 newspapers have called for the
confirmation of Miguel Estrada and Priscilla Owen and have called for
an end to the filibuster. Indeed, the preponderance of the views is in
favor of those who believe that the system is broken and sorely in need
of reform.
I pointed out the bipartisan letter of the 10 freshmen. I pointed out
even Senator Schumer and others who have been here for quite a while
believe the system is broken. So I think we need a fresh start.
In many ways, the Senator from North Dakota makes my case for me.
[[Page S5838]]
When he goes back through all of the grievances of the past in the
judicial confirmation process, real or perceived, he says the system
was broken back then but it is not now.
He also says that because Democrats have voted or allowed a vote--
they haven't necessarily voted for them, but they have allowed a vote--
on 123 of the President's judicial nominees and disallowed votes on
only 2, that it somehow makes it all right.
There is an important point that needs to be made. When 123 of
President Bush's judicial nominees have been confirmed and 2 have been
blocked by unprecedented filibusters--and please understand there has
never been a filibuster before, a true filibuster of judicial nominees
before in the history of the Senate before Miguel Estrada and Priscilla
Owen--how can some of these same people stand on the floor of the
Senate or in the Judiciary Committee or in front of TV cameras and say
President Bush is nominating only ideologues. Back in my State, some of
the names I have heard these nominees called would be fighting words.
If somebody called you some of the names I have heard these nominees
called, indeed the President for nominating some of these same people,
those would be simply fighting words.
We are not fighting here today. I am simply trying to make the point
that the sort of harsh, shrill, unreasonable, emotional allegations
being made by some of these special interest groups that are being
repeated by some Members of this body when it comes to these nominees
simply don't stand up to any test of reason.
Two years for a judicial nomination is not a sign of a healthy
judicial confirmation process. It is a sign that the system is broken
and needs to be repaired.
I yield to the distinguished Senator from Kentucky.
Mr. McCONNELL. I say to my friend from Texas, if he will yield the
floor and let me get the floor, we will do this very quickly.
Mr. CORNYN. I am happy to do so.
The PRESIDING OFFICER. The Senator from Kentucky.
____________________