[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

[[Page S5833]]

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.

                          ____________________