[Congressional Record Volume 149, Number 67 (Wednesday, May 7, 2003)]
[Senate]
[Pages S5838-S5842]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            OWEN NOMINATION

  Mr. CORNYN. Mr. President, I notice the Senator from Alabama is here, 
and I believe he wants to speak on the Owen nomination. I will turn the 
floor over to him in a few minutes.
  There are a couple of things I want to finish responding to regarding 
what the Senator from North Dakota and the Senator from Nevada have 
said, and the way they characterize Justice Owen--as an activist, as 
somebody who is out of the mainstream, and in terms of judicial 
qualifications.

[[Page S5839]]

  I just point out that the picture they paint is totally at odds and 
inconsistent with the fact that Justice Owen has broad, bipartisan 
support in the Senate, and it is only a narrow minority of the Senate 
that is blocking the bipartisan majority from actually voting. To me, 
that is not evidence of an extreme position or somebody who is out of 
the mainstream.
  I point out and remind my colleagues that former Texas Supreme Court 
justices, Republicans and Democrats, a long list of former Presidents 
in the State bar of Texas, Republicans and Democrats, have endorsed her 
confirmation. That is hardly evidence consistent with the portrait that 
her detractors are attempting to paint and that was painted by the 
Senator from North Dakota just a few moments ago. In her last election, 
84 percent of the voters in Texas voted for her reelection--hardly 
consistent with the picture of an extreme, out-of-the-mainstream person 
and nominee.
  I will tell you that in 2000 virtually every major newspaper in Texas 
endorsed her reelection. Here again, that is not consistent with the 
portrait being painted today by her opponents.
  Let me finally address the issue on which Justice Owen has been 
criticized, and that is the Texas parental notification statute. I 
point out to my colleagues that Justice Owen had no choice but to 
interpret the Texas parental notification statute as adopted by the 
Texas Legislature. She had no choice. She did her best. I think it is a 
record of which she and the Senate can be proud.
  But I think some of the arguments against this nominee are really 
wolves in sheep clothing. In other words, I think some of the special 
interest groups that are opposing Justice Owen's nomination really 
object to the Texas parental notification statute--a statute which I 
strongly support because I believe it protects parental rights, in 
order to at least be involved in one of the most serious and profound 
decisions that a young girl may have to make in her young life, when 
under Texas law, if she wanted to get her ears pierced at a doctor's 
office, she could not do so without parental consent.
  This law does not require consent; it requires notice to at least one 
parent before a minor child decides to get an abortion. As I say, I 
think a lot of the arguments being made against Justice Owen and this 
nomination are really masked by an underlying objection by some of 
these special interest groups to the fact that Texas has--like the vast 
majority of States--a parental notification law. Eighty-four percent of 
the American public supports parental rights and laws requiring that a 
minor child give notice at least to a parent before getting an 
abortion.
  The U.S. Supreme Court has upheld the validity of those laws as not 
impeding access to an abortion, but merely involving a parent and 
letting a parent know. Of course, if for some reason, within the letter 
of that law, a parent cannot be notified, or should not be in the eyes 
of a judge, there is a judicial bypass provision, and that was exactly 
the law that Justice Owen was duty-bound to interpret as a member of 
the Texas Supreme Court in dealing with that Texas parental 
notification statute.
  Justice Owen, in a vast majority of those cases, voted with a 
majority of the court and dissented from the majority less often than 
two other justices on that same court.
  I would point out that the author of the Texas parental notification 
law, Senator Florence Shapiro, supports Justice Owen's confirmation.
  One other point. I hope we can finally put this issue to bed because 
it seems as if it gets trotted out every couple of days when it comes 
to the Owen nomination, and that is the allegation that Alberto 
Gonzales, White House counsel, formerly a member of the Texas Supreme 
Court who served with Priscilla Owen, accused her of judicial activism. 
That is just not true. That is not the fact, and anyone who cared 
enough about the issue would certainly read the opinions that are 
referred to by those who are making that fallacious claim.
  What happened in that case is some members of the court accused Judge 
Gonzales of misreading the statute. He stated it would be judicial 
activism for someone to change the law to suit their own personal 
beliefs. He did not say Judge Owen had done that.
  To me, that settles the issue completely. Here again, you find the 
facts more divorced from what is happening, what is being said as you 
see a person, a fine, decent person, a highly qualified candidate for 
this judicial office, being attacked unfairly. As you see the facts 
twisted and this caricature again being painted, it bears no 
relationship to the facts.
  I remember Senator Arlen Specter the other day, I think it was in the 
Senate Judiciary Committee, saying it is clear the Rules of Evidence 
that apply in court that somebody speak from personal knowledge, that 
it be trustworthy, it be credible, do not apply to statements made on 
the floor of the Senate or in the Senate Judiciary Committee. People 
repeat facts other people say that may be completely wrong or by people 
who have a motive to bend the truth.
  Justice Owen, has been a victim of people who have bent the truth or 
who care nothing for the truth and who care only for defeating this 
very fine nominee by our President for this judicial office.
  Mr. President, we are not going to give up the fight to have a 
bipartisan majority of the Senate vote on either Judge Owen's 
confirmation or on the confirmation of Miguel Estrada. As we heard 
yesterday before the Senate Subcommittee on the Constitution, 
constitutional scholars said there are serious constitutional problems 
with the argument that somehow the cloture rule, which requires 60 
votes to cut off debate, can trump the Constitution, which requires 
only a majority vote.
  Senator Specter yesterday alluded to something called the nuclear 
option. He said he was not going to talk about it. All I wish to say is 
we are not going to give up, and I will not give up when I see a good 
person, an honest, a decent person who has worked hard, who has risen 
to the top of the legal profession, who has become a judge and excelled 
in her job as a judge, who has been faithful to the oath she has taken 
to interpret the law and not to be a superlegislator or be a legislator 
wearing a black robe, I am not going to stop as long as it is possible 
to do anything within my power to see her confirmed and to see that 
justice and fairness be provided to this good and decent person.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Texas. He knows 
Priscilla Owen. He served on the Texas Supreme Court. He served as the 
attorney general of Texas. He knows the legislators who passed the laws 
in Texas. He knows Justice Owen's history and the respect she has in 
the community. One can sense his feelings of how bizarre it is to have 
this wonderful woman, who is popular throughout the State, with 84 
percent of the vote, unanimously well-qualified rating by the American 
Bar Association, attacked and have people come to this body and say she 
is some sort of extremist. It is really a sad day.
  My colleagues on the other side say: We are only objecting to two 
nominees. Why would they pick Priscilla Owen to be one of the two? 
Justice Owen is so marvelous. They say she was turned down last year. 
That was when we had an interlude in which the Democrats had the 
majority in the Senate and they had a majority in the Senate Judiciary 
Committee. That committee, on a straight party-line vote, voted down 
this wonderful candidate, Priscilla Owen, for the Federal court, on a 
straight party-line vote.
  That was not done in the 8 years President Clinton was in office when 
Republicans had a majority. Republicans never voted down one of his 
candidates on a straight party-line vote. We ought to think about that.
  Senator Cornyn is a tremendous addition to the Senate. The Priscilla 
Owen matter was raised in his race. It was a matter he discussed, and 
the voters voted for Senator Cornyn to be their Senator, and he was on 
record as supporting her nomination.
  Now that he is here and helped give us a majority, we moved her out 
of the committee. She really was not voted down in committee. She was 
blocked in committee. They tried to keep her nomination from reaching 
the floor of the Senate, where it could be voted up or down and 
succeed, until the majority changed.

[[Page S5840]]

  It is frustrating to me to hear the Democratic Members of this body 
say: Miguel Estrada can be confirmed or we can move him up for a vote 
as soon as he turns over all of his records, all the memoranda he wrote 
while he was at the Department of Justice.
  The Presiding Officer, the Senator from Minnesota, is a skilled 
attorney. He knows these issues. When a lawyer works for a client, the 
records are the client's records; they are not the lawyer's records. A 
lawyer cannot pass out his memoranda to his client without the client's 
permission.
  In this case, Miguel Estrada had a client. His client was the United 
States of America, and his duty and responsibility was to give his 
supervisors in the Department of Justice--4 of his 5 years he was in 
the Department of Justice were during the time President Clinton was 
President of the United States. So his memoranda went to Clinton 
appointees and their people. They said just turn them over.
  This is a big deal. I served almost 15 years in the Department of 
Justice. It was a great honor for me to hold that position. I think it 
is the greatest, most honorable law firm in the world. It was great to 
be there. They are good lawyers. They follow the law.
  The Department of Justice should never give over their internal 
memoranda on a fishing expedition like this just to try to buy votes in 
the Senate to get somebody confirmed. They should stand firm, and the 
heat needs to be on those who ask for these records to be turned over.
  It was said that some of those records have been turned over in the 
past. I remember one Senator waving around the documents saying it had 
been done before. I got them out of the Record. I determined that it 
was the Robert Bork nomination.
  Most Americans who have been around a few years remember the Bork 
deal. He was the Solicitor General of the United States and was moved 
up to Attorney General.
  He fired Elliott Richardson, the midnight massacre, and the Senate 
had a specific inquiry.
  When Bork was in the Department of Justice, they wanted to know about 
the memoranda he had written involving Watergate, which raised 
questions of ethics and impropriety and misconduct.
  It is quite a different thing if a Member of this Senate says, or 
this group of Senators say, we want certain records, and those records 
are records that may give light on a specific wrongdoing that has been 
alleged to have occurred; there is some sort of concern over an act of 
wrongdoing which has occurred, but they did not suggest Miguel Estrada 
was involved in a single act of wrongdoing. They just said: We want to 
see every memorandum he wrote to the Department of Justice, memoranda 
owned by the Department of Justice, part of the Department of Justice's 
work product, part of their decision-making process.
  They should not turn it over. These Senators, some of whom are 
lawyers on the other side, know that, and they ought not to be asking 
for that. I do not believe they would accept it if Republicans were 
asking for it in the same circumstance. We have to have a certain 
amount of collegiality, we have to have a certain degree of fairness 
and respect for proper procedures, and it is disrespectful of the whole 
governmental process to insist that the work product of the Department 
of Justice, in a blanket fishing expedition, needs to be turned over to 
Senators in exchange for getting an up-or-down vote for a highly 
qualified nominee.
  I am not pleased with what is going on. We all remember well when 
President Bush was elected and the Democrats had a Senate retreat, and 
one of the things they discussed was what to do about nominations. They 
had three well-known liberal professors known throughout the country, 
Laurence Tribe, Marsha Greenberger, and another lawyer lecture them. 
These liberal professors told Senate Democrats that they ought to 
change the ground rules, that they do not need to do like we have done 
for 200 years since America's founding. It is clear to me that as a 
result of that conference, somewhere along the line a majority of the 
Democratic Members of this body agreed, and they have changed the 
ground rules of confirmations in a way that has never been done before.
  In committee, they voted down two nominees on a straight party line 
vote. They said we ought to change the burden of proof and put it on 
the nominee. They made a number of other allegations and changes in the 
process that they said ought to occur. They asked to strengthen the 
blue slip policy that gives an objecting home State Senator power to 
block a nomination. When President Bush was elected, they had a meeting 
and demanded that they have more power.
  At the same time, they complain in this body about nominees who did 
not move because of the traditional exercise of the blue slip. They 
wanted to have even more power to block nominees of President Bush than 
existed to block President Clinton's nominees. So it is a frustrating 
thing.
  The most dramatic and historical change of the ground rules occurs 
when this body engages in filibusters. I noticed they said Mr. Paez was 
held up 1,000 days. Well, Priscilla Owen and several others are at 
about that number right now.
  How did the Paez matter come to a vote? In my strong view, Paez 
should never have been confirmed as a Federal judge based on the record 
we had. I opposed his nomination. But how was it brought up? How do you 
deal with a hold? You move for cloture. It is a process. No filibuster 
was ongoing. It just was not being brought up for a vote.

  The majority leader of the Republican Party, Trent Lott, moved for 
cloture. I voted for cloture even though I opposed the Paez nomination. 
Cloture was voted overwhelmingly. Why? Because we did not believe that 
filibuster was an appropriate remedy for dissatisfaction over a judge. 
The Republicans believed that a judge should not be filibustered. It 
has not been done for a circuit or a district judge since the founding 
of this country, until our colleagues on the Democratic side have now 
openly filibustered Priscilla Owen and Miguel Estrada.
  If they were to say, this is an extremist judge who lacks 
qualifications, and those sorts of things, maybe we ought to be able to 
use that power. But that is not the case with these two judges.
  These two judges were rated by the American Bar Association. The 
American Bar Association is an institution that on legal and social 
issues is, I think, consistently to the left of the American people and 
the Senate. For example, they oppose any laws restricting abortion and 
they take a number of very liberal positions on social issues. But the 
American Bar Association is an entity that understands what the legal 
practice is about.
  They can go out in the community pretty quickly and determine if 
someone is irresponsible or an extremist. They will rate them 
accordingly. Well, the American Bar Association has done in-depth 
background checks on Miguel Estrada and Priscilla Owen. As I recall, 
they have one person who does a lot of the work. They talk to all of 
the judges before whom the lawyer practices. They talk to the opposing 
counsel, co-counsel. They talk to the leaders of the bar in the 
community. They talk to just about anyone who would have an opinion on 
them.
  They talk to civil rights leaders. They always talk to minority 
representatives to make sure they have broad-based feedback. Then there 
are 15 or so of them who meet and evaluate this nominee, and they issue 
a rating.
  With regard to Priscilla Owen, a justice on the Texas Supreme Court, 
elected with 84 percent of the vote last time, they unanimously rated 
her the highest rating they give: Well qualified.
  Miguel Estrada, editor of the Harvard Law Review, clerked for the 
Second Circuit Court of Appeals, clerked for Justice Anthony Kennedy on 
the Supreme Court of the United States, something very few lawyers ever 
get to do in their life--it is one of the highest honors one could 
have--they interviewed all the lawyers and all the people, including, I 
am sure, people in the Clinton Department of Justice where he worked, 
and they rated him unanimously well qualified, as both of them should 
have been.
  So this talk that they are somehow extremist is just not right. When 
we see a woman of such good demeanor as Priscilla Owen displayed during 
her confirmation process--she took all of those questions, many of them 
based on false premises, with great skill and

[[Page S5841]]

aplomb, I thought, and handled herself well, as did Miguel Estrada--
this is a very unsatisfactory time in this Senate, when now for the 
first time in the history of America we have filibusters of circuit 
judges. This is not about a judge who some lawyers think has an 
integrity problem. Nobody has suggested that. They are not nominees who 
people think are somehow unqualified intellectually, or they have lack 
of experience or lack of ability to do the work. These are the best of 
America.
  Many of us have asked, why would they pick these two nominees? It 
seems one reason we keep coming back to--and it is so bizarre, I hate 
to repeat it almost--is that both of these nominees are clearly worthy 
of serious consideration for the Supreme Court of the United States. 
They are so fine and have such a marvelous breadth of experience and 
record of accomplishment in their lives that both of them ought to be 
on any shortlist for the Supreme Court of the United States. So is that 
why we are having an objection? They are too good, too qualified, too 
capable, too intelligent? I do not know, but something is awry when the 
filibuster is used against people of this quality. I feel very strongly 
about that.
  I agree with Senator Cornyn, and I am glad he is having hearings 
about it. I am glad he is inquiring into this because he has the 
judicial experience, integrity, and capability to maybe help us work 
our way through this maze. Maybe we can figure out a way to get around 
this. We certainly know the Constitution of the United States, clearly, 
in the case of advise and consent, will be by majority vote. It is very 
difficult to interpret it any other way.

  Let me say a little bit more about the sterling qualities of 
Priscilla Owen. She finished at the top of her class at Baylor Law 
School and aced the Texas bar exam. She made the highest possible score 
on the Texas bar exam. What better proof of legal ability objectively 
analyzed than by the tests you take for a bar exam. She passed that 
with flying colors, with the highest possible score. She was a partner 
at one of Texas's finest firms, Andrews and Kurth, when she ran for the 
Supreme Court in 1994. She practiced and litigated for 17 years and was 
recognized as one of Texas's finest lawyers; not some office clerk who 
never went to court, but a litigator who was out in the courtrooms in 
the Federal court and the State court trying cases and developing a 
reputation of excellence.
  She is a member of the American Law Institute, the American 
Adjudicatory Society, the American Bar Association, a Fellow of the 
American and Houston Bar Foundations. She was reelected to the Supreme 
Court in 2000, garnering 84 percent of the vote. She spent so little 
money in her campaign, despite her big win, that when it was over, she 
had a good bit of money left. She did something I have never heard of a 
politician doing: She went back and checked her contribution list and 
sent back everybody the money they gave to her. There is certainly no 
Senator who has done that. We like to keep our campaign account, 
thinking we may need it again some time. That was a voluntary action on 
her part that demonstrates her high character and high standards.
  She serves as the liaison to the Supreme Court of Texas court and 
mediation task force and the statewide committees on providing legal 
services to the poor and pro bono services. This mediation task force, 
I know, causes grief to some of our aggressive litigators, but 
mediation is a growing method of settling disputes, short of full-
fledged and highly expensive litigation. She has been at the forefront 
of that. I have not heard anyone complain about that.
  I ask myself, What is it people would complain about? Is it because 
she is looking for ways to reduce the costs of protracted litigation?
  She was part of a committee that successfully encouraged the Texas 
legislature to enact legislation that has resulted in millions of 
dollars a year in additional funds for providing legal services to the 
poor. She does not just sit there in the office and write opinions. She 
cares about justice. She wants to make sure everyone has a good day in 
court. She participated in a committee that raised millions of dollars 
to help the poor have better legal counsel. That is important. This is 
some extremist we are talking about?
  She serves as a member of the A.A. White Dispute Resolution 
Institute. She was instrumental in organizing a group known as Family 
Law 2000 which seeks to find ways to educate parents about the effect 
of a dissolution of a marriage, the effect on their children, and to 
lessen the adversarial nature of legal proceedings when a marriage is 
dissolved. That is important. A lot of parents get so caught up in the 
anger at their spouse. They have to realize that children are 
completely baffled by this. They are watching this fight going on with 
the parents, both of whom they love, and they want to be together, and 
it is a painful experience. The legal system and the court system of 
America needs to do a better job of thinking about the impact of these 
hostile, aggressive divorce proceedings on children. She took a lead in 
that. This is an extremist?

  Among other community activities, she serves on the Board of Texas 
Hearing and Service Dogs for the blind. She is a member of the St. 
Barnabas Episcopal Mission in Austin, TX, where she teaches Sunday 
school and is the head of the altar guild. Is this an extremist 
Episcopalian? That is a contradiction in terms.
  She earned her BA from Baylor and graduated cum laude from Baylor, 
and was a member of the Baylor Law Review. She was honored as the 
Baylor Young Lawyer of the Year and as a Baylor University outstanding 
young alumni.
  That led up to her sterling career and practice, her election to the 
Supreme Court of Texas, her nomination by the President of the United 
States, who is from Texas and knows her and knows her record. He 
nominated her for consideration by this body which led to her eventual 
rating by the Bar Association of America, unanimously well qualified. I 
am proud of her in that respect.
  They complain about these parental notification cases. In Texas, the 
law of Texas is a modest law. It says before a child can have an 
abortion, before they can be taken off someplace by some older 
boyfriend to have an abortion--and too often that is what the cases 
are--they at least ought to tell one parent. If they choose not to do 
that, they can go to court. If they have a good reason why they should 
not tell either parent, the court will allow them not to do so. It is 
called parental notification law. I think it makes sense. Virtually 
overwhelmingly, the American people support that; 80 something percent 
of the people support that. In Texas, you cannot get your ears pierced 
or a tattoo without parental consent--not just notification. So for 
Heaven's sake, it should not be considered extreme to require 
notification prior to an abortion. The Supreme Court of the United 
States has upheld these laws.
  Let me give the hard facts on these cases. The way it works in Texas, 
a child goes to a court and says: I don't want to tell my parents; they 
might get mad. The judge has a hearing. If the judge disagrees and 
says: No, you need to tell one of your parents; we believe you can tell 
your mother, you should tell your mother before you undergo this 
procedure, if you want to go forward, you can, but you should tell her. 
Then, if the young person is not happy with that, they can appeal. They 
take the appeal to the court of appeals in Texas, a three-judge court, 
and that three-judge court reviews the opinion of the trial judge. If 
the trial judge said the young person did not have to tell the parents, 
there is no appeal. It is over. The case will never even get to the 
court of appeals unless the trial court says no, you must tell your 
parents. If the court of appeals overrules the trial court, the case 
ends there.

  If the appellate judges after reviewing the record of the trial court 
conclude the trial court was correct and affirms that decision, then 
the young person can appeal again. In this case it would go to the 
Texas Supreme Court where Justice Owen sits.
  By the time it has gotten to the court, a trial judge has ruled 
notification is appropriate, and a three-judge intermediate appellate 
court of Texas has ruled it ought to be done.
  These are the numbers. Justice Owen agreed with the lower court 
opinion and voted to require parental notification in 10 of the 14 
cases. She voted to

[[Page S5842]]

reverse the lower court and grant the exception outright two times. She 
voted twice to just flat reverse the lower court and say the young 
person is entitled to an exception--on 2 of those 14 cases. And on 2 
cases she did not believe the lower court had done it correctly, had 
not heard the case fairly, and sent it back down for further hearings 
on the facts.
  In my experience as a litigator who has been involved in trying a lot 
of cases, that is about the percentage you would expect. You would 
expect that by the time a case has gone through two levels that the 
lower courts are probably right most of the time.
  So I just don't think that is an extreme record at all. I cannot 
believe they continue to persist in arguing she is somehow a judicial 
activist. As Senator Cornyn has pointed out, that was a reference to 
another judge's dissent; not her opinion even. It was unfair to say 
Judge Gonzales has said she was an activist. It is not so.
  As a matter of fact, I would add this: They say this lady is an 
extremist. She is not fit for the Federal court because she has not 
voted right on these parental notification cases. It is almost humorous 
to think about it. But she voted with the majority of the Texas Supreme 
Court in 11 of the 14 cases before that court. The full court voted to 
require parental notice in 7 cases and to grant the exception outright 
in 3 cases and to remand 4 cases.
  These are just excuses, for some reason, that are out there that have 
been used to block her. They do not withstand rigorous analysis.
  One more thing. Let's say she made a mistake. I don't know how many 
hundreds of cases she has heard on the supreme court. But the American 
Bar Association and the legal community in Texas, they know her. After 
a while you form an opinion of a judge and a lawyer. You have an 
opinion as to whether or not they have good judgment, whether they are 
capable, whether they work hard, whether they have integrity. Even if 
they make a mistake somewhere along the line in a case, that is not 
disqualifying. Any judge who ruled on thousands of cases is not going 
to be mistake free.
  I would say she has done extraordinarily well. We ought to listen to 
the opinions of those who know her, like Senator--Judge--Cornyn, her 
former colleague on the court; like all the major newspapers of Texas; 
like the American Bar Association; like her colleagues on the bench; 
and like President Bush, who knew her in Texas. She is qualified to an 
extraordinary degree and would make a magnificent circuit court judge 
and should be confirmed. We ought not to be in the midst of a historic 
filibuster on any nominee, really, but particularly this one.
  I thank the Chair and yield the floor. 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. SESSIONS. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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