[Congressional Record Volume 151, Number 53 (Wednesday, April 27, 2005)]
[Senate]
[Pages S4352-S4356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            MORNING BUSINESS

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be a period for the transaction of morning business up to 120 
minutes, the first 30 minutes under the control of the majority leader 
or his designee, the next 60 minutes under the control of Mr. Biden or 
his designee, and the final 30 minutes under the control of the 
majority leader or his designee.
  The Senator from the great State of Missouri.
  Mr. TALENT. My understanding is we are going first in morning 
business on this side of the aisle.
  The PRESIDING OFFICER (Mr. Vitter). The Senator is correct.


                          judicial nominations

  Mr. TALENT. Mr. President, I will claim 20 minutes of the time. I 
will appreciate it if the Presiding Officer notifies me when 15 minutes 
are up because Senator Hutchison wants to use 10 minutes. I want to 
make certain everyone knows I do not intend to filibuster this morning. 
There will be a limit to my remarks.
  I appreciated what the leader said about the highway bill. We do need 
to pass it. We need to pass a robust highway bill for all the reasons 
he stated. We are all very strongly for reducing the deficit, but 
spending on infrastructure is dynamic in nature, as I happen to believe 
tax cuts are dynamic in nature in the sense they produce economic 
growth. When we reduce the deficit, make this country competitive, help 
people get to work, Americans will get rid of the deficit if they can 
get to work in the morning. We need to have that debate in the Senate. 
Everyone needs to vote their conscience and vote out a robust highway 
and transportation bill.
  That is not what I am here to talk about this morning. I am here to 
talk about judicial nominations. We have spent altogether too much time 
on judicial nominations the last 2 years, 150 hours on judicial 
nominations--not even Supreme Court nominations but court of appeals 
nominations. We have

[[Page S4353]]

been told over and over again how important they are. And they are 
important. They are the second highest court in the country. There are 
only three levels of courts in the country so the second highest court 
is also the second lowest court. They do the day-to-day appellate 
business of the Federal courts. It certainly is very important, but it 
is not worth filibustering the Senate and obstructing it to death and 
preventing the vote on these nominees. That is basically my message 
today.
  For the first 214 years of this Senate, no nominee for the Federal 
court of appeals was ever successfully filibustered in the Senate. 
There were runt groups of Senators who in recent years tried 
filibusters, embryonic filibusters, that were cut off and defeated 
because the leadership of both parties, majority and minority 
leadership, opposed those filibusters on the grounds it was a mistake 
for this Senate to get in the business of filibustering judicial 
nominees. That was, until a couple years ago, the uniform point of 
view.
  Senator Boxer said--and I am not picking out Senators in any 
particular area; I guess they are alphabetic:

       According to the U.S. Constitution, the Senate nominates, 
     and the Senate shall provide advice and consent. It is not 
     the role of the Senate to obstruct the process and prevent 
     numbers of highly qualified nominees from even being given 
     the opportunity for a vote on the Senate floor.

  Senator Daschle, former Democratic leader:

       I find it simply baffling that a Senator would vote against 
     even voting on a judicial nomination . . . We have a 
     constitutional outlet for antipathy against a judicial 
     nominee--vote against the nominee.

  And, I add, let them have a vote.
  Senator Feinstein:

       A nominee is entitled to a vote. Vote them up; vote them 
     down . . .

  But vote on them.
  Senator Feinstein again:

       Our institutional integrity requires an up-or-down vote.

  I couldn't agree with that more. I will get to that a little bit 
later if I do not have so many digressions that I use up my 20 minutes.
  Senator Kennedy:

       We owe it to Americans across the country to give these 
     nominees a vote. If our Republican colleagues do not like 
     them, vote against them. But give them a vote.

  Senator Leahy, now the ranking member on the Judiciary Committee, 
former chairman of that committee:

       I cannot recall a judicial nomination being successfully 
     filibustered. I do recall earlier this year when the 
     Republican chairman of the Judiciary Committee and I noted 
     how improper it would be to filibuster a judicial nomination.

  Yes, he is right.
  Senator Leahy again:

       I . . . do not want to see the Senate go down a path where 
     a minority of the Senate is determining a judge's fate on 
     votes of 41 . . .

  With 41 Senators out of 100, if we allow the filibuster in these 
cases, you can stop a nominee from ever coming to a vote. So nominees 
with bipartisan majority support in the Senate do not even get a vote 
if we allow filibusters in these cases. That has been the case with all 
these nominees.

  I could go on and on with quotes. I will not do it.
  For 214 years we never had one successful filibuster of a court of 
appeals nominee, not one supported by the leaders of either party. In 
the last 2 years we have had 10 successful filibusters and 6 other 
threatened ones.
  What has happened? Is there something extraordinarily wrong with 
these nominees? No. I will go to two nominees before the Senate.
  Justice Priscilla Owen from Texas. I do not know Justice Owen. I did 
not insist she come in and speak to me before I voted on her 
nomination. Here is her history.
  Before joining the Texas Supreme Court, Justice Owen was a partner 
with the well-respected Texas law firm of Andrews and Kurth. She made 
partner. I never did. She practiced commercial litigation for 17 years. 
She earned a B.A. cum laude from Baylor University and graduated cum 
laude from Baylor Law School in 1977. After graduating from law school, 
Justice Owen earned the highest score in the State on the December 1977 
Texas bar exam. Lawyers within the sound of my voice know the 
difficulty of earning the highest score on the bar exam. I am not 
certain how I ever staggered through the Missouri bar, but I am certain 
I did not get the highest score.
  Justice Owen served on the Supreme Court in Texas since 1995. This 
person who could not even get a vote for 10 years has been a supreme 
court judge in Texas. She was reelected to her second term by 84 
percent of the vote. Every major newspaper in Texas endorsed her. She 
cannot get a vote. She has significant bipartisan support, including 
from three former Democratic judges on the Texas Supreme Court. I will 
read some of that in a minute.
  Justice Janice Rogers Brown from California is the daughter of 
sharecroppers, born in Greenville, AL, in 1949. She attended segregated 
schools in the era of Jim Crow. She moved to Sacramento, CA. Her family 
did. She got a B.A. in economics from California State in 1974 and her 
law degree from the UCLA Law School. She has received honorary law 
degrees from Pepperdine University, Catholic University of America Law 
School, and Southwestern University School of Law--three more honorary 
degrees than I have. She currently serves and is an associate justice--
another justice on the State Supreme Court who cannot get a vote. She 
has held that position since 1996. Before that, she was on the 
intermediate State appellate court. She got on the State court of 
appeals. She cannot get a vote to get on the Federal court of appeals. 
She is the first African-American woman to serve on California's 
highest court and was retained with 76 percent of the vote in the last 
election.
  I can go on and on with honorary degrees. She spent 24 years in 
public life in various legal capacities. She is experienced in judicial 
matters, in other governmental matters as a lawyer. She cannot get a 
vote. She is being filibustered.
  Some of my colleagues say these and the other eight are too extreme; 
they are not in the mainstream. I wish every Federal judge on the bench 
today had the qualifications of these people and the bipartisan support 
of these people. The people who know them best from their own States do 
not think they are too extreme.
  Raul Gonzalez, former Democratic Justice on the Supreme Court of 
Texas said of Justice Owen:

       I found her to be apolitical, extremely bright, diligent in 
     her work and of the highest integrity. I recommend her for 
     confirmation without reservation.

  I guess he would support a vote since he says we ought to confirm 
her.
  Here is another former Democratic Chief Justice:

       After years of closely observing Justice Owen's work, I can 
     assert with confidence that her approach to judicial 
     decision-making is restrained, her opinions are fair and well 
     reasoned, her integrity is beyond reproach . . . I know 
     personally how impeccable her credentials are.

  This is from a Democrat in Texas, one of her colleagues.
  Jack Hightower, a former Democratic Justice on the Supreme Court of 
Texas:

       I am a Democrat and my political philosophy is Democratic, 
     but I have tried very hard not to let preconceived philosophy 
     influence my decision on matters before the court. I believe 
     that Justice Owen has done the same.

  A bipartisan group of 15 former presidents of the State Bar of Texas:

       Although we profess different party affiliations and span 
     the spectrum of views of legal and policy issues, we stand 
     united in affirming that Justice Owen is a truly unique and 
     outstanding candidate for appointment to the Fifth Circuit . 
     . . The status of our profession in Texas has been 
     significantly enhanced by Justice Owen's advocacy of pro bono 
     service and leadership for the membership of the State bar of 
     Texas.
  They go on and on. These are 15 bipartisan former presidents of the 
State bar of Texas about Justice Priscilla Owen. She cannot get a vote. 
The 215-year tradition of not filibustering court of appeals nominees 
is broken to keep people such as her from not getting a vote.
  The same things can be said of Justice Janice Rogers Brown who 
appears to be an extraordinary person. A bipartisan group of 12 of her 
current and former judicial colleagues says:

       Much has been written about Justice Brown's humble 
     beginnings, and the story of her rise to the California 
     Supreme Court is truly compelling. But that alone would not 
     be enough to gain our endorsement for a seat on the federal 
     bench. We believe she is qualified because she is a superb 
     judge. We who have worked with her on a daily basis know

[[Page S4354]]

     her to be extremely intelligent, keenly analytical, and very 
     hard working. We know that she is a jurist who applies the 
     law without favor, without bias and with an even hand.

  And she can't get a vote. This 214-year tradition of not 
filibustering court of appeals judges, we are breaking to keep people 
such as this woman from getting on the Federal bench and even getting a 
vote because she is not in the mainstream.
  Here is the truth: There is not any one judicial mainstream, as there 
is no one mainstream of political philosophy in the Senate. Judges 
disagree about issues as Senators disagree about issues. The point is 
to disagree without being disagreeable. Disagree while recognizing the 
other person has a valid point of view. The fact that you do not agree 
with them does not make them automatically unfit even for a vote to 
serve on the Federal judiciary.
  President Clinton appointed a lot of judges during his time in office 
who were a lot more liberal than I would have liked. I probably 
wouldn't have appointed very many of them. I cannot say they are out of 
the mainstream. They represent the views of tens of millions of people 
in the country. When you say somebody who disagrees with you is out of 
the mainstream, you are slandering everyone who supports their views. 
It is not the right thing to do. It is extremely divisive.
  When we hear Members in the Senate say somebody else is not in the 
mainstream, what they mean is that other person disagrees with me. A 
confrontational person follows this logic: You say, They do not agree 
with me; therefore, they are not in the mainstream, and then when you 
add the filibuster on top of that, you say, therefore, I am not only 
not going to vote for them--which to me is the first mistake--but I am 
not even going to let them have a vote. What you are saying is they, 
and everyone such as them in the whole country and the Senate, do not 
even deserve a vote on whether they are qualified for public office.
  Then we wonder why this place gets divisive and why it is hard to 
operate because we are not showing respect to many who may disagree 
with us.
  My wife says, when she wants to bring me down to earth when I am on 
my high horse, Jim, wouldn't the world work wonderfully if everyone 
would only agree with you all the time about everything? We do not all 
agree with each other about everything. We have a vote and we go on. 
And then we try and concentrate on the areas where we do agree, such as 
the highway bill.
  The worst thing about this--and there are a lot of bad things about 
what is happening with regard to the filibustering of nominations, the 
breaking of this 214-year tradition--the worst thing about it is the 
slandering of the credentials and the careers of these qualified 
people.
  There is an old idiom, an old saying: People will forgive you the 
wrong you do them, but they will never forgive you the wrong they do 
you. Once, for whatever reason, they have done something that is wrong 
to you, then they may decide, you know what, I have to make that person 
out to be a bad person to justify the wrong I did to them in the first 
place.
  A filibuster of these people, breaking the tradition to do that, to 
not even let them have a vote, these people who have bipartisan 
majority support on the floor, to justify that, you have to say things 
about their records. That completely disserves their histories of 
public service and qualifications, as the people who know them best 
have said.

  The second worst thing about this whole issue is the fact that there 
are now large parts of the political community in this country, and 
even here, that, in order to support this effort and to win this battle 
that is going on, are treating the filibuster like it is a great thing. 
My heavens, there are groups that have made a mascot out of the 
filibuster. Filibuster is an extraordinary, obstructive tactic that is 
not even permitted in most legislative bodies. Even the advocates of it 
say it should be used sparingly.
  The case is actually being made on the floor of this Senate that the 
filibuster is part of our deliberative process, that it promotes 
calmness and coolness, compromise, moderation. Is this calmness? 
Holding these votes up for years, is this coolness? Is this compromise? 
We have used the filibuster for the first time in 214 years, taking yet 
another step with the device, making it more common, a device that even 
the advocates of it say should be used very sparingly.
  Do you want to know why? I will explain why. It has to do with the 
dynamics of a legislative body. If you care passionately about an issue 
before the Senate--and we should care passionately about these issues--
and you know that issue is going to come up for a vote, what are you 
going to do? If you know it is going to come up for a vote, and a 
majority is going to win, what are you going to do? You are going to 
appeal to the middle, aren't you? You are going to seek arguments and 
amendments and methods that get the middle with you. That encourages 
compromise. If you do not have the middle with you, and you know it is 
going to be voted on, and you know a majority is going to win, what is 
going to happen to your position? Even Senators can figure out that 
math. You are going to lose.
  The majoritarian process promotes compromise and discussion because 
it empowers the middle. Filibusters empower the extreme, and not just 
the extreme philosophically; they empower the confrontational people. I 
have nothing against people who take that point of view. And you need 
some of them in a legislative body, but you have to be careful how much 
you empower them. The people who say: Look, if it isn't the way I want 
it, it is not going to happen at all. It has to be my way or the 
highway--that is what filibusters empower. I am not saying we should 
not have it on the legislative calendar. But we have to remember there 
is a cost to it.
  Do you want to know why we don't have an energy bill? Because of the 
filibuster. There are a lot of other examples of legislation the 
country has wanted and needed that have been held up with the 
filibuster. It is a tactic with a cost. It should be used sparingly. It 
should not be extended in areas where it has not been used in the past 
with a bipartisan consensus. That is the reason all these distinguished 
Democratic Senators said, for years on the floor of this body: We are 
not going to filibuster judicial nominations. It is because they knew 
what would happen.
  We can be certain of one thing: The same standard is going to be 
applied in this body from President to President. I do not want the 
filibuster standard applied. I do not want a situation where because I 
disagree with a judicial nominee of a Democratic President, I am 
expected, as a matter of course--because that is the protocol and the 
precedent in this Senate--not to permit a vote. I believe--and it was 
the tradition here for years--that even if you disagree with a nominee, 
if they are competent and have integrity, you vote to confirm them out 
of respect for the process that elected that President and respect for 
the people and the party that person represents, even if you disagree. 
If they are a good person, you vote to confirm them. That is what I 
want to do in this Senate year by year.
  The PRESIDING OFFICER. The Senator has consumed 20 minutes.
  Mr. TALENT. One more minute, and I will really be done, if the 
Senator does not mind.
  At the very least, we have to allow a vote. Let's keep the tradition 
of 214 years in the Senate. Let us allow a vote on these people, all of 
whom have bipartisan, majority support on the floor of the Senate. 
Let's not continue doing an injustice to the reputation of these fine 
Americans. Let's preserve the traditions of the Senate, have this vote, 
and then move on to other issues.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I rise today in support of Priscilla 
Owen to serve on the Fifth Circuit Court of Appeals. I want to comment 
on the constitutional right of Senators to advise and consent to 
judicial nominations by the President, a right that is now being denied 
by tactics employed by the minority in the Senate.
  Priscilla Owen was nominated to the Fifth Circuit Court of Appeals 4 
years ago--4 years ago! She has been serving on the Supreme Court of 
Texas for 4 years, while awaiting her confirmation by the Senate. Yet 
she has actually had the votes to confirm her in the

[[Page S4355]]

Senate four times. Four times the Senate has voted on her nomination, 
and four times she has received a majority. On May 1, 2003, a cloture 
vote: 52 to 45 in her favor; May 8, 2003, 52 to 45; July 29, 2003, 53 
to 43; November 14, 2003, 53 to 42.
  In all these cases, she had a majority of votes in the Senate for 
confirmation, but she is not on the Fifth Circuit Court of Appeals 
today. Why? Because her nomination is being filibustered by Democrats, 
and she has been held to a standard of 60 votes instead of 51. That is 
changing the Constitution of the United States.
  I know Priscilla Owen. I have watched her through this process. If 
anything confirmed my admiration for her, it is the incredible calm and 
measured response she has displayed in response to unfair attacks which 
have sometimes been personal, unfair, and have had political overtones. 
Yet she has remained totally professional. She has gone through two 
hearings with the committee. She has answered every question members 
asked. Some people have said she is the best witness that has ever come 
before the Judiciary Committee. It is because she knows what she is 
doing. She knows the law. And she is very bright.
  She earned both her undergraduate and law degrees from Baylor 
University. She earned the highest score--the No. 1 score--on the Texas 
bar exam, when she took it. She has had a distinguished career in the 
private sector for 17 years. And since 1995, she has served on the 
Supreme Court of Texas.
  The American Bar Association unanimously voted for her to have the 
``well qualified'' recognition and rating. That is the highest rating 
they award, as they review judicial candidates--``well qualified.''
  I would ask those who are holding up her nomination by putting a 60-
vote threshold on it, in a completely partisan vote, what is it that 
caused her to have the entire Democratic conference come out against 
her? She has received bipartisan support nationwide.
  When she was reelected to the Texas Supreme Court in 2000, she 
received 84 percent of the vote. Every major newspaper in Texas 
endorsed her.
  Some of her detractors, I have to say, opposed her before they had 
ever heard one word about her. There were outside groups that decided 
she should not be a circuit court judge.
  Three former Democratic judges, who sat on the Texas Supreme Court, 
have announced their public support for her. A bipartisan group of 15 
past presidents of the Texas Bar Association have come out in open 
support of Priscilla Owen. I have to come away with the view that this 
is really not a debate about Priscilla Owen. This is not a debate about 
this woman who has an impeccable record and an impeccable academic 
background. No, I do not think it is about Priscilla Owen. I think it 
is about the Constitution and the requirement of advice and consent.
  The minority has changed the Constitution by filibustering judicial 
nominees, for the first time in the history of the Senate. For the 
first time in the history of the Senate--over 200 years--we saw, in the 
last session of Congress, a filibuster of almost one-third of President 
Bush's circuit court nominees. No President has ever received fewer of 
his circuit court nominees than President George W. Bush. Almost a 
third were filibustered to death.
  Before the 108th Congress, there were only 17 cloture votes on 
judicial nominations. But there was never a judge who had the support 
of the majority who failed to get confirmed. That is the key. For 70 
percent of the last century, the same party controlled the Senate and 
the White House, but there was no use of a partisan filibuster on 
nominees to prevent an up-or-down vote.
  It is not the rule that is being changed in this debate. It is the 
precedent of the Senate, for 200 years, that was changed in the 108th 
Congress, by requiring 60 votes for the confirmation of judges. And we 
are now looking to reaffirm the will of the Senate to do exactly what 
the Constitution envisions; and that is, a 51-vote majority for judges.
  Two hundred years of Senate precedent is being torn apart. Through 
Democrat majority control and Republican majority control over the 
years--the filibuster was not used as it was in the last session of 
Congress.
  As recently as March of 2000, more than 80 Senators were on record 
opposing the filibuster of judicial nominations because the filibuster 
was never intended to be used this way.
  The Senate's original cloture rule, in 1917, did not even apply to 
nominations because no Senator had ever used a filibuster for 
nominations. When the cloture rule was rewritten in 1949 to cover all 
matters, it was used most often for scheduling purposes. History 
demonstrates that there was no real precedent for the use of the 
filibuster to permanently block the confirmation of judicial 
nominations. And there has never been a cloture vote where the person 
received majority support and still was not confirmed. However, we are 
not trying to do away with the filibuster on legislative matters. This 
is a part of our tradition in the Constitution that everyone, I 
believe, wants to uphold; that is, the right of a minority to 
filibuster and require three-fifths of the people present and voting in 
the Senate to overturn it. It is a vital legislative tool. But when it 
comes to judges, the Constitution never envisioned a super-majority. In 
fact, where the Constitution has required a super-majority, it has 
specifically said so. A majority vote ensures the balance of power 
between the President's right to nominate and the Senate's role to give 
advice and consent.
  We are not only changing the tradition of the Senate with the 
filibuster of judicial nominations, we are changing the balance of 
power that was clearly set out in the Constitution and which has been 
one of the strengths of our democracy. The separation of powers and the 
balance of powers given to the legislative, executive, and judicial 
branches of our Government was the genius of the Founding Fathers.
  We value three independent branches in our Government and work to 
prohibit one branch from overruling another, beyond repair. These are 
the stakes in this debate. That balance of power is going to be 
disrupted if we allow a super-majority requirement for Presidential 
nominees or judgeships to be confirmed. It says a minority of 41 
Senators, who are not in the majority in the Senate, will have the 
ability to dictate to the President who is acceptable as a nominee.
  That was not envisioned in the Constitution, and it was part of the 
careful balance between the right of the President to appoint the 
judiciary and the Senate's right to overturn that appointment by 51 
votes, if necessary. But if the nominee gets the majority of 51, that 
person is confirmed.
  We are trying to uphold that constitutional balance. The rules of the 
Senate can be changed by the Senate. The Supreme Court has been clear. 
In the United States v. Ballin, the Supreme Court held that only a 
majority of the lawful quorum is all that is necessary to change the 
House or Senate rules, practices, and procedures. Moreover, the Supreme 
Court held that the right to change rules, practices, and procedures is 
a ``continuous power'' that may be exercised at any time.
  Clearly, the Senate has the right to change its rules and practices 
by the majority. I want the tradition of the Senate, for 200 years, to 
be upheld without any need for a rule change. For 200 years, Democrats 
and Republicans had agreed on this principle. It was not until the last 
session of Congress, when President George W. Bush lost almost one-
third of his judicial nominees for the circuit court benches that we 
saw sudden changes to the traditions of the Senate, with the effort to 
impose a 60-vote super-majority for nominations by the Democrats.
  I am here to talk about someone I know well, someone I have come to 
admire totally, even more than I did before she took this awesome 
responsibility to become a nominee of the President. She has withstood 
the slings and arrows. Her strength and sound judicial temperament has 
been consistent. Priscilla Owen has had the necessary 51 votes to be 
confirmed by the Senate four times. But still, we wait and have been 
waiting for four years. She deserves an up-or-down vote that will allow 
her to sit on the Fifth Circuit Court of Appeals bench.
  I hope we will not let 200 years of tradition go. But if it is the 
will of the minority to continue to thwart 200 years of tradition and 
the Constitution of the United States, it is my hope we reinstate the 
long-standing practice on

[[Page S4356]]

nominations in the Senate and adhere to the Constitution. Our Founding 
Fathers knew what they were doing. We should not change the 
Constitution without going through the appropriate amending process, 
which has not been done.
  We have unanimous consent for two more speakers, which we intend to 
continue to hold.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________