Congressional Record, Volume 151 Issue 66 (Wednesday, May 18, 2005)

[Congressional Record Volume 151, Number 66 (Wednesday, May 18, 2005)]
[Senate]
[Pages S5373-S5411]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE
FOR THE FIFTH CIRCUIT

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now
proceed to executive session to consider calendar No. 71, the
nomination of Priscilla Owen to be United States Circuit Judge for the
Fifth Circuit; provided further that the first hour of debate, from
9:45 to 10:45, be under the control of the majority leader or his
designee; further that the next hour, from 10:45 to 11:45, be under the
control of the Democratic leader or his designee; and the time for
debate rotate in a similar manner every 60 minutes; provided further
that the Senate recess from 3:45 to 4:45 to accommodate an all-Senators
briefing; provided further that the time from 5:45 to 7:15 be under the
control of the Democratic leader and the time from 7:15 to 7:45 be
under the control of the majority leader or his designee.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. REID. Mr. President, reserving the right to object, first of all,
I would ask the distinguished majority leader to amend his unanimous
consent request to have the time begin when we complete our statements
today. We might not be at a quarter of the hour, but whenever that
would be we would rotate on an hourly basis.
Mr. FRIST. Mr. President, I have no objection.
The ACTING PRESIDENT pro tempore. Is there objection to the modified
request?
Mr. REID. Mr. President, I have another reservation.
The ACTING PRESIDENT pro tempore. The Democratic leader.
Mr. REID. Mr. President, I would ask the distinguished majority
leader would we not be better off moving to

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get rid of--I don't mean that in a pejorative sense--but clear the
calendar of four, at this stage, noncontroversial judges? We could move
to Thomas Griffith, who is on the calendar. We could move to discharge
and consider the Michigan Circuit Court nominees, Griffin, McKeague,
and Neilson. We could get time agreements on all those. We would have
four circuit judges. They would be able to go to work within a few
days--actually go to work. Otherwise, they are going to be waiting
until we go through all of this. It would seem to me that would be the
better thing to do. So I would ask the distinguished majority leader if
he would agree that we could move to these, with reasonable time
agreements, prior to moving to Priscilla Owen?
The ACTING PRESIDENT pro tempore. The majority leader.
Mr. FRIST. Mr. President, through the Chair, we have given careful
consideration of which would be the most appropriate person to begin
with. It is Priscilla Owen. So we will proceed with Priscilla Owen.
There are five people on the Executive Calendar, and our intention
would be to debate these nominees, one by one; and hopefully, as other
nominees come out of the Judiciary Committee, to take them up as well.
So we will be proceeding with Priscilla Owen.
Mr. REID. Mr. President, one further statement.
The ACTING PRESIDENT pro tempore. The Democratic leader.
Mr. REID. Mr. President, in that we have started this process, my
friend, the distinguished majority leader, should be advised we will
not agree to committees meeting during the time we are doing debate on
Priscilla Owen.
The ACTING PRESIDENT pro tempore. Is there objection to the request,
as modified?
Mr. KENNEDY. Reserving the right to object, Mr. President.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I was wondering if our leader is familiar
with the letter which members of our Judiciary Committee sent to the
chairman of our committee that points out there are now some 30
vacancies on the Federal bench for which the President has not yet sent
a nominee to the Senate. If he would work with Senators of both parties
to identify qualified, consensus nominees for each of these spots, the
vacancy numbers on our courts could be lowered even further. However,
as much as we have offered to work with him finding these nominees and
getting them confirmed, there has been absolutely no response.
I am just wondering whether, as we are addressing the issues of one
nominee--and the issue that is before the Senate is filling vacancies
on the courts--I am just interested if the majority leader has any
information from the administration as to when we are going to be able
to fill these other nominations.
The ACTING PRESIDENT pro tempore. The majority leader.
Mr. FRIST. Mr. President, I would be happy to look at the letter and
request of the administration, what requests are made in the letter,
and see what their response would be.
In the meantime, Mr. President, what I would like to do is proceed
with Priscilla Owen, who is a qualified nominee, who is a nominee we
are going to have a lot of debate on back and forth, to determine
whether or not she is out of the mainstream, as people say. We will go
through regular order and take these nominees the President has
submitted to the Judiciary Committee, who have been fully evaluated in
the Judiciary Committee, and who now are on the Executive Calendar
ready for business.
So we are going to begin that debate shortly.
Mr. KENNEDY. Well, reserving my rights further, Mr. President, as I
understand, there is a new nominee who is on the Executive Calendar,
Brian Sandoval of Nevada, who has general broad support. Is he not a
nominee we could confirm in a matter of moments here? We could at least
take care of that vacancy.
Mr. FRIST. Mr. President, I do not believe he is on the Executive
Calendar. To the best of my knowledge--at least he is not on the
Executive Calendar as printed today.
The ACTING PRESIDENT pro tempore. Is there objection?
The Senator from Vermont.
Mr. LEAHY. Mr. President, reserving the right to object, and I shall
not, but I would also remind everybody that the distinguished
Democratic leader has said he had no objection to going to--this is a
court of appeals judge--Thomas Griffith, of Utah, to be U.S. circuit
judge for the District of Columbia circuit. While Mr. Griffith is one I
would vote against, for reasons I have already stated, from the nose
count I have, he would easily be confirmed.

I would also note that I have total agreement with the distinguished
senior Senator from Nevada, who said he would be willing to do this in
a relatively short time. I just mention that because I would not want
anybody to think this is a person being held up, even though some of us
object to him.
The ACTING PRESIDENT pro tempore. Is there objection?
The Democratic leader.
Mr. REID. Mr. President, I would also like to make a suggestion. The
idea is not original with me. I wish it were. But we had a meeting last
night. The distinguished majority leader was present at that meeting.
My friend, the junior Senator from Utah, suggested that what might be
good for this body is the same thing that happened when we had the
difficult issue here 6\1/2\ years ago dealing with the impeachment of a
President of the United States. At that time, we retired to the Old
Senate Chambers. No staff was there, just 100 Senators. We worked
through some very difficult problems, and it surprised everyone.
The distinguished Senator from Massachusetts and now retired Senator
Phil Gramm were the people who saved the day--two people who battled
ideologically for a combined total of 40 or 50 years. Basically,
because of them, we resolved an extremely difficult issue as to how the
impeachment would be handled.
So I would ask my distinguished friend, the Republican leader, to
consider joining with me and having, in the next day or so--hopefully
today--have all of us retire to the Chamber and sit down and talk
through this issue and see if there is a way we can resolve this short
of this so-called nuclear option. I think it would be good for the
body. I think it would be good for the American public to see we are
able to sit down in the same room and work things out. I am not sure
that we could, but I think it would be worthy of our efforts. Nothing
ventured, nothing gained. I would ask my friend if he would consider
following the suggestion of Senator Bennett of Utah.
The ACTING PRESIDENT pro tempore. The majority leader.
Mr. FRIST. Mr. President, as always, we will take into consideration
all suggestions and be happy to talk to the leadership on both sides of
the aisle as to whether that suggestion is the most appropriate way. We
have engaged in negotiations and attempts to satisfy both sides over
the last 4 months, 5 months, since these unprecedented filibusters came
before this body. After 214 years of a threshold of 50 votes, all of a
sudden, in the last Congress, it was radically changed by the other
side to become 60 votes, denying the sort of people--a little bit akin
to what we just heard over the last few minutes, where I am trying to
move to a qualified nominee, Priscilla Owen, and we hear these attempts
to delay, even right now, and to sidetrack and consider somebody else.
That is the challenge.
That is why we are on the floor of the Senate, with the light of day,
with the American people watching at this point, to take it to the body
of the Senate and ask that fundamental question: Is Priscilla Owen out
of the mainstream? Eighty-four percent of Texans think she is in the
mainstream. Are 84 percent of Texans out of the mainstream? If the
answer to that question is, no, they are not out of the mainstream,
then all we want is a vote, an up-or-down vote--accept, reject;
confirm, yes, no. That is all we are asking for.
We do not want the constitutional option. We did not ask for the
constitutional option. What has happened is because of the other side
of the aisle, in shattering the Senate tradition for 214 years, where
the filibuster was never even contemplated, now it is being used on a
routine basis. One out of every four of the President's nominees who
have come over for the circuit

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courts are filibustered, blocked, not given that courtesy of a vote,
when that is our responsibility, to give advice and consent.
So in response to my good friend, the Democratic leader, yes, as
proposals come forward, we will consider all. Both leaders spent 50
minutes or so, as the papers reported, today talking with people who
are trying to come to some reasonable conclusion. We will continue to
do that. So I would be happy to consider another idea.
I think what is important now, though, is to come to the floor of the
Senate. Let's shed light on this. Let's do take this. Yes, it is an
inside-the-Senate decision, and we make our own traditions and rules,
but it is important for the American people to see is Priscilla Owen,
is Janice Rogers Brown deserving of a vote, yes or no, on the floor of
the Senate.
So I would recommend we continue discussions and let's proceed with
this nominee, continue the debate over the course of the day, or it may
be 2 days, and answer this question: Is she qualified? Does she deserve
an up-or-down vote?
The ACTING PRESIDENT pro tempore. Is there objection to the request?
The Democratic leader.
Mr. REID. Mr. President, I know we need to move on. I want to briefly
say we are following the rules. We believe in following the rules, not
breaking the rules. And while it is good to talk about this up-or-down
vote, the fact is if we move forward as contemplated by the majority,
it is moving toward breaking the rules to change the rules. That is
improper. It will change the Senate forever and that is not good.
Mr. KENNEDY. Mr. President, further reserving the right to object, I
want to support our Democratic leader. I believe the record now is we
have approved 96 percent of the judicial nominees of this
administration. And as we know in terms of reading the Constitutional
Convention our Founding Fathers expected this was going to be, we were
going to exercise our own independent best judgment on nominees. And if
I could ask the majority leader, is this the same Priscilla Owen which
our current Attorney General suggested ``unconscionable acts of
judicial activism?'' That is, our current Attorney General has accused
this nominee of that kind of activity. Is this the same Priscilla Owen
who is now being recommended, about which our current Attorney General
made that comment not once, not twice, not three times, but 11 times?
Mr. McCONNELL. Regular order, Mr. President.
The ACTING PRESIDENT pro tempore. Regular order has been called for.
The Senator must either object or permit the request to move forward.
Is there objection? Without objection, it is so ordered.
Mr. KENNEDY. Reserving the right to object, I would not object----
The ACTING PRESIDENT pro tempore. The Senator cannot reserve the
right to object. He must object or grant the request.
Is there objection? Without objection, it is so ordered.
The clerk will report the nominee.
The legislative clerk read the nomination of Priscilla Richman Owen,
of Texas, to be United States Circuit Judge for the Fifth Circuit.
The ACTING PRESIDENT pro tempore. The first hour of debate is now
under the control of the majority leader or his designee.
The majority leader.
Mr. FRIST. Mr. President, I rise today as the leader of majority
party of the Senate, but I do not rise for party. I rise for principle.
I rise for the principle that judicial nominees with the support of the
majority of Senators deserve up-or-down votes on this floor. Debate the
nominee for 5 hours, debate the nominee for 50 hours, vote for the
nominee, vote against the nominee, confirm the nominee, reject the
nominee, but in the end vote.
Senators, colleagues, let's do our duty and vote. Judicial nominees
deserve an up-or-down vote.
In this debate we will discuss two of the President's judicial
nominees. These outstanding nominees, Priscilla Owen and Janice Rogers
Brown, had the support of a majority of Senators in the last Congress,
but they were denied, they were denied up or down votes. I expect we
will also discuss such consequential topics as the meaning of the
Constitution and Senate rules and procedures. No doubt this will be a
spirited debate, as it should be. And I also hope it will be a decisive
debate. So let us begin.
In the last Congress, for the first time in history a minority of
Senators obstructed the principle of a fair up-or-down vote on judicial
nominees. That was unprecedented. Never in 214 years of Senate history
had a judicial nominee with majority support been denied an up-or-down
vote. Yet it happened--again, and again, and again, and again, and
again, and again. A minority of Senators denied an up-or-down vote not
just once to one nominee but 18 times on 10 individual nominees. These
men and women, these nominees are among the best legal minds in America
and they all would be serving on the Federal bench today. All they
needed was a vote. But they were not given the courtesy of an up-or-
down vote on the floor of the Senate. The minority denied them a vote
and set a new precedent. The minority in the last Congress rewrote the
rules of advice and consent. They unilaterally increased the threshold
for confirmation from 50 votes, where it had been throughout history,
to 60 votes.
Now some in the minority say they will harden the precedent and
obstruct judicial nominees in this Congress. And if they are not
allowed to do so, if the Senate returns to the way it worked for 214
years, they will retaliate. They will obstruct the Senate's other
business. They will obstruct the people's business. They will hold back
our agenda to move America forward. An energy strategy to reduce our
dependence on foreign oil, held back; an end to the medical lawsuit
abuse to reduce the cost of health care, held back; a simpler, fairer
Tax Code to create jobs and to encourage economic growth, held back. A
minority of Senators will hold America back just because a majority of
Senators, a majority of people in this body want to do what most
Americans of all things expect us to do, and that is to vote.

The minority should allow Senators to fulfill our constitutional
responsibility of giving advice and consent and vote. And they should
allow America to move forward.
The principles that endured for 214 years do not endure because they
appeal to one party or the other. They endure because they serve a
vital purpose. In this case, the principle of an up-or-down vote
ensures the President can fulfill his constitutional duty to appoint
judges.
Let me read a passage in the Constitution.

The President shall have power, by and with the advice and
consent of the Senate, to make Treaties, provided two-thirds
of the Senate present concur, and he shall nominate, and by
and with the advice and consent of the Senate, shall appoint
Ambassadors, other public ministers and consuls, judges of
the Supreme court, and all other officers of the United
States.

The Framers wrote in the Constitution that two-thirds of Senators
must approve treaties, but they specifically did not require the same
number of votes to confirm judicial nominees.
After much debate and compromise, the Framers concluded that the
President should have power to appoint and the Senate should confirm or
reject nominees by a simple majority vote. For 214 years Republican and
Democratic minorities alike restrained themselves, they used restraint,
they abided by the Framers' design and Senate tradition and gave
nominees brought to this floor simple majority up-or-down votes. This
was the practice.
Then came the last Congress. With its obstruction the minority set a
new precedent--60 votes before the Senate could proceed to an up-or-
down vote on a judicial nominee. For 214 years the threshold for advice
and consent in the Senate was 50 votes, a majority. In the last
Congress----
Mr. SCHUMER. Would my colleague yield for a question.
Mr. FRIST. Mr. President, I would like to proceed with my statement
and would be happy to yield for a comment.
For 214 years the threshold for advice and consent in the Senate was
50 votes. In the last Congress the minority party radically increased
that threshold to 60, and that is wrong, and we will restore the
tradition.
This unprecedented threshold gave the minority a virtual veto, in
effect control, over the judicial appointments of the President. The
minority destroyed 214 years of Senate tradition,

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defied the clear intent of the Constitution, and undermined the
Democratic will of the American people. You can't get much more radical
than that.
This new precedent cannot be allowed to stand in this Congress. We
must restore the 214-year-old principle that every judicial nominee
with majority support deserves an up-or-down vote.
Why? First, the American people elect their Senators for a reason. It
is to represent them. And they expect us to do our job. The Senate is a
deliberative body. We are a proudly deliberative body. But we also have
certain responsibilities which include giving advice and consent on the
President's judicial nominations. When a judicial nominee comes to this
floor and has majority support but is denied a simple up-or-down vote,
Senators are simply not doing their job. And the sad fact is we did not
do our job in the last Congress. The minority's judicial obstruction
has saddled President Bush with the lowest confirmation rate for
appeals court nominees of any modern President. This is disgraceful. We
owe it to the people we serve and to the Senate as an institution to do
our job. We should vote up or down on judicial nominees.
Second, the judicial branch also has a job to do and it needs judges
to do it. Right now there are 46 vacancies on the Federal bench. That
includes 17 vacancies on appeals courts. But it is not just the
vacancies. Qualified nominees who can fill those seats can't get up-or-
down votes to be confirmed in the Senate.
Let me give you an example. Four of the 17 vacancies on Federal
appeals courts are in the region that serves my home State of
Tennessee--4 of the 17 vacancies. Those nominees have been waiting a
combined 13 years for a simple up-or-down vote on this floor--13 years
they have been waiting. Either confirm these nominees or reject the
nominees but don't leave them hanging. Don't leave our courts hanging.
Don't leave the country hanging. If nominees are rejected, fine, that
is fair. At least rejection represents a vote. But give nominees the
courtesy, the courtesy of a vote.
Third, judicial nominees deserve up-or-down votes because they
deserve to be treated fairly. Let me tell you about the nominees we are
about to consider, Priscilla Owen and Janice Rogers Brown. Priscilla
Owen has been a Texas Supreme Court Justice for the last 10 years. She
was reelected with 84 percent of the vote in 2000. Her service won
praise from Members of both parties. Former Justice Raul Gonzalez, a
Democrat, said:

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

Justice Owen has also been a leader for providing free legal service
for the poor and she has worked to soften the impact of legal
proceedings on children of divorcing parents.
On May 9, 2001, President Bush nominated Priscilla Owen to the Fifth
Circuit Court of Appeals. To this day, more than 4 years later, even
though a majority of Senators in this body support her, she has been
denied an up-or-down vote. That is just plain wrong, and it is unfair.
Priscilla Owen deserves a vote.
Now let me tell you about Janice Rogers Brown. She is the daughter of
an Alabama sharecropper. She was educated in segregated schools and
worked her way through college and law school. She went on to serve in
prominent positions in California State government. Today Janice Rogers
Brown is a justice on the California Supreme Court and she was retained
as a justice by the people of California with 76 percent of the vote.
On July 25, 2003, President Bush nominated Justice Brown for the U.S.
Court of appeals. To this day, nearly 2 years later, even though a
majority of Senators support her, she has been denied an up-or-down
vote on the floor of the Senate.
That is wrong. That is unfair. Janice Rogers Brown deserves a vote.
Janice Rogers Brown can get 76 percent of the vote in California,
Priscilla Owen can get 84 percent of the vote in Texas, but neither can
get a vote here on the floor of the Senate. Why? The minority says they
are out of the mainstream. Are 76 percent of Californians and 84
percent of Texans out of the mainstream? Denying Janice Rogers Brown
and Priscilla Owen a vote is what is out of the mainstream. Justice
Brown and Justice Owen deserve better. They deserve to be treated
fairly. They deserve the courtesy of a vote.
The consequences of this debate are not lost on any Member of this
body. Soon we, 100 Senators, will decide the question at hand: Should
we allow a minority of Senators to deny votes on judicial nominees who
have the support of a majority of this body or should we restore the
214-year practice of voting up or down on all judicial nominees who
come to this floor?
I have to believe the Senate will make the right choice. We will
choose the Constitution over obstruction. We will choose principle over
politics. We will choose votes over vacillation. And when we do, the
Senate will be the better for it. The Senate will be, as Daniel Webster
once described it:

. . . a body to which the country looks, with confidence, for
wise, moderate, patriotic, and healing counsels.

To realize this vision, we don't need to look as far back as the age
of Webster or Clay or Calhoun. All we must do is look at the recent
past and take inspiration from the era of Baker, Byrd, and Dole. For 70
percent of the 20th century, the same party controlled the White House
and the Senate. Yet during that period, no minority ever denied a
judicial nominee with majority support an up-or-down vote on this
floor. Howard Baker's Republican minority didn't deny Democrat Jimmy
Carter's nominees. Robert Byrd's Democratic minority did not deny
Republican Ronald Reagan's nominees. Bob Dole's Republican minority did
not deny Democrat Bill Clinton's nominees. These minorities showed
restraint. They respected the appointments process. They practiced the
fine but fragile art of political civility. Sure they disagreed with
the majority at times, but they nonetheless allowed up-or-down votes to
occur.
The Senate must do what is right. We must do what is fair. We must do
the job we were elected to do and took an oath to do. We must give
judicial nominees the up-or-down votes they deserve. Let us debate, and
let Senators be heard. Let the Senate decide, and let this body rise on
principle and do its duty and vote.
The PRESIDING OFFICER (Mr. DeMINT). The Senator from New York.
Mr. SCHUMER. Will my colleague from Tennessee yield for a question?
Mr. FRIST. Mr. President, I would be happy to.
Mr. SCHUMER. Mr. President, when I came on the floor, my colleague
was talking about the 214 years of tradition of no filibusters. Isn't
it correct that on March 8 of 2000, my friend from Tennessee voted to
uphold the filibuster of Richard Paez?
Mr. FRIST. Mr. President, in response, the Paez nomination--we will
come back and discuss it further. Actually, I would like to come back
to the floor and discuss it. It really brings to, I believe, a point
what is the issue. The issue is that we have leadership-led partisan
filibusters that have obstructed not 1 nominee but 2, 3, 4, 5, 6, 7, 8,
9, 10 in a routine way. The issue is not cloture votes per se; it is
the partisan leadership-led use of the cloture vote to kill, to defeat,
to assassinate these nominees. That is the difference.
Cloture has been used in the past on this floor to postpone, to get
more information, to ask further questions. But each and every time,
the nominee, including Paez, got an up-or-down vote on the floor of the
Senate where all 100 Senators could vote yes or no, confirm or reject.
Paez got an up-or-down vote. That is all that we ask on the floor,
that Priscilla Owen, that Justice Brown get a simple vote, approved,
disapproved, confirmed, rejected.
I yield the floor.
The PRESIDING OFFICER. The Democratic leader is recognized.
Mr. REID. Mr. President, the majority leader said that during the
Dole years, Clinton nominees were treated fairly. Sixty-nine Clinton
nominees were not even given the decency of a hearing. They never saw
the light of day. We have participated in hearings. The matters have
come to the floor. For my friend to say that Clinton was treated fairly
under the Dole years is simply untrue.
Everyone should know that Priscilla Owen and Janice Rogers Brown have
had votes right here on the Senate

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floor in compliance with the rules of the Senate. They have had votes.
It is as if we are retreating 50, 60 years. When you keep telling these
falsehoods enough, people start believing them. The American people are
not believing this. These two women about whom my friend speaks have
had votes.
My friend from Massachusetts asked a question. The President's
lawyer, Alberto Gonzales, and now the Attorney General of the United
States and previously a member of the Texas Supreme Court, said on
multiple occasions that Priscilla Owen's activism was unconscionable.
Alberto Gonzales is a smart man. He knows what the word means, but in
case someone doesn't, let me read what it does mean. Unconscionable:
Shockingly unjust and unscrupulous. That is what the Attorney General
of the United States of America says about Priscilla Owen. Mainstream?
I think not. Shockingly unjust or unscrupulous--that is what Priscilla
Owen is in the mind of the Attorney General of the United States.
I ask unanimous consent that my time be charged against the
Democrats' time when we take that, approximately an hour from now.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. There will be a lot more said about Priscilla Owen, but I
think a fairly good indication of the kind of judge she is should come
from the Attorney General of the United States who says that her
unconscionable activism is replete through her opinions. I assume he
knows what it means. I am confident he does. He is a brilliant man.
``Shockingly unjust, unscrupulous''--those are not the words of the
Senate Judiciary Committee, not some special interest group; those are
the words of the Attorney General of the United States about Priscilla
Owen. And she has had a vote here on the Senate floor.
Janice Rogers Brown, I am sure she has come from nothing to
something. I think that is good. That is the way America should be. But
before anyone starts crowing about the vote in California, she didn't
have an opponent. It is a Missouri system. She had no opponent.
Her opinions, if they weren't on such serious matters, would be
laughable--seriously, laughable. The California Supreme Court is made
up of seven justices; six of them are Republicans. She has dissented,
in the last 6 years alone, 31 different times.
Among other things, she has said: Supreme Court decisions upholding
New Deal protections, like the minimum wage and the 40-hour workweek,
are, in her words, ``the triumph of our own socialist revolution.''
Tell someone working at General Motors, tell someone working at
Titanium Metals in Henderson, NV, that the 40-hour workweek is part of
the socialist revolution. Tell somebody working on nights and weekends
and holidays that they can't get time and a half, or tell somebody
working at McDonald's or in a plastics factory in Fallon, NV, that they
are not entitled to the minimum wage. That is Janice Rogers Brown, who
has had a vote on the Senate floor.
Yesterday, I spoke about a statement the majority leader made calling
the filibuster a procedural gimmick. Again, going to the dictionary, it
defines gimmick as ``an ingenious new scheme or angle.'' The filibuster
is not a scheme, and it certainly is not new. The filibuster is far
from a procedural gimmick. It is part of the fabric of this institution
we call the Senate. It was well known in colonial legislatures, before
we became a country, and it is an integral part of our country's 214-
year history.
The first filibuster in the Congress happened in 1790. It was used by
lawmakers from Virginia and South Carolina who were trying to prevent
Philadelphia from hosting the first Congress. Since then, the
filibuster has been employed hundreds and hundreds and hundreds of
times. It has been employed on legislative matters. It has been
employed on procedural matters relating to the President's nominations
for Cabinet and sub-Cabinet posts. And it has been used on judges for
all those years. One scholar estimates that 20 percent of the judges
nominated by Presidents have fallen by the wayside, most of them as a
result of filibusters.
Senators have used the filibuster to stand up to popular Presidents,
to block legislation and, yes, even, as I have stated, to stall
executive nominees. The roots of the filibuster are found in the
Constitution and in our own rules.
In establishing each House of Congress, Article I, section 5 of the
Constitution states that:

Each House may determine the rules.

In crafting the rules of the Senate, Senators established the right
to extended debate. And they formalized it with rule XXII almost 100
years ago. This rule codified the practice that Senators could debate
extensively.
Under rule XXII, debate may be cut off under limited circumstances:
67 votes to end a filibuster of a motion to amend a Senate rule. That
is what is being attempted here. But, no, we are not going to follow
the Senate rules. No, because of the arrogance of power of this
Republican administration, which controls the Supreme Court, the House,
and the Senate. It is not enough that they come to the people's body
and say: Let's take our chances by a fair ball game. They are going to
change the rules in the middle of the ball game. Talk about people
having votes--these nominees, all 10 of them, have had votes. It is
unfair for the majority to continually say it is 10. Three of them
either retired or withdrew. We have agreed for votes on two others. It
is five people who are not in the mainstream. Janice Rogers Brown
accuses senior citizens of blithely cannibalizing their grandchildren.
That is in the mainstream? Priscilla Owen in the mainstream?

This administration is unwilling to play by the rules. It takes 67
votes to change a Senate rule when there is a filibuster in progress.
But we are going to have Cheney, the Vice President, come sit where the
Presiding Officer is sitting now and say that it only takes 51. This
great paragon of virtue is going to say it only takes a simple
majority. We need 60 votes to end a filibuster against legislative
business.
It doesn't take a legal scholar to know this. We have all read in the
newspapers that this is a slippery slope. Once you have a rule
changed--illegally--then you can do it again. There is precedent on the
books. In the future, it will be changed. If we decide we don't like
Bolton--the man who was chasing people down the hall throwing papers at
them--to be a representative of the U.N., if we decide we want to
filibuster him, we can change the rules to say he is the President's
man and is entitled to a simple majority vote. You cannot do that. It
may be an issue of importance to the President or the majority leader
on a legislative matter, so just change the rule. The precedent will
have been set. A simple majority is all that is necessary.
A conversation between Thomas Jefferson and George Washington I
believe describes the Senate and our Founding Fathers' vision of this
body in which we are so fortunate to serve. Jefferson asked Washington:

What is the purpose of the Senate? Washington responded
with a question of his own:
Why did you pour that coffee into your saucer?

Jefferson replied:

To cool it.

To which Washington said:

Even so, we pour legislation into the senatorial saucer to
cool it.

That is exactly what the filibuster does. It encourages moderation
and consensus, gives voice to the minority so cooler heads may prevail.
It also separates us from the House of Representatives, where the
majority rules through the Speaker appointing the Rules Committee. It
is very much in keeping with the spirit of the Government established
by the Framers of our Constitution, limited government, separation of
powers, and checks and balances. The filibuster is a critical tool in
keeping the majority in check. The Presiding Officer, who is a new
Member of the Senate, someday will be in the minority. That is the way
it works.
This central fact has been acknowledged and even praised by Senators
from both parties: The filibuster is a critical tool to keep the
majority in check. In fact, another freshman Senator, my colleague from
Georgia, Senator Isakson, recently shared a conversation he had with an
Iraqi Government official. Senator Isakson asked this official if he
was worried about the majority in Iraq overrunning the minority. The
official replied:

No . . . we have the secret weapon called the
``filibuster.''

[[Page S5378]]

In recalling the conversation, Senator Isakson remarked:

If there ever were a reason for optimism . . . it is one of
[the Iraq] minority leaders proudly stating one of the
pillars and principles of our Government as the way they
would ensure that the majority never overran the minority.

They were comparing what they were going to experience in Iraq to
what we now have--the filibuster. Of course, he was right.
I spoke yesterday about Senator Holt and his 1939 filibuster to
protect workers' wages and hours. There are also recent examples of the
filibuster achieving good.
In 1985, Senators from rural States--even though there were few of
them--used the filibuster to force Congress to address a major crisis
in which thousands of farmers were on the brink of bankruptcy.
In 1995, 10 years later, the filibuster was used by Senators to
protect the rights of workers to a fair wage and a safe workplace.
I cannot stand here and say the filibuster has always been used for
positive purposes. It has not. Just as it has been used to bring about
social change, it was also used to stall progress that this country
needed to make. It is often shown that the filibuster was used against
civil rights legislation. But civil rights legislation passed. Civil
rights advocates met the burden. It is noteworthy that today, as I
speak, the Congressional Black Caucus is opposed to the nuclear
option--unanimously opposed to it.
For further analysis, let's look at Robert Caro. He is a noted
historian and Pulitzer Prize winner, and he said this at a meeting I
attended. He spoke about the history of the filibuster. He made a point
about its legacy that was important. He noted that when legislation is
supported by the majority of Americans, it eventually overcomes a
filibuster's delay, as a public protest far outweighs any Senator's
appetite to filibuster.

But when legislation only has the support of the minority, the
filibuster slows the legislation--prevents a Senator from ramming it
through, and gives the American people enough time to join the
opposition.
Mr. President, the right to extended debate is never more important
than when one party controls Congress and the White House. In these
cases, the filibuster serves as a check on power and preserves our
limited government.
Right now, the only check on President Bush is the Democrats' ability
to voice their concern in this body, the Senate. If Republicans roll
back our rights in this Chamber, there will be no check on their power.
The radical rightwing will be free to pursue any agenda they want, and
not just in judges. Their power will be unchecked on Supreme Court
nominees, the President's nominees in general, and legislation such as
Social Security privatization.
Of course, the President would like the power to name anybody he
wants to lifetime seats on the Supreme Court and other Federal courts.
It is interesting to note that the statistics used by the majority
leader do not take into consideration the nominees who we have been
willing to clear. Sure, you get statistics like that when they will not
bring them forward.
Basically, that is why the White House has been aggressively lobbying
Senate Republicans to change Senate rules in a way that would hand
dangerous new powers over to the President over two separate branches--
the Congress and the judiciary--and he and his people are lobbying the
Senate to break the rules to change the rules. I am sorry to say this
is part of a disturbing pattern of behavior by this White House and the
Republicans in Washington, especially the leadership.
From Dick Cheney's fight to slam the doors of the White House so the
American people are kept in the dark about energy policy while the
White House has the lights turned on--between the public interests or
the corporate interests, it is always the corporate interests--to the
President's refusal to cooperate with the 9/11 Commission, to Senate
Republicans' attempt to destroy the last check in Washington on
Republican power, to the House majority's quest to silence the minority
in the House, Republicans have sought to destroy the balance of power
in our Government by grabbing power for the Presidency, silencing the
minority, and weakening our democracy.
America does not work that way. The radical rightwing should not be
allowed to dictate to the President and to the Republican Senate
leaders, as they are trying to do.
For 200 years, we have had the right to extended debate. It is not
some ``procedural gimmick.'' It is within the vision of the Founding
Fathers of this country. They did it; we didn't do it. They established
a government so that no one person and no single party could have total
control.
Some in this Chamber want to throw out 214 years of Senate history in
the quest for absolute power. They want to do away with Mr. Smith, as
depicted in that great movie, being able to come to Washington. They
want to do away with the filibuster. They think they are wiser than our
Founding Fathers. I doubt that is true.
Mr. President, will the Senator notify us as to how much time the
Republicans have in the first wave of statements and how much time the
Democrats have when they are allowed to make statements?
The PRESIDING OFFICER (Mr. Graham). The Republicans have 42 minutes
and the Democrats have 41 minutes.
Mr. REID. I thank the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Parliamentary inquiry: It was my understanding that I
was to have 1 hour because a good bit of time has been consumed by
dialog and questions earlier today.
Mr. REID. Mr. President, I will respond, if I could. As indicated,
that is why I asked the question. You have 42 minutes and we have 41.
We need to stick to that. I would have no objection to your using the
full time and deducting 15 minutes, or whatever it is, from the next
hour that you have. That would be appropriate.
Mr. SPECTER. Mr. President, that would be acceptable to me. I am the
manager, in my capacity as chairman of the Judiciary Committee, on
Priscilla Owen. We would accommodate to have an equal amount of time
allotted to the Democrats. It may be, Mr. President, that I will not
use the full hour.
Mr. REID. I simply say, if the Senator needs the full hour, I ask
that it be deducted so we can kind of keep on track here. We will use
42 minutes our first go-around. We ask that you deduct whatever time
you use off of the second time that you are to be recognized.
Mr. FRIST. Mr. President, I ask the distinguished chairman this. We
have 41 minutes on our side and 42 on the other side. If you don't
complete your remarks in 41 minutes, then we will agree to yield an
equivalent amount of time in the next hour, to deduct that equal amount
of time in the next hour from both sides.
Mr. REID. We don't need the time on our side.
Mr. LEAHY. Mr. President, I think the suggestion the Senator from
Pennsylvania made was a good one. Whatever time he uses beyond the 40
minutes, we get an equal amount of time here. That way we would also
know where we stand. The distinguished Senator from Nevada--
Mr. REID. Then following the two managers making their statements,
thereafter, we go to an hourly timeframe and we have to, I think--it
would be good for the managers not to be extending the time because it
makes it impossible when you have people scheduled to come over here. I
agree to this under the extraordinary circumstances also of the two
managers of this nomination--that they be given a full hour. Following
that, the Republicans would be recognized for an hour, and the
Democrats for an hour, and we go on that basis.
Mr. President, I have somebody here complaining that we have already
set the schedule. We are entitled to the time by the rules.
Mr. FRIST. Mr. President, I ask if the chairman would try to keep his
remarks within the time limit agreed to, about 42 minutes, and we can
stay on schedule. I ask the Democratic leader, would that be
acceptable? I ask unanimous consent that we, as agreed earlier, have 42
minutes on our side and 41 minutes on the other side.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania is recognized.

[[Page S5379]]

Mr. SPECTER. Mr. President, as we begin consideration of the
nomination of Texas Supreme Court Justice Priscilla Owen for the U.S.
Court of Appeals for the Fifth Circuit, the Senate Chamber is filled
with anticipation that we may be embarking on a historic debate which
could redefine minority rights in the Senate and impact our fundamental
constitutional doctrine of separation of powers.
As we all know, if 60 votes are not obtained to invoke cloture to cut
off debate on this nominee and three others to be called up
sequentially for confirmation votes, a ruling is likely to be sought to
change the required vote from 60 to 51, unless a compromise can first
be reached.
This controversy did not arise, in my judgment, because Democrats
concluded that Miguel Estrada and nine other President Bush circuit
court nominees were unqualified, so they should be filibustered, but
rather because it was payback time for Republican treatment of
President Clinton's nominees.
While there have been a few scattered cloture votes in the history of
the Senate, it is totally unprecedented for a party to engage in such a
systematic pattern of filibusters. In almost 25 years on the Judiciary
Committee, I have seen circuit court nominees confirmed routinely where
their qualifications were no better than those under fire today. These
filibusters are the combination of a power struggle between Republicans
and Democrats as to which party can control the judicial selection
process through partisan maneuvering.
As a starting point, it is important to acknowledge that both sides--
Democrats and Republicans--have been at fault. Both claim they are the
victims and that their party's nominees have been treated worse than
the other's. Both sides cite endless statistics. I have heard so many
numbers spun so many different ways that my head is spinning. I think
even Benjamin Disraeli, the man who coined the phrase, there are
``lies, damn lies, and statistics,'' would be amazed at the creativity
employed by both sides in contriving numbers in this debate.
In 1987, upon gaining control of the Senate and the Judiciary
Committee, the Democrats denied hearings to seven of President Reagan's
circuit court nominees and denied floor votes for two additional
circuit court nominees. As a result, the confirmation for Reagan
circuit nominees fell from 89 percent prior to the Democratic takeover
to 65 percent afterwards.
While the confirmation rate decreased, the length of time it took to
confirm judges increased. From the Carter administration through the
first 6 years of the Reagan administration, the confirmation process
for both district and circuit court seats consistently hovered at
approximately 50 days. For President Reagan's final Congress, however,
the number doubled to an average of 120 days for these nominees to be
confirmed. The pattern of delay and denial continued for 4 years of
President George H.W. Bush's administration. President Bush's lower
court nominees waited on average 100 days to be confirmed, which is
about twice as long as had historically been the case. The Democrats
also denied hearings for more nominees.
President Carter had 10 nominees who did not receive hearings. For
President Reagan, the number was 30. In the Bush senior administration,
the number jumped to 58.
When we Republicans won the 1994 election and gained the Senate
majority, we exacerbated the pattern of delay and blocking of
nominations. Over the course of President Clinton's Presidency, the
average number of days for the Senate to confirm judicial nominees
increased even further to 192 days for district court nominees and 262
days for circuit court nominees. Through blue slips and holds, 70 of
President Clinton's nominees were blocked.
During that time, I urged my Republican colleagues on the Judiciary
Committee to confirm well-qualified Democrats. For example, I broke
rank with my colleagues on the Republican side to speak and vote in
favor of Marsha Berzon and Richard Paez.
After the 2002 elections, with control of the Senate returning to
Republicans, the Democrats resorted to the filibuster on 10 circuit
court nominations, which was the most extensive use of that tactic,
really unprecedented, in the Nation's history.
The filibuster started with Miguel Estrada, one of the most competent
and talented appellate lawyers in the country. The Democrats followed
with filibusters against nine other circuit court nominees. During the
108th Congress, there were 20 cloture motions on 10 nominations, and
all 20 failed.
To this unprecedented move, President Bush responded by making for
the first time in the Nation's history two recess appointments of
nominees who had been successfully filibustered by the Democrats. That
impasse was broken when President Bush agreed to refrain from further
recess appointments.
Against this background of bitter and angry recriminations, with each
party serially trumpeting the other party to get even or really to
dominate, the Senate now faces dual threats. One called the filibuster
and the other the constitutional or nuclear option which rivals the
U.S.-U.S.S.R. confrontation of mutual assured destruction. Both
situations are accurately described by the acronym, MAD.
We Republicans are threatening to employ the constitutional or
nuclear option to require only a majority vote to end judicial
filibusters. The Democrats are threatening to retaliate by stopping the
Senate agenda on all matters except national security and homeland
defense. Each ascribes to the other the responsibility for blowing up
the place.
This gridlock occurs at a time when we expect a U.S. Supreme Court
vacancy within the next few months. If a filibuster would leave an
eight-person Court, we could expect many 4-to-4 votes since the Court
now decides cases with 5-to-4 votes. A Supreme Court tie vote would
render the Court dysfunctional leaving in effect the circuit court
decision with many splits among the circuits, so the rule of law would
be suspended on many major issues.
Regardless of which side wins the vote on the constitutional or
nuclear option, there would be serious consequences. If the option
succeeds, first, the rights of the Senate's minority would be
significantly diminished, and, second, reducing the cloture vote on
nominees would inevitably and ultimately invite a similar attack on
cloture on the legislative calendar which would change the nature of
the Senate tremendously.
On the other hand, if the option fails, there are undesirable
consequences. Then, any Senate minority party of 41 or more would be
emboldened to institutionally and permanently revise the balance of
power between the President's constitutional power of nominations and
the Senate's constitutional authority for confirmation.

Second, I think it would embolden the Democrats to use the filibuster
on other Presidential nominations, such as John Bolton whose nomination
is pending before the Senate for ambassador to the U.N.
After a Democratic member of the Foreign Relations Committee put a
hold on the Bolton nomination, the ranking member was quoted on a
Sunday talk show as saying:

It's too premature to talk about filibustering Mr. Bolton.

Therefore, it is obvious that a filibuster on Bolton is not ruled
out.
A vote on the constitutional or nuclear option could affect an
imminent nomination or nominations to the Supreme Court. If a vote on
the option failed, it would be a reaffirmation of the Democratic
minority's power to filibuster any judicial nominee without necessarily
showing substantial cause or extraordinary circumstances. If the option
passed, it could give the President greater leverage, reducing his
concern that his nomination could be thwarted.
Historically--and I believe this is of tremendous importance, Mr.
President--historically, the constitutional separation of powers has
worked best when there was a little play in the so-called joints. When
both sides are unsure of the outcome, the result is more likely to be
in the middle rather than at either extreme.
On the current state of the record, in my opinion, the outcome of a
prospective vote on the constitutional or nuclear option is uncertain.
I have not rendered a decision because I believe I can be most helpful
on brokering a compromise by remaining silent. When neither side is
confident of success--

[[Page S5380]]

and I think that is the case today--the chances for compromise are far
greater.
As I see it, the national interest would be served by structuring a
compromise to return to the status quo before 1987. When Senator Harry
Reid, the Democratic leader, says his party would abandon the
filibuster unless there are ``extraordinary circumstances,'' that
escape clause should be narrowly defined and codified in a Senate rule
instead of an agreement between the parties' leaders.
Even with a narrowly defined definition of what constitutes
extraordinary circumstances, the final decision would necessarily
reside with the individual Senators in the case of any perceived
ambiguity. If we Republicans then concluded that there was not a good-
faith exercise of extraordinary circumstances, we could regard the
agreement as vitiated and feel free to resort to the constitutional or
nuclear option.
To achieve a compromise, Senators must take the initiative without
being unduly influenced by the far left or far right. It has not
escaped attention that the so-called groups are using this controversy
as major fundraising vehicles. I continue to be personally highly
offended by the commercials, from Gregory Peck in 1987 to the ones
broadcast this weekend in Pennsylvania, seeking to influence my own
vote. Believe me, they are counterproductive or ineffectual at best and
certainly insulting.
Senators, with our leaders, must take charge to craft a way out. The
fact is, all or almost all of the Senators want to avoid the pending
crisis. I have had many conversations with my Democratic colleagues
about the filibuster of judicial nominees. Many of them have told me
they do not personally believe it is a good idea to filibuster
President Bush's judicial nominees in such a pattern. They believe this
unprecedented use of a filibuster does damage to this institution and
to the prerogatives of the President. Yet despite their concerns, they
have given in to party loyalty and voted repeatedly to filibuster
Federal judges in the last Congress.
Likewise, there are many Republicans in this body who question the
wisdom of the constitutional or nuclear option. They recognize that
such a step would be a serious blow to the rights of the minority that
have always distinguished this body from the House of Representatives.
Knowing that the Senate is a body that depends upon collegiality and
compromise to pass even the smallest resolution, many of my Republican
colleagues worry that the rule change would impair the ability of the
institution to function.
I have repeatedly heard colleagues on both sides of the aisle say it
is a matter of saving face. But as yet, we have not found a formula to
do so. I suggest the way to work through the current impasse is to
bring to the floor circuit court nominees one by one for up-or-down
votes with both leaders explicitly releasing their Members from party-
line voting.
There are at least five, and perhaps as many as seven, pending
circuit court nominees who could be confirmed or at least voted up or
down. If the straitjacket of party loyalty were removed, even more
might be confirmed.
In moving in the Judiciary Committee to select nominees for floor
action shortly after becoming chairman earlier this year, I first
selected William Myers because two Democrats had voted to end debate in
the 108th Congress and one candidate for the Senate in 2004 since
elected made a campaign statement that he would vote to end the Myers
filibuster and confirm him. Adding those 3 votes to 55 Republicans, we
were within striking distance to reach 60 or more.

I carefully examined Myers' record. Noting that he had opposition
from some groups such as Friends of the Earth and the Sierra Club, it
was my conclusion that nonetheless his environmental record was
satisfactory, or at least not a disqualifier, as detailed in my
statement at the Judiciary Committee executive session on March 17.
To be sure, critics could pick at his record, as they could at any
Senator's record, but overall, in my judgment, Mr. Myers was worthy of
confirmation.
I then set out to solicit views on Myers, including the ranchers,
loggers, miners, and farmers. In those quarters, I found significant
enthusiasm for his confirmation. I then urged them to have their
members contact Senators who might be swing votes. I then followed up
with personal talks to many of those Senators and found several
prospects to vote for cloture.
Then the screws of party loyalty were applied and tightened, and the
prospects for obtaining the additional votes to secure 60 for cloture--
the prospects vanished. I am confident that if the party pressure had
not been applied, the Myers filibuster would have ended, and he would
have been confirmed. That result could still be obtained if the
straitjacket of party loyalty were removed on the Myers nomination.
Informally, but authoritatively, I have been told that the Democrats
will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith
is on the Senate calendar awaiting floor action and Boyle is on the
agenda for Judiciary Committee action. Both could be confirmed this
month.
There are no objections to three nominations from the State of
Michigan for the Sixth Circuit, Richard Griffin, David McKeague and
Susan Neilsen, but their confirmations are held up because of
objections to a fourth nominee. I urge my Democratic colleagues to
confirm these three uncontested Michigan Sixth Circuit nominees and
fight out the fourth vacancy and the Michigan District Court vacancies
on another day. The Michigan Senators do make a valid point on the need
for consultation on the other Michigan vacancies, and I believe that
can be accommodated.
In the exchange of offers and counteroffers between Senator Frist and
Senator Reid, Democrats have made an offer to avoid a vote--on the
nuclear option--by confirming one or perhaps two of the four
filibustered judges: Priscilla Owen, Janice Rogers Brown, William H.
Pryor, or William Myers, with the choice to be selected by Republicans.
An offer to confirm any one or two of four nominees is an explicit
concession that each is qualified for the court and that they are being
held hostage as pawns in a convoluted chess game which has spiraled out
of control.
If the Democrats really believe each one is unqualified, a deal for
confirmation for any one of them is repugnant to the basic Democratic
principle of individual fair and equitable treatment and violates
Senators' oaths on the constitutional confirmation process. Such a deal
on confirmations would only confirm public cynicism about what goes on
in Washington behind closed doors.
Instead, let the Senate consider each of the four without the
constraints of party-line voting. Let both leaders release their
caucuses from the straitjacket of party-line voting and even encourage
Members to vote their consciences on these issues of great national
importance. Let us revert to the tried-and-tested method of evaluating
each nominee individually.
In a ``press availability'' on March 10, Senator Reid referred to the
nuclear option and said:

If it does come to a vote I ask Senator Frist to allow his
Republican colleagues to follow their conscience. Senator
Specter recently said that Senators should not be bound by
Senate loyalty--they should be bound by Senate loyalty rather
than by party loyalty on a question of this magnitude. I
agree.

But Senator Reid did not make any reference to my urging him to have
the Democrats reject the party-line straitjacket on filibustering. If
both parties were to vote their consciences without regard to the party
line, I believe that the filibusters would disappear in the context of
the current constitutional crisis and many, if not most, Republicans
who do not like the constitutional/nuclear option would abandon it.
The fact is that any harm to the Republic, at worst by confirming all
of the pending circuit court nominees, is infinitesimal compared to the
harm to the Senate whichever way the vote would turn out on the
nuclear/constitutional option. None of these circuit judges could make
new law because all are bound and each agreed on the record to follow
U.S. Supreme Court decisions. While it is frequently argued that
circuit court opinions are, in many cases, final because the Supreme
Court grants certiorari in so few cases, circuit courts sit in panels
of three so that no one of these nominees could

[[Page S5381]]

unilaterally render an egregious decision, since at least one other
circuit judge on the panel must concur.
If a situation does arise where a panel of three circuit judges makes
an egregious decision, it is subject to correction by the court en
banc, and then the case may always be reviewed by the Supreme Court if
it is really egregious.
While it would be naive to deny that the quid pro quo or log rolling
are not frequent congressional practices, these approaches are not the
best way to formulate public policy or make governmental decisions. The
Senate has a roadmap to avoid the nuclear winter in a principled way.
Five of the controversial judges can be brought up for up-or-down votes
on this state of the record, and the others are entitled to
individualized treatment on the filibuster issue. It may be that the
opponents of one or more of these judges may persuade a majority of
Senators, including some Republican Senators, that confirmation should
be rejected. A group of Republican moderates has, with some frequency,
joined Democrats to defeat a party-line vote. The President has been
explicit in seeking only up-or-down votes as opposed to commitments on
confirmation.

The Senate has arrived at this confrontation by exacerbation, as each
side ratcheted up the ante in delaying and denying confirmation to the
other party's Presidential nominees. The policy of conciliation and
consultation could diffuse the situation. One good turn deserves
another. If one side realistically and sincerely takes the high ground,
there will be tremendous pressure on the other side to follow suit. So
far, offers by both sides have been public relations maneuvers to
appear reasonable, to avoid blame and place it elsewhere.
Meanwhile, the far left and the far right are urging each side to the
shun compromise. One side shouts ``pull the trigger.'' The other side
retorts, ``filibuster forever.'' Their approach would lead to the
extreme judges at each end of the political spectrum as control of the
Senate inevitably shifts from one party to another.
Late yesterday afternoon, a group of so-called moderate Senators met
with the leaders, and one idea which came from one of the Democratic
Senators was to consider the five nominees--Owen, Brown, Pryor, and
Myers, along with Judge Saad of Michigan--and then to either have three
confirmed, two rejected; or two confirmed and three rejected.
The suggestion was then made that if all of the nominees could get a
floor vote, that there might be a whip check to determine whether two
might not pass on a rollcall vote, which is the way the Senate
functions. That consideration I think is worth further exploration.
A well-known story is told about Benjamin Franklin. Upon exiting the
Constitutional Convention in Philadelphia, he was approached by a group
of citizens asking what sort of a government the constitutional
delegates had created. Franklin responded, ``A Republic, if you can
keep it.''
In this brief response, Franklin captured the essential fragility of
our great democracy. Although enshrined in a written Constitution and
housed in granite buildings, our government is utterly dependent upon
something far less permanent, the wisdom of its leaders. Our Founding
Fathers gave us a great treasure, but like any inheritance, we pass it
on to successive generations only if our generation does not squander
it. If we seek to emulate the vision and restraint of Franklin and the
Founding Fathers, we can hand down to our children and grandchildren
the Republic they deserve, but if we turn our backs on their example,
we will debase and cheapen what they have given us.
At this critical juncture in the history of the Senate, let us tread
carefully, choose wisely, and prove ourselves worthy of our great
inheritance. Since the United States and the Union of Soviet Socialist
Republics avoided a nuclear confrontation in the Cold War by
concessions and confidence-building measures, why should not Senators
do the same by crossing the aisle in the spirit of compromise?
Mr. President, I now turn to the specifics on the nomination of Texas
Supreme Court Justice Priscilla Owen. She comes to the floor of the
Senate for consideration with an outstanding academic record. She
attended the University of Texas in 1972 and 1973. She graduated from
Baylor University in 1975, cum laude, from the Baylor University School
of Law in 1977, cum laude, evidencing an excellent academic record. She
has a fine professional record with a practice of Sheehy, Lovelace and
Mayfield, where she was a law clerk in 1976 and 1977, and then an
associate and partner at Andrews, Kurth, Campbell and Jones from 1978
to 1994. From 1995 to the present, she has been a justice on the
Supreme Court of Texas.
She was at the top of her law school class; in 5 years, completed law
school and undergraduate, contrasted with the usual 7. She had the
highest score on the statewide bar exam and was reelected with 84
percent of the vote and endorsement of every major newspaper.
The American Bar Association has unanimously rated her well
qualified.
In the course of her work on the Texas Supreme Court, she has handed
down many decisions which have demonstrated real analytical and real
legal scholarship. She has been criticized on some of the decisions
which she has rendered on the so-called judicial bypass.
Under the a Texas law, constitutional under U.S. Supreme Court
precedent, a minor may have an abortion if there is notice to at least
one parent.
Justice Owen has been criticized, with a very broad brush, for being
hostile to Roe v. Wade, which on the record is simply not true.
In the case of Jane Doe (I), in the year 2000, she voted with the
majority but filed a concurring opinion. The language she used was that
the legislature intended for the minors to learn about arguments
``surrounding abortion'', and not ``against'' abortion. So, in handing
down this decision, she was not urging that minors making their
decision on obtaining an abortion hear the arguments against abortion,
but rather ``surrounding,'' which would obviously state both sides.
On cases where she has denied judicial bypass, they have been in the
context of sound judicial principle, where she has refused to overturn
the findings of the lower court judge who had access to the witnesses
and could see and hear exactly what was going on and had a much better
basis for fact-finding.
Illustrative of this position is the case captioned In re Doe (II), a
2000 Supreme Court of Texas decision where the court reversed and
ordered a judicial bypass.
It is true Justice Owen was one of three justices who dissented, but
she did so because she concluded that the majority improperly reweighed
the evidence and usurped the rule of the trial judge. As a sound legal
principle, the trial judge is entitled to deference on the findings of
fact because the trial judge, rather than the appellate court, has
heard the witnesses.
There are other notable cases where Justice Owen has handed down
thoughtful, informed, scholarly opinions. They have not pleased
everyone, but that is what judges do. One case is particularly worthy
of note, a case captioned Operation Rescue National v. Planned
Parenthood of Houston and Southwest Texas. In this case, doctors and
abortion clinics brought action for civil conspiracy, tortious
interference, and invasion of privacy and property rights against anti-
abortion groups and protesters, seeking injunctive relief and damages.
The trial court entered a $1.2 million judgment on jury verdict and a
permanent injunction creating buffer zones around certain clinics and
homes in which protesters could not protest.
The issue was whether the jury verdict was based on a proper jury
charge and whether the injunction infringed on the protesters' freedoms
of expression. Justice Owen joined the 7 to 2 majority decision which
affirmed the jury verdict was proper under Texas law.
The decision also upheld the injunction while modifying it in certain
respects. Under the majority's opinion, a limited number of peaceful
protesters could approach patients and act as sidewalk counselors who
would seek to discuss the issues surrounding abortions with patients,
as long as such discussions were ceased upon request of the patient.
The majority concluded this type of protesting would not endanger
patients' health and safety.

[[Page S5382]]

Following Justice Owen's nomination to the Fifth Circuit, pro-choice
groups criticized the ruling as hostile to abortion rights. But at the
time the ruling was handed down, Planned Parenthood of Houston and
Southwest Texas hailed it as ``a complete and total victory.''
This case is illustrative of some of the difficult issues involved in
that kind of a factual situation. In enjoining this kind of harassing
practice, subject to certain limitations, and upholding a verdict in
excess of $1 million, Justice Owen exercised judicial discretion and
sensibility in arriving at the decision.
In the case of Ft. Worth Osteopathic Hospital, Inc. v. Reese, Justice
Owen handed down decisions demonstrating respect for Roe v. Wade under
a factual situation where plaintiffs brought wrongful death and
survival action on behalf of a viable fetus who died in utero against
the treating physicians and the hospital and also brought medical
negligence claims in their individual capacities.
Justice Owen joined the Texas Supreme Court's 8-to-1 decision holding
that the Texas wrongful death and survival statutes do not violate the
equal protection clause by prohibiting parents of a stillborn fetus
from bringing those claims. Justice Owen, in joining in that decision,
was explicitly following the precedent of Roe v. Wade.
There is a series of cases which illustrates judicial temperament,
judicial demeanor, a sound judicial philosophy, which I ask unanimous
consent to have printed in the Record: First, Chilkewitz v. Hyson, 22
S.W.3d 825 (Tex. 1999); second, In Re D.A.S., 973 S.W.2d 296 (Tex.
1998); third, Abrams v. Jones 35 S.W.3d 620 (Tex. 2000); fourth, Quick
v. City of Austin, 7 S.W.3d 109 (Tex. 1999); fifth, Hernandez v. Tokai
Corporation, 2 S.W.3d 251 (Tex. 1999); sixth, NME Hospitals v. Rennels,
994 S.W.2d 142 (Tex. 1999); next, Kroger Company v. Keng, 23 S.W.3d 347
(Tex. 2000); and, Crown Life Insurance Company v. Casteel, 22 S.W.3d
378 (Tex. 2000), all of which show Justice Owen to be a very sound
jurist and worthy of confirmation to the Court of Appeals for the Fifth
Circuit.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Chilkewitz v. Hyson

22 S.W.3d 825 (Tex. 1999)

Facts: Plaintiff brought suit against defendant doctor for
medical practice. After the statute of limitations ran, the
defendant moved for summary judgment on the basis that he was
a professional association and because the plaintiff had not
claimed the professional association as a defendant, the
statute of limitations barred suit against him.
Issue: Whether the Texas Rules of Civil Procedure permitted
a suit against a party's assumed name, in this case the
doctor, if the plaintiff did not name the defendant's
association as a defendant in the suit.
Outcome: A unanimous Texas Supreme Court, in an opinion
written by Justice Owen, held that the rules of civil
procedure permitted suit against a party in its assumed name.
The court also held that there was evidence in this case that
the defendant's professional association conducted business
in the name of the individual doctor and the plaintiff's
naming of the defendant's assumed name in the complaint was
sufficient.
Note: Justice Owen stood up against formalism and allowed a
Plaintiff to bring suit for medical malpractice.

In re D.A.S

973 S.W.2d 296 (Tex. 1998)

Facts: The defendants, two juveniles, challenged a ruling
that held the Anders procedure, which requires defense
counsel, if they find a case to be wholly frivolous, to
request permission to withdraw and submit a briefing to the
court with anything in the record that might arguably support
the defendant's appeal, was inapplicable in juvenile cases.
The defendants requested mandamus relief.
Procedural History: The Court of Appeals rejected the
challenge and refused to allow the defense counsel to
withdraw.
Issue: Whether the Anders procedure applies to juvenile
cases.
Outcome: Justice Owen, writing for the 6-2 majority, held
that the Anders procedure applied to juvenile proceedings
because Anders protected the juveniles' statutory right to
counsel on appeal. Justice Owen found that extending Anders
to juvenile appeals properly balanced a juvenile's statutory
right to counsel against the appointed counsels' obligation
not to prosecute frivolous appeals. She also determined that
Anders provided the juveniles with more protection because
both the attorney and the court of appeals would have to
determine whether there were any arguable issues on appeal.
Dissent: The dissent argued that mandamus relief was
inappropriate. Judicial review through petition for review
from the court of appeals' final decision was an adequate
remedy for the juvenile defendants.

Abrams v. Jones

35 S.W.3d 620 (Tex. 2000)

Facts: In the midst of an acrimonious divorce, the
plaintiff father sued his daughter's psychologist for access
to his minor daughter's medical records.
Issue: Whether a parent has judicial recourse under Tex.
Health & Safety Code Ann. Sec. 611.0045(e) when a treating
psychologist refuses to allow another psychologist, selected
by the challenging parent, access to the minor-child's
medical records.
Outcome: Justice Owen, writing for the 7-2 majority,
reversed and denied access of the medical records to the
father. Justice Owen held that the Texas legislature imposed
some limits on the parent's right of access to confidential
mental health records. Justice Owen found that the
psychologist had presented sufficient evidence that the child
would be harmed if the records were released to the father.

Quick v. City of Austin

7 S.W.3d 109 (Tex. 1999)

Facts: Landowners challenged the City of Austin's Save Our
Springs Ordinance, a water pollution control measure enacted
in 1992. The landowners contested the ordinance because it
was arbitrary, unreasonable, and inefficient. They also
asserted that the Ordinance was void because it was enacted
without a public hearing, it impermissibly regulated the
number, use, and size of buildings in the City's
extraterritorial jurisdiction, and the Texas Natural Resource
Conservation Commission had not approved it.
Issue: Whether the City of Austin's ``Save Our Springs''
Ordinance was a valid exercise of city authority.
Outcome: Justice Owen joined the 5-4 majority, which held
that the Ordinance was a valid legislative act that did not
need to be approved by the Texas Natural Resource
Conservation Commission to become effective and enforceable.
While the Ordinance clearly affected land use, its methods
were nationally recognized limitations and thus furthered the
stated goal of protecting and preserving a clean water
supply. The Court found that the Legislature did not limit
the city's authority to set the ordinance's effective date;
therefore, Austin was not required to obtain permission of
the Commission before enacting the ordinance.

Hernandez v. Tokai Corp.

2 S.W.3d 251 (Tex. 1999)

Facts: Minor child misused a butane lighter and was
injured. Suit brought against manufacturer and distributor of
the lighters. The trial court granted summary judgment for
the lighter manufacturer. On appeal, the 5th Circuit Court of
Appeals submitted a certified question as to whether the
action could proceed under Texas law.
Issue: Whether a defective-design products liability claim
against the product's manufacturer may proceed if the product
was intended to be used only by adults, if the risk that
children might misuse the product was obvious to the
product's manufacturer and to its intended users, and if a
safer alternative design was available.
Outcome: The 5th Circuit Court of Appeals submitted a
certified question as to whether the action could proceed
under Texas law. Justice Owen joined the unanimous opinion of
the court, holding that a defective-design claim may proceed
for an injury caused by a product that did not have a child-
resistant mechanism that would have prevented or
substantially reduced the risk of injury from a child's
foreseeable misuse if, with reference to the product's
intended users, the design defect made the product
unreasonably dangerous, a safer alternative design was
available, and the defect was the cause of the injury.
Note: Justice Owen held that a manufacturer of cigarette
lighters has a duty to make certain that its products are
child resistant--even though the lighters were only meant to
be used by adults.

NME Hospitals, Inc. v. Margaret A. Rennels, M.D.,

994 S.W.2d 142 (Tex. 1999)

Facts: The plaintiff doctor sued NME Hospitals for unlawful
employment discrimination under the Act and conspiracy to
violate the Act. The defendant hospital filed for summary
judgment because it was not her direct employer under the
Texas statute.
Procedural History: The lower trial court granted summary
judgment for the hospital. The appeals court reversed.
Issue: Whether a plaintiff may sue someone other than her
own employer for an unlawful employment practice under Texas
Labor Code Sec. 21.055, the Texas Commission on Human Rights
Act
Outcome: In a case of first impression, the Texas Supreme
Court unanimously held that to have standing under the Texas
statute the plaintiff must show: (1) that the defendant is an
employer within the statutory definition of the Act; (2) that
some sort of employment relationship exists between the
plaintiff and a third party; and (3) that the defendant
controlled access to the plaintiff's employment opportunities
and denied or interfered with that access based on unlawful
criteria. Finding that the plaintiff met these criteria, the
Court held that the plaintiff had standing to sue the client
of her employer for unlawful employment practice.

Kroger Co. v. Keng

23 S.W.3d 347 (Tex. 2000)

Facts: Plaintiff brought suit against the defendant grocery
store, a workers' compensation nonsubscriber, alleging that
the

[[Page S5383]]

store's negligence proximately caused her to suffer injuries
during an on the job accident. Kroger denied the allegations
and responded that plaintiff's conduct either caused or
contributed to the incident, entitling Kroger to protection
under the comparative responsibility statute.
Issue: Whether a non-subscriber to workers' compensation
insurance is entitled to a jury question regarding its
employee's alleged comparative responsibility for his or her
injuries.
Outcome: Justice Owen joined the Texas Supreme Court's
unanimous opinion, affirming the court of appeals' decision
and holding that a non-subscribing employer was not entitled
to a jury question on its employee's alleged comparative
responsibility. The court relied on the legislative intent of
Texas' comparative responsibility statute and deference to
the legislature in reconciling a Texas Court of Appeals'
circuit split.
Note: Justice Owen ruled for the plaintiff and a
plaintiff's right not to have her workers compensation claims
reduced for comparative negligence.

Crown Life Insurance Co. v. Casteel

22 S.W.3d 378 (Tex. 2000)

Facts: Casteel sold insurance policies as an independent
agent of Crown Life Insurance Company. One of the policies
sold by Casteel led to a lawsuit by policyholders against
Casteel and Crown. In that lawsuit, Casteel filed a cross-
claim against Crown for deceptive trade practices. The trial
court rendered judgment that Casteel did not have standing to
bring suit against Crown, holding that Casteel was neither a
``person'' as defined under Article 21.21 of the Texas
Insurance Code, nor a ``consumer'' under the Deceptive Trade
Practices Act (DTPA), and therefore lacked standing to bring
suit under those statutes. The court of appeals held that
Casteel was a ``person'' with standing to sue Crown under
Article 21.21, but that Casteel did not have standing to sue
under the incorporated DTPA provisions because he was not a
``consumer.''
Issue: Whether an insurance agent is a ``person'' with
standing to sue an insurance company under Article 21.21 and
whether an insurance agent must also be a ``consumer'' to
have standing to recover under Article 21.21 for incorporated
DTPA violations.
Outcome: Justice Owen joined a unanimous Texas Supreme
Court in holding that an insurance agent does not have
standing to sue as ``consumer'' for violations of the DTPA.
However, the court also held that despite not having standing
to bring suit under the DPTA, an insurance agent is a
``person'' with standing to sue an insurance company for
violations of Article 21.21 of the Insurance Code.
Note: Illustrates Justice Owen's willingness to rule
against the insurance and allow the plaintiff to bring suit.

Mr. SPECTER. In conclusion, Mr. President, I know my time is nearly
up. I had a chance to talk at some length with Justice Priscilla Owen.
She is an intelligent, articulate lawyer who has had very substantial
experience on the Supreme Court of her State for some 10 years. She has
been endorsed by 84 percent of the electorate of Texas. She has
recognized the Supreme Court decision in Roe v. Wade and is bound to
apply it and has recognized its principles and is not at all hostile to
Roe v. Wade.
In the 24 years and 4 months I have served on the Judiciary
Committee, I have voted on many, many, many circuit judges. If
Priscilla Owen had come before this Senate in any other context for
consideration, except get-even time in response to the way President
Clinton's nominees were treated, with some 70 rejected, in a spiraling
context which started the last 2 years of President Reagan's
administration, had she come here at any other time, she would have
moved through this Senate on a voice vote or been unanimously
confirmed.
I suggest a careful reading of her record and a careful analysis,
aside from the tumult and turmoil of the Senate today, supports her
confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, how much time is available to the Senator
from Vermont?
The PRESIDING OFFICER. There is 39 minutes.
Mr. LEAHY. I thank the Presiding Officer.
It is my understanding the distinguished Senator from Pennsylvania
did not use extra time?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. Mr. President, I recommend all the Republicans and
Democrats listen to the speech given by the distinguished Senator from
Pennsylvania. I said to him earlier this morning if it were he and I
who were allowed to work this out, we could work it out probably in
less than an hour. I said the same thing to the President and to our
two leaders.
Hopefully everyone understands the significance of this debate and
what the Republican leader, the majority leader is doing. He has
decided to trigger the nuclear option. That is what it is. This nuclear
option is something any Senate majority could have done any time over
the past 50 years. It boils down to the Republican Senate leader
declaring the Senate rules governing filibusters are out of order.
The nonpartisan Senate Parliamentarian has indicated that would
violate the Senate rules. It would. The nonpartisan Congressional
Research Service has studied this and concluded it is unprecedented.
Why? Because it amounts to breaking the rules.
We are talking about judging whether nominees will be fair and
impartial judges who will follow the law and the majority is willing to
break the rules to do that. When you have a slim majority and are
willing to use parliamentary brute force, if you want to break the
rules, you can. It does not make it right. It makes it wrong, but you
can do it.
The American people ought to recognize this for what it is, an abuse
of power to advance a power grab. It is an effort by the White House
and the Republican Senate majority to undercut the checks and balances
of the Senate. They intend to use majority power to override the rights
of the minority.
Actually, it is not an isolated effort. It is part of a sustained
effort by this administration and partisan operatives in the Congress
to consolidate power in one branch, the executive branch, and ignore
our constitutional history of three separate branches acting as checks
and balances on each other. It is an effort at one-party rule. It
undercuts the rights of the minority in the Senate, it undermines the
role of the Senate as a check on the executive, and it leads to a
Republican rubberstamp on a less independent judiciary.
The constitutional protections of the American people are at stake in
this debate, not just someone's political future, the constitutional
protections of the American people. At stake are the protections
provided for the American people by the judicial branch against
overreaching by the political branches; by the Senate against an
aggressive executive branch, and by the minority against the tyranny of
the majority.
As this debate begins, I urge the American people to be involved
because it is their rights that are at stake. It is the independence,
fairness, and nonpartisan protection of the judiciary that protects
their rights that is being threatened. It is a constitutional check
that the Senate was intended by the Founders to keep the executive from
acting like a king, that is being threatened by curtailing the rights
of the minority.
This is an exercise in breaking the rules to change the rules. Note
that as this debate begins, it begins in accordance with the Senate
rules, including rule XXII, the longstanding rule the Republican
majority intends to override by the end of this process by
parliamentary brute force.
The Senate is now being threatened with a fundamental change through
a self-inflicted wound. ``Master of the Senate'' author Robert Caro
recalled an important chapter in the Senate and the Nation's history.
Consider this and contrast it with what is happening here today.

When Senator Lyndon Johnson of Texas left the Senate, he was the most
powerful majority leader in the history of this country. When he was
elected Vice President with President Kennedy and he was preparing to
leave the Senate, he told his protege and successor, Senate Mansfield
of Montana, that he, Johnson, would keep attending the Democratic
luncheons and help his successor as majority leader in running the
Senate. Senator Mansfield said no, Vice President Johnson was no longer
a Member of the Senate, but an officer of the executive branch and by
means of that office was accorded the privilege of presiding over the
Senate.
What a contrast Senator Mike Mansfield's respect for the separation
of powers and checks and balances is from those in power today. I say
that as one who was privileged to serve here with Senator Mansfield.
Instead, this White House took an active role in naming the present
Senate leadership and this White House regularly sends Vice President
Cheney and

[[Page S5384]]

Karl Rove to Republican caucus luncheons to give the Republican
majority its marching orders. What a difference from the days of Mike
Mansfield and Lyndon Johnson.
The current Republican majority leader, who is my friend, announced
that he intends to leave the Senate next year. He made no secret of his
intent to run for the Republican nomination for President. With that in
mind, he is apparently prepared to become the first majority leader in
the history of the Senate whose legacy would be a significantly
weakened Senate. Every other majority leader has left the Senate
stronger than it was or at least as strong as it was, as a check and
balance against an executive. This would be the first time it would be
left weaker.
Many, unfortunately, on the other side--many but not all--are
apparently ready to sacrifice the Senate's role in our constitutional
system of checks and balances. It is my hope that our system of checks
and balances will be preserved with a handful of Republican Senators
voting their conscience and standing up to the White House and its
pressure. I know the zealotry of the narrow special interest leaders
who are demanding this mutilation of the Senate's character. I am one
of many who have been the target of their brutal and spurious personal
attacks.

My hope is that a number of the fine women and men of both parties
with whom I am privileged to serve as a custodian of our Nation's
liberties will act in the finest traditions of the Senate. One of their
number has come to this floor in recent days to remind all Senators of
senatorial profiles in courage. Sadly, it is that courage that will be
necessary to avert the overreaching power grab now underway.
There have been other recent threats to our system of government.
Republican partisans in the House, in a standoff with President
Clinton, shut down the Government in 1995. A few years later, they
impeached a popularly-elected President for the first time in our
history. Fortunately, the Senate stood up and functioned as it was
intended during that trial and rejected those efforts. I was privileged
to be one of those who worked with both sides to make sure that trial
ended the way it did.
In 2000, a divided nation saw an election decided by the successful
litigation of the Republican Party and the intervention of a narrow
activist decision of the Supreme Court to stop vote counting in
Florida. Then we witnessed Senator Jeffords virtually driven out of the
Republican caucus. We have seen an aggressive executive branch that has
been aided by a compliant congressional majority.
If the Senate's role in our system of coequal branches of the Federal
Government is to be honored, it is going to take Republican Senators
joining others in standing up for the American people's rights, the
independence of the judiciary, the rules of the Senate, and the rights
of the minority.
During the last several days, we have seen the Democratic leader make
offer after offer to head off this showdown. We have heard stirring
speeches from Senator Byrd, Senator Inouye, Senator Kennedy, Senator
Biden, Senator Baucus, Senator Murray, Senator Boxer, Senator
Feinstein, and others, who have come to this floor to set the record
straight. But this is a setting in which Democratic Senators alone will
not be able to rescue the Senate and our system of checks and balances
from the breaking of the Senate rules being planned. If the rights of
the minority are to be preserved, if the Senate is to be preserved as
the greatest of parliamentary bodies, it will take at least six
Republicans standing up for fairness and for checks and balances.
Now I know from my own conversations that a number of Republican
Senators know in their hearts this nuclear option is the wrong way to
go. I know Republican Senators, with whom I have had the privilege to
serve for anywhere from 2 years to more than 30 years, know better. I
hope more than six of them will withstand the political pressures being
brought upon them and do the right thing and the honorable thing, and
that they will put the Senate first, the Constitution first, but
especially the American people first. History and those who follow us
will carefully scrutinize these moments and these votes. Those voting
to protect the rights of the minority will be on the right side of
history.
Like the senior Senator from Pennsylvania, I remember President
Kennedy's publication of ``Profiles in Courage.'' Along with so many
Americans, I remember reading about those Senators who stood up to
their party to vote against the conviction of President Andrew Johnson.
More recently, I witnessed the strength it took for my friend, Senator
Mark Hatfield, a distinguished Republican, to cast a vote of conscience
against amending the Constitution. He did it under intense and unfair
pressures. I believe we are now seeing the current Senate leadership
taking the Senate to another precipice. It will take the votes of
independent and conscientious Republican Senators, such as Senator
Hatfield, to prevent the fall.
The Framers of the Constitution warned against the dangers of
factionalism undermining our structural separation of powers. Some in
the Senate have been willing to sacrifice the historic role of the
Senate as a check on the President in the area of nominations.
Under pressure from the White House, over the last 2 years we saw the
former Republican chairman of the Senate Judiciary Committee lead
Senate Republicans in breaking with longstanding precedent, in breaking
the rules, even committee rule IV, which was put in there at the
request of Republicans to protect minorities. But when the Republicans
took the majority, they violated the rules, longstanding precedent and
Senate tradition. With the Senate and the White House under control of
the same political party, we have witnesses committee rules broken or
misinterpreted away. The broken committee rules and precedent include
the way that home-state Senators were treated, the way hearings were
scheduled, the way the committee questionnaire was unilaterally
altered, and the way the Judiciary Committee's own historic protection
of the minority by rule IV was repeatedly violated. In the last
Congress, the Republican majority of the Judiciary Committee destroyed
virtually every custom and courtesy that used to help create and
enforce cooperation and civility in the confirmation process. I ask
unanimous consent to have printed in the Record a recent article from
the Wall Street Journal noting some of these developments.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Wall Street Journal, May 3, 2005]

War Over Judges is No Longer a Subtle Fight

Washington.--Just 10 years ago, a Senate minority had
several avenues for affecting a president's judicial
nominations, from closed-door maneuvers within the Judiciary
Committee to quiet negotiations with the White House.
Now there is only one sure way, and it isn't quiet at all:
the filibuster.
The gradual disappearance of other levers of influence is
an often overlooked cause of the battle over judicial
nominations that is raging in Washington. Both parties have
played a part, with the result that the Senate stands on the
brink of a governmental crisis.
Some analysts say the consequences could be deep and
lasting. Republicans are threatening to choose the ``nuclear
option'' of using Senate rules to bar judicial filibusters.
In the short term, Democrats have threatened to bottle up
Republican legislative priorities. But over the long term,
some analysts say, the ban could dilute the Senate's power
and smooth the way for judicial choices reflecting the
dominant ideological blocs within the party holding the White
House.
The filibuster once was a seldom-used threat that forced
competing political camps to compromise--``the shotgun behind
the door,'' says Charles Geyh, a law professor at Indiana
University. If it is disarmed, he adds, ``The long-term
impact is pretty scary. These devices have been stabilizing
influences on the process for a long time.''
The chipping away at minority influence began in the 1970s
when Democratic Sen. Ted Kennedy of Massachusetts, then
chairman of the Senate Judiciary Committee, attempted to
dilute the ability of a senator to employ a common tactic for
blocking unwelcome nominations. It was called the ``blue
slip''--named for the color of the paper used by the chairman
to inform senators not on the committee that the White House
had submitted a judicial nominee from their states.
A senator could object by checking off his or her
disapproval or by refusing to return the blue slip to the
chairman. For decades, opposition from a home-state senator
was enough to kill a nomination. As a result, the blue slip
was most commonly employed as a

[[Page S5385]]

lever for forcing negotiations with the White House.
As President Jimmy Carter sought to put his stamp on the
federal bench in the late 1970s, Mr. Kennedy proposed a new
blue-slip policy. It allowed the Judiciary chairman to
override a home-state senator's objection if he concluded
that opposition was based on race or sex. The Massachusetts
liberal met only mixed success, however, as other senators
continued to respect the traditional blue-slip process.
Two decades later, with Republicans in charge of the
Judiciary Committee, they began using their clout to exercise
what Democrats called a ``shadow filibuster'' by simply
refusing to give about 60 of President Bill Clinton's
judicial candidates a hearing or vote on the Senate floor.
Republicans argue that the White House shared blame for
some of the delays, saying some nominees hadn't undergone
background checks when they were forwarded to the committee.
But Republican Sen. Mitch McConnell of Kentucky recently
conceded on the Senate floor that the Democrats have ``a
legitimate complaint'' about how the Clinton appointees were
treated.
In 2003, Republican Judiciary Chairman Orrin Hatch of Utah
changed the practice further. He proceeded with hearings on
Bush judicial nominees even if they were vigorously opposed
by senators from the nominee's home state.
That change reduced the need for the White House to
negotiate with the Senate. The result was diminished
consultation between the president and the minority within
the chamber, a practice that started with President George
Washington, and extended through the Clinton administration.
Mr. Clinton consulted with Mr. Hatch even on his two U.S.
Supreme Court nominees, Ruth Bader Ginsburg and Stephen
Breyer.
In the last Congress, five judicial nominees had blue-slip
problems, including four receiving negative recommendations
from both of Michigan's Democratic senators. Even so, all
five of them were approved by the committee on party-line
votes and advanced to the full Senate, according to committee
records. Democrats blocked final votes on all of them.
Before the current stalemate, the filibuster had been used
effectively against a judicial nominee just once. In 1968, a
minority coalition of Republicans and Southern Democrats
blocked President Lyndon B. Johnson's attempt to elevate
Supreme Court Justice Abe Fortas, a supporter of civil rights
and the Great Society programs, to the chief justice's chair.
After a cloture vote to end the filibuster failed, 45-43, Mr.
Fortas asked the president to withdraw his name.
Republicans today discount the significance of that vote,
arguing it wasn't clear Mr. Fortas would have been approved
by the full Senate if the filibuster had been overcome. By
contrast, there is little doubt that President George W.
Bush's contested nominees could attract a majority in the
chamber, where Republicans hold 55 seats.
Yet even in that 1968 debate, some senators recognized the
possibility that the Fortas stalemate would echo in future
debates. ``If we, for the first time in our history, permit a
Supreme Court nomination to be lost in a fog of a
filibuster,'' cautioned Democratic Sen. Philip Hart of
Michigan, ``I think we would be setting a precedent which
would come back to haunt our successors.''
After the Fortas battle, senators gradually began reaching
for the filibuster weapon. According to a 2003 analysis by
the Congressional Research Service, the Senate held 17 votes
to halt filibusters on judicial nominees between 1969 and
2002, although many were intended to force negotiations on
legislation or judicial candidates rather than defeating the
nominees.
None of the filibusters succeeded until the Democrats
managed to block 10 of Mr. Bush's first-term appellate-court
nominees. After his re-election, Mr. Bush resubmitted the
names of seven of those candidates. Those are the nominees in
contention today.

Mr. LEAHY. We suffered through 3 years during which Republican staff
stole Democratic files off the Judiciary computer servers. It is as
though those currently in power believe they are above our
constitutional checks and balances and they can reinterpret any treaty,
law, rule, custom, or practice. If they don't like it or they find it
inconvenient, they set it aside. It was tragic that the committee that
judges the judges did not follow its own rules but broke them to
achieve a predetermined result.
It was through these means that divisive and controversial judicial
nominees were repeatedly brought before the Senate in the last
Congress. It was through these abuses that the majority acted as
handmaidens to the administration to create confrontation after
confrontation over controversial nominees. They dragged the judiciary,
which should be above politics, into the political thicket and did so
for partisan gain.
I applaud the Senator from Pennsylvania who has worked to bring us
back in the Senate Judiciary Committee to following our rules in the
comity that makes it work. I regret that filibusters have been
necessary in the past 2 years. I wish Republicans would not have
followed their years of secret holds and pocket filibusters of more
than 60 of President Clinton's nominees, judicial nominees, and more
than 200 of his executive nominees. I wish they would not have flipped
the script once a Republican became President and dismembered the rules
and traditions of the Judiciary Committee.
I have urged consultation and cooperation over the last 4 years. I
had the privilege of chairing the Senate Judiciary Committee for 17
months with President Bush in the White House, and we confirmed 100 of
President Bush's judicial nominees, including a number of controversial
nominees, including some I was opposed to. I voted against them, but I
made sure they got hearings.
The President and his enablers in the Senate cannot seem to take
``yes'' for an answer. The Senate has confirmed 208 of his judicial
nominees and we are withholding consent on 5.
He rejects our advice, but he demands our consent. That is wrong, and
that goes against the Constitution. The Constitution speaks of advice
and consent, not order and rubberstamp.
What the White House ignores is that President Bush completed his
first term with the third highest total of confirmed judges in our
history--in our history--and more Federal judges on the courts than at
any time in our history. The truth is, Senate Democrats have cooperated
extensively in confirming more than 95 percent of this President's
judicial nominees--208 of them.
George Washington, the most popular and powerful President in our
history, was not successful in all of his judicial nominations. The
Senate rejected President Washington's nomination of John Rutledge to
be Chief Justice of the Supreme Court. For example. And certainly I
would hope that the current President would not assume he stands higher
in our history books than George Washington.
The truth is, in President Bush's first term, the 204 judges
confirmed were more than were confirmed in either of President
Clinton's two terms, more than during the term of this President's
father, and more than Ronald Reagan's first term when he had a
Republican majority in the Senate. By last December, we had reduced
judicial vacancies from the 110 vacancies I inherited in the summer of
2001 to its lowest level, lowest rate, and lowest number in decades,
since President Ronald Reagan was in office.
Unfortunately, this President has chosen confrontation over
cooperation. In fact, it is mid-May, and he has only sent one new
nomination to the Senate all year. Im connection with that nomination,
Democrats on the Judiciary Committee have written to the Chairman
urging a prompt hearing. With the support of the nominee's home-state
Senators, one a Democrat and one a Republican, the nomination of Brian
Sandoval will be added to the long list of judicial confirmations.
But that leave 30 judicial vacancies without nominations. Back on
April 11, the Democratic leader and I wrote to the President urging him
to work with Senators of both parties to identify nominees for these 30
vacancies. To date, he has not responded. Instead he, his Vice
President, his Chief of Staff and his spokesperson continue to prod the
Senate toward triggering the nuclear option. I ask unanimous consent to
have that letter printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Washington, DC, April 11, 2005.
Hon. George W. Bush,
President,
Washington, DC.
Dear Mr. President: There are currently 28 vacancies on the
Federal courts of appeals and district courts for which you
have not forwarded nominees to the Senate. We write to offer
to help you obtain consultation and advice from the Senate on
these vacancies so that you may select nominees who will
generate strong, bipartisan support.
This evening the Senate is scheduled to consider your
nomination of Paul Crotty to become a federal judge in New
York. We expect Mr. Crotty to be confirmed with the support
of his home-state Senators and an overwhelming vote. We have
each been urging you for some time to work with the Senate to
fill federal judicial vacancies with qualified, consensus
nominees. It is now imperative that we do so.
When you met with Russian President Putin earlier this
year, you noted that

[[Page S5386]]

checks and balances and an independent judiciary are among
the fundamental requirements of democracy. We agree. We
therefore urge you to make clear to Senate Republican leaders
that you do not favor the so-called ``nuclear option'' which
would remove an important check on executive power. Instead,
let us work together to identify consensus judicial
candidates. Let us preserve our independent judiciary, which
is the envy of the world.
Respectfully,
Harry Reid,
Democratic Leader.
Patrick Leahy,
Ranking Member.
____

Mr. LEAHY. When it comes to the judiciary, the independent judiciary,
the branch of Government always looked at with most favor and most
respect by Americans, wouldn't it be good if the President, in making
his nominations, would act as a uniter, not as a divider? Instead, the
President has acted as a divider, not a uniter. He has sent the Senate
divisive and controversial nominees. When the Senate debates them and
withholds consent, he stubbornly renominates them over and over again.
Rather than work with us to find consensus nominees, which usually pass
this Senate 100 to nothing, he disparages us and exploits the issue as
a partisan matter.
Under our Constitution, the Senate has an important role in the
selection of our judiciary. The brilliant design of our Founders
established the first two branches of Government would work together to
equip the third branch to serve as an independent arbiter of justice.
As George Will once wrote: ``A proper constitution distributes power
among legislative, executive and judicial institutions so that the will
of the majority can be measured, expressed in policy and, for the
protection of minorities, somewhat limited.''
The structure of our Constitution and our own Senate rules of self-
governance are designed to protect minority rights and to encourage
consensus. Despite the razor-thin margin of recent elections, the
majority party is not acting in a measured way but in complete
disregard for the traditions of bipartisanship that are the hallmark of
the Senate. When these traditions are followed, I can tell my
colleagues from 31 years of experience, the Senate works better, and
the American people are better served. Instead, the current majority is
seeking to ignore precedents and reinterpret longstanding rules to its
advantage.
The practice of ``might makes right'' is wrong. The Senate's rules
should not be toyed with like a playground game of King of the Hill, to
be changed at the whim of any current majority.
The Senate majority leader seems intent on removing the one Senate
protection left for the minority, the protection of debate in
accordance with the longstanding tradition of the Senate and its
standing rules. In order to remove the last remaining vestige of
protection for the minority, the Republican majority is poised to break
the Senate rules, violate the Senate rules, overturn the Senate rules,
and end the filibuster by breaking those rules. They are intent on
doing this--why?--to force through the Senate this President's most
controversial and divisive judicial nominees.
As the Reverend Martin Luther King, Jr. wrote in his famous Letter
From A Birmingham Jail:

Let us consider a more concrete example of just and unjust
laws.
An unjust law is a code that a numerical or power majority
group compels a minority group to obey but does not make
binding on itself. This is difference made legal. By the same
token, a just law is a code that a majority compels a
minority to follow and that it is willing to follow itself.
This is sameness made legal.

Fair process is a fundamental component of the American system of
law. If we cannot have a fair process in these halls or in our courts,
how will the resulting decisions be viewed? If the rule of law is to
mean anything, it must mean that it applies to all equally. The rule of
law must apply the same to Republicans and Democrats. The rule of law
must apply the same to all Americans. And certainly the rule of law
must apply on the floor of the U.S. Senate.
No man and no party should be above the law. That has been one of the
strengths of our democracy. Our country was born in reaction to the
autocracy and corruption of King George, and we must not forget our
roots as a nation of both law and liberty. The best guarantee of
liberty is the rule of law, meaning that the decisions of government
are not arbitrary and that rules are not discretionary or enforced to
help one side and then ignored to aid another.
Mr. President, nothing I will ever do in my life will equal the
opportunity, the honor, the privilege to be one of the 100 serving in
this Senate. But not one of this 100--who are privileged to serve at
any given time to represent 280 million Americans--none of us owns the
Senate. The Senate will be here once we leave. It is our responsibility
to leave the Senate as strong as it was when we came in. It is our
responsibility, our sworn responsibility, to leave the Senate the body
that has always been a check and balance.
How can any Senator look himself or herself in the mirror if they
weaken the Senate, if they allow the Senate to no longer be the check
and balance it should be? Why would anyone want to serve here if they
come to this body with that in mind?
James Madison, one of the Framers of our Constitution, warned in
Federalist Number 47 of the very danger that is threatening our great
Nation, a threat to our freedoms from within:

[The] accumulation of all powers legislative, executive and
judiciary in the same hands . . . may justly be pronounced
the very definition of tyranny.

That is what they are trying to do, put all the power into one hand.
All of us should know enough of history to know we should not do that.
George Washington, our great first President, reiterated the danger
in his famous Farewell Address to the American People:

The spirit of encroachment tends to consolidate the powers
of all the departments in one, and thus to create, whatever
the form of government, a real despotism.

Now, our freedoms as Americans are the fruit of too much sacrifice to
have the rules broken in the Senate, especially to break them in
collusion with the executive branch. What ever happened to the concept
of separation of powers? We all give great speeches on the separation
of powers. Don't just give the speeches, do not just talk the talk,
let's walk the walk.
The effort to appoint loyalists to courts in the hope that they will
reinterpret precedents and overturn the very laws that have protected
our most fundamental rights as Americans is base and wrong. The
American people deserve better than what we have seen with the
destruction of rule after rule by a majority willing to sacrifice the
role of the Senate as a check and balance in order to aid a President
determined to pack the Federal courts. It is the courts themselves that
serve as the check on the political branches. Their independence is
critical and must be preserved.

Look at what we are talking about, Mr. President. We have confirmed
208 judges. We are saying no to five. Is this a judicial crisis that
should allow the majority to destroy the Senate? The record of 208
confirmations and reduction of judicial vacancies to an historic low
provide no basis on which to break the rules of the Senate. The
Democratic leader's efforts to make additional progress demonstrate
there is no reason for the majority to take the drastic and
irreversible step of ending protection of the minority through the
tradition of extended debate in the Senate.
The White House and Senate Republican leadership's campaign for the
nuclear option seeks to end the role of the Senate serving as a check
on the executive. That is so shortsighted. It is so wrong. It is so
unjustified. We fought a revolution in this country to have a
Constitution that is designed to have the Senate provide balance and
act as a check.
I will have more to say about these important matters and about the
nomination that the Judiciary Committee previously rejected and that
the Senate has previously debated as we proceed over the next several
days. There is one other aspect of this matter I need to mention. I
will say this in my individual capacity as a Senator from Vermont, as a
man of faith, as a man who cares deeply about this institution, our
country, our Constitution, our first amendment and our constitutional
provision that does not allow a religious test for those who serve.
Supporters of a power-hungry executive have gone so far as to seek to
inject an unconstitutional religious test

[[Page S5387]]

into the debate. All Americans should fear this. They have
characterized those who oppose the most extreme of the President's
nominees as being against faith, against people of faith. They have
called for mass impeachment of judges and other measures to intimidate
the judiciary, to remove the independence of the judiciary. I commend
the President for personally rejecting at least that demagoguery at a
recent press conference. I wish he would go further and tell those
making these charges and inflammatory claims to stop.
A Republican clergyman, Pat Robertson, said he believes Federal
judges are ``a more serious threat to America than Al Qaeda and the
September 11 terrorists'' and ``more serious than a few bearded
terrorists who fly into buildings'' and ``the worst threat America has
faced in 400 years--worse than Nazi Germany, Japan, and the Civil
War.''
For shame. For shame. This is the sort of incendiary rhetoric that is
paving the way to the nuclear option. It is wrong. It is destructive.
Further, injecting religion into politics to claim a monopoly on piety
and political truth by demonizing those you disagree with is not the
American way.
As Abraham Lincoln has said:

I know that the Lord is always on the side of the right,
but it is my constant anxiety and prayer that I and this
nation should be on the Lord's side.

He was so right. We all would do well spending a little more time
wondering whether we are on God's side and less time declaring
infallibly that He is on ours.
Those driving the nuclear option engage in a dangerous and corrosive
game of religious McCarthyism in which anyone daring to oppose one of
this President's nominees is being branded as anti-Christian or anti-
Catholic or against people of faith.
Dr. Dobson of Focus on the Family said of me, ``I do not know if he
hates God but he hates God's people.''
I wonder every Sunday when I am at mass, what planet is this person
from?
When Senator Hatch was attacked during his Presidential campaign on
his religion, I came to his defense. When Senator Lott was under
attack, Senators Jeffords and Specter spoke in his defense.
When they charge us with being against people of faith for opposing
nominees, what are they saying about the 208 Bush judicial nominees
whom Democrats have voted for and helped confirm? Are they saying the
five we oppose are people of faith but the 208 we voted for are not?
Are they by definition people without faith?

These kinds of charges, this virulent religious
McCarthyism, is fraudulent on its face. It is contemptible.
It is contemptible.

Chief Justice Rehnquist is right to refer to the Federal judiciary as
the crown jewel of our system of government. It is an essential check
and balance, a critical source of protection of the rights of all
Americans, including our religious freedom.
Just this morning the distinguished senior Senator from Pennsylvania
and the distinguished senior Senator from Illinois conducted a hearing
in the Judiciary Committee where they heard the testimony of Judge Joan
Lefkow of Chicago. She is the Federal judge whose mother and husband
were murdered in their home. The hearts of all of us go out to her. She
asked that we repudiate the gratuitous attacks on the judiciary, and I
do so, again, here today. I ask those members of Congress who are so
quick to take the floor and say let's impeach judges or let's condemn
judges or specific judges, to stop it. Listen to what Judge Lefkow
said:

In this age of mass communication, harsh rhetoric is truly
dangerous. Fostering disrespect for judges can only encourage
those that are on the edge, or on the fringe, to exact
revenge on a judge who ruled against them.

We should stop those kinds of speeches, whether it is on this floor
or the other body. They are beneath, us, all of us.
I remember Justice Sandra Day O'Connor made a similar observation. I
recently spoke with her and told her how much I appreciated that.
The Senator from Pennsylvania spoke about Benjamin Franklin. Let me
reiterate. In September 1787, as the Constitutional Convention drew to
a close, someone came up to Benjamin Franklin to ask whether all of the
arduous work of drafting the Constitution produced a republic or a
monarchy. Benjamin Franklin told them, ``A Republic, if you can keep
it.''

We have fought world wars, a civil war, we have gone through
elections, assassinations, changes in Government, we have gone through
all these traumas, the Great Depression, and attacks on our soil. In
all of it we have joined together to keep this Republic. We have kept
our freedoms through checks and balances, checks and balances woven
through our constitutional system so brilliantly by our Founders. Those
checks and balances can easily be unthreaded and unwoven by the abuse
of power. Let us hope that never happens. Remember, it can happen not
just through big steps, it can happen through small steps.
This action that is being proposed to the Senate, the nuclear option,
is a large step, a large abuse of power, a step with consequences we
can only begin to imagine. It would be a vote for confrontation over
consensus. I hope each of us will reflect on its consequences, and
then, in the end, such a travesty will never befall the Senate.
Mr. President, how much time is remaining to the Senator from
Vermont?
The PRESIDING OFFICER. There is 10\1/2\ minutes.
Mr. LEAHY. Mr. President, I see the distinguished deputy Democratic
leader in the Chamber and I will yield the remainder of my time to the
Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I thank the Senator from Vermont, not only for his
excellent statement this morning, but also for his leadership in the
Senate Judiciary Committee. It has been my honor to serve with him on
that committee during my tenure in the Senate.
The point he made at the close of his remarks bears repeating. We are
debating an important constitutional principle of checks and balances.
We are considering for the first time in over 200 years the so-called
``nuclear option'' which will destroy one of the rules of the Senate
which has been used so many times on so many occasions for so many
different things. This is a strategy that has been put together by the
leadership in the Senate and it undoubtedly will occasion great debate
in this Chamber for many hours.
But I would like to admonish my colleagues on both sides of the aisle
to take care in the words they use during the course of this debate.
This morning, unfortunately, the majority leader came to the floor and
said the following:

The issue is not cloture votes per se; it is the partisan
leadership-led use of cloture votes to kill, to defeat, to
assassinate these nominees.

I know the majority leader. I know him to be a man of genuine caring
and humanity. He has proven that so many times in his personal life as
a doctor, as a surgeon, as a person who has taken on humanitarian
causes which many in the Senate would shrink from. And so I know those
words, if they were given to him by someone, do not reflect his heart.
And if they were said in a moment without thinking, it is something we
could all make a mistake and do. But I would urge him and urge each and
every one of us to choose words carefully in the debate about judges.
We were reminded this morning with the testimony of Judge Lefkow
before the Senate Judiciary Committee how important words can be. She
called for a variety of things we can do to protect judges across
America, but she also went to the question of words. She said:

Frankly, I ask you--

The Senate Judiciary Committee--

to publicly and persistently repudiate gratuitous attacks on
the judiciary such as the recent statement of Pat Robertson
on national television and, unfortunately, some Members of
Congress, albeit in much more measured terms.

Judge Lefkow understands as I do and every Member of the Senate that
we live in a country that prides itself on freedom, the freedom to
express yourself, the freedom for people to say things without fear
that the Government will come down on them, even if we hate every word
they say. But the point she was making was to take care, to denounce
those comments that cross the line.
When we hear in this debate about changing the rules of the Senate as
it

[[Page S5388]]

relates to judges, let us take care to understand there are differences
of opinion as to whether these men and women who are being discussed
share the views of many Americans, whether their views are extreme. But
the issue is not about them personally.
Some have suggested you can't oppose a judicial nominee here unless
you oppose that nominee's gender, that nominee's religion, that
nominee's race, that nominee's ethnic background, that nominee's
upbringing. All of those things are false. My consideration of these
nominees has gone to the heart of the issue. I consider myself to be
without prejudice. I hope I am. I do my best to avoid it in everything
I say and do. But for those who come to the floor and say you can't
oppose this nominee unless you are in a position where you disagree
with their religion, that is just plain wrong. There are so many lines
that are crossed between religious and political belief. The issue of
the death penalty in my Catholic religion is one that is hotly debated
among Catholics. Many of the leading Catholic legislators, Republican
and Catholic, disagree in their votes with the church's official
position. But it is a public issue that should be discussed and it
doesn't reflect on the nominee or the religion of a Congressman or
Senator when we discuss it.
So when words are expressed during the course of the debate that
those of us who oppose these nominees are setting out to kill, to
defeat, or to assassinate these nominees, those words are
inappropriate. Those words go too far.
Let me remind those who follow this debate, as I said earlier, the
majority leader is a good man, a humane man, a sensitive man who has
been closer to life and death than any of us in this Chamber, and I
believe those words given to him were inappropriate, and if they were
said in a careless moment I am sure do not reflect his heart.
But let us take care during the course of this debate to understand
that our differences as to these nominees come down to issues of law
and public policy which members of the judiciary decide. If I disagree
with one of these nominees or any judge as to their opinions, it is not
going to reflect anything on them personally. It reflects on the fact
that we have to make decisions as to whether they should serve on the
bench.
This is a historic moment in the Senate. There may never be another
one like it. We are considering a change in the Senate, a change in
this institution which, sadly, will ripple out as a pebble in a pond
for generations to come. This is not an isolated case involving one,
two, or five judges. It is a change in the Senate rules that will
uniquely change this special institution.
I fear that many of the people in the White House and on the floor of
the Senate who are grabbing for this political victory don't realize it
is going to change an important institution we have counted on
throughout our history. Those Founding Fathers who wrote the
Constitution made the Senate a special institution, an institution
where, in fact, minority rights and the minority's opportunity to speak
would always be protected. To take away those minority rights by Vice
President Cheney making a casual ruling from the Chair, to sweep away
214 years of precedent and rules so that someone can score a quick
victory in terms of even 1, 2, or 10 judges is entirely inappropriate.
I hope there will be enough Members on the other side of the aisle
who understand our special responsibility. It is an historic
responsibility. It goes beyond this President. It goes beyond any
political party, and it certainly goes beyond the press release of the
day. It goes to the heart of why we are entrusted with this
responsibility to serve in the Senate. We are hoping that when the
nuclear option comes, there will be Senators willing to stand up for
this tradition and for these constitutional values.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I have been listening to the debate. The
people who may be listening to this across the country and around the
world on television, to the extent they are following it, may be
forgiven if they wonder what is going on. People are talking about what
we are doing on the floor in such breathless and nearly apocalyptic
terms, referring to the nuclear option. This is not about America's
foreign policy. This is about the rules of the Senate and the power of
the Senate to determine for itself the rules by which we are governed.
It is certainly an important matter, but we should tone down our
rhetoric a little and try to address squarely the issue.
I worry when I hear Senators use words such as ``despicable,''
``Neanderthal,'' ``scary,'' or ``kook'' in describing nominees by this
President to the Federal bench. I would have thought that kind of
rhetoric was unbecoming to a body such as the Senate, sometimes called
the world's greatest deliberative body. I hope during the course of the
debate we will take a deep breath, as we try to calmly but deliberately
address the issues that lie before us. That is what I will strive to do
for my part.
I want to talk in particular about Priscilla Owen. Before I do, I
neglected to ask unanimous consent that I be allotted 20 minutes out of
our side's time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. I want to respond first to an argument made earlier this
morning. This is in the category of we can disagree about matters of
opinion and matters about policy, but we should not disagree about the
facts, when the facts are so plainly there before us and evident.
Richard Paez, a nominee of President Clinton, has been held up as
perhaps one of the examples of our side treating a Democratic
President's nominee unfairly. As this chart aptly demonstrates, if we
would agree to treat Priscilla Owen exactly the way that Paez was
treated, then Priscilla Owen would be sitting on the Fifth Circuit
today, just as Judge Paez is now serving on the circuit court in the
Federal judiciary. In other words, this is not an example justifying
the actions being taken against this President's nominees. This is an
example of why the obstruction we have seen is wrong and unfair. All we
are asking for in this debate is a simple up-or-down vote for this
President's nominees.
Priscilla Owen has been waiting 4 years for that simple up-or-down
vote, which is all we are asking for. As I said, 4 years ago, Priscilla
Owen was nominated to serve on the U.S. Circuit Court of Appeals. She
serves currently and has served on the Texas Supreme Court, where I had
the honor of serving with her. She is an exceptional jurist, a devoted
public servant, and an extraordinary Texan. Yet after 4 years, she
still awaits an up-or-down vote on the Senate floor.
This is the irony of where we find ourselves. Although a bipartisan
majority stands ready to confirm her nomination, a partisan minority
obstructs the process and refuses to allow a vote. What is more, this
partisan minority insists for the first time in history that she must
be supported by a supermajority of 60 Senators, rather than the
constitutional standard and Senate tradition of a majority vote.
I know Priscilla personally. It is hard for me to reconcile the
caricature that most people have seen drawn of her by some of the
rhetoric used, certainly, with what I know about her personally. Those
who know her would not recognize her from the caricature being created
in the Senate and elsewhere when talking about this outstanding
nominee.
She is a distinguished jurist and a distinguished public servant. She
has excelled at virtually everything she has undertaken. She was a top
graduate of her law school class at the remarkable age of 23 years and
received the top score on the Texas bar examination. She entered the
legal profession at a time when few women did. After a distinguished
record in private practice, she reached the pinnacle of the Texas bar,
which is the Texas Supreme Court. She was supported by a larger
percentage of Texans in her last election than any of her colleagues--
84 percent--after enjoying the endorsement of virtually every newspaper
in the State. She has been honored as the Young Lawyer of the Year by
her alma mater, as well as an outstanding alumna of Baylor University.
The irony in this partisan obstruction of a bipartisan majority who
stand ready to confirm her is that Priscilla Owen enjoys bipartisan
support in the State of Texas. Three former Democratic judges on the
Texas Supreme

[[Page S5389]]

Court, as well as a bipartisan group of 15 past presidents of the State
bar of Texas support this nominee.
The Houston Chronicle, one of our major newspapers, in the year 2000
called her ``[c]learly academically gifted,'' stating that she ``has
the proper balance of judicial experience, solid legal scholarship, and
real-world know-how to continue to be an asset on the high court.''
The Dallas Morning News, another major newspaper in our State, wrote
on September 4, 2002:

She has the brainpower, experience and temperament to serve
ably on an appellate court.

The Washington Post wrote in 2002:

She should be confirmed. Justice Owen is indisputably well
qualified.

Priscilla Owen is not just intellectually capable and legally
talented, she is also a fine human being with a big heart. The depth of
her humanity and compassion is revealed through her significant free
legal work and community activity. In fact, she has spent most of her
life devoted to her community. She has worked, for example, that all
citizens be ensured access to justice, as the Texas Supreme Court's
representative on the mediation task force of that court, as well as
her service on statewide committees of lawyers and her successful
efforts to prompt the Texas Legislature to provide millions of dollars
per year for legal services to the poor.
She was instrumental in organizing a group known as Family Law 2000,
which seeks to find ways to educate parents about the effect that
divorce can have on their children and to lessen the negative impacts
therefrom. She teaches Sunday school at her church, St. Barnabas
Episcopal Mission in Austin, TX, where she is an active member. It is
plain, from these and so many other examples, that Justice Owen bears
no resemblance to the caricature that has been painted of her in the
Senate. She is, in fact, a fine person and a distinguished leader of
the legal community.
One would think that after 4 long years, she would be afforded the
simple justice of an up-or-down vote. I remain optimistic, hopeful,
that this violation of many years of Senate tradition, the imposition
of a new supermajority requirement of 60 votes, will be laid aside in
the interest of proceeding with the people's business, a job my
colleagues and I were elected to faithfully execute.

For more than 200 years, it was a job that we faithfully executed
when it came to voting on a President's judicial nominees. Senators
from both sides of the aisle exercised mutual restraint and did not
abuse the privilege of debate out of respect for two coequal branches
of government--the executive, that has a constitutional right to choose
his or her nominees, and an independent judiciary.
Until 4 years ago, colleagues on both sides of the aisle consistently
opposed the use of the filibuster to prevent judicial nominees from
receiving an up-or-down vote. One of our colleagues, the senior Senator
from Massachusetts, said in 1998:

Nominees deserve a vote. If our . . . colleagues don't like
them, vote against them. But don't just sit on them--that is
an obstruction of justice . . .

The senior Senator from Vermont, in 1998, said:

I have stated over and over on this floor that I would
refuse to put an anonymous hold on any judge; that I would
object and fight against any filibuster on a judge, whether
it is somebody I opposed or supported; that I felt the Senate
should do its duty.

I could not agree more with those comments made in 1998 from the very
same colleagues who today oppose the same principle they argued for a
few short years ago. We are doing a disservice to the Nation and a
disservice to this fine nominee in our failure to afford her that up-
or-down vote.
The new requirement the partisan minority is now imposing--that
nominees will not be confirmed without the support of 60 Senators--is,
by their own admission, unprecedented in Senate history. The reason for
this is simple. The case for opposing this fine nominee is so weak that
using a double standard and changing the rules is the only way they can
hope to defeat her nomination. What is more, they know it.
Before her nomination was caught up in partisan special interest
politics, the ranking Democrat on the Judiciary Committee predicted
that Priscilla Owen would be swiftly confirmed. On the day of the
announcement of the first group of nominees, including Justice Owen, he
said he was ``encouraged'' and that ``I know them well enough that I
would assume they'll go through all right.''
Notwithstanding the change of attitude by the partisan minority, this
gridlock is really not about Priscilla Owen. Indeed, just a few weeks
ago the Democratic leader announced that Senate Democrats would give
Justice Owen an up-or-down vote, albeit only if other nominees were
defeated or withdrawn. Obviously, with these kinds of offers being made
based on cutting deals and pure politics, this debate is not about
principle. It is all about politics. It is shameful.
We should all subscribe to the notion that any nominee of any
President, if they enjoy majority support in the Senate, should get an
up-or-down vote. I am talking about whether we have a Democrat in the
White House or a Republican, whether we have Democrat majorities in the
Senate or Republican.
The rules should apply across the board exactly the same to all
nominees, regardless of who wins and who loses from a political
consideration.
But what bothers me most is that any fair examination of Justice
Owen's record demonstrates how unconvincing and unjustified the
critics' arguments are against her specifically.
For example, she was accused of ruling against injured workers,
employment discrimination plaintiffs, and other sympathetic parties on
a variety of occasions. Never mind the fact that good judges, such as
Justice Owen, do their best to follow the law, regardless of which
party will win and which party will lose. That is what good judges do.
Never mind that many of her criticized rulings were unanimous or near-
unanimous decisions of a nine-member Texas Supreme Court. Never mind
that many of these rulings simply followed Federal precedents authored
or agreed to by appointees of President Carter and President Clinton,
or by other Federal judges unanimously confirmed by the Senate. And
never mind the fact that judges often disagree, especially when a law
is ambiguous and requires careful and difficult interpretation.
One of the focal points on Justice Owen's record is a criticism of
enforcing a popular Texas law that requires parental notification
before a minor can obtain an abortion. Her opponents allege in the
parental notification case that then-Justice Alberto Gonzales, our
current Attorney General, accused her of ``judicial activism.'' I heard
that argument again this morning on the floor, notwithstanding the fact
the charge is demonstrably untrue.
For any Member to repeat this argument that is simply not true, in
spite of the fact that it has been demonstrated that it is not true, is
to me an unconscionable act of distortion of the facts. Here again, we
can disagree about the policies, and we can even decide to vote
differently on a nominee, but let's not disagree on the facts when they
are so clear. Not once did Alberto Gonzales say Justice Owen is guilty
of judicial activism. To the contrary, he never even mentioned her name
in the particular opinions that are being discussed. Furthermore, our
current Attorney General has since testified under oath that he never
accused Justice Owen of any such thing.
What's more, the author of the parental notification law that was at
issue supports Justice Owen for this nomination, as does the pro-
choice, Democratic law professor who was appointed to the Texas Supreme
Court advisory committee who was supposed to write rules, and did write
rules, to implement the law. In her words, Owen simply did ``what good
appellate judges do every day. . . . If this is activism, then any
judicial interpretation of a statute's terms is judicial activism.''
Mr. President, I ask unanimous consent that this letter be printed in
the Record at the end of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. CORNYN. Mr. President, the American people know judicial activism
when they see it. They know a controversial ruling that is totally out
of step with a judge's accepted role in our form of government when
they see it,

[[Page S5390]]

whether it be the redefinition of marriage, the expulsion of the Pledge
of Allegiance from our classrooms and other expressions of faith from
the public square, the elimination of the three-strikes-and-you're-out
law, and other penalties for convicted criminals, or the forced removal
of military recruiters from college campuses. Justice Owen's rulings
come nowhere near those examples of judicial activism that we would all
recognize clearly and plainly.
There is a world of difference between struggling to interpret the
ambiguous expressions of a statute and refusing to obey a legislature's
directives altogether, or substituting one's personal views or agenda
for the words of a statute.
It is clear, then, that Justice Owen's record deserves the broad and
bipartisan support that she has gotten, and it is equally clear that
her opposition only comes from a narrow band on the far-left fringes of
the political spectrum.
So if the Senate were simply to follow more than 200 years of
consistent Senate and constitutional tradition, dating back to our
Founders, there would be no question about her being confirmed; she
would be. Legal scholars across the political spectrum have long
concluded what we in this body know instinctively, and that is to
change the rules of confirmation, as the partisan minority has done,
badly politicizes the judiciary and hands over control of the judiciary
to special interest groups.
Mr. President, 4 years is a long time. The majority leader and those
who support this nominee's confirmation have shown extraordinary
patience during this debate. But there is a point at which patience
ceases to be a virtue, and I suggest that we have reached that point.
We need a resolution of this issue. We need for Senators to step up and
to vote ``yes'' or vote ``no.'' But we simply need for them to vote.
The record is clear. The Senate tradition has always been majority
vote, and the desire by some to alter that Senate tradition has been
roundly condemned by legal experts across the spectrum.
Professor Michael Gerhardt, who advises Senate Democrats about
judicial confirmations, has written that a supermajority requirement
for confirming judges would be ``problematic, because it creates a
presumption against confirmation, shifts the balance of power to the
Senate, and enhances the power of the special interests.''
D.C. Circuit Judge Harry Edwards, a respected Carter appointee, has
written that the Constitution forbids the Senate from imposing a
supermajority rule for confirmations. After all, otherwise, ``[t]he
Senate, acting unilaterally, could thereby increase its own power at
the expense of the President'' and ``essentially take over the
appointment process from the President.'' Edwards thus concluded that
``the Framers never intended for Congress to have such unchecked
authority to impose supermajority voting requirements that
fundamentally change the nature of our democratic processes.''
Georgetown law professor Mark Tushnet has written that ``[t]he
Democrats' filibuster is . . . a repudiation of a settled, pre-
constitutional understanding.'' He has also written: ``There's a
difference between the use of the filibuster to derail a nomination and
the use of other Senate rules--on scheduling, on not having a floor
vote without prior committee action, etc.--to do so. All those other
rules . . . can be overridden by a majority vote of the Senate . . .
whereas the filibuster can't be overridden in that way. A majority of
the Senate could ride herd on a rogue Judiciary Committee chair who
refused to hold a hearing on some nominee; it can't do so with respect
to a filibuster.''
And Georgetown law professor Susan Low Bloch has condemned
supermajority voting requirements for confirmation, arguing that they
would allow the Senate to ``upset the carefully crafted rules
concerning appointment of both executive officials and judges and to
unilaterally limit the power the Constitution gives to the President in
the appointment process. This, I believe, would allow the Senate to
aggrandize its own role and would unconstitutionally distort the
balance of powers established by the Constitution.''
She even wrote on March 14, 2005: ``Everyone agrees: Senate
confirmation requires simply a majority. No one in the Senate or
elsewhere disputes that.''
Mr. President, the record is clear. The Senate tradition has always
been majority vote, and the desire by some to alter that Senate
tradition has been roundly condemned by legal experts across the
political spectrum.
Throughout our Nation's more than 200-year history, the
constitutional rule and Senate tradition for confirming judges has been
majority vote--and that tradition must be restored. After four years of
delay, giving Justice Priscilla Owen an up-or-down vote would be an
excellent start.

Exhibit 1

May 3, 2005.
Re Priscilla Owen.

Hon. John Cornyn,
Hart Senate Office Building,
Washington, DC.
Dear Senator Cornyn: I write in support of the nomination
of Priscilla Owen to the United States Court of Appeals for
the Fifth Circuit. I write as a law professor who specializes
in constitutional law. I write as a pro-choice Texan, who is
a political independent and has supported many Democratic
candidates. And I write as a citizen who does not want the
abortion issue to so dominate the political debate that good
and worthy judicial candidates are caught in its cross hairs,
no matter where they stand on the issue.
Justice Owen deserves to be appointed to the Fifth Circuit.
She is a very able jurist in every way that should matter.
She is intelligent, measured, and approaches her work with
integrity and energy. She is not a judicial activist. She
does not legislate from the bench. She does not invent the
law. Nothing in her opinions while on the Texas Supreme Court
could possibly lead to a contrary conclusion, including her
parental notification opinions. I suspect that Priscilla
Owen's nomination is being blocked because she is perceived
as being anti-choice on the abortion issue.
This perception stems, I believe, from a series of opinions
issued by the Texas Supreme Court in the summer of 2000
interpreting the Texas statute that requires parental
notification prior to a minor having an abortion. The statute
also provides for what is called a ''judicial bypass'' to
parental notification. Justice Owen wrote several concurring
and dissenting opinions during this time. She has been
criticized for displaying judicial activism and pursuing an
anti-choice agenda in these opinions. This criticism is
unfair for two reasons.
First, the Texas statute at issue in these cases contains
many undefined terms. Further, the statutory text is not
artfully drafted. I was a member of the Texas Supreme Court's
Advisory Committee that drafted rules in order to help judges
when issuing decisions under this parental notification
statute. My involvement in this process made it clear to me
that in drafting the parental notification statute, the Texas
Legislature ducked the hard work of defining essential terms
and placed on the Texas courts a real burden to explicate
these terms through case law.
Moreover, the statute's legislative history is not useful
because it provides help to all sides of the debate on
parental notification. Several members of the Texas
Legislature wanted a very strict parental notification law
that would permit only infrequent judicial bypass of this
notification requirement. But several members of the Texas
Legislature were on the other side of the political debate.
These members wanted no parental notification requirement,
and if one were imposed, they wanted courts to have the
power to bypass the notification requirement easily. The
resulting legislation was a product of compromise with a
confusing legislative history.
In her decisions in these cases, Justice Owen asserts that
the Texas Legislature wanted to make a strong statement
supporting parental rights. She is not wrong in making these
assertions. There is legislative history to support her.
Personally, I agree with the majority in these cases. But I
understand Justice Owen's position and legal reasoning. It is
based on sound and clear principles of statutory
construction. Her decisions do not demonstrate judicial
activism. She did what good appellate judges do every day.
She looked at the language of the statute, the legislative
history, and then decided how to interpret the statute to
obtain what she believed to be the legislative intent.
If this is activism, then any judicial interpretation of a
statute's terms is judicial activism. Justice Owen did not
invent the legislative history she used to reach her
conclusion, just as the majority did not invent their
legislative history. We ask our judges to make hard decisions
when we give them statutes to interpret that are not well
drafted. We cannot fault any of these judges who take on this
task so long as they do this work with rigor and integrity.
Justice Owen did exactly this.
Second, we must be mindful that the decisions for which she
is being criticized had to do with abortion law. I do not
know if Justice Owen is pro-choice or not, but it does not
matter to me. I am pro-choice as I stated before, but I would
not want anyone placed on the bench who would look at
abortion law

[[Page S5391]]

decisions only through the lens of being pro-choice. Few
categories of judicial decisions are more difficult than
those dealing with abortion. A judge has to consider the fact
that the fetus is a potential human, and this potential will
be ended by an abortion. All judges, including those who are
pro-choice, must honor the spiritual beauty that is potential
human life and should grieve its loss. But a judge has other
important human values to consider in abortion cases. A judge
also has to consider whether a woman's independence and
rights may well be unconstitutionally compromised by the
arbitrary application of the law. All this is further
compounded when a minor is involved who is contemplating an
abortion. I want judges who will make decisions in the
abortion area with a heavy heart and who, therefore, will
make sure of the legal reasoning that supports such
decisions.
I think the members--all the members--of the Texas Supreme
Court did exactly this when they reached their decisions in
the parental notification cases. I was particularly struck by
the eloquence of Justice Owen when she discussed the harm
that may come to a minor from having an abortion. She
recognized that the abortion decision may haunt a minor for
all her life, and her parents should be her primary guides in
making this decision. Surely, those of us who are pro-choice
have not come to a point where we would punish a judge who
considers such harm as an important part of making a decision
on parental notification, especially when legislative history
supports the fact that members of the Texas Legislature
wanted to protect the minor from this harm. As a pro-choice
woman, I applaud the seriousness with which Justice Owen
looked at this Issue.
If I thought Justice Owen was an agenda-driven jurist, I
would not support her nomination. Our founders gave us a
great gift in our system of checks and balances. The judicial
branch is part of that system, and it is imperative that it
be respected and seen as acting without bias or predilection,
especially since it is not elected. Any agenda-driven
jurist--no matter the issue--threatens the honor accorded the
courts by the American people. This is not Priscilla Owen. So
even though I suspect Justice Owen is more conservative than
I am and even though I disagree with some of her rulings,
this does not change the reality that she is an extremely
well-qualified nominee who should be confirmed.
It would be unfair to place Priscilla Owen in the same
category with other nominees who, in my opinion, are judicial
activists and who I do not support. Some of these other
nominees appear to want to dismantle programs and policies
based on a political or economic agenda not supported by
legal analysis or constitutional history. They appear to want
to push their views on the country while sitting on the
bench. Priscilla Owen should not be grouped with them.
Justice Owen possesses exceptional qualities that have made
and will make her a great judge. I strongly urge her
confirmation.
Sincerely,
Linda S. Eads,
Associate Professor of Law.
The PRESIDING OFFICER. The Senator has used his time.
Mr. CORNYN. I see my colleague, the senior Senator from Texas, on the
floor, and she intends to speak on the same subject.
I yield the floor.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Texas, Mrs.
Hutchison, is recognized.
Mrs. HUTCHISON. Madam President, I am very pleased my colleague,
Senator Cornyn, has made a wonderful statement about Priscilla Owen. He
is one of the few people who has actually served with her, being a
member of the Texas Supreme Court with her. So having his insight into
her as a professional is, I think, very enlightening for the record of
this debate. I thank my colleague from Texas, who is one of the few
people in the Senate who actually has been a state Supreme Court
justice. I think that gives him a particular advantage in talking about
her as a judge with judicial temperament, the demeanor of a judge, and
her qualities as a judge. I thank my colleague.
Mr. President, I am going to talk today about Priscilla Owen as a
person. I think it is a part of this debate that has never really been
brought forth. I am here to support her because she has been a stellar
representative of the judges in our country, as she has waited more
than 4 years since she was nominated to have an up-or-down vote by the
Senate. We have voted on Priscilla Owen, and she has won confirmation
four times in the Senate. But here we are again trying to get a vote
that will put her in the office to which she has been nominated and for
which she has received the majority vote.
I have heard my colleagues, and some interest groups, use very
extreme language to describe Priscilla Owen. These statements are
coming, in many cases, from people who have never met her and whose
minds were made up before they ever learned one thing about her. I want
to spend a few minutes talking about Priscilla Richman Owen, the person
that is known to those of us in Texas who have seen her as a
professional.
Last month, I was sent an interesting document. It was the newsletter
of the graduating class of Texas A&M University, the class of 1953. A
prominent story had the headline: ``Pat Richman's Legacy.'' It told a
story almost nobody in the class knew--that Pat Richman, of Palacious,
TX, who had died tragically only 2 years after their graduation from
Texas A&M and had left a baby daughter, that daughter of their beloved
classmate is now at the center of a national controversy.
Pat Richman was a leader of the Corps of Cadets at Texas A&M, first
sergeant of his company, and later its battalion commander. He was one
of the stars of the class, one of its most promising leaders. Pat
Richman entered active duty in the U.S. Army upon graduation and was
shipped to Korea eight months later, but not before marrying his long-
time sweetheart. When the boat left, his wife was pregnant.
Pat returned from Korea in May, 1955, having served his country,
having done his duty to our Nation. Priscilla was 7 months old. He had
never seen his baby daughter. On the way back across the Pacific, news
came to the ship. Researchers, led by Jonas Salk, had created a vaccine
to combat the scourge of polio. One of Pat's best friends remembers him
exclaiming: ``This is wonderful. This means my daughter will never have
to worry about being crippled by that disease.''
When Pat arrived back in Texas and was discharged, he accepted a job
with the extension service that took him to south Texas. Suddenly, over
a single weekend, he contracted bulbar polio. He was rushed into an
iron lung--and died in a Houston hospital. Priscilla Owen was 10 months
old.
As you would expect, the sudden death of this promising young man
sent his entire family into shock, especially his wife. Priscilla's
mother retreated to a family farm in Collegeport, Texas. She stayed
there for five years grieving and trying to reassemble her life.
Eventually, she remarried, and the small family moved to what was
considered the big city, Waco, Texas. That is where Priscilla Richman
Owen grew up and went to school.
Priscilla became a top student. She was a class officer. She worked
part time in high school and college at her stepfather's insurance
business, and she sent out premium notices and posted payments. During
summers, she returned to Collegeport, helping run cattle and work in
the rice field. As a teenager, she spent long days during the rice
harvest driving the auger wagon, taking rice from the wet fields to a
kiln and drying them.
Priscilla Richman started college at the University of Texas at
Austin. After a year, though, she returned home to Waco to be closer to
her family, and she enrolled at Baylor University. Her academic record
was good, we should say, but it was not perfect. It was not perfect.
She got one B-plus--one B-plus in all of her days in college and law
school. The rest were A's. Priscilla Owen advanced to law school after
only three years of college. She was named editor of the Baylor Law
Review.
She finished college and law school after five years and three
months, and when she took the Texas bar exam in 1977 at age 23, she got
the highest score in the State.
Priscilla Owen was recruited into the Andrews Kurth law firm, one of
the biggest in Houston, as a litigator at a time when women were not
really in the courtroom very much. She was highly successful, creating
a statewide reputation in oil and gas litigation. She chaired the
firm's recruitment committee and was made a partner of the firm at the
age of 30.
In 1993, when she had been at Andrews Kurth for 17 years, she was
asked to run for election to the Texas Supreme Court as a Republican.
Although judicial nominees run by party in Texas, she was really
apolitical. She had made donations to judicial candidates in both
parties just trying to be a contributor and a community leader.

[[Page S5392]]

I am amused when I hear interest groups say that Priscilla Owen is a
partisan, an ideologue. In 1993, when she was asked to run for the
Supreme Court of Texas, she could not remember in what primary she had
voted. It would have been determined by the judge races at the time and
whether there was a race in the Democratic or Republican primaries. She
was told it would be difficult to run on the ticket if she had not
voted in the primary in the previous election, and she had to go down
to the courthouse to find out in which primary she had voted. It was
Republican, and so she said yes.
As it happened, in 1994, when she was running, I was running for
reelection, and we campaigned together. I invited her to join me on
campaign trips. I have to tell you, she is not a rabble-rousing
speaker. Priscilla Owen is a judge. She is soft spoken. She is
scholarly. She is what you would want a judge to be. She managed to win
with 53 percent of the vote and became an immediate leader on the Texas
Supreme Court.
She also became a leader in a cause that makes me smile because I
hear people on the other side of the aisle describing her as if she is
some big partisan. She writes articles and lobbies the Texas
Legislature to do away with partisan election of judges because, as she
said in her articles, she thinks it taints the ability of the court to
provide impartial justice.
This is actually a controversial position for a judge in our State to
say that we should do away with partisan elections, because most of the
Republicans in Texas think we should keep partisan elections. But she
is not a politician, she is a judge--exactly what we would want in a
person nominated for the circuit court of appeals.
When she was up for reelection in 2000, something happened that
really had not happened very often to a Republican running statewide in
Texas. The Democrats did not even put an opponent against her. She had
a libertarian opponent, and virtually every major newspaper in Texas
endorsed her. She was returned to office with 84 percent of the vote.
We will have a lot of opportunity on the Senate floor to discuss her
court opinions, especially the mischaracterizations of those opinions
that various interest groups have made. But I want to share with you
what she does when she is not hearing and deciding cases because I
believe it will shed light on the character of this person whom I do
not recognize when I hear her described on this floor by many who have
not even met with her.
She gave up a highly lucrative private practice a dozen years ago at
the height of her earning power to run on a reform platform for our
State's highest court because there were scandals on the supreme court
at the time and we were trying to recruit top-quality people to bring
back the integrity and dignity of our supreme court. So she sought a
State government salary and gave up her big law firm partner share.
The Code of Judicial Ethics restricts her off-bench activities. She
cannot help raise funds even for her church. But she has devoted
countless hours toward helping the less fortunate, those in need, and
improving access to the judicial system.
For example, Justice Owen is a dog enthusiast and serves on the board
of Texas Hearing and Service Dogs. This organization rescues dogs from
pounds, provides expensive training for them, and then gives the dogs
to quadriplegics, paraplegics, and the hearing and sight impaired--
people who cannot afford these trained animals on their own. The dogs
perform all sorts of tasks that allow these disabled people to live
more independent lives.
She is a founding member of the St. Barnabas Episcopal Mission in
Austin, Texas. She serves as head of the church's altar guild. And she
teaches Sunday school to preschool, kindergarten, and grade school
children. On any given Sunday, you can find Justice Owen hopping on one
leg, reading stories, and helping these children find ways to make the
right choices in their conduct.
Justice Owen has also worked to ensure that all Texas citizens are
now provided access to justice. Yesterday at a press conference, a
former president of the Texas Bar Association, one of 15 former State
bar presidents--Republicans and Democrats--who support her, told an
interesting story. In the mid-1990s, the Congress sharply reduced
funding for the Legal Services Corporation. The Texas legal aid system
for the poor, including migrant workers, was in serious jeopardy.
Priscilla Owen led a committee that persuaded the Texas Legislature to
provide millions in additional funding for legal services for the poor.
The funding filled gaps caused by the Federal cut to help give legal
help for housing, domestic abuse, and food assistance eligibility to
thousands of low-income Texans who otherwise would not have been able
to have that help.
Priscilla Owen was the supreme court's representative on the
Mediation Task Force. The group worked countless hours over many months
to resolve differences between lawyer and non-lawyer mediators. As we
know, mediation often provides an effective alternative to expensive,
full-blown trials, thus making justice more accessible to people who
cannot afford expensive lawyers.

Justice Owen is a member of the Gender Bias Reform Implementation
Committee and the Judicial Efficiency Task Force on Staff Diversity.
She was instrumental in organizing Family Law 2000 to educate parents
about the effect of divorce and to lessen the negative impact on
children.
These are not headline-grabbing assignments. There is no public glory
in this quiet work. I do not see pictures of Justice Owen in the
newspapers about all of these activities she has undertaken just to
make our State and her community a better place to live. Justice Owen
is not a particularly public person. In fact, as you may have read in
the press last week, members of her church had no idea what she did for
a living until a story appeared about her and this controversy in the
Austin newspaper.
Throughout her four years awaiting a Senate vote, Priscilla Owen has
not complained, not in public, not in private. She has sat quietly by
as people who do not have the faintest idea what she is really like
have vilified her, distorted her opinions, and questioned her motives.
Many of my colleagues on the other side of the aisle have declined
any opportunity to meet with this lovely person. They have refused to
sit down and ask her questions, to see if the person who is portrayed
in the propaganda is really the same person. It is their loss because
they are missing the opportunity to know a truly exceptional human
being.
Over two years ago, an ordinary Texan named Nancy Lacy, who is
Priscilla Owen's sister, attended her long-delayed confirmation
hearings before the Judiciary Committee in Washington. She sat behind
Justice Owen, and she later gave the Dallas Morning News a summary of
what she saw. She said:

It was eye opening. . . . It was a hard experience because
no matter what she said, they were going to stick with the
propaganda. It was obvious. I was hoping they were going to
really give her a shot, try to get to know who she really is,
ask thoughtful questions.
But the information they had was wrong to begin with. I
felt sorry for them at times; their staffs didn't do a very
good job. It was obvious the special interest groups gave
them the information, and they didn't research to see if it
was true. The handwriting was on the wall.

You know, Madam President, it makes you stop and think when real
people come before committees in this Congress how they must feel when
they are tortured and pricked and badgered the way we often do without
realizing that these are good people. They are people willing to serve,
even if you might disagree with them. They are willing to serve our
country and they have not been treated well. I believe Priscilla Owen,
especially, has not been treated well by this Senate.
I am going to end with a wrap-up of the beginning of the speech that
I have made. The Texas A&M class of 1953 held their annual reunion at a
hotel in San Antonio last month. Priscilla Richman Owen, known to the
group as Pat Richman's daughter, was their special guest. She was able
to hear contemporaries of her father tell stories about him that she
had never heard before to get a better idea of what he would have been
like if he had lived into his seventies instead of dying when she was
10 months old. It was, by all accounts, a moving experience.

[[Page S5393]]

I hope that when the class of 1953 and the people who went with Pat
Richman to serve our country in Korea meet again, that Pat Richman's
daughter will come back and she will be a member of the Court of
Appeals, of the Fifth Circuit Court of Appeals of the United States. I
think she deserves confirmation.
I thank the chair. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ALLEN. Madam President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLEN. Is it true that the pending business before the Senate is
the nomination of Priscilla Owen and other judges?
The PRESIDING OFFICER. That is correct.
Mr. ALLEN. Madam President, in my view there are four pillars that
are absolutely essential for a free and just society. The first of
those pillars is freedom of religion, where people's rights are not
enhanced or diminished on account of their religious beliefs. The
second pillar is freedom of expression, where people say what they want
without retribution. Third is private ownership of property. And the
fourth pillar for a free and just society is the rule of law, where
disputes are fairly adjudicated and our God-given rights are protected.
I believe it is absolutely essential that we have judges on the bench
at the Federal level and indeed all levels of Government who understand
that their role is to adjudicate disputes fairly and honestly, to apply
to the facts and the evidence of the case the laws that were made by
elected representatives. We are a representative democracy. Judges
ought to apply the law, not invent the law, not serve as a
superlegislature, not to use their own personal views as to what the
law should be. It is absolutely essential for our country, for the rule
of law, for the stability one would want for the rule of law, for the
credibility and the fair administration of justice, that we have judges
who understand this basic principle.
When it comes to the appointment of judges and the election of
judges, in some States they are elected, in some they are appointed. At
the Federal level, the way it has been since the beginning of the
Republic is the President nominates a man or a woman for a particular
vacancy. That individual is examined very closely by the Judiciary
Committee. They question and try to determine what is their temperament
and what will they become once they put on a robe. Especially at the
Federal level it is important because they are given lifetime
appointments, so there is questioning done as to their scholarship and
their judicial philosophy. That is very important.
If that person passes muster in the Judiciary Committee, the
procedure, for the past 200 years, was that the nominee get a favorable
recommendation. Once in a while they come out of the committee with no
recommendation. But ultimately what happens is 100 Senators vote. They
vote up or down on these nominations. That is our responsibility. It is
my responsibility to the people of the Commonwealth of Virginia who
elected me to confirm judges or deny confirmation--but ultimately vote.
What has happened in the last three years, though, is an abrogation
of this approach and fair consideration of judicial nominees. We have
seen unprecedented obstruction and a requirement, in effect, of a 60-
vote margin, particularly for circuit court judges.
Wendy Long, the counsel to the Judicial Confirmation Network,
observed a month ago:

It is abundantly clear that the American people are tired
of the partisan, political maneuvering and the unwarranted
character assassinations against qualified candidates for the
Federal bench.

She observed, and I agree:

People see through these aggressive negative attacks waged
by some individuals and groups on the left and they want it
to end. They want Senators to do their jobs and hold a
straight up-or-down vote on nominees based on their
qualifications, not the baseless negative rhetoric of the
left.

I agree. I think the people of America believe these nominees deserve
a fair vote based on their qualifications. I think my colleagues should
take notice.
Two of the nominees who have suffered at the hands of the opposition
are Judges Priscilla Owen and Janice Rogers Brown. First, in respect to
Justice Owen, I listened to the heartfelt views of Senator Hutchison of
Texas about Justice Owen. Senator Hutchison knows her better than I do,
but I strongly support Justice Owen; not just her nomination but her
confirmation. In fact, she is arguably one of the best nominees
President Bush has nominated to the appellate court. Even the American
Bar Association agrees. They unanimously rated Judge Owen well
qualified, their highest rating.
Sadly, Justice Owen was the first unanimously approved well-qualified
ABA nominee who was held up a few years ago in the Judiciary Committee.
What are some of the reasons why the Democrats are opposing Justice
Owen? The Number one reason I have heard is it was because of her
interpretation of Texas' parental notification statute. The Democrats
and her opponents have charged Justice Owen is found to be an activist
in cases involving the interpretation of the Texas parental
notification statute that was enacted in 1999.
If you want to look at that statute, it says as follows. It requires
notice to a parent when a minor woman seeks an abortion, but allows
exceptions when the trial court judge concludes the minor is mature and
sufficiently well informed to make the decision without notification of
a parent; that notification would not be in the best interests of the
minor; or that notification may lead to physical, sexual, or emotional
abuse of the minor.
From reading Justice Owen's opinions with respect to the statute, I
found that Justice Owen interpreted the parental notice statute in
Texas and its exceptions fairly and neutrally, in accord with the plain
legislative language, as well as relying on precedent from the Supreme
Court of the United States. She expressly relied on U.S. Supreme Court
cases addressing similar laws to interpret the statutory exceptions. In
fact, even the Washington Post has opined that:

While some of Justice Owen's opinions--particularly on
matters related to abortion--seem rather aggressive, none
seems to us beyond the range of reasonable judicial
disagreement.

That is the Washington Post and I would hardly call the Washington
Post a bastion of conservative philosophy.
Justice Owen's record in these cases is far from that of an activist.
In fact, it demonstrates her judicial restraint and her understanding
of the proper role of an appellate judge. Under the Texas statute, the
Supreme Court of Texas does not review judicial bypass cases unless the
bypass has already been rejected at the trial and the intermediate
appellate court level. In other words, every time Justice Owen voted to
deny a judicial bypass, she was simply upholding the rulings of lower
courts. That means she upheld the ruling of the trial judge, the only
judge who actually saw and heard the case, a decision with which at
least two out of three appellate court judges agreed.
This type of deference is entirely appropriate in cases such as this,
where the determination turns largely on the factual findings and the
credibility of the witnesses. The trial judge who actually observes and
hears the testimony of a plaintiff in a judicial bypass case is best
positioned to determine the credibility of that evidence and that
witness.
By deferring to the trial court's judgment on factual questions,
Justice Owen has appreciated, obviously, the proper role of an
appellate judge. However, when a trial judge commits a clear error,
Justice Owen has not hesitated to reverse the judgment and order a
bypass, or remand for further proceedings, as she has done on three
occasions.
My colleagues, I understand this parental notification issue. As
Governor of Virginia, I worked for the passage and signed Virginia's
requirement to notify parents if their unwed minor daughter, 17 or
younger, is planning an abortion. Opponents of this attacked me and
said things very similar to what you hear about Justice Owen. They said
we were trying to tear down Roe v. Wade. That is quite contrary from my
standpoint. I want the record

[[Page S5394]]

to note that Justice Owen has repeatedly demonstrated adherence to
Supreme Court precedent, including Roe v. Wade. In fact, almost 80
percent of the American people believe a parental notification statute
for a minor is reasonable.
I asked my staff to look back in my documents to find the speech I
gave before I signed the bill on March 22, 1997. Here is the reasoning
that motivated me and the people of Virginia to finally pass a parental
involvement measure--and I am for parental consents even better, but
our statute is similar to Texas. I said on the steps of Mr. Jefferson's
capital in Richmond, VA:

Today we are signing legislation affirming the importance
and the necessity of a parent's guidance and counsel if their
young daughter is facing the trauma of an abortion. Ladies
and gentlemen, parents have the right and the responsibility
to be involved with important decisions in their young
children's lives, especially those that affect their physical
and emotional health.

It was hard to get this bill passed. It was 17 years before it
actually passed, a true parental notification bill. This was logical
law. When one considers that for a minor to get their ears pierced, one
needs parental consent, it makes a great deal of sense to me that if a
young daughter, unwed, 17 or younger, is going through a trauma of
abortion, a parent ought to be involved. That is what the Texas law was
about. When daughters are going through this trauma, parents ought to
know as opposed to being in the dark.

But I want to stress that the Texas statutes and the Virginia
statutes are merely parental notice statutes. Those statutes express
the views of the people of the State of Texas, the Commonwealth of
Virginia, and indeed the more than 40 States that have some sort of
parental involvement statutes on their books. In fact, they reflect the
views of this country. In fact, they believe what Justice Owen was
doing was correct in applying this statute as she did.
In summation, Justice Owen is a person with outstanding
qualifications. She graduated at the top of her class at the Baylor Law
School and subsequently earned the highest score in the State on the
December 1977 Texas Bar Exam. After graduation she practiced commercial
litigation for 17 years and became a partner at one of the most
respected law firms in the State of Texas. Finally, in 1994, Justice
Owen was elected to the Texas Supreme Court. In 2000, she won
reelection by an overwhelming 84 percent of the vote, and was endorsed
by every major newspaper in Texas.
Her support is wide and it is bipartisan, ranging from a number of
former Democratic judges on the Supreme Court of Texas to a bipartisan
group of 15 past presidents of the State Bar of Texas.
It is important that we act on Justice Owen's nomination because the
Judicial Conference of the United States has designated the seat
Justice Owen is nominated for as a judicial emergency. Justice Owen is
well qualified to be a judge on the Fifth Circuit Court of Appeals, and
the longer the opposition keeps holding up this nomination--and this
has been going on now for 4 years--the longer average citizens will
have to wait to have their cases heard. She deserves a fair up-or-down
vote.
With respect to Justice Janice Rogers Brown, she has been nominated
by the President to the U.S. Court of Appeals for the DC Circuit, where
currently one-fourth of that court is vacant. Her qualifications are
impeccable. In the past years I talked about Miguel Estrada, another
outstanding nominee who had unanimous support, the highest
recommendation from the American Bar Association, and who was denied,
year after year, the fairness of an up-or-down vote. He was a modern-
day Horatio Alger story.
Justice Brown is an American success story as well. She reflects the
fact that with hard work and determination you can succeed if you put
your mind to it. Her rise from the humble beginnings she had in the
segregated South to becoming the first African-American woman to serve
on the highest court in the largest State in the country is truly an
inspiring American success story.
In her 9 years on the California Supreme Court, Justice Brown has
earned the reputation of being a brilliant and fair jurist who is
committed to the rule of law. That reputation has returned her to the
court when she was supported by 76 percent of California voters, which
was the largest margin of any of the four justices up for retention
that year. Her reputation has also led the Chief Justice of the
California Supreme Court to call on Justice Brown to write the majority
opinion more times, in 2001 and 2002, than any other justice on the
Supreme Court of California. When someone gets 76 percent of the vote
and is called on to write the majority opinion more times than any
other justice on that court, that means you are well respected and you
are doing a good job and that you are clearly within the mainstream,
not out of the mainstream as is asserted by those who obstruct her
vote.

Justice Brown's opponents would like the American people to think she
is a radical, an ideological extremist in her opposition to government.
I contend if she was so extreme, why did 76 percent of California
voters support her? Sadly, her opponents continually attack her for her
opposition to government even though she has stated for the record that
she does not hate government. If she hates government, why is she a
part of it?
A thorough analysis of her opinions clearly indicate she is capable
of dissecting her personally held views of her dislike of expansive
government, from her opinions that seek to apply the law as it exists
and defer to the legislative judgments on how best to address social
and economic problems.
Justice Brown has been extremely cooperative with the Senate
Judiciary Committee. She testified for nearly 5 hours at her hearing
and answered every charge leveled against her. Justice Brown is clearly
qualified for this job, and her colleagues, Republican and Democrats
alike, agree.
Twelve of her colleagues wrote the following about her:

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

Now, isn't that what one would want in a judge? This quote best
summarizes my faith that many people, including myself, have in Justice
Brown. In an October 17, 2003 letter to Senator Hatch, Judge Talmadge
R. Jones of the Sacramento Superior Court wrote:

More importantly, the exceptional judicial performance of
Justice Brown as a Circuit Judge will readily be apparent to
everyone, and a worthy tribute to the confidence placed in
her by both the President and the United States Senate.

The PRESIDING OFFICER. The time of the Senator has expired.
Mr. ALLEN. I ask unanimous consent to be allowed 5 more minutes.
Mr. SCHUMER. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. SCHUMER. If the Senator wants to arrange to go for the next hour
under Republican time, that is just fine.
I would like to accommodate my friend, but we have a set schedule. We
come at different times and places and we have stuck by it. We are
already 2 or 3 minutes over, so I have to object.
Mr. ALLEN. Madam President, I ask Unanimous Consent that I be allowed
1 minute and add 1 minute to the Democrats' side to sum up.
Mr. SCHUMER. I will accept that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLEN. I thank my colleagues.
In summation, Priscilla Owen, Janice Rogers Brown, and all of the
President's nominees, deserve a fair up-or-down vote.
The people all across this country, whether they are down in Cajun
county in Louisiana, whether they are down in Florida, whether they are
in the Black Hills of South Dakota, or whether they are in the
Shenandoah Valley of Virginia, expect action on judges. As much as
people care about less taxation and energy security for this country
and wanting us to be leaders in innovation, they really expect the
Senate to act on judges. It is a values issue. It is a good government
issue. It is a responsibility-in-governing issue that needs to be
addressed.
As I said earlier, there is no reason to filibuster these
nominations. As Senators we have a responsibility to vote. These
nominees deserve fair consideration, fair scrutiny, but ultimately we
have a responsibility to get off our

[[Page S5395]]

haunches, show the backbone, show the spine, vote yes or vote no, and
be responsible to our constituents.
I thank you, Madam President, and I yield the floor.
Mr. SCHUMER. I believe I now have 30 minutes?
The PRESIDING OFFICER (Mr. Thune). The minority has 61 minutes
remaining.
Mr. SCHUMER. But I have 30 of that, or 31. I yield 3 minutes to my
colleague from the State of Washington, and then 1 minute to my
colleague from the State of California, and then I will take the
remaining 26 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Washington.
Mrs. MURRAY. Mr. President, I thank my colleague from New York for
yielding me just a few minutes. I was over in my office a few minutes
ago listening to the debate on both sides, and I heard my good friend
and colleague, the Senator from Texas, talk about her tremendous
friendship and passion for the woman whose nomination is in front of
the Senate today, Priscilla Owen.
I have tremendous respect for Senator Hutchison and all of her
passion she has put in here. All Senators have been in a position of
fighting hard for something we believe in, someone we care about.
Sometimes we win, sometimes we have lost.
One of the things that was said was that many of the colleagues on
this side of the aisle, many of my colleagues have declined any
opportunity to meet with this lovely person. They have refused to sit
down and ask her questions to see if the person that is portrayed and
the propaganda is really the same person.
Mr. President, I want to set the record straight. I did sit down and
meet with Judge Owen yesterday at the request of the Senator from
Texas. I could not agree more, she was a lovely person. But this is not
a debate about a lovely person. This is a debate about a record on
judicial decisions and about whether that record merits promoting
someone to a lifetime appointment.
I will later today join with my colleagues to give more specifics,
but I have sat down with Priscilla Owen. I have asked her questions,
and I have reviewed the record. This is not about a person. This is
about a record. It is about a record that is outside the mainstream on
parental consent, which we have heard about. But not just that, it is
about victims' rights, which any of us can be. It is about workers'
rights, about a bias about campaign contributions. We will be setting
that record straight throughout this debate.
It is especially important for all to recognize a record says what
someone will be and what decisions they will make about any one of us
in this country in the future. That is what I dispute. That is what I
will discuss later today when I have more time to outline.
We can all agree that lovely people deserve opportunities, but when
it comes to our courts and when it comes to making decisions about us,
our family, about women, about children, about rape victims, about
workers, the many things that come before a court, a record is what we
have to look at and what we have to stand on.
I thank my colleague from New York for giving me an opportunity to
respond.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I will rebut something that my friend from
Virginia, Senator Allen, said about Janice Rogers Brown. He said she
was in the mainstream. This is a woman who has served on the California
Supreme Court that is made up of six Republicans and one Democrat. She
has dissented a third of the time because her Republican friends on
that court are not radical enough for her. Thirty-one times she stood
alone on the side of a rapist, on the side of energy companies against
the consumers, against women who were seeking to get contraception. It
goes on and on--against workers. She said it was fine for Latinos to
have racial slurs used against them in the workplace.
This is a woman with an inspiring personal life story. But it is what
she has done to other people's lives that makes her far out of the
mainstream.
I thank my colleague for yielding. I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, this debate is not only about Priscilla
Owen and whether she should become an appellate judge, but it is about
something much more momentous. If the situation in the Senate were not
so grave, there might be some humor in the fact my strict
constructionist Republican friends who daily claim to be against
activist judges are, through the nuclear option, engaging in the most
activist reading of the Constitution to seat an activist judge on the
appellate court. That is breathtaking hypocrisy.
But we are more profound than that. We are on the precipice of a
crisis, a constitutional crisis. The checks and balances which have
been at the core of this Republic are about to be evaporated by the
nuclear option, the checks and balances which say if you get 51 percent
of the vote you do not get your way 100 percent of the time. It is
amazing. It is almost a temper tantrum by those on the hard right. They
want their way every single time, and they will change the rules, break
the rules, misread the Constitution so they will get their way.
That is not becoming of the leadership of the Republican side of the
aisle, nor is it becoming of this Republic. That is what we call abuse
of power.
There is, unfortunately, a whiff of extremism in the air. In place
after place, the groups that were way out of the mainstream with their
disproportionate influence on the White House and the Republican
leadership in this Senate seem to push people to abuse power.
It happened in the Schiavo case, and there was a revulsion in
America. It happened with threats against judges, both made by some of
my colleagues in this body and certainly by some well-known activist
religious figures. It has happened on Social Security where there is an
attempt to undo a very successful government program. And that is why
the popularity, the respect that this Republican leadership has in
America, goes down every day. I know, as chair of the DSCC, because I
keep an eye on those things.
I make a plea. It is to the seven or eight Republicans on that side
of the aisle. Every one of them has told us they know the nuclear
option is wrong. It is a plea to have the courage to stand up for what
is right. There are many others of our colleagues on the other side of
the aisle who have already said they know the nuclear option is wrong,
but they say they cannot resist the pressure. I understand it. We have
had times on the Democratic side where groups on the left extreme have
had undue influence. But it is in yours and America's detriment and to
our party's detriment.
We are on the precipice of a constitutional crisis. It rests on the
shoulders of three or four men or women on the other side of the aisle.
We hope we will not fall into the abyss.
Judges are now under siege. Our Constitution is under attack. Our
precious system of checks and balances is under assault. Some of my
colleagues seem to have forgotten we in the Senate have a
constitutional role to play, and we will. The Founding Fathers did not
intend us to march lockstep like lemmings behind every Presidential
appointee no matter how many times he or she is put before the Senate.
The Founding Fathers, whom many of us like to cite, foresaw
collaboration between the President and the Senate in the seating of
judges. The Founding Fathers expected, because of the advice and
consent clause, the President would be judicious, that he would talk to
the Senate about nominees.

This President has done none of that. No President has nominated
judges more through an ideological spectrum than this President. When
he asks why he doesn't get cooperation from the Democrat side, he has
reaped what he has sown. No consultation, no discussion, and nominees
who tend to be way over at the extreme.
As Hamilton wrote in the Federalist Papers about the importance of
the Senate's role in approving judicial nominees, the possibility of
rejection of nominees would be a strong motive to use care in
proposing. But this President, instead of taking that care that the
Founding Fathers sought, has seen some of his nominees--a handful--
rejected, and now instead of accepting that as a consequence of no
consultation and of nominating extreme judges,

[[Page S5396]]

he seeks to encourage the majority leader and others to change the
rules in this hallowed institution.
Why are we at this crisis point? The bottom line is that no President
in memory has taken so little care in the proposing of judges.
What about abuse of power? I will talk for a moment, before I talk
about Priscilla Owen, about the nuclear option. If there ever was
something that signified an abuse of power, a changing of the rules in
midstream simply because you could not get your way on every judge, it
is this nuclear option. There is now a desperate attempt on the other
side of the aisle not to call it the nuclear option, but it was my
colleague from Mississippi, the former majority leader, who gave it
that name--with justification. You won't change the name. To call it
the constitutional option is hypocrisy. There is nothing in the
Constitution that talks about filibuster or majority vote when it comes
to judges in the Senate.
It is a nuclear option because it will vaporize whatever is left of
bipartisanship and comity in the Senate.
Now, let me ask a question: How much power does the Republican
leadership need? How much power is it entitled to? Does a 1- or 2-
percent point victory in the last election, does a margin of five
Senators give them the right to get their way all the time and then to
change the rules if they can't?
The American people are understanding this. There are only three
branches of Government. The Republican Party has a tight grip on all
three. Republicans control the Presidency, they control the House, they
control the Senate. They already have control of the courts.
As the chart shows, of all of our judicial circuits, only two have
slight Democratic majorities. The sixth is even. And all the others
have Republican majorities.
The circuit courts, the courts of last resort, are overwhelmingly
Republican already in terms of their appointees. And on the new judges
they have been able to fill, they have gotten their way 95 percent of
the time. As one of my colleagues said, if your child came home and
said they got a 95 on their test, would you pat them on the head and
say ``good job'' or would you say ``go change the rules, cheat until
you get 100 percent''? That is what the other side is doing.
Ninety-five percent should make this President very happy. And maybe
it would if he was left to his own devices. But the group of hard-right
extremists, who seem to have disproportionate sway, are not happy
unless they have 100 percent.
Now, let me talk a little bit about calling it a ``constitutional
option.'' The other side will, with a straight face, either tomorrow or
the next day, invoke our democracy's chief charter, the Constitution,
in ruling that judicial filibusters are prohibited by the Constitution.
There is only one problem. There is nothing in the Constitution that
supports the nuclear option. There is nothing in the Constitution that
requires a majority vote for every judicial nominee. Republicans know
this.
The Senator from Tennessee, our majority leader, who got on the floor
earlier today and said for 214 years there have not been filibusters of
judges, has a very short memory. I asked him this morning, Did you not,
on March 8, 2000, vote in favor of a filibuster of Richard Paez to the
Ninth Circuit Court of Appeals? Here is a copy of the vote. Voting no:
Frist, Republican of Tennessee. Did he think it was unconstitutional
then? He said on the floor, in answer, Well, some are successful, some
are not. I have never known the Constitution to say that something is
unconstitutional if it fails and constitutional if it succeeds. When we
talk about attempted murder or robbery or larceny, it is still a crime.
So I would like to ask my colleague to answer during this debate, How
can he distinguish as unconstitutional our votes to block judges, and
it is perfectly acceptable, 5 years ago, his vote to block a judge, or
the scores of votes by other Republicans in favor of filibusters over
the years, including those against Paez and Berzon and Fortas? Were
they unconstitutional? I do not think so.
Furthermore, have judges never been blocked? All the time. One out of
every five Supreme Court nominees did not make it to the Supreme Court.
That is part of the tradition of this country. Should the Senate have
majority say? No. Should we have the say the majority of the time? No.
Should we have the say some of the time? Yes. And there is the balance.
The more a President consults, the more the President nominates
moderate nominees, the more likely his nominees will succeed. Bill
Clinton had a little trouble, but he consulted Orrin Hatch regularly.
Patrick Leahy has not been consulted by the President at all.
Another interesting point. It seems the only people who seem to cling
to the nuclear option are those in elected office who are susceptible
to the power and sway of these extremist groups. Conservatives who are
not in public office, retired elected officials, commentators,
have repeatedly said the nuclear option is not constitutional.

How about George Will--hardly a liberal--one of the country's most
foremost commentators. Here is what he said:

Some conservatives say the Constitution's framers ``knew
what supermajorities they wanted''--the Constitution requires
various supermajorities, for ratifying treaties, impeachment
convictions, etc.; therefore, other supermajority rules are
unconstitutional. But it stands--

Listen to this.

But it stands conservatism on its head to argue that what
the Constitution does not mandate is not permitted.

Of course. The people who advocate this are the greatest activists of
all. And it is an unbelievable turnaround, an unbelievable act of
hypocrisy, that all of a sudden activism, which means interpreting
things in the Constitution which are not in the writings of the
Constitution, is OK when you want to get your way. It is wrong.
Now, let me talk a little bit about Priscilla Owen. She is the
nominee before us today. This is the third time we have considered the
nomination of Priscilla Owen. Each previous time she got an up-or-down
vote. She did not get 60, but she sure got an up-or-down vote.
Everyone's vote was on the record. This was not being done, what was
done in the Clinton years, which was not even letting judges come up
for a vote. Here we are again.
Why are we doing Priscilla Owen again? Because 95 percent is not good
enough for the President or for the leadership here in the Senate. On
the merits, nothing has changed. There is no question she is immoderate
and that she is a judicial activist. I continue to believe Justice Owen
will fail my litmus test, my only litmus test in terms of nominating
judges; that is, will they interpret law, not make law? Will they not
impose their own views and have enough respect for the Constitution and
the laws of this land that they will not impose their own views?
Well, do not ask me. Ask the people who served with Justice Owen.
They believe that she, time and time again, cast aside decades of legal
reasoning, miles of legislation, to impose her own views. If there was
ever a judge who would substitute her own views for the law, it is
Judge Owen. Her record is a paper trail of case after case where she
thinks she knows better than hundreds of years of legal tradition.
In one case, In re Jane Doe, Judge Owen's dissent came under fire
from her colleagues in the Texas Supreme Court. They referred to her
legal approach as an effort to ``usurp the legislative function.'' That
was a very conservative court, and they still said Justice Owen put her
views ahead of the law.
Even more troubling, of course, is what Attorney General Alberto
Gonzales said. He sat on the same court with Judge Owen. He wrote a
separate opinion in which he chastised the dissenting judges, including
Justice Owen, for attempting to make law, not interpret the law. These
are Judge Gonzales' words, not mine. He said that to construe the law
as the dissent did ``would be an unconscionable act of judicial
activism.'' Those are not my words. Those are the words of the man the
President has appointed as Attorney General.
In another case, Montgomery Independent School District v. Davis, the
majority ruled in favor of a teacher who had been wrongly dismissed,
and the majority, including Judge Gonzales, wrote that:

the dissenting opinion's misconception . . . stems from its
disregard--

Not its misinterpretation; ``its disregard''--

[[Page S5397]]

of the [rules] the Legislature established.

In a third case, Texas Department of Transportation v. Able, Justice
Gonzales also took Justice Owen to task for her activism, indicating
she had misunderstood the plain intent of the State legislature.
The list goes on and on. And there is nothing to indicate she has
backed off from her activist tendencies.
As extreme as Justice Owen is, Justice Janice Rogers Brown is even
more so.
The things she has said are unbelievable. She is an activist judge,
more committed to advancing her own extreme beliefs and ideas than
guaranteeing a fair shake for millions of Americans who would be
affected by her decisions on the DC circuit. There was the Lochner case
which threw out as unconstitutional a law that said bakery workers
could not work a certain number of hours. That was a New York law, so
we are not even dealing with federalism. It was decided in 1906 or
1901, close to 100 years ago. If you go to law school, it is called the
worst Supreme Court decision of the 20th century.
She said it was decided correctly. Judge Janice Rogers Brown believes
that if an employer wanted to employ a child for 80 hours in awful
conditions, that would be that employer's constitutional right.
Justice Brown's views on economics make Justice Scalia look very
liberal. She doesn't want to roll back the clock to the 1950s or even
the 1930s. She wants to go back to the 1800s. She has been nominated to
the most important court in the country when it comes to enforcing
Government laws and rules--environmental, labor--and yet she abhors
Government.
Here is what she once wrote:

Where government moves in, community retreats, civil
society disintegrates, and our ability to control our own
destiny atrophies.

Does the kind of person who thinks that way belong on any court of
appeals, and particularly on the DC Court of Appeals? Absolutely not.
For those reasons, the American Bar Association gave her one of the
lowest rankings any of this administration's circuit court judges have
ever received.
We stand on the edge. This is an amazing time. I wake up in the
morning, sometimes with butterflies in my stomach, thinking the Senate
might actually attempt to do this. If there was ever a time where the
power grab has been so harsh, so real, and so unyielding, it is now. It
is not simply that we have a disagreement of ideas and we argue
vehemently. It seems much more that the leadership on the other side
can't stand the fact that they don't always get their way and that they
have to change the rules to do it.
People who hate activist judges are becoming activist themselves in
the sense that they read into the Constitution things that are never
there. People who say that they respect bipartisanship are going to
undo whatever is left of bipartisanship here in the Senate.
Amazingly enough, with all of the smoke pumped by the radical right's
media machines, talk radio, the American people have a deep
understanding. The only solace I have, as we are on the edge of this
crisis and the eve of a great vote in the Senate, is that the American
people understand what majority leader Frist is up to. They understand
this is a power grab. They understand this is a breaking of the rules.
They understand the checks and balances will go by the wayside. What
was good enough 4 years ago, votes on filibusters, is not acceptable
today.
I believe the nuclear option, even if it should pass on the floor
this week or next week, will not stand, that the American people will
understand what is attempting to be done, they will rise up and,
whether it is at the polls or just in the court of public opinion,
cause the nuclear option to be undone.
That is the faith I have in the Government we have and the people who
are governed. But let us not go through that. We will stop progress in
the Senate. We will ruin bipartisanship, whatever is left of it, and we
will be playing with fire when it comes to the constitutional checks
and balances that are at the core of our Constitution and our Republic.
I will have plenty more to say in the upcoming weeks, but it is a
momentous time. I appeal once again to my colleagues: Think of what you
are doing. Think of its consequences. Maybe we won't have to live with
this, the greatest undoing of the Constitution that this Senate has
seen in decades.
I yield the remaining time to my colleague from California.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I thank the Senator from New York. He
serves as the ranking member of the Subcommittee on Administrative
Oversight and the Courts of the Judiciary Committee, and he more or
less heads all of the hearings with respect to these judges. He has
done an excellent job. He is thorough. As everybody knows, he is a
smart and intelligent man. He has made a very eloquent statement. So I
thank him.
Last week I came to the floor and discussed the nuclear option. I
recognize today that we are now faced with going down this path. I am
concerned that once begun, it is going to be hard, if not impossible,
to reverse it.
I find it ironic in his statement the majority leader said:

All Members are encouraged to ensure that rhetoric in this
debate follows the rules and best traditions of the Senate.

That is exactly what this side of the aisle is fighting for--the
rules and the traditions of the Senate. We are standing up to those in
the other party who want to break the rules and precedent of the
Senate. So in reality, it is those of us on this side of the aisle who
are asking the majority leader to follow all the rules and precedents
of the Senate, not just the one he supports or any other group of
Members might support.
Some have argued this debate is too inside baseball or, more
appropriately perhaps, too inside the beltway and that Americans don't
care about it. However, I believe that is wrong. To date, I have
received about 16,000 phone calls, and they are running three to one in
favor of opposing the nuclear option. The reason is, people are
beginning to understand this debate is built on the very foundation of
why we are here, why our democracy has been successful over 200 years,
and why our Constitution is looked at as a model across the world in
emergent democracies.
Let me try to explain, once again, why Senators take their role of
advise and consent so seriously and what this nuclear option will mean,
not only for the Senate and the judiciary but for our Constitution and
our country.
First, Federal judges' decisions impact laws that affect our everyday
lives--privacy protection, intellectual property, laws of commerce,
civil rights, environmental regulations, highway safety, product
liability, the environment, retirement security. And those are just a
few examples. Who we confirm is important because their ability to
interpret basic law, based on the Constitution of the United States, is
critical to our functioning. Their independence to do that is critical.
Secondly, Federal judges enjoy lifetime appointments. They don't come
and go with administrations, as do Cabinet Secretaries. They cannot be
removed from the bench, except in extremely rare circumstances. In
fact, in our Government's over 200-year history, only 11 Federal judges
have been impeached and, of those, only 2 since 1936.
Thirdly, Federal judges are meant to be independent. The Founding
Fathers intentionally embedded language in the U.S. Constitution to
provide checks and balances. Inherent in our Government is conflict and
compromise, and that is the fundamental principle in the structure of
our Government. The judiciary is meant to be an independent,
nonpartisan third branch.
I think John Adams, in 1776, made it very clear on the point of
checks and balances and an independent judiciary, when he said:

The dignity and stability of government in all its
branches, the morals of the people and every blessing of
society, depends so much upon on upright and skillful
administration of justice, that the judicial power ought to
be distinct from both the legislative and executive, and
independent upon both, that so it may be a check upon both,
as both should be checked upon that . . . [The judges'] minds
should not be distracted with jarring interests; they should
not be dependent upon any man or body of men.

Now, that is the clearest statement of intent from our Founding
Fathers, that the judiciary should be and must be independent. That is
what is being

[[Page S5398]]

eroded with the partisanship and with the nuclear option. The Senate
was meant to play an active role in the selection process. The
judiciary was not solely to be determined by the executive branch. Last
week, I described how, in the Constitutional Convention, the first
effort put forward was actually to have the Senate nominate and appoint
judges. Then it was later on, with the consideration of others, changed
to allow the President to nominate. But the explanation in the
Federalist Papers is all centered around the Senate having the real
power to confirm, and that power is not a rubberstamp.
Because of these fundamental concerns, for centuries there have been
heated and important debates surrounding judicial nominations. Today,
rather than utilizing and preserving the natural tension and conflict
our Constitution created, some in the Republican Party want to
eviscerate and destroy that foundation. Blinded by political passion,
some are willing to unravel our Government's fundamental principle of
checks and balances to break the rules and discard Senate precedent.
The nuclear option, if successful, will turn the Senate into a body
that could have its rules broken at any time by a majority of Senators
unhappy with any position taken by the minority. It begins with
judicial nominations. Next will be executive appointments, and then
legislation.
A pocket card being passed around in support of the nuclear option
states this:

The majority continues to support the legislative
filibuster.

Yes, they do today, but what happens when they no longer support it
tomorrow or the next day? If the nuclear option goes forward and they
break Senate rules and throw out Senate precedent, then any time the
majority decides the minority should not have the right to filibuster,
the majority can simply break the rules again. Fifty-one votes are not
too hard to get. Get the Vice President, have a close Senate, and you
get it. That will be new precedent again in the Senate. So once done,
it is very hard to undo. That is why precedent plays such a big part in
everything we do because we recognize that once you change it, you open
that door for all time. It can never be shut again. If this is allowed
to happen--if the Republican leadership insists on enforcing the
nuclear option, the Senate becomes ipso facto the House of
Representatives, where the majority rules supreme and the party in
power can dominate and control the agenda with absolute power.
The Senate is meant to be different. In my talks, I often quote
George Washington and point out how the Senate and House are often
referred to as a cup of coffee and a saucer. The House is a cup of
coffee. You drink your coffee out of the cup. If it is too hot, you
pour it into the saucer--the Senate--and you cool it. The Senate is
really formed on the basis that no legislation is better than bad
legislation and that the debates and disagreements over judicial
nominations ensures that the Senate confirms the best qualified
candidates.
So the Senate is meant to be a deliberative body, and the rights of
the minority, characterized by the filibuster, are purposely designed
to be strong. Others describe the Senate as a giant bicycle wheel with
100 spokes. If one Senator--one spoke--gets out of line, the wheel
stops and, in fact, that is true. In our rules, any Senator can put a
hold on a piece of legislation and essentially force the majority to go
to a cloture vote--essentially, force a 60-vote necessity for any
matter to be brought to the floor. This distinguishes us from the
House. Because we know it is such a strong right, we are very reluctant
and very reserved in the use of that right. This is what has produced
comity in this House, the collegiality. Everybody knows if you put a
hold on something too often, you are going to jeopardize things you
want. So what goes around comes around and comity, such as it may be,
exists.
Now, when one party rules all three branches, that party rules
supreme. But now one party is saying that supreme rule is not enough,
that they must also completely eliminate the ability of the minority to
have any voice, any influence, any input.
This is not the Senate envisioned by our Founding Fathers. It is not
the Senate in which I have been proud to serve for the last 12 years.
And it is not the Senate in which great men and women of both parties
have served with distinction for over 200 years. We often refer to the
longest filibuster in history, which was conducted by Senator Strom
Thurmond and lasted for more than 24 hours. That was an actual
filibuster, standing on the floor and orating, or asking the clerk to
read the bill, or reading the telephone directory, and doing it hour
after hour after hour, sending the message that you are stopping
debate, that on the great wheel of comity one spoke is sticking out and
stopping it. People listen because, unlike the House, debate and
discussion has been important. It has been fundamental in our being,
and our ability to stand up on the floor of the Senate and discuss
issues of import before the world on television, for the Congressional
Record, for all of the people who watch on closed circuit television,
becomes a signal, I think, on Capitol Hill.

When Democrats were in the White House--I will talk for a moment on
Senate procedure--Republicans used the filibuster and other procedural
delays to deny judicial nominees an up-or-down vote. So denying a
judicial nominee an up-or-down vote is nothing new. It has been done
over and over and over again. I speak as a member of the Judiciary
Committee for 12 years, and I have seen it done over and over and over
again. So why suddenly is an up-or-down vote now the be all and end
all?
Last administration, Republicans used the practice of blue slips or
an anonymous hold, which I have just described, to allow a single
Senator--not 41 Senators, but 1--to prevent a nomination from receiving
a vote in the Judiciary Committee, a 60-vote cloture vote on the floor,
or an up-or-down vote on the floor of the Senate. This was a filibuster
of one, and it can still take place within the Judiciary Committee.
The fact is, more than 60 judicial nominees suffered this fate during
the last administration. In other words, over 60 Clinton judges were
filibustered successfully by one Senator, often anonymous, often in
secret, no debate as to why. It was an effective blackball.
This is not tit-for-tat policy, but it is important to recall that
Senate rules have been used throughout our history by both parties to
implement a strong Senate role and minority rights, even the right of
one Senator to block a nomination.
Republicans have argued that the nominations they blocked are
different because in the end, some, such as Richard Paez and Marsha
Berzon, were confirmed. This ignores that it took over 4 years to
confirm both of them because of blue slips and holds.
In addition, if a party attempts to filibuster a nomination and a
nominee is eventually confirmed, that does not mean it is not a
filibuster. Failure does not undo the effort. I pointed out earlier
where, in 1881, President Hayes nominated a gentleman to the Supreme
Court. That was successfully filibustered throughout President Hayes'
term. When President Garfield then came into office, he renominated the
individual, and the Senate then confirmed that individual. But that
does not negate the filibuster. It was the first recorded act of a
filibuster of a judicial nominee, and it, in fact, took place and was
successful for the length of President Hayes' term.
More importantly, while some of Clinton's nominations eventually
broke through the Republican pocket filibuster, 61 of President
Clinton's judicial nominations were not confirmed because of Republican
opposition. Not only were they not confirmed, they were not given a
committee vote in Judiciary. They were not given a cloture vote here or
an up-or-down vote on the floor. So these are really crocodile tears.
Republicans have also argued that the reason the nuclear option is
needed now is because the Clinton nominees were not defeated by a
cloture vote. In essence, because different procedural rules were used
to defeat a nominee, it does not count.
On its face, this argument is absurd. To the nominee, whatever rule
was used, their confirmation failed and the result is the same: They
did not get a

[[Page S5399]]

vote, and they are not sitting on the Federal bench.
As I said, 61 Clinton nominees, in the time I have sat on the Senate
Judiciary Committee--so I have seen this firsthand--were pocket
filibustered by as little as one Senator in secret and, therefore,
provided no information about why their nomination was blocked. There
was no opportunity to address any concern or criticism about their
record and qualifications.
Just to straighten out the record because I debated a Senator
yesterday: 23 of these were circuit court nominees and 38 were district
court nominees. In addition, unlike what some have argued, this
practice was implemented throughout the Clinton administration when
Republicans controlled the Senate, not just in the last year or final
months of the tenure of the President.
The reason I mention this is because there is sort of an informal
practice in the Judiciary Committee--it is called the Thurmond rule--
that when a nominee is nominated in the fall of year of a Presidential
election, that nominee does not generally get heard. But I am not only
talking about nominees at the tail end; I am talking about nominees who
were nominated in each of the 6 years of the Clinton Administration in
which the Republican party controlled the Senate.
The following is a list of President Clinton's judicial nominees who
were blocked:

------------------------------------------------------------------------
Date nomination
Nominees Court nominated to first submitted
to Senate
------------------------------------------------------------------------
Circuit Court
------------------------------------------------------------------------
Charles R. Stack................. Eleventh Circuit.... 10/27/95
J. Rich Leonard.................. Fourth Circuit...... 12/22/95
James A. Beaty, Jr............... Fourth Circuit...... 12/22/95
Helene N. White.................. Sixth Circuit....... 01/07/97
Jorge C. Rangel.................. Fifth Circuit....... 07/24/97
Robert S. Raymar................. Third Circuit....... 06/05/98
Barry P. Goode................... Ninth Circuit....... 06/24/98
H. Alston Johnson, III........... Fifth Circuit....... 04/22/99
James E. Duffy, Jr............... Ninth Circuit....... 06/17/99
Elena Kagan...................... DC Circuit.......... 06/17/99
James A. Wynn, Jr................ Fourth Circuit...... 08/05/99
Kathleen McCree Lewis............ Sixth Circuit....... 09/16/99
Enrique Moreno................... Fifth Circuit....... 09/16/99
James M. Lyons................... Tenth Circuit....... 09/22/99
Allen R. Snyder.................. DC Circuit.......... 09/22/99
Robert J. Cindrich............... Third Circuit....... 02/09/00
Kent R. Markus................... Sixth Circuit....... 02/09/00
Bonnie J. Campbell............... Eighth Circuit...... 03/02/00
Stephen M. Orlofsky.............. Third Circuit....... 05/25/00
Roger L. Gregory................. Fourth Circuit...... 06/30/00
Christine M. Arguello............ Tenth Circuit....... 07/27/00
Andre M. Davis................... Fourth Circuit...... 10/06/00
S. Elizabeth Gibson.............. Fourth Circuit...... 10/26/00
------------------------------------------------------------------------
District Court
------------------------------------------------------------------------
John D. Snodgrass................ Northern District of 09/22/94
Alabama.
Wenona Y. Whitfield.............. Southern District of 03/23/95
Illinois.
Leland M. Shurin................. Western District of 04/04/95
Missouri.
John H. Bingler, Jr.............. Western District of 07/21/95
Pennsylvania.
Bruce W. Greer................... Southern District of 08/01/95
Florida.
Clarence J. Sundram.............. Northern District of 09/29/95
New York.
Sue E. Myerscough................ Central District of 10/11/95
Illinois.
Cheryl B. Wattley................ Northern District of 12/12/95
Texas.
Michael D. Schattman............. Northern District of 12/19/95
Texas.
Anabelle Rodriguez............... District of Puerto 01/26/96
Rico.
Lynne R. Lasry................... Southern District of 02/12/97
California.
Jeffrey D. Colman................ Northern District of 07/31/97
Illinois.
Robert A. Freedberg.............. Eastern District of 04/23/98
Pennsylvania.
Legrome D. Davis................. Eastern District of 07/30/98
Pennsylvania.
Lynette Norton................... Western District of 04/29/98
Pennsylvania.
James W. Klein................... District of Columbia 01/27/98
J. Rich Leonard.................. Eastern District of 03/24/99
North Carolina.
Frank H. McCarthy................ Northern District of 04/30/99
Oklahoma.
Patricia A. Coan................. District of Colorado 05/27/99
Dolly M. Gee..................... Central District of 05/27/99
California.
Frederic D. Woocher.............. Central District of 05/27/99
California.
Gail S. Tusan.................... Northern District of 08/03/99
Georgia.
Steven D. Bell................... Northern District of 08/05/99
Ohio.
Rhonda C. Fields................. District of Columbia 11/17/99
S. David Fineman................. Eastern District of 03/09/00
Pennsylvania.
Linda B. Riegle.................. District of Nevada.. 04/25/00
Ricardo Morado................... Southern District of 05/11/00
Texas.
K. Gary Sebelius................. District of Kansas.. 06/06/00
Kenneth O. Simon................. Northern District of 06/06/00
Alabama.
John S.W. Lim.................... District of Hawaii.. 06/08/00
David S. Cercone................. Western District of 07/27/00
Pennsylvania.
Harry P. Litman.................. Western District of 07/27/00
Pennsylvania.
Valerie K. Couch................. Western District of 09/07/00
Oklahoma.
Marian M. Johnston............... Eastern District of 09/07/00
California.
Steven E. Achelpohl.............. District of Nebraska 09/12/00
Richard W. Anderson.............. District of Montana. 09/13/00
Stephen B. Lieberman............. Eastern District of 09/14/00
Pennsylvania.
Melvin C. Hall................... Western District of 10/03/00
Oklahoma.
------------------------------------------------------------------------

Mrs. FEINSTEIN. Mr. President, the overwhelming question I have--and
let me ask everybody here--is the public interest better served by 41
Senators stating on the floor of the Senate why they are filibustering
a nominee, as Senator Schumer did, as others have done earlier, and the
reasons hang out in public? Everybody can hear the reasons; they can be
refuted. There are reasons given with specificity. They are based on
opinions, they are based on speeches, they are based on writings, and
they are discussed right on the floor in public. Or is the public
interest better served by one Senator, in secret, putting a hold on a
nominee or blue-slipping the nominee and preventing that nominee from
ever having a hearing, from ever having a markup, from ever having a
vote in the Senate, and it is all done on the QT, no discussion, no
debate. It is, as I said, the epitome of blackballs that exists in the
Senate.
All during the Clinton years, Republicans did not argue that checks
and balances had gone too far. In fact, the opposite occurred.
Republicans went to the floor to defend their right to block
nominations. Senator Hatch is a good friend of mine, but nonetheless
here is his 1994 statement about the filibuster:

It is one of the few tools that the minority has to protect
itself and those the minority represents.

That was on judges. That was the chairman of the Judiciary Committee.
In 1996, Senator Lott, then the leader, stated:

The reason for the lack of action on the backlog of Clinton
nominations--

That is an admission there were backlogs of Clinton nominations--

was his steadily ringing office phones saying ``No more
Clinton Federal judges.''

Also, in 1996, Senator Craig said:

There is a general feeling that no more nominations should
move. I think you'll see a progressive shutdown.

Now there are crocodile tears and people are upset because 41 of us--
not 1--41 want to debate in public. We have voted no on cloture because
we believe our views are strong enough, that our rationale is strong
enough and substantive enough to face public scrutiny and warrant an
extended debate in the true tradition of the Senate.
We may not all agree. Our country is based on a foundation that
protects the freedom to disagree, to debate, to require
compromise. Neither party will always be right when it comes to the
best policies for our country, and neither party will always be in
power. So, as I said initially, it is important to put this political
posturing in context. I believe filibusters should be far apart and
few, and should be reserved for the rare instances for judicial
nominations that raise significant concerns.

I voted against cloture in my Senate career of 12 years on only 11
judicial nominations and voted to confirm 573. I believe judicial
nominees must be treated fairly and evenhandedly. I also believe it is
the duty of the Senate to raise concerns or objections when there are
legitimate issues that need to be discussed.
Discharging our obligation to advise and consent is not an easy task,
especially when it involves making a choice to oppose a nomination. As
I discussed earlier, I strongly believe the use of the blue slip and
anonymous holds has been abused in previous Congresses. During the
reorganization of the Senate in 2000, Senators Daschle and Leahy worked
to make the process more fair and public. At that time, a blue slip was
no longer allowed to be anonymous and instead became a public document.
This refining forced Senators opposed to a nominee to be held
accountable for their positions. They could not hide behind a cloak of
secrecy. This step also wiped out many of the hurdles that had been
used to defeat nominations, so many of the tools used by Republicans in
the past, and referred to as a way to draw distinctions with a public
cloture vote, are no longer available.
Today the blue slip is still used. However, with each chairmanship,
its effectiveness and its role has been modified. Each chair of the
Judiciary Committee says they are going to adhere to the blue slip in a
different way. That is the anomaly in this process. One person in
Judiciary decides what the rules are going to be. This is what we ought
to change.
Recently, Senator Specter, for example, has indicated he will honor
negative blue slips. It is a piece of paper that Senators from a
nominee's home state send in. If you do not send them in or if you say
you do not favor the nominee, that nominee does not proceed. So Senator
Specter has said he will honor negative blue slips when they are
applied to district court nominees and that even one negative blue slip
will be considered dispositive. However, when it comes to circuit
court, blue slips will be given great weight but will not be
dispositive on a nomination.

[[Page S5400]]

Given that the meaning and effect of a blue slip has changed, and I
suspect will continue to change depending on which party controls the
Senate and which party is in the White House, I believe the blue slip
process should be eliminated altogether. In reality, its usefulness has
already been lost.
Instead, I have long supported the creation of a specific timeline
for how judicial nominations should be considered. Three months after
nominations are submitted by the President, they should be given a
hearing in the Judiciary Committee. In 6 months they should be given a
vote in the committee. And in 9 months, floor action should be taken on
the nomination. But the filibuster should remain the basic right of
this institution. I believe implementing this timeframe would go a long
way toward alleviating the tension that has plagued the consideration
of judicial nominees.
I would like to spend a few moments, since I believe I have the time,
on one nominee. It is the nominee who comes from California. Of course
I represent California. This is very hard for me to do, but I believe
this nominee clearly indicates the legitimacy of our position. I would
like to turn to the President's choice for a seat on the most powerful
appellate court in the Nation, the DC Circuit, Janice Rogers Brown.
In the case of this particular nominee, out of all the nominations,
Justice Brown, in my view, is the clearest cut. She has given numerous
speeches over the years that express an extreme ideology, I believe an
out-of-the-mainstream ideology. In those speeches she has used stark
hyperbole, startlingly vitriolic language. That has been surprising,
especially for a judge, let alone a State Supreme Court justice from my
State. But statements alone would not be enough for me to oppose her
nomination, because there are many nominees whose opinions I have
strongly disagreed with and voted to confirm. Jeffrey Sutton and Thomas
Griffith immediately come to mind.
Rather, my concern is that these views expressed in Justice Brown's
speeches also drive her legal decisionmaking. On far too many occasions
she has issued legal opinions based on her personal political beliefs,
rather than existing legal precedent. Let me give some instances.
In a speech to the Institute for Justice on August 12, 2000, Justice
Brown stated this:

Today, senior citizens blithely cannibalize their
grandchildren because they have a right to get as much free
stuff as the political system will permit them to extract.

From the context of the speech, it is clear Justice Brown is
referring to Social Security and Medicare, two essential programs that
protect individuals in their retirement, and two programs that today's
senior citizens have been contributing to financially for decades.
Unfortunately, her legal decisions reflect the same visceral
hostility toward the rights of America's seniors. Let me give you an
example.
In Stevenson v. Superior Court, Justice Brown wrote a dissenting
opinion that would have changed California law to make it more
difficult for senior citizens to demonstrate age discrimination. A
Republican justice, writing for the majority of the California Supreme
Court, criticized Justice Brown's opinion and he stated this:

The dissent's real quarrel is not with our holding in this
case, [meaning the majority] but with this court's previous
decision . . . and even more fundamentally with the
legislature itself. . . . The dissent [of Justice Brown]
refuses to accept and scarcely acknowledges these holdings.

``These holdings'' being the law of the State of California.
Justice Brown's open disdain toward Government is also disturbing,
especially in light of her nomination to the District of Columbia
Circuit. Let me explain why this is so important. The DC Circuit is the
most prestigious and powerful appellate court below the Supreme Court
because of its exclusive jurisdiction over critical Federal
constitutional rights and Government regulations. Given this exclusive
role, the judges serving on this court play a special role in
evaluating Government actions.
Janice Brown's statements on the Federal Government raise serious
concerns about how she would perform on the DC Circuit if given a
lifetime position. Let me illustrate.
At a 2000 Federalist Society event, Justice Brown stated:

Where government moves in, community retreats, civil
society disintegrates, and our ability to control our own
destiny atrophies. The result is: families under siege, war
in the streets, unapologetic expropriation of property, the
precipitous decline of the rule of law, the rapid rise of
corruption, the loss of civility and the triumph of deceit.
The result is a debased, debauched culture which finds moral
depravity entertaining and virtue contemptible.

We asked her about these statements in the Judiciary Committee. Her
answer was, ``Well, I write my own speeches.'' So these are her words.
These are her words, of somebody going on the DC Circuit with enormous
hostility to virtually anything the Government would do, and saying the
Government is responsible for the loss of civility, the triumph of
deceit.

Justice Brown's statements and actions demonstrate that she is an
activist judge with an unfortunate tendency to replace the law as
written with her own extreme personal beliefs. This is not the kind of
judge who should be on the nation's second most powerful court.
The PRESIDING OFFICER. The Senator's time is expired.
Mrs. FEINSTEIN. I will yield the floor, but if an opportunity comes
up, I will ask to recover it again.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, we are debating in the Senate today a
very important issue. It is an issue that we must deal with and one
that may take days of debate.
For a series of reasons, it has become more and more of interest to
the American people the nature and quality of judges that we appoint.
That has resulted in a serious concern about the role of courts, the
critical doctrine of separation of powers; that is, what judges do and
what they should do and what their prerogatives are and what their
responsibilities are as a judge.
President Bush, in his campaigns both times, made absolutely clear
that he believed the judge should be a neutral arbiter, a fair referee
and, as such, not have an agenda when they go on the bench. He has
appointed and nominated judges that share that view. And they have been
doing splendid jobs--the judges that have been confirmed. He has not
asked that they promote his agenda, his politics, his view of the
social policies of America, he has simply asked that they do the jobs
they were appointed to do--that they serve in the judicial branch of
our government.
It is true, however, that the American people have seen some things
in the judicial branch that have troubled them. They have seen, for a
number of years, two judges on the Supreme Court consistently dissent
in death penalty cases. They don't like the death penalty so they
dissent in cases that uphold its use. They declare, in every case they
consider, that the death penalty cruel and unusual, and therefore,
prohibited by the Constitution of the United States. But they failed to
note that in that very same Constitution there are eight or more
references to capital crimes, permitting the taking of a person's life
with due process of law, there are multiple references to the death
penalty in the Constitution and I think it is important to note that
every State, at the time the Constitution was adopted, had a death
penalty and virtually every country had one as well.
Therefore, it is inconceivable to me how a judge who would follow his
oath to obey the commands of the Constitution could ever interpret the
phrase ``cruel and unusual''--certainly it was not unusual if it was
the law of every State in the Nation at that time and the Federal
Government had laws supporting the death penalty. So we know that some
judges continue to conclude that the death penalty is cruel and
unusual. That is activism. They have allowed their personal opposition
to the death penalty to solely drive them, and they have manipulated
the words of the Constitution to make it say something it plainly does
not say.
Now we are seeing cases of judicial activism on a whole raft of
issues. We have seen the Pledge of Allegiance struck down by a Federal
court. We have seen the erosion of rights of property protected by the
fifth amendment that says you cannot take someone's property without
paying them for it. We have had courts redefine the meaning of marriage
under the guise of interpreting a constitutional phrase that absolutely
was never ever intended to

[[Page S5401]]

affect the definition of marriage. It was probably the last thing in
their minds when the people ratified the Constitution.
We have had judges cite as authority proceedings in the European
Union, but it is our Constitution we ratified. It is our Constitution,
not some other. How can they define and make rulings based on opinions
in Europe when they go against the very document that orchestrates and
organizes our Government?
We have consent decrees in prisons and schools and mental health
hospitals where Federal judges dominate whole Government agencies and
state legislatures for 30 years. We have had judges say you cannot have
a Christmas display because it violates the first amendment. And, we
know that jackpot verdicts are all too common.
The American people are concerned about these things. These things
are bigger than Republican and Democrat, they go to the heart of the
separation of powers doctrine. President Bush was honest and direct,
and many of the people he has nominated have had an objection to their
nomination because, on occasion, they have written something or have
made a speech that indicates they share the view that a judge should
show restraint and not promote their own personal agenda from the
bench.
That is the way it has been for 200 years. I remember when this
debate got kicked off, I saw ``Meet the Press,'' when Hodding Carter
was on it, and used to be on the staff of President Carter, and he
said: Well, I have to admit we liberals are at the point we are asking
the courts to do for us that which we can no longer win at the ballot
box.
Too often that is what this is about. A lot of these issues that are
being decided by courts and judges would never ever prevail at the
ballot box. They would not be passed by the Congress.
People say they are nice folks. They are smart people. If you
criticize a judge, you are doing something that is highly improper; you
should never criticize a judge. That is not the history of the
Republic. What the American people need to understand, I cannot
emphasize this too much, the principle on these issues I have just
talked about is very deep. What we are suggesting is, and what is being
implicated here is, that unelected judges who are given a lifetime
appointment by which they are independent and unaccountable to the
public, should not set social and political policy in this country.

Is that too much to ask? We have seen too much of that. It is being
taught in the law schools that the good judges are the ones that step
out in a bold way and move the law forward to higher realms, they would
say. But have they forgotten that the people, if they wish to have a
death penalty and it is consistent with a Constitution, their opinion
makes little difference? They have one vote in the election, as
everyone else does. If their views do not get ratified, so what?
Some people say: Well, the courts had to act because the legislature
did not act. But when the legislature does not act, that is an act.
That is a decision, a decision not to change an existing law, and it
deserves respect.
Our judges are people who take their office on trust. We have some
exceedingly fine ones and most do show discipline, but I do believe
this is a point in our history when the American people and the
Congress need to decide together what we expect out of judges. Do we
expect them to be the avant-garde of social and political policy? Or do
we expect them to be faithful and true arbiters of legitimate disputes
to interpret the law as they find it?
There is only one way, consistent with our Constitution and our
history and our body politic, for our system to continue to work, and
that is that judges show restraint. That is what this debate is about.
It is not about Republicans. It is not about Democrats or such things.
One of the things that has occurred in this confirmation process, for
now nearly 20 years, has been the influence of outside hard-left
activist groups who have a clear agenda with regard to the Judiciary.
They know exactly what they want from the Judiciary, and they are
determined to get it. They have banded together. They build dossiers on
nominees. They systematically take out of context their comments and
their statements and their positions. They release that to the public.
Frequently, they have support from the major liberal news organizations
in the country to the sensational charges they make and they sully the
reputations of nominees who are good and fine nominees.
It is a very difficult to turn the tide on that. It is unfair. We
will talk about that some today. But we have to recognize this.
If I criticize my colleagues on the other side of the aisle, I would
say this: Those people were not elected to the Senate. They have not
taken an oath to advise and consent and to do so honestly and with
intellectual integrity. They did not do that. They are advocates. They
raise money by trying to demonstrate to those who would contribute to
them that President Bush's nominees are extreme and out of the
mainstream. They should not be calling the shots here. Frankly, my view
is, too often they have. Too often they have taken nominees, and they
have smeared them up, muddied them up, and then our Senators have not
stepped back and given them a fair shake. I do not mean that personally
to my colleagues, but I think that is a fair observation. I believe too
often that has occurred.
Two of the things that are typical of that can be seen in an ad now
being run on television against Priscilla Owen--I don't know in how
many States--by People For the American Way. Let me remind you that
Justice Priscilla Owen, from Texas, was given the highest possible
rating by the American Bar Association. She finished at the top of her
class in law school. She made the highest possible score on the Texas
bar exam. A lot of people take that exam. That is a big deal, in my
opinion. She got 84 percent of the vote in her reelection. She had the
support of every major newspaper in Texas, and many of them are not
Republican newspapers. She is a superb, magnificent nominee.
However, the People for the American Way TV ad wants you to believe
that she is an activist judge, even though we know that for her whole
career her whole philosophy of law is that judges should follow the law
and not legislate from the bench. That is her deepest abiding
principle--be faithful to it and not depart from it, whether or not she
agrees with it.
The People for the American Way cites as proof of her activism a
fellow justice on that court, now the Attorney General of the United
States of America, Alberto Gonzales, who they say accused her of being
an activist in an opinion he wrote. So they declare: Ah, she is an
activist. The President's own Attorney General said she is an activist.
That is simply not so.
Let me just talk about the facts of this opinion for a minute. We
need to drive this home because so far as I can tell that is the only
charge that has been made against her that amounts to anything at all
that has ever been consistently raised by those who oppose her
nomination.
In the opinion the People for the American Way cites as their
evidence, what happened was this--the Texas Supreme Court was
evaluating the meaning of the Texas parental notification law on
abortion for a teenager or a minor. Minors in Texas have to notify at
least one of their parents before they undergo the significant medical
procedure of an abortion, unless there is a bypass to the parental
notification requirement granted by a court. And minors are allowed to
ask for that judicial bypass for many reasons. This process allows them
to set forth the reasons and not have to tell their parents that they
are going to have an abortion.
Well, in this circumstance, a trial judge heard the case. He saw the
child who wanted to bypass and not tell her parents, and he concluded
that she did not meet the statutory requirements and should tell her
parents. Lets be clear--the Texas parental notification requirement
does not give the parents veto power, it does not mean they have to
``consent.'' She could still have the abortion, just as long as she
told them, ``notified'' them, of what she was about to do. The reason
to have this kind of law is simple--there is a serious concern that if
you cannot give a child an aspirin at school without parental
permission, surely we ought not to be having doctors perform abortions
on children without at least having the parents notified of it.

[[Page S5402]]

That is what Texas voted to have as their law. The Supreme Court has
upheld parental notification statuses as constitutional. So, in Texas,
there became a fuss over the meaning of the law and Justice Owen
concluded that the trial judge was correct in their decision that the
girl did not meet the requirements for parental notification and should
notify her parents before the abortion. Justice Owen dissented from the
main opinion and concluded that the trial judge was correct and the
child should notify her mama or daddy that she was going to have an
abortion. Whereas, Judge Gonzales's opinion said that he had studied
the Texas statute and I have concluded that--it is not perfectly clear,
but I have concluded the legislature intended A and B. Therefore, if I
don't rule the other way, since I have concluded the legislature
intended A and B, then I will be an activist even though I personally
hate to see this child not tell her parents.
So, to help us clear up this matter, he came before the Judiciary
Committee, of which I am a member, and testified about this case.
Senator Brownback, who is in the Chamber, asked him about it as
Attorney General. And he was rock solid. He has written a letter saying
he was not referring to Justice Owen when he made that comment in his
opinion about activism; certainly, did not mean to. He was referring to
his own self, that if he had concluded that the legislature meant these
things, then he was compelled to rule against the trial judge or he
would be labeling himself an activist. Justice Owen did not agree, she
had not concluded the same things about the legislation that Judge
Gonzalez had.
An SMU law professor wrote a beautiful letter on behalf of Justice
Owen. She said:

I am pro-choice, absolutely, but I believe she followed the
law carefully. She was a scholar. She thought it through like
a judge should think it through, and, absolutely, this is not
evidence of activism and it, absolutely, should not be held
against her.

Mr. President, I want to know what the time agreement is and where we
are.
The PRESIDING OFFICER (Mr. Sununu). The Senator has 43\1/2\ minutes
remaining.
Mr. SESSIONS. Mr. President, I see Senator Brownback is in the
Chamber. I will finish within my 30 minutes. I believe he will be
speaking in the next 30 minutes; is that correct--or in that 40
minutes?
The PRESIDING OFFICER. That is an appropriate division of time.
Mr. SESSIONS. I wish to share a little bit about Justice Janice
Rogers Brown. She grew up not too far from where I grew up in rural
Alabama, in Greenville, AL. She, as a young African-American child, had
parents who were sharecroppers. They had a tough life. She ended up
moving, as a teenager, to California, where she went through the school
system there, did exceedingly well, went to UCLA Law School and
achieved great success there, and eventually became a judge. It is
terrific, the story of her life and her achievements.
She has served for 9 years now on the California Supreme Court. She
does, every day on the California Supreme Court, the same kind of
things which President Bush has nominated her to do on the Court of
Appeals here in DC. As such, she reviews the transcripts of the trials
of cases conducted by trial judges under them to see if there was an
error in the conduct of that trial. The California Supreme Court does
not conduct trials. They do not make opinions. They review trials below
them to make sure they were conducted properly, that the judge followed
the law and did not commit errors.
I think she has been trained exceedingly well. As a member of the
California Supreme Court she reads briefs. She listens to arguments by
counsel, and then writes opinions as they make those judgments. Those
opinions should be unbiased and I believe hers have been and will
continue to be. We need judges who write well and follow the law and
rule consistent with the law. If you look at Justice Brown's career, I
do not think anyone can contend she has performed other than admirably
on the bench. She has written beautifully and thoughtfully. She
graduated from UCLA, one of the Nation's finest law schools.
In February of 2004, last year, the alumni of that not so
conservative law school presented Justice Brown with an award for
public service. In recognizing her, her fellow UCLA alumni--the people
who know her--they did not condemn her for being some extremist. They
said this:

Janice Rogers Brown is a role model for those born to
prejudice and disadvantage, and she has overcome adversity
and obstacles and, since 1996, has served as a member of the
California Supreme Court. The professional training she
received at UCLA Law School has permitted her, even now, when
decades remain to further enhance her career, to have already
a profound and revitalizing impact upon the integrity of
American jurisprudence.

I will repeat that:

She has even now been found to have already a profound and
revitalizing impact upon the integrity of American
jurisprudence.

I could not agree more. They go on to say this:

Despite her incredible intellect, work ethic,
determination, and resultant accomplishments, she remains
humble and approachable.

That is important in a judge. A lot of judges get to the point they
think they were anointed and not appointed, but she has been on the
bench for 9 years, and they still say she keeps her perspective and
remains approachable to all. That is not the Janice Rogers Brown you
will be hearing about from those who want to tar and feather her.
I will take the word of the people who know her, who have actually
studied her record, over the rhetoric of the interest groups who are
not the least bit interested in the integrity of the judiciary. They
are interested in their agenda. From my observation, one of their
guiding principles is that the ends justify the means.
After law school, Justice Brown served as a deputy legislative
counsel in California for 2 years. She then spent 8 years as a deputy
attorney general in the office of the California Attorney General,
where she wrote briefs and participated in oral arguments before
appellate courts on behalf of the State's criminal appeals. So she
learned a lot about criminal law, and she prosecuted criminal cases in
court and litigated a variety of civil issues. Her keen intellect and
work ethic made her a rising star on the California legal scene.
In 1994, then-Governor Pete Wilson tapped her as his legal affairs
secretary. Governor Pete Wilson came to Washington last week. For the
most part, he was here to affirm Justice Brown. He thinks she is a
magnificent nominee. He absolutely supports her. He said he couldn't be
more proud of her service on the court and that it was outrageous what
they were saying about this fine nominee's record.
She was then nominated and confirmed as an associate justice on the
California Third District Court of Appeals. And in 1996, as a result of
her superior performance on the appellate court, Governor Wilson
elevated her to the California Supreme Court.
I ask to be notified after 30 minutes have been consumed.
The PRESIDING OFFICER. The Senator has 7 minutes remaining.
Mr. SESSIONS. Since she was appointed to the Supreme Court, a couple
things have happened that provide confidence in her good performance.
During the 1998 election, she was on the ballot and had to win the
majority of the vote to stay on the bench. The people of California,
who didn't vote for President Bush and certainly are not a rightwing
electorate, voted to keep Justice Janice Rogers Brown on the court with
76 percent of the vote. That is a big vote by any standard. Probably 20
percent of the people in California vote against anybody on the ballot.
Other judges were on the ballot. She got a higher percentage of the
vote than any of the other four judges on the ballot. That is an
affirmation by the people of California.
In 2002, for example, Justice Brown's colleagues on the supreme court
relied on her to write the majority opinion for the court more times
than any other justice. What happens on a court, such as a supreme
court, once the court votes on how a case should be decided, they
appoint a member of the court to write the opinion. If you write the
opinion, you have to be on the majority side. If some don't agree and
the majority agrees, then somebody writes the majority opinion for the
court.
We have had the suggestion that this justice of the California
Supreme Court

[[Page S5403]]

is somehow out of the legal mainstream, but in 2002, more than any
other justice on the court, she was called on to write the majority
opinion. That speaks volumes for the fact that she is not out of the
mainstream. And there are few courts in the United States more liberal
than the California Supreme Court.

Professor Gerald Ullman, who is a law professor in California, wrote
a beautiful letter supporting her. His statement sums up what we ought
to think about as we consider this nomination. He said:

I don't always agree with her opinions.

And then he said this:

I have come to greatly admire her independence, her
tenacity, her intellect, and her wit. It is time to refocus
the judicial confirmation process on the personal qualities
of the candidates, rather than the hot button issues of the
past. We have no way of predicting where the hot buttons will
be in the years to come, and our goal should be to have
judges in place with a reverence for our Constitution who
will approach these issues with independence, an open mind,
and a lot of commonsense, a willingness to work hard, and an
ability to communicate clearly and effectively. Janice Rogers
Brown has demonstrated all these qualities in abundance.

Her colleagues support her. A bipartisan group of Justice Brown's
former judicial colleagues, including all of her colleagues on the
court of appeals for the Third Circuit in California, have written in
support of her nomination. Twelve current and former colleagues wrote a
strong letter to the committee stating:

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 that Justice Brown is qualified because she
is a superb judge. We who have worked with her on a daily
basis know her to be an extremely intelligent, keenly
analytical, and a very hard worker. We know that she is a
jurist who applies the law without favor, without bias, and
with an even hand.

That was received by the committee October 16, 2003, when this
process began.
Justice Owen and Justice Brown are both immensely qualified to serve
on the Federal bench. They deserve fair consideration by this body.
That should come in the form of an up-or-down vote, not a filibuster. I
trust we will have that soon. They certainly deserve it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I thank my colleague from Alabama for
his presentation and his work on the Judiciary Committee since the time
we have both been in the Senate. He has served for some time and has
done an excellent job. He brings a lot of good sense to it. We are both
very familiar with Janice Rogers Brown and Justice Owen. They have been
in front of us for years now. Priscilla Owen was in front of us when I
was last on the Judiciary Committee over 2 years ago. I can remember
that during her confirmation hearing, she gave a law school professor
dissertation to almost every question that came up. She had the
answers. She responded directly to our colleagues. She is a brilliant
lady, both on resume and in person.
Something you said earlier caught my attention, because it is what a
lot of this battle is about. The left in America doesn't get this
agenda through the legislative or executive branch, so they go through
the courts.
And that is really what we are fighting about now, it seems to me--
you have judges we are putting forward for confirmation who are strict
constructionists, meaning they will rule within the letter of the law
of the Constitution. The left wants people who will be super
legislators, legislating from the bench. In your experience on the
Judiciary Committee, have you heard that debate taking place, or is it
always pretty much underneath the water, you really don't see it? Have
you heard that debate rise up where people say, well, we cannot change
the marriage definition in the U.S. Congress or in the States, so we
are going to do it through the courts?
Mr. SESSIONS. This motive is not talked about regularly in an open
way, but in a way it did become open. Shortly after Justice Owen was
nominated, the Republicans lost a majority in the Senate. I was
chairing at that time the Court Subcommittee of the Judiciary
Committee, and that changed and Senator Schumer became chairman of the
committee. He announced that all judges were basically driven by their
politics, and they all had ideologies, and that we ought to just
consider their politics when we are confirming them. We had a hearing
on the politics of ideology and how we should handle it. I thought the
witnesses were uniform, including Lloyd Cutler, counsel to Jimmy Carter
and to President Clinton, in their rejection of that principle.
They all agreed that the classical American rule of law says that
judges are to be nonpartisan, that they are referees and arbiters and
objective interpreters of the law, and it would undermine that
principle to start treating them like politicians. So it was discussed
in a way that was honest, actually, and I think the overwhelming result
from the ABA and the witnesses was that considering politics during the
judicial confirmation process would not be a good way to go.
I know Senator Brownback is aware that a lot of the groups that drive
the objections to these nominees are very agenda-driven groups, they
are activists, and I think that is pretty obvious to anybody who is
watching.
Mr. BROWNBACK. Mr. President, that has been my view of what has been
taking place recently. Individuals increasingly have said we cannot win
this legislative fight in the States or in the Congress, so we are
going to take it to the courts. A judge who is a strict constructionist
would ask, is this within our purview under the Constitution? And if it
is not, the case would be thrown out, rather than the judge saying that
the Constitution is an organic, living document, and I can look at this
law imaginatively, how I want to, and then somehow find a way to reach
the conclusion I want.
To me, that is what the frustration of the public has been--that
somehow they are now thrown out of the process. They can vote for or
against the Senator from Alabama or the Senator from Kansas or the
Senator from New Hampshire or the Senator from Massachusetts on the
basis of a policy issue. But they don't have any right or ability to be
able to contact a judge. Yet you have these massive issues that
directly impact people regarding marriage and life. We have a bill up
now where a Federal court has said that the Congress has appropriated
this money and that is inappropriate and they must give these moneys
out. Under the Constitution, the appropriation powers are clearly given
to the Congress. The court is now stepping into that.
My question to my colleague would be, Where does this stop if you
don't start putting on judges who are judges rather than super
legislators? Where does it stop?
Mr. SESSIONS. I could not agree more with the Senator. He stated that
so beautifully and, I believe, so fairly. It is the real question here.
As you know--and I am not sure most of the people in our country have
fully thought it through--once a judge says the Constitution means that
marriage should be redefined and every legislative finding to the
contrary is void, the only recourse the American people have is to try
to pass a constitutional amendment that requires, as you know, a two-
thirds vote of both Houses of Congress and three-fourths of the States.
It is a monumental task. And then if you criticize the judge for their
ruling, people say: Oh, you are violating the separation of powers. I
think when the courts tread into those areas and start imposing
political views, they can only expect that there will be criticism in
return.
Mr. BROWNBACK. I would think they would expect criticism on that. But
that has been the built-up frustration, where people say the only way
we can go is to amend the actual Constitution in the process. I do not
believe that is the right way for our democracy to be going. I
appreciate my colleague from Alabama and his work on these issues. I
believe that is really at the core of these matters.
Mr. President, I note that we have had a lot of debate on Priscilla
Owen and Janice Rogers Brown. I don't think anyone who listens to any
of this debate is unfamiliar with these two individuals. I am going to
talk some more, as well, about these individuals and answer some
questions and comments made from the other side about these two
individuals.

[[Page S5404]]

At the end of the day, we need to recognize what this is about. I
believe President Bush responded to this well at his last press
conference when he was asked: Why do you think the Senate Democrats are
opposing your nominees? Do you think it is based on the religious
preference of your nominees? Some of these are people of faith who have
religious conviction. He said: No, I think it is because they would
interpret the law rather than trying to rewrite the law, that these are
people who would stay within the construction of the law and the
construction of the Constitution and not try to rewrite it.
I believe that is what really is at stake here. Are you going to have
a super legislative judiciary, or are you going to have one where it is
the role of a judiciary to determine what is constitutional within the
framework of the Constitution, not what some sort of expansive living
document reading of the Constitution would be? That really is the heart
of the matter we are debating here today. It is a very live issue in
front of us right now.

I note to those who may be listening to these proceedings right now,
last week, a Federal judge in the State of Nebraska ruled that the
State constitutional amendment that the people in Nebraska had passed
defining marriage as the union of a man and a woman--the people of
Nebraska passed a State constitutional amendment with 70 percent of the
vote, which is a high mark in any election, saying, yes, we agree that
the union of a man and woman is the definition of marriage in Nebraska.
A Federal court in Nebraska ruled that is not only unconstitutional
under several different provisions, but that civil unions must be
granted to people of the same gender. The Federal court is saying you
must give that.
So it is not just saying that the State of Nebraska is wrong and
cannot define marriage, which we have left up to the States in the
history of the Republic, but it is also saying that the U.S.
Constitution, in some reading of it, actually requires the recognition
of same-sex civil unions. Where was that ever written in the
Constitution? Where was that ever considered in any sort of
constitutional debate? Why is that, at this point in time in our
Constitution, seen as somehow in this organic document of where we are
today?
I think we have had 17 States now directly vote on the issue of
marriage, and every one of them said marriage is the union of a man and
a woman. Now you have a Federal court that says, no, that is not
allowable for States to determine. States in every place and every
region in the country have passed this when the people were allowed to
vote. Now you see again the issue-setting of an activist judiciary
going in and saying: We know what the people think and what the people
vote on this, but we say different. You are going to create yet another
festering frustration among the people of America if the court starts
walking--and apparently it has--into this issue of the definition of
marriage. These are things, if properly left to legislative bodies to
determine, look at and figure, wrestle with, and have elections about,
which people can have an impact on and say, I think this should be a
certain way, and a determination is then made by the people. That has
been left up to the people, and it should be.
When the court steps in and makes a new determination, makes a new
ruling on it, that is going to build to that festering. It happened in
1973 in Roe v. Wade, where the Court discovers this right to privacy
that is a constitutional right to abortion, which cannot be limited in
any means, by any State, by the Federal Government, by the Congress.
Prior to that period of time, it had been held valid, constitutional,
and appropriate for States to regulate and to deal with this issue, so
we had different States ruling different ways prior to Roe v. Wade.
This is what would happen again if and when Roe v. Wade is overturned;
the States simply would then handle this issue as they did prior to
1973. But once the Court discovers this constitutional right to privacy
that is interpreted to mean there is a right to abortion, the states
cannot decide for themselves at all.
We are starting down the same path with marriage. We can look around
the country and ask: Why are people fired up about the judiciary? Why,
during the last election cycle, was the lead applause line for
President Bush's rallies about appointing judges who will stay within
the laws rather than rewriting them?
The reason is people have this deep-felt frustration at how the
courts are coming at all of these opinions, so contrary to the feelings
of the vast majority of people in the United States. And where is it
written within the Constitution, if it is within the document, that we
should have a constitutional right to abortion? Bring it to this body,
with two-thirds of the House and two-thirds of the Senate, three-
fourths of the States passing it. That is how you amend the
Constitution, not by a majority vote of the Supreme Court. That is the
durable way we amend the Constitution and deal with it, instead of this
building up of frustrations to the point where people say: I have been
disenfranchised. I thought the people voted, that the people ruled,
within the parameters of the Constitution.
Remember, the Constitution gives a broad swath of power to the people
and limits government. That is the role of the Constitution. It gives
broad authority and power to the people and limits the role of the
government.
We have embarked today upon addressing this issue. Really what we are
seeing take place now are these large plates pushing against each
other. Political scientists for years have debated the issue of
Presidential power taking away from legislative power. That has always
been the debate over the years.
During a war, a President is stronger; the legislative body is
considered weaker. Outside of war, it reverses and the legislature
assumes more authority over the executive branch. And for years
political scientists have debated this back and forth--who is gaining,
who is receding. Yet we have seen taking place now over the past 40
years an ever-increasing encroachment of the judicial branch within
these purviews reserved under the Constitution for the legislative and
the executive branches.
I spoke of one just previously with my colleague from Alabama, and
that is the appropriation of money. In the Constitution, the
appropriation of money is given to the legislative body. That is
specifically stated within the Constitution.
Jerry Solomon, a former Congressman from New York who passed away,
observed that a number of colleges in the United States were not
allowing military recruiters to come on to their college campuses. He
said they ought to at least have them come on to the campuses and have
their voices heard. The colleges said no.
Congressman Solomon put forward an amendment that if a college
decides to bar military recruiters from its campus, that is its right,
but it then cannot receive certain Federal appropriations. The
amendment said if you are not going to let military recruiters on
campus, then we have the right to withhold these Federal funds. If you
are not going to give them a chance at free speech, we think there is
some price to be paid with that.
It is the authority of the Congress to appropriate money. That was
done with the Solomon amendment. It passed by a majority vote. It
passed by a majority vote in the Senate and was signed into law by the
President of the United States.
Now a Federal court says, no, Congress, you cannot do that. The money
must go to those colleges in spite of the Solomon amendment. How many
places across the country are courts allocating money for States? These
are specific authorities and powers reserved to the legislative body,
and the reason is, the Founders, in all their wisdom, said legislators
are elected by the people, and the allocation of money is one of the
key power for any governmental entity that should belong to the elected
representatives of the people. But now we have the courts continually
taking, taking, taking. The judiciary continues to come in to areas
reserved for the executive and legislative branches, and so we come to
where we are today: President Bush seeking to appoint judges, bright
judges, well-qualified judges, balanced judges, ones who say the law
should be interpreted as to what the law is, not what they choose for
it to be or what outside groups want it to be. The Constitution is what
it is, and it is not something through which I can invent new rights,
however much as I think they should be in the Constitution. If that
right is

[[Page S5405]]

to be, it should be passed by two-thirds of the House, two-thirds of
the Senate, three-fourths of the States, and then it becomes a
constitutional amendment, not by a majority vote at the Supreme Court.
This is what these judges generally stand for. It is what we should
get the judiciary back to. And yet nominees who would do that are being
blocked, they are being filibustered inappropriately.
Priscilla Owen, Janice Rogers Brown--we have a group of four judges
who collectively have been filibustered for a total of 13 years. It is
amazing that they would be filibustered for that period of time.
This is a key, defining moment for us as a country. Will the
judiciary be the judiciary, or is it to continue to accumulate power
and become more of a superlegislative body? That is much of the debate
that is in front of us today with the judges. That is taking place in
the form of Priscilla Owen, Janice Rogers Brown, and several other
judges. That remains the issue.
When a Supreme Court position comes open, will we appoint somebody
who will stay within the letter of the law of the Constitution or not?
Will it require 60 votes to approve a Supreme Court judge, something
that is never required, or will it be a majority vote? Must we have a
supermajority?
If you want a supermajority to approve a Supreme Court judge, then
amend the Constitution to state that it requires a supermajority, like
we do with respect to treaties, what it takes to approve a treaty. The
Founders did not say that. They said advise and consent. They did not
say a supermajority or two-thirds vote of the body. They said advise
and consent. Do you anywhere interpret a supermajority vote to be
required to approve a Supreme Court nominee? No, that is not within the
reading and understanding of the document. But because this role of
judges as legislators keeps coming back up, particularly from the left,
it is going to continue to be pushed.
There have been a number of issues raised regarding the nominees. I
now want to address what has been raised.
It has been asserted that current Attorney General Alberto Gonzales
accused Priscilla Owen of judicial activism. He is Attorney General of
the United States and was on the Texas Supreme Court with Justice Owen.
I asked the Attorney General in his confirmation hearing for Attorney
General if that was something he had said about Priscilla Owen. He said
no. He testified under oath that Justice Owen is a great judge he never
accused of judicial activism. That is Alberto Gonzales, under oath, in
front of the Judiciary Committee of the Senate.
I think that should put that to sleep. He testified under oath that
he had never accused Justice Owen of engaging in judicial activism.
Justice Brown was accused of justice activism in supporting the
Lochner case. Again, I want to put that issue to rest. Indeed, Justice
Brown has taken issue with the Lochner decision. This is considered a
judicial activism case. She is being accused of supporting it, when in
fact she actually stated in an opinion that:

The Lochner court was justly criticized for using the due
process clause as though it provided a blank check to alter
the meaning of the Constitution as written.

That is Justice Janice Rogers Brown, in a written opinion on Lochner.
She cannot be accused of this. Maybe her words in a speech are accused,
saying she is supportive of Lochner, but her actual stated written
opinion says, no, that the Court was justly criticized for the Lochner
case. I think those are important things to put clearly in the record.
Mr. President, I inquire of the Chair how much time remains of my
allocation?
The PRESIDING OFFICER. The Senator from Kansas has 10 minutes
remaining.
Mr. BROWNBACK. Mr. President, I want to cover some of the ground on
Janice Rogers Brown that is well known in this situation because she
has been in front of us so much, so long, but I think it bears
repeating. She was born to sharecroppers, came of age in the Jim Crow
era, went to segregated schools. Do you know what motivated her to
become a lawyer? It was her grandmother's stories of NAACP lawyer Fred
Gray, who defended Rosa Parks, and her experience as a child of the
South.
When she was a teenager, Justice Brown's family moved to Sacramento,
CA. She received her bachelor's degree in economics from California
State in Sacramento in 1974 and her law degree from the UCLA School of
Law in 1977. These are all well-known matters.
I don't know if people know as well all of her public service, but
they probably cannot because it is so extensive. All but 2 years of her
28 years in her legal career have been in public service. This is a
public servant of 26 years standing.
I ask the Presiding Officer or anybody listening, if you serve as a
public servant for 26 years in the State of California, how can you be
a radical conservative out of the mainstream judicial thought? Can that
be while you are serving for 26 years in public service in the State of
California in various capacities? She began her career in 1977 and
served 2 years as a deputy legislative counsel in the California
Legislative Counsel Bureau. From 1979 to 1987 she was deputy attorney
general in the office of the attorney general of California. Governor
Pete Wilson selected her to serve as his legal affairs secretary from
1991 to 1994. She then served on the State court of appeals for 2 years
before joining the California Supreme Court where she served with
distinction until 1996. Then she was involved in her community.
So we have 26 years of public service in the State of California. I
do not see how that person could be somebody out of the mainstream of
thought and serve in so many capacities in that State. That seems to me
to defy logic.
She has performed a lot of community service. She served as a member
of the California Commission on the Status of African-American Males,
focused on ways to correct inequities in the treatment of African-
American males in employment and in the criminal justice and health
care systems. Is this out of the mainstream? She was a member of the
Governor's Child Support Task Force which reviewed and made
recommendations on how to improve California's child support system.
Out of the mainstream? She was a member of the Community Learning
Advisory Board of the Rio Americano High School and developed a program
to provide government service internships to high school students in
Sacramento. Out of the main stream? She taught Sunday school at the
Cordova Church of Christ for more than 10 years, just as former
President Carter teaches Sunday school. Out of the mainstream?
Given the impressive range of her activities and legal and personal
experiences, it is no surprise that the President would nominate her.
What is surprising is that she would be labeled somehow out of the
mainstream. I think this is simply and demonstrably ridiculous. If
Janice Rogers Brown is an extremist, the people of California, I guess,
must be so, too. In 2002 they overwhelmingly approved her in a
retention election with 76 percent of the vote. Her support was more
than any other justice on the ballot in that election.
If Janice Rogers Brown is extremist, so, too, must be a bipartisan
group of 15 California law professors who wrote to the Senate Judiciary
Committee in support of Janice Rogers Brown, knowing her to be:

. . . a person of high intellect, unquestionable integrity
and evenhandedness.

She is not out of the mainstream. She is extraordinarily qualified,
and this is just an attempt to smear a good candidate.
I turn, finally, to one issue about the approval rate of court of
appeals judges under President Bush. We heard a lot of numbers thrown
around about judges and the number who have been approved by this
administration and what happened under the remainder of the Clinton
years administration. I want to put up one chart about this and talk
briefly about it.
We have a Republican President and a Republican Senate. I am
delighted. I think we are going to make good progress for the American
people and show progress in moving things forward. I want to go back to
two other Democrats, two Democratic Presidents who had Democratic
Senates under them, an appropriate comparison of apples and apples, and
look at the approval rate of circuit court judges. Remember you have
federal district court

[[Page S5406]]

judges, circuit court judges, and then Supreme Court Justices. Circuit
court and Supreme Court jurists are the ones who have the most latitude
on enforcement, interpretation, or rewriting of laws.
Look what we had under Democrat President Johnson, a Democrat
President: 95 percent approval rate of circuit court judges. President
Carter, Democrat President, Democrat Senate: 93 percent approval rate.
President Bush, Republican President, Republican Senate: 67 percent
approval rate of circuit court judges.
What changed during this period of time? I suppose some would say
they are nominating a different sort of nominees who are not qualified
or outside the mainstream, but I think that argument has been put to
rest. What you have taking place is the unprecedented use and threat of
the filibuster that has never been used before and is targeted at the
circuit court, not at the lower Federal court, the finders of fact at
the district court level, but at the appellate level so that continued
broad interpretation of laws by which some would seek to put their own
views more in, can continue to be expressed: 95, 93, 67.

Others will argue, What about the Clinton years? You have a
Republican Senate and a Democrat President. There are obviously
differences of opinion that will occur during that period of time, more
so than when you have a body that is of the same party. But even then,
we move forward large numbers of Clinton nominees. This is
unprecedented, 67 percent, the falloff from what has taken place
because of the use of the filibuster.
This needs to change back to where the filibuster is not used against
judicial nominees. Actually, I encourage my colleagues on the other
side of the aisle not to use the filibuster on this so we can move
forward with up-or-down votes and leave the institution intact, the way
it has been for two centuries, where the filibuster is not used on the
advice and consent provisions of judges that is required. Filibuster
means supermajority vote on circuit court or Supreme Court nominees.
That is not contemplated, it is not considered, it is not appropriate
under the Constitution.
It is time to move these judges on forward. We are going to have a
robust debate for the next several days about this. The issue
underlying that is really going to be about the role of the judiciary,
whether it is expansive in rewriting broadly laws and the Constitution,
or if it is more strict constructionist, staying within the roles and
boundaries of what the judiciary should be.
I offer to have the American people decide what role the judiciary
has, what role the United States Senate has on appointing people to the
judiciary. I regret we are at this point. I regret this chart shows
this way. But nonetheless it is what it is. It is something that now we
have to deal with. It will be a robust debate, and I hope at the end of
the day what we will have is the approval of circuit court judges who
are mainstream and who are consistent; the role of the judiciary being
appropriate as it was designed by the Framers of the Constitution and
the Founders of the Republic and within the lines of the Republic. If
that is what we will get back to, their proper roles, the legislative,
executive, and judicial branches, it will be a long time coming. But I
think it is important and it is worth doing.
Mr. President, I thank my colleagues and yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, it has always been a great privilege for
me to come to the floor of the Senate and engage in debate. I graduated
from a high school senior class of nine students--in the top five, by
the way. I come from a town of 350 people in the southwest ranching
corner of North Dakota. I think it is a great privilege to be here, and
a wonderful opportunity.
The reason the Senate is such an extraordinary opportunity--and I
have had the privilege to serve in both the House and the Senate--is
that the Senate is the place of debate, unlimited debate. Yes, there is
the opportunity for a filibuster in the Senate, but that is what forces
compromise in the Senate. Unlike the House, there is a forcing of
compromise, which is what makes Government work.
I have been listening to this discussion. It is quite remarkable.
This is a big issue. This is a serious issue. I have been listening
attentively to the speakers. Our former colleague, the late Senator
Moynihan, once said, everyone is entitled to their own opinion, but
they are not entitled to their own set of facts. What is happening here
is the continuation of the development of a book of fiction by the
majority side.
They come to us and say the filibuster with respect to judicial
nominations is very unusual, it is unprecedented, it is
unconstitutional. Total fiction. How can they say that with a straight
face? At least you would think they would laugh from time to time about
what they are trying to pull over the American people.
They have filibustered. They have delayed. They have blocked forever
judicial nominations when there was a Democrat in the White House.
Let me read a few names: Snodgrass, Whitfield, Shurin, Bingler,
Greer, Sundram, Stack, Wattley, Beaty, Rodriguez, Lasry, Klein,
Freedberg, Norton. I could read 60 of these. These are the names of
lifetime appointments to the bench the President sent down to this
Chamber in the 1990s, most of which never even got 1 day of hearings,
not 1 day of hearings. Some of them, by the way, were filibustered, but
most were not even given the courtesy of 1 day of hearings because the
majority party did not like them, and did not want them confirmed. So
they used their control of the Judiciary Committee to make sure they
were not confirmed. There were over 60 of them.
Now, the current President, President George W. Bush, has sent 218
names for a lifetime appointment on the Federal bench. We have approved
208. Yes, that is right, 218 names the President has sent and we have
approved 208.
The Constitution says something about this. It is not what my
colleagues have described. They misread the Constitution. The
Constitution provides a two-step process for putting someone on the
Federal bench for a lifetime: One, the President nominates; and, two,
the Congress decides. That is called advice and consent. It is not the
President who decides who goes on the Federal bench for a lifetime. It
is a two-step process. The candidate for a lifetime appointment must
survive both, must get a Presidential nomination and then must be
approved by the Senate.
My colleagues say there is a requirement in the Constitution that
there be an up-or-down vote that you cannot filibuster. First, unlike
my colleagues on that side of the aisle, many of whom have voted for
filibusters--and I will not embarrass them by reading their names, but
I could because they have voted for filibusters previously on judicial
nominations. Unlike those circumstances, we have voted on all of these
judges. The 10 who were not approved had a vote in the Senate on a
motion to proceed, on a motion to invoke cloture. It required 60 votes
and they did not get the 60 votes so the nomination did not proceed.
The majority party is upset about that. They believe democracy is
one-party rule, the same party in the White House, the House, and the
Senate. They want their way and if they do not get their way, they
intend to violate the Senate rules to change the rules. They will not
ask the Parliamentarian when they make the motion. Why? Because they
are wrong and they know it, and they will violate the rules of the
Senate, so they put their person in the Presiding Officer's chair, the
President of the Senate, and by 51 votes they will violate the rules of
the Senate for the first time in 200 years. Why? Because their nose is
bent out of shape because they have not gotten every single judge on
the court they wanted. They have only gotten 208 out of 218.
Let me describe some I have opposed. I actually opposed one who was
sent to us by President Bush who wrote that he believed a woman is
subservient to a man. I voted against that one. I guess I don't want
someone on the Federal bench for a lifetime who believes a woman is
subservient to a man. One of the keenest, finest minds of the 18th
century, but not someone suited to go to the Federal bench for a
lifetime now, in my judgment. That person actually did get through the
Senate, I regret to say.

[[Page S5407]]

Let me talk about a couple because the majority has brought them to
town recently and they have been on television. Let me describe the
record of a couple of these nominees.
First let me talk about Janice Rogers Brown. She did not get the 60
votes. Let me describe why. Ms. Brown, as described by the last
speaker, has a wonderful life story, but she has served at some great
length in the State of California, and her views are so far out of the
mainstream that one wonders what would have persuaded the President to
send her name down.
Let me give an example. She believes zoning laws represent theft of
property. Let me explain that to you. Zoning laws decide if you move
into a residential area and you have a house in a residential area and
the lot right next door to you is empty, you can have some confidence
they are not going to move a porn shop into that next lot. Or there is
not going to be a massage parlor in that next lot, or somebody is not
going to bring an automobile salvage company and put it on the lot next
to your house. Zoning laws. She thinks zoning laws are a theft of
property.
Do Americans want someone who believes there ought not be zoning? Or
if you decide you should not have a porn shop next to a school, you
ought to pay the person who owns the property in order to avoid having
the porn shop locate next to a school? Or a massage parlor next to the
nursing home? That is so preposterous. What on Earth is that kind of
thinking and why do we have a nomination of someone who thinks like
that?
That same nominee says, by the way, the Medicare Program and Social
Security Program are the last vestiges of socialism, the last of the
New Deal socialistic impulses of our country, and says that these are
cannibalizing from our grandchildren. That we are cannibalizing from
our grandchildren because we have things such as Social Security and
Medicare.
Am I pleased to oppose a nominee with those views? Of course I am. We
have a right in this Chamber and that right is in the Constitution to
prevent someone such as that from going on the Federal bench. The
majority party says no, you do not have that right. They say they have
what is called the constitutional option.
Let me ask, in the hours in which we debate this, if one Member of
the Senate, just one--I am not asking for five, three or two, just one
member of the Senate will come to the Chamber of the Senate with the
Constitution in their pocket. Yes, you can put it in your pocket. It is
a rather small document. If you cannot read it, we will get remedial
reading or have someone read it to you. Come down to the Senate and
tell us where it says that the minority in the Senate does not have the
right to invoke the rules of the Senate to prevent someone from going
on the bench for a lifetime? Where does it say that in the
Constitution?
I was on a television program with one of my colleagues from the
other side. That colleague was saying it is unconstitutional for us to
filibuster a court nominee. That very colleague has previously voted to
filibuster a court nominee. I wonder how they can stop from grinning--
at least? I understand where a full-bellied laugh would not occur on
the Senate floor--but how can you avoid grinning when you stand up and
perpetrate these fictions?
They know better.
Again, as my colleague, the late Senator Moynihan said, everyone is
entitled to their opinion, but not everyone is entitled to their own
set of facts. Let's at least deal with the truth in the Senate.
There is much we ought to do in the Senate. My colleagues on the
floor are colleagues most often who stand up and talk about the real
issues. I am talking about Senator Kennedy and Senator Dayton and
others on the issues of jobs, the jobs going overseas at a record pace,
health care, health care costs that are devastating to people and to
their budgets and to businesses. Energy, the price of gasoline, the
fact we are held hostage by the Saudis and Kuwaitis and Iraqis and
Venezuelans for oil we put through our transportation system and
through gasoline that we run through our fuel injectors, and yet is
there any discussion of that in the Senate? No, no, not at all. Not at
all. This is an agenda driven outside this Chamber by interest groups
that have forgotten the Ninth Commandment. Yes, there were Ten
Commandments, and the Ninth says: Thou shalt not bear false witness.

I ask my fellow citizens, turn on your television and see what they
are running on television: advertisements coming from religious
organizations that fundamentally misrepresent--and they know they
misrepresent--the facts with this issue. The Ninth Commandment says:
Thou shalt not bear false witness. The truth is this. The truth is,
that this Congress has a right to an equal voice in who spends a
lifetime on a Federal bench. The truth is, we have cooperated to an
extraordinary degree with this President. We have approved 208 Federal
judges. Let me say, two of them are sitting on the Federal bench in
North Dakota. I was proud to work for both of them. They are both
Republicans. I am a Democrat. I am pleased they are both on the Federal
bench. I worked with the White House to get them there. I supported
them, as I have done with most of the nominees coming from this
President.
But we have every right to decide, when this President sends us the
name of a nominee so far outside the mainstream--and that is the case
with the two they are talking about now, one from Texas, one from
California--we have a right to decide not to advance those names to
give them a lifetime appointment on the Federal bench.
To those who stand up on the floor of the Senate and say: Well, there
has never been a filibuster before--you know better than that. If they
keep doing it, I am going to come down and read the names of all of
them on the majority side that have voted for the filibuster. And I
will read the names of all 60 judges into the Record--I should not say
60 judges--60 nominees the last President sent down here that, in many
cases, did not even have the courtesy of a hearing.
This position is hypocrisy, and it needs to change. This so-called
nuclear option is called ``nuclear,'' and it was coined by the majority
party. It is called ``nuclear'' because nuclear relates to almost total
destruction. And some of them are gleeful now that they are headed
toward a nuclear approach on the floor of the Senate.
This is a great institution. I am proud to be part of it. But this is
not a proud day. America's greatest moments are not found in
circumstances such as this. America's greatest mistakes are often
wrapped in the zeal of excessive partisanship, and that is what we find
here. And America's greatest mistakes are almost always--almost
always--preceded by a moment, a split second, when it is possible to
change your mind and do the right thing.
That moment, that split second exists now for the majority leader and
those who feel as he does, that they ought to exercise the total
destructive option they call the nuclear option.
We ought to, in my judgment, work together. Mr. President, 208 of 218
judges means we have worked together and done the right thing. There
are no apologies from this side for exercising our constitutional right
to make sure we have men and women on the Federal bench whom we are
proud of, who represent the mainstream of this country. We have done
that time and time and time again with President George W. Bush, and
will continue to do that. But we will not give up the right to exercise
our responsibilities here on the floor of the Senate on these important
issues.
Mr. President, I believe my time has expired. I believe the Senator
from Massachusetts follows me today. I yield the floor.
The PRESIDING OFFICER (Mr. Martinez). The Senator from Massachusetts.
Mr. KENNEDY. I thank the Chair.
Mr. President, I would like to ask the Chair to remind me when I have
10 minutes remaining.
The PRESIDING OFFICER. The Senator currently has 45 minutes.
Mr. KENNEDY. Mr. President, I commend my friend and colleague from
North Dakota for the excellent presentation he made. As a member of the
Judiciary Committee, I remember the well over 60 nominees who were
denied the courtesy to be considered and to have a hearing and go to
the Senate and have a debate and discussion on the floor of the Senate.
I do not think any of us who are strongly opposed to what the Senator

[[Page S5408]]

has referred to as the nuclear option are interested just to retaliate
against these Republican judges, the half a dozen or so who have been
mentioned, debated, and discussed today, in return for the way the over
60 nominees were treated under the previous administration. But it does
respond to the suggestions that have been made here on the floor that
somehow institutionally our friends on the other side have always been
for fairness in the consideration of these nominees and considerate of
the President in meeting his responsibility of advising the Senate.
I think many of us believe very deeply that if there are Members in
this body who, as a matter of conscience, feel strongly that those
nominees or any nominee fails to be committed to the fundamental core
values of the Constitution, that they ought to be able to speak to it,
they ought to be able to speak to it and not be muzzled, not be gagged,
not be silenced. That is the issue that is before the Senate now and
will be addressed in these next few days, and why it is enormously
important for the country to pay attention to this debate and this
discussion.
There is no breakdown in the judicial confirmation process. Democrats
in this closely divided Senate have cooperated with the President on
almost all his nominations. The Senate has confirmed 208 of President
Bush's 218 nominees in the past 4 years, most of whom are not people we
would have chosen ourselves. Ninety-five percent have been confirmed.
Only a handful did not receive the broad, bipartisan support needed
for confirmation. Their records show they would roll back basic rights
and protections. Janice Rogers Brown, William Pryor, Priscilla Owen,
and William Myers would erase much of the country's hard-fought
progress toward equality and opportunity. Their stated values--
subordinating the needs of families to the will of big business,
destroying environmental protections, and turning back the clock on
civil rights--are not mainstream values.
Democrats have, under the Senate's rules, declined to proceed on
those nominees to protect America from their radical views.
The President has renominated William Pryor for the 11th Circuit,
which includes the States of Florida, Alabama, and Georgia. Mr. Pryor's
record makes clear that his views are far outside the legal mainstream.
Mr. Pryor is no conservative. Instead, he has pushed a radical agenda
contrary to much of the Supreme Court's jurisprudence over the last 40
years.
Mr. Pryor has fought aggressively to undermine Congress's power to
protect individual rights. He has tried to cut back on the Family and
Medical Leave Act, the Americans with Disabilities Act, and the Clean
Water Act. He has criticized the Voting Rights Act. He has been
contemptuously dismissive of claims of racial bias in the application
of the death penalty. He has relentlessly advocated its use, even for
persons with mental retardation. He has even ridiculed the Supreme
Court Justices, calling them ``nine octogenarian lawyers who happen to
sit on the Supreme Court.'' He can't even get his facts right. Only 2
of the 9 Justices are 80 or older.
Mr. Pryor's opposition to basic protections for the rights of the
disabled is particularly troubling. In one case, Justice Scalia, for a
unanimous Court--a unanimous Court--rejected his position that the
Americans With Disabilities Act does not apply to State prisons.
In another case, the Supreme Court rejected his view that provisions
of the act ensuring that those with disabilities have access to public
services are unconstitutional.
In that case, a plaintiff who uses a wheelchair challenged the denial
of access to a courthouse where he had to crawl up the stairs to reach
the courtroom. Mr. Pryor claimed that the Congress could not require
States to make public facilities accessible to the disabled. He said
that because the disabled have ``no absolute right'' to attend legal
proceedings affecting their rights, denying them access to courthouses
does not violate the principle of equal protection.
The Supreme Court also rejected his radical view that executing
retarded persons is not cruel and unusual punishment. And later the
Eleventh Circuit court, a court dominated by conservative Republican
appointees, unanimously rejected Mr. Pryor's attempt to evade the
Supreme Court decision. He had tried to prevent a prisoner with an IQ
of 65, who even the prosecution agreed was mentally retarded, from
claiming that he should not be executed.
On women's rights, Mr. Pryor has criticized constitutional
protections against gender discrimination. He dismissed as ``political
correctness'' the Supreme Court's decision that a State-run military
academy could not deny admission to women because of stereotypes about
how women learn.
Mr. Pryor has an especially troubling record on voting rights. In a
1997 statement to Congress, he opposed section 5 of the Voting Rights
Act, an indispensable tool for assuring that all Americans have the
right to vote regardless of race or ethnic background. He called this
important law an ``affront to federalism'' and ``an expensive burden
that has far outlived its usefulness.''
In March, we commemorated the 40th anniversary of Bloody Sunday when
Martin Luther King, Jr., Congressman John Lewis, and others were
brutally attacked on a peaceful march in Mr. Pryor's home State of
Alabama in support of voting rights for all, regardless of race. Yet
now the administration wants our consent to a nominee who opposes the
Voting Rights Act. There is too much at stake to risk confirming a
judge who would turn back progress on protecting the right to vote.
It is no surprise that civil rights leaders oppose Mr. Pryor's
nomination, including Rev. Fred Shuttlesworth, a leader in the Alabama
movement for voting rights, and many of Rev. C. T. Vivian's and many of
Dr. King's other close advisers and associates.
There can be no doubt that Mr. Pryor sees the Federal courts as a
place to advance his political agenda. When President Bush was elected
in 2000, Mr. Pryor gave a speech praising his election as the ``last
best hope for federalism.'' He ended his speech with these words:

. . . a prayer for the next administration: Please God, no
more Souters.

In another speech he said he was thankful for the Bush v. Gore
decision:

I wanted Governor Bush to have a full appreciation of the
judiciary and judicial selection so we can have no more
appointments like Justice Souter.

His call to politicize the Supreme Court shows that he views the
courts as places to make laws, not interpret them.
The real question is why, when there are so many qualified Republican
attorneys in Alabama, the President would choose such a divisive
nominee. Why pick one whose record raises so much doubt as to whether
he will be fair? Why pick one who can muster only a rating of
``partially unqualified'' from the American Bar Association? The
administration has given us no good answers to these questions because
there are none. Mr. Pryor is clearly on the far fringe of legal
thinking and not someone who should be given a lifetime appointment to
the court of appeals.
Of course, we oppose the attempt to break the Senate rules to put Mr.
Pryor on the court. That is what our Founding Fathers would have wanted
us to do, not to act as a rubber stamp for the administration.
Priscilla Owen, whose nomination the Senate is debating today, is
another candidate on the far fringes of legal thinking. Her record
raises equally grave concerns that she would try to remake the law.
Four times the Senate has declined to confirm her because of concerns
that she won't deal fairly with a wide range of cases that can come
before the Fifth Circuit, especially on issues of major concern to
workers, consumers, victims of discrimination, and women exercising
their constitutional right. Yet the President chose to provoke a fight
in the Senate by renominating her, among other plainly unacceptable
nominees whom the Senate declined to confirm in the last Congress.

Nothing has changed since we last reviewed her record to make Justice
Owen worthy of confirmation now. Her supporters argue that she is being
opposed solely because of her hostility to women's constitutionally
protected right to choose. In fact, her nomination raises a wide range
of major concerns because she so obviously fails to approach cases
fairly and with an open mind.

[[Page S5409]]

As the San Antonio Express News has stated, her ``record demonstrates
a results-oriented streak that belies supporters' claims that she
strictly follows the law.''
It is not just Senate Democrats who question her judicial activism
and willingness to ignore the law. Even newspapers that endorsed her
for the Texas Supreme Court now oppose her confirmation, after seeing
how poorly she served as judge.
The Houston Chronicle wrote:

Owen's judicial record shows less interest in impartially
interpreting the law than in pushing an agenda.

And that she, it continues, ``too often contorts rulings to conform
to her particular conservative outlook.''
It noted that:

It's worth saying something that Owen is a regular
dissenter on a Texas Supreme Court made up mostly of other
conservative Republicans.

The Austin American Statesman, in their editorial, said Priscilla
Owen ``is so conservative that she places herself out of the broad
mainstream of jurisprudence'' and that she ``seems all too willing to
bend the law to fit her views . . . ''
The San Antonio Express News said:

[W]hen a nominee has demonstrated a propensity to spin the
law to fit philosophical beliefs, it is the Senate's right--
and duty--to reject the nominee.

These are the San Antonio Express News, the Austin American
Statesman, and the Houston Chronicle.
Her colleagues on the conservative Texas Supreme Court have
repeatedly described her in the same way. They state that Justice Owen
puts her own views above the law, even when the law is crystal clear.
Her former colleague on the Texas Supreme Court, our Attorney General
Alberto Gonzales, has said she was guilty of ``an unconscionable act of
judicial activism.'' This is what the current Attorney General of the
United States said when he was on the supreme court: Justice Owen's
opinion was ``an unconscionable act of judicial activism.''
Justice Gonzales's statement that her position in this case was ``an
unconscionable act of judicial activism'' was not a random remark. Not
once, not twice, but numerous times Justice Gonzales and his other
colleagues on the Texas Supreme Court have noted that Priscilla Owen
ignores the law to reach her desired result.
In one case, Justice Gonzales held the Texas law clearly required
manufacturers to be responsible to retailers who sell their products if
those products are defective. He wrote that Justice Owen's dissenting
opinion would judicially amend the statute to let manufacturers off the
hook.
In 2000, Justice Gonzales and a majority of the Texas Supreme Court
upheld a jury award holding the Texas Department of Transportation and
the local transit authority responsible for a deadly auto accident. He
explained that the result was required by the plain meaning of the
Texas law. Owen dissented, claiming that Texas should be immune from
these suits. Justice Gonzales wrote that she misread the law, which he
said was clear and unequivocal.
In another case, Justice Gonzales joined the court's majority that
criticized Justice Owen for disregarding the procedural limitations in
the statute and taking a position even more extreme than had been
argued by the defendant.
In another case in 2000, landowners claimed a Texas law exempted them
from local water quality regulations. The court's majority ruled the
law was an unconstitutional delegation of legislative authority to
private individuals. Justice Owen dissented and sided with the large
landowners, including contributors to her campaign. Justice Gonzales
joined a majority opinion criticizing her, stating that most of her
opinion was nothing more than inflammatory rhetoric, which merits no
response.
Justice Gonzales also wrote an opinion holding that an innocent
spouse could recover insurance proceeds when her coinsured spouse
intentionally set fire to their insured home. Justice Owen joined a
dissent that would have denied the coverage of the spouse on the theory
that the arsonist might somehow benefit from the court's decision.
Justice Gonzales's majority opinion stated that her argument was based
on a ``theoretical possibility'' that would never happen in the real
world, and that violated the plain language of the insurance policy.
In still another case, Justice Owen joined a partial dissent that
would have limited the basic right to jury trials. The dissent was
criticized by the other judges as a ``judicial sleight of hand'' to
bypass the Texas constitution.
Priscilla Owen is one of the most frequent dissenters on the
conservative Texas Supreme Court in cases involving basic protections
for workers, consumers, and victims of discrimination. That court is
dominated by Republican appointees, and is known for frequently ruling
against plaintiffs. Yet, when the Court rules in favor of plaintiffs,
Justice Owen usually dissents, taking the side of the powerful over
individual rights.
She has limited the rights of minors in medical malpractice cases.
She has tried to cut back on people's right to relief when insurance
company claims are unreasonably denied, even in cases of bad faith. Her
frequent dissents show a pattern of limiting remedies for workers,
consumers, and victims of discrimination or personal injury.
She dissented in a case interpreting a key Texas civil rights law
that protects against discrimination based on age, race, gender,
religion, ethnic background, and disability. Justice Owen's opinion
would have required employees to prove discrimination was the only
reason for the actions taken against them--even though the law clearly
states that workers need only prove that discrimination was one of the
motivating factors. Justice Owen's view would have changed the plain
meaning of the law to make it nearly impossible for victims of
discrimination to prevail in civil rights cases.
She joined an opinion that would have reversed a jury award to a
woman whose insurance company had denied her claim for coverage of
heart surgery bills. Many other such cases could be cited.
Justice Owen also dissented in a case involving three women who
sought relief for intentional infliction of emotional distress on the
job because of constant humiliating and abusive behavior by their
supervisor.
The supervisor harassed and intimidated employees by the daily use of
profanity; by screaming and cursing at employees; by charging at
employees and physically threatening them; and by humiliating
employees, including making an employee stand in front of him in his
office for as long as thirty minutes while he stared at her. The
employees he harassed suffered from severe emotional distress, tension,
nervousness, anxiety, depression, loss of appetite, inability to sleep,
crying spells and uncontrollable emotional outbursts as a result of his
so-called supervision. They sought medical and psychological help
because of their distress.
Eight Justices on the Texas court agreed that the actions, viewed as
a whole, were extreme and outrageous enough to justify the jury's
verdict of intentional infliction of emotional distress. Justice Owen
wrote a separate opinion, stating that while she agreed that there was
evidence to support the women's case, she thought most of it was
``legally insufficient to support the verdict.''
Justice Owen's record is particularly troubling in light of the
important issues that come before the Fifth Circuit, which is also one
of the most racially and ethnically diverse Circuits, with a large
number of low-income workers, Latinos, and African-Americans. It is
particularly vital that judges on the court are fair to workers,
victims of discrimination, and those who suffer personal injuries.
Some have said that those who raise questions about Justice Owen's
record are somehow smearing her personally. That's untrue and unfair.
Each of us has a responsibility to review her record and to take
seriously the problems we find.
That means taking seriously the rights of persons like Ralf Toennies,
who was fired at age 55, and found that Justice Owen wanted to impose
obstacles to his age discrimination claim that were nowhere in the
statute. We must take seriously the rights of the women employees
criticized by Justice Owen for their testimony on workplace harassment
in the emotional distress

[[Page S5410]]

case. We can't ignore the rights of the millions of families who live
in the Fifth Circuit States of Texas, Louisiana, and Mississippi.
Finally, Justice Owen's supporters have also suggested that she
should be confirmed to the Court of Appeals because Texas voters
elected her to their Supreme Court.
Obviously, there is a huge difference between State judges who must
submit to local elections to keep their positions and Federal judges
who are lifetime appointees, and are not meant to respond to popular
opinion. If we confirm Justice Owen to the Fifth Circuit, she will
serve for life. So our responsibility as Senators is very different.
The record of each nominee for a Federal judgeship is carefully
considered by Senators from all 50 States.
Likewise, the fact that she received a high rating from the American
Bar Association or did well on the bar exam does not erase her
disturbing record. Priscilla Owen's record raises major questions about
her commitment to the basic rights guaranteed by the Constitution to
all our citizens.
Mr. President, I want to take a few moments now to go over with the
Senate some of the rules that are going to have to be broken by the
majority in order to try to change the rules of the Senate.
I want to review very quickly what we are faced with here. I will
give two examples of individuals who I think failed to meet the
standard for approval in the Senate, that they have a commitment to the
core values of the Constitution. We have just seen examples and
statements and comments from both individuals and from newspapers and
other sources that I think established convincingly these individuals
do not have that kind of core commitment required and should not be
given lifetime appointments.
Neither the Constitution, nor Senate rules, nor Senate precedents,
nor American history provide any justification for the majority
leader's attempt to selectively nullify the use of the filibuster to
push through these radical nominees. Equally important, neither the
Constitution, nor the rules, nor precedent, nor history provide any
permissible means for a bare majority of the Senate to take that
radical step without breaking or ignoring clear provisions of
applicable Senate rules and unquestioned precedents.
Here are some of the rules and precedents the executive will have to
ask its allies in the Senate to break or ignore in order to turn the
Senate into a rubberstamp for the nominations:
First, they will have to see that the Vice President himself is
presiding over the Senate so that no real Senator needs to endure the
embarrassment of publicly violating Senate rules and precedent and
overriding the Senate Parliamentarian the way our Presiding Officer
will have to do.
Next, they will have to break paragraph 1 of rule V, which requires 1
day's specific written notice if a Senator intends to try to suspend or
change any rule.
Then they will have to break paragraph 2 of rule V, which provides
that the Senate rules remain in force from Congress to Congress, unless
they are changed in accordance with the existing rules.
Then they will have to break paragraph 2 of rule XXII, which requires
a motion, signed by 16 Senators, a 2-day wait, and a three-fifths vote
to close debate on the nomination itself.
They will also have to break rule XXII's requirement of a petition, a
wait, and a two-thirds vote to stop debate on a rules change.
Then, since they pretend to be proceeding on a constitutional basis,
they will have to break the invariable rule of practice that
constitutional issues must not be decided by the Presiding Officer, but
must be referred by the Presiding Officer to the entire Senate for full
debate and decision.
Throughout the process, they will have to ignore or intentionally
give incorrect answers to proper parliamentary inquiries which, if
answered in good faith and in accordance with the expert advice of the
Parliamentarian, would make clear that they are breaking the rules.
Eventually, when their repeated rule-breaking is called into
question, they will blatantly, and in dire violation of the norms and
mutuality of the Senate, try to ignore the minority leader and other
Senators who are seeking recognition to make lawful motions or pose
legitimate inquiries or make proper objections.
By this time, all pretense of comity, all sense of mutual respect and
fairness, all of the normal courtesies that allow the Senate to proceed
expeditiously on any business at all will have been destroyed by the
preemptive Republican nuclear strike on the floor.
To accomplish their goal by using a bare majority vote to escape the
rule requiring 60 votes to cut off debate, those participating in this
charade will, even before the vote, already have terminated the normal
functioning of the Senate. They will have broken the Senate compact of
comity and will have launched a preemptive nuclear war. The battle
begins when the perpetrators openly, intentionally, and repeatedly
break clear rules and precedents of the Senate, refuse to follow the
advice of the Parliamentarian, and commit the unpardonable sin of
refusing to recognize the minority leader.
Their hollow defenses to all these points demonstrate the weakness of
their case.
They claim that ``we are only breaking the rules with respect to
judicial nominations. We promise not to do so on other nominations or
on legislation.'' No one seriously believes that. Having used the
nuclear option to salvage a handful of activist judges, they will not
hesitate to use it to salvage some bill vital to the credit card
industry, oil industry, pharmaceutical industry, Wall Street, or any
other special interest. In other words, the Senate majority will always
be able to get its way, and the Senate our Founders created will no
longer exist. It will be an echo chamber to the House, where the
tyranny of the majority is so rampant today.
One of the greatest privileges of my life is serving the people of
Massachusetts in the Senate. I am reminded every day of my obligation
to speak up for them and fight for their concerns, their hopes, and
their values in this Chamber. Many brave leaders from Massachusetts
have held the seat I hold today in the Senate. This seat was held by
John Quincy Adams, who went on to become the sixth President and was a
great champion of free speech. He debated three Supreme Court nominees
and voted to confirm them all. He refused to be silenced.
Charles Sumner was the Senate's leading opponent of slavery. He was
beaten to within an inch of his life for speaking up for his
convictions. It took him 3 years to recover from the injuries and
return to the Senate to speak out against slavery once again. He
debated 11 Supreme Court nominees and voted for 10 of them. He refused
to be silenced.
Daniel Webster was one of our Nation's greatest orators and the
architect of the Great Compromise of 1850. He spoke up for a united
America with the words ``liberty and union, now and forever, one and
inseparable.'' You can hear his words ringing through these halls even
now. He debated 12 Supreme Court nominations; he voted to approve 8 and
opposed 4. He refused to be silenced.
Henry Cabot Lodge, the Republican, opposed President Wilson's efforts
to join the League of Nations. He was the leading Republican voice on
foreign policy in his time. He debated 20 Supreme Court nominees, voted
for 18, and he opposed 2. He refused to be silenced.
John Kennedy not only was a champion for working men and women in
Massachusetts, but he also battled intolerance, injustice, and poverty
during his time in the Senate. He debated and supported four Supreme
Court nominees. He, too, refused to be silenced.
These great Senators are remembered and respected in our history
because they spoke up for their convictions. They were not intimidated.
They did not back down from their beliefs. They were not muzzled. They
were not gagged. They would not be silenced. And it will be a sad day
for our democracy if the voices of our Nation's elected representatives
can no longer be heard.
Mr. President, I yield the remaining time to my friend and colleague,
the Senator from Montana.
The PRESIDING OFFICER. The Senator from Montana is recognized.
Mr. BAUCUS. Mr. President, I thank my good friend from Massachusetts.

[[Page S5411]]

The Book of Proverbs teaches:

Do not boast of tomorrow, for you do not know what the day
will bring.

In the play ``Heracles,'' the great playwright Euripides wrote:

All is change; all yields its place and goes.

And the Greek philosopher Heraclitus said:

Change alone is unchanging.

I urge my colleagues to bear the constancy of change in mind as they
consider the proposal to break the rules to change the rules of the
Senate. Many in the Senate's current majority seem bent on doing that.
They seem quite certain that they shall retain the Senate majority for
quite some time thereafter.
But as Bertrand Russell said:

Most of the greatest evils that man has inflicted upon man
have come from people feeling quite certain about something,
which, in fact, was false.

My colleagues do not need to strain their memories to recall changes
in the control of the Senate. Most recently, the Senate changed from
Democratic to Republican control as a result of the 2002 election.
Democrats did control the Senate throughout the sixties and the
seventies, but since then the Senate has governed under six separate
periods of one party's control. The Senate switched from Democratic to
Republican control in 1980, back to Democratic control in 1986, back to
Republican control in 1994, back to Democratic control in 2001, and
back to Republican control again in 2002.
Similarly, some in the Senate can remember the decade after World War
II. The Senate switched from Democratic to Republican control in 1946,
back to Democratic control in 1948, back to Republican control in 1952,
and then back to Democratic control again in 1954. Senators who served
from 1945 to 1955, a mere 10 years, served under five separate periods
of one party's majority control.
One cannot always see that change is coming, but change comes
nonetheless. For example, in November 1994, Washington saw one of the
most sweeping changes in power in Congress of recent memory. Very few
saw that coming. The majority in the House and the Senate changed from
Democratic to Republican.
It is by no means easy to see that change coming. In March of 1994,
just several months before the election, voters told the Gallup poll
that they were going to vote Democratic by a ratio of 50 percent
Democratic to 41 percent Republican. That same month, March of 1994,
voters told the ABC News poll that they were going to vote Democratic
by a ratio of 50 percent Democratic to 34 percent Republican. As late
as September of 1994, voters told the ABC News poll that they were
going to vote Democratic by a ratio of 50 percent Democratic to 44
percent Republican. On the first Tuesday in November 1994, however,
more than 52 percent of voters voted Republican for Congress. Democrats
lost 53 seats in the House and 7 seats in the Senate.
In 1980, the Senate changed hands from Democratic to Republican
control, but in August of 1980, voters in States with a Senate election
told the ABC News-Louis Harris poll that they would vote for Democrats
for the Senate by a margin of 47 percent for Democrats and 45 percent
for Republicans. And on the first Tuesday in November 1980, Democrats
lost 12 seats in the Senate.
In November 2002, the voters gave the Republican Party victory in the
Senate. But my colleagues in the majority would do well to remember.
After a victorious campaign, Roman generals used to be rewarded with
a triumph--a triumphant parade through the streets of Rome. Citizens
acclaimed them like gods. But tradition tells us that behind the
general on his chariot stood a slave who whispered: Remember that you
are mortal.
In the ceremony of a Pope's elevation, they used to intone: Sic
transit gloria mundi: ``So the glory of this world away.'' At that very
moment, they would burn a handful of flax. The burning flax would
symbolize how transitory the power in this world is.
In an address in Milwaukee in 1859, Abraham Lincoln said:

It is said an Eastern monarch once charged his wisemen to
invent him a sentence, to be ever in view, and which should
be true and appropriate in all times and situations. They
presented him with the words: ``And this, too, shall pass
away.'' How much it expresses! How chastening in the hour of
pride! How consoling in the depths of affliction!

Mr. President, I urge my colleagues to remember that this Senate
majority, too, shall pass away. This truth may console us in the
minority, should the majority choose to break the rules to change the
rules. But better still, better still would it be if the truth of
constant change would chasten the current majority into abiding by the
rules that protect Senators when they are in the majority and when they
are in the minority alike.
We should protect the rules to protect minority rights, for no one
can ``know what the day will bring.''
We should protect the rules that protect minority rights, for ``all
yield [their] place and go.''
And we should protect the rules that protect minority rights, for it
is true of majority control, as it is true of all things, that ``change
alone is unchanging.''
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BAUCUS. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAUCUS. Mr. President, I yield the remainder of time on our side.
I understand we have an order to go to recess.
The PRESIDING OFFICER. The Senator is correct.

____________________