[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

[[Page S5374]]

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

[[Page S5375]]

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,

[[Page S5376]]

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

[[Page S5377]]

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.

                          ____________________