[Congressional Record Volume 151, Number 66 (Wednesday, May 18, 2005)]
[Senate]
[Pages S5411-S5433]
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

  The PRESIDING OFFICER. Under the previous agreement, the majority 
controls the next 60 minutes. The Senator from Georgia.
  Mr. CHAMBLISS. Are we in morning business or are we prepared to 
proceed?
  The PRESIDING OFFICER. We are on nominations.
  Mr. CHAMBLISS. Let me start by asking, what is the pending business 
before the Senate?
  The PRESIDING OFFICER. The nomination of Priscilla Owen to be U.S. 
Circuit Judge.
  Mr. CHAMBLISS. Mr. President, I would like to take some time to 
discuss the nominations of two nominees, actually, to the Federal Court 
of Appeals. First, Justice Priscilla Owen of the Supreme Court of the 
State of Texas to the U.S. Circuit Court of Appeals for the Fifth 
Circuit, and then Justice Janice Rogers Brown of the Supreme Court of 
California to the U.S. Circuit Court of Appeals for the District of 
Columbia, along with why we need to move forward to a fair up-or-down 
vote on the nominations.
  I would like to start with Judge Priscilla Owen.
  Justice Owen's qualifications to serve on the Fifth Circuit Court are 
readily apparent to anyone who looks at her background and experience. 
Speaking to her in person--as I did 2 years ago, shortly after I came 
over to the Senate--only reinforces her obvious capabilities as a 
judge.
  Justice Owen graduated cum laude from Baylor Law School and then 
proceeded to earn the highest score on the Texas Bar exam that year.
  She practiced law for 17 years and became a partner with Andrews & 
Kurth, a highly respected law firm in Texas, before being elected to 
the Supreme Court of Texas in 1994.
  Before I talk any more about Justice Owen's qualifications as a 
judge, I want to speak briefly about Priscilla Owen and the kind of 
person she is. Priscilla Owen has spent much of her life devoting time 
and energy in service of her community. She serves on the board of 
Texas Hearing & Service Dogs, and is a

[[Page S5412]]

member of St. Barnabas Episcopal Mission in Austin, TX, where she 
teaches Sunday school and serves as the head of the altar guild.
  Having been a Sunday school teacher myself, and having grown up in 
the Episcopal Church--and my mother was the head of the altar guild for 
several decades--I know how much work that involved from a civic and 
religious standpoint.
  She has worked to ensure that all citizens are provided access to 
justice as the court's representative on the Texas Supreme Court 
Mediation Task Force and to various statewide committees regarding 
legal services to the poor and pro bono legal services.
  She was part of a committee that successfully encouraged the Texas 
legislature to provide millions of additional dollars per year for 
legal services for the poor.
  Justice Owen is a member of the Gender Bias Reform Implementation 
Committee and the Judicial Efficiency Committee 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 impacts on 
children.
  Justice Priscilla Owen was elected by the people of Texas, the second 
most populous State in this great country, to its highest court, the 
Supreme Court of Texas, where she serves today. In her last reelection 
in the year 2000, she won 84 percent of the vote and had the 
endorsement of every major newspaper in Texas.
  Yet, there are still people who want the United States Senate to 
reject her nomination to the Federal bench because she is supposedly 
out of the mainstream in her legal reasoning. Out of the mainstream? 
The people of Texas obviously don't think she's out of the mainstream. 
In fact, I submit to you that in Texas and in the Fifth Circuit 
overall, she represents the mainstream of legal thought.
  I would imagine my friends on the other side of the aisle would agree 
with me that the American Bar Association is an organization considered 
by many to be well within the mainstream of legal thinking in this 
country. The ABA rated Justice Owen as ``Well Qualified'' for the Fifth 
Circuit--this is its highest rating, often called the ``gold standard'' 
and indicating the best possible qualifications to serve on the Federal 
bench. By their opposition to Justice Owens confirmation, my colleagues 
on the other side seem to be telling the ABA: ``Don't bother with your 
rating; it just doesn't matter to us.''
  Even though they used to refer to a well qualified rating as the 
``golden standard'' for judicial nominees, now it seems this is just 
not about qualifications.
  A judicial nominee's qualifications should matter most, and that 
nominee's qualifications should be the sole criterion for approving or 
blocking a nomination.
  The focus should be on these candidates and their legal knowledge and 
experience. It should not be reduced to partisan battles over politics 
or ideology. The essential principle for picking a Federal judge should 
be their commitment to the law. We need judges who put the law before 
personal philosophy, ideology, or politics. That is what separates the 
judiciary from the legislative branch.
  Senators should not inject politics into the process, and nominees 
should keep their politics out of the process as well.
  The comments of some of my Democrat colleagues underscore that this 
debate is not about whether Priscilla Owen is well qualified as a 
judge. Her record reflects it, the ABA acknowledges it, and so do many 
of my colleagues on the other side. For example, consider these 
comments:
  Senator Durbin on September 5, 2002:

       There is no dispute that Justice Owen is a woman of 
     intellectual capacity and academic accomplishment.

  Senator Feinstein on July 23, 2002:

       Justice Owen comes to us with a distinguished record and 
     with the recommendations of many respected individuals within 
     her State of Texas . . . [She is] personable, intelligent, 
     and well spoken. It is clear to me that Justice Owen knows 
     the law.

  Senator Kennedy on September 5, 2002:

       Justice Owen is an intelligent jurist.

  Senator Kohl on May 1, 2003:

       We all recognize her legal talents.

  And Senator Schumer on July 23, 2002:

       I don't think there is any question about your legal 
     excellence. You have had a distinguished academic and 
     professional career . . . I think anyone who has listened 
     even to 10 minutes of this hearing today has no doubt about 
     the excellence in terms of the quality of your legal 
     knowledge and your intelligence, your articulateness, et 
     cetera.

  I take my colleagues at their words. These comments are true and 
genuine. With that in mind and knowing that Justice Owen has the 
endorsement of the ABA as ``well qualified,'' since she was reelected 
with 84 percent of the vote in her home State, how can anyone try to 
say she is out of the mainstream? Why is it wrong to simply give her a 
fair up-or-down vote to see whether a majority of Senators believes she 
is qualified for this position?
  Let me remind Members again that the Fifth Circuit seat to which she 
has been nominated has been designated as a judicial emergency by the 
Judicial Conference of the United States. The judges down in the Fifth 
Circuit need some relief. Dockets are getting backlogged. Cases are 
being delayed and not moving as they should. People who live in the 
Fifth Circuit need some relief.
  Last week, on May 9, we marked the fourth anniversary of Justice 
Owen's nomination to the Fifth Circuit bench. Obstructing a nominee of 
the caliber of Priscilla Owen to a seat characterized as a judicial 
emergency is wrong. We cannot afford to drag this process out any 
further. Now is no time for obstructing the nomination of an eminently 
qualified jurist, one the American Bar Association has unanimously 
rated as ``well qualified,'' for confirmation to this Fifth Circuit 
seat. Let's get beyond the politics and confirm this nominee. I urge my 
colleagues to give Priscilla Owen a fair up-or-down vote on her 
nomination to the Fifth Circuit Court of Appeals.
  I now will move on to discuss another nominee being considered by the 
Senate, Justice Janice Rogers Brown, who the President has nominated to 
sit on the U.S. Circuit Court of Appeals for the District of Columbia.
  Since 1996, Janice Rogers Brown has been an associate justice for the 
Supreme Court of California, our country's most populous State. Justice 
Brown was initially appointed to the California high court by then-
Governor Pete Wilson. She was reelected to the California Supreme Court 
in 1998 by the citizens of California, at which time she received 76 
percent of the vote in favor of her reelection.

  Prior to her service on the California Supreme Court, Justice Brown 
served for 2 years as a State appellate judge in California. Before 
that, she served as legal affairs secretary for Governor Wilson. For 
all but 2 of the past 24 years, Justice Brown has dedicated her career 
to work in public service positions.
  Despite this background of public service and accomplishment, Justice 
Brown, unfortunately, has become the target of liberal interest groups 
who claim she is out of the mainstream of legal thinking. Those who 
oppose confirmation of these two fine State supreme court justices, 
Janice Rogers Brown and Priscilla Owen, apparently have no regard for 
the people of our two most populous States, California and Texas, the 
people who know these judges much better than anyone in this room or 
this body.
  I submit again, in California, our Nation's most populous and one of 
our more diverse States, reelection of Justice Brown was 76 percent of 
the vote. That proves she is regarded as in the mainstream of legal 
thought.
  Justice Brown rose from her early years as a child of sharecropper 
parents in the State of Alabama in the 1950s, one of the more difficult 
times in the history of our country for minorities, to sit on the 
highest court in the State of California. With a 76 percent reelection 
tally, it is obvious that a lot of people like Janice Rogers Brown. But 
nevertheless, Justice Brown has overcome adversity through her life and 
now she is facing it in her nomination to the DC Circuit Court of 
Appeals.
  It is a core fundamental principle of the American judicial system 
that justice is blind. The people can get a fair hearing regardless of 
who they are, where they come from, or what they look like. Surely, 
nominees to the Federal bench deserve the same rights to a fair hearing 
as any of us.

[[Page S5413]]

  Americans have a right to know where their Senators stand. Americans 
have a right to hold their Senators accountable. If a Senator opposes 
any nominees, he or she should vote against them, but they should vote. 
They should not hide behind Senate rules and parliamentary loopholes to 
block a vote. Our Nation's legal system is more important than, and 
should be above, petty partisan politics. There is never any reason 
under any circumstances that either political party should stall the 
courts from doing their necessary work just for political gain. As 
Americans, we deserve a fair, functioning legal system that is 
responsive to the law and not to some special interest group.
  We already have too much politics in America. We already have too 
much politics in our legal system. While it is an unfortunate truth 
that partisan politics infects Washington, it has no place in our 
courts, it has no place in the verdicts delivered by our Federal 
judges, and it has no place in the confirmation process. We need the 
most qualified judges, not those who know how to work their way through 
the political system. It is and must always be a core fundamental 
principle of the American judicial system that people can get a fair 
hearing. Surely nominees to the Federal bench deserve the same rights 
to a fair hearing as any of us. The confirmation of judges should not 
be about ideology or partisanship. We need to adhere to a consistent 
process of investigation and decisionmaking that upholds the 
independent nature of our judicial system. Nominees should be judged by 
their qualifications, nothing less and nothing more. Once the 
investigation is done, nominees deserve an up-or-down vote.
  Just as the Senate has been granted by the Constitution the right of 
advice and consent, the Constitution has also bestowed on them the 
responsibility to decide yes or no. If the nominee is found wanting, a 
``no'' vote should be cast. But the permanent indecision and passing 
the buck serves no one. The essential principle in picking a Federal 
judge should be their understanding and commitment to the law. We need 
judges who put the law before personal philosophy, personal ideology, 
and, certainly, personal politics. That is what separates and protects 
an independent judiciary system from the mere politicized legislative 
branch.
  When it comes to confirming judges, the primary criteria should be 
judicial and legal competence. The men and women who make up the 
Federal judiciary should be the best people available for the job, 
experienced, knowledgeable, and well versed in the law. Their job is 
too important to be determined by any single issue or political litmus 
test.
  I hope at the end of this debate, whether it ends tonight, whether it 
ends tomorrow, whether it ends next week, that we can come together in 
a bipartisan way to look these two judges in the eye and say: We are 
going to give you an up-or-down vote. I think you are qualified and I 
will vote yes, or I think you are not qualified and I will vote no. 
That is our obligation. That is our duty. That is the direction in 
which we must move.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, once again, I rise to speak on behalf of 
the nomination of Justice Priscilla Owen to the Fifth Circuit Court of 
Appeals. I am very honored to do so. As we all know, the debate over 
this nomination will take place within the context of a historic 
constitutional struggle over the President's right to obtain an up-or-
down vote for his judicial nominees.
  In all seven of these cases--in all seven--each of them has 
bipartisan up-or-down majority support. All we ask is they get a vote.
  Now, that will be resolved soon enough, but we should not forget that 
this is a fight worth having because this campaign of ongoing 
obstruction is depriving us of good and needed judges such as Priscilla 
Owen. We should not forget that in the end this debate is about the 
individual nominees and their qualifications for service on the Federal 
bench. This is a debate about Justice Priscilla Owen, and I am proud to 
support her.
  Because Justice Owen's nomination has never come up for an up-or-down 
vote, I have had 4 years to consider this nomination and to get to know 
her personally, and to further familiarize myself with her record on 
and off the bench. The passage of time has only strengthened my 
conviction that she is wholly deserving of a seat on the Federal bench. 
She is a woman of real accomplishments, and the State of Texas is 
justifiably proud of her. I am proud of her. I am confident that if she 
is ever given the vote she deserves, she will do our country proud as a 
Federal circuit court of appeals judge.
  In her years as a justice on the Texas Supreme Court, Priscilla Owen 
has demonstrated the cautious, impartial mind and the willingness to 
listen that we seek from our judges in this country. Both her private 
practice--where she became one of the first to break through the 
``glass ceiling'' for women, became a major partner in one of the major 
law firms in the country, after being first in her class in law school, 
first on the bar examination, with the highest grade there--and her 
actions on the bench provide examples of the honor and dignity that an 
individual can bring to the practice of law.
  Finally, she has comported herself with confidence and 
professionalism in the face of exaggerations and unfair complaints 
lodged against her by interest groups--the outside, leftwing interest 
groups--committed to her defeat. The people of Texas have recognized 
these attributes in Judge Owen and rewarded her twice by electing her 
and reelecting her to the Texas Supreme Court. In fact, she was 
reelected with 84 percent of the vote. Yet some try to characterize her 
as somehow outside of the mainstream.
  How can they justify that? For 4 long years now, her nomination has 
languished as a result of a deliberate and systematic strategy to deny 
up-or-down votes to the President's majority-supported nominees. They 
claim nominees such as Justice Owen are extremists and conservative 
activists. Her record does not support these assertions, and I commend 
the President for renominating this eminently qualified jurist. In 
contrast to the false charge that she is an extremist--and I might add, 
how can she be an extremist and have the highest approval of the 
American Bar Association, certainly not a conservative group? So in 
contrast to the false charge that she is an extremist, the fact is 
Priscilla Owen is one of those relatively few nominees who received a 
unanimously well-qualified rating from the American Bar Association, 
the highest rating possible.
  I am under no illusions here. The Senate is a unique, deliberative 
institution where the opportunity for serious debate must be vigilantly 
protected. Unfortunately, it seems likely that not many are going to 
have their minds changed by this debate. I hope the newly elected 
Members of the Senate will pay close attention to the facts surrounding 
the nomination of Priscilla Owen.
  The Senate already knows Justice Owen quite well. We have spent 
literally hundreds of hours discussing her nomination. Many Senators 
have probably made up their minds. But for many people, this inside-
the-beltway dispute is just now starting to draw attention. Only now, 
as this debate is coming to a head, is it the leading story on the 
network nightly news. Therefore, it is as much for the American people 
tuning into this debate as it is for my colleagues here that I want to 
address a handful of the unfair charges being made against her. And we 
have heard them here on the floor today.
  Justice Owen graduated first in her class from Baylor Law School. She 
received the highest score on the State bar exam. She went on to become 
a partner in the prestigious firm of Andrews & Kurth.
  She was admitted to practice before various State and Federal courts. 
She is a member of the American Law Institute, a prestigious 
organization; the American Judicature Society, the American Bar 
Association, and a fellow of the American and Houston Bar Foundations. 
In short, she possesses all the attributes and membership in 
traditional legal organizations that are recognized by all of us, and 
these organizations place her firmly in the mainstream of all American 
lawyers and of American jurisprudence.

  Committed to the principle of equal justice for all, she participated 
on the

[[Page S5414]]

committee that successfully encouraged the Texas legislature to enact 
legislation resulting in millions of dollars per year in additional 
funds for providers of legal services to the poor. Does that sound like 
an extremist?
  This is the resume of somebody fully within the mainstream of our 
legal community. It is not the resume of a radical or an extremist, as 
has been portrayed by some in this body on the other side. It is the 
resume of a successful attorney who went on to serve the public as a 
justice on the Texas Supreme Court.
  She carried these mainstream professional habits, honed in private 
practice, with her into her career as a judge on the Texas Supreme 
Court. It is worth reconsidering what she had to say before the Senate 
Judiciary Committee during her first confirmation hearing way back on 
July 1, 2002. In her opening statement, she referred to the four 
principles that guide her decisionmaking as a judge. I am quoting her 
here.
  Now, these are her four rules she lives by.

       No. 1: Always remember that the people that come into my 
     court are real people with real problems.
       No. 2: When it is a statute that is before me, I must 
     enforce it as you in the Congress or in the State 
     legislature, as the case may be, have written it, unless it 
     is unconstitutional.
       No. 3: I must strictly follow United States Supreme Court 
     precedent.
       No. 4: Judges must be independent, both from public opinion 
     and from the parties and lawyers who appear before them.

  That is a statement of Justice Priscilla Owen before the Senate 
Judiciary Committee on July 21, 2002. This is hardly radical stuff. In 
fact, I would wager a vast majority of the American people agree with 
those principles.
  Yet to listen to those committed to stonewalling this nomination--she 
has now been waiting 4 years for this vote--you would walk away with a 
very different impression, if you listened to them. I have been 
debating judicial nominations for a long time--all 29 years of my 
service in the Senate--but these most recent attacks are novel ones. 
The insistence on denying Justice Owen and other nominees up-or-down 
votes is part of a larger story dating back over 20 years now.
  In those earlier debates, some committed to an activist judiciary 
used to wear the label ``judicial activist'' proudly on their sleeves. 
Over time, however, they have come to understand that the American 
people like their judges interpreting rather than making the laws. 
Judges should behave as judges, not junior auxiliaries to the 
legislative branch. So now they charge conservative nominees with being 
activists as well.
  This is the principle charge against Justice Owen. The American 
people are going to have to make up their own minds on this, but to me 
it is very clear that argument does not hold any water. Look at her 
record. Look at those who are behind her. Look at all the Democrats who 
have supported her.
  The abortion rights lobbyists focus their attention on a series of 
Justice Owen's opinions in cases involving the Texas parental 
notification statute. It is worth noting that contrary to the wishes of 
a vast majority of Americans, and the Supreme Court, groups such as the 
National Abortion Rights Action League oppose even these modest popular 
restrictions on abortion rights, that are supported by 80 percent of 
the American people. The reality is it is Justice Owen, not these 
groups, who is in the mainstream. The groups are the ones who are 
outside of the mainstream.
  By the way, these are far-left Democratic Party groups that are far 
outside the mainstream in their interpretation. Anybody who disagrees 
with them on anything is ``outside of the mainstream'' or 
``extremist.'' Unfortunately, some of our colleagues parrot what they 
say and what they tell them to say.

  In Texas, the law requires that a minor notify her parents of her 
decision to have an abortion. That is what the law of Texas says. This 
is common in many States. Such statutes receive broad bipartisan 
support. I have mentioned 80 percent of the American people support 
these types of statutes. Yet, in their wisdom, the Texas legislature 
provided an opportunity for a judicial bypass of this notification of 
parents requirement in certain circumstances.
  Judge Owen has been vilified in her dissent in the case of In re Doe 
I where she had to interpret the State's requirement that a minor 
seeking a judicial bypass of the notification of parents requirement 
demonstrate sufficient maturity to get the bypass. A fair reading of 
that opinion shows you Justice Owen made a reasonable interpretation of 
the Texas law.
  The other day it was reported that Nancy Keenan, the president of the 
abortion advocacy group the National Abortion Rights Advocacy League, 
said she is committed to keeping what she called ``out of touch 
theological activists'' off the bench. I can only hope this talking 
point was not aimed at Justice Owen's decision, which is certainly well 
within the mainstream and supported by 80 percent of the American 
people. If so, her point misses the point entirely. Sadly, it seems 
that the deliberate misreading of Justice Owen's opinion may be for the 
sole purpose of raising ill-founded doubts against Justice Owen and 
other qualified nominees.
  Priscilla Owen only interpreted the law to require that a minor 
seeking an abortion fully understand the importance of the choice she 
is making and be mature enough to make that choice. I thought these 
groups were in favor of supporting the right to make an informed 
choice. When it comes to Justice Owen, I guess it is easier to unfairly 
tar her as an anti-abortion activist.
  This is a false charge, and it is contrary to the laws of many States 
and other laws as well. Yet some interest groups keep feeding this same 
misleading information to journalists around the country. Just last 
night, the evening news on one of the major networks reported as fact 
the patently false charge that Attorney General Gonzales called Justice 
Owen a judicial activist when he was her colleague on the Texas Supreme 
Court. This charge was made again this morning by the senior Senator 
from Massachusetts. Think about that. They know this claim is fiction, 
but they nonetheless continue to launch it as though people should 
believe it, even though it is fiction.
  Attorney General Gonzales confirmed this under oath--he was not 
criticizing Justice Owen--in his January 6, 2005, confirmation hearing, 
and it is clear to anyone who bothers to read the opinions that he 
never referred to Owen or any other judge on the Texas Supreme Court as 
a judicial activist. He was basically referring to himself. He felt if 
he didn't rule the way he did, he would be a judicial activist. He 
didn't make any criticism of her. But to read the newspapers and to 
hear the television broadcasters and to listen to our colleagues on the 
other side, they completely distort what Attorney General Gonzales 
says. As a matter of fact, Attorney General Gonzales was one of the 
strongest supporters of Priscilla Owen because she is a terrific 
justice, as he knows because he served side by side with her on the 
Texas Supreme Court.
  In the end, I am happy to have this debate. The American people know 
judicial activism when they see it. Just last week a Federal judge in 
Nebraska invalidated a State constitutional amendment preserving 
traditional marriage in that State. If that opinion is upheld, that 
will bind every State in the Union under the full faith and credit 
clause. Talk about activism.
  But I am sure that my colleagues on the other side will find that 
that judge was in the judicial mainstream or the mainstream of American 
jurisprudence. If they want to argue that Justice Owen's interpretation 
of a popular parental notification statute is an activist one, I will 
be here to debate that all day long. I might add that parents, in many 
of the cases, who are concerned about their daughters, ought to have at 
least the privilege of being in a position to help their daughters 
through those trying times. That is what the courts and the statutes 
have said. That is what any reasonable person would say. Yet they brand 
Priscilla Owen as an extremist.
  Why didn't the American Bar Association do that? Why did the American 
Bar Association give her the highest possible rating that you can get? 
During the Clinton years that was the gold standard, the absolute gold 
standard. Why isn't it the gold standard today? Why is this really 
terrific person being called a judicial activist, outside of the

[[Page S5415]]

mainstream, and an extremist? It is awful.
  Those opposed to Justice Owen ignore the host of decisions in which 
she protected workers, consumers, the environment, crime victims, and 
the poor--as though she didn't care about people. There is a host of 
decisions where she has shown great care for people. They select 
individual things and then distort them. It makes you wonder what their 
objection to this nominee really is. It is clear they are not really 
interested in having a serious debate on the merits of Justice Owen's 
nomination. For whatever reason, they are dead set on not having her on 
the Federal bench.

  We are going to hear her described as an out-of-control activist. 
That couldn't be further from the truth. The senior Senator from 
Massachusetts has called her and others of the President's nominees 
Neanderthals. Come on here. This is supposed to be a sophisticated 
body. These are decent people. She was supported by virtually everybody 
in the State of Texas in her last reelection--84 percent of the vote--
every bar association president and former president, 15 of them, every 
major editorial board. And we know they are not generally in favor of 
Republicans, but they all supported her.
  She was first in her law school class, best bar exam in the State, 
partner in a major law firm, broke through the glass ceiling. She is a 
sitting justice on the Texas Supreme Court, reelected by an enormous 
majority, unanimously well-qualified rating from the American Bar 
Association. And she is a Neanderthal? Give me a break.
  That is how far these debates have deteriorated over the years, 
especially when you find a moderate to conservative woman such as 
Priscilla Owen or a moderate to conservative African-American justice 
like Janice Rogers Brown.
  Janice Rogers Brown, think about it--sharecropper's daughter, worked 
her way through college and law school as a single mother, went on to 
hold three of the highest positions in California State Government, 
State counsel to the Governor of the State of California, then-Governor 
Pete Wilson, nominated her for the Supreme Court of California. She 
writes the majority of the majority opinions on that liberal court. In 
other words, she is writing for all the of judges on that court in the 
majority opinions. She is a terrific human being. Her problem is she is 
a conservative African-American jurist, approved by the American Bar 
Association. And they call her an extremist.
  We have had negotiations here where they were willing to throw these 
two women, Priscilla Owen and Janice Rogers Brown, off the cliff in 
favor of three or four men, white males, all of whom deserved being 
confirmed themselves. I thought they were all bad and extremist, 
according to them. Why would they allow any of them to go through? Then 
again, if they are not, why haven't they voted for them and why have 
they filibustered?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, first of all, let me acknowledge that the 
senior Senator from Utah is so much more knowledgeable on all these 
issues than most of the rest of us--certainly much more than I am. He 
has been on the committee and has chaired the Judiciary Committee. He 
knows these things. He is an attorney. I am none of the above. I chair 
a committee called Environment and Public Works. But I think it is 
important for those of us who are not living this every day to express 
ourselves because we have just as strong feelings, even though we don't 
work with this on a daily basis.
  Mr. President, what is the question pending before the Senate?
  The PRESIDING OFFICER. The nomination of Priscilla Owen to be U.S. 
circuit judge.
  Mr. INHOFE. Mr. President, today, I want to enter into this debate, 
as we have so many times, on these judicial nominees, including Justice 
Priscilla Owen and Justice Janice Rogers Brown, both of whom are highly 
qualified.
  Priscilla Owen was nominated by President Bush to the U.S. Court of 
Appeals for the Fifth Circuit, a seat that has been designated a 
judicial emergency by the Judicial Conference of the United States. 
That means we have to fill the seat. She has served on the Texas 
Supreme Court since 1994 and was endorsed for reelection by every major 
Texas newspaper. She practiced commercial litigation for 17 years. She 
received her undergraduate degree from Baylor University and graduated 
third in her class from Baylor Law School in 1977. The American Bar 
Association has unanimously rated Justice Owen as ``well-qualified,'' 
the highest possible rating. She is the first nominee considered well-
qualified by the ABA to be denied a floor vote by the Democrats.
  Priscilla Owen even has significant bipartisan support from three 
former Democrat judges on the Texas Supreme Court and a bipartisan 
group of 15 past presidents of the State Bar Association of Texas. 
Justice Owen has served the legal field in many capacities. She was 
liaison to the Texas Supreme Court's mediation task force and on 
statewide committees on providing legal services to the poor and pro 
bono legal services. She has always been very sensitive to the poor.
  Justice Owen organized a group called Family Law 2000, which warns 
parents about the difficulties children face when parents go through a 
divorce.
  Similarly, President Bush has nominated Justice Brown to the U.S. 
Court of Appeals for the DC Circuit. This morning, I was at the White 
House. As I came back, I walked by that district court office and 
thought very much at that time about Justice Brown. She currently 
serves as an associate justice on the California Supreme Court, a 
position she has held since 1996. She is the first African-American 
woman to serve on California's highest court and was retained with 76 
percent of the statewide vote in her last election.
  It is kind of interesting that they use the term ``out of the 
mainstream'' quite often. Yet here is someone who got 76 percent of the 
vote in a statewide election. Justice Owen actually got 84 percent. I 
don't think anybody in this body has been able to gain those 
majorities.
  Justice Brown was the daughter of a sharecropper. She was born in 
Greenville, AL, in 1949. She grew up attending segregated schools 
during the practice of Jim Crow policies in the South. Her family moved 
to Sacramento, CA, when she was in her teens, and she later received 
her B.A. in economics from California State, and earned her J.D. from 
UCLA School of Law in 1977.
  She has participated in a variety of statewide and community 
organizations dedicated to improving the quality of life for all 
citizens of California.
  For example, she has served as a member of the California Commission 
on the Status of African-American Males, as a member of the Governor's 
Child Support Task Force, and as a member of the Community Learning 
Advisory Board of the Rio Americano High School.
  Two weeks ago, my colleague in the other Chamber, Congressman Dan 
Lungren of California--he is a Congressman I served with for many years 
when I was in the other body, and he went on to be the Attorney General 
from the State of California. He spoke of his professional experience 
with Justice Brown. I really think it is important to go back to people 
who have served with them at the grassroots level. He was in State 
government with her in the early 1990s. Congressman Lungren said:

        . . . It is my observation that in the absence of the 
     opportunity to be voted up or down, to be subjected to a 
     debate on the floor of the United States Senate in the 
     context of such a consideration, that in fact the Janice 
     Rogers Brown that I know in the State of California . . . is 
     not the person that I hear discussed, the person that I hear 
     characterized, or the person that I see presented in the 
     press and other places.
       When I was elected the attorney general in the State of 
     California and took office in January of 1991, I asked a 
     number of people who had previously served in the attorney 
     general's Office for recommendations of people who should 
     serve at the top level of the department of justice in my 
     administration. Her name (Justice Brown) was always offered 
     by those who had experience in that office.
       During the confirmation hearings that we had, I had the 
     opportunity to review the opinions that she had written while 
     on the appellate court. Interestingly enough, every single 
     member of the appellate court on which she served recommended 
     her confirmation to the California supreme court. I recall at 
     the time that the chief justice of the California supreme 
     court, Justice Ron George, surprised the public hearing that 
     we had by actually putting on the table every

[[Page S5416]]

     single written opinion that she had done and advising 
     everybody there that he had read every opinion that she had 
     written at that point in time, not once but twice, and 
     rendering his opinion that she was well qualified to serve on 
     the California supreme court.

  Further quoting:

       If you look at her opinions, they are the opinions of 
     someone who understands what I believe jurists ought to 
     understand, that their obligation is to interpret the law, 
     not make the law.

  He concluded his statement by saying:

       My point this evening is a simple one. That which we are 
     observing in the Senate is denying the American people an 
     opportunity to review the nominees of the President of the 
     United States. It is my belief that Janice Brown should be 
     presented to the United States Senate for consideration. She 
     is an American story. From the humblest background, she has 
     risen to the highest court in the most populous State in the 
     Nation. She subscribes to a judicial philosophy considered 
     radical in some circles, that the text of the Constitution 
     actually means something. She holds to a consistent 
     enforcement of individual rights that is not result oriented.
       In my judgment, these are the qualities of a true jurist 
     and is why she should be confirmed to sit on the DC Circuit 
     Court of Appeals and, at the very least, that her story be 
     told in open debate on the floor of the United States Senate 
     in the context of the consideration of her nomination by the 
     whole body.

  That is what we are attempting to do today. This is a debate that 
could quickly be brought to an end by a simple up-or-down vote. We 
offered the minority as much time as they wanted to debate these 
nominees, as long as an up-or-down vote would follow. But this hasn't 
happened.
  As a matter of fact, at least seven of my colleagues from the other 
side of the aisle have actually stated the same thing--that nominees 
deserve an up-or-down vote regarding previous nominees, and they all 
received an up-or-down vote. The same people now that are objecting to 
an up-or-down vote are the ones who stood up and said we think they 
should have an up-or-down vote previously. Somehow that has changed 
from the 1990s, and they don't want that.
  Let me remind them that Senator Durbin said this on September 28, 
1998: We should vote the person up or down. That is all we want.
  Senator Feinstein, on September 16, 1999, said a nominee is entitled 
to a vote. Vote them up or down.
  Again, Senator Feinstein, a month later, said in October of 1999:

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

  That is what we are talking about, our institutional integrity. I 
agree with Senator Feinstein from 1999.
  On March 7, 2000, Senator Kennedy said:

       The Chief Justice of the U.S. Supreme Court said, ``The 
     Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry, 
     it should vote him up or down, which is exactly what I would 
     like.

  Senator Lautenberg said:

       Talking about the fairness in the system and how it is 
     equitable for a minority to restrict the majority view, why 
     can we not have a straight up-or-down vote?

  That was on June 21, 1995.
  Senator Leahy, who actually chaired that committee, said:

       When President Bush nominated Clarence Thomas to the U.S. 
     Supreme Court, I was the first Member of the Senate to 
     declare my opposition to his nomination. I did not believe 
     that Clarence Thomas was qualified to serve on the Court. 
     Even with strong reservations, I felt that Judge Thomas 
     deserved an up-or-down vote.

  Again, 4 years later, Senator Leahy said:

        . . . I also took the floor on occasion to oppose 
     filibusters to hold them up and believe that we should have a 
     vote up or down.

  Senator Lincoln said:

       It's my hope that we'll take the necessary steps to give 
     these men and these women especially the up-or-down vote that 
     they deserve.

  That was in the year 2000.
  Senator Sarbanes said:

       It is not whether you let the President have his nominees 
     confirmed. You will not even let them be considered . . . 
     with an up-or-down vote.

  I could go on and on. In fact, I did the other day. I went over so 
many of these people who are demanding an up-or-down vote. Not only are 
my colleagues on the other side of the aisle holding up these qualified 
judges by not allowing an up-or-down vote, I also believe they are 
discriminating against people of faith.
  I will reiterate a quote from an article in the L.A. Times that I 
read on the floor in April regarding the filibuster of qualified 
nominees, such as Justices Owen and Brown. It states, and I am quoting 
now the L.A. Times which has never been accused of being a Republican 
newspaper:

       These are confusing days in Washington. Born-again 
     conservative Christians who strongly want to see President 
     Bush's judicial nominees voted on are leading the charge 
     against the Senate filibuster, and liberal Democrats are 
     born-again believers in that reactionary, obstructionist 
     legislative tactic. Practically every big-name liberal 
     senator you can think of derided the filibuster a decade ago 
     and now sees the error of his or her ways and will go to 
     amusing lengths to try to convince you that the change of 
     heart is explained by something deeper than the mere 
     difference between being in the majority and being in the 
     minority.

  I know that both Justice Brown and Justice Owen are active members of 
churches and are distinguished women of faith.
  Justice Brown has taught adult Sunday school at her church for more 
than 10 years, and Justice Owen teaches Sunday school and is the head 
of the altar guild at her church.
  One has to ask the question, Have we come to the point in America 
where Sunday school teachers are disqualified by the strength of their 
faith and the boldness of their beliefs?
  The Bible urges us, like Justices Brown and Owen, to be bold in our 
faith. I Timothy 3:13 says:

       For they that have used the office of a deacon well 
     purchase to themselves a good degree, and great boldness in 
     the faith which is in Christ Jesus.

  Hebrews 4:16 says:

       Let us therefore come boldly unto the throne of grace, that 
     we may obtain mercy. . . .

  I agree with Justice Brown, as she recently told an audience, that 
people of faith were embroiled in a war against secular humanists who 
threatened to divorce America from its religious roots, according to a 
newspaper quoted in an April 26, L.A. Times article.
  One example of this attack is our parental notification and consent 
laws which require girls under 18 who are seeking an abortion to either 
notify or obtain permission--either notify or obtain permission--from 
one or both of her parents. Many States have such laws. However, there 
are many instances where these protective laws have been struck down by 
liberal judges who are bypassing the law and legislating from the 
bench.
  For example, on August 5, 1997, the California Supreme Court issued 
its decision in American Academy of Pediatrics v. Lungren. The court 
held that the 1987 statute requiring minors seeking abortion to obtain 
parental consent or judicial authorization violates the California 
Constitution's explicit right to privacy.
  This is outrageous. Parents have a right to know what their children 
are doing. Children who are not old enough to vote or drink, why should 
they be old enough to have an abortion without at least telling their 
parents? We are not talking about getting permission, we are talking 
about notifying them.
  In another case, Planned Parenthood v. Danforth, the Supreme Court 
held that statutes, which allow a parent or guardian to absolutely 
prohibit an abortion to be performed on a minor child, were 
unconstitutional.
  There are a number of such cases. The whole point is this is 
outrageous.
  We keep hearing people say these two justices are out of mainstream 
America, and I suggest to you, Mr. President, that it is the 
individuals who are making the accusations who are out of the 
mainstream. It was not long ago that they did polling on all these 
traditional values, and it would seem to me that the traditional values 
are in the mainstream. It is the liberals who are opposing 
these nominations who are out of the mainstream.

  To give an example, by 85 to 15 percent, Americans say religion is 
very or fairly important in their lives. Only 15 percent say it is 
unimportant.
  In the case of Government should help faith-based initiatives to help 
the poor, 72 percent of Americans agree. On the issue of whether 
violent attackers of pregnant women who kill the baby should be 
prosecuted for killing the baby, 84 percent say yes. That is 
mainstream.
  On the issue of whether children should be allowed to pray in school, 
78 percent of Americas agree.
  And 73 percent of Americans favor a law requiring women under the age 
of

[[Page S5417]]

18 to get parental consent for any abortion. Democrats are with the 24 
percent who oppose it.
  That is mainstream America, Mr. President. Also, 74 percent oppose 
removing all references to God from oaths of public office--74 
percent--and 91 percent of Americans want to keep the phrase ``under 
God'' in the Pledge of Allegiance.
  Those who are opposing them are on the other side of these issues. I 
suggest this all averages to over 78 percent of the American people 
believe these issues, and that is clearly the will of the American 
people. That is mainstream. That is what our Founding Fathers talked 
about when they founded this great country, this one Nation under God.
  We have said it over and over again. I see the distinguished Senator 
from Nevada is here to speak. I agree with all the liberal Democratic 
Senators who in the 1990s said: All we want is an up-or-down vote; that 
is all we are asking today. They got theirs, now we deserve ours.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I rise to discuss the issue of judicial 
nominees, their confirmation process and whether nominees should 
receive an up-or-down vote.
  We are currently discussing Justice Priscilla Owen and her nomination 
to the Fifth Circuit Court of Appeals. There has been a lot said about 
this nominee. Her qualifications have been enumerated on the Senate 
floor. We have heard that she was elected with 84 percent of the vote 
in Texas. This is a very large percentage that represents overwhelming 
support in her home State of Texas.
  My Democrat colleagues have questioned her position on the issue of 
parental notification. As my friend and colleague from the State of 
Oklahoma talked about, parental notification is supported by nearly 80 
percent of the American people.
  Before a school nurse gives a child an aspirin, the school will ask 
for the parent's permission. When it comes to an abortion, which is a 
surgical procedure, abortion providers do not want to be held to the 
same standard. The vast majority of the American people believe that a 
parent should be notified before a surgical procedure, like an 
abortion, is performed on a child.
  The parental notification cases that Priscilla Owen has heard while 
serving on the Texas Supreme Court all involved a lower court decision 
that the child should tell a parent about her desire to have an 
abortion. So in many of these cases, Justice Owen was upholding the 
determination of the lower court judge who had directly listened to the 
testimony of the minor who wanted an abortion.
  In these cases, there was disagreement among the justices on the 
Texas Supreme Court, but in cases where she voted in favor of parental 
notice, her determination was the same as the lower court. It was very 
reasonable. Anybody could look at that and say this is a reasonable 
person.
  When we review the record of a judicial nominee, when we review their 
opinions, we should ask ``does that judge follow the law?'' We ask ``is 
this judge well reasoned?'' We ask ``did they look at the facts?'' 
Anybody who has reviewed Priscilla Owen's record and her opinions would 
conclude that she has a good temperament. They would conclude that she 
was not making law but was interpreting the law according to the way 
the Texas Legislature had intended. In cases involving parental 
notification, they would conclude that she had faithfully applied the 
law.
  In addition to discussing Justice Owen's nomination, I also want to 
address the confirmation process as a whole. In the past, whether it 
was Judge Robert Bork or Clarence Thomas, Republicans were unhappy with 
the treatment that some nominees of Republican President's received. 
The reputation of Judge Bork and Justice Thomas had been attacked. 
These fine men were vilified. Republicans felt that those nominees were 
treated unfairly in committee and then on the floor.
  When President Clinton was President, some of his nominees were 
likewise mistreated. The committee process was used to delay hearings 
or to bottle up nominees. In most cases though, those nominees were 
eventually given an up or down vote. We have heard the other side 
complain about the delays that President Clinton's nominees 
experienced. I believe that the Senate ought to fix that.
  I think it is damaging to our system of government to deny any 
nominee an up or down vote. The Senate should, whether someone is 
nominated to serve as a judge or in the administration at an agency or 
department, provide each nominee with an up or down vote. The Senate 
should reject this delaying tactic which denies a nominee a timely up-
or-down vote in committee and on the Senate floor. We ought to fix the 
whole process.
  Unfortunately, both Republicans and Democrats have been escalating 
the fight over nominees for years. As I pointed out before, many 
Republicans felt that Judge Bork was mistreated. In response, President 
Clinton's nominees were too. What one side does, the other side will 
ratchet it up to the next level when they come into power. We can't 
keep doing that. Neither side is going to win if we continue on this 
path. But the American system of government and the American people 
will surely lose. Good people will no longer be willing to serve in the 
administration or in positions on the bench if we can't put an end to 
this. No American is going to want to have their name put up for a 
position if they are promised to be treated so horribly.
  My home State of Nevada is part of the Ninth Circuit Court of 
Appeals. A few years ago, Nevada had an opening on the Ninth Circuit. I 
spoke with several people, people who would have been well-qualified as 
a candidate. I asked if they would be interested if I put their name 
forward? I consider it a great honor to be on the appellate court. The 
common feedback: ``Why would I want to put in my name and go through 
that process given all that you have to go through?''
  My fear is that we are discouraging the very type of people who 
should apply for these positions from doing so. We need the absolute 
best legal minds to serve on the appeals courts and Supreme Court that 
we can possibly get. It should be an honor to serve there. We should 
not do anything to dishonor those positions with the political farce 
that we have going on in the Senate.
  The Democrats have accused Republicans of wanting to change the 
rules. The rules changed 2 years ago. And it was the Senate Democrats 
that changed the rules with a partisan filibuster. A partisan 
filibuster was never done in the history of the Senate before 2003, 
never. Search the history books, it is very clear. The two cases 
Democrats bring up were not partisan filibusters. The one case about 
Abe Fortas, that was clear, he had engaged in objectionable practices 
while serving as an associate justice on the Supreme Court and was 
opposed by many Senators in both parties. He was not opposed on a party 
line basis. It was clear to President Johnson that his nominee did not 
have the votes to be confirmed as Chief Justice of the Supreme Court.
  What we call the constitutional option--is an effort to reestablish 
the tradition of what the Senate has always done. The minority is 
correct that filibusters were allowed under the rules. But the people 
who considered them in the past, the majority of Senators, said it 
would do too much damage to the institution to actually carry out those 
filibusters. So, in a bipartisan fashion in the past, before the 
Democrats led the current filibusters, Senators got together and said: 
We will go ahead and have up-or-down votes on these nominees.
  I believe, for the future of this institution and for the future of 
bringing good people to the judiciary, we need to fix this process once 
and for all. Whether it is a Republican President or a Democrat 
President and whether Republicans or Democrats are in control of the 
Senate, regardless of which party is in charge, good people should have 
an up-or-down vote in a timely fashion in committee as well as on the 
floor of the Senate.
  I hope we can join across the aisle and fix this. I actually thought 
we should have fixed it last year before the Presidential election. I 
tried to extend my hand across the aisle last year and say to 
Democrats: We don't know who is going to win the Presidential election, 
so let's put something in place now so that the filibuster will not 
continue after the 2004 elections.

[[Page S5418]]

  I don't think it should matter whether it is a Republican President 
or Democrat President sending nominees up here. It is OK to vote 
against them, but I don't believe that only 40 Senators of one party 
should be able to choose who is on the bench.
  The PRESIDING OFFICER. The time of the majority has expired.
  Mr. ENSIGN. Mr. President, I will conclude very briefly with this. 
For the good of our country, for the balance of powers, we need to end 
this process of filibustering good people. These good people deserve an 
up-or-down vote. It is only fair. Let's join together in a bipartisan 
fashion to do that.
  I yield the floor.
  The PRESIDING OFFICER. The minority now controls 90 minutes.
  Who yields time? The Senator from Minnesota.
  Mr. DAYTON. Mr. President, ``how a minority, reaching majority, 
seizing authority, hates the minority'' is attributed by the Library of 
Congress to a Leonard Robinson, in 1968. So I guess there is a 
historical precedent for the attitudes of the majority in the Senate 
today. The minority is treated often with contempt and disdain. 
Presiding Officers read their mail or sign photos while our Members 
speak on the Senate floor. Democratic conferees are excluded from the 
committee meetings. Our Democratic Senate leader is again smeared and 
targeted as an obstructionist. For what? For leading the minority 
party's lawful and proper dissent to the policies and practices of the 
majority, as though the expression of dissent on the floor of the 
Senate were improper or un-American or, now we are even being told, un-
Christian, when, in fact, it is the intolerance of dissent that is 
improper, undemocratic, and the charges that political or policy 
disagreements here are actions ``against people of faith'' are the 
slurs of charlatans.
  We are at this brink because during President Bush's first term, our 
Democratic caucus blocked approval of 10 of the President's judicial 
nominees, while 208 of his nominees were confirmed. That is a 95-
percent approval rate. Ninety-five percent of President Bush's judicial 
nominees were confirmed by the Senate, but that is not good enough for 
this majority and this President. Nothing less than 100 percent is 
acceptable. It has to be their way all the time.
  A President who said he was going to change the tone in Washington, 
promote bipartisanship, encourage democracy, does just the opposite. He 
demands congressional submission, insists on his way always, denounces 
and tries to destroy whoever disagrees with him.
  I am astonished that the Senate Republican leadership has flip-
flopped just because the President is now Republican instead of 
Democratic. Republicans were in the majority in the Senate for the last 
6 years of President Bill Clinton's two terms, and they certainly did 
not champion their now precious principle of an up-or-down vote for the 
full Senate for each of his judicial nominees. To the contrary, they 
themselves prevented--or condoned others preventing--69 of President 
Clinton's judicial nominees from a vote by the full Senate. Many were 
denied confirmation hearings. Sometimes one Senator singlehandedly 
blocked judicial nominations. They received no votes by the Senate, not 
by part of the Senate, not by all of the Senate, not once, not ever, 
not this year, not next year, not in 4 years, not ever--69 judicial 
nominations. Republican leaders not only defended their actions to deny 
confirmation votes to Clinton nominees, they bragged about it.

  Here are some of the statements they made at the time:

       The confirmation process is not a numbers game and I will 
     not compromise the Senate's advise and consent function 
     simply because the White House has sent us nominees that are 
     either not qualified or controversial.

  Another:

       So we are not abusing our advise and consent power. As a 
     matter of fact, I don't think we have been aggressive enough 
     in utilizing it to ensure that nominees to the Federal bench 
     are mainstream nominees. Do I have any apologies? Only one, I 
     probably moved too many judicial nominations already. When I 
     go around my State or around the country the last thing I 
     hear people clamoring for is more lifetime tenured Federal 
     judges.

  Regarding the use of the filibuster, Republican leaders were equally 
emphatic:

       It is very important that one faction or one party not be 
     able to ride roughshod over the minority and impose its will. 
     The Senate is not the House.

  The filibuster is one of the few tools the minority has to protect 
itself and those the minority represents. Clearly, what distinguishes 
the Senate as a legislative body is unlimited debate, a traditional 
aspect that most Senators have felt very important for 200 years. The 
only way to protect minority views in the Senate is through extended 
debate.
  Their judicial blocking tactics are right, but ours are wrong. Their 
use of the filibuster is good, and ours is bad. How convenient. How 
self-serving. And how wrong.
  It is bad enough that the Senate Republican leadership wants to 
change the Senate rules to suit their purposes and disregard 214 years 
of bipartisan institutional wisdom which understood and cared about the 
proper role of the Senate in our carefully designed system of checks 
and balances. As James Madison, one of our Constitution's principal 
architects, said during the Constitutional Convention in 1787:

       In order to judge the form to be given to the Senate, take 
     a view of the ends to be served by it. First, to protect the 
     people against the rulers. Second, to protect the people 
     against the transient impressions which they themselves must 
     be led.

  It is bad enough the Republican leadership wants to weaken the 
Senate's historic role and present responsibility. But what is even 
worse, much worse, is that they evidently intend to violate the 
procedures and disregard the rules by which the Senate can properly 
change one of its existing rules. They are going to use their own new 
and unprecedented procedure and disregard a ruling of the professional 
parliamentarian that their procedure violates Senate rules.
  A senior Republican aide was quoted in today's Washington Post that 
Senator Frist does not plan to consult the Senate Parliamentarian at 
the time the nuclear option is deployed. The Parliamentarian ``has 
nothing to do with this. He is a staffer and we don't have to ask his 
opinion.''
  Of course they don't because they are going to throw out the existing 
Senate rules that they do not like and make up new rules that they do 
like. Then they are going to ask the Presiding Officer, one of their 
own, to rule in their favor and then all vote to ratify what they have 
just done, even though it is wrong, and they know it is wrong.
  They can't change a wrong into a right with a vote. They cannot 
disguise a shameful abuse of power by calling it a constitutional 
option. There is nothing constitutional about violating Senate rules, 
there is nothing American about violating Senate rules, and there is 
nothing senatorial about violating Senate rules.
  In my career, I have learned to be effective in politics you have to 
become a realist. To remain effective, you have to remain an idealist. 
When I came to the Senate almost 4\1/2\ years ago, I was both realistic 
and idealistic. I knew that the legislative process brings out the best 
and the worst in people. But I thought the Senate would inspire more of 
the best. That the 1,863 men and women who had preceded me into this 
institution, many of them the best, the brightest, and the wisest of 
their generations, I thought their collective wisdom embodied in the 
Senate's rules and procedures would elevate our individual conduct and 
our collective actions and protect us and, more importantly, protect 
the American people from the missteps or the misguided attempts of one 
Senator, of a minority, or even of a majority.
  My faith in the uplifting effect of the Senate was perhaps wrong or, 
rather, it was right until now. Now we are at the brink of desecrating 
this great institution. It will be a disgrace and a desecration if the 
Republican leaders of the Senate disregard longstanding Senate rules 
and substitute their own new rules and if a majority of Senators vote 
to approve this wrongdoing.
  Everyone here should know whatever their honest differences of 
opinion about Justice Owen, unilaterally breaking rules because you do 
not like them or because you will not get your way by following them, 
is wrong. It is terribly wrong.
  Now, why would the Senate's Republican leadership do this to the 
institution? To prove what, to whom? This

[[Page S5419]]

week's Congressional Quarterly reports that the Senate majority leader 
told a group of conservative activists questioning his resolve to 
invoke the nuclear option:

       Remember, before I came here I used to cut people's hearts 
     out.

  That is a very revealing statement. Not ``saved'' hearts or 
``mended'' hearts, but cut them out.
  This ploy will cut out the Senate's heart of integrity. Why do it? 
From much of what I have read, this is being set up as a presidential 
purity test. I respect the majority leader's right to run for 
President. I respect that absolutely. I wish that it would not involve 
the institution of the Senate.
  According to the executive director of the American Conservative 
Union, if he--the majority leader--aspires to the 2008 Republican 
Presidential nomination, it is a test he has to pass. This is pass-
fail. He does not get a grade here. He cannot get a C for effort. He 
needs to deliver on this.
  So this is not a constitutional option. It is a campaign opportunity, 
except that Senate leaders are supposed to deliver the Senate from 
this, from the President--any President--demanding that every one of 
his nominees be approved by a submissive body, the Senate; from 
political zealots and ideological fanatics demanding we give up our 
role and our responsibility so they can fulfill their delusional 
rantings of how Federal judges cause everything they cannot tolerate. 
Because there is no doubt about it, getting 218 judges, instead of 208 
judges, is just their beginning. And then, by God, those judges had 
better decide every case just right for them or it is ``impeach, impale 
or eliminate.''
  Self-anointed evangelist James Dobson--recently, on a national 
televised rally appeared with the Senate Republican leader--has called 
the United States Supreme Court Justice Anthony Kennedy the ``most 
dangerous man in America,'' and he has demanded he be impeached, along 
with Justices O'Connor, Ginsburg, Souter, Breyer, and Stevens, that is, 
six of the nine members of the Supreme Court that he wants to impeach; 
a Court he has compared to Nazism and to the Ku Klux Klan.
  Not to be outdone, and this is a contest of extreme, incendiary, 
vitriolic hysterics, the director of Operation Rescue has alleged that 
the courts of this land have become a tool in the hands of the devil, 
by which the culture of death has found access.
  Pat Robertson has written that the out-of-control judiciary is the 
most serious threat America has faced in nearly 400 years of history, 
more serious than al-Qaida, more serious than Nazi Germany and Japan, 
more serious than the Civil War.
  Don Feder of Vision America claims:

       Liberal judges have declared unholy war on us, and unless 
     Christians fight back their faith, family, and freedom will 
     be lost.

  He also promised that whatever prominent Republican was willing to 
take the lead on the issue of judicial reform and impeachment will 
probably have the Republican presidential nomination in 2008.
  Not one to miss such an opportunity, House Majority Leader Tom DeLay 
declared that the judiciary has ``run amok,'' and poses a threat to 
self-government. He threatens Congress must take action to rein in the 
judiciary and that such actions must be more than rhetoric.
  And remember, before he came here, he used to exterminate things. So 
the threat of a congressional leader in running amok to take action 
against Federal judges must be taken as ominously as he undoubtedly 
intended it to be.
  God's will and Jesus's word are hijacked by false prophets like James 
Dobson and Pat Robertson. The independence of Federal judges is 
threatened by Tom DeLay. Now the integrity of the Senate's rules and 
procedures may be violated. And these are the men who want to run our 
country. They want to dictate who is elected, decide who will be 
appointed, and even determine who is on God's side, who is not.
  Well, if ever--if ever--there were a need for 51 profiles in courage 
in the Senate, it is now, to save this Senate from those who would 
savage it for their own gain. The world will note and long remember 
what we do here, and we will be judged--as we should--whether we acted 
so that, as Abraham Lincoln said, government of the people, by the 
people, and for the people shall not perish on this Earth or here in 
the Senate.
  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.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I have been traveling around my State, 
like many of my colleagues have. When I travel around, people keep 
stopping me and asking me: Why should I hear about the judges you are 
debating back in Washington DC? Whether I am in Spokane talking to 
constituents at a town meeting or in a grocery store on Saturday or 
talking to family members at home, they all want to know what we are 
talking about and why this debate matters in their lives.
  Well, my answer to those constituents, whether it is someone in a 
grocery store or just chatting with someone or a family member, is that 
we are here for a very important reason; that is, to fight for basic 
American values, values all of us hold dear. I tell them we are 
fighting for the rights of minorities so all of us have an opportunity 
for a voice and a seat at the table. I tell them we are fighting for 
the constitutional principles that were given to the Senate 200 years 
ago.
  Today, in the Senate, unfortunately, those values are under attack. 
What we see in their continuing rush for power is that some here on the 
other side want to turn this great institution simply into a 
rubberstamp for the current administration. Nowhere is that more clear 
to me than with the nomination that is in front of us tonight, and that 
is of Judge Priscilla Owen.
  Senator Frist said the other day that the only argument he has heard 
against Justice Owen is on parental consent. I happen to agree with 
Senator Frist that her views and her decisions on this subject are very 
important, but if he has not heard the arguments against Justice Owen, 
I think he has not been listening enough.
  On everything from parental consent to victims' rights, to workers' 
rights, to bias towards her campaign contributors, Justice Owen is too 
far out of the mainstream. Her radical views make a lifetime 
appointment inappropriate by this body. Let me take just a few minutes 
to talk about some of those important objections.
  In Read v. Scott Fetzer Company, a 1998 case, Justice Owen ruled that 
a rape victim--a rape victim--could not collect civil damages against a 
vacuum cleaner company that employed an in-home dealer who raped her 
while he was demonstrating the company's product even though the 
company had failed to check his references, and if they had, they would 
have found out he had harassed women at his other jobs and previously 
been formally charged and fired for inappropriate sexual conduct with a 
child. But Justice Owen ruled that rape victim could not collect civil 
damages against that company.
  I believe it is pretty clear that Justice Owen does not protect 
victims' rights.
  In another case, in GTE Southwest, Incorporated v. Bruce, a 1990 
case, Justice Owen sided with an employer whom the majority in that 
case ruled inflicted intentional emotional distress on employees when 
he subjected them to ``constant humiliating and abusive behavior,'' 
including the use of harsh vulgarities, infliction of physical and 
verbal terror, frequent assaults, and physical humiliation. Justice 
Owen wrote her own opinion to make sure it was clear she thought the 
shocking behavior was not enough to support a verdict for the workers.

  It is clear to me that Justice Owen will not protect workers' rights 
and should not be promoted to a lifetime appointment by this body.
  Justice Owen's record shows she has consistently put huge 
corporations ahead of people. She took campaign contributions from 
companies including Enron and Halliburton, and then she issued rulings 
in their favor. Many of her campaign contributions came from a small 
group of special business interests that advanced very clear 
anticonsumer and anti-choice agendas. Critically, her record has shown 
that

[[Page S5420]]

her donors enjoy greater success before her than before the majority of 
the court. Again, it is very clear to me that Justice Owen will not 
protect the rights of the people against these huge special interests 
and is not deserving of being promoted to a lifetime appointment by 
this body.
  But you do not have to just listen to me. Listen to what some of her 
colleagues on the Texas Supreme Court said about her decisions.
  In FM Properties v. City of Austin, the majority called her dissent 
``nothing more than inflammatory rhetoric.''
  In the case of In re Jane Doe III, Justice Enoch wrote specifically 
to rebuke Owen for misconstruing the legislature's definition of the 
sort of abuse that may occur when parents are notified of a minor's 
intent to have an abortion, saying:

       abuse is abuse; it is neither to be trifled with nor its 
     severity to be second guessed.

  And finally, as has been stated by my colleagues on the floor of the 
Senate, now-Attorney General Alberto Gonzales, then an Owen colleague, 
criticized her, not once, not twice, but 10 times in his rulings and 
called one of her interpretations of a parental consent law an 
``unconscionable act of judicial activism.''
  Unfortunately, this nomination is before us. This is the type of 
activist judge we are being asked to give a lifetime appointment. By 
stripping the Senate of its constitutional role, we are seeing the 
effort to pack the courts with radical judges, push an extreme agenda, 
and leave millions of Americans behind.
  That is why I say to my constituents, whether they walk up to me in a 
grocery store or it is one of my family members or somebody I am 
talking to in Spokane or Yakima or Vancouver or Bellingham, the debate 
we are having is critically important. For the people we promote to 
lifetime appointments, we need to know they will be fair and evenhanded 
and that they will protect the rights of Americans no matter where they 
live. That is why this fight is important, and that is why my 
colleagues are here on the floor of the Senate.
  I see my colleague from Illinois is on the floor. I know he is here 
to speak as well. I yield time to him.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Washington who 
has been on the floor today addressing some of the major issues we are 
considering. This is an historic debate. Although there are few people 
gathered on the Senate floor, many people across Capitol Hill and 
across the Nation are following this debate. This is the first time in 
the history of the Senate where there is an attempt being made to 
change one of the most fundamental rules and one of the most 
fundamental values of this institution. To think how many Senators have 
come and gone in the history of this body--the number is fewer than 
1,900 in total--In all of that time, no Senator has been so bold as to 
stand up and do what we understand the majority leader is likely to do 
very soon, the so-called nuclear option.
  Why in the history of this Chamber has no Senator ever done this? 
Because, frankly, it strikes at the heart of this institution. It goes 
to the value of the Senate in our Constitution. When the Constitution 
was written, the Senate was created as a different place. I served in 
the House of Representatives for 14 years. I was proud of that service, 
enjoyed it, and value the House of Representatives and its role. But it 
is a different chamber.
  The Senate was created so the minority would always have a voice. 
Think about it. There are two Senators from every State, large or 
small. Think of the rules of the Senate from the beginning which said: 
No matter who you are, what Senator you may be, you can take to this 
floor and do as I am doing at this moment, begin a debate which cannot 
be closed down unless an extraordinary majority of the Senate makes 
that decision.
  Senator Frist, now the Republican majority leader, has decided it is 
time to change that 200-year tradition, to change the rules of the 
Senate in the middle of the game. By this change, he will change a 
relationship between the Senate and the President. That is a bold move. 
It is a move we should think about very seriously. He will have Vice 
President Cheney in the chair, but that is no surprise. Every President 
and every Vice President wants more power. That is the nature of our 
Government. But the Founding Fathers understood that, not just as a 
human impulse but a political impulse. They said: The way we will 
restrain too much power in the Presidency is to have checks and 
balances, to give to other branches of Government--the judiciary and 
the legislative branch--an opportunity to check the power of the 
President. We think about that today, and the rules of the Senate were 
part of those checks and balances.
  A President can't appoint a judge to a lifetime appointment without 
the advice and consent of the Senate. In other words, the President's 
power is limited by the power of the Senate to advise and consent. The 
words were carefully chosen. The Senate wasn't directed to always 
approve the President's nominees. The President submits the nominees 
and the Senate, as a separate institution of Government, makes the 
decision as to whether those nominees will go forward. That is a 
limitation on the President's power.
  This President, when we take a look at the record of how many judges 
he has submitted and how many have been approved, has done quite well 
for himself. This is the score for President Bush since he has been 
elected President: 208 of his judicial nominees have been approved, and 
only 10 have not. More than 95 percent of this President's nominees 
have been approved by the Senate.
  How far back do you have to go to find another President with a 
batting record this good? Twenty-five years. This President has done 
better than any President in the last 25 years in having his judicial 
nominees approved. But from President Bush's point of view, from Vice 
President Cheney's point of view, it is not good enough. He wants them 
all. He wants every single one of them, without dissent, without 
disagreement, without debate in the Senate. He wants them all.
  Should every President have that power? I don't think so. Republican 
or Democrat, Presidents have to know they can go too far. They can make 
bad decisions, decisions which take America down a path that is not 
right. And they should know they will be held accountable for making 
those decisions. They should know they can come up with the names of 
nominees who are not good people for lifetime appointments and that 
when they come to the Senate, the Senate will review them and may say 
no. It is that check and balance which makes the difference.
  One of the central arguments that has been made over and over again 
about triggering the nuclear option, which Senator Frist is preparing 
to do, is the assertion that the Senate has never denied a judicial 
nominee with majority support an up-or-down vote. That argument is 
plain wrong and it is misleading. President Clinton had 61 judicial 
nominees who never received an up-or-down vote. I know. I was here. I 
watched it. I watched it as Senator Orrin Hatch and the Judiciary 
Committee buried these nominees, refused to even give them a hearing. 
An up-or-down vote? They didn't get close to even an invitation to 
Washington. Nominated by the President, they were ignored and rejected 
by the Senate Judiciary Committee. Now we have these pious 
pronouncements that every judicial nominee deserves an up-or-down vote. 
I don't know if it is the water in Washington, water out of the Potomac 
River. It seems to create political amnesia among those who serve in 
the Senate. Some of the same Senators on the Republican side who have 
come to the floor and said every nominee deserves an up-or-down vote 
were the Senators who were stopping the nominees of President Clinton 
without so much as a hearing.

  ``We want fairness.'' They sure didn't want fairness when it came to 
that President and his nominees.
  I am sure the vast majority of them, probably all of them, would have 
had majority support, had they received an up-or-down vote. But they 
were stopped in committee. I know it. I used to go and plead for judges 
from Illinois nominated by President Clinton. I can recall Senators--
and I won't name names; I could--who just told me no. We are not going 
to let President Clinton fill these courts. We are hoping he will be 
gone soon, and we will put a Republican President in. We will take

[[Page S5421]]

care of those vacancies. We have some people we want to put on those 
spots. The fairness of an up-or-down vote wasn't the case around here 
at all. It was fundamentally unfair.
  The Republicans exercised their filibusters, these pocket 
filibusters, against 61 nominees from President Clinton's White House 
who never received a vote in the Judiciary Committee. And the myth of 
the up-or-down vote is also demonstrated by looking at the history of 
Supreme Court nominations.
  Norman Ornstein is well recognized on Capitol Hill, a thoughtful man. 
He pointed out today in an article in a newspaper known as Roll Call 
that there have been 154 nominations in our Nation's history to the 
Supreme Court. Of that 154, 23 never received an up-or-down vote; 1 out 
of 7 of the Supreme Court nominees never received an up-or-down vote. 
What a weak argument from the other side.
  Not only does history argue they are wrong, their memories should 
argue they are wrong. They didn't offer an up-or-down vote to those 
nominees from President Clinton.
  Let's talk about this particular circuit. Let's talk about what 
happened here in the context of the Priscilla Owen nomination for the 
Fifth Circuit. Justice Owen is the only judicial nominee ever nominated 
by the President on two occasions after being rejected by the Senate 
Judiciary Committee. Never before has a judicial nominee received a 
negative vote in committee and been confirmed by the Senate. The 
Republican leadership speaks at great length about the unprecedented 
maneuvers of Democrats, but their strategy on this nominee is a first. 
Surely Justice Owen and Charles Pickering, the former embattled nominee 
to the Fifth Circuit, are not the only people qualified to serve on 
that circuit. It is a circuit that covers the States of Texas, 
Louisiana, and Mississippi. This is an area of roughly 30 million 
people. It is amazing to me that President Bush and his fine people in 
the White House couldn't find another name to bring to us for that 
important court.
  Justice Owen has been given two confirmation hearings, something 
which 61 Clinton nominees never had a chance to receive. Three of 
President Clinton's nominees for the very same circuit were denied even 
a single hearing. Let's take a look at these nominees.
  Enrique Moreno, an accomplished trial attorney, nominated on 
September 16, 1999, by President Clinton to fill a vacancy in the Fifth 
Circuit. No hearing. No committee vote. No floor vote. Certainly, no 
up-or-down vote. I would hope that my friends on the Republican side 
would scratch their heads and search their memories and remember 
Enrique Moreno when they say every nominee is entitled to an up-or-down 
vote. He was found qualified. He was turned down to keep the vacancy, 
in the hopes of the Senate Republicans, that a Republican President 
would come along to fill it.

  Let's look at another nominee in the same circuit. Jorge Rangel, a 
law firm partner, a former Texas district court judge, was nominated 
July 24, 1997. No hearing. No committee vote. No floor vote. This 
qualified man languished for months, waiting for his chance for even a 
hearing before the Judiciary Committee. But the Senate Republicans 
said, no; this wasn't about filling a vacancy. It was about keeping a 
vacancy so they, in the hopes of the next election, could fill it.
  Finally, look at Alston Johnson. He was in a major law firm, 
nominated April 22, 1999, by President Clinton. He was renominated in 
2001. He never received a hearing when Senator Hatch was chairman of 
the Judiciary Committee. He never received a committee vote. Certainly, 
he had no up-or-down floor vote. Why? To keep the vacancy alive for 
Priscilla Owen, in the hopes that someday there would be a Republican 
President who could fill it.
  The Judiciary Committee chairman, Orrin Hatch, denied each of these 
nominees a vote and a hearing. Now the Republicans want to reap the 
benefits of their delay tactics. But they don't come to this with clean 
hands. This vacancy exists today because three people were treated very 
poorly. They never received the benefit of the hearing that Priscilla 
had. They never had the committee vote that Priscilla Owen had. They 
were not debated on the floor. They say she should be confirmed because 
she has a ``well-qualified'' rating by the American Bar Association. 
Let me tell you, it is an argument of convenience. The nominees I just 
mentioned--Jorge Rangel, Enrique Moreno, and Alston Johnson--all had 
ratings of ``well-qualified''. But their nominations were buried by 
Senator Hatch. So this ``good housekeeping seal of approval,'' the ABA 
rating, meant nothing to the Senate Republicans when it came to the 
Clinton nominees.
  Much has been said today on the floor about Justice Owen's record in 
preventing pregnant minors in Texas from receiving abortions through a 
process known as a ``judicial bypass.'' What is that all about? Most 
States, in writing laws, say when it comes to a minor seeking an 
abortion, there can be extraordinary circumstances when parental 
consent is not appropriate. We can think about those. There are victims 
of incest. You would not expect the victim to go to the family member 
who perpetrated that crime for permission for an abortion. So they 
create a process where those victims, with the help of an advocate, can 
go to court and say to the court: My circumstances are unusual. I 
should be treated differently and given a different opportunity.
  We have heard the comment made by then-Texas Supreme Court justice, 
and now our Attorney General, Alberto Gonzales. When Priscilla Owen 
issued an opinion in the case involving judicial bypass, he said--
Attorney General Gonzales--that her dissenting position in this case:

       It would be an unconscionable act of judicial activism.

  That is the Attorney General of the United States commenting on the 
record of Priscilla Owen, who the administration is now propounding to 
fill this vacancy.
  Make no mistake, the vote on this nominee, Priscilla Owen, is not a 
referendum on the contentious issue of abortion. I don't oppose her 
because we differ on abortion rights. In fact, we have confirmed 208 of 
President Bush's judicial nominees, over 95 percent. Trust me, the vast 
majority of them do not share my view on the issue of abortion. But 
that is not the test, nor should it be. We expect President Bush to 
nominate people who have a position on abortion that may differ from 
mine. That doesn't disqualify anybody. That is why 95 percent of his 
nominees have been approved, despite those differences.
  In my view, the Owen nomination is not just about abortion. I oppose 
her because I don't believe she has taken an evenhanded or moderate 
approach to applying the law. What distinguishes this nominee, 
Priscilla Owen, from other judges being confirmed is that she has 
repeatedly demonstrated her unwillingness to apply statutes and court 
decisions faithfully--on the issue of abortion and many other issues.
  There is no dispute that Justice Owen is a woman of intellectual 
capacity and academic accomplishment. The question before the Senate, 
however, is whether she exhibits the balance and freedom from rigid 
ideology that must be the bedrock of a strong Federal judiciary. The 
answer, regrettably, is no.
  Although the Senate is once again a house divided, concerns about 
Justice Owen cross party lines. Those who know her the best, including 
colleagues on the Republican-dominated Texas Supreme Court, have 
repeatedly questioned the soundness of her logic, her judgment, and her 
legal reasoning during her 10 years on that court.

  Consider some of the published comments of her colleagues on the 
Texas Supreme Court.
  In the case of FM Properties v. City of Austin, Justice Owen 
dissented in favor of a large landowner which sought to write its own 
water quality regulations. The court majority wrote:

       Most of Justice Owen's dissent is nothing more than 
     inflammatory rhetoric and thus merits no response.

  That was the majority of the Texas Supreme Court. Think about it. 
Attorney General Gonzales says she has taken part in unconscionable 
acts of judicial activism. The majority of her Texas Supreme Court says 
her dissent is nothing more than inflammatory rhetoric in this case.
  Then look at her dissenting opinion in the case of Fitzgerald v. 
Advanced Spine Fixation Systems, in favor of limiting liability for 
manufacturers who made harmful products that injured innocent people. 
What they said

[[Page S5422]]

was that her dissent would in essence ``judicially amend the statute to 
add an exception not implicitly contained in the language of the 
statute.'' To put it in layman's terms, she is not being a judge, she 
is being a legislator and is writing law.
  According to the majority, her dissent in a case involving the Texas 
open records law, City of Garland v. Dallas Morning News here is what 
the majority of the court said about this nominee, Priscilla Owen:

       Effectively writes out the . . . Act's provisions and 
     ignores its purpose to provide the public ``at all times to 
     complete information about the affairs of government and the 
     official acts of public officials and employees.''

  According to six justices, including three appointed by George W. 
Bush when he was Governor of the State, Justice Owen's dissenting 
opinion in Montgomery Independent School District v. Davis is guilty of 
``ignoring credibility issues and essentially stepping into the shoes 
of the fact-finder to reach a specific result.''
  In other words, she is picking and choosing the evidence without 
treating it fairly. Who said that? Six justices on her own Texas 
Supreme Court. Three of them were appointed by George W. Bush. Her 
colleagues said that Owen's dissent, in this case against a teacher who 
was unfairly fired ``not only disregards the procedural limitations in 
the statute but takes a position even more extreme than that argued for 
by the [school] board.''
  Judges can and should have lively debate over how to interpret the 
law. Senator Cornyn, our colleague from Texas, tried to assure us that 
judges in Texas always talk this way. But Justice Owen's tenure on the 
Texas Supreme Court is remarkable for both the frequency and intensity 
with which her fellow Republicans on the court have criticized her for 
exceeding the bounds of honest disagreement. These are Republican 
fellow justices carping, not Democrats. They are fellow justices, 
appointed by Governor George W. Bush and others.
  According to those who served with her and know her best, she has 
often been guilty of ignoring plain law, distorting legislative 
history, and engaging in extreme judicial activism.
  All too often during her judicial career, Justice Owen has favored 
manufacturers over consumers, large corporations over individual 
employees, insurance companies over claimants, and judge-made law over 
jury verdicts. This pattern is consistent with her State court campaign 
promises. But it ill suits a person seeking a lifetime appointment to 
the Federal bench who promises to be fair and balanced.
  Let me mention one example, a case I asked Justice Owen about at her 
hearing in 2002, Provident American Insurance Company v. Castaneda. 
Justice Owen, writing for a divided court, ruled in favor of an 
insurance company that tried to find anything in its policy to avoid 
paying for critical surgery for a young woman named Denise Castaneda.
  Denise suffered from hemolytic spherocytosis, a genetic condition 
causing misshapen blood cells, and she needed to have her spleen and 
gallbladder removed. Denise's parents obtained preapproval for the 
surgery, yet Justice Owen allowed the insurance company to deny 
coverage, in clear bad faith of their contractual obligation.
  One of her colleagues on the court who disagreed with her in this 
case, Justice Raul Gonzalez, said Justice Owen's opinion ``ignores 
important evidence that supports the judgment . . . and resolves all 
conflicts in the evidence against the verdict [for the family that was 
denied coverage].''
  Justice Raul Gonzalez concluded:
       If the evidence of this case is not good enough to affirm 
     judgment, I do not know what character or quantity of 
     evidence would ever satisfy the Court in this kind of case.
  Nor is it easy to satisfy Justice Owen in the judicial bypass cases. 
Her tortured reasoning in cases involving the Texas parental 
notification law exhibits the same inclination by Justice Owen for 
judicial activism I discussed earlier.
  I am alarmed by her attempt to force young women seeking a legal 
judicial bypass under Texas law to demonstrate that they considered 
religious issues in their decision whether they were to have an 
abortion. This religious awareness test has no support in Supreme Court 
case law. She may view it as something to be added to the law. It is 
not the law. And when judges go beyond the clear limits of the law, 
they are writing the law, and that is not their responsibility.
  Justice Owen told the Judiciary Committee she would not be an 
activist, that she would merely follow the law. That is a safe answer. 
We hear it from every nominee. But when it comes to the issue of 
abortion, the law is not well settled. One study shows that of 32 
circuit court cases applying the 1992 case Planned Parenthood of 
Southeastern Pennsylvania v. Casey, only 15 of those cases were decided 
by unanimous panels. So in a majority of the cases, judges viewing 
identical facts and laws reached different conclusions.
  Priscilla Owen is a member and officer of the Federalist Society. If 
you have never heard of it, this is the secret handshake at the White 
House. If you are a member of the Federalist Society, you are much more 
likely to progress, to have a chance to serve for a lifetime on the 
bench. I have tried, as nominees would come before the Judiciary 
Committee, to ask them: What is the Federalist Society? Why is it so 
important that resumes for would-be judges be checked by the Federalist 
Society for the Bush White House to consider you?
  I asked Priscilla Owen if she agreed with the Federalist Society's 
published mission statement which says:

       Law schools and the legal profession are currently strongly 
     dominated by a form of orthodox liberal ideology which 
     advocates a centralized and uniform society.

  Here is her response:

       I am unfamiliar with this mission statement . . . I have no 
     knowledge of its origin or its context.

  She ducked the question. I can only conclude that she does not find 
that mission statement repugnant. She joined the Federalist Society, 
and that is the viewpoint.
  It is a small organization. Fewer than 1 percent of lawyers across 
America are members of this Federalist Society. Yet over one-third of 
President Bush's circuit court nominees are members of the Federalist 
Society. If you do not have a Federalist Society secret handshake, 
then, frankly, you may not even have a chance to be considered 
seriously by the Bush White House.
  When it comes to nominees to the appellate court, the White House has 
made political ideology a core consideration. President Bush did not 
take office with a mandate to appoint these kinds of judges. He lost 
the popular vote in his first election, won the electoral vote by a 
decision of the Supreme Court, and came back in this last election and 
won by virtue of one State. Had Ohio gone the other way, he would not 
be President today. What kind of mandate is that for rewriting the 
courts and the laws that they consider?

  The Nation needs more judicial nominees who reflect the moderate 
views of the majority of Americans and who have widespread bipartisan 
support. Priscilla Owen is not one of them. I do not believe this 
nominee should receive a lifetime appointment, and I do not believe she 
is worth a constitutional confrontation.
  Today we had a gathering on the steps of the Senate of Democrats 
serving in the House and the Senate. We were glad that our colleagues 
from the House came over to support us in this debate on the nuclear 
option. They do not have the constitutional responsibility of 
confirming nominees to the court, but they understand a little bit 
about debate.
  Sadly, in the House of Representatives since I left, debate has 
virtually come to a standstill. Efforts are being made to close down 
debate, close down amendments. The House meets 2 or 3 days a week, if 
they are lucky, and goes home accomplishing very little except the most 
basic political agenda. What a far cry from the House of 
Representatives in which I served. We used to go on days, sometimes 
weeks, on critically important issues such as the spread of nuclear 
weapons around the world. They were hotly contested debates. There were 
amendments that passed by a vote or two where we never knew the outcome 
when we cast our vote. It does not happen anymore. The House of 
Representatives has shut down debate, by and large, and when they get 
to a rollcall vote that is very close, they will keep the rollcall vote 
open for hours, twisting the arms of

[[Page S5423]]

Congressmen to vote the way the leadership wants them to.
  That is what is happening in the House. Sadly, that is what happens 
when a group is in power for too long. They forget the heritage of the 
institution they are serving. All that counts is winning, and they will 
win at any cost.
  That is what is happening in this debate. There are forces in the 
Senate that want to win at any cost, but the cost of the nuclear option 
is too high. The cost of the nuclear option means we will turn our back 
on a 200-year-plus tradition. We will turn our back on extended debate 
and filibuster so this President can have more power.
  You wonder if 6 Republicans out of 55 are troubled by this. That is 
what it comes down to. If 6 Republicans believe this President has gone 
too far, that is the end of the debate on the nuclear option--6 out of 
55. It is possible it could reach that point where six come forward. I 
certainly hope they do. They will be remembered. Those six Republicans 
who step forward and basically say the President is asking for too much 
power, those six Republicans who say the special interest groups that 
are pushing this agenda so the President will have every single 
judicial nominee, those six Republicans will be remembered. They will 
have stood up for the institution.
  It will not be popular. In some places I am sure they are going to be 
roundly criticized, and they may pay a political price. But we would 
like to think--most of us do--that at that moment in time when we are 
tested to do the right thing, even if it is not popular, we will do it. 
I certainly hold myself to that standard. Sometimes I meet it, 
sometimes I fail.
  For those who are considering that today, I say to them there has 
never been a more important constitutional debate in the Senate in 
modern memory. Robert C. Byrd, the Senator from West Virginia, comes to 
the floor every day and carries our Constitution with him in his 
pocket. He has written a two- or three-volume history of the Senate. He 
knows this institution better than anybody.
  I have listened to Senator Byrd, and I have measured the intensity of 
his feeling about this debate. It is hard for anyone to describe what 
this means to Senator Byrd. He believes what is at stake here is not 
just a vote on a judge. What is at stake here is the future of the 
Senate, the role of the issues, such as checks and balances, and I 
agree with him.
  My colleagues made an argument that we have to go through these 
judicial nominees and approve them because we face judicial 
emergencies. Let me read what Senator Frist, the Republican majority 
leader, said on May 9:

       Now, 12 of the 16 court of appeals vacancies have been 
     officially declared judicial emergencies. The Department of 
     Justice tells us the delay caused by these vacancies is 
     complicating their ability to prosecute criminals. The 
     Department also reports--

  According to Senator Frist--

     that due to the delay in deciding immigration appeals, it 
     cannot quickly deport illegal aliens who are convicted 
     murderers, rapists, and child molesters.

  That was Senator Frist's quote on May 9, waving the bloody shirt that 
if we do not move quickly on judicial nominees, it will leave vacancies 
that allow these criminals on the street.
  Facts do not support what Senator Frist said. In fact, you have to go 
back to 1996 to find a lower number of judicial emergencies. Think 
about this. In 1994, there were 67 judicial emergencies, meaning 
vacancies that badly needed to be filled. That, of course, was during 
the Clinton years, when many of the Republicans were not holding 
hearings and insisting we didn't need to fill vacancies. Today the 
number of judicial emergencies is 18. What a dramatic difference.
  I think it is clear. There are fewer judicial emergencies now than 
there have been in the last 9 or 10 years. For any Senator to come to 
the floor and argue that we are creating a situation where criminals 
are roaming all over the streets--where were these same critics during 
the Clinton years when there were many more judicial emergencies and 
they were turning down the Clinton nominees, denying them even an 
opportunity for a hearing?
  I think this debate is going to test us--in terms of the future of 
the Senate, in terms of our adherence to our oaths to protect and 
defend the Constitution of the United States.
  Janice Rogers Brown is also a nominee who will likely follow 
Priscilla Owen to the floor. She, too, has been considered not only in 
committee but also on the floor, and she will have her nomination 
submitted for us to consider again.
  She, of course, is looking for appointment to the second highest 
court in the land, the DC Circuit Court of Appeals. I have heard my 
colleagues, Senator Boxer and Senator Feinstein, from Judge Janice 
Rogers Brown's home State of California, describe some of the things 
she has said during the course of serving as a judge. To say she is out 
of the mainstream is an understatement. She is so far out of the 
mainstream on her positions that you find it interesting that, of all 
of the conservative Republican attorneys and judges in America, this is 
the best the White House can do, to send us someone who has such a 
radical agenda that she now wants to bring to the second highest court 
in the land. And that is what we are up against.
  There are some who argue, Why don't you just step aside? Let these 
judges come through. I hope it doesn't come to that. But I hope it does 
come to a point that we make it clear the nuclear option is over. I 
believe Senator Harry Reid, the Democratic leader, has said and I 
believe that we will conscientiously review every single nominee. The 
President can expect to continue to receive 95-percent approval, unless 
he changes the way he nominates judges--maybe even better in the 
future. But for us to change the rules of the Senate may give this 
President a temporary victory. It may have some special interest groups 
calling Senator Frist, the Republican majority leader, congratulating 
him. But, frankly, it will not be a day of celebration for those who 
value the Constitution and the traditions of the Senate.
  At this point I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to the floor this evening to join 
my colleagues to talk about the Senate's deliberations on some of our 
administration's judicial nominations. It is very clear to me this is a 
debate about basic American values. In drafting the Constitution, the 
Framers wanted the Senate to provide advice and consent on nominees who 
came before us to ensure that these very rights and values were 
protected. I believe as a Senator I have a responsibility to stand up 
for those values on behalf of my constituents from my home State of 
Washington.
  Many activists today are complaining that certain Senators are 
attacking religious or conservative values. I must argue that it is 
others, not Democratic Senators, who are exercising their rights, who 
are pursuing a nomination strategy that attacks the basic values that 
were outlined in our Constitution.
  Our democracy values debate. It values discussion. Our democracy 
values the importance of checks and balances. Our democracy values an 
independent judiciary. But with this nuclear option and the rhetorical 
assault that is being launched at Democratic Senators by activists 
around the country, we now see those values under attack. The nuclear 
option is an assault on the American people and many of the things we 
hold dear. It is an attempt to impose on the country, through lifetime 
appointments, the extreme values held by a few at the cost of many. It 
is the tyranny of the majority personified. Confirming these nominees 
by becoming a rubberstamp for the administration would be an affront to 
the 200-year-old system we have in place, a system of checks and 
balances. At the same time I have to say it would be an affront to the 
values I promised to defend when I came to the Senate.

  It is not always easy. Building and maintaining a democracy is not 
easy. But our system and the rights and the values it holds dear are 
the envy of the world. In fact, the entire world looks at us as a model 
for government. It is our values they look to. We have to protect them, 
not only for us but for other fledgling democracies around the world.
  I returned recently from a bipartisan trip we took to Israel, Iraq, 
Georgia, and Ukraine, where we saw up close leaders who are working 
very hard to

[[Page S5424]]

write constitutions, to write laws, to write policies. They were 
working hard, all of them, to assure that even those who did not vote 
in the majority in their country would have a voice.
  The challenges were varied in every country we went to. They faced 
everything from protecting against terrorists to, in some cases, 
charging for electricity for the first time, to, in other cases, 
reforming corrupt institutions. But making sure that democracies 
survive means having debates, it means bringing people to the table, 
and it means making tough decisions. But in each case, the importance 
of not disenfranchising any group within that country was an important 
part of making sure that democracy worked.
  So how we in this country accomplish the goal of sustaining a strong 
democracy and ensuring people--all people--participation is extremely 
important.
  Elections are the foundation of our democracy. They actually 
determine the direction of our country. But an election loss doesn't 
mean you lose your voice or you lose your place at the table. Making 
sure we all have a seat at the table is increasingly important to keep 
our democracy strong. That is why those of us on this side are fighting 
so hard to keep our voice, to have a seat at the table.
  Recently we have heard a lot from the other side about attacks on 
faith and values. In fact, some are trying to say our motive in this 
debate is somehow antifaith. I have to argue that just the opposite 
appears to me to be true. We have faith in our values, we have faith in 
American values, and we have faith that those values can and must be 
upheld.
  This is not an ideological battle between Republicans and Democrats, 
it is about keeping faith with the values and ideals our country stands 
for. Having values and having faith in those values requires--requires 
that we make sure those without a voice are listened to. Speaking up 
for those in poverty to make sure they are fed is a faith-based value. 
Making sure there is equal opportunity and justice for the least among 
us is a faith-based value. Fighting for human rights, taking care of 
the environment, are faith-based values.
  To now say those of us who stick up for minority rights are antifaith 
is frightening and, frankly, it is wrong. I hope those who have decided 
to make this into some kind of faith/antifaith debate will reconsider. 
This debate should be about democracy. It should be about the 
protection of an independent judiciary. And certainly it is a debate 
about the rights of minorities.
  Our system of Government, of checks and balances, and our values, are 
under attack today by this very transparent grab for power. They are, 
with their words and potential actions, attempting now to dismantle 
this system despite the clear intent of the Framers and the weight of 
history and precedent. They think they know better, and I think not.
  Today, it is fashionable for some of my colleagues on the other side 
of the aisle to disparage what they call activist judges. But this 
power grab, this nuclear option reveals the true motivation. There are 
those who want activists on the bench to interpret the law in a way I 
believe undermines important American values.
  I believe we have a responsibility to stand up and say no to extreme 
nominees. But to know that, you do not need to listen to me. Just look 
back at the great Founders of this democracy. The Framers, in those 
amazing years when our country was founded, took very great care in 
creating this new democracy. They wrote into the Constitution the 
Senate's role in the nomination process. They wrote into the 
Constitution and spoke about protecting the minority against the 
tyranny of the majority and their words ring true today.
  James Madison, in his famous Federalist No. 10, warned against the 
superior force of an overbearing majority or, as he called it, a 
dangerous vice.
  He said:

       The friend of popular governments never finds himself so 
     much alarmed for their character and faith as when he 
     contemplates their propensity to this dangerous vice.

  Years prior, John Adams wrote in 1776 on the specific need for an 
independent judiciary and checks and balance. 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 on an upright and skillful 
     administration of justice that the judicial power ought to be 
     distinct from both the legislative and executive and 
     independent upon both so that it may be a check upon both as 
     both should be checks upon that. The Judges therefore should 
     always be men of learning and experience in the laws, of 
     exemplary morals, great patience, calmness, coolness and 
     attention. Their minds should not be distracted with jarring 
     interests; they should not be dependent on any man or body of 
     men.

  I have to shudder at the thought of what some of the great thinkers, 
the great Founders of our democracy, would say to this attempted abuse 
of power. Frankly, one of the best interpretations of the thoughts was 
offered to this Senate by Robert Caro, the great Senate historian. He 
wrote a letter in 2003 and he talked about the need for the Senate to 
maintain its history and its traditions despite popular pressures of 
the day and of the important role that debate and dissension plays in 
any discussion of judicial nominations. In particular, he wrote of his 
concern for the preservation of Senate tradition in the face of 
attempted changes by a majority run wild.
  He said, in part:

       In short, two centuries of history rebut any suggestion 
     that either the language or intent of the Constitution 
     prohibits or counsels against the use of extended debate to 
     resist presidential authority. To the contrary, the nation's 
     Founders depended on the Senate's members to stand up to a 
     popular and powerful president. In the case of judicial 
     appointments, the Founders specifically mandated the Senate 
     to play an active role providing both advice and consent to 
     the President. That shared authority was basic to the balance 
     of powers among the branches.
       I am . . . attempting to say as strongly as I can that in 
     considering any modification Senators should realize they are 
     dealing not with the particular dispute of the moment, but 
     with the fundamental character of the Senate of the United 
     States, and with the deeper issue of the balance of power 
     between majority and minority rights.

  Protection of minority rights has been a fundamental principle since 
the infancy of this democracy. It should not--in fact, it cannot--be 
laid to rest in this Chamber with this debate.
  I know there are a lot of people wondering why the Senate is spending 
so much time talking about Senate rules and judicial nominations. They 
are wondering why I am talking about nominees and quoting Madison and 
Adams. They are wondering what this means to them.
  I make it clear: This debate is about whether we want a clean, 
healthy environment and the ability to enforce our laws to protect it 
fairly. This debate is about whether we want to protect essential 
rights and liberties. This debate is about whether we want free and 
open government. This debate is about preserving equal protection under 
the law. This debate is about whether we want to preserve the 
independent judiciary, whether we want to defend the Constitution, and 
whether we will stand up for the values of the American public.
  I believe these values are too precious to abdicate. Trusting in 
them, we will not let Republicans trample our rights and those of 
millions of Americans who we are here to represent. We will stand and 
say yes to democracy, yes to an independent judiciary, yes to minority 
rights, and no to this unbelievable abuse of power.
  I see my colleague from New York is here, and I know he has time 
tonight, as well.
  I yield the floor.
  The PRESIDING OFFICER (Mr. DeMint). The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I compliment my friend and 
colleague from the great State of Washington for her outstanding 
remarks and leadership on this issue. She knows, because of her 
experience and her compassion and humanity, what this nuclear option 
would mean to this Senate. I thank the Senator for her leadership.
  Mr. President, there are so many things to say here. The idea of 
blowing up the Senate, literally, almost, at least in terms of the 
rules, at least in terms of comity, and at least in terms of 
bipartisanship, all because 10 judges have not been approved, is just 
appalling.
  I mentioned earlier today, it seems like a temper tantrum if we do 
not get our way on every single one, say the hard-right groups, we will 
show them they cannot stop us on anything. That is how ideologues 
think. That is how

[[Page S5425]]

people who are so sure they have the message from God or from somebody 
else, that they know better than everyone else, that is how they think. 
They cannot tolerate the fact that some of these judges, a small 
handful, have been held up.
  We can tell in the debate today where the enthusiasm and the passion 
is. There is a weariness on the other side of the aisle. My guess is 
that more than half of those on the other side, if it were a secret 
ballot, would vote against the nuclear option. They know it is wrong. 
Ten have said to me: I am under tremendous pressure; I have to vote for 
it. The reason the majority leader has not called for a vote is because 
of the courageous handful who have resisted the pressure. Four of them 
have told me of the pressure on them.
  We used to hear about these groups influencing things. Does anyone 
have any doubt that if not for the small groups, some dealing with 
social issues because they think America has been torn away from them, 
some deal with economic issues--they hate the fact that the commerce 
clause actually can protect workers. Their idea is that self-made 
businessman should not pay taxes, should be able to discriminate, 
should be able to pollute the air and water.
  Janice Rogers Brown basically stands for the philosophy of the 1890s 
and said over and over again that we should go back to the days when if 
you had a lot of money and power, you could do whatever you wanted. It 
is an abnegation of history, of the knowledge we have learned. It is an 
abnegation of the free market principles are the best principles.
  But we have learned over the years they need some tempering and some 
moderation. That is why we do not have the booms and busts that 
characterized America from 1870 to 1935. That is why people live 
better. Not because corporate America did good for them. They did do 
some good, and they do more good now. It was through unionization, 
through government rules that we transformed America from a nation of a 
very few rich, a small middle class, and a whole lot of poor people, 
into an America that had more rich people, a large--gigantic, thank 
God--middle class, and still too many poor people but fewer poor 
people.
  But Janice Rogers Brown believes all government regulation is wrong. 
She believes the New Deal was a socialist revolution that had to be 
undone. Do mainstream conservatives believe that? Is it any wonder even 
the Chamber of Commerce is against the nuclear option? No.
  There are so many points I wish to make, and fortunately it seems we 
will have a lot of time to make these points. I will focus on something 
that has not been focused on before, and that is this idea of an up-or-
down vote.
  First, we have had votes. Yes, the other side has needed 60 to 
prevail on the small number of judges we have chosen to filibuster. 
Yes, certainly there has not been a removal of cloture, but the bottom 
line is we have had votes, unlike when Bill Clinton was President and 
60 judges were pushed aside and not given a vote.
  The other point of the up-or-down vote is let 51 votes decide, let's 
each come to our own decision as we weigh the judges.
  Let me show the independence of the decisions that have been made by 
those on the other side.
  This is a compilation of all the votes taken by Republican Members of 
the Senate for every one of President Bush's court of appeals nominees. 
There have been 45. How many times has any Republican voted against any 
1 of those 45 at any single vote? If, of course, we were all coming to 
an independent decision, do you think there would be 100, 200, 300 out 
of the 2,700-some-odd votes cast? You would think so. Independent 
thinking, let's have an up-or-down vote. Here is what it is: 2,703 to 
1. Let me repeat that because it is astounding: 2,703 ``yes'' votes by 
Republicans for court of appeals nominees--45 of them--and 1 vote 
against.
  Now, how is that? First, people ask, Well, who is the one vote? Why 
did one person, at one point, dissent from the marching lockstep to 
approve every single nominee the President has proposed? Well, I will 
tell you who it was. It was Trent Lott, the former majority leader. On 
what judge? On Judge Roger Gregory, who was nominated by Bill Clinton 
to be the first Black man to sit on the Fourth Circuit, which has a 
large black population. It is Virginia, North Carolina, South 
Carolina--I am not sure if it has Georgia in it or not; I think not 
Georgia.
  And when President Bush renominated him, Trent Lott voted against 
him, maybe to help his friend, Jesse Helms, who blocked every nominee 
and certainly every African-American nominee on the Fourth Circuit. 
That is it. That is Trent Lott right there on Roger Gregory. Trent Lott 
on every other nominee, every other Republican Senator on every 
nominee: 100 percent of the time they voted for the President's 
nominee.
  So this idea that we are a deliberative body, and we are going to 
look at each person on the merits, I heard our majority leader say: 
Let's look. Do you know what this means? Do you know what this spells, 
these numbers? R-U-B-B-E-R-S-T-A-M-P. This Senate, under Republican 
leadership, has become a complete rubber stamp to anyone the President 
nominates. Did maybe one of those nominees strike a single Member of 
the other side as going too far on a single issue? Did maybe one of 
those nominees do something that merited they not be on the bench? Did 
maybe one of those nominees not show judicial temperament? I guess not. 
Rubber stamp: 2,703 to 1. Once was there a dissent, only once, and on 
Roger Gregory, the first African-American nominee to the Fourth 
Circuit.
  So what is happening here is very simple. The hard-right groups, way 
out of the mainstream, not Chambers of Commerce or mainstream churches, 
but the hard-right groups, as I said, either some who believe, almost 
in a theocratic way, that their faith--a beautiful thing--should 
dictate not just their politics but everyone's politics, and some, from 
an economic point of view, who do not believe there should be any 
Federal Government involvement in regulating our industries, our 
commerce, et cetera--these groups are ideologues. They are so certain 
they are right.
  They have some following in this body, but it is not even a majority 
of the Republican side of the aisle. And they certainly do not 
represent the majority view of any Americans in any single State. But 
they have a lot of sway. And until this nuclear option debate occurred, 
they had very little opposition. People did not know what was going on. 
And now, of course, this debate allows us to expose the lie.
  Let me say another thing about this idea. One out of every five 
Supreme Court nominees who was nominated by a President in our history 
never made it to the Supreme Court. The very first nominee, Mr. 
Rutledge, nominated by George Washington, was rejected by the Senate, 
in a Senate that had, I believe it was, eight of the Founding Fathers. 
Eight of the twenty-two people who voted in the Senate had actually 
signed the Constitution, defining them as Founding Fathers. Did they 
have votes like this? Of course not because the Founding Fathers, in 
this Constitution, wanted advice and consent. They say in the 
Federalist Papers, they wanted the President to come to the Senate and 
debate and discuss.
  Has any Democrat been asked? Has Patrick Leahy, our ranking member of 
Judiciary, been asked about who should be nominees in these courts? Has 
there been a give-and-take the way Bill Clinton regularly called Orrin 
Hatch, chairman of the Judiciary Committee? There is a story, I do not 
know if it is apocryphal, that Orrin Hatch said: You can't get this guy 
for the Supreme Court. You can't get this guy, but Breyer will get 
through. And President Clinton nominated Breyer. Did Stephen Breyer 
have Orrin Hatch's exact political beliefs? No. Did he have Bill 
Clinton's exact ones? No. It was a compromise. That is what the 
Constitution intended.
  But when a President nominates judges through an ideological 
spectrum, when he chooses not moderates, and not even mainstream 
conservatives, but people who are way over--way over--we have 
safeguards. One of those safeguards is the filibuster. It says to the 
President: If you go really far out and do not consult and do not trade 
off, you can run into trouble.
  Well, George Bush did not consult. He did what he said in the 
campaign,

[[Page S5426]]

that he was going to nominate ideologues. He said: I am going to 
nominate judges in the mold of Scalia and Thomas. There probably should 
be a few Scalias on our courts. They should not be a majority. And Bush 
nominates a majority. And he is now sowing what he has reaped--or 
reaping what he has sown. I come from New York City. We do not have 
that much agriculture, although I am trying to help the farmers 
upstate.
  So that is the problem. This is not the Democrats' problem. This is 
the way the President has functioned in terms of judicial appointments. 
This is the way the Republican Senate, to a person, has been a rubber 
stamp without giving any independent judgment.
  This is the way the Founding Fathers wanted we Democrats and the 
Senate as a whole to act. And that is what we are doing.
  And then, when they do not get their way--quite naturally, we did 
what we are doing--they throw a temper tantrum. They say: We have to 
have all 100 percent. I want to repeat this because this was said by 
someone--I do not remember who--but I think it is worth saying. If your 
child, your son or daughter, came home and got 95 percent on a test, 95 
percent, what would most parents do? They would pat him or her on the 
head and say: Great job, Johnny. Great job, Jane. Maybe try to do a 
little better, but you have done great. I am proud of you.
  When President Bush gets the 95 percent, he does not do that. 
President Bush would advise--what he is doing, in effect, is saying to 
Johnny or Jane: You only got 95 percent?
  This is not what President Bush does. It is what the far-right groups 
do, the hard-line far right. Only 95 percent? Break the rules and get 
100 percent. What parent would tell their child that? Yet that is what 
these narrowminded groups are saying. And wildly enough, the majority 
leader and most--and thank God, not yet all--of his caucus is agreeing. 
Break the rules, change the whole balance of power and checks and 
balances in this great Senate and great country so we don't have 95 
percent, but 100 percent.
  What is it that is motivating them? Some say it is a nomination on 
the Supreme Court that might be coming up, that they can't stand the 
fact that Democrats might filibuster. I can tell you, if the President 
nominates someone who is a mainstream person, who will interpret the 
law, not make the law, there won't be a filibuster.
  They say: Well, they will have to agree with the Democrats on 
everything. Bunk. I haven't voted for all 208. I probably voted for 
about 195. I guarantee you, of those 195, I didn't agree with the views 
of many. No litmus test have I. I voted for an overwhelming majority 
who were pro-life even though I am pro-choice. I voted for an 
overwhelming majority who probably want to cut back on Government 
activity in areas that I would not cut back. But at least there was a 
good-faith effort by these nominees, at least as I interviewed them, 
being ranking Democrat on the Courts Subcommittee, to interpret the 
law, not to make the law.
  There are some the President nominated you can't tolerate, that are 
unpalatable. I debated Senator Hatch on the Wolf Blitzer show. He keeps 
bringing up the old saw: You are opposing Janice Rogers Brown because 
you can't stand having an African-American conservative.
  They said that about Pryor in terms of being a Catholic and about 
Pickering in terms of being a Baptist. It is a cheap argument. I don't 
care about the race, creed, color, or religion of a nominee. If that 
nominee believes the New Deal was a socialist revolution, if that 
nominee believes the case the Supreme Court decided that said wage and 
hour laws were unconstitutional was decided correctly in 1906, even 
though it was overturned, I will oppose that nominee. That person 
should not be on the second most important court in the land. No way. 
We are doing what the Founding Fathers wanted us to do. We are doing 
the right thing.
  One other point, and it relates to this hallowed document--the 
Constitution. In the 1960s and 1970s, one of the main bugaboos of the 
conservative movement was that the courts were going too far. They 
called them activist judges. They believed--from the left side, not 
from the right side--that these judges were making law, not 
interpreting the law. And there are cases where they were right. I 
remember being in college and being surprised as I studied some of the 
cases that the Supreme Court would do this.
  So they created a counterreaction. Ronald Reagan nominated 
conservative judges, not as conservative as George Bush's, but the 
bench had largely been appointed by moderates, whether it be Kennedy, 
Johnson, Nixon, Ford, or Carter. So when Reagan came in and began to 
sprinkle some conservatives in there, people didn't make too much of a 
fuss, especially at the courts of appeal level.
  The point I am making is this: So they didn't like activist judges, 
judges who would sort of read the Constitution and divine what was in 
it. And they had a movement that said: You only read the Constitution 
in terms of the words. If it doesn't say it in the Constitution, you 
don't do it.
  I defy any Republican who says they don't believe in activist judges 
to find the words ``filibuster,'' ``up-or-down vote,'' ``majority 
rule,'' when it comes to the Senate. I would say that anyone who is now 
saying the Constitution says there cannot be a filibuster is being just 
as activist in their interpretation of the Constitution as the judges 
they condemned in the 1960s and 1970s.
  I thank the Chair for the courtesy and yield the floor.
  Mr. LEAHY, Mr. President, 3 years ago I first considered the 
nomination of Priscilla Owen to be a judge on the United States Court 
of Appeals for the Fifth Circuit. After reviewing her record, hearing 
her testimony and evaluating her answers I voted against her 
confirmation and explained at length the strong case against 
confirmation of this nomination. Nothing about her record or the 
reasons that led me then to vote against confirmation has changed since 
then. Unlike the consideration of the nomination of William Myers, on 
which the Judiciary Committee held another hearing this year before 
seeking reconsideration, there has been no effort to supplement the 
record on this nomination. Justice Owen's record failed to justify a 
favorable reporting of the nomination in 2002 and was inadequate to 
gain the consent of the Senate during the last 2 years.
  In 2001, Justice Owen was nominated to fill a vacancy that had by 
that time existed for more than 4 years, since January 1997. In the 
intervening 5 years, President Clinton nominated Jorge Rangel, a 
distinguished Hispanic attorney from Corpus Christi, to fill that 
vacancy. Despite his qualifications, and his unanimous rating of well 
qualified by the ABA, Mr. Rangel never received a hearing from the 
Judiciary Committee, and his nomination was returned to the President 
without Senate action at the end of 1998, after a fruitless wait of 15 
months.
  On September 16, 1999, President Clinton nominated Enrique Moreno, 
another outstanding Hispanic attorney, to fill that same vacancy. Mr. 
Moreno did not receive a hearing on his nomination either--over a span 
of more than 17 months. President Bush withdrew the nomination of 
Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name 
in its place. It was not until May of 2002, at a hearing presided over 
by Senator Schumer, that the Judiciary Committee heard from any of 
President Clinton's three unsuccessful nominees to the Fifth Circuit. 
At that time, Mr. Moreno and Mr. Rangel, joined by a number of other 
Clinton nominees, testified about their treatment by the Republican 
majority. Thus, Justice Owen's was the third nomination to this vacancy 
and the first to be accorded a hearing before the committee.
  In fact, when the Judiciary Committee held its hearing on the 
nomination of Judge Edith Clement to the Fifth Circuit in 2001, during 
the most recent period of Democratic control of the Senate, it was the 
first hearing on a Fifth Circuit nominee in 7 years. By contrast, 
Justice Owen was the third nomination to the Fifth Circuit on which the 
Judiciary Committee held a hearing in less than 1 year. In spite of the 
treatment by the former Republican majority of so many moderate 
judicial nominees of the previous President, we proceeded in July of 
2001--as I said that we would--with a hearing on Justice Owen.
  Justice Owen is one of among 20 Texas nominees who were considered

[[Page S5427]]

by the Judiciary Committee while I was chairman. That included nine 
district court judges, four United States Attorneys, three United 
States Marshals, and three executive branch appointees from Texas who 
moved swiftly through the Judiciary Committee.
  When Justice Owen was initially nominated, the President changed the 
confirmation process from that used by Republican and Democratic 
Presidents for more than 50 years. That resulted in her ABA peer review 
not being received until later that summer. As a result of a Republican 
objection to the Democratic leadership's request to retain all judicial 
nominations pending before the Senate through the August recess in 
2001, the initial nomination of Justice Owen was required by Senate 
rules to be returned to the President without action. The Committee 
nonetheless took the unprecedented action of proceeding during the 
August recess to hold two hearings involving judicial nominations, 
including a nominee to the Court of Appeals for the Federal Circuit.
  In my efforts to accommodate a number of Republican Senators--
including the Republican leader, the Judiciary committee's ranking 
member, and at least four other Republican members of the committee--I 
scheduled hearings for nominees out of the order in which they were 
received that year, in accordance with longstanding practice of the 
committee.
  As I consistently indicated, and as any chairman can explain, less 
controversial nominations are easier to consider and are, by and large, 
able to be scheduled sooner than more controversial nominations. This 
is especially important in the circumstances that existed at the time 
of the change in majority in 2001. At that time we faced what 
Republicans have now admitted had become a vacancy crisis in the 
Federal courts. From January 1995, when the Republican majority assumed 
control of the confirmation process in the Senate, until the shift in 
majority, vacancies rose from 65 to 110 and vacancies on the courts of 
appeals more than doubled from 16 to 33. I thought it important to make 
as much progress as quickly as we could in the time available to us 
that year, and we did. In fact, through the end of President Bush's 
first term, we saw those 110 vacancies plummet to 27, the lowest 
vacancy rate since the Reagan administration.
  The responsibility to advise and consent on the President's nominees 
is one that I take seriously and that the Judiciary Committee takes 
seriously. Justice Owen's nomination to the court of appeals has been 
given a fair hearing and a fair process before the Judiciary Committee. 
I thank all members of the committee for being fair. Those who had 
concerns had the opportunity to raise them and heard the nominee's 
response, in private meetings, at her public hearing and in written 
follow-up questions.
  I would particularly like to commend Senator Feinstein, who chaired 
the hearing for Justice Owen, for managing that hearing so fairly and 
evenhandedly. It was a long day, where nearly every Senator who is a 
member of the Committee came to question Justice Owen, and Senator 
Feinstein handled it with patience and equanimity.

  After that hearing, I brought Justice Owen's nomination up for a 
vote, and following an open debate where her opponents discussed her 
record and their objections on the merits, the nomination was rejected. 
Her nomination was fully and openly debated, and it was rejected. That 
fair treatment stands in sharp contrast to the way Republicans had 
treated President Clinton's nominees, including several to the Fifth 
Circuit.
  That should have ended things right there. But looking back, we now 
see that this nomination is emblematic of the ways the White House and 
Senate Republicans will trample on precedent and do whatever is 
necessary in order to get every last nominee of this President's 
confirmed, no matter how extreme he or she may be. Priscilla Owen's 
nomination was the first judicial nomination ever to be resubmitted 
after already being debated, voted upon and rejected by the Senate 
Judiciary Committee.
  When the Senate majority shifted, Republicans reconsidered this 
nomination and sent it to the Senate on a straight, party-line vote. 
Never before had a President resubmitted a circuit court nominee 
already rejected by the Senate Judiciary Committee, for the same 
vacancy. And until Senator Hatch gave Justice Owen a second hearing in 
2003, never before had the Judiciary Committee rejected its own 
decision on such a nominee and granted a second hearing. And at that 
second hearing we did not learn much more than the obvious fact that, 
given some time, Justice Owen was able to enlist the help of the 
talented lawyers working at the White House and the Department of 
Justice to come up with some new justifications for her record of 
activism. We learned that given six months to reconsider the severe 
criticism directed at her by her Republican colleagues, she still 
admitted no error. Mostly, we learned that the objections expressed 
originally by the Democrats on the Judiciary Committee were sincerely 
held when they were made, and no less valid after a second hearing. 
Nothing Justice Owen said about her record--indeed, nothing anyone else 
tried to explain about her record--was able to actually change her 
record. That was true then, and that is true today.
  Senators who opposed this nomination did so because Priscilla Owen's 
record shows her to be an ends-oriented activist judge. I have 
previously explained my conclusions about Justice Owen's record, but I 
will summarize my objections again today.
  The first area of concern to me is Justice Owen's extremism even 
among a conservative Supreme Court of Texas. The conservative 
Republican majority of the Texas Supreme Court has gone out of its way 
to criticize Justice Owen and the dissents she joined in ways that are 
highly unusual, and in ways which highlight her ends-oriented activism. 
A number of Texas Supreme Court Justices have pointed out how far from 
the language of statute she strays in her attempts to push the law 
beyond what the legislature intended.
  One example is the majority opinion in Weiner v. Wasson, 900 S.W.2d 
316, Tex. 1995. In this case, Justice Owen wrote a dissent advocating a 
ruling against a medical malpractice plaintiff injured while he was 
still a teenager. The issue was the constitutionality of a State law 
requiring minors to file medical malpractice actions before reaching 
the age of majority, or risk being outside the statute of limitations. 
Of interest is the majority's discussion of the importance of abiding 
by a prior Texas Supreme Court decision unanimously striking down a 
previous version of the statute. In what reads as a lecture to the 
dissent, then-Justice John Cornyn explains on behalf of the majority:

       Generally, we adhere to our precedents for reasons of 
     efficiency, fairness, and legitimacy. First, if we did not 
     follow our own decisions, no issue could ever be considered 
     resolved. The potential volume of speculative relitigation 
     under such circumstances alone ought to persuade us that 
     stare decisis is a sound policy. Secondly, we should give due 
     consideration to the settled expectations of litigants like 
     Emmanuel Wasson, who have justifiably relied on the 
     principles articulated in [the previous case]. . . . Finally, 
     under our form of government, the legitimacy of the judiciary 
     rests in large part upon a stable and predictable 
     decisionmaking process that differs dramatically from that 
     properly employed by the political branches of government.

  According to the conservative majority on the Texas Supreme Court, 
Justice Owen went out of her way to ignore precedent and would have 
ruled for the defendants. The conservative Republican majority, in 
contrast to Justice Owen, followed precedent and the doctrine of stare 
decisis. A clear example of Justice Owen's judicial activism.
  In Montgomery Independent School District v. Davis, 34 S.W. 3d 559, 
Tex. 2000, Justice Owen wrote another dissent which drew fire from a 
conservative Republican majority--this time for her disregard for 
legislative language. In a challenge by a teacher who did not receive 
reappointment to her position, the majority found that the school board 
had exceeded its authority when it disregarded the Texas Education Code 
and tried to overrule a hearing examiner's decision on the matter. 
Justice Owen's dissent advocated for an interpretation contrary to the 
language of the applicable statute. The majority, which included 
Alberto Gonzales and two other appointees of then-Governor Bush, was 
quite explicit

[[Page S5428]]

about its view that Justice Owen's position disregarded the law:

       The dissenting opinion misconceives the hearing examiner's 
     role in the . . . process by stating that the hearing 
     examiner `refused' to make findings on the evidence the Board 
     relies on to support its additional findings. As we explained 
     above, nothing in the statute requires the hearing examiner 
     to make findings on matters of which he is unpersuaded. . . .

  The majority also noted that:

       The dissenting opinion's misconception of the hearing 
     examiner's role stems from its disregard of the procedural 
     elements the Legislature established in subchapter F to 
     ensure that the hearing-examiner process is fair and 
     efficient for both teachers and school boards. The 
     Legislature maintained local control by giving school boards 
     alone the option to choose the hearing-examiner process in 
     nonrenewal proceedings. . . . By resolving conflicts in 
     disputed evidence, ignoring credibility issues, and 
     essentially stepping into the shoes of the factfinder to 
     reach a specific result, the dissenting opinion not only 
     disregards the procedural limitations in the statute but 
     takes a position even more extreme than that argued for by 
     the board.

  Another clear example of Justice Owen's judicial activism.
  Collins v. Ison-Newsome, 73 S.W.3d 178, Tex. 2001, is yet another 
case where a dissent, joined by Justice Owen, was roundly criticized by 
the Republican majority of the Texas Supreme Court. The Court cogently 
stated the legal basis for its conclusion that it had no jurisdiction 
to decide the matter before it, and as in other opinions where Justice 
Owen was in dissent, took time to explicitly criticize the dissent's 
positions as contrary to the clear letter of the law.
  At issue was whether the Supreme Court had the proper ``conflicts 
jurisdiction'' to hear the interlocutory appeal of school officials 
being sued for defamation. The majority explained that it did not 
because published lower court decisions do not create the necessary 
conflict between themselves. The arguments put forth by the dissent, in 
which Justice Owen joined, offended the majority, and they made their 
views known, writing:

       The dissenting opinion agrees that ``because this is an 
     interlocutory appeal . . . this Court's jurisdiction is 
     limited,'' but then argues for the exact opposite proposition 
     . . . This argument defies the Legislature's clear and 
     express limits on our jurisdiction. . . . The author of the 
     dissenting opinion has written previously that we should take 
     a broader approach to the conflicts-jurisdiction standard. 
     But a majority of the Court continues to abide by the 
     Legislature's clear limits on our interlocutory-appeal 
     jurisdiction.

  They continue:

       [T]he dissenting opinion's reading of Government Code sec. 
     22.225(c) conflates conflicts jurisdiction with dissent 
     jurisdiction, thereby erasing any distinction between these 
     two separate bases for jurisdiction. The Legislature 
     identified them as distinct bases for jurisdiction in 
     sections 22.001(a)(1) and (a)(2), and section 22.225(c) 
     refers specifically to the two separate provisionsn of 
     section 22.001(a) providing for conflicts and dissent 
     jurisdiction. . . . [W]e cannot simply ignore the legislative 
     limits on our jurisdiction, and not even Petitioners argue 
     that we should do so on this basis.

  Again, Justice Owen joined a dissent that the Republican majority 
described as defiant of legislative intent and in disregard of 
legislatively drawn limits. Yet another clear example of Justice Owen's 
judicial activism.
  Some of the most striking examples of criticism of Justice Owen's 
writings, or the dissents and concurrences she joins, come in a series 
of parental notification cases heard in 2000. They include:
  In In re Jane Doe 1, 19 S.W.3d 346, Tex. 2000, where the majority 
included an extremely unusual section explaining its view of the proper 
role of judges, admonishing the dissent, joined by Justice Owen, for 
going beyond its duty to interpret the law in an attempt to fashion 
policy.
  Giving a pointed critique of the dissenters, the majority explained 
that, ``In reaching the decision to grant Jane Doe's application, we 
have put aside our personal viewpoints and endeavored to do our job as 
judges--that is, to interpret and apply the Legislature's will as it 
has been expressed in the statute.''
  In a separate concurrence, Justice Alberto Gonzales wrote that to 
construe the law as the dissent did, ``would be an unconscionable act 
of judicial activism.''
  A conservative Republican colleague of Justice Owen's, pointing 
squarely to her judicial activism.
  In In re Jane Doe 3, 19 S.W. 3d 300, Tex. 2000, Justice Enoch writes 
specifically to rebuke Justice Owen and her follow dissenters for 
misconstruing the legislature's definition of the sort of abuse that 
may occur when parents are notified of a minor's intent to have an 
abortion, saying, ``abuse is abuse; it is neither to be trifled with 
nor its severity to be second guessed.''
  In one case that is perhaps the exception that proves the rule, 
Justice Owen wrote a majority that was bitterly criticized by the 
dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 328, 
Tex. 2001, Justice Owen wrote a majority opinion finding that the city 
did not have to give the Austin American-Statesman a report prepared by 
a consulting expert in connection with pending and anticipated 
litigation because such information was expressly made confidential 
under other law namely, the Texas Rules of Civil Procedure.
  The dissent is extremely critical of Justice Owen's opinion, citing 
the Texas law's strong preference for disclosure and liberal 
construction. Accusing her of activism, Justice Abbott, joined by Chief 
Justice Phillips and Justice Baker, notes that the legislature, 
``expressly identified eighteen categories of information that are 
'public information' and that must be disclosed upon request . . . 
[sec. (a)] The Legislature attempted to safeguard its policy of open 
records by adding subsection (b), which limits courts' encroachment on 
its legislatively established policy decisions.'' The dissent further 
protests:

     [b]ut if this Court has the power to broaden by judicial rule 
     the categories of information that are ``confidential under 
     other law,'' then subsection (b) is eviscerated from the 
     statute. By determining what information falls outside 
     subsection (a)'s scope, this Court may evade the mandates of 
     subsection (b) and order information withheld whenever it 
     sees fit. This not only contradicts the spirit and language 
     of subsection (b), it guts it.

  Finally, the opinion concluded by asserting that Justice Owen's 
interpretation, ``abandons strict construction and rewrites the statute 
to eliminate subsection (b)'s restrictions.''
  Yet again, her colleagues on the Texas court, citing Justice Owen's 
judicial activism.
  These examples, together with the unusually harsh language directed 
at Justice Owen's position by the majority in the Doe cases, show a 
judge out of step with the conservative Republican majority of the 
Texas Supreme Court, a majority not afraid to explain the danger of her 
activist views.
  I am also greatly concerned about Justice Owen's record of ends-
oriented decision making as a Justice on the Texas Supreme Court. As 
one reads case after case, particularly those in which she was the sole 
dissenter or dissented with the extreme right wing of the Court, her 
pattern of activism becomes clear. Her legal views in so many cases 
involving statutory interpretation simply cannot be reconciled with the 
plain meaning of the statute, the legislative intent, or the majority's 
interpretation, leading to the conclusion that she sets out to justify 
some pre-conceived idea of what the law ought to mean. This is not an 
appropriate way for a judge to make decisions. This is a judge whose 
record reflects that she is willing and sometimes eager to make law 
from the bench.
  Justice Owen's activism and extremism is noteworthy in a variety of 
cases, including those dealing with business interests, malpractice, 
access to public information, employment discrimination and Texas 
Supreme Court jurisdiction, in which she writes against individual 
plaintiffs time and time again, in seeming contradiction of the law as 
written.
  One of the cases where this trend is evident is FM Properties v. City 
of Austin, 22 S.W. 3d 868, Tex. 1998. I asked Justice Owen about this 
1998 environmental case at her hearing. In her dissent from a 6-3 
ruling, in which Justice Alberto Gonzales was among the majority, 
Justice Owen showed her willingness to rule in favor of large private 
landowners against the clear public interest in maintaining a fair 
regulatory process and clean water. Her dissent, which the majority 
characterized as ``nothing more than inflammatory rhetoric,'' was an 
attempt to favor big landowners.
  In this case, the Texas Supreme Court found that a section of the 
Texas

[[Page S5429]]

Water Code allowing certain private owners of large tracts of land to 
create ``water quality zones,'' and write their own water quality 
regulations and plans, violated the Texas Constitution because it 
improperly delegated legislative power to private entities. The Court 
found that the Water Code section gave the private landowners, 
``legislative duties and powers, the exercise of which may adversely 
affect public interests, including the constitutionally-protected 
public interest in water quality.'' The Court also found that certain 
aspects of the Code and the factors surrounding its implementation 
weighed against the delegation of power, including the lack of 
meaningful government review, the lack of adequate representation of 
citizens affected by the private owners' actions, the breadth of the 
delegation, and the big landowners' obvious interest in maximizing 
their own profits and minimizing their own costs.
  The majority offered a strong opinion, detailing its legal reasoning 
and explaining the dangers of offering too much legislative power to 
private entities. By contrast, in her dissent, Justice Owen argued 
that, ``[w]hile the Constitution certainly permits the Legislature to 
enact laws that preserve and conserve the State's natural resources, 
there is nothing in the Constitution that requires the Legislature to 
exercise that power in any particular manner,'' ignoring entirely the 
possibility of an unconstitutional delegation of power. Her view 
strongly favored large business interests to the clear detriment of the 
public interest, and against the persuasive legal arguments of a 
majority of the Court.
  When I asked her about this case at her hearing, I found her answer 
perplexing. In a way that she did not argue in her written dissent, at 
her hearing Justice Owen attempted to cast the FM Properties case not 
as, ``a fight between and City of Austin and big business, but in all 
honesty, . . . really a fight about . . . the State of Texas versus the 
City of Austin.'' In the written dissent however, she began by stating 
the, ``importance of this case to private property rights and the 
separation of powers between the judicial and legislative branches . . 
.'', and went on to decry the Court's decision as one that, ``will 
impair all manner of property rights.'' 22 S.W. 3d at 889. At the time 
she wrote her dissent, Justice Owen was certainly clear about the 
meaning of this case--property rights for corporations.
  Another case that concerned me is GTE Southwest, Inc. v. Bruce, 990 
S.W.2d 605, where Justice Owen wrote in favor of GTE in a lawsuit by 
employees for intentional infliction of emotional distress. The rest of 
the Court held that three employees subjected to what the majority 
characterized as ``constant humiliating and abusive behavior of their 
supervisor'' were entitled to the jury verdict in their favor. Despite 
the Court's recitation of an exhaustive list of sickening behavior by 
the supervisor, and its clear application of Texas law to those facts, 
Justice Owen wrote a concurring opinion to explain her difference of 
opinion on the key legal issue in the case--whether the behavior in 
evidence met the legal standard for intentional infliction of emotional 
distress.
  Justice Owen contended that the conduct was not, as the standard 
requires, ``so outrageous in character, and so extreme in degree, as to 
go beyond all possible bounds of decency . . .'' The majority opinion 
shows Justice Owen's concurrence advocating an inexplicable point of 
view that ignores the facts in evidence in order to reach a 
predetermined outcome in the corporation's favor.

  Justice Owen's recitation of facts in her concurrence significantly 
minimizes the evidence as presented by the majority. Among the kinds of 
behavior to which the employees were subjected--according to the 
majority opinion--are: Upon his arrival the supervisor, ``began 
regularly using the harshest vulgarity . . . continued to use the word 
``f----''
and ``motherf----r'' frequently when speaking with the employees . . . 
repeatedly physically and verbally threatened and terrorized them . . . 
would frequently assault each of the employees by physically charging 
at them . . . come up fast . . . and get up over (the employee) . . . 
and yell and scream in her face . . . called (an employee) into his 
office every day and . . . have her stand in front of him, sometimes 
for as long as thirty minutes, while (the supervisor) simply stared at 
her . . . made (an employee) get on her hands and knees and clean the 
spots (on the carpet) while he stood over her yelling.'' Justice Owen 
did not believe that such conduct was outrageous or outside the bounds 
of decency under state law.
  At her hearing, in answer to Senator Edwards's questions about this 
case, Justice Owen again gave an explanation not to be found in her 
written views. She told him that she agreed with the majority's 
holding, and wrote separately only to make sure that future litigants 
would not be confused and think that out of context, any one of the 
outrages suffered by the plaintiffs would not support a judgment. 
Looking again at her dissent, I do not see why, if that was what she 
truly intended, she did not say so in language plain enough to be 
understood, or why she thought it necessary to write and say it in the 
first place. It is a somewhat curious distinction to make--to advocate 
that in a tort case a judge should write a separate concurrence to 
explain which part of the plaintiff's case, standing alone, would not 
support a finding of liability. Neither her written concurrence, nor 
her answers in explanation after the fact, is satisfactory explanation 
of her position in this case.
  In City of Garland v. Dallas Morning News, 22 S.W. 3d 351, Tex. 2000, 
Justice Owen dissented from a majority opinion and, again, it is 
difficult to justify her views other than as being based on a desire to 
reach a particular outcome. The majority upheld a decision giving the 
newspaper access to a document outlining the reasons why the city's 
finance director was going to be fired. Justice Owen made two 
arguments: that because the document was considered a draft it was not 
subject to disclosure, and that the document was exempt from disclosure 
because it was part of policy making. Both of these exceptions were so 
large as to swallow the rule requiring disclosure. The majority rightly 
points out that if Justice Owen's views prevailed, almost any document 
could be labeled draft to shield it from public view. Moreover, to call 
a personnel decision a part of policy making is such an expansive 
interpretation it would leave little that would not be ``policy.''
  Quantum Chemical v. Toennies, 47 S.W. 3d 473, Tex. 2001, is another 
troubling case where Justice Owen joined a dissent advocating an 
activist interpretation of a clearly written statute. In this age 
discrimination suit brought under the Texas civil rights statute, the 
relevant parts of which were modeled on Title VII of the federal Civil 
Rights Act--and its amendments--the appeal to the Texas Supreme Court 
centered on the standard of causation necessary for a finding for the 
plaintiff. The plaintiff argued, and the five justices in the majority 
agreed, that the plain meaning of the statute must be followed, and 
that the plaintiff could prove an unlawful employment practice by 
showing that discrimination was ``a motivating factor.'' The employer 
corporation argued, and Justices Hecht and Owen agreed, that the plain 
meaning could be discarded in favor of a more tortured and unnecessary 
reading of the statute, and that the plaintiff must show that 
discrimination was ``the motivating factor,'' in order to recover 
damages.
  The portion of Title VII on which the majority relies for its 
interpretation was part of Congress's 1991 fix to the United States 
Supreme Court's opinion in the Price Waterhouse case, which held that 
an employer could avoid liability if the plaintiff could not show 
discrimination was ``the'' motivating factor. Congress's fix, in 
Section 107 of the Civil Rights Act of 1991, does not specify whether 
the motivating factor standard applies to both sorts of discrimination 
cases, the so-called ``mixed motive'' cases as well as the ``pretext'' 
cases.
  The Texas majority concluded that they must rely on the plain 
language of the statute as amended, which could not be any clearer that 
under Title VII discrimination can be shown to be ``a'' motivating 
factor. Justice Owen joined Justice Hecht in claiming that federal case 
law is clear (in favor of their view), and opted for a reading of the 
statute that would turn it into its polar opposite, forcing plaintiffs 
into just the situation legislators were trying to avoid. This example 
of Justice

[[Page S5430]]

Owen's desire to change the law from the bench, instead of interpret 
it, fits President Bush's definition of activism to a ``T''.
  Justice Owen has also demonstrated her tendency toward ends-oriented 
decision making quite clearly in a series of dissents and concurrences 
in cases involving a Texas law providing for a judicial bypass of 
parental notification requirements for minors seeking abortions.
  The most striking example is Justice Owen's expression of 
disagreement with the majority's decision on key legal issues in Doe 1. 
She strongly disagreed with the majority's holding on what a minor 
would have to show in order to establish that she was, as the statute 
requires, ``sufficiently well informed'' to make the decision on her 
own. While the conservative Republican majority laid out a well-
reasoned test for this element of the law, based on the plain meaning 
of the statute and well-cited case law, Justice Owen inserted elements 
found in neither authority. Specifically, Justice Owen insisted that 
the majority's requirement that the minor be ``aware of the emotional 
and psychological aspects of undergoing an abortion'' was not 
sufficient and that among other requirements with no basis in the law, 
she, ``would require . . . [that the minor] should . . . indicate to 
the court that she is aware of and has considered that there are 
philosophic, social, moral, and religious arguments that can be brought 
to bear when considering abortion.'' In re Jane Doe 1, 19 S.W.3d 249, 
256, Tex. 2000.

  In her written concurrence, Justice Owen indicated, through legal 
citation, that support for this proposition could be found in a 
particular page of the Supreme Court's opinion in Planned Parenthood v. 
Casey. However, when one looks at that portion of the Casey decision, 
one finds no mention of requiring a minor to acknowledge religious or 
moral arguments. The passage talks instead about the ability of a State 
to ``enact rules and regulations designed to encourage her to know that 
there are philosophic and social arguments of great weight that can be 
brought to bear.'' Justice Owen's reliance on this portion of a United 
States Supreme Court opinion to rewrite Texas law was simply wrong.
  As she did in answer to questions about a couple of other cases at 
her hearing, Justice Owen tried to explain away this problem with an 
after-the-fact justification. She told Senator Cantwell that the 
reference to religion was not to be found in Casey after all, but in 
another U.S. Supreme Court case, H.L. v. Matheson. She explained that 
in ``Matheson they talk about that for some people it raises profound 
moral and religious concerns, and they're talking about the 
desirability or the State's interest in these kinds of considerations 
in making an informed decision.'' Transcript at 172. But again, on 
reading Matheson, one sees that the only mention of religion comes in a 
quotation meant to explain why the parents of the minor are due 
notification, not about the contours of what the government may require 
someone to prove to show she was fully well informed. Her reliance on 
Matheson for her proposed rewrite of the law is just as faulty as her 
reliance on Casey. Neither one supports her reading of the law. She 
simply tries a little bit of legal smoke and mirrors to make it appear 
as if they did. This is the sort of ends-oriented decision making that 
destroys the belief of a citizen in a fair legal system. And most 
troubling of all was her indication to Senator Feinstein that she still 
views her dissents in the Doe cases as the proper reading and 
construction of the Texas statute.
  At her second, unprecedented hearing in 2003, Justice Owen and her 
defenders tried hard to recast her record and others' criticism of it. 
I went to that hearing, I listened to her testimony, and I read her 
written answers, many newly formulated, that attempt to explain away 
her very disturbing opinions in the Texas parental notification cases. 
But her record is still her record, and the record is clear. She did 
not satisfactorily explain why she infused the words of the Texas 
legislature with so much more meaning than she can be sure they 
intended. She adequately describes the precedents of the Supreme Court 
of the United States, to be sure, but she simply did not justify the 
leaps in logic and plain meaning she attempted in those decisions.
  I read her responses to Senator Hatch's remarks at that second 
hearing, where he attempted to explain away cases about which I had 
expressed concern at her first hearing. For example, I heard him 
explain the opinion she wrote in F.M. Properties v. City of Austin. I 
read how he recharacterized the dispute in an effort to make it sound 
innocuous, just a struggle between two jurisdictions over some 
unimportant regulations. I know how, through a choreographed exchange 
of leading questions and short answers, they tried to respond to my 
question from the original hearing, which was never really answered, 
about why Justice Owen thought it was proper for the legislature to 
grant large corporate landowners the power to regulate themselves. I 
remained unconvinced. The majority in this case, which invalidated a 
state statute favoring corporations, did not describe the case or the 
issues as Senator Hatch and Justice Owen did. A fair reading of the 
case shows no evidence of a struggle between governments. This is all 
an attempt at after-the-fact, revisionist justification where there 
really is none to be found.
  Justice Owen and Chairman Hatch's explanation of the case also lacked 
even the weakest effort at rebutting the criticism of her by the F.M. 
Properties majority. In its opinion, the six justice majority said, and 
I am quoting, that Justice Owen's dissent was ``nothing more than 
inflammatory rhetoric.'' They explained why her legal objections were 
mistaken, saying that no matter what the state legislature had the 
power to do on its own, it was simply unconstitutional to give the big 
landowners the power they were given. No talk of the City of Austin v. 
the State of Texas. Just the facts.
  Likewise, the few explanations offered for the many other examples of 
the times her Republican colleagues criticized her were unavailing. The 
tortured reading of Justice Gonzales' remarks in the Doe case were 
unconvincing. He clearly said that to construe the law in the way that 
Justice Owen's dissent construed the law would be activism. Any other 
interpretation is just not credible.
  And no reasons were offered for why her then-colleague, now ours, 
Justice Cornyn, thought it necessary to explain the principle of stare 
decisis to her in his opinion in Weiner v. Wasson. Or why in Montgomery 
Independent School District v. Davis, the majority criticized her for 
her disregard for legislative language, saying that, ``the dissenting 
opinion misconceives the hearing examiner's role in the . . . 
process,'' which it said stemmed from, ``its disregard of the 
procedural elements the Legislature established . . . to ensure that 
the hearing-examiner process is fair and efficient for both teachers 
and school boards.'' Or why, in Collins v. Ison-Newsome, a dissent 
joined by Justice Owen was so roundly criticized by the Republican 
majority, which said the dissent agrees with one proposition but then 
``argues for the exact opposite proposition . . . [defying] the 
Legislature's clear and express limits on our jurisdiction.''
  I have said it before, but I am forced to say it again. These 
examples, together with the unusually harsh language directed at 
Justice Owen's position by the majority in the Doe cases, show a judge 
out of step with the conservative Republican majority of the Texas 
Supreme Court, a majority not afraid to explain the danger of her 
activist views. No good explanation was offered for these critical 
statements last year, and no good explanation was offered two weeks 
ago. Politically motivated rationalizations do not negate the plain 
language used to describe her activism at the time.
  When he nominated Priscilla Owen, President Bush said that his 
standard for judging judicial nominees would be that they ``share a 
commitment to follow and apply the law, not to make law from the 
bench.'' He said he is against judicial activism. Yet he has appointed 
judicial activists like Priscilla Owen and Janice Rogers Brown.
  Under President Bush's own standards, Justice Owen's record of ends-
oriented judicial activism does not qualify her for a lifetime 
appointment to the Federal bench.
  The President has often spoken of judicial activism without 
acknowledging

[[Page S5431]]

that ends-oriented decision-making can come easily to extreme 
ideological nominees. In the case of Priscilla Owen, we see a perfect 
example of such an approach to the law, and I cannot support it. The 
oath taken by federal judges affirms their commitment to ``administer 
justice without respect to persons, and do equal right to the poor and 
to the rich.'' No one who enters a federal courtroom should have to 
wonder whether he or she will be fairly heard by the judge.
  Justice Priscilla Owen's record of judicial activism and ends-
oriented decision making leaves me with grave doubt about her ability 
to be a fair judge. The President says he opposes putting judicial 
activists on the Federal bench, yet Justice Priscilla Owen 
unquestionably is a judicial activist. I cannot vote to confirm her for 
this appointment to one of the highest courts in the land.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, what is the matter pending before the 
Senate at this time?
  The PRESIDING OFFICER. The nomination of Priscilla Owen.
  Mr. COBURN. I thank the Chair.
  Mr. President, I would like to spend a few minutes talking about what 
we have heard on the Senate floor today. The Presiding Officer and I 
are new Members to the Senate. We were not here as this struggle began. 
I must say, I am pretty deeply saddened by the misstatements of fact, 
the innuendo, the half-truths we have heard on the Senate floor today. 
I also am somewhat saddened by the fact that the Constitution is spoken 
about in such light terms. Because what the Constitution says is that, 
in fact, the Senate sets its own rules and the Senate can change its 
own rules. The first 100 years in this body, there was not a 
filibuster, and that filibuster has gone through multiple changes 
during the course of Senate history.
  I pride myself on not being partisan on either the Democratic or the 
Republican side. I am a partisan for ideas, for freedom, for liberty. I 
am also a partisan for truth. I believe, as we shave that truth, we do 
a disservice not only to this body, but we also do a disservice to the 
country.
  Another principle I am trying to live by is the principle of 
reconciliation. As we go forward in this debate, it is important for 
the American people to truly understand what the history is in this 
debate. At the beginning of the Congress, the majority, whether it be 
Democrat or Republican in any Congress, whoever is in control, has a 
right to set up the rules.
  Those rules were set up in this Congress with one provision--that an 
exception be made on the very issue we are talking about today. Why was 
that exception put there? That exception was put there in an attempt to 
work out the differences over the things that have happened in the past 
so we would not come to this point in time. I believe the majority 
leader, although maligned today on the floor, has made a great and 
honest effort to work a compromise in the matter before us.
  I also believe what has happened in the past in terms of judges not 
coming out of committee probably has been inappropriate. That is not a 
partisan issue either. It has happened on both sides. As a matter of 
fact, there are appellate judges now being held up by Democratic 
Senators because they disagree on their nomination to come through the 
Judiciary Committee.
  As a member of the committee and a nonlawyer on the Judiciary 
Committee, it is becoming plain to me to see the importance of the 
procedure within the committee.
  Having said that, the Constitution gives the right to the President 
to appoint, under the advice and consent of the Senate. The debate is 
about whether we will take a vote.
  President Bush's appellate court nominees have the lowest acceptance 
rate of any of the last four Presidents.
  Is that because the nominees are extreme? Or is there some other 
reason why we are in this mess that we find ourselves in? I really 
believe it is about the question: where do Supreme Court judges come 
from? They come from the appellate courts most often. And whether or 
not we allow people--good, honest people--to put their names forward 
and come before this body and have true advice and consent is a 
question we are going to have to solve in the next couple of weeks.
  There are lots of ways of solving it. One is doing what Senator Byrd 
did four times in his history as leader of this body--a change in the 
rules by majority vote because the majority has the majority. That is 
not a constitutional option; that is a Byrd option. That is an option 
vested in the power of the Senate under the Constitution to control the 
rules of the Senate.
  Another little bit of history. Twenty-five years ago, the filibuster 
was eliminated on the Budget and Reconciliation Act. The Congress 
didn't fall apart. Under Senator Byrd's changes of the rules, the 
Senate did not fall apart. So the issue really is about whether or not 
the majority has the power to control the rules in the Senate. And the 
debate also is about whether or not we are going to have an up or down, 
a fair vote on judges--just like we should have a debate on whether we 
should have a process change in the Judiciary Committee for those 
judges who are appointed by any President to come through.
  I said in my campaign for this office that conservative and liberal 
wasn't a test for me for judges. The foundation and principles of our 
country, and proof of excellence in the study of and acting on the law 
should be the requirements. We had the unfortunate example today--this 
week--of a Federal judge in Nebraska negating a marriage law that 
defined marriage as between a man and a woman--an appointed judge 
deciding for the rest of us--it could very well decide for all 50 
States--whether or not we are going to recognize marriage as between a 
man and a woman. We have heard Priscilla Owen's name linked several 
times because of her decisions--there were 13 or 14 decisions that came 
before the Texas Supreme Court on judicial review of a minor's access 
to an abortion without parental notification--not consent, but 
notification.
  In the one case that they bring up and misquote Attorney General 
Gonzales on, she in fact did what the law said to do. The federal 
appellate court is not entitled, nor is the Supreme Court of Texas, to 
review the findings of fact. The finder of fact is the original court. 
They cannot make decisions on that. So she dissented on that basis. 
Judge Gonzales' statement was about whether or not he could go along 
with that in terms of what would be applied to him in terms of judicial 
activism. He has since said under oath that in no way, or at any time, 
did he accuse Priscilla Owen of being a judicial activist.
  Let's talk about activism. I want to relate a story that happened to 
me about 6 years ago. I was in Stigler, OK, having a townhall meeting. 
A father walked in, 35 years of age, with tears running down his cheek. 
In his hand, he had a brown paper sack, and he interrupted this meeting 
between me and about 60 people. His question to me was: ``Dr. Coburn, 
how is it that this sack could be given to my 12-year old daughter?'' 
Of course, I didn't know what was in the sack. What was in the sack was 
birth control pills, condoms, and spermicide. The very fact that his 
daughter could be treated in a clinic without his permission for 
contraceptives came about through judicial activism. The fact is that 
80 to 85 percent of the people in this country find that wrong. Yet, it 
cannot be turned around. The fact is that 80 percent of the people in 
this country believe that marriage is defined as that union between a 
man and a woman, and a Federal judge--not looking at the Constitution--
not looking at precedent, actually makes that change.
  So it is a battle about ideas. Priscilla Owen recognizes what the law 
is. She has stated uniformly that she will follow the precedents set 
before the court. But we have gotten to where we are in terms of the 
issues that inflame and insight so much polarization in this body and 
throughout the country because we have not had people following the 
law, but in fact we have had judicial activism.
  I congratulate President Bush for sending these nominees to the 
Senate floor. I have interviewed Priscilla Owen. Her history, her 
recommendations, her ratings are far in excess of superior. So why 
would this wonderful woman, who has dedicated her life to the less 
fortunate, to families, to reinstituting and strengthening marriage, to 
making sure people who didn't

[[Page S5432]]

have legal aid had it, why is she being so lambasted, so maligned 
because of her beliefs? The beliefs she has are what 80 percent of the 
people in this country have, but she doesn't fit with the beliefs of 
the elite liberal sect in this country.
  So it is a battle of ideas. It is a battle that will shape the future 
of our courts. How is it that a woman of such stature will have the 
strength to withstand for 4 years--she has put everything about her, 
every aspect of her personal life, her public life, her judicial career 
out front and has stood strong to continue to take the abuse and 
maligning language that comes her way. Why would somebody do that? It 
is because she believes in this country. She believes in the 
foundational principles that our colleague from New York held up in the 
Constitution. She has sworn and believes in that Constitution. She has 
the courage to know that the fight for our children, for our parents to 
control the future for our children, is worth the fight.
  I would like to spend a minute going over some poll numbers with the 
American public on the very issue of whether or not a minor child ought 
to have parental involvement in a major procedure such as an abortion.
  Having delivered over 4,000 babies, having handled every complication 
of pregnancy that is known, I am very familiar with these issues.
  There are five polls I would like to put in the Record. I ask 
unanimous consent that they be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      POLLS ON REQUIRING PARENTAL INVOLVEMENT IN MINORS' ABORTIONS
                            [March 23, 2005]
------------------------------------------------------------------------
                                                   Favor        Oppose
                     Polls                       (percent)    (percent)
------------------------------------------------------------------------
``Do you favor or oppose requiring parental              75           18
 notification before a minor could get an
 abortion?'' Favor: 75%; Oppose: 18%; DK/NA
 7%. (Quinnipiac University Poll, March 2-7,
 2005.) (1,534 registered voters; margin of
 error: 2.5%)................................
``Next, do you favor or oppose each of the               73           24
 following proposals? How about-- . . . A law
 requiring women under 18 to get parental
 consent for any abortion?'' Favor: 73%;
 Oppose: 24%; No Opinion: 3%. (CNN/USA Today/
 Gallup, January 10-12, 2003.) (1,002 adults;
 margin of error: 3%)........................
``Do you favor or oppose requiring that one              83           15
 parent of a girl who is under 18 years of age
 be notified before an abortion is performed
 on the girl?'' Favor: 83%; Oppose: 15%; Don't
 Know/Refused: 2%. (Wirthlin Worldwide,
 October 19-22, 2001.) (1,021 adults; margin
 of error: 3.07%)............................
``Should girls under the age of 18 be required           82           12
 to get the consent of at least one parent
 before having an abortion?'' Required: All--
 82%; Men--85%; Women--80%. Not Required: All--
 12%; Men--9%; Women--14%. Depends: All--2%;
 Men--2%; Women--2%. Don't Know: All--4%; Men--
 4%; Women--4%. (Los Angeles Times, June 8-13,
 2000.) (2,071 adults; margin of error: 2%)..
``Would you favor or oppose requiring parental           78           17
 consent before a girl under 18 could have an
 abortion? Favor: 78%; Oppose: 17%; DK/NA/
 Depends: 5%. (CBS News/NY Times, January
 1998.).......................................
------------------------------------------------------------------------

  Mr. COBURN. One is a March 2-7, 2005, poll from Quinnipiac 
University:

       Do you favor or oppose requiring parental notification 
     before a minor could get an abortion?

  That is notification. Seventy-five percent of the people in this 
country agree with that. It is not an extreme position when 75 percent 
of our fellow Americans think that is right--think that in fact we 
don't give up rights to our children until they are emancipated and are 
adults.

       Next, do you favor or oppose each of the following 
     proposals: A law requiring women under 18 to get parental 
     consent for any abortion?

  That is not notification, that is consent. That is a CNN/USA Today/
Gallup poll, January 10, 2003.
  Seventy-three percent favor parents being involved in the health care 
of their children and major decisions that will affect their future.

       Do you favor or oppose requiring that one parent of a girl 
     who is under 18 years of age be notified before an abortion 
     is performed on the girl?

  Eighty-three percent favor the parent being notified. That is a 
Wirthlin Worldwide poll.

       Should girls under the age of 18 be required to get the 
     consent of at least one parent before having an abortion?

  That is a Los Angeles Times poll. Eighty-two percent believe that.
  What is described as extreme is mainline to the American public. What 
we have is a battle for ideas, a battle under which the future of our 
country will follow.
  The word ``activist'' in reference to judges is a word that is wildly 
used. It is almost amusing that we hear it from one side of the Senate 
to the other side of the Senate. What is activism on one side is not 
activism on the other. What is activism to the minority is not activism 
to the majority.
  What is activism? Activism is reaching into the law and the 
precedents of law and creating something that was not there before. 
Activism is intentionally misinterpreting statutes to produce a 
political gain. I will go back to the child and the father, 35 years of 
age, screaming at the depths of his heartache as to how in our country 
we have gotten to the point where a judge can decide ahead of the 
Senate, ahead of the House, ahead of both bodies and the President, 
what will happen to our minor children. That is what this debate is 
about.
  Priscilla Owen exemplifies the values that the American people hold, 
but she also exemplifies the values of the greatest jurists of our 
time: a strict adherence to the law, a love of the law, and a 
willingness to sacrifice her life and her career and her personal 
reputation to go through this process.
  Senator Ensign, the Senator from Nevada, made a very good point a 
moment ago, and I think it bears repeating. How many people will not 
put their name up in the future who are eminently qualified, have great 
judicial history, will have great recommendations from the American Bar 
Association but do not want to have to go through the half-truths, the 
innuendos, and the slurring of character that occurs, to come before 
this body?
  My hope is that before we come to the Byrd option or a change in the 
rules, that cooler heads will decide that we will not filibuster judges 
in the future, and we will not block nominations at the committee. That 
is reasonable. We do not have to do that. A President should have his 
nominees voted on. If they come to the committee and they do not have a 
recommendation, they should still come to the floor, or if they have a 
recommendation they not be approved, they should still come to the 
floor, or if they have a recommendation they be approved, they should 
still come to the floor. But it is fair for a President to have a vote 
on their nominations.
  We have seen this President's numbers on appointments. That is right. 
Why has he had so many people appointed? Because he has nominated great 
jurists, and could they have filibustered others, they would have. The 
ironic part is that they say that Priscilla Owen is ``not qualified.'' 
However, in the negotiations leading up to the point we find ourselves, 
the offer has been made that we can pick two out of any four of the 
people who are on the queue to come before this body and let those two 
go through and two be thrown away. If that is the case, if any two will 
do, then they are obviously qualified. If they are acceptable under a 
deal, then they are obviously qualified.
  The argument against qualification, the activist charges do not hold 
water. What does hold water is the fact that these individuals who 
stand in the mainstream of American thought, values, and ideals will be 
appellate judges and that someday maybe have an appointment or a 
nomination for a Supreme Court judgeship. That holds water. We have to 
decide in the Senate whether or not we are going to allow the process 
of filibustering judicial nominations to continue. If it continues, 
then lots of good people will never put their name in the hat. Lots of 
good people will never be on the court. What will be on the court are 
people who are not proven, people who do not have a record, people who 
are not the best. That is what will be on the court. The country 
deserves better, the Senate can do a better job than we are doing 
today, and it is my hope that we can resolve this conflict in a way 
that will create in the Senate a reputation that says reconciliation 
over the issues that divide us is a principle that we can all work on, 
that we can solve,

[[Page S5433]]

that we can do the work of the American people. But if that is not 
possible, then it is well within the constitutional powers of the 
leader of this body to change the rules so that we can carry out our 
constitutional responsibilities.
  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. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  THE PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________