[Congressional Record Volume 151, Number 67 (Thursday, May 19, 2005)]
[Senate]
[Pages S5453-S5454]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Schedule

  Mr. FRIST. Mr. President, today we will resume executive session to 
consider Priscilla Owen to be a U.S. circuit court judge for the Fifth 
Circuit. We will continue the debate, as we did yesterday, by rotating 
back and forth between the aisle every 60 minutes. I think this orderly 
flow of debate will be helpful in terms of scheduling Members' speaking 
times. It worked well yesterday, and I would expect it to be orderly 
today as well. I know there is a large number of Senators who have 
indicated their desire to speak, and we will remain on the nomination 
to give everyone a chance to fully voice their concerns and their 
discussion on this very qualified nominee.
  I am hopeful that at some point we will be able to schedule a vote on 
the nomination, and I will update Members later today on the upcoming 
schedule as it relates to the nomination of Priscilla Owen.
  Mr. President, I will have a brief statement--the Democratic leader 
and I were just discussing our plans--and then he will have a 
statement, and then at that juncture I believe we will proceed as we 
set out the time schedule yesterday, alternating back and forth.
  Mr. President, we did, yesterday, have a vibrant and spirited debate 
on the Senate floor. We have been debating a very simple principle--one 
based on fairness and one grounded in the Constitution. The principle 
is that judicial nominees, with the support of a majority of Senators, 
deserve a fair up-or-down vote on the floor of the Senate.
  Yesterday, 21 Senators--evenly divided, I believe 11 Republicans and 
10 Democrats--debated for over 10 hours on the nomination of Priscilla 
Owen. We will continue that debate--10 hours yesterday--maybe 20 hours, 
maybe 30 hours, and we will take as long as it takes for Senators to 
express their views on this qualified nominee.
  But at some point that debate should end and there should be a vote. 
It makes sense: up or down, ``yes'' or ``no,'' confirm or reject; and 
then we move on in regular order.

  Senators can vote to confirm or reject a nominee. But we should 
fulfill our constitutional responsibility to give advice and consent by 
voting up or down.
  The nominee before us is Priscilla Owen, a Texas Supreme Court 
justice nominated to serve on the Fifth Circuit Court of Appeals. I 
have studied her record. I have had the opportunity to meet with her 
personally. I believe she would serve our Nation well as a circuit 
court judge.
  Her academic and professional qualifications are outstanding. She 
graduated near the top of her class in law school, and she once 
achieved the highest score in the State of Texas on the bar exam. The 
American Bar Association unanimously rated her ``well qualified,'' its 
highest possible rating.
  Her opponents suggest she is a judicial activist who is out of the 
mainstream. Her record simply shows that is not true. She was reelected 
by 84 percent of Texans. Are 84 percent of Texans really out of the 
mainstream? She is supported by Republicans and Democrats on the Texas 
Supreme Court. She has been endorsed by every major newspaper in her 
home State.
  That is a mainstream record.
  In her judicial decisions, some on the floor over the last day, and 
actually last week as well, have criticized her as a judicial activist 
in cases, and the focus has always been on these cases involving a 
parental notification law.

[[Page S5454]]

The law is not about whether a minor is able to have an abortion or 
whether a minor must receive parental consent before having an 
abortion. The law simply requires a parent to be notified if their 
child is having an abortion, except in certain circumstances.
  The author of the law, and 26 other members of the Texas legislature, 
have defended Justice Owen's opinions, and it is spelled out clearly in 
a letter of May 16, 2005, that is signed by the author of the 
legislation itself and 26 other members of the Texas legislature.
  The letter is interesting. It is a letter dated May 16, and it is a 
letter that was sent to Senator Specter, of the Judiciary Committee, 
and Senator Leahy. The letter is indeed quite powerful. I would like to 
read just a couple sections from the letter.
  Mr. President, I ask unanimous consent that following my remarks the 
entire letter be printed in the Record.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. FRIST. The letter reads pretty clearly: ``Dear Chairman 
Specter''--and there was a copy sent to Senator Leahy. This is from the 
author of the legislation of which these accusations of judicial 
activism have been floating around on the floor. These are the authors, 
the people who wrote--who wrote--the legislation. I quote from the 
letter:

       I, along with my colleagues in the Texas Senate and Texas 
     House of Representatives, am writing to express my full and 
     unconditional support for Justice Priscilla Owen's nomination 
     to the U.S. Court of Appeals for the Fifth Circuit. As the 
     author of the Texas Parental Notification Act, I followed 
     closely the Texas State Supreme Court rulings regarding that 
     statute. As such, we are disturbed by the recent attacks on 
     Justice Owen's review of the Texas Parental Notification Act. 
     Justice Owen's opponents have characterized her as an 
     activist member of the bench, and nothing could be further 
     from the truth.

  The letter continues:

       To the contrary, her opinions interpreting the Texas 
     Parental Notification Act serve as prime examples of her 
     judicial restraint.

  Mr. President, I will have my colleagues read the remainder of the 
letter. It goes on and gives examples in explaining that statement. And 
then, down in the following paragraph, I quote:

       Throughout the series of cases, Justice Owen's 
     interpretation of legislative intent were based on careful 
     reading of the new statute and the governing U.S. Supreme 
     Court precedent.

  This is the final sentence of the letter:

       In short, Justice Owen's academic and professional 
     qualifications are beyond question. We strongly urge Senators 
     to vote positively on her nomination.

  Again, it is signed by the author, Florence Shapiro, and, again, 26 
others from the house of representatives and senate in Texas.
  In addition, a pro-choice Democratic law professor also has defended 
Justice Owen. This professor, Linda Eads, is a member of the Texas 
Supreme Court Advisory Committee that drafted rules to help judges 
deciding cases under this law, the parental notification law. She says 
Justice Owen's decisions ``do not demonstrate judicial activism. She 
did what good appellate judges do every day . . . if this is activism, 
then any judicial interpretation of a statute's terms is judicial 
activism.''

  If you look fairly at Justice Owen's record, you will see a well-
qualified, mainstream judge.
  But I will say, as we step back and look at the larger debate, some 
Senators may draw different conclusions about Justice Owen, and they 
may decide she does not deserve confirmation. Indeed, they may decide 
that none of the President's nominees deserve confirmation. And they, 
as Senators, are entitled to that choice. But they should express that 
choice, give that advice and consent by a vote, an up-or-down vote, 
``yes'' or ``no,'' confirm or reject. They should not hide behind a 
procedure that prevents 100 Senators from their responsibility, their 
duty to vote ``yes'' or ``no'' on the nominee, up or down.
  As everyone knows, I have advocated fair up-or-down votes for 
judicial nominees again and again and again and will continue to do so. 
In the past, some of our colleagues on the other side of the aisle have 
shared this view. Many of them have argued forcefully and eloquently 
for up-or-down votes on judicial nominees. Let me share some of their 
arguments with you.
  One Senator on the other side of the aisle, in opposition to giving 
up-or-down votes today, said:

       [E]veryone who is nominated ought to have a hearing and to 
     have a shot to be heard on the floor and have a vote on the 
     floor.

  Another Democratic Senator said:

       A nominee is entitled to a vote. Vote them up; vote them 
     down. . . . If there are things in their background, in their 
     abilities that don't pass muster, vote no. Our institutional 
     integrity requires an up-or-down vote.

  Another Democratic Senator noted that:

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

  These are all arguments from my Democratic colleagues in years past. 
These quotes capture what this debate today is all about. It is about 
fairness. It is about principle. It is about the constitutional duty of 
every Senator. The Senate must do what is right. We must do what is 
fair. We must do the job the American people elected us to do.
  So let us continue to debate. Let Senators exercise their right to 
speak. We may not agree. We will not agree on every judicial nominee, 
but we can agree on the principle that every qualified judicial nominee 
deserves an up-or-down vote.
  I yield the floor.

                               Exhibit 1


                               Texas State Senate, District 8,

                                       Plano, Texas, May 16, 2005.
     Hon. Chairman Arlen Specter,
     Committee on the Judiciary, U.S. Senate, Russell Senate 
         Office Bldg., Washington, DC.
       Dear Chairman Specter: I, along with my colleagues in the 
     Texas Senate and Texas House of Representatives, am writing 
     to express my full and unconditional support for Justice 
     Priscilla Owen's nomination to the U.S. Court of Appeals for 
     the Fifth Circuit. As the author of the Texas Parental 
     Notification Act (SB 30/HB 623), I followed closely the Texas 
     State Supreme Court rulings regarding that statute. As such, 
     we are disturbed by the recent attacks on Justice Owen's 
     review of the Texas Parental Notification Act. Justice Owen's 
     opponents have characterized her as an activist member of the 
     bench, and nothing could be further from the truth.
       To the contrary, her opinions interpreting the Texas 
     Parental Notification Act serve as prime examples of her 
     judicial restraint. Although some might try to hold up the 
     Texas Parental Notification Act as a litmus test on abortion, 
     they simply cannot make the case. The Act is not about 
     whether a minor is able to have an abortion or must receive 
     parental consent, but whether a parent should be notified. 
     The Act recognizes that a girl may have an abortion and does 
     not question whether the Constitution guarantees that right.
       Throughout the series of cases, Justice Owen's 
     interpretations of legislative intent were based on careful 
     reading of the new statute and the governing U.S. Supreme 
     Court precedent. For example, Justice Owen's opinion that a 
     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.'' This opinion is consistent with prior 
     U.S. Supreme Court precedent stating: ``The waiting period, 
     for example, may provide the parent or parents of a pregnant 
     young woman the opportunity to consult with her in private, 
     and to discuss the consequences of her decision in the 
     context of the values and moral or religious principles of 
     their family'' (Planned Parenthood v. Casey).
       In short, Justice Owen's academic and professional 
     qualifications are beyond question. We strongly urge Senators 
     to vote positively on her nomination.
           Very truly yours,
                                            Sen. Florence Shapiro,
                                            President Pro Tempore.

         Sen. Chris Harris; Sen. Jane Nelson; Rep. Brian McCall; 
           Rep. Harvey Hilderbran; Rep. Suzanna Gratia Hupp; Rep. 
           Betty Brown; Rep. Robert E. Talton; Rep. Kent 
           Grusendorf; Rep. Gary Elkins; Rep. Edmund Kuempel; Rep. 
           Joe Crabb; Rep. Leo Berman; Rep. Mike Krusee; Rep. 
           Dianne White Delisi; Rep. Joe L. Driver; Rep. Frank J. 
           Corte, Jr.; Rep. Fred Brown; Rep. Peggy Hamric; Rep. 
           Joe Nixon; Rep. Mary Denny; Rep. Elvira Reyna; Rep. 
           Geanie Morrison; Rep. Eugene Seaman; Rep. Anna Mowery; 
           Rep. Richard L. Hardcastle; and Rep. Ray Allen.