[Congressional Record Volume 151, Number 71 (Wednesday, May 25, 2005)]
[Senate]
[Pages S5864-S5865]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SCHUMER. Mr. President, let me thank my colleague and friend from 
Illinois for his incisive comments on a very important topic.
  I am here to discuss the vote we will take at noon on the nomination 
of Priscilla Owen to the U.S. court of appeals. We all know a lot has 
changed in the last 48 hours. The Senate has stepped back from the 
precipice of a constitutional crisis. Our robust system of checks and 
balances has been saved from an unprecedented attack. Fourteen 
moderates came together and said we are not going to tolerate a nuclear 
option and that we are asking the President to come and talk to us 
before he makes a nomination.
  While the compromise reached by 14 Senators has dramatically changed 
the outlook for the Senate, one thing has not changed, the record of 
Justice Priscilla Owen. I want to spend some time talking about that 
record, though it speaks for itself.
  There is no question that Justice Owen attended fine schools and 
clearly is a very bright woman. But there is also no question that she 
is immoderate, she is a judicial activist, and she puts her own views 
ahead of the law's views. In case after case, Justice Owen comes to 
conclusions that are simply not justified by the facts or by the law. 
These decisions consistently come down against consumers, against 
workers, against women seeking to exercise their constitutional rights.
  In choosing judges, in voting for judges, I have one standard and one 
standard alone. It is not a litmus test on any one issue. It is simply 
this: Will judges interpret law or not? Will judges do what the 
Founding Fathers said they should do--because, after all, they are not 
elected--and interpret what the legislature and the President have 
wanted and the Constitution requires, not put their own views above the 
people's views?

  If there was ever a judge who would substitute her own views for the 
law, it is Justice Owen. Her record is a paper trail of case after case 
where she knows better than 100 years of legal tradition. It does not 
matter how brilliant a nominee is, or what a great education or career 
she has had; if she puts her own views above the law's views, she does 
not belong on the bench. It is as simple as that. In case after case, 
that is just what Justice Owen has done.
  She thinks she knows better than the 100 years of established law 
tradition. She thinks she knows better than what the people have 
wanted, as enunciated by their legislators. Her own views take 
precedence over all other views. That is why she does not belong on the 
bench.
  Let me go over a few cases, a few of many, where she has done this. 
In one case, In re Jane Doe, Judge Owen's dissent came under fire from 
her colleagues of the Texas supreme court. They referred to her legal 
approach as an effort to ``usurp legislative function.''
  Even more troubling, Attorney General Alberto Gonzales, who sat on 
the same court as Judge Owen at the time, wrote a separate opinion. He 
went out of his way to write a separate opinion to chastise the 
dissenting judges, including Justice Owen, for attempting to make law, 
not interpret law from the bench.
  Here is what Judge Gonzales said. He said that to construe the law as 
the dissent--that is what Priscilla Owen did--would be ``an 
unconscionable act of judicial activism.'' How ironic. The very same 
conservatives who rail against judicial activism are putting at the top 
of their pantheon a judge who, by Alberto Gonzales's own testimony, is 
an activist, somebody who thinks, ``I know better.''
  Activism does not mean left or right. Activism means putting your own 
views above the law. That is not what the Founding Fathers wanted.
  Let's look not at my words but at those of Judge Gonzales. They are 
words of a man who served for 4 years as President Bush's White House 
counsel. He is now the Attorney General. He is a distinguished 
conservative. Some of my colleagues have tried to suggest that Mr. 
Gonzales was not referring to Justice Owen by his caustic comment. Who 
are we kidding? It was brought up at her hearing originally. He didn't 
say a peep. Only now that she is controversial, people said: Well, 
explain yourself. I am sure he was pressured.
  I direct my colleagues to a New York Times article by Neil Lewis last 
week which reported that Attorney General Gonzales specifically 
admitted he was referring to Justice Owen's dissent, among others, in 
his written opinion.
  Let's take another case, Montgomery Independent School District v. 
Davis. There the majority, also including Judge Gonzales, ruled in 
favor of a teacher who had wrongly been dismissed by her employer. 
Justice Owen dissented, deciding against the employee. That is what she 
typically does.
  The majority, which included Judge Gonzales, ruled in favor of a 
teacher who had been wrongly dismissed by her employer. Justice Owen 
dissented, siding against the employee. The majority, including Judge 
Gonzales once again, wrote that:

       Nothing in the statute requires what the dissenters claim.

  They went on to say:

       The dissenting opinion's misconception stems from its 
     disregard of the rules that the legislature established. . . 
     .

  And that:

       The dissenting opinion not only disregards procedural 
     limitations in the statute but takes a position even more 
     extreme than argued by the employer.

  There is Justice Owen. She looks very nice. But here is another case 
where she not only put her own view on the table, but she went further 
even than the defendant employer did. That is why she does not belong 
on the bench. She always does that, time and time again.
  A third case, Texas Department of Transportation v. Able, again 
Justice Gonzales took Owen to task for her activism.
  I am not going to get into all these cases but they are clear. 
Justice Owen, yes, she has a good education; yes, she has had a 
distinguished, long career; and, yes, she just does not belong on the 
bench because she thinks her views are better, more important, and 
superseding the views of the law, the views of the legislature, the 
views of the people.
  I want to speak for the few more minutes I have left about the 
agreement and where we go from there. It is one thing to put on the 
bench mainstream conservatives, who do not adhere to an extreme agenda. 
I have voted for many, many of the judges we have confirmed so far. 
Many of them have views on choice or other things quite different from 
my own. Where we have a duty is to stand up and oppose

[[Page S5865]]

nominees who are outside the mainstream. We have a duty to the 
Constitution and a duty to the American people not simply to 
rubberstamp the President's picks. Mark my words, we are going to 
fulfill those duties as long as we have to. That is our constitutional 
obligation.
  But there is not a single Senator on our side of the aisle who wants 
these fights. There is not a single Senator on our side of the aisle 
who wants to oppose even one of the President's nominees. We would be a 
lot happier if we could all come together. We have done that on the 
district courts in New York. They are all filled. I consulted with the 
White House, with the Governor, and we came to agreements. We can do 
it. If the White House and I can come to an agreement, so can the 
Senate and the White House on who should be judges.
  But there is an important point here. How did we solve the problems 
in New York? The President and the White House consulted with the 
Senators and with the Senate. As the compromise of 2005 sets out, 
President Bush must consult with the Senate in advance of nominating 
appellate judges to the bench. ``Advise and consent.'' To get the 
consent, you need the ``advise.''
  So I again call on the President, once and for all, to tell him we 
can solve this problem by coming together, by him consulting. I really 
believe we can solve this problem. But we are not going to find common 
ground when we keep seeking nominees who will be activists on the 
Federal bench. We are not going to solve this problem if the President 
stands like Zeus on Mt. Olympus and hurtles judicial thunderbolts down 
to the Senate. He has to consult. He has to ask us, as President 
Clinton did.
  Why did President Clinton's Supreme Court nominees have no trouble in 
the Senate? I would argue because the President proposed a number of 
names to Orrin Hatch, hardly his ideological soulmate, and Orrin Hatch 
said this one won't work and that one won't work, but this one will and 
this one will. President Clinton heeded Senator Hatch's advice. As a 
result, Justice Breyer and Justice Ginsburg didn't have much of a 
fight. Some people may have voted against them, but it didn't get to 
the temperature that importuned my colleagues to filibuster--which they 
did on some other judges, although unsuccessfully: Judge Paez, Judge 
Berson, et cetera.
  Mr. President, this is a plea to you. Let us take an example from the 
group of 14. Please, consult with us. You don't have to do what we say, 
but at least seek our judgment. If we say this judge would be 
acceptable and that judge will not--take our views into consideration. 
What will happen is it will decrease the temperature on an awfully hot 
issue. But second, and more importantly, it will bring us together so 
we can choose someone if the Supreme Court should have a vacancy, and 
we can continue to choose people when the courts of appeal have 
vacancies, without a real fight.
  It can work. It has worked in New York between this White House and 
this Senator. It has worked at the national level, at the Supreme Court 
level, when President Clinton consulted with Republicans in the Senate, 
who were in the majority. It can work now. The ball is in President 
Bush's court. If he continues to choose to make these judgments 
completely on his own, if he continues to stand like Zeus on Mt. 
Olympus and just throw thunderbolts at the Senate, we will not have the 
comity for which the 14 asked.

  A very important part of their agreement was for the President to 
start paying attention to the advise, in the ``advise and consent.''
  Again, the ball is in his court. If the President starts doing that, 
I am confident this rancor on judges will decline, the public will see 
us doing the people's business, and the generally low view that the 
public has had of this body because of the partisan rancor will be 
greatly ameliorated.
  Mr. President, again, you can change the way we have done these 
things, but only you can. Please, consult the Senate. Bring down hot 
temperatures that now exist.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.

                          ____________________