[Congressional Record (Bound Edition), Volume 148 (2002), Part 12]
[Senate]
[Pages 16193-16205]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    THE NOMINATION OF PRISCILLA OWEN

  Mr. SESSIONS. Mr. President, we had a very sad day today. The Senate 
Judiciary Committee, on a party-line, partisan vote of 10 to 9, voted 
down the nomination of Priscilla Owen, a justice on the Texas Supreme 
Court, for a position on the Fifth Circuit Court of Appeals.
  Having practiced many years in Federal court, 15 years full-time as a 
Federal prosecutor, I care about the Federal courts. I want it to be 
the very best it can be. I believe deeply in the rule of law in 
America. I believe it is a tradition we have to cherish and turn over 
to our children and our grandchildren, so that it has the same 
strength, moral coherence, and integrity that it has always had.
  In fact, most of the nations around the world today that are 
struggling so badly--the Third World nations--are not struggling 
because their people will not work or because they do not have 
resources. Too often, it is generally because there is no legal system 
that can operate where people can make loans and expect them to be 
repaid, or where they can own property and not have it stolen from 
them. So the legal system is exceedingly important.
  What happened this morning--and it was particularly tragic--
represents a culmination of a decision, apparently reached a year or so 
ago, when President Bush was elected, and three liberal activist 
professors--Laurence Tribe, Cass Sunstein, and Marcia Greenberger--met 
with the Democratic Conference to discuss judicial nominations. And 
they asserted that President Bush had won by only a small margin and, 
therefore, he did not have the same authority that other Presidents had 
to nominate judges, forgetting, of course, that the total vote 
percentage received by President Clinton, I believe, was only about 44 
percent. President Bush got a larger percentage of the American vote 
than Clinton did.
  But at any rate, these professors set about to deliberately alter the 
confirmation ground rules. In fact, a newspaper--I believe the New York 
Times--reported that they had met to discuss changing the ground rules 
on the nominations of Federal judges. And it was a real serious thing.
  So, well, that is politics. You hear those kinds of things.
  You wouldn't think that the decisions we have used since the founding 
of this Republic, certainly in the last 60 years of anybody's 
recognition here of the normal way things are done, would be changed 
significantly, but I am afraid we may be wrong. We may be seeing 
significant change. I am hopeful that is not the case. Maybe we can 
turn it around. Maybe it is not too late. But today's vote was very 
disturbing because we had one of the finest nominees ever to come 
before this Senate, a nominee that clearly had the votes to pass on the 
floor of the Senate but was voted down in committee, blocked from 
coming to the floor of the Senate so we could have a full airing and a 
full vote.
  We had some hearings in the Judiciary Committee and subcommittees on 
how to change the ground rules. Some liberals, including law professors 
alleged in one of the hearings that one out of every four Supreme Court 
nominees during the first 100 years of this country were voted down 
because of ideology. We have checked that in detail and researched 
those allegations, and that is just not true. They suggested that the 
burden should lie on the nominee to prove him or herself worthy. We 
demonstrated that history did not support that position. They asserted 
that the Supreme Court of the

[[Page 16194]]

United States is a right-wing Court and that ideology drives what they 
do, undermining respect for the law. I reject that characterization of 
the Supreme Court.
  They said that the ABA ratings need to be given consideration, except 
in this case the nominee got a unanimously well-qualified rating, the 
highest possible rating of the ABA.
  They said that we don't want to have a judge that would vote to 
overrule Roe v. Wade. We can't have a right-wing activist. And they 
asserted that ideology or politics is a basis for rejecting a nominee.
  We had hearings on that. Lloyd Cutler, who served as counsel for two 
different Democratic Presidents, flatly rejected that in the hearing, 
made a strong statement saying this would politicize the courts. So did 
Griffin Bell, former Attorney General under President Jimmy Carter. 
They rejected this ideological approach to the judiciary, something we 
have never done in this Senate's history.
  One thing we noticed, all of these arguments don't meet the test of 
logic or history or facts except one, and that was the one chosen--raw 
political power to vote down a nominee of extraordinary capability 
submitted by President Bush. We have not seen that before.
  We had at one of the hearings a Democratic justice, former justice 
retired from the Supreme Court of Texas. He was here to support Justice 
Owen from Texas. He said to me after the hearing: At least for some of 
these nominees there was a basis to vote against them, but they have no 
basis to oppose Owen. They put out nothing on her.
  That is a fact. Nothing was said that would undermine her ability, 
even if you were highly suspect of a nominee. To me, there were just no 
facts there. She conducted her life not politically but professionally, 
as a lawyer, with integrity and outstanding ability.
  They said that in the first 100 years so many Supreme Court Justices 
were voted down on ideology. That is an absolutely untrue statement. In 
fact, only a few were rejected for political reasons, and sometimes 
those battles were pretty tough in the days of the founding of this 
country.
  We do know that they didn't even have hearings on most of them.
  They say that the burden should be on the nominee. Well, if history 
is to serve as a guide, we would do well to think about what we have 
done here. During the first 130 years of our country's history, the 
Senate did not even ask a nominee to come before the Senate for a 
hearing. The first nominee to even appear before the Senate before 
confirmation was Justice Harlan Fisk Stone, in 1925. Nominees did not 
appear regularly before the Judiciary Committee until John Marshall 
Harlan in 1955. Occasionally the committees asked a few nominees 
questions in writing, but there wasn't the kind of examinations we have 
today.
  So it would be difficult for anyone to argue that historically we 
have put the burden on the nominee to prove their worthiness.
  What we have always done is that the President submits people. The 
Senators from that home State have to approve that nominee. If they 
don't approve, the nominee almost universally is not confirmed. But if 
the home State Senators approve, it comes up before the committee, and 
the committee looks to see if they are extreme, if they have good 
integrity, if they have basic legal skills, that they have a proven 
record of capability and respect within the bar that would make them 
worthy of the position of a lifetime appointment on the bench.
  The Senate is not a rubber stamp. It should not vote for every 
nominee, just because the President submitted that nominee. But we 
ought to have a basis within that traditional realm of evaluation of a 
nominee to vote one down. That was lacking here today.
  As Senator Orrin Hatch said: Her testimony was perhaps the finest 
testimony ever received in his time as chairman and ranking Republican 
on that committee.
  Those are the facts about our history. My Democrat colleagues assert 
somehow that the Supreme Court of the United States is a right-wing 
Court and that we need a balance. We need to make sure that moderate or 
liberal nominees get put on for every moderate or conservative or 
liberal that was on there, some sort of balancing out, some sort of 
moderate deal. That is not the way we have done nominations. The 
President submits nominees. We evaluate them and see if they are 
worthy.
  I will just ask: What is moderation? What does that mean? Does that 
mean you enforce half the law? You analyze it halfway? You don't make 
anybody mad with your ruling? You try to carve your ruling so it 
satisfies everybody? If the statute of limitations is run and the 
person wants $10,000, do you give them $5,000? Is that justice? Is that 
moderation? I don't think so.
  This Supreme Court has faced some tough decisions. It protected the 
burning of an American flag and said that the act of burning a flag is 
free speech. The act of burning a tangible object is covered by the 
first amendment protection of free speech. I don't think that is good, 
in my personal view. But you had people such as Justice Scalia, 
supposedly a conservative, voting for that with others. I think it was 
a bad decision. But they ruled on that, this so-called right-wing 
Court.
  They banned voluntary school prayer at high school football games. 
Former Judge Griffin Bell of the 11th Circuit Court of Appeals, 
actually originally from the Fifth Circuit Court of Appeals, and 
Attorney General of the United States under President Carter, once 
said--perhaps in jest; perhaps not--nobody ought to serve on the 
Supreme Court, on the Federal bench, that doesn't believe in prayer at 
football games.
  I don't think that is a good opinion. I don't believe a voluntary 
prayer at a football game violates the establishment clause of the 
first amendment, but that is what the Supreme Court has ruled, and many 
other cases along that line.
  They stopped the police from using heat sensors to search for 
marijuana-growing equipment in houses. That was pretty much considered 
a liberal opinion.
  They struck down a law that bans virtual child pornography, which I 
was disappointed to see since, as a prosecutor, I know how difficult 
that is going to make it for prosecutors to be successful. And they 
reaffirmed and expanded abortion rights to include substantial 
protections for partial-birth abortion, this so-called right wing 
Supreme Court. That is a bogus argument also.
  (Mr. DAYTON assumed the Chair.)
  Mr. SESSIONS. Well, they said the ABA rating was the gold standard, 
but that didn't help them in this argument because the ABA unanimously 
voted that Priscilla Owen was well qualified for the Eleventh Circuit. 
They had seen her practice law, they had seen her as a justice of the 
Texas Supreme Court, and they found that she was well qualified, giving 
her the highest rating. The bar association, as I recall, has 15 
members of the committee that actually does that vote. Heretofore, they 
didn't say anything about whether you were qualified, well qualified, 
or unqualified. Now they tell you whether or not it was unanimous. It 
is hard to get 15 of them to be unanimous. They select the committee 
that evaluates them, and it is a fairly sizable committee. Many are 
civil rights attorneys, some are big law firm attorneys, some are 
individual practitioners, and others are officials in the State bar. It 
is a big committee, and it is hard to get a unanimous vote of well 
qualified, but she was so rated.
  They said: We don't want anybody who would reverse the right of a 
woman to have an abortion--reverse Roe v. Wade. Well, everybody knows a 
judge on the Fifth Circuit cannot overrule the Supreme Court's opinions 
on abortion. They cannot overrule any Supreme Court decision, including 
Roe v. Wade. In fact, the Fifth Circuit has explicitly adopted Roe v. 
Wade in Planned Parenthood v. Casey. Both of those are big-time, 
important abortion cases. They have already affirmed those.
  Priscilla Owen has never voted on or opposed Roe v. Wade, as Justice 
Byron

[[Page 16195]]

White did when he was on the Court. She never called Roe v. Wade a 
``heavy handed judicial intervention,'' as Ruth Bader Ginsburg, 
President Clinton's nominee to the Supreme Court, did. She never voted 
for a statute to ban abortion, as Al Gore did, or never supported a 
constitutional amendment to ban abortion, as Dick Gephardt, the would-
be Speaker of the House, has done in the past. Would all of these 
individuals be blackballed and fail to pass a lockstep test of the 
Democratic majority on the Senate Judiciary Committee if they were 
nominated for a Federal judgeship? I think this is going a bit far.
  So we have heard that we cannot have a conservative judicial activist 
on the court. I agree with that. You can have people who are so 
conservative that they force their agenda by reinterpreting the words 
of statutes, as well as you can have a liberal do that. The traditional 
conservative theory of law is that you respect the laws passed by the 
legislature and enforce them as written, whether you like it or not.
  Traditionally, the ideology of the left--as is dominating in our law 
schools today, unfortunately--is that--really, today they are getting 
awfully cynical--the law is truly a tool of one group to oppress 
another group, that words don't have any finite meaning and you can 
make them mean whatever you want to say, and that the law is a tool for 
social progress and not a protection of rights, as we have understood 
it.
  Traditionally, in the last 30 years, most of the activism has come 
from the left. We have actual people who assert with quite a strong 
conviction that if the legislature didn't act, the court had to act. 
Have you ever heard that? I think we hear that pretty often. But think 
about it. Particularly in Federal Court when you have a lifetime-
appointed judge. Well, let's see. The legislature didn't act, so now we 
can do whatever we want to as a judge, or as the court.
  Well, if the legislature did not act, and they are the duly elected 
representatives of the people, then in fact they have acted, haven't 
they? They have decided not to act on whatever political agenda 
somebody has. And that does not justify a judge becoming a legislator 
because of that.
  I think this is important also. This nominee, Priscilla Owen, has 
just been magnificent and disciplined in her view of the law. One of 
the things they complained about was her interpretation of a single 
Texas statute, passed by the legislature--the parental notification 
statute. She clearly followed the legitimate sources of law in 
interpreting that. She read the statute clearly. She interpreted the 
words of the statute using the pro-abortion cases of the U.S. Supreme 
Court upon which the statute was based, and it was not an act of 
activism. In fact, Senator DeWine carefully analyzed these matters, and 
in the 12 cases under this statute--and this was the biggest point made 
against this fine nominee's record--in 3 of them she voted with a 
minority of the judges on the Texas Supreme Court. Most of the time, 9 
cases, she voted with a majority.
  By the way, in every case that reached the Supreme Court of Texas, 
the Texas law was vaguely written and difficult to interpret, and it 
involved a situation in which a trial judge and an intermediate court 
of criminal appeals had both ruled that notification of a parent had to 
occur before an abortion by a minor could be conducted. So she was, in 
each instance, voting on a case in which a trial judge saw the 
situation firsthand, and an intermediate court of appeals had ruled in 
the same way Justice Owen ruled. In each case that she ruled against 
the majority, she ruled in favor of the intermediate court of appeals 
and the trial judge--not an extreme record, trust me.
  We looked at this hard. Senator DeWine's analysis of it was very 
thoughtful and persuasive. Well, they say, that is bad, we don't want a 
parent to be notified. Some states have parental consent, where a 
parent has to consent to an abortion for a teenager. In some States, 
they have to have consent to get a tattoo, or an earring, or a nose 
ring, but they don't need to have consent to get an abortion. All it 
said was they had to tell at least one parent, unless there was an 
excuse not to. It did not require permission of that parent. And 82 
percent of the people in this country, when polled, say they favor 
parental notification.
  So who is extreme here? Is it the group smearing her for enforcing a 
rather modest Texas law, or is it the nominee herself?
  Actually, her study of that was very carefully done, I thought, and 
actually utilized definitions in the U.S. Supreme Court opinion to help 
clarify the definitional tools of Texas law on the correct presumption 
that when Texas had the parental notification law, they tried to make 
it compatible with the Supreme Court ruling, which is what a great 
judge does.
  Well, only the most extreme liberal groups such as NARAL, Planned 
Parenthood, and the ACLU, that have been active against her, could see 
anything wrong in this, in my opinion.
  Well, they said you can't get into politics. That is something to 
discuss. This nominee hardly has any politics. Senator Gramm from Texas 
said when people asked her to run for the Supreme Court of Texas, she 
could not remember, when asked, which primary she voted in last time, 
Republican or Democrat.
  She finished third in her class at Baylor Law School and was one of 
the finest litigators in Texas, well respected. When she was approached 
to run, she was a single mom. She gave up a highly lucrative law 
practice to take on the race for the supreme court. She won, and then 
won again, with 84 percent of the vote. She had the endorsement of 
every single newspaper in Texas of any size. She was an exceptional 
candidate in every way.
  She is not a person who is a political warrior. As Senator Gramm 
said, ``I am a political warrior, I know what one is.'' This lady is 
not. As Senator Hutchison of Texas, who knows her and supports her, 
assures us, this is a legal professional who goes about her day trying 
to do the right thing.
  The danger in all this, to my way of thinking, is that we are sliding 
into a concept that the courts in America are inherently political and 
they cannot be trusted to enforce the law as written. Indeed, these 
professors assert and many of them are teaching in law school today--
and it is quite a source of debate in law school--that they believe you 
cannot know anything, that nothing is really knowable, that there is 
really no truth, that character really does not count, that there are 
just winners and losers. If you do not get your judge on the court, you 
do not win.
  That is a dangerous philosophy. In fact, I raised it with Professor 
Laurence Tribe, the brilliant activist liberal law professor. In his 
written statement to our Judiciary Committee when we had hearings, he 
flat out said, that we might as well reject the Olympian ideal of 
justice under law--that an Olympian ideal was an illusory concept.
  That theory is a threat to the rule of law in America, and I think we 
saw it played out in Committee this morning because they basically 
said: This lady did not agree with parental notification; we heard she 
was a conservative; we cannot trust her to interpret the thousands and 
thousands of cases that come before her. That is not true.
  I practiced as a Federal prosecutor before Federal judges and tried 
hundreds of cases. I was there for years. There may be a case every now 
and then that a judge's philosophy of life--you would expect one more 
likely to buy this argument than that argument. But if you had the 
cases, if you had the law, if you had the authority, whether the judges 
were Republican, Democrat, liberal, conservative, routinely, day after 
day in my court and every court in America, judges followed that. This 
is a dangerous concept to be selling around here.
  Yes, we have politics in this body. There is nothing in the Senate 
that is not involved in politics. Of course, we are a political body. 
That is not true in courts, and if it is, we are in big trouble.
  Why should you respect a court if you do not believe they are 
enforcing the law? We have people who believe

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that rules of property ownership are ways to oppress people who do not 
have property by people who have property and that the enforcement of a 
deed is somehow an act of class warfare against the poor. If you do not 
own the property, you do not own it in America. They want to say you 
ought to get a part of it anyway. It is a dangerous philosophy we are 
about.
  Mr. President, I will conclude. I feel deeply about this issue 
because what was unique about this rejection of this superb nominee who 
testified brilliantly in addition to having a brilliant record, what 
was most disturbing about this process was that she was ignored. Her 
answers were ignored, and she was just voted down--Raw power.
  Maybe that is supposed to send a message to the President, but this 
is a real person who has a real family, who has dedicated her life to 
the rule of law. She is popular in her home State. She had the 
confidence of the President of the United States who was Governor of 
the State of Texas, and he knows the people in Texas. She has the 
support of Kay Bailey Hutchison and Phil Gramm, the Senators from 
Texas, and she should have been confirmed.
  The failure to do so troubles me because I am afraid we may be 
adopting this postmodernism view that nothing is knowable, that there 
is no truth, that there is no objectivity, and that there is no such a 
thing as a rule of law because it is all just a manipulation; that 
whoever has the power writes the laws to benefit themselves and oppress 
everybody else.
  If that is what we are heading to, I think we have a problem. Maybe 
that is not so. Some have said: Are we going to retaliate? I have been 
asked a lot about that. Is that the way Republicans are going to do the 
Democrats if we get a Democratic President and he submits nominees?
  Let me just say it this way: I do not give up. I am hoping that a 
number of the members of the Judiciary Committee maybe made premature 
commitments on this case, maybe did not realize the full consequences 
of their votes, and that we will not continue to see this kind of overt 
politicalization of the process. I think that should avert a historic 
alteration in the process by which we have dealt with judges in 
confirmation.
  We have to maybe take a deep breath. I am very upset and most of the 
Republican members of our committee are very upset and wonder what 
happened.
  Under President Clinton, only one nominee in 8 years was voted down 
in committee or on the floor of the Senate. We have already had two 
voted down in committee on a party-line vote, and in both cases, the 
nominee would have passed had they been on the floor of the Senate. In 
both cases, there was a majority vote on the floor of the Senate to 
pass them had they gotten out of committee.
  This is not healthy. I respect the talent and ability and commitment 
of my Democratic colleagues on the Judiciary Committee, but they are 
very much a Northeast-West Coast group. They do not represent the legal 
thinking of a majority of Americans, much less a majority of the 
Senate.
  This little group, by sticking together in lockstep fashion, have 
asserted and demonstrated a power to kill nominees before they even get 
a full vote, superb nominees such as Judge Pickering. He had been on 
the Federal bench for 12 years. He was No. 1 in his class in law 
school. He was well qualified by the American Bar Association for the 
Court of Appeals, and he was voted down.
  I think it is a big deal. I am very frustrated about it. There is a 
lot of unease. I do not know of anything to do but to continue to go 
forward, continue to talk to my colleagues, ask them to back off; let's 
go back to the traditional respect given to Presidential nominees, and 
I think we can make progress there.
  Some said a lot of nominees who received well-qualified ratings did 
not get voted on. True, most of those overwhelmingly had objections 
from home State Senators. As soon as the Democratic Members of Congress 
got the majority and Senator Leahy became chairman, they asserted not 
only did they want to maintain that power, but they wanted to 
strengthen it further than they have in the past. I do not see how 
anybody can complain on the senatorial courtesy rule if they, in fact, 
are asserting not only should it be maintained but strengthened.
  If President Bush nominates a judge from New York and Senator Schumer 
objects to that judge, that judge will not move and will not be 
confirmed even though that judge is voted well qualified. That is just 
the way it has been here. Sometimes it is unfair, but that is how it 
has been.
  As Senator Hatch, who just came into the Chamber, who so ably chaired 
the Judiciary Committee, knows, that is just the way it has been. I do 
not see any call for weakening of that rule.
  I would say we have a long way to go in the future to work through 
this unfortunate event. I hope we can. It would be a tragic event, 
indeed, if this Senate were to abandon its historical system of 
evaluating judges.
  I thank the Presiding Officer, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I want to congratulate my colleague Senator Sessions and 
thank him for his kind remarks today. As usual, he is one of the most 
articulate and eloquent spokespeople in this country with regard to the 
Federal Judiciary and, of course, with regard to the law in general and 
the rule of law. I want him to know I have a tremendous amount of 
respect for him and how much I enjoy working with him on the Judiciary 
Committee. The Senator from Alabama adds much to the Judiciary 
Committee. He is a terrific addition to the Committee and will leave 
his mark decades from now for his service in the Senate.
  Mr. President, the Senator from Alabama has made a lot of points on 
what happened in the Judiciary Committee today, but I wanted to take a 
little time, as well, to address the injustice dispensed by the 
Judiciary Committee against Priscilla Owen of Texas. President Bush's 
nominee to the Fifth Circuit Court of Appeals.
  The Committee defeated her nomination today. Although I am afraid it 
was a deal cut long before Justice Owen's hearing occurred, in 
defeating Justice Owen's nomination I regret that my friends on the 
Committee and the Senate Democrat leadership chose the path of 
partisanship over friendship and fairness.
  The justice my colleagues dispensed is like no other the Judiciary 
Committee has ever inflicted. It is incomparable to any controversy 
raised against any nominee, Democrat or Republican. My Democrat 
colleagues rejected a nominee who is unblemished in every respect but 
for the smears of her opponents, smears which go beyond the pale of 
decency, distortions which are outside the bounds of cynicism and 
deceptions which fall below any standard of fairness, even for 
Washington politics and the left-wing professional lobbyists in this 
town.
  For the first time in history, my colleagues rejected a nominee that 
has received the American Bar Association's unanimous rating of well-
qualified, a rating that earlier this year my friends on the other side 
announced to be the gold standard for judicial nominees and which, of 
course, they now criticize because the independent body of the American 
Bar Association has rated President Bush's nominees as highly qualified 
as any we have ever seen.
  I think this vote will be long remembered and regretted on both sides 
of the aisle.
  One sample smear against Priscilla Owen of Texas came this week in 
one of the most outrageously false editorials I have ever read in The 
New York Times, but that editorial said nothing new. The editorialists 
apparently used only the talking points supplied by the usual suspects 
in Washington. Among other falsehoods, the New York Times editorial 
said:

       In abortion cases, Justice Owen has been resourceful about 
     finding reasons that, despite the United States Supreme Court 
     holdings and Texas case law, women should be denied the right 
     to choose.

  The New York Times should be ashamed of themselves--or whoever the

[[Page 16197]]

editorial writer is who wrote this. Under the parental notice cases of 
which they speak, no one is denied a right to an abortion. They are 
absolutely wrong. Abortion rights are not implicated in the parents' 
right to know and to be involved in their children's most painful 
decision, an abortion.
  Even with parental notice, every minor has a right to abortion in 
Texas, and no decision of Justice Priscilla Owen denies that. In fact, 
in Texas, minors cannot get a tattoo without parental consent, but they 
have an unhindered right to obtain an abortion.
  Last year most members of the Judiciary Committee voted to require 
parental consent for 18- to 21-year-olds to get credit cards.
  Such is our world, Mr. President.
  This willful error by The New York Times is one example of the 
deceptions and distortions perpetrated on Justice Owen's exemplary 
record. Of course, The New York Times again repeats the falsehood that 
Judge Alberto Gonzalez, now our White House Counsel, called Justice 
Owen an activist while he was serving on the same court, when in fact 
the truth is that a careful review of the full record of the particular 
case shows he was referring to another judge who wrote another 
dissenting opinion. He was not referring to Justice Owen. Yet we have 
heard time after time the same arguments used against Justice Owen.
  The New York Times was not alone in addressing Justice Owen's 
nomination. I am heartened to know that beyond the overwhelming support 
from her own home State of Texas and the scores of op-ed pieces written 
across the country in support of this nomination, Justice Owen's 
nomination to the Fifth Circuit has received editorial support from 
over 24 newspapers published across the Nation and across the political 
spectrum, including the Washington Post, the Wisconsin State Journal, 
the Wall Street Journal, Amarillo Globe-News, Richmond Times Dispatch, 
Akron Beacon Journal, The Florida Times-Union, The Philadelphia 
Inquirer, The Tampa Tribune, The Detroit News, The Dallas Morning News, 
The Denver Post, The Daily Oklahoman and the Chicago Tribune, to 
mention a few.
  Only three newspapers, in fact, in New York, Los Angeles and San 
Francisco, have come out firmly against this nomination.
  I ask unanimous consent that a selection of these 24 editorials in 
support of Justice Owen be printed in the Record.
  There being no objection, the editorials were ordered to be printed 
in the Record, as follows:

               [From the Washington Post, July 24, 2002]

                          The Owen Nomination

       The nomination of Priscilla Owen to the 5th Circuit Court 
     of Appeals creates understandable anxiety among many liberal 
     activists and senators. The Texas Supreme Court justice, who 
     had a hearing yesterday before the Senate Judiciary 
     Committee, is part of the right flank of the conservative 
     court on which she serves. Her opinions have a certain 
     ideological consistency that might cause some senators to 
     vote against her on those grounds. But our own sense is that 
     the case against her is not strong enough to warrant her 
     rejection by the Senate. Justice Owen's nomination may be a 
     close call, but she should be confirmed.
       Justice Owen is indisputably well qualified, having served 
     on a state supreme court for seven years and, prior to her 
     election, having had a well-regarded law practice. So rather 
     than attacking her qualifications, opponents have sought to 
     portray her as a conservative judicial activist--that is, to 
     accuse her of substituting her own views for those of 
     policymakers and legislators. In support of this charge, they 
     cite cases in which other Texas justices, including then-
     Justice Alberto Gonzales--now President Bush's White House 
     Counsel--appear to suggest as much. But the cases they cite, 
     by and large, posed legitimately difficult questions. While 
     some of Justice Owen's opinions--particularly on matters 
     related to abortion--seem rather aggressive, none seems to us 
     beyond the range of reasonable judicial disagreement. And Mr. 
     Gonzales, whatever disagreements they might have had, 
     supports her nomination enthusiastically. Liberals will no 
     doubt disagree with some opinions she would write on the 5th 
     Circuit, but this is not the standard by which a president's 
     lower-court nominees should be judged.
       Nor is it reasonable to reject her because of campaign 
     contributions she accepted, including those from people 
     associated with Enron Corp. Texas has a particularly ugly 
     system of judicial elections that taints all who participate 
     in it. State rules permit judges to sit on cases in which 
     parties or lawyers have also been donors--as Justice Owen did 
     with Enron. Judicial elections are a bad idea, and letting 
     judges hear cases from people who have given them money is 
     wrong. But Justice Owen didn't write the rules and has 
     supported a more reasonable system.
       Justice Owen was one of President Bush's initial crop of 11 
     appeals court nominees, sent to the Senate in May of last 
     year. Of these, only three have been confirmed so far, and 
     six have not even had the courtesy of a hearing. The fact 
     that President Clinton's nominees were subjected to similar 
     mistreatment does not excuse it. In Justice Owen's case, the 
     long wait has produced no great surprise. She is still a 
     conservative. And that is still not a good reason to vote her 
     down.
                                  ____


             [From the Dallas Morning News, July 25, 2002]

         Owen Nomination; Critics Are Distorting Texan's Record

       After hearing U.S. Court of Appeals candidate Priscilla 
     Owen vilified in recent weeks--called everything from racist 
     to anti-abortion to (gasp!) pro-business--the members of the 
     Senate Judiciary Committee got the chance Tuesday to see for 
     themselves what all the fuss is about. And, after a year in 
     the deep freeze, the 47-year-old Texas Supreme Court justice 
     finally got the chance to defend herself against liberal 
     critics who have distorted her record and character in a 
     bare-knuckled attempt to keep her off the 5th Circuit Court 
     of Appeals.
       One of the biggest distortions is that Justice Owen is a 
     ``Judicial activist'' intent on bending and twisting statutes 
     to fit a rigid political agenda. That is the view of Sen. 
     Richard Durbin, a Democrat from Illinois, who tore into 
     Justice Owen for what he said was a tendency to ``expand and 
     embellish'' in her written opinions. Democratic Sen. Dianne 
     Feinstein of California was more polite but just as direct 
     when she asked Justice Owen point-blank if she was, in fact, 
     a ``judicial activist.'' Justice Owen's response suggests 
     that the Baylor Law School graduate is absolutely clear on 
     what position she is applying for. She has no desire to 
     legislate from the bench, she told Sen. Feinstein. If 
     confirmed, she said, she would do only what the job calls 
     for: interpret the law as written.
       Justice Owen can be trusted to do exactly that, say those 
     in Texas legal circles who know her best. Her supporters 
     include Republicans and Democrats alike, and their vote of 
     confidence should count for something--especially when 
     weighed against the smear campaign engaged by the lobbies of 
     the left.
       As for Justice Owen's personal views on abortion, or on any 
     issue, they remain totally irrelevant. By all accounts, she 
     has spend the last eight years on the Texas high court doing 
     precisely what she this week promised the Judiciary Committee 
     she would continue to do at the federal level.
       Those who oppose a judicial nominee have every right to 
     challenge the nominee. But they do not have the right to--in 
     legal terms--``assume facts not in evidence.'' For all their 
     political games, grandstanding and name-calling, the 
     assembled critics of Priscilla Owen have presented nothing to 
     discredit her.
       The committee should do its best to rectify this situation 
     by scheduling a vote without further delay and approving 
     Justice Owen's nomination.
                                  ____


             [From the Florida Times-Union, July 26, 2000]

                             A Fine Choice

       Using legitimate criteria--judicial expertise, temperament 
     and reputation--there is no finer candidate for a spot on a 
     federal appeals court than Priscilla Owen, whose nomination 
     was the subject of committee hearings this week.
       Owen, an honors graduate who earned the highest grade on 
     the bar exam, has served with distinction on the Texas 
     Supreme Court since 1994--and is so respected that every 
     major newspaper in Texas endorsed her successful campaign for 
     reelection in 2000.
       After she was nominated for the 5th Circuit Court of 
     Appeals, the American Bar Association unanimously gave her 
     the highest possible rating for the job--no small matter 
     since the Senate Judicial Committee chairman said previously 
     that the ABA's rating is `the gold standard by which judicial 
     candidates are judged.' A bipartisan group of 15 past Texas 
     Bar presidents endorsed her nomination, as have Democratic 
     former justices.
       Still, her nomination is in trouble because she is deemed 
     insufficiently liberal by a few fringe special-interest 
     groups that have considerable influence with the Senate's 
     Democratic leadership.
       The main complaint revolves around cases in which young 
     girls wanted to have an abortion without either parent's 
     knowledge.
       Under Texas law, a parent must be told unless a judge rules 
     a girl is sufficiently mature and informed to make the 
     decision alone.
       Owen contended some youngsters were not informed 
     sufficiently.

[[Page 16198]]

       That, extremist, pro-abortion groups say, proves Owen is a 
     `judicial activist' who makes rulings based on ideology 
     instead of what the law actually says. Never mind that they 
     have enthusiastically supported judicial activism in the past 
     and that Roe vs. Wade, the decision legalizing abortion, was 
     in itself a blatant act of judicial activism.
       Owen is under fire not because she is a judicial activist 
     but because she is perceived as a conservative activist.
       The facts are, however, that Owen based her opinion on U.S. 
     Supreme court guidelines--and the author of the law said she 
     had interpreted it the way the legislature intended.
       Parental notification laws are designed not just to protect 
     children but also to keep pedophiles from coercing their 
     young victims into destroying the evidence before they can be 
     arrested, tried and locked up. They are not something that 
     the courts should routinely circumvent, except under rather 
     limited conditions prescribed by law.
       Critics complain, less vociferously, about other Owen 
     opinions--that a person shouldn't collect insurance benefits 
     on a house a spouse destroyed by arson, for example. That, 
     critics insist, proves she is too pro-business. But why 
     should an arsonist be allowed to profit from his own crime?
       The appointment is being scandalously politicized. Owen 
     deserves better. More importantly, the American people 
     deserve better.
                                  ____


           [From the Wisconsin State Journal, July 29, 2002]

                  Owen Is Qualified for Federal Bench

       Feingold and Kohl should stop their Senate Colleagues from 
     ``borking'' Priscilla Owen. Why should Wisconsinites care 
     about Texas Supreme Court Justice Priscilla Owen, nominated 
     by President Bush to the 5th U.S. Circuit Court of Appeals?
       Because ``borking''--judging a judicial nominee on 
     political and ideological grounds rather than 
     qualifications--is ugly no matter which party is doing it and 
     must be stopped.
       Because Wisconsin's two senators, Herb Kohl and Russ 
     Feingold, sit on the Senate Judiciary Committee, where the 
     ``borking'' of Owen is under way. If these two Democrats take 
     the high road and approve Owen even though (horrors!) she is 
     a conservative, their courage could persuade their Senate 
     colleagues to give up this nasty practice. The charge against 
     Owen is being led by the extremist wing of the abortion-on-
     demand crowd, who are incensed that Owen voted several times 
     to uphold a Texas law that allows teens to get abortions 
     without notifying their parents only in extreme 
     circumstances.
       Polls show that a majority of Americans support parental 
     notification laws, and the U.S. Supreme Court has ruled that 
     such laws do not violate the terms established by Roe vs. 
     Wade. Nonetheless, National Abortion Rights Action League 
     President Kate Michelman called Owen ``someone who 
     exemplifies the most extreme hostility to reproductive rights 
     of any of the nominees that President Bush has named.'' My, 
     my.
       Other groups complain that Owen's rulings show her to be 
     anti-consumer, anti-worker and pro-business. They say she too 
     often voted to overturn huge jury verdicts in malpractice and 
     product-liability cases. Considering that Texas juries' 
     propensity for handing down outrageous verdicts makes the 
     state a favorite filing-ground for trial attorneys pursuing 
     dubious liability cases, Owen should be applauded for 
     attempting to apply the brakes.
       They say she is a ``judicial activist'' who will try to 
     legislate from the bench. But when U.S. Sen. Dianne 
     Feinstein, D-California, asked her about that charge, Owen 
     responded ``If I am confirmed, I will do my utmost to apply 
     the statutes you have written as you have written them, not 
     as I would have written them or others might want me to 
     interpret them.''
       But none of this should matter much to the Senate Judiciary 
     Committee, which is supposed to examine a nominee's 
     qualifications, fitness for office, and temperament. No one 
     has questioned (yet) her temperament; her qualifications 
     include graduating cum laude from Baylor Law School, getting 
     the top score on the Texas Bar Exam, practicing commercial 
     litigation for 17 years before winning election to the Texas 
     Supreme Court, and getting a unanimous ``well-qualified'' 
     rating from the American Bar Association's Committee on the 
     Federal Judiciary.
       Every president has the right to nominate whomever he wants 
     to the federal judiciary. The Senate has the right to grill 
     the nominees over their qualifications, temperament, and 
     fitness for office. Presumably it's that latter term that 
     some senators believe justifies ``borking'' Owen on abortion 
     rights, etc.
       But it's still wrong.
       Feingold knows it. That's why he made his courageous vote 
     to confirm John Ashcroft as U.S. attorney general. Feingold 
     didn't like Ashcroft's right-wing politics, but he believed 
     in a president's right to choose his own nominees. Feingold 
     was right.
       Feingold and Kohl should both vote to confirm Owen, and 
     should try to convince their colleagues to do likewise. She 
     is well qualified, and that's all that should count.
                                  ____


               [From the Chicago Tribune, Aug. 20, 2002]

                      Ideologues vs. Justice Owen

       At least since the 1987 battle over Robert Bork's 
     nomination to the Supreme Court, judicial appointments have 
     been a major arena for conflict in Washington. It doesn't 
     matter if the White House is in Republican hands and the 
     Senate under Democratic control, or the other way around: 
     Whenever a nominee can be tarred as extreme, unethical or 
     incompetent, ideologues paint the most appalling picture in 
     the hope of killing the appointment.
       It's not a good way to find the truth or to select good 
     judges. Instead, it fosters irresponsible distortion and 
     discourages strong-minded individuals from accepting judicial 
     posts, while rewarding lawyers whose chief talent is never 
     doing anything, good or bad, to make enemies. The latest 
     fight is over Priscilla Owen, a Texas Supreme Court justice 
     chosen by President Bush for the 5th Circuit Court of 
     Appeals. She got the highest rating from the American Bar 
     Association. To get that endorsement, says the ABA, a nominee 
     ``must be at the top of the legal profession in his or her 
     legal community, have outstanding legal ability, breadth of 
     experience, the highest reputation for integrity and either 
     have demonstrated, or exhibited the capacity for, judicial 
     temperament.''
       You'd never guess any of these qualities from the attacks 
     on Owen. Senate Democrats and liberal activists have 
     denounced her as a right-wing ideologue and a lap dog for big 
     corporations, particularly Enron. Their favorite evidence is 
     a quotation from fellow Justice Alberto Gonzales, now White 
     House counsel, accusing her of ``an unconscionable act of 
     judicial activism'' in voting to deny a minor permission to 
     get an abortion without her parents' knowledge.
       But judges accuse each other of judicial activism all the 
     time. It's safe to assume that if Gonzales distrusted Owen's 
     instincts, he would have lobbied his boss not to choose her. 
     Today, he says, ``She will exercise judicial restraint and 
     understands the limited role of the judiciary.''
       In the abortion case they disagreed about the application 
     of a Texas law that generally requires parents to be 
     notified. Owen, dissenting from the court's decision to grant 
     permission, made a perfectly rational case that the majority 
     was reading the law too liberally.
       As for her views about corporations, it's not surprising 
     that a candidate picked by a conservative president has not 
     been hostile to private business. It's true that, in running 
     for the office, she got campaign contributions from Enron 
     employees and then sat on cases involving the company. But 
     people associated with Enron gave to lots of political 
     candidates, and Owen didn't violate any ethics rules.
       Owen is just one of many Bush nominees who have been 
     inexcusably blocked from filling vacant seats on the bench--
     something that also happened, with equal lack of 
     justification, to many of President Clinton's appointees.
       But the only real argument against her is that she's not 
     the sort of choice a Democratic president would make. That's 
     no reason Bush shouldn't have picked her, or that the Senate 
     shouldn't confirm her.
                                  ____


                 [From the Boston Globe, July 28, 2002]

                          The Real Extremists

                            (By Jeff Jacoby)

       Why do professional abortion-rights advocates anathematize 
     as ``antichoice'' anyone who favors even minimal regulation 
     of abortion? Their absolutism would seen as ridiculous in 
     almost any other area of law.
       For example: Americans have a fundamental right to own and 
     use land, but no one believes that land use should be 
     entirely untrammeled. A great body of law has developed to 
     regulate what people do with their land--from local zoning 
     ordinances to common law nuisance remedies to federal 
     wetlands and endangered-species statutes. Reasonable people 
     can and do debate the wisdom of particular regulations. But 
     nearly everyone agrees that there must be some restrictions 
     on an owner's right to make use of his property. Only a crank 
     would argue that to favor any sort of limitation at all is to 
     be ``anti-ownership'' or an enemy of landholders.
       To take another example, Americans have the constitutional 
     freedom to express their views in public. But no one takes 
     the First Amendment to mean that self-expression may never be 
     restricted. Your right to free speech does not authorize you 
     to utter slander, to threaten the life of the president, to 
     falsely shout ``fire!'' in a crowed theater, or to give 
     perjured testimony in court.
       Yet when it comes to abortion, there is no such thing as a 
     reasonable restriction--not to the abortion-right spokeswomen 
     whom we invariably hear from whenever the issue comes up. A 
     24-hour waiting period? Pre-abortion counseling to discuss 
     possible risks or alternatives? Parental notification when a 
     minor wants an abortion? A ban on partial-birth abortions? 
     The politician who calls for such limits or the judge who 
     upholds them can count on being slammed as a threat to 
     ``reproductive rights'' and a foe of ``choice.''
       Just ask Priscilla Owen, the Texas Supreme Court justice 
     nominated by President Bush to the Fifth Circuit US Court of 
     Appeals. She is by most accounts a restrained and thoughtful 
     judge; the American Bar Association unanimously pronounced 
     her ``well

[[Page 16199]]

     qualified.'' But because in several teen-abortion cases she 
     ruled that parental notification was required, she is being 
     excoriated. Planned Parenthood calls her an ``anti-choice 
     extremist.'' The National Organization for Women accuses her 
     of ``disdaining women's rights.'' The National Abortion 
     Rights Action League says she ``exemplifies the most extreme 
     hostility to reproductive rights.''
       But who are the real extremists here? In a new analysis, 
     the Gallup News Service reports that ``in general, polling 
     shows wide public support for parental consent laws--policies 
     that are even more restrictive than parental notification.'' 
     In 1996, a Gallup survey found 74 percent of Americans in 
     favor of requiring parental consent for a minor's abortion. 
     Since then, the level of support has gone even higher. In a 
     1998 CBS/New York Times poll, 78 percent wanted parental 
     consent. And in a Los Angeles Times survey two years after 
     that, the figure was 82 percent.
       Justice Owen insists her rulings are based on Texas law, 
     not her own personal views. But if they do reflect her 
     personal views, she clearly has lots of company. Are more 
     than four Americans in five ``anti-choice extremists?'' Or is 
     it NARAL, NOW, and Planned Parenthood that are far outside 
     the mainstream?
       In poll after poll, a majority of respondents say that, as 
     a general rule, abortion should remain legal and the 
     government should not interfere with a woman's right to end 
     her pregnancy. But when asked about restricting abortion in 
     specific ways or circumstances, they often say yes.
       Thus, 86 percent of Americans would make abortion illegal 
     in the third trimester (Gallup, 2000), and 63 percent would 
     vote to ban partial-birth abortions. Mandatory pre-abortion 
     counseling is favored by 86 percent of the public (Gallup 
     1996); a 24-hour waiting period by 79 percent (CBS/New York 
     Times, 1998). (These all presuppose a healthy mother and 
     child; Americans overwhelming support legal abortion when the 
     mother's health is seriously threatened or when there is 
     likely to be a serious defect in the baby.)
       It makes sense that the public does not regard these 
     limitations as unreasonable. Americans recognize that 
     abortion is too serious and tragic to be undertaken lightly. 
     They know that the pro-life slogan ``Abortion stops a beating 
     heart'' is a statement of fact. So while they support 
     reproductive rights, they do not support unfettered abortion 
     on demand, for any reason at any time.
       But that is largely what organizations like NARAL, NOW, and 
     Planned Parenthood do support, which is why they vigorously 
     oppose the kinds of abortion regulations that most Americans 
     would endorse. That is their right, of course. But why should 
     their radical viewpoint be the standard for defining 
     ``prochoice?'' Prochoice is what most Americans are: In favor 
     of the right to choose, but also in favor of common-sense 
     limits on that right. For NARAL & Co. we need a more accurate 
     term. I'd suggest ``pro-abortion.''
                                  ____


               [From the Chicago Tribune, Aug. 22, 2002]

               A Conservative Judge's `Judicial Activism'

       Priscilla Owen is not a household name across America, but 
     she has achieved an amazing level of notoriety among left-
     leaning interest groups, who regard her much as Dalmatian 
     owners view Cruella De Vil. The Texas Supreme Court justice 
     became their Public Enemy of the Month by doing two things: 
     1) compiling a judicial record that can fairly be described 
     as conservative, and 2) being nominated to the 5th Circuit 
     Court of Appeals by President Bush.
       Those offenses were all it took to unleash a torrent of 
     invective against Owen, whose nomination is awaiting Senate 
     action. Ralph Neas, president of People for the American Way, 
     denounced her as an ``ultraconservative.'' The National 
     Abortion and Reproductive Rights Action League said she's 
     possessed by ``a strong personal bias against the right to 
     choose that renders her unable to follow the law.'' The most 
     frequently heard criticism is not from liberals but from a 
     conservative--White House counsel and former Texas Supreme 
     Court Justice Alberto Gonzales, who is quoted as having 
     accused Owen of ``an unconscionable act of judicial 
     activism'' in how she handled one abortion case. That charge 
     is supposed to prove that she's not only too conservative for 
     liberals, but too conservative for conservatives.
       What her opponents don't publicize is that from all 
     evidence, Owen is an excellent lawyer and judge. Fifteen 
     former presidents of the Texas State Bar wrote the Senate 
     Judiciary Committee to announce that though ``we profess 
     different party affiliations and span the spectrum of views 
     of legal and political issues, we stand united in affirming 
     that Justice Owen is a truly unique and outstanding 
     candidate.''
       The American Bar Association, which is not regarded as a 
     dear friend by conservatives agrees. Its Standing Committee 
     on the Federal Judiciary unanimously rated Owen ``well-
     qualified.'' That's the highest score the ABA evaluators 
     give, and they don't hand it out to just anybody who can pass 
     the bar exam and tie her own shoes.
       ``To merit a rating of `well-qualified,''' the ABA 
     explains, ``the nominee must be at the top of the legal 
     profession in his or her legal community, have outstanding 
     legal ability, breadth of experience, the highest reputation 
     for integrity and either have demonstrated, or exhibited the 
     capacity for, judicial temperament.'' This portrait of Owen 
     doesn't quite match the drooling Neanderthal depicted by her 
     critics.
       The judicial activist charge is also hard to square with 
     reality. In the case cited by critics, where Gonzales affixed 
     the label on three dissenting justices, he was clearly 
     beholding the mote in his brother' eye while ignoring the 
     beam in his own.
       The dispute involved a 17-year-old high school student who 
     wanted to get an abortion without notifying either of her 
     parents, as required under Texas law. A minor may get a judge 
     to waive the requirement if she can show that she is ``mature 
     and sufficiently well-informed'' to make the decision alone 
     (or to prevent abuse, which was not an issue).
       ``Mature'' and ``well-informed'' are not terms of 
     mathematical precision, leaving some room for interpretation. 
     But after hearing her testify, a trial court judge ruled that 
     the girl was not sufficiently well-informed. An appeals court 
     reached the same conclusion. Without the benefit of face-to-
     face contact with the girl, the Texas Supreme Court overruled 
     them.
       There is no ``judicial activism'' in respecting the 
     findings of a trial court judge, as Owen did. Nor is there 
     anything startling in her view that the law was not supposed 
     to make waivers automatic. In fact, during the legislative 
     debate back in 1999, supporters of the proposal envisioned 
     the bypass mainly for instances of incest and physical abuse.
       Critics insisted then that the bill made it too hard to get 
     around the notification rule. One opposing legislator 
     predicted that if the measure passed, not a single waiver 
     would be granted. The legislators who originally sponsored 
     the measure filed a brief in this case, arguing that the 
     whole point of their legislation was to ``restore parents'' 
     natural authority to act as chief advisors to their minor 
     daughters who become pregnant and seek abortions'' and to 
     assure that parents would be excluded only in ``exceptional 
     circumstances.''
       The Texas legislature, a conservative one, passed a 
     restrictive law aimed mainly at assuring the involvement of 
     parents, not preventing it. So how is it ``judicial 
     activism'' for a judge to read it the way that even its 
     critics read it during the debate? More plausibly, the 
     activism was on the other side. Owen was not giving into the 
     temptation to legislate from the bench, but resisting it.
       If Owen had gone along with a more relaxed reading of the 
     law, she might indeed be accused of judicial activism. But 
     not by the people attacking her today.
                                  ____


           [From the Wall Street Journal, September 5, 2002]

                        Too Smart for the Senate

       Priscilla Owen isn't exactly a household name. But what 
     happens to her today in the Senate Judiciary Committee will 
     say a lot about President Bush's legacy in the federal 
     courts--to wit, whether the 10 liberal Democrats who form the 
     majority will allow him to have one.
       The Gang of Ten is scheduled to vote on Judge Owen's 
     nomination to the Fifth Circuit Court of Appeals, and she 
     ought to be an easy sale. Currently on the Texas Supreme 
     Court, she is one of the best legal minds of her generation 
     and at age 47 is potential Supreme Court material. She's a 
     conservative, but the liberal American Bar Association gave 
     her its highest rating--a unanimous well-qualified.
       There was a time that jurists of her intellectual caliber 
     were welcomed by Senators of both parties, but no more. 
     Barring a last-minute bout of conscience, Democrats seem 
     ready to pull a Pickering--that is, kill Judge Owen's 
     nomination in committee and deny her a vote of the full 
     Senate. This was the treatment meted out to Charles Pickering 
     Sr. last March, when the Mississippi judge's nomination was 
     stopped before moderate Democrats got a chance to vote for 
     him. If Judge Owen were to reach the Senate floor, she too 
     would be confirmed with Democratic support.
       Political war over judges isn't new, but the Judiciary 
     Democrats are taking it to an entirely new level. Chairman 
     Pat Leahy won't even schedule hearing dates for the best 
     appeals-court nominees; six of Mr. Bush's first 11 picks are 
     still waiting, 16 months after being nominated. That includes 
     legal luminaries Miguel Estrada, Jeff Sutton, John Roberts 
     and Michael McConnell, who, like Judge Owen, are potential 
     Supreme Court candidates--which is their real sin in liberal 
     Democratic eyes.
       But maybe they're the lucky ones. Judge Pickering had to 
     endure race-baiting that African-Americans in his home state 
     deplored. D. Brooks Smith was confirmed, amid phony charges 
     of sexism, only because Senator Arlen Specter called in chits 
     for his fellow Pennsylvanian.
       Judge Owen's fate is to be called ``anti-abortion'' because 
     she's upheld Texas's parental-notification law--a view 
     supported by more than two-thirds of Americans and the U.S. 
     Supreme Court. Her critics also make the dishonest charge 
     that even the President's own lawyer, Alberto Gonzales, who 
     served with her on the Texas Supreme Court, thinks she's a 
     judicial ``activist,'' Mr.

[[Page 16200]]

     Gonzales has denied this repeatedly, and as White House 
     counsel had a big say in her nomination.
       There's more at stake here than the fate of one 
     accomplished jurist. There's also the Constitutional ``advise 
     and consent'' process that throughout U.S. history has meant 
     that the entire Senate should work its will. The liberal 
     Judiciary 10 are denying to this President a Constitutional 
     right that Presidents Reagan, Clinton and George H.W. Bush 
     were all granted by Senates controlled by the opposite party. 
     We hope those Senate Democrats who want to be President 
     understand that the same thing could happen to them.
  Mr. HATCH. I am heartened not just for the sake of Justice Owen, but 
because at her hearing I expressed alarm at the efforts by some to 
introduce ideology into the confirmation process. I am heartened that 
editorial and op-ed writers across the country reflect not only support 
for Justice Owen but also the near universal rejection of this 
misguided effort to make the independent Federal Judiciary a mere 
extension of the Congress, and less than the independent, coequal 
branch it was intended to be.
  It is important to place this vote against Justice Owen's nomination 
in context for the American people because I know there are those who 
seem to justify this wrong in childlike fashion with the intellectual 
crutch of ``they did it, too.''
  Let me say that we Republicans have never done what was done today. I 
voted against only one Clinton nominee, as I recall, but I did it 
standing on the Senate floor where the American people could see me, 
where I could be counted, not sitting in the shadows of the Judiciary 
Committee room.
  Allow me to place this vote further in context, Mr. President. In 
this session so far, the Senate has confirmed 73 judges. There is much 
eagerness in asserting that this number now compares to the last three 
sessions of Congress during which I was Chairman. Although I am 
flattered to hear my record used as the benchmark for fairness, I am 
afraid this does not make for a correct comparison because I was never 
Chairman of the Judiciary Committee during any of the President's first 
2 years in office.
  I am glad to say that the proper comparison is not, as they say, 
about me. During the first 2 years of President Clinton's first term, 
when Senator Biden was chairman of the Judiciary Committee, the Senate 
confirmed 127 judicial nominees. Senator Biden achieved this record 
despite not receiving any nominee for the first 6 months. In fact, 
Senator Biden's first hearing was held on July 20 of that year, more 
than a week later than the first hearing this session, which occurred 
on July 11, 2001.
  Clearly, getting started in July of year one is no barrier to the 
confirmation of 127 judges by the end of year two, but we have 
confirmed only 73 nominees in this session.
  Senator Biden's track record during the first President Bush's first 
2 years also demonstrates how a Democrat-led Senate treated a 
Republican President. Then-Chairman Biden presided over the 
confirmation of all but five of President Bush's 75 nominees in that 
first 2-year session. Chairman Thurmond's record is quite similar. The 
contrast to the present could hardly be more stark.
  We are about to close President Bush's first 2 years in office having 
failed the standards set by Chairmen Biden and Thurmond, and that is 
nothing over which to be proud.
  Some discredit Justice Owen's nomination by pointing to the few 
Clinton judges who did not get hearings when I was chairman, especially 
Jorge Rangel and Enrique Moreno from Texas. But that is not fair to me, 
and not truthful, and it has nothing to do with Justice Owen. Neither 
of those nominees had support of their home State Senators, and there 
were good reasons. This prevented me from scheduling a hearing for them 
and would have prevented any chairman, including Chairman Leahy 
presently, from holding hearings.
  In fact, these nominees lacked home senator in part because President 
Clinton ignored the Texas Senators and the Texas nominating commission 
in making their nominations. It was a legitimate complaint and one that 
my Democrat colleagues repeat now. Our process is when both State 
senators are against a judgeship nominee from their State, that 
judgeship nominee will not go anywhere.
  This practice is not one I put in place. It was put in place under 
the Democrat leadership of this Judiciary Committee. Today, Democrat 
Senators from the State of North Carolina, California, and Michigan 
have prevented the Judiciary Committee presently from holding hearings 
on six of President Bush's nominees.
  One final point on Rangel and Moreno and, for that matter, any of the 
Clinton judges confirmed or not: I am not a betting person, but if I 
were, I would bet that neither would trade places with Charles 
Pickering.
  As important as anything we do is the way the Committee has treated 
the so-called controversial nominees. Their records have not only been 
damaged and distorted, they have been turned completely upside down, 
180 degrees from the truth.
  Charles Pickering came to this committee with a four-decades-old 
record of working in favor of civil rights. He testified against the 
Imperial Wizard of the Ku Klux Klan in the 1960s, at a time when doing 
so put him, his wife, and his children smack in the crosshairs of a 
violent and unforgiving terrorist organization. That was an act of real 
bravery motivated by his belief in doing right.
  But what happened? The hearing room and the subsequent fundraising 
letters echoed with the word ``racist.'' Charles Pickering's record was 
completely turned upside down.
  Judge Brooks Smith's true history fared no better. Judge Smith had a 
reputation for going out his way to assist women in the legal 
profession. Judge Smith received the Susan B. Anthony Award because of 
``his commitment to eradicating gender bias in the court system.'' But 
Judge Smith's opponents did not talk about that. In fact, they worked 
hard to create an impression exactly opposite by focusing not on his 
work as a judge but on his previous membership in a small men's fishing 
club. Never mind that Susan B. Anthony Award.
  I might add, Mr. President, that we are pleased that Judge Smith won 
the approval of the vast majority of the Senators when he was given a 
chance to be heard on the floor after long delay. I think it would be 
fair to give that same chance to Priscilla Owen, and I think she would 
fare just as well as Judge Brooks Smith.
  Today, we decided the fate of another so-called controversial 
nominee, and once again there is a 180-degree disconnect from the truth 
of Priscilla Owen's record and the yarn being woven around it. We heard 
today about the same handful of cases--a very few of Owen cases out of 
thousands. And, by the way, not only have Owen opponents selected only 
a few cases, ignoring many, they have distorted the cases they do cite.
  Today, we heard again the stale rhetoric that Justice Owen fails 
plaintiffs, from those who are more interested in being more just to 
plaintiffs--to make it more to the point, the plaintiff's trial lawyers 
who are their strong supporters.
  In fact, there are several leading cases that Justice Owen's 
detractors ignore in which she ruled for plaintiffs and against 
manufacturers and physicians. Think about it. Sometimes a company or 
employer may be right, under the law. Now, I know there are those on 
the other side of the aisle who think that just cannot be, as they are 
adamantly work on behalf of the plaintiff's trial lawyers. Sometimes 
businesses are right.
  Of course, much of the opposition of Justice Owen has been driven by 
interest groups that advocate for the right to abortion. And this is 
becoming tremendously dominant on the Democratic side because of these 
outside special interest groups that have immense power. Millions and 
millions of dollars are put into People for the American Way and other 
pro-abortion groups to advocate just this cause. It is terrifying to 
have these groups against you, but it is the right thing to stand up 
against them when they are wrong. In this case, they have been wrong.
  These groups have said they want judges on the bench who will read 
and

[[Page 16201]]

apply and follow the Supreme Court cases in the area of the right of 
privacy, especially in the landmark cases of Griswold, Roe, and Casey. 
Yet here we have Justice Owen, the first nominee we have considered in 
this session who as a judge read those cases, cited them, quoted them, 
applied them, has followed them. Yet her record was so distorted as to 
make it seem she was against abortion when, to this day, I don't know 
where she stands on that particular issue.
  Justice Owen researched the case law of abortion and has faithfully 
incorporated Supreme Court rulings into her decisions on a related 
topic in an inferior court. This shows the application of precedence 
that should satisfy anyone interested in upholding the Supreme Court's 
abortion decisions or any other decision. It was the right thing for 
her to do because she was bound by the law of the land. Frankly, as 
much as some pro-life people may not like that, she upheld the law, 
which is what she should have done.
  Yet here she was defeated this morning, primarily on that single 
issue, when it really was not an issue. But it was distorted, and it 
was manipulated, and it was used against her in, frankly, a very 
despicable way.
  Of course, Justice Owen's critics are not praising her for following 
the Supreme Court law. They are attempting to portray her as a judicial 
activist. The truth is, she is a judicious judge who never digresses 
from the rules of precedence and legal construction. She always grounds 
her decisions in binding authority or judicial rules of decision.
  Of course, the charge that she is a judicial activist is a cynical 
trick of words from Washington special interest lobbyists, liberal 
special interest lobbyists, as well as their well-funded allies in 
Texas who have made their careers taking positions without letting the 
words of the Constitution stand between them and their political 
objectives.
  The people of Texas, almost 84 percent of them, voted for Priscilla 
Owen to be reelected to the State supreme court. So she has the vast 
majority of the people of Texas who know what a high quality person she 
is. Yet these people today, the people on the committee, ignored all of 
that.
  Why are they doing so? Ironically enough, they are doing so because 
they do not like the Texas statute requiring parental notice in cases 
of abortions for children. Justice Owen voted to give the statute some 
meaning. It was a poorly drafted statute where they tried to please 
everybody, and that is always a bad statute. As she explains in 
brilliant fashion in her written responses to the questions of 
Senators, Justice Owen sought to find that meaning in Supreme Court 
cases that informed the Texas legislators in adopting the notice law.
  This is what any good lawyer would try to do or would know to do, let 
alone a good judge. She sought to give the lower courts in her State 
that were reaching diverse results, county to county, Supreme Court 
guidance.
  Even Planned Parenthood's lawyer understood this. She said in a 2000 
interview:

       A lot of what the Supreme Court is doing is giving 
     guidelines to the lower courts on how to interpret the 
     parental notification law.

  Justice Owen's opponents think a minor should always be able to avoid 
the Texas legislators' standards. It is the groups allied against 
Justice Owen who are the judicial activists here, the ones who are 
looking to achieve in the courts an outcome that is at odds with the 
law passed by the duly elected legislators of the State of Texas.
  The Texas legislature did not pass a judicial bypass law with some 
exceptions. They passed a parental notice law, and they stated that 
they intended the court-granted exceptions to be rare. And, in fact, in 
practice they are rare.
  This is what Justice Owen's opponents cannot stomach. So here they 
are in our midst. But why? The truth is that while my colleagues' vote 
are entirely about an abortion litmus test, I fear the opposition to 
Justice Owen from the abortion lobby is not at all about abortion 
rights, because abortion rights are affected by a mere notice statute. 
The opposition to Justice Owen is not really about abortion rights, it 
is about abortion profits.
  Simply put, the abortion industry is opposed to parental notice laws 
because parental notice laws place a hurdle between them and the 
profits from the abortion clients--not the girls who come to them but 
the adult men who pay for these abortions. These adult men, whose 
average age rises the younger the girl is, are eager not to be 
disclosed to parents, sometimes living down the street.
  At $1,000 per abortion and nearly 1 million abortions per year, the 
abortion industry is as big as any corporate interest that lobbies in 
Washington. They not only ignore the rights of parents, they also 
protect sexual offenders and statutory rapists.
  And who are the lobbyists for the abortion industry? They are exactly 
the same cast that launched an attack on Justice Owen. One wonders, as 
columnist Jeff Jacoby did in the Boston Globe:

       Who are the extremists on this issue?

  Who is out of the mainstream? It is certainly not Justice Owen. 
Eighty-two percent of the American people favor consent and notice laws 
such as Justice Owen interpreted. In fact, 86 percent in the State of 
Illinois favor these laws.
  I will say it again. While my colleagues are applying an abortion 
litmus test, the assault against Justice Owen from the outside groups 
was not about abortion rights, it was about abortion profits. It is not 
about a woman's right to an abortion. It is about assailing parental 
laws that threaten the men who pay for abortions. It is whether parents 
should at least know--not even consent to, but just know when a minor 
child is having an abortion paid for by an adult.
  But there is another interest at play here. Justice Owen was also 
opposed by the trial lawyers--I should say the plaintiff's trial 
lawyers. It is they who keep score over judges and how they rule on 
consumer, environmental, and personal injury cases, all of the areas of 
the law from which they most profit. And it is the trial lawyers, who 
most fund the special interest groups, who oppose all of President 
Bush's nominees.
  I have to say, I know a number of these great plaintiff's lawyers, 
and a number of them are very upstanding people. But unfortunately, the 
vast majority are more interested in making sure they can continue to 
get big verdicts than they are in doing what is just.
  I do not want to malign those who are decent, honorable plaintiff's 
lawyers. I was one of those myself, as well as a defense lawyer. But I 
could not stomach this type of attitude towards the law that some of 
them are pushing.
  In almost infantile fashion, they would portray Justice Owen as pro-
this or anti-that. Professor Victor Schwartz, a leading authority on 
torts in this country, addresses this in a letter he sent the Judiciary 
Committee. After reviewing Justice Owen's record, this tort law expert 
concludes that Justice Owen cannot be described as pro-defendant or 
pro-plaintiff.
  The truth is that Justice Owen functions as any judge should, as an 
unbiased umpire. As an umpire, Justice Owen calls the balls and the 
strikes as they are, not as she alone sees them and not as she wants 
them to be. It is silly to suggest she is pro-bat or pro-ball, pro-
pitcher, or pro-batter. Of course, trial lawyers and those who shill 
for them have an interest in Justice Owen's score.
  As she said in her hearing, she is blind to rich or poor without 
turning a blind eye to equity. Any Senator who met her or who attended 
her hearing or who read the letters from those who know her would not 
question her compassion and fairness.
  I hoped that no Senator would cast a vote who did not meet her or who 
did not attend the hearing. But unfortunately I know some did.
  Let's speak truth to power. Justice Owen was picked to be opposed 
because she is a friend of President Bush from Texas. She was opposed 
by an axis of profits. This axis of profits combines the money of trial 
lawyers and the abortion industry to fund these Washington special 
interest groups and

[[Page 16202]]

spreads its influence to the halls of power in Washington and in State 
courts across this country.
  As an aside, some estimate that one of these lobbying groups rakes in 
somewhere between $12 million and $15 million a year from the Hollywood 
crowd and others, especially the trial lawyers in this country. There 
is nothing on our side that even comes close to that to be able to 
correct the record.
  The opposition against Justice Owen is intended not only to have a 
chilling effect on women jurists that will keep them from weighing in 
on exactly the sorts of cases that most invite their participation in 
their perspectives as women, but also on all judges in all State courts 
who rule on cases that trial lawyers want to win and cash in on.
  Today's vote besmirched a model young woman from Texas who grew up, 
worked hard, and did all the right things, including repeatedly 
answering the call of public service at a sacrifice of personal wealth 
and family. I might add, she was one of the top lawyers in the country. 
She worked for one of the top law firms in the country. She was doing 
very well financially many times over what she makes as a Texas Supreme 
Court justice. She was a single mother who was raising her child. She 
goes to a church. She is in the choir in her church and helps to lead 
the choir. She is a decent, honorable person, and she is about as 
nonpolitical as anybody I have ever seen come before the Senate 
Judiciary Committee. Yet she has been treated very poorly indeed.
  Today my Democrat colleagues voted against the American promise--the 
promise that anyone who works hard can serve the public trust. Such a 
vote, in my opinion, should not have taken place anywhere but in the 
light of the Senate floor, where 100 Senators would have the right to 
determine whether this fine woman should or should not sit on the Fifth 
Circuit Court of Appeals. I have to say it should have taken place in 
the light of the Senate floor and not in the shadows of the Judiciary 
Committee.
  I fear, as a result of the Owen vote, a sword of Damocles has fallen 
on the Senate in its role of advice and consent. I hope the American 
people will repair the damage done to the Constitution when they vote 
in November.
  Let me just say that when I ran for President, and I was one of those 
who was in the race with President Bush--whom I grew to love and 
respect as I was running with him or against at the time. I thought he 
was terrific throughout the process. I raised the issue of the 
importance of keeping the Federal judiciary independent, how important 
it is that we get the best people for these judgeship positions.
  I have been on this Senate Judiciary Committee for 26 years, and I 
have to tell you I have not seen a better nominee come before the 
Judiciary Committee than Priscilla Owen. Of all the sitting judges that 
President Bush has nominated she is the clearly the best.
  Not only is she an honorable person, but she handled herself very 
well at her hearing. She took a litany of bad comments from some 
Democrats with aplomb. She was very judicious in her approach. I have 
to tell you, she is one of the best people I have met in my whole time 
in the Senate. Yet she was treated in a shabby fashion--I think just to 
hurt the President, in some ways.
  But, even more important than that, it was to satisfy these 
despicable--in this case, outside special interest groups that are 
extreme and far to the left of the American people. They want only 
people who agree with them on the courts, and do not abide with anybody 
who doesn't agree with them, and they have immense wealth behind them 
to be able to distort the wonderful record of a person such as 
Priscilla Owen.
  I ask unanimous consent to have printed in the Record a statement of 
Senator Zell Miller, a Dear Colleague letter by myself concerning the 
New York Times editorial that I mentioned, and my published letter to 
the New York Times published today.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Miller Voices Support for Texas Nominee

       Washington, DC.--U.S. Senator Zell Miller (D-GA) today 
     issued the following statement on judicial nominee Priscilla 
     Owen, whose nomination is expected to be voted on by the 
     Senate Judiciary Committee on Thursday.
       ``Justice Owen enjoys bipartisan support in her home state 
     of Texas, and she is a qualified jurist. I will support her 
     nomination and I believe she deserves a vote by the full 
     Senate. I really hope we will not begin the trend of 
     rejecting nominees over narrow, single-issue litmus tests.''
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, September 4, 2002.
       Dear Colleague: I am taking the unusual step of writing to 
     the entire Congress because I am outraged about an untruthful 
     and misleading attack on Justice Priscilla Owen that appeared 
     on today's New York Times editorial page. I am deeply 
     concerned that such misinformation, if given serious weight 
     by the country's decisionmakers, could undermine the 
     integrity both of the judiciary and the branch of government 
     in which we are privileged to serve.
       As you know, Justice Owen is a Texas Supreme Court Justice 
     whose nomination to the Fifth Circuit Court of Appeals is 
     currently pending before the Senate Committee on the 
     Judiciary. The editorial, entitled ``The Wrong Judge,'' 
     wrongly accuses Justice Priscilla Owen of being ``far from 
     the mainstream.'' No doubt that charge will stun Texas 
     voters, who have twice elected her overwhelmingly to 
     statewide office. It should also shock all of us who serve in 
     Congress and who therefore know that Justice Owen, whom the 
     American Bar Association has unanimously rated ``well 
     qualified'' (its highest rating), undoubtedly fits well in 
     the mainstream of American thought. If defeated, Justice Owen 
     will become the first judicial nominee with the ABA's highest 
     rating to suffer that fate.
       The editorial also falsely claims that Justice Owen has 
     ``ignored statutory language and substituted her own views.'' 
     In truth, her record of applying the law as written is among 
     the very best of any judicial nominee ever presented to the 
     Senate. This is particularly true in her decisions concerning 
     the Texas law requiring parental notification when their 
     minor children obtain abortions. Contrary to the editorial, 
     no one's right to choose was implicated, only the right of 
     parents to have knowledge of, and an opportunity for 
     involvement in, one of the most important decisions of their 
     children's lives. In those cases, Justice Owen did exactly 
     what any restrained judge should do: She applied the Texas 
     statutory law as directed by the Supreme Court's cases 
     including Roe v. Wade. Ironically, it is Justice Owen's 
     opponents--the ones who accuse her of being an activist--who 
     would have her ignore the legislature and the Supreme Court 
     in order to reach a political result.
       The New York Times uses similarly flawed analysis when it 
     accuses Justice Owen of ``reflexively'' deciding cases in 
     favor of ``manufacturers over consumers, employers over 
     workers and insurers over sick people.'' This charge is not 
     only factually without basis, but also belies the accusation 
     of ``activism.'' Only someone obsessed with outcomes--rather 
     than the law governing the particular cases--would be 
     compelled by a mere counting up wins and losses among parties 
     who have appeared before a judge. Working as a judge is like 
     being an umpire; Justice Owen cannot be characterized as pro-
     this or pro-that any more than an umpire can be analyzed as 
     pro-bat or pro-ball. A judge's job is to apply the law to the 
     case at hand, not to mechanistically ensure that court 
     victories go 50/50 for plaintiffs and defendants, consumers 
     and corporations.
       I endorse the words of my friend Senator Biden, a former 
     Chairman of the Judiciary Committee, who said some years ago 
     that: ``[Judicial confirmation] is not about pro-life or pro-
     choice, conservative or liberal, it is not about Democrat or 
     Republican. It is about intellectual and professional 
     competence to serve as a member of the third co-equal branch 
     of the Government.''
       The New York Times' attack on Justice Owen's ``lack of 
     sensitivity to judicial ethics'' is also contrary to the 
     facts. Justice Owen went above and beyond the Texas ethics 
     rules in her last election, voluntarily setting her own 
     stricter guidelines for fund-raising. She has also advocated 
     reforming the Texas judicial elections process in order to 
     protect the integrity of the courts.
       Ironically, the editorial attempts to deploy against 
     Justice Owen the words of one of her biggest supporters, 
     Alberto Gonzales, President Bush's White House Counsel. Judge 
     Gonzales served with Justice Owen on the Texas Supreme Court 
     and has written publicly that she is ``extraordinarily well 
     qualified to serve as a judge on the federal appeals court.'' 
     Rather than focus on his ringing endorsement, however, the 
     New York Times instead sensationalizes a disagreement that 
     Judge Gonzales had not with Justice Owen, but rather with a 
     whole group of judges who filed a dissenting opinion in a 
     case involving the Texas parental consent law.
       Last but not least, the editor5ial blames the Bush 
     Administration for not getting the message ostensibly sent by 
     the defeat of

[[Page 16203]]

     Judge Charles Pickering that it should not nominate any 
     ``conservatives.'' It seems to imply some connection between 
     Pickering defeat and the nomination of Justice Owen. If the 
     editorial board would have done its homework, however, it 
     would have learned that Justice Owen was nominated two weeks 
     before Judge Pickering was nominated and ten months before he 
     was defeated by a party-line vote in the Judiciary Committee.
       Justice Owen is an excellent judge. Her opinions, whether 
     majority, concurrences or dissents, could be used as a law 
     school text book that illustrates exactly how an appellate 
     judge should think, write, and do the people justice by 
     effecting their will through the laws adopted by their 
     elected legislatures. Justice Owen clearly approaches these 
     tasks with both scholarship and mainstream American common 
     sense. If the Congress of the United States cannot, in all 
     its power and wisdom, detect these qualities and disentangle 
     them from the ill-considered assertions of a powerful 
     newspaper--inspired not by facts but by left-wing Washington 
     special interest groups--then our institution is in trouble.
       I hope you will join me in informing the American people of 
     the truth surrounding the nomination of Justice Owen and in 
     warning them of the grave danger posed by an uninformed 
     politicization of the federal judiciary.
           Sincerely,
     Orrin G. Hatch.
                                  ____


                [From the New York Times, Sept. 5, 2002]

                            The Right Judge


                                               Washington, DC,

                                                September 4, 2002.
       To the Editor: ``The Wrong Judge'' (editorial, Sept. 4) 
     accuses Justice Priscilla R. Owen, President Bush's nominee 
     to the United States Court of Appeals for the Fifth Circuit, 
     of being ``far from the mainstream.'' No doubt that charge 
     amuses Texas voters, who have twice elected her overwhelming 
     to statewide office.
       You also assert that Justice Owen has ``substituted her own 
     views'' for the law. In fact, her record of applying the law 
     as written is among the best of any judicial nominee ever 
     presented to the Senate. This is particularly so in her 
     decisions concerning the Texas law requiring parental 
     notification when minors obtain abortions. In these cases, 
     the right to choose was not implicated, only the right of 
     parents to know. Justice Owen applied the Texas law as 
     directed by the Supreme Court's cases, including Roe v. Wade.
       You also attack Justice Owen's ``lack of sensitivity to 
     judicial ethics.'' Justice Owen went above and beyond the 
     Texas ethics rules in her last election, voluntarily setting 
     her own stricter guidelines for fund-raising. She has 
     advocated reforming the Texas judicial elections process.
                                                   Orrin G. Hatch,
                                                          Senator.
  Mr. HATCH. Mr. President, it is really starting to get to me that 
because of special interest control of this body, abortion is becoming 
a single litmus test issue on the part of a number of Senators in this 
body--not all, thank goodness, on either side, but a number of 
Senators. It is an important issue. There are very sincere people on 
the pro-choice side. There are very sincere people on the pro-life 
side. Both sides deserve consideration and respect.
  When we get to where one single issue will determine whether a person 
can serve in a position in this country, such as a Federal judgeship, 
we know this country is in trouble; that is, whether it comes on this 
side or it comes on that side.
  I can remember when Reagan was the President and we had control of 
the committees. There was a constant berating of us because they 
thought we might have abortion as a single litmus test issue. The fact 
of the matter is, we didn't. I know the question was never even asked 
because I know who did the betting. He happened to be a former staff 
member of mine. He never asked that question. They might have thought 
they had somebody who was pro-life, but they never asked that question. 
That was not even a consideration in the questions. They found out that 
a number of their people whom they nominated and who were confirmed 
were pro-choice.
  During the Clinton years when I was chairman of the committee, I 
would not allow that single litmus test to be used on our side because 
I don't believe any single litmus test should be used in any way with 
regard to the Federal judiciary. The fact that I might disagree with a 
nominee on an issue that is important to me is somewhat irrelevant 
unless there are other really justifiable reasons for voting against 
the person.
  I am finding that basically justifiable reasons depend an awful lot 
on how much force is brought to bear by outside interest groups who are 
basically supportive of the pro-abortion side. I have had folks on 
other side say it is a litmus test. Thank goodness, not many.
  But that is why they wanted to keep Priscilla Owen from coming to the 
Senate floor--because Priscilla Owen would have passed on the Senate 
floor, would serve very well on the Fifth Circuit Court of Appeals, I 
think would please both sides of this body because of the very decent 
person she really is, because of the great legal scholar she is, and 
because of the honest and upright person she is.
  We have lost that opportunity for this year. But I can tell the 
American people that if they will support President Bush, and if we can 
get control of the Senate, Priscilla Owen will make it through because 
she will at least have a vote. I believe she will make it through.
  In that regard, I am very appreciative of the endorsement of the 
Senator from Georgia, Senator Zell Miller, of her right to have a vote 
on the floor and his statement that he would vote for her--a Democrat 
Senator. I think he recognizes that this body is becoming very 
polarized. It is becoming a body that may not be a great body anymore, 
if we keep going this way, because we are polarizing ourselves to where 
single litmus test issues can determine whether or not we vote and do 
what is right.
  Frankly, we ought to be doing what is right regardless of any single 
litmus test issue. I know there are some on both sides who believed 
otherwise. But I think they are a distinct minority. But on the 
Judiciary Committee on this issue of abortion, I have to admit that it 
is coming down to the point where it is a prime issue.
  My colleagues on the other side of the aisle will say they voted for 
people who are pro-life. That is true, because you can only do this so 
many times to a President's nominee. You can't get away with it very 
often. I hope they don't get away with it with regard to Justice 
Priscilla Owen. She deserves a vote on the floor.
  I have to say I am reaching a point in my tenure here where I am so 
sick and tired of the politics of this body on judicial nominations. I 
am so sick and tired of the way people are treated here. That is on 
both sides from time to time. I really believe, barring just cause, 
that every President's nominee for the Federal judiciary--at least for 
the Circuit Courts--ought to be given a vote on the Senate floor 
regardless of what the Senate Judiciary Committee does. If the 
committee votes a person down, that should be given tremendous weight; 
no question about it--in this case as well. But the fact of matter is 
that at least the Constitution says we should have a right to consent. 
And it doesn't mean 10 Senators, it means 100 Senators. I believe that 
would be only the fair way to do it. I really believe it ought to be 
done whether a President is Republican or Democrat.
  I wish I had made that suggestion. I did allude to it on more than 
one occasion on the floor during the last 6 years of President 
Clinton's tenure.
  I have heard nothing but badmouthing about what Republicans did to 
President Clinton's nominees, even though half of the Federal judiciary 
today are Clinton judges and President Clinton himself told me that I 
treated him fairly. Let me tell you, there is no reason for that. 
President Reagan got 382 Federal judges through and confirmed. That is 
the most in history. He had 6 years of a Republican Senate--his own 
party--to help him to do that. President Clinton got 377 through--
virtually the same number--and he had 6 years of a Republican Senate, 
an opposition party Senate which helped him to do that. I know. I was 
chairman during those 6 years. He was treated very fairly.
  There are always those who do not make it, I have to admit. There is 
always a complaint about that. But that is true whether it is 
Republican control of the committee or Democrat control of the 
committee. I would stack up our record on getting Clinton judges 
through against any record of the Democrats with regard to Reagan or 
Bush nominees.

[[Page 16204]]

  Frankly, we are talking about circuit court nominees here who have 
been sitting on the nominations list now for over a year and half, some 
of the finest nominees in history--just to mention a few, John Roberts 
is being considered as a Supreme Court Justice--whether they are 
Democrats or Republicans. He is one of the two or three top appellate 
lawyers in the country who I don't think has an ideological bent.
  How about Miguel Estrada, the first Hispanic to ever be put on the 
Circuit Court of Appeals for the District of Columbia? I don't believe 
he would be anything but one of the finest judges in the country; 
Michael McConnell, who is considered one of the two or three greatest 
constitutional experts in the country--a law professor.
  You could go right on down the line. Deborah Cook; Jeffrey Sutton. 
They have all been sitting there for a year and a half because the 
Senate Judiciary Committee will not act on them.
  I have a commitment from Senator Leahy, and I am going to rely on 
that commitment, that he would get McConnell and Estrada through not 
only the committee but through the floor before the end of this 
session. We are running out of time. If he did that, certainly I would 
be very pleased. I take him at his word that he will try to do that. 
Those are two of the finest people we could possibly have as judges in 
this country.
  I am hopeful that we will have that done before the end of this year. 
It is the right thing to do. I hope we can get John Roberts, Sutton, 
Cook, and others who have been sitting there for a year and half who I 
think have been very badly treated. There is no reason not, other than 
they know how brave all these people are.
  I suspect they think they can ascertain how they are going to rule on 
the bench once they get there. Frankly, nobody knows how that is going 
to work once the person gets a lifetime appointment.
  Let me just say again that one-half the Federal judiciary are Clinton 
judges. There is little or no reason for any complaint on the other 
side, even though, yes, there were some who didn't make it at the end, 
just as there are always 50 or more who didn't make it who were 
Republican nominees at the end of the first Bush administration.
  By the way, John Roberts was nominated by the first President Bush. 
He is still sitting there. He is one of the two best appellate lawyers 
in the country just sitting there for a year and a half.
  I might add that others, as well, have been nominated twice now and 
are just still sitting there after more than 10 years.
  So it is time to get this out of the realm of politics and start 
doing what is right; and that is, the President has a right to 
nominate, which is the greater power. We have a right to confirm or not 
confirm, but that ought to be done on the Senate floor, not by 10 
people who basically are, in my opinion, by and large, doing the 
bidding of these outside groups who have tremendous sway because of 
their money.
  Mr. President, I yield the floor.
  Mr. LEAHY. In less than 15 months the Judiciary Committee has 
favorably reported 80 judicial nominees and voted not to report 2.
  Four conservative, Republican women have already been reported and 
three have been confirmed by the Senate: Sharon Prost to the Federal 
Circuit; Edith Brown Clement to the 5th Circuit, who was the first 
nominee to the 5th Circuit to get a hearing in seven years, since 1994; 
Julia Smith Gibbons to the 6th Circuit, who was the first nominee to 
the 6th Circuit to get a hearing in almost 5 years; and today the 
Committee voted unanimously to report Judge Reena Raggi, who is 
nominated to a vacancy on the 2d Circuit.
  In addition, approximately a dozen more conservative, Republican 
women have already been confirmed to the Federal District Courts, 
including: Karen Caldwell, E.D. KY; Laurie Smith Camp, D.C. NE; Karon 
Bowdre, N.D. AL; Julie Robinson, D.C. KS; Marcia Krieger, D.C. CO; 
Callie Granade, S.D. AL; Cindy Jorgenson, D.C. AZ; Joan Lancaster, D.C. 
MN; Cynthia Rufe, E.D. PA; Joy Flowers Conti, W.D. PA; and Amy St. Eve, 
N.D. IL.
  I appreciate that the Administration and Republicans are disappointed 
with the outcome of the vote on the nomination of Priscilla Owen. I 
want to accord other Senators respect and, in these circumstances, some 
leeway in their comments--even as those comments are directed 
personally at me and other Senators on the Judiciary Committee.
  In response to their protestations, as if there were anything 
improper in the Judiciary Committee's consideration of the nomination 
of Priscilla Owen, I note that the salient difference between the vote 
on Justice Owen and the six and one-half years that preceded the change 
in majority is that Justice Owen was given a thorough and fair hearing, 
the Committee had a public, open and extensive debate and the 
nomination was then voted upon in public session. That was not true for 
more than a dozen nominees to vacancies on our Courts of Appeals over 
the last several years--several of which were left pending without a 
hearing or a vote for months and years. Here are just a few of those 
circuit court nominees with ``Well Qualified'' peer review ratings from 
the ABA that the Republican-controlled Judiciary Committee never 
accorded a vote:
  James Duffy, nominated to the Ninth Circuit; Kathleen McCree-Lewis, 
nominated to the Sixth Circuit; Enrique Moreno, nominated to the Fifth 
Circuit; James Lyons, nominated to the Tenth Circuit; and Robert 
Cindrich, nominated to the Third Circuit. Others, like Allen Snyder, 
nominated to the DC Circuit, were given a hearing but was never given a 
Committee vote, up or down. These and scores of other nominees of the 
past President were defeated by the Republican decision to deny them 
Committee votes.
  Republicans' preferred method for ``defeating'' more than 50 circuit 
and district court nominees rated ``highly qualified'' and 
``qualified'' by the ABA and those with significant professional 
credentials was to deny them hearings and, for some who had hearings, 
to deny them Committee consideration.
  To those Senators who are now contending that the ideology and 
possible activism of judicial nominees should have no place in 
Senators' consideration, I ask them to start by reviewing their own 
records of opposition to President Clinton's nominees, including their 
own votes against nominees professionally qualified. Those who voted 
against Margaret McKeown, Marsha Berzon, Sonia Sotomayor, Rosemary 
Barkett and Merrick Garland, Ray Fisher, Richard Paez, William Fletcher 
and Timothy Dyk to the Courts of Appeals, as well as those who held up 
any vote on Allen Snyder, Bonnie Campbell and the others, could ask 
themselves what standards they applied in so doing. The same question 
can be asked with respect to those who opposed and voted against 
Margaret Morrow, Gerry Lynch, Mary McLaughlin, Ronnie White, Ann Aiken 
and those who held up any consideration of Clarence Sundram or Fred 
Woocher and the scores of nominees never allowed a hearing.
  I do not wish to embarrass other Senators, but I am struck by how the 
statements I have heard today are wholly inconsistent with votes and 
actions in the years in which they were delaying, opposing and voting 
against the moderate judicial nominations of a President on another 
political party.
  I raise this consideration not as a matter of tit for tat, for we 
have assiduously avoided payback, but because it is Republicans who are 
trying to change their history and pretend that they did not oppose 
nominees based on what they perceived to be the ideological outlook of 
the nominees.
  I am reluctant to quote my colleagues on the other side of the aisle 
who are saying something very different now than they said in the prior 
six years when they were blocking judicial nominees, but in light of 
the attacks on the Committee, some context is necessary to understand 
the hollowness of the charge that Committee members acted unfairly, 
inappropriately or in some unprecedented fashion in their consideration 
of the nomination of Justice Priscilla Owen.
  For example, in 1996, one Republican said that he ``led the fight to 
oppose

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the confirmation of [two judges] because their judicial records 
indicated that they would be activists who would legislate from the 
bench.'' While we may differ on whether a judge's record evidences 
judicial activism, Republicans can hardly now be saying that such 
inquiry is inappropriate.
  Another Republican Senator argued in 2000 in defense of his record of 
stalling Senate consideration of judicial nominees voted out of the 
Judiciary Committee that having ``strong qualifications and personal 
attributes,'' being ``fine lawyers [who] are technically competent'' 
was not the test. He said then: ``My concern is with their judicial 
philosophies and their likely activism on the court. . . . Judicial 
activism is a fundamental challenge to our system of government, and it 
represents a danger that requires constant vigilance.'' He went on to 
say that the Senate should not defer to the President ``if there is a 
problem with a series of decisions or positions [judicial nominees] 
have taken.''
  Another Republican Senator said in 1998 that the Republicans were 
``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 the nominees to the Federal Bench are mainstream nominees.''
  Yet another Republican said in 1994: ``My decision on a judicial 
nominee's fitness is based on my evaluation of three criteria: 
character, competence and judicial philosophy--that is, how the nominee 
views the duty of the court and its scope of authority.''
  There are numerous other examples, of course, but these suffice to 
make the point.
  I ask that my full statement in opposition to the nomination of 
Justice Owen from the Judiciary Committee consideration be included in 
the Record at the end of these remarks. It focuses on the merits of the 
nomination, as did Senator Feinstein, Senator Kennedy, Senator Schumer, 
Senator Durbin and Senator DeWine. A few of the statements in the two-
hour debate before the Committee were not helpful to a reasoned debate, 
but by and large the Committee debate was on the merits. That followed 
an extensive hearing, that lasted six hours, which Senator Feinstein 
chaired fairly and patiently. A thorough hearing and a fair vote is 
what Justice Owen's nomination received from the Committee.
  The name-calling, threats, tactics of intimidation and retaliation 
are not helpful to the process. Holding up important legislative 
initiatives is harmful. Holding up ``the comma bill'' and threatening 
Democrats that they will be barred from Air Force One are silly.
  Today the Senator Judiciary Committee reported a conservative 
Republican nominee to the Senate for a vacancy on a Court of Appeals. 
This nominee, Judge Reena Raggi, was first appointed by President 
Reagan and she came before the Committee with strong bipartisan support 
and without the divisive controversy that accompanies so many of 
President Bush's circuit court nominees. Judge Raggi was reported out 
unanimously today. Indeed, since the change in majority less than 15 
months ago, the Committee has worked hard to report 80 judicial 
nominees to the Senate. They include a number of very conservative 
judges.
  I have made suggestions to the White House for improving the 
nominations and confirmations processes but those suggestions continue 
to be rebuffed. I wish the White House would work with us rather than 
stridently insist on seeking to skew the federal courts ideologically.

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