[Congressional Record (Bound Edition), Volume 148 (2002), Part 12]
[Senate]
[Pages 16662-16668]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF TIMOTHY J. CORRIGAN, OF FLORIDA, TO BE UNITED STATES 
           DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will go into executive session to proceed to the consideration 
of Calendar No. 960, which the clerk will report.

[[Page 16663]]

  The legislative clerk read the nomination of Timothy J. Corrigan, of 
Florida, to be United States District Judge for the Middle District of 
Florida.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be equally divided between the chairman and ranking 
member of the Judiciary Committee.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, how much time is available to the Senator 
from Vermont in his capacity as chairman of the Judiciary Committee?
  The ACTING PRESIDENT pro tempore. Three minutes 40 seconds.
  Mr. LEAHY. I thank the distinguished Presiding Officer.
  Yesterday marked the first anniversary of the September 11 terrorist 
attacks on the United States. Americans, very appropriately, honored 
the memory of the brave men and women who died in that terrible time. 
Our thoughts were and are with those who perished that day, the loved 
ones they left behind, and the heroes who acted with fearlessness, 
bravery and hope.
  The world has changed during the last year, but, fortunately, the 
principles on which this country was founded have not changed. I want 
to especially commend Chief Judge William Sessions of the U.S. District 
Court for the District of Vermont for proceeding with an immigration 
and naturalization ceremony in Vermont yesterday. What a wonderful 
gesture, granting citizenship to a new group of Americans and reminding 
us that we are a nation of immigrants and that our borders are open to 
immigrants who come to America seeking freedom, opportunity and a 
better life for their children. Whether our relatives came here for 
religious or political freedom in the 17th or 18th centuries, or to 
escape famine and persecution in the 19th and 20th centuries, many of 
us are descendants of those immigrants. Senator Kennedy reminded us all 
earlier this year that immigrants are not the problem, terrorists are 
the problem. When the President appeared last night on Ellis Island, 
framed against the backdrop of the Statue of Liberty, that setting 
likewise reminds us that we are a nation of immigrants. Let this 
country, and what it stands for, always be a beacon of hope and freedom 
for the oppressed and downtrodden.
  I am glad to see the President before the U.N. today. When our 
President speaks before the United Nations, we should not be looking at 
it as Democrats or Republicans, but as Americans. We want him, in his 
representation of our Nation and as our chief spokesperson on foreign 
policy, to be successful, and I wish him that success. I also 
appreciate his invitation to be there for the speech. Of course, our 
Senate votes will keep me here.
  The Judiciary Committee continues working hard to make progress on 
judicial nominations and on legislation to respond to the new 
challenges that face our great nation. The Senate met on September 12 
last year, and the Judiciary Committee held a business meeting on 
September 13. I kept the agenda that day to consensus items and 
bipartisan legislation. I felt strongly that we did not need partisan 
bickering but that we needed to come together and show that we can 
unite and that there is much that unites us all. We were able to report 
the first United States Attorneys nominated by President Bush. We 
worked on our bill to authorize the activities of the Department of 
Justice, a bipartisan drug use prevention, treatment and rehabilitation 
bill and the bipartisan Drug Competition Act.
  That same afternoon we held a confirmation hearing for judicial 
nominations, including a judicial nominee from Mississippi. Just as we 
continued to meet and work in the immediate aftermath of the attacks on 
September 11, we also proceeded with hearings through and in the 
immediate aftermath of the receipt of the anthrax letters sent to 
Majority Leader Daschle and to me.
  We worked hard to improve what became the USA PATRIOT Act with 
bipartisan support in the weeks that followed in September and into 
late October. In addition to our work on this landmark legislation, as 
well as continued oversight of the Justice Department, the FBI and the 
INS, we continued to hold judicial nominations hearings to help fill 
vacancies in our Federal courts with fair-minded judges.
  We have now reported 80 judicial nominees out of committee. With 
today's confirmation of Judge Corrigan for the Middle District of 
Florida, we will confirm our 75th judicial nomination from President 
George W. Bush. We have confirmed more of President Bush's nominees in 
less than 15 months--75--than were confirmed in the last 30 months that 
a Republican majority controlled the Senate and the pace of judicial 
confirmations--73. We have also now confirmed more of President George 
W. Bush's judicial nominations since July, 2001--75--than were 
confirmed in all of 1989 and 1990, the first 2 years of the term of his 
father President George H.W. Bush--73.
  As I have noted through the year, we could have accomplished even 
more with a modicum of cooperation from the White House. I regret that 
the administration and some Senate Republicans have been unwilling to 
acknowledge what we have accomplished in this regard but have, instead, 
chosen a strident posture and rejected our efforts toward bipartisan 
cooperation. The administration has chosen division rather than 
consensus with respect to its selection of Federal judges, which is 
unfortunate and unnecessary. The White House has insisted on sending 
forth a number of nominees who are divisive. Their records evidence 
judicial activism to reach ultra-conservative outcomes. Thus, in 
addition to reporting favorably 80 judicial nominees since the change 
in majority, the Judiciary Committee has, after a hearing and careful 
consideration, voted against reporting two nominations.
  I regret that with respect to the important matter of our independent 
Federal judiciary, a matter that affects all Americans, the White House 
has chosen the path of partisanship. I regret that some in the White 
House and among Republicans would rather raise campaign funds and stir 
up their most extreme supporters than fill judicial vacancies quickly 
with consensus nominees.
  Senate Republicans are running away from their own record. It is 
revealing that they refuse to make a fair comparison to the actual 
results during their most recent period of Senate control, which shows 
starkly how far we have come. Had they, in the 6\1/2\ years they were 
in the Senate majority, acted as fairly and as quickly on President 
Clinton and President Bush's judicial nominees as we have, we would 
have far fewer vacancies.
  The truth is that we have done about twice as much as they. With 
today's vote, the Democratic-led Senate will confirm its 75th judge--
exceeding the number of circuit and district court nominees the 
Republican Senate majority was willing to confirm in the last 30 months 
of their control of the process. Democrats have done more than 
Republicans did in less than half the time. Likewise, in less than 15 
months of Democratic control of the committee, we have held more 
hearings, for more nominees, and voted on more nominees in committee, 
and the Senate has confirmed more nominees, than the Republicans did in 
their first 15 months of control of the committee in 1995 and 1996.
  That today the Senate will confirm the 75th judge since July, 2001, 
is indication both of what we have been able to accomplish and what 
could be accomplished with some cooperation from the White House and 
Senate Republicans. I have noted how simple procedural accommodations 
that I suggested would have already resulted in another 10 to 15 fewer 
vacancies and more confirmations.
  Unfortunately, my efforts to increase cooperation with the White 
House have been rebuffed. We continue to get the least cooperation from 
any White House I can recall during my 26 years in the Senate. This is 
not the way to get judges through the Senate. Rather, with cooperation, 
with work, with something more than just words, nominees get through.
  A New York Times editorial this week, on September 10, noted: ``We

[[Page 16664]]

must fight the enemies of freedom abroad without yielding to those at 
home.'' We know that the terrorists are our enemy; they attacked all of 
us last September 11 and in the attacks that preceded it on U.S. 
embassies and the USS Cole and the 1993 World Trade Center attack. 
Republicans are wrong to try to make Democrats or the Judiciary 
Committee the enemy. We all want to ensure an independent and impartial 
Federal judiciary as a protector of our freedoms. Thus, ends-oriented, 
ideologically driven nominees selected to push the circuit courts and 
the law in a rightward direction are going to be scrutinized and may 
well be rejected.
  I hope that, as we did in the days immediately following September 
11, 2001 last year, we can come together and demonstrate unity. Since 
last July, we have greatly reformed the confirmation process and 
brought it out of the shadows and into the light of day. We now hold 
hearings, debate nominations, cast our votes, and abide by those votes. 
That was not the committee practice in the recent past, when secret 
holds and anonymous objections stalled scores of nominees by President 
Clinton. We have returned to the Democratic tradition of regularly 
holding hearings, every few weeks, rather than going for months without 
a single hearing. In fact, we have already held 23 judicial nominations 
hearings, including one the week of September 11, 2001, and others 
during the period in which committee offices and hearing rooms were 
closed because of the anthrax letters.
  Yesterday I noticed our 24th hearing to be held next week. I intend 
to call Professor Michael McConnell of Utah as a nominee at that 
hearing. Despite the fact that the committee has already acted upon and 
the Senate has already confirmed Judge Harris Hartz last December and 
Judge Terrence O'Brien this April to the 10th Circuit, the first new 
10th Circuit judges in 7 years, I will proceed with a third hearing on 
a 10th Circuit nominee at the request of Senator Hatch. The other 
circuit court for which we have held hearings on three nominees has 
been the 5th Circuit. There, we proceeded with nominees at the request 
of Senator Lott and Senator Hutchison.
  In addition, at the nominations hearing next week we will hear from 
District Court nominees from California, Delaware, New Jersey, 
Tennessee, and Texas. By proceeding next week we are able to proceed 
with a full complement of District Court nominees. That leaves only one 
District Court nominee with the support of home-State Senators and an 
ABA peer review who has not yet been scheduled for a hearing.
  Today's vote is on the nomination of Judge Corrigan to the United 
States District Court for the Middle District of Florida. Judge 
Corrigan has an extensive career, serving as a general litigator in 
private practice for over 14 years and as a U.S. Magistrate Judge for 
the Middle District of Florida since 1996. He received a unanimous 
``Well-Qualified'' rating from the ABA and has strong bipartisan 
support. While so many nominees of President Clinton had that rating 
but were never given a vote by the Republican majority, Judge Corrigan 
received a hearing and a vote within days of his file being complete in 
July.
  The confirmation of Judge Corrigan today will bring additional 
resources to the U.S. District Court for the Middle District of 
Florida. Judge Corrigan was nominated to fill a new position Congress 
created by statute in 1999 to address the large caseload facing the 
federal courts in Florida. He makes the second Florida district court 
nominee that we will have confirmed in one week. I congratulate Judge 
Corrigan and his family.
  During the Clinton administration, we all worked very hard in 
cooperation with Senators Graham and Mack to ensure that the Federal 
courts in Florida had its vacancies filled promptly with consensus 
nominees and had the judicial resources it needed to handle its 
caseload. Due to bipartisan cooperation among the Senators and with the 
White House, during the Clinton administration, the Senate was able to 
confirm 22 judicial nominees from Florida, including 3 nominees to the 
11th Circuit. It is most unfortunate that such tradition of 
cooperation, coordination and consultation has not been continued by 
the current administration.
  My recollection is that the only Florida nomination that generated 
any controversy or opposition was that of Judge Rosemary Barkett of the 
Florida Supreme Court to the 11th Circuit. I do recall that Judge 
Barkett was strongly and vociferously opposed by a number of Republican 
Senators because of what they viewed as a judicial philosophy with 
which they did not agree. Those voting against her confirmation include 
Senators Hatch, Grassley, McConnell, Specter, and Thurmond, all of whom 
are now on the Judiciary Committee, as well Senators Lott, Nickles, and 
Hutchison of Texas. Judge Barkett received the highest rating of the 
ABA, ``Well Qualified,'' and yet 36 Republicans voted against her 
confirmation, but she was confirmed with bipartisan support, including 
the support of her home-State Senators. Indeed, there was extended 
opposition both before the Judiciary Committee and on the Senate floor.
  Unfortunately, the cooperation, coordination and consultation that 
Senator Mack and Senator Graham shared with the Clinton White House do 
not seem to be the model for the way this White House has chosen to 
communicate with Senator Graham and Senator Nelson. That is most 
unfortunate. It is a tribute to Senator Graham and to Senator Nelson 
that we have made the progress that we have. I know that it has not 
been easy. They have been more than gracious in their willingness to 
support these nominees. We urge the White House to work with these 
Senators to nominate qualified, consensus nominees for the remaining 
vacancies in the courts.
  With today's vote, the Democratic majority in the Senate has 
demonstrated once again how it is fairly and expeditiously considering 
President Bush's judicial nominees. We have worked very hard to provide 
bipartisan support for the White House's nominations in spite of its 
lack of willingness to work with us in partnership.
  Mr. HATCH. Mr. President, I rise in support of the confirmation of 
Tim Corrigan to the U.S. District Court for the Middle District of 
Florida.
  I have had the pleasure to review Judge Corrigan's distinguished 
career and I can say, without hesitation, that his confirmation will 
bring to the Federal bench, not just a legal scholar with impeccable 
credentials, but a caring individual who used his many skills and 
talents to serve his community and his less fortunate fellow citizens.
  Tim Corrigan graduated with distinction from Duke University in 1981, 
where he was a member of the editorial board of the Duke Law Journal. 
After graduation, he served as a law clerk to the Honorable Gerald B. 
Tjoflat of the United States Court of Appeals for the Eleventh Circuit.
  Following his clerkship, Judge Corrigan spent 14 years in private 
practice with a prominent Jacksonville law firm, where he focused on 
civil litigation. He also engaged in a substantial appellate practice, 
including preparing appellate briefs and delivering oral argument in 
several district courts of appeals in Florida, the Supreme Court of 
Florida, and the U.S. Court of Appeals for the Eleventh Circuit. 
Moreover, Judge Corrigan served as co-counsel in a case in the U.S. 
Supreme Court where he had a primary role in the preparation of the 
briefs.
  Judge Corrigan became a U.S. Magistrate Judge in 1996. Because of the 
heavy caseload of the Middle District of Florida, the magistrate judges 
are entrusted with substantial responsibilities. Thus, in addition to 
handling a broad array of civil and criminal non-dispositive motions, 
he has conducted numerous evidentiary hearings in criminal cases and 
issued many reports and recommendations regarding dispositive criminal 
motions. He has also exercised full jurisdiction over Federal civil 
cases, including a lengthy jury trial.
  Judge Corrigan has published a number of legal writings and recently 
participated in a revision of the Middle District of Florida's Civil 
Discovery Handbook. He has also taught law school classes as an adjunct 
instructor.

[[Page 16665]]

  Judge Corrigan has been recognized by the Jacksonville Bar 
Association for the many hours he has spent doing pro bono work. 
Throughout his career he has volunteered his time for the United Way, 
Big Brothers, the Special Olympics, the Jacksonville Area Legal Aid, 
and the Guardian of Dreams, an organization that provides scholarships 
to low-income students.
  Judge Corrigan will make a fine member of the Federal Bench.
  Mr. President, I wish to respond to some of the remarks of my 
colleague from Vermont about the Judiciary Committee's treatment of 
President Bush's judicial nominees.
  My colleague from Vermont says that the Judiciary Committee has moved 
80 nominees and only voted against two. This, he says, is a record 
which hasn't been equaled in years and years, certainly not during 
President Clinton's administration. I am frankly amazed by this 
assertion. In fact, under my chairmanship the Judiciary Committee did 
not vote against a single nominee. Not a single nominee in the span of 
six years of Republican control of the Senate. Even when one of 
President Clinton's nominees was voted down, the Committee under my 
chairmanship permitted the nomination to go to the floor for a full 
Senate vote. My colleague from Vermont certainly cannot say the same. 
In the last fifteen months, the Democrat-controlled Judiciary Committee 
has already voted against two nominees in committee and voted against 
allowing their nominations to go to the floor for a vote. This is not a 
record to promote.
  The real story is the Senate's Democratic leadership is treating 
President Bush unfairly when it comes to judicial nominees. Some would 
justify this unfair treatment of President Bush as tit for tat, or 
business as usual, but the American people should not accept such a 
smokescreen. What the Senate leadership is doing is unprecedented.
  Historically, a President can count on seeing all of his first 11 
circuit court nominees confirmed. Presidents Reagan, Bush, and Clinton 
all enjoyed a 100-percent confirmation rate on their first 11 circuit 
court nominees. In stark contrast, seven of President Bush's first 11 
nominations are still pending now for almost a year and a half since 
they were nominated.
  History also shows Presidents can expect almost all of their first 
100 nominees to be confirmed swiftly. Presidents Reagan, Bush, and 
Clinton got 97, 95, and 97, respectively, of their first 100 judicial 
nominations confirmed. I know that is true. I helped to get President 
Clinton's 97 of his first 100 judicial nominations confirmed. In this 
case, the Senate has confirmed only 73 of President Bush's first 100 
nominees.
  Some try to blame Republicans for the current vacancy crisis, and 
that is pure bunk. In fact, the number of judicial vacancies decreased 
by three during the 6 years of Republican leadership of the committee. 
There were 70 vacancies left by the Democrats when I became chairman of 
the Judiciary Committee in January 1995, and there were 67 at the time 
the Republicans left.
  I might add again--I have said it many times, but it needs to be 
said--President Reagan was the all-time judicial confirmation champion 
with 382 judges confirmed. He had 6 years of a Republican--his own 
party--Senate helping him. President Clinton had virtually the same 
number confirmed, 377, and he had 6 years of the opposition party, 
meaning the Republican Party, to assist him, and he got basically just 
as many as President Reagan. He was treated very fairly, and I know 
because I was the Judiciary Committee chairman for those 6 years.
  Some have tried to blame the White House for the committee's sluggish 
pace on nominees, and that again is pure bunk.
  Specifically, I want to respond to the unbelievable allegations that 
the White House has failed to consult with home State Senators about 
judicial nominations.
  In contrast to the claims of the distinguished Senator from Vermont, 
there has been an abundance of consultation by the White House with 
home State Senators. In my 26 years, I have not seen anything like it. 
The White House has risen above and beyond the call of duty insofar as 
consultation is concerned.
  My colleagues who complain about the alleged lack of consultation 
from the White House really want something else altogether. What they 
want is for the President to defer to them 100 percent on judicial 
nominations. They want to be the one to nominate judges with only 
minimal, if any, input from the White House.
  This, of course, would turn the Constitution on its head. The 
Constitution plainly gives the President the power to nominate Federal 
judges. The Senate's role is only that of advice and consent. It is an 
important role, but it is certainly not as important as the right to 
nominate judges.
  Maybe they should offer an amendment to the Constitution if they 
would like it otherwise, but I know that amendment would not see the 
light of day.
  The bottom line is that President Bush will continue to consult in 
good faith with home State Senators about judicial nominations. He 
deserves the same courtesy of good faith in return, not the partisan 
rejection of qualified nominees that the committee Democrats have 
handed him.
  Mr. President, last week in the Judiciary Committee, one of my 
colleagues appeared to partially justify his vote against Justice 
Priscilla Owen by claiming that the White House failed to consult him 
on the nomination of Judge Reena Raggi from his home State of New York.
  I ask unanimous consent to print in the Record a letter from the 
White House counsel totaling the number of consultations that were made 
with the distinguished Senator. I think the record needs to be made 
clear.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                    Washington, September 5, 2002.
     Hon. Charles E. Schumer,
     Hart Office,
     Washington, DC.
       Dear Senator Schumer: I write in response to your statement 
     this morning during a Senate Judiciary Committee meeting that 
     you were not consulted by the White House prior to the 
     nomination of Judge Reena Raggi to the United States Court of 
     Appeals for the Second Circuit. I was surprised and very 
     disappointed to hear of your comments, given the extensive 
     consultation that took place between us prior to President's 
     Bush's nomination of Judge Raggi in early May.
       Our records reflect that beginning in early September, 
     2001--more than eight months before Judge Raggi's nomination 
     was submitted to the Senate--my staff called your office 
     numerous times to seek your input on prospective candidates 
     for the Second Circuit vacancy to which Judge Raggi was 
     ultimately nominated. By early November, 2001, my staff had 
     provided your office with a list of the names of candidates, 
     including Judge Raggi, who we planned to interview for the 
     vacancy.
       In mid-November, I advised you that we were prepared to 
     submit Judge Raggi's names to the President in advance of 
     commencing an FBI background investigation, Immediately after 
     receiving the President's approval, my staff informed yours 
     that Judge Raggi's names had indeed been submitted to the 
     FBI. At that time, we invited your staff to contact us at any 
     time with any questions or concerns as you reviewed Judge 
     Raggi's qualifications. No such questions or concerns were 
     ever raised.
       In late April, 2002, upon completion of the FBI background 
     investigation, my staff informed yours of the President's 
     intention to nominate Judge Raggi. Following the nomination, 
     you returned your ``blue slip'' reflecting your support for 
     Judge Raggi's nomination. Today, you joined your colleagues 
     on the Judiciary Committee in unanimously voting to approve 
     the nomination.
       In my view, the extensive consultation that took place 
     between us concerning Judge Raggi's nomination reflects the 
     common practice we have followed to date regarding federal 
     judicial nominations in New York and elsewhere. In light of 
     this record, I find your statements this morning very 
     troubling. I trust that you share my desire to continue the 
     same extensive practice of consultation on federal judicial 
     nominations in New York that has been in place since the 
     President took office. In light of that past practice and the 
     history of Judge Raggi's nomination, I know that you will 
     want to issue a public correction of your statements this 
     morning.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mr. HATCH. Finally, some might suggest that the Republicans left an

[[Page 16666]]

undue number of nominees pending in committee without hearings at the 
end of the Clinton administration. We did leave 41, which is 13 less 
than the Democrats left without hearings in 1992 at the end of the Bush 
administration. In fact, a number of the nominees now who have been 
submitted to the committee were submitted by Bush 1 back in the early 
nineties. They were never given a hearing, never given a chance, and 
they are still being dragged through the mud--not so much the mud, but 
through the difficult times of the confirmation process without any 
hearings.
  President Bush deserves to be treated at least as well as the last 
three President. Instead of thinking up new ways to rewrite history, 
the Senate Democratic leadership of the committee should begin 
confirming President Bush's first 11 and first 100 judicial nominations 
at a pace that matches or exceeds the rate we reached for President 
Reagan, President George Herbert Walker Bush, and President Clinton.
  I think it would be fair, and I hope we can some day in the future 
work it out where both sides on the Judiciary Committee will work 
together to see that these nominations are brought to the floor where, 
in an expeditious fashion, the Senate as a whole can decide whether or 
not to confirm them. We have to work towards that end. I am going to be 
dedicated towards working toward that end.
  I know there are colleagues on the other side on the Judiciary 
Committee who would like that as well. I believe it will end a lot of 
this partisan confusion. Frankly, I hope we can see that the 
Constitution will be implemented and that the Senate as a whole will 
decide whether or not to confirm these people. If that were the case, I 
have no doubt that Judge Pickering would have been confirmed to the 
Fifth Circuit Court of Appeals, and I think there is no question that 
Justice Priscilla Owen would have been confirmed to the Fifth Circuit 
Court of Appeals. I have high hopes they will be confirmed in the 
future anyway.
  Mr. GRAHAM. Mr. President, I would like to thank the Judiciary 
Committee for recognizing the needs of Florida and favorably reporting 
the nomination of Judge Timothy Corrigan. Tim Corrigan, an experienced 
Judge in Florida's Middle District, has been nominated to serve as a 
Federal judge in the Middle District of Florida.
  Tim Corrigan's qualifications make him an excellent candidate for 
service on the Federal bench. Prior to his appointment as a Magistrate 
Judge, Judge Corrigan spent 14 years in private practice with the 
Jacksonville law firm of Bedell, Dittmar, De Vault, Pillans and Coxe, 
P.A. As a Magistrate Judge since 1996, he has considerable experience 
handling a broad variety of civil and criminal matters, including 
conducting numerous evidentiary hearings and misdemeanor trials.
  Judge Corrigan received his law degree, with distinction, in 1981 
from Duke University School of Law, where he served as a member of the 
editorial board of the Duke Law Journal. He received his undergraduate 
degree, with honors, from the University of Notre Dame in 1978.
  Mr. Corrigan is a member of the Florida Bar, the Jacksonville Bar 
Association, the Federal Bar Association and the American Bar 
Association. The Jacksonville Bar Association recognized Judge Corrigan 
in 1991 for his pro bono services. From 1987-1989, Judge Corrigan 
served on the board of Jacksonville Legal Aid and was honored for his 
efforts.
  I thank my colleagues for considering this nominee. I am confident 
that they will agree that Judge Timothy Corrigan posses the qualities 
needed to effectively serve on the Federal Bench.
  Mr. DeWINE. Mr. President, as Senator Hatch just mentioned, last 
Thursday, on September 5, 2002, the Judiciary Committee met in an 
executive business meeting and considered the nomination of Texas 
Supreme Court Justice Priscilla Owen to be a Federal Court of Appeals 
Judge for the 5th Circuit. As a member of the Judiciary Committee, I 
participated in the debate on her nomination and then cast my vote in 
Owen's favor. Unfortunately, Owen's nomination was rejected on a 
straight party-line vote of nine in favor and ten against. I thought 
that the issues that had been raised against Justice Owen were 
unfounded. I won't go into Justice Owen's excellent qualifications here 
today, nor will I address objections that have been raised regarding 
her nomination.
  However, had the full Senate engaged in a debate on Justice Owen, and 
I think she deserved such a debate, I would have pointed out 
significant mischaracterizations that have been made about her 
decisions in a series of parental notification cases before the Texas 
Supreme Court. I discussed this issue in the Judiciary Committee 
debate, so for the information of other Senators who did not have the 
opportunity to participate in that debate, I ask unanimous consent to 
print my committee statement for the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Statement regarding 5th Circuit Court of Appeals Nominee Justice 
                             Priscilla Owen

       Mr. Chairman, I believe that we are headed for a very 
     momentous vote today and I would like to follow up on a 
     comment made by Senator Feinstein in regard to the closeness 
     of the last election. I would simply say that whether an 
     election is decided by a few votes or whether it is a 
     landslide, the President still has the constitutional duty 
     that is prescribed in the Constitution and the Senate has its 
     constitutional obligation. I candidly do not think that how 
     close an election is or whether it was a landslide matters 
     one bit.
       Let me talk about Justice Owen's opinions in the Doe cases 
     that Senator Feinstein was talking about. I think we need to 
     put this in its proper perspective. First of all, these are 
     not abortion cases. These are parental notification bypass 
     cases.
       As we all know, these were a series of Texas Supreme Court 
     cases interpreting a Texas statute that requires a minor to 
     tell one of her parents before she has an abortion. None of 
     these cases had anything to do with whether a woman could get 
     an abortion. That was not before the court. In Texas, as in 
     the rest of the country, women may legally get abortions.
       The question of a right to abortion is not what these cases 
     were about. The only question in any of these Doe cases was 
     whether a minor child could avoid the requirement of Texas 
     law to get parental consent to tell one of her parents before 
     she got an abortion.
       The Doe cases came to the Texas Supreme Court only after an 
     act of the Texas Legislature in 1999, when it passed a law 
     that requires parental notification when a minor is seeking 
     an abortion. Let me just reiterate, the Texas legislature 
     created this notice requirement, not the Texas Supreme Court, 
     and certainly not Justice Owen.
       When the legislature enacted this law, it included a 
     process that a minor could use to circumvent the notice 
     requirement. The legislature looked to the United States 
     Supreme Court and looked to the precedent of the Supreme 
     Court on parental notice rights to craft what was intended to 
     be a limited exception to the parental notice rule, but an 
     exception that was constitutional.
       The process allowed a teenage girl to go to a State court 
     judge and ask for a ``judicial bypass''. The legislature 
     instructed the court to grant the bypass if the young lady 
     could demonstrate one of the following. Senator Feinstein has 
     outlined these, but I am going to read them again because I 
     think it is important to understand the context of these 
     decisions.
       One, the minor is mature and sufficiently well informed to 
     make the decision to have an abortion performed without 
     notification to either of her parents; OR if she could 
     demonstrate that notification would not be in the best 
     interests of her; OR, three, if she could demonstrate that 
     notification may lead to physical, sexual, or emotional abuse 
     of the minor.
       Now, while these exceptions appear straightforward, as with 
     all statutes in a common law system--and that is what we are 
     dealing with--the terms are, of course, subject to 
     interpretation by the courts. And I would submit that what we 
     see in the Texas Supreme Court is that give-and-take on the 
     interpretation; that when you look at both the majority and 
     minority opinions in each one of the cases, you will see 
     interpretation. So that should not be the issue.
       Many, many, many statutes every single day are construed by 
     our courts, and the courts are obligated to interpret and 
     apply the statutes as they believe the legislature intended.
       Senator Feinstein and others at the hearing raised the 
     issue of statutory construction, and basically the charge was 
     that Justice Owen had become a judicial activist. Let me 
     talk, if I could, about some questioning I did of Justice 
     Owen at the hearing on three separate issues.
       I asked Justice Owen about her analysis of the Texas 
     parental notification statute. She made these three points 
     about decision making in state courts of appeals, and 
     although

[[Page 16667]]

     I think these points are obvious, I would like to repeat them 
     because I think it gives us a better understanding of what 
     the issues are in front of us.
       I think that it is particularly important for the Committee 
     to consider how the Texas Supreme Court analyzed the Doe 
     cases and whether that analysis was consistent with standard 
     appellate review.
       First, Justice Owen told me that the Texas Supreme Court 
     applied the standard presumption, something that all courts 
     must apply, that a state legislature is aware of U.S. Supreme 
     Court precedent on an issue on which it is legislating. So in 
     interpreting the statute, both the majority and, in a 
     dissent, Justice Owen applied this rule of construction.
       The language of the Texas statute tracks closely with 
     language in Supreme Court precedent on the issue. It 
     therefore was simply standard procedure for the justices to 
     look to the U.S. Supreme Court case law to interpret the 
     Texas law. You can't interpret one without the other. It was 
     not an act of activism in any sense. It was merely standard 
     appellate procedure to look at Supreme Court precedent. The 
     only difference in the outcome of the majority's opinion and 
     Justice Owen's dissent in one key case had to do with a 
     pretty nuanced application of the precedent to the facts of 
     the case.
       Second, another important point Justice Owen made in 
     response to my questions was that appellate courts almost 
     always defer to trial courts on issues of fact. That was 
     Justice Owen's position in the Doe cases and that is the 
     standard applied to fact issues in a vast majority of cases 
     in our country's courts of appeals.
       That deference is necessary because the trial courts are in 
     a much better position to judge factual issues. The trial 
     courts get to see the witnesses firsthand and to judge their 
     credibility. These Doe cases obviously hinge on that 
     analysis, the analysis by the trial court, the trial court's 
     ability to judge the demeanor of the witnesses, the trial 
     court's determination of the facts. The trial court, for 
     example, had the advantage of actually listening to the 
     teenager's testimony to determine whether she was ``mature'' 
     or not.
       Now, in all the cases before Judge Owen--I think we need to 
     keep this in mind--in all the cases, when we think about the 
     factual determination that the teenager had not met the 
     requirements for a judicial bypass. The trier of fact had 
     already made that determination.
       The final point, again to state the obvious, that was 
     brought out in my discussion with Justice Owen was that 
     before the Texas Supreme Court ever heard a parental 
     notification case, a bypass case, a number of judges had 
     already denied the bypass.
       First, the trial judge would have ruled against the 
     teenager not just once, but really on all three of the ways 
     that she could achieve the bypass. The judge would have had 
     to have found that she had not proven her case on any of the 
     three.
       Next, a three-judge court of appeals would have ruled 
     against the teenager on these same issues. So before this 
     case ever reached the Texas Supreme Court, the case had 
     already been decided once at the lower court and already 
     decided at the appellate court.
       I believe these are important points, all of them, all 
     three, about how Justice Owen analyzed the Doe cases. And I 
     think it may be constructive to put these cases in the 
     context of all the bypasses requested by teenage girls in 
     Texas.
       We don't know the total number and I am not sure really 
     what great significance it has, but we do know that at least 
     657 bypass petitions were filed between January 1, 2000 and 
     March 8, 2002. This is the number of cases in which the Texas 
     Department of Health paid some of the expenses for filing the 
     petition. So it is the minimum number of cases that were just 
     filed.
       Of all these cases, we ended up with 10, 12 cases that got 
     to the Supreme Court, depending on how you calculate them. 
     Some came up for the second time on review. Of these ten 
     cases, Justice Owen thought the majority of the Texas Supreme 
     Court got it wrong three times. So she is only in the 
     minority three times in the Texas Supreme Court, and in these 
     cases she agreed with both lower courts. I think these are 
     things that we need to keep in mind to put this in its proper 
     perspective.
       What we are really talking about here is a small handful of 
     cases. A handful of cases in which a minor was required under 
     Texas law to tell one of her parents that she wanted to have 
     an abortion. Justice Owen conducted a perfectly reasonable 
     analysis in her opinions. In three of those cases, she came 
     to a different conclusion than the majority of the court.
       That conclusion would not, as some would imply, overturn 30 
     years of abortion precedent. It would simply require each of 
     these three teenage girls to tell one of their parents that 
     they are going to have an abortion. So, in my view, it is 
     ludicrous to think that this is sufficient to disqualify 
     Justice Owen for a seat on the 5th Circuit Court of Appeals.
       Mr. Chairman, I appreciate your time. I don't want to take 
     the committee's time to talk about all the other issues. I 
     thought I would just devote my time to that one particular 
     issue.

  Am I to understand the vote is to occur at 10 o'clock?
  The PRESIDING OFFICER (Ms. Stabenow). The Senator is correct.
  Mr. REID. Madam President, I do not want to cut Senator Hatch off 
from speaking, but I have to acknowledge that this judge will be 
approved by, I think, a unanimous vote. Unless Senator Burns feels 
strongly to the contrary, we should go ahead with the vote. If Senator 
Hatch has something to say, he can speak after the vote. If Senator 
Burns wants him to speak, I will be happy to do that. Senators are 
waiting around to vote. Schedules have to be met.


                 unanimous-consent agreement--h.r. 5005

  Mr. REID. Madam President, while the Senator is making that decision, 
I ask unanimous consent that at noon today, when the Senate resumes 
consideration of H.R. 5005, the homeland security legislation, the 
Thompson amendment be set aside and Senator Hollings be recognized to 
offer a first-degree amendment relating to national security; that the 
Hollings and Thompson amendments be debated concurrently for a total of 
2 hours, prior to a vote in relation to each amendment, which 1 hour 
equally divided and controlled between the proponents and opponents of 
each amendment, with no second-degree amendments in order to either 
amendment prior to a vote in relation to each amendment; that upon the 
use or yielding back of time, without further intervening action or 
debate, the Senator vote in relation to the Thompson amendment, to be 
followed by an immediate vote in relation to the Hollings amendment; 
that upon disposition of these amendments, Senator Byrd be recognized 
to offer a first-degree amendment, as provided for under a previous 
order; provided further, that following a vote in relation to the 
Thompson amendment, regardless of the outcome, the Senate vote in 
relation to the Hollings amendment; that if neither amendment is 
disposed of, then the amendments remain debatable and amendable.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, the only caution I will make is that this 
order does not provide for who is for and against these amendments. We 
really do not know at this stage. When the time of noon arrives, the 
Chair will have to make some ruling as to who is going to control the 
time in opposition to these amendments, if, in fact, there is anyone 
opposed to them.
  Has the Senator made a decision?
  Mr. BURNS. Madam President, I suggest and recommend to the chairman 
of the committee that we move forward on this vote. I know Senators 
have made their schedules around the vote that was determined to happen 
at 10 o'clock this morning. We have other business to do on the 
Interior appropriations bill and a short time within which to do it. I 
suggest to the chairman that we move forward.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I suggest we go ahead with the vote. I will ask for the 
yeas and nays once it is reported.
  The PRESIDING OFFICER. The yeas and nays have previously been 
ordered.
  Mr. LEAHY. I understand.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Will the Senate advise and consent to the nomination of Timothy J. 
Corrigan, of Florida, to be United States District Judge for the Middle 
District of Florida? The yeas and nays have been ordered, and the clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the 
Senator from Delaware (Mr. Carper), the Senator from New York (Mrs. 
Clinton), the Senator from Connecticut (Mr. Dodd), the Senator from New 
Jersey (Mr. Torricelli), and the Senator from Minnesota (Mr. 
Wellstone), are necessarily absent.
  Mr. NICKLES. I anounce that the Senator from Wyoming (Mr. Enzi), the 
Senator from New Hampshire (Mr. Gregg), the Senator from North Carolina 
(Mr. Helms), the Senator from Arkansas (Mr. Hutchinson), the Senator

[[Page 16668]]

from Alabama (Mr. Sessions), and the Senator from New Hampshire (Mr. 
Smith) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 213 Ex.]

                              YEAS --- 88

     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Chafee
     Cleland
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Shelby
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
     Wyden

                           NOT VOTING --- 12

     Akaka
     Carper
     Clinton
     Dodd
     Enzi
     Gregg
     Helms
     Hutchinson
     Sessions
     Smith (NH)
     Torricelli
     Wellstone
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President will 
be immediately notified of the Senate's action.

                          ____________________