[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 20007-20017]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES 
              CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--Resumed

  The PRESIDING OFFICER. Under the previous order, not withstanding the 
provisions of rule XXII, there will now be 1 hour of debate equally 
divided between the Senator from Utah, Mr. Hatch, or his designee, and 
the Senator from Vermont, Mr. Leahy, or his designee.
  The Senator from Nevada.
  Mr. REID. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be charged equally between Senator 
Hatch and Senator Leahy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I know the Senator from Ohio has the floor, 
but through the Chair to him, I would note we are under a time 
constraint. If the Senator wishes to speak, I have no objection as long 
as it is charged off of Senator Hatch's time.
  Mr. VOINOVICH. Mr. President, I would like permission to speak on the 
CAFE amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, as I indicated, I object unless the time is 
charged to Senator Hatch.
  The PRESIDING OFFICER. Time will be so charged, unless the Senator 
from Utah objects.
  Mr. HATCH. Mr. President, I ask what the request is.
  The PRESIDING OFFICER. The unanimous consent request is that the 
Senator from Ohio be able to speak on CAFE standards.
  Mr. VOINOVICH. For 6 minutes.
  The PRESIDING OFFICER. Charged to the time for the judge.
  Mr. HATCH. I ask the Senator, could you keep it a little lower than 
that because we--
  Mr. REID. I cannot hear the Senator from Utah.
  Mr. HATCH. Do you think you could do it in less time than that 
because we have very little time.
  Mr. VOINOVICH. I can do it in 6 minutes.
  Mr. HATCH. That is fine.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Ohio.
  Mr. VOINOVICH. I thank the Senator from Utah.
  (The remarks of Mr. VOINOVICH are printed in today's Record in 
legislative session.)
  Mr. VOINOVICH. Mr. President, I thank the Senator from Utah for 
giving me this opportunity to speak on behalf of the Bond-Levin CAFE 
standards.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, what is the parliamentary order?
  The PRESIDING OFFICER. We are under an hour of time equally divided. 
The Senator controls 24 remaining minutes.
  Mr. HATCH. Mr. President, I rise today to speak on behalf of the 
nomination of Priscilla Owen for the United States Court of Appeals for 
the Fifth Circuit and to speak about the pattern of political tactics 
being used against President Bush's well-qualified judicial nominees.
  We find ourselves at an important point in Senate history. History 
will show an effort by a minority of Senators to completely block well-
qualified circuit court nominees during the 108th Congress. History 
will further show that this minority group of Senators was not asking 
for a full and open debate on the Senate floor. They were not asking 
for meaningful deliberation on these well-qualified nominees. Rather, 
this minority group of Senators was committed to reworking the meaning 
of advice and consent.
  I think we can agree that the confirmation process is broken. I 
certainly do hope we can find a constructive way to restore the 
process, but recent events do not lead me to be overly optimistic--not 
when I hear injudicious talk about plans for more filibusters and not 
when I hear my colleagues characterize our advice and consent duty in 
terms of batting averages or quarterback completion rates. If anything, 
my colleagues on the other side haven't let Justice Owen even get up to 
the plate. This is not a matter of acquiring a certain win-loss record 
on the baseball field; this is a matter of whether we will be fair to 
our judicial nominees--the many talented men and women who have 
volunteered to serve our country through judicial service.
  In Justice Owen's case, a handful of Senators blocked her nomination 
in committee last year, preventing a simple up-or-down vote on the 
Senate floor. Nearly a year later, Justice Owen still has not been 
afforded a vote by the full Senate. How much longer must she wait? One 
of my colleagues on the other side has already answered this question 
for himself, saying that there are not enough hours in the universe for 
sufficient debate, but I strongly disagree. We have debated long 
enough. Justice Owen has been on the Senate floor for 4 months. It has 
been 7 months since she was renominated by President Bush. It has been 
more than a year since her first hearing, and it has been more than 2 
years since she was first nominated by President Bush on May 9, 2001--
811 days in total. During all that time, she has not been afforded a 
vote. I think it is time Justice Owen was given the courtesy of an up-
or-down vote. Keep in mind, she has the unanimous well-qualified rating 
of the American Bar Association.
  Priscilla Owen could not be a better selection for the Federal court. 
She attended Baylor University and Baylor University School of Law, 
graduating cum laude from both institutions. She finished third in her 
law school class. Justice Owen earned the highest score on the Texas 
bar exam, and she has 17 years of experience as a commercial litigator.
  Justice Owen is committed to legal services for the poor. She 
successfully fought with others for more funding for legal aid services 
for the indigent.
  Justice Owen is committed to creating opportunities for women in the 
legal profession. She has been a member of the Texas Supreme Court 
Gender Neutral Task Force, and she is viewed as a mentor by younger 
women attorneys. She was one of the first women to sit on the Texas 
Supreme Court. Incredibly, this is the woman the liberal attack groups 
smear as ``anti-woman.'' Give me a break.

[[Page 20008]]

  Justice Owen's confirmation is supported by Texas lawyers such as E. 
Thomas Bishop, president of the Texas Association of Defense Counsel, 
and William B. Emmons, a Texas trial attorney and a Democrat who says 
that Justice Owen ``will serve [the Fifth Circuit] and the United 
States exceptionally well.'' After a full review of Justice Owen's 
rulings, Victor Schwartz, a respected trial attorney and co-author of 
the leading torts textbook, concluded that she is a ``moderate 
jurist,'' neither pro-plaintiff nor pro-defendant.
  I ask unanimous consent that a copy of Mr. Schwartz's letter to the 
Judiciary Committee be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 Shook, Hardy, & Bacon L.L.P.,

                                     Washington DC, July 18, 2002.
     Re nomination of Texas Supreme Court Justice Priscilla Owen.

     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: Throughout the past three decades, many 
     members of your Committee have been kind enough to ask my 
     views about tort law. I have taught in law school, and 
     practiced on behalf of plaintiffs in the 1970s. I currently 
     practice in the defense firm of Shook, Hardy & Bacon, L.L.P. 
     and represent the American Tort Reform Association. You have 
     appreciated that when I share my views with you, I try my 
     utmost to be objective. Because almost anyone's views on 
     judges are likely to be seen as having bias, I have refrained 
     from commenting on any judicial nominee.
       I am now writing you about Texas Supreme Court Justice 
     Priscilla Owen because she has been attacked as being unfair 
     in the very area of my expertise, tort or liability law. 
     Since 1976, I have been co-author of the most widely used 
     torts textbook in the United States, Prosser, Wade & 
     Schwartz's Cases and Materials on Torts. I have also served 
     on the three principal American Law Institute Advisory 
     Committees on the new Restatement of Torts (Third). The study 
     of tort law has been the love of my professional life.
       Because of my academic and practice obligations, I have had 
     a very deep interest in opinions of law in the field of 
     torts. Naturally, I am familiar with state supreme court 
     judges or justices who are thought to be ``pro-plaintiff'' or 
     ``pro-defendant.'' In that regard, when I heard about 
     controversies surrounding Justice Owen, I was somewhat 
     puzzled because I had not placed her in either group.
       This past weekend, I reviewed most of her principal 
     opinions in tort law. My review of Justice Owen's opinions 
     indicates that any characterization of Justice Owen as ``pro-
     plaintiff'' or ``pro-defendant'' is untrue. Those who have 
     attacked her as being ``pro-defendant'' have engaged in 
     selective review of her opinions, and have mischaracterized 
     her fundamental approach to tort law.
       Justice Owen's fundamental approach to tort law is to make 
     it stable. On the one hand, she is not a judge who would be 
     likely to jump to the front of a plaintiff's lawyers petition 
     to expand the scope of tort law. Furthermore, she would be 
     unlikely to allow claims for brand-new types of damages, such 
     as hedonic damages, or create cutting-edge liability claims 
     (e.g., allowing a lawsuit against a fast food chain, where 
     there was no showing that an individual plaintiff's health 
     was actually harmed by eating at that chain). On the other 
     hand, she would not and has not arbitrarily thwarted the 
     rights of plaintiffs under existing tort law.
       Let me give you just a few examples. In Merrell-Dow 
     Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), 
     a decision for which she was roundly criticized by a group 
     called ``Texans for Public Justice,'' Justice Owen held that 
     the evidence was legally insufficient to establish that a 
     birth defect was caused by exposure to the drug 
     Bendectin. Bendectin is the only drug 
     that helps alleviate the severe symptoms of morning sickness. 
     It is still approved by the U.S. Food and Drug Administration 
     and regulatory agencies throughout the world. As Justice Owen 
     recognized, the attempts by plaintiff's counsel to tie the 
     birth defects of the plaintiff's child to Bendectin 
     in the Havner case were insufficient. The Supreme Court of 
     the United States itself recognized, in a case involving that 
     very drug, that judges should act as gatekeepers, and not 
     permit juries to make judgments based on bad science. See 
     Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 
     (1993).
       I am not surprised that the Association of Trial Lawyers of 
     America (ATLA), the organized plaintiffs bar, and those who 
     have empathy with that group criticized Justice Owen for her 
     decision. They also criticized the United States Supreme 
     Court when it rendered the Daubert decision. ATLA and its 
     sympathizers believe that judges should not act as 
     gatekeepers; rather, they believe that juries should be 
     permitted to weight scientific evidence as they choose.
       Here is the rather interesting point. In a case decided 
     almost simultaneously with Havner, not mentioned by ``Texans 
     for Public Justice'' or other groups criticizing Justice 
     Owen, she would have allowed an adult to pursue a sexual 
     abuse claim against an alleged abuser who purportedly did the 
     wrongful acts when the plaintiff was a child. In the case 
     S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996), expert testimony 
     indicated that the plaintiff had ``repressed memories'' that 
     arose when the plaintiff was an adult. The majority held that 
     expert testimony was insufficient to warrant the application 
     of the ``discovery rule,'' which would have tolled the 
     statute of limitations. It required ``objectively 
     verifiable'' evidence of abuse to apply the discovery rule 
     and toll the statute. Justice Owen noted, however, that such 
     evidence was often unavailable, and the unavailability of the 
     evidence is frequently due to acts done by the alleged 
     abuser. She would have held that the repressed memory 
     evidence was sufficient to toll the statute and allow the 
     claim. I recommend that Members of this Committee read this 
     case and note that Justice Owen wrote the sole dissenting 
     opinion in the case.
       In a later case, Justice Owen prevented another plaintiff 
     from falling into a statute of limitations trap. A patient 
     brought a malpractice case against a surgeon in his 
     individual capacity. The patient later amended his complaint, 
     and named the surgeon's professional association as a 
     defendant. The association moved to dismiss the case because 
     the statute of limitations had expired by the time the suit 
     was brought against the association. Writing for the Texas 
     Supreme Court, Justice Owen held that the cause of action 
     brought against the surgeon in his individual capacity 
     preserved the potential of the claim against the association. 
     See Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999).
       Justice Owen's views about product liability law strike the 
     same balance. For example, Justice Owen joined in a Supreme 
     Court of Texas opinion that considered a question certified 
     by a federal court as to whether a manufacturer of a product 
     used by adults--a cigarette lighter--might have a duty, in 
     some situations, to childproof the product. Justice Owen 
     joined with the Court in holding that a manufacturer may have 
     such an obligation. See Hernandez v. Tokai Corp., 2 
     S.W.3d.251 (Tex. 1999).
       One finds the same sense of ``balance'' in Justice Owen's 
     opinions in other areas of tort law. In a very interesting 
     opinion, Justice Owen joined with the Texas Supreme Court to 
     strip a defendant business of its defenses based on a 
     plaintiff's fault when that defendant business had decided to 
     opt out of the workers' compensation system. Justice Owen 
     supported the sound public policy that would discourage 
     businesses from opting out of workers' compensation and 
     taking their chance on their vagaries of a tort lawsuit in 
     the workplace. As you and Members of your Committee know, a 
     fundamental reason why workers' compensation was adopted in 
     the first place is so that a worker's fault does not preclude 
     him or her from obtaining compensation for a workplace 
     injury. See Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000).
       I wish to reiterate that I am not suggesting that Justice 
     Owen is a plaintiffs' lawyer's ``dream judge.'' She is not. 
     For example, when the Texas Supreme Court addressed the issue 
     of whether jurors should be told that if they find a 
     plaintiff more than 50% responsible for his or her own 
     injury, the plaintiff might lose, Justice Owen dissented from 
     the majority. The majority found that such information was 
     allowed to go to the jury. Justice Owen believed such action 
     could cause jurors to look more at the effect of the 50% rule 
     than the facts of the case. See H.E. Butt Grocery Co. v. 
     Bilotto, 985 S.W.2d 22 (Tex. 1998). While not everyone 
     (including myself) would agree with Justice Owen's decision, 
     it is anchored in logical judicial precedent and has a clear 
     public policy basis. See Victor Schwartz, Comparative 
     Negligence, Sec. 17-5(a) (3d Ed. 1994).
       My fundamental point is that in the area of tort law, 
     Justice Owen is a moderate jurist; she is neither a 
     trailblazer for plaintiffs nor a captive of corporate 
     interests.
       I would be pleased to answer any questions or inquiries by 
     Members of your Committee, and I value your taking the time 
     to read this statement.
           Sincerely,
                                               Victor E. Schwartz.

  Mr. HATCH. Justice Owen is a consensus nominee. A bipartisan majority 
of the Senate supports her confirmation. Both of Justice Owen's home 
State Senators, Senators Hutchison and Cornyn, back her. The American 
Bar Association has awarded her a unanimous well-qualified rating, 
their highest rating, and the gold standard formerly used by many of my 
Democratic colleagues.
  Former Texas Supreme Court Justices John Hill, Jack Hightower, and 
Raul Gonzalez--all Democrats--say Justice Owen is unbiased and 
restrained in her decision-making. Alberto Gonzales, another former 
Texas Supreme Court colleague, says

[[Page 20009]]

she will perform superbly as a Federal judge.
  Fifteen past presidents of the Texas State Bar, both Democrats and 
Republicans, who hold a variety of views on important legal and social 
issues, agree that Justice Owen is an outstanding nominee. Those who 
know Justice Owen best support her confirmation.
  Sure, the usual abortion-rights groups and highly partisan Texas 
trial lawyer interest groups have announced that they expect Senators 
to filibuster. But what else is new? They have done and will continue 
to do what they do best: distort, smear, and profile. As Rena Pederson 
wrote in an op-ed published in the Dallas Morning News, ``The people 
who know Priscilla Owen the best all agree. They say the Texas Supreme 
Court judge is nothing like the person portrayed by critics of her 
appointment to the 5th U.S. Circuit Court of Appeals.''
  I ask unanimous consent that a copy of this editorial be printed in 
the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Dallas Morning News, Feb. 2, 2003]

             Senate Didn't Get To Know the Real Judge Owen

                           (By Rena Pederson)

       The people who know Priscilla Owen the best all agree. They 
     say the Texas Supreme Court just is nothing like the person 
     portrayed by critics of here appointment to the 5th U.S. 
     Circuit Court of Appeals.
       Democrats on the Senate Judiciary Committee voted along 
     party lines in September and rejected her appointment. They 
     contended she had an anti-abortion bias and was a tool of big 
     businesses like Enron.
       But if they had bothered to check with the people who grew 
     up with her in Waco or worked with her in top law firms in 
     Houston or clerked at the Texas Supreme Court, they would 
     have gotten a different, more accurate picture.
       Those sources describe Judge Owen this way: She is a 
     doggedly dutiful legal scholar who couldn't care less about 
     party labels or moneyed interests. Many cite her as a helpful 
     mentor for other women in the legal profession. She prefers 
     cooking for friends to the political or social circuit. Yes, 
     they say, she's a devoted Sunday school teacher, but not what 
     used to be called a ``goody-two-shoes'' or a narrow-minded 
     religious zealot. She was known to enjoy a few beers with her 
     friends at Baylor University and has a smart sense of humor. 
     She's a water-skier and was spunky enough to try 
     rollerblading in her kitchen a few years ago, breaking her 
     ankle.
       The American Bar Association gave the 48-year-old Texas 
     judge its highest rating, ``well qualified.'' Many prominent 
     Democrats from Texas--including former Texas Supreme Court 
     Chief Justice John Hill and former State Bar President Lynne 
     Liberato--spoke up in Justice Owen's defense. But their 
     voices were discounted. A public relations campaign was 
     generated by several interest groups, using snippets from the 
     hundreds of cases that had come before her bench, in order to 
     make her look as bad as possible and snub President Bush.
       What particularly dismayed those who know the Texas justice 
     well is that she was made to look anti-abortion and anti-
     woman. They emphatically insist that, while conservative, she 
     is not an activist or ideologue with an agenda.
       Laura Rowe, who worked with Ms. Owen at the Andrews and 
     Kurth law firm in Houston, said, ``I came across her when I 
     was a young lawyer starting out, and she was a great mentor 
     for the other women. She was so smart, hardworking, but funny 
     and normal at the same time. When I met her, I thought 
     `that's a woman I would like to be like.' She was one of the 
     lawyers that people wanted to work for, tough but fair. It 
     did disturb me to see her vilified.''
       Kristin O'Neal, who was a law clerk at the Texas Supreme 
     Court, said, ``I understand why people distorted her 
     opinions, because it furthered their agenda, but to say she 
     has some kind of activist agenda is absurd to me. She takes 
     very logical, methodical approach to everything. They tried 
     to make her look bad for writing an opinion that benefited 
     Enron because She had received a campaign contribution from 
     Enron some time earlier. What people didn't know was that it 
     was a unanimous ruling--and the judges don't select the 
     opinions they write. It's a random drawing. You might 
     disagree with one of her rulings, but I never, ever sensed 
     that she was using her position in an activist manner or to 
     further any personal beliefs. She takes her job and her role 
     very seriously.''
       Ruth Miller, who has known Ms. Owen since they were in high 
     school in Waco, said, ``I don't know how Priscilla remained 
     so composed and calm, when some of the senators cut her off. 
     I thought she handled herself with dignity, even when she 
     should have been able to continue. What people don't know is 
     that she had to work for weeks and weeks on her own to 
     prepare, on the weekends, no vacation. But she knew I was 
     going through a serious health problem, and so she would call 
     to check on me every week. And in the throes of the 
     confirmation process, she went with me to my appointment at 
     the hospital in Houston and just brought her portfolio with 
     her.''
       Nancy Lacy, Ms. Owen's sister, attended the hearings in 
     Washington and sat behind Justice Owen, as did the minister 
     from the church Justice Owen attends in Austin. ``It was eye-
     opening,'' she said. ``It was a hard experience because no 
     matter what she said, they were going to stick with the 
     propaganda. It was obvious. I was hoping they were going to 
     really give her a shot, try to get to know who she really is, 
     ask her thoughtful questions. But the information they had 
     was wrong to begin with. I felt sorry for them at times; 
     their staff didn't do a very good job; it was obvious the 
     special interest groups gave them the information, and they 
     didn't research to see if it was true. The handwriting was on 
     the wall. I just wanted to say to them, `You're missing the 
     boat. You're missing the opportunity to get to know a really 
     neat person.'''
       By all accounts, it was a wearing experience for the Texas 
     judge. Although she understood she had been caught in a 
     political spite match, she couldn't help but be pained by the 
     attacks on her character. Still, her nomination has been 
     resubmitted by Mr. Bush, so Americans may get a chance to see 
     the rest of her story after all.

  Mr. HATCH. Mr. President, Justice Priscilla Owen will be an excellent 
Federal judge.
  We have a choice: Will we continue to block another highly qualified 
nominee for partisan reasons or will we allow each Senator to decide 
the merits of the nomination for himself or herself?
  I know my choice. We should allow a vote. I hope my colleagues will 
do the right thing and make the same choice.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. How much time does the Senator need?
  Mr. CORNYN. Five to seven minutes.
  Mr. HATCH. Mr. President, I yield 5 minutes to the Senator from 
Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I thank the chairman of the Judiciary 
Committee, who has done yeoman's work in shepherding President Bush's 
highly qualified judicial nominees through the Judiciary Committee and 
to the floor of the Senate.
  Chairman Hatch has mentioned a number of people on both sides of the 
aisle who support the nomination of this good woman to the Fifth 
Circuit Court of Appeals. I have a few comments--first, to echo those 
comments in terms of the consensus of opinion in my State of Texas as 
to the good work that Priscilla Owen has done as a justice in the Texas 
Supreme Court. But I also bring a personal perspective to this debate 
because I served with Priscilla Owen for 3 years on the Texas Supreme 
Court. Frankly, I do not recognize the caricature that has been painted 
of this good judge in the debate before the Senate.
  In May of this year, I spoke on the floor regarding the 2-year 
anniversary of Justice Owen's nomination. That dismal anniversary 
showed us just how far our confirmation process had gone awry. And now 
it has gotten even worse.
  Today's vote is just the first in a series this week. Over the next 4 
days, we will see just how far the minority in this body is willing to 
go to block well qualified nominees and parrot the talking points 
provided by special interest groups who oppose this and other highly 
qualified judicial nominees. It is my hope that the Senate will do the 
right thing and provide an up-or-down vote for this judicial nominee.
  As I said, Justice Owen and I served for 3 years together on the 
Texas Supreme Court--from the time she came in January 1995 until the 
time I left in October of 1997. During those 3 years, I had a chance to 
observe Justice Owen's work habits and her basic judicial philosophy at 
work, how she approaches her job, how she thinks about the law, and how 
she acts given that position of public trust that judges hold.
  I can tell you from my personal experience that Justice Owen is an 
exceptional judge who understands her profound duty to follow the law 
and enforce the will of the legislature.
  That is, of course, one reason the American Bar Association has given

[[Page 20010]]

her a unanimous well qualified rating, and that is why she has such 
strong bipartisan backing. That is why she enjoys the enthusiastic 
support of the people of Texas, where she got 84 percent in the last 
election from the people who know her the best.
  Not once during my tenure with Justice Owen did I ever see her 
attempt to pursue some political or other agenda at the expense of the 
law as she understood it. I can tell you that Justice Owen believes 
very strongly, as I do and Americans do across this land, that judges 
are called upon not to act as another legislative branch, or as a 
politician, but as judges--to faithfully read statutes and to follow 
the law as written by the legislature and the precedents established by 
higher courts in earlier times.
  Some of my colleagues have, unbelievably, taken the position that 
Justice Owen is to be criticized for disagreeing with other members of 
the Texas Supreme Court in some of her opinions. Some of my colleagues 
act shocked that appellate judges, particularly on the highest court in 
my State, will disagree with one another and have spirited debates in 
the form of opinions they write. But I firmly believe that is exactly 
the job that is expected of a judge and that Justice Owen has fulfilled 
that position well.
  There are those who apparently believe a judge is not supposed to 
have a real debate about their interpretation of the law and is just 
supposed to assert his or her own will, regardless of what the law 
actually says. Perhaps these advocates believe a judge is supposed to 
follow the practice of what author James Lileks has called ``teasing 
penumbras from the emanations of the glow of the spark of the 
reflection of the echo of the intent of the Framers.''
  I fundamentally disagree with that idea. If we did not have judges 
disagree with one another, it would mean somebody was not doing their 
job.
  By the time cases get to the top echelons of our judicial system, 
they are the hardest cases. They are the cases that cannot be solved by 
lower levels of the judiciary or indeed by settlement between the 
parties. These are important issues and must be decided, through study 
and debate.
  A judge, unlike a Member of this body, cannot choose to simply walk 
away and ignore a thorny legal issue. Judges are not supposed to make 
law. They are supposed to interpret and enforce the law written by the 
legislature.
  In Texas, Justice Owen followed this duty to the letter. From 
experience and from observation, I know that Justice Owen believes 
strongly that judges are called upon to faithfully read the statutes on 
the books, read the precedents in the case, and then apply them to the 
case before the court.
  Justice Owen did this job, and she did it well. She is a brilliant 
legal scholar and a warm and engaging person. To see the kind of 
disrespect the nomination of such a great Texas judge--and a great 
Texas woman--has received in this body is more than just disappointing. 
It is an insult to Justice Owen. It is an offense against the great 
State of Texas. And it is beneath the dignity of this institution.
  It is clear who is calling the tune repeated by the minority 
opposition here on this floor. The beltway special interest groups are 
not interested in trying to understand or evaluate Justice Owen by her 
real record because, if they were, they would see it as a sterling 
record of intelligence, accomplishment, and bipartisan support. The 
special interest groups are not interested in the confirmation of 
nominees who merely interpret the law and render judgment responsibly. 
They are only interested in confirming people who they believe are 
advocates of their interests, something that is totally at odds with 
the role a judge is supposed to perform.
  Sadly, it is clear that these same special interest groups are 
interested in obstructing as many of President Bush's judicial nominees 
as they possibly can. Those who oppose Justice Owen's confirmation 
appear to have really no stomach for debate and talking about the 
facts. They choose instead to filibuster and engage in the worst kind 
of mean-spirited and destructive political attacks.
  I can only hope that my colleagues will realize the truth of what is 
going on, and reject this special interest influence on the judicial 
confirmation process. I can only hope that ultimately we will all 
strive for a process that is fair and consistent with our 
constitutional duty.
  And I can only hope my colleagues realize that by blocking a vote on 
Priscilla Owen, they make themselves allies to these groups, groups 
that rejoice at the prospect of a Senate in constant gridlock over 
these qualified nominees.
  My colleagues should not think the American people do not know what 
is going on here. They see when a nominee's well-recognized abilities 
are ignored in favor of scare tactics and revisionist history, and they 
see some ignore the interests of the States from which they were 
elected, and instead kowtow to special interest groups.
  I am confident that Members of the Senate are wise enough to reject 
this inhuman caricature that has been drawn of Justice Priscilla Owen 
by special interest groups intent on vilifying, demonizing, and 
marginalizing an admirable nominee. And I know that if we were allowed 
to hold a vote, a bipartisan majority of this body stands ready to 
confirm Justice Priscilla Owen to the Fifth Circuit Court of Appeals. 
The question is whether that vote will ever happen.
  I hope that my colleagues will give these qualified nominees what 
they deserve, and allow them to have an up or down vote, today, 
tomorrow, and every day this week. For the sake of the Senate, the 
Nation, and our independent judiciary, I hope that we will not have 4 
days of filibusters.
  I hope my colleagues will vote to allow this fine judge an up-or-down 
vote.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  If neither side yields time, time will be charged equally to both 
sides.
  Mr. HATCH. Mr. President, how much time does the Senator from Utah 
have?
  The PRESIDING OFFICER. The Senator has 11 minutes.
  Mr. HATCH. Mr. President, how much time does the Senator from Alabama 
desire?
  Mr. SESSIONS. Five minutes.
  Mr. HATCH. Mr. President, I yield 5 minutes to the Senator from 
Alabama.
  The PRESIDING OFFICER. The Senator from Alabama is recognized for 5 
minutes.
  Mr. SESSIONS. Mr. President, in the history of this country, we have 
not had a filibuster of a circuit judge or a district judge before and 
really never even one for a supreme court judge. This is an 
unprecedented obstruction of a nominee--something that really is 
unheard of.
  It is particularly distressing to me, beyond words almost, that this 
fine nominee, Priscilla Owen, would be a person who would be blocked by 
a filibuster when she clearly has the votes, if given an up-or-down 
vote in this body, to be confirmed for the Fifth Circuit Court of 
Appeals. She is extraordinarily capable. She finished at the top of her 
class in law school. She made the highest possible score on the Texas 
bar exam. What a strong statement that is. She won her last race for 
the Supreme Court of Texas with 84 percent of the vote. She was 
unanimously rated well qualified, the highest possible rating the 
American Bar Association can give for this position, when they 
evaluated her. She has the support of 15 former presidents of the Texas 
Bar Association and is just extraordinary in every way.
  As I looked through her record, I stumbled on this letter from a 
female attorney, Julie Woody, who clerked for the Texas Supreme Court. 
She noted she is a lifetime Democrat and she had the occasion to 
observe Justice Owen. She wrote these words. She went to Yale Law 
School, is a native of Pennsylvania, and practiced law in New York 
City. She said:

       As a result of my encounters with Judge Owen during my 
     clerkship, I came to regard her as a judge and legal scholar 
     of the highest caliber. She has a brilliant legal mind that 
     is matched by her legendary work ethic. Her analysis of any 
     issue is rigorous and true to the letter and spirit of the 
     law. Her impeccable ethics and honesty and lack of political 
     motivation in her decisionmaking were

[[Page 20011]]

     apparent in her discussions of cases and the manner in which 
     she decided them.
       Justice Owen is among the best and the brightest--she will 
     bring integrity, intelligence and the highest ethical 
     standards to the Fifth Circuit.

  She goes on to note that she got to know her later because her 
husband was in the seminary and at St. Barnabas, an Episcopal Church in 
Austin, a mission church. Priscilla was one of the original leaders and 
a member of the altar guild where she teaches Sunday school. She said 
about her:

       Priscilla worked incredibly hard behind the scenes, never 
     seeking any attention or praise for her efforts. She 
     exemplified servant leadership.

  What is the complaint about this excellent, magnificent justice on 
the Texas Supreme Court? What is the objection? They do not like the 
fact that she affirmed lower court opinions concerning parental 
notification when children, minors, desire to have an abortion. Eighty 
percent of the American people believe parents should be notified 
before a minor child should be allowed to have an abortion. The Texas 
law is not an extreme law. It simply says the parents should be 
notified, and they do not have a right to object or stop an abortion 
from going forward--just one of the parents be notified, actually. If 
the minor does not like that, they can go to court. They go to court, 
and they have a hearing before a judge. A judge takes evidence on these 
issues and makes a decision at that point whether the child who does 
not want to notify even one of their parents should notify one of their 
parents.
  If the judge concludes that she should notify a parent and the child 
and her lawyer are not happy, then the child can appeal to the Court of 
Appeals in Texas. Three judges will then hear the case. They will 
decide whether the trial judge who heard the evidence ruled correctly 
or not. If they rule that the child has to notify her parents that she 
intends to have an abortion, or at least one of the parents, only then 
does it go to the Supreme Court of Texas.
  Priscilla Owen never heard one of these cases, never made an initial 
decision on one of these cases. She was one of a number of justices on 
the Texas Supreme Court. Her only responsibility was to review the 
record of judges who had already decided and concluded, based on facts 
and evidence, having seen the minor and heard the evidence and saw the 
witnesses in person, her question was: Should the decision be affirmed?
  The opponents are unhappy that she voted to affirm both the trial 
judge and the three-court panel below the Texas Supreme Court. This is 
not good. This is a radical obsession with eliminating any restriction 
whatsoever, even for a minor child notifying her parent. It is not on 
any basis to object. Priscilla Owen would be a wonderful nominee.
  I yield the floor.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, the clerk will call the 
roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I yield myself whatever time I shall 
consume.
  We have heard for several weeks the urgency of passing the Energy 
bill. As I said this morning, we accept that urgency, but we have also 
said for several weeks that we cannot complete the Energy bill with 382 
amendments in a period of 1 week, 4 or 5 working days. It cannot be 
done. The majority leader has come to the floor and said we have been 
on the bill 16 days. That is not fair because a lot of those days have 
been late Thursday and Friday mornings and sometimes on Monday. We have 
probably had about 7 real days of work on this Energy bill.
  Complicating matters, the leader is scheduling issues that are 
unnecessary. To have votes on these judges when cloture has been 
attempted on a number of occasions and has not worked, and will not 
work again, is wasting valuable time. We could be working on Senator 
Domenici's and Senator Bingaman's Energy bill.
  If the majority wanted to move judges--and we have moved 140 judges--
but if the majority wanted to move judges, we have some who have 
already been cleared from the committee, something that is very unique 
because a lot of them are being cleared. We would be able to work out 
agreements to have James Cohn of Florida to be a U.S. district judge; 
Frank Montalvo of Texas to be a U.S. district judge; Xavier Rodriguez 
of Texas to be a U.S. district judge. We could also work something out 
for H. Brent McKnight of North Carolina to be a U.S. district judge. We 
could work something out on James Browning of New Mexico to be a U.S. 
district judge.
  I recognize there are intense feelings about Judge Owen, but the 
intense feelings have not changed during the period of time since we 
last failed to invoke cloture on this nomination.
  When there is an urgent need, according to the majority leader, to 
move the Energy bill, it is almost beyond my ability to understand why 
we would go to something when everyone knows what the outcome will be. 
We lose momentum. Every time we go off a bill, as we have gone off the 
Energy bill again, and try to start again, it takes time. I think the 
majority leader should understand he is his own worst enemy in trying 
to move the Energy bill by going to all these extraneous issues that 
are doomed to failure before he starts.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. How much time is remaining?
  The PRESIDING OFFICER. The Senator from Utah controls 4 minutes 21 
seconds.
  Does the Senator from Utah yield time?
  Mr. HATCH. I yield the remainder of my time to the distinguished 
Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I rise to speak on behalf of my friend 
Priscilla Owen. I cannot think of a person who is being treated worse 
by the Senate than my friend Priscilla Owen. This is the nicest, 
gentlest person one could ever meet, and she also happens to be smart 
as a whip.
  I watched her before the Senate committee. The chairman of the 
committee, Senator Hatch, took the extraordinary step of having two 
hearings because Priscilla Owen was nominated over 2 years ago. She had 
her hearing and went through the process and did very well in her first 
hearing. Then, after the new Senate came in, in January, the chairman 
brought her back before the committee, and she did an excellent job.
  She knows exactly what she has done throughout her tenure on the 
Supreme Court of Texas, and she could cite the reasoning for all of the 
questions she was asked about the positions she has taken. She answered 
the questions in the most exemplary fashion. She showed exactly why she 
should be a Federal judge. She showed it by her brilliance.
  We know she was a magna cum laude graduate from Baylor Law School as 
well as earning the highest score on the Texas bar exam that year, and 
she showed in that way that she is qualified to be a member of the 
Federal judiciary. Her demeanor also showed why she would be such an 
excellent Federal judge, because she has maintained the nicest and most 
patient demeanor I have ever seen of anyone who has been attacked in 
such a way. She has shown she has the temperament to be a good, honest, 
fair judge who also happens to be brilliant.
  Priscilla Owen has been nominated for the Fifth Circuit. We have been 
talking about her now for over 2 years. Since May 9, 2001, Priscilla 
Owen has been before the Senate. She has handled herself beautifully. 
She has never shown any defiance. She has never shown any bitterness at 
the way she is

[[Page 20012]]

being treated. She just answers the questions like a professional.
  She is a wonderful member of the Texas Supreme Court. She has been 
elected in her own right to the Texas Supreme Court, and when she was 
running for the bench, the Dallas Morning News called her record one of 
accomplishment and integrity.
  The Houston Chronicle wrote:

       She has the proper balance of judicial experience, solid 
     legal scholarship and real-world know-how.

  She was endorsed by every daily newspaper in Texas that endorsed in 
Supreme Court races. She has a wonderful record. The ABA gave her a 
unanimously well qualified ranking when she went before their 
committee.
  I will read the words of former Texas Supreme Court Chief Justice 
John Hill. John Hill is a Democrat. John Hill was attorney general of 
Texas. He was chief justice of the Texas Supreme Court. He denounced 
the false accusations about Priscilla Owen's record, saying:

       Their attacks on Justice Owen in particular are 
     breathtakingly dishonest, ignoring her long-held commitment 
     to reform and grossly distorting her rulings. Tellingly, the 
     groups make no effort to assess whether her decisions are 
     legally sound . . . I know Texas politics and can clearly say 
     these assaults on Justice Owen's record are false, 
     misleading, and deliberate distortions.

  This is a judge who deserves to be confirmed, and I hope the Senate 
will stop the delaying tactics on this wonderful woman and this 
qualified judge, and vote for cloture on Justice Priscilla Owen.
  I yield the floor.
  The PRESIDING OFFICER. The chairman's time has expired.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, we are again being asked to consider the 
very controversial nomination of Justice Priscilla Owen to the United 
States Court of Appeals for the Fifth Circuit. The Senate has voted on 
this before.
  One might ask what has changed since the last Senate vote? The only 
thing that has changed is that the administration, the Republicans, 
have ratcheted up their unprecedented partisanship in the use of 
judicial nominees for partisan political purposes.
  Recently, they reached a new low through political ads and statements 
that should offend all Americans. The White House and the backers 
should understand with these ads they have gone far too far. They 
should withdraw and disavow.
  Last week I urged our Republican Senate colleagues to disavow those 
despicable efforts. Unfortunately, they are choosing to continue the 
unfounded smear campaign of insult and division.
  In that regard, I ask unanimous consent the articles in the New York 
Times of this past Sunday, both editorials from the Washington Post, 
the Boston Globe, Huntsville Times, Palm Beach Post, Atlanta Journal-
Constitution, and Pittsburgh Post-Gazette, be printed in the Record at 
this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 27, 2003]

                  Accusation of Bias Angers Democrats

                            (By Robin Toner)

       Washington, July 26.--The battle over judicial nominations 
     has grown ever more bitter on Capitol Hill, but Democrats on 
     the Senate Judiciary Committee say they are particularly 
     outraged over the latest turn: the accusation that their 
     resistance to some conservative nominees amounts to anti-
     Catholic bias.
       In a recent newspaper advertising campaign, run by groups 
     supporting the Bush administration's judicial nominees, a 
     closed courtroom door bears the sign ``Catholics Need Not 
     Apply.'' The advertisement argues that William Pryor Jr., the 
     Alabama attorney general and a conservative, anti-abortion 
     nominee to the federal appeals court, was under attack in the 
     Senate because of his ``deeply held'' Catholic beliefs.
       Democrats say they oppose Mr. Pryor because of his record, 
     including what they assert is a history of extreme statements 
     on issues like abortion and the separation of church and 
     state. All nine Democrats on the Senate Judiciary Committee 
     voted against Mr. Pryor's confirmation this week, while the 
     10 Republicans voted for it, sending the issue to the full 
     Senate--and the likelihood of further Democratic opposition.
       Republicans and their conservative allies argue that the 
     Democrats have created a de facto religious test by their 
     emphasis on a nominee's stand on issues like abortion. ``It's 
     not just Catholics,'' said Sean Rushton, executive director 
     of the Committee for Justice, one of the groups that paid for 
     these advertisements, which are running in Maine and Rhode 
     Island. ``I think there's an element of the far left of the 
     Democratic Party that sees as its project scrubbing the 
     public square of religion, and in some cases not only 
     religion but of religious people.''
       Senator Orrin G. Hatch, Republican of Utah and chairman of 
     the Judiciary Committee, sounded a similar theme this week, 
     asserting that ``the left is trying to enforce an 
     antireligious litmus test'' whereby ``nominees who openly 
     adhere to Catholic and Baptist doctrines, as a matter of 
     personal faith, are unqualified for the federal bench in the 
     eyes of the liberal Washington interest groups.''
       The accusation of anti-Catholic bias seemed especially 
     galling to some of the Democratic senators who happen to be 
     Catholic. Four of the Democrats on the Judiciary Committee 
     are Catholic. In fact, 57 percent of the Catholics in the 
     House and the Senate are Democrats, according to the 
     forthcoming Vital Statistics on Congress, 2003-4 edition.
       Like many Americans of Irish descent, Senator Patrick J. 
     Leahy of Vermont, the ranking Democrat on Judiciary, said he 
     grew up hearing his father talk about the bad old says when 
     Irish Catholics were greeted with signs saying they ``need 
     not apply.'' He added, ``It was a horrible part of our 
     history, and it's almost like you have people willing to 
     rekindle that for a short-term political gain, for a couple 
     of judges.''
       Senator Richard J. Durbin, who is Catholic, said he reached 
     his limit at a committee meeting on Wednesday when Senator 
     Jeff Sessions, Republican of Alabama (and a Methodist), began 
     explaining Mr. Pryor's positions as ``what a good Catholic 
     believes.''
       Mr. Durbin, an Illinois Democrat who personally opposes 
     abortion but backs abortion rights, added, ``I understand the 
     painful process I have to go through with the elders of the 
     church on many of these issues, explaining my position. But 
     it is galling, to say the least, when my colleagues in the 
     Senate, of another religion, start speaking ex cathedra.''
       Many Catholic elected officials are, perhaps, particularly 
     sensitive to the line between religious faith and public 
     responsibilities. It was a line drawn most vividly by 
     President John F. Kennedy, the first Catholic president, who 
     had to deal with widespared fears that a Roman Catholic 
     president would serve both Rome and the American people.
       Kennedy responded by declaring, ``I believe in an America 
     where the separation of church and state is absolute, where 
     no Catholic prelate would tell the president, should he be a 
     Catholic, how to act, and no Protestant minister would tell 
     his parishioners for whom to vote.'' In recent years, Gov. 
     Mario M. Cuomo reasserted that line, particularly regarding 
     abortion.
       Behind the anger of many Democrats is the suspicion that 
     this advertising campaign is part of the Republican Party's 
     courtship of Catholics, an important swing vote. In general, 
     Andy Kohut, director of the Pew Research Center for the 
     People and the Press, said Mr. Bush was ``doing pretty well 
     with white Catholics'' lately.
       It is all part of a politics that has changed radically 
     since 1960. Among the nine Democrats on the Judiciary 
     Committee accused of working against the interests of 
     Catholic judicial nominees is, of course, John Kennedy's 
     brother, Senator Edward M. Kennedy.
                                  ____


                 [From the Boston Globe, July 28, 2003]

                       Pryor's Bad-Faith Backers

       Congressional supporters of Alabama Attorney General 
     William Pryor have descended to low blows in promoting his 
     nomination to the federal bench. recently an independent 
     committee launched an advertising blitz in Rhode Island and 
     Maine, two states with swing Republican senators, claiming 
     that Pryor's opponents are motivated by anti-Catholic 
     bigotry. In the Senate committee hearing last week that 
     advanced Pryor's nomination to the floor, Republicans 
     repeated the allegation that Pryor's opponents believe ``No 
     Catholics need apply.'' This canard is designed to muddy the 
     only real issue--Pryor's fitness to be a federal judge. When 
     the full Senate considers Pryor's nomination, it must not 
     allow itself to be swayed by such intimidation tactics.
       Pryor, a Catholic, opposes abortion even for victims of 
     rape or incest not just as a religious view but as a legal 
     principle. He has called Roe v. Wade, the 1973 Supreme Court 
     decision legalizing some abortions ``an abomination.'' He 
     also supported the Texas law banning sodomy that was recently 
     overturned by the Supreme Court. Pryor's backers now claim 
     that anyone questioning these

[[Page 20013]]

     views--views that, after all, conflict with existing federal 
     law--is really targeting his religion. ``Some in the U.S. 
     Senate are attacking Bill Pryor for having deeply held 
     Catholic beliefs,'' the ad reads.
       In trying to cloak Pryor's views in protective religious 
     garb, the Republicans have covered themselves in hypocrisy. 
     First of all, Pryor holds one view at odds with Catholic 
     teaching: He ardently supports the death penalty, which Pope 
     John Paul declared in 1995 was permissible only in cases of 
     ``absolute necessity'' to maintain civil order, occasions the 
     pope said were so rare as to be ``practically nonexistent.'' 
     Pryor supports capital punishment so fiercely he even fought 
     state legislation to replace Alabama's electric chair with 
     lethal injection.
       The ironies don't stop there. Conservative Republicans are 
     forever railing against ``identity politics,'' when 
     minorities seek special assistance from the government. But 
     when it comes to stacking the federal bench with right-wing 
     judges, these same folks reach for the race or religion card 
     with impunity. Opponents of nominee Miguel Estrada were 
     accused of being anti-Hispanic, for example, and Clarence 
     Thomas called opposition to his Supreme Court appointment ``a 
     high-tech lynching.''
       It was Senator Orrin Hatch, a Republican supporters, who 
     first inserted Pryor's religion into the committee 
     proceedings, not opponents. Pryor and his pious backers 
     should take heed of John Kennedy's remarks in 1960, just 
     before he became the nation's first Catholic president: ``I 
     believe in an America where the separation of church and 
     state is absolute.'' That should apply to political tactics 
     as well as matters of law. It was Senator Orrin Hatch, a 
     Republican supporter, who first inserted Pryor's religion 
     into the committee proceedings, not opponents. Pryor and his 
     pious backer should take heed of the John Kennedy's remarks 
     in 1970, just before he became the nation's first Catholic 
     president: I believe in an America where the separation of 
     church and state is absolute.'' That should apply to 
     political tactics as well as matters of law.
                                  ____


               [From the Washington, Post, July 29, 2003]

                         Bad Faith Advertising

                           (By Richard Cohen)

       When Lance Armstrong took a spill during the Tour de 
     France, the cyclists chasing him slowed until he could right 
     himself and resume the race. Lucky for him his competitors 
     were not conservative Republicans. They would have run right 
     up his back.
       For an example of how these conservatives play the game, it 
     is probably best to live in Maine or Rhode Island. In those 
     states, an organization called the Committee for Justice has 
     been running newspaper ads accusing Senate Democrats of using 
     a religion test for judicial nominations. The nominee in 
     question is William H. Pryor Jr. of Alabama. The ad says that 
     if Pryor were not a strict Catholic, the Democrats would have 
     no problem with him.
       The newspaper ads show a picture of a door labeled 
     ``Judicial Chambers.'' A sign says ``Catholics Need Not 
     Apply.'' The ad goes on to say that Pryor is being opposed 
     because of his ``deeply held'' Catholic beliefs, omitting the 
     awkward fact that some of the Democrats who oppose him are 
     also Catholic. The ad--not to put too fine a point on it--is 
     a lie.
       What's more, it's an insult to Catholics. It employs a 
     historically redolent phrase, once so familiar to New 
     England's Irish Americans, to sidestep the real problem with 
     Pryor's nomination to a Federal appeals court--not his 
     ``deeply held'' religious convictions but his deeply held 
     determination to impose them on others. The ad's sponsors 
     deeply hope that Catholics react viscerally. I pray that they 
     don't.
       Pryor's record is unequivocal. As Alabama's attorney 
     general, he not only made statements deploring Supreme Court 
     decisions upholding the separation of church and state--``it 
     seems our government has lost God''--but repeatedly expressed 
     his conviction that the God he had in mind was the Christian 
     one. ``The challenge of the next millennium will be to 
     preserve the American experiment by restoring its Christian 
     perspective,'' he said in 1997.
       On another occasion--his investiture as Alabama's attorney 
     gengeral--he concluded his remarks by saying, ``With trust in 
     God, and his Son, Jesus Christ, we will continue the American 
     experiment of liberty and law.''
       Although a state official, Pryor chose to intervene in 
     federal court cases on the side of Roy Moore, now the state's 
     chief justice. As a trial judge, Moore opened court with a 
     prayer delivered by a Christian clergyman. He displayed the 
     Ten Commandments in his courtroom and later, when elected the 
     state's chief judge, had a monster statue of the Ten 
     Commandments placed before the courthouse. Higher courts told 
     him to remove it.
       Whatever Pryor's religious convictions, they are no 
     business of the Senate. But they are its business when he 
     seeks to impose those beliefs on others--as he has repeatedly 
     tried to do. This is what the Democrats on the Judiciary 
     Committee object to. Yet the ads, sponsored by a committee 
     led by C. Boyden Gray, the first President Bush's White House 
     counsel, simply label Pryor's opponents as religious bigots. 
     Gray lent his name to this cause, and so did former president 
     George H.W. Bush, who lent his house for a fundraiser. This 
     is a GOP operation, pure and simple.
       Gray ought to be ashamed. Instead of battling religious 
     prejudice, he is using the fear of it to stack the courts 
     with conservative Republicans. At the same time, he has 
     allied himself with those who traffic in their own kind of 
     religious bigotry--a smug disdain for the beliefs of others, 
     including dissenting Christians, non-Christians and people 
     who have no religion at all. Pryor clearly feels his religion 
     is the better religion--the one the state should support, the 
     one with which to open a court session or to proclaim in 
     stone on the courthouse steps.
       This is dangerous stuff. We are a pluralistic society. I 
     happen to think some religions are just plain weird. I also 
     happen to think that Pryor cannot for a second explain 
     through reason--reason, not faith--why his convictions are 
     better, truer or closer to God's than mine. Such matters 
     cannot be debated. Historically, they have been settled at 
     sword's point. If you believe that a cow is sacred, I cannot 
     argue with you. The same holds for the virign birth, or, for 
     that matter, the burning bush. You believe what you believe. 
     It is that simple.
       Gray and by extension former president Bush ought to 
     repudiate the ad. At its core, it is a demagogic lie. As for 
     Pryor, by statements and actions, he has disqualified himself 
     for the federal bench. I don't care if he's a good Catholic. 
     I do care that he'd make a bad judge.
                                  ____


               [From the Washington Post, July 26, 2003]

                            Beyond the Pale

       ``Some in the U.S. Senate are attacking Bill Pryor for 
     having `deeply held' Catholic beliefs to prevent him from 
     becoming a federal judge. Don't they know the Constitution 
     expressly prohibits religious tests for public office?''
       So reads a wildly inappropriate ad run in newspapers in 
     Maine and Rhode Island by a group called the Committee for 
     Justice. Mr. Pryor is the elected attorney general of Alabama 
     and President Bush's choice to sit on the U.S. Court of 
     Appeals for the 11th Circuit. We oppose the nomination--which 
     the Senate Judiciary Committee this week reported on a party-
     line vote--and hope it will be defeated on the Senate floor. 
     Yet some of Mr. Pryor's supporters seem unwilling even to 
     debate this troubling nomination on its merits. So they have 
     hit on an alternative: branding his opponents as motivated by 
     anti-Catholic bigotry.
       The tactic is not entirely new. Republican senators--
     including committee Chairman Orrin Hatch (R-Utah) and 
     Majority Leader Bill Frist (R-Tenn.)--have been complaining 
     for some time of what Mr. Frist has called ``a religious test 
     on the confirmation of our judges.'' And Democrats during the 
     last administration complained of bias in the Senate's 
     treatment of women and minority nominees--as, indeed, 
     Republicans now complain of bias in the treatment of appeals 
     court nominee Miguel Estrada. But the new ad campaign 
     ratchets up this gross kind of politics a notch, and the 
     unwillingness of key Republican senators to distance 
     themselves from it is striking.
       The Committee for Justice was formed by former White House 
     counsel C. Boyden Gray to support Mr. Bush's nominees. Its ad 
     ran in states with large numbers of Catholics and moderate 
     Republican senators. It shows a picture of a courthouse door 
     with a sign hung on it saying, ``Catholics Need Not Apply.'' 
     And it asks ``Why are some in the U.S. Senate playing 
     politics with religion?'' It goes on to describe the nominee 
     as ``a loving father'' and ``a devout Catholic'' and insists 
     that ``it's time for his political opponents to put his 
     religion aside and give him an up or down vote.''
       But who exactly is ``playing politics with religion'' here? 
     We are aware of no instance in which any Senate opponent of 
     Mr. Pryor has raised his religion--nor did the Committee for 
     Justice produce an example in response to our inquiries. The 
     only people raising Mr. Pryor's Catholicism, rather, seem to 
     be his supporters. Mr. Pryor's nomination is controversial 
     for the simple reason that he has never shied away from 
     taking strident positions on matters of national moment: His 
     record is replete with the sort of unblinking partisanship 
     and ideological fervor that properly should raise questions 
     about potential service on the bench. We have criticized 
     liberal groups for smearing President Bush's nominees. 
     Smearing senators is no better.
                                  ____


               [From the Huntsville Times, July 25, 2003]

                    Sham Issue Invoked To Help Pryor

                           (By David Person)

       Bogus. That's the only word that accurately describes this 
     week's dust-up on the Senate Judicial Committee over the 
     nomination of Alabama Attorney General Bill Pryor to the 
     Federal Appeals Court. Sens. Jeff Sessions of Alabama and 
     Orrin Hatch of Utah, both members of the committee, suggested 
     that other committee members were opposed to Pryor because he 
     is a Catholic
       This criticism seems part of a larger strategy. According 
     to National Public Radio, some ads have been running in Maine 
     and Rhode Island that suggest the same thing.

[[Page 20014]]

     And according to NPR, it was Hatch who introduced Pryor's 
     faith into the proceedings by asking Prior about his 
     religious affiliation during the nominee's June hearing 
     before the committee.
       Methinks the GOP doth protest suspiciously and a bit too 
     much. Four of the nine Democrats on the committee--ranking 
     member Patrick Leahy of Vermont, Dick Durbin of Illinois, 
     Edward Kennedy of Massachusetts, and Joe Biden of Delaware--
     are Catholics.
       That probably disqualifies them from being against Pryor 
     due to his faith, you think?
       My guess: The GOP knew that Pryor's right-wing views on Roe 
     vs. Wade, Alabama Chief Justice Roy Moore's Ten Commandments 
     monument and homosexuality would be lightning rods. So 
     instead of going the stealth route--which would have been 
     difficult since Pryor, to his credit, has been upfront about 
     his views--why not spin out the ruse that opposition to 
     Pryor's politics is actually opposition to his faith?
       As a political strategy, it's clever. But discerning 
     observers will know that the baloney-salami quotient is high.
       Being anti-religion and opposing the insertion of religion 
     into the public life are as different as being a meat-eater 
     and vegan. The two aren't even remotely the same.
       Pryor, a smart, competent, compassionate and honest elected 
     official, has made it no secret that he follows one of 
     Alabama's most practiced political traditions: fusing faith 
     and politics. Again, to his credit, he's aboveboard. He 
     doesn't pretend to be anything other than what he is. That's 
     why many Democrats and liberals have supported him here and 
     even in his quest to be appointed to the federal bench.
       But history shows that when religious dogma collides with 
     public policy and practice, someone will be hurt. (Please 
     turn in your history books to the chapters on the Crusades, 
     the Reformation, and Salem witch trials, and the conflicts 
     between Protestants and Catholics in Ireland, Muslims and 
     Christians on the African continent, and fundamentalist 
     Islamic regimes and their opposition.)
       In fact, isn't the United States currently resisting 
     attempts by fundamentalist Muslims to assume control in a 
     reconstituted Iraq?
       Pryor's fellow Catholics on the Senate Judiciary Committee 
     oppose how he applies his religion, not the religion itself.
       This shouldn't be hard to grasp. Religions, like political 
     parties, often have competing ideological wings.
       Some of my Catholic friends in town also oppose Pryor. They 
     mince no words as they spit out their criticism of him.
       Not one had anything to do with his faith.
       The committee, by the way, has voted along party lines to 
     send Pryor's nomination to the full Senate for a vote. By the 
     end of the summer, we may know if Pryor will get the 
     appointment or if it will be derailed by a Democratic 
     filibuster.
       If the latter, I guess Leahy, Durbin and any others who 
     will have opposed him will be called bigots by GOP 
     extremists. But this will be a false charge. The only thing 
     they will be guilty of is disagreeing in matters of faith.
       Last time I checked, the Constitution gives them that 
     freedom.
                                  ____


               [From the Palm Beach Post, July 27, 2003]

                   No Defense for Pryor's Convictions

                           (By Randy Schultz)

       As part of their ongoing effort to stack the federal 
     courts, Republicans first accused Democrats of being anti-
     Hispanic. Now, they're accusing Democrats of being anti-
     Catholic. Here's the funnier part: Many of the Democrats in 
     question are Catholics.
       When it comes to judicial nominations, the Supreme Court 
     obviously gets most of the attention. The highest court is 
     the last word on issues that prompt fund-raising letters. In 
     June, for example, the justices reaffirmed that race can be a 
     consideration in college admissions and rules that sexual 
     orientation can't be a consideration when states make laws 
     about sex between consenting adults.
       In fact, the highest court hears only about 100 cases each 
     year. The 13 federal appeals courts, however, rule on nearly 
     30,000 cases in 2001. In practical terms, appeals court 
     judges set most of the law. Also, they are the Supreme 
     Court's farm teams. Seven of the nine justices--William 
     Rehnquist and Sandra Day O'Connor are the exceptions--were 
     promoted from the federal appeals courts.
       So President Bush wants to put the youngest, most 
     conservative people he can on those courts. The lastest is 
     41-year-old William Pryor, and you can tell how unqualified 
     he is by the lengths to which Republicans are going.


                    to florida from Alabama? no way

       Mr. Pryor is Alabama's attorney general. He believes that 
     the 1973 Supreme Court did greater harm by legalizing 
     abortion than the 1857 court did by legalizing slavery. 
     President Bush wants to put him on the 11th U.S. Circuit 
     Court of Appeals, which hears cases from Florida, Georgia and 
     Alabama. To maintain geographical balance, this vacancy on 
     the 12-member court goes to Alabama.
       But to William Pryor? No way. There's evidence that he 
     solicited political donations from companies that do business 
     with his office. There's evidence that he wasn't straight 
     about that when he testified before the judiciary committee 
     last month.
       So Democrats have objected, as they have when Mr. Bush has 
     tried to put similarly ultra-orthodox conservatives such as 
     Miguel Estrada and Priscilla Owen onto other appeals courts. 
     When Democrats blocked Mr. Estrada's nomination, Republicans 
     whooped that Democrats don't like Hispanics. Except that 
     Republicans blocked Hispanics whom President Clinton had 
     picked for the appellate bench.
       Last week, the GOP kicked up the hysteria another notch. A 
     group run by the first President Bush's chief counsel ran ads 
     saying that Democrats want to keep Catholics such as Mr. 
     Pryor off the court. The ads show a courthouse with a sign 
     reading, ``Catholics need not apply.'' Boston merchants used 
     the same language in the 19th century, saying ``Irish'' 
     instead of ``Catholics.'' Sen. Jeff Sessions, R-Ala., 
     parroted the ad Wednesday. ``Are we saying that good 
     Catholics can't apply?''


                   non-catholics lecturing catholics

       How hilarious that must have sounded to the four out of 
     nine Democratic committee members who are Catholic. As 
     National Public Radio reported, one of them, Sen. Dick 
     Durbin, D-Ill., first said, ``This is disgusting.'' Then he 
     remarked, ``I want to express my gratitude to my colleagues 
     who are members of the Church of Christ and the Methodist 
     Church and the Church of Jesus Christ of Latter-Day Saints 
     for explaining Catholic doctrine today.''
       Sen. Orrin Hatch, the Mormon in question, yelped that 
     Democrats were opposed to any Catholic with ``deeply held'' 
     beliefs or any nominee who opposed abortion. Sen. Durbin 
     noted that the Catholic Church opposes the death penalty 
     while Mr. Pryor supports it. Also, a Bush nominee who called 
     abortion ``evil'' got a seat on another appeals court with 
     Democratic support.
       For all the Republican fussing, President Bush got more of 
     his nominees through a Democratic Senate than President 
     Clinton got through a Republican Senate. Nearly half of Mr. 
     Clinton's appeals court nominees got no vote in the 
     congressional term when they were nominated.
       Now that Democrats are going all-out to block Mr. Bush's 
     worst nominees, Republicans can't take it. They rant, and 
     they pout. They can't argue the facts, and they can't argue 
     the law. So they are trying to argue ethnicity and religion. 
     The problem isn't their Democratic opponents. It's their 
     president's nominees.
                                  ____


         [From the Atlanta Journal-Constitution, July 25, 2003]

           Bring on the Filibuster Against Ultraconservative

       Southerners who care about the separation of church and 
     state should hope Alabama Attorney General William Pryor 
     never sits on the 11th Circuit appellate bench, which rules 
     on appeals in cases from Alabama, Georgia and Florida. The 
     ultraconservative Pryor, who preaches that Christianity 
     should be more a part of American public life, was approved 
     by the Senate Judiciary Committee Wednesday in a 10-9 vote 
     along partisan lines.
       If ever there were a nomination that merits a filibuster, 
     it is this one. Not just because Pryor holds views far out of 
     the mainstream, but also because of the unprecedented 
     twisting of the Constitution's advise and consent process by 
     President Bush's corporate pals. Misleading ads, funded by 
     the deceitfully names ``Committee for Justice,'' have already 
     run in Maine and Rhode Island to pressure moderate Republican 
     senators into voting for Pryor's confirmation on the Senate 
     floor. The despicable ads show a courthouse door with a sign 
     across it saying ``No Catholics allowed.''
       Sen. Richard Durbin (D-Ill.), who is Catholic and opposes 
     the Pryor nomination, is infuriated that he and others were 
     being accused of discriminating against Pryor for his 
     religion, a false charge. Sen. Patrick Leahy, the ranking 
     Democrat on Senate Judiciary, said religion is irrelevant to 
     consideration of a judicial candidate. ``Just as we're 
     supposed to be colorblind, we must be religion-blind,'' he 
     said.
       The committee funding the ads is headed by the White House 
     counsel to former President Bush, C. Boyden Gray, and 
     includes lawyers and lobbyists who represent huge tobacco, 
     insurance and investment banking corporations with cases 
     pending before the federal courts. Because it would be 
     unseemly to campaign for judges who favor corporations, they 
     have cleverly aligned with the Ava Maria List, a Catholic 
     pro-life political action committee.
       Pryor's record is sufficient to disqualify him from any 
     judgeship. In addition to his extreme views on abortion (he 
     opposes it for rape victims), he favors prayer in public 
     school classrooms and the Ten Commandments in the Alabama 
     courthouse. He was also the only attorney general in the 
     nation to argue that the Violence Against Women Act is 
     unconstitutional.
       Georgians ought to let U.S. Sens. Saxby Chambliss and Zell 
     Miller know their opposition to Pryor. He is simply unfit for 
     the decision-making essential to a fair, independent and 
     nonpartisan judiciary.

[[Page 20015]]

     
                                  ____
           [From the Pittsburgh Post-Gazette, July 25, 2003]

   Pryor Restraint: Specter Should Have Balked at an Extreme Nominee

       With Pennsylvania's Sen. Arlen Specter trying to have it 
     both ways, the Senate Judiciary Committee on Wednesday sent 
     to the floor an unacceptably extreme nominee to a federal 
     appeals courts--but not before some silly sniping over 
     whether the nominee, Alabama Attorney General William Pryor 
     Jr., has been the victim of anti-Catholicism.
       The anti-Catholic canard, raised by a conservative pressure 
     group and echoed by some Republican senators, would be 
     laughable if anti-Catholicism weren't an ugly part of 
     American history. Fortunately, excluding people from public 
     life because they are ``papists'' is largely a thing of the 
     past. Mr. Pryor himself is proof of that: Alabama, where he 
     serves as the chief law enforcement officer, was historically 
     home to Bible Belt anti-Catholicism.
       But if some of Mr. Pryor's supporters are to be believed, 
     opponents of his nomination to the 11th U.S. Circuit Court of 
     Appeals are anti-Catholic bigots. A pro-Pryor group aired 
     television ads showing a locked courthouse with a sign 
     reading ``No Catholics Need Apply.'' On the committee, 
     Republican Sen. Jeff Sessions referred to his fellow Alabaman 
     as ``this solid Catholic individual'' and offered a 
     convoluted argument for the bigotry charge.
       According to Sen. Sessions, Mr. Pryor's veiws on abortion--
     he called the Roe vs. Wade ruling an ``abomination''--are 
     rooted in his church's teaching. Therefore senators who 
     oppose Mr. Pryor because of his denunciation of Roe vs. Wade 
     are really subjecting him to an unconstitutional ``religious 
     test'' for office.
       Well, not really. The concern isn't that any Catholic judge 
     will repudiate Roe vs. Wade--Justice Anthony Kennedy, a 
     Catholic, voted to reaffirm Roe in a 1992 ruling--but that 
     Mr. Pryor's vehement denunciations of Roe as bad law indicate 
     that he is a man on a mission, despite his protestations that 
     he would apply the law judiciously. The problem with Mr. 
     Pryor isn't his religion; it's the fact that he is what we 
     have called a ``walking stereotype'' of right-wing legal 
     extremism.
       (We wonder, by the way, if Sen. Sessions would rush to the 
     defense of a liberal Catholic nominee who, citing 
     pronouncements by the pope and America's Catholic bishops, 
     denounced Supreme Court decisions upholding the 
     constitutionality of capital punishment.)
       Some Democrats on the Judiciary Committee who are 
     themselves Roman Catholics objected to the Republicans' 
     decision to play the Catholic card. Sen. Richard Durbin 
     facetiously thanked Sen. Sessions, a Methodist, and Judiciary 
     Committee Chairman Orrin Hatch, a Mormon, for elucidating his 
     own church's doctrine for him.
       The ``anti-Catholic'' discussion was an unseemly sideshow 
     to the committee's decision, on partisan lines, to approve 
     the Pryor nomination and send it to the floor. To his 
     discredit, Sen. Specter, who faces a conservative challenger 
     in next year's Republican primary, joined in that vote--while 
     suggesting that he might vote against the nomination on the 
     floor. That straddle is the opposite of a profile in courage. 
     If Sen. Specter thinks Mr. Pryor unsuitable for the court, he 
     should have voted no.

  Mr. LEAHY. Mr. President, this has begun because the President 
renominated a divisive and controversial activist to another circuit 
court. That is regrettable. The Republican leadership in the Senate is 
forcing a confrontation at this time that is neither necessary nor 
constructive. I am sorry the White House has chosen to make these 
matters into partisan political fights rather than to work with Senate 
Democrats to fill judicial vacancies with qualified consensus nominees. 
There are thousands of qualified Republicans who would be endorsed by 
both Republicans and Democrats in this Senate. That would allow the 
American people to say we are not politicizing the courts. There would 
be a sigh of relief.
  But we do not see that. We have a historic low level of cooperation 
from the White House. In fact, in the 29 years I have been here, 
through both Republican and Democratic administrations, I have never 
seen such a low level of cooperation.
  Notwithstanding that, we have already confirmed 140 of President 
Bush's judicial nominees, including some of the most divisive and 
controversial sent by any President, Republican or Democrat. In fact, 
this year the Senate debated and voted on the nominations of three 
circuit court nominees who received far more than 40 negative votes.
  If it were simply a case of filibustering judges, they would not have 
been confirmed. For example, Jeffrey Sutton's nomination to the Sixth 
Circuit received the fewest number of favorable votes of any 
confirmation in almost 20 years. He got only 52 votes.
  When you have somebody who gets through the Senate with only 52 
votes, you have to ask what kind of a signal that sends to the people 
of that circuit. Does it send a signal to the people of that circuit 
that we sent somebody there who is representing all the people within 
that circuit, Republicans, Democrats, independents? Or are we sending 
somebody who is intended to be a partisan ideologue representing only 
one party on a court that is supposed to be independent of party 
politics?
  In fact, the administration is seeking to force through the 
confirmation process more and more extreme nominees in its effort to 
pack the courts and tilt them sharply in a narrow ideological 
direction. Instead of uniting the American people, too many of this 
administration's nominations divide the American people and divide the 
Senate. How much greater service could be done to the country and to 
the courts if the President sought to unite us and not divide us?
  In fact, the unprecedented level of assertiveness by the 
administration has led to more and more confrontation with the Senate. 
As Republicans in the Senate abandon any effort to provide a check or 
balance in the process, it falls to Senate Democrats to seek to protect 
the independence of the Federal courts and the rights of all Americans.
  Our Democratic leadership in the Senate worked hard earlier this year 
to correct some of the problems that arose from some of the earlier 
actions of the Judiciary Committee. But, once again, just last week, 
Republican members of the Judiciary Committee decided to override the 
rights of the minority and violate longstanding committee precedent and 
actually violated--imagine this, the Judiciary Committee violating its 
own rules, the Judiciary Committee of all committees, the committee 
that should set the standards for everybody else--violated these rules 
and precedents in order to rush to judgment even more quickly this 
President's most controversial nominees.
  It was a sad day in committee, but it was a devastating day in the 
Senate. Yet my friends on the other side of the aisle persist in their 
obstinate and single-minded crusade to pack the Federal bench with 
right-wing ideologues, regardless of what rules, what longstanding 
practices, what personal assurances, what relationships, or what 
Senators' words are broken or ruined in the process.
  Republican partisans fail to recognize that Democrats worked 
diligently and fairly to consider President Bush's nominees, including 
nominees to the same court as that to which Justice Owen has been 
nominated. Two months ago, on May 1, the Senate confirmed Judge Edward 
Prado to the U.S. Court of Appeals for the Fifth Circuit. Senate 
Democrats cleared the nomination of Judge Edward Prado to the United 
States Court of Appeals for the Fifth Circuit without delay.
  The irony is, we cleared Judge Prado immediately, but he was held up 
by one anonymous hold--and it came from the Republican side. At the 
same time the White House is excoriating Democrats for holding up their 
nominees, we had a nominee of President Bush to the Fifth Circuit and 
for a month, while we are trying to have him confirmed, he is being 
held up by an anonymous hold, not even a hold somebody is willing to 
state for the record but an anonymous hold on the Republican side. Talk 
about rope-a-dope--if we clear the nominees, they hold them up and we 
get the blame. Interesting.
  All Democratic Senators serving on the Judiciary Committee voted to 
report his nomination favorably. All Democratic Senators indicated they 
were prepared to proceed with the nomination. When Republicans finally 
lifted their hold on Judge Prado, he was confirmed unanimously.
  When Democrats assumed Senate leadership in the summer of 2001, there 
had not been a Fifth Circuit nominee confirmed for 7 years. There had 
been a lot of nominees, but they were blocked by the Republicans. 
Indeed, Republicans blocked consideration of three qualified nominees 
to the Fifth Circuit

[[Page 20016]]

in the years 1995 to 2001, along with 60 other judicial nominees of 
President Clinton.
  In 2001, Democrats worked hard on the nomination of Judge Edith Brown 
Clement, a conservative judge nominated by President Bush, and with the 
efforts of Democrats she was confirmed. Thus, unlike the years 1995 to 
2001 when Republicans were preventing action on every single one of 
President Clinton's nominees to the Fifth Circuit, Democrats have 
already cooperated in the confirmation of two of President Bush's 
nominees to that circuit, including one while we were in the majority.
  In spite of the treatment by the Republicans of so many moderate 
nominees in the previous administration, we proceeded last July to the 
hearing on Justice Owen and we proceed to debate and vote on all three 
of President Bush's Fifth Circuit nominees, despite the treatment of 
President Clinton's nominees by the Republican majority.
  The nomination of Priscilla Owen was rejected by the Senate Judiciary 
Committee. She was rejected as a judicial activist with extreme views. 
That is where it should have ended. Never, ever in our Nation's history 
has a President renominated somebody to the same judicial vacancy after 
rejection by the Judiciary Committee--never. In this case, of course, 
they did, to create a political point.
  We tried very hard to work with the administration to fill judicial 
vacancies, in great contrast to the fate of many of President Clinton's 
nominees from Texas who were blocked and delayed by Republicans, 
including Enrique Moreno, nominated to the Fifth Circuit Court of 
Appeals, who never got a hearing or a vote; Judge Jorge Rangel, 
nominated to the Fifth Circuit Court of Appeals, who never got a 
hearing and never got a vote; and Judge Hilda Tagle, whose nomination 
was delayed nearly 2 years for no good reason.
  All we are saying is let's have judges who are there for all the 
people. It is one thing for Republicans to control the White House. The 
President was inaugurated. He has that right. Republicans control both 
Houses. But the courts are supposed to be nonpartisan.
  We have worked hard to try to balance the need to have enough judges 
to handle cases with the imperative that they be fair judges for all 
people, poor or rich, Republican or Democrat, of any race or religion. 
This has been especially difficult because a number of this President's 
judicial nominees have records that do not demonstrate that they will 
be fair and impartial.
  The White House's allies have bombarded us with all sorts of 
misleading information to try to bully us into rolling over and rubber-
stamping these nominees. They are playing politics with the judicial 
branch and using it for partisan political purposes. That is most 
regrettable. Their charges of prejudice are simply appalling and should 
be rejected by all Americans as the crass and base partisan politics 
that they are.
  The plain fact is that this Senate has confirmed more judges at a 
faster pace than in any of the past six and one half years under 
Republican control with a Democratic President. With Democrat 
cooperation, this Senate has doubled the number of judicial 
confirmations and more than doubled the number of circuit court 
confirmations of President Bush's nominees compared to how the 
Republican-controlled Senate treated President Clinton's. The Senate 
has confirmed 40 judges already this year. That exceeds the number of 
judges during all of 2000, 1999, and 1997, and is more than twice as 
many judges as were confirmed during the entire 1996 session. It is 
more than the average annual confirmations for the 6\1/2\ years the 
Republican majority controlled the pace of confirmations from 1995 
through the first half of 2001. Thus, in the first 7 months of this 
year, we have already exceeded the year totals for 4 of the 6 years the 
Republican majority controlled the pace of President Clinton's judicial 
nominees and the Republican majority's yearly average. One hundred and 
forty lifetime confirmations in 2 years is better than in any 3-year 
period from 1995 though 2000, when a Republican majority controlled the 
fate of President Clinton's judicial nominations.
  We have already this year confirmed 10 judges to the Courts of 
Appeals. This is more than were confirmed in all of 4 of the past 6 
years when the Republicans were in the majority--in 1996, 1997, 1999, 
and 2000. And in the 2 other years, the 10th circuit nominee was not 
confirmed until much later in the year. We have now confirmed 27 
circuit court judges nominated by President Bush. This is more circuit 
court judges confirmed at this point in his presidency than for his 
father, President Clinton, or President Reagan at the same point. We 
have made tremendous progress and I want to thank, in particular, the 
Democratic members of the Judiciary Committee for their hard work in 
this regard. These achievements have not been easy. The Senate is 
making some progress. More has been achieved than Republicans are 
willing to acknowledge.
  So, as we repeat our vote on this nomination today and Republicans 
continue their drumbeat of unfair political recriminations, we should 
all acknowledge how far we have come from the 110 vacancies that 
Democrats inherited from the Republican majority in the summer of 2001. 
In addition to more confirmations and fewer vacancies, we have more 
Federal judges serving than ever before.
  Under a Republican majority, circuit vacancies more than doubled and 
overall vacancies increased dramatically. Despite the fact that close 
to 90 additional vacancies have arisen since the summer of 2001, we 
have worked hard and cut those vacancies from 110 to less than 60. 
Earlier this year, until new judgeships were authorized, the vacancy 
rate on the Federal courts was at the lowest number in 13 years. Even 
with the 15 new judgeships effective this month, the vacancy rate is 
now well-below where Senator Hatch inherited it, and well-below the 
rate Senator Hatch called ``full-employment.'' There are more full-time 
Federal judges on the bench today than at any time in U.S. history, in 
the last 214 years. And, if you add in the senior judges, there are 
more than 1,000 Federal judges sitting on the Federal courts.
  With a modicum of cooperation from the other end of Pennsylvania 
Avenue and the other side of the aisle we could achieve so much more. 
As it is, we have worked hard to repair the damage to the confirmation 
process and achieved significant results. Republicans seem intent on 
inflicting more damage, to the process, to the Senate, and to the 
independence of the Federal courts.
  Unfortunately, the nomination of Justice Owen is a nomination that 
should never have been remade. It was rejected by the Judiciary 
Committee last year after a fair hearing and extensive and thoughtful 
substantive consideration. The White House would rather play politics 
with judicial nominations than solve problems. This unprecedented 
renomination of a person voted down by the Senate Judiciary Committee 
is proof of that. That Senate Republicans are continuing to press this 
matter knowing the outcome of this vote shows what a charade this has 
become.
  This nomination is extreme. This nominee has shown herself to be a 
judicial activist and an extremist even on the very conservative Texas 
Supreme Court where her conservative colleagues have criticized her 
judging as activist again and again.
  The nomination process starts with the President. It is high time for 
the White House to stop the partisanship and campaign rhetoric and work 
with us to ensure the independence and impartiality of the Federal 
judiciary so that the American people, all of the American people, can 
go into every Federal courtroom across the country and know that they 
will receive a fair hearing and justice under the law. It is time for 
Senate Republicans to stand up for the Senate's role as a check on the 
unfettered power of the President to pack the courts and for fairness.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion.
  The clerk will report the motion to invoke cloture.

[[Page 20017]]

  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 86, the nomination of Priscilla R. Owen of Texas 
     to be United States Circuit Judge for the Fifth Circuit.
         Bill Frist, Orrin Hatch, John Cornyn, Michael B. Enzi, 
           Jim Talent, Judd Gregg, Jeff Sessions, Ben Nighthorse 
           Campbell, Craig Thomas, Chuck Grassley, Chuck Hagel, 
           Thad Cochran, Richard Shelby, Wayne Allard, Elizabeth 
           Dole, Conrad Burns, and Larry E. Craig.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived. The question is, Is it the sense of the Senate 
that debate on the nomination of Priscilla Richmond Owen, of Texas, to 
be United States Circuit Judge for the Fifth Circuit shall be brought 
to a close? The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Florida (Mr. Graham) the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Connecticut (Mr. 
Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The yeas and nays resulted--yeas 53, nays 43, as follows:

                      [Rollcall Vote No. 308 Ex.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--4

     Edwards
     Graham (FL)
     Kerry
     Lieberman
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
43. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________