[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[Senate]
[Pages 8678-8686]
[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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and resume consideration of Executive 
Calendar 86, which the clerk will report.
  The assistant legislative clerk read the nomination of Priscilla 
Richman Owen, of Texas, to be United States Circuit Judge for the Fifth 
Circuit.
  Mr. HATCH. I rise today to express my unqualified support for the 
confirmation of Justice Priscilla Owen to the Fifth Circuit Court of 
Appeals. Last evening I talked about the importance of this debate and 
this vote. I talked about this vote as an opportunity to remedy the 
mistreatment Justice Owen received last September when she was voted 
down in committee, along party lines, and blocked from receiving a 
Senate vote. We know she would have been confirmed in the Senate by 
both Democrat and Republican Members, but unfortunately she was never 
allowed to make it to that point. I talked about this vote as an 
opportunity for the Senate to show we can be fair to a well-qualified 
nominee and provide him or her a simple up-or-down vote.
  Finally, I talked about this vote as an opportunity to place a great 
judge, Justice Owen, on the bench. I convened a hearing for Justice 
Owen last month because I wanted to provide all of my colleagues an 
opportunity to ask questions of her and to hear her answers. I want to 
clear up misstatements and misrepresentations of her record dating back 
to last year. I was confident Justice Owen would again demonstrate her 
intelligence and capacity for Federal judicial service. To put it 
mildly, she certainly did not disappoint. She handled questions with 
insightful and substantive answers. She was a superb witness, one of 
the best we have ever had before the Senate Judiciary Committee.
  We heard valuable testimony from Senator Cornyn, a new Senator, but 
no newcomer to Justice Owen's record or the workings of the Judiciary. 
In fact, he served with Justice Owen on the Texas Supreme Court for a 
period of 3 years, serving side by side with her. He had been a Texas 
trial judge before that time. He also served as a Texas State attorney 
general for the last 3 years. Senator Cornyn answered a frequent 
criticism leveled at Justice Owen, a criticism that is false, that she 
is out of the mainstream on her own court. If anyone would know whether 
Justice Owen, in fact, fits this characterization, Senator Cornyn would 
know. He worked next to her, heard the very same oral arguments she 
did, examined and debated the same law and facts with her, and decided 
the very same cases she did.
  There is no doubt, then, Justice Cornyn disagreed with Justice Owen 
at times. I can reel off a few case names as well as anyone. But the 
significant thing is that he supports her confirmation despite attempts 
by some to create division where none exists.
  Former Texas Supreme Court Justices John L. Hill, Jack Hightower, and 
Raul Gonzalez, all Democrats, are united in concurring with Senator 
Cornyn's opinion calling Justice Owen unbiased and restrained in her 
decisionmaking and applauding her for her impeccable integrity, for her 
great character and great scholarship. The diverse and formidable 
group, made up of 15 former presidents of the Texas State bar, wrote in 
a letter of support: Although we prefer different party affiliations 
and span the spectrum of views of legal and policy issues, we stand 
united in affirming that Justice Owen is a true, unique, and 
outstanding candidate for the appointment to the Fifth Circuit.
  There is no dissent from Hector De Leon, immediate past president of 
Legal Aid of Central Texas, who applauds Justice Owen's commitment to 
improving the quality of legal services for the poor, or from Mary Sean 
O'Reilly, lifelong member of the NAACP, pro-choice Democrat who worked 
with Justice Owen on gender and family law issues. They are joined in 
support by E. Thomas Bishop, president of the Texas Association of 
Defense Counsel, who writes: I cannot imagine a more qualified, 
ethical, and knowledgeable person to sit on the Fifth Circuit; and 
William B. Emmons, self-styled Texas trial attorney, Democrat, and ``no 
friend of Priscilla Owen''--those are his words--who, nevertheless, 
said: Justice Owen will serve the Fifth Circuit of the United States 
exceptionally well.
  Those who have been in support of Justice Owen are familiar with her 
record of service, but it deserves brief review in the Senate. 
Priscilla Owen is a native of Palacios, Texas, a town located on the 
southern coast of Texas, grew up in Waco, TX, and attended school 
there. Following graduation from high school, Justice Owen enrolled in 
Baylor University where she received a bachelor of arts degree cum 
laude. She attended Baylor University School of Law with a scholarship, 
again excelling in studies by achieving cum laude and serving as a 
member of the law review. She scored the highest score in the State on 
the Texas bar exam after finishing school, a terrific accomplishment in 
a State the size of Texas.
  Justice Owen worked for the Houston firm Andrews & Kurth as a 
commercial litigator for 17 years, gaining seasoning in appearances 
before Texas State and Federal courts and courts elsewhere.

[[Page 8679]]

  Besides extensive work in oil and gas litigation, she handled 
securities matters and did work on cases heard by the Texas Railroad 
Commission. She became a partner with the firm in the mid-1980s.
  Priscilla Owen successfully ran for a seat on the Texas Supreme Court 
in 1994 and was reelected in the year 2000 for another 6-year term. Her 
reelection run in 2000 was supported by every major Texas newspaper. 
She won with 84 percent of the popular vote.
  Based on this shining record of academic and professional 
achievement, the American Bar Association awarded Justice Owen a 
unanimous well-qualified rating. That is after sending representatives 
into the State, talking to people on all sides of various issues; 
talking to people on both sides of the political spectrum, both 
Democrats and Republicans; talking to fellow members of the bar, those 
who knew her the best. They came up with a unanimously well-qualified 
rating, the highest rating the American Bar Association can give.
  This rating does mean that Justice Owen is at the top of the legal 
profession in her legal community; that she has outstanding legal 
ability, breadth of experience, and the highest reputation for 
integrity, and that she has demonstrated or exhibited the capacity for 
judicial temperament. Only a few people achieve that select highest 
rating.
  Justice Owen is a member of the prestigious American Law Institute, 
the American Judicature Society and the American Bar Association, and a 
Fellow at the Houston and American Bar Associations. She has taken a 
genuine interest in improving access to justice for the poor while 
serving on the bench as a liaison to State committees on pro bono and 
legal services for the indigent. She worked with others to successfully 
petition the Texas State Legislature to provide better funding for 
organizations devoted to helping the poor with legal support services.
  Earlier, I mentioned a letter of support for Justice Owen, which was 
sent by Hector De Leon, past President of Legal Aid of Central Texas. 
Let me just quote a small part of that letter, because it makes the 
point better than I can, regarding Justice Owen.

       Justice Owen has an understanding of and a commitment to 
     the availability of legal services to those who are 
     disadvantaged and unable to pay for such legal services. It 
     is that type of insight and empathy that Justice Owen will 
     bring to the Fifth Circuit.

  Justice Owen is active in her church and respected in her community. 
She is a mentor to young women attorneys, having made it to the top of 
the legal profession during a period of time when relatively few women 
went to law school--fewer were hired by preeminent firms--and even 
fewer are advanced thereafter to partnership. Justice Owen did all 
three.
  As a judge, Justice Owen is an advocate for breaking glass ceilings 
in the legal field. She has served on the Texas Supreme Court Gender 
Neutral Task Force, a working group seeking to promote equality for 
women in the Texas legal system, and addressing problems of gender bias 
in the profession. And, she served as one of the editors of the Gender 
Neutral Handbook, a guide made available to all Texas lawyers and 
judges, and intended to educate and create awareness about gender bias.
  If you look at her record, it is hard for me to imagine why my 
colleagues on the other side of the floor, on the Judiciary Committee, 
voted against her in any way. I don't see how they could possibly vote 
against her with the record that she has. But they did. I suspect that 
politics had a little bit to do with it.
  Justice Priscilla Owen is an excellent choice for the Fifth Circuit. 
There is no doubt that some will pull isolated bits and pieces out of 
Justice Owen's rich and textured background in an attempt to discredit 
and diminish her accomplishments and abilities and jurisprudence. There 
is no doubt some will avoid mentioning the positive aspects of Justice 
Owen's career, and despite this fact, it bears noting once more that 
those who know Priscilla Owen best know what a terrific judge she is 
now and will be on the Federal court.
  I have come to know Justice Owen and her record and I agree she has 
been an excellent State judge, and she promises to be an excellent 
Federal judge. I ask my distinguished colleagues in the Senate to join 
me in voting for the confirmation of Justice Priscilla Owen to the 
Fifth Circuit Court of Appeals, and I certainly hope this great justice 
is not going to be filibustered, as Miguel Estrada has been.
  Nevertheless, we are prepared for whatever happens here. She stands 
in a unique position as one of the finest women lawyers in the country, 
one of the finest women justices in the country, and one of the finest 
people who really has worked so hard for women and women's issues and 
gender issues who has ever served in any court in this country. It is 
very difficult for me to see how anybody could vote against her.
  I hope we can have this vote, up or down, within a relatively short 
period of debate. I hope everybody will get to the floor and say what 
they have to say about Justice Owen, and we will be happy to enter into 
debate at any time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I want to say first how much I 
appreciate Senator Hatch, the chairman of the Judiciary Committee, who 
has done an incredible job under very trying circumstances on the 
nomination of Priscilla Owen.
  Senator Hatch saw early on what an outstanding person we have in 
Priscilla Owen, and though on a straight party-line vote she was turned 
down by the committee last year, and was unable to get to the floor 
even for a vote this year, with Senator Hatch's leadership she has been 
able to come out of committee, again on a straight party-line vote. I 
am very hopeful she will get a fair chance for a floor vote because she 
is one of the most outstanding people I know.
  She has waited 1 year and 11 months. That is when the President first 
nominated her for the Fifth Circuit Court of Appeals. Priscilla Owen 
was among the group of 11 judicial nominees announced by President Bush 
on May 9, 2001. She is the kind of judge the people of the Fifth 
Circuit need on the bench, an experienced jurist who follows the law 
and uses good common sense. She has been nominated to a vacancy that 
has been classified as a judicial emergency and that should be filled 
expeditiously.
  Justice Owen is an 8-year veteran of the Texas Supreme Court. She is 
highly qualified. She graduated cum laude from Baylor Law School in 
1977. Thereafter, she earned the highest score on the Texas bar exam. 
Before joining the Texas Supreme Court in 1994, she was a partner in a 
major Texas law firm where she was a commercial litigator for 17 years.
  She has used her legal talents to help those in need. She has worked 
to improve access to legal services for the poor. She fought to 
increase funding for these programs.
  She has also helped organize a group known as Family Law 2000, which 
seeks to educate parents about the effects of divorce on children, and 
to lessen the adversarial nature of legal proceedings when a marriage 
is dissolved.
  Justice Owen enjoys broad support. The American Bar Association 
Standing Committee on the Federal Judiciary has voted her unanimously 
well qualified. To merit this ranking, the ABA requires that the 
nominee must be at the top of the legal profession in his or her legal 
community, have outstanding legal ability, breadth of experience, the 
highest reputation for integrity, and either have demonstrated or 
exhibited the capacity for judicial temperament.
  I would say her judicial temperament has been proven in the 1 year 11 
months that she has waited for confirmation because the way she has 
conducted herself has been exemplary. She has been available to meet 
with any Senator. She has answered every question. She has gone back 
into records to make sure that she was answering exactly correctly. She 
has maintained complete silence about this process about

[[Page 8680]]

which I am sure she has some strong opinions. But I think she has shown 
her judicial temperament by being very much on an even keel, basically 
saying: I would love to be on the Fifth Circuit, but I am very happy on 
the Texas Supreme Court.
  Of course, she is well regarded by those who know her best. We do 
elect judges in Texas. In 2000, Justice Owen was reelected to the 
Supreme Court with 84 percent of the vote. She was endorsed by every 
major newspaper in Texas--every one.
  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.''
  Despite the fact that she is a well-respected judge who has received 
high praise, her nomination has been targeted by special interest 
groups that have mischaracterized her views.
  Let me read the words of former elected attorney general and Texas 
Supreme Court Chief Justice John L. Hill, Jr., a lifelong Democrat, 
denouncing the false accusations about Priscilla Owen's record by 
special interest groups.

       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 made no effort to assess whether her decisions are 
     legally sound. . . . I know Texas politics and can clearly 
     say that these assaults on Justice Owen's records are false, 
     misleading, and deliberate distortions.

  That is a quote from former chief justice of the Texas Supreme Court, 
John Hill, elected as a Democrat.
  Senator Hatch has taken the extraordinary step of holding a second 
hearing on Justice Owen in order to get the record straight and because 
Senator Leahy, the ranking member, really insisted that she have 
another hearing. She did so well in those hearings. I watched them 
after I introduced her. Once again, her evenhandedness and her legal 
brilliance came through.
  One issue that came up during the hearings involves Texas's parental 
notification statute. I believe Justice Owen has demonstrated that she 
is a judge who follows and upholds the law, and in this line of cases 
she has consistently applied Supreme Court precedent to help interpret 
uncertainty in the statute. The cases in question deal strictly with 
statutory interpretation of Texas law, not with constitutional rights.
  These are not abortion cases. They are issues of parental 
involvement. They are notification--not consent--laws. Forty-three 
States have passed some form of parental involvement statute. During 
two lengthy committee hearings, Justice Owen defended her decisions as 
consistent with U.S. Supreme Court rulings.
  In addition, almost all of the cases that came to the supreme court 
were cases in which she voted to affirm the district court and the 
circuit court of appeals rulings. So it would have been highly unusual 
for the supreme court to overturn the trier of fact and the first 
appellate court.
  I hope my colleagues will see that her methods of statutory 
interpretation are sound and that she is an exemplary judge.
  I urge my colleagues not to filibuster this well-qualified nominee 
but to give her an up-or-down vote. I hope we will confirm this 
outstanding supreme court judge from Texas who has waited almost 2 
years now for the Fifth Circuit Court of Appeals appointment.
  If there were anything in her record against integrity or competence 
or judicial demeanor, it would be a different case, but that is not the 
case about Priscilla Owen, whom I know well, whom I have been with on 
many occasions. I know the people who appear before her court. She is 
rated outstanding by all who know her, who are giving any kind of an 
objective view.
  I hope this Senate will not do to Priscilla Owen what has happened to 
another well-qualified nominee, Miguel Estrada, who also has a sterling 
academic record, who also has a record of integrity and experience. I 
hope this Senate will not start requiring 60 votes, where the 
Constitution requires a simple majority for qualified nominees.
  Let's have a vote up or down. We do not need a new standard. In fact, 
if we had a new standard, it should go through the constitutional 
process. We should have a constitutional amendment that says Supreme 
Court and circuit court and district court judge nominees will be 
required to have 60 votes. It would take a constitutional amendment to 
do that. But Miguel Estrada is being required to have 60 votes. I hope 
that is not the standard we put on Priscilla Owen.
  Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Enzi). The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, today the Senate has begun an 
extraordinary, actually unprecedented, debate to reconsider the 
nomination of Priscilla Owen to the United States Court of Appeals for 
the Fifth Circuit. In the history of the country, there has never been 
a time when a President has resubmitted a circuit court nominee already 
rejected by the U.S. Senate Judiciary Committee for the same vacancy. 
Until 4 weeks ago, never before had the Judiciary Committee rejected 
its own decision on such a nominee and granted a second hearing. We 
have a case where the Senate Judiciary Committee, having decided not to 
give even one hearing to President Clinton's nominees to the Fifth 
Circuit from Texas, Enrique Moreno and Jorge Rangel, in fact having 
decided not to give a satisfactory hearing to President Bush's nominees 
to the DC and Sixth Circuits, John Roberts and Deborah Cook, the 
committee nonetheless proceeded with another hearing for Justice Owen.
  It is unprecedented both in its procedures but also in its political 
partisanship.
  What did we learn in that second hearing? We learned that given some 
time, Justice Owen was able to enlist the help of the talented lawyers 
working at the White House and the Department of Justice in their 
political arm to come up with some new justification for her activism. 
We learned that given six months to reconsider the severe criticism 
directed at her by her Republican colleagues, she still admits no 
error. Mostly, I think we learned that the objections expressed last 
September were sincerely held then, they are sincerely held now. 
Nothing Justice Owen amplified about her record--indeed, nothing anyone 
else tried to explain about her record--actually changed her record.
  In September, when we considered this nomination in the committee the 
first time, I said I was proud the Democrats and some Republicans had 
kept to the merits of the nomination and chose not to vilify or 
castigate or unfairly characterize and condemn without basis Senators 
working conscientiously to fulfill their constitutional responsibility.
  After hearing some of the ugly things that were subsequently said at 
that business meeting, some of the accusations made against my 
colleagues and those interested citizens across the country who 
expressed opposition to Justice Owen's nomination, I was sorely 
disappointed that some in the Senate had not kept solely to the merits.
  I continue to believe what Senator Feinstein said that day is true. 
By doing its job on the nomination, by exercising due diligence, by 
examining records, by not just rubber stamping every nominee the 
President sent us, the Judiciary Committee showed itself to be alive 
and well.
  We confirmed the overwhelming majority of the President's judicial 
nominees, 100 out of 103 considered while I was chairman--incidentally, 
setting an all-time speed record. We took the time to look at their 
records. We gave each person who was nominated to this lifetime seat on 
the Federal bench the scrutiny he or she deserved. We did not have the 
assembly line which seems to be in overdrive since this last Congress 
took over.

[[Page 8681]]

  The rush to judgment on so many of the nominees before us does not 
change the fact that we fully and fairly considered the nomination of 
Priscilla Owen last year. The record was sufficient when we voted last 
year. It did not need any setting straight.
  I voted ``no'' the last time this nomination was before us. In sharp 
contrast to the record of the district court nominee Cormac Carney who 
was just confirmed by the Senate--he came to us with strong bipartisan 
support--Justice Priscilla Owen is a nominee whose record is too 
extreme in the context of the very conservative Texas Supreme Court. 
Her nomination presents a number of areas of serious concern to me.
  The first area is her extremism even among a conservative Supreme 
Court of Texas. The conservative Republican majority of the Texas 
Supreme Court has gone out of its way to criticize Justice Owen, the 
dissents she wrote and the dissents she joined in ways that are highly 
unusual, and highlight not a law-oriented activism but an ends-oriented 
activism.
  A number of justices on the Texas Supreme Court have pointed out how 
far from the language of statutes she has strayed in her attempts to 
legislate from the bench, to go far beyond what the legislature 
intended.
  One example is a majority opinion in a case called Weiner v. Wasson. 
In this case, Justice Owen wrote a dissent advocating a ruling against 
a medical malpractice plaintiff, a plaintiff who was injured while he 
was still a minor. The issue was the constitutionality of a Texas State 
law requiring minors to file medical malpractice actions before 
reaching the age of majority or risk being outside the statute of 
limitations. Of interest is the majority's discussion of the importance 
of abiding by a prior Texas Supreme Court decision, a decision that was 
now stare decisis, unanimously striking down a previous version of the 
statute.
  In what reads as a lecture to the dissent, one of the very respected 
members of the Texas Supreme Court, then-Justice John Cornyn, explains 
on behalf of the majority:

       Generally, we adhere to our precedents for reasons of 
     efficiency, fairness and legitimacy. First, if we did not 
     follow our own decisions, no issue could ever be considered 
     resolved. The potential volume of speculative relitigation 
     under such circumstances alone ought to persuade us that 
     stare decisis is a sound policy. Secondly, we should give due 
     consideration to the settled expectations of litigants like 
     Emmanuel Wasson, who have justifiably relied on the 
     principles articulated in the previous case. . . . Finally, 
     under our form of government, the legitimacy of the judiciary 
     rests in large part upon a stable and predictable 
     decisionmaking process that differs dramatically from that 
     properly employed by the political branches of government.

  That Justice Cornyn sure knows how to write. He did a great job on 
this one. Now, I may not agree with him on all other things, I may not 
even agree with him on the issue before us now, but I sure agree with 
his decision there.
  Actually, I speak of it as being a conservative Supreme Court. In the 
30 years I was practicing, we had a pretty conservative Supreme Court 
in Vermont, and I suspect they would have written the same thing. I 
suspect most supreme courts would have written the same lines about 
stare decisis. I do not think that is a case whether one is 
conservative or liberal on their supreme court. I suspect we could go 
through all 50 States, whether it is Wyoming, Vermont, Texas, or 
anywhere else, and find similar language.
  The Republican majority on the Texas Supreme Court followed 
precedent. They followed stare decisis.
  In Montgomery Independent School District v. Davis, Justice Owen 
wrote another dissent which drew fire from a conservative Republican 
majority, this time for her disregard for legislative language. In a 
challenge by a teacher who did not receive reappointment to her 
position, the majority found the school board had exceeded its 
authority when it disregarded the Texas Education Code and tried to 
overrule a hearing examiner's decision on the matter. Justice Owen's 
dissent advocated for an interpretation contrary to the language of the 
applicable statute.
  The majority, which included Alberto Gonzales, now counsel at the 
White House, and two other appointees of then-Governor Bush, was quite 
explicit about the view that Justice Owen's position disregarded the 
law:

       The dissenting opinion misconceives the hearing examiner's 
     role in the . . . process by stating that the hearing 
     examiner ``refused'' to make findings on the evidence the 
     Board relies on to support its additional findings. As we 
     explained above, nothing in the statute requires the hearing 
     examiner to make findings on matters of which he is 
     unpersuaded.

  The majority also noted the dissenting opinion's misconception, 
speaking of Justice Owen's opinion:

       The dissenting opinion's misconception of the hearing 
     examiner's role stems from its disregard of the procedural 
     elements the Legislature established in subchapter F to 
     ensure that the hearing-examiner process is fair and 
     efficient for both teachers and school boards. The 
     Legislature maintained local control by giving school boards 
     alone the option to choose the hearing-examiner process in 
     nonrenewal proceedings. . . . By resolving conflicts in 
     disputed evidence, ignoring credibility issues, and 
     essentially stepping into the shoes of the factfinder to 
     reach a specific result, the dissenting opinion not only 
     disregards the procedural limitations in the statute but 
     takes a position even more extreme than that argued for by 
     the board. . . .

  Then we have Collins v. Ison-Newsome, another case where a dissent, 
joined by Justice Owen, was roundly criticized by the Republican 
majority of the Texas Supreme Court. The court cogently stated a legal 
basis for its conclusion that they had no jurisdiction to decide the 
matter before it, and as in other opinions where Justice Owen was in 
dissent, took time to explicitly criticize the dissent's position 
contrary to the clear letter of the law.
  At issue was whether the Supreme Court had the proper ``conflicts 
jurisdiction'' to hear the interlocutory appeal of school officials 
being sued for defamation. The majority explained that it did not 
because published lower court decisions do not create the necessary 
conflict between themselves. The arguments put forth by the dissent, in 
which Justice Owen joined, offended the majority, and they made their 
views known, writing:

       The dissenting opinion agrees that ``because this is an 
     interlocutory appeal . . . this Court's jurisdiction is 
     limited,'' but then argues for the exact opposite 
     proposition. . . . This argument defies the Legislature's 
     clear and express limits on our jurisdiction. . . . The 
     author of the dissenting opinion has written previously that 
     we should take a broader approach to the conflicts-
     jurisdiction standard. But a majority of the Court continues 
     to abide by the Legislature's clear limits on our 
     interlocutory-appeal jurisdiction.

  Listen to what they said. Justice Owen says because this is an 
interlocutory, the appeals court's jurisdiction is limited, but as the 
majority point out, she then argued for the exact opposite proposition.
  They go on to say, ``[W]e cannot simply ignore the legislative limits 
on our jurisdiction. . . .''
  She was defiant of legislative intent, a total disregard of 
legislatively drawn limits.
  I agree with what President Bush said during the campaign, he wanted 
people who would interpret the law on courts and not make the law. We 
have someone here who, time and again, substitutes her judgment for the 
legislature's judgment. In fact, she wants to be both the legislature 
and the judiciary.
  You can be one or the other. You cannot be both, not in our system of 
government.
  We are already saddled with an activist Supreme Court, the U.S. 
Supreme Court. We are creating more activist courts of appeals. This is 
someone who fits into the absolute motto of being an activist judge.
  Frankly, I am opposed to the idea of having activists judges either 
on the liberal side or the conservative side. I want judges who 
interpret the law who do not make the law, justices who are fair and 
open to all litigants. I want litigants to be able to walk into a 
courtroom and look at the judge and say, it really does not make any 
difference whether I am plaintiff, defendant, rich, poor, liberal, 
conservative, what political party I belong to, what color I am, what 
religion I practice,

[[Page 8682]]

that judge will hear my case fairly. That judge will either rule with 
me or rule against me but it will be based on the facts and the law 
before the judge and not because of their particular ideology or their 
particular bent or their desire to substitute themselves and their 
opinion, either for the executive or for the legislative branch of 
Government.
  Some of the most striking examples of criticism of Justice Owen's 
writings, or the dissents and concurrences she joins, come in a series 
of parental notification cases heard in 2000.
  In the case of Jane Doe I, the majority included an extremely unusual 
section explaining the proper role of judges, admonishing the dissent 
joined by Justice Owen for going beyond its duty to interpret the law 
in an attempt to fashion policy. Giving a pointed critique of the 
dissenters, the majority explained that:

       In reaching the decision of granting Jane Doe's 
     application, we put aside our personal viewpoints and 
     endeavored to do our jobs as judges--that is, to interpret 
     and apply the Legislature's will as has been expressed in the 
     statute.

  In a separate concurrence, Justice Alberto Gonzales wrote to construe 
the law as the dissent did ``would be an unconscionable act of judicial 
activism.''
  I will speak further on this. I see the distinguished Senator from 
Texas, who I understand may have a differing view than I do on this 
nomination, and I do want to make sure he is given a chance. I will 
speak for a few more minutes and then yield.
  I note one thing. Justice Owen has been nominated to fill a vacancy 
that has existed since January 1997. We are now in the year 2003. This 
vacancy has existed for 6 years. One might wonder why nobody was 
nominated during that time. Actually, they were. President Clinton 
first nominated Judge Jorge Rangel, a distinguished Hispanic attorney 
from Corpus Christi, to fill that vacancy. He had one of the highest 
ratings of the American Bar Association, a majority found him well 
qualified. He was strongly supported by so many across the political 
spectrum who wrote to me. It was not a question of being voted down; he 
was never even allowed to have a hearing.
  Finally, after 15 months, out of frustration, he asked the President 
to withdraw his nomination. He said, if I am not going to be allowed to 
have a hearing, to say nothing about a vote, I am leaving.
  Then September 16, 1999, 4 years ago, President Clinton nominated 
Enrique Moreno, another Hispanic attorney, to fill that same vacancy. 
This Harvard-educated lawyer also received a rating of well qualified 
from the ABA, and his was a unanimous well qualified.
  Members may be wondering what the vote was on him. Well, there wasn't 
a vote. There was not even a hearing. He waited for a year and a half 
and never got a hearing. So both of these people were carefully 
rejected by not having a hearing.
  For years, as I have spoken before, we needed 100 votes to get any 
nominee through. Unless every single Senator, every single Senator 
agreed, the nominee would not get a hearing. Time and time again, 
dozens upon dozens upon dozens of cases, every single Democratic 
Senator agreed they should at least have a hearing and a vote, and at 
least one Republican would disagree, and they would never be given a 
hearing. As Allen Snyder, DC Circuit, never given a vote. Elena Kagan, 
just named the dean of the Harvard Law School, never given a hearing or 
a vote; Robert Cindrich, Third Circuit, never given a hearing or a vote 
by the Republicans; Steven Orlofsky, Third Circuit, never given a 
hearing or a vote by Republicans; James Beatty in the Fourth Circuit, 
never given a hearing or a vote by Republicans because not all of them 
agreed. If one disagreed, if one objected, they were not given a 
hearing or a vote. Andre Davis, Fourth Circuit, never given a hearing 
or a vote because at least one Republican disagreed. They needed 100 
votes to make it. Elizabeth Gibson, Fourth Circuit, never given a 
hearing or a vote because one Republican disagreed.
  The Fifth Circuit, Alston Johnson, never given a hearing or a vote, 
because at least one Republican disagreed. Kent Markus, in the Sixth 
Circuit, Kathleen McCree Lewis, eminently well qualified, at least one 
Republican disagreed, never given hearings, never given votes. James 
Duffy in the Ninth Circuit, never given a hearing or a vote, because at 
least one Republican disagreed. And the same could be said about so 
many others. James Lyons in the Tenth Circuit. Interestingly enough, in 
the Tenth Circuit never given a hearing or a vote because one 
Republican disagreed, and Democrats had helped move forward somebody 
who many disagreed in that same circuit.
  I might point out that of all these people, and so many others, there 
are dozens of others, but all of these had ratings of well qualified 
from the ABA. But at least one Republican disagreed, and if just one 
Republican disagreed, they were never allowed to have a hearing or a 
vote.
  Interestingly enough, it wasn't until May of last year, in the 
hearing chaired by Senator Schumer, that this committee heard from any 
of President Clinton's three unsuccessful nominees for the Fifth 
Circuit. Last May, Mr. Moreno and Judge Rangel testified, along with 
other of President Clinton's nominees, about their treatment by the 
Republicans, when the Republicans were in charge of the Senate 
Judiciary Committee. These nominees were told by at least a couple of 
the members, senior members of the Republican Party, that if somebody 
in their caucus disagreed, that was too bad. It had nothing to do with 
their qualifications. They were not going to fill that vacancy.
  This happened in a number of circuits, including the Fifth Circuit. 
In fact, when the committee held its hearing on the nomination of Judge 
Edith Clement to the Fifth Circuit in 2001, it was the first hearing on 
a Fifth Circuit nominee in 7 years. By contrast, Justice Owen was the 
third nomination to the Fifth Circuit on which the Judiciary Committee, 
under my chairmanship, held a hearing in less than 1 year. In spite of 
the treatment by the former Republican majority of so many moderate 
judicial nominees of the previous President, we proceeded last July 
with a hearing on Justice Owen.
  So Justice Owen was the third nominee to this vacancy. She was the 
first to be afforded a hearing before the committee. Actually, I set 
that hearing. I even set the vote on a day that President Bush 
personally asked me to set the vote. After having set it on the day he 
asked me to, the political arm of the Justice Department immediately 
started calling all these editorial writers and others, saying: It is 
terrible she is being set for a vote on that day.
  It was interesting. They then, as they had the right to do, put it 
off for several weeks, the vote. I almost wonder what the vote would 
have been had it been on the day the President asked to have the vote, 
and the day I agreed with the President to have the vote, and then was 
castigated by the White House for going along with what President Bush 
wanted. It is, with this administration, sort of: No good deed goes 
unpunished.
  But then I think it is interesting what happened. Because after the 
Republicans put it off and we did not have the vote on the day the 
President asked, there was so much partisan politicking that went on on 
her behalf that I think it solidified at least a couple of votes 
against her on that committee. We will never know.
  But, even though Republicans had blocked many of President Clinton's 
nominees for the Fifth Circuit, we moved forward in a hearing for 
Priscilla Owen. At her hearing a couple of weeks ago, her second 
hearing, her unprecedented hearing, the chairman was very dismissive of 
our concerns and our efforts to evaluate this nomination on the merits. 
But the irony is, she has been before this committee twice now and 
neither time did the explanations change the facts before us. The 
President has said, and I am sure all his pollsters will tell him, 
people agree with this, as they should, the standard for judging 
judicial nominees would be that they ``share a commitment to follow and 
apply the law, not make law from the bench.''

[[Page 8683]]

  Everybody agrees with that. I agree with that. I don't know anybody 
who disagrees with that. But that is not Priscilla Owen's record. She 
is ready to make law and legislate from the bench.
  She is not qualified for a lifetime appointment to the Federal bench. 
This is something that affects all of us, these decisions. To put 
somebody in a lifetime appointment like that who has already shown she 
is an activist judge, I think is wrong. The President spoke of judicial 
activism without acknowledging that ends-oriented decisionmaking can 
come easily to ideologically motivated nominees. In the case of 
Priscilla Owen, we see a perfect example of such an approach to law. I 
do not support that. I will not.
  I am perfectly willing to consent to the confirmation of consensus, 
mainstream judges. I have on hundreds of occasions. When I was 
chairman, I did not allow the past rule--the past practice of anonymous 
holds. We even had a number I did not support, but brought them to a 
vote. When they got through the committee they came on the floor.
  Justice Owen was plucked from a law firm by political consultant Karl 
Rove. She ran as a conservative pro-business candidate for the Texas 
Supreme Court. She certainly got a lot of support from the business 
community. Then she fulfilled her promise; she became the most 
conservative judge on a conservative court. She stood out for ends-
oriented, extremist decisionmaking.
  Now she is being asked to be placed in a lifetime appointment one 
step below the Supreme Court. I do not support that.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I want to take the next few minutes to 
respond to some of the comments the ranking member of the Judiciary 
Committee has made with regard to the process by which we confirm 
judicial nominees of the President, and to specifically respond to some 
of the areas of criticism that he and a handful of special interest 
groups have directed at the nomination of Priscilla Owen.
  I believe, even though I am a new Member of the Senate--having been a 
Senator for all of about 4 months now--I have, at least in this area, 
some special knowledge I would like to share with my colleagues with 
regard to this particular nominee because for 7 years I served on the 
Texas Supreme Court and for 3 years concurrently with Justice Priscilla 
Owen.
  So during that time I had the chance to work with her on a daily 
basis, learn her work habits and her frame of mind when it came to 
addressing her responsibilities as a judge on the highest court of my 
State. I believe in each instance the criticism the ranking member has 
lodged--really repeating that which special interest groups have lodged 
unfairly against Priscilla Owen since her nomination on May 9, 2001--
can be refuted, or at least explained in a way that I think 
demonstrates she should be given the opportunity for an up-or-down vote 
in the Senate, where I am convinced that a bipartisan majority of this 
body stands ready to confirm her nomination.
  Senator Leahy has gone through some history of the Clinton 
administration and the nominees of that administration and the 
treatment--unfair treatment, in his eyes--of President Clinton's 
nominees. I think what we are supposed to conclude from that is that 
somehow this game of tit for tat, or what is sauce for the goose is 
sauce for the gander, somehow rises to the high level of performance 
that the American people have cause to expect of us whom they send to 
the Senate.
  I contend that rather than serve the interests of the American 
people, the way in which the Senate Judiciary Committee proceedings 
have been conducted for some time now--particularly as evidenced now by 
the filibuster being imposed against the nomination of Miguel Estrada--
have been a disservice to the American people.
  I have supported--and Senator Leahy has said he agrees with me--that 
we need to find some way to bring a conclusion to this downward spiral, 
in a way that serves the interests of the American people and does 
credit to this institution. I hope, in the days that lie ahead, we will 
find an opportunity to do that. I trust we will. I only hope the Senate 
does not grab defeat from the jaws of victory in terms of our 
opportunity to reform this broken system of judicial confirmation, one 
that does not reflect well on this institution.
  Senator Leahy talked about how unprecedented this nomination is, 
pointing out that last year, during Senate Judiciary Committee 
hearings, Justice Owen was voted down in a strict party-line vote, and 
that she would now be renominated by the President and then brought to 
the floor. I guess these are unprecedented times when it comes to 
judicial confirmation proceedings.
  As I mentioned just a moment ago, we have an unprecedented filibuster 
by the Democratic minority of Miguel Estrada, someone who, I believe, 
would receive a majority vote from a bipartisan group of Senators on 
this floor should the Senate just be allowed to vote. Of course, we 
have been through, I think, four cloture motions, which have failed, 
which means that debate continues on that nomination. Here again, 
unprecedented in the annals of this institution: a circuit court judge 
being filibustered for no good reason, I would contend.
  Senator Leahy says Justice Owen is an activist, someone who would 
impose her own will or political judgment on the people regardless of 
what precedent had established earlier decisions by the highest court 
in the land or what the legislature says. But the way he explains what 
he means by ``activism'' I think equates with: I don't agree with the 
results of the decision.
  If that is the definition of ``activism,'' then activism has no 
meaning, or certainly no commonly understood meaning, because, of 
course, any reasonable person might disagree with the outcome of any 
judicial decision and thereby label that judge who made the decision an 
activist. But that is certainly not the commonly understood meaning: 
just the fact that judges may, in fact, disagree with each other from 
time to time.
  I think some have pointed out, as an example of Justice Owen's 
failings, that some judges at different times have had cause to 
disagree with her decision. But, in fact, that is what we expect of 
judges--certainly at the highest levels of our judiciary--that they 
will do their very best to research the law, to comb the record, to try 
to discern what precedents might apply, what statutes that have been 
passed by Congress might apply, and then to apply that law to the facts 
as decided by the fact finder in order to reach a decision.
  At the highest levels of our judiciary we commit that decision to 
nine people, and frequently they disagree with each other. We do not 
point that out as a fault or a failing; we view that as a strength 
because in the debate, the dialog, the back and forth--the conversation 
really--these judges have, we believe the public purpose for which the 
judiciary was created is served. I believe that to say it represents a 
failing or represents a reason a judge should not be confirmed turns 
the whole purpose of that body on its head.
  Senator Leahy claimed that Justice Owen is simply too extreme to be 
confirmed--this notwithstanding the fact that in her last election to 
judicial office in the State of Texas, 84 percent of the voters voted 
in her favor.
  She has been endorsed by a bipartisan group of the leadership of the 
bar in my State, Republicans and Democrats alike, former presidents of 
the Texas Bar Association. She has received the highest endorsement, 
the highest recommendation given by the American Bar Association. How, 
in any fair-minded person's view, could Justice Owen be characterized 
as too extreme in light of those simple facts?
  As some evidence of his argument that Justice Owen is somehow an 
activist, somehow too extreme, Senator Leahy has pointed to language in 
a

[[Page 8684]]

number of opinions where she has been criticized for rewriting 
statutes. As somebody who has, for better or worse, served for 13 years 
as a judge before I came to this institution, I can tell you, that is 
simply the way judges talk to each other when they disagree about the 
outcome in any case. They do their very best to research the law, to 
try to ascertain what the legislative intent is in any particular case, 
and then they reach a conclusion. Someone who disagrees with that judge 
may say: Well, I disagree. I believe you are rewriting the statute. It 
is not as serious nor certainly as consequential a statement as Senator 
Leahy might suggest. It is just another way of saying: I disagree.
  Here again, judges disagree, particularly on the most difficult 
questions that confront our States or this Nation. We expect judges to 
speak their mind. We expect judges to enter into intelligent debate and 
discussion, and when they disagree, so much the better. But finally--
finally--there has to be a decision. That is where the majority comes 
into play and makes a final decision.
  So judges being accused of rewriting statutes does not have nearly 
the sinister connotation that some might suggest and, in fact, to me 
just represents judges trying to do their jobs to the best of their 
ability.
  I just have to mention that Senator Leahy pointed to one case where 
Justice Owen and I disagreed when I was on the Texas Supreme Court, the 
Weiner v. Wasson case, and it was one of a number of cases where she 
and I disagreed. But, here again, the fact that we disagreed does not 
make her incompetent to serve on the Fifth Circuit Court of Appeals or 
unqualified or somehow activist. It means simply that we had different 
opinions of how the law ought to be ascertained, what that law was, and 
how it should be applied to the facts.
  The language Senator Leahy read, with which he said he agreed, about 
the importance of stare decisis, adheres to the precedents set out by 
our highest court in terms of setting expectations of the litigants, 
achieving finality of a decision rather than relitigating the same 
legal questions over and over again. That was no lecture but merely an 
explanation to the one who was challenging the constitutionality of the 
statute in that case or the one who claimed the statute was 
constitutional; in fact, it was important that we adhere to an earlier 
decision where we had held a similar statute unconstitutional. It was 
certainly not a lecture.
  It just goes to prove that when you read the written record in black 
and white, sometimes it fails to impart enough information to make an 
informed decision about what is going on. That is why we have juries, 
to listen to witnesses, confront witnesses face to face in court. That 
is why, as appellate judges, we defer to the facts found by juries and 
lower courts, because they are in the best position to determine the 
veracity of the testimony and the credibility of the witness. That is 
why a written record can sometimes simply mislead you into a wrong 
conclusion, which has happened in the case of Justice Owen.
  I could not support the nomination of Justice Owen to the Fifth 
Circuit Court of Appeals more strongly. This court, of course, covers 
the States of Texas, Mississippi, and Louisiana and all Federal appeals 
that come from those States. I firmly believe Justice Owen deserves to 
be confirmed. She will be confirmed by a bipartisan majority of the 
Senate as long as the Senate applies a fair standard and as long as we 
continue to respect Senate traditions and the fundamental democratic 
principle of majority rule by permitting an up-or-down vote on her 
nomination.
  The American people desperately need the Nation's finest legal minds 
to serve on our Federal courts, particularly vacancies such as those on 
the Fifth Circuit, which have been designated judicial emergencies by 
the U.S. Judicial Conference. We must ensure that all judicial nominees 
understand that judges must interpret the law as written and not as 
they personally would like to see them written.
  Justice Owen satisfies both of these standards with flying colors. 
She is, quite simply and by any measure, an impressive attorney and 
jurist. She graduated at the top of her class at Baylor Law School and 
was an editor of the Law Review at a time when few women entered the 
legal profession. She received the highest score of her class on the 
bar examination, and she was extremely successful as a practicing 
attorney in Houston, TX, and across the State for 17 years before she 
began her service on the Texas Supreme Court, where she has served with 
distinction for 8 years.
  I alluded to this a moment ago, but in her last election not only did 
she receive the overwhelming majority of the statewide vote, she was 
endorsed by virtually every Texas newspaper editorial board--hardly the 
record of an out-of-the-mainstream nominee. She has the support of 
prominent Democrats in Texas, including former members of the Texas 
Supreme Court such as former Chief Justice John Hill, former Justice 
Raul Gonzalez, and a bipartisan array of former presidents of the State 
bar association.
  The American Bar Association has given her its unanimous and highest 
well-qualified rating, which some in this Chamber have called the gold 
standard.
  I cannot understand nor fathom how any judicial nominee can receive 
all of these accolades from legal experts and public servants across 
the legal and political mainstream unless that nominee is both 
exceptionally talented as a lawyer and a judge who respects the law and 
steadfastly refuses to insert his or her own political beliefs into the 
decision of cases.
  Based on this amazing record of achievement and success, it is no 
wonder that Justice Owen has long commanded the support of a bipartisan 
majority of the Senate while her nomination has lingered since May of 
2001.
  I would like to talk about my own personal perspective on this 
nominee, having worked with her for 3 years. During that time, I had 
the privilege of working closely with Justice Owen. I had the 
opportunity to observe on a daily basis precisely how she approaches 
her job as a jurist, what she thinks about the job of judging in 
literally hundreds, if not thousands, of cases. During those 3 years, I 
spoke with Justice Owen on countless occasions about how to read 
statutes faithfully and carefully and how to decide cases based on what 
the law says, not how we personally would like to see it read or to 
have come out.
  I saw her take careful notes, pull the law books from the shelves and 
study them very closely. I saw how hard she works to faithfully 
interpret the law according to her oath and to apply the law as the 
Texas Legislature has written.
  I can testify from my own personal experience, as a former colleague 
and as a former fellow justice, that Justice Owen is an exceptional 
judge, one who works hard to follow the law and enforce the will of the 
legislature, not her will.
  Not once did I see her try to insert her own political or social 
agenda into her job as a judge. To the contrary, Justice Owen believes 
strongly, as do I, in the importance of judicial self-restraint, that 
judges are called upon not to act as legislators or as politicians but 
as judges, to faithfully read statutes and to interpret and apply them 
to the cases that come before the court.
  It is because I have such a deep admiration for Justice Owen that I 
have taken such a personal interest in talking about her nomination and 
hoping, not beyond hope, that Senator Leahy and others who, I am 
convinced, have profoundly misjudged this nominee will reconsider their 
views and perhaps will take what I have to say today in the overall 
context of the nominee and reconsider her nomination.
  On the morning of Justice Owen's confirmation hearing in the 
Judiciary Committee last month, I published an op-ed in the Austin 
American-Statesman discussing Justice Owen's qualifications for the 
bench.
  I ask unanimous consent to print that op-ed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 8685]]



     [From the Austin American-Statesman, Thursday, Mar. 13, 2003]

                        The Real Priscilla Owen

                     (By John Cornyn, U.S. Senate)

       After 22 months of obstruction, the record on Texas 
     judicial nominee Priscilla Owen will finally be set straight 
     this morning in a U.S. Senate Judiciary Committee hearing. 
     For the second time, Owen comes before the committee and will 
     prove, once again, that she deserves to be confirmed to the 
     5th U.S. Circuit Court of Appeals. The Circuit's jurisdiction 
     encompasses Texas, Louisiana and Mississippi.
       Owen is an impressive attorney and jurist. She graduated at 
     the top of her class from Baylor Law School and edited the 
     Law Review there, during a time when few women entered the 
     legal profession. She received the highest score on the bar 
     exam.
       After practicing law in Texas for 17 years, Justice Owen 
     won a seat on the Texas Supreme Court, and Texans re-elected 
     her in 2000 with 84 percent of the statewide vote. Her 
     nomination has received broad, bipartisan support, including 
     former state Supreme Court justices and prominent Texas 
     Democrats such as John Hill and Raul Gonzalez, 15 former 
     presidents of the State Bar of Texas and many other leading 
     Texans.
       Owen's qualifications and record of accomplishment caused 
     the American Bar Association to unanimously rate her ``well-
     qualified'' for the Federal bench--its highest rating--which 
     some Democrats have called the ``gold standard.'' But even 
     that was not enough for the 10 Democrats on the Senate 
     Judiciary Committee last year who blocked a vote on Owen by 
     the full Senate.
       Democrats on the Judiciary Committee used Owen as a 
     political football last year in an attempt to embarrass 
     President Bush and ridicule Texas during key elections. They 
     tried unfairly to brand the native Texan as an extremist.
       Partisan opponents point out that other judges sometimes 
     disagree with Owen. But there is nothing wrong with 
     disagreement; no two judges agree all the time--which is 
     precisely why the Texas Constitution establishes a Supreme 
     Court of nine justices. When the law is unclear, a good judge 
     like Justice Owen searches in good faith for the right 
     answer.
       As a former justice on the Texas Supreme Court, I often 
     agreed with Owen. When we disagreed, I always found her 
     professional and her rulings based on a fair reading of the 
     law.
       Abortion advocates criticize her rulings on Texas's 
     parental notification law. Unlike more restrictive states, 
     Texas generally requires minors only to notify one parent 
     before an abortion. The criticism is misplaced: Owen did not 
     write the law, the state Legislature did.
       Her opponents claim, disingenuously, that her 
     interpretations of that law are out of the mainstream. Yet 
     the author of the parental notification law, Texas state Sen. 
     Florence Shapiro, filed briefs supporting Owen's view and 
     endorses her nomination to the Federal bench. And among the 
     few parental notification cases heard by her court, Owen 
     dissented less frequently than two other justices. Owen's 
     record is hardly one of an extremist.
       When we set the record straight, it will be obvious in 
     Washington--as it has long been in Texas--that Priscilla Owen 
     is an outstanding person and well-qualified judge who 
     deserves confirmation to the Federal court of appeals. After 
     22 months, Texans and the 5th Circuit have already waited 
     long enough.
       Cornyn, a Republican, is a member of the Senate Judiciary 
     Committee.

  Mr. CORNYN. Senator Hatch, chairman of the committee, also gave me 
the opportunity to chair a portion of the hearing at which Justice 
Owen's nomination was voted out. I publicly thank him for that special 
opportunity to not only express my strong support but to demonstrate it 
at that hearing.
  At the same time I have taken a deeply personal interest in this 
nomination, I also want to step back and carefully consider the 
arguments that have been presented by opponents of the nomination.
  I have mentioned some of those at the outset, particularly in 
response to what Senator Leahy had to say. I am forced to conclude 
Justice Owen's opponents have no real arguments--none that stand up 
under scrutiny; at least none that will withstand scrutiny under any 
reasonably fair standard.
  It bears noting, by the way, that Justice Owen's opponents are the 
same folks who predicted Lewis Powell's confirmation to the Supreme 
Court of the United States would mean ``justice for women will be 
ignored.''
  Her opponents, the special interest groups who oppose her nomination, 
are the same folks who argued Judge John Paul Stevens had demonstrated 
``blatant insensitivity to discrimination against women'' and ``seems 
to bend over backward to limit'' rights for all women.
  Amazing as it may seem, her opponents are the same folks who 
testified that confirming David Souter to the Supreme Court would mean 
``ending freedom for women in this country.'' Then the same folks who 
said they ``tremble for this country, if you confirm David Souter,'' 
even described now-Justice Souter as ``almost neanderthal'' and warned 
``women's lives are at stake'' if the Senate confirms Souter.
  Well, the rhetoric and the histrionics and the lack of credibility of 
those outlandish verbal assaults on judicial nominees sound all too 
familiar because, of course, these are many of the same accusations 
being made against Justice Owen, which are equally unfounded.
  This reminds me of the story of the little boy who cried wolf. After 
these repeated charges, accusations, and shrill attacks--and we have 
heard many of the same directed against Miguel Estrada, without 
foundation--it makes you wonder just how credible these special 
interest groups really are that oppose some of President Bush's highly 
qualified nominees. It also makes you wonder whether these special 
interest groups makes these claims not because they believe they are 
truthful, but because they have another agenda, some other reason for 
making these claims, for scaring people.
  In the particular case of Justice Owen, the attacks are, I am sad to 
say, true to form and conform to past patterns and practice, for they 
are, like the attacks of the past on the judges whose names I have 
mentioned, unfair and without foundation in either fact or law.
  I mentioned just a moment ago how I believe the critics--people like 
the distinguished Senator from Vermont--point out judges sometimes 
disagree about the interpretation of statutes. You may read one judge's 
criticism of another judge's interpretation as ``rewriting a statute.'' 
I hope you will consider those comments and take them into account, as 
I hope others will who currently oppose Justice Owen's nomination. But 
if that is the standard--and I don't think it should be--then such a 
standard would also disqualify numerous U.S. Supreme Court justices, 
whom Owen's opponents are known to adore.
  For example, in a 1971 opinion, Justices Hugo Black and William O. 
Douglas sharply criticized Justices William Brennan, Harry Blackmun, 
and others, stating that the ``plurality's action in rewriting the 
statute represents a seizure of legislative power that we simply do not 
possess.''
  In a 1985 decision, Justice John Paul Stevens accused Justices Lewis 
Powell, Sandra Day O'Connor, and Byron White of engaging in ``judicial 
activism.'' Of course, these are not the only examples that pervade the 
U.S. Reports.
  Would Justice Owen's opponents apply the same standard and exclude 
from consideration or confirmation their own favorite justice from 
Federal judicial service? I imagine not. Fairness only dictates that 
Justice Owen not be made to suffer from this same absurd and 
unreasonable standard either.
  This whole issue reminds me of the scene from the movie ``Jerry 
Maguire,'' when Cuba Gooding, Jr., tells Tom Cruise: ``See, man, that's 
the difference between us. You think we're fighting, I think we're 
finally talking.''
  Well, simply put, this is the way judges talk in opinions, and it 
certainly does not disqualify Justice Owen from confirmation.
  Those who emphasize critical quotes about Justice Owen from other 
justices on the Texas Supreme Court think they are fighting, but 
actually the justices are just talking. They are just judging and they 
are just doing the duty they were asked to do and took an oath to 
perform.
  Mr. President, I note we have about 5 minutes remaining on the clock, 
so I will cut short the remainder of my remarks. I will be back on the 
floor as needed, depending upon how this debate continues. It is my 
hope we will see a unanimous consent agreement to achieve a limit on 
debate, an adequate time certainly, where everybody who

[[Page 8686]]

wants to be heard can be heard on this highly qualified nominee. I hope 
during that debate the people listening--both colleagues in the Senate 
and those listening across this country--will take all of the debate 
into account, both the charges and the answers, some of which I have 
given today, and make their own assessment of the credibility of some 
of these charges--charges which I believe are unfair and unfounded and 
without any merit as regards Justice Owen.
  Finally, let me just say I hope the Democratic minority in this body 
does not choose to make the same ill-considered decision to filibuster 
Justice Owen as they made in the case of Miguel Estrada. I believe 
debate is important. But, of course, sooner or later, we have to, and 
we should, do what the voters of our States have sent us here to do, 
what the Founders of this country, the Framers of our Constitution, 
expected us to do--that is, to vote. They expected the Senate to be a 
body where debate would be favored--and certainly it is that--where 
nothing happens precipitously--and certainly it is that--and where 
enough debate and time can be taken to cool tempers and emotions and 
passions and make the very best decisions we can possibly make on 
behalf of the American people.
  But after everything has been said once, or twice, or five times, or 
10 times, or a hundred times, you would think the Senate should vote. I 
believe the Senate should vote. I believe that is what the Framers 
expected, and I believe they never considered a minority of this body 
could obstruct the will of a bipartisan majority when it comes to the 
nomination of a highly qualified judicial nominee.
  I hope at the appropriate time there will be that unanimous consent 
agreement and we will continue to debate Justice Owen's nomination for 
a reasonable period of time--as long as anyone has anything new to 
say--but, in the end, that we will have an up-or-down vote, which is 
something currently being denied to Miguel Estrada. I certainly hope 
the precedent that has been set now in the case of Miguel Estrada--
which I believe is a black mark on the record of this institution--will 
not be repeated in the case of Priscilla Owen.
  I thank the Chair, and I yield the floor.

                          ____________________