[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10134-10135]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      NOMINATION OF PRISCILLA OWEN

  Mr. KYL. Mr. President, I rise in morning business for a moment to 
speak about the nomination of Priscilla Owen of Texas to the Federal 
bench.
  This is really an extraordinary nomination. It is very troubling to 
me that it appears most of our colleagues on the other side of the 
aisle are willing to keep Justice Owen from getting a vote. In the 
past, even with very controversial votes on Justices to the Supreme 
Court--and I have, for example, Justice Clarence Thomas in mind, and 
there was significant opposition to the confirming of Justice Thomas, 
primarily by Members of the other side of the aisle--the leaders of the 
Democratic Party understood that tradition called for a vote--probably 
knowing they would lose the vote. They, nevertheless, refused to 
support any kind of filibuster and they voted against Justice Thomas's 
confirmation. But he was confirmed 52-48.
  I always respected the things they said at or about the time of that 
confirmation--that they would not ever support a filibuster, regardless 
of their particular feelings about the nominee. I thought that took 
courage, and I respected it, coming, as it did, from some of the key 
leaders of the Democratic side of the Senate. It confirmed to me that 
the tradition of the Senate relationship of comity we have with the 
President in dealing with his nominees, and the importance of our 
responsibilities with respect to confirming Justices of the Supreme 
Court and members of the Federal bench generally, is such that 
partisanship and tactical advantage could be laid to the side for the 
good of the country and these nominations could be voted on.
  Now, there have been votes--sometimes--where the nominee lost. Most 
of the time, when votes are allowed to happen, the nominees prevail. 
But the new situation we have in this body, starting out with the 
President's nomination of Miguel Estrada--and now sadly, it seems, with 
the nomination of Priscilla Owen--we are going to require that unless 
60 Members of the Senate agree to allow a vote, we don't get a vote. A 
filibuster, in other words, becomes the benchmark, the standard for 
confirmation of judges.
  It has never been that way. There has only been one successful 
filibuster, and that was a very strange situation. There has never been 
a partisan filibuster in this body until now. It is especially 
remarkable because, in the case of Justice Owen, for example, one 
cannot claim, as has been claimed with regard to Miguel Estrada, that 
her record is unknown or unclear, or that there is more information 
that needs to be gleaned. She appeared not once but twice before the 
Judiciary Committee. The reason I wanted to take the floor briefly 
today is to say to my friends I don't think I have ever seen a nominee 
who handled herself or himself better than Justice Owen did at those 
hearings. She was forthcoming, brilliant in her exposition of the law, 
measured, and she clearly has the temperament to be a good judge.
  She has been serving as a justice of the State Supreme Court of 
Texas. She has the support of another former justice of that court, 
Judge Gonzales, who obviously is now acting as the President's counsel, 
and the support of Democrats and Republicans alike.
  The American Bar Association, as with Miguel Estrada, has recommended 
her for confirmation. She stayed at the hearing for as long as Members 
wanted her to stay. She answered all of the questions. So the same 
argument cannot be made that has been made about Miguel Estrada.
  In fact, one of my colleagues on the other side of the aisle made it 
clear, in discussing the nomination of Miguel Estrada, that the only 
thing standing in the way of a vote--they would not necessarily commit 
to voting for him but at least allowing a vote on him--was producing 
this information which they say they want from the Justice Department 
about his prior employment. But for that, that vote could occur, 
seeming to suggest that the same thing would be the case with any other 
nominee--that as long as the information was forthcoming and they knew 
about the individual, that therefore they could vote.
  In fact, the last line, after this colleague talked to others in the 
Democratic Party, states: Look, if we can just get this information, do 
you think we can vote? And the answer was: Affirmative, to a person, 
because, frankly, then we would know for whom we were voting.
  There was no commitment to vote for Miguel Estrada but at least they 
would allow the vote to go forward because they would then know ``for 
whom we are voting.''
  Well, we do know who we are voting for in the case of Justice Owen. 
Her record is out there for everyone to see. There has never been a 
suggestion by anybody that she needs to produce more in the way of a 
record. It is there to be evaluated.
  I suspect the reason Members on the other side of the aisle will not 
allow her to come to a vote is because they fear she will be more 
conservative as a justice than they would like to see. Let's be honest 
about it.
  I voted for numerous circuit court nominees of President Clinton 
knowing they were far more liberal than I am. On my own circuit, the 
Ninth Circuit

[[Page 10135]]

Court of Appeals, I voted for several who I knew were more liberal, and 
their voting record subsequently has borne that. They were confirmed. I 
voted for them. I felt President Clinton was the President; he was 
elected by all of the people. He had the right to nominate his own 
people, and if they were otherwise qualified, then I ought to vote for 
them. That has always been the tradition, that has always been the 
standard, by which we have judged these candidates for circuit court. 
So it is very troubling now to have a new standard imposed on us.
  I come this morning to note that we are soon going to go back to the 
nomination of Priscilla Owen. I implore my colleagues to think about 
what they are doing by creating the 60-vote standard. There is no way 
that can be the standard only for Republican Presidents and not 
Democratic Presidents. It is either going to be the standard or it is 
not. If it becomes the standard for all Presidents, then I believe it 
is only a very short period of time before the confirmation process is 
going to grind to a halt because there will always be political 
differences.
  By and large, that is what divides the Democrat and Republican 
Parties. We view life a little bit differently. We are all great 
Americans. We all support the troops and all want the judiciary to 
succeed, but we have some philosophical differences. That is fine, but 
they should not be the basis for not confirming judges or, more 
importantly, for requiring 60 votes to confirm because it is a very 
rare Senate in which one party has more than 60 votes in controlling 
the Senate. So it is basically going to grind the confirmation process 
to a halt.
  That is a breach of our comity to the judicial branch; it is a breach 
of our obligations to the American people, to ensure justice is done. 
We know that justice delayed is justice denied. We have already heard 
from the Supreme Court Chief Justice about the emergencies that exist 
because we cannot fill these vacancies.
  We have a crisis. We have to find a way to resolve this crisis. I 
suggest that the simplest way to do this, that is fair to everybody, is 
the way we have always done it: Express yourself, allow the vote to 
occur, vote your conscience and then move on. But do not hold up the 
votes simply because you have a philosophical disagreement with the 
President who nominates these candidates.
  I urge my colleagues to think carefully because in the case of 
Priscilla Owen, as the bar association found, as the Judiciary 
Committee concluded in its most recent action by passing her out on the 
Executive Calendar, she is a fine justice. She would make a fine member 
of the Federal bench. There is no legitimate reason to oppose her.
  I urge my colleagues to think about this as we focus on her 
qualifications, on the relationship between the Senate and the House, 
and on the obligation we have to the courts and to the American people. 
This is serious and we ought to be acting in a serious way. I urge my 
colleagues to support the nomination of Justice Priscilla Owen.

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