[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10313-10323]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF PRISCILLA OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             FIFTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session. The clerk will report the pending 
business.
  The legislative clerk read the nomination of Priscilla Richmond Owen, 
of Texas, to be United States Circuit Judge for the Fifth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will now be 1 
hour of debate divided in the usual form, prior to the vote on the 
nomination of Priscilla Owen to be circuit court judge for the Fifth 
Circuit.
  The Senator from California.
  Mrs. BOXER. Mr. President, I again thank my colleague for allowing me 
to move forward on this because of a commitment to a markup in the 
Commerce Committee.
  I rise to express my deep concerns regarding the nomination of 
Priscilla Owen to the U.S. Fifth Circuit Court of Appeals. I have noted 
there is a lot of politics around this particular nomination, as there 
is around the Miguel Estrada nomination. I read the Republican Party is 
planning to run ads against those of us who vote against these 
nominees, saying we do not want to see diversity on the bench.
  Let me say that is extraordinary because as someone who worked so 
hard to support qualified minorities and women, I have been praised by 
many in my State for doing just that. But I have to tell you, if you 
place on the bench a minority or a woman who has animosity toward the 
goals of minorities and women, you are dealing a great setback to both 
minorities and women. I will make that point when I have to.
  But as for today, I point out I voted for well over 90 percent of the 
President's appointees up to this point in

[[Page 10314]]

time, but I cannot support this nomination. This is why.
  President Bush pledged to govern from the center. Those were his 
words. Yet this nominee is so far from the center that she is almost 
off, to the right. She is barely on that line at all. That differs from 
the mainstream values of my constituents and I believe of the majority 
of Americans.
  In such important areas as reproductive rights, civil rights, 
consumer rights, and environmental protection, this nominee has 
legislated from the bench. She inserted her personal beliefs into the 
judicial process.
  I have to say even members of her own party, and even Mr. Gonzales, 
who is White House counsel, has criticized her for that.
  What is particularly troubling to me is that I believe in the advice 
and consent role of Senators in the nomination and the confirmation of 
judicial nominees of any President, be that President a Democrat or a 
Republican. As we have heard many times from historians, the selection 
of judges and the confirmation of judges is a shared responsibility. So 
it is not a question of whether they are Clinton judges or Carter 
judges or Bush judges; they are America's judges. As such, there has to 
be a role for the Senate and for the executive.
  This President knew very well that this particular nominee was well 
off the center. He knew very well there was deep objection to her. She 
was voted down once before. Yet he comes right back with this 
nomination.
  I have made it a priority of mine in this Senate to stand up for the 
mainstream values of people of my State. So I cannot possibly support 
this nomination. I wish to outline a case that illustrates Priscilla 
Owen's callous attitude toward individuals who are fighting against 
large corporate interests and their well-paid legal defense teams.
  A young man in Texas was paralyzed in a car accident. His injuries 
were made much worse because of a malfunctioning seatbelt, and his 
family took the automaker to court. The case made its way to the Texas 
Supreme Court on appeal.
  Judge Owen waited 16 months before issuing a decision in that case, 
in that Ford Motor case. When she did, she essentially sent the case 
back and created a substantial roadblock for this paralyzed teenager to 
receive funds to pay for his medical care. There were 2 years of delay 
on a procedure issue that was never raised in the case but was raised 
by her, and this young man died. This young man died. His family 
couldn't afford around-the-clock monitoring of his ventilator. This is 
a truly tragic example of delayed justice.
  I could go into detail about the fundamental right to choose in which 
Justice Owen set up a barrier to a young woman who was seeking to end 
her pregnancy. When she issued her opinion, it dealt with having to 
seek religious counseling, which was not part of the law. In that case, 
Judge Gonzales, who as you know is White House counsel to this 
President, said:

       To create hurdles that simply are not to be found in the 
     words of the statute would be an unconscionable act of 
     judicial activism.

  That is a quote from Mr. Gonzales regarding Judge Priscilla Owen, 
criticizing her for judicial activism.
  I know the issues of judges are very touchy. Senator Hatch, when 
President Clinton was President, told me--he said it with a twinkle in 
his eye: Senator, don't send me judges that are outside the mainstream.
  You know, I didn't. Senator Hatch helped me. He helped me get these 
wonderful people confirmed.
  Now we have a circumstance where we are not getting our judges from 
the mainstream. We are getting some. I have supported 90 percent of 
these judges. But in this case----
  Mr. HATCH. Will the Senator yield for a question?
  Mrs. BOXER. I certainly will. I just want to finish my thought.
  In this particular case, I think this is a nominee who is outside the 
mainstream and who was criticized for that by the President's White 
House counsel.
  I am happy to yield to my friend.
  Mr. HATCH. Is the Senator aware that there is an ample record that 
even Judge Gonzales admits he was not criticizing her as an activist, 
he was criticizing the court. She didn't write the opinion. That has 
been more than established. Yet we keep hearing Senators on the floor 
of the Senate and elsewhere saying Judge Gonzales directly criticized 
her. He didn't. I think the record is pretty clear on that.
  Mrs. BOXER. I will have printed in the Record my understanding of 
what actually happened here.
  In the case of the 2-year delay, I find that was unconscionable.
  The point is this: I will support candidates who are from the 
mainstream. I want to do that. The chair of the Judiciary Committee has 
changed his attitude about who is going to get through this Senate. 
During the Clinton years, you had to have someone from the mainstream. 
During the Bush years, you can have people from the far right of the 
spectrum. My constituents do not think that is fair. We had a situation 
during the Clinton years that two Senators had to sign off on a judge 
before there would even be a hearing. Oh, no, now the committee has 
changed its mind. Suddenly, because they have a Republican in the White 
House, two Senators don't have to sign off and they are pushing forward 
with hearings.
  It is wrong. It is not right. I would say regarding this particular 
nominee, you have very moderate Members of this Senate saying she is a 
judicial activist and any words to the contrary can be disproven by her 
record. I think this is someone who does not come from the center, does 
not come from the mainstream. I think this is a President who, in this 
case, has not sought the advice and consent, really, of the Senate. He 
is essentially saying we don't care that you Democrats--none of you--
vote for her. I should not say none--maybe one. Certainly none on the 
committee. We are going to go right back and bring her back here.
  This is a lifetime appointee. I think when we make these types of 
appointments, we have to make sure the person who is being nominated is 
not going to be an activist, make sure the person has demonstrated the 
types of qualities we want on the bench.
  I don't think it is a quality you want on the bench when a woman 
waits 2 years before she renders a decision in a case of a paralyzed 
teenager whose parents didn't have the money to keep their teenager on 
a ventilator. And the record shows otherwise? I know what the record 
is. We have people combing that record. That is why you are going to 
see very many women in this Senate take this floor. I will repeat, when 
you put a woman on the bench who has a record of not really helping 
women--I have seen it in this case, and I have seen it with other 
nominees who will be coming before us. I will take a second seat to no 
one in the advancement of women. Every time I have sought the support 
of bipartisan women's groups, I have gotten it because of that. Anyone 
who says Democratic women coming here speaking up against this nominee 
are not for women ought to study that record as well.
  I think the Federal courts deserve better than this nominee. I think 
the American people deserve better than this nominee. I could go on and 
on about the record.
  Let me briefly outline a case that illustrates Priscilla Owen's 
callous attitude towards individuals who are facing large corporate 
interests and their well-paid legal defense teams.
  A young man in Texas was paralyzed in a car accident. His injuries 
were made much worse because of a malfunctioning seatbelt. His family 
took the automaker to court. The case made its way to the Texas Supreme 
Court on appeal. Justice Owen's unexplained 16-month delay in writing 
the court's opinion in the Ford Motor Company v. Miles case created a 
substantial roadblock for this paralyzed teenager to receive funds to 
pay for his medical care. Priscilla Owen was responsible for two of the 
five years of delay and finally issued a decision that was based on a 
procedural issue never raised in the case. All of her colleagues on the 
court believed she had improperly delayed the case.

[[Page 10315]]

  The young man died approximately seven years after his accident 
because his family could no longer afford round-the-clock monitoring of 
his ventilator. To date, his family has not received any funds. This is 
truly a tragic example of delayed justice. This is an unprecedented 
attempt to manipulate the Senate's role in the confirmation process. 
The Judiciary Committee rejected this nominee last year.
  The committee performed its constitutional rule and voted against 
Justice Owen. However, the White House renominated her to the same 
position. How could they not have gotten the message the first time?
  This process makes a mockery out of the Senate's constitutional 
``advice and consent'' role. The blatant disregard of the Senate's 
constitutional role is leading us into uncharted territory. Let me say 
this again that Justice Owen was rejected by the Senate Judiciary 
Committee--10-9 on September 5, 2002. The long list of concerns about 
her record that caused the majority of committee members to vote 
against her last year still exist.
  I have made it a priority in my career to stand up for consumers and 
those who find themselves up against huge corporate interests. The 
people of California know all too well how difficult it is to take on 
powerful companies. The playing field is far from balanced.
  In other areas, Justice Owen has consistently attempted to chip away 
at women's fundamental reproductive rights.
  In the case of Doe I--2000--Justice Owen argued that a minor must 
meet a restrictive standard to establish that she is sufficiently well 
informed about her choice to have an abortion. Among other things, she 
would have to show that she had received counseling about the religious 
arguments surrounding abortion, despite the fact that the law in no way 
involves religious considerations.
  The Texas statute states that a minor need not inform her parents 
before seeking an abortion if the court finds one of three things.
  No. 1, that the minor is mature and sufficiently well informed to 
make a decision; or
  No. 2, that parental notifications would not be in her best interest; 
or
  No. 3, that notification may lead to physical, sexual, or emotional 
abuse.
  That is all it says.
  I have to go to a markup. But we can try to rewrite the facts all we 
want. We can rewrite and put another spin on it. We can say, oh, the 
criticism wasn't toward her, when in essence my belief is that was her 
point of view that was being espoused. But that is fine. I understand 
this is a fight. I am willing to take this fight. I was very proud to 
say that the people in my State want me to stand up in these situations 
because it goes to the heart of the role of the Senate and it goes to 
the heart of what kind of country we will have. It goes to the heart of 
what kind of judges we will have. Will they be compassionate? Will they 
be fair? Will they stand up for the rights of women? Will they stand up 
for the little guy against the big corporation? You have to look at 
this particular record. You are not going to find someone who doesn't.
  I thank my colleague, Senator Hatch. I know he strongly disagrees 
with me. I think that is fine. But he is very kind to allow me to go 
first so I can go to my hearing for the reauthorization of the FAA.
  Thank you very much. I yield the floor and reserve the remainder of 
the Democratic time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have listened to my distinguished 
colleague. I have to say that if there has been any attempt to rewrite 
the facts, it is by those who have spoken as my friend from California 
has.
  First of all, they seem to think on that side that they advance women 
when they only advance women who agree with their particular position. 
They don't even realize that Priscilla Owen agrees with many of their 
positions as she does with other well-thought-out positions. They think 
the advancement of women depends only on if you have women who are 
going to be pro-abortion.
  I might add that I don't know where Priscilla Owen is with regard to 
abortion because she has not told me. She has not told the committee 
that, but she has said what has to be the hallmark of what judgeship 
nominees should say--that she will uphold Roe v. Wade as a court judge, 
which is all you can ask of anybody. Regardless of what her personal 
views are, she is going to uphold it. Yet we hear this argument that 
they are advancing women because they are keeping a woman who is 
unanimously well qualified by their gold standard--the American Bar 
Association, which is not a conservative organization by any stretch of 
the imagination--they are keeping her from serving this country. They 
continue to misquote Judge Gonzales as though he was directly attacking 
Priscilla Owen when he himself admits he was not--and other judges from 
that Supreme Court of the State of Texas say he was not.
  Senator Cornyn, who served with her and was sitting beside her, said 
those criticisms weren't directed directly at her. That is distortion. 
It is unworthy of this body. But it is going on all the time.
  On the tort case--I know the distinguished Senator from Texas is 
here, and I will yield to her as soon as she is ready--they bring up 
again the distortion that she held a case up until this young boy died. 
Let me make some important observations about the majority opinion 
Justice Owen wrote in Ford Motor Company v. Miles because I think there 
has been some serious confusion about the case and it is very apparent 
that the distinguished Senator from California is confused. This is the 
case involving a car accident victim named Willie Searcy who, 
tragically, passed away years after his accident but before the 
litigation was resolved. I have addressed this issue over and over. But 
it looks as if I must go through it again.
  The accusation was once made that the victim passed away before the 
Texas Supreme Court ruled on his appeal. Justice Owen more than set the 
record straight last July. The victim passed away 3 years after the 
opinion was issued. Yet we hear this again on the floor.
  When are the Democrats going to quit distorting President Bush's 
nominee's record?
  I have to admit that I used to think this was--well, just 
interesting. But it has gone on and on. And after you show them the 
facts, they still distort it. I would have thought that issue moot 
because the opinion was issued 3 years before he died. But some 
interest groups continue to make this allegation in spite of the facts. 
I suspect that the New York Times just copies the letters in the 
editorials of People for the American Way. It is unbelievable.
  The allegation was made that Justice Owen's opinion was improper 
based on the issue of venue; in other words, the question of whether 
plaintiff's lawyers filed the case in the county that didn't have 
jurisdiction over the dispute. Some allege that this issue had not been 
raised by the parties in the lower courts. Again, Justice Owen set the 
record straight in no uncertain terms. The venue issue was properly 
considered in the Texas Supreme Court. The entire court agreed that it 
was appropriate for the court to resolve the venue issue.
  Again, they are wrong, and they are distorting this case.
  I don't think there is any reason for that type of distortion. We 
have explained it over and over. Justice Owen was more than clear. Yet 
they are smearing this judge who has the highest rating of the American 
Bar Association--unanimously well qualified. That doesn't happen very 
often.
  It must also be emphasized that under Texas law the court was 
required to address the issue of venue. The court found that the case 
was filed in the wrong venue. It was required to reverse the verdict. 
It had no other option. The Texas statute governing this issue read:

       On appeal from the trial on the merits, if venue was 
     improper, it shall in no event be harmless error and shall be 
     reversible error.

  In other words, the court must reverse if improper venue is found.

[[Page 10316]]

  In all honesty, to ensure there is no confusion about the problem 
with venue, let me say there was no question but that Dallas County was 
the proper place to bring the suit because the plaintiffs lived there, 
bought their truck there, and that is where the accident took place. 
Inexplicably, the lawyers filed in another county, Russ County--having 
absolutely no connection whatsoever to the plaintiffs or the accident. 
It looked like forum shopping--something that should not be permitted 
by the courts, under any circumstances, no matter how badly a person 
might have been injured.
  If we read between the lines, we can see that the lawyers were forum 
shopping--looking for a favorable jury--something that should not be 
allowed by any court in this land, especially when it is clear cut that 
the venue was in Dallas County.
  It must also be noted that the court's decision did not prevent the 
case from being filed in Dallas County or refiled.
  I am a little tired of the smearing of these nominees. I am not 
saying intentional smearing, although it is reaching that point when 
you have to say over and over, when the justice explained herself and 
made it so abundantly clear, and we have made it over and over 
ourselves, and the record is so doggone clear. Why would we have, time 
after time, people coming out here saying they are advancing the cause 
of women by smearing this woman justice and keeping her from serving 
her country on the circuit court of appeals?
  One last thing: The Senator also complained because she has objected 
to another nominee when we have the blue slip back from the other 
Senator from the State. There has never been a rule, since Senator 
Kennedy was the chairman of the committee and was the one who 
established the rule that I followed, that says a single Senator can 
stop a circuit court of appeals nominee of the President of the United 
States.
  Senator Kennedy's ruling, even with regard to district courts, was 
that the opinions of the Senators with regard to blue slips will have 
great weight, but they will not be dispositive, especially where there 
is no reason for the withholding of a blue slip. And in this case, 
there is basically no reasoning, and in this other case of Carolyn 
Kuhl.
  So I want to set the record straight there. No President would agree 
to, and this Senate should not agree to, one solitary Senator, for 
political reasons, refusing to return a blue slip on a circuit court of 
appeals court nominee where that circuit court of appeals nominee, once 
on the court, will be representing the whole country, but, of course, 
all the States in that particular circuit.
  I notice the distinguished Senator from Texas is in the Chamber, so I 
will yield----
  Mrs. HUTCHISON. Up to 10 minutes.
  Mr. HATCH. Up to 10 minutes to the distinguished Senator from Texas. 
I will continue my remarks afterwards.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Thank you, Mr. President. And I thank the chairman 
for yielding time to me to talk about someone I know well, someone I 
have observed over the years, and who is one of the most outstanding 
people I have ever seen nominated for a Federal bench. She is a legal 
scholar. She has the temperament for a judge. And I think nothing shows 
her temperament better than her demeanor during the ordeal through 
which she has been put.
  She has been held up since May 9, 2001. She has had two hearings--not 
one--in which she was grilled by members of the Judiciary Committee, 
and she came out spotlessly clean. And even Members who today are going 
to vote against her have said she is one of the most qualified legal 
scholars they have seen before their committee. In fact, I have to say, 
I think there are a number of Democrats who really think she should be 
confirmed, but they are being held back by the special interest groups 
and the pressures not to confirm this qualified woman.
  Justice Priscilla Owen is an 8-year veteran of the Texas Supreme 
Court. She graduated cum laude from Baylor Law School. She earned the 
highest score on the Texas bar exam that year. She was a practicing 
lawyer before she was nominated for the supreme court. And she has been 
elected since her nomination and won over 80 percent of the vote of 
Texans and was endorsed by every newspaper in Texas.
  She enjoys broad support. The American Bar Association, as the 
distinguished chairman mentioned, has voted her unanimously well 
qualified. 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 knowhow. This is 
exactly what we want in judges, people who have been in the real world, 
who have practiced law, who know what it is to be in a courtroom and 
see two sides of the issue. She also has the academic qualifications 
that you would want in a judge.
  I cannot think of any better qualification. She has been supported 
across the board by people with whom she has served, both Democrat and 
Republican.
  Let me read the words of former Texas Supreme Court Chief Justice 
John Hill, who also served our State as attorney general. He is a 
Democrat. He denounced the false accusations about Priscilla Owen's 
record by special interest groups. He said:

       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. He said:

       I know Texas politics and can clearly say that these 
     assaults on Justice Owen's record are false, misleading, and 
     deliberate distortions.

  In addition, another judge with whom she served on the Texas Supreme 
Court, Raul Gonzales, gave her a sterling endorsement.
  Two former State bar presidents who are women--there have not been 
but three or four women State bar presidents, one of whom is Harriet 
Miers, who supports Justice Owen; she is now counsel to President 
Bush--yesterday Colleen McHugh, a Republican, a former State bar 
president, and Lynne Liberato, a Democrat, a former State bar 
president, ringingly endorsed Justice Owen.
  These are the people who have seen her in action, who have seen her 
opinions, who have worked before her court on both sides. They have 
won, they have lost, and they have given her the ringing endorsement.
  I think there are two areas where the other side has distorted the 
facts. It has continually been quoted, Judge Gonzales' opinion 
dissenting from the opinion of Justice Owen--hers was the dissent; his 
was the majority--in which he said he thought she was being judicially 
active. But Judge Gonzales is the very person who recommended her to 
the President for the Fifth Circuit slot because he looked at the 
totality of her record, and he felt that she was the best qualified 
person for this nomination.
  He held her in such high regard that he singled her out and took her 
from the supreme court to suggest that she should be on the Fifth 
Circuit because he knows that she follows the law as she sees it and 
does not allow her personal opinions to interfere, which is why I think 
she has been attacked by the pro-abortion groups who misunderstand her 
opinions.
  Texas has a parental notification statute on abortion. The law was 
passed in the year 2000. This is not parental consent; it is parental 
notification. So in the years since the law was passed, the supreme 
court has been called upon to look at the lower court opinions. Justice 
Owen has voted with the majority 11 times out of 14. And, in fact, out 
of those 14 cases that have come before the court, only 3 have reversed 
the lower court opinions.
  I think the reason Justice Owen has so adhered to the lower court 
fact finding is for the very reason we want her on the bench; that is, 
that she believes the trier of fact is the court that should make the 
decisions on fact; and unless there is a reason to believe that lower 
court has misconstrued the intent of the legislature under the law, 
that court should not be reversed. Even if she believes that maybe the 
court

[[Page 10317]]

made a mistake on the facts, she does not put herself in the place of 
the fact finders since she is not the one who heard the facts in 
person.
  She is not a judicial activist. She is the opposite. In fact, her 
record shows that she has gone far beyond what most judges do not to 
put her personal opinions in place. I do not know what her views on 
abortion are. She has never told anyone what her views on abortion are 
because she does not ever intend to let her personal views skew an 
opinion on this very sensitive issue.
  She also said, in defending her record on these issues, that she took 
the Supreme Court of the United States interpretation of the words that 
would define when a young woman under the age of consent would be able 
to make the decision on her own without notifying her parents. She took 
the U.S. Supreme Court, which is exactly what a judge should do.
  So I think Justice Owen has been put into the political meat grinder 
in Washington, DC. Anyone in Texas you would ask--now, I am not saying 
that everyone in Texas would say she is their choice; I am not saying 
that because I have not talked to everyone in Texas about her in 
particular, but the vast majority of people who know her best, who have 
practiced before her court, who know the supreme court and what it 
takes to be a good judge, they have come up here, Democrats and 
Republicans--not just Democrats and Republicans, leading Democrats and 
Republicans, the former Democratic attorney general, the former 
Democratic supreme court chief justice, and another former Democratic 
justice on the supreme court--they have come forward to say she should 
be confirmed, that they support her, that she is the right kind of 
person for a judgeship.
  I hope we will be able to meet the 60-vote standard the Democrats are 
now setting for many judges. That 60-vote standard is wrong. It is 
against the Constitution. She deserves a vote. She should have the 51-
vote standard as the Constitution intended. I hope the Democrats will 
give her that chance. She is the most qualified person for this 
position we could ever put forward. I know her personally. I know her 
integrity. I know what a wonderful human being she is. I have seen her 
demeanor as she has gone through this meat grinder.
  I hope the Senate will give her the dignity she deserves and confirm 
her today.
  Mr. HATCH. Madam President, how much time do I have?
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Utah has 11 
minutes remaining.
  Mr. HATCH. Let me continue then.
  This body is in danger of blowing up. I just read a letter Senator 
Schumer sent to the President yesterday suggesting that we should take 
this authority from the President to nominate the judges and set up 
judicial nominating commissions in every State. There is no President 
in his right mind who would consider doing that. There is no reason a 
President should. To make a long story short, the Senate is broken. The 
process is broken. Senator Schumer admits it. He writes:

       Dear Mr. President: Six months ago you described the 
     judicial nomination confirmation process as ``broken'' and 
     declared we have a ``duty to repair it.'' I could not agree 
     with you more.

  The other side of this body understands this process is broken 
because they are filibustering now two of the President's nominees for 
the first time in history.
  Both of these nominees, Miguel Estrada and Priscilla Owen, have 
unanimously well qualified ratings from the American Bar Association, 
which during the Clinton years the Democrats were saying was the gold 
standard. Once they have a qualified rating, which is a passable 
rating, they should be confirmed. These two not only have qualified, 
they have well qualified, and unanimously. Only a select few have 
achieved that rating. It is outrageous that we hear again and again, 
without a single pause, that a nominee rated unanimously well qualified 
for Federal judicial service is ``out of the mainstream.''
  Those who have served with her on the Texas Supreme Court know that 
charge is false. Former Texas Supreme Court Justices John Hill, Jack 
Hightower, Raul Gonzalez, all Democrats, call Justice Owen unbiased and 
restrained in her decisionmaking, and they praise her impeccable 
integrity, character, and scholarship.
  Senator Cornyn, whom we all respect, who served with Justice Owen on 
the Texas Supreme Court, has made it clear that the charge is false. 
Alberto Gonzales, who also served with Justice Owen, said the charge is 
false. Senator Cornyn and Judge Gonzales believe Justice Owen is a 
terrific judge. The two individuals who are repeatedly drafted as 
prosecution witnesses to discredit Justice Owen as an activist judge, 
Judge Alberto Gonzales and Senator Cornyn, are actually two of her 
biggest supporters. All you can conclude is that they are smearing this 
very fine, unanimously well qualified woman in their comments and also 
through this filibuster. Nothing can change the fact that the two they 
use to criticize her are her biggest supporters. I fit in that 
category, too, as one of her biggest supporters.
  No matter how hard they try, they cannot distort that. The 
unqualified endorsement of 15 past presidents of the Texas State Bar, 
Democrats and Republicans alike, also shows that the charge is false. 
Justice Owen is a well qualified, mainstream jurist. And to say that 
the bar association is wrong, all these Democrats down in Texas are 
wrong, shows the paucity of the argument.
  Some criticize a few rulings made by Justice Owen in some parental 
notification cases which involve a minor girl seeking an abortion. This 
is really the basis of it because my colleagues on the other side are 
getting so enamored with abortion that that becomes the single litmus 
test on every judge. And they are so afraid that this woman judge might 
be pro-life, even though I don't know what she is and she didn't say 
what she believes, but she did say she would follow Roe v. Wade as 
settled law. I don't know what more you can have. And because she is 
unanimously well qualified for honor, integrity, impeccability, and so 
forth, we can take her word for it.
  Texas happens to have a statute requiring that a minor notify one 
parent before she has an abortion. The statute allows the minor girl's 
parents to be involved in this very important decision. Our colleagues 
on the other side apparently don't think that is a good idea. It 
upholds the right of parents in the upbringing and care of their 
children, and the American people support the principle.
  According to a January 2003 CNN/USA Today/Gallup poll, 73 percent of 
Americans favor requiring minor girls to obtain parental consent before 
obtaining an abortion. The Texas statute doesn't even go that far; it 
requires only notice. This broad support is also found in the 
individual States. Currently, 32 States across the country enforce laws 
requiring parental involvement in a minor girl's decision to obtain an 
abortion. Fully 18 States enforce parental consent laws, including 
Louisiana, Massachusetts, Michigan, North Carolina, North Dakota--where 
both parents must consent--Rhode Island, and Wisconsin. These are 
States represented in the Senate by both Republican and Democratic 
Senators, pro-life and pro-choice Senators. These are States inhabited 
by people of a variety of beliefs and positions.
  Simply being pro-life or pro-choice does not make a person out of the 
mainstream. That is the only argument they have. How can you call 
somebody who has a unanimously well qualified rating from the American 
Bar Association out of the mainstream? That is the height of absurdity, 
and it shows the ridiculousness of the argument being used against her.
  Another 14 States have less stringent parental involvement laws 
requiring parental notification before a minor has an abortion, 
including the States of Arkansas, Delaware, Georgia, Iowa, Maryland, 
Minnesota, Texas, and West Virginia. New Hampshire, which is known as a 
pro-choice State because of widespread support for abortion rights

[[Page 10318]]

among State citizens, is close to passing a parental notification law. 
Notably, the bill's main sponsor in New Hampshire openly supports 
abortion rights.
  Even in States with no laws requiring parental involvement in a 
minor's abortion decision, popular support for such legislation runs 
high. In the State of Vermont, more than 70 percent of State citizens 
support requiring a minor to notify her parents before having an 
abortion. You would think anybody with a brain would want to do that. 
These are kids. The parents ought to be involved.
  But by comparison, parental consent and notification laws are 
consistently opposed by the same abortion rights interest groups. These 
organizations are the ones that do not reflect the thinking of 
mainstream America on parental rights. Mainstream America supports the 
fundamental rights of parents in the rearing of their children, 
including the right to be involved in their minor daughter's 
reproductive choices.
  The abortion rights interest groups, as they do over and over, 
predict doom and gloom if Justice Owen is allowed to take a seat on the 
Federal bench. They trot out the excited rhetoric about the nominee's 
hostility and extreme insensitivity to abortion rights. Occasionally 
they even top themselves. According to one group, Justice Owen must be 
opposed because ``at this time of global turmoil, we don't need 
extremists in the courts willing to make a Dred Scott decision in the 
area of women's fundamental rights.''
  Give me a break. I would be ashamed to make those arguments, yet that 
is what they are doing. They are smearing this woman with these kinds 
of arguments that fly in the face of the vast majority of people who 
believe parents do have some role with regard to their children, 
especially in something as important as whether or not their daughter 
should have an abortion.
  By now we know these outside groups' track record leaves much to be 
desired when it comes to predicting how judicial nominees will vote. 
These groups have cried wolf far too many times to be taken seriously 
any longer. We know they missed on Justice David Souter, Justice John 
Paul Stevens, Justice Lewis Powell, when they predicted at their 
hearings they would ignore the Constitution and put an end to freedom 
in America. No matter how much some would prefer to argue the point, 
these cases were not about the right to an abortion.
  The opposition to Justice Owen may show that the abortion litmus test 
is alive and well, but there was never any question about the girls' 
right to an abortion in these cases.
  Indeed, Justice Owen argued in one such case that, based on Supreme 
Court precedent, a statute requiring a girl to notify both parents 
would also be questionable under the Constitution. She even went that 
far toward their position. Justice Owen recognizes a woman's right to 
obtain an abortion. She said so explicitly. Yet, they treat her like 
she is going to throw out Roe V. Wade all by herself and ignore 
precedent.
  Justice Owen has been well within the mainstream of her court in the 
14 decided notification cases, joining the majority judgment in 11 of 
those cases. And out of the close to 800 bypass cases since the Texas 
statute was passed, a mere 12 girls out of 800 have appealed all the 
way to the Texas Supreme Court. These are usually the toughest cases. 
The Democrats take the position that they ought to all be decided 
against the parents and in favor of the girl or of abortion rights. My 
gosh. By this time, two courts--the trial and the appeals courts--have 
already considered the bypass petition and turned it down. In other 
words, the right of a court to give a girl a bypass to avoid having to 
tell her parents. In these cases, they turned them down. Given the 
deference appellate courts must pay to the findings of the trial court, 
the decision is likely to affirm the lower court rulings denying a 
bypass. That should be no great surprise.
  Certainly, Justice Owen and her colleagues on the Texas Supreme Court 
disagreed in some cases--that is no surprise either; that happens on 
State supreme courts--but in all cases there was a genuine effort to 
apply applicable precedent. These parental consent cases show Justice 
Owen takes Supreme Court precedent seriously. She looks to precedent 
for guidance, she cites it, and she makes a good faith effort to apply 
it to the case at hand. She is a judge who defers to the legislature's 
considered judgment in their policy choices and earnestly seeks to 
ascertain legislative intent in her ruling. None of her opinions, to 
quote the Washington Post, ``seem[s] to us [to be] beyond the range of 
reasonable judicial disagreement.''
  What is beyond the range of reasonable disagreement is the charge 
that Justice Owen is not qualified to sit on the Fifth Circuit Court of 
Appeals.
  A native of Texas, Justice Owen attended Baylor University and Baylor 
University School of Law. She graduated 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 
thereafter worked for the next 17 years as a commercial litigator 
specializing in oil and gas matters.
  Justice Owen is known for her services for the poor and for her work 
on gender and family law issues. Justice Owen has taken a genuine 
interest in improving access to justice 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 served as one of the editors of the 
Gender Neutral Handbook. Incredibly, this is the same woman the usual 
interest groups mischaracterize as ``anti-woman.''
  Justice Owen's confirmation may not be cheered by the well-funded and 
partisan Texas trial-attorney interest groups, but she is backed 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.''
  Justice Owen has served on the Texas Supreme Court since 1994, 
winning reelection to another 6-year term in the year 2000 with 84 
percent support.
  This kind of support--running across the board and across party 
lines--leaves no doubt that Justice Owen is a fair-minded, mainstream 
jurist.
  Mr. President, Justice Priscilla Owen will be a terrific Federal 
judge. As I said earlier, we have a choice this morning. Will we 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 will conclude by saying, look, when I hear on the other side that 
they are standing up for women's rights, while they are rejecting one 
of the leading woman jurists in the Nation who has said she will uphold 
their wonderful standard of Roe v. Wade, I have to say that is pure 
bunk. It is time to quit smearing these judges.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, how much time is available to the Senator 
from Vermont?
  The PRESIDING OFFICER. There are 18 minutes 15 seconds remaining.
  Mr. LEAHY. I thank the distinguished Presiding Officer.
  Madam President, I regret we have to be here today, but we are here 
because the President has picked another fight with the Senate by 
renominating a divisive and controversial activist to another circuit 
court. That is regrettable. The Republican leadership in the Senate is 
forcing this confrontation at this time, and it is neither necessary 
nor constructive. I am sorry the White House has chosen to make these 
matters into partisan political fights, rather than working with 
Senators on both sides of the aisle to fill judicial vacancies with 
qualified consensus nominees.
  I have been here with six Presidents. Five of them, from both 
parties, would

[[Page 10319]]

work with members on both sides of the aisle for consensus nominees. 
This is the first President who has not. Despite what is really a 
historic low level of cooperation from the White House--and it is the 
lowest level of cooperation from any White House I have ever had 
experience with in my 30 years in the Senate--we have already confirmed 
120 of President Bush's judicial nominees. We have confirmed 120. We 
have rejected 2 out of 120. That is not a bad record. Some of them we 
voted for, including some of the most divisive and controversial 
nominees sent up by any President. So 120 passed, 2 are being held up. 
I don't know where that shows an obstructionist Senate. This week the 
Senate debated and voted on the nomination of Jeffrey Sutton to the 
Sixth Circuit. This was a divisive one, and I think the fact that it is 
so divisive is shown by the fact he got the fewest number of favorable 
votes of any confirmation in almost 20 years--barely a majority. He got 
52. That is the lowest number of votes any judge has had in about 20 
years. That reflects the fact we have reached the point in the queue 
where many of these nominations divide the American people and the 
Senate far more than they unite us. I urge the President to be a 
uniter, not a divider. This is the third controversial judicial nominee 
of this President against whom more than 40 negative votes were cast.
  Our Senate Democratic leadership is working hard to correct some of 
the problems that arose with some of the earlier hearings and actions 
of the Judiciary Committee this year. Just yesterday, we were able to 
hold a hearing on the nomination of John Roberts to the District of 
Columbia Circuit. He was put in almost as an afterthought. There was a 
massive day of hearings, and he was not able to get a full hearing. 
This was done by the Republican leadership. I appreciate the fact they 
recognized that was wrong and they had another hearing yesterday. We 
are all working hard to complete committee consideration of that 
nomination at the earliest opportunity.
  The distinguished chairman of the Senate Judiciary Committee said he 
will put off that nomination today for a hearing sometime next week, 
and we will have a vote on him.
  I am optimistic our leadership will be able to work out a procedure 
for Senate consideration of the nomination of Deborah Cook to the Sixth 
Circuit. So a number of controversial nominations are being considered. 
I point out there are other nominations, such as that of Judge Edward 
Prado of Texas, a distinguished Hispanic jurist. Every Democratic 
Senator said they are willing to go forward with a vote on him. He has 
been held up on the Republican side. I don't know if we are going to be 
blamed for holding up this judge or not. We have all agreed we are 
ready to go forward with a short time agreement and a vote. He will be 
confirmed. He is not being held up on the Democratic side, but by the 
Republican side, even though he is one of President Bush's nominees.
  There is also Judge Cecilia Altonaga, on whom we have been seeking 
consideration for some time. I hope the Republican leadership will let 
them go forward.
  We are making progress. The glass is not full, but it is more full 
than empty. More has been achieved than some want to acknowledge. There 
have been 120 lifetime confirmations in less than 2 years. That is 
better than in any 2-year period from 1995 through the year 2000. Why 
do I mention that time? Because the Republicans were in charge and 
President Clinton was the President. We have done better in less than 2 
years than in any 2-year period when they were in charge. This time, 17 
months of that was under Democratic control, where we set a record with 
the number of Senatorial confirmations of Presidential nominations.
  We have reduced judicial vacancies to 48, which is the lowest 
percentage in more than 12 years. During the entire 8-year term of 
President Clinton, the Republicans never allowed the vacancy rate to 
get this low. We have made tremendous progress.
  The Republicans continue their drumbeat of political recriminations. 
We ought to talk about how far we have come with the 110 vacancies 
Democrats inherited from the Republican majority in the summer of 2001. 
We have cut those vacancies in half.
  Under the Republican majority, circuit vacancies more than doubled 
and overall vacancies increased significantly. Despite the fact that 
more than 40 additional vacancies have arisen since the summer of 2001, 
we have cut those vacancies by more than in half, from 110 to 48. If we 
had a little bit of cooperation from the other end of Pennsylvania 
Avenue and from the other side of the aisle, we could achieve so much 
more.
  This is a nomination that should not have been made in the first 
place and never should have been remade in the second place. It was 
rejected by the Judiciary Committee last year after a fair hearing and 
extensive and thoughtful substantive consideration. I think 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.
  I thank the Democratic leader, the assistant leader, and my 
Democratic colleagues who have spoken so eloquently and passionately to 
these matters. Particularly the statements of Senators Mikulski, 
Murray, Cantwell, and Stabenow yesterday were outstanding.
  This nomination is extreme. This nominee has shown herself to be a 
judicial activist and extremist even on the very conservative Texas 
Supreme Court where her conservative colleagues have criticized her 
judgements as activist. They have done it not once, not twice but 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. Work 
with us not to divide us but to unite us, and work with us to ensure 
the independence and impartiality of the Federal judiciary, something 
that Presidents have cherished for over 200 years, so that all the 
American people, whether they are Republicans or Democrats, rich, poor, 
White, Black, plaintiff or defendant, can go into every Federal 
courtroom across the country and know that they will receive a fair 
hearing and justice under the law; that they will come into the one 
place that is supposed to be impartial, the one place that is supposed 
to be nonpolitical, the one place that is supposed to look only at the 
litigants and the law, and so they will not go instead into a 
politicized, partisan Federal judiciary. That would be a mistake that 
would hurt us all and that is what we are trying to avoid now.
  How much time is remaining on this side?
  The PRESIDING OFFICER. Nine minutes twenty seconds remaining.
  Mr. LEAHY. I yield such time as he may consume to the distinguished 
senior Senator from New York.
  Mr. SCHUMER. Madam President, I want to thank our leader on the 
Judiciary Committee for his indefatigable efforts to keep the bench 
nonpartisan, or bipartisan, or at least moderate, as much as he has 
done. History will look back very kindly on the leadership of the 
Senator from Vermont and say that he made a courageous fight. Many of 
us are proud to be at his side in that fight.
  I will speak for a few minutes about the nomination of Judge Owen. 
The issue is not whether Judge Owen is a conservative; it is whether 
she will take her own views and subrogate them to the views of what the 
law is. If we look at her history, time and time again Judge Owen has 
been unwilling to follow the law and instead impose her own very 
conservative ideology on the courts. She is clearly not a moderate, but 
it is not even that she is a conservative that bothers many of us. I 
have voted for over 100 judges that the President has nominated, and 
the vast majority could clearly be classified as conservative. In fact, 
what worries us about Judge Owen is that she is what conservatives used 
to excoriate, an activist, somebody who will impose her own views 
because she feels them so strongly and passionately.
  I respect people who feel things passionately. I do. But when someone 
is a

[[Page 10320]]

judge, that is not what they should bring to the bench. It is not 
really passion, except in rare instances, that serves the bench well. 
It is, rather, an ability to understand the law and follow it.
  I do not have many doubts that Judge Owen understands the law. She is 
a bright person. I have very real doubts whether she will follow it.
  Conservative members of the Texas bench, none other than Judge 
Gonzales, now the President's counsel, have pointed out in instance 
after instance where Judge Owen has simply gone far afield and imposed 
her own views rather than do what the Founding Fathers wanted. I speak 
of the Founding Fathers, and it is a timely coincidence that our leader 
from West Virginia has come in. He has been the guardian of the 
Constitution, and he could tell us better than anyone else that the 
Founding Fathers asked--judges to interpret the law, not make law. The 
great irony, as we go through these debates, is that in the 1960s and 
1970s the hue and cry of people of Judge Owen's philosophy was that 
judges are making law from the bench.
  I had some sympathy for those arguments then. I have sympathy now, 
even though I might be very sympathetic to the laws they were making. 
But now, all of a sudden we have had nominee after nominee who are not 
activists from the left but activists from the right. It is quite 
logical that if one is on either the far left or the far right, they 
will have much more of a desire--there are exceptions to every rule but 
much more of a desire to impose law rather than interpret law, and of 
all the nominees who have come before us, Judge Owen seems to be the 
apotheoses of that view because in case after case that is exactly what 
she has done.
  Many of us believe, for instance, that Miguel Estrada would do the 
same thing, but he does not have a record and he refuses to answer 
questions. But with Judge Owen, the record is crystal clear that in 
instance after instance she has not subrogated her own personal 
feelings but, rather, let them dominate her decisionmaking. That is not 
what a judge ought to be.
  We will defeat this motion for cloture, and I am glad we will. 
History will look kindly on that as well because never has a President 
of the United States been more ideological in his selection of judges, 
never.
  I have been studying the history and for the first time, this 
President--whether because he wants to win political favor of the hard 
right or because he believes it himself, I do not know; I have not 
discussed it with him--this President wishes to change America through 
the article III section of Government, the judiciary. And so nominee 
after nominee is not just a mainstream conservative but somebody who 
wears their views on their sleeve and is not at all shy about imposing 
those views on court decisions.
  So those of us on this side who are opposing Judge Owen, and some of 
the other judges, believe that we are fighting for the Constitution, we 
are fighting for what the Founding Fathers intended judges to be, we 
are fighting a President who is more ideological in his selection of 
judges than any, and we will continue this fight.
  I have seen our caucus. We were hesitant when we took the first 
steps. We are stronger. I think we feel this issue more passionately 
than before, not at all for political reasons. I can't tell you where 
the political chips fall out on this one. It is a rather esoteric 
issue. A few people in America on each side feel strongly about the 
issue but most do not. We know we are doing the right thing.
  I am proud of our caucus. I am proud of this moment today. I think it 
is so important to try to get the President to back off this plan, 
which is so out of the thinking of the Founding Fathers, to make law 
from the one nonelected section of the Government, the judiciary, the 
article III section.
  So I will stand proudly today and move that we not go to vote on 
Judge Owen, not because she has not answered questions. To her credit, 
she was more forthright than Miguel Estrada and, frankly, than John 
Robert of yesterday but, rather, because she does not represent the 
kind of judge the Founding Fathers wanted and America should have. I 
hope we can defeat her.
  I yield my remaining time back to our leader from Vermont.
  Mr. KOHL. Mr. President, I rise today in opposition to the nomination 
of Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit 
and also in opposition to ending debate on consideration of her 
nomination.
  I believe that a filibuster of a judicial nominee is an extraordinary 
measure, a step to be taken only in the most compelling circumstances. 
The case of Justice Owen is one of those rare situations. In Justice 
Owen, we are presented with a nominee whose record demonstrates that 
she is so far outside the mainstream and so clearly prone to substitute 
her personal preferences for the legally required result as to compel 
this conclusion.
  Our debate today is not, of course, the first time the Senate has 
considered Justice Owen's nomination. She was nominated for a seat on 
the Fifth Circuit last year, and we held an extensive hearing at the 
Judiciary Committee on her nomination. After meeting with her, and 
thoroughly reviewing her record and her testimony, I opposed her 
nomination. Despite her defeat in the Judiciary Committee last year, 
the President saw fit to renominate Justice Owen for the Fifth Circuit 
once again this year. Nothing at her most recent confirmation hearing 
alters my conclusion that she is fundamentally unfit for a federal 
appellate judgeship.
  My opposition to Justice Owen is not because of any doubts regarding 
her intellectual ability--we all recognize her legal talents. And, 
unlike Miguel Estrada, my primary concern with respect to Justice Owen 
does not center on her unwillingness to answer questions at her 
confirmation hearing. Quite the contrary: Justice Owen's answers to our 
questions made one thing crystal clear--her consistent record of 
judicial activism, and her demonstrated willingness to substitute her 
judgment and policy preferences for those of the legislature.
  As Justice Owen's record became known last year, we grew increasingly 
concerned about her willingness to bend the law to suit her own 
strongly held opinions under the guise of ``interpretation.'' We should 
not be concerned that her views are conservative on many issues. 
However, when those beliefs interfere with her ability to apply the 
law, we are forced to oppose her nomination.
  Merely reviewing the comments of her fellow Texas Supreme Court 
justices compels us to the unfortunate conclusion she cannot be trusted 
to accurately interpret the law. In a variety of cases, her colleagues 
have criticized her opinions for not being grounded in the law. She is 
clearly and consistently outside of the mainstream in many cases. In an 
environmental case, FM Properties, she was criticized for basing her 
arguments on ``flawed premises'' and ``inflammatory rhetoric.'' In an 
age discrimination suit, Quantum Chemical, she was criticized by the 
majority for not following the plain meaning of the statute. In a 
consumer lawsuit, Texas Department of Transportation, the majority 
criticized her, writing that ``the statute's plain meaning'' indicated 
that she was wrong. And, finally, in Doe I, a choice case in which she 
dissented, then Justice Alberto Gonzales called her dissent ``an 
unconscionable act of judicial activism.''
  There is a pattern to this criticism that should not be ignored. She 
repeatedly alters the law to fit her views in ways that the legislature 
did not intend and that the majority of her own court condemns.
  We all know that the law is subject to interpretation and 
manipulation. The manner in which a judge interprets law is 
particularly important when considering a nominee to an appellate 
court. On the circuit court, subject only to the infrequent supervision 
of the U.S. Supreme Court, a judge has considerable leeway to make 
policy if she chooses with little concern of being overruled.
  Justice Owen's willingness to bend the law to suit her policy 
preferences

[[Page 10321]]

are unacceptable, especially for a nominee to an appellate court 
judgeship. Justice Owen's nearly decade long record as a Texas Supreme 
Court Justice gives us little confidence that she will faithfully 
discharge her obligations as a federal appellate judge. To proceed with 
Justice Owen's nomination would mean taking the risk of placing on a 
Federal court of appeals for life someone who has repeatedly 
demonstrated little hesitance to disregard clear statutory language to 
rewrite the law to suit her personal preferences. This is a risk we 
cannot take.
  Anyone who reviews my record on judicial nominations knows that I 
have not reached my decision to support extended debate here--indeed my 
decision to oppose Justice Owen's confirmation--lightly. Justice Owen 
is only one of only seven judicial nominees I have opposed in my entire 
14 years in the Senate. But this nominee's extreme record leaves me no 
choice. I will vote to oppose cloture on her nomination.
  Mr. BAUCUS. Mr. President, I would like to briefly explain why I will 
vote against cloture on the nomination of Priscilla R. Owen to the U.S. 
Court of Appeals for the Fifth Circuit.
  Ms. Owen's record reveals that she is a judicial activist and an 
ideologue. As newspaper editorials and several of our colleagues have 
pointed out, she has created a strong record of rewriting the law when 
it does not match her personal convictions and beliefs. For those 
reasons, she does not deserve a life-time appointment to the U.S. 
Circuit Court of Appeals. I cannot in good conscience, exercising my 
duty under the Constitution, allow her to be appointed to as powerful 
and influential a body as the Fifth Circuit.
  Appointees to the Federal bench must be able to set aside their 
personal philosophies and beliefs. They must be able to administer and 
enforce the law in a fair and impartial manner. Because the U.S. 
Supreme Court hears fewer and fewer cases each year, the circuit courts 
are the court of last resort for many ordinary citizens and businesses. 
The circuit courts often have the last word on important cases dealing 
with civil rights, environmental protection, labor issues, and many 
others. Circuit court judges must demonstrate a record of integrity, 
honesty, fairness, and a willingness to uphold the law. Ms. Owen fails 
this test.
  For example, Ms. Owen has published opinions and dissents that have 
drawn criticism from other conservatives and Republicans as 
inconsistent with the law or facts in front of her. We've heard over 
and over about her decision in FM Properties v. City of Austin, where 
the majority on the Texas Supreme Court--consisting of two current Bush 
appointees and current White House counsel Alberto Gonzales--called her 
dissent ``nothing more than inflammatory rhetoric.''
  Additionally, in her dissent to the Texas Supreme Court decision In 
re Jane Doe 1, Owen proposed to require a minor to show knowledge of 
religious arguments against abortion. In a separate concurrence, Mr. 
Gonzales said that to the interpret the law as Owen did ``would be an 
unconscionable act of judicial activism.''
  The administration has every right to appoint judges who share the 
President's philosophy and beliefs. That is entirely proper. However, 
that does not give the President the right to appoint judicial 
activists who have not demonstrated a respect for the law, or an 
ability to set aside their personal beliefs in order to interpret the 
law in a fair and impartial manner.
  Additionally, a President has never resubmitted a previously rejected 
circuit court nominee for the same vacancy, as this President has with 
Ms. Owen. And, the Judiciary Committee for the first time approved a 
nominee that it had previously rejected. That nominee is Ms. Owen.
  So not only does her record of judicial activism disqualify her for a 
life-time appointment to the Fifth Circuit, her approval by the 
Judiciary Committee and consideration by the full Senate is highly 
unusual and without precedent.
  For all of the above reasons, I must oppose Ms. Owen's nomination to 
the Fifth Circuit and vote against cloture on her nomination.
  Mr. FEINGOLD. Mr. President, I will vote no on the nomination of 
Priscilla Owen to be a judge on the U.S. Court of Appeals for the Fifth 
Circuit and no on cloture. I'd like to take a moment to explain my 
decision.
  There are a number of factors that I believe require us to give this 
nomination very careful consideration. First, we should consider that 
judges on our Courts of Appeals have an enormous influence on the law. 
Whereas decisions of the District Courts are always subject to 
appellate review, the decisions of the Courts of Appeals are subject 
only to discretionary review by the Supreme Court. The decisions of the 
Courts of Appeals are in almost all cases final, as the Supreme Court 
agrees to hear only a very small percentage of the cases on which its 
views are sought. That means that the scrutiny that we give to Circuit 
Court nominees must be greater than that we give to District Court 
nominees.
  Another important consideration is the ideological balance of the 
Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and 
Mississippi. The Fifth Circuit contains the highest percentage of 
minority residents--over 40 percent--of any circuit other than the D.C. 
Circuit. It is a court that during the civil rights era issued some of 
the most significant decisions supporting the rights of African 
American citizens to participate as full members of our society. As 
someone who believes strongly in freedom, liberty, and equal justice 
under law, and the important role of the Federal courts to defend these 
fundamental American principles, I am especially concerned about the 
make-up of our circuit courts and their approaches to civil rights 
issues.
  Even after 8 years of a Democratic President, the Fifth Circuit had 
twice as many Republican appointees as Democratic appointees. That is 
because during the last 6 years of the Clinton administration, the 
Judiciary Committee did not report out a single judge to the Fifth 
Circuit. And as we all know, that was not for lack of nominees to 
consider. President Clinton nominated three well-qualified lawyers to 
the Fifth Circuit--Jorge Rangel, Enrique Moreno, and Alson Johnson. 
None of these nominees even received a hearing before this Committee. 
When then-Chairman Leahy held a hearing in July 2001 on the nomination 
of Judge Clement for a seat on the Fifth Circuit, only a few months 
after she was nominated, and less than 2 months after Democrats took 
control of the Senate, it was the first hearing in this committee for a 
Fifth Circuit nominee since September 1994. Judge Clement, of course, 
was confirmed later in the year.
  So, there's a history here, and a special burden on President Bush to 
consult with our side on nominees for this Circuit. Otherwise, we would 
simply be rewarding the obstructionism that the President's party 
engaged in over the last 6 years by allowing him to fill with his 
choices seats that his party held open for years, even when qualified 
nominees were advanced by President Clinton. And I say once again, my 
colleagues on the Republican side bear some responsibility for this 
situation, and they can help resolve it by urging the administration to 
address the injustices suffered by so many Clinton nominees. One step 
in the right direction would be for my Republican colleagues to urge 
the President to renominate some of those Clinton nominees that never 
received a hearing or vote in this committee. That includes Clinton 
nominees to the Fifth Circuit.
  With that background, let me outline the concerns that have caused me 
to reach the conclusion that Justice Owen should not be confirmed.
  Justice Owen has had a successful legal career. She graduated at the 
top of her class from Baylor University Law School, worked as an 
associate and partner at the law firm of Andrews and Kurth in Houston, 
and has served on the Texas Supreme Court since January 1995. These are 
great accomplishments.
  But Justice Owen's record as a member of the Texas Supreme Court 
leads me to conclude that she is not the right person for a position on 
the Fifth Circuit. I am not convinced that Justice Owen will put aside 
her personal

[[Page 10322]]

views and ensure that all litigants before her on the Fifth Circuit 
received a fair hearing. Her decisions in cases involving consumers' 
rights, worker's rights, and reproductive rights suggest to me that she 
would be a judge who would be unable to maintain an open mind and 
provide all litigants a fair and impartial hearing.
  Justice Owen has a disturbing record of siding against consumers or 
victims of personal injury and in favor of business and insurance 
companies. When the Texas Supreme Court, which is a very conservative 
and pro-business court, rules in favor of consumers or victims of 
personal injury, Justice Owen frequently dissents. According to Texas 
Watch, during the period 1999-2002, Justice Owen dissented almost 40 
percent of time in cases in which a consumer prevailed. But in cases 
where the consumer position has not succeeded, Justice Owen never 
dissented.
  At her first hearing, Senator Kennedy and Senator Edwards asked 
Justice Owen to cite cases in which she dissented from the majority and 
sided in favor of consumers. Justice Owen could cite only one case, 
Saenz v. Fidelity Guaranty Ins. Underwriters, 925 S.W. 2d 607, Tex. 
1996. But Justice Owen's opinion in this case hardly took a pro-
consumer position since it still would have deprived the plaintiff of 
the entire jury verdict. She did not join Justice Spector's dissent, 
which would have upheld the jury verdict in favor of Ms. Saenz.
  Also during that first hearing, Senators Feinstein and Durbin 
questioned Justice Owen about Provident American Ins. Co. v. Castaneda, 
988 S.W. 2d 189, Tex. 1998. In that case, the plaintiff sought damages 
against a health insurer for denying health care benefits, after the 
insurer had already provided pre-operative approval for the surgery. 
Justice Owen, writing for the majority, reversed the jury's verdict in 
favor of the plaintiff and rejected the plaintiff's claim that the 
health insurer violated the Texas Insurance Code and the Deceptive 
Trade Practices Act. At the hearing, Justice Owen defended her opinion 
by saying that she believed that the plaintiff was seeking extra-
contractual damages and that the plaintiff had already received full 
coverage under the policy and statutory penalties. But, in the words of 
her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice 
Owen's opinion ``may very well eviscerate the bad-faith tort as a 
viable case of action in Texas.'' Id. at 212, Gonzalez, J., joined by 
Spector, J., dissenting. The cause of action for bad faith is designed 
to deter insurers from engaging in bad faith practices like denying 
coverage in the first place.
  In addition, with respect to several decisions involving 
interpretation and application of the Texas parental notification law, 
I am deeply troubled by Justice Owen's apparently ignoring the plain 
meaning of the statute and injecting her personal beliefs concerning 
abortion that have no basis in Texas or U.S. Supreme Court law. In 
2000, the Texas legislature enacted a parental notification law that 
allows a minor to obtain an abortion without notification of her 
parents if she demonstrates to a court that she has complied with one 
of three ``judicial bypass'' provisions: (1) that she is ``mature and 
sufficiently well informed'' to make the decision without notification 
to either of her parents, (2) that notification would not be in her 
best interest, or (3) that notification may lead to her physical, 
sexual, or emotional abuse.
  During Justice Owen's first confirmation hearing, Senator Cantwell 
questioned Justice Owen about her positions in cases interpreting this 
law, focusing on Justice Owen's insistence in In re Jane Doe, 19 S.W. 
3d 249, 264-65, 2000, Owen, J., concurring, Doe 1 (I)), that teenagers 
be required to consider ``philosophic, social, moral, and religious'' 
arguments before seeking an abortion. In her opinion, Justice Owen 
cited the Supreme Court's decision in Planned Parenthood of 
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 1992, to support her 
contention that states can require minors to consider religious views 
in their decision to have an abortion. But, as Senator Cantwell noted, 
Casey in no way authorizes States to require minors to consider 
religious arguments in their decision on whether to have an abortion. 
Upon this further questioning, Justice Owen then said that she was 
referring to another Supreme Court case, H.L. v. Matheson, 450 U.S. 
398, 1981, even though her opinion only cited Casey for this 
proposition. And even Matheson does not say that minors can be required 
by state law to consider religious arguments. It is my view that 
Justice Owen was going beyond not only a plain reading of the Texas 
statute, but Supreme Court case law, and inappropriately injecting her 
own personal views to make it more difficult for a minor to comply with 
the statute and obtain an abortion.
  I was also not satisfied with Justice Owen's responses to my 
questions about bonuses to Texas Supreme Court law clerks. I asked her 
at the hearing whether she saw any ethical concerns with allowing law 
clerks to receive bonuses from their prospective employers during their 
clerkships. I also explored the topic further with her in followup 
written questions. Justice Owen stated repeatedly in her written 
responses to my questions that she is not aware of law clerks actually 
receiving bonuses while they were employed by the Court. She reaffirmed 
that testimony in her second hearing. This seems implausible given the 
great amount of publicity given to an investigation pursued by the 
Travis County Attorney of exactly that practice and the well publicized 
modifications to the Texas Supreme Court's rules that resulted from 
that investigation and the accompanying controversy.
  Even more disturbing, Justice Owen took the position, both at the 
first hearing and in her responses to written questions, that because 
the Texas Supreme Court Code of Conduct requires law clerks to recuse 
themselves from matters involving their prospective employers, there 
really is no ethical concern raised by law clerks accepting bonuses 
while employed with the Court. I disagree. It is not sufficient for law 
clerks to recuse themselves from matters involving their prospective 
employers if they have received thousands of dollars in bonuses while 
they are working for the court. The appearance of impropriety and 
unfairness that such a situation creates is untenable. As I understand 
it, the federal courts have long prohibited federal law clerks both 
from receiving bonuses during their clerkships and from working on 
cases involving their prospective employers. I'm pleased that the Texas 
Supreme Court finally recognized this ethical problem and changed its 
code of conduct for clerks. Justice Owen, in contrast, seems intent on 
defending the prior, indefensible, practice.
  Finally, I want to note the unusual nature of this particular 
nomination. Unlike so many nominees during the Clinton years, Justice 
Owen was considered in the Judiciary Committee under Senator Leahy's 
leadership last year. She had a hearing, and she had a vote. Her 
nomination was rejected. This is the first time in history that a 
Circuit nominee who was formally rejected by the Committee, or the full 
Senate for that matter, has been renominated by the same President to 
the same position. I do not believe that defeated judicial nominations 
should be reconsidered like legislation that is not enacted. After all, 
legislation can be revisited after it is enacted. If Congress makes a 
mistake when it passes a law, it can fix that mistake in subsequent 
legislation. Judicial appointments are for life. Confirmations cannot 
be taken back or fixed. A vote to confirm a nominee is final. A vote to 
reject that nominee should be final as well. For the President to 
renominate a defeated nominee and the Senate to reconsider her simply 
because of the change of a few seats in an election cheapens the 
nomination process and the Senate's constitutional role in that 
process.
  I believe Justice Owen is bright and accomplished. But I sincerely 
believe that based on her judicial record, Justice Owen is not the 
right choice for this position. I wish her well in her continued work 
on the Texas Supreme Court, and I hope the President will put forward a 
nominee for this circuit

[[Page 10323]]

who the committee can have confidence will enforce the law fairly and 
impartially to all litigants.
  Mrs. BOXER. Mr. President, I want to respond to my colleague from 
Utah, Mr. Hatch, regarding Priscilla Owen's dissent in the case In re 
Doe, 19 S.W.3d 346, Texas 2000.
  Let me emphasize the fact that Justice Owen wrote her own dissenting 
opinion in this case. Justice O'Neill delivered the opinion of the 
court, joined by Justice Enoch, Justice Baker, Justice Hankinson, and 
Justice Gonzales and by Chief Justice Phillips as to Parts II and III. 
Justice Enoch filed a concurring opinion, joined by Justice Baker. 
Justice Gonzales filed a concurring opinion, joined by Justice Enoch.
  Three Justices dissented in this case, each filing the own separate 
opinion. The dissenting opinions were written by Justice Hecht, Justice 
Owen, and Justice Abbott.
  Justice Gonzales, in his concurring opinion, very clearly voices 
criticism of the dissenting opinions:

       The dissenting opinions suggest that the exceptions to the 
     general rule of notification should be very rare and require 
     a high standard of proof. I respectfully submit that these 
     are policy decisions for the Legislature. . . . Thus, to 
     construe the Parental Notification Act so narrowly as to 
     eliminate bypasses, or to create hurdles that simply are not 
     to be found in the words of the statute, would be an 
     unconscionable act of judicial activism. As a judge, I hold 
     the rights of parents to protect and guide the education, 
     safety, health, and development of their children as one of 
     the most important rights in our society. But I cannot 
     rewrite the statute to make parental rights absolute, or 
     virtually absolute, particularly when, as here, the 
     Legislature has elected not to do so.

  The chairman of the Judiciary Committee states that Justice Owen did 
not write the opinion that Justice Gonzales criticized. I fail to see 
how Senator Hatch can reach that conclusion. Justice Gonzales clearly 
refers to ``the dissenting opinions''--plural--and Justice Owen wrote 
one of those dissenting opinions.
  I trust that this resolves any dispute regarding this matter.
  Mr. LEAHY. Madam President, how much time remains for the Senator 
from Vermont?
  The PRESIDING OFFICER. One minute and 40 seconds.
  Mr. LEAHY. I yield back our time.
  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. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  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, Kay Bailey Hutchison, John 
           Cornyn, Mitch McConnell, Jon Kyl, Wayne Allard, Sam 
           Brownback, Jim Talent, Mike Crapo, Gordon Smith, Peter 
           Fitzgerald, Jeff Sessions, Lindsey Graham, Lincoln 
           Chafee, Saxby Chambliss.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Priscilla R. Owen, 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. McCONNELL. I announce that the Senator from Oklahoma (Mr. Inhofe) 
is necessarily absent.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham), the 
Senator from Connecticut (Mr. Lieberman), and the Senator from Maryland 
(Mr. Sarbanes) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 52, nays 44, as follows:

                      [Rollcall Vote No. 137 Ex.]

                                YEAS--52

     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
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

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

                             NOT VOTING--4

     Graham (FL)
     Inhofe
     Lieberman
     Sarbanes
  The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are 
44. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.

                          ____________________