[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10715-10716]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NOMINATIONS OF JUSTICE PRISCILLA OWEN AND MIGUEL ESTRADA

  Mrs. HUTCHISON. Mr. President, I want to talk today about Justice 
Priscilla Owen. On Friday, it will be the 2-year anniversary of the 
nomination of Justice Priscilla Owen for the Fifth Circuit Court of 
Appeals and also for Miguel Estrada to the District of Columbia Court 
of Appeals.
  These are two qualified nominees in every respect who are being 
filibustered to keep them from taking their seats. They have both 
received a majority vote of the Senate, but neither of them is 
confirmed because we are now being asked to have a 60-vote threshold 
for these qualified nominees. It is not right, and I think it goes 
against the Constitution and affects the balance of powers.
  The balance of powers was very clearly and purposefully set out by 
our Founders so that each branch would be separate and equal. In the 
Constitution, it says the President will nominate Federal judges and 
the Senate will give its advice and consent. Historically, advice and 
consent under the Constitution has meant a majority vote for judicial 
nominees. It does not mean a 60-vote threshold. And it does not mean 
that the Senate can dictate to the President whom the President can 
nominate.
  We should give the President's nominees an up-or-down vote when they 
get out of the committee. The committee is there to have hearings, to 
question these nominees. If a person gets out of committee, that person 
deserves a vote on the floor.
  When the Founding Fathers did think that a supermajority should be 
required, they clearly provided for it. For example, article II, 
section 2, gives the President the power to nominate ``by and with the 
Advice and Consent of the Senate, to make Treaties, provided two-thirds 
of the Senators present concur.'' Immediately following this provision, 
the Constitution gives the President the power to make judicial 
nominations ``by and with the Advice and Consent of the Senate,'' 
period.
  By clear omission, the Constitution does not require a supermajority 
for judicial nominees as it does for treaties. Congress has no right--
it has no power, as outlined by the Constitution--to assume a different 
role in the nomination and confirmation of judges. A filibuster 
requiring 60 votes on a judicial nominee is beyond the intent of the 
Constitution.
  Furthermore, the 25th amendment to the U.S. Constitution, approved by 
the Senate in 1965, demonstrates, I think, the intent of the Founding 
Fathers in confirming a nominee. In this case, the Vice President 
``shall take office upon confirmation by a majority vote of both Houses 
of Congress.'' If we are required to approve the Vice President of the 
United States by a majority vote, how could we possibly require a 60-
vote threshold for a Federal judge?
  I understand that cloture votes are needed sometimes for procedural 
reasons, such as a time-management device, but with the nomination of 
Miguel Estrada this has not been the case; with the nomination of 
Priscilla Owen this has not been the case.
  This kind of filibuster is unprecedented in Senate history. So I hope 
we can do one of three things: We can start talking about changing the 
Senate rules so that, in the case particularly of judicial nominations, 
we will not ever have a 60-vote threshold, which is not contemplated by 
the Constitution; or we can require a vote, ask for a vote, get a vote 
for these qualified nominees; or we can file a lawsuit, asking the 
courts to decide if the balance of powers in the Constitution is being 
violated by this 60-vote threshold.
  I do hope we will get an up-or-down vote on these nominations. The 
fact that they have received over 51 votes--both of them--shows that 
they would be confirmed if they had their right to an up-or-down vote 
in the Senate.
  Priscilla Owen, of course, is from Texas, so I know her and I know 
her reputation. She has the strongest bipartisan support you could 
possibly ask for. She is a person who graduated cum laude from Baylor 
Law School, made the highest grade on the State bar exam when she 
graduated. She has been elected to the supreme court by over 80 percent 
of the people in Texas. She is universally well regarded.
  She is not a judicial activist. In fact, it is her strict adherence 
to the letter of the law and Supreme Court rulings that has been one of 
the problems with this nomination because she didn't make law. She 
didn't try to put words in the mouth of a legislator. She just followed 
what the legislature said in the parental consent laws in the State of 
Texas, the law of the State. She followed the letter of the law and the 
Supreme Court rulings and tried not to be a judicial activist. For that 
she is being accused of being a judicial activist.
  She was grilled twice by members of the Judiciary Committee. She had 
very tough hearings. I don't think I have

[[Page 10716]]

ever seen a nominee do better. She knew every answer to every question 
asked, even the minutia of cases that had been heard by her court years 
ago. She knew what she had done and the reasoning for it. Her hearings 
alone would be enough to show her academic prowess and her 
qualifications for this bench.
  Further than that, the hearings also showed her judicial temperament. 
She handled herself so well, and she has gone through 2 years of a 
grueling experience--not something she is used to. Judges are not 
usually in the political arena. Even when they are elected, they don't 
usually have strong opposition. They don't have these spirited races 
such as we see in legislatures and the Congress. It wasn't that she was 
attuned to the slings and arrows of politics. She has handled herself 
so beautifully, I don't think you could ever argue that she does not 
have the judicial temperament. When you put that together with her 
clear academic excellence, she is the kind of person we want on the 
bench.
  I wonder if we turn down nominees like Miguel Estrada, who came to 
this country from South America when he was about 18 years old, didn't 
speak English, worked his way through Columbia, was Phi Beta Kappa, 
went to Harvard Law School and graduated magna cum laude, then had an 
outstanding record in the Solicitor General's Office, winning very 
complicated Supreme Court cases, and is known as one of the outstanding 
appellate lawyers in America--if people like Priscilla Owen and Miguel 
Estrada are not the kind of people we are going to put on the court, we 
are going to start having mediocre people on the court.
  We will have people who never have said anything, people who don't 
have the stellar reputations. These scholars, Miguel Estrada and 
Priscilla Owen, are people who are willing to take pay cuts in order to 
serve, because they like the intellectual challenge. They like what 
they are doing. They like public service. They are willing to take huge 
pay cuts for serving, and they are willing to do it. And they are 
quality people. What are we doing? What are we doing holding up quality 
qualified people like this?
  These nominations should not be controversial. They obviously are 
because they are not being passed, but these are not controversial 
people. They are mild-mannered, brilliant, fair, evenhanded, 
temperamentally sound people. We are putting them through the political 
meat grinder.
  I have to ask: Who are we going to get, as we go down the road and 
good people watch what has happened to Priscilla Owen and Miguel 
Estrada? Who is going to submit themselves to be a Federal judge, if 
they have to go through this kind of political process?
  I hope the Senate can amicably resolve the issue of nominations, 
especially judicial nominations where the Constitution and the balance 
of power are at stake. I hope we will allow these votes for these two 
people who deserve an up-or-down vote and deserve to be on the bench. 
They will both make excellent judges.
  May 9 is Friday. We are going to have cloture votes tomorrow, May 8, 
the day before the 2-year anniversary of these qualified nominations. I 
hope those who are filibustering them will see their way clear to let 
the majority rule. Both of these nominees have now gotten 52 and 54 
votes respectively. They have the majority. In any other case they 
would be on their way to sitting on the circuit courts of appeals. That 
is where they ought to be. That is where they deserve to be.
  I hope my colleagues will allow Miguel Estrada and Priscilla Owen to 
take their rightful place on the bench. They have earned the majority 
vote. They have received a majority vote, which is what is required by 
the Constitution. They should be allowed to be confirmed.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I ask unanimous consent that in the period 
for morning business, I be allotted 20 minutes to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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