[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10917-10929]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume executive session to consider the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of Priscilla 
Richman Owen, of Texas, to be United States Circuit Judge for the Fifth 
Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11:40 shall be equally divided between the two leaders or their 
designees.
  The Senator from Alabama is recognized.
  Mr. SESSIONS. Madam President, I will say a few things about the 
compromise that was reached last night. It has a lot of good things in 
it. I think, first and foremost, it represented a consensus of a group 
of Senators who would represent the majority, saying that filibusters 
are not to be routinely utilized in the confirmation process. As a 
matter of fact, they said only in ``extraordinary circumstances'' 
should a filibuster be utilized.
  This was a rejection of what we have seen for over 2 years in the 
Senate. It was a movement toward the historical principles of 
confirmation that I think are very important. I think it is worthy of 
note that the majority leader, Senator Bill Frist, who just left the 
floor, moved so ably on this issue. He spent nearly 2 years studying 
the history, seeking compromises, working with colleagues on both sides 
of the aisle, and as of a few weeks ago had, I believe, quite clearly 
achieved a majority of the Senators who were prepared to exercise the 
constitutional option to establish the rule that we would not 
filibuster judicial nominees. We have not had a judicial filibuster in 
214 years and we should not have one now. A majority in this Senate was 
prepared to act to ensure that we would not have one.
  It was only at that point that serious discussions began on a 
compromise and, as a result of those discussions, seven Senators on 
each side agreed they would act in a certain way and issued the 
statement they did. It does not reflect the majority of either party, 
but it does reflect, in my view, the fact that a majority of this 
Congress does not believe that filibusters are the way to go and should 
not occur except in extraordinary circumstances.
  Frankly, I think that is not the principle we need to adhere to. When 
President Clinton was President and he sought nominees that he chose 
for the Federal bench, and people on the Republican side discussed 
whether a filibuster was appropriate, the Republicans clearly decided 
no and allowed nominees such as Berzon and Paez to have an up-or-down 
vote. They were given an up-or-down vote and both were confirmed, even 
though they were controversial. I think that was significant.
  I have to tell you how thrilled I am that Judge Bill Pryor will be 
able to get an up-or-down vote. He is one of the finest nominees who 
has come before this body. The hard left groups out there, who have 
been driving this process, attacked him early on and misrepresented his 
positions, his character, his integrity, and his legal philosophy. They 
called him an activist, when he is exactly the opposite of that, and 
they created a storm and were able to generate a filibuster against 
him. He had a majority of votes in the Senate, if he could have gotten 
an up-or-down vote. But he was denied that through the inability of the 
majority to cut off debate and have a vote.
  I am so glad the group of 14 who met and looked at these nominees 
concluded he was worthy of being able to get a vote up or down. I have 
to say that has colored my pleasure with the agreement, even though I 
know some other good judges or nominees were not part of the agreement.
  I want to point this out. The minority leader seems to suggest that 
filibusters are here to stay and they are normal and logical, and get 
over it and accept it, and that, oh, no, the constitutional option can 
never be used. That was not in that agreement and that is not what is 
in the hearts and minds of a majority of the Senators in this body. If 
this tactic of filibustering is continued to be used in an abusive way, 
or in a way that frustrates the ability of this Congress to give an up-
or-down vote to the fine nominees of President Bush, there has been no 
waiver of the right to utilize the constitutional option.
  As I understand it, even yesterday Senator Byrd, on the Senate floor, 
admitted the constitutional option is a valid power of the Senate 
majority. I would say this. It ought not to be abused; it ought not to 
be used for light or transient reasons. It ought to be used only in the 
most serious circumstances--the most serious circumstances of the kind 
we have today when, after 200 years of tradition, 200 years of 
following the spirit of the Constitution to give judges up-or-down 
votes, the Senate is systematically altered as it was in the last 
Congress. That is why it was brought out, and with the threat of the 
constitutional option and a majority of Senators who were prepared to 
support it, a compromise was reached. I believe it is significant.
  Finally, I want to note it is exceedingly important that we, as 
Members of this Senate, understand how judges should be evaluated, how 
they have basically always been evaluated, except in recent times. How 
should they be evaluated? They should be evaluated on their judicial 
philosophy, not their political views or their religious views. There 
are nominees who have come before this Senate who have demonstrated 
through a career of practice that they comply with the law, whether 
they agree with it or not. Some of them are pro-life, some of them are 
pro-choice, some of them are for big Government, some of them are for 
smaller Government, some of them are for strong national defense, some 
of them are not. That is not the test and cannot be the test.

[[Page 10918]]

  We had one situation that troubled me. I was pleased eventually that 
this nominee was confirmed. A man and a woman--the man was nominated 
for judge and had been No. 1 in his law school class. They had written 
a letter to the members of their church, a Catholic Church in Arkansas, 
and they discussed their view of marriage in the Christian tradition. 
They affirmed that and quoted from Scripture. We had persons attack 
that nominee because they said it somehow elevated a man over a woman. 
That is not the rich tradition of marriage as was explained in their 
letter. But it led to that attack. That made starkly clear in my mind 
what is at stake here. This is the question: Are we to expect that 
every nominee that comes here has to lay out their personal philosophy, 
their marital philosophy, their religious beliefs, and we sit and judge 
them on whether we agree with that?
  Is that the way you judge a judge to see if they are qualified: Do I 
agree with their theology? Do I agree with their political philosophy? 
Do I agree with their opinion on Franklin Delano Roosevelt? Is that 
what we do?
  We cannot do that. We should not do that. We ought to be pleased that 
a nominee has cared enough about his or her country to speak out on the 
issues that come before the country. We ought to be pleased that they 
have been active and they care and they participate in the great 
political debate in America. But we ought not say to them, because you 
said one thing about abortion, and you are pro-life or you are pro-
choice, you can never follow the law of the Supreme Court or the 
Constitution and, therefore, we are not going to allow you to be a 
judge. We cannot do that. That is a wrong step.
  I think that was implicit in this compromise--at least I hope it was. 
I think it said that judges, such as Judge Bill Pryor who, when asked 
did if he said abortion was bad, answered: Yes, sir, I do. And when he 
was asked: Do you still believe it? He said: Yes, sir. I do. He had a 
record, fortunately, that he could then call on to show that he was 
prepared to enforce the law whether he agreed with it or not. If he had 
been in the legislature, he might have voted differently. But as a 
judge or as attorney general, he had a record on which he could call to 
show that he enforced the law.
  For example, Judge Pryor would certainly have opposed partial-birth 
abortion, one of the worst possible abortion procedures. But as 
attorney general in the 1990s, when Alabama passed a partial-birth 
abortion ban, he wrote every district attorney in the State on his own 
motion--he did not have to, but he had the power to do so as attorney 
general--and told them that portions of that bill, with which he 
probably agreed, were unconstitutional and should not be enforced.
  Later, when the Supreme Court of the United States rendered the 
Stenberg decision that struck down an even larger portion of the 
foundation of partial-birth abortion statutes that had passed around 
the country, he wrote another letter to the district attorneys and told 
them the Alabama statute was unconstitutional.
  Does that not prove what we are about here? It is not your personal 
belief but your commitment to law that counts?
  What about the circumstance when he was accused of being too pro-
religion? I do not think the facts show an abuse of his power in any 
way. In fact, he found himself in the very difficult circumstance in 
Alabama of being the attorney general and having the responsibility to 
prosecute or present the case against the sitting chief justice of the 
Alabama Supreme Court who placed the Ten Commandments in the supreme 
court building. The chief justice had been ordered to remove it by the 
Federal courts, and he did not remove it. Other judges removed it. 
Attorney General Bill Pryor presented that case, and Judge Moore was 
removed from office.
  That was a big deal. It was a tough deal. Time after time, he has 
done that.
  Priscilla Owen also is a nominee of the most extraordinary 
qualifications. She made the highest possible score on the bar exam in 
Texas. That is a big State and bar exams are not easy. She is a 
brilliant lawyer, highly successful in the private practice of law in 
Texas. They encouraged her to run for the supreme court. She did so. 
She won. The last time she ran, she received 84 percent of the vote in 
Texas. This is a professional lawyer/jurist, brilliant, hard-working, a 
woman of great integrity and decency. She has questioned the concept or 
the idea that judges have a right to go back and reinterpret the 
meaning of the Constitution or statutes and read into them whatever 
they like to make them agree with the judge's philosophy. Many today 
seem to think they are at liberty to do this. In fact, some judges go 
back and try to twist, bend, stretch the meaning of words to promote 
agendas in which they believe. Priscilla Owen does not believe in that 
and has spoken against it.
  Her philosophy as a judge reflects restraint, and a dedication to 
following the law. That is what she has stood for, and she has been 
criticized roundly as being an extremist--a judge who received 84 
percent of the vote and was endorsed by every newspaper in the State.
  Judge Priscilla Owen also was rated by the American Bar Association 
unanimously well qualified, the highest rating they give. This is not 
an extremist.
  What was it here? Outside groups who have made a history of 
identifying and attacking these nominees have mischaracterized her, 
just as they did Judge Pryor. Both of these nominees, for example, have 
tremendous support within their State, tremendous bipartisan support in 
conference.
  That is why I am confident the 14 people who got together and 
reviewed this situation felt they could not leave her or the other two 
judges off this list. They just could not deny Janice Rogers Brown, 
Priscilla Owen, or Judge Bill Pryor an up-or-down vote. They were too 
decent, had too much of a good record, too many supporters in the 
African-American community, in the Democratic leadership of their 
States, and that is why they were given this vote.
  I think perhaps we are now moving forward to a new day in 
confirmations. I hope so. We have been far too bitter in attacking good 
people. Records have been distorted dishonestly, particularly by 
outside groups and sometimes that has been picked up by Senators. My 
Democratic colleagues have outsourced their decisionmaking process at 
times, I am afraid. They have allowed the People for the American Way 
and Ralph Neas and the Alliance for Justice, the people who spend their 
lives digging up dirt, sullying people's reputations, twisting facts, 
taking cases out of context, taking statements out of context, taking 
speeches out of context, posturing and painting nominees as things they 
are absolutely not, to influence their decisions. It is wrong. 
Hopefully, we are now moving in a better direction.
  I am also hopeful that as a result of this agreement, the nomination 
process in the future will go better. Maybe even issues such as 
transportation, energy, and defense will go better in this Congress. I 
hope so. I will try to do my part.
  I want to say one thing, the constitutional option has not been 
removed from the table. We cannot allow filibusters to come back and be 
abused. We absolutely cannot. The majority should never allow that 
historic change to occur while they have the ability to resist and that 
ability still exists. I believe the majority leader, Bill Frist, is 
correct in that analysis. He has stated the ideals of this Senate. He 
has reminded us of the history and traditions of the Senate. He has 
reminded us that Republicans were faithful to that tradition and the 
Democrats need to be, too. So I hope we will be able to move forward 
with the consideration of more and more nominees as President Bush goes 
forward in his term, and that as we do so, they will be given a fair 
hearing. I hope that Senators on both sides of the aisle will look at 
the facts and allegations about nominees to make sure those are 
truthful, accurate, and fair characterizations of them, and not 
mischaracterizations, not distortions, not misrepresentations of what 
they

[[Page 10919]]

are and what they have done. If we do that, we are going to be OK.
  Let me say this about President Bush. He has gone to the American 
people. He has stated his case to them. He stated clearly and 
effectively he believes that judges should be committed to the rule of 
law, should follow the law, that they should not be activist, they 
should not seek to impose personal and political agendas through the 
redefinition of words of statutes or our Constitution. The American 
people have affirmed him in that.
  The Senate obstruction and filibuster of Federal judges has been a 
big issue in the last two election cycles in this Senate, and 
Republicans have, as a result, in my opinion--it is my opinion, I will 
admit--picked up six new Senate seats. I think a large part of that is 
because people in these States have been concerned about the 
obstruction of good and decent nominees, and the people of this country 
are of the opinion that their liberties are in jeopardy when an 
unelected lifetime-appointed judge starts setting social policy. If 
they are not happy with my vote on social policy, I can be removed from 
office, but a judge has a lifetime appointment, and the American people 
understand that. They understand that an activist judge is, indeed, 
antidemocratic. It is an antidemocratic act when a judge, without 
accountability to the public, starts setting social and political 
policy, as we have seen too often in recent years.
  As a result, I believe we need to return to our traditions that have 
served both sides well, and if we do that, we can move forward, I 
believe, to a better process on judges and other issues that come 
before this body. I am cautiously optimistic for the future.
  I yield the floor and reserve the remainder of our time on this side.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I understand that by previous 
agreement, time is allocated; is that correct?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. KENNEDY. And there is to be 1 hour for one side, 1 hour to the 
other side, prior to the leadership time?
  The ACTING PRESIDENT pro tempore. There is 47 minutes remaining for 
the minority.
  Mr. KENNEDY. Madam President, I yield myself 10 minutes.
  First, I commend my friend and colleague, our leader, Senator Reid, 
for his perseverance during these past several weeks and adherence to 
the great traditions of the institution of the Senate. It has been an 
extraordinary example of devotion to the Senate, to our Constitution, 
the checks and balances which are written into the Constitution. Our 
President has a veto, and the Members of Congress have the right to 
speak. There are those who would like to muzzle, silence, effectively 
cut off the debate in the Senate. With this agreement of last evening, 
that time, hopefully, has ended. It certainly has been for this 
Congress.
  I was listening to some of my colleagues earlier. I read from the 
agreement about rules change:

       In light of the spirit and continuing commitments made in 
     this agreement, we commit to oppose the rules changes in the 
     109th Congress, which we understand to be any amendment to or 
     interpretation of the Rules of the Senate that would force a 
     vote on a judicial nomination by means other than unanimous 
     consent or rule XXII.

  The current rule. There it is. Yet we heard the mention by the leader 
earlier this morning that he believes somehow the nuclear option is 
still alive and well.
  It does seem to me the American people want to get about the American 
people's business. This has been an enormous distraction.
  I listened to my friend and colleague from Tennessee who says we want 
to follow the rules and traditions of the Senate, so we are going back 
to the regular order. If we go back to the regular order, we are going 
back to the traditions and rules as they stand: You have the vote of 
every member on this side. That is not what the majority leader was 
talking about. He was talking about we will go back to the regular 
order; he was going to change the order with a whole series of changed 
rules.
  That is what the members of this side and the courageous Republicans 
on the other side found offensive. We believe we ought to be about our 
people's business. We have approved 95 percent of the Republicans' 
nominees. I am sure some are, perhaps, pro-choice; many of them--
probably most of them--are pro-life. They have still gone through. The 
real question is whether we are going to be stampeded and be silenced 
with regard to judges who are so far outside of the mainstream of 
judicial thinking that it was going to be the judgment of the majority 
leader that he was going to change the rules in a way that would deny 
the Senate's Parliamentarian, who has been the safeguarder of these 
rules for the 214 years of the Senate, and bring in the Vice President, 
who was going to rule according to his liking rather than to the 
traditions of the Senate.
  That kind of abridgement, that kind of destruction, that kind of 
running roughshod over the Senate rules is offensive to the American 
people and offensive to us. It was avoided by the actions that were 
taken last evening in which our Democratic leader was the principal 
architect and supporter.
  Yesterday was a day that will live in American history, and our 
grandchildren and their grandchildren will discuss what happened. They 
will do so with much more insight than we can today because they will 
know what the results of yesterday's agreements actually turned out to 
be. I hope that history will judge us well as an institution. We came 
close to having a vote that threatened the essence of the Senate and of 
our Government. It risked destruction of the checks and balances among 
the branches that the Framers so carefully constructed. It risked 
destruction of the independence of the judiciary, which is at the heart 
and soul of this issue. It risked an accumulation of power in the 
President that might have turned back the clock toward the day when we 
were subjects instead of citizens.
  We have avoided that confrontation and have done so within the 
traditions of the Senate: discussion, debate, negotiation and 
compromise. Moderation and reason have prevailed. As in any compromise, 
some on each side are unhappy with specific aspects of the result, but 
the essence is clear. A majority of this body does not want to break 
its rules and traditions. Those rules and traditions will be preserved.
  This body's self-regulating mechanisms will continue to be a 
moderating influence, not only within the body but also on the other 
House and the other branches of Government. Once again, the Senate has 
reminded the Chief Executive that we are not merely occupants of a 
beautiful building at the other end of Pennsylvania Avenue. We taught 
George Washington that lesson when we rejected one of his Supreme Court 
nominations. We taught Thomas Jefferson that lesson when we refused to 
convict an impeached Justice whose opinions Jefferson did not like. We 
taught Franklin Roosevelt that lesson when he tried to pack the Supreme 
Court. We taught Richard Nixon that lesson when he sent us a worse 
nominee after we defeated his first nominee for a Supreme Court 
position.
  As even the Republicans in the agreement group said, this agreement 
should persuade the President to take more seriously the advice portion 
of the advice and consent. If the President understands the message and 
takes it to heart, his nominees will be better off, the courts will be 
better off, and the Nation will be better off.
  Our principal goal was to preserve the ability of the Senate to 
protect the independence of the Federal courts, including the Supreme 
Court, and we have succeeded in doing so. We have sent a strong message 
to the President that if he wants to get his judicial nominees 
confirmed, his selections must have a broader support from the American 
people.
  As a result of this agreement, we can hope that no Senator will ever 
again pretend that the Constitution commands a final vote on every 
Executive nominee, for it has never done so and it does not do so now.

[[Page 10920]]

  We can hope that no one will again pretend that there has never been 
a filibuster of a judicial nominee when they can look across the Senate 
floor at three Democratic Senators who witnessed the Republican 
filibuster against Justice Fortas and Republican Senators who 
participated in other judicial filibusters. We can hope that no one 
again will pretend that it is possible to break the fundamental Senate 
rule on ending a filibuster without shattering the basic bonds of trust 
that make this institution the world's greatest deliberative body.
  I believe history will judge that we have not failed those who 
created America two centuries ago by what we have done. We have fought 
off those who would have destroyed this institution and its vital role 
in our Government for shameful partisan advantage. By rejecting the 
nuclear option, the Senate has lived up to its responsibilities as a 
separate and equal branch of Government.
  I say to my colleagues on both sides of the aisle, that agreement 
does not change the serious objections to the nominations that have 
been debated in the past days. Those of us who care about the 
judiciary, who respect mainstream values, who reject the notion that 
judgeships are spoils to be awarded to political fringe groups, will 
continue to oppose the nomination of Priscilla Owen, Janice Rogers 
Brown, and William Pryor because they would roll back rights and 
freedoms important to the American people.
  Now that these nominees are slated to get a vote on the floor, I hope 
courageous and responsible Republicans will show their independence 
from the White House and thoroughly examine the records of each of 
them. If they do, I hope they will agree that these nominees should not 
be given lifetime appointments to the Nation's courts, where they will 
wield enormous power over the lives of all Americans.
  Those of us who oppose the nomination of Priscilla Owen have done so 
with good cause because her record makes clear that she puts her own 
ideology above laws that protect the American people. I have made that 
case. I just remind our colleagues of what the Houston Chronicle said. 
The Houston Chronicle, from her own area, wrote that her record shows 
less interest in impartiality and interpreting law than in pushing an 
agenda. She too often contorts rulings to conform to her particular 
conservative outlook. Those are not fringe groups. That is the Houston 
Chronicle.
  Austin American-Statesman: Priscilla Owen is so conservative she 
places herself outside of the broad mainstream of jurisprudence and she 
seems all too willing to bend the law to fit her views.
  Those are not leftwing fringe groups. That is the Austin American-
Statesman.
  San Antonio Express News: She has always voted with a small court 
minority that consistently tries to bypass the law as written by the 
legislature.
  I have included at other times in the Record the 10 different 
occasions when the current Attorney General of the United States 
criticized Priscilla Owen for being outside of the mainstream of 
judicial thinking. I ask unanimous consent that six or eight of those, 
and the cases, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               Examples of Gonzales's Criticisms of Owen

       In one case, Justice Gonzales held that Texas law clearly 
     required manufacturers to be responsible to retailers that 
     sell their defective products. He wrote that Justice Owen's 
     dissenting opinion would ``judicially amend the statute'' to 
     let manufacturers off the hook.
       In a case in 2000, Justice Gonzales and a majority of the 
     Texas Supreme Court upheld a jury award holding that the 
     Texas Department of Transportation and the local transit 
     authority were responsible for a deadly auto accident. He 
     explained that the result was required by the ``plain 
     meaning'' of Texas law. Justice Owen dissented, claiming that 
     Texas should be immune from these suits. Justice Gonzales 
     wrote that her view misread the law, which he said was 
     ``clear and unequivocal.''
       In another case, Justice Gonzales joined a majority opinion 
     that criticized Justice Owen for ``disregarding the 
     procedural limitations in the statute,'' and ``taking a 
     position even more extreme'' than had been argued by the 
     defendant in the case.
       In another case in 2000, private landowners tried to use a 
     Texas law to exempt themselves from local environmental 
     regulations. The court's majority ruled that the law was an 
     unconstitutional delegation of legislative authority to 
     private individuals. Justice Owen dissented, claiming that 
     the majority's opinion ``strikes a severe blow to private 
     property rights.'' Justice Gonzales joined a majority opinion 
     criticizing her view, stating that most of her opinion was 
     ``nothing more than inflammatory rhetoric which merits no 
     response.''
       Justice Gonzales also wrote an opinion holding that an 
     innocent spouse could recover insurance proceeds when her co-
     insured spouse intentionally set fire to their insured home. 
     Justice Owen joined a dissent that would have denied coverage 
     of the spouse, on the theory that the arsonist might somehow 
     benefit from the court's decision. Justice Gonzales' majority 
     opinion stated that her argument was based on a ``theoretical 
     possibility'' that would never happen in the real world, and 
     that violated the plain language of the insurance policy.
       In still another case, Justice Owen joined a partial 
     dissent that would have limited the right to jury trials. The 
     dissent was criticized by the other judges as a ``judicial 
     sleight of hand'' to bypass the Texas Constitution.

  Mr. KENNEDY. This is Attorney General Gonzales on the supreme court 
with Priscilla Owen, critical of her of being outside the mainstream. 
That is the point we have basically made.
  This week, the American people are saying loudly and clearly that 
they are tired of the misplaced priorities and abuse of power by the 
rightwing. This agreement sends a strong message to the President that 
if he wants to get his judicial nominees confirmed, his selections need 
to have broad support from the American people.
  Going forward on any nomination, the President must take the advice 
and consent clause seriously. The Senate is not a rubberstamp for the 
White House. The message of Monday's agreement is clear: Abuse of power 
will not be tolerated. Attempts to trample the Constitution will be 
stopped.
  Over the last few weeks, the Republican Party has shown itself to be 
outside the mainstream, holding up the Senate over the judges while gas 
prices have jumped up through the ceiling, stubbornly insisting on the 
Social Security plan that cuts benefits and makes matters worse, 
passing a budget that offers plenty to corporations but little to 
students, nurses, and cops, and running roughshod over ethics rules. 
These are not the priorities of the American people. The American 
people want us to get back to what is of central concern to their 
lives, the lives of their children, their parents, and their neighbors. 
That is what we ought to be about doing, and preserving the 
Constitution and the rules of the Senate. The agreement that was made 
in a bipartisan way does that, and it should be supported by our 
colleagues in the Senate.
  I reserve the remainder of our time.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, No. 1, there has been a lot said about 
last night. I was one of the signatories of the agreement. I think last 
night gives us a chance to start over. Seldom in life do people get a 
chance to start over and learn from their mistakes.
  There have been some mistakes made for about 20 years on judges, and 
it finally all caught up with us. It started with Judge Bork. He was 
the first person I can remember in our lifetime who was basically 
subjected to ``how will he decide a particular case,'' and he was 
attacked because of his philosophy, not because of his qualifications. 
It has just gotten worse over time. Clarence Thomas--we all remember 
that.
  The truth is, when the Republicans were in charge of the Judiciary 
Committee, there is a pretty good case to be made that some of 
President Clinton's nominees were bottled up when we had control of the 
Judiciary Committee, and they never got out into the normal process.
  Where do we find ourselves now? It started with an attack on one 
person because people did not like the philosophy of that person, which 
was new for the Senate. Before that, when a judge was sent over, we 
looked at whether they were qualified ethically and intellectually.

[[Page 10921]]

  One has to understand that there is a consequence to an election. 
When a President wins an election, that President has a right to send 
nominees over to the Senate for Federal courts. It has always been 
assumed that conservative people are going to pick conservative judges, 
and moderate and liberal people are going to be somewhere in the 
middle. That has worked for 200 years.
  The bottom line is, the President can send over somebody who they 
think is conservative, and they can be fooled. They can send somebody 
they think is liberal, and over a lifetime they may change. What we 
have been able to do as a body is to push back but eventually give 
people a chance to be voted on.
  I was a ``yes'' vote. Senator DeWine and myself were ready to vote 
for the nuclear option this morning if we had to, the constitutional 
option. It can be called whatever one wants to call it, but it would 
have been a mess for the country. It would have been better to end this 
mess now than pass it on to the next generation of Senators because if 
the filibuster becomes an institutional response where 40 Senators 
driven by special interest groups declare war on nominees in the 
future, the consequence will be that the judiciary will be destroyed 
over time. People can get rid of us every 6 years, thank God, but once 
a judge is put on the bench, it is a lifetime appointment. We should be 
serious about that.
  We should also understand that people who want to be judges have 
rejected the political life, and when we make them political pawns and 
political footballs, a lot of good, qualified men and women who are 
moderate, conservative, or liberal will take a pass on sitting on the 
bench. If the filibuster becomes the way we engage each other on 
judges, if it becomes the response of special interest groups to a 
President who won who they are upset with, the Senate will suffer a 
black eye with the American people, but the judiciary will slowly but 
surely become unraveled.
  That is why I think we have a chance to start over. That is why I 
voted for us to start over, and I hope we have learned our lesson.
  As to Priscilla Owen, it is the most manufactured opposition to a 
good person I have seen short of Judge Pickering, only to soon-to-be 
Judge Pryor and a close third is Justice Brown. What has been said 
about these people is beyond the pale. They have been called 
Neanderthals. If one has somebody they know and care about and they are 
thinking about being a judge, I think they need to be given fair 
warning that if they decide a case that a special interest group does 
not like, a lot of bad things are going to be coming their way.
  Do we really need to call three people who have graduated near the 
top of their class, who have had a lifetime of service to the bar, 
Neanderthals? We have a chance to start over, and we better take it, 
because one thing the American people have from this whole show is that 
the Senate is out of touch with who they are and what they believe 
because we have allowed this thing to sink into the abyss. Priscilla 
Owen got 84 percent of the vote in Texas, and John Cornyn knows her 
well. He served with her. She graduated at the top of her class; scored 
the highest on the bar exam. She has been a solid judge. What has been 
said about her has been a cut-and-paste, manufactured character 
assassination. Whether she is in the mainstream, the best way to find 
out is when people vote. When Priscilla Owen finally gets a vote here 
soon, you are going to see she is very much in the mainstream, if a 
supermajority of Senators count for anything. She is going to get 
votes. She is going to get a lot more than 50 of them. So is Judge 
Pryor.
  The problem I have had with Bill Pryor and the way he has been 
handled is that he is the type person I grew up with. He is a 
conservative person. He is a good family man. But he has made some 
calls in Alabama that are unbelievably heroic, when it comes to 
politics and the law. Being for the Ten Commandments is a big deal in 
Alabama. Judge Moore, Justice Moore took that and rode that horse and 
beat it to death and it got to be a hot issue in Alabama and it got to 
be a hot issue all over the country. The attorney general of Alabama, 
Bill Pryor, followed the law and took on Justice Moore. He didn't have 
to, but he chose to.
  At every turn he has proved to me he is bigger than the political 
moment. When he gets voted on, I am going to take this floor and we are 
going to talk a little bit longer about him. The people in Alabama 
across the board should be proud of Bill Pryor. He is going to make a 
heck of a Federal judge.
  Now, where do we go? This agreement was among 14 Senators who 
believed that starting over would matter--14 Senators from different 
regions of the country, supported by their colleagues in a quiet 
fashion, more than you will ever know. What happens in the future 
depends on all of us working together. It depends on trust and good 
faith. The White House needs to talk with us more, and they will. Our 
Democratic friends need to understand that the filibuster as a tool to 
punish George W. Bush is not going to sustain you very long and will 
put you on the wrong side of the American people and will eventually 
destroy the judiciary.
  The agreement says that in future nomination battles, the seven 
Democrats will not filibuster unless there are extraordinary 
circumstances. What does that mean? Well, we will know it when we see 
it. It means we will keep talking. It means they don't have to lay down 
in the road if there is a Supreme Court fight. There is going to be a 
Supreme Court nomination coming, probably soon, and that is what this 
is about. But our seven Democratic colleagues decided to find a middle 
way to bring some calm to the body. I think we can get a conservative 
justice nominated and confirmed if we try hard. Nobody should expect 
anything less from George W. Bush. But there is a way to get there from 
here and I do believe the seven Democrats who signed this agreement 
will work very hard to make that happen along with all Senators at the 
end of day.
  But if there comes a point in time in the future when one of the 
seven Democrats believes this person before them is so unacceptable 
they have to get back in the filibuster business, here is what it means 
to the Republicans--because I helped write the language. It means we 
will talk, we will listen, and we will discuss why they feel that way. 
But it means I am back in the ball game. If one of the seven decides to 
filibuster and I believe it is not an extraordinary circumstance for 
the country, for the process, then I have retained my rights under this 
agreement to change the rules if I think that is best for the country. 
That is only fair. My belief is we will never have to cross that 
bridge. But those who say this is a one-sided deal misrepresent what 
happened in that room. This is about moving forward, avoiding conflict 
in the future by talking and trusting.
  But there may come a time, and I hope to God it doesn't happen, where 
we go different directions. The only reason we will ever go different 
directions is that we will start playing politics again and lose sight 
of the common good.
  The two nominees who were in category two I think will get back in 
the process in a fair way. The truth is all of the nominees were never 
going to make it. There are some Republicans who will vote against some 
of these nominees. But they all deserve a fair process and they all 
deserve to be fairly treated. None of them deserve to be called 
Neanderthals.
  It is my hope and my belief we will get this group of nominees fairly 
dealt with. Some are going to make it and some will not. But they will 
get the process back to the way it used to be. As to the future, it is 
my belief that by talking and working together in collaboration with 
the White House, we can pick Supreme Court Justices, if that day ever 
comes, so that everybody can be at least happy with the process, if not 
proud of the nominee. That is possible because we have done it for 200 
years. But please don't say, as a Democrat, you can do anything you 
want to do in the 109th Congress and nothing can happen, because that 
is not true.
  I have every confidence we can get through this mess, but there is no 
agreement that allows one side to unilaterally do what it would like to 
do

[[Page 10922]]

and the other side be ignored. Because if that were the case, it wasn't 
much of an agreement.
  I look forward to voting for Justice Owen, I look forward to voting 
for Judge Pryor, I look forward to voting for Justice Brown, and 
putting to rest the idea that these nominees were out of the 
mainstream.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Before my friend and colleague from South Carolina 
leaves, I want to congratulate him and my colleagues on both sides of 
the aisle for bringing us to this point. The most important point about 
what has happened in the last 12 hours is we have maintained the checks 
and balances in the Senate. We are retaining the ability for minority 
views to be heard. That is most important.
  It is not always Democrats versus Republicans. It could be little 
States, such as the State of my friend from Delaware, whom I see on the 
floor, versus Michigan or California. It could be different groups of 
people. It could be Great Lakes Senators banding together to protect 
our Great Lakes versus others who want to divert water. It could be a 
variety of issues.
  The fact that the Senate is the place we can come together and 
minority views can be heard is a part of our democratic process. It is 
a part of our democracy that has held us together for over 200 years. I 
commend my colleagues for standing up and saying no to eliminating the 
filibuster and no to eliminating the checks and balances of our 
Government.
  It involves some compromise, as these agreements always do. While I 
personally will not support the nomination of the person before us 
today, I understand that in order to maintain the broad principle of 
checks and balances in the Senate, in order to allow us to exercise our 
minority views at a future point if there are extreme nominees coming 
forward, this was an important compromise to make.
  Part of that is an important piece that Senator Levin and I 
contributed to the process of allowing the Senate to move forward on 
three nominees of the Sixth Circuit from Michigan. So there are 
compromises that have been made in the interests of the larger good, in 
the interests of maintaining the checks and balances, the ability for 
us to work together on both sides of the aisle to get things done for 
the American people. That is why we are here.
  Now we need to get about the business of getting things done for 
people. When I go home every weekend, when I talk to my family in 
Michigan, when I talk to everyone I represent--families all across 
Michigan, they say, We want you to focus on jobs, American jobs. We 
want our jobs here. We want to reward work in this country and know 
that when we work hard every day and play by the rules, we are going to 
be able to care for our families and that we have respect for the 
dignity of work and that we will reward Americans who are working hard 
every day.
  They say to me they are desperately concerned about their pensions. 
Look what is happening. We in this body need to be focusing on 
protecting the pensions, the retirement security of all the Americans 
who worked all their lives. They put that money aside and they count on 
that pension in retirement for themselves and their families. Now they 
are seeing that American dream eroded. Pension security, strengthening 
Social Security, making sure health care is available to every 
American--these are the issues that, in this body, we need to be 
working on together because they directly affect every single person we 
represent.
  I am hopeful we will now be able to put this aside and we will be 
able to move on with the people's agenda for this country, creating 
opportunities for everybody to succeed, rewarding work, making sure we 
are protecting and expanding American jobs and American businesses, 
making sure we are energy independent.
  We will be having legislation brought before us shortly. I know there 
is important bipartisan work going on. But we need to say we are going 
to be independent in terms of energy resources and that we are going to 
move forward as well on issues that relate to national security--not 
only a strong defense abroad but making sure our police officers and 
firefighters have what they need, and our emergency responders, so that 
we have security at home. When somebody calls 911, they will know they 
are going to get the response they need in terms of their security.
  We have a lot of work to do. People are expecting us to get about the 
people's business. I am very proud that last night our leader on this 
side of the aisle, the Democratic leader, Senator Reid, spoke to those 
issues. In praising where we are now, the fact that we will continue to 
have the rules and checks and balances of the Senate, he also then 
spoke about the fact that we have to get about the people's business 
because every day when people get up in the morning they are wondering 
what is going to happen that day for themselves and their families.
  It is our job to do everything we can to make sure their hard work is 
rewarded and opportunities for the future, for our children and 
grandchildren, are protected. This is a fight for the future. It is a 
fight about where we need to go as a country. Our families are counting 
on us to turn to the things they care about every day. The values and 
priorities of the American people need to be what we are talking about 
and acting on in this Chamber. I am hopeful we will very quickly turn 
to those matters: jobs, health care for every single American, 
opportunities for our kids to be successful, energy independence, a 
strong defense here and abroad. If we do that, then we will be able to 
hold our heads high, because we will have done those things that matter 
most to the families we represent.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, when I was in college and law school, 
there was a character played by the actress Gilda Radner on ``Saturday 
Night Live,'' who was known best for purporting to do the news and 
would engage in this screed about some subject, and then she would be 
corrected, only to have her then reply, ``Never mind.''
  I thought about that when I have contemplated the occurrences of the 
last few days, particularly the last day when it came to the sort of 
apocalyptic terms that were used as we approached breaking the logjam 
over the President's long-delayed judicial nominees. But for this 
secret negotiation conducted by 14 Senators that none of the rest of 
the Senate was a party to, we would be, I believe, about the process of 
reestablishing the precedent of majority rule that had prevailed for 
214 years in the Senate, that would say any President's nominees, 
whether they be Republican or Democrat, if they have the support of a 
majority of the Senate, will get an up-or-down vote in the Senate. 
Senators who believe these nominees should be confirmed can vote for 
them and those who believe they should not be confirmed can vote 
against them.
  I was not a party to the negotiations and what happened in this room 
off the Senate floor, but I do have some concerns I wanted to express 
about what has happened.
  It is important to recognize what this so-called agreement among 
these 14 Senators does and what it does not do. First of all, one of 
the things it does, it means that at least three of the President's 
nominees--Bill Pryor, Janice Rogers Brown, and Priscilla Owen--will get 
an up-or-down vote on the Senate floor and that they will be, I trust, 
confirmed to serve in the Federal judiciary.
  What this agreement by these 14 Senators does not do, it does not 
give any assurance that other nominees of the President--Mr. Myers, in 
particular, and others--will get an up-or-down vote that they deserve 
according to the common understanding of the Senate for more than 200 
years by which those who enjoyed majority support did get that vote and 
did get confirmed.
  What this agreement says, we are told, is that seven Democrats and, 
presumably, seven Republicans reserve the right to filibuster judicial 
nominees

[[Page 10923]]

under extraordinary circumstances, but we are left to wonder what those 
extraordinary circumstances might be. What makes me so skeptical about 
this agreement among these 14 is that extraordinary circumstances are 
in the eye of the beholder.
  Looking at the litany of false charges made against Priscilla Owen 
for the last 4 years makes me skeptical that any nominee, no matter how 
qualified, no matter how deserving, that under appropriate 
circumstances our colleagues, some of our colleagues, will find the 
circumstances extraordinary and still reserve unto themselves what they 
perceive as their right to engage in a filibuster and deny a bipartisan 
majority our right to an up-or-down vote.
  It is clear to me this agreement among these 14 to which 86 Senators 
were not a party does not solve anything. What it does do is perhaps 
delay the inevitable. Senator DeWine, in particular, one of the 
signatories of this agreement, says this is an effort to break the 
logjam on these three nominees, hopefully, change the standard by which 
at least seven Senators on the other side of the aisle will engage in a 
filibuster, and perhaps start anew.
  I hope Senator DeWine is correct in his reading and his understanding 
of this agreement. I was not a party to it; presumably, 84 Senators 
were not a party to it. Negotiations took place in a room where I 
didn't participate, where the American people were not given the 
opportunity to listen and judge for themselves.
  The thing that disturbs me most about this temporary resolution, if 
you can call it that, is that while 7 Republicans and 7 Democrats were 
a party to this agreement, a product of these negotiations, the fact is 
that the 7 Republicans of this 14 would have agreed to close off debate 
and would have agreed to allow an up-and-down vote, while it is clear 
that the 7 Democrats would not have agreed otherwise to withhold the 
filibuster and allow an up-or-down vote.
  What reminds me so much of Roseanne Rosannadanna on Saturday Night 
Live and Gilda Radner, now in effect what they are saying after 4 years 
of character assassination, unjustified attacks, and a blatant 
misrepresentation of the record of these fine nominees, they are 
saying, in effect, never mind, as if it never happened. But it did 
happen. It is important to recognize what has happened. It is a blight 
on the record of this body, and it is further evidence of how broken 
our judicial confirmation process has been.
  I have nothing but admiration for the courage of our majority leader 
in bringing us to this point. I believe if he had not had the courage 
and determination--and, I might add, our assistant majority leader, 
Mitch McConnell--if our leadership had not had the determination to 
bring us to this point, I have no doubt that we would not have reached 
at least this temporary resolution. They are entitled to a whole lot of 
credit for their courage and their willingness to hold the feet to the 
fire of those in the partisan minority who would have denied a 
bipartisan majority the right to an up-and-down vote on these nominees.
  This agreement of these 14 Senators delays but does not solve the 
problem. Of course, we all anticipate that before long, there will be a 
Supreme Court vacancy which will test this definition of what these 14 
call extraordinary circumstances. I wonder whether this standard will 
be applied to the other nominees who were not explicitly covered by 
this agreement; that is, other nominees who have been pending for years 
who were not given, as Justice Owen, Justice Brown, and Judge Pryor 
have been, the opportunity for an up-or-down vote.
  Let me say I hope I am wrong. But there is plenty of reason to be 
skeptical about this so-called agreement of these 14. Perhaps we will 
see a triumph of hope over experience, but our experience over the last 
4 years has been a bad one and one which I don't think reflects well on 
the Senate.
  I hope I am wrong. I hope what has been established is a new 
precedent that says that the filibuster is inappropriate and will not 
be used against judicial nominees because of perceived difference in 
judicial philosophy, that people who have certain fundamental 
convictions will not automatically be disqualified from judicial 
office. I hope that is where we are. As we know, though, extraordinary 
circumstances could be interpreted by some to mean that if you can 
vilify and demonize a nominee enough, that, indeed, the filibuster 
continues to be justified. We know from the false accusations made 
against too many of President Bush's nominees how easy that is to do.
  After $10 million--that is one estimate I have heard--in the various 
special interest attack ads have been run against Priscilla Owen and 
Janice Rogers Brown and others, after $10 million or more, perhaps, the 
American people are told, never mind, we did not really mean it; or 
even if we did mean it, you are not supposed to take us seriously 
because what this is all about is a game.
  This is about the politics of character assassination, the politics 
of personal destruction. In Washington, perhaps people can be forgiven 
for believing that happens far too much. Indeed, that is what has 
happened with these fine nominees. But now they are told, particularly 
in the case of Justice Owen, after 4 years, never mind, all the things 
that were said about you, all the questions raised are beside the 
point, and you are not going to serve on the Fifth Circuit Court of 
Appeals after waiting 4 years for an up-or-down vote.
  I worry some nominees in the future will simply say: I am not going 
to put my family through that. I think about Miguel Estrada, who waited 
2 years for an up-or-down vote with the wonderful American success 
story, but after 2 years he simply had to say: I can't wait anymore. My 
reputation cannot sustain the continued unjustified attacks. I am 
simply going to withdraw.
  Unfortunately, when we have good men and women who simply say, I 
can't pay the price that public service demands of me and demands of my 
family, I fear we are all losers as a result of that process.
  I am skeptical of this agreement made by 14 after secret negotiations 
that we were not a party to. Perhaps I am being unduly skeptical. I 
hope I am wrong. I hope what has happened today and I hope we are 
reassured over the hours and days that lie ahead that what has been 
established is a new precedent, one that says we will not filibuster 
judicial nominees, we are not going to assassinate their character, we 
are not going to spend millions of dollars demonizing them.
  I hope I am wrong and that we have a fresh start when it comes to 
judicial nominations. The American people deserve better. These 
nominees deserve better. This Senate deserves better than what we have 
seen over the last 4 years.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Delaware.
  Mr. CARPER. Mr. President, a week ago, I stood in this Chamber and I 
reminded Members to look back some 200 years. The issue of how we are 
going to nominate and confirm judicial appointees is not a new issue. 
At the 1787 Constitutional Convention in Philadelphia, there were many 
issues to resolve. One of the last issues resolved was, who is going to 
select these Federal judges to serve a lifetime appointment?
  Ben Franklin led the forces on one side in an effort to try to curb 
the powers of this President we are going to establish to make sure we 
did not have a king in this country. And Ben Franklin and those who 
sided with him said the judges ought to be selected by the Senate, by 
the Congress.
  There was another school of thought that prevailed as well in the 
Constitutional Convention, those forces led by Alexander Hamilton. 
Hamilton and his allies said: No, the President should choose the 
people who are going to serve lifetime appointments to the Federal 
bench.
  In the end, a compromise was proposed and voted on. Here is the 
compromise: The President will nominate, with the advice and consent of 
the Senate, men and women to serve lifetime appointments to the Federal 
bench. That compromise was voted on. It was defeated. They wrangled for 
a while

[[Page 10924]]

longer and came back and they voted on the same compromise again. It 
was defeated. They went back and wrangled among themselves and came 
back and voted a third time on the same compromise. And it was 
accepted. That was 1787.
  A lot of years have passed since then, and this issue, this check and 
balance that was embedded in our Constitution, is one we have revisited 
over and over again. We did it this week. It was a big issue when 
Thomas Jefferson was President, the beginning of his second term when 
he sought to stack the courts and was rebuffed by his own party. That 
was in the 1800s. It was a big issue in the 1900s when FDR, at the 
beginning of his second term, sought to stack the courts, pack the 
courts. He, too, was rebuffed largely by his own party.
  Is this compromise hammered out over the last couple of weeks going 
to last forever? My guess is probably not. Just as this has been an 
issue of contention for over 200 years, it is probably going to be a 
source of controversy for a while longer.
  My friend from Texas, who spoke just before me, talked about the 
mistreatment of those who have been nominated to serve on the Federal 
bench by President Bush over the last 4 years. He mentioned a number, 
as it turns out, about 10 out of over 200, who were confirmed over the 
last 4 years. He mentions the 10 who, frankly, have had their lives 
disrupted, and in some cases were held up to poor commentary in the 
public and in the Senate with respect to their worthiness to serve on 
the bench for a lifetime appointment.
  I like to practice treating other people the way I want to be 
treated. I know most of us try to live by that credo. Sometimes we fall 
short. I know I do. But I think just to be fair we ought to go back to 
the first 4 years of when Bill Clinton was President. It was not just 5 
percent of his nominees who were not confirmed. Some 19 percent of his 
nominees were not confirmed. It was not that they were denied a vote on 
the floor, they never got out of committee.
  One person--one person--could put a hold, stop a nominee from even 
having a hearing in the Senate Judiciary Committee. A handful of 
Senators in the committee could deny a nominee ever coming out of 
committee to be debated and voted on in the Senate. And somehow the 
idea that Bill Clinton could only get 81 percent of his nominees 
confirmed the first 4 years was OK for some, but yet a 95-percent 
approval rate for this President's nominees in his first 4 years was 
unacceptable. I see an irony there. I hope others do, too.
  Let me talk about the compromise that is before us. Most compromises 
I have been familiar with, frankly, do not leave either side especially 
happy for the final result. And that certainly is true in this case as 
well. But in the final analysis, the center of this body has held, 
barely, but it has held. A critical element of our Nation's system of 
checks and balances has been tested, but it still lives. For that, most 
of us should be happy--and if not happy, we should at least be 
relieved.
  I believe the path to a productive legislative session has been 
reopened, too. And almost like Lazarus rising from the grave, I think 
prospects for arriving at a middle ground on a whole range of issues we 
face has a new lease on life. We need to transfer the trust that I hope 
has grown out of this negotiation among the seven Democrats and seven 
Republicans. I salute them all for the good work they have done. I am 
not going to get into naming names, but they know who they are, and I 
am grateful to each of them.
  But what we need to do, as a body, as a Senate, is to transfer some 
of the trust that is a foundation of this agreement. We need to capture 
that trust and turn it to addressing some of the most pressing issues 
that face America: our huge and growing dependence on foreign oil, an 
enormous trade deficit and budget deficit, reining in the growth of 
health care and trying to make sure more people have health care 
available, winning this war on terrorism, and finding ways to improve 
our Nation's air quality. All those issues beg to be addressed.
  For this Senator, the good news that comes out of this agreement over 
the last 24 hours is that now we can turn to our Nation's business. We 
can get back to work. We need to. America wants us to.
  For the President and our friends in the White House, let me say, in 
going forward on judicial nominees, if you will consult with the 
Congress--Democrats and Republicans--we can actually approve most of 
those nominees. If this President will nominate mainstream judges, 
conservative judges--I expect them to be Republicans--if he will 
nominate those, for the most part, if they are not outside the 
mainstream, they will be approved. If the President will actually 
consult with the Senate, as the Constitution calls for, we will be 
better off, he will be better off, and, frankly, our Nation will be 
better off.
  The same applies to the legislative agenda that is now before us. For 
if the administration, the President, will work not just with 
Republicans but with Democrats, too, we can make real progress, and 
when we look back on the 109th Congress, we can say, with pride, that 
we got a lot done that needed to get done.
  I yield back the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, how much time is remaining on this side?
  The PRESIDING OFFICER. Under the previous order, debate will continue 
until 11:40. The minority side has 20 minutes remaining. The majority 
side has 1 minute remaining.
  Mr. LEAHY. I thank the distinguished Presiding Officer, my neighbor 
across the Connecticut River.
  Mr. President, last night I spoke, praising the Senators on both 
sides of the aisle who came together to avert the so-called nuclear 
option. I see on the floor the distinguished Senator from Pennsylvania, 
the chairman of the Senate Judiciary Committee. I think those Senators 
have made his and my work a lot easier. I also commend the 
distinguished Senator from Delaware for his comments.
  This President, with the compliance of the Republican majority, has 
tried to push the Senate across an unprecedented threshold that would 
forever change and weaken this body. This move would have stripped the 
minority of the crucial rights that have been a hallmark of this 
chamber, and it would have fundamentally altered the brilliant system 
of checks and balances designed by the Founders.
  This misguided bid for one-party rule, the nuclear option, has been 
deterred for now. This ill-advised power grab was thwarted through the 
work and commitment of a bipartisan group of 14 Senators who have 
prevented the Republican majority leader from pulling this potentially 
devastating trigger. Pursuant to that agreement, I expect a few 
Democrats who had previously voted against cloture on the Owen 
nomination in the last Congress to vote in favor of cloture today. I 
understand that they are taking this action to save the Senate from the 
nuclear option and to preserve the filibuster.
  This Republican tactic put the protection of the rights of the 
minority in this chamber in serious risk. That protection is 
fundamental to the Senate and to the Senate's ability to act as a check 
and balance in our national government. That protection is essential if 
we are to protect the independence of the Judiciary and the Judiciary 
is to remain a protector of the rights of all Americans against the 
overreaching of the political branches.
  I will continue to work in good faith, as I have always done, to 
fulfill the Senate's constitutionally-mandated role as a partner with 
the Executive branch in determining who will serve in the Judiciary. I 
urge all Senators to take these matters to heart and to redouble our 
efforts to invest our advice and consent responsibility with the 
seriousness and scrutiny it deserves. As I have said before, just as 
Democratic Senators alone could not avert the nuclear option, 
Democratic Senators alone cannot assure that the Senate fulfills its 
constitutional role with the check and balance on the Executive. I 
believe Republican Senators will also need to evaluate, with clear 
eyes, each

[[Page 10925]]

of the President's nominees for fitness. If they have doubts about the 
suitability of a nominee to a lifetime judicial appointment, well, they 
can no longer look the other way and wait for Democratic Senators to 
save them from a difficult vote. And there will be a number of 
difficult votes on the horizon on a number of problematic nominees. 
There may be even more.
  But I also remind everybody that while the Senate is supposed to 
serve as a check and balance, the whole process begins with the 
President. I have served here with six Presidents. Five of them have 
consulted with the Senate and worked with the Senate. President Ford, 
President Carter, President Reagan, former President Bush, and 
President Clinton have done that. Frankly, if this President would work 
with Senators on both sides of the aisle to identify and nominate 
consensus choices, we can easily add to the tally of 208 confirmations. 
If the White House will take the view that the President should be a 
uniter and not a divider, then we can make significant progress.
  The design of checks and balances envisioned by the Founders has 
served us well for over 200 years, and the agreement made last night 
has preserved it. Judicial nominations are for lifetime appointments to 
what has always been revered as an independent third branch of 
Government, one that while reliant on the balance between the executive 
and legislative branches, is actually controlled by neither.
  For more than two centuries, these checks and balances have been the 
source of our Government's stability. It has been its hedge against 
tyranny. We have to preserve them in the interests of the American 
people. We do that so the courts can be fair and independent. We should 
not look at our Federal judiciary as being a Democratic judiciary or a 
Republican judiciary. It should be independent of all of us because 
they are the backstop to protect the rights of all Americans against 
encroachment by the Government. And all Americans have a stake in that, 
no matter who may control the Government at any given time.
  The Senate remains available as a rudder that checks against abuse of 
power, and as a keel that defends the independence of the judiciary. As 
the distinguished senior Senator from West Virginia, Mr. Byrd, noted 
last night, the Senate has answered the call sounded by Benjamin 
Franklin at the conclusion of the Constitutional Convention by 
preserving our democracy and our Republic, as the Senate has been 
called upon to do so many times before.
  Now we have before us the controversial nomination of Priscilla Owen. 
I will probably speak to this nomination more after the cloture vote, 
the cloture vote which now is a foregone conclusion. For some reason we 
are still having it, but there is no question, of course, that the 
Senate will now invoke cloture.
  Three years ago, after reviewing her record, hearing her testimony, 
and evaluating her answers, I voted against her confirmation, and I 
explained at length the strong case against confirmation of this 
nomination. Nothing about her record or the reasons that led me then to 
vote against confirmation has changed.
  I believe she has shown herself over the last decade on the Texas 
Supreme Court to be an ends-oriented judicial activist, intent on 
reading her own policy views into the law. She has been the target of 
criticism by her conservative Republican colleagues on the court, in a 
variety of types of cases where the law did not fit her personal views, 
including in cases where she has consistently ruled for big business 
and corporate interests in cases against workers and consumers.
  The conservative Republican majority of the Texas Supreme Court has 
gone out of its way to criticize her and the dissents she joined in 
ways that are highly unusual and in ways which highlight her ends-
oriented activism.
  In FM Properties v. City of Austin, the majority called her dissent 
``nothing more than inflammatory rhetoric.''
  In Montgomery Independent School District v. Davis, the majority, 
which included Alberto Gonzales and two other appointees of then-
Governor George W. Bush, is quite explicit in its view that Justice 
Owen's position disregards the law and that ``the dissenting opinion's 
misconception . . . stems from its disregard of the procedural elements 
the Legislature established,'' and that the ``dissenting opinion not 
only disregards the procedural limitations in the statute but takes a 
position even more extreme than that argued for by the board. . . .''
  In the case of In re Jane Doe, the majority includes an extremely 
unusual section explaining its view of the proper role of judges, 
admonishing the dissenters, including Justice Owen, for going beyond 
their duty to interpret the law in an attempt to fashion policy. In a 
separate concurrence, then-Justice Alberto Gonzales says that to 
construe the law as the dissent did ``would be an unconscionable act of 
judicial activism.''
  I understand he now says that when he wrote that opinion he was not 
referring to her. I recognize why he is saying that. Of course, he has 
to defend not Governor Bush's appointment but now President Bush's 
nomination. But a fair reading of his concurring opinion leads me to 
see it as a criticism of the dissenters, including Justice Owen. And he 
admitted as much in published statements in the New York Times before 
Justice Owen's first hearing before the Judiciary Committee.
  In the case of In re Jane Doe III, Justice Enoch writes specifically 
to rebuke Justice Owen and her fellow dissenters for misconstruing the 
legislature's definition of the sort of abuse that may occur when 
parents are notified of the minor's intent to have an abortion, saying:

       Abuse is abuse; it is neither to be trifled with nor its 
     severity to be second guessed.

  In Weiner v. Wasson, Priscilla Owen went out of her way to ignore 
Texas Supreme Court precedent to vote against a young man injured by a 
doctor's negligence. The young man was only 15 years old. Her 
conservative Republican colleagues on the court, led by then-Justice 
John Cornyn--now the junior Senator from Texas--lectured her about the 
importance of following that 12-year-old case and ruling in the boy's 
favor, calling the legal standard she proposed ``unworkable.''
  In Collins v. Ison-Newsome, yet another case where Justice Owen 
joined a dissent criticized by the majority, the court was offended by 
the dissenters' arguments. The majority says the dissenters agree the 
court's jurisdiction is limited, ``but then argues for the exact 
opposite proposition. . . . This argument defies the Legislature's 
clear and express limits on our jurisdiction.''
  These examples show a judge out of step with the conservative 
Republican majority of the Texas Supreme Court, a majority not afraid 
to explain the danger of Priscilla Owen's activist views.
  Justice Owen has made other bad decisions where she skews her 
decisions to show bias against consumers, against victims, and against 
just plain ordinary people, as she rules in favor of big business and 
corporations. In fact, according to a study conducted last year by the 
Texas Watch Foundation, a nonprofit consumer protection organization in 
Texas, over the last 6 years, Priscilla Owen has not dissented once 
from a majority decision favoring business interests over victims, but 
has managed to differ from the majority and dissent in 22 of the 68 
cases where the majority opinion was for the consumer.
  As one reads case after case, her legal views in so many cases 
involving statutory interpretation simply cannot be reconciled with the 
plain meaning of the statute, the legislative intent, or the majority's 
interpretation.
  This all leads to the conclusion that she sets out to justify a 
preconceived idea of what the law ought to mean. This is not an 
appropriate way for a judge to make decisions, but it is a way for a 
judge to make law from the bench--an activist judge.
  Justice Owen's activism and extremism is noteworthy in a variety of 
cases, including those dealing with business interests, malpractice, 
access to public information, employment discrimination and Texas 
Supreme Court

[[Page 10926]]

jurisdiction, in which she writes against individual plaintiffs time 
and time again, in seeming contradiction of the law as written. A few 
examples of this include:
  FM Properties v. City of Austin, where Justice Owen showed her 
willingness to rule in favor of large private landowners against the 
clear public interest in maintaining a fair regulatory process and 
clean water. Her dissent, which the majority characterized as, 
``nothing more than inflammatory rhetoric,'' was an attempt to favor 
big landowners. At her first hearing, and since, Justice Owen and her 
supporters on the Committee have tried to recast this case as something 
more innocent, but at the time she wrote her dissent, Justice Owen was 
certainly clear about the meaning of this case--property rights for 
corporations.
  GTE Southwest, Inc. v. Bruce, is another example where Justice Owen 
wrote in favor of GTE in a lawsuit by employees for intentional 
infliction of emotional distress. Despite the majority's recitation of 
an exhaustive list of sickening behavior by the supervisor, and its 
clear application of Texas law to those facts, Justice Owen wrote a 
concurring opinion to explain that the conduct was not, as the standard 
requires, so outrageous in character, and so extreme in degree, as to 
go beyond all possible bounds of decency. The majority opinion shows 
Justice Owen's concurrence advocating a point of view that ignores the 
facts in evidence in order to reach a predetermined outcome in the 
corporation's favor.
  City of Garland v. Dallas Morning News, Justice Owen dissented from a 
majority opinion and, again, it is difficult to justify her views other 
than as based on a desire to reach a particular outcome. In this case, 
she seeks to shield government decision-making from public view.
  Quantum Chemical v. Toennies, another troubling case where Justice 
Owen joined a dissent advocating an activist interpretation of a 
clearly written statute, this time in the context of employment 
discrimination. The majority concluded that they must rely on the plain 
language of the statute as amended, which could not be any clearer that 
under Title VII discrimination can be shown to be a motivating factor, 
contrary to Justice Owen's more activist view.
  Mr. President, I said time and time again that when somebody walks 
into a Federal court, they should not have to say, I may be treated one 
way because I am a Republican and a different way because I am a 
Democrat, or one way because I am a plaintiff and a different way 
because I am a defendant, or one way because I am rich, and a different 
way because I am poor. They should be treated on the merits of the 
case, no matter who they are.
  In Priscilla Owen's case, it was almost predetermined how she would 
rule based upon who you are. The rich and powerful are protected. The 
poor or those hurt by the rich and powerful--she is going to rule 
against you. This is judicial activism.
  After all these years, I am sure the President will get the votes to 
put Priscilla Owen on the court. But would it not have been better to 
have nominated somebody who would unite us and not divide us?
  Last night, 14 Senators--7 Republicans and 7 Democrats--said: We will 
protect the Senate, actually protect the Constitution, protect advice 
and consent, and protect the checks and balances by giving the death 
knell to this so-called nuclear option. That was a good first step. But 
I urge the President to look at what was also said in that agreement. 
They called upon the President to now finally work with Senators from 
both parties in these lifetime appointments. No political party should 
own our Federal courts. In fact, no political party should be able to 
control our Federal courts. Let us work together to have courts that 
actually work, that are independent of the executive, independent of 
being swayed, and are truly independent. We can do that and call on the 
President to do what every President since I have been here--the five 
before him--has always done, and that is work with both Republicans and 
Democrats, work to unite us, not divide us.
  The PRESIDING OFFICER. Under the previous order, Member time is 
reserved until 11:40, and the time between 11:40 and 12 o'clock is 
reserved for both the majority and minority leaders.
  Mr. LEAHY. Mr. President, I yield the balance of my time to the 
Democratic leader to use as he wishes.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that the couple of 
extra minutes be divided between the majority leader and me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, in my remarks this morning, I will speak 
very briefly about the Priscilla Owen nomination and, more generally, 
about the negotiations that led to the defeat of the so-called nuclear 
option. As I said this morning, the nuclear option is off the table, 
and we should stop talking about it after today. I continue, though, to 
oppose the nomination of Priscilla Owen for the U.S. Court of Appeals.
  As a member of the Texas Supreme Court, Justice Owen has consistently 
ruled for big business, corporate interests, and cases against workers 
and consumers. Her colleagues on the Texas court, including the man who 
is now Attorney General of the United States, Alberto Gonzales, have 
criticized her decisions. Judge Gonzales even called one of her 
opinions an act of ``unconscionable judicial activism.'' In case after 
case, her record marks her as a judge who is willing to make law from 
the bench rather than following the language of the statute and the 
intent of the legislature. Even on the conservative Supreme Court of 
Texas, Justice Owen is a frequent dissenter, and her opinions reveal an 
extreme ideological approach to the law.
  As a result of the agreement announced last night, it is clear that 
this nominee will receive an up-or-down vote. I intend to vote against 
her confirmation. I urge my colleagues to do so as well. I specifically 
urge my Republican colleagues to render an independent judgment on 
this, and the other nominations will follow in the months to come. I am 
confident they will.
  If Justice Owen is confirmed as a Federal judge, I hope she surprises 
those of us who have fought her nomination. Perhaps her experience as a 
judicial nominee has exposed her to a broader range of views, and that 
experience may make her more sensitive to concerns regarding privacy, 
civil rights, and consumer rights. I have never questioned her 
intellectual capabilities.
  The agreement that will allow Justice Owen to receive an up-or-down 
vote also had the effect of taking the nuclear option off the table for 
this Congress and, I think, in our lifetime. I wish to review what I 
believe was at stake in this debate. The agreement makes clear that the 
Senate rules have not changed. The filibuster remains available to the 
Senate minority, whether it be Democrat or Republican.
  Last night, the seven Democrats agreed that filibusters will be used 
only in extraordinary circumstances. In my view, the fact that there 
have been so few out of the 218 nominations in the last 4 years means 
that filibusters already are rare.
  In any event, the agreement provides that ``each signatory must use 
his or her own discretion and judgment in determining whether 
[extraordinary] circumstances exist.'' This, of course, is a subjective 
test, as it always has been.
  The 14 Democrats and Republicans who entered into the agreement last 
night, and the rest of us who were prepared to vote against the nuclear 
option, stood for the principles of extended debate, minority rights, 
and constitutional checks and balances. For 200 years, the Senate rules 
embodying those principles have protected our liberties and our 
freedoms. Those rules have not made life easy for Presidents and 
parties in power, but that is the way our Constitution was written, and 
that is good.
  Most every occupant of the White House, most every majority on 
Capitol Hill, has grown frustrated with the need to build consensus 
instead of ruling by their own desires. But that is

[[Page 10927]]

precisely what our Founding Fathers intended. That is our Constitution.
  Those Founders created this body as a place secure from the winds of 
whim, a place for deliberation and honorable compromise. It is why 
Nevada, with its little over 2 million people, has as much to say in 
this body as California, which has 35 million people. It is why 
sometimes we are governed not by the principles of ``one man, one 
vote'' but by the principles of one person who rises with a voice of 
conscience and courage.
  When Thomas Jefferson and Franklin Roosevelt tried to pack our 
courts, patriots of both parties put aside their personal interests to 
protect our American rights and rules. In Caro's definitive work, 
``Master of the Senate,'' he has a wonderful 10 pages where he talks 
about Roosevelt's attempt to pack the court. It is so revealing. 
Roosevelt calls Senate leaders to the White House--Democratic leaders--
and the President didn't live in the White House, as they do now. His 
Vice President, James Garner, a former Senator, walked out of that 
meeting shaking his head and said that the President will not get his 
support on this, and he didn't. He didn't get the support of a majority 
of the Democrats. When Jefferson and Roosevelt tried to pack our 
courts, it didn't work because Members of their own parties rose up 
against them. They were both Democrats.
  Nothing in the advice and consent clause of the Constitution mandates 
that a nominee receive a majority vote, or even a vote of any kind. 
According to the Congressional Research Service, over 500 judicial 
nominees since 1945--18 percent of all judicial nominees--were never 
voted on by the full Senate. Most recently, over 60 of President 
Clinton's judicial nominees were denied an up-or-down vote. In 
contrast, we have approved 208 of President Bush's 218 nominees.
  Last night, when I came to the floor, I said it is a happy night for 
me because the 8 years of the Clinton judicial situation are gone. I 
said last night that the 4 years of problems with the Bush 
administration, as it relates to judges, are gone. Why? Because we are 
going to start legislating as Senators should. If there is a problem 
with a judge, that issue will be raised.
  There will be occasions, although very infrequent, where a filibuster 
will take place. That is what the Senate is all about.
  The difference between a 95-percent confirmation rate and a 100-
percent rate is what this country is all about. That 5 percent reflects 
the moderating influence and spirit and openness made possible by the 
advice and consent clause of our Constitution.
  When our Founders pledged their lives and fortunes and their sacred 
honor to the cause of our Revolution, it was not simply to get rid of 
King George III. It was because they had a vision of democracy. James 
Madison, the Father of the Constitution, wrote:

       The accumulation of all powers legislative, executive, and 
     judiciary in the same hands, whether of one, a few, or many--
     and whether hereditary, self-appointed, or elective--may 
     justly be pronounced the very definition of tyranny.

  Stripping away these important checks and balances would have meant 
the Senate becomes merely a rubber-
stamp for the President. It would have meant one political party, be it 
Republicans today or Democrats tomorrow, could effectively seize 
control of our Nation's highest courts. It would have removed the 
checks on the President's power, meaning one man sitting in the White 
House could personally hand out lifetime jobs whose rulings on our 
basic rights can last forever.
  It is too much power for one person. It is too much power for one 
President. It is too much power for one political party. It is not how 
America works.
  Our democracy works when majority rules not with a fist but with an 
outstretched hand that brings people together. The filibuster is there 
to guarantee this.
  The success of the nuclear option would have marked another sad, long 
stride down an ever more slippery slope toward partisan crossfire and a 
loss of our liberties. Instead, this is the moment we turned around and 
began to climb up the hill toward the common goal of national purpose 
and rebuilding of America's promise. America owes a debt of gratitude 
to the 14 Senators who allowed us to be here today.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I begin by thanking the distinguished 
Democratic leader for his comments and noting with particularity his 
statement that the use of the filibuster will be occasional and very 
infrequent. I think that characterization is very important for the 
future of the Senate in the consideration of judicial nominations.
  The term ``extraordinary circumstances'' does not lend itself to any 
easy interpretation. But when the Democratic leader asserts that this 
term means occasional and very infrequent, it is very reassuring.
  The Senator from Nevada went on to say this wipes away 8 years of 
Clinton and 4 years of the second President Bush. That puts the whole 
controversy, in my judgment, into context, because what we have been 
talking about in the course of these filibusters has been the pattern 
of payback which began in the last 2 years of President Reagan's 
administration when Democrats won control of the Senate and the 
Judiciary Committee, where the nominating process was slowed down, and 
4 years of President George H. W. Bush. Then it was exacerbated during 
the administration of President Clinton when we Republicans won the 
Senate in the 1994 election. And for the last 6 years of President 
Clinton's tenure, we had a situation where some 60 judges were bottled 
up in committee, which was about the same as a filibuster.
  I think it is worth noting that both Senator Frist, our Republican 
leader, and Senator Reid, the Democratic leader, are entitled to 
plaudits, because a week ago today, late in the afternoon in a room off 
the first floor, a few steps from where we are at the present time, the 
leaders met with so-called Republican moderates and Democratic 
moderates.
  While not quite the imprimatur of propriety, their presence signified 
they knew what was going on, that they were prepared to participate in 
it, and that, again, while it was not quite the Good Housekeeping stamp 
of approval, they were interested to see what occurred.
  In a series of floor statements on this issue, as the Congressional 
Record will show, I had urged the leaders to remove the party loyalty 
straitjacket from Senators so the Senators could vote their consciences 
because of the consistent comments I heard in the corridors and in the 
cloakrooms by both Republicans and Democrats that they did not like 
where we were headed; that Democrats were not pleased with this pattern 
of filibusters, and Republicans were not pleased with the prospect of 
the so-called constitutional or nuclear option.
  And finally, in effect, that did happen when a group of moderate 
Senators got together, totaling 14 in number, as the parties signatory 
to the memorandum of understanding of last night, to forge an 
arrangement where the very important constitutional checks and 
balances, the very important constitutional separation of powers, would 
be maintained.
  When we talk about the delicate balance of separation of powers, the 
constitutional scholars traditionally talk about it as so-called play 
in the joints. Had there been a formal determination of a rule change 
so that 51 Senators could cut off debate, that would have materially 
affected the delicate separation of powers where the President would 
have had much greater authority, be he a Republican President or a 
Democratic President.
  Similarly, had the so-called constitutional or nuclear option been 
defeated, then I think it is fair to say the minority party--Democrats 
in this situation--would have been emboldened to go further in the use 
of the filibuster.
  The nominees who have been subjected to the filibuster, in my 
judgment, have been held hostage, pawns in this escalating spiral of 
exacerbation by both sides.

[[Page 10928]]

  In my 25 years in the Senate, during all of which I have served on 
the Judiciary Committee, I have seen our committee and this body 
routinely confirm judicial nominees who were the equivalents of those 
who have been filibustered here. These nominees have every bit the 
qualification of circuit judges who have been confirmed in the past.
  Priscilla Owen, who is the specific nominee in question, would have 
been confirmed as a matter of routine had she not been caught up in 
this partisan battle. She has an extraordinary academic record. She was 
cum laude from Baylor both for an undergraduate degree and a law 
degree, scored the highest on the Texas bar exam, worked 17 years with 
a very prestigious law firm in Texas, served 11 years on the Texas 
State Supreme Court, earned well-qualified ratings from the American 
Bar Association, and is personally known to President Bush, who speaks 
of her in the most complimentary terms.
  The senior Senator from Texas, Kay Bailey Hutchison, has been a 
personal friend for years and knows her intimately. She speaks of her 
glowingly. She shepherded her to many private meetings with Senators. I 
spoke with Justice Owen at some length and was very much impressed with 
her on the academic level, on the professional level, and on the 
personal level.
  Our colleague on the Judiciary Committee, Senator John Cornyn, served 
with her on the Texas Supreme Court and, again, spoke of her in 
outstanding terms.
  I have spoken at length about Justice Owen in the past, and I would 
simply incorporate by reference the comments which I made which appear 
in the Congressional Record for May 18 of this year, where I cited a 
selection of cases showing her judicial balance and showing her 
excellent record on the Texas Supreme Court.
  Mr. President, we have been joined by, as I turn around, two 
distinguished Senators--one a current Member of this body, Senator Bill 
Frist, the other a former Member of this body, Senator Alfonse D'Amato. 
I did not recognize him at first because he was not in his pink suit.
  One day, in the back row, Alfonse D'Amato appeared and sang E-I-E-I-O 
in a pink suit. There was some comment in the Chamber about how much it 
improved his appearance. I did not agree with this.
  I have a very short story. I had a brother who was 10 years older 
than I. One day he came down from the drugstore to the junkyard where I 
worked. He said: Arlen, I was just at Russell Drug. Down there they 
were saying you weren't fit to eat with the pigs. But my brother said: 
I stuck up for you, Arlen. I said you were. So when I see Alfonse 
D'Amato on the Senate floor, I remember those good times.
  Now I yield to the distinguished majority leader, whose time I hope I 
have not unduly encroached upon. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, in a few moments, we will vote to conclude 
debate on the nomination of Judge Priscilla Owen to the Fifth Circuit 
Court of Appeals. It has been over 4 years since the Senate began 
consideration of Justice Owen for this position, and the Senate over 
that time has thoroughly and exhaustively investigated, looked at, 
examined, and debated Judge Owen's nomination.
  She has endured 9 hours of committee hearings, more than 500 
questions, and 22 days--it is interesting, 22 days. That is more than 
all sitting Supreme Court Justices combined have had on the floor of 
the Senate--all sitting Supreme Court Justices combined. We have had 
Priscilla Owen's nomination debated on this floor for more days. There 
has been more than 100 hours of floor debate. Now finally, after more 
than 4 years of waiting, Judge Owen will receive a fair up-or-down vote 
on the floor of the Senate.
  As her critics now appear to be concede, Judge Owen is a mainstream 
candidate, who is thoughtful, who is dignified, and imminently 
qualified. Her academic and professional qualifications are 
outstanding. The American Bar Association unanimously--unanimously--
rated her as well qualified, its highest possible rating. She was 
reelected to the Texas Supreme Court with 84 percent of the vote. She 
is supported by Republicans and Democrats on the Texas Supreme Court. 
She has been endorsed by every major newspaper in her State of Texas.
  Moreover, in the face of continuous, sometimes vicious, attacks and 
distortions of her record in the nominations process, Judge Owen has 
shown extraordinary patience with this body. Despite 4 years of attacks 
on her integrity, Priscilla Owen has quietly, has patiently, has 
gracefully waited for an up-or-down vote.
  Priscilla Owen has worked hard, played by the rules, faithfully 
interpreted the law and gained the respect of her colleagues and 
constituents. We cannot ask for more from a judicial nominee. It is 
time to close our debate. It is time to give Justice Owen an up-or-down 
vote on the floor of the Senate.
  Today's vote will allow that up-or-down vote. It will affirm each 
Senator's right to weigh the facts and vote his or her conscience up or 
down, yes or no, confirmed or rejected. It is as simple as that. It is 
about principle. It is about fairness. It is about our constitutional 
duty to give advice and consent.
  Mr. President, I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the hour of 12 
o'clock having arrived, pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will report.
  The 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. 71, the nomination of Priscilla Owen, of Texas, 
     to be United States Circuit Judge for the Fifth Circuit.
         Bill Frist, Arlen Specter, Trent Lott, Lamar Alexander, 
           Jon Kyl, Jim Talent, Wayne Allard, Richard G. Lugar, 
           John Ensign, C.S. Bond, Norm Coleman, Saxby Chambliss, 
           James Inhofe, Mel Martinez, Jim DeMint, George Allen, 
           Kay Bailey Hutchison, John Cornyn.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Priscilla Richman Owen, of Texas, to be United States 
Circuit Judge for the Fifth Circuit Court of Appeals, shall be brought 
to a close? Under the rule, the yeas and nays are mandatory. The clerk 
will call the roll.
  Mr. LEVIN. Parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Under the rules and precedents of the Senate, how many 
votes are required to invoke cloture and end debate on the pending 
nomination?
  The PRESIDING OFFICER. Three-fifths of the Senators duly chosen and 
sworn.
  The clerk will call the roll.
  Mr. LEVIN. Is there an answer to my parliamentary inquiry?
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURKIN. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Burr). Are there any other Senators in the 
Chamber desiring to vote?
  The yeas and nays resulted--yeas 81, nays 18, as follows:

                      [Rollcall Vote No. 127 Ex.]

                                YEAS--81

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Durbin
     Ensign
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu

[[Page 10929]]


     Leahy
     Lieberman
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Schumer
     Sessions
     Shelby
     Smith (OR)
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--18

     Biden
     Boxer
     Cantwell
     Corzine
     Dayton
     Dodd
     Dorgan
     Feingold
     Jeffords
     Kennedy
     Kerry
     Lautenberg
     Levin
     Lincoln
     Murray
     Reed
     Sarbanes
     Stabenow

                             NOT VOTING--1

       
     Inouye
       
  The PRESIDING OFFICER. On this vote, the yeas are 81, the nays are 
18. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.

                          ____________________