[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 11111-11122]
[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 PRESIDING OFFICER. Under the previous order, the Senate will 
resume executive session to consider the following nomination, which 
the clerk will report.
  The bill clerk read the nomination of Priscilla Richman Owen, of 
Texas, to be United States Circuit Judge for the Fifth Circuit.
  Mr. REID. Mr. President, we are going to move forward with a vote on 
Priscilla Owen. It is well that the Senate is moving. There are other 
judges who are waiting and have waited a long time. We have three 
judges from Michigan. There is no reason we can't move those four very 
quickly. They were held up as a result of an intractable procedural 
matter. That is no longer. We can do those judges in a very short 
timeframe.
  We also have a person Senator Hatch has been wanting to have for some 
time now, way into last year, a man by the name of Griffith. We are 
willing to move him. There were some problems. Some Senators will vote 
against him. There is no question about that. Senator Leahy, the 
ranking member of the Judiciary Committee, has made a number of 
negative speeches about Griffith. We will agree to a very short 
timeframe on his nomination and move it on. That would be four 
appellate court judges very quickly. I hope we can do it in the 
immediate future. We could clear four judges today or tomorrow.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be charged equally against both Senators Specter and Leahy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CORZINE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORZINE. Mr. President, I come to the floor to speak briefly 
about the compromise agreement reached on judicial nominees and about 
the pending circuit court nominees.
  Let me begin by saying that I am pleased that, through the agreement 
reached this week, we were able to protect the rights of the minority 
in this body to have our voices heard. That is consistent with the best 
traditions of the Senate. I certainly believe it is consistent with the 
constitutional principle that gave each State two Senators, regardless 
of their number of citizens. So, for example, California has 36 million 
people and Wyoming has a little more than 500,000 citizens. But our 
forefathers saw to it, in an effort to protect the rights of the 
minority, that each State would have two Senators to represent their 
interests.
  I also believe that the agreement, at least at this time and place, 
preserves our constitutional system of checks and balances. So I 
compliment my 14 colleagues who reached this agreement and, in so 
doing, protected two of the most essential principles of American 
government--the rights of the minority and our system of checks and 
balances.
  Let me also say that I am particularly proud of Senator Reid's 
leadership in pushing towards this compromise.

[[Page 11112]]

  That said, my enthusiasm for this compromise is tempered by the 
reality that I see before us. For while I am cautiously optimistic 
about the immediate outcome, I am aware that, like in so many things, 
the devil is in the details. Time will test the meaning of the term, 
``extraordinary circumstances'', that was included in the compromise 
agreement but has not been explicitly defined. And as we all know, 
compromises come with many challenges and I am certain that this 
compromise will be tested through the course of time.
  Indeed, I have been deeply troubled by what has been said by some of 
my colleagues on the Senate floor, including comments made by the 
majority leader, that the so-called nuclear option is still on the 
table. I was also distressed by the suggestion made by some of my 
colleagues that judicial nominees in the future may only be blocked if 
they have personal or ethical problems. I look at the agreement and 
come to a very different conclusion about what the term ``extraordinary 
circumstances'' means. So I am deeply troubled when I hear that the 
nuclear option is still on the table, except under circumstances where 
the nominee has personal or ethical issues. I believe that 
interpretation is inconsistent with the spirit and intent of this 
delicate compromise. And, I note that the agreement specifically--and 
clearly--states that it is up to each individual Senator--using his or 
her own discretion--to decide when a filibuster is appropriate and what 
constitutes extraordinary circumstances. So I believe it requires a lot 
of vigilance and attention as we go forward with judicial nominations 
for appellate and Supreme Court vacancies, jobs that come with lifetime 
appointments. We must ensure that our courts retain the independence 
that has been, and should continue to be, the hallmark of our 
judiciary. The stakes could not be any higher.
  Mr. President, let me now turn specifically to the nominees who are 
before the Senate. I believe many of these individuals are outside the 
mainstream of legal thought. That is why I have opposed them, and that 
is why I supported the filibuster. I believe these individuals--and I 
recognize that they may be very good individuals on a personal level--
have demonstrated, through their judicial records and their public 
communications, that they are outside of the mainstream and that they 
have taken positions that may be fairly labeled, in my view, as 
extremist.
  Likewise, these judicial nominees have shown a willingness to put 
their own political views before the rule of law as set forth in 
established precedent. We need judges who are fair and impartial and 
are absolutely committed to maintaining the credibility and 
independence of our judicial branch. What we do not need are judges who 
substitute their own political views for fact, law, and precedent. That 
would undermine the federal courts and remove the impartiality, 
independence, and fairness that American citizens have come to expect 
in our democracy.
  It is essential that we look for these very qualities--impartiality, 
independence, and fairness--in our judges. We have not seen that, 
unfortunately, in many of the nominees currently before the Senate. I 
believe strongly that we need to oppose these nominations because of 
that--not because of their personal character--but because, in my view, 
they have operated outside of the mainstream and endeavored, through 
judicial activism, to inappropriately alter the law.
  As to Priscilla Owen, I intend to vote against her because of her 
activist judicial opinions. She has consistently voted to throw out 
jury verdicts favoring consumers against corporate interests and she 
has also dismissed suits brought by workers for job-related injuries, 
discrimination, and unfair employment practices. Her record 
demonstrates that Judge Owen operates outside of the mainstream. She is 
outside of the mainstream, both in Texas and in the United States as a 
whole. I note that some of her colleagues on the Texas Supreme Court 
have taken issue with her attempts to disregard generally accepted 
legal precedents and to interfere with the authority of the state 
legislature.
  In addition, I intend to vote against Janice Rogers Brown, William 
Pryor, and William Myers. I intend to vote against them not because of 
their character or their ability to think through problems but because 
of what I believe is their espousal of a legal theory that is far 
outside the mainstream--called the Constitution in Exile theory. This 
theory has been very eloquently argued by a number of jurists but, in 
my belief, falls far outside of the mainstream of legal thought in this 
country. Basically, it is an intent to roll back many of the socially 
progressive actions flowing out of the New Deal and to rescind 
Government protections that have been well established under the law.
  And it is important, in my view, that we consider an individual's 
legal philosophy when we talk about extraordinary circumstances, and 
particularly when we are debating the nomination of someone who intends 
to use that philosophy as a vehicle to change the law. That is judicial 
activism and I believe that it is inappropriate. I also believe that 
this level of judicial activism in a nominee justifies the use of the 
filibuster as we go forward. Not everyone will agree, but I think it is 
absolutely essential that we take this into consideration as we debate 
these nominees.
  I hope we can all move forward within the framework of the 
compromise, which I am very pleased we were able to reach. The 
compromise agreement encourages increased consultation between the 
White House and Republicans and Democrats in the Senate with regard to 
judges. I sincerely hope this will come about. In New Jersey, we have 
been fortunate to have had a good dialogue with the White House on 
judges and have been able to reach a consensus on both district and 
circuit court judges. We currently have additional vacancies--four on 
the district court and one on the circuit court--and I hope we will be 
able to have the same kind of dialogue so that we may reach a consensus 
on these nominees. I am hopeful that we can agree upon judges of whom 
we can all be proud. That is what advise and consent is all about.
  If we follow that spirit, the compromise stands a much better chance 
of working. Again, we need to make sure--and I certainly will be making 
the case--that legal philosophy is taken into consideration when we 
discuss extraordinary circumstances in the future and that we are not 
limited to using the filibuster only when a nominees has personal or 
ethical problems.
  Finally, I am pleased that my colleagues worked so hard--and I again 
compliment all 14 Senators who were a part of that process--to make 
certain that we can get back to working on the issues that the folks I 
know in New Jersey care about. They are getting a little hot under the 
collar about gas prices. They are very concerned as we see the number 
of men and women who have come home either injured or who have 
sacrificed their lives for our country.
  We are about to go into Memorial Day to say thank you to all those 
who throughout the years have protected our country. We have hundreds 
of thousands of individuals now on the ground in Iraq and Afghanistan 
who are protecting us. People want us to be focused on what we are 
doing regarding national security, homeland security, making sure we 
are doing everything we can to keep those troops safe, and trying to 
ensure affordable health care. So I am pleased that we may now open up 
the floor for debate on those issues.
  For a lot of reasons, I am very grateful about this compromise, but I 
do hope that, as we go forward, there is a true commitment to allowing 
for real debate on the meaning of extraordinary circumstances.
  I appreciate very much the opportunity to speak on this and look 
forward to our continuing debates in the days and weeks ahead.
  Mr. BYRD. Mr. President, yesterday I voted to invoke cloture on the 
nomination of Priscilla Owen to sit on the U.S. Court of Appeals for 
the Fifth Circuit. Today I shall vote to confirm her nomination by an 
up-or-down vote.

[[Page 11113]]

  I voted to invoke cloture on this nominee and have committed to do so 
on a number of other pending nominees to preserve the right of extended 
debate in the Senate. For 200 years, Senators have enjoyed the right to 
speak at length on matters dear to them. This essential right has been 
rightfully employed for generations to protect minority rights--both in 
the Senate and nationwide.
  It would have been a travesty to have permitted this cherished right 
of extended debate to be extinguished simply as the result of a 
political squabble over a handful of judges. While passions over these 
seven judges have run high, it is necessary for the Senate to look at 
the bigger picture and stop this partisan bickering over these few 
judges. Now is the time for logic and reason. Now is the time for 
cooler heads to prevail to address the truly weighty matters that 
confront our nation--matters like the need of every American to obtain 
necessary health care, sufficient pension benefits, and affordable 
energy.
  I voted four times previously not to invoke cloture on Priscilla Owen 
because I respected the right of the Senate to hear further debate 
concerning her qualifications, her philosophy, her temperament, and 
exactly what she would be like if she were confirmed to fill this 
lifetime position on the Federal bench. Having examined these aspects, 
as well as her prior record as a justice on the Texas Supreme Court, I 
shall vote in support of her nomination.
  I know that some critics assail Justice Owen's belief that, in 
certain circumstances, minors should be required to notify their 
parents prior to obtaining an abortion. However, I cannot help but 
believe that in many, but perhaps not all, cases, young women would do 
well to seek guidance from their parents or legal guardians, who would 
have their best interests at heart when these young women are 
confronted with making such a difficult decision--a life-altering 
decision that carries with it extraordinary consequences. I have a long 
history of support for parental notification in these kinds of 
difficult circumstances. For example, in 1991, I supported legislation 
that would have required entities receiving grants under title X of the 
Public Health Service Act to provide parental notification in the case 
of minor patients who seek an abortion. Based on my examination of the 
totality of circumstances that surround this nomination, I have decided 
to support the nomination of Priscilla Owen to the Fifth Circuit Court 
of Appeals.
  Mrs. CLINTON. Mr. President, while I commend my Senate colleagues for 
their success at averting an unnecessary showdown over the so-called 
nuclear option, the fact remains that Justice Priscilla Owen is still 
ill suited to serve a lifetime appointment on the Fifth Circuit Court 
of Appeals. While I voted to invoke cloture on her nomination, this was 
done in the spirit of compromise and comity. I remain steadfastly 
opposed to her appointment and note that nothing that has transpired in 
the last 24 hours has changed her record of judicial activism or 
extremism, nor has it changed the fact that she consistently and 
conveniently ignores justice and the rule of law in order to promote a 
conservative political agenda. For these stated reasons, I cannot vote 
in favor of her confirmation, and I urge my colleagues to do the same.
  The American people deserve judges--be they conservative or liberal--
who are dedicated to an evenhanded application of our laws, free of 
political constraints and considerations. Justice Owen's record is 
littered with examples that demonstrate a lack of respect for these 
values. In case after case, Justice Owen shows her willingness to make 
law from the bench rather than follow the language and intent of the 
legislature.
  Justice Owen consistently votes to throw out jury verdicts favoring 
workers and consumers against corporate interests and dismisses suits 
brought by workers for job-related injuries, discrimination and unfair 
employment practices.
  For example, in Fitzgerald v. Advanced Spine Fixation Sys., the Texas 
Supreme Court responded to a certified question from the federal Fifth 
Circuit. Then Texas Supreme Court Justice and current Attorney General 
Alberto Gonzales wrote the majority decision holding that a Texas law 
required manufacturers of harmful products to indemnify sellers who 
defend themselves from litigation related to their sales of these and 
similar products. A dissent authored by Justice Owen would have 
effectively rewritten Texas law to preclude such third-party relief in 
some cases. Gonzales wrote that adopting the manufacturer's position, 
as Owen argued, would require the court to improperly ``judicially 
amend the statute.''
  Justice Owen has also authored many opinions that severely restrict 
or even eliminate the rights of workers. For example, in Montgomery 
Independent School District v. Davis, the 6-3 majority affirmed the 
finding of the lower courts that the school district had to reinstate a 
teacher after finding there was insufficient basis not to renew the 
teacher's contract.
  As she often does, Justice Owen dissented from the majority--a 
majority which included Gonzales and two other Bush nominees. Owen's 
dissent sets forth an interpretation of the statute that was contrary 
to the plain language of the law. The majority rightly points out that 
Owen's dissent, ``not only disregards the procedural limitations in the 
statute but takes a position even more extreme than that argued for by 
the board . .  .''
  In another case, Austin v. Healthtrust Inc., Justice Owen held that 
employees in Texas could be fired for whistle blowing or refusing to 
act illegally. She held that whistle blowers--heroes, as Time Magazine 
entitled them in the wake of the Enron debacle--have no protection in 
her courtroom.
  In a time such as this, we rely on our nation's workers to report 
acts of illegality and provide much needed oversight of corporations. 
Our courts and judges should acknowledge the important role that these 
people play. But, again, Justice Owen does not believe that these brave 
women and men should have access to the courts or a remedy in the law.
  I could go on and on. These cases make clear that Justice Owen is 
ready and willing to take extreme positions that run contrary to the 
facts and the law in order to favor businesses and government.
  Apart from all of the above questionable opinions favoring business, 
Justice Owen has also expressed a particular hostility to women's 
constitutionally protected right to reproductive choice.
  In Texas, there is a law that is constitutional under Supreme Court 
precedent. This law mandates that a minor woman who seeks an abortion 
must notify her parents. The law provides for three exceptions that 
allow a court to offer what's called a ``judicial bypass.'' The law is 
very clear about these three circumstances, yet Justice Owen routinely 
advocates adding additional obstacles to the process and making it much 
harder for a young pregnant woman to exercise her constitutionally 
protected freedom of choice.
  In re Jane Doe I, Justice Owen advocated requiring a minor to show an 
awareness of the ``philosophic, moral, social and religious arguments 
that can be brought to bear'' before obtaining judicial approval for an 
abortion without parental consent, ignoring the explicit requirements 
of the statute.
  This and other opinions prompted Justice Gonzales to criticize Owen 
for attempting to rewrite Texas' parental notification statute, calling 
her opinions In re Jane Doe ``an unconscionable act of judicial 
activism.''
  As her record unequivocally demonstrates, Justice Owen lacks the 
impartiality and dedication to the rule of law to separate her 
conservative political agenda from her judicial opinions. Time after 
time, when presented with an opportunity to cite precedent, Justice 
Owen has instead chosen to interject her own political ideology, doing 
the litigants before her and the rule of law a tremendous injustice. 
Our federal courts and our constituents deserve better.
  Finally, Mr. President, as has been noted by many of my colleagues 
over

[[Page 11114]]

the last several weeks, the Constitution commands that the Senate 
provide meaningful Advice and Consent to the President on judicial 
nominations. I encourage the President to heed the call of our Senate 
colleagues who brokered the deal that spared this body from the nuclear 
option--consult with both Democratic and Republican Senators before 
submitting judicial nominations to the Senate for consideration. Only 
then can our Constitutional mandate of Advice and Consent be properly 
honored.
  In the immediate case of Justice Priscilla Owen, after reviewing her 
judicial opinions and examining her qualifications for a lifetime 
appointment on the Fifth Circuit Court of Appeals, I feel it is my 
Constitutional duty to deny her nomination my consent, and I urge my 
Senate colleagues to join me in opposing her appointment.
  Mr. LEAHY. Mr. President, 3 years ago I first considered the 
nomination of Priscilla Owen to be a judge on the United States Court 
of Appeals for the Fifth Circuit. After reviewing her record, hearing 
her testimony and evaluating her answers I voted against her 
confirmation and 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 since 
then.
  Now that the Republican leadership's misguided bid for one-party 
rule, the nuclear option, has been deterred, we have arrived at a 
moment when every one of the 100 of us must examine Priscilla Owen's 
record and decide for him or herself whether it merits a lifetime 
appointment to the Fifth Circuit.
  I believe Justice Owen 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, and 
not just in the context of the parental notification cases that have 
been discussed so often before, but 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 worker and consumers. This sort of judging ought not to 
be rewarded with such an important and permanent promotion.
  In 2001, Justice Owen was nominated to fill a vacancy that had by 
that time existed for more than four years, since January 1997. In the 
intervening 5 years, President Clinton nominated Jorge Rangel, a 
distinguished Hispanic attorney from Corpus Christi, to fill that 
vacancy. Despite his qualifications, and his unanimous rating of Well 
Qualified by the ABA, Mr. Rangel never received a hearing from the 
Judiciary Committee, and his nomination was returned to the President 
without Senate action at the end of 1998, after a fruitless wait of 15 
months.
  On September 16, 1999, President Clinton nominated Enrique Moreno, 
another outstanding Hispanic attorney, to fill that same vacancy. Mr. 
Moreno did not receive a hearing on his nomination either--over a span 
of more than 17 months. President Bush withdrew the nomination of 
Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name 
in its place. It was not until May of 2002, at a hearing presided over 
by Senator Schumer, which the Judiciary Committee heard from any of 
President Clinton's three unsuccessful nominees to the Fifth Circuit. 
At that time, Mr. Moreno and Mr. Rangel, joined by a number of other 
Clinton nominees, testified about their treatment by the Republican 
majority. Thus, Justice Owen's was the third nomination to this vacancy 
and the first to be accorded a hearing before the Committee.
  In fact, when the Judiciary Committee held its hearing on the 
nomination of Judge Edith Clement to the Fifth Circuit in 2001, during 
the most recent period of Democratic control of the Senate, it was the 
first hearing on a Fifth Circuit nominee in 7 years. By contrast, 
Justice Owen was the third nomination to the Fifth Circuit on which the 
Judiciary Committee held a hearing in less than 1 year. In spite of the 
treatment by the former Republican majority of so many moderate 
judicial nominees of the previous President, we proceeded in July of 
2001--as I said that we would--with a hearing on Justice Owen.
  Justice Owen is one of among 20 Texas nominees who were considered by 
the Judiciary Committee while I was Chairman. That included nine 
District Court judges, four United States Attorneys, three United 
States Marshals, and three Executive Branch appointees from Texas who 
moved swiftly through the Judiciary Committee.
  When Justice Owen was initially nominated, the President changed the 
confirmation process from that used by Republican and Democratic 
Presidents for more than 50 years. That resulted in her ABA peer review 
not being received until later that summer. As a result of a Republican 
objection to the Democratic leadership's request to retain all judicial 
nominations pending before the Senate through the August recess in 
2001, the initial nomination of Justice Owen was required by Senate 
rules to be returned to the President without action. The committee 
nonetheless took the unprecedented action of proceeding during the 
August recess to hold two hearings involving judicial nominations, 
including a nominee to the Court of Appeals for the Federal Circuit.
  In my efforts to accommodate a number of Republican Senators--
including the Republican leader, the Judiciary Committee's ranking 
member, and at least four other Republican members of the committee--I 
scheduled hearings for nominees out of the order in which they were 
received that year, in accordance with longstanding practice of the 
committee.
  As I consistently indicated, and as any chairman can explain, less 
controversial nominations are easier to consider and are, by and large, 
able to be scheduled sooner than more controversial nominations. This 
is especially important in the circumstances that existed at the time 
of the change in majority in 2001. At that time we faced what 
Republicans have now admitted had become a vacancy crisis in the 
federal courts. From January 1995, when the Republican majority assumed 
control of the confirmation process in the Senate, until the shift in 
majority, vacancies rose from 65 to 110 and vacancies on the Courts of 
Appeals more than doubled from 16 to 33. I thought it important to make 
as much progress as quickly as we could in the time available to us 
that year, and we did. In fact, through the end of President Bush's 
first term, we saw those 110 vacancies plummet to 27, the lowest 
vacancy rate since the Reagan administration.
  The responsibility to advise and consent on the President's nominees 
is one that I take seriously and that the Judiciary Committee takes 
seriously. Justice Owen's nomination to the Court of Appeals has been 
given a fair hearing and a fair process before the Judiciary Committee. 
I thank all members of the committee for being fair. Those who had 
concerns had the opportunity to raise them and heard the nominee's 
response, in private meetings, at her public hearing and in written 
follow-up questions.
  I would particularly like to commend Senator Feinstein, who chaired 
the hearing for Justice Owen, for managing that hearing so fairly and 
evenhand-
edly. It was a long day, where nearly every Senator who is a member of 
the committee came to question Justice Owen, and Senator Feinstein 
handled it with patience and equanimity.
  After that hearing, I brought Justice Owen's nomination up for a 
vote, and following an open debate where her opponents discussed her 
record and their objections on the merits, the nomination was rejected. 
Her nomination was fully and openly debated, and it was rejected. That 
fair treatment stands in sharp contrast to the way Republicans had 
treated President Clinton's nominees, including several to the Fifth 
Circuit.
  That should have ended things right there, but it did not. Priscilla 
Owen's nomination was the first judicial nomination ever to be 
resubmitted after already being debated, voted upon and rejected by the 
Senate Judiciary Committee.

[[Page 11115]]

  When the Senate majority shifted, Republicans reconsidered this 
nomination and sent it to the Senate on a straight, party-line vote. 
Never before had a President resubmitted a circuit court nominee 
already rejected by the Senate Judiciary Committee, for the same 
vacancy. And until Senator Hatch gave Justice Owen a second hearing in 
2003, never before had the Judiciary Committee rejected its own 
decision on such a nominee and granted a second hearing. And at that 
second hearing we did not learn much more than the obvious fact that, 
given some time, Justice Owen was able to enlist the help of the 
talented lawyers working at the White House and the Department of 
Justice to come up with some new justifications for her record of 
activism. We learned that given six months to reconsider the severe 
criticism directed at her by her Republican colleagues, she still 
admitted no error. Mostly, we learned that the objections expressed 
originally by the Democrats on the Judiciary Committee were sincerely 
held when they were made and no less valid after a second hearing. 
Nothing Justice Owen said about her record--indeed, nothing anyone else 
tried to explain about her record--was able to actually change her 
record. That was true then, and that is true today.
  Senators who opposed this nomination did so because Priscilla Owen's 
record shows her to be an ends-oriented activist judge. I have 
previously explained my conclusions about Justice Owen's record, but I 
will summarize my objections again today.
  I am not alone in my concerns about Justice Owen. Her extremism has 
been evident even among a conservative Supreme Court of Texas. The 
conservative Republican majority of the Texas Supreme Court has gone 
out of its way to criticize Justice Owen and the dissents she joined in 
ways that are highly unusual, and in ways which highlight her ends-
oriented activism. A number of Texas Supreme Court Justices have 
pointed out how far from the language of statute she strays in her 
attempts to push the law beyond what the legislature intended.
  One example is the majority opinion in Weiner v. Wasson. In this 
case, Justice Owen wrote a dissent advocating a ruling against a 
medical malpractice plaintiff injured while he was still a teenager. 
The issue was the constitutionality of a State law requiring minors to 
file medical malpractice actions before reaching the age of majority, 
or risk being outside the statute of limitations. Of interest is the 
majority's discussion of the importance of abiding by a prior Texas 
Supreme Court decision unanimously striking down a previous version of 
the statute. In what reads as a lecture to the dissent, then-Justice 
John Cornyn explains on behalf of the majority:
  Generally, we adhere to our precedents for reasons of efficiency, 
fairness, and legitimacy. First, if we did not follow our own 
decisions, no issue could ever be considered resolved. The potential 
volume of speculative relitigation under such circumstances alone ought 
to persuade us that stare decisis is a sound policy. Secondly, we 
should give due consideration to the settled expectations of litigants 
like Emmanuel Wasson, who have justifiably relied on the principles 
articulated in [the previous case]. . . . Finally, under our form of 
government, the legitimacy of the judiciary rests in large part upon a 
stable and predictable decisionmaking process that differs dramatically 
from that properly employed by the political branches of government.
  According to the conservative majority on the Texas Supreme Court, 
Justice Owen went out of her way to ignore precedent and would have 
ruled for the defendants. The conservative Republican majority, in 
contrast to Justice Owen, followed precedent and the doctrine of stare 
decisis. A clear example of Justice Owen's judicial activism.
  In Montgomery Independent School District v. Davis, Justice Owen 
wrote another dissent which drew fire from a conservative Republican 
majority--this time for her disregard for legislative language. In a 
challenge by a teacher who did not receive reappointment to her 
position, the majority found that the school board had exceeded its 
authority when it disregarded the Texas Education Code and tried to 
overrule a hearing examiner's decision on the matter. Justice Owen's 
dissent advocated for an interpretation contrary to the language of the 
applicable statute. The majority, which included Alberto Gonzales and 
two other appointees of then-Governor Bush, was quite explicit about 
its view that Justice Owen's position disregarded the law:

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

  The majority also noted that:

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

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

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

  They continue:

       [T]he dissenting opinion's reading of Government Code sec. 
     22.225(c) conflates conflicts jurisdiction with dissent 
     jurisdiction, thereby erasing any distinction between these 
     two separate bases for jurisdiction. The Legislature 
     identified them as distinct bases for jurisdiction in 
     sections 22.001(a)(1) and (a)(2), and section 22.225(c) 
     refers specifically to the two separate provisions of section 
     22.001(a) providing for conflicts and dissent jurisdiction. . 
     . . [W]e cannot simply ignore the legislative limits on our 
     jurisdiction, and not even Petitioners argue that we should 
     do so on this basis.

  Again, Justice Owen joined a dissent that the Republican majority 
described as defiant of legislative intent and in disregard of 
legislatively drawn limits. This is yet another clear example of 
Justice Owen's judicial activism.
  Some of the most striking examples of criticism of Justice Owen's 
writings, or the dissents and concurrences she joins, come in a series 
of parental notification cases heard in 2000. They include:

       In In re Jane Doe 1, where the majority included an 
     extremely unusual section explaining its view of the proper 
     role of judges, admonishing the dissent, joined by Justice 
     Owen, for going beyond its duty to interpret the law in an 
     attempt to fashion policy.

  Giving a pointed critique of the dissenters, the majority explained 
that, ``In reaching the decision to grant Jane

[[Page 11116]]

Doe's application, we have put aside our personal viewpoints and 
endeavored to do our job as judges--that is, to interpret and apply the 
Legislature's will as it has been expressed in the statute.''
  In a separate concurrence, Justice Alberto Gonzales wrote that to 
construe the law as the dissent did, ``would be an unconscionable act 
of judicial activism.'' A conservative Republican colleague of Justice 
Owen's points squarely to her judicial activism. I know that the 
Attorney General now says that when he wrote that he was not referring 
to her, and I don't blame him for taking that position. After all, he 
is the Attorney General charged with defending her nomination. But 
there is no way to read his concurring opinion as anything other than a 
criticism of the dissenters, Owen included. Listen to the words he 
wrote:

       The dissenting opinions suggest that the exceptions to the 
     general rule of notification should be very rare and require 
     a high standard of proof. I respectfully submit that these 
     are policy decisions for the Legislature. And I find nothing 
     in this statute to directly show that the Legislature 
     intended such a narrow construction. As the Court 
     demonstrates, the Legislature certainly could have written 
     [the law] to make it harder to by pass a parent's right to be 
     involved. . . But it did not. . . . Thus, to construe 
     Parental Notification Act so narrowly as to eliminate 
     bypasses or to create hurdles that simply are not to be found 
     in the words of the statute, would be an unconscionable act 
     of judicial activism.
  Owen is one of two justices who wrote a dissent, so she is naturally 
included in the ``dissenting opinions'' to which he refers. It doesn't 
get much clearer than this. But you don't have to take my word for it. 
Mr. Gonzales himself has acknowledged as much.
  Twice before Justice Owen's first hearing in the Judiciary Committee, 
he and his spokesperson admitted that his comments referred to a 
disagreement between justices. The New York Times of April 7, 2002, 
reported that, ``a spokesman for Mr. Gonzales, minimized the 
significance of the disagreement, [saying] ``Judge Gonzales's opinion 
and Justice Owen's dissent reflect an honest and legitimate difference 
of how to interpret a difficult and vague statute.'' On July 22, 2003, 
the New York Times reported that in an interview he had with the then-
White House Counsel, ``Mr. Gonzales sought to minimize the impact of 
his remarks. He acknowledged that calling someone a `judicial activist' 
was a serious accusation, especially among Republicans who have used 
that term as an imprecation against liberals.''
  Of course, Mr. Gonzales went on to tell the reporter that he still 
supported Justice Owen for the Fifth Circuit, and I expect he would. He 
works for the President and supports his efforts to fill the federal 
courts with ideologues and activists, and I appreciate his honesty. It 
was only years later, when he was before the Judiciary Committee for 
his own confirmation to be Attorney General that he told us his 
comments did not refer to Justice Owen, rather to himself, and what he 
would be doing if he expressed an opinion like that of the dissent. So, 
I will take the Attorney General at his word, but I will take his 
original writing and his earliest statements as the best evidence of 
his view of Justice Owen's opinion in Doe 1, and leave his later, more 
politically influenced statements, to others.
  Jane Doe 1 was not the only one of the parental consent cases where 
Justice Owen's position was criticized by her Republican colleagues. In 
In re Jane Doe 3, 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 a 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 one case that is perhaps the exception that proves the rule, 
Justice Owen wrote a majority opinion that was bitterly criticized by 
the dissent for its activism. In In re City of Georgetown, Justice Owen 
wrote a majority opinion finding that the city did not have to give The 
Austin American-Statesman a report prepared by a consulting expert in 
connection with pending and anticipated litigation because such 
information was expressly made confidential under other law--namely, 
the Texas Rules of Civil Procedure.
  The dissent is extremely critical of Justice Owen's opinion, citing 
the Texas law's strong preference for disclosure and liberal 
construction. Accusing her of activism, Justice Abbott, joined by Chief 
Justice Phillips and Justice Baker, notes that the legislature, 
``expressly identified eighteen categories of information that are 
`public information' and that must be disclosed upon request . . . 
[sec. (a)] The legislature attempted to safeguard its policy of open 
records by adding subsection (b), which limits courts' encroachment on 
its legislatively established policy decisions.'' Id. at 338. The 
dissent further protests:

     [b]ut if this Court has the power to broaden by judicial rule 
     the categories of information that are 'confidential under 
     other law,' then subsection (b) is eviscerated from the 
     statute. By determining what information falls outside 
     subsection (a)'s scope, this Court may evade the mandates of 
     subsection (b) and order information withheld whenever it 
     sees fit. This not only contradicts the spirit and language 
     of subsection (b), it guts it.

  Finally, the opinion concluded by asserting that Justice Owen's 
interpretation, ``abandons strict construction and rewrites the statute 
to eliminate subsection (b)'s restrictions.''
  Yet again, her colleagues on the Texas court, cite Justice Owen's 
judicial activism.
  These examples, together with the unusually harsh language directed 
at Justice Owen's position by the majority in the Doe cases, 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 her 
activist views.
  Justice Owen makes bad decisions even when she is not being 
criticized by her colleagues. Among these decisions are those where she 
skews her decisions to show bias against consumers, victims and just 
plain ordinary people in favor of big business and corporations. As one 
reads case after case, particularly those in which she was the sole 
dissenter or dissented with the extreme right wing of the Court, her 
pattern of activism becomes clear. 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, leading to the conclusion that she sets out to justify 
some pre-conceived idea of what the law ought to mean. This is not an 
appropriate way for a judge to make decisions. This is a judge whose 
record reflects that she is willing and sometimes eager to make law 
from the bench.
  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 jurisdiction, in which she writes against individual 
plaintiffs time and time again, in seeming contradiction of the law as 
written. In fact, according to a study conducted last year by the Texas 
Watch Foundation, a non-profit consumer protection organization in 
Texas, in the last six years, 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.
  One of the cases where this trend is evident in FM Properties v. City 
of Austin, I asked Justice Owen about this 1998 environmental case at 
her hearing. In her dissent from a 6-3 ruling, in which Justice Alberto 
Gonzales was among the majority, 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.
  In this case, the Texas Supreme Court found that a section of the 
Texas Water Code allowing certain private owners of large tracts of 
land to create ``water quality zones,'' and write their own water 
quality regulations and plans, violated the Texas Constitution

[[Page 11117]]

because it improperly delegated legislative power to private entities. 
The court found that the Water Code section gave the private 
landowners, ``legislative duties and powers, the exercise of which may 
adversely affect public interests, including the constitutionally-
protected public interest in water quality.'' The court also found that 
certain aspects of the Code and the factors surrounding its 
implementation weighed against the delegation of power, including the 
lack of meaningful government review, the lack of adequate 
representation of citizens affected by the private owners' actions, the 
breadth of the delegation, and the big landowners' obvious interest in 
maximizing their own profits and minimizing their own costs.
  The majority offered a strong opinion, detailing its legal reasoning 
and explaining the dangers of offering too much legislative power to 
private entities. By contrast, in her dissent, Justice Owen argued 
that, ``[w]hile the Constitution certainly permits the Legislature to 
enact laws that preserve and conserve the State's natural resources, 
there is nothing in the Constitution that requires the Legislature to 
exercise that power in any particular manner,'' ignoring entirely the 
possibility of an unconstitutional delegation of power. Her view 
strongly favored large business interests to the clear detriment of the 
public interest, and against the persuasive legal arguments of a 
majority of the court.
  When I asked her about this case at her hearing, I found her answer 
perplexing. In a way that she did not argue in her written dissent, at 
her hearing Justice Owen attempted to cast the FM Properties case not 
as, ``a fight between and City of Austin and big business, but in all 
honesty, . . . really a fight about . . . the State of Texas versus the 
City of Austin.'' In the written dissent however, she began by stating 
the, ``importance of this case to private property rights and the 
separation of powers between the judicial and legislative branches . . 
.'', and went on to decry the Court's decision as one that, ``will 
impair all manner of property rights.'' At the time she wrote her 
dissent, Justice Owen was certainly clear about the meaning of this 
case property rights for corporations.
  Another case that concerned me is GTE Southwest, Inc. v. Bruce, where 
Justice Owen wrote in favor of GTE in a lawsuit by employees for 
intentional infliction of emotional distress. The rest of the court 
held that three employees subjected to what the majority characterized 
as ``constant humiliating and abusive behavior of their supervisor'' 
were entitled to the jury verdict in their favor. Despite the court'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 her difference of 
opinion on the key legal issue in the case whether the behavior in 
evidence met the legal standard for intentional infliction of emotional 
distress.
  Justice Owen contended 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 an inexplicable point of view 
that ignores the facts in evidence in order to reach a predetermined 
outcome in the corporation's favor.
  Justice Owen's recitation of facts in her concurrence significantly 
minimizes the evidence as presented by the majority. Among the kinds of 
behavior to which the employees were subjected--according to the 
majority opinion--are: Upon his arrival the supervisor, ``began 
regularly using the harshest vulgarity . . . continued to use the word 
``f---'' and ``motherf---r'' frequently when speaking with the 
employees . . . repeatedly physically and verbally threatened and 
terrorized them . . . would frequently assault each of the employees by 
physically charging at them . . . come up fast . . . and get up over 
(the employee) . . . and yell and scream in her face . . . called (an 
employee) into his office every day and . . . have her stand in front 
of him, sometimes for as long as thirty minutes, while (the supervisor) 
simply stared at her . . . made (an employee) get on her hands and 
knees and clean the spots (on the carpet) while he stood over her 
yelling.'' Id. at 613-614. Justice Owen did not believe that such 
conduct was outrageous or outside the bounds of decency under state 
law.
  At her hearing, in answer to Senator Edwards's questions about this 
case, Justice Owen again gave an explanation not to be found in her 
written views. She told him that she agreed with the majority's 
holding, and wrote separately only to make sure that future litigants 
would not be confused and think that out of context, any one of the 
outrages suffered by the plaintiffs would not support a judgment. 
Looking again at her dissent, I do not see why, if that was what she 
truly intended, she did not say so in language plain enough to be 
understood, or why she thought it necessary to write and say it in the 
first place. It is a somewhat curious distinction to make to advocate 
that in a tort case a judge should write a separate concurrence to 
explain which part of the plaintiff's case, standing alone, would not 
support a finding of liability. Neither her written concurrence, nor 
her answers in explanation after the fact, is satisfactory explanation 
of her position in this case.
  In 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 being based on a desire to reach a particular 
outcome. The majority upheld a decision giving the newspaper access to 
a document outlining the reasons why the city's finance director was 
going to be fired. Justice Owen made two arguments: that because the 
document was considered a draft it was not subject to disclosure, and 
that the document was exempt from disclosure because it was part of 
policy making. Both of these exceptions were so large as to swallow the 
rule requiring disclosure. The majority rightly points out that if 
Justice Owen's views prevailed, almost any document could be labeled 
draft to shield it from public view. Moreover, to call a personnel 
decision a part of policy making is such an expansive interpretation it 
would leave little that would not be ``policy.''
  Quantum Chemical v. Toennies is another troubling case where Justice 
Owen joined a dissent advocating an activist interpretation of a 
clearly written statute. In this age discrimination suit brought under 
the Texas civil rights statute, the relevant parts of which were 
modeled on Title VII of the federal Civil Rights Act--and its 
amendments--the appeal to the Texas Supreme Court centered on the 
standard of causation necessary for a finding for the plaintiff. The 
plaintiff argued, and the five justices in the majority agreed, that 
the plain meaning of the statute must be followed, and that the 
plaintiff could prove an unlawful employment practice by showing that 
discrimination was ``a motivating factor.'' The employer corporation 
argued, and Justices Hecht and Owen agreed, that the plain meaning 
could be discarded in favor of a more tortured and unnecessary reading 
of the statute, and that the plaintiff must show that discrimination 
was ``the motivating factor,'' in order to recover damages.
  The portion of Title VII on which the majority relies for its 
interpretation was part of Congress's 1991 fix to the United States 
Supreme Court's opinion in the Price Waterhouse case, which held that 
an employer could avoid liability if the plaintiff could not show 
discrimination was ``the'' motivating factor. Congress's fix, in 
Section 107 of the Civil Rights Act of 1991, does not specify whether 
the motivating factor standard applies to both sorts of discrimination 
cases, the so-called ``mixed motive'' cases as well as the ``pretext'' 
cases.
  The Texas 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. Justice Owen joined Justice Hecht in claiming that federal case 
law is clear--in favor of their view--and opted for a reading of the 
statute that would turn it into its polar opposite, forcing plaintiffs 
into

[[Page 11118]]

just the situation legislators were trying to avoid. This example of 
Justice Owen's desire to change the law from the bench, instead of 
interpret it, fits President Bush's definition of activism to a ``T''.
  Justice Owen has also demonstrated her tendency toward ends-oriented 
decision making quite clearly in a series of dissents and concurrences 
in cases involving a Texas law providing for a judicial bypass of 
parental notification requirements for minors seeking abortions.
  The most striking example is Justice Owen's expression of 
disagreement with the majority's decision on key legal issues in Doe 1, 
which I discussed earlier in a different context. She strongly 
disagreed with the majority's holding on what a minor would have to 
show in order to establish that she was, as the statute requires, 
``sufficiently well informed'' to make the decision on her own. While 
the conservative Republican majority laid out a well-reasoned test for 
this element of the law, based on the plain meaning of the statute and 
well-cited case law, Justice Owen inserted elements found in neither 
authority. Specifically, Justice Owen insisted that the majority's 
requirement that the minor be ``aware of the emotional and 
psychological aspects of undergoing an abortion'' was not sufficient 
and that among other requirements with no basis in the law, she, 
``would require . . . [that the minor] should . . . indicate to the 
court that she is aware of and has considered that there are 
philosophic, social, moral, and religious arguments that can be brought 
to bear when considering abortion.''
  In her written concurrence, Justice Owen indicated, through legal 
citation, that support for this proposition could be found in a 
particular page of the Supreme Court's opinion in Planned Parenthood v. 
Casey. However, when one looks at that portion of the Casey decision, 
one finds no mention of requiring a minor to acknowledge religious or 
moral arguments. The passage talks instead about the ability of a State 
to ``enact rules and regulations designed to encourage her to know that 
there are philosophic and social arguments of great weight that can be 
brought to bear,'' Justice Owen's reliance on this portion of a United 
States Supreme Court opinion to rewrite Texas law was simply wrong.
  As she did in answer to questions about a couple of other cases at 
her hearing, Justice Owen tried to explain away this problem with an 
after-the-fact justification. She told Senator Cantwell that the 
reference to religion was not to be found in Casey after all, but in 
another U.S. Supreme Court case, H.L. v. Matheson. She explained that 
in ``Matheson they talk about that for some people it raises profound 
moral and religious concerns, and they're talking about the 
desirability or the State's interest in these kinds of considerations 
in making an informed decision.'' Transcript at 172. But again, on 
reading Matheson, one sees that the only mention of religion comes in a 
quotation meant to explain why the parents of the minor are due 
notification, not about the contours of what the government may require 
someone to prove to show she was fully well informed. Her reliance on 
Matheson for her proposed rewrite of the law is just as faulty as her 
reliance on Casey. Neither one supports her reading of the law. She 
simply tries a little bit of legal smoke and mirrors to make it appear 
as if they did. This is the sort of ends-oriented decision making that 
destroys the belief of a citizen in a fair legal system. And most 
troubling of all was her indication to Senator Feinstein that she still 
views her dissents in the Doe cases as the proper reading and 
construction of the Texas statute. In these cases, Priscilla Owen tried 
to insert requirements into the law that the Texas legislature had not 
included in the law. Simply put, Justice Owen engaged in judicial 
activism. In fact, as I've said, it was in one of these cases that 
Attorney General Alberto Gonzales, referred to Owen's position in the 
case as ``an unconscionable act of judicial activism.''
  Senators have criticized Justice Owen's activism in the parental 
notification cases. We have not criticized the laws themselves. In 
fact, some Democratic Senators have noted their support for these kinds 
of statutes. Republicans have strayed far from the issue. What is 
relevant here is that Priscilla Owen tried to insert requirements into 
the law that the Texas legislature had not included. A State 
legislature can enact constitutional parental notification laws. A 
judge is not supposed to rewrite the law but to apply it to the facts 
and to ensure its constitutionality.
  If she wants to rewrite the law, she should leave the bench and run 
for a seat in the state legislature.
  At her second, unprecedented hearing in 2003, Justice Owen and her 
defenders tried hard to recast her record and others' criticism of it. 
I went to that hearing, I listened to her testimony, and I read her 
written answers, many newly formulated, that attempt to explain away 
her very disturbing opinions in the Texas parental notification cases. 
But her record is still her record, and the record is clear. She did 
not satisfactorily explain why she infused the words of the Texas 
legislature with so much more meaning than she can be sure they 
intended. She adequately describes the precedents of the Supreme Court 
of the United States, to be sure, but she simply did not justify the 
leaps in logic and plain meaning she attempted in those decisions.
  I read her responses to Senator Hatch's remarks at that second 
hearing, where he attempted to explain away cases about which I had 
expressed concern at her first hearing. For example, I heard him 
explain the opinion she wrote in F.M. Properties v. City of Austin. I 
read how he recharacterized the dispute in an effort to make it sound 
innocuous, just a struggle between two jurisdictions over some 
unimportant regulations. I know how, through a choreographed exchange 
of leading questions and short answers, they tried to respond to my 
question from the original hearing, which was never really answered, 
about why Justice Owen thought it was proper for the legislature to 
grant large corporate landowners the power to regulate themselves. I 
remained unconvinced. The majority in this case, which invalidated a 
state statute favoring corporations, did not describe the case or the 
issues as Senator Hatch and Justice Owen did. A fair reading of the 
case shows no evidence of a struggle between governments. This is all 
an attempt at after-the-fact, revisionist justification where there 
really is none to be found.
  Justice Owen and Chairman Hatch's explanation of the case also lacked 
even the weakest effort at rebutting the criticism of her by the F.M. 
Properties majority. In its opinion, the six justice majority said, and 
I am quoting, that Justice Owen's dissent was ``nothing more than 
inflammatory rhetoric.'' They explained why her legal objections were 
mistaken, saying that no matter what the state legislature had the 
power to do on its own, it was simply unconstitutional to give the big 
landowners the power they were given. No talk of the City of Austin v. 
the State of Texas. Just the facts.
  Likewise, the few explanations offered for the many other examples of 
the times her Republican colleagues criticized her were unavailing. The 
tortured reading of Justice Gonzales' remarks in the Doe case were 
unconvincing. He clearly said that to construe the law in the way that 
Justice Owen's dissent construed the law would be activism. Any other 
interpretation is just not credible.
  And no reasons were offered for why her then-colleague, now ours, 
Justice Cornyn, thought it necessary to explain the principle of stare 
decisis to her in his opinion in Weiner v. Wasson. Or why in Montgomery 
Independent School District v. Davis, the majority criticized her for 
her disregard for legislative language, saying that, ``the dissenting 
opinion misconceives the hearing examiner's role in the . . . 
process,'' which it said stemmed from, ``its disregard of the 
procedural elements the Legislature established . . . to ensure that 
the hearing-examiner process is fair and efficient for both teachers 
and school boards.'' Or why, in Collins v. Ison-Newsome, a dissent 
joined by

[[Page 11119]]

Justice Owen was so roundly criticized by the Republican majority, 
which said the dissent agrees with one proposition but then ``argues 
for the exact opposite proposition . . . [defying] the Legislature's 
clear and express limits on our jurisdiction.''
  These examples, together with the unusually harsh language directed 
at Justice Owen's position by the majority in the Doe cases, 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 her 
activist views. No good explanation was offered for these critical 
statements last year, and no good explanation was offered two weeks 
ago. Politically motivated rationalizations do not negate the plain 
language used to describe her activism at the time.
  I also briefly set the record straight about a number of 
mischaracteriza-
tions of the opposition to Justice Owen's nomination. Earlier in this 
debate, at least one Senator said that opposition Senators, are 
``discriminating against people of faith.'' Sadly, these statements 
follow a pattern of despicable accusations, made often by the radical 
interest groups backing these nominations and made too frequently here 
by those repeated these slurs. The assertion that any Senator opposes 
someone because she is a Sunday school teacher is a new low, however. 
Even President Bush has disavowed that attack.
  I oppose Priscilla Owen, not because of her faith, which I respect, 
but because she is an ends-oriented judicial activist who is so far 
outside of the mainstream that she has often been criticized harshly by 
the Texas Supreme Court's conservative majority. In case after case, 
Justice Owen's opinions make clear that she is a judge willing to make 
law from the bench rather than follow the language and intent of the 
legislature or judicial precedent. While some of the clearest examples 
of her judicial activism come in her dissents in cases involving the 
parental notification law, there are, as I have explained, many other 
examples in cases having nothing to do with abortion.
  Justice Owen's position as a frequent dissenter on the Texas Supreme 
Court shows how extreme she can be and how far from the letter of the 
law she strays in her attempts to push her own political and 
ideological agenda. Not only has the majority of that conservative 
court criticized her dissents on numerous occasions, but the majority's 
criticisms of her opinions are unusual for their harsh tone. Surely the 
Republican members of the Texas Supreme Court criticized Priscilla Owen 
not because she is a person of faith, but because she insists on 
impermissibly legislating from the bench. I concur.
  Senators oppose Priscilla Owen's confirmation because she has 
attempted to substitute her own views for those of the legislature. 
What is relevant is that she is writing law, rather than interpreting 
law, as evidenced in the opinions in which she would have added 
requirements that the Texas legislature did not put into the law.
  An evaluation of Priscilla Owen's decisions shows that it is she who 
is results-oriented; she crafts her decisions in order to promote 
business interests over individuals and to advance various social 
agendas, rather than simply following the law and evaluating the facts 
of a given case. Justice Owen has been broadly and repeatedly 
criticized by her fellow Republican Texas Supreme Court Justices for 
disregarding statutes and the intent of the legislature, instead, 
pursuing her own activist results. In many cases in which she has 
dissented and been criticized by the majority, her opinions were to 
benefit corporate interests including numerous companies that 
contributed to her campaign.
  For instance, in FM Properties Operating Co. v. City of Austin, which 
I have already discussed, where she ruled to let a single developer 
dodge Austin's water quality rules, Justice Owen received $2,500 in 
campaign contributions from one of the FM Properties company's partners 
and over $45,000 from the company's lawyers.
  It is worth noting that my Democratic colleagues and I do not stand 
alone in opposing Priscilla Owen's nominations. We are in the good 
company of a broad array of newspaper editorial boards, prominent 
organizations, and individuals throughout the country and in Justice 
Owen's home state of Texas.
  The groups opposing Justice Owen range from the AFL-CIO and the 
Leadership Conference on Civil Rights to the Endangered Species 
Coalition and the National Partnership for Women and Families. Texas 
opposition to the Owen nomination has come from a wide variety of 
groups including the American Association of University Women of Texas, 
Texas Lawyers for a Fair Judiciary, and the Texas chapters of the 
National Organization for Women and the Mexican American Legal Defense 
and Education Fund, MALDEF, just to name a few. Among the many citizens 
who have written to oppose Justice Owen's nomination are dozens of 
attorneys from Texas and elsewhere, as well as C.L. Ray, a retired 
Justice of the Texas Supreme Court, who wrote, ``I have rarely seen a 
public servant show so much contempt for the laws of this State.''
  Lawyers who appear in front of Justice Owen in Texas Supreme Court 
rate her poorly as well. The most recent results of the Houston Bar 
Association's Judicial Evaluation Poll shows that 45 percent of the 
respondents rated Justice Owen ``poor,'' more than gave that lowest 
rating to any other justice. She was in last place in the 
``acceptable'' category, with only 15 percent, and in second-to-last 
place among her colleagues in receiving a rating of ``outstanding'', 
with only 39 percent giving her that review.
  I have heard Senator Cornyn say that Justice Owen has been supported 
by major newspapers in Texas, but that support must have been for her 
election to the Texas Supreme Court because, to the contrary, a number 
of major newspaper editorial boards in Texas have expressed their 
opposition to Justice Owen's confirmation to the federal appellate 
bench.
  The San Antonio Express News criticized Owen because ``[o]n the Texas 
Supreme Court, she always voted with a small court minority that 
consistently tries to bypass the law as written by the Legislature.''
  The Houston Chronicle cited complaints about Owen ``run from a 
penchant for overturning jury verdicts on tortuous readings of the law 
to a distinct bias against consumers and in favor of large 
corporations,'' and the newspaper concluded that she ``has shown a 
clear preference for ruling to achieve a particular result rather than 
impartially interpreting the law. Anyone willing to look objectively at 
Owen's record would be hard-pressed to deny that.''
  The Austin American-Statesman wrote that Owen is ``out of the broad 
mainstream of jurisprudence'' and ``seems all too willing to bend the 
law to fit her views, rather than the reverse.'' The newspaper 
continued, ``Owen also could usually be counted upon in any important 
case that pitted an individual or group of individuals against business 
interests to side with business.''
  Editorial boards throughout the country echo the opinions of Owen's 
home state newspapers. Newspapers from the Palm Beach Post and the 
Charleston Gazette to the Los Angeles Times and the Detroit Free Press 
have spoken out against this extreme nomination. The Atlanta Journal-
Constitution wrote that Owen ``has a lopsided record favoring large 
corporations,'' while the Minneapolis Star-Tribune wrote that ``[e]ven 
her court colleagues have commented on her habit of twisting law to fit 
her hyperconservative political views'' and that ``Owen's ethical 
compass is apparently broken.'' Educated observers who review Priscilla 
Owen's record recognize that she is an ends-oriented judicial activist 
who is not an appropriate nominee for a lifetime appointment to one of 
the most important courts in the land.
  When he nominated Priscilla Owen, President Bush said that his 
standard for judging judicial nominees would be that they ``share a 
commitment to follow and apply the law, not to make law from the 
bench.'' He said he is against judicial activism. Yet he has appointed

[[Page 11120]]

judicial activists like Priscilla Owen and Janice Rogers Brown.
  Under President Bush's own standards, Justice Owen's record of ends-
oriented judicial activism does not qualify her for a lifetime 
appointment to the federal bench.
  The President has often spoken of judicial activism without 
acknowledging that ends-oriented decision-making can come easily to 
extreme ideological nominees. In the case of Priscilla Owen, we see a 
perfect example of such an approach to the law, and I cannot support 
it. The oath taken by federal judges affirms their commitment to 
``administer justice without respect to persons, and do equal right to 
the poor and to the rich.'' No one who enters a federal courtroom 
should have to wonder whether he or she will be fairly heard by the 
judge.
  Justice Priscilla Owen's record of judicial activism and ends-
oriented decisionmaking leaves me with grave doubt about her ability to 
be a fair judge. The President says he opposes putting judicial 
activists on the Federal bench, yet Justice Priscilla Owen 
unquestionably is a judicial activist. I cannot vote to confirm her for 
this appointment to one of the highest courts in the land.
  I have said time and time again that if somebody walks into a federal 
court, they should not have to wonder whether they will be treated 
fairly based on whether they are a Republican or a Democrat, a 
defendant or a plaintiff, rich or poor. They should know that they are 
going to be treated fairly no matter who they are and that their case 
will be determined on the merits. In Priscilla Owen's case, her record 
shows that litigants cannot be sure of that. The President may well get 
the votes to put Priscilla Owen on the Fifth Circuit today, but would 
it not have been better to have nominated someone with a record of 
fairness and impartial judging who could be confirmed by a united, not 
a divided Senate.
  Mr. LAUTENBERG. Mr. President, I am pleased for our country and for 
this body that the Senate soundly rejected an abuse of power that would 
have done irreparable harm to Congress and to our Nation's system of 
checks and balances. I salute my Republican colleagues who were able to 
stand up to their leadership and my Democratic colleagues who labored 
long and hard to prevent the majority from launching the so-called 
nuclear option. I am especially thankful for our Democratic leader, 
Harry Reid, who showed a steady leadership hand through these troubling 
days.
  As part of the agreement reached Monday night, Priscilla Owen, 
President Bush's nominee for the United States Court of Appeals for the 
Fifth Circuit, will get an up-or-down vote. It appears that she will be 
confirmed, which I hoped would not take place.
  Consistent with my voting record, while I respect my colleagues who 
worked hard to preserve the filibuster, I voted against invoking 
cloture on the Owen nomination yesterday and today I will vote against 
confirming her and urge my colleagues to do the same.
  I want to make it clear that I have nothing against her personally. 
Too often, Members on the other side of the aisle have depicted 
opposition to their radical nominees as a personal animus or a bias 
based on the nominees' sex or race or religion. That could not be 
further from the truth, which is obvious if one looks at my voting 
record. I want to try to keep Priscilla Owen off the bench because she 
has a troubling record on civil rights, reproductive rights, employment 
discrimination, and the rights of consumers.
  Our Federal courts touch the lives of every American and ensure that 
our individual rights are upheld. It is imperative that all nominees 
for the Federal bench are individuals of distinction with a record of 
fairness and impartiality. Unfortunately, Ms. Owen just has not 
demonstrated those qualities while on the Texas Supreme Court.
  Ms. Owen has routinely dissented on rulings regarding the rights of 
employees, including the right to be free from invidious 
discrimination. She joined in dissenting opinions which effectively 
tried to rewrite a key Texas civil rights law. If she had prevailed, 
she would have made it much more difficult for workers to prove 
employment discrimination. Ms. Owen has sought to override jury 
verdicts, and to diminish and undermine their role in cases involving 
consumer protections. She has repeatedly and--in my estimation--
unfairly ruled in favor of big business at the expense of workers and 
consumers. She has gone so far as to write and join in a number of 
opinions that severely limit the ability of working people to recover 
damages under lawsuits involving on-the-job injuries. In almost every 
reproductive rights case decided by the Texas Supreme Court during her 
time there, Ms. Owen has sought to restrict a woman's right to make her 
own personal decisions.
  Ms. Owen's views are far outside of the judicial mainstream--even by 
the standards of the conservative Texas Supreme Court. President Bush's 
own White House Counsel, Alberto Gonzales, who was a fellow Justice on 
the Texas Supreme Court, referred to one of Ms. Owen's dissenting 
opinions as ``an unconscionable act of judicial activism.''
  On September 5, 2002, the Judiciary Committee wisely rejected 
reporting Ms. Owen's nomination to the full Senate. I have seen no 
evidence in the intervening time that makes her more suitable now than 
she was in 2002 for a lifetime appointment to such an important 
position.
  The Federal courts play a critical role in upholding the fundamental 
rights and protections of all Americans. It is imperative that nominees 
to the Federal courts have a clear understanding of the importance of 
constitutional rights and statutory protections, and of the role and 
responsibility of the Federal courts in upholding these rights and 
protections. She has not exhibited that understanding. Consequently, I 
do not believe she is an appropriate nominee for the Fifth Circuit. 
Accordingly, I will vote against her confirmation.
  It would be relatively easy for President Bush to send judicial 
nominees to the Senate who would enjoy overwhelming or even unanimous 
support. I hope he will stop trying to pack the Federal courts with 
extremists such as Priscilla Owen. Until he does, I have no choice but 
to do my duty to uphold the Constitution and oppose them.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I understand the time on our side has 
expired. While we are waiting for the distinguished Republican leader 
to come to the floor, I ask to continue until he arrives. Of course, I 
will yield to him as soon as he seeks recognition.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. That we have terminated the debate and are now voting on 
this controversial nomination demonstrates our good will in light of 
the agreement reached two days ago to avoid triggering the Republican 
leadership's bid for one-party rule. Fourteen of our colleagues came to 
us with a bipartisan plan to avoid the Majority leader's nuclear 
option, which was a short-sighted effort to change the more than 200 
years of Senate tradition, precedent and rules by destroying minority 
rights.
  While we may not all agree with every part of the agreement, by our 
votes yesterday and today Democrats are showing that we are prepared to 
move on. I urge the Republican leader not to be captive of the narrow 
special interest that have moved and pushed so much the effort toward 
the nuclear option. We have a great deal of work to do in this body, 
work that can be accomplished easily by Republicans and Democrats 
working together, not by those who want simply partisan rules.
  I expect that in due course the Senate will consider each of the 
three controversial nominees mentioned in Part I. A. of that Memorandum 
of Understanding. I do not expect there to be any repeat by Democrats 
of the extraordinary obstruction by Republicans of President Clinton's 
judicial

[[Page 11121]]

nominees. For example, I do not expect any of the tactics used by 
Republicans during the extensive delay in Senate consideration of the 
Richard Paez nomination. Judge Paez waited more than four years before 
we were able to get a vote on his confirmation longer than the 
Priscilla Owen nomination has been pending. I recall some Republicans 
mounting an extraordinary motion after the filibuster of his nomination 
was broken to indefinitely postpone the vote; a last-ditch, 
unprecedented effort that was ultimately unsuccessful. Of course, Judge 
Helene White never got a vote or even a hearing in more than four 
years. Republicans denied her a hearing for a period longer than the 
Owen nomination has been pending. Like more than 60 of President 
Clinton's moderate and qualified judicial nominations, she was 
subjected to the Republican pocket filibuster.
  In this connection I should also note that last night the Senate, 
with Democratic cooperation, entered into unanimous consent agreement 
to govern the consideration and vote on three additional circuit court 
nominees, Tom Griffith, Richard Griffin, and David McKeague. Those are 
nominations that will be debated and voted upon when the Senate returns 
from Memorial Day. The Democratic Leader deserves great credit for 
forging significant progress on these matters.
  I have seen reports that the vote today of the nomination of 
Priscilla Owen is the ``first'' of this President's controversial 
nominees. That is not true. This administration has sent divisive 
nominee after divisive nominee to the Senate. Several controversial 
judicial nominees have already been voted upon by the Senate. Among the 
208 judges already confirmed are some who were confirmed with less than 
60 votes, some with more than 40 negative votes. The President's court-
packing efforts are not new but continuing. Moreover, his penchant for 
insisting on divisive nominations is not limited to the judiciary, as 
will be demonstrated, again, when the Senate turns to the nomination of 
John Bolton following the vote on the Owen nomination.
  As for the nomination of Priscilla Owen, after reviewing her record, 
hearing her testimony and evaluating her answers I am voting against 
her confirmation. I believe Justice Owen 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 worker and 
consumers. This sort of judging ought not to be rewarded with such an 
important and permanent promotion. She skews her decisions to show bias 
against consumers, victims and just plain ordinary people in favor of 
big business and corporations.
  As one reads case after case, particularly those in which she was the 
sole dissenter or dissented with the extreme right wing of the Court, 
her pattern of activism becomes clear. 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, leading to the conclusion that she sets out to justify 
some pre-conceived idea of what the law ought to mean. This is not an 
appropriate way for a judge to make decisions. This is a judge whose 
record reflects that she is willing and sometimes eager to make law 
from the bench.
  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 jurisdiction, in which she writes against individual 
plaintiffs time and again, in seeming contradiction of the law as 
written. In fact, according to a study conducted last year by the Texas 
Watch Foundation, a non-profit consumer protection organization in 
Texas, in the last six years, 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.
  It is worth noting that the opposition to Priscilla Owen's nomination 
includes a broad array of newspaper editorial boards, prominent 
organizations, and individuals throughout the country and in Justice 
Owen's home state of Texas. Groups opposing Justice Owen range from the 
AFL-CIO and the Leadership Conference on Civil Rights to the Endangered 
Species Coalition and the National Partnership for Women and Families. 
Opposition to the Owen nomination has come from a wide variety of 
groups in Texas including the American Association of University Women 
of Texas, Texas Lawyers for a Fair Judiciary, and the Texas chapters of 
the National Organization for Women and the Mexican American Legal 
Defense and Education Fund (MALDEF), just to name a few. Among the many 
citizens who have written to oppose Justice Owen's nomination are 
dozens of attorneys from Texas and elsewhere, as well as C.L. Ray, a 
retired Justice of the Texas Supreme Court, who wrote, ``I have rarely 
seen a public servant show so much contempt for the laws of this 
State.''
  Lawyers who appear in front of Justice Owen in Texas Supreme Court 
rate her poorly as well. The most recent results of the Houston Bar 
Association's Judicial Evaluation Poll shows that 45 percent of the 
respondents rated Justice Owen ``poor,'' more than gave that lowest 
rating to any other justice. She was in last place in the 
``acceptable'' category, with only 15 percent, and in second-to-last 
place among her colleagues in receiving a rating of ``outstanding,'' 
with only 39 percent giving her that review.
  I have heard Senator Cornyn say that Justice Owen has been supported 
by major newspapers in Texas, but that support must have been for her 
election to the Texas Supreme Court because a number of major newspaper 
editorial boards in Texas have expressed their opposition to Justice 
Owen's confirmation to the federal appellate bench.
  When he nominated Priscilla Owen, President Bush said that his 
standard for judging judicial nominees would be that they share a 
commitment to follow and apply the law, not to make law from the bench. 
He said he is against judicial activism. Yet he has nominated judicial 
activists like Priscilla Owen. Under President Bush's own standards, 
Justice Owen's record of ends-oriented judicial activism does not 
qualify her for a lifetime appointment to the federal bench.
  I have said time and time again that if somebody walks into a federal 
court, they should not have to wonder whether they will be treated 
fairly based on whether they are a Republican or a Democrat, a 
defendant or a plaintiff, rich or poor. They should know that they are 
going to be treated fairly no matter who they are and that their case 
will be determined on the merits. In Priscilla Owen's case, her record 
shows that litigants cannot be sure of that. The President may well get 
the votes to put Priscilla Owen on the Fifth Circuit today, but would 
it not have been better to have nominated someone with a record of 
fairness and impartial judging who could be confirmed by a united, not 
a divided Senate?
  Mr. President, I see the distinguished Republican leader now on the 
floor of the Senate. I will close--so that he may be recognized--by 
saying, again, when somebody walks into a Federal court, they should 
not have to ask themselves: Is this a Republican court or Democratic 
court? This is an independent judiciary.
  I yield to the distinguished majority leader.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, in a few moments, the Senate will finally 
vote up or down on the nomination of Justice Priscilla Owen to the 
Fifth Circuit Court of Appeals. Four years--it has been a long road for 
Justice Owen, much longer than anyone would have

[[Page 11122]]

or could have anticipated when she was nominated about 4 years and 2 
weeks ago.
  She has endured 4 years of delay, 9 hours of committee hearings, 
hundreds of questions, and more than 100 hours of debate on this Senate 
floor. In fact, it is interesting, the Senate has debated Justice Owen 
more days than all the sitting Supreme Court Justices combined. Today 
she will get the fair up-or-down vote she deserves.
  Justice Owen has withstood an orchestrated partisan attack on her 
record as a judge and, indeed, at times on her character. Only a few 
days ago, opponents unfairly labeled her as too extreme to serve on the 
Federal bench, but those unfair attacks have not succeeded. Justice 
Owen, as we all know, is a distinguished mainstream jurist. She has 
exhibited extraordinary patience and courage in the face of continuous 
and sometimes vicious criticism. But today finally she will get that 
fair up-or-down vote, and I am confident she will be confirmed.
  Today does mark a triumph of principle over politics, results over 
rhetoric. For far too long on judicial nominees, the filibuster was 
used to facilitate partisanship and to subvert principle. Through this 
debate, we have exposed the injustice of judicial obstruction in the 
last Congress and advanced those core constitutional principles that 
all judicial nominees deserve a fair up-or-down vote.
  This vote should mark--will mark, I hope--a new beginning in the 
Senate, a step forward for principle, a step forward for fairness and 
the Constitution, but we cannot stop at this single step. I look 
forward to confirming other previously blocked nominees. I look forward 
to reading about partisan judicial obstruction only in the history 
books, and I hope the constitutional option does not become necessary.
  I urge my colleagues to join me in support of the confirmation of 
Justice Owen.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Priscilla Richman Owen, of Texas, to be United States Circuit Judge 
for the Fifth Circuit? The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  Mr. STEVENS (after having voted in the affirmative). Mr. President, 
on this vote, I voted ``yea.'' If the distinguished Senator from Hawaii 
(Mr. Inouye) were present, he would vote ``nay.'' Therefore, I withdraw 
my vote.
  The PRESIDING OFFICER (Ms. Murkowski). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 55, nays 43, as follows:

                      [Rollcall Vote No. 128 Ex.]

                                YEAS--55

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Landrieu
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

         PRESENT AND GIVING A LIVE PAIR, AS PREVIOUSLY RECORDED

      
     Mr. Stevens, for
       

                             NOT VOTING--1

       
       Inouye
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be notified of the Senate's 
action.
  Mr. FRIST. I move to reconsider the vote and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________