Nomination of Justice Priscilla Owen

SEN. CORNYN: Well, thank you, Mr. Chairman. It's my pleasure to be here and to join my colleague, Senator Hutchison, in introducing a fine and exceptional nominee to the fifth circuit court of appeals, Justice Priscilla Owen.

Justice—I'm sorry—Senator Hutchison has done a great job of talking about Justice Owen's background and experiences and her exceptional credentials for the federal bench. And I, needless to say, wholeheartedly agree with those fine comments.

I discussed Justice Owen's qualifications for the federal bench in an op-ed that was published this morning in the Austin American- Statesman. And, Mr. Chairman, I'd ask the committee for unanimous consent that that op-ed be included as part of the record in my remarks.

SEN. CORNYN: Thank you. I'd like to spend a few moments, though, talking, as you suggested, from a different point of view, a personal perspective, somebody who has served on the Texas supreme court with Justice Owen, because I think that that perhaps will provide a fresh look and a different point of view that may be of some assistance to those senators who previously had decided to vote against Justice Owen.

Having been a judge for 13 years, I know, as a judge or as a senator, all of us are reluctant to revisit our earlier decisions. But, in fact, in the judicial process, as you know, there's an opportunity to seek a rehearing or reconsideration in those rare instances where perhaps a mistake was made.

And I'm not suggesting a mistake by the senators in their vote, but a mistake in the characterization of this fine individual who I believe is highly qualified by virtue of her training and experience and temperament to serve in this very important judicial position.

As you said, Justice Owen and I have served together for three years on the Texas supreme court. I had been on the court for about four years when she joined the court in January of 1995, and then I resigned from the court in October 1997 to run for attorney general.

During those three years, I had the privilege of working closely with Justice Owen. During those three years, I had the opportunity to observe, on a daily basis, precisely how she works, how she thinks, how she addresses the challenge in the job of judging in literally hundreds, if not thousands, of cases.

And during those three years, I spoke with Justice Owen on countless occasions and debated with her, and, yes, even disagreed with her on how to interpret statutes and how to try our very best to uphold the oath that we take when we assume the robe as a judge, and that is to read statutes faithfully and carefully and to decide cases based on what the law says and not on how we personally would like to see the case come out.

One of the most important elements, I think, that goes into considering whether somebody is qualified to be a judge is how they—their integrity and their fidelity to the role of a judge, because, of course, it is so much different; it is fundamentally different from the role that we as senators have, which is to make decisions based on the results we would like to see happen.

But judges, of course, have a different role, and it is their integrity and fidelity to the role of judge, not to results, that I think distinguishes a good judge and distinguishes Justice Owen.

I saw her take careful notes and literally pull down the law books herself and study them very, very closely. And I saw how hard she works to faithfully interpret and apply the law that the Texas legislature has written and the precedents that have been handed down by higher courts or at earlier times by that same court.

And I can tell you, from my personal experience as her colleague and a fellow justice, that Justice Owen is an exceptional judge. She is a judge who works hard to follow the law and enforce the will of the legislature—not her will; the will of the lawmaker.

Not once did I see her try to pursue a political or some personal agenda at the expense of faithful adherence to the rule of law. To the contrary, I can testify that Justice Owen feels very strongly, as do I, that judges are called upon not to be a legislator or a politician but as judges to faithfully read statutes and interpret and apply them faithfully to the cases that come before the court.

And one of the things I just have to say is that judges, unlike members of the legislature, don't have a choice. When a case comes before the court, when the courts assume jurisdiction of a case, you can't run; you can't hide. You've got to decide the case. And it may not have come to you in the posture that you would have liked.

It may be because of the standards of judicial review or the deference that we pay to jury determinations of facts that the judge is left with the bare application of a statute or some precedent to a record that that judge cannot change, even if they might like to.

And so that is why I say that it is not results-oriented judging that we ought to applaud but the kind of judging that Justice Owen engaged in day in and day out on that court, which was faithful adherence to the rule of law.

I want to also take just a moment to reflect on my own experiences on the Texas supreme court and to talk just a moment more about what I believe it means to be a judge.

I believe that people change when they put their hand on the Bible and they take an oath to perform the job that our Constitution gives judges. I believe that with all my heart and soul, because I saw it in myself and I see it in people who leave the private practice of law, like Justice Owen did, after 17 years as an advocate, but then assume that solemn responsibility and take an oath, "So help me God," to discharge the duty of a judge—a far different role from that of an advocate in court, but a solemn responsibility and a solemn oath that I know she takes, as all good judges do, very seriously.

Of course, being a senator, like being an advocate, means you're free to express your personal views or the views of your client on a whole range of subjects and controversial issues. That's what we do. One senator yesterday said you can't serve in the Senate without casting controversial votes unless you want to hide under your desk. But then, of course, you would not be doing what the people of our states have sent us here to do.

But, of course, being a judge is exactly the opposite. And I know Senator Feinstein has mentioned to me of her own watching—I believe it's her daughter who has become a judge and the transformation that she saw in her own daughter and how she approached that awesome responsibility.

Of course, a judge's personal political beliefs must have no bearing on the job of a judge. Of course, that's, in a way, the same role we ask jurors to play. I can tell you, during the six years that I was a trial judge, I read charges to the jury that said, "You've got to be able to set aside your preconceived notions and opinions and decide this case based only on the facts as you hear them in this court." And so we ask lay jurors to do that and we ask judges to do the same thing when it comes to faithfully applying the rule of law.

And, of course, that's why, one reason why, justices who come to the Congress to listen to the president's State of the Union address don't applaud. They don't show approval. They don't boo. They don't show disagreement. They make no expression whatsoever, because their job, of course, is not to advocate politics or personal agendas.

Instead their job is to neutrally and faithfully interpret the law as written by others—and it's not always easy—by those who have stated their political views through the process of enacting laws.

It's been pointed out that other judges sometimes agreed—disagreed, I'm sorry—with Justice Owen. And that is perfectly normal, and indeed it's healthy. And, yes, I disagreed with Justice Owen on occasion, and she with me.

That's precisely why we've established, throughout this country, state supreme courts and federal courts of appeals with more than one judge, so we can have the free exchange and the lively debate and the intellectual exchange on important issues that come before the court. And, yes, then we have to have a vote, and then a final resolution of the matter.

When judges disagree, that's no badge of dishonor. That's simply what the job of judging is. And, Mr. Chairman, I hate to see people like Justice Owen, who have diligently and faithfully not imposed their views about what the results should be, but faithfully interpreted and enforced the law as written, criticized and basically disadvantaged in the public eye because they are just doing the job that they took an oath to do.

Some have suggested that when judges disagree, that's a sign that at least one of the judges are behaving politically. That's nonsense. A state's highest court, like the Texas supreme court, like the United States Supreme Court, any court of last resort, gets the most challenging and the most difficult cases in our legal system.

The vast majority of the cases in our legal system are pretty easily decided on the law, and those cases, of course, are handled by lower courts. But in some cases, a statute's not clear; the case is so hard that we ask judges at our highest level of our judiciary to try to interpret them faithfully.

And let me just say here that I know there have been instances that different members of this committee have mentioned today and at other times at previous hearings where they feel that they disagree with Justice Owen's decision in that case. But I just think it's fair—fairness dictates that this one or two or three or handful of cases be put in context.

Justice Owen knows, as I do, that the number of cases that the Texas supreme court decides is just a fraction of the cases that go to court in Texas each year. It's a court of discretionary jurisdiction. And the last time I looked at it, it was only about 10 percent of the cases that go to the court of appeals actually are considered and determined by the Texas supreme court.

So fairness dictates that these few cases, where I think there's a perfectly good explanation for her position on those cases, but nevertheless, I believe it's important that those be put in context. They represent just a thimbleful compared to the ocean of cases that she has decided as a judge and that are litigated on a daily basis in our courts.

Let me just mention one case where a statute was not clear and where judges had to work hard to try to figure out how best to read the statute and to faithfully apply the law, and that is a case that is frequently taught in law schools to demonstrate the difficulties of construing complex statutes and laws. It's a famous United States Supreme Court case which, believe it or not, required justices to determine whether a tomato is a fruit or a vegetable—a hotly contested political issue, I assume, to some observers. But in fact it was an important question to be decided for purposes of applying federal tariff law.

Now, I suppose as a matter of science that botanically speaking a tomato is a fruit. But in common parlance, a tomato is a vegetable. Yet it was unclear based on the text of the federal tariff law what meaning was intended by the legislature when it used the terms "fruit" and vegetable." Now, believe it or not, judges have to debate these issues. They have to figure out what the legislature actually meant when they used the term in order to do their job. Not surprisingly, in difficult cases judges disagree. Now, that doesn't mean the judges are being political when they disagree. Indeed, there is nothing political about whether a tomato is a fruit or a vegetable, but it's just good-faith judging and a good faith interpretation of law, and that's precisely why we need good judges who will make those decisions, who will apply the law as written by the legislature, as Justice Owen in my experience did and does.

I mention this tomato case in particular because it has a direct bearing, believe it or not, on our discussion of Justice Owen. In a previous hearing a number of senators brought up the fact that Justice Owen and I disagreed about one particular case. I had just about forgotten about it until I was refreshed by reading Sonnier v. Chisholm-Ryder Company—I hope I've pronounced that correctly. I do not think it would be fair to attack either Justice Owen or I about how we decided the case, even though we disagreed on how best to read the law in that case.

The case essentially involved whether a tomato chopping machine is real property or personal property. We disagreed. But that doesn't mean that either one of us were guilty of somehow pursuing a political or other agenda in court.

Many cases present genuinely difficult legal issues, and judges have good faith disagreements about them. Perhaps under the best reading of the statute a tomato is a fruit. Perhaps it's a vegetable. Perhaps the legislature meant that a tomato chopping machine is real property, or perhaps it's personal property. Good judges, my point is, Mr. Chairman, can simply disagree and still be good judges.

That's why I was so profoundly troubled by what happened to Justice Owen last year. Senators who opposed her, almost without regard to who she is or the record that she has worked hard to establish as a good judge, mentioned that other judges would sometimes criticize her for doing things like rewriting statutes. Mr. Chairman, as a former judge, I can tell you that judges say that all the time. That happens all the time. It's frequently part of the robust legal debate and exchange that judges have with one another every single day in this country, and there is nothing extraordinary about it at all. Good judges struggle to read statutes carefully. It's only natural then when judges of good faith disagree. Frequently a judge will claim that another judge is rewriting a statute. It's just simply the way judges talk and the way judges do their job.

I asked my staff to look at some of the cases cited against Justice Owen last year, and do you know what they found? Well, in just 20 minutes of research they were able to determine that every single justice of the of the Texas State Supreme Court at one time or another had been criticized for rewriting a statute, looking at a few of the cases cited by Justice Owen's opponents. In one case, for example, justices Gonzales, Hecht, Enoch, Abbott and O'Neill, who compromised the majority of a particular case, were criticized with the following statement, quote, "The court substitutes what it thinks the statutes should accomplish for what the statute actually says," close quote. In other words, those five justices were accused of rewriting a statute.

In another case, Chief Justice Phillips, Gonzales, Enoch, Baker, Hankinson and O'Neill were challenged with the following statement, quote: "The court does not base its statutory interpretation on the ordinary meaning of those words, or on the purposes the legislature intended them to achieve, but on its own predilections." In just those two cases we have every single colleague of Justice Owen criticized for allegedly rewriting a Texas statute. Now, again, that's just the way judges talk. Are we really saying that every justice on the court --

SEN. CORNYN: Thank you, Senator Leahy.

Are we really saying that every justice on that court, or on any court that is criticized for rewriting or misconstruing a statute is a bad judge, undeserving of confirmation? That would be of course I think it's apparent nonsense, and I hope it's not what anyone is saying here today. Judges are supposed to read the law carefully and rule how they think the law is most accurately read, and to vigorously defend and argue their position when disagreements occur, as they invariably do.

It's terribly unfair—and I submit, Mr. Chairman, even dangerous to our justice system—for senators to sit in judgment on those judges and to criticize them simply because they are trying their very best to do their job, as judges do.

Now, I was reminded of a scene, believe it or not, from the movie "Jerry Maguire," when I read the transcript and heard this discussion—the scene when Cuba Gooding, Jr. tells Tom Cruise, he said, "See, man, that's the difference between us—you think we're fighting and I think we're just finally talking." Well, Mr. Chairman, what Justice Owen has been criticized for is not fighting among judges; it's the way judges talk in deciding how to best interpret the statute and discharge their duty.

Those who have emphasized critical quotes about Justice Owen from other justices on the Texas Supreme Court think they are fighting, but as I say are just actually talking, doing what judges are supposed to do.

I could go on and on, but I won't. Let me just close by saying that I served with Justice Owen on the Texas Supreme Court for three years. Based on those three years of working closely with her, I know her well, and I know she's a good judge who always tries to faithfully read and apply the law. That's simply what good judges do, and we can ask for nothing more. Judges disagree from time to time, but again that's what judges do, and that what we want them to do, and we certainly do not want to chill that intellectual exchange and dialogue by chilling it, by criticizing them and actually perhaps challenging a nomination to a federal court because they are doing what they should be doing. We should not condemn them because they sometimes criticize each other's reasoning. Instead, I believe we should send Justice Owen's nomination to the floor of the Senate with a positive vote, and that we should confirm her quickly.

Thank you, Mr. Chairman, for the opportunity to speak on behalf of Justice Owen today.

SEN. CORNYN: Thank you, Senator. Justice Owen, two things. I note, first of all, it's kind of nice to have somebody here that talks like I do --

MS. OWEN: (Laughs.)

SEN. CORNYN: -- so we don't have to have an interpreter between you and I. And secondly, I note you're an Episcopalian. There are not that many of us around. So I'm particularly pleased to see that.

There's been some indication this morning, as I read the record of the previous hearing, the transcript of the previous hearing, there are some accusations against you, that you're pro-business, you're pro-corporate entities, and basically against the guy on the street out there.

And you've had somewhat of an opportunity to respond to that, but some specific cases have been asked you about that side of the issue. And I'd like to give you an opportunity to kind of set the record straight, if you will, about decisions that you've made on the other side of corporations. And if you would, could you please delineate some of those cases where you've issued rulings that actually favored individuals against corporations or that might be perceived to be anti-business?

SEN. CORNYN: Well, I'm going to ask that that list that you've got there be appropriately identified and inserted in the record.

MS. OWEN: I hope you'll let me clean it up a little bit. (Laughs.)

SEN. CORNYN: All right, we'll let you do that. But if you will, at the same time you respond to Senator Feinstein's question, if you would just send us that list, mark it as to what it is. I'd like to have that inserted in the record.

MS. OWEN: I'd be happy to do that.

SEN. CORNYN: Again, as I looked at the transcript of the previous hearing, since I was not a member of this body at that point in time, I notice that there was a rather detailed question asked you about a case in which you wrote the majority opinion, and that was Ford Motor Company versus Miles (sp).

I think there were some very significant misunderstandings about your involvement in that case, as I am now led to believe. And I want to see if we can straighten some of that out. For those who don't recognize this case, this involved an automobile accident victim named Mr. Searce who tragically passed away years after his accident but before the litigation was resolved.

First of all, let me ask you whether there's any truth to the accusation made during the course of your previous hearing that the victim passed away before the Texas supreme court ruled on his appeal.

MS. OWEN: I think that there was a misunderstanding about that. Certainly the supreme court—I wrote the opinion for the majority—handed down that opinion. It's my understanding it was three years after that or more than three years after that that Mr. Searce passed away.

SEN. CORNYN: There was also an accusation made during the course of the hearing that your opinion was improperly based on the issue of venue; in other words, the question whether the plaintiffs' lawyers filed the case in a county that did not have jurisdiction over the dispute. Was there anything improper about the Texas supreme court's consideration of arguments concerning the venue in that case?

MS. OWEN: Senator, there's a statute on the books in Texas that the legislature has passed that says if venue is improper, the case must be reversed and remanded to the proper court for trial unless, of course, there are dispositive issues that brings an end to the litigation entirely.

And so, in this case, when the venue was improper—and it was in this case—we had no choice. We had no discretion whatsoever. We were required in the statute to reverse the case and send it to the proper county.

SEN. CORNYN: And, in fact, isn't it the case that both the majority and the dissent in that case agreed that it was appropriate for the court to resolve the venue issue and that no member of the court argued otherwise?

SEN. CORNYN: So what you're actually saying, it was pretty clear that Dallas County --

MS. OWEN: Was the proper --

SEN. CORNYN: -- home of Dallas, Texas—Dallas, Texas, being the county seat of Dallas County, was the proper place to bring the suit. And I think that's a basic constitutional law question that all of us have during our first year in law school, and I don't know of any law school that teaches otherwise.

It was also referred to by some members during your last hearing that your decision to reverse the verdict in that case, a decision that cost a legal setback for a young man who had been rendered a quadriplegic in an accident, means that you did not have any sympathy or compassion for people. Is that a fair accusation about you, Judge Owen?

SEN. CORNYN: And I want to make it clear that your decision was by no means a termination of the plaintiff's ability to sue for injuries. What your decision basically said, instead of suing in Rusk County in Texarkana, you've got to go to Dallas County and file your suit, try your case there. If you've got a cause of action, that's where it needs to be determined.

SEN. CORNYN: And finally, I want to ask you about the issue of delay in the Texas supreme court's decision in that case. Although, as you have said, Willie Searce passed away three years after the court's decision, I also understand that the court did take quite a while to decide the case. Is that correct?

SEN. CORNYN: Lastly, I've heard a comment here this morning that Justice Gonzalez extended some criticism to you in the article, and I guess in some other means. Now, I read the article. I didn't see any criticism in there. Is there any instance where Justice Gonzalez extended some criticism to you for any decision you rendered or your way in rendering it or your exhibition of any right-wing views in making a decision?

SEN. CORNYN: Speaking of judicial activists on the bench, I would ask you if my classmate and my now dear and good friend, John Cornyn, was a judicial right-wing activist on that court.

SEN. CORNYN: But you're under oath, and you'd have to tell the truth. So I'm not asking you that.

SEN. CORNYN: Yeah. And the—and it's true, is it not, that the Texas human rights statute at issue in that case is modeled on Title VII, and in fact provides expressly to provide the execution of policies of Title VII and its subsequent amendments. So in looking, construing that statute, you looked at how the federal courts had construed a nearly identical statute with the same words as the state statute?

SEN. CORNYN: And so in this instance was the principal difference between the majority and the dissenting opinions which federal courts' decisions you ought to choose from in deciding, in light of the express language of the federal law and the history of the 1991 amendment to the federal Civil Rights Act?

SEN. CORNYN: In the dissenting opinion that you joined happened to find a couple of opinions from the Third and Fourth Circuit and two Supreme Court opinions which you viewed as dispositive or more convincing than the ones cited by the majority—is that right?

SEN. CORNYN: I know we're asking to stretch your memory here. And actually as you talk about these cases it brings back a flood of memories.

SEN. CORNYN: But do you happen to recall that in one of the judges of the case that you cited or cited in the dissent for the Fourth Circuit was Judge Diana Motz? Does that ring a bell?

SEN. CORNYN: Well, that's only fair that really you would not necessarily remember that. But I think the record will reflect that Judge Motz authored that opinion for the Fourth Circuit, and in fact had been a Clinton nominee. So do you think it's fair to criticize you as being somehow anti-employee or anti-civil rights from the decision that you made in that case?

SEN. CORNYN: I've been corrected. Judge Motz apparently joined the opinion but didn't author it. But that just shows how poor memory can serve us.

Let me ask you just the—about the role of discretion. Senator Durbin I think made a good point—judges aren't computers. How would you compare the discretion that judges exercise with the discretion, say, exercised by the executive branch, either a governor or a president, or by the legislative branch? I think because what we are really talking about is a continuum, not an absolute where you administer some formula or—and spit out a result based on a formula, are we?

SEN. CORNYN: Was there anything about—anything political or would represent an exercise in discretion on your part in the Sonnier case involving whether a tomato chopping machine was personal or real property that you have been criticized about?

SEN. CORNYN: I know that Senator Feingold has joined us. And just so you know, Senator Feingold and I are actually both on the Budget Committee, and we are having a number of critical votes, so that's one reason why a number of members are not physically present here, but will be coming in and out. And I am glad that he could join us after that vote. And at this point I'd like to go ahead and reserve the rest of my time and yield to him for any questions he might have.

SEN. CORNYN: Thank you, Senator Feingold. Senator—Justice Owen, I'm—let me just ask you a little bit about the so-called clerk perks, but first I want to share—say to Senator Feingold before I know he has to leave for other commitments, that he and I have had—actually had a discussion about the process of judicial confirmation and I think I've expressed to him, and I think he's expressed here today and at other times his frustration at how broken this process has become. And I guess a lot has happened over the last years, including—and even since I've been in the Senate—but mainly this has happened before I got here, and before 11 senators who comprise the freshman class of senators for the 108th Congress have gotten here. And I've heard a number of senators who I respect very much who have expressed concerns—people like Senator Feingold, Senator Specter and others—about how broken the process is, and how much the sort of finger-pointing that even we heard during some of the statements today about well, this is—this is okay we treat you this way because of the way that other nominees were treated, or you shouldn't get a vote in the Senate because others didn't even get a vote at all, the didn't even get to come before the committee.

So, you know, there's nothing any of us can do to rewrite history, but I would just say here with this opportunity that I share some of the frustrations. And what I would hope is that at some point—and I don't really know whether it's with your nomination, or Miguel Estrada's—but hopefully some time soon we can have—bring together some senators who are frustrated, maybe for different reasons, about the process, and try to come up with some kind of process where we can get the nominees of the president, no matter who happens to hold that office, an opportunity for a timely hearing, and then an up or down vote on the Senate floor. I know Senator Durbin mentioned Jorge Rangel, for example, who I happen to know very well, a Corpus Christi lawyer, who I would have, if I had been on this panel, have said is a good nominee, and happened to be nominated by President Clinton. But for some reasons that I may not be aware of, he didn't get a vote. So, that's just one example I would—I would point to and say I hope we don't get so bogged down in recrimination and finger-pointing and tit-for-tat in this body that we forget why it is we were sent here—that's us in the Senate—and that is to discharge our duty, to represent our—the people who sent us here, and then to vote. And that some of the game-playing and that sort of thing, which I think has really sunk to a level that's beneath the dignity of this institution, that we get a clean break and a fresh start.

SEN. CORNYN: Senator Feingold.

SEN. CORNYN: Thank you, Senator Feingold. And I appreciate your reputation for being fair-minded and even-handed. And you know, that's what happens when you try to do your job in an impartial, dutiful sort of way. Sometimes you're going to make a vote that somebody says, "Well, how can you do that?" I doesn't necessarily serve your political interests, but in fairness it's a judgment you have to make, and I think that's no different really from senators and judges.

Let me ask you, just so the record is clear, and those perhaps who may be watching these proceedings on closed-circuit television or otherwise will know, Senator Feingold raises the issue of clerk perks, and I know because when I was serving with you on the supreme court, we could not pay law clerks, briefing attorneys we called them, very much money. I seem to recall that it was somewhere on the order of $30,000 a year while their—while their peers, people who decided to go immediately to a large law firm and people who they were competitive with in law school would be making $100,000 or more. Is my memory roughly correct?

SEN. CORNYN: And there was a concern about how the judiciary, whether it's the supreme court or the federal courts, can compete in getting good, high quality candidates to serve in those important positions. And I recall the discussion of bonuses came up. But if you'll just confirm my memory, if it's right and if it's wrong correct it, but my memory is that any bonuses that were ever paid to briefing attorneys, or for that matter any briefing attorney who had accepted a job after the time they worked at the supreme court, was entirely walled off and precluded from doing any work on any matters that may come before the court involving that law firm. Is that correct?

SEN. CORNYN: In a moment I want to—we're going to recess this hearing, subject to the call of the chair. The main reason for this hearing is, as you know, Justice Owen, is to give any senator who has questions an opportunity to ask you those questions, whether in person or in writing. And we appreciate your coming back for that purpose. I—since I've been in the Senate I've heard it alleged that for some candidates senators have not been able to get all the questions answered that they have, and we don't want that criticism to be applied in your case. We want to make sure that any senator who has a question can ask questions, and that's why I believe Chairman Hatch has asked you to come back, not to create some sort of new precedent for, in your case, or any other sort of nefarious reason, but strictly to give senators an opportunity to ask every question they may have.

Senator Schumer has asked to submit his statement for the record, and without objection that will be accepted, his written statement.

And so with that, we're going to stand in recess until—I'm sorry, until 2:30 p.m., subject to the call of the chair.

We are not going to do it for a time certain, but subject to the call of the chair, so I will make that correction for the record.

SEN. CORNYN: Thank you very much.