Priscilla Owen Nomination

Mr. CORNYN. Mr. President, I want to take the next few minutes to respond to some of the comments the ranking member of the Judiciary Committee has made with regard to the process by which we confirm judicial nominees of the President, and to specifically respond to some of the areas of criticism that he and a handful of special interest groups have directed at the nomination of Priscilla Owen.

I believe, even though I am a new Member of the Senate—having been a Senator for all of about 4 months now—I have, at least in this area, some special knowledge I would like to share with my colleagues with regard to this particular nominee because for 7 years I served on the Texas Supreme Court and for 3 years concurrently with Justice Priscilla Owen.

So during that time I had the chance to work with her on a daily basis, learn her work habits and her frame of mind when it came to addressing her responsibilities as a judge on the highest court of my State. I believe in each instance the criticism the ranking member has lodged—really repeating that which special interest groups have lodged unfairly against Priscilla Owen since her nomination on May 9, 2001—can be refuted, or at least explained in a way that I think demonstrates she should be given the opportunity for an up-or-down vote in the Senate, where I am convinced that a bipartisan majority of this body stands ready to confirm her nomination.

Senator Leahy has gone through some history of the Clinton administration and the nominees of that administration and the treatment—unfair treatment, in his eyes—of President Clinton's nominees. I think what we are supposed to conclude from that is that somehow this game of tit for tat, or what is sauce for the goose is sauce for the gander, somehow rises to the high level of performance that the American people have cause to expect of us whom they send to the Senate.

I contend that rather than serve the interests of the American people, the way in which the Senate Judiciary Committee proceedings have been conducted for some time now—particularly as evidenced now by the filibuster being imposed against the nomination of Miguel Estrada—have been a disservice to the American people.

I have supported—and Senator Leahy has said he agrees with me—that we need to find some way to bring a conclusion to this downward spiral, in a way that serves the interests of the American people and does credit to this institution. I hope, in the days that lie ahead, we will find an opportunity to do that. I trust we will. I only hope the Senate does not grab defeat from the jaws of victory in terms of our opportunity to reform this broken system of judicial confirmation, one that does not reflect well on this institution.

Senator Leahy talked about how unprecedented this nomination is, pointing out that last year, during Senate Judiciary Committee hearings, Justice Owen was voted down in a strict party-line vote, and that she would now be renominated by the President and then brought to the floor. I guess these are unprecedented times when it comes to judicial confirmation proceedings.

As I mentioned just a moment ago, we have an unprecedented filibuster by the Democratic minority of Miguel Estrada, someone who, I believe, would receive a majority vote from a bipartisan group of Senators on this floor should the Senate just be allowed to vote. Of course, we have been through, I think, four cloture motions, which have failed, which means that debate continues on that nomination. Here again, unprecedented in the annals of this institution: a circuit court judge being filibustered for no good reason, I would contend.

Senator Leahy says Justice Owen is an activist, someone who would impose her own will or political judgment on the people regardless of what precedent had established earlier decisions by the highest court in the land or what the legislature says. But the way he explains what he means by "activism" I think equates with: I don't agree with the results of the decision.

If that is the definition of "activism," then activism has no meaning, or certainly no commonly understood meaning, because, of course, any reasonable person might disagree with the outcome of any judicial decision and thereby label that judge who made the decision an activist. But that is certainly not the commonly understood meaning: just the fact that judges may, in fact, disagree with each other from time to time.

I think some have pointed out, as an example of Justice Owen's failings, that some judges at different times have had cause to disagree with her decision. But, in fact, that is what we expect of judges—certainly at the highest levels of our judiciary—that they will do their very best to research the law, to comb the record, to try to discern what precedents might apply, what statutes that have been passed by Congress might apply, and then to apply that law to the facts as decided by the fact finder in order to reach a decision.

At the highest levels of our judiciary we commit that decision to nine people, and frequently they disagree with each other. We do not point that out as a fault or a failing; we view that as a strength because in the debate, the dialog, the back and forth—the conversation really—these judges have, we believe the public purpose for which the judiciary was created is served. I believe that to say it represents a failing or represents a reason a judge should not be confirmed turns the whole purpose of that body on its head.

Senator Leahy claimed that Justice Owen is simply too extreme to be confirmed—this notwithstanding the fact that in her last election to judicial office in the State of Texas, 84 percent of the voters voted in her favor.

She has been endorsed by a bipartisan group of the leadership of the bar in my State, Republicans and Democrats alike, former presidents of the Texas Bar Association. She has received the highest endorsement, the highest recommendation given by the American Bar Association. How, in any fair-minded person's view, could Justice Owen be characterized as too extreme in light of those simple facts?

As some evidence of his argument that Justice Owen is somehow an activist, somehow too extreme, Senator Leahy has pointed to language in a number of opinions where she has been criticized for rewriting statutes. As somebody who has, for better or worse, served for 13 years as a judge before I came to this institution, I can tell you, that is simply the way judges talk to each other when they disagree about the outcome in any case. They do their very best to research the law, to try to ascertain what the legislative intent is in any particular case, and then they reach a conclusion. Someone who disagrees with that judge may say: Well, I disagree. I believe you are rewriting the statute. It is not as serious nor certainly as consequential a statement as Senator Leahy might suggest. It is just another way of saying: I disagree.

Here again, judges disagree, particularly on the most difficult questions that confront our States or this Nation. We expect judges to speak their mind. We expect judges to enter into intelligent debate and discussion, and when they disagree, so much the better. But finally—finally—there has to be a decision. That is where the majority comes into play and makes a final decision.

So judges being accused of rewriting statutes does not have nearly the sinister connotation that some might suggest and, in fact, to me just represents judges trying to do their jobs to the best of their ability.

I just have to mention that Senator Leahy pointed to one case where Justice Owen and I disagreed when I was on the Texas Supreme Court, the Weiner v. Wasson case, and it was one of a number of cases where she and I disagreed. But, here again, the fact that we disagreed does not make her incompetent to serve on the Fifth Circuit Court of Appeals or unqualified or somehow activist. It means simply that we had different opinions of how the law ought to be ascertained, what that law was, and how it should be applied to the facts.

The language Senator Leahy read, with which he said he agreed, about the importance of stare decisis, adheres to the precedents set out by our highest court in terms of setting expectations of the litigants, achieving finality of a decision rather than relitigating the same legal questions over and over again. That was no lecture but merely an explanation to the one who was challenging the constitutionality of the statute in that case or the one who claimed the statute was constitutional; in fact, it was important that we adhere to an earlier decision where we had held a similar statute unconstitutional. It was certainly not a lecture.

It just goes to prove that when you read the written record in black and white, sometimes it fails to impart enough information to make an informed decision about what is going on. That is why we have juries, to listen to witnesses, confront witnesses face to face in court. That is why, as appellate judges, we defer to the facts found by juries and lower courts, because they are in the best position to determine the veracity of the testimony and the credibility of the witness. That is why a written record can sometimes simply mislead you into a wrong conclusion, which has happened in the case of Justice Owen.

I could not support the nomination of Justice Owen to the Fifth Circuit Court of Appeals more strongly. This court, of course, covers the States of Texas, Mississippi, and Louisiana and all Federal appeals that come from those States. I firmly believe Justice Owen deserves to be confirmed. She will be confirmed by a bipartisan majority of the Senate as long as the Senate applies a fair standard and as long as we continue to respect Senate traditions and the fundamental democratic principle of majority rule by permitting an up-or-down vote on her nomination.

The American people desperately need the Nation's finest legal minds to serve on our Federal courts, particularly vacancies such as those on the Fifth Circuit, which have been designated judicial emergencies by the U.S. Judicial Conference. We must ensure that all judicial nominees understand that judges must interpret the law as written and not as they personally would like to see them written.

Justice Owen satisfies both of these standards with flying colors. She is, quite simply and by any measure, an impressive attorney and jurist. She graduated at the top of her class at Baylor Law School and was an editor of the Law Review at a time when few women entered the legal profession. She received the highest score of her class on the bar examination, and she was extremely successful as a practicing attorney in Houston, TX, and across the State for 17 years before she began her service on the Texas Supreme Court, where she has served with distinction for 8 years.

I alluded to this a moment ago, but in her last election not only did she receive the overwhelming majority of the statewide vote, she was endorsed by virtually every Texas newspaper editorial board—hardly the record of an out-of-the-mainstream nominee. She has the support of prominent Democrats in Texas, including former members of the Texas Supreme Court such as former Chief Justice John Hill, former Justice Raul Gonzalez, and a bipartisan array of former presidents of the State bar association.

The American Bar Association has given her its unanimous and highest well-qualified rating, which some in this Chamber have called the gold standard.

I cannot understand nor fathom how any judicial nominee can receive all of these accolades from legal experts and public servants across the legal and political mainstream unless that nominee is both exceptionally talented as a lawyer and a judge who respects the law and steadfastly refuses to insert his or her own political beliefs into the decision of cases.

Based on this amazing record of achievement and success, it is no wonder that Justice Owen has long commanded the support of a bipartisan majority of the Senate while her nomination has lingered since May of 2001.

I would like to talk about my own personal perspective on this nominee, having worked with her for 3 years. During that time, I had the privilege of working closely with Justice Owen. I had the opportunity to observe on a daily basis precisely how she approaches her job as a jurist, what she thinks about the job of judging in literally hundreds, if not thousands, of cases. During those 3 years, I spoke with Justice Owen on countless occasions about how to read statutes faithfully and carefully and how to decide cases based on what the law says, not how we personally would like to see it read or to have come out.

I saw her take careful notes, pull the law books from the shelves and study them very closely. I saw how hard she works to faithfully interpret the law according to her oath and to apply the law as the Texas Legislature has written.

I can testify from my own personal experience, as a former colleague and as a former fellow justice, that Justice Owen is an exceptional judge, one who works hard to follow the law and enforce the will of the legislature, not her will.

Not once did I see her try to insert her own political or social agenda into her job as a judge. To the contrary, Justice Owen believes strongly, as do I, in the importance of judicial self-restraint, that judges are called upon not to act as legislators or as politicians but as judges, to faithfully read statutes and to interpret and apply them to the cases that come before the court.
It is because I have such a deep admiration for Justice Owen that I have taken such a personal interest in talking about her nomination and hoping, not beyond hope, that Senator Leahy and others who, I am convinced, have profoundly misjudged this nominee will reconsider their views and perhaps will take what I have to say today in the overall context of the nominee and reconsider her nomination.

On the morning of Justice Owen's confirmation hearing in the Judiciary Committee last month, I published an op-ed in the Austin American-Statesman discussing Justice Owen's qualifications for the bench.

I ask unanimous consent to print that op-ed in the RECORD.

Mr. CORNYN. Senator Hatch, chairman of the committee, also gave me the opportunity to chair a portion of the hearing at which Justice Owen's nomination was voted out. I publicly thank him for that special opportunity to not only express my strong support but to demonstrate it at that hearing.

At the same time I have taken a deeply personal interest in this nomination, I also want to step back and carefully consider the arguments that have been presented by opponents of the nomination.

I have mentioned some of those at the outset, particularly in response to what Senator Leahy had to say. I am forced to conclude Justice Owen's opponents have no real arguments—none that stand up under scrutiny; at least none that will withstand scrutiny under any reasonably fair standard.

It bears noting, by the way, that Justice Owen's opponents are the same folks who predicted Lewis Powell's confirmation to the Supreme Court of the United States would mean "justice for women will be ignored."

Her opponents, the special interest groups who oppose her nomination, are the same folks who argued Judge John Paul Stevens had demonstrated "blatant insensitivity to discrimination against women" and "seems to bend over backward to limit" rights for all women.

Amazing as it may seem, her opponents are the same folks who testified that confirming David Souter to the Supreme Court would mean "ending freedom for women in this country." Then the same folks who said they "tremble for this country, if you confirm David Souter," even described now-Justice Souter as "almost neanderthal" and warned "women's lives are at stake" if the Senate confirms Souter.

Well, the rhetoric and the histrionics and the lack of credibility of those outlandish verbal assaults on judicial nominees sound all too familiar because, of course, these are many of the same accusations being made against Justice Owen, which are equally unfounded.

This reminds me of the story of the little boy who cried wolf. After these repeated charges, accusations, and shrill attacks—and we have heard many of the same directed against Miguel Estrada, without foundation—it makes you wonder just how credible these special interest groups really are that oppose some of President Bush's highly qualified nominees. It also makes you wonder whether these special interest groups makes these claims not because they believe they are truthful, but because they have another agenda, some other reason for making these claims, for scaring people.

In the particular case of Justice Owen, the attacks are, I am sad to say, true to form and conform to past patterns and practice, for they are, like the attacks of the past on the judges whose names I have mentioned, unfair and without foundation in either fact or law.

I mentioned just a moment ago how I believe the critics—people like the distinguished Senator from Vermont—point out judges sometimes disagree about the interpretation of statutes. You may read one judge's criticism of another judge's interpretation as "rewriting a statute." I hope you will consider those comments and take them into account, as I hope others will who currently oppose Justice Owen's nomination. But if that is the standard—and I don't think it should be—then such a standard would also disqualify numerous U.S. Supreme Court justices, whom Owen's opponents are known to adore.

For example, in a 1971 opinion, Justices Hugo Black and William O. Douglas sharply criticized Justices William Brennan, Harry Blackmun, and others, stating that the "plurality's action in rewriting the statute represents a seizure of legislative power that we simply do not possess."

In a 1985 decision, Justice John Paul Stevens accused Justices Lewis Powell, Sandra Day O'Connor, and Byron White of engaging in "judicial activism." Of course, these are not the only examples that pervade the U.S. Reports.

Would Justice Owen's opponents apply the same standard and exclude from consideration or confirmation their own favorite justice from Federal judicial service? I imagine not. Fairness only dictates that Justice Owen not be made to suffer from this same absurd and unreasonable standard either.

This whole issue reminds me of the scene from the movie "Jerry Maguire," when Cuba Gooding, Jr., tells Tom Cruise: "See, man, that's the difference between us. You think we're fighting, I think we're finally talking."

Well, simply put, this is the way judges talk in opinions, and it certainly does not disqualify Justice Owen from confirmation.

Those who emphasize critical quotes about Justice Owen from other justices on the Texas Supreme Court think they are fighting, but actually the justices are just talking. They are just judging and they are just doing the duty they were asked to do and took an oath to perform.

Mr. President, I note we have about 5 minutes remaining on the clock, so I will cut short the remainder of my remarks. I will be back on the floor as needed, depending upon how this debate continues. It is my hope we will see a unanimous consent agreement to achieve a limit on debate, an adequate time certainly, where everybody who wants to be heard can be heard on this highly qualified nominee. I hope during that debate the people listening—both colleagues in the Senate and those listening across this country—will take all of the debate into account, both the charges and the answers, some of which I have given today, and make their own assessment of the credibility of some of these charges—charges which I believe are unfair and unfounded and without any merit as regards Justice Owen.

Finally, let me just say I hope the Democratic minority in this body does not choose to make the same ill-considered decision to filibuster Justice Owen as they made in the case of Miguel Estrada. I believe debate is important. But, of course, sooner or later, we have to, and we should, do what the voters of our States have sent us here to do, what the Founders of this country, the Framers of our Constitution, expected us to do—that is, to vote. They expected the Senate to be a body where debate would be favored—and certainly it is that—where nothing happens precipitously—and certainly it is that—and where enough debate and time can be taken to cool tempers and emotions and passions and make the very best decisions we can possibly make on behalf of the American people.

But after everything has been said once, or twice, or five times, or 10 times, or a hundred times, you would think the Senate should vote. I believe the Senate should vote. I believe that is what the Framers expected, and I believe they never considered a minority of this body could obstruct the will of a bipartisan majority when it comes to the nomination of a highly qualified judicial nominee.

I hope at the appropriate time there will be that unanimous consent agreement and we will continue to debate Justice Owen's nomination for a reasonable period of time—as long as anyone has anything new to say—but, in the end, that we will have an up-or-down vote, which is something currently being denied to Miguel Estrada. I certainly hope the precedent that has been set now in the case of Miguel Estrada—which I believe is a black mark on the record of this institution—will not be repeated in the case of Priscilla Owen.

I thank the Chair, and I yield the floor.