Priscilla Owen Nomination

Mr. CORNYN. Mr. President, I rise today to address the Senate with some regret and with somewhat of a heavy heart. I believe in the rule of law. Indeed, this Nation was built on the rule of law, the ultimate strength of our institutions that make up our representative democracy. So it saddens me, along with many of my distinguished colleagues, when I witness the abject failure of one of these institutions. Nowhere has this institution met with greater failure than in the area of judicial nominations.

Nearly two years ago, President Bush announced his first class of nominees to the Federal court of appeals. Five of the eleven nominees have not had a single vote in the Senate two years later. This list includes Justice Priscilla Owen, with whom I served on the Texas Supreme Court, and whose nomination is now pending before this body.

Two years is too long. I believe the Senate has reached a new low in recent months, with the unprecedented use of a filibuster of dubious merit that blocks an exceptionally qualified nominee who enjoys the support of a bipartisan majority. If we were allowed to vote, I am convinced that a bipartisan majority of the Senate would today vote to confirm Justice Priscilla Owen to the Fifth Circuit Court of Appeals.

This dismal political anniversary indicates the true range of the failure of the judicial confirmation process in this body. This process has become unnecessarily but increasingly bitter and destructive, and it does a terrible disservice to the President, to Senators, to nominees, and ultimately to the American people.

I do not know anyone who truly believes in their heart of hearts that the process works now the way it should. I believe most reasonable people looking at this process from the outside would agree with me that the process is broken. But the question now becomes, is it broken without hope of repair?

Today I announced that the Judiciary Committee's Subcommittee on the Constitution will convene a hearing on reform of the broken judicial confirmation process. This hearing will allow distinguished Members of the Senate, on a bipartisan basis, as well as the Nation's leading constitutional experts, the opportunity to discuss the serious constitutional questions raised by the obstruction of judicial nominations. We will address the problems facing the Senate and the Federal judiciary, and we will consider and debate potential solutions and reforms.

Yes, I believe two years is too long. Specifically, it is too long for a candidate as worthy and as qualified as Justice Priscilla Owen. Of the nominees currently pending before the Senate, no one has waited longer than Justice Owen for a vote on the Senate floor on a judicial nomination—no one. As a former state supreme court justice who served with Justice Owen for three years, and now as a member of the Senate Judiciary Committee which carefully considered and endorsed her nomination to the Federal bench last month, I firmly believe Justice Owen deserves to be confirmed to the Court of Appeals for the Fifth Circuit. Of course, the Fifth Circuit covers my home State of Texas as well as the States of Mississippi and Louisiana. If the Senate applies a fair standard, if we continue to respect our Constitution, Senate traditions, and the fundamental democratic principle of majority rule, she will be confirmed.

The arguments of those who oppose Justice Owen's nomination can be summed up in one phrase: Don't confuse us with the facts.

The facts are these: First, the American people are in desperate need of highly qualified individuals of the greatest legal talent and legal minds to fill the numerous vacant positions on the Federal bench, particularly those on the Fifth Circuit Court of Appeals, whose three vacancies are all designated judicial emergencies by the U.S. Judicial Conference.

Second, we must ensure that all judicial nominees understand that judges must interpret the law as written and not as judges or special interest groups would like them to be written. In other words, the judiciary must be a means by which the laws that are passed by Congress and signed by the President are implemented in the daily lives of the American people. The Constitution does not comprehend nor is it appropriate for judges to serve as a super-legislative body or to serve as another legislative branch in a black robe.

Of course, when it comes to interpreting the law faithfully and avoiding the pressure of special interest groups, Justice Owen satisfies both of these standards with flying colors. She is quite simply, by any measure, an outstanding jurist. The facts are testimony to her ability and her intelligence.

Justice Owen 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 on the bar examination. And she was extremely successful in the private practice of law for seventeen years before joining the bench.

Since she has become a judge about eight years ago, she has served with enormous distinction on the Texas Supreme Court. In her last election to the Texas Supreme Court, she was endorsed by virtually every major Texas newspaper, and most recently when she was reelected she received the vote of 84 percent of those who cast a vote in the election.

She has the support of prominent Texas Democrats and Republicans alike, Democrats such as former members of the Texas Supreme Court, Chief Justice John Hill and Justice Gonzales, as well as a long list of former presidents of the State bar, and leaders in the legal profession in my State. The American Bar Association that provides some analysis of judicial nominees, an objective analysis, has rated her well qualified, a rating that some of my colleagues used to refer to as "the gold standard," but which they now conveniently choose to ignore.

I simply cannot fathom how any judicial nominee can receive all these accolades from opinion leaders, from constituents, from legal experts across the political spectrum, unless the nominee is both an exceptionally qualified lawyer, a judge who respects the law, and a person who steadfastly refuses to insert his or her own political beliefs into the judging of cases.
Based on this remarkable record of achievement and success, of eloquent and evenhanded rulings, it should come as no surprise that Justice Owen has long commanded the support of a bipartisan majority of the Senate.

I would like to take a couple of moments to talk about my own personal observations while serving with Justice Owen on the Texas Supreme Court. She and I served together on that court for three years—from the time she joined the court in January 1995 until the time I left the court after serving seven years in October of 1997.

During those three years, 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 judge, how she thinks about the law, and what she thinks about the job of judging in literally hundreds, if not thousands, of cases. I spoke with and indeed debated in conference with Justice Owen on countless occasions about how to faithfully read and follow statutes and how to decide cases based upon what the law is—not based on some result we would like to see achieved. I saw her taking careful notes, pulling down the law books from the shelves and studying them with dedication and diligence. I saw how hard she works to faithfully interpret and apply what the Texas legislature had written, without fear and without favor. Not once did I ever see her attempt to pursue some political agenda in her role as a judge, or try to insert her own belief as opposed to the intent of the legislature or some precedent from a higher court in the case at hand. To the contrary, I can tell you from my personal observation that Justice Owen feels very strongly that judges are called upon—not as legislators or as politicians, but as judges—to faithfully read statutes on the books and interpret and apply them faithfully in cases that come before the court. I can testify from my own personal experience, as her former colleague and as a fellow justice, that Justice Owen is an exceptional judge who works hard to follow the law and enforce the will of the legislature. She is a brilliant legal scholar and a warm and engaging person. To see the kind of disrespect the nomination of such a great Texas judge has received in this body is disappointing and really beneath the dignity, I believe, of this institution.

It is hard to recognize the caricature that opponents of this nominee have drawn. Unfortunately, as a Member of the Senate Judiciary Committee who has had a chance now to vote on a number of President Bush's nominees for the Federal bench, I have seen that the practice of vilifying and marginalizing and demonizing President Bush's judicial nominees is becoming all too common. Indeed, I began to wonder whether there are any good, honorable people with distinguished records in the legal profession or in the judiciary who will submit their names for consideration by this body, knowing that, regardless of the facts, regardless of the truth, they will be painted as some caricature not of what they really are, but of what others have cast them to be, when in fact the truth is far different, and with no justification.

It pains me to see what can only be called the politics of personal destruction played out in the course of the judicial confirmation process. We can and we must do better.

The special interest groups, and the minority in this body—who oppose even calling a vote on Justice Owen have no real arguments to oppose her nomination, at least none based in fact or any that would withstand scrutiny under any fair standard. Their past record shows these groups who have cast aspersions on many highly qualified nominees—many of whom currently serve on the Federal bench—their attacks against judges are simply not credible.

For example, these opponents of a bipartisan majority who would vote to confirm Justice Owen today are the very same folks who predicted that Justice Lewis Powell's confirmation would mean that "justice for women will be ignored." Justice Owen's opponents are the same folks who argued that Justice John Paul Stevens had demonstrated "blatant insensitivity to discrimination against women" and "seems to bend over backwards to limit" rights for all women. Justice Owen's opponents are the same folks who testified that confirming David Souter to the United States Supreme Court would mean "ending freedom for women in this country"—the same folks who said they "tremble for this country if you confirm David Souter"—who even described now-Justice Souter as "almost Neanderthal" and warned that "women's lives are at stake" if the Senate were to confirm him.

How many times must these irresponsible and baseless allegations be made before we finally say these special interest groups have no credibility when it comes to judicial confirmations? Their claims about Justice Owen are no more accurate and no less hysterical. It reminds me of the boy who cried wolf.

After these repeated charges and accusations and shrill attacks, which typically turn out—certainly in the cases I mentioned—to be utterly baseless and unfair, it makes you wonder just how credible these groups think they really are, or how long their arguments will continue to have currency in this body or in the media.

It also makes you wonder whether these groups make their claims not because they actually believe they are true, but in order to achieve their own political aims—in order to defeat judges nominated by this President, who believe that a judge's role is not to be an activist in a black robe or a super legislator. But I believe these shrill attacks are made with one purpose and one purpose only—to scare people and to support unsubstantiated and baseless attacks against highly qualified nominees like Justice Owen.

In the case of Justice Owen, their attacks are true to form. And they conform to their past patterns and practices—for they are like their attacks of the past, unfair and without foundation either in fact or in law. For example, some of Owen's detractors claim she rewrites statutes in order to further her own political agenda. That is a pretty incredible charge in light of her ABA rating of well qualified, which was unanimous, her strong bipartisan backing, and her enthusiastic support from Texans, people who know her best. It is also a baseless charge.

To ostensibly prove their point, Justice Owen's opponents point out that on occasion, other justices on the Texas Supreme Court have written opinions saying Justice Owen sometimes was rewriting statutes in order to achieve a particular result. That is an absurd standard to apply in a Senate confirmation, for reasons I will detail now. All judges of good faith struggle to read statutes and other legal texts carefully, and faithfully.

In close and difficult cases—and the docket of the Texas Supreme Court is chock full of them—judges will often disagree about the proper and most correct legal interpretation. Indeed, we establish courts of multiple members—nine members—a collegial decision-making body, believing that judges will sometimes disagree, but in that decision-making process, that there will be a full and fair debate about the various positions, about the various interpretations, and that ultimately majority rule will win out and a case will be fully and finally decided.

But when disagreements occur, a judge may naturally conclude that his or her own reading of a statute is correct. That is why they will decide the case in the way they choose, based on a belief that their interpretation of a statute is correct. And, of course, it only follows that if I believe, in deciding a case, that my interpretation of the statute is correct, that the interpretation of the statute by someone who achieves a different result is not correct.

Now, that is not the final word. Obviously, the final word is the decision of the majority of the court which decides, for all practical purposes, not necessarily in the abstract, but for all practical purposes, what the correct result is, so that the people in our States and across the country can know what the rules are and apply them with some predictability.

I would point out that practically everyone with any significant judicial experience has faced the same criticism that Justice Owen has received in terms of rewriting statute. Yet if Justice Owen's opponents are to be taken seriously, any judge who has been criticized of rewriting a statute is presumptively unfit for the Federal bench. As I pointed out at Justice Owen's confirmation hearing last month, such an absurd standard would exclude practically all of her current and past colleagues on the Texas Supreme Court.

Such an absurd standard would also disqualify numerous members of the U.S. Supreme Court, people with whom Justice Owen's opponents are known to agree. For example, in 1971, Justice Hugo Black and William O. Douglas sharply criticized Justices William Brennan, Harry Blackmun, and others, stating that the "plurality's action in rewriting this 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."

Countless other examples pervade the U.S. Reports.

Would Justice Owen's opponents and detractors apply the same standard and exclude those Justices with whom they tend to agree from Federal judicial service? Of course not. It is a double standard. It applies to Justice Owen but not to judges who they would prefer. But fairness only dictates that Justice Owen not be made to suffer from an absurd and unreasonable double standard.

I remind my colleagues that just last year, the Democrat-controlled Senate confirmed Professor Michael McConnell to the Federal court of appeals by unanimous consent, even though Judge McConnell, like Justice Ruth Bader Ginsburg and liberal law professors and commentators, has publicly criticized the analysis of several Supreme Court rulings, including Roe v. Wade. That is not something, however, that Justice Owen has done.

Now, don't get me wrong. I am glad that Judge McConnell was confirmed. He is an exceptional jurist who is already proving to be a fine judge on the Federal court of appeals. But his case illustrates the inherent foolishness of using ideological litmus tests when assessing the abilities and evenhandedness of judicial nominees.

Mr. President, I can tell you from personal experience, when you put your left hand on the Bible, and raise your right hand, and take an oath as a judge, you change. Your job changes. No longer are you an advocate for a particular position in a court of law that you hope some court will embrace. No longer are you a legislator—assuming you have been a legislator—used to making the law or affecting public policy in a very stark and direct way.

Mr. President, when you raise your right hand, and put your left hand on the Bible, and take a sacred oath to perform the duties of a judge, you change. And, indeed, Justice Owen has been true to that oath and has faithfully discharged her responsibilities as a judge, and will do so on the Fifth Circuit Court of Appeals if this body would simply vote on her nomination.

I want to spend a few moments talking about filibusters.

Clearly, debate is important. In a body such as the Senate, this is one place where we know if there is a difference of opinion on any issue, if there are competing points of view, that there will be a full debate. Debate is, indeed, the only way to ensure we make known to each other our views and our values. It is the only way to ensure we have the opportunity to make our arguments known and to respond to the arguments of others; to appeal to the public and reasonable people who will assess those arguments and achieve or arrive at a judgment on their own about what they believe, what they do not believe, which arguments have value and which have no value, which arguments are supported by facts or evidence and which are baseless. It is the only way to ensure that each of us can be convinced we have been given at least the opportunity to persuade others and to appreciate the wisdom of our respective positions.

But for democracy to work, and for the fundamental democratic principle of majority rule to prevail, the debate must eventually end, and we must eventually bring matters to a vote. As Senator Henry Cabot Lodge famously said about filibusters: "To vote without debating is perilous, but to debate and never vote is imbecile."

So let's have a debate about this exceptional nominee. And after we have had the debate, let's vote. There should not be a filibuster. A minority of the Senate should not try to impose what is in effect a supermajority requirement for confirming judicial nominees, operating under the constant threat of filibuster.

The Constitution makes clear when the Founders intended to require a supermajority of this body to act. It specifies that two-thirds of each House shall be necessary to override a Presidential veto on legislation, and that two-thirds of each House shall be necessary to amend the Constitution, subject to the ratification by the people. It provides that two-thirds of the Senate shall be necessary to convict an officer pursuant to an impeachment trial, and that two-thirds of the Senate shall be necessary to consent to the ratification of treaties.

It does not say that a supermajority shall be necessary to confirm a President's judicial nominees. And it is well-settled and well-established law, as a matter of both Senate practice and Supreme Court precedent, that majority rule is the norm, whenever the text of the Constitution does not expressly provide otherwise.

The Constitution vests the advice-and-consent function in the entire Senate, not just in the Senate Judiciary Committee. During the last Congress, the Senate Judiciary Committee refused to report Justice Owen's nomination out to the entire Senate. The committee, it should be obvious, does not speak for the entire Senate. Indeed, the committee itself could have reconsidered the nomination and could have reported Justice Owen to the floor even after it had previously refused to do so.

The Constitution requires elections to make sure that the Senate remains accountable to the people. To insist that a new Senate cannot, after an intervening election, reconsider legislation or a nomination rejected by a previous Senate is to reject the very principle of democracy and accountability.

Accordingly, there is no Senate tradition that forbids the President from renominating an individual previously rejected by the full Senate, let alone by the Senate Judiciary Committee. Quite to the contrary, there is a wealth of precedent for such re-nominations.

As recently as 1997, the Senate Judiciary Committee refused to report Bill Lann Lee to the entire Senate. Yet President Clinton not only renominated Lee in subsequent sessions of the Senate, he even gave Lee a recess appointment in 2000 without triggering substantial opposition from the Senate.

I am not asking for the Senate to depart from its traditions. Indeed, the only departure from tradition that is occurring today is the filibuster of Miguel Estrada and now Priscilla Owen, something that has never happened before to a circuit court nominee.

I hope we have a good, vigorous debate on this nomination because I believe that by any measure Justice Owen is an exceptional judge and an exceptional human being who deserves confirmation.

I am confident that, at the end of the debate, if Members of the Senate really want to know what the facts are, as opposed to the caricature that has been drawn of Justice Owen by special interest groups intent on vilifying, marginalizing, demonizing a good and decent human being, that if we were allowed to have a vote, we would have a strong bipartisan majority that would support her nomination.

I hope no matter what the outcome, we will come to an end of the debate, and we will simply do what the people of our respective states sent us here to do, and that is to vote.

I would not ask the Senate to depart from its traditions of fairness in this case. By any fair measure, Justice Owen is an exceptional judge and exceptional nominee. I am confident she will not only maintain the strong bipartisan majority she has in support of her nomination, but that it will grow as Senators examine the record, test some of the allegations made against her, and find them without substantiation, without justification; that if what we are really interested in is finding the truth about this nominee, and determining whether she will uphold the oath she has taken and that she will take as a judge on the circuit court, she will be confirmed.

I hope this body will abide by the Constitution as written, and not impose some supermajority requirement where the Constitution requires none, and where the Supreme Court and Senate traditions and the fundamental principle of majority rule dictate a majority vote on this nominee, not a 60-vote supermajority.

As long as the Senate applies a fair standard to this nominee, I have no doubt Justice Owen will be confirmed. Now nearly two years have passed since she was nominated to the Federal bench. The Senate should vote to confirm her immediately.
We ask judges to be fair, to be impartial in deciding cases, to show neither fear nor favor. But certainly the requirement of fairness does not end in the judicial branch. It also applies to the Congress and to the Senate in performing our responsibilities. Certainly you would think it is self-evident that it should apply in confirming judicial nominees. Our current state of affairs is neither fair nor representative of the sentiment of a bipartisan majority of this body.

The distinguished Senator from Nevada has said that, when it comes to setting the hours of debate, "there is not a number in the universe that would be sufficient." I say two years is more than sufficient.

I yield the floor.