Owen Nomination (cont.)

Mr. CORNYN. Mr. President, I rise today to say a few more words about our broken judicial confirmation process. This week the Senate marks a dismal political anniversary: 2 years of partisan obstruction of President Bush's judicial nominees, culminating in two unprecedented filibusters, and more are threatened.

The current list includes Justice Priscilla Owen, with whom I served on the Texas Supreme Court, whose nomination is now subject to a filibuster before the Senate. This 2-year anniversary indicates the true breadth of the failure of the judicial confirmation process, an increasingly bitter and destructive process, a process that does a disservice to the President, to the Senate, to the nominees, and ultimately to the American people.

Today a partisan minority of Senators are forcing a supermajority requirement of 60 votes on the judicial confirmation process. They are using the filibuster not simply to provide for adequate debate—a reasonable and laudable goal—but to prevent many of our Nation's most talented legal minds, in this case at least two of them, from filling our Nation's judicial vacancies. These obstructionist activities continue to undermine the constitutional principles of judicial independence and majority rule.

My colleagues should not think the American people do not know what is going on here. They see when a nominee's well-recognized abilities are ignored in favor of scare tactics and revisionist history, and they see when some Senators eschew the interests of the States from which they were elected, and, indeed, our Nation, and instead kowtow to special interest groups.

I am confident that Members of the Senate are wise enough to reject, I guess, what can only be called an inhuman caricature that has been drawn of Justice Priscilla Owen by special interest groups intent on vilifying, demonizing, and marginalizing an admirable nominee.

If we were allowed to hold a vote today, a bipartisan majority of this body stands ready to confirm Justice Priscilla Owen to the Fifth Circuit Court of Appeals.

I would like to take a few moments to talk about my own observations while serving with Justice Owen on the Texas Supreme Court for a period of 3 years during which our terms overlapped, from the time she joined the court in January 1995 until the time I left the court after serving 7 years in October of 1997.

During those 3 years, I had the privilege of working closely with Justice Owen. I had the opportunity to observe on a daily basis exactly how she approached the task of judging, how she thinks about the law and, indeed, her responsibilities, and how she thinks judges should perform once given the awesome responsibility that confers.

I spoke with and debated with Justice Owen in conference on countless occasions about how to faithfully read and follow statutes passed by the legislature and how to interpret precedents; that is, cases that had been previously decided that are binding on courts in terms of their guidance on deciding the same issues in the future.

I saw how hard she worked to faithfully interpret and apply what the legislature had written. I saw her take notes. I saw her tireless attention to detail, her zeal for studying the law, her dedication and her diligence. Not once did I see her attempting to pursue a political or personal agenda at the expense of what the law said or what the law required.

Indeed, some of my colleagues have taken her to task for disagreeing, and the fact that appellate judges, particularly at the highest court in my State, would actually disagree with one another, and suggesting that somehow there is something wrong with that.

Well, to the contrary. That is exactly what the job of a judge is. If we did not have judges occasionally disagree with each other, that would mean somebody was not doing their job, because by the time cases get to the top echelons of our judicial system, they are the hardest cases. They are the cases that cannot be solved by lower levels of the judiciary or indeed by settlement between the parties. These are important issues and must be decided. Indeed, a judge, unlike a member of this body, cannot choose to simply walk away. They must decide the case in the posture as presented by the litigants.

From experience and from observation, Justice Owen believes strongly that judges are called upon not to act as another legislative branch, not to act as a politician trying to read the polls or trying to assess what public opinion may say about this question or another. A judge's job is to faithfully read the statutes on the books and then apply them to the case before him or her or to interpret the precedents by earlier courts and to faithfully apply those, not in a lawmaking fashion but in a law interpretation and law enforcement fashion.

Indeed, that is the difference between what judges do and what members of the executive or legislative branches do. Judges are not supposed to make law. They are supposed to interpret and enforce the law written by the legislature.

I can testify from my personal experience as her former colleague that Priscilla Owen is an exceptional judge and one who understands and internalizes her duty to follow the law and enforce the will of the legislature. That is why the American Bar Association gave her a unanimous rating of well qualified. That is why she has strong bipartisan backing, including Democrats in the State of Texas and Democrat practitioners who have seen her in action. That is why she had enthusiastic support from her fellow Texans in her last election to the court. Some 84 percent of the voters voted to return her to office when she ran for that election.

Simply put, she is a brilliant legal scholar and a warm and engaging person. Knowing the individual, the human being, as I do, it causes me great pain to see her treated the way I believe she has been treated, unfairly, during the judicial confirmation process, and to hear Senators describe her in a way that nobody who knows her would recognize.

Not many in this body have had the privilege of knowing her personally and so that is why I think it is important for me to say the picture that has been painted of this highly qualified and highly talented human being and great judge in our State of Texas is more than just a little disappointing. It is beneath the dignity of this institution and disserves not only this institution but the constitutional requirement of judicial confirmation and, indeed, ultimately the American people.

The beltway special interest groups are not interested in trying to understand or evaluate Justice Owen by her real record, because if they were, they would see it as a sterling record of intelligence, accomplishment, and bipartisan support. The special interest groups are not interested in the confirmation of nominees who merely interpret the law and render judgment responsibly. They are only interested in confirming people who they believe are advocates of their interests, something that is totally at odds and conflicts with the role a judge is supposed to perform.

Sadly, it is clear that these same special interest groups are interested in obstructing as many of President Bush's judicial nominees as they possibly can. Those who oppose Justice Owen's confirmation appear to have really no stomach for debate and talking about the facts. They choose instead to filibuster and engage in the worst kind of mean-spirited and destructive political attacks.

Let there be no doubt left in the matter. Allow me to quote one of the leaders of the special interest groups opposed to Justice Owen's nomination quoted in the Los Angeles Times last week, when they said: It is sad that not all of these nominees can be filibustered.

So it is clear who is playing the tune and who is giving the instructions. Unfortunately, too many are heeding those instructions to filibuster the President's nominees, to prevent a bipartisan majority of this body from voting to confirm those nominees as they would today in the case of Priscilla Owen and Miguel Estrada.

I can only hope that at some point my colleagues will understand what is going on and reject this special interest influence on the judicial confirmation process. I can only hope that ultimately what we will all strive for is a process that is fair and consistent with our constitutional duty. Yet by blocking a vote on Priscilla Owen, they make themselves allies to these groups, groups that rejoice at the prospect of a Senate in constant gridlock when it comes to the judicial confirmation process.

These shrill attacks are inaccurate, dishonest and unfair. It is not the first time. These are the same people and the same groups that claimed during the nomination of Supreme Court Justice John Paul Stevens that he "expressly opposed women's interests." They found Supreme Court Justice Anthony Kennedy "a deeply disturbing candidate." They testified that Justice Lewis Powell's confirmation would mean that "justice for women will be ignored." And they described Supreme Court Justice David Souter as "almost neanderthal."

Those attacks and the current attacks of these same special interest groups are neither accurate nor, after they have long been exposed as untrue, should they be deemed credible. Lending credence to these tactics should be beneath this body. They have no standing for their arguments to be considered legitimate by this body. Like the little boy who cried wolf one too many times, they should be ignored by this body.

It is hard to recognize the caricatures that opponents of these nominees have drawn. As a member of the Senate Judiciary Committee who has voted on a number of President Bush's nominees for the Federal bench, I have seen the politics of personal destruction are fast becoming a commonplace activity for our judicial nominees. Indeed, I began to wonder whether there are enough good and honorable people with distinguished records left in the legal profession or in the judiciary who will volunteer to submit their names to this destructive process who, knowing the facts, regardless of the truth, they will be painted as some horrible caricature of their principal beliefs. Nominees who are so well recognized for their ability should not be required to serve an indefinite period of time in the stocks as targets for these special interest groups that attack them on a regular basis.

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.

This Friday the clock will run on into a third year of gridlock and obstruction. The special interest groups must be very proud.

These obstructionist tactics abuse the power of the filibuster. It not only violates the bedrock principle of democracy and majority rule itself but arguably offends the Constitution, as well. Indeed, prominent Democrats such as former White House Counsel Lloyd Cutler and, indeed, colleagues in the Senate currently serving, such as TOM DASCHLE, JOE LIEBERMAN, and TOM HARKIN, have condemned filibuster misuse as unconstitutional. An abuse of filibusters against judicial nominations uniquely threatens both the Presidential power of appointment and the principle of judicial independence.

Whether unconstitutional or merely obstructive of our political system, the current confirmation crisis calls out for reform. As all 10 freshmen Senators, myself included—including the distinguished Senator now presiding—stated last week in a letter to the leadership: We are united in our concern that the judicial confirmation process is broken and needs to be fixed. We believe the Senate must find an end to the downward spiral of accusations, obstruction, and delay.

In the face of this consensus that the process is broken, I stand before this body today and say, once again, it is time for a fresh start. In that spirit, the Senate Subcommittee on the Constitution yesterday held a hearing to consider proposals that have been offered to try to restore both the integrity of the confirmation process and the strength of our most cherished constitutional values. We explored and debated a variety of reform proposals at yesterday's hearing, including one from Senator ZELL MILLER from Georgia, who suggests what Senator Harkin and Senator Lieberman and 17 other Democrats did in 1995; that the 60-vote rule for any debate be reduced incrementally with each succeeding vote until the rule reaches 51 votes. There would be 2-day intervals between each cloture vote so that the whole process would last less than 2 weeks while ensuring adequate time for delay and debate, if necessary, but in the end allowing the majority to do what they are entitled to do in this body and elsewhere in a democracy, and that is to have their will reflected in the law and, in this case, in the confirmation of highly qualified nominees.

Senator Harkin and Senator Lieberman back in 1995 originally argued that this would preserve the traditions of this body while still giving the minority plenty of time to plead its case without blocking the majority forever.

Now Senator Miller has proposed this same rule be put into place. This strikes me, personally, as the most intriguing option that has been presented. Senator Schumer advocates an overhaul of the judicial confirmation process entirely by eliminating the President's appointment power and instead giving President Bush and the minority leader "equal votes in picking the judge pickers." I really think this is binding arbitration and foisting off on others what should be our responsibility and what we ought to be big enough and responsible enough to solve for ourselves. But I do give Senator Schumer credit for offering a reform proposal. I believe it reflects his opinion, as he has stated, both in writing and orally, that the process is broken and needs reform.

Essentially, Senator Schumer proposes that the President and the Senate minority leader select equal numbers of members of Senate judicial nominating positions in each State and circuit who would then select one nominee for each judicial vacancy. The President would be required to nominate, and the Senate required to confirm the individuals selected by the commission absent any evidence that the candidate is "unfit" for judicial service.

While I appreciate the spirit of reform and trying to find our way out of this gridlock that I believe Senator Schumer's proposal represents, there are several concerns. I have stated some of them.

White House Counsel Alberto Gonzales has called the plan "inconsistent with the Constitution, with the history and traditions of the Nation's Federal judicial appointment process and with the soundest approach for appointment of highly qualified Federal judges."

Let me be clear. While I think there are problems with the proposal, I do appreciate Senator Schumer's acknowledgment of the problem.

Finally, Senator ARLEN SPECTER and, indeed, Senator Leahy, the ranking member of the Judiciary Committee, have urged the imposition of strict time deadlines for the Senate to hold hearings and votes on judicial nominees. Indeed, the President has proposed the same sort of procedure. Chief Justice Rehnquist, speaking on behalf of the Federal judiciary, has also asked the Senate to ensure prompt up-or-down votes on nominees. Senator Specter has fleshed out his proposal and did so yesterday, again, which would call for preset time periods for a nominee to be debated in the committee and on the floor and then finally to reach an up-or-down vote.

I hope there will be more proposals. We had a panel of constitutional scholars, some of the most preeminent legal thinkers in the Nation, and I am sure there will be others. I hope there are others paying attention to this debate and who will offer proposals because I think it will take the best legal thinking. It will take a spirit of bipartisanship. It will take putting the recriminations and the finger-pointing behind us and looking forward and not backward in trying to relive some of those battles of the past for us to be able to get to closure on some reform.

What is important in the short term is that each of these intelligent and responsible Members of the Senate have acknowledged a crisis exists and urge reform of the confirmation process.

We insist that judges be fair and impartial in deciding cases and that they shall neither fear nor favor. But clearly the requirement of fairness does not end in the judicial branch of Government. It also applies to Congress and to this Senate in performing our responsibilities. It is self-evident that this standard should apply in confirming judicial nominees. Our current state of affairs is neither fair nor representative of the bipartisan majority of this body. For democracy to work and for the fundamental democratic principle of majority rule to prevail, all this debate must eventually end, and we must bring matters to a vote.

As Senator Henry Cabot Lodge once said about filibusters: To vote without debating is perilous, but to debate and never vote is imbecile.

I can tell you from personal experience as a former supreme court justice in my home State that when you put your left hand on the Bible and you raise your right hand and you take the oath of office as a judge, you change. If you were formerly an advocate, someone who did battle in our courts of law, representing the position of a client, you no longer are an advocate. If you were formally a legislator, someone who would argue in a body such as this for what public policy demands in terms of representing the best interests of the people you represent, once you become a judge, you are no longer a legislator; you change.

You are, instead, entrusted with a solemn duty, and that is to interpret the law to the best of your ability in accordance with the intent of the people who wrote that law. You must interpret the law as written and not as judges or lawyers or legislators or advocates or special interest groups might like that law to be written. You must interpret the law as it has been written, consistent with the legislative intent.

My hope is that this body will ultimately abide by the constitutional requirement that majorities govern in the case of these two nominees who are being filibustered. We must not, consistent with that same Constitution, impose a supermajority requirement where the Constitution requires none and where the Supreme Court and Senate traditions and the fundamental principle of majority rule dictate that a majority vote, not a 60-vote supermajority, will prevail.

We, of course, must consider the interests of our respective States and the Nation, and I think those interests should be considered above the interests and desires of the special interest groups that seem to have grabbed hold of the confirmation process and will not let it go.

We must act, and I believe we must act soon, to reform this broken confirmation process. Of course, this task falls not on others far away, not even on the President, not on the judiciary, but this responsibility falls on us as citizens, as Senators, as Americans.

Mr. President, I suggest the absence of a quorum.