Nomination of Priscilla Owen to be United States Circuit Judge for the Fifth Circuit

NOMINATION OF PRISCILLA OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

Mr. SCHUMER. Mr. President, I enjoy listening to all of our colleagues: Our leader from South Dakota, my friend from Nevada, and of course my good friend from Utah, who is just an excellent debater. I would say he is indefatigable because he is on the floor all the time.
    
I am rising in opposition to Priscilla Owen, and I have a whole bunch of points I would like to make. But I would like to just answer my good friend from Utah on two.
    
He constantly is using the word right now, "obstruction." It would seem logical by his definition that nonobstruction is only when we approve every judge the President has nominated. The fact is that there are 119 who have been approved and only 3, if you include Judge Pickering in this—that is, Miguel Estrada, Priscilla Owen, and Judge Pickering—only 3 have been held up. Is it fair, I ask my friend from Utah, to call that obstruction?

Mr. SCHUMER. I will; 119 judges approved, 3 held up. That has been done with greater speed than in any time that anyone has heard of, in terms of the period of time.
    
So I just ask my colleague, is the only way we can fail to be obstructionist by approving every single judge the President nominates? Because we have come darned close. We only opposed three, and the word "obstruction" flows like water from my good friend's lips.
    
I yield.

Mr. SCHUMER. Reclaiming my time, I would remind my colleague that within a single day, cloture votes were held on Judge Paez and Judge Berzon. There were attempted filibusters on the other side. They waited large numbers of years—more years than Priscilla Owen, Miguel Estrada, or Judge Pickering have waited. I didn't once hear my friend from Utah call it obstruction.
    
What is good for the goose is good for the gander. There were cloture votes held. There is only one difference—actually there is no difference. Cloture was achieved eventually. But the bottom line is this is not true. For Paez and Berzon I think it was the same day, it may have been within a day of one another—cloture votes were held because a filibuster was being conducted.

Mr. SCHUMER. I will yield in a minute. It was run by a number of his friends. I know my friend from Utah will say he worked out a deal and eventually they were approved. So I ask him, when he answers that, to remind all of us how long they waited to be approved. Was it a year? Was it 2 years? No.

So, if my good friend from Utah would have the same patience, and sort of maybe we can come to an agreement 2 or 3 years from now—maybe after 2004—then we would be being fair; we would be judging one side and the other with the same standard.
    
Unfortunately, there has been a double standard here, when my good colleagues from Alabama and the now-Attorney General but then-Senator from Missouri and others launched filibusters

Mr. SCHUMER. Against two nominees for the Ninth Circuit. Those folks waited years, longer times than any of the three we have mentioned. I didn't hear the word "obstruction."
    
I will be happy to yield.

Mr. SCHUMER. I thank my colleague. But I say my good friend from Utah had another method even more effective in bottling up judges, and that was never bringing them up for a vote. I think it is hard to see how keeping someone from a vote in the Judiciary Committee when there were vacancies on the bench, when those nominees waited and waited and waited, is anymore commendable. To me, it seems certainly less commendable than bringing them up for a vote and then having a large number of Senators—not a majority but certainly more than 40 percent of this body, as the rules of the Senate allow—not do it.

Mr. SCHUMER. I am going to move on now.
    
I will be happy to yield. But the bottom line is that there is a lot of sophistry going on here in terms of argument—not in terms of individuals. When you are forced to invoke cloture to get a vote, if that is not a filibuster, I don't know what is. It seems to me it is. When you don't allow a nominee to come to the floor and get a vote and you don't even bring them before the Judiciary to bring a vote, that is OK. But when they get the vote in Judiciary and then they come to the floor and large numbers of Members feel so strongly that in only 2 cases out of 119 they say this is the only method we can use to stop it, that is wrong. It makes no sense.
    
Finally, I would say this: It is obstruction when you stop any one of the President's nominees, because what our friend from Utah says he must do when he says just have them come up for a vote is to pass every nominee because, for whatever reason, the discipline on that side is such that they will always get 51 votes.
    
I am proud of what we have done. I believe we are upholding the Constitution. I believe we are checking the arrogance in the White House, particularly with Miguel Estrada and his refusal to even answer any questions. I believe history will look very kindly on this effort. They will look at it as courageous. They will look at it as right. They will look at it as judicious because it has not been used willy-nilly. They will look at it as fair.
    
I know my colleague from Utah is doing his job. He does it very well. My hat is off to him. But ultimately all he wants us to do is spend a little time debating each nominee and then approving each one, no matter what—whether they answer questions or not; whether he said, Well, Judge Paez had some bad cases that he ruled on.
    
Guess what. We think Judge Owen has a lot of bad cases. And some of them were called bad by very conservative colleagues of my friend: The White House counsel, then-Judge Gonzales; and the junior Senator from Texas, then-Judge Cornyn, on the record—very rare—chastising Judge Owen for going way beyond the law. These were not liberal Democrats. These were not even moderate Republicans. I don't think it is disputable that in the eyes of many, Judge Owen has "some bad cases." And if it was permissible to delay Judge Paez for 4 or 5 years because of some bad cases, then clearly we should just have begun on Judge Owen.

Mr. SCHUMER. I will reclaim my time on that one. There are strong feelings on this side, as the Senator knows. It has nothing to do with games. To me, this rises to a sacred responsibility. And I don't use those words lightly.
    
The bottom line is—again, I would first say to my friend from Utah, this is not a referendum on his stewardship on the Judiciary. It is, again, part of an extremely important process about who is on the bench, who is part of that third branch of Government and put there for life.
    
But I would say to my friend—and he is the best in the business—the high dudgeon all of a sudden when a few nominees are held up for whatever reason and sort of the muted signs when he was chairman and many nominees were being held up, albeit not in exactly the same way—I would say it is a difference that doesn't make a difference; it is sort of, well, inconsistent.
    
Again, that doesn't go to the personal integrity of my friend from Utah who did try in many instances but didn't succeed. And how we should be judged, so to speak, is by who gets on the bench and who does not because that is ultimately what the process is about.
    
I would mention, in my colleague's recounting, there were lots who withdrew their nominations. You had the DC Circuit, the second most important circuit, for which both Miguel Estrada and Judge Roberts have been nominated, where there were no blue slip problems and there were no votes. So we can go over history. I am sure each side can point to wrongs on the other side.
    
The fact remains, of 119 judges who have been approved, there have been 3 we can be accused of holding up. As my friend from Nevada said, I have experienced the same thing. I go to parades and people say: What about Estrada? What about the judges? Because they listen to talk radio. I say: I voted for 113 out of 119, and they just be quiet. They say: Well, that is more than fair.
    
So this idea that we should roll over for every judge and allow them to be approved—and I would argue this with my friend from Utah—no President, certainly in my lifetime, and I think in the history of these United States, has so nominated judges of an ideological cast. You almost have to march lockstep and not be mainstream, not even be conservative but be way over, in case after case after case. That is what started this: no advise and consent, a desire to change America through the judiciary by creating an ideological litmus test for nominee after nominee after nominee. That is not what the Founding Fathers intended. My guess is, if Jefferson or Washington or Madison were looking down on this Chamber today, they would be approving of what we are doing because they would see that the balance in power—which they so carefully constructed between the President and the Senate, the President and the Congress, in terms of this awesome power to put people on the bench for life—is being eroded. That is why we are here. And we are going to continue to be here.
    
So my friend from Utah and the majority leader and others have a choice: They can hold up all these other judges and say, well, until we deal with Priscilla Owen we are not going to move anybody else. I would ask a jury of 12 people, fair and true, nonpartisan, who is obstructing?
    
That is why I would hope we could bring the nomination of Judge Edward Prado to the floor. And one of the reasons we want to do it is, yes, from the mouth of my friend from Utah, there is this view that only certain types of Hispanics would be approved or, from the mouths of others, that we are anti-Hispanic, a charge never leveled when Judge Moreno and Judge Rangel were not voted on to the same circuit by the other side.
    
But now we have Judge Prado, approved unanimously by the committee. I guess he is every bit as Hispanic as Miguel Estrada. There is one difference: He answered questions. And his views were not so far over as many who know Miguel Estrada report them to be. Why don't we approve him? Why don't we bring him up for a vote? Is he being used?
    
I will tell you what I think. I think the other side does not want us to approve a Hispanic judge who is within the mainstream. I think that

Mr. SCHUMER. I think it sort of shows that why Miguel Estrada is being held up has nothing to do with his ancestry but, rather, his conduct as he went through the nomination process in a unique refusal to answer questions.
    
I am going to tell my colleague one other story. President Bush has just nominated a woman to the district court in my State, Justice Dora Irizarry. She is Hispanic. She happened to be the Republican candidate for attorney general in this last election. That does not bother me a bit. I called her to my office. I asked her many of the same questions I asked Miguel Estrada. She was forthright. I asked her for two Supreme Court cases with which she disagreed. She named them, expostulated on them. She did not say, canon 5 will not let her talk about them. She did not say: I did not have the briefs, so I could not talk about them—both absurd arguments, arrogant arguments, arguments that show contempt for the Senate. And she is going to be approved, with my wholehearted support, even though she is Hispanic, even though she is more conservative than I am, even though she is a Republican officeholder.
   
 So the bottom line is simple: We can fill the bench and increase the number of Hispanic nominees quickly, if we work together, if the nominees would take the process not with contempt but with the responsibility that they should, given the awesome power that Federal judges have.
    
So I hope we will move to Judge Edward Prado. I hope we will move to him soon. I would like, as my colleague from Nevada, for us to bring him to the floor because there will not be a 2-week debate. There will be a day debate, maybe a 6- or 3-hour debate, and he will be approved.
    
By the way, if we are worried about vacancies, it is the same circuit as Priscilla Owen. The reason the other side does not want to bring up Judge Prado is very simple; it shows the glaring inconsistency and falsity of their arguments.
    
Our opposition to a few of these nominees has nothing to do with their ethnic background and nothing to do even with their political party. It has to do with the fact that some of them are so extreme that their own Republican colleagues thought that.
    
Again, you have Judge Gonzales who is now counsel to the White House. He said, in one of the cases that she dissented on, if the court went along with her, it would "be an unconscionable act of judicial activism." That is from the Republican, conservative, White House counsel. It could be an isolated case, as my good friend from Utah mentions, except that those who followed her on the courts say that was her MO. She constantly wanted to be a judicial activist and make law from the right.
    
I would be equally opposed to somebody who wanted to make law from the left. I do not like nominees who are too far left or too far right. On my own judicial committee, when those appointed distinguished jurists from around my State have brought forth nominees and suggested nominees who were way over to the left, I have said no. Anyone who has watched me interview judges knows that I am very weary of that because judges of the extremes make law. They do not do what the Founding Fathers said, which is interpret the law.
    
And it was not just Judge Gonzales. We then have the situation in the case of Weiner v. Wasson. This was a medical malpractice case. Again, Justice Owen wrote a dissent about an injured plaintiff while he was still a minor, and the issue was the constitutionality of a State law requiring minors to file medical malpractice actions before reaching the age of majority or risk being outside the statute of limitations.