Executive Session
EXECUTIVE SESSION -- (Senate - May 18, 2005)
NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
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Mr. CORNYN. Mr. President, I have been listening to the debate. The people who may be listening to this across the country and around the world on television, to the extent they are following it, may be forgiven if they wonder what is going on. People are talking about what we are doing on the floor in such breathless and nearly apocalyptic terms, referring to the nuclear option. This is not about America's foreign policy. This is about the rules of the Senate and the power of the Senate to determine for itself the rules by which we are governed. It is certainly an important matter, but we should tone down our rhetoric a little and try to address squarely the issue.
I worry when I hear Senators use words such as ``despicable,'' ``Neanderthal,'' ``scary,'' or ``kook'' in describing nominees by this President to the Federal bench. I would have thought that kind of rhetoric was unbecoming to a body such as the Senate, sometimes called the world's greatest deliberative body. I hope during the course of the debate we will take a deep breath, as we try to calmly but deliberately address the issues that lie before us. That is what I will strive to do for my part.
I want to talk in particular about Priscilla Owen. Before I do, I neglected to ask unanimous consent that I be allotted 20 minutes out of our side's time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. I want to respond first to an argument made earlier this morning. This is in the category of we can disagree about matters of opinion and matters about policy, but we should not disagree about the facts, when the facts are so plainly there before us and evident.
Richard Paez, a nominee of President Clinton, has been held up as perhaps one of the examples of our side treating a Democratic President's nominee unfairly. As this chart aptly demonstrates, if we would agree to treat Priscilla Owen exactly the way that Paez was treated, then Priscilla Owen would be sitting on the Fifth Circuit today, just as Judge Paez is now serving on the circuit court in the Federal judiciary. In other words, this is not an example justifying the actions being taken against this President's nominees. This is an example of why the obstruction we have seen is wrong and unfair. All we are asking for in this debate is a simple up-or-down vote for this President's nominees.
Priscilla Owen has been waiting 4 years for that simple up-or-down vote, which is all we are asking for. As I said, 4 years ago, Priscilla Owen was nominated to serve on the U.S. Circuit Court of Appeals. She serves currently and has served on the Texas Supreme Court, where I had the honor of serving with her. She is an exceptional jurist, a devoted public servant, and an extraordinary Texan. Yet after 4 years, she still awaits an up-or-down vote on the Senate floor.
This is the irony of where we find ourselves. Although a bipartisan majority stands ready to confirm her nomination, a partisan minority obstructs the process and refuses to allow a vote. What is more, this partisan minority insists for the first time in history that she must be supported by a supermajority of 60 Senators, rather than the constitutional standard and Senate tradition of a majority vote.
I know Priscilla personally. It is hard for me to reconcile the caricature that most people have seen drawn of her by some of the rhetoric used, certainly, with what I know about her personally. Those who know her would not recognize her from the caricature being created in the Senate and elsewhere when talking about this outstanding nominee.
She is a distinguished jurist and a distinguished public servant. She has excelled at virtually everything she has undertaken. She was a top graduate of her law school class at the remarkable age of 23 years and received the top score on the Texas bar examination. She entered the legal profession at a time when few women did. After a distinguished record in private practice, she reached the pinnacle of the Texas bar, which is the Texas Supreme Court. She was supported by a larger percentage of Texans in her last election than any of her colleagues--84 percent--after enjoying the endorsement of virtually every newspaper in the State. She has been honored as the Young Lawyer of the Year by her alma mater, as well as an outstanding alumna of Baylor University.
The irony in this partisan obstruction of a bipartisan majority who stand ready to confirm her is that Priscilla Owen enjoys bipartisan support in the State of Texas. Three former Democratic judges on the Texas Supreme Court, as well as a bipartisan group of 15 past presidents of the State bar of Texas support this nominee.
The Houston Chronicle, one of our major newspapers, in the year 2000 called her ``[c]learly academically gifted,'' stating that she ``has the proper balance of judicial experience, solid legal scholarship, and real-world know-how to continue to be an asset on the high court.''
The Dallas Morning News, another major newspaper in our State, wrote on September 4, 2002:
She has the brainpower, experience and temperament to serve ably on an appellate court.
The Washington Post wrote in 2002:
She should be confirmed. Justice Owen is indisputably well qualified.
Priscilla Owen is not just intellectually capable and legally talented, she is also a fine human being with a big heart. The depth of her humanity and compassion is revealed through her significant free legal work and community activity. In fact, she has spent most of her life devoted to her community. She has worked, for example, that all citizens be ensured access to justice, as the Texas Supreme Court's representative on the mediation task force of that court, as well as her service on statewide committees of lawyers and her successful efforts to prompt the Texas Legislature to provide millions of dollars per year for legal services to the poor.
She was instrumental in organizing a group known as Family Law 2000, which seeks to find ways to educate parents about the effect that divorce can have on their children and to lessen the negative impacts therefrom. She teaches Sunday school at her church, St. Barnabas Episcopal Mission in Austin, TX, where she is an active member. It is plain, from these and so many other examples, that Justice Owen bears no resemblance to the caricature that has been painted of her in the Senate. She is, in fact, a fine person and a distinguished leader of the legal community.
One would think that after 4 long years, she would be afforded the simple justice of an up-or-down vote. I remain
optimistic, hopeful, that this violation of many years of Senate tradition, the imposition of a new supermajority requirement of 60 votes, will be laid aside in the interest of proceeding with the people's business, a job my colleagues and I were elected to faithfully execute.
For more than 200 years, it was a job that we faithfully executed when it came to voting on a President's judicial nominees. Senators from both sides of the aisle exercised mutual restraint and did not abuse the privilege of debate out of respect for two coequal branches of government--the executive, that has a constitutional right to choose his or her nominees, and an independent judiciary.
Until 4 years ago, colleagues on both sides of the aisle consistently opposed the use of the filibuster to prevent judicial nominees from receiving an up-or-down vote. One of our colleagues, the senior Senator from Massachusetts, said in 1998:
Nominees deserve a vote. If our ..... colleagues don't like them, vote against them. But don't just sit on them--that is an obstruction of justice .....
The senior Senator from Vermont, in 1998, said:
I have stated over and over on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.
I could not agree more with those comments made in 1998 from the very same colleagues who today oppose the same principle they argued for a few short years ago. We are doing a disservice to the Nation and a disservice to this fine nominee in our failure to afford her that up-or-down vote.
The new requirement the partisan minority is now imposing--that nominees will not be confirmed without the support of 60 Senators--is, by their own admission, unprecedented in Senate history. The reason for this is simple. The case for opposing this fine nominee is so weak that using a double standard and changing the rules is the only way they can hope to defeat her nomination. What is more, they know it.
Before her nomination was caught up in partisan special interest politics, the ranking Democrat on the Judiciary Committee predicted that Priscilla Owen would be swiftly confirmed. On the day of the announcement of the first group of nominees, including Justice Owen, he said he was ``encouraged'' and that ``I know them well enough that I would assume they'll go through all right.''
Notwithstanding the change of attitude by the partisan minority, this gridlock is really not about Priscilla Owen. Indeed, just a few weeks ago the Democratic leader announced that Senate Democrats would give Justice Owen an up-or-down vote, albeit only if other nominees were defeated or withdrawn. Obviously, with these kinds of offers being made based on cutting deals and pure politics, this debate is not about principle. It is all about politics. It is shameful.
We should all subscribe to the notion that any nominee of any President, if they enjoy majority support in the Senate, should get an up-or-down vote. I am talking about whether we have a Democrat in the White House or a Republican, whether we have Democrat majorities in the Senate or Republican.
The rules should apply across the board exactly the same to all nominees, regardless of who wins and who loses from a political consideration.
But what bothers me most is that any fair examination of Justice Owen's record demonstrates how unconvincing and unjustified the critics' arguments are against her specifically.
For example, she was accused of ruling against injured workers, employment discrimination plaintiffs, and other sympathetic parties on a variety of occasions. Never mind the fact that good judges, such as Justice Owen, do their best to follow the law, regardless of which party will win and which party will lose. That is what good judges do. Never mind that many of her criticized rulings were unanimous or near-unanimous decisions of a nine-member Texas Supreme Court. Never mind that many of these rulings simply followed Federal precedents authored or agreed to by appointees of President Carter and President Clinton, or by other Federal judges unanimously confirmed by the Senate. And never mind the fact that judges often disagree, especially when a law is ambiguous and requires careful and difficult interpretation.
One of the focal points on Justice Owen's record is a criticism of enforcing a popular Texas law that requires parental notification before a minor can obtain an abortion. Her opponents allege in the parental notification case that then-Justice Alberto Gonzales, our current Attorney General, accused her of ``judicial activism.'' I heard that argument again this morning on the floor, notwithstanding the fact the charge is demonstrably untrue.
For any Member to repeat this argument that is simply not true, in spite of the fact that it has been demonstrated that it is not true, is to me an unconscionable act of distortion of the facts. Here again, we can disagree about the policies, and we can even decide to vote differently on a nominee, but let's not disagree on the facts when they are so clear. Not once did Alberto Gonzales say Justice Owen is guilty of judicial activism. To the contrary, he never even mentioned her name in the particular opinions that are being discussed. Furthermore, our current Attorney General has since testified under oath that he never accused Justice Owen of any such thing.
What's more, the author of the parental notification law that was at issue supports Justice Owen for this nomination, as does the pro-choice, Democratic law professor who was appointed to the Texas Supreme Court advisory committee who was supposed to write rules, and did write rules, to implement the law. In her words, Owen simply did ``what good appellate judges do every day. ..... If this is activism, then any judicial interpretation of a statute's terms is judicial activism.''
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Mr. CORNYN. Mr. President, the American people know judicial activism when they see it. They know a controversial ruling that is totally out of step with a judge's accepted role in our form of government when they see it, whether it be the redefinition of marriage, the expulsion of the Pledge of Allegiance from our classrooms and other expressions of faith from the public square, the elimination of the three-strikes-and-you're-out law, and other penalties for convicted criminals, or the forced removal of military recruiters from college campuses. Justice Owen's rulings come nowhere near those examples of judicial activism that we would all recognize clearly and plainly.
There is a world of difference between struggling to interpret the ambiguous expressions of a statute and refusing to obey a legislature's directives altogether, or substituting one's personal views or agenda for the words of a statute.
It is clear, then, that Justice Owen's record deserves the broad and bipartisan support that she has gotten, and it is equally clear that her opposition only comes from a narrow band on the far-left fringes of the political spectrum.
So if the Senate were simply to follow more than 200 years of consistent Senate and constitutional tradition, dating back to our Founders, there would be no question about her being confirmed; she would be. Legal scholars across the political spectrum have long concluded what we in this body know instinctively, and that is to change the rules of confirmation, as the partisan minority has done, badly politicizes the judiciary and hands over control of the judiciary to special interest groups.
Mr. President, 4 years is a long time. The majority leader and those who support this nominee's confirmation have shown extraordinary patience during this debate. But there is a point at which patience ceases to be a virtue, and I suggest that we have reached that point. We need a resolution of this issue. We need for Senators to step up and to vote ``yes'' or vote ``no.'' But we simply need for them to vote.
The record is clear. The Senate tradition has always been majority vote, and the desire by some to alter that Senate tradition has been roundly condemned by legal experts across the spectrum.
Professor Michael Gerhardt, who advises Senate Democrats about judicial confirmations, has written that a supermajority requirement for confirming judges would be ``problematic, because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of the special interests.''
D.C. Circuit Judge Harry Edwards, a respected Carter appointee, has written that the Constitution forbids the Senate from imposing a supermajority rule for confirmations. After all, otherwise, ``[t]he Senate, acting unilaterally, could thereby increase its own power at the expense of the President'' and ``essentially take over the appointment process from the President.'' Edwards thus concluded that ``the Framers never intended for Congress to have such unchecked authority to impose supermajority voting requirements that fundamentally change the nature of our democratic processes.''
Georgetown law professor Mark Tushnet has written that ``[t]he Democrats' filibuster is ..... a repudiation of a settled, pre-constitutional understanding.'' He has also written: ``There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules--on scheduling, on not having a floor vote without prior committee action, etc.--to do so. All those other rules ..... can be overridden by a majority vote of the Senate ..... whereas the filibuster can't be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so with respect to a filibuster.''
And Georgetown law professor Susan Low Bloch has condemned supermajority voting requirements for confirmation, arguing that they would allow the Senate to ``upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives to the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution.''
She even wrote on March 14, 2005: ``Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that.''
Mr. President, the record is clear. The Senate tradition has always been majority vote, and the desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum.
Throughout our Nation's more than 200-year history, the constitutional rule and Senate tradition for confirming judges has been majority vote--and that tradition must be restored. After four years of delay, giving Justice Priscilla Owen an up-or-down vote would be an excellent start.
Exhibit 1
May 3, 2005.
Re Priscilla Owen.
Hon. JOHN CORNYN,
Hart Senate Office Building,
Washington, DC.
DEAR SENATOR CORNYN: I write in support of the nomination of Priscilla Owen. . . .
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. . . .I strongly urge her confirmation.
Sincerely,
Linda S. Eads,
Associate Professor of Law.
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