Executive Session

EXECUTIVE SESSION -- (Senate - May 19, 2005)

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Mr. CORNYN. Mr. President, at a time when it seems like too often debate on the President's nominees have shed more heat than light, it has been a delight for me to sit here, as the Chair has, and listen to the Senator from Arizona present in comprehensive detail the legal and constitutional framework for the Senate's authority to set its own rules by establishing precedents, passing standing rules, adopting standing orders by unanimous consent, and otherwise. It was an excellent presentation and, indeed, a strong case, and that is exactly why leading Senators on the other side of the aisle, including the former Democratic majority leader, the Senator from West Virginia, the Senator from Massachusetts, and the junior Senator from New York, have all stated, as recently as 2 years ago, that, of course, a majority of Senators has the power to set rules, precedents, and procedures. Indeed, that is why the power of the Senate majority to set rules, precedents, and procedures is known as the Byrd option or, as some have called it, the constitutional option.

Let me begin my remarks by making one simple point. I would prefer the bipartisan option to the Byrd option every time. America works better, indeed the Senate works better, when we work together in a bipartisan way to try to solve the problems that come before the Congress. I would much prefer to stand up here, after waking each day, and conduct business in a bipartisan manner.

I have done my best to make the most of every opportunity that I have seen to do so since I have been in the Senate. For example, I have enjoyed working with the senior Senator from Vermont on legislation to strengthen the accessibility, accountability, and openness of the Federal Government.

I have worked with the junior Senator from Wisconsin and the senior Senator from Connecticut on the important issue of continuity of Government in the wake of a future terrorist attack.

I have worked with the senior Senator from New York on ways that we together can combat modern day slavery and human trafficking.

And I have worked with the senior Senator from Massachusetts on military citizenship and immigration issues.

I would choose collaboration in this kind of bipartisan cooperation any day of the week. But bipartisanship is a two-way street. Both sides must agree on certain fundamental principles and a fair process that applies no matter who is in power, whether we have a Republican President or a Democratic President, whether we have a Republican majority or a Democratic majority.

The most fundamental principle of all is fairness. Fairness means that the same rules apply regardless of who is President.

Bipartisanship is difficult, however, when long-held understandings and the willingness to abide by basic agreements and principles has unraveled so badly. Where fairness falters, bipartisanship will fail.

So I ask my colleagues, what are we supposed to do when these basic principles, commitments, and understandings have unraveled? What are we to do when nominees are attacked, including being called names, simply for doing their jobs, when they are attacked for following judicial precedents adopted and agreed to by appointees of Presidents Clinton and Carter, when they are singled out for their decision on a particular case even though it was held by a unanimous or near unanimous court?

What are we to do when these nominees are demonized and caricatured beyond recognition to those of us who actually know them; when Senators on the other side of the aisle call them kooks, despicable, Neanderthal, and scary; when nominees are condemned as unqualified or perhaps lacking in judicial temperament, while at the same time they are deemed unanimously well qualified by the American Bar Association, an institution that the Democrats have always revered and held up as the gold standard when it came to qualifications to serve on the Federal judiciary?

What are we to do when Senate and constitutional traditions are abandoned for the first time in more than two centuries, when both sides once agreed that nominees would never be filibustered, and then one side simply denies the existence of that very agreement when it suits them, when their interpretation of Senate tradition changes based on who happens to occupy the Oval Office and who happens to be in the majority in the Senate?

What are we to do when our colleagues boast to their campaign contributors of this ``unprecedented'' obstruction, and then come to the Senate floor and claim that it is someone else who has changed the rules; when our colleagues justify their obstruction by pointing to Clinton nominees, such as their most prominent example, Judge Richard Paez, who was confirmed by standards they now reject for this President's nominees?

What are we to do when our colleagues on the other side of the aisle claim that Justice Owen must cross the threshold of 60 votes, whereas Judge Paez only required 51 votes to be confirmed?

What are we to do when the Democrats' former majority leader, the Senator from West Virginia, claims on 1 day that the filibuster is sacrosanct and sacred to the Founders when in January of 1995 he said:

I have seen filibusters. I have helped to break them ..... the filibuster was broken--back, neck, legs, arms.

Finally, what are we to do when they claim on 1 day that all they seek is more time to debate a nomination and then claim on another day that there are not enough hours in the universe to debate the nomination?

The new requirement this partisan minority is now imposing, that nominees will not be confirmed without the support of at least 60 Senators, is, by their own admission, wholly unprecedented in Senate history. The reason for this is simple. The case for opposing this fine nominee, Justice Priscilla Owen, is so weak the only way they can attempt to successfully oppose her is by changing the rules, imposing a double standard in an attempt to defeat her nomination.

Different Senators during the course of this debate have come to the floor and criticized judicial decisions that Justice Owen has participated in as a member of the Texas Supreme Court. As Members of this body know, I formerly served on that same court and for 3 years had the distinct pleasure of serving alongside of this able judge and fine and decent human being. I can tell you from the sharp attacks that have been made against her and the mischaracterizations that have been made of the opinions she has written and joined, I doubt that many Senators have actually read those opinions. If they had, they would not be able, with a straight face, to make some of the claims that have been made on this floor.

Rather than reading the opinions of this able jurist and fine and decent human being, it appears the talking points they have been using are written, not based on what these cases actually say, but they are talking points prepared by political consultants who are more concerned with winning a partisan political battle at any cost.

A number of Senators, for example, have mentioned a case called Montgomery Independent School District v. Davis. That is supposed to be an example of Justice Owen being ``out of the mainstream.''

But I ask my colleagues, just read the opinion. The case involved the authority of a local school board to dismiss a poorly performing and abusive teacher. This teacher admitted that she had referred to her students as little blank blank blanks, a four-letter expletive that I will not mention on the floor of the Senate. But when confronted with this, the teacher justified the use of this expletive--to schoolchildren mind you--on the bizarre ground that she used exactly the same language when talking to her own children--clearly unacceptable conduct on the part of any teacher, or any adult who is given the authority to deal so closely with impressionable children.

The Senator from New York says this teacher was wrongly dismissed. Numerous other Senators have likewise characterized Justice Owen's decision in the case the same way.

I have children. Many Senators have children. Are Justice Owen's opponents really arguing that this teacher acted appropriately? That she was wrongly dismissed and that somehow this decision, or this ruling by Justice Owen--I should say in her dissenting opinion--somehow renders her out of the mainstream? Justice Owen simply said the local school board was justified in dismissing this teacher, hardly a decision out of the mainstream. I daresay the vast majority of America would agree with her.

However, in that case the majority of the Texas Supreme Court disagreed and held that the school board could not dismiss the teacher, notwithstanding the fact that she conceded the language that she used. Justice Owen's dissenting opinion simply concluded that the majority ``allows a state hearing examiner to make policy decisions that the Legislature intended local school boards to make.'' She also noted that the majority ``misinterpreted the Education Code.''

Another case that Senators, particularly the Senator from Massachusetts, attacked Justice Owen for was Texas Farmers Insurance Company v. Murphy. In this case, Justice Owen ruled that neither an arsonist nor his spouse should benefit from his crime by recovering insurance proceeds.

The senior Senator from Massachusetts says this position puts Justice Owen out of the mainstream. I disagree. Do Justice Owen's opponents really believe that it is extreme and out of the mainstream to say that arsonists and their spouses should not benefit from their crime?

I also point out that Justice Owen's ruling in this case followed two unanimous decisions of the Fifth Circuit Court of Appeals, the very court to which she has been nominated. Again, hardly out of the mainstream.

How about the case of FM Properties Operating Company v. the City of Austin, relied upon also by the senior Senator from Massachusetts and other Senators? Justice Owen is criticized for dissenting in this case because she did not want to use a doctrine known as the nondelegation doctrine in order to strike down a Texas law as unconstitutional. Yet just last month, another Senator, this time the senior Senator from Delaware, criticized another judicial nominee, Bill Pryor, for wanting to use the nondelegation doctrine in another situation. So Justice Owen's critics seem to be saying if you support the use of this particular legal doctrine, the nondelegation doctrine, you are out of the mainstream. And if you oppose the nondelegation doctrine, you are somehow out of the mainstream.

I ask them, which one is it? The truth is, this legal doctrine known as nondelegation is a controversial theory that is often harshly criticized by liberals who accuse conservatives of wanting to use it to strike down laws enacted by the legislature. That is fine. Fair enough. But that is exactly what Justice Owen's dissent criticized the majority of the court for doing. She stated the court has seized upon this rarely used nondelegation doctrine to claim the constitutional authority for an unprecedented restriction of the legislature's power, and that the court today exercises raw power to override the will of the legislature and of the people of Texas.

It reminds me of the lyrics of a country and western song: ``Darned If I Do, Danged If I Don't.''

Justice Owen cannot win. She is being whipsawed by Senators who on one hand criticize her for doing one thing, when other Senators criticize some other nominee for doing something else. They really are arguing both sides against the middle and these nominees cannot win, according to that inconsistent, and some might even claim hypocritical test.

The Senator from Illinois has attacked Justice Owen for a ruling in the City of Garland v. Dallas Morning News. In that case Justice Owen followed precedents adopted by three appointees of President Carter to the Federal bench.

So Justice Owen is now too conservative and out of the mainstream because she happens to agree with presidential appointees of President Jimmy Carter?

The majority opinion in that case said we should not blindly follow the Federal courts. Justice Owen simply said that the courts should follow Federal precedence because Texas open government laws had originally been modeled after the Federal Freedom of Information Act.

One last example. The Senator from Washington mentioned a case that was discussed in a recent op-ed in Roll Call. She claimed that in Read v. Scott Fetzer Company, Judge Owen would not allow a woman who was raped by a vacuum cleaner salesman to sue the company that had hired him without a background check.

The Senator should check her facts because it is simply not true. The Senator must not have seen my letter published in Roll Call a few days later because I pointed ought there, as I point out here, that the dissenting opinion made clear no one questions that the company that had hired the rapist is, in fact, liable. The justices simply disagreed on whether another company, one that had not hired the rapist and had no relationship with the rapist, should also have been held liable.

Of course, a number of Senators have spoken about the parental notification cases. That is the attempt by the Texas Supreme Court to interpret a new statute which stands for the proposition which I think most Americans would agree with, that when minor girls seek to get an abortion, they should notify their parents or, failing that, seek a bypass of that requirement from a judge. That is what the legislature said they should do, and that is precisely the statute that Justice Owen sought to interpret.

I ask the people across America who may be listening to the debates we are having in the Senate, whom would you trust to judge Justice Own and whether she did a good job in that case? Who was more credible to talk about the quality of Justice Owen's legal analysis in the parental notification cases? Would it be, perhaps, say, the author of the law she was interpreting who supports Justice Owen? Would it be, perhaps, her former colleagues on the court, including former Justices Alberto Gonzales and Greg Abbott, who support Justice Owen's nomination. How about now--Attorney General Alberto Gonzales, who swore under oath that the accusations we are hearing are untrue and that he never accused her of being a judicial activist.

I have seen some of the advertising that has been done by some of the interest groups attacking Justice Owen unfairly who are claiming that Alberto Gonzales accused her of being a judicial activist. As I pointed out, he swore under oath that is not true. It is clear by any reasonable reading of the opinions that he never referred to her by name or was even, in fact, referring to her by implication.

It reminds me of what Mark Twain said: A lie can travel around the world while the truth is still putting on its shoes.

How about the pro-choice Democratic law professor appointed by the Texas Supreme Court to help set up procedures under which parental notification statute. Would critics tend to think she might be a credible person when it comes to whether Justice Owen did a good job if this same Democratic pro-choice law professor supports Justice Owen too? She said in a letter that has been made part of the Congressional Record Justice 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.

I ask, should we trust the critics Ðwho have misconstrued and mischaracterized and painted a picture of this fine person beyond any recognition by those who know her and have worked alongside her or do you trust the people who actually know her, the people who have worked most closely with her? In fact, it is the very same liberal special interest groups who criticize her today who never wanted the legislature to pass this parental notification law in the first place.

It is these same liberal interest groups who literally make their living trashing nominees of this President who are criticizing Justice Owen today.

As a former justice of the Texas Supreme Court myself, I find these cases moderately interesting reading. Most Senators and most Americans probably do not, and that is fine. But we can surely agree on this. If these cases are accurately characterized and understood, they definitively demonstrate that Justice Owen is a capable and well-qualified judge, and that of course is why she enjoys such impressive and wide-ranging endorsements from across the aisle.

We should keep our eye on the ball. Let's remember what judicial activism really means because the American people know a controversial judicial ruling when they see one. Whether it is the radical redefinition of our society's most basic institutions like marriage, or the expulsion of the Pledge of Allegiance from our classrooms, or from the public

square, whether it is the elimination of the three strikes and you are out law and other penalties against hardened criminals, or the forced removal of military recruiters from college campuses, Justice Owen's ruling, of course, falls nowhere near this category of cases.

There is a world of difference between struggling to try to interpret the ambiguous expressions of a legislative body and refusing to obey a legislature's directives altogether.

If the Senate today were simply to follow more than 200 years of consistent Senate and Constitutional tradition dating back to our Founding Fathers, there would be no question that Justice Owen would be confirmed today. President after president after president had their judicial nominees confirmed by a majority vote, not a supermajority vote.

By their own admission, at least at one time, Justice Owen's opponents in this body are using unprecedented tactics to block her nomination and prevent a bipartisan majority from casting their vote in favor of her confirmation.

Again, the reason is simple: The case for opposing this fine nominee is simply so weak that only by using a double standard and changing the rules can they hope to defeat her. Legal scholars across the spectrum have long concluded what we in the Senate know instinctively, and that is to change the rules of confirmation, as a partisan minority has done these last 4 years, badly politicizes the confirmation, as a partisan minority has done, and badly politicizes the Judiciary and hands over control of the judicial confirmation process to special interest groups.

I ask unanimous consent a summary of supporting quotes from legal scholars be printed in the RECORD at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1)

Mr. CORNYN. Mr. President, the record is clear, notwithstanding what some opponents have said today and in the last 4 years. The Senate tradition has always been a majority vote, and the desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum.

I will close by simply reinforcing what the Senator from Arizona stated so well in his earlier remarks. To employ the Byrd option is not a radical move at all. It would merely be an act of restoration. In fact, as we have heard time and time again, there is ample precedent to support the use of this point of order.

The senior Senator from West Virginia was then majority leader of this body and used this on four separate occasions--in 1977, in 1979, in 1980 and again in 1987--to establish precedence to change Senate procedure during a session of Congress. Other leading Senators from the other side of the aisle have recognized, time and again, the legitimacy of the Byrd option, including the Senator from Massachusetts, as well as the junior Senator from New York as recently as 2 years ago.

In the end, I believe this debate demonstrates, without a doubt, that it is time to fix our broken judicial confirmation process. It is time to end the blame game, to fix the problem, and to move on and do the American people's business. It is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans.

It is simply intolerable for a partisan minority to block a bipartisan majority from conducting the Nation's business. It is intolerable that the standards now change depending on who is in the White House and which party is the majority party in the Senate. And it is simply intolerable that this nominee--this fine and decent human being--an outstanding judge has wasted 4 long years for a simple up-or-down vote.

Yes, we need a fair process for selecting fair judges, after full investigation, full questioning, full debate, and then a vote. Throughout our Nation's more than 200-year history, constitutional rule and Senate tradition for confirming judges has always been a majority vote. And that tradition--broken 4 years ago after this nominee and others were proposed by the President--must be restored. After 4 years of delay, affording Justice Owen a simple up-or-down vote would be an excellent start.

Mr. President, I thank the Chair and yield the floor.

Exhibit 1

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 I 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.''

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