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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Mrs. MURRAY. Mr. President, I have been traveling around my State, like many of my colleagues have. When I travel around, people keep stopping me and asking me: Why should I hear about the judges you are debating back in Washington DC? Whether I am in Spokane talking to constituents at a town meeting or in a grocery store on Saturday or talking to family members at home, they all want to know what we are talking about and why this debate matters in their lives.
Well, my answer to those constituents, whether it is someone in a grocery store or just chatting with someone or a family member, is that we are here for a very important reason; that is, to fight for basic American values, values all of us hold dear. I tell them we are fighting for the rights of minorities so all of us have an opportunity for a voice and a seat at the table. I tell them we are fighting for the constitutional principles that were given to the Senate 200 years ago.
Today, in the Senate, unfortunately, those values are under attack. What we see in their continuing rush for power is that some here on the other side want to turn this great institution simply into a rubberstamp for the current administration. Nowhere is that more clear to me than with the nomination that is in front of us tonight, and that is of Judge Priscilla Owen.
Senator Frist said the other day that the only argument he has heard against Justice Owen is on parental consent. I happen to agree with Senator Frist that her views and her decisions on this subject are very important, but if he has not heard the arguments against Justice Owen, I think he has not been listening enough.
On everything from parental consent to victims' rights, to workers' rights, to bias towards her campaign contributors, Justice Owen is too far out of the mainstream. Her radical views make a lifetime appointment inappropriate by this body. Let me take just a few minutes to talk about some of those important objections.
In Read v. Scott Fetzer Company, a 1998 case, Justice Owen ruled that a rape victim--a rape victim--could not collect civil damages against a vacuum cleaner company that employed an in-home dealer who raped her while he was demonstrating the company's product even though the company had failed to check his references, and if they had, they would have found out he had harassed women at his other jobs and previously been formally charged and fired for inappropriate sexual conduct with a child. But Justice Owen ruled that rape victim could not collect civil damages against that company.
I believe it is pretty clear that Justice Owen does not protect victims' rights.
In another case, in GTE Southwest, Incorporated v. Bruce, a 1990 case, Justice Owen sided with an employer whom the majority in that case ruled inflicted intentional emotional distress on employees when he subjected them to ``constant humiliating and abusive behavior,'' including the use of harsh vulgarities, infliction of physical and verbal terror, frequent assaults, and physical humiliation. Justice Owen wrote her own opinion to make sure it was clear she thought the shocking behavior was not enough to support a verdict for the workers.
It is clear to me that Justice Owen will not protect workers' rights and should not be promoted to a lifetime appointment by this body.
Justice Owen's record shows she has consistently put huge corporations ahead of people. She took campaign contributions from companies including Enron and Halliburton, and then she issued rulings in their favor. Many of her campaign contributions came from a small group of special business interests that advanced very clear anticonsumer and anti-choice agendas. Critically, her record has shown that her donors enjoy greater success before her than before the majority of the court. Again, it is very clear to me that Justice Owen will not protect the rights of the people against these huge special interests and is not deserving of being promoted to a lifetime appointment by this body.
But you do not have to just listen to me. Listen to what some of her colleagues on the Texas Supreme Court said about her decisions.
In FM Properties v. City of Austin, the majority called her dissent ``nothing more than inflammatory rhetoric.''
In the case of In re Jane Doe III, Justice Enoch wrote specifically to rebuke Owen for misconstruing the legislature's definition of the sort of abuse that may occur when parents are notified of a minor's intent to have an abortion, saying:
abuse is abuse; it is neither to be trifled with nor its severity to be second guessed.
And finally, as has been stated by my colleagues on the floor of the Senate, now-Attorney General Alberto Gonzales, then an Owen colleague, criticized her, not once, not twice, but 10 times in his rulings and called one of her interpretations of a parental consent law an ``unconscionable act of judicial activism.''
Unfortunately, this nomination is before us. This is the type of activist judge we are being asked to give a lifetime appointment. By stripping the Senate of its constitutional role, we are seeing the effort to pack the courts with radical judges, push an extreme agenda, and leave millions of Americans behind.
That is why I say to my constituents, whether they walk up to me in a grocery store or it is one of my family members or somebody I am talking to in Spokane or Yakima or Vancouver or Bellingham, the debate we are having is critically important. For the people we promote to lifetime appointments, we need to know they will be fair and evenhanded and that they will protect the rights of Americans no matter where they live. That is why this fight is important, and that is why my colleagues are here on the floor of the Senate.
I see my colleague from Illinois is on the floor. I know he is here to speak as well. I yield time to him.
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Mrs. MURRAY. Mr. President, I come to the floor this evening to join my colleagues to talk about the Senate's deliberations on some of our administration's judicial nominations. It is very clear to me this is a debate about basic American values. In drafting the Constitution, the Framers wanted the Senate to provide advice and consent on nominees who came before us to ensure that these very rights and values were protected. I believe as a Senator I have a responsibility to stand up for those values on behalf of my constituents from my home State of Washington.
Many activists today are complaining that certain Senators are attacking religious or conservative values. I must argue that it is others, not Democratic Senators, who are exercising their rights, who are pursuing a nomination strategy that attacks the basic values that were outlined in our Constitution.
Our democracy values debate. It values discussion. Our democracy values the importance of checks and balances. Our democracy values an independent judiciary. But with this nuclear option and the rhetorical assault that is being launched at Democratic Senators by activists around the country, we now see those values under attack. The nuclear option is an assault on the American people and many of the things we hold dear. It is an attempt to impose on the country, through lifetime appointments, the extreme values held by a few at the cost of many. It is the tyranny of the majority personified. Confirming these nominees by becoming a rubberstamp for the administration would be an affront to the 200-year-old system we have in place, a system of checks and balances. At the same time I have to say it would be an affront to the values I promised to defend when I came to the Senate.
It is not always easy. Building and maintaining a democracy is not easy. But our system and the rights and the values it holds dear are the envy of the world. In fact, the entire world looks at us as a model for government. It is our values they look to. We have to protect them, not only for us but for other fledgling democracies around the world.
I returned recently from a bipartisan trip we took to Israel, Iraq, Georgia, and Ukraine, where we saw up close leaders who are working very hard to write constitutions, to write laws, to write policies. They were working hard, all of them, to assure that even those who did not vote in the majority in their country would have a voice.
The challenges were varied in every country we went to. They faced everything from protecting against terrorists to, in some cases, charging for electricity for the first time, to, in other cases, reforming corrupt institutions. But making sure that democracies survive means having debates, it means bringing people to the table, and it means making tough decisions. But in each case, the importance of not disenfranchising any group within that country was an important part of making sure that democracy worked.
So how we in this country accomplish the goal of sustaining a strong democracy and ensuring people--all people--participation is extremely important.
Elections are the foundation of our democracy. They actually determine the direction of our country. But an election loss doesn't mean you lose your voice or you lose your place at the table. Making sure we all have a seat at the table is increasingly important to keep our democracy strong. That is why those of us on this side are fighting so hard to keep our voice, to have a seat at the table.
Recently we have heard a lot from the other side about attacks on faith and values. In fact, some are trying to say our motive in this debate is somehow antifaith. I have to argue that just the opposite appears to me to be true. We have faith in our values, we have faith in American values, and we have faith that those values can and must be upheld.
This is not an ideological battle between Republicans and Democrats, it is about keeping faith with the values and ideals our country stands for. Having values and having faith in those values requires--requires that we make sure those without a voice are listened to. Speaking up for those in poverty to make sure they are fed is a faith-based value. Making sure there is equal opportunity and justice for the least among us is a faith-based value. Fighting for human rights, taking care of the environment, are faith-based values.
To now say those of us who stick up for minority rights are antifaith is frightening and, frankly, it is wrong. I hope those who have decided to make this into some kind of faith/antifaith debate will reconsider. This debate should be about democracy. It should be about the protection of an independent judiciary. And certainly it is a debate about the rights of minorities.
Our system of Government, of checks and balances, and our values, are under attack today by this very transparent grab for power. They are, with their words and potential actions, attempting now to dismantle this system despite the clear intent of the Framers and the weight of history and precedent. They think they know better, and I think not.
Today, it is fashionable for some of my colleagues on the other side of the aisle to disparage what they call activist judges. But this power grab, this nuclear option reveals the true motivation. There are those who want activists on the bench to interpret the law in a way I believe undermines important American values.
I believe we have a responsibility to stand up and say no to extreme nominees. But to know that, you do not need to listen to me. Just look back at the great Founders of this democracy. The Framers, in those amazing years when our country was founded, took very great care in creating this new democracy. They wrote into the Constitution the Senate's role in the nomination process. They wrote into the Constitution and spoke about protecting the minority against the tyranny of the majority and their words ring true today.
James Madison, in his famous Federalist No. 10, warned against the superior force of an overbearing majority or, as he called it, a dangerous vice.
He said:
The friend of popular governments never finds himself so much alarmed for their character and faith as when he contemplates their propensity to this dangerous vice.
Years prior, John Adams wrote in 1776 on the specific need for an independent judiciary and checks and balance. He said:
The dignity and stability of government in all its branches, the morals of the people and every blessing of society depends so much on an upright and skillful administration of justice that the judicial power ought to be distinct from both the legislative and executive and independent upon both so that it may be a check upon both as both should be checks upon that. The Judges therefore should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention. Their minds should not be distracted with jarring interests; they should not be dependent on any man or body of men.
I have to shudder at the thought of what some of the great thinkers, the great Founders of our democracy, would say to this attempted abuse of power. Frankly, one of the best interpretations of the thoughts was offered to this Senate by Robert Caro, the great Senate historian. He wrote a letter in 2003 and he talked about the need for the Senate to maintain its history and its traditions despite popular pressures of the day and of the important role that debate and dissension plays in any discussion of judicial nominations. In particular, he wrote of his concern for the preservation of Senate tradition in the face of attempted changes by a majority run wild.
He said, in part:
In short, two centuries of history rebut any suggestion that either the language or intent of the Constitution prohibits or counsels against the use of extended debate to resist presidential authority. To the contrary, the nation's Founders depended on the Senate's members to stand up to a popular and powerful president. In the case of judicial appointments, the Founders specifically mandated the Senate to play an active role providing both advice and consent to the President. That shared authority was basic to the balance of powers among the branches.
I am ..... attempting to say as strongly as I can that in considering any modification Senators should realize they are dealing not with the particular dispute of the moment, but with the fundamental character of the Senate of the United States, and with the deeper issue of the balance of power between majority and minority rights.
Protection of minority rights has been a fundamental principle since the infancy of this democracy. It should not--in fact, it cannot--be laid to rest in this Chamber with this debate.
I know there are a lot of people wondering why the Senate is spending so much time talking about Senate rules and judicial nominations. They are wondering why I am talking about nominees and quoting Madison and Adams. They are wondering what this means to them.
I make it clear: This debate is about whether we want a clean, healthy environment and the ability to enforce our laws to protect it fairly. This debate is about whether we want to protect essential rights and liberties. This debate is about whether we want free and open government. This debate is about preserving equal protection under the law. This debate is about whether we want to preserve the independent judiciary, whether we want to defend the Constitution, and whether we will stand up for the values of the American public.
I believe these values are too precious to abdicate. Trusting in them, we will not let Republicans trample our rights and those of millions of Americans who we are here to represent. We will stand and say yes to democracy, yes to an independent judiciary, yes to minority rights, and no to this unbelievable abuse of power.
I see my colleague from New York is here, and I know he has time tonight, as well.
I yield the floor.
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