Executive Session
EXECUTIVE SESSION -- (Senate - May 24, 2005)
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NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Mr. CORNYN. Madam President, when I was in college and law school, there was a character played by the actress Gilda Radner on ``Saturday Night Live,'' who was known best for purporting to do the news and would engage in this screed about some subject, and then she would be corrected, only to have her then reply, ``Never mind.''
I thought about that when I have contemplated the occurrences of the last few days, particularly the last day when it came to the sort of apocalyptic terms that were used as we approached breaking the logjam over the President's long-delayed judicial nominees. But for this secret negotiation conducted by 14 Senators that none of the rest of the Senate was a party to, we would be, I believe, about the process of reestablishing the precedent of majority rule that had prevailed for 214 years in the Senate, that would say any President's nominees, whether they be Republican or Democrat, if they have the support of a majority of the Senate, will get an up-or-down vote in the Senate. Senators who believe these nominees should be confirmed can vote for them and those who believe they should not be confirmed can vote against them.
I was not a party to the negotiations and what happened in this room off the Senate floor, but I do have some concerns I wanted to express about what has happened.
It is important to recognize what this so-called agreement among these 14 Senators does and what it does not do. First of all, one of the things it does, it means that at least three of the President's nominees--Bill Pryor, Janice Rogers Brown, and Priscilla Owen--will get an up-or-down vote on the Senate floor and that they will be, I trust, confirmed to serve in the Federal judiciary.
What this agreement by these 14 Senators does not do, it does not give any assurance that other nominees of the President--Mr. Myers, in particular, and others--will get an up-or-down vote that they deserve according to the common understanding of the Senate for more than 200 years by which those who enjoyed majority support did get that vote and did get confirmed.
What this agreement says, we are told, is that seven Democrats and, presumably, seven Republicans reserve the right to filibuster judicial nominees under extraordinary circumstances, but we are left to wonder what those extraordinary circumstances might be. What makes me so skeptical about this agreement among these 14 is that extraordinary circumstances are in the eye of the beholder.
Looking at the litany of false charges made against Priscilla Owen for the last 4 years makes me skeptical that any nominee, no matter how qualified, no matter how deserving, that under appropriate circumstances our colleagues, some of our colleagues, will find the circumstances extraordinary and still reserve unto themselves what they perceive as their right to engage in a filibuster and deny a bipartisan majority our right to an up-or-down vote.
It is clear to me this agreement among these 14 to which 86 Senators were not a party does not solve anything. What it does do is perhaps delay the inevitable. Senator DeWine, in particular, one of the signatories of this agreement, says this is an effort to break the logjam on these three nominees, hopefully, change the standard by which at least seven Senators on the other side of the aisle will engage in a filibuster, and perhaps start anew.
I hope Senator DeWine is correct in his reading and his understanding of this agreement. I was not a party to it; presumably, 84 Senators were not a party to it. Negotiations took place in a room where I didn't participate, where the American people were not given the opportunity to listen and judge for themselves.
The thing that disturbs me most about this temporary resolution, if you can call it that, is that while 7 Republicans and 7 Democrats were a party to this agreement, a product of these negotiations, the fact is that the 7 Republicans of this 14 would have agreed to close off debate and would have agreed to allow an up-and-down vote, while it is clear that the 7 Democrats would not have agreed otherwise to withhold the filibuster and allow an up-or-down vote.
What reminds me so much of Roseanne Rosannadanna on Saturday Night Live and Gilda Radner, now in effect what they are saying after 4 years of character assassination, unjustified attacks, and a blatant misrepresentation of the record of these fine nominees, they are saying, in effect, never mind, as if it never happened. But it did happen. It is important to recognize what has happened. It is a blight on the record of this body, and it is further evidence of how broken our judicial confirmation process has been.
I have nothing but admiration for the courage of our majority leader in bringing us to this point. I believe if he had not had the courage and determination--and, I might add, our assistant majority leader, MITCH MCCONNELL--if our leadership had not had the determination to bring us to this point, I have no doubt that we would not have reached at least this temporary resolution. They are entitled to a whole lot of credit for their courage and their willingness to hold the feet to the fire of those in the partisan minority who would have denied a bipartisan majority the right to an up-and-down vote on these nominees.
This agreement of these 14 Senators delays but does not solve the problem. Of course, we all anticipate that before long, there will be a Supreme Court vacancy which will test this definition of what these 14 call extraordinary circumstances. I wonder whether this standard will be applied to the other nominees who were not explicitly covered by this agreement; that is, other nominees who have been pending for years who were not given, as Justice Owen, Justice Brown, and Judge Pryor have been, the opportunity for an up-or-down vote.
Let me say I hope I am wrong. But there is plenty of reason to be skeptical about this so-called agreement of these 14. Perhaps we will see a triumph of hope over experience, but our experience over the last 4 years has been a bad one and one which I don't think reflects well on the Senate.
I hope I am wrong. I hope what has been established is a new precedent that says that the filibuster is inappropriate and will not be used against judicial nominees because of perceived difference in judicial philosophy, that
people who have certain fundamental convictions will not automatically be disqualified from judicial office. I hope that is where we are. As we know, though, extraordinary circumstances could be interpreted by some to mean that if you can vilify and demonize a nominee enough, that, indeed, the filibuster continues to be justified. We know from the false accusations made against too many of President Bush's nominees how easy that is to do.
After $10 million--that is one estimate I have heard--in the various special interest attack ads have been run against Priscilla Owen and Janice Rogers Brown and others, after $10 million or more, perhaps, the American people are told, never mind, we did not really mean it; or even if we did mean it, you are not supposed to take us seriously because what this is all about is a game.
This is about the politics of character assassination, the politics of personal destruction. In Washington, perhaps people can be forgiven for believing that happens far too much. Indeed, that is what has happened with these fine nominees. But now they are told, particularly in the case of Justice Owen, after 4 years, never mind, all the things that were said about you, all the questions raised are beside the point, and you are not going to serve on the Fifth Circuit Court of Appeals after waiting 4 years for an up-or-down vote.
I worry some nominees in the future will simply say: I am not going to put my family through that. I think about Miguel Estrada, who waited 2 years for an up-or-down vote with the wonderful American success story, but after 2 years he simply had to say: I can't wait anymore. My reputation cannot sustain the continued unjustified attacks. I am simply going to withdraw.
Unfortunately, when we have good men and women who simply say, I can't pay the price that public service demands of me and demands of my family, I fear we are all losers as a result of that process.
I am skeptical of this agreement made by 14 after secret negotiations that we were not a party to. Perhaps I am being unduly skeptical. I hope I am wrong. I hope what has happened today and I hope we are reassured over the hours and days that lie ahead that what has been established is a new precedent, one that says we will not filibuster judicial nominees, we are not going to assassinate their character, we are not going to spend millions of dollars demonizing them.
I hope I am wrong and that we have a fresh start when it comes to judicial nominations. The American people deserve better. These nominees deserve better. This Senate deserves better than what we have seen over the last 4 years.
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