S10090 CONGRESSIONAL RECORD — SENATE July 29, 2003 this shortage. If we don’t have an ade- incentives to move in that direction. solid data. So I urge that we adopt this quate supply, it will affect the econ- But I am very worried we are going to amendment, and let’s leave the choice omy across the board. It is already af- cause some real damage. What about in the hands of the American people fecting the chemical industry in my the choice made by Americans? This is and not have the ‘‘Grand Poobah Gov- State, and the fertilizer industry. It is still America, isn’t it? ernment’’ tell us what we have to do in going to affect people’s quality of life. Is the Federal Government going to one more area. Don’t make the Amer- This is so important. We need the mandate that every driver drive an ican people drive this little grunt of a whole package. We need more produc- automobile like the one in this pic- car shown here. tion. We need new technology. We need ture? Last year, I talked about the Mr. President, do I have any time re- clean coal technology. That is just one ‘‘purple people eater.’’ Shown in this maining? example. We need more conservation of picture is a version of the ‘‘purple peo- The PRESIDING OFFICER. The Sen- a responsible nature. We need to look ple eater.’’ That might be fine around ator has 31⁄2 minutes remaining. at alternative fuels. I think a lot of town in Washington, DC, but I can tell Mr. LOTT. Mr. President, I yield the these alternative fuels are, quite frank- you, on some of the back roads in my remainder of my time to the Senator ly, not very legitimate. But it is legiti- State of Mississippi that will get you from Missouri, keeping in mind that mate to try to find alternative fuels. killed. That is not practical and people Senator BOND would have 2 minutes to I urge my colleagues, let us work to- will not choose to drive it. They want close at the end of the debate on this gether. Let us get this done, get it into an SUV or they want a pickup truck. section, I believe. conference, and let us produce a na- And they don’t want to be penalized by The PRESIDING OFFICER. The Sen- tional energy policy. the Federal Government saying to ator from Missouri. I think this issue is more important them: You have to do this. And, by the Mr. TALENT. Mr. President, I doubt than any issue Congress is considering way, if you don’t do this, we will make I will use the full 31⁄2 minutes. It is just at this time. It is urgent that we get you pay some kind of a price. This is that I ran out of time before when I this work done. ridiculous. was in the middle of ranting and raving I wanted to speak in support of the In my own case, my family is grow- on this subject. I would hate to close Bond-Levin amendment. I know very ing. We have our children and grand- my remarks on that tone, anyway. good work has been done on this children. It is a wonderful deal. Then, Let me explain to the Senate why amendment. I worked last year with in August, when we take our annual this is so important to me personally. Senator BOND and Senator LEVIN. They family vacation, I have a choice. I can I recently visited the Kansas City Ford have given a lot of thought to how this have a bigger automobile with the plant where they make the new Ford should be designed. It bases decisions three seats in it, where we can securely 150 truck. It is a triumph of American on these CAFE standards on science carefully fasten our grandchildren in engineering and the productivity of and solid data. I believe this idea of these safety seats. We can take two American workers. just plucking a number out of the air automobiles, each being an SUV, or we The workers there are proud of that and saying that number is achievable can take three automobiles. Now, how truck. And they should be proud of it. is irresponsible. It may not even be much fuel is saved? And how much It means many people will be able to achievable. Based on what? It makes safety is given up? travel in this country safely and with somebody feel good? And what about Mr. President, this is ridiculous. It comfort. I drive an SUV. I don’t drive the choices for the American people? continues to be. It was last year. The it because I am trying to hurt the envi- What about the sacrifices in safety American people are speaking with ronment or affect our energy independ- that we are asking them to make? their choices. They are voting with ence. I drive it because we have small When you just pick a number, such their feet and their cash. They can buy children. I used to drive a hatchback, as 32 miles per gallon or 37 miles per these more fuel-efficient automobiles, but if we got in an accident in that gallon, I don’t think that is a wise de- but they are not doing it. hatchback, it would fold up like an ac- cision, unless it has been based on What percent is actually buying cordion. That is why I drive an SUV. thorough study and solid data. Of these smaller automobiles? I think, That is why millions of people do. course, the organization to make that any way you slice it, not more than 14 The Senator from Mississippi is right determination is the NHTSA. They percent. The American people are mak- to say it is wrong to disparage these have the expertise to analyze the num- ing other choices. vehicles. People who make these vehi- bers and consider all that should be in- So I think what we are doing is very cles in Missouri and around the coun- volved, including the jobs that might important. I think there are a lot of try are proud of what they do. They are be affected, the technology, how this very substantive issues involved, and satisfied with their jobs. Let’s not improved fuel efficiency could be ob- the least of which is not the American gamble with their jobs. We are trying tained, and, yes, safety. There are pro- people’s choices. to come out of a recession. We are try- posals out there which would adversely I do not think we should be forced to ing to create jobs in this country. affect all these areas, including jobs, drive that automobile shown in the pic- Vote for the Bond-Levin amendment. employment, consumer choice, and ture. I don’t know who makes that It is a good, modern amendment and safety. automobile. I don’t know where it is moves us forward. It protects people’s The National Academy of Sciences made, but it is probably reposing some- jobs. I urge the Senate to support the CAFE report declared there will be where in France or Germany. I like the amendment. more deaths and injuries if fuel econ- bigger vehicle shown in the picture be- I thank the Senator from Mississippi omy standards are raised too fast with- hind it. for yielding me a few extra minutes. I out proper consideration given to how The American people have a need for yield back whatever time remains. that is being done and what impact it vans or SUVs or pickup trucks. I un- f might have. derstand there is going to be an amend- This amendment is supported by a ment offered that will pick on particu- EXECUTIVE SESSION broad coalition: labor, the UAW, the larly light trucks. Goodness gracious, AFL-CIO, the Chamber of Commerce, light trucks use less fuel. Why pick on the National Association of Manufac- a light truck versus a heavy truck? NOMINATION OF PRISCILLA turers, the Farm Bureau, automobile This makes no sense. RICHMAN OWEN, OF TEXAS, TO dealers, and over 40 other organiza- I oppose the amendment that is going BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIR- tions. That ought to tell you some- to be advocated by Senator MCCAIN CUIT—Resumed thing. That type of broad support indi- and, I think, Senator FEINSTEIN. I op- cates that people are concerned about pose the Durbin amendment. The PRESIDING OFFICER. Under what might be done with this CAFE This amendment by BOND and LEVIN the previous order, not withstanding standard. is bipartisan. It makes common sense. the provisions of rule XXII, there will Yes, we should continue to work to It moves us in the right direction. But now be 1 hour of debate equally divided improve fuel efficiency. We should have it is based on commonsense science and between the Senator from Utah, Mr.

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G29JY6.031 S29PT1 July 29, 2003 CONGRESSIONAL RECORD — SENATE S10091 HATCH, or his designee, and the Senator Mr. HATCH. Mr. President, I rise Justice Owen is committed to legal from Vermont, Mr. LEAHY, or his des- today to speak on behalf of the nomi- services for the poor. She successfully ignee. nation of Priscilla Owen for the United fought with others for more funding for The Senator from Nevada. States Court of Appeals for the Fifth legal aid services for the indigent. Mr. REID. Mr. President, I suggest Circuit and to speak about the pattern Justice Owen is committed to cre- the absence of a quorum and ask unani- of political tactics being used against ating opportunities for women in the mous consent that the time be charged President Bush’s well-qualified judicial legal profession. She has been a mem- equally between Senator HATCH and nominees. ber of the Texas Supreme Court Gender Senator LEAHY. We find ourselves at an important Neutral Task Force, and she is viewed The PRESIDING OFFICER. Without point in Senate history. History will as a mentor by younger women attor- objection, it is so ordered. show an effort by a minority of Sen- neys. She was one of the first women to The clerk will call the roll. ators to completely block well-quali- sit on the Texas Supreme Court. In- The legislative clerk proceeded to fied circuit court nominees during the credibly, this is the woman the liberal call the roll. 108th Congress. History will further attack groups smear as ‘‘anti-woman.’’ Mr. VOINOVICH. Mr. President, I ask show that this minority group of Sen- Give me a break. unanimous consent that the order for ators was not asking for a full and open Justice Owen’s confirmation is sup- the quorum call be rescinded. debate on the Senate floor. They were ported by Texas lawyers such as E. The PRESIDING OFFICER. Without not asking for meaningful deliberation Thomas Bishop, president of the Texas objection, it is so ordered. on these well-qualified nominees. Rath- Association of Defense Counsel, and Mr. REID. Mr. President, I know the er, this minority group of Senators was William B. Emmons, a Texas trial at- Senator from Ohio has the floor, but committed to reworking the meaning torney and a Democrat who says that through the Chair to him, I would note of advice and consent. Justice Owen ‘‘will serve [the Fifth Cir- I think we can agree that the con- we are under a time constraint. If the cuit] and the United States exception- firmation process is broken. I certainly Senator wishes to speak, I have no ob- ally well.’’ After a full review of Jus- do hope we can find a constructive way jection as long as it is charged off of tice Owen’s rulings, Victor Schwartz, a to restore the process, but recent Senator HATCH’s time. respected trial attorney and co-author events do not lead me to be overly opti- Mr. VOINOVICH. Mr. President, I of the leading torts textbook, con- mistic—not when I hear injudicious would like permission to speak on the talk about plans for more filibusters cluded that she is a ‘‘moderate jurist,’’ CAFE amendment. and not when I hear my colleagues neither pro-plaintiff nor pro-defendant. The PRESIDING OFFICER. Is there I ask unanimous consent that a copy characterize our advice and consent objection? of Mr. Schwartz’s letter to the Judici- duty in terms of batting averages or Mr. REID. Mr. President, as I indi- ary Committee be printed in the quarterback completion rates. If any- cated, I object unless the time is RECORD. thing, my colleagues on the other side There being no objection, the mate- charged to Senator HATCH. haven’t let Justice Owen even get up to rial was ordered to be printed in the The PRESIDING OFFICER. Time the plate. This is not a matter of ac- RECORD, as follows: will be so charged, unless the Senator quiring a certain win-loss record on the from Utah objects. baseball field; this is a matter of SHOOK, HARDY, & BACON L.L.P., Washington DC, July 18, 2002. Mr. HATCH. Mr. President, I ask whether we will be fair to our judicial what the request is. Re nomination of Texas Supreme Court Jus- nominees—the many talented men and tice Priscilla Owen. The PRESIDING OFFICER. The women who have volunteered to serve unanimous consent request is that the Hon. PATRICK J. LEAHY, our country through judicial service. Chairman, Committee on the Judiciary, U.S. Senator from Ohio be able to speak on In Justice Owen’s case, a handful of CAFE standards. Senate, Dirksen Senate Office Building, Senators blocked her nomination in Washington, DC. Mr. VOINOVICH. For 6 minutes. committee last year, preventing a sim- DEAR MR. CHAIRMAN: Throughout the past The PRESIDING OFFICER. Charged ple up-or-down vote on the Senate three decades, many members of your Com- to the time for the judge. floor. Nearly a year later, Justice Owen mittee have been kind enough to ask my Mr. HATCH. I ask the Senator, could still has not been afforded a vote by views about tort law. I have taught in law you keep it a little lower than that be- the full Senate. How much longer must school, and practiced on behalf of plaintiffs cause we— in the 1970s. I currently practice in the de- she wait? One of my colleagues on the fense firm of Shook, Hardy & Bacon, L.L.P. Mr. REID. I cannot hear the Senator other side has already answered this from Utah. and represent the American Tort Reform As- question for himself, saying that there sociation. You have appreciated that when I Mr. HATCH. Do you think you could are not enough hours in the universe share my views with you, I try my utmost to do it in less time than that because we for sufficient debate, but I strongly dis- be objective. Because almost anyone’s views have very little time. agree. We have debated long enough. on judges are likely to be seen as having Mr. VOINOVICH. I can do it in 6 min- Justice Owen has been on the Senate bias, I have refrained from commenting on utes. floor for 4 months. It has been 7 any judicial nominee. Mr. HATCH. That is fine. I am now writing you about Texas Su- months since she was renominated by preme Court Justice Priscilla Owen because The PRESIDING OFFICER. Without President Bush. It has been more than objection, it is so ordered. she has been attacked as being unfair in the a year since her first hearing, and it very area of my expertise, tort or liability The Senator from Ohio. has been more than 2 years since she law. Since 1976, I have been co-author of the Mr. VOINOVICH. I thank the Senator was first nominated by President Bush most widely used torts textbook in the from Utah. on May 9, 2001—811 days in total. Dur- United States, Prosser, Wade & Schwartz’s (The remarks of Mr. VOINOVICH are ing all that time, she has not been af- Cases and Materials on Torts. I have also printed in today’s RECORD in legisla- forded a vote. I think it is time Justice served on the three principal American Law tive session.) Owen was given the courtesy of an up- Institute Advisory Committees on the new Restatement of Torts (Third). The study of Mr. VOINOVICH. Mr. President, I or-down vote. Keep in mind, she has thank the Senator from Utah for giv- tort law has been the love of my professional the unanimous well-qualified rating of life. ing me this opportunity to speak on be- the American Bar Association. Because of my academic and practice obli- half of the Bond-Levin CAFE stand- Priscilla Owen could not be a better gations, I have had a very deep interest in ards. selection for the Federal court. She at- opinions of law in the field of torts. Natu- The PRESIDING OFFICER. The Sen- tended Baylor University and Baylor rally, I am familiar with state supreme court ator from Utah. University School of Law, graduating judges or justices who are thought to be Mr. HATCH. Mr. President, what is cum laude from both institutions. She ‘‘pro-plaintiff’’ or ‘‘pro-defendant.’’ In that the parliamentary order? finished third in her law school class. regard, when I heard about controversies The PRESIDING OFFICER. We are surrounding Justice Owen, I was somewhat Justice Owen earned the highest score puzzled because I had not placed her in ei- under an hour of time equally divided. on the Texas bar exam, and she has 17 ther group. The Senator controls 24 remaining years of experience as a commercial This past weekend, I reviewed most of her minutes. litigator. principal opinions in tort law. My review of

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G29JY6.034 S29PT1 S10092 CONGRESSIONAL RECORD — SENATE July 29, 2003 Justice Owen’s opinions indicates that any vidual capacity. The patient later amended Raul Gonzalez—all Democrats—say characterization of Justice Owen as ‘‘pro- his complaint, and named the surgeon’s pro- Justice Owen is unbiased and re- plaintiff’’ or ‘‘pro-defendant’’ is untrue. fessional association as a defendant. The as- strained in her decision-making. Those who have attacked her as being ‘‘pro- sociation moved to dismiss the case because Alberto Gonzales, another former defendant’’ have engaged in selective review the statute of limitations had expired by the of her opinions, and have mischaracterized time the suit was brought against the asso- Texas Supreme Court colleague, says her fundamental approach to tort law. ciation. Writing for the Texas Supreme she will perform superbly as a Federal Justice Owen’s fundamental approach to Court, Justice Owen held that the cause of judge. tort law is to make it stable. On the one action brought against the surgeon in his in- Fifteen past presidents of the Texas hand, she is not a judge who would be likely dividual capacity preserved the potential of State Bar, both Democrats and Repub- to jump to the front of a plaintiff’s lawyers the claim against the association. See licans, who hold a variety of views on petition to expand the scope of tort law. Fur- Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). important legal and social issues, agree thermore, she would be unlikely to allow Justice Owen’s views about product liabil- that Justice Owen is an outstanding claims for brand-new types of damages, such ity law strike the same balance. For exam- as hedonic damages, or create cutting-edge ple, Justice Owen joined in a Supreme Court nominee. Those who know Justice liability claims (e.g., allowing a lawsuit of Texas opinion that considered a question Owen best support her confirmation. against a fast food chain, where there was no certified by a federal court as to whether a Sure, the usual abortion-rights showing that an individual plaintiff’s health manufacturer of a product used by adults—a groups and highly partisan Texas trial was actually harmed by eating at that cigarette lighter—might have a duty, in lawyer interest groups have announced chain). On the other hand, she would not and some situations, to childproof the product. that they expect Senators to filibuster. has not arbitrarily thwarted the rights of Justice Owen joined with the Court in hold- But what else is new? They have done plaintiffs under existing tort law. ing that a manufacturer may have such an Let me give you just a few examples. In and will continue to do what they do obligation. See Hernandez v. Tokai Corp., 2 best: distort, smear, and profile. As Merrell-Dow Pharmaceuticals, Inc. v. Havner, S.W.3d.251 (Tex. 1999). 953 S.W.2d 706 (Tex. 1997), a decision for One finds the same sense of ‘‘balance’’ in Rena Pederson wrote in an op-ed pub- which she was roundly criticized by a group Justice Owen’s opinions in other areas of lished in the Dallas Morning News, called ‘‘Texans for Public Justice,’’ Justice tort law. In a very interesting opinion, Jus- ‘‘The people who know Priscilla Owen Owen held that the evidence was legally in- tice Owen joined with the Texas Supreme the best all agree. They say the Texas sufficient to establish that a birth defect was Court to strip a defendant business of its de-  Supreme Court judge is nothing like caused by exposure to the drug Bendectin. fenses based on a plaintiff’s fault when that Bendectin is the only drug that helps allevi- the person portrayed by critics of her defendant business had decided to opt out of appointment to the 5th U.S. Circuit ate the severe symptoms of morning sick- the workers’ compensation system. Justice ness. It is still approved by the U.S. Food Owen supported the sound public policy that Court of Appeals.’’ and Drug Administration and regulatory would discourage businesses from opting out I ask unanimous consent that a copy agencies throughout the world. As Justice of workers’ compensation and taking their of this editorial be printed in the Owen recognized, the attempts by plaintiff’s chance on their vagaries of a tort lawsuit in RECORD at this point. counsel to tie the birth defects of the plain- the workplace. As you and Members of your There being no objection, the mate-  tiff’s child to Bendectin in the Havner case Committee know, a fundamental reason why rial was ordered to be printed in the were insufficient. The Supreme Court of the workers’ compensation was adopted in the RECORD, as follows: United States itself recognized, in a case in- first place is so that a worker’s fault does [From the Dallas Morning News, Feb. 2, 2003] volving that very drug, that judges should not preclude him or her from obtaining com- SENATE DIDN’T GET TO KNOW THE REAL act as gatekeepers, and not permit juries to pensation for a workplace injury. See Kroger JUDGE OWEN make judgments based on bad science. See Co. v. Keng, 23 S.W.3d 347 (Tex. 2000). Daubert v. Merrell Dow Pharmaceuticals, Inc., I wish to reiterate that I am not sug- (By Rena Pederson) 509 U.S. 579 (1993). gesting that Justice Owen is a plaintiffs’ The people who know Priscilla Owen the I am not surprised that the Association of lawyer’s ‘‘dream judge.’’ She is not. For ex- best all agree. They say the Texas Supreme Trial Lawyers of America (ATLA), the orga- ample, when the Texas Supreme Court ad- Court just is nothing like the person por- nized plaintiffs bar, and those who have em- dressed the issue of whether jurors should be trayed by critics of here appointment to the pathy with that group criticized Justice told that if they find a plaintiff more than 5th U.S. Circuit Court of Appeals. Owen for her decision. They also criticized 50% responsible for his or her own injury, the Democrats on the Senate Judiciary Com- the United States Supreme Court when it plaintiff might lose, Justice Owen dissented mittee voted along party lines in September rendered the Daubert decision. ATLA and its from the majority. The majority found that and rejected her appointment. They con- sympathizers believe that judges should not such information was allowed to go to the tended she had an anti-abortion bias and was act as gatekeepers; rather, they believe that jury. Justice Owen believed such action a tool of big businesses like Enron. juries should be permitted to weight sci- could cause jurors to look more at the effect But if they had bothered to check with the entific evidence as they choose. of the 50% rule than the facts of the case. people who grew up with her in Waco or Here is the rather interesting point. In a See H.E. Butt Grocery Co. v. Bilotto, 985 worked with her in top law firms in Houston case decided almost simultaneously with S.W.2d 22 (Tex. 1998). While not everyone (in- or clerked at the Texas Supreme Court, they Havner, not mentioned by ‘‘Texans for Public cluding myself) would agree with Justice would have gotten a different, more accurate Justice’’ or other groups criticizing Justice Owen’s decision, it is anchored in logical ju- picture. Owen, she would have allowed an adult to dicial precedent and has a clear public policy Those sources describe Judge Owen this pursue a sexual abuse claim against an al- basis. See Victor Schwartz, Comparative way: She is a doggedly dutiful legal scholar leged abuser who purportedly did the wrong- Negligence, § 17–5(a) (3d Ed. 1994). who couldn’t care less about party labels or ful acts when the plaintiff was a child. In the My fundamental point is that in the area moneyed interests. Many cite her as a help- case S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996), ex- of tort law, Justice Owen is a moderate ju- ful mentor for other women in the legal pro- pert testimony indicated that the plaintiff rist; she is neither a trailblazer for plaintiffs fession. She prefers cooking for friends to had ‘‘repressed memories’’ that arose when nor a captive of corporate interests. the political or social circuit. Yes, they say, the plaintiff was an adult. The majority held I would be pleased to answer any questions she’s a devoted Sunday school teacher, but that expert testimony was insufficient to or inquiries by Members of your Committee, not what used to be called a ‘‘goody-two- warrant the application of the ‘‘discovery and I value your taking the time to read this shoes’’ or a narrow-minded religious zealot. rule,’’ which would have tolled the statute of statement. She was known to enjoy a few beers with her limitations. It required ‘‘objectively Sincerely, friends at Baylor University and has a smart verifiable’’ evidence of abuse to apply the VICTOR E. SCHWARTZ. sense of humor. She’s a water-skier and was discovery rule and toll the statute. Justice Mr. HATCH. Justice Owen is a con- spunky enough to try rollerblading in her Owen noted, however, that such evidence was kitchen a few years ago, breaking her ankle. often unavailable, and the unavailability of sensus nominee. A bipartisan majority The American Bar Association gave the 48- the evidence is frequently due to acts done of the Senate supports her confirma- year-old Texas judge its highest rating, by the alleged abuser. She would have held tion. Both of Justice Owen’s home ‘‘well qualified.’’ Many prominent Demo- that the repressed memory evidence was suf- State Senators, Senators HUTCHISON crats from Texas—including former Texas ficient to toll the statute and allow the and CORNYN, back her. The American Supreme Court Chief Justice John Hill and claim. I recommend that Members of this Bar Association has awarded her a former State Bar President Lynne Committee read this case and note that Jus- unanimous well-qualified rating, their Liberato—spoke up in Justice Owen’s de- fense. But their voices were discounted. A tice Owen wrote the sole dissenting opinion highest rating, and the gold standard in the case. public relations campaign was generated by In a later case, Justice Owen prevented an- formerly used by many of my Demo- several interest groups, using snippets from other plaintiff from falling into a statute of cratic colleagues. the hundreds of cases that had come before limitations trap. A patient brought a mal- Former Texas Supreme Court Jus- her bench, in order to make her look as bad practice case against a surgeon in his indi- tices John Hill, Jack Hightower, and as possible and snub President Bush.

VerDate jul 14 2003 01:56 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.002 S29PT1 July 29, 2003 CONGRESSIONAL RECORD — SENATE S10093 What particularly dismayed those who I know my choice. We should allow a cent in the last election from the peo- know the Texas justice well is that she was vote. I hope my colleagues will do the ple who know her the best. made to look anti-abortion and anti-woman. right thing and make the same choice. Not once during my tenure with Jus- They emphatically insist that, while con- tice Owen did I ever see her attempt to servative, she is not an activist or ideologue I yield the floor. with an agenda. The PRESIDING OFFICER. Who pursue some political or other agenda Laura Rowe, who worked with Ms. Owen at yields time? at the expense of the law as she under- the Andrews and Kurth law firm in Houston, Mr. HATCH. How much time does the stood it. I can tell you that Justice said, ‘‘I came across her when I was a young Senator need? Owen believes very strongly, as I do lawyer starting out, and she was a great Mr. CORNYN. Five to seven minutes. and Americans do across this land, mentor for the other women. She was so Mr. HATCH. Mr. President, I yield 5 that judges are called upon not to act smart, hardworking, but funny and normal at the same time. When I met her, I thought minutes to the Senator from Texas. as another legislative branch, or as a ‘that’s a woman I would like to be like.’ She The PRESIDING OFFICER. The Sen- politician, but as judges—to faithfully was one of the lawyers that people wanted to ator from Texas is recognized. read statutes and to follow the law as work for, tough but fair. It did disturb me to Mr. CORNYN. Mr. President, I thank written by the legislature and the see her vilified.’’ the chairman of the Judiciary Com- precedents established by higher courts Kristin O’Neal, who was a law clerk at the mittee, who has done yeoman’s work in in earlier times. Texas Supreme Court, said, ‘‘I understand shepherding President Bush’s highly why people distorted her opinions, because it Some of my colleagues have, unbe- furthered their agenda, but to say she has qualified judicial nominees through the lievably, taken the position that Jus- some kind of activist agenda is absurd to me. Judiciary Committee and to the floor tice Owen is to be criticized for dis- She takes very logical, methodical approach of the Senate. agreeing with other members of the to everything. They tried to make her look Chairman HATCH has mentioned a Texas Supreme Court in some of her bad for writing an opinion that benefited number of people on both sides of the opinions. Some of my colleagues act Enron because She had received a campaign aisle who support the nomination of shocked that appellate judges, particu- contribution from Enron some time earlier. this good woman to the Fifth Circuit What people didn’t know was that it was a larly on the highest court in my State, unanimous ruling—and the judges don’t se- Court of Appeals. I have a few com- will disagree with one another and lect the opinions they write. It’s a random ments—first, to echo those comments have spirited debates in the form of drawing. You might disagree with one of her in terms of the consensus of opinion in opinions they write. But I firmly be- rulings, but I never, ever sensed that she was my State of Texas as to the good work lieve that is exactly the job that is ex- using her position in an activist manner or that Priscilla Owen has done as a jus- pected of a judge and that Justice to further any personal beliefs. She takes her tice in the Texas Supreme Court. But I job and her role very seriously.’’ Owen has fulfilled that position well. Ruth Miller, who has known Ms. Owen also bring a personal perspective to There are those who apparently be- since they were in high school in Waco, said, this debate because I served with Pris- lieve a judge is not supposed to have a ‘‘I don’t know how Priscilla remained so cilla Owen for 3 years on the Texas Su- real debate about their interpretation composed and calm, when some of the sen- preme Court. Frankly, I do not recog- of the law and is just supposed to as- ators cut her off. I though she handled her- nize the caricature that has been paint- sert his or her own will, regardless of self with dignity, even when she should have ed of this good judge in the debate be- what the law actually says. Perhaps been able to continue. What people don’t fore the Senate. know is that she had to work for weeks and these advocates believe a judge is sup- weeks on her own to prepare, on the week- In May of this year, I spoke on the posed to follow the practice of what au- ends, no vacation. But she knew I was going floor regarding the 2-year anniversary thor James Lileks has called ‘‘teasing through a serious health problem, and so she of Justice Owen’s nomination. That penumbras from the emanations of the would call to check on me every week. And dismal anniversary showed us just how glow of the spark of the reflection of in the throes of the confirmation process, far our confirmation process had gone the echo of the intent of the Framers.’’ she went with me to my appointmet at the awry. And now it has gotten even I fundamentally disagree with that hospital in Houston and just brought her worse. portfolio with her.’’ idea. If we did not have judges disagree Nancy Lacy, Ms. Owen’s sister, attended Today’s vote is just the first in a se- with one another, it would mean some- the hearings in Washington and sat behind ries this week. Over the next 4 days, we body was not doing their job. Justice Owen, as did the minister from the will see just how far the minority in By the time cases get to the top church Justice Owen attends in Austin. ‘‘It this body is willing to go to block well echelons of our judicial system, they was eye-opening,’’ she said. ‘‘It was a hard qualified nominees and parrot the talk- are the hardest cases. They are the experience because no matter what she said, ing points provided by special interest cases that cannot be solved by lower they were going to stick with the propa- groups who oppose this and other high- ganda. It was obvious. I was hoping they levels of the judiciary or indeed by set- were going to really give her a shot, try to ly qualified judicial nominees. It is my tlement between the parties. These are get to know who she really is, ask her hope that the Senate will do the right important issues and must be decided, thoughtful questions. But the information thing and provide an up-or-down vote through study and debate. they has was wrong to begin with. I felt for this judicial nominee. A judge, unlike a Member of this sorry for them at times; their staff didn’t do As I said, Justice Owen and I served body, cannot choose to simply walk a very good job; it was obvious the special for 3 years together on the Texas Su- away and ignore a thorny legal issue. interest groups gave them the information, preme Court—from the time she came Judges are not supposed to make law. and they didn’t research to see if it was true. The handwriting was on the wall. I just in January 1995 until the time I left in They are supposed to interpret and en- wanted to say to them, ‘You’re missing the October of 1997. During those 3 years, I force the law written by the legisla- boat. You’re missing the opportunity to get had a chance to observe Justice Owen’s ture. to know a really neat person.’ ’’ work habits and her basic judicial phi- In Texas, Justice Owen followed this By all accounts, it was a wearing experi- losophy at work, how she approaches duty to the letter. From experience ence for the Texas judge. Although she un- her job, how she thinks about the law, and from observation, I know that Jus- derstood she had been caught in a political and how she acts given that position of tice Owen believes strongly that judges spite match, she couldn’t help but be pained by the attacks on her character. Still, her public trust that judges hold. are called upon to faithfully read the nomination has been resubmitted by Mr. I can tell you from my personal expe- statutes on the books, read the prece- Bush, so Americans may get a chance to see rience that Justice Owen is an excep- dents in the case, and then apply them the rest of her story after all. tional judge who understands her pro- to the case before the court. Mr. HATCH. Mr. President, Justice found duty to follow the law and en- Justice Owen did this job, and she did Priscilla Owen will be an excellent force the will of the legislature. it well. She is a brilliant legal scholar Federal judge. That is, of course, one reason the and a warm and engaging person. To We have a choice: Will we continue American Bar Association has given see the kind of disrespect the nomina- to block another highly qualified nomi- her a unanimous well qualified rating, tion of such a great Texas judge—and a nee for partisan reasons or will we and that is why she has such strong bi- great Texas woman—has received in allow each Senator to decide the mer- partisan backing. That is why she en- this body is more than just dis- its of the nomination for himself or joys the enthusiastic support of the appointing. It is an insult to Justice herself? people of Texas, where she got 84 per- Owen. It is an offense against the great

VerDate jul 14 2003 01:56 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.006 S29PT1 S10094 CONGRESSIONAL RECORD — SENATE July 29, 2003 State of Texas. And it is beneath the I yield the floor. the original leaders and a member of dignity of this institution. The PRESIDING OFFICER. Who the altar guild where she teaches Sun- It is clear who is calling the tune re- yields time? day school. She said about her: peated by the minority opposition here If neither side yields time, time will Priscilla worked incredibly hard behind on this floor. The beltway special in- be charged equally to both sides. the scenes, never seeking any attention or terest groups are not interested in try- Mr. HATCH. Mr. President, how praise for her efforts. She exemplified serv- ing to understand or evaluate Justice much time does the Senator from Utah ant leadership. Owen by her real record because, if have? What is the complaint about this ex- they were, they would see it as a ster- The PRESIDING OFFICER. The Sen- cellent, magnificent justice on the ling record of intelligence, accomplish- ator has 11 minutes. Texas Supreme Court? What is the ob- ment, and bipartisan support. The spe- Mr. HATCH. Mr. President, how jection? They do not like the fact that cial interest groups are not interested much time does the Senator from Ala- she affirmed lower court opinions con- in the confirmation of nominees who bama desire? cerning parental notification when merely interpret the law and render Mr. SESSIONS. Five minutes. children, minors, desire to have an judgment responsibly. They are only Mr. HATCH. Mr. President, I yield 5 abortion. Eighty percent of the Amer- interested in confirming people who minutes to the Senator from Alabama. ican people believe parents should be they believe are advocates of their in- The PRESIDING OFFICER. The Sen- notified before a minor child should be terests, something that is totally at ator from Alabama is recognized for 5 allowed to have an abortion. The Texas odds with the role a judge is supposed minutes. law is not an extreme law. It simply to perform. Mr. SESSIONS. Mr. President, in the says the parents should be notified, and Sadly, it is clear that these same spe- history of this country, we have not they do not have a right to object or cial interest groups are interested in had a filibuster of a circuit judge or a stop an abortion from going forward— obstructing as many of President district judge before and really never just one of the parents be notified, ac- Bush’s judicial nominees as they pos- even one for a supreme court judge. tually. If the minor does not like that, sibly can. Those who oppose Justice This is an unprecedented obstruction of they can go to court. They go to court, Owen’s confirmation appear to have a nominee—something that really is and they have a hearing before a judge. really no stomach for debate and talk- unheard of. A judge takes evidence on these issues ing about the facts. They choose in- It is particularly distressing to me, and makes a decision at that point stead to filibuster and engage in the beyond words almost, that this fine whether the child who does not want to worst kind of mean-spirited and de- nominee, Priscilla Owen, would be a notify even one of their parents should structive political attacks. person who would be blocked by a fili- notify one of their parents. I can only hope that my colleagues buster when she clearly has the votes, If the judge concludes that she will realize the truth of what is going if given an up-or-down vote in this should notify a parent and the child on, and reject this special interest in- body, to be confirmed for the Fifth Cir- and her lawyer are not happy, then the fluence on the judicial confirmation cuit Court of Appeals. She is extraor- child can appeal to the Court of Ap- process. I can only hope that ulti- dinarily capable. She finished at the peals in Texas. Three judges will then mately we will all strive for a process top of her class in law school. She hear the case. They will decide whether that is fair and consistent with our made the highest possible score on the the trial judge who heard the evidence constitutional duty. Texas bar exam. What a strong state- ruled correctly or not. If they rule that And I can only hope my colleagues ment that is. She won her last race for the child has to notify her parents that realize that by blocking a vote on Pris- the Supreme Court of Texas with 84 she intends to have an abortion, or at cilla Owen, they make themselves al- percent of the vote. She was unani- least one of the parents, only then does lies to these groups, groups that rejoice mously rated well qualified, the high- it go to the Supreme Court of Texas. at the prospect of a Senate in constant est possible rating the American Bar Priscilla Owen never heard one of gridlock over these qualified nominees. Association can give for this position, these cases, never made an initial deci- My colleagues should not think the when they evaluated her. She has the sion on one of these cases. She was one American people do not know what is support of 15 former presidents of the of a number of justices on the Texas going on here. They see when a nomi- Texas Bar Association and is just ex- Supreme Court. Her only responsibility nee’s well-recognized abilities are ig- traordinary in every way. was to review the record of judges who nored in favor of scare tactics and revi- As I looked through her record, I had already decided and concluded, sionist history, and they see some ig- stumbled on this letter from a female based on facts and evidence, having nore the interests of the States from attorney, Julie Woody, who clerked for seen the minor and heard the evidence which they were elected, and instead the Texas Supreme Court. She noted and saw the witnesses in person, her kowtow to special interest groups. she is a lifetime Democrat and she had question was: Should the decision be I am confident that Members of the the occasion to observe Justice Owen. affirmed? Senate are wise enough to reject this She wrote these words. She went to The opponents are unhappy that she inhuman caricature that has been Yale Law School, is a native of Penn- voted to affirm both the trial judge and drawn of Justice Priscilla Owen by spe- sylvania, and practiced law in New the three-court panel below the Texas cial interest groups intent on vilifying, York City. She said: Supreme Court. This is not good. This demonizing, and marginalizing an ad- As a result of my encounters with Judge is a radical obsession with eliminating mirable nominee. And I know that if Owen during my clerkship, I came to regard any restriction whatsoever, even for a we were allowed to hold a vote, a bipar- her as a judge and legal scholar of the high- minor child notifying her parent. It is tisan majority of this body stands est caliber. She has a brilliant legal mind not on any basis to object. Priscilla ready to confirm Justice Priscilla that is matched by her legendary work ethic. Owen would be a wonderful nominee. Owen to the Fifth Circuit Court of Ap- Her analysis of any issue is rigorous and true I yield the floor. peals. The question is whether that to the letter and spirit of the law. Her impec- Mr. HATCH. Mr. President, I suggest cable ethics and honesty and lack of polit- vote will ever happen. ical motivation in her decisionmaking were the absence of a quorum. I hope that my colleagues will give apparent in her discussions of cases and the The PRESIDING OFFICER. Without these qualified nominees what they de- manner in which she decided them. objection, the clerk will call the roll. serve, and allow them to have an up or Justice Owen is among the best and the The legislative clerk proceeded to down vote, today, tomorrow, and every brightest—she will bring integrity, intel- call the roll. day this week. For the sake of the Sen- ligence and the highest ethical standards to Mr. REID. Mr. President, I ask unan- ate, the Nation, and our independent the Fifth Circuit. imous consent that the order for the judiciary, I hope that we will not have She goes on to note that she got to quorum call be rescinded. 4 days of filibusters. know her later because her husband The PRESIDING OFFICER. Without I hope my colleagues will vote to was in the seminary and at St. Bar- objection, it is so ordered. allow this fine judge an up-or-down nabas, an Episcopal Church in Austin, Mr. REID. Mr. President, I yield my- vote. a mission church. Priscilla was one of self whatever time I shall consume.

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.007 S29PT1 July 29, 2003 CONGRESSIONAL RECORD — SENATE S10095 We have heard for several weeks the Mr. HATCH. I yield the remainder of John Hill is a Democrat. John Hill was urgency of passing the Energy bill. As my time to the distinguished Senator attorney general of Texas. He was chief I said this morning, we accept that ur- from Texas. justice of the Texas Supreme Court. He gency, but we have also said for several The PRESIDING OFFICER. The Sen- denounced the false accusations about weeks that we cannot complete the En- ator from Texas. Priscilla Owen’s record, saying: ergy bill with 382 amendments in a pe- Mrs. HUTCHISON. Mr. President, I Their attacks on Justice Owen in par- riod of 1 week, 4 or 5 working days. It rise to speak on behalf of my friend ticular are breathtakingly dishonest, ignor- cannot be done. The majority leader Priscilla Owen. I cannot think of a per- ing her long-held commitment to reform and has come to the floor and said we have son who is being treated worse by the grossly distorting her rulings. Tellingly, the been on the bill 16 days. That is not Senate than my friend Priscilla Owen. groups make no effort to assess whether her fair because a lot of those days have This is the nicest, gentlest person one decisions are legally sound . . . I know Texas been late Thursday and Friday morn- could ever meet, and she also happens politics and can clearly say these assaults on to be smart as a whip. Justice Owen’s record are false, misleading, ings and sometimes on Monday. We and deliberate distortions. have probably had about 7 real days of I watched her before the Senate com- work on this Energy bill. mittee. The chairman of the com- This is a judge who deserves to be Complicating matters, the leader is mittee, Senator HATCH, took the ex- confirmed, and I hope the Senate will scheduling issues that are unnecessary. traordinary step of having two hear- stop the delaying tactics on this won- To have votes on these judges when ings because Priscilla Owen was nomi- derful woman and this qualified judge, cloture has been attempted on a num- nated over 2 years ago. She had her and vote for cloture on Justice Pris- ber of occasions and has not worked, hearing and went through the process cilla Owen. and will not work again, is wasting val- and did very well in her first hearing. I yield the floor. uable time. We could be working on Then, after the new Senate came in, in The PRESIDING OFFICER. The Senator DOMENICI’s and Senator BINGA- January, the chairman brought her chairman’s time has expired. MAN’s Energy bill. back before the committee, and she did Mr. REID. I suggest the absence of a If the majority wanted to move an excellent job. quorum. judges—and we have moved 140 She knows exactly what she has done The PRESIDING OFFICER. The judges—but if the majority wanted to throughout her tenure on the Supreme clerk will call the roll. move judges, we have some who have Court of Texas, and she could cite the The assistant legislative clerk pro- already been cleared from the com- reasoning for all of the questions she ceeded to call the roll. mittee, something that is very unique was asked about the positions she has Mr. LEAHY. Mr. President, I ask because a lot of them are being cleared. taken. She answered the questions in unanimous consent that the order for We would be able to work out agree- the most exemplary fashion. She the quorum call be rescinded. ments to have James Cohn of Florida showed exactly why she should be a The PRESIDING OFFICER (Mr. SES- to be a U.S. district judge; Frank Federal judge. She showed it by her SIONS). Without objection, it is so or- Montalvo of Texas to be a U.S. district brilliance. dered. judge; Xavier Rodriguez of Texas to be We know she was a magna cum laude Mr. LEAHY. Mr. President, we are a U.S. district judge. We could also graduate from Baylor Law School as again being asked to consider the very work something out for H. Brent well as earning the highest score on controversial nomination of Justice McKnight of North Carolina to be a the Texas bar exam that year, and she Priscilla Owen to the United States U.S. district judge. We could work showed in that way that she is quali- Court of Appeals for the Fifth Circuit. something out on James Browning of fied to be a member of the Federal ju- The Senate has voted on this before. New Mexico to be a U.S. district judge. diciary. Her demeanor also showed why One might ask what has changed I recognize there are intense feelings she would be such an excellent Federal since the last Senate vote? The only about Judge Owen, but the intense feel- judge, because she has maintained the thing that has changed is that the ad- ings have not changed during the pe- nicest and most patient demeanor I ministration, the Republicans, have riod of time since we last failed to in- have ever seen of anyone who has been ratcheted up their unprecedented par- voke cloture on this nomination. attacked in such a way. She has shown tisanship in the use of judicial nomi- When there is an urgent need, accord- she has the temperament to be a good, nees for partisan political purposes. ing to the majority leader, to move the honest, fair judge who also happens to Recently, they reached a new low Energy bill, it is almost beyond my be brilliant. through political ads and statements Priscilla Owen has been nominated ability to understand why we would go that should offend all Americans. The for the Fifth Circuit. We have been to something when everyone knows White House and the backers should talking about her now for over 2 years. what the outcome will be. We lose mo- understand with these ads they have Since May 9, 2001, Priscilla Owen has mentum. Every time we go off a bill, as gone far too far. They should withdraw been before the Senate. She has han- we have gone off the Energy bill again, and disavow. dled herself beautifully. She has never and try to start again, it takes time. I Last week I urged our Republican shown any defiance. She has never think the majority leader should un- Senate colleagues to disavow those des- shown any bitterness at the way she is derstand he is his own worst enemy in picable efforts. Unfortunately, they are being treated. She just answers the trying to move the Energy bill by choosing to continue the unfounded going to all these extraneous issues questions like a professional. She is a wonderful member of the smear campaign of insult and division. that are doomed to failure before he In that regard, I ask unanimous con- starts. Texas Supreme Court. She has been elected in her own right to the Texas sent the articles in the New York I suggest the absence of a quorum. Times of this past Sunday, both edi- The PRESIDING OFFICER. The Supreme Court, and when she was run- ning for the bench, the Dallas Morning torials from the Washington Post, the clerk will call the roll. Boston Globe, Huntsville Times, Palm The legislative clerk proceeded to News called her record one of accom- Beach Post, Atlanta Journal-Constitu- call the roll. plishment and integrity. tion, and Pittsburgh Post-Gazette, be Mrs. HUTCHISON. Mr. President, I The Houston Chronicle wrote: printed in the RECORD at this point. ask unanimous consent that the order She has the proper balance of judicial ex- There being no objection, the mate- for the quorum call be rescinded. perience, solid legal scholarship and real- The PRESIDING OFFICER. Without world know-how. rial was ordered to be printed in the objection, it is so ordered. She was endorsed by every daily RECORD, as follows: Mrs. HUTCHISON. How much time is newspaper in Texas that endorsed in [From the New York Times, July 27, 2003] remaining? Supreme Court races. She has a won- ACCUSATION OF BIAS ANGERS DEMOCRATS The PRESIDING OFFICER. The Sen- derful record. The ABA gave her a (By Robin Toner) ator from Utah controls 4 minutes 21 unanimously well qualified ranking WASHINGTON, July 26.—The battle over ju- seconds. when she went before their committee. dicial nominations has grown ever more bit- Does the Senator from Utah yield I will read the words of former Texas ter on Capitol Hill, but Democrats on the time? Supreme Court Chief Justice John Hill. Senate Judiciary Committee say they are

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G29JY6.038 S29PT1 S10096 CONGRESSIONAL RECORD — SENATE July 29, 2003 particularly outraged over the latest turn: president would serve both Rome and the gion into the committee proceedings, not op- the accusation that their resistance to some American people. ponents. Pryor and his pious backers should conservative nominees amounts to anti- Kennedy responded by declaring, ‘‘I believe take heed of John Kennedy’s remarks in 1960, Catholic bias. in an America where the separation of just before he became the nation’s first In a recent newspaper advertising cam- church and state is absolute, where no Catholic president: ‘‘I believe in an America paign, run by groups supporting the Bush ad- Catholic prelate would tell the president, where the separation of church and state is ministration’s judicial nominees, a closed should he be a Catholic, how to act, and no absolute.’’ That should apply to political courtroom door bears the sign ‘‘Catholics Protestant minister would tell his parish- tactics as well as matters of law. It was Sen- Need Not Apply.’’ The advertisement argues ioners for whom to vote.’’ In recent years, ator Orrin Hatch, a Republican supporter, that William Pryor Jr., the Alabama attor- Gov. Mario M. Cuomo reasserted that line, who first inserted Pryor’s religion into the ney general and a conservative, anti-abor- particularly regarding abortion. committee proceedings, not opponents. tion nominee to the federal appeals court, Behind the anger of many Democrats is the Pryor and his pious backer should take heed was under attack in the Senate because of suspicion that this advertising campaign is of the John Kennedy’s remarks in 1970, just his ‘‘deeply held’’ Catholic beliefs. part of the Republican Party’s courtship of before he became the nation’s first Catholic Democrats say they oppose Mr. Pryor be- Catholics, an important swing vote. In gen- president: I believe in an America where the cause of his record, including what they as- eral, Andy Kohut, director of the Pew Re- separation of church and state is absolute.’’ sert is a history of extreme statements on search Center for the People and the Press, That should apply to political tactics as well issues like abortion and the separation of said Mr. Bush was ‘‘doing pretty well with as matters of law. church and state. All nine Democrats on the white Catholics’’ lately. Senate Judiciary Committee voted against It is all part of a politics that has changed [From the Washington, Post, July 29, 2003] Mr. Pryor’s confirmation this week, while radically since 1960. Among the nine Demo- BAD FAITH ADVERTISING the 10 Republicans voted for it, sending the crats on the Judiciary Committee accused of (By Richard Cohen) issue to the full Senate—and the likelihood working against the interests of Catholic ju- of further Democratic opposition. dicial nominees is, of course, John Kennedy’s When Lance Armstrong took a spill during Republicans and their conservative allies brother, Senator Edward M. Kennedy. the Tour de France, the cyclists chasing him argue that the Democrats have created a de slowed until he could right himself and re- facto religious test by their emphasis on a [From the Boston Globe, July 28, 2003] sume the race. Lucky for him his competi- nominee’s stand on issues like abortion. ‘‘It’s tors were not conservative Republicans. PRYOR’S BAD-FAITH BACKERS not just Catholics,’’ said Sean Rushton, exec- They would have run right up his back. utive director of the Committee for Justice, Congressional supporters of Alabama At- For an example of how these conservatives one of the groups that paid for these adver- torney General William Pryor have de- play the game, it is probably best to live in tisements, which are running in Maine and scended to low blows in promoting his nomi- Maine or Rhode Island. In those states, an Rhode Island. ‘‘I think there’s an element of nation to the federal bench. recently an inde- organization called the Committee for Jus- the far left of the Democratic Party that pendent committee launched an advertising tice has been running newspaper ads accus- sees as its project scrubbing the public blitz in Rhode Island and Maine, two states ing Senate Democrats of using a religion test square of religion, and in some cases not with swing Republican senators, claiming for judicial nominations. The nominee in only religion but of religious people.’’ that Pryor’s opponents are motivated by question is William H. Pryor Jr. of Alabama. Senator Orrin G. Hatch, Republican of anti-Catholic bigotry. In the Senate com- The ad says that if Pryor were not a strict Utah and chairman of the Judiciary Com- mittee hearing last week that advanced Pry- Catholic, the Democrats would have no prob- mittee, sounded a similar theme this week, or’s nomination to the floor, Republicans re- lem with him. asserting that ‘‘the left is trying to enforce peated the allegation that Pryor’s opponents The newspaper ads show a picture of a door an antireligious litmus test’’ whereby believe ‘‘No Catholics need apply.’’ This ca- labeled ‘‘Judicial Chambers.’’ A sign says ‘‘nominees who openly adhere to Catholic nard is designed to muddy the only real ‘‘Catholics Need Not Apply.’’ The ad goes on and Baptist doctrines, as a matter of per- issue—Pryor’s fitness to be a federal judge. to say that Pryor is being opposed because of sonal faith, are unqualified for the federal When the full Senate considers Pryor’s nomi- his ‘‘deeply held’’ Catholic beliefs, omitting bench in the eyes of the liberal Washington nation, it must not allow itself to be swayed the awkward fact that some of the Demo- interest groups.’’ by such intimidation tactics. crats who oppose him are also Catholic. The The accusation of anti-Catholic bias Pryor, a Catholic, opposes abortion even ad—not to put too fine a point on it—is a lie. seemed especially galling to some of the for victims of rape or incest not just as a re- What’s more, it’s an insult to Catholics. It Democratic senators who happen to be ligious view but as a legal principle. He has employs a historically redolent phrase, once Catholic. Four of the Democrats on the Judi- called Roe v. Wade, the 1973 Supreme Court so familiar to New England’s Irish Ameri- ciary Committee are Catholic. In fact, 57 decision legalizing some abortions ‘‘an cans, to sidestep the real problem with Pry- percent of the Catholics in the House and the abomination.’’ He also supported the Texas or’s nomination to a Federal appeals court— Senate are Democrats, according to the law banning sodomy that was recently over- not his ‘‘deeply held’’ religious convictions forthcoming Vital Statistics on Congress, turned by the Supreme Court. Pryor’s back- but his deeply held determination to impose 2003–4 edition. ers now claim that anyone questioning these them on others. The ad’s sponsors deeply Like many Americans of Irish descent, views—views that, after all, conflict with ex- hope that Catholics react viscerally. I pray Senator Patrick J. Leahy of Vermont, the isting federal law—is really targeting his re- that they don’t. ranking Democrat on Judiciary, said he grew ligion. ‘‘Some in the U.S. Senate are attack- Pryor’s record is unequivocal. As Ala- up hearing his father talk about the bad old ing Bill Pryor for having deeply held Catho- bama’s attorney general, he not only made says when Irish Catholics were greeted with lic beliefs,’’ the ad reads. statements deploring Supreme Court deci- signs saying they ‘‘need not apply.’’ He In trying to cloak Pryor’s views in protec- sions upholding the separation of church and added, ‘‘It was a horrible part of our history, tive religious garb, the Republicans have state—‘‘it seems our government has lost and it’s almost like you have people willing covered themselves in hypocrisy. First of all, God’’—but repeatedly expressed his convic- to rekindle that for a short-term political Pryor holds one view at odds with Catholic tion that the God he had in mind was the gain, for a couple of judges.’’ teaching: He ardently supports the death Christian one. ‘‘The challenge of the next Senator Richard J. Durbin, who is Catho- penalty, which Pope John Paul declared in millennium will be to preserve the American lic, said he reached his limit at a committee 1995 was permissible only in cases of ‘‘abso- experiment by restoring its Christian per- meeting on Wednesday when Senator Jeff lute necessity’’ to maintain civil order, occa- spective,’’ he said in 1997. Sessions, Republican of Alabama (and a sions the pope said were so rare as to be On another occasion—his investiture as Methodist), began explaining Mr. Pryor’s po- ‘‘practically nonexistent.’’ Pryor supports Alabama’s attorney gengeral—he concluded sitions as ‘‘what a good Catholic believes.’’ capital punishment so fiercely he even his remarks by saying, ‘‘With trust in God, Mr. Durbin, an Illinois Democrat who per- fought state legislation to replace Alabama’s and his Son, Jesus Christ, we will continue sonally opposes abortion but backs abortion electric chair with lethal injection. the American experiment of liberty and rights, added, ‘‘I understand the painful The ironies don’t stop there. Conservative law.’’ process I have to go through with the elders Republicans are forever railing against Although a state official, Pryor chose to of the church on many of these issues, ex- ‘‘identity politics,’’ when minorities seek intervene in federal court cases on the side plaining my position. But it is galling, to say special assistance from the government. But of Roy Moore, now the state’s chief justice. the least, when my colleagues in the Senate, when it comes to stacking the federal bench As a trial judge, Moore opened court with a of another religion, start speaking ex cathe- with right-wing judges, these same folks prayer delivered by a Christian clergyman. dra.’’ reach for the race or religion card with im- He displayed the Ten Commandments in his Many Catholic elected officials are, per- punity. Opponents of nominee Miguel courtroom and later, when elected the haps, particularly sensitive to the line be- Estrada were accused of being anti-Hispanic, state’s chief judge, had a monster statue of tween religious faith and public responsibil- for example, and Clarence Thomas called op- the Ten Commandments placed before the ities. It was a line drawn most vividly by position to his Supreme Court appointment courthouse. Higher courts told him to re- President John F. Kennedy, the first Catho- ‘‘a high-tech lynching.’’ move it. lic president, who had to deal with It was Senator Orrin Hatch, a Republican Whatever Pryor’s religious convictions, widespared fears that a Roman Catholic supporters, who first inserted Pryor’s reli- they are no business of the Senate. But they

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.008 S29PT1 July 29, 2003 CONGRESSIONAL RECORD — SENATE S10097 are its business when he seeks to impose to support Mr. Bush’s nominees. Its ad ran in here and even in his quest to be appointed to those beliefs on others—as he has repeatedly states with large numbers of Catholics and the federal bench. tried to do. This is what the Democrats on moderate Republican senators. It shows a But history shows that when religious the Judiciary Committee object to. Yet the picture of a courthouse door with a sign dogma collides with public policy and prac- ads, sponsored by a committee led by C. hung on it saying, ‘‘Catholics Need Not tice, someone will be hurt. (Please turn in Boyden Gray, the first President Bush’s Apply.’’ And it asks ‘‘Why are some in the your history books to the chapters on the White House counsel, simply label Pryor’s U.S. Senate playing politics with religion?’’ Crusades, the Reformation, and Salem witch opponents as religious bigots. Gray lent his It goes on to describe the nominee as ‘‘a lov- trials, and the conflicts between Protestants name to this cause, and so did former presi- ing father’’ and ‘‘a devout Catholic’’ and in- and Catholics in Ireland, Muslims and Chris- dent George H.W. Bush, who lent his house sists that ‘‘it’s time for his political oppo- tians on the African continent, and fun- for a fundraiser. This is a GOP operation, nents to put his religion aside and give him damentalist Islamic regimes and their oppo- pure and simple. an up or down vote.’’ sition.) Gray ought to be ashamed. Instead of bat- But who exactly is ‘‘playing politics with In fact, isn’t the United States currently tling religious prejudice, he is using the fear religion’’ here? We are aware of no instance resisting attempts by fundamentalist Mus- of it to stack the courts with conservative in which any Senate opponent of Mr. Pryor lims to assume control in a reconstituted Republicans. At the same time, he has allied has raised his religion—nor did the Com- Iraq? himself with those who traffic in their own mittee for Justice produce an example in re- Pryor’s fellow Catholics on the Senate Ju- kind of religious bigotry—a smug disdain for sponse to our inquiries. The only people rais- diciary Committee oppose how he applies his the beliefs of others, including dissenting ing Mr. Pryor’s Catholicism, rather, seem to religion, not the religion itself. Christians, non-Christians and people who be his supporters. Mr. Pryor’s nomination is This shouldn’t be hard to grasp. Religions, have no religion at all. Pryor clearly feels controversial for the simple reason that he like political parties, often have competing his religion is the better religion—the one has never shied away from taking strident ideological wings. the state should support, the one with which positions on matters of national moment: Some of my Catholic friends in town also to open a court session or to proclaim in His record is replete with the sort of oppose Pryor. They mince no words as they stone on the courthouse steps. unblinking partisanship and ideological fer- spit out their criticism of him. This is dangerous stuff. We are a plural- vor that properly should raise questions Not one had anything to do with his faith. istic society. I happen to think some reli- about potential service on the bench. We The committee, by the way, has voted gions are just plain weird. I also happen to have criticized liberal groups for smearing along party lines to send Pryor’s nomination think that Pryor cannot for a second explain President Bush’s nominees. Smearing sen- to the full Senate for a vote. By the end of through reason—reason, not faith—why his ators is no better. the summer, we may know if Pryor will get convictions are better, truer or closer to the appointment or if it will be derailed by a God’s than mine. Such matters cannot be de- [From the Huntsville Times, July 25, 2003] Democratic filibuster. bated. Historically, they have been settled at SHAM ISSUE INVOKED TO HELP PRYOR If the latter, I guess Leahy, Durbin and sword’s point. If you believe that a cow is sa- (By David Person) any others who will have opposed him will be cred, I cannot argue with you. The same called bigots by GOP extremists. But this Bogus. That’s the only word that accu- holds for the virign birth, or, for that mat- will be a false charge. The only thing they rately describes this week’s dust-up on the ter, the burning bush. You believe what you will be guilty of is disagreeing in matters of Senate Judicial Committee over the nomina- believe. It is that simple. faith. tion of Alabama Attorney General Bill Pryor Gray and by extension former president Last time I checked, the Constitution to the Federal Appeals Court. Sens. Jeff Ses- Bush ought to repudiate the ad. At its core, gives them that freedom. it is a demagogic lie. As for Pryor, by state- sions of Alabama and Orrin Hatch of Utah, both members of the committee, suggested ments and actions, he has disqualified him- [From the Palm Beach Post, July 27, 2003] that other committee members were opposed self for the federal bench. I don’t care if he’s NO DEFENSE FOR PRYOR’S CONVICTIONS a good Catholic. I do care that he’d make a to Pryor because he is a Catholic bad judge. This criticism seems part of a larger strat- (By Randy Schultz) egy. According to National Public Radio, As part of their ongoing effort to stack the [From the Washington Post, July 26, 2003] some ads have been running in Maine and federal courts, Republicans first accused Rhode Island that suggest the same thing. BEYOND THE PALE Democrats of being anti-Hispanic. Now, And according to NPR, it was Hatch who in- they’re accusing Democrats of being anti- ‘‘Some in the U.S. Senate are attacking troduced Pryor’s faith into the proceedings Catholic. Here’s the funnier part: Many of Bill Pryor for having ‘deeply held’ Catholic by asking Prior about his religious affili- the Democrats in question are Catholics. beliefs to prevent him from becoming a fed- ation during the nominee’s June hearing be- When it comes to judicial nominations, the eral judge. Don’t they know the Constitution fore the committee. Supreme Court obviously gets most of the expressly prohibits religious tests for public Methinks the GOP doth protest sus- attention. The highest court is the last word office?’’ piciously and a bit too much. Four of the on issues that prompt fund-raising letters. In So reads a wildly inappropriate ad run in nine Democrats on the committee—ranking June, for example, the justices reaffirmed newspapers in Maine and Rhode Island by a member Patrick Leahy of Vermont, Dick that race can be a consideration in college group called the Committee for Justice. Mr. Durbin of Illinois, Edward Kennedy of Massa- admissions and rules that sexual orientation Pryor is the elected attorney general of Ala- chusetts, and Joe Biden of Delaware—are can’t be a consideration when states make bama and President Bush’s choice to sit on Catholics. laws about sex between consenting adults. the U.S. Court of Appeals for the 11th Cir- That probably disqualifies them from In fact, the highest court hears only about cuit. We oppose the nomination—which the being against Pryor due to his faith, you 100 cases each year. The 13 federal appeals Senate Judiciary Committee this week re- think? courts, however, rule on nearly 30,000 cases ported on a party-line vote—and hope it will My guess: The GOP knew that Pryor’s in 2001. In practical terms, appeals court be defeated on the Senate floor. Yet some of right-wing views on Roe vs. Wade, Alabama judges set most of the law. Also, they are the Mr. Pryor’s supporters seem unwilling even Chief Justice Roy Moore’s Ten Command- Supreme Court’s farm teams. Seven of the to debate this troubling nomination on its ments monument and homosexuality would nine justices—William Rehnquist and Sandra merits. So they have hit on an alternative: be lightning rods. So instead of going the Day O’Connor are the exceptions—were pro- branding his opponents as motivated by anti- stealth route—which would have been dif- moted from the federal appeals courts. Catholic bigotry. ficult since Pryor, to his credit, has been up- So President Bush wants to put the young- The tactic is not entirely new. Republican front about his views—why not spin out the est, most conservative people he can on senators—including committee Chairman ruse that opposition to Pryor’s politics is ac- those courts. The lastest is 41-year-old Wil- Orrin Hatch (R-Utah) and Majority Leader tually opposition to his faith? liam Pryor, and you can tell how unqualified Bill Frist (R-Tenn.)—have been complaining As a political strategy, it’s clever. But dis- he is by the lengths to which Republicans for some time of what Mr. Frist has called ‘‘a cerning observers will know that the balo- are going. religious test on the confirmation of our ney-salami quotient is high. judges.’’ And Democrats during the last ad- Being anti-religion and opposing the inser- TO FLORIDA FROM ALABAMA? NO WAY ministration complained of bias in the Sen- tion of religion into the public life are as dif- Mr. Pryor is Alabama’s attorney general. ate’s treatment of women and minority ferent as being a meat-eater and vegan. The He believes that the 1973 Supreme Court did nominees—as, indeed, Republicans now com- two aren’t even remotely the same. greater harm by legalizing abortion than the plain of bias in the treatment of appeals Pryor, a smart, competent, compassionate 1857 court did by legalizing slavery. Presi- court nominee Miguel Estrada. But the new and honest elected official, has made it no dent Bush wants to put him on the 11th U.S. ad campaign ratchets up this gross kind of secret that he follows one of Alabama’s most Circuit Court of Appeals, which hears cases politics a notch, and the unwillingness of practiced political traditions: fusing faith from Florida, Georgia and Alabama. To key Republican senators to distance them- and politics. Again, to his credit, he’s above- maintain geographical balance, this vacancy selves from it is striking. board. He doesn’t pretend to be anything on the 12-member court goes to Alabama. The Committee for Justice was formed by other than what he is. That’s why many But to William Pryor? No way. There’s evi- former White House counsel C. Boyden Gray Democrats and liberals have supported him dence that he solicited political donations

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.010 S29PT1 S10098 CONGRESSIONAL RECORD — SENATE July 29, 2003 from companies that do business with his of- to pressure moderate Republican senators that Mr. Pryor’s vehement denunciations of fice. There’s evidence that he wasn’t straight into voting for Pryor’s confirmation on the Roe as bad law indicate that he is a man on about that when he testified before the judi- Senate floor. The despicable ads show a a mission, despite his protestations that he ciary committee last month. courthouse door with a sign across it saying would apply the law judiciously. The prob- So Democrats have objected, as they have ‘‘No Catholics allowed.’’ lem with Mr. Pryor isn’t his religion; it’s the when Mr. Bush has tried to put similarly Sen. RICHARD DURBIN (D–Ill.), who is fact that he is what we have called a ‘‘walk- ultra-orthodox conservatives such as Miguel Catholic and opposes the Pryor nomination, ing stereotype’’ of right-wing legal extre- Estrada and Priscilla Owen onto other ap- is infuriated that he and others were being mism. peals courts. When Democrats blocked Mr. accused of discriminating against Pryor for (We wonder, by the way, if Sen. Sessions Estrada’s nomination, Republicans whooped his religion, a false charge. Sen. PATRICK would rush to the defense of a liberal Catho- that Democrats don’t like Hispanics. Except LEAHY, the ranking Democrat on Senate Ju- lic nominee who, citing pronouncements by that Republicans blocked Hispanics whom diciary, said religion is irrelevant to consid- the pope and America’s Catholic bishops, de- President Clinton had picked for the appel- eration of a judicial candidate. ‘‘Just as nounced Supreme Court decisions upholding late bench. we’re supposed to be colorblind, we must be the constitutionality of capital punishment.) Last week, the GOP kicked up the hysteria religion-blind,’’ he said. Some Democrats on the Judiciary Com- another notch. A group run by the first The committee funding the ads is headed mittee who are themselves Roman Catholics President Bush’s chief counsel ran ads say- by the White House counsel to former Presi- objected to the Republicans’ decision to play ing that Democrats want to keep Catholics dent Bush, C. Boyden Gray, and includes law- the Catholic card. Sen. Richard Durbin face- such as Mr. Pryor off the court. The ads yers and lobbyists who represent huge to- tiously thanked Sen. Sessions, a Methodist, show a courthouse with a sign reading, bacco, insurance and investment banking and Judiciary Committee Chairman Orrin ‘‘Catholics need not apply.’’ Boston mer- corporations with cases pending before the Hatch, a Mormon, for elucidating his own chants used the same language in the 19th federal courts. Because it would be unseemly church’s doctrine for him. The ‘‘anti-Catholic’’ discussion was an un- century, saying ‘‘Irish’’ instead of ‘‘Catho- to campaign for judges who favor corpora- seemly sideshow to the committee’s deci- lics.’’ Sen. Jeff Sessions, R-Ala., parroted the tions, they have cleverly aligned with the sion, on partisan lines, to approve the Pryor ad Wednesday. ‘‘Are we saying that good Ava Maria List, a Catholic pro-life political nomination and send it to the floor. To his Catholics can’t apply?’’ action committee. discredit, Sen. Specter, who faces a conserv- NON-CATHOLICS LECTURING CATHOLICS Pryor’s record is sufficient to disqualify ative challenger in next year’s Republican How hilarious that must have sounded to him from any judgeship. In addition to his extreme views on abortion (he opposes it for primary, joined in that vote—while sug- the four out of nine Democratic committee gesting that he might vote against the nomi- members who are Catholic. As National Pub- rape victims), he favors prayer in public school classrooms and the Ten Command- nation on the floor. That straddle is the op- lic Radio reported, one of them, Sen. Dick posite of a profile in courage. If Sen. Specter Durbin, D-Ill., first said, ‘‘This is dis- ments in the Alabama courthouse. He was also the only attorney general in the nation thinks Mr. Pryor unsuitable for the court, he gusting.’’ Then he remarked, ‘‘I want to ex- should have voted no. press my gratitude to my colleagues who are to argue that the Violence Against Women members of the Church of Christ and the Act is unconstitutional. Mr. LEAHY. Mr. President, this has Methodist Church and the Church of Jesus Georgians ought to let U.S. Sens. SAXBY begun because the President renomi- Christ of Latter-Day Saints for explaining CHAMBLISS and ZELL MILLER know their op- nated a divisive and controversial ac- Catholic doctrine today.’’ position to Pryor. He is simply unfit for the tivist to another circuit court. That is Sen. Orrin Hatch, the Mormon in question, decision-making essential to a fair, inde- regrettable. The Republican leadership yelped that Democrats were opposed to any pendent and nonpartisan judiciary. in the Senate is forcing a confrontation Catholic with ‘‘deeply held’’ beliefs or any [From the Pittsburgh Post-Gazette, July 25, at this time that is neither necessary nominee who opposed abortion. Sen. Durbin nor constructive. I am sorry the White noted that the Catholic Church opposes the 2003] death penalty while Mr. Pryor supports it. PRYOR RESTRAINT: SPECTER SHOULD HAVE House has chosen to make these mat- Also, a Bush nominee who called abortion BALKED AT AN EXTREME NOMINEE ters into partisan political fights rath- ‘‘evil’’ got a seat on another appeals court With Pennsylvania’s Sen. Arlen Specter er than to work with Senate Demo- with Democratic support. trying to have it both ways, the Senate Judi- crats to fill judicial vacancies with For all the Republican fussing, President ciary Committee on Wednesday sent to the qualified consensus nominees. There Bush got more of his nominees through a floor an unacceptably extreme nominee to a are thousands of qualified Republicans Democratic Senate than President Clinton federal appeals courts—but not before some who would be endorsed by both Repub- got through a Republican Senate. Nearly silly sniping over whether the nominee, Ala- half of Mr. Clinton’s appeals court nominees licans and Democrats in this Senate. bama Attorney General William Pryor Jr., That would allow the American people got no vote in the congressional term when has been the victim of anti-Catholicism. they were nominated. The anti-Catholic canard, raised by a con- to say we are not politicizing the Now that Democrats are going all-out to servative pressure group and echoed by some courts. There would be a sigh of relief. block Mr. Bush’s worst nominees, Repub- Republican senators, would be laughable if But we do not see that. We have a licans can’t take it. They rant, and they anti-Catholicism weren’t an ugly part of historic low level of cooperation from pout. They can’t argue the facts, and they American history. Fortunately, excluding the White House. In fact, in the 29 can’t argue the law. So they are trying to people from public life because they are ‘‘pa- years I have been here, through both argue ethnicity and religion. The problem pists’’ is largely a thing of the past. Mr. Republican and Democratic adminis- isn’t their Democratic opponents. It’s their Pryor himself is proof of that: Alabama, president’s nominees. trations, I have never seen such a low where he serves as the chief law enforcement level of cooperation. officer, was historically home to Bible Belt Notwithstanding that, we have al- [From the Atlanta Journal-Constitution, anti-Catholicism. July 25, 2003] But if some of Mr. Pryor’s supporters are ready confirmed 140 of President Bush’s BRING ON THE FILIBUSTER AGAINST to be believed, opponents of his nomination judicial nominees, including some of ULTRACONSERVATIVE to the 11th U.S. Circuit Court of Appeals are the most divisive and controversial Southerners who care about the separation anti-Catholic bigots. A pro-Pryor group aired sent by any President, Republican or of church and state should hope Alabama At- television ads showing a locked courthouse Democrat. In fact, this year the Senate torney General William Pryor never sits on with a sign reading ‘‘No Catholics Need debated and voted on the nominations the 11th Circuit appellate bench, which rules Apply.’’ On the committee, Republican Sen. of three circuit court nominees who re- on appeals in cases from Alabama, Georgia Jeff Sessions referred to his fellow Alabaman ceived far more than 40 negative votes. as ‘‘this solid Catholic individual’’ and of- and Florida. The ultraconservative Pryor, If it were simply a case of filibus- who preaches that Christianity should be fered a convoluted argument for the bigotry more a part of American public life, was ap- charge. tering judges, they would not have proved by the Senate Judiciary Committee According to Sen. Sessions, Mr. Pryor’s been confirmed. For example, Jeffrey Wednesday in a 10–9 vote along partisan veiws on abortion—he called the Roe vs. Sutton’s nomination to the Sixth Cir- lines. Wade ruling an ‘‘abomination’’—are rooted cuit received the fewest number of fa- If ever there were a nomination that mer- in his church’s teaching. Therefore senators vorable votes of any confirmation in its a filibuster, it is this one. Not just be- who oppose Mr. Pryor because of his denun- almost 20 years. He got only 52 votes. cause Pryor holds views far out of the main- ciation of Roe vs. Wade are really subjecting When you have somebody who gets stream, but also because of the unprece- him to an unconstitutional ‘‘religious test’’ through the Senate with only 52 votes, dented twisting of the Constitution’s advise for office. and consent process by President Bush’s cor- Well, not really. The concern isn’t that you have to ask what kind of a signal porate pals. Misleading ads, funded by the any Catholic judge will repudiate Roe vs. that sends to the people of that circuit. deceitfully names ‘‘Committee for Justice,’’ Wade—Justice Anthony Kennedy, a Catholic, Does it send a signal to the people of have already run in Maine and Rhode Island voted to reaffirm Roe in a 1992 ruling—but that circuit that we sent somebody

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\A29JY6.013 S29PT1 July 29, 2003 CONGRESSIONAL RECORD — SENATE S10099 there who is representing all the people for holding up their nominees, we had a All we are saying is let’s have judges within that circuit, Republicans, nominee of President Bush to the Fifth who are there for all the people. It is Democrats, independents? Or are we Circuit and for a month, while we are one thing for Republicans to control sending somebody who is intended to trying to have him confirmed, he is the White House. The President was in- be a partisan ideologue representing being held up by an anonymous hold, augurated. He has that right. Repub- only one party on a court that is sup- not even a hold somebody is willing to licans control both Houses. But the posed to be independent of party poli- state for the record but an anonymous courts are supposed to be nonpartisan. tics? hold on the Republican side. Talk We have worked hard to try to bal- In fact, the administration is seeking about rope-a-dope—if we clear the ance the need to have enough judges to to force through the confirmation proc- nominees, they hold them up and we handle cases with the imperative that ess more and more extreme nominees get the blame. Interesting. they be fair judges for all people, poor in its effort to pack the courts and tilt All Democratic Senators serving on or rich, Republican or Democrat, of them sharply in a narrow ideological the Judiciary Committee voted to re- any race or religion. This has been es- direction. Instead of uniting the Amer- port his nomination favorably. All pecially difficult because a number of ican people, too many of this adminis- Democratic Senators indicated they this President’s judicial nominees have tration’s nominations divide the Amer- were prepared to proceed with the nom- records that do not demonstrate that ican people and divide the Senate. How ination. When Republicans finally lift- they will be fair and impartial. much greater service could be done to ed their hold on Judge Prado, he was The White House’s allies have the country and to the courts if the confirmed unanimously. bombarded us with all sorts of mis- President sought to unite us and not When Democrats assumed Senate leading information to try to bully us divide us? leadership in the summer of 2001, there into rolling over and rubber-stamping In fact, the unprecedented level of as- had not been a Fifth Circuit nominee these nominees. They are playing poli- sertiveness by the administration has confirmed for 7 years. There had been a tics with the judicial branch and using led to more and more confrontation lot of nominees, but they were blocked it for partisan political purposes. That with the Senate. As Republicans in the by the Republicans. Indeed, Repub- is most regrettable. Their charges of Senate abandon any effort to provide a licans blocked consideration of three prejudice are simply appalling and check or balance in the process, it falls qualified nominees to the Fifth Circuit should be rejected by all Americans as to Senate Democrats to seek to protect in the years 1995 to 2001, along with 60 the crass and base partisan politics the independence of the Federal courts other judicial nominees of President that they are. and the rights of all Americans. Clinton. The plain fact is that this Senate has In 2001, Democrats worked hard on Our Democratic leadership in the confirmed more judges at a faster pace the nomination of Judge Edith Brown Senate worked hard earlier this year to than in any of the past six and one half Clement, a conservative judge nomi- correct some of the problems that years under Republican control with a nated by President Bush, and with the arose from some of the earlier actions Democratic President. With Democrat efforts of Democrats she was con- of the Judiciary Committee. But, once cooperation, this Senate has doubled firmed. Thus, unlike the years 1995 to again, just last week, Republican mem- the number of judicial confirmations 2001 when Republicans were preventing bers of the Judiciary Committee de- and more than doubled the number of action on every single one of President cided to override the rights of the mi- circuit court confirmations of Presi- Clinton’s nominees to the Fifth Cir- nority and violate longstanding com- dent Bush’s nominees compared to how cuit, Democrats have already cooper- mittee precedent and actually vio- the Republican-controlled Senate ated in the confirmation of two of treated President Clinton’s. The Sen- lated—imagine this, the Judiciary President Bush’s nominees to that cir- ate has confirmed 40 judges already Committee violating its own rules, the cuit, including one while we were in this year. That exceeds the number of Judiciary Committee of all commit- the majority. tees, the committee that should set the In spite of the treatment by the Re- judges during all of 2000, 1999, and 1997, standards for everybody else—violated publicans of so many moderate nomi- and is more than twice as many judges these rules and precedents in order to nees in the previous administration, we as were confirmed during the entire rush to judgment even more quickly proceeded last July to the hearing on 1996 session. It is more than the aver- 1 this President’s most controversial Justice Owen and we proceed to debate age annual confirmations for the 6 ⁄2 nominees. and vote on all three of President years the Republican majority con- It was a sad day in committee, but it Bush’s Fifth Circuit nominees, despite trolled the pace of confirmations from was a devastating day in the Senate. the treatment of President Clinton’s 1995 through the first half of 2001. Thus, Yet my friends on the other side of the nominees by the Republican majority. in the first 7 months of this year, we aisle persist in their obstinate and sin- The nomination of Priscilla Owen have already exceeded the year totals gle-minded crusade to pack the Federal was rejected by the Senate Judiciary for 4 of the 6 years the Republican ma- bench with right-wing ideologues, re- Committee. She was rejected as a judi- jority controlled the pace of President gardless of what rules, what long- cial activist with extreme views. That Clinton’s judicial nominees and the Re- standing practices, what personal as- is where it should have ended. Never, publican majority’s yearly average. surances, what relationships, or what ever in our Nation’s history has a One hundred and forty lifetime con- Senators’ words are broken or ruined President renominated somebody to firmations in 2 years is better than in in the process. the same judicial vacancy after rejec- any 3-year period from 1995 though Republican partisans fail to recog- tion by the Judiciary Committee— 2000, when a Republican majority con- nize that Democrats worked diligently never. In this case, of course, they did, trolled the fate of President Clinton’s and fairly to consider President Bush’s to create a political point. judicial nominations. nominees, including nominees to the We tried very hard to work with the We have already this year confirmed same court as that to which Justice administration to fill judicial vacan- 10 judges to the Courts of Appeals. This Owen has been nominated. Two months cies, in great contrast to the fate of is more than were confirmed in all of 4 ago, on May 1, the Senate confirmed many of President Clinton’s nominees of the past 6 years when the Repub- Judge Edward Prado to the U.S. Court from Texas who were blocked and de- licans were in the majority—in 1996, of Appeals for the Fifth Circuit. Senate layed by Republicans, including 1997, 1999, and 2000. And in the 2 other Democrats cleared the nomination of Enrique Moreno, nominated to the years, the 10th circuit nominee was not Judge Edward Prado to the United Fifth Circuit Court of Appeals, who confirmed until much later in the year. States Court of Appeals for the Fifth never got a hearing or a vote; Judge We have now confirmed 27 circuit court Circuit without delay. Jorge Rangel, nominated to the Fifth judges nominated by President Bush. The irony is, we cleared Judge Prado Circuit Court of Appeals, who never got This is more circuit court judges con- immediately, but he was held up by one a hearing and never got a vote; and firmed at this point in his presidency anonymous hold—and it came from the Judge Hilda Tagle, whose nomination than for his father, President Clinton, Republican side. At the same time the was delayed nearly 2 years for no good or President Reagan at the same point. White House is excoriating Democrats reason. We have made tremendous progress and

VerDate jul 14 2003 00:04 Jul 30, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G29JY6.043 S29PT1 S10100 CONGRESSIONAL RECORD — SENATE July 29, 2003 I want to thank, in particular, the and campaign rhetoric and work with Stevens Talent Voinovich Democratic members of the Judiciary us to ensure the independence and im- Sununu Thomas Warner Committee for their hard work in this partiality of the Federal judiciary so NAYS—43 regard. These achievements have not that the American people, all of the Akaka Dodd Levin been easy. The Senate is making some American people, can go into every Baucus Dorgan Lincoln progress. More has been achieved than Federal courtroom across the country Bayh Durbin Mikulski Biden Feingold Murray Republicans are willing to acknowl- and know that they will receive a fair Bingaman Feinstein Nelson (FL) edge. hearing and justice under the law. It is Boxer Harkin Pryor So, as we repeat our vote on this time for Senate Republicans to stand Breaux Hollings Reed Byrd Inouye Reid nomination today and Republicans up for the Senate’s role as a check on Cantwell Jeffords Rockefeller continue their drumbeat of unfair po- the unfettered power of the President Carper Johnson Sarbanes Clinton Kennedy litical recriminations, we should all ac- to pack the courts and for fairness. Schumer knowledge how far we have come from Conrad Kohl CLOTURE MOTION Corzine Landrieu Stabenow the 110 vacancies that Democrats in- Wyden The PRESIDING OFFICER. Under Daschle Lautenberg herited from the Republican majority Dayton Leahy the previous order and pursuant to rule in the summer of 2001. In addition to XXII, the Chair lays before the Senate NOT VOTING—4 more confirmations and fewer vacan- the pending cloture motion. Edwards Kerry cies, we have more Federal judges serv- Graham (FL) Lieberman ing than ever before. The clerk will report the motion to Under a Republican majority, circuit invoke cloture. The PRESIDING OFFICER. On this vacancies more than doubled and over- The assistant legislative clerk read vote, the yeas are 53, the nays are 43. all vacancies increased dramatically. as follows: Three-fifths of the Senators duly cho- sen and sworn not having voted in the Despite the fact that close to 90 addi- CLOTURE MOTION affirmative, the motion is rejected. tional vacancies have arisen since the We the undersigned Senators, in accord- summer of 2001, we have worked hard ance with the provisions of Rule XXII of the f and cut those vacancies from 110 to less Standing Rules of the Senate, do hereby RECESS than 60. Earlier this year, until new move to bring to a close debate on Executive judgeships were authorized, the va- Calendar No. 86, the nomination of Priscilla The PRESIDING OFFICER. Under cancy rate on the Federal courts was R. Owen of Texas to be United States Circuit the previous order, the hour of 12:15 at the lowest number in 13 years. Even Judge for the Fifth Circuit. p.m. having arrived, the Senate stands Bill Frist, Orrin Hatch, John Cornyn, Mi- in recess until the hour of 2:15 p.m. with the 15 new judgeships effective chael B. Enzi, Jim Talent, Judd Gregg, this month, the vacancy rate is now Thereupon, the Senate, at 12:52 p.m., Jeff Sessions, Ben Nighthorse Camp- recessed until 2:15 p.m. and reassem- well-below where Senator HATCH inher- bell, Craig Thomas, Chuck Grassley, ited it, and well-below the rate Senator Chuck Hagel, Thad Cochran, Richard bled when called to order by the Pre- HATCH called ‘‘full-employment.’’ Shelby, Wayne Allard, Elizabeth Dole, siding Officer (Mr. VOINOVICH). There are more full-time Federal Conrad Burns, and Larry E. Craig. f judges on the bench today than at any The PRESIDING OFFICER. By unan- ENERGY POLICY ACT OF 2003— time in U.S. history, in the last 214 imous consent, the mandatory quorum Continued years. And, if you add in the senior call has been waived. The question is, judges, there are more than 1,000 Fed- Is it the sense of the Senate that de- Mr. CRAIG. Mr. President, I suggest eral judges sitting on the Federal bate on the nomination of Priscilla the absence of a quorum. courts. Richmond Owen, of Texas, to be United The PRESIDING OFFICER. The With a modicum of cooperation from States Circuit Judge for the Fifth Cir- clerk will call the roll. the other end of Pennsylvania Avenue cuit shall be brought to a close? The The assistant legislative clerk pro- and the other side of the aisle we could yeas and nays are mandatory under the ceeded to call the roll. achieve so much more. As it is, we have rule. Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for worked hard to repair the damage to The clerk will call the roll. the quorum call be rescinded. the confirmation process and achieved The assistant legislative clerk called significant results. Republicans seem The PRESIDING OFFICER. Without the roll. objection, it is so ordered. intent on inflicting more damage, to Mr. REID. I announce that the Sen- the process, to the Senate, and to the Mr. FEINGOLD. Mr. President, I ask ator from North Carolina (Mr. ED- independence of the Federal courts. unanimous consent to speak as if in WARDS), the Senator from Florida (Mr. Unfortunately, the nomination of morning business. GRAHAM) the Senator from Massachu- Justice Owen is a nomination that The PRESIDING OFFICER. Without setts (Mr. KERRY), and the Senator should never have been remade. It was objection, it is so ordered. from Connecticut (Mr. LIEBERMAN) are rejected by the Judiciary Committee The Senator from Wisconsin is recog- necessarily absent. last year after a fair hearing and exten- nized. sive and thoughtful substantive consid- I further announce that, if present Mr. FEINGOLD. I thank the Chair. eration. The White House would rather and voting, the Senator from Massa- (The remarks of Mr. FEINGOLD per- play politics with judicial nominations chusetts (Mr. KERRY) would vote taining to the introduction of S. 1480 than solve problems. This unprece- ‘‘nay.’’ are located in today’s RECORD under dented renomination of a person voted The yeas and nays resulted—yeas 53, ‘‘Statements on Introduced Bills and down by the Senate Judiciary Com- nays 43, as follows: Joint Resolutions.’’) mittee is proof of that. That Senate [Rollcall Vote No. 308 Ex.] Mr. FEINGOLD. Mr. President, I sug- Republicans are continuing to press YEAS—53 gest the absence of a quorum. this matter knowing the outcome of Alexander Crapo Lott The PRESIDING OFFICER. The this vote shows what a charade this has Allard DeWine Lugar clerk will call the roll. become. Allen Dole McCain The assistant legislative clerk pro- This nomination is extreme. This Bennett Domenici McConnell ceeded to call the roll. Bond Ensign nominee has shown herself to be a judi- Miller Mr. REID. Mr. President, I ask unan- Brownback Enzi Murkowski cial activist and an extremist even on Bunning Fitzgerald Nelson (NE) imous consent the order for the the very conservative Texas Supreme Burns Frist Nickles quorum call be rescinded. Campbell Graham (SC) Roberts Court where her conservative col- Chafee Grassley The PRESIDING OFFICER. Without Santorum leagues have criticized her judging as Chambliss Gregg objection, it is so ordered. Sessions Cochran Hagel Mr. REID. Mr. President, there is an activist again and again. Shelby The nomination process starts with Coleman Hatch order floating around here on the floor Collins Hutchison Smith the President. It is high time for the Cornyn Inhofe Snowe that sets forth about 7 hours of debate White House to stop the partisanship Craig Kyl Specter on these two trade agreements, the

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