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Vol. 151 WASHINGTON, WEDNESDAY, MAY 18, 2005 No. 66 Senate The Senate met at 9:30 a.m. and was U.S. SENATE, EXECUTIVE SESSION called to order by the Honorable SAM PRESIDENT PRO TEMPORE, BROWNBACK, a Senator from the State Washington, DC, May 18, 2005. of Kansas. To the Senate: NOMINATION OF PRISCILLA Under the provisions of rule I, paragraph 3, RICHMAN OWEN TO BE UNITED PRAYER of the Standing Rules of the Senate, I hereby STATES CIRCUIT JUDGE FOR appoint the Honorable SAM BROWNBACK, a THE FIFTH CIRCUIT The Chaplain, Dr. Barry C. Black, of- Senator from the State of Kansas, to per- fered the following prayer: form the duties of the Chair. Mr. FRIST. Mr. President, I ask Let us pray. TED STEVENS, unanimous consent that the Senate Eternal Spirit, the fountain of light President pro tempore. now proceed to executive session to and wisdom, without Whom nothing is Mr. BROWNBACK thereupon as- consider calendar No. 71, the nomina- holy and nothing prevails, You have sumed the Chair as Acting President tion of Priscilla Owen to be United challenged us to let our lights shine, so pro tempore. States Circuit Judge for the Fifth Cir- that people can see our good works and cuit; provided further that the first glorify Your Name. f hour of debate, from 9:45 to 10:45, be Today, shine the light of Your pres- RESERVATION OF LEADER TIME under the control of the majority lead- ence through our Senators and illu- er or his designee; further that the minate our Nation and world. Permit The ACTING PRESIDENT pro tem- next hour, from 10:45 to 11:45, be under this light to be a beacon of hope for pore. Under the previous order, the the control of the Democratic leader or emerging democracies and a gleam of leadership time is reserved. his designee; and the time for debate encouragement for freedom fighters. f rotate in a similar manner every 60 Use this light to provide a model of pa- minutes; provided further that the Sen- tience and peace to a world searching RECOGNITION OF THE MAJORITY ate recess from 3:45 to 4:45 to accommo- for direction. LEADER date an all-Senators briefing; provided Lord, let this brightness bring hope The ACTING PRESIDENT pro tem- further that the time from 5:45 to 7:15 where there is despair, unity where pore. The majority leader is recog- be under the control of the Democratic there is division, and joy where there is nized. leader and the time from 7:15 to 7:45 be sadness. Remind each of us that it is under the control of the majority lead- better to light one candle than to curse f er or his designee. The ACTING PRESIDENT pro tem- the darkness. We pray in the Name of SCHEDULE the One Who is the Light of the World. pore. Is there objection? Amen. Mr. FRIST. Mr. President, today, we Mr. REID. Mr. President, reserving will begin debate on one of the judicial the right to object, first of all, I would f nominations pending on the Executive ask the distinguished majority leader PLEDGE OF ALLEGIANCE Calendar. In a moment, we will enter to amend his unanimous consent re- into a consent agreement to begin the quest to have the time begin when we The Honorable SAM BROWNBACK led consideration of Priscilla Owen to be complete our statements today. We the Pledge of Allegiance, as follows: United States Circuit Judge for the might not be at a quarter of the hour, I pledge allegiance to the Flag of the Fifth Circuit. but whenever that would be we would United States of America, and to the Repub- I have consulted with the Democratic rotate on an hourly basis. lic for which it stands, one nation under God, leader, and we hope to have an orderly Mr. FRIST. Mr. President, I have no indivisible, with liberty and justice for all. debate for Members to come to the objection. f floor to make their statements. To fa- The ACTING PRESIDENT pro tem- cilitate that process, we will rotate pore. Is there objection to the modified APPOINTMENT OF ACTING back and forth between the aisle every request? PRESIDENT PRO TEMPORE 60 minutes. I will have a short state- Mr. REID. Mr. President, I have an- The PRESIDING OFFICER. The ment, the Democratic leader will have other reservation. clerk will please read a communication a statement following mine, and then The ACTING PRESIDENT pro tem- to the Senate from the President pro we will begin the rotation back and pore. The Democratic leader. tempore (Mr. STEVENS). forth. I look forward to this debate, Mr. REID. Mr. President, I would ask The legislative clerk read the fol- and I hope all Members will take the the distinguished majority leader lowing letter: opportunity to participate. would we not be better off moving to

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.000 S18PT1 S5374 CONGRESSIONAL RECORD — SENATE May 18, 2005 get rid of—I don’t mean that in a pejo- The ACTING PRESIDENT pro tem- very difficult problems, and it sur- rative sense—but clear the calendar of pore. The majority leader. prised everyone. four, at this stage, noncontroversial Mr. FRIST. Mr. President, I would be The distinguished Senator from Mas- judges? We could move to Thomas Grif- happy to look at the letter and request sachusetts and now retired Senator fith, who is on the calendar. We could of the administration, what requests Phil Gramm were the people who saved move to discharge and consider the are made in the letter, and see what the day—two people who battled ideo- Michigan Circuit Court nominees, Grif- their response would be. logically for a combined total of 40 or fin, McKeague, and Neilson. We could In the meantime, Mr. President, 50 years. Basically, because of them, we get time agreements on all those. We what I would like to do is proceed with resolved an extremely difficult issue as would have four circuit judges. They Priscilla Owen, who is a qualified to how the impeachment would be han- would be able to go to work within a nominee, who is a nominee we are dled. few days—actually go to work. Other- going to have a lot of debate on back So I would ask my distinguished wise, they are going to be waiting until and forth, to determine whether or not friend, the Republican leader, to con- we go through all of this. It would she is out of the mainstream, as people sider joining with me and having, in seem to me that would be the better say. We will go through regular order the next day or so—hopefully today— thing to do. So I would ask the distin- and take these nominees the President have all of us retire to the Chamber guished majority leader if he would has submitted to the Judiciary Com- and sit down and talk through this agree that we could move to these, mittee, who have been fully evaluated issue and see if there is a way we can with reasonable time agreements, prior in the Judiciary Committee, and who resolve this short of this so-called nu- to moving to Priscilla Owen? now are on the Executive Calendar clear option. I think it would be good The ACTING PRESIDENT pro tem- ready for business. for the body. I think it would be good pore. The majority leader. So we are going to begin that debate for the American public to see we are Mr. FRIST. Mr. President, through shortly. able to sit down in the same room and the Chair, we have given careful con- Mr. KENNEDY. Well, reserving my work things out. I am not sure that we sideration of which would be the most rights further, Mr. President, as I un- could, but I think it would be worthy of appropriate person to begin with. It is derstand, there is a new nominee who our efforts. Nothing ventured, nothing Priscilla Owen. So we will proceed with is on the Executive Calendar, Brian gained. I would ask my friend if he Priscilla Owen. There are five people Sandoval of Nevada, who has general would consider following the sugges- on the Executive Calendar, and our in- broad support. Is he not a nominee we tion of Senator BENNETT of Utah. tention would be to debate these nomi- could confirm in a matter of moments The ACTING PRESIDENT pro tem- nees, one by one; and hopefully, as here? We could at least take care of pore. The majority leader. other nominees come out of the Judici- that vacancy. Mr. FRIST. Mr. President, as always, ary Committee, to take them up as Mr. FRIST. Mr. President, I do not we will take into consideration all sug- well. So we will be proceeding with believe he is on the Executive Cal- gestions and be happy to talk to the Priscilla Owen. endar. To the best of my knowledge—at leadership on both sides of the aisle as Mr. REID. Mr. President, one further least he is not on the Executive Cal- to whether that suggestion is the most statement. endar as printed today. appropriate way. We have engaged in The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- negotiations and attempts to satisfy pore. The Democratic leader. pore. Is there objection? both sides over the last 4 months, 5 Mr. REID. Mr. President, in that we The Senator from Vermont. months, since these unprecedented fili- have started this process, my friend, Mr. LEAHY. Mr. President, reserving busters came before this body. After the distinguished majority leader, the right to object, and I shall not, but 214 years of a threshold of 50 votes, all should be advised we will not agree to I would also remind everybody that the of a sudden, in the last Congress, it was committees meeting during the time distinguished Democratic leader has radically changed by the other side to we are doing debate on Priscilla Owen. said he had no objection to going to— become 60 votes, denying the sort of The ACTING PRESIDENT pro tem- this is a court of appeals judge—Thom- people—a little bit akin to what we pore. Is there objection to the request, as Griffith, of Utah, to be U.S. circuit just heard over the last few minutes, as modified? judge for the District of Columbia cir- where I am trying to move to a quali- Mr. KENNEDY. Reserving the right cuit. While Mr. Griffith is one I would fied nominee, Priscilla Owen, and we to object, Mr. President. vote against, for reasons I have already hear these attempts to delay, even The ACTING PRESIDENT pro tem- stated, from the nose count I have, he right now, and to sidetrack and con- pore. The Senator from Massachusetts. would easily be confirmed. sider somebody else. That is the chal- Mr. KENNEDY. Mr. President, I was I would also note that I have total lenge. wondering if our leader is familiar with agreement with the distinguished sen- That is why we are on the floor of the the letter which members of our Judi- ior Senator from Nevada, who said he Senate, with the light of day, with the ciary Committee sent to the chairman would be willing to do this in a rel- American people watching at this of our committee that points out there atively short time. I just mention that point, to take it to the body of the Sen- are now some 30 vacancies on the Fed- because I would not want anybody to ate and ask that fundamental question: eral bench for which the President has think this is a person being held up, Is Priscilla Owen out of the main- not yet sent a nominee to the Senate. even though some of us object to him. stream? Eighty-four percent of Texans If he would work with Senators of both The ACTING PRESIDENT pro tem- think she is in the mainstream. Are 84 parties to identify qualified, consensus pore. Is there objection? percent of Texans out of the main- nominees for each of these spots, the The Democratic leader. stream? If the answer to that question vacancy numbers on our courts could Mr. REID. Mr. President, I would is, no, they are not out of the main- be lowered even further. However, as also like to make a suggestion. The stream, then all we want is a vote, an much as we have offered to work with idea is not original with me. I wish it up-or-down vote—accept, reject; con- him finding these nominees and getting were. But we had a meeting last night. firm, yes, no. That is all we are asking them confirmed, there has been abso- The distinguished majority leader was for. lutely no response. present at that meeting. My friend, the We do not want the constitutional I am just wondering whether, as we junior Senator from Utah, suggested option. We did not ask for the constitu- are addressing the issues of one nomi- that what might be good for this body tional option. What has happened is be- nee—and the issue that is before the is the same thing that happened when cause of the other side of the aisle, in Senate is filling vacancies on the we had the difficult issue here 61⁄2 years shattering the Senate tradition for 214 courts—I am just interested if the ma- ago dealing with the impeachment of a years, where the filibuster was never jority leader has any information from President of the United States. At that even contemplated, now it is being the administration as to when we are time, we retired to the Old Senate used on a routine basis. One out of going to be able to fill these other Chambers. No staff was there, just 100 every four of the President’s nominees nominations. Senators. We worked through some who have come over for the circuit

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.002 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5375 courts are filibustered, blocked, not right to object. He must object or business. They will hold back our agen- given that courtesy of a vote, when grant the request. da to move America forward. An en- that is our responsibility, to give ad- Is there objection? Without objec- ergy strategy to reduce our dependence vice and consent. tion, it is so ordered. on foreign oil, held back; an end to the So in response to my good friend, the The clerk will report the nominee. medical lawsuit abuse to reduce the Democratic leader, yes, as proposals The legislative clerk read the nomi- cost of health care, held back; a sim- come forward, we will consider all. nation of Priscilla Richman Owen, of pler, fairer Tax Code to create jobs and Both leaders spent 50 minutes or so, as Texas, to be United States Circuit to encourage economic growth, held the papers reported, today talking with Judge for the Fifth Circuit. back. A minority of Senators will hold people who are trying to come to some The ACTING PRESIDENT pro tem- America back just because a majority reasonable conclusion. We will con- pore. The first hour of debate is now of Senators, a majority of people in tinue to do that. So I would be happy under the control of the majority lead- this body want to do what most Ameri- to consider another idea. er or his designee. cans of all things expect us to do, and I think what is important now, The majority leader. that is to vote. though, is to come to the floor of the Mr. FRIST. Mr. President, I rise The minority should allow Senators Senate. Let’s shed light on this. Let’s today as the leader of majority party to fulfill our constitutional responsi- do take this. Yes, it is an inside-the- of the Senate, but I do not rise for bility of giving advice and consent and Senate decision, and we make our own party. I rise for principle. I rise for the vote. And they should allow America traditions and rules, but it is impor- principle that judicial nominees with to move forward. tant for the American people to see is the support of the majority of Senators The principles that endured for 214 Priscilla Owen, is Janice Rogers Brown deserve up-or-down votes on this floor. years do not endure because they ap- deserving of a vote, yes or no, on the Debate the nominee for 5 hours, debate peal to one party or the other. They floor of the Senate. the nominee for 50 hours, vote for the endure because they serve a vital pur- So I would recommend we continue nominee, vote against the nominee, pose. In this case, the principle of an discussions and let’s proceed with this confirm the nominee, reject the nomi- up-or-down vote ensures the President nominee, continue the debate over the nee, but in the end vote. can fulfill his constitutional duty to course of the day, or it may be 2 days, Senators, colleagues, let’s do our appoint judges. and answer this question: Is she quali- duty and vote. Judicial nominees de- Let me read a passage in the Con- fied? Does she deserve an up-or-down serve an up-or-down vote. stitution. vote? In this debate we will discuss two of The President shall have power, by and The ACTING PRESIDENT pro tem- the President’s judicial nominees. with the advice and consent of the Senate, to pore. Is there objection to the request? These outstanding nominees, Priscilla make Treaties, provided two-thirds of the Senate present concur, and he shall nomi- The Democratic leader. Owen and Janice Rogers Brown, had Mr. REID. Mr. President, I know we nate, and by and with the advice and consent the support of a majority of Senators need to move on. I want to briefly say of the Senate, shall appoint Ambassadors, in the last Congress, but they were de- we are following the rules. We believe other public ministers and consuls, judges of nied, they were denied up or down the Supreme court, and all other officers of in following the rules, not breaking the votes. I expect we will also discuss such the United States. rules. And while it is good to talk consequential topics as the meaning of The Framers wrote in the Constitu- about this up-or-down vote, the fact is the Constitution and Senate rules and tion that two-thirds of Senators must if we move forward as contemplated by approve treaties, but they specifically the majority, it is moving toward procedures. No doubt this will be a spirited debate, as it should be. And I did not require the same number of breaking the rules to change the rules. votes to confirm judicial nominees. That is improper. It will change the also hope it will be a decisive debate. So let us begin. After much debate and compromise, Senate forever and that is not good. the Framers concluded that the Presi- Mr. KENNEDY. Mr. President, fur- In the last Congress, for the first time in history a minority of Senators dent should have power to appoint and ther reserving the right to object, I the Senate should confirm or reject want to support our Democratic leader. obstructed the principle of a fair up-or- down vote on judicial nominees. That nominees by a simple majority vote. I believe the record now is we have ap- For 214 years Republican and Demo- proved 96 percent of the judicial nomi- was unprecedented. Never in 214 years of Senate history had a judicial nomi- cratic minorities alike restrained nees of this administration. And as we themselves, they used restraint, they know in terms of reading the Constitu- nee with majority support been denied an up-or-down vote. Yet it happened— abided by the Framers’ design and Sen- tional Convention our Founding Fa- ate tradition and gave nominees thers expected this was going to be, we again, and again, and again, and again, and again, and again. A minority of brought to this floor simple majority were going to exercise our own inde- up-or-down votes. This was the prac- pendent best judgment on nominees. Senators denied an up-or-down vote not just once to one nominee but 18 tice. And if I could ask the majority leader, Then came the last Congress. With times on 10 individual nominees. These is this the same Priscilla Owen which its obstruction the minority set a new men and women, these nominees are our current Attorney General sug- precedent—60 votes before the Senate among the best legal minds in America gested ‘‘unconscionable acts of judicial could proceed to an up-or-down vote on and they all would be serving on the activism?’’ That is, our current Attor- a judicial nominee. For 214 years the Federal bench today. All they needed ney General has accused this nominee threshold for advice and consent in the was a vote. But they were not given the of that kind of activity. Is this the Senate was 50 votes, a majority. In the same Priscilla Owen who is now being courtesy of an up-or-down vote on the last Congress—— recommended, about which our current floor of the Senate. The minority de- Mr. SCHUMER. Would my colleague Attorney General made that comment nied them a vote and set a new prece- yield for a question. not once, not twice, not three times, dent. The minority in the last Congress Mr. FRIST. Mr. President, I would but 11 times? rewrote the rules of advice and con- like to proceed with my statement and Mr. MCCONNELL. Regular order, Mr. sent. They unilaterally increased the would be happy to yield for a comment. President. threshold for confirmation from 50 For 214 years the threshold for advice The ACTING PRESIDENT pro tem- votes, where it had been throughout and consent in the Senate was 50 votes. pore. Regular order has been called for. history, to 60 votes. In the last Congress the minority party The Senator must either object or per- Now some in the minority say they radically increased that threshold to mit the request to move forward. will harden the precedent and obstruct 60, and that is wrong, and we will re- Is there objection? Without objec- judicial nominees in this Congress. And store the tradition. tion, it is so ordered. if they are not allowed to do so, if the This unprecedented threshold gave Mr. KENNEDY. Reserving the right Senate returns to the way it worked the minority a virtual veto, in effect to object, I would not object—— for 214 years, they will retaliate. They control, over the judicial appointments The ACTING PRESIDENT pro tem- will obstruct the Senate’s other busi- of the President. The minority de- pore. The Senator cannot reserve the ness. They will obstruct the people’s stroyed 214 years of Senate tradition,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.003 S18PT1 S5376 CONGRESSIONAL RECORD — SENATE May 18, 2005 defied the clear intent of the Constitu- On May 9, 2001, President Bush nomi- Carter’s nominees. Robert Byrd’s tion, and undermined the Democratic nated Priscilla Owen to the Fifth Cir- Democratic minority did not deny Re- will of the American people. You can’t cuit Court of Appeals. To this day, publican Ronald Reagan’s nominees. get much more radical than that. more than 4 years later, even though a Bob Dole’s Republican minority did not This new precedent cannot be al- majority of Senators in this body sup- deny Democrat Bill Clinton’s nomi- lowed to stand in this Congress. We port her, she has been denied an up-or- nees. These minorities showed re- must restore the 214-year-old principle down vote. That is just plain wrong, straint. They respected the appoint- that every judicial nominee with ma- and it is unfair. Priscilla Owen de- ments process. They practiced the fine jority support deserves an up-or-down serves a vote. but fragile art of political civility. vote. Now let me tell you about Janice Sure they disagreed with the majority Why? First, the American people Rogers Brown. She is the daughter of at times, but they nonetheless allowed elect their Senators for a reason. It is an Alabama sharecropper. She was edu- up-or-down votes to occur. to represent them. And they expect us cated in segregated schools and worked The Senate must do what is right. We to do our job. The Senate is a delibera- her way through college and law must do what is fair. We must do the tive body. We are a proudly delibera- school. She went on to serve in promi- job we were elected to do and took an tive body. But we also have certain re- nent positions in California State gov- oath to do. We must give judicial nomi- sponsibilities which include giving ad- ernment. Today Janice Rogers Brown nees the up-or-down votes they device and consent on the President’s ju- is a justice on the California Supreme serve. Let us debate, and let Senators dicial nominations. When a judicial Court and she was retained as a justice be heard. Let the Senate decide, and let nominee comes to this floor and has by the people of California with 76 per- this body rise on principle and do its majority support but is denied a simple cent of the vote. duty and vote. up-or-down vote, Senators are simply On July 25, 2003, President Bush nom- The PRESIDING OFFICER (Mr. not doing their job. And the sad fact is inated Justice Brown for the U.S. DEMINT). The Senator from New York. we did not do our job in the last Con- Court of appeals. To this day, nearly 2 Mr. SCHUMER. Will my colleague gress. The minority’s judicial obstruc- years later, even though a majority of from Tennessee yield for a question? tion has saddled President Bush with Senators support her, she has been de- Mr. FRIST. Mr. President, I would be the lowest confirmation rate for ap- nied an up-or-down vote on the floor of happy to. peals court nominees of any modern the Senate. Mr. SCHUMER. Mr. President, when President. This is disgraceful. We owe That is wrong. That is unfair. Janice I came on the floor, my colleague was it to the people we serve and to the Rogers Brown deserves a vote. talking about the 214 years of tradition Senate as an institution to do our job. Janice Rogers Brown can get 76 per- of no filibusters. Isn’t it correct that We should vote up or down on judicial cent of the vote in California, Priscilla on March 8 of 2000, my friend from Ten- nominees. Owen can get 84 percent of the vote in nessee voted to uphold the filibuster of Second, the judicial branch also has a Texas, but neither can get a vote here Richard Paez? job to do and it needs judges to do it. on the floor of the Senate. Why? The Mr. FRIST. Mr. President, in re- Right now there are 46 vacancies on minority says they are out of the sponse, the Paez nomination—we will the Federal bench. That includes 17 va- mainstream. Are 76 percent of Califor- come back and discuss it further. Actu- cancies on appeals courts. But it is not nians and 84 percent of Texans out of just the vacancies. Qualified nominees ally, I would like to come back to the the mainstream? Denying Janice Rog- who can fill those seats can’t get up-or- floor and discuss it. It really brings to, ers Brown and Priscilla Owen a vote is down votes to be confirmed in the Sen- I believe, a point what is the issue. The what is out of the mainstream. Justice ate. issue is that we have leadership-led Let me give you an example. Four of Brown and Justice Owen deserve bet- partisan filibusters that have ob- the 17 vacancies on Federal appeals ter. They deserve to be treated fairly. structed not 1 nominee but 2, 3, 4, 5, 6, courts are in the region that serves my They deserve the courtesy of a vote. 7, 8, 9, 10 in a routine way. The issue is home State of Tennessee—4 of the 17 The consequences of this debate are not cloture votes per se; it is the par- vacancies. Those nominees have been not lost on any Member of this body. tisan leadership-led use of the cloture waiting a combined 13 years for a sim- Soon we, 100 Senators, will decide the vote to kill, to defeat, to assassinate ple up-or-down vote on this floor—13 question at hand: Should we allow a these nominees. That is the difference. years they have been waiting. Either minority of Senators to deny votes on Cloture has been used in the past on confirm these nominees or reject the judicial nominees who have the support this floor to postpone, to get more in- nominees but don’t leave them hang- of a majority of this body or should we formation, to ask further questions. ing. Don’t leave our courts hanging. restore the 214-year practice of voting But each and every time, the nominee, Don’t leave the country hanging. If up or down on all judicial nominees including Paez, got an up-or-down vote nominees are rejected, fine, that is who come to this floor? on the floor of the Senate where all 100 fair. At least rejection represents a I have to believe the Senate will Senators could vote yes or no, confirm vote. But give nominees the courtesy, make the right choice. We will choose or reject. the courtesy of a vote. the Constitution over obstruction. We Paez got an up-or-down vote. That is Third, judicial nominees deserve up- will choose principle over politics. We all that we ask on the floor, that Pris- or-down votes because they deserve to will choose votes over vacillation. And cilla Owen, that Justice Brown get a be treated fairly. Let me tell you about when we do, the Senate will be the bet- simple vote, approved, disapproved, the nominees we are about to consider, ter for it. The Senate will be, as Daniel confirmed, rejected. Priscilla Owen and Janice Rogers Webster once described it: I yield the floor. Brown. Priscilla Owen has been a Texas . . . a body to which the country looks, with The PRESIDING OFFICER. The Supreme Court Justice for the last 10 confidence, for wise, moderate, patriotic, and Democratic leader is recognized. years. She was reelected with 84 per- healing counsels. Mr. REID. Mr. President, the major- cent of the vote in 2000. Her service To realize this vision, we don’t need ity leader said that during the Dole won praise from Members of both par- to look as far back as the age of Web- years, Clinton nominees were treated ties. Former Justice Raul Gonzalez, a ster or Clay or Calhoun. All we must do fairly. Sixty-nine Clinton nominees Democrat, said: is look at the recent past and take in- were not even given the decency of a I found her to be apolitical, extremely spiration from the era of Baker, Byrd, hearing. They never saw the light of bright, diligent in her work and of the high- and Dole. For 70 percent of the 20th day. We have participated in hearings. est integrity. I recommend her for confirma- century, the same party controlled the The matters have come to the floor. tion without reservation. White House and the Senate. Yet dur- For my friend to say that Clinton was Justice Owen has also been a leader ing that period, no minority ever de- treated fairly under the Dole years is for providing free legal service for the nied a judicial nominee with majority simply untrue. poor and she has worked to soften the support an up-or-down vote on this Everyone should know that Priscilla impact of legal proceedings on children floor. Howard Baker’s Republican mi- Owen and Janice Rogers Brown have of divorcing parents. nority didn’t deny Democrat Jimmy had votes right here on the Senate

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.005 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5377 floor in compliance with the rules of ing at McDonald’s or in a plastics fac- This administration is unwilling to the Senate. They have had votes. It is tory in Fallon, NV, that they are not play by the rules. It takes 67 votes to as if we are retreating 50, 60 years. entitled to the minimum wage. That is change a Senate rule when there is a When you keep telling these falsehoods Janice Rogers Brown, who has had a filibuster in progress. But we are going enough, people start believing them. vote on the Senate floor. to have CHENEY, the Vice President, The American people are not believing Yesterday, I spoke about a statement come sit where the Presiding Officer is this. These two women about whom my the majority leader made calling the sitting now and say that it only takes friend speaks have had votes. filibuster a procedural gimmick. 51. This great paragon of virtue is My friend from Massachusetts asked Again, going to the dictionary, it de- going to say it only takes a simple ma- a question. The President’s lawyer, fines gimmick as ‘‘an ingenious new jority. We need 60 votes to end a fili- Alberto Gonzales, and now the Attor- scheme or angle.’’ The filibuster is not buster against legislative business. ney General of the United States and a scheme, and it certainly is not new. It doesn’t take a legal scholar to previously a member of the Texas Su- The filibuster is far from a procedural know this. We have all read in the preme Court, said on multiple occa- gimmick. It is part of the fabric of this newspapers that this is a slippery sions that Priscilla Owen’s activism institution we call the Senate. It was slope. Once you have a rule changed— was unconscionable. Alberto Gonzales well known in colonial legislatures, be- illegally—then you can do it again. is a smart man. He knows what the fore we became a country, and it is an There is precedent on the books. In the word means, but in case someone integral part of our country’s 214-year future, it will be changed. If we decide history. doesn’t, let me read what it does mean. we don’t like Bolton—the man who was The first filibuster in the Congress Unconscionable: Shockingly unjust and happened in 1790. It was used by law- chasing people down the hall throwing unscrupulous. That is what the Attor- makers from Virginia and South Caro- papers at them—to be a representative ney General of the United States of lina who were trying to prevent Phila- of the U.N., if we decide we want to fili- America says about Priscilla Owen. delphia from hosting the first Con- buster him, we can change the rules to Mainstream? I think not. Shockingly gress. Since then, the filibuster has say he is the President’s man and is en- unjust or unscrupulous—that is what been employed hundreds and hundreds titled to a simple majority vote. You Priscilla Owen is in the mind of the At- and hundreds of times. It has been em- cannot do that. It may be an issue of torney General of the United States. ployed on legislative matters. It has importance to the President or the ma- I ask unanimous consent that my been employed on procedural matters jority leader on a legislative matter, so time be charged against the Demo- relating to the President’s nominations just change the rule. The precedent crats’ time when we take that, approxi- for Cabinet and sub-Cabinet posts. And will have been set. A simple majority is mately an hour from now. it has been used on judges for all those all that is necessary. The PRESIDING OFFICER. Without years. One scholar estimates that 20 A conversation between Thomas Jef- objection, it is so ordered. percent of the judges nominated by ferson and George Washington I believe Mr. REID. There will be a lot more Presidents have fallen by the wayside, describes the Senate and our Founding said about Priscilla Owen, but I think most of them as a result of filibusters. Fathers’ vision of this body in which a fairly good indication of the kind of Senators have used the filibuster to we are so fortunate to serve. Jefferson judge she is should come from the At- stand up to popular Presidents, to asked Washington: torney General of the United States block legislation and, yes, even, as I What is the purpose of the Senate? Wash- who says that her unconscionable ac- have stated, to stall executive nomi- ington responded with a question of his own: tivism is replete through her opinions. nees. The roots of the filibuster are Why did you pour that coffee into your I assume he knows what it means. I am found in the Constitution and in our saucer? confident he does. He is a brilliant own rules. Jefferson replied: man. ‘‘Shockingly unjust, unscrupu- In establishing each House of Con- To cool it. lous’’—those are not the words of the gress, Article I, section 5 of the Con- Senate Judiciary Committee, not some stitution states that: To which Washington said: special interest group; those are the Each House may determine the rules. Even so, we pour legislation into the senatorial saucer to cool it. words of the Attorney General of the In crafting the rules of the Senate, United States about Priscilla Owen. Senators established the right to ex- That is exactly what the filibuster And she has had a vote here on the tended debate. And they formalized it does. It encourages moderation and Senate floor. with rule XXII almost 100 years ago. consensus, gives voice to the minority Janice Rogers Brown, I am sure she This rule codified the practice that so cooler heads may prevail. It also has come from nothing to something. I Senators could debate extensively. separates us from the House of Rep- think that is good. That is the way Under rule XXII, debate may be cut resentatives, where the majority rules America should be. But before anyone off under limited circumstances: 67 through the Speaker appointing the starts crowing about the vote in Cali- votes to end a filibuster of a motion to Rules Committee. It is very much in fornia, she didn’t have an opponent. It amend a Senate rule. That is what is keeping with the spirit of the Govern- is a Missouri system. She had no oppo- being attempted here. But, no, we are ment established by the Framers of our nent. not going to follow the Senate rules. Constitution, limited government, sep- Her opinions, if they weren’t on such No, because of the arrogance of power aration of powers, and checks and bal- serious matters, would be laughable— of this Republican administration, ances. The filibuster is a critical tool seriously, laughable. The California which controls the Supreme Court, the in keeping the majority in check. The Supreme Court is made up of seven jus- House, and the Senate. It is not enough Presiding Officer, who is a new Member tices; six of them are Republicans. She that they come to the people’s body of the Senate, someday will be in the has dissented, in the last 6 years alone, and say: Let’s take our chances by a minority. That is the way it works. 31 different times. fair ball game. They are going to This central fact has been acknowl- Among other things, she has said: Su- change the rules in the middle of the edged and even praised by Senators preme Court decisions upholding New ball game. Talk about people having from both parties: The filibuster is a Deal protections, like the minimum votes—these nominees, all 10 of them, critical tool to keep the majority in wage and the 40-hour workweek, are, in have had votes. It is unfair for the ma- check. In fact, another freshman Sen- her words, ‘‘the triumph of our own so- jority to continually say it is 10. Three ator, my colleague from Georgia, Sen- cialist revolution.’’ Tell someone work- of them either retired or withdrew. We ator ISAKSON, recently shared a con- ing at General Motors, tell someone have agreed for votes on two others. It versation he had with an Iraqi Govern- working at Titanium Metals in Hender- is five people who are not in the main- ment official. Senator ISAKSON asked son, NV, that the 40-hour workweek is stream. Janice Rogers Brown accuses this official if he was worried about the part of the socialist revolution. Tell senior citizens of blithely cannibalizing majority in Iraq overrunning the mi- somebody working on nights and week- their grandchildren. That is in the nority. The official replied: ends and holidays that they can’t get mainstream? Priscilla Owen in the No . . . we have the secret weapon called time and a half, or tell somebody work- mainstream? the ‘‘filibuster.’’

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.008 S18PT1 S5378 CONGRESSIONAL RECORD — SENATE May 18, 2005 In recalling the conversation, Sen- Of course, the President would like was to have 1 hour because a good bit ator ISAKSON remarked: the power to name anybody he wants of time has been consumed by dialog If there ever were a reason for optimism to lifetime seats on the Supreme Court and questions earlier today. . . . it is one of [the Iraq] minority leaders and other Federal courts. It is inter- Mr. REID. Mr. President, I will re- proudly stating one of the pillars and prin- esting to note that the statistics used spond, if I could. As indicated, that is ciples of our Government as the way they by the majority leader do not take into why I asked the question. You have 42 would ensure that the majority never consideration the nominees who we minutes and we have 41. We need to overran the minority. have been willing to clear. Sure, you stick to that. I would have no objection They were comparing what they were get statistics like that when they will to your using the full time and deduct- going to experience in Iraq to what we not bring them forward. ing 15 minutes, or whatever it is, from now have—the filibuster. Of course, he Basically, that is why the White the next hour that you have. That was right. House has been aggressively lobbying would be appropriate. I spoke yesterday about Senator Holt Senate Republicans to change Senate Mr. SPECTER. Mr. President, that and his 1939 filibuster to protect work- rules in a way that would hand dan- would be acceptable to me. I am the ers’ wages and hours. There are also re- gerous new powers over to the Presi- manager, in my capacity as chairman cent examples of the filibuster achiev- dent over two separate branches—the of the Judiciary Committee, on Pris- ing good. Congress and the judiciary—and he and cilla Owen. We would accommodate to In 1985, Senators from rural States— his people are lobbying the Senate to have an equal amount of time allotted even though there were few of them— break the rules to change the rules. I to the Democrats. It may be, Mr. Presi- used the filibuster to force Congress to am sorry to say this is part of a dis- dent, that I will not use the full hour. address a major crisis in which thou- turbing pattern of behavior by this Mr. REID. I simply say, if the Sen- sands of farmers were on the brink of White House and the Republicans in ator needs the full hour, I ask that it bankruptcy. Washington, especially the leadership. be deducted so we can kind of keep on In 1995, 10 years later, the filibuster From DICK CHENEY’S fight to slam track here. We will use 42 minutes our was used by Senators to protect the the doors of the White House so the first go-around. We ask that you de- rights of workers to a fair wage and a American people are kept in the dark duct whatever time you use off of the safe workplace. about energy policy while the White second time that you are to be recog- I cannot stand here and say the fili- House has the lights turned on—be- nized. buster has always been used for posi- tween the public interests or the cor- Mr. FRIST. Mr. President, I ask the tive purposes. It has not. Just as it has porate interests, it is always the cor- distinguished chairman this. We have been used to bring about social change, porate interests—to the President’s re- 41 minutes on our side and 42 on the it was also used to stall progress that fusal to cooperate with the 9/11 Com- other side. If you don’t complete your this country needed to make. It is mission, to Senate Republicans’ at- remarks in 41 minutes, then we will often shown that the filibuster was tempt to destroy the last check in agree to yield an equivalent amount of used against civil rights legislation. Washington on Republican power, to time in the next hour, to deduct that But civil rights legislation passed. the House majority’s quest to silence equal amount of time in the next hour Civil rights advocates met the burden. the minority in the House, Republicans from both sides. It is noteworthy that today, as I speak, have sought to destroy the balance of Mr. REID. We don’t need the time on our side. the Congressional Black Caucus is op- power in our Government by grabbing Mr. LEAHY. Mr. President, I think posed to the nuclear option—unani- power for the Presidency, silencing the minority, and weakening our democ- the suggestion the Senator from Penn- mously opposed to it. sylvania made was a good one. What- For further analysis, let’s look at racy. ever time he uses beyond the 40 min- Robert Caro. He is a noted historian America does not work that way. The radical rightwing should not be allowed utes, we get an equal amount of time and Pulitzer Prize winner, and he said here. That way we would also know this at a meeting I attended. He spoke to dictate to the President and to the Republican Senate leaders, as they are where we stand. The distinguished Sen- about the history of the filibuster. He ator from Nevada— made a point about its legacy that was trying to do. For 200 years, we have had the right Mr. REID. Then following the two important. He noted that when legisla- to extended debate. It is not some managers making their statements, tion is supported by the majority of ‘‘procedural gimmick.’’ It is within the thereafter, we go to an hourly time- Americans, it eventually overcomes a vision of the Founding Fathers of this frame and we have to, I think—it filibuster’s delay, as a public protest country. They did it; we didn’t do it. would be good for the managers not to far outweighs any Senator’s appetite to They established a government so that be extending the time because it makes filibuster. no one person and no single party could it impossible when you have people But when legislation only has the have total control. scheduled to come over here. I agree to support of the minority, the filibuster Some in this Chamber want to throw this under the extraordinary cir- slows the legislation—prevents a Sen- out 214 years of Senate history in the cumstances also of the two managers ator from ramming it through, and quest for absolute power. They want to of this nomination—that they be given gives the American people enough time do away with Mr. Smith, as depicted in a full hour. Following that, the Repub- to join the opposition. that great movie, being able to come to licans would be recognized for an hour, Mr. President, the right to extended Washington. They want to do away and the Democrats for an hour, and we debate is never more important than with the filibuster. They think they go on that basis. when one party controls Congress and are wiser than our Founding Fathers. I Mr. President, I have somebody here the White House. In these cases, the fil- doubt that is true. complaining that we have already set ibuster serves as a check on power and Mr. President, will the Senator no- the schedule. We are entitled to the preserves our limited government. tify us as to how much time the Repub- time by the rules. Right now, the only check on Presi- licans have in the first wave of state- Mr. FRIST. Mr. President, I ask if dent Bush is the Democrats’ ability to ments and how much time the Demo- the chairman would try to keep his re- voice their concern in this body, the crats have when they are allowed to marks within the time limit agreed to, Senate. If Republicans roll back our make statements? about 42 minutes, and we can stay on rights in this Chamber, there will be no The PRESIDING OFFICER (Mr. schedule. I ask the Democratic leader, check on their power. The radical GRAHAM). The Republicans have 42 would that be acceptable? I ask unani- rightwing will be free to pursue any minutes and the Democrats have 41 mous consent that we, as agreed ear- agenda they want, and not just in minutes. lier, have 42 minutes on our side and 41 judges. Their power will be unchecked Mr. REID. I thank the Chair. minutes on the other side. on Supreme Court nominees, the Presi- The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. Without dent’s nominees in general, and legisla- ator from Pennsylvania is recognized. objection, it is so ordered. tion such as Social Security privatiza- Mr. SPECTER. Parliamentary in- The Senator from Pennsylvania is tion. quiry: It was my understanding that I recognized.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.009 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5379 Mr. SPECTER. Mr. President, as we an average of 120 days for these nomi- This gridlock occurs at a time when begin consideration of the nomination nees to be confirmed. The pattern of we expect a U.S. Supreme Court va- of Texas Supreme Court Justice Pris- delay and denial continued for 4 years cancy within the next few months. If a cilla Owen for the U.S. Court of Ap- of President George H.W. Bush’s ad- filibuster would leave an eight-person peals for the Fifth Circuit, the Senate ministration. President Bush’s lower Court, we could expect many 4-to-4 Chamber is filled with anticipation court nominees waited on average 100 votes since the Court now decides cases that we may be embarking on a his- days to be confirmed, which is about with 5-to-4 votes. A Supreme Court tie toric debate which could redefine mi- twice as long as had historically been vote would render the Court dysfunc- nority rights in the Senate and impact the case. The Democrats also denied tional leaving in effect the circuit our fundamental constitutional doc- hearings for more nominees. court decision with many splits among trine of separation of powers. President Carter had 10 nominees the circuits, so the rule of law would be As we all know, if 60 votes are not ob- who did not receive hearings. For suspended on many major issues. tained to invoke cloture to cut off de- President Reagan, the number was 30. Regardless of which side wins the bate on this nominee and three others In the Bush senior administration, the vote on the constitutional or nuclear to be called up sequentially for con- number jumped to 58. option, there would be serious confirmation votes, a ruling is likely to be When we Republicans won the 1994 sequences. If the option succeeds, first, sought to change the required vote election and gained the Senate major- the rights of the Senate’s minority from 60 to 51, unless a compromise can ity, we exacerbated the pattern of would be significantly diminished, and, first be reached. delay and blocking of nominations. second, reducing the cloture vote on This controversy did not arise, in my Over the course of President Clinton’s nominees would inevitably and ulti- judgment, because Democrats con- Presidency, the average number of mately invite a similar attack on clo- cluded that Miguel Estrada and nine days for the Senate to confirm judicial ture on the legislative calendar which other President Bush circuit court nominees increased even further to 192 would change the nature of the Senate nominees were unqualified, so they days for district court nominees and tremendously. should be filibustered, but rather be- 262 days for circuit court nominees. On the other hand, if the option fails, cause it was payback time for Repub- Through blue slips and holds, 70 of there are undesirable consequences. lican treatment of President Clinton’s President Clinton’s nominees were Then, any Senate minority party of 41 nominees. blocked. or more would be emboldened to insti- While there have been a few scattered During that time, I urged my Repub- tutionally and permanently revise the cloture votes in the history of the Sen- lican colleagues on the Judiciary Com- balance of power between the Presi- ate, it is totally unprecedented for a mittee to confirm well-qualified Demo- dent’s constitutional power of nomina- party to engage in such a systematic crats. For example, I broke rank with tions and the Senate’s constitutional pattern of filibusters. In almost 25 my colleagues on the Republican side authority for confirmation. years on the Judiciary Committee, I to speak and vote in favor of Marsha Second, I think it would embolden have seen circuit court nominees con- Berzon and Richard Paez. the Democrats to use the filibuster on After the 2002 elections, with control firmed routinely where their qualifica- other Presidential nominations, such of the Senate returning to Republicans, tions were no better than those under as John Bolton whose nomination is the Democrats resorted to the fili- fire today. These filibusters are the pending before the Senate for ambas- buster on 10 circuit court nominations, combination of a power struggle be- sador to the U.N. which was the most extensive use of tween Republicans and Democrats as After a Democratic member of the that tactic, really unprecedented, in to which party can control the judicial Foreign Relations Committee put a the Nation’s history. hold on the Bolton nomination, the selection process through partisan ma- The filibuster started with Miguel neuvering. Estrada, one of the most competent ranking member was quoted on a Sun- As a starting point, it is important to and talented appellate lawyers in the day talk show as saying: acknowledge that both sides—Demo- country. The Democrats followed with It’s too premature to talk about filibustering Mr. Bolton. crats and Republicans—have been at filibusters against nine other circuit fault. Both claim they are the victims court nominees. During the 108th Con- Therefore, it is obvious that a fili- and that their party’s nominees have gress, there were 20 cloture motions on buster on Bolton is not ruled out. been treated worse than the other’s. 10 nominations, and all 20 failed. A vote on the constitutional or nu- Both sides cite endless statistics. I To this unprecedented move, Presi- clear option could affect an imminent have heard so many numbers spun so dent Bush responded by making for the nomination or nominations to the Su- many different ways that my head is first time in the Nation’s history two preme Court. If a vote on the option spinning. I think even Benjamin Dis- recess appointments of nominees who failed, it would be a reaffirmation of raeli, the man who coined the phrase, had been successfully filibustered by the Democratic minority’s power to fil- there are ‘‘lies, damn lies, and statis- the Democrats. That impasse was bro- ibuster any judicial nominee without tics,’’ would be amazed at the cre- ken when President Bush agreed to re- necessarily showing substantial cause ativity employed by both sides in con- frain from further recess appointments. or extraordinary circumstances. If the triving numbers in this debate. Against this background of bitter option passed, it could give the Presi- In 1987, upon gaining control of the and angry recriminations, with each dent greater leverage, reducing his con- Senate and the Judiciary Committee, party serially trumpeting the other cern that his nomination could be the Democrats denied hearings to party to get even or really to domi- thwarted. seven of President Reagan’s circuit nate, the Senate now faces dual Historically—and I believe this is of court nominees and denied floor votes threats. One called the filibuster and tremendous importance, Mr. Presi- for two additional circuit court nomi- the other the constitutional or nuclear dent—historically, the constitutional nees. As a result, the confirmation for option which rivals the U.S.-U.S.S.R. separation of powers has worked best Reagan circuit nominees fell from 89 confrontation of mutual assured de- when there was a little play in the so- percent prior to the Democratic take- struction. Both situations are accu- called joints. When both sides are un- over to 65 percent afterwards. rately described by the acronym, MAD. sure of the outcome, the result is more While the confirmation rate de- We Republicans are threatening to likely to be in the middle rather than creased, the length of time it took to employ the constitutional or nuclear at either extreme. confirm judges increased. From the option to require only a majority vote On the current state of the record, in Carter administration through the first to end judicial filibusters. The Demo- my opinion, the outcome of a prospec- 6 years of the Reagan administration, crats are threatening to retaliate by tive vote on the constitutional or nu- the confirmation process for both dis- stopping the Senate agenda on all mat- clear option is uncertain. I have not trict and circuit court seats consist- ters except national security and rendered a decision because I believe I ently hovered at approximately 50 homeland defense. Each ascribes to the can be most helpful on brokering a days. For President Reagan’s final Con- other the responsibility for blowing up compromise by remaining silent. When gress, however, the number doubled to the place. neither side is confident of success—

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.011 S18PT1 S5380 CONGRESSIONAL RECORD — SENATE May 18, 2005 and I think that is the case today—the down votes with both leaders explicitly the need for consultation on the other chances for compromise are far great- releasing their Members from party- Michigan vacancies, and I believe that er. line voting. can be accommodated. As I see it, the national interest There are at least five, and perhaps In the exchange of offers and would be served by structuring a com- as many as seven, pending circuit court counteroffers between Senator FRIST promise to return to the status quo be- nominees who could be confirmed or at and Senator REID, Democrats have fore 1987. When Senator HARRY REID, least voted up or down. If the strait- made an offer to avoid a vote—on the the Democratic leader, says his party jacket of party loyalty were removed, nuclear option—by confirming one or would abandon the filibuster unless even more might be confirmed. perhaps two of the four filibustered there are ‘‘extraordinary cir- In moving in the Judiciary Com- judges: Priscilla Owen, Janice Rogers cumstances,’’ that escape clause should mittee to select nominees for floor ac- Brown, William H. Pryor, or William be narrowly defined and codified in a tion shortly after becoming chairman Myers, with the choice to be selected Senate rule instead of an agreement earlier this year, I first selected Wil- by Republicans. An offer to confirm between the parties’ leaders. liam Myers because two Democrats had any one or two of four nominees is an Even with a narrowly defined defini- voted to end debate in the 108th Con- explicit concession that each is quali- tion of what constitutes extraordinary gress and one candidate for the Senate fied for the court and that they are circumstances, the final decision would in 2004 since elected made a campaign being held hostage as pawns in a con- necessarily reside with the individual statement that he would vote to end voluted chess game which has spiraled Senators in the case of any perceived the Myers filibuster and confirm him. out of control. ambiguity. If we Republicans then con- Adding those 3 votes to 55 Republicans, If the Democrats really believe each cluded that there was not a good-faith we were within striking distance to one is unqualified, a deal for confirma- exercise of extraordinary cir- reach 60 or more. tion for any one of them is repugnant cumstances, we could regard the agree- I carefully examined Myers’ record. to the basic Democratic principle of in- ment as vitiated and feel free to resort Noting that he had opposition from dividual fair and equitable treatment to the constitutional or nuclear option. some groups such as Friends of the and violates Senators’ oaths on the To achieve a compromise, Senators Earth and the Sierra Club, it was my constitutional confirmation process. must take the initiative without being conclusion that nonetheless his envi- Such a deal on confirmations would unduly influenced by the far left or far ronmental record was satisfactory, or only confirm public cynicism about right. It has not escaped attention that at least not a disqualifier, as detailed what goes on in Washington behind the so-called groups are using this con- in my statement at the Judiciary Com- closed doors. troversy as major fundraising vehicles. mittee executive session on March 17. Instead, let the Senate consider each I continue to be personally highly of- To be sure, critics could pick at his of the four without the constraints of fended by the commercials, from Greg- record, as they could at any Senator’s party-line voting. Let both leaders re- ory Peck in 1987 to the ones broadcast record, but overall, in my judgment, lease their caucuses from the strait- this weekend in Pennsylvania, seeking Mr. Myers was worthy of confirmation. jacket of party-line voting and even to influence my own vote. Believe me, I then set out to solicit views on encourage Members to vote their con- they are counterproductive or ineffec- Myers, including the ranchers, loggers, sciences on these issues of great na- tual at best and certainly insulting. miners, and farmers. In those quarters, tional importance. Let us revert to the Senators, with our leaders, must I found significant enthusiasm for his tried-and-tested method of evaluating take charge to craft a way out. The confirmation. I then urged them to each nominee individually. fact is, all or almost all of the Senators have their members contact Senators In a ‘‘press availability’’ on March 10, want to avoid the pending crisis. I have who might be swing votes. I then fol- Senator REID referred to the nuclear had many conversations with my lowed up with personal talks to many option and said: Democratic colleagues about the fili- of those Senators and found several If it does come to a vote I ask Senator buster of judicial nominees. Many of prospects to vote for cloture. Frist to allow his Republican colleagues to them have told me they do not person- Then the screws of party loyalty follow their conscience. Senator Specter really believe it is a good idea to fili- were applied and tightened, and the cently said that Senators should not be buster President Bush’s judicial nomi- prospects for obtaining the additional bound by Senate loyalty—they should be nees in such a pattern. They believe votes to secure 60 for cloture—the pros- bound by Senate loyalty rather than by this unprecedented use of a filibuster pects vanished. I am confident that if party loyalty on a question of this mag- does damage to this institution and to the party pressure had not been ap- nitude. I agree. the prerogatives of the President. Yet plied, the Myers filibuster would have But Senator REID did not make any despite their concerns, they have given ended, and he would have been con- reference to my urging him to have the in to party loyalty and voted repeat- firmed. That result could still be ob- Democrats reject the party-line strait- edly to filibuster Federal judges in the tained if the straitjacket of party loy- jacket on filibustering. If both parties last Congress. alty were removed on the Myers nomi- were to vote their consciences without Likewise, there are many Repub- nation. regard to the party line, I believe that licans in this body who question the Informally, but authoritatively, I the filibusters would disappear in the wisdom of the constitutional or nu- have been told that the Democrats will context of the current constitutional clear option. They recognize that such not filibuster Thomas Griffith or Judge crisis and many, if not most, Repub- a step would be a serious blow to the Terrence Boyle. Griffith is on the Sen- licans who do not like the constitu- rights of the minority that have al- ate calendar awaiting floor action and tional/nuclear option would abandon it. ways distinguished this body from the Boyle is on the agenda for Judiciary The fact is that any harm to the Re- House of Representatives. Knowing Committee action. Both could be con- public, at worst by confirming all of that the Senate is a body that depends firmed this month. the pending circuit court nominees, is upon collegiality and compromise to There are no objections to three infinitesimal compared to the harm to pass even the smallest resolution, nominations from the State of Michi- the Senate whichever way the vote many of my Republican colleagues gan for the Sixth Circuit, Richard Grif- would turn out on the nuclear/constitu- worry that the rule change would im- fin, David McKeague and Susan Neil- tional option. None of these circuit pair the ability of the institution to sen, but their confirmations are held judges could make new law because all function. up because of objections to a fourth are bound and each agreed on the I have repeatedly heard colleagues on nominee. I urge my Democratic col- record to follow U.S. Supreme Court both sides of the aisle say it is a mat- leagues to confirm these three decisions. While it is frequently argued ter of saving face. But as yet, we have uncontested Michigan Sixth Circuit that circuit court opinions are, in not found a formula to do so. I suggest nominees and fight out the fourth va- many cases, final because the Supreme the way to work through the current cancy and the Michigan District Court Court grants certiorari in so few cases, impasse is to bring to the floor circuit vacancies on another day. The Michi- circuit courts sit in panels of three so court nominees one by one for up-or- gan Senators do make a valid point on that no one of these nominees could

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.013 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5381 unilaterally render an egregious deci- phia, he was approached by a group of tile to Roe v. Wade, which on the sion, since at least one other circuit citizens asking what sort of a govern- record is simply not true. judge on the panel must concur. ment the constitutional delegates had In the case of Jane Doe (I), in the If a situation does arise where a created. Franklin responded, ‘‘A Re- year 2000, she voted with the majority panel of three circuit judges makes an public, if you can keep it.’’ but filed a concurring opinion. The lan- egregious decision, it is subject to cor- In this brief response, Franklin cap- guage she used was that the legislature rection by the court en banc, and then tured the essential fragility of our intended for the minors to learn about the case may always be reviewed by great democracy. Although enshrined arguments ‘‘surrounding abortion’’, the Supreme Court if it is really egre- in a written Constitution and housed in and not ‘‘against’’ abortion. So, in gious. granite buildings, our government is handing down this decision, she was While it would be naive to deny that utterly dependent upon something far not urging that minors making their the quid pro quo or log rolling are not less permanent, the wisdom of its lead- decision on obtaining an abortion hear frequent congressional practices, these ers. Our Founding Fathers gave us a the arguments against abortion, but approaches are not the best way to for- great treasure, but like any inherit- rather ‘‘surrounding,’’ which would ob- mulate public policy or make govern- ance, we pass it on to successive gen- viously state both sides. mental decisions. The Senate has a erations only if our generation does On cases where she has denied judi- roadmap to avoid the nuclear winter in not squander it. If we seek to emulate cial bypass, they have been in the con- a principled way. Five of the controver- the vision and restraint of Franklin text of sound judicial principle, where sial judges can be brought up for up-or- and the Founding Fathers, we can hand she has refused to overturn the find- down votes on this state of the record, down to our children and grandchildren ings of the lower court judge who had and the others are entitled to individ- the Republic they deserve, but if we access to the witnesses and could see ualized treatment on the filibuster turn our backs on their example, we and hear exactly what was going on issue. It may be that the opponents of will debase and cheapen what they and had a much better basis for fact- one or more of these judges may per- have given us. finding. suade a majority of Senators, including At this critical juncture in the his- Illustrative of this position is the some Republican Senators, that con- tory of the Senate, let us tread care- case captioned In re Doe (II), a 2000 Su- firmation should be rejected. A group fully, choose wisely, and prove our- preme Court of Texas decision where of Republican moderates has, with selves worthy of our great inheritance. the court reversed and ordered a judi- some frequency, joined Democrats to Since the United States and the Union cial bypass. defeat a party-line vote. The President of Soviet Socialist Republics avoided a It is true Justice Owen was one of has been explicit in seeking only up-or- nuclear confrontation in the Cold War three justices who dissented, but she down votes as opposed to commitments by concessions and confidence-building did so because she concluded that the on confirmation. measures, why should not Senators do majority improperly reweighed the evi- The Senate has arrived at this con- the same by crossing the aisle in the dence and usurped the rule of the trial frontation by exacerbation, as each spirit of compromise? judge. As a sound legal principle, the side ratcheted up the ante in delaying Mr. President, I now turn to the spe- trial judge is entitled to deference on and denying confirmation to the other cifics on the nomination of Texas Su- the findings of fact because the trial party’s Presidential nominees. The pol- preme Court Justice Priscilla Owen. judge, rather than the appellate court, icy of conciliation and consultation She comes to the floor of the Senate has heard the witnesses. could diffuse the situation. One good for consideration with an outstanding There are other notable cases where turn deserves another. If one side real- academic record. She attended the Uni- Justice Owen has handed down istically and sincerely takes the high versity of Texas in 1972 and 1973. She thoughtful, informed, scholarly opin- ground, there will be tremendous pres- graduated from Baylor University in ions. They have not pleased everyone, sure on the other side to follow suit. So 1975, cum laude, from the Baylor Uni- but that is what judges do. One case is far, offers by both sides have been pub- versity School of Law in 1977, cum particularly worthy of note, a case cap- lic relations maneuvers to appear rea- laude, evidencing an excellent aca- tioned Operation Rescue National v. sonable, to avoid blame and place it demic record. She has a fine profes- Planned Parenthood of Houston and elsewhere. sional record with a practice of Southwest Texas. In this case, doctors Meanwhile, the far left and the far Sheehy, Lovelace and Mayfield, where and abortion clinics brought action for right are urging each side to the shun she was a law clerk in 1976 and 1977, civil conspiracy, tortious interference, compromise. One side shouts ‘‘pull the and then an associate and partner at and invasion of privacy and property trigger.’’ The other side retorts, ‘‘fili- Andrews, Kurth, Campbell and Jones rights against anti-abortion groups and buster forever.’’ Their approach would from 1978 to 1994. From 1995 to the protesters, seeking injunctive relief lead to the extreme judges at each end present, she has been a justice on the and damages. The trial court entered a of the political spectrum as control of Supreme Court of Texas. $1.2 million judgment on jury verdict the Senate inevitably shifts from one She was at the top of her law school and a permanent injunction creating party to another. class; in 5 years, completed law school buffer zones around certain clinics and Late yesterday afternoon, a group of and undergraduate, contrasted with homes in which protesters could not so-called moderate Senators met with the usual 7. She had the highest score protest. the leaders, and one idea which came on the statewide bar exam and was re- The issue was whether the jury ver- from one of the Democratic Senators elected with 84 percent of the vote and dict was based on a proper jury charge was to consider the five nominees— endorsement of every major newspaper. and whether the injunction infringed Owen, Brown, Pryor, and Myers, along The American Bar Association has on the protesters’ freedoms of expres- with Judge Saad of Michigan—and then unanimously rated her well qualified. sion. Justice Owen joined the 7 to 2 ma- to either have three confirmed, two re- In the course of her work on the jority decision which affirmed the jury jected; or two confirmed and three re- Texas Supreme Court, she has handed verdict was proper under Texas law. jected. down many decisions which have dem- The decision also upheld the injunc- The suggestion was then made that if onstrated real analytical and real legal tion while modifying it in certain re- all of the nominees could get a floor scholarship. She has been criticized on spects. Under the majority’s opinion, a vote, that there might be a whip check some of the decisions which she has limited number of peaceful protesters to determine whether two might not rendered on the so-called judicial by- could approach patients and act as pass on a rollcall vote, which is the pass. sidewalk counselors who would seek to way the Senate functions. That consid- Under the a Texas law, constitu- discuss the issues surrounding abor- eration I think is worth further explo- tional under U.S. Supreme Court prece- tions with patients, as long as such dis- ration. dent, a minor may have an abortion if cussions were ceased upon request of A well-known story is told about there is notice to at least one parent. the patient. The majority concluded Benjamin Franklin. Upon exiting the Justice Owen has been criticized, this type of protesting would not en- Constitutional Convention in Philadel- with a very broad brush, for being hos- danger patients’ health and safety.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.014 S18PT1 S5382 CONGRESSIONAL RECORD — SENATE May 18, 2005 Following Justice Owen’s nomination evidence in this case that the defendant’s valid legislative act that did not need to be to the Fifth Circuit, pro-choice groups professional association conducted business approved by the Texas Natural Resource criticized the ruling as hostile to abor- in the name of the individual doctor and the Conservation Commission to become effective and enforceable. While the Ordinance tion rights. But at the time the ruling plaintiff’s naming of the defendant’s assumed name in the complaint was sufficient. clearly affected land use, its methods were was handed down, Planned Parenthood Note: Justice Owen stood up against for- nationally recognized limitations and thus of Houston and Southwest Texas hailed malism and allowed a Plaintiff to bring suit furthered the stated goal of protecting and it as ‘‘a complete and total victory.’’ for medical malpractice. preserving a clean water supply. The Court found that the Legislature did not limit the This case is illustrative of some of INRED.A.S the difficult issues involved in that city’s authority to set the ordinance’s effec- 973 S.W.2D 296 (TEX. 1998) kind of a factual situation. In enjoin- tive date; therefore, Austin was not required to obtain permission of the Commission being this kind of harassing practice, Facts: The defendants, two juveniles, challenged a ruling that held the Anders proce- fore enacting the ordinance. subject to certain limitations, and up- dure, which requires defense counsel, if they HERNANDEZ V. TOKAI CORP. holding a verdict in excess of $1 mil- find a case to be wholly frivolous, to request 2S.W.3D 251 (TEX. 1999) lion, Justice Owen exercised judicial permission to withdraw and submit a brief- Facts: Minor child misused a butane light- discretion and sensibility in arriving at ing to the court with anything in the record er and was injured. Suit brought against the decision. that might arguably support the defendant’s manufacturer and distributor of the lighters. In the case of Ft. Worth Osteopathic appeal, was inapplicable in juvenile cases. The trial court granted summary judgment Hospital, Inc. v. Reese, Justice Owen The defendants requested mandamus relief. for the lighter manufacturer. On appeal, the handed down decisions demonstrating Procedural History: The Court of Appeals 5th Circuit Court of Appeals submitted a cer- rejected the challenge and refused to allow respect for Roe v. Wade under a factual tified question as to whether the action the defense counsel to withdraw. could proceed under Texas law. situation where plaintiffs brought Issue: Whether the Anders procedure ap- Issue: Whether a defective-design products wrongful death and survival action on plies to juvenile cases. liability claim against the product’s manu- behalf of a viable fetus who died in Outcome: Justice Owen, writing for the 6– facturer may proceed if the product was in- utero against the treating physicians 2 majority, held that the Anders procedure tended to be used only by adults, if the risk and the hospital and also brought med- applied to juvenile proceedings because that children might misuse the product was ical negligence claims in their indi- Anders protected the juveniles’ statutory obvious to the product’s manufacturer and vidual capacities. right to counsel on appeal. Justice Owen to its intended users, and if a safer alter- Justice Owen joined the Texas Su- found that extending Anders to juvenile ap- native design was available. peals properly balanced a juvenile’s statu- Outcome: The 5th Circuit Court of Appeals preme Court’s 8-to-1 decision holding tory right to counsel against the appointed submitted a certified question as to whether that the Texas wrongful death and sur- counsels’ obligation not to prosecute frivo- the action could proceed under Texas law. vival statutes do not violate the equal lous appeals. She also determined that Justice Owen joined the unanimous opinion protection clause by prohibiting par- Anders provided the juveniles with more proof the court, holding that a defective-design ents of a stillborn fetus from bringing tection because both the attorney and the claim may proceed for an injury caused by a court of appeals would have to determine product that did not have a child-resistant those claims. Justice Owen, in joining mechanism that would have prevented or in that decision, was explicitly fol- whether there were any arguable issues on appeal. substantially reduced the risk of injury from lowing the precedent of Roe v. Wade. a child’s foreseeable misuse if, with reference There is a series of cases which illus- Dissent: The dissent argued that mandamus relief was inappropriate. Judicial re- to the product’s intended users, the design trates judicial temperament, judicial view through petition for review from the defect made the product unreasonably dangerous, a safer alternative design was avail- demeanor, a sound judicial philosophy, court of appeals’ final decision was an ade- able, and the defect was the cause of the in- which I ask unanimous consent to have quate remedy for the juvenile defendants. jury. printed in the RECORD: First, Chilkewitz ABRAMS V. JONES Note: Justice Owen held that a manufac- v. Hyson, 22 S.W.3d 825 (Tex. 1999); sec- 35 S.W.3D 620 (TEX. 2000) turer of cigarette lighters has a duty to ond, In Re D.A.S., 973 S.W.2d 296 (Tex. Facts: In the midst of an acrimonious di- make certain that its products are child re- 1998); third, Abrams v. Jones 35 S.W.3d vorce, the plaintiff father sued his daughter’s sistant—even though the lighters were only meant to be used by adults. 620 (Tex. 2000); fourth, Quick v. City of psychologist for access to his minor daugh- Austin, 7 S.W.3d 109 (Tex. 1999); fifth, ter’s medical records. NME HOSPITALS, INC. V. MARGARET A. Hernandez v. Tokai Corporation, 2 Issue: Whether a parent has judicial re- RENNELS, M.D., S.W.3d 251 (Tex. 1999); sixth, NME Hos- course under Tex. Health & Safety Code Ann. 994 S.W.2D 142 (TEX. 1999) pitals v. Rennels, 994 S.W.2d 142 (Tex. § 611.0045(e) when a treating psychologist re- Facts: The plaintiff doctor sued NME Hos- 1999); next, Kroger Company v. Keng, 23 fuses to allow another psychologist, selected pitals for unlawful employment discrimination under the Act and conspiracy to violate S.W.3d 347 (Tex. 2000); and, Crown Life by the challenging parent, access to the minor-child’s medical records. the Act. The defendant hospital filed for Insurance Company v. Casteel, 22 S.W.3d Outcome: Justice Owen, writing for the 7– summary judgment because it was not her 378 (Tex. 2000), all of which show Jus- 2 majority, reversed and denied access of the direct employer under the Texas statute. tice Owen to be a very sound jurist and medical records to the father. Justice Owen Procedural History: The lower trial court worthy of confirmation to the Court of held that the Texas legislature imposed some granted summary judgment for the hospital. Appeals for the Fifth Circuit. limits on the parent’s right of access to con- The appeals court reversed. fidential mental health records. Justice Issue: Whether a plaintiff may sue someone There being no objection, the mate- other than her own employer for an unlawful rial was ordered to be printed in the Owen found that the psychologist had presented sufficient evidence that the child employment practice under Texas Labor RECORD, as follows: would be harmed if the records were released Code § 21.055, the Texas Commission on CHILKEWITZ V. HYSON to the father. Human Rights Act 22 S.W.3D 825 (TEX. 1999) Outcome: In a case of first impression, the QUICK V. CITY OF AUSTIN Facts: Plaintiff brought suit against de- Texas Supreme Court unanimously held that to have standing under the Texas statute the fendant doctor for medical practice. After 7S.W.3D 109 (TEX. 1999) plaintiff must show: (1) that the defendant is the statute of limitations ran, the defendant Facts: Landowners challenged the City of an employer within the statutory definition moved for summary judgment on the basis Austin’s Save Our Springs Ordinance, a of the Act; (2) that some sort of employment that he was a professional association and water pollution control measure enacted in relationship exists between the plaintiff and because the plaintiff had not claimed the 1992. The landowners contested the ordinance a third party; and (3) that the defendant con- professional association as a defendant, the because it was arbitrary, unreasonable, and trolled access to the plaintiff’s employment statute of limitations barred suit against inefficient. They also asserted that the Ordi- opportunities and denied or interfered with him. nance was void because it was enacted with- that access based on unlawful criteria. Find- Issue: Whether the Texas Rules of Civil out a public hearing, it impermissibly regu- ing that the plaintiff met these criteria, the Procedure permitted a suit against a party’s lated the number, use, and size of buildings Court held that the plaintiff had standing to assumed name, in this case the doctor, if the in the City’s extraterritorial jurisdiction, sue the client of her employer for unlawful plaintiff did not name the defendant’s asso- and the Texas Natural Resource Conserva- employment practice. ciation as a defendant in the suit. tion Commission had not approved it. Outcome: A unanimous Texas Supreme Issue: Whether the City of Austin’s ‘‘Save KROGER CO. V. KENG Court, in an opinion written by Justice Our Springs’’ Ordinance was a valid exercise 23 S.W.3D 347 (TEX. 2000) Owen, held that the rules of civil procedure of city authority. Facts: Plaintiff brought suit against the permitted suit against a party in its assumed Outcome: Justice Owen joined the 5–4 ma- defendant grocery store, a workers’ com- name. The court also held that there was jority, which held that the Ordinance was a pensation nonsubscriber, alleging that the

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.016 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5383 store’s negligence proximately caused her to before this Senate in any other context administration and partisan operatives suffer injuries during an on the job accident. for consideration, except get-even time in the Congress to consolidate power in Kroger denied the allegations and responded in response to the way President Clin- one branch, the executive branch, and that plaintiff’s conduct either caused or con- ton’s nominees were treated, with some ignore our constitutional history of tributed to the incident, entitling Kroger to three separate branches acting as protection under the comparative responsi- 70 rejected, in a spiraling context bility statute. which started the last 2 years of Presi- checks and balances on each other. It Issue: Whether a non-subscriber to work- dent Reagan’s administration, had she is an effort at one-party rule. It under- ers’ compensation insurance is entitled to a come here at any other time, she would cuts the rights of the minority in the jury question regarding its employee’s al- have moved through this Senate on a Senate, it undermines the role of the leged comparative responsibility for his or voice vote or been unanimously con- Senate as a check on the executive, her injuries. firmed. and it leads to a Republican Outcome: Justice Owen joined the Texas I suggest a careful reading of her rubberstamp on a less independent ju- Supreme Court’s unanimous opinion, affirming the court of appeals’ decision and holding record and a careful analysis, aside diciary. that a non-subscribing employer was not en- from the tumult and turmoil of the The constitutional protections of the titled to a jury question on its employee’s al- Senate today, supports her confirma- American people are at stake in this leged comparative responsibility. The court tion. debate, not just someone’s political fu- relied on the legislative intent of Texas’ I yield the floor. ture, the constitutional protections of comparative responsibility statute and def- The PRESIDING OFFICER. The Sen- the American people. At stake are the erence to the legislature in reconciling a ator from Vermont. protections provided for the American Texas Court of Appeals’ circuit split. Mr. LEAHY. Mr. President, how people by the judicial branch against Note: Justice Owen ruled for the plaintiff much time is available to the Senator overreaching by the political branches; and a plaintiff’s right not to have her work- from Vermont? by the Senate against an aggressive ex- ers compensation claims reduced for com- The PRESIDING OFFICER. There is parative negligence. ecutive branch, and by the minority 39 minutes. CROWN LIFE INSURANCE CO. V. CASTEEL against the tyranny of the majority. Mr. LEAHY. I thank the Presiding As this debate begins, I urge the 22 S.W.3D 378 (TEX. 2000) Officer. American people to be involved be- Facts: Casteel sold insurance policies as an It is my understanding the distin- cause it is their rights that are at independent agent of Crown Life Insurance guished Senator from Pennsylvania did Company. One of the policies sold by Casteel stake. It is the independence, fairness, not use extra time? and nonpartisan protection of the judi- led to a lawsuit by policyholders against The PRESIDING OFFICER. That is Casteel and Crown. In that lawsuit, Casteel ciary that protects their rights that is filed a cross-claim against Crown for decep- correct. being threatened. It is a constitutional tive trade practices. The trial court rendered Mr. LEAHY. Mr. President, I rec- check that the Senate was intended by judgment that Casteel did not have standing ommend all the Republicans and the Founders to keep the executive to bring suit against Crown, holding that Democrats listen to the speech given from acting like a king, that is being Casteel was neither a ‘‘person’’ as defined by the distinguished Senator from threatened by curtailing the rights of under Article 21.21 of the Texas Insurance Pennsylvania. I said to him earlier this Code, nor a ‘‘consumer’’ under the Deceptive the minority. morning if it were he and I who were This is an exercise in breaking the Trade Practices Act (DTPA), and therefore allowed to work this out, we could lacked standing to bring suit under those rules to change the rules. Note that as statutes. The court of appeals held that work it out probably in less than an this debate begins, it begins in accord- Casteel was a ‘‘person’’ with standing to sue hour. I said the same thing to the ance with the Senate rules, including Crown under Article 21.21, but that Casteel President and to our two leaders. rule XXII, the longstanding rule the did not have standing to sue under the incor- Hopefully everyone understands the Republican majority intends to over- porated DTPA provisions because he was not significance of this debate and what ride by the end of this process by par- a ‘‘consumer.’’ the Republican leader, the majority liamentary brute force. Issue: Whether an insurance agent is a leader is doing. He has decided to trig- The Senate is now being threatened ‘‘person’’ with standing to sue an insurance ger the nuclear option. That is what it company under Article 21.21 and whether an with a fundamental change through a insurance agent must also be a ‘‘consumer’’ is. This nuclear option is something self-inflicted wound. ‘‘Master of the to have standing to recover under Article any Senate majority could have done Senate’’ author Robert Caro recalled 21.21 for incorporated DTPA violations. any time over the past 50 years. It boils an important chapter in the Senate Outcome: Justice Owen joined a unani- down to the Republican Senate leader and the Nation’s history. Consider this mous Texas Supreme Court in holding that declaring the Senate rules governing and contrast it with what is happening an insurance agent does not have standing to filibusters are out of order. here today. sue as ‘‘consumer’’ for violations of the The nonpartisan Senate Parliamen- When Senator Lyndon Johnson of DTPA. However, the court also held that de- tarian has indicated that would violate Texas left the Senate, he was the most spite not having standing to bring suit under the Senate rules. It would. The non- the DPTA, an insurance agent is a ‘‘person’’ powerful majority leader in the history with standing to sue an insurance company partisan Congressional Research Serv- of this country. When he was elected for violations of Article 21.21 of the Insur- ice has studied this and concluded it is Vice President with President Kennedy ance Code. unprecedented. Why? Because it and he was preparing to leave the Sen- Note: Illustrates Justice Owen’s willing- amounts to breaking the rules. ate, he told his protege and successor, ness to rule against the insurance and allow We are talking about judging wheth- Senate Mansfield of Montana, that he, the plaintiff to bring suit. er nominees will be fair and impartial Johnson, would keep attending the Mr. SPECTER. In conclusion, Mr. judges who will follow the law and the Democratic luncheons and help his suc- President, I know my time is nearly majority is willing to break the rules cessor as majority leader in running up. I had a chance to talk at some to do that. When you have a slim ma- the Senate. Senator Mansfield said no, length with Justice Priscilla Owen. She jority and are willing to use parliamen- Vice President Johnson was no longer is an intelligent, articulate lawyer who tary brute force, if you want to break a Member of the Senate, but an officer has had very substantial experience on the rules, you can. It does not make it of the executive branch and by means the Supreme Court of her State for right. It makes it wrong, but you can of that office was accorded the privi- some 10 years. She has been endorsed do it. lege of presiding over the Senate. by 84 percent of the electorate of The American people ought to recog- What a contrast Senator Mike Mans- Texas. She has recognized the Supreme nize this for what it is, an abuse of field’s respect for the separation of Court decision in Roe v. Wade and is power to advance a power grab. It is an powers and checks and balances is from bound to apply it and has recognized effort by the White House and the Re- those in power today. I say that as one its principles and is not at all hostile publican Senate majority to undercut who was privileged to serve here with to Roe v. Wade. the checks and balances of the Senate. Senator Mansfield. In the 24 years and 4 months I have They intend to use majority power to Instead, this White House took an ac- served on the Judiciary Committee, I override the rights of the minority. tive role in naming the present Senate have voted on many, many, many cir- Actually, it is not an isolated effort. leadership and this White House regu- cuit judges. If Priscilla Owen had come It is part of a sustained effort by this larly sends Vice President CHENEY and

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.018 S18PT1 S5384 CONGRESSIONAL RECORD — SENATE May 18, 2005 Karl Rove to Republican caucus lunch- judiciary, the rules of the Senate, and when the Republicans took the major- eons to give the Republican majority the rights of the minority. ity, they violated the rules, long- its marching orders. What a difference During the last several days, we have standing precedent and Senate tradi- from the days of Mike Mansfield and seen the Democratic leader make offer tion. With the Senate and the White Lyndon Johnson. after offer to head off this showdown. House under control of the same polit- The current Republican majority We have heard stirring speeches from ical party, we have witnesses com- leader, who is my friend, announced Senator BYRD, Senator INOUYE, Sen- mittee rules broken or misinterpreted that he intends to leave the Senate ator KENNEDY, Senator BIDEN, Senator away. The broken committee rules and next year. He made no secret of his in- BAUCUS, Senator MURRAY, Senator precedent include the way that home- tent to run for the Republican nomina- BOXER, Senator FEINSTEIN, and others, state Senators were treated, the way tion for President. With that in mind, who have come to this floor to set the hearings were scheduled, the way the he is apparently prepared to become record straight. But this is a setting in committee questionnaire was unilater- the first majority leader in the history which Democratic Senators alone will ally altered, and the way the Judiciary of the Senate whose legacy would be a not be able to rescue the Senate and Committee’s own historic protection of significantly weakened Senate. Every our system of checks and balances the minority by rule IV was repeatedly other majority leader has left the Sen- from the breaking of the Senate rules violated. In the last Congress, the Re- ate stronger than it was or at least as being planned. If the rights of the mi- publican majority of the Judiciary strong as it was, as a check and bal- nority are to be preserved, if the Sen- Committee destroyed virtually every ance against an executive. This would ate is to be preserved as the greatest of custom and courtesy that used to help be the first time it would be left weak- parliamentary bodies, it will take at create and enforce cooperation and ci- er. least six Republicans standing up for vility in the confirmation process. I Many, unfortunately, on the other fairness and for checks and balances. ask unanimous consent to have printed side—many but not all—are apparently Now I know from my own conversa- in the RECORD a recent article from the ready to sacrifice the Senate’s role in tions that a number of Republican Sen- Wall Street Journal noting some of our constitutional system of checks ators know in their hearts this nuclear these developments. and balances. It is my hope that our option is the wrong way to go. I know There being no objection, the mate- system of checks and balances will be Republican Senators, with whom I rial was ordered to be printed in the preserved with a handful of Republican have had the privilege to serve for any- RECORD, as follows: Senators voting their conscience and where from 2 years to more than 30 [From the Wall Street Journal, May 3, 2005] standing up to the White House and its years, know better. I hope more than WAR OVER JUDGES IS NO LONGER A SUBTLE pressure. I know the zealotry of the six of them will withstand the political FIGHT narrow special interest leaders who are pressures being brought upon them and WASHINGTON.—Just 10 years ago, a Senate demanding this mutilation of the Sen- do the right thing and the honorable minority had several avenues for affecting a ate’s character. I am one of many who thing, and that they will put the Sen- president’s judicial nominations, from have been the target of their brutal ate first, the Constitution first, but es- closed-door maneuvers within the Judiciary and spurious personal attacks. pecially the American people first. His- Committee to quiet negotiations with the My hope is that a number of the fine tory and those who follow us will care- White House. women and men of both parties with fully scrutinize these moments and Now there is only one sure way, and it isn’t whom I am privileged to serve as a cus- these votes. Those voting to protect quiet at all: the filibuster. todian of our Nation’s liberties will act The gradual disappearance of other levers the rights of the minority will be on of influence is an often overlooked cause of in the finest traditions of the Senate. the right side of history. the battle over judicial nominations that is One of their number has come to this Like the senior Senator from Penn- raging in Washington. Both parties have floor in recent days to remind all Sen- sylvania, I remember President Ken- played a part, with the result that the Sen- ators of senatorial profiles in courage. nedy’s publication of ‘‘Profiles in Cour- ate stands on the brink of a governmental Sadly, it is that courage that will be age.’’ Along with so many Americans, I crisis. necessary to avert the overreaching remember reading about those Sen- Some analysts say the consequences could power grab now underway. ators who stood up to their party to be deep and lasting. Republicans are threat- There have been other recent threats vote against the conviction of Presi- ening to choose the ‘‘nuclear option’’ of to our system of government. Repub- using Senate rules to bar judicial filibusters. dent Andrew Johnson. More recently, I In the short term, Democrats have threat- lican partisans in the House, in a witnessed the strength it took for my ened to bottle up Republican legislative pri- standoff with President Clinton, shut friend, Senator Mark Hatfield, a distin- orities. But over the long term, some ana- down the Government in 1995. A few guished Republican, to cast a vote of lysts say, the ban could dilute the Senate’s years later, they impeached a popu- conscience against amending the Con- power and smooth the way for judicial larly-elected President for the first stitution. He did it under intense and choices reflecting the dominant ideological time in our history. Fortunately, the unfair pressures. I believe we are now blocs within the party holding the White Senate stood up and functioned as it seeing the current Senate leadership House. was intended during that trial and re- The filibuster once was a seldom-used taking the Senate to another precipice. threat that forced competing political camps jected those efforts. I was privileged to It will take the votes of independent to compromise—‘‘the shotgun behind the be one of those who worked with both and conscientious Republican Sen- door,’’ says Charles Geyh, a law professor at sides to make sure that trial ended the ators, such as Senator Hatfield, to pre- Indiana University. If it is disarmed, he adds, way it did. vent the fall. ‘‘The long-term impact is pretty scary. In 2000, a divided nation saw an elec- The Framers of the Constitution These devices have been stabilizing influ- tion decided by the successful litiga- warned against the dangers of fac- ences on the process for a long time.’’ tion of the Republican Party and the tionalism undermining our structural The chipping away at minority influence intervention of a narrow activist deci- separation of powers. Some in the Sen- began in the 1970s when Democratic Sen. Ted Kennedy of Massachusetts, then chairman of sion of the Supreme Court to stop vote ate have been willing to sacrifice the the Senate Judiciary Committee, attempted counting in Florida. Then we witnessed historic role of the Senate as a check to dilute the ability of a senator to employ Senator JEFFORDS virtually driven out on the President in the area of nomina- a common tactic for blocking unwelcome of the Republican caucus. We have seen tions. nominations. It was called the ‘‘blue slip’’— an aggressive executive branch that Under pressure from the White named for the color of the paper used by the has been aided by a compliant congres- House, over the last 2 years we saw the chairman to inform senators not on the com- sional majority. former Republican chairman of the mittee that the White House had submitted If the Senate’s role in our system of Senate Judiciary Committee lead Sen- a judicial nominee from their states. coequal branches of the Federal Gov- ate Republicans in breaking with long- A senator could object by checking off his or her disapproval or by refusing to return ernment is to be honored, it is going to standing precedent, in breaking the the blue slip to the chairman. For decades, take Republican Senators joining oth- rules, even committee rule IV, which opposition from a home-state senator was ers in standing up for the American was put in there at the request of Re- enough to kill a nomination. As a result, the people’s rights, the independence of the publicans to protect minorities. But blue slip was most commonly employed as a

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.020 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5385 lever for forcing negotiations with the White or judicial candidates rather than defeating firming more than 95 percent of this House. the nominees. President’s judicial nominees—208 of As President Jimmy Carter sought to put None of the filibusters succeeded until the them. his stamp on the federal bench in the late Democrats managed to block 10 of Mr. George Washington, the most popular Bush’s first-term appellate-court nominees. 1970s, Mr. Kennedy proposed a new blue-slip and powerful President in our history, policy. It allowed the Judiciary chairman to After his re-election, Mr. Bush resubmitted override a home-state senator’s objection if the names of seven of those candidates. was not successful in all of his judicial he concluded that opposition was based on Those are the nominees in contention today. nominations. The Senate rejected race or sex. The Massachusetts liberal met Mr. LEAHY. We suffered through 3 President Washington’s nomination of only mixed success, however, as other sen- years during which Republican staff John Rutledge to be Chief Justice of ators continued to respect the traditional stole Democratic files off the Judiciary the Supreme Court. For example. And blue-slip process. computer servers. It is as though those certainly I would hope that the current Two decades later, with Republicans in President would not assume he stands charge of the Judiciary Committee, they currently in power believe they are above our constitutional checks and higher in our history books than began using their clout to exercise what George Washington. Democrats called a ‘‘shadow filibuster’’ by balances and they can reinterpret any The truth is, in President Bush’s first simply refusing to give about 60 of President treaty, law, rule, custom, or practice. Bill Clinton’s judicial candidates a hearing term, the 204 judges confirmed were If they don’t like it or they find it in- more than were confirmed in either of or vote on the Senate floor. convenient, they set it aside. It was Republicans argue that the White House President Clinton’s two terms, more shared blame for some of the delays, saying tragic that the committee that judges than during the term of this Presi- some nominees hadn’t undergone back- the judges did not follow its own rules dent’s father, and more than Ronald ground checks when they were forwarded to but broke them to achieve a predeter- Reagan’s first term when he had a Re- the committee. But Republican Sen. Mitch mined result. publican majority in the Senate. By McConnell of Kentucky recently conceded on It was through these means that divi- last December, we had reduced judicial the Senate floor that the Democrats have ‘‘a sive and controversial judicial nomi- vacancies from the 110 vacancies I in- legitimate complaint’’ about how the Clin- nees were repeatedly brought before herited in the summer of 2001 to its ton appointees were treated. the Senate in the last Congress. It was In 2003, Republican Judiciary Chairman lowest level, lowest rate, and lowest Orrin Hatch of Utah changed the practice through these abuses that the majority number in decades, since President further. He proceeded with hearings on Bush acted as handmaidens to the adminis- Ronald Reagan was in office. judicial nominees even if they were vigor- tration to create confrontation after Unfortunately, this President has ously opposed by senators from the nomi- confrontation over controversial nomi- chosen confrontation over cooperation. nee’s home state. nees. They dragged the judiciary, In fact, it is mid-May, and he has only That change reduced the need for the which should be above politics, into the sent one new nomination to the Senate White House to negotiate with the Senate. political thicket and did so for partisan The result was diminished consultation be- all year. Im connection with that nom- gain. ination, Democrats on the Judiciary tween the president and the minority within I applaud the Senator from Pennsyl- the chamber, a practice that started with Committee have written to the Chair- President George Washington, and extended vania who has worked to bring us back man urging a prompt hearing. With the through the Clinton administration. Mr. in the Senate Judiciary Committee to support of the nominee’s home-state Clinton consulted with Mr. Hatch even on following our rules in the comity that Senators, one a Democrat and one a his two U.S. Supreme Court nominees, Ruth makes it work. I regret that filibusters Republican, the nomination of Brian Bader Ginsburg and Stephen Breyer. have been necessary in the past 2 Sandoval will be added to the long list In the last Congress, five judicial nominees years. I wish Republicans would not of judicial confirmations. had blue-slip problems, including four receiv- have followed their years of secret ing negative recommendations from both of But that leave 30 judicial vacancies Michigan’s Democratic senators. Even so, all holds and pocket filibusters of more without nominations. Back on April 11, five of them were approved by the committee than 60 of President Clinton’s nomi- the Democratic leader and I wrote to on party-line votes and advanced to the full nees, judicial nominees, and more than the President urging him to work with Senate, according to committee records. 200 of his executive nominees. I wish Senators of both parties to identify Democrats blocked final votes on all of they would not have flipped the script nominees for these 30 vacancies. To them. once a Republican became President date, he has not responded. Instead he, Before the current stalemate, the filibuster and dismembered the rules and tradi- his Vice President, his Chief of Staff had been used effectively against a judicial nominee just once. In 1968, a minority coalitions of the Judiciary Committee. and his spokesperson continue to prod tion of Republicans and Southern Democrats I have urged consultation and co- the Senate toward triggering the nu- blocked President Lyndon B. Johnson’s at- operation over the last 4 years. I had clear option. I ask unanimous consent tempt to elevate Supreme Court Justice Abe the privilege of chairing the Senate Ju- to have that letter printed in the Fortas, a supporter of civil rights and the diciary Committee for 17 months with RECORD. Great Society programs, to the chief jus- President Bush in the White House, There being no objection, the mate- tice’s chair. After a cloture vote to end the and we confirmed 100 of President rial was ordered to be printed in the filibuster failed, 45–43, Mr. Fortas asked the Bush’s judicial nominees, including a RECORD, as follows: president to withdraw his name. number of controversial nominees, in- U.S. SENATE, Republicans today discount the signifi- cluding some I was opposed to. I voted Washington, DC, April 11, 2005. cance of that vote, arguing it wasn’t clear Hon. GEORGE W. BUSH, Mr. Fortas would have been approved by the against them, but I made sure they got hearings. President, full Senate if the filibuster had been over- Washington, DC. come. By contrast, there is little doubt that The President and his enablers in the DEAR MR. PRESIDENT: There are currently President George W. Bush’s contested nomi- Senate cannot seem to take ‘‘yes’’ for 28 vacancies on the Federal courts of appeals nees could attract a majority in the cham- an answer. The Senate has confirmed and district courts for which you have not ber, where Republicans hold 55 seats. 208 of his judicial nominees and we are forwarded nominees to the Senate. We write Yet even in that 1968 debate, some senators withholding consent on 5. to offer to help you obtain consultation and recognized the possibility that the Fortas He rejects our advice, but he de- advice from the Senate on these vacancies so stalemate would echo in future debates. ‘‘If mands our consent. That is wrong, and that you may select nominees who will gen- we, for the first time in our history, permit erate strong, bipartisan support. a Supreme Court nomination to be lost in a that goes against the Constitution. The This evening the Senate is scheduled to fog of a filibuster,’’ cautioned Democratic Constitution speaks of advice and con- consider your nomination of Paul Crotty to Sen. Philip Hart of Michigan, ‘‘I think we sent, not order and rubberstamp. become a federal judge in New York. We ex- would be setting a precedent which would What the White House ignores is that pect Mr. Crotty to be confirmed with the come back to haunt our successors.’’ President Bush completed his first support of his home-state Senators and an After the Fortas battle, senators gradually term with the third highest total of overwhelming vote. We have each been urg- began reaching for the filibuster weapon. Ac- confirmed judges in our history—in our ing you for some time to work with the Sen- cording to a 2003 analysis by the Congres- history—and more Federal judges on ate to fill federal judicial vacancies with sional Research Service, the Senate held 17 qualified, consensus nominees. It is now im- votes to halt filibusters on judicial nominees the courts than at any time in our his- perative that we do so. between 1969 and 2002, although many were tory. The truth is, Senate Democrats When you met with Russian President intended to force negotiations on legislation have cooperated extensively in con- Putin earlier this year, you noted that

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.002 S18PT1 S5386 CONGRESSIONAL RECORD — SENATE May 18, 2005 checks and balances and an independent ju- Senate rules, violate the Senate rules, George Washington, our great first diciary are among the fundamental require- overturn the Senate rules, and end the President, reiterated the danger in his ments of democracy. We agree. We therefore filibuster by breaking those rules. famous Farewell Address to the Amer- urge you to make clear to Senate Republican They are intent on doing this—why?— ican People: leaders that you do not favor the so-called to force through the Senate this Presi- ‘‘nuclear option’’ which would remove an im- The spirit of encroachment tends to con- portant check on executive power. Instead, dent’s most controversial and divisive solidate the powers of all the departments in let us work together to identify consensus judicial nominees. one, and thus to create, whatever the form of judicial candidates. Let us preserve our inde- As the Reverend Martin Luther King, government, a real despotism. pendent judiciary, which is the envy of the Jr. wrote in his famous Letter From A Now, our freedoms as Americans are world. Birmingham Jail: the fruit of too much sacrifice to have Respectfully, Let us consider a more concrete example of the rules broken in the Senate, espe- HARRY REID, just and unjust laws. cially to break them in collusion with Democratic Leader. An unjust law is a code that a numerical or the executive branch. What ever hap- PATRICK LEAHY, power majority group compels a minority Ranking Member. group to obey but does not make binding on pened to the concept of separation of itself. This is difference made legal. By the powers? We all give great speeches on Mr. LEAHY. When it comes to the ju- same token, a just law is a code that a ma- the separation of powers. Don’t just diciary, the independent judiciary, the jority compels a minority to follow and that give the speeches, do not just talk the branch of Government always looked it is willing to follow itself. This is sameness talk, let’s walk the walk. at with most favor and most respect by made legal. The effort to appoint loyalists to Americans, wouldn’t it be good if the Fair process is a fundamental compo- courts in the hope that they will rein- President, in making his nominations, nent of the American system of law. If terpret precedents and overturn the would act as a uniter, not as a divider? we cannot have a fair process in these very laws that have protected our most Instead, the President has acted as a halls or in our courts, how will the re- fundamental rights as Americans is divider, not a uniter. He has sent the sulting decisions be viewed? If the rule base and wrong. The American people Senate divisive and controversial of law is to mean anything, it must deserve better than what we have seen nominees. When the Senate debates mean that it applies to all equally. The with the destruction of rule after rule them and withholds consent, he stub- rule of law must apply the same to Re- by a majority willing to sacrifice the bornly renominates them over and over publicans and Democrats. The rule of role of the Senate as a check and bal- again. Rather than work with us to law must apply the same to all Ameri- ance in order to aid a President deter- find consensus nominees, which usually cans. And certainly the rule of law mined to pack the Federal courts. It is pass this Senate 100 to nothing, he dis- must apply on the floor of the U.S. the courts themselves that serve as the parages us and exploits the issue as a Senate. check on the political branches. Their partisan matter. No man and no party should be above independence is critical and must be Under our Constitution, the Senate the law. That has been one of the preserved. has an important role in the selection strengths of our democracy. Our coun- Look at what we are talking about, of our judiciary. The brilliant design of try was born in reaction to the autoc- Mr. President. We have confirmed 208 our Founders established the first two racy and corruption of King George, judges. We are saying no to five. Is this branches of Government would work and we must not forget our roots as a a judicial crisis that should allow the together to equip the third branch to nation of both law and liberty. The majority to destroy the Senate? The serve as an independent arbiter of jus- best guarantee of liberty is the rule of record of 208 confirmations and reduc- tice. As George Will once wrote: ‘‘A law, meaning that the decisions of gov- tion of judicial vacancies to an historic proper constitution distributes power ernment are not arbitrary and that low provide no basis on which to break rules are not discretionary or enforced among legislative, executive and judi- the rules of the Senate. The Demo- to help one side and then ignored to aid cial institutions so that the will of the cratic leader’s efforts to make addi- another. tional progress demonstrate there is no majority can be measured, expressed in Mr. President, nothing I will ever do reason for the majority to take the policy and, for the protection of mi- in my life will equal the opportunity, drastic and irreversible step of ending norities, somewhat limited.’’ the honor, the privilege to be one of The structure of our Constitution protection of the minority through the the 100 serving in this Senate. But not and our own Senate rules of self-gov- tradition of extended debate in the one of this 100—who are privileged to ernance are designed to protect minor- serve at any given time to represent Senate. ity rights and to encourage consensus. The White House and Senate Repub- 280 million Americans—none of us owns lican leadership’s campaign for the nu- Despite the razor-thin margin of recent the Senate. The Senate will be here clear option seeks to end the role of elections, the majority party is not once we leave. It is our responsibility the Senate serving as a check on the acting in a measured way but in com- to leave the Senate as strong as it was executive. That is so shortsighted. It is plete disregard for the traditions of bi- when we came in. It is our responsi- partisanship that are the hallmark of bility, our sworn responsibility, to so wrong. It is so unjustified. We the Senate. When these traditions are leave the Senate the body that has al- fought a revolution in this country to followed, I can tell my colleagues from ways been a check and balance. have a Constitution that is designed to 31 years of experience, the Senate How can any Senator look himself or have the Senate provide balance and works better, and the American people herself in the mirror if they weaken act as a check. are better served. Instead, the current the Senate, if they allow the Senate to I will have more to say about these majority is seeking to ignore prece- no longer be the check and balance it important matters and about the nomi- dents and reinterpret longstanding should be? Why would anyone want to nation that the Judiciary Committee rules to its advantage. serve here if they come to this body previously rejected and that the Senate The practice of ‘‘might makes right’’ with that in mind? has previously debated as we proceed is wrong. The Senate’s rules should not James Madison, one of the Framers over the next several days. There is one be toyed with like a playground game of our Constitution, warned in Fed- other aspect of this matter I need to of King of the Hill, to be changed at eralist Number 47 of the very danger mention. I will say this in my indi- the whim of any current majority. that is threatening our great Nation, a vidual capacity as a Senator from The Senate majority leader seems in- threat to our freedoms from within: Vermont, as a man of faith, as a man tent on removing the one Senate pro- [The] accumulation of all powers legisla- who cares deeply about this institu- tection left for the minority, the pro- tive, executive and judiciary in the same tion, our country, our Constitution, tection of debate in accordance with hands . . . may justly be pronounced the our first amendment and our constitu- the longstanding tradition of the Sen- very definition of tyranny. tional provision that does not allow a ate and its standing rules. In order to That is what they are trying to do, religious test for those who serve. remove the last remaining vestige of put all the power into one hand. All of Supporters of a power-hungry execu- protection for the minority, the Repub- us should know enough of history to tive have gone so far as to seek to in- lican majority is poised to break the know we should not do that. ject an unconstitutional religious test

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.001 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5387 into the debate. All Americans should the rights of all Americans, including The PRESIDING OFFICER. The Sen- fear this. They have characterized our religious freedom. ator from Illinois. those who oppose the most extreme of Just this morning the distinguished Mr. DURBIN. I thank the Senator the President’s nominees as being senior Senator from Pennsylvania and from Vermont, not only for his excel- against faith, against people of faith. the distinguished senior Senator from lent statement this morning, but also They have called for mass impeach- Illinois conducted a hearing in the Ju- for his leadership in the Senate Judici- ment of judges and other measures to diciary Committee where they heard ary Committee. It has been my honor intimidate the judiciary, to remove the the testimony of Judge Joan Lefkow of to serve with him on that committee independence of the judiciary. I com- Chicago. She is the Federal judge during my tenure in the Senate. mend the President for personally re- whose mother and husband were mur- The point he made at the close of his jecting at least that demagoguery at a dered in their home. The hearts of all remarks bears repeating. We are debat- recent press conference. I wish he of us go out to her. She asked that we ing an important constitutional prin- would go further and tell those making repudiate the gratuitous attacks on ciple of checks and balances. We are these charges and inflammatory claims the judiciary, and I do so, again, here considering for the first time in over to stop. today. I ask those members of Congress 200 years the so-called ‘‘nuclear op- A Republican clergyman, Pat Robert- who are so quick to take the floor and tion’’ which will destroy one of the son, said he believes Federal judges are say let’s impeach judges or let’s con- rules of the Senate which has been used ‘‘a more serious threat to America demn judges or specific judges, to stop so many times on so many occasions than Al Qaeda and the September 11 it. Listen to what Judge Lefkow said: for so many different things. This is a terrorists’’ and ‘‘more serious than a In this age of mass communication, harsh strategy that has been put together by few bearded terrorists who fly into rhetoric is truly dangerous. Fostering dis- the leadership in the Senate and it un- buildings’’ and ‘‘the worst threat respect for judges can only encourage those doubtedly will occasion great debate in America has faced in 400 years—worse that are on the edge, or on the fringe, to this Chamber for many hours. than Nazi Germany, Japan, and the exact revenge on a judge who ruled against But I would like to admonish my col- Civil War.’’ them. leagues on both sides of the aisle to For shame. For shame. This is the We should stop those kinds of speech- take care in the words they use during sort of incendiary rhetoric that is pav- es, whether it is on this floor or the the course of this debate. This morning the way to the nuclear option. It is other body. They are beneath, us, all of ing, unfortunately, the majority leader wrong. It is destructive. Further, in- us. came to the floor and said the fol- jecting religion into politics to claim a I remember Justice Sandra Day lowing: monopoly on piety and political truth O’Connor made a similar observation. I The issue is not cloture votes per se; it is by demonizing those you disagree with recently spoke with her and told her the partisan leadership-led use of cloture is not the American way. how much I appreciated that. votes to kill, to defeat, to assassinate these As Abraham Lincoln has said: The Senator from Pennsylvania nominees. I know that the Lord is always on the side spoke about Benjamin Franklin. Let I know the majority leader. I know of the right, but it is my constant anxiety me reiterate. In September 1787, as the him to be a man of genuine caring and and prayer that I and this nation should be Constitutional Convention drew to a humanity. He has proven that so many on the Lord’s side. close, someone came up to Benjamin times in his personal life as a doctor, He was so right. We all would do well Franklin to ask whether all of the ar- as a surgeon, as a person who has taken spending a little more time wondering duous work of drafting the Constitu- on humanitarian causes which many in whether we are on God’s side and less tion produced a republic or a mon- the Senate would shrink from. And so time declaring infallibly that He is on archy. Benjamin Franklin told them, I know those words, if they were given ours. ‘‘A Republic, if you can keep it.’’ to him by someone, do not reflect his Those driving the nuclear option en- We have fought world wars, a civil heart. And if they were said in a mo- gage in a dangerous and corrosive game war, we have gone through elections, ment without thinking, it is something of religious McCarthyism in which any- assassinations, changes in Govern- we could all make a mistake and do. one daring to oppose one of this Presi- ment, we have gone through all these But I would urge him and urge each dent’s nominees is being branded as traumas, the Great Depression, and at- and every one of us to choose words anti-Christian or anti-Catholic or tacks on our soil. In all of it we have carefully in the debate about judges. against people of faith. joined together to keep this Republic. We were reminded this morning with Dr. Dobson of Focus on the Family We have kept our freedoms through the testimony of Judge Lefkow before said of me, ‘‘I do not know if he hates checks and balances, checks and bal- the Senate Judiciary Committee how God but he hates God’s people.’’ ances woven through our constitu- important words can be. She called for I wonder every Sunday when I am at tional system so brilliantly by our a variety of things we can do to protect mass, what planet is this person from? Founders. Those checks and balances judges across America, but she also When Senator HATCH was attacked can easily be unthreaded and unwoven went to the question of words. She during his Presidential campaign on by the abuse of power. Let us hope that said: his religion, I came to his defense. never happens. Remember, it can hap- Frankly, I ask you— When Senator LOTT was under attack, pen not just through big steps, it can The Senate Judiciary Committee— Senators JEFFORDS and SPECTER spoke happen through small steps. to publicly and persistently repudiate gratu- in his defense. This action that is being proposed to itous attacks on the judiciary such as the re- When they charge us with being the Senate, the nuclear option, is a cent statement of Pat Robertson on national against people of faith for opposing large step, a large abuse of power, a television and, unfortunately, some Members nominees, what are they saying about step with consequences we can only of Congress, albeit in much more measured the 208 Bush judicial nominees whom begin to imagine. It would be a vote for terms. Democrats have voted for and helped confrontation over consensus. I hope Judge Lefkow understands as I do confirm? Are they saying the five we each of us will reflect on its con- and every Member of the Senate that oppose are people of faith but the 208 sequences, and then, in the end, such a we live in a country that prides itself we voted for are not? Are they by defi- travesty will never befall the Senate. on freedom, the freedom to express nition people without faith? Mr. President, how much time is re- yourself, the freedom for people to say These kinds of charges, this virulent reli- maining to the Senator from Vermont? things without fear that the Govern- gious McCarthyism, is fraudulent on its face. The PRESIDING OFFICER. There is ment will come down on them, even if It is contemptible. It is contemptible. 101⁄2 minutes. we hate every word they say. But the Chief Justice Rehnquist is right to Mr. LEAHY. Mr. President, I see the point she was making was to take care, refer to the Federal judiciary as the distinguished deputy Democratic lead- to denounce those comments that cross crown jewel of our system of govern- er in the Chamber and I will yield the the line. ment. It is an essential check and bal- remainder of my time to the Senator When we hear in this debate about ance, a critical source of protection of from Illinois. changing the rules of the Senate as it

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.024 S18PT1 S5388 CONGRESSIONAL RECORD — SENATE May 18, 2005 relates to judges, let us take care to tory. Those Founding Fathers who one of the examples of our side treating understand there are differences of wrote the Constitution made the Sen- a Democratic President’s nominee un- opinion as to whether these men and ate a special institution, an institution fairly. As this chart aptly dem- women who are being discussed share where, in fact, minority rights and the onstrates, if we would agree to treat the views of many Americans, whether minority’s opportunity to speak would Priscilla Owen exactly the way that their views are extreme. But the issue always be protected. To take away Paez was treated, then Priscilla Owen is not about them personally. those minority rights by Vice Presi- would be sitting on the Fifth Circuit Some have suggested you can’t op- dent CHENEY making a casual ruling today, just as Judge Paez is now serv- pose a judicial nominee here unless you from the Chair, to sweep away 214 ing on the circuit court in the Federal oppose that nominee’s gender, that years of precedent and rules so that judiciary. In other words, this is not an nominee’s religion, that nominee’s someone can score a quick victory in example justifying the actions being race, that nominee’s ethnic back- terms of even 1, 2, or 10 judges is en- taken against this President’s nomi- ground, that nominee’s upbringing. All tirely inappropriate. nees. This is an example of why the ob- of those things are false. My consider- I hope there will be enough Members struction we have seen is wrong and ation of these nominees has gone to the on the other side of the aisle who un- unfair. All we are asking for in this de- heart of the issue. I consider myself to derstand our special responsibility. It bate is a simple up-or-down vote for be without prejudice. I hope I am. I do is an historic responsibility. It goes be- this President’s nominees. my best to avoid it in everything I say yond this President. It goes beyond any Priscilla Owen has been waiting 4 and do. But for those who come to the political party, and it certainly goes years for that simple up-or-down vote, floor and say you can’t oppose this beyond the press release of the day. It which is all we are asking for. As I nominee unless you are in a position goes to the heart of why we are en- said, 4 years ago, Priscilla Owen was where you disagree with their religion, trusted with this responsibility to nominated to serve on the U.S. Circuit that is just plain wrong. There are so serve in the Senate. We are hoping that Court of Appeals. She serves currently many lines that are crossed between when the nuclear option comes, there and has served on the Texas Supreme religious and political belief. The issue will be Senators willing to stand up for Court, where I had the honor of serving of the death penalty in my Catholic re- this tradition and for these constitu- with her. She is an exceptional jurist, a ligion is one that is hotly debated tional values. devoted public servant, and an extraor- among Catholics. Many of the leading I yield the floor. dinary Texan. Yet after 4 years, she The PRESIDING OFFICER. The Sen- Catholic legislators, Republican and still awaits an up-or-down vote on the ator from Texas. Catholic, disagree in their votes with Mr. CORNYN. Mr. President, I have Senate floor. This is the irony of where we find the church’s official position. But it is been listening to the debate. The peo- ourselves. Although a bipartisan ma- a public issue that should be discussed ple who may be listening to this across jority stands ready to confirm her and it doesn’t reflect on the nominee or the country and around the world on nomination, a partisan minority ob- the religion of a Congressman or Sen- television, to the extent they are fol- structs the process and refuses to allow ator when we discuss it. lowing it, may be forgiven if they won- a vote. What is more, this partisan mi- So when words are expressed during der what is going on. People are talk- nority insists for the first time in his- the course of the debate that those of ing about what we are doing on the us who oppose these nominees are set- floor in such breathless and nearly tory that she must be supported by a ting out to kill, to defeat, or to assas- apocalyptic terms, referring to the nu- supermajority of 60 Senators, rather sinate these nominees, those words are clear option. This is not about Amer- than the constitutional standard and inappropriate. Those words go too far. ica’s foreign policy. This is about the Senate tradition of a majority vote. Let me remind those who follow this I know Priscilla personally. It is hard rules of the Senate and the power of for me to reconcile the caricature that debate, as I said earlier, the majority the Senate to determine for itself the most people have seen drawn of her by leader is a good man, a humane man, a rules by which we are governed. It is some of the rhetoric used, certainly, sensitive man who has been closer to certainly an important matter, but we life and death than any of us in this should tone down our rhetoric a little with what I know about her personally. Chamber, and I believe those words and try to address squarely the issue. Those who know her would not recog- given to him were inappropriate, and if I worry when I hear Senators use nize her from the caricature being cre- they were said in a careless moment I words such as ‘‘despicable,’’ ‘‘Nean- ated in the Senate and elsewhere when am sure do not reflect his heart. derthal,’’ ‘‘scary,’’ or ‘‘kook’’ in de- talking about this outstanding nomi- But let us take care during the scribing nominees by this President to nee. course of this debate to understand the Federal bench. I would have She is a distinguished jurist and a that our differences as to these nomi- thought that kind of rhetoric was un- distinguished public servant. She has nees come down to issues of law and becoming to a body such as the Senate, excelled at virtually everything she public policy which members of the ju- sometimes called the world’s greatest has undertaken. She was a top grad- diciary decide. If I disagree with one of deliberative body. I hope during the uate of her law school class at the re- these nominees or any judge as to their course of the debate we will take a markable age of 23 years and received opinions, it is not going to reflect any- deep breath, as we try to calmly but the top score on the Texas bar exam- thing on them personally. It reflects on deliberately address the issues that lie ination. She entered the legal profes- the fact that we have to make deci- before us. That is what I will strive to sion at a time when few women did. sions as to whether they should serve do for my part. After a distinguished record in private on the bench. I want to talk in particular about practice, she reached the pinnacle of This is a historic moment in the Sen- Priscilla Owen. Before I do, I neglected the Texas bar, which is the Texas Su- ate. There may never be another one to ask unanimous consent that I be al- preme Court. She was supported by a like it. We are considering a change in lotted 20 minutes out of our side’s larger percentage of Texans in her last the Senate, a change in this institution time. election than any of her colleagues—84 which, sadly, will ripple out as a pebble The PRESIDING OFFICER. Without percent—after enjoying the endorse- in a pond for generations to come. This objection, it is so ordered. ment of virtually every newspaper in is not an isolated case involving one, Mr. CORNYN. I want to respond first the State. She has been honored as the two, or five judges. It is a change in the to an argument made earlier this Young Lawyer of the Year by her alma Senate rules that will uniquely change morning. This is in the category of we mater, as well as an outstanding alum- this special institution. can disagree about matters of opinion na of Baylor University. I fear that many of the people in the and matters about policy, but we The irony in this partisan obstruc- White House and on the floor of the should not disagree about the facts, tion of a bipartisan majority who stand Senate who are grabbing for this polit- when the facts are so plainly there be- ready to confirm her is that Priscilla ical victory don’t realize it is going to fore us and evident. Owen enjoys bipartisan support in the change an important institution we Richard Paez, a nominee of President State of Texas. Three former Demo- have counted on throughout our his- Clinton, has been held up as perhaps cratic judges on the Texas Supreme

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.025 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5389 Court, as well as a bipartisan group of the use of the filibuster to prevent ju- For example, she was accused of rul- 15 past presidents of the State bar of dicial nominees from receiving an up- ing against injured workers, employ- Texas support this nominee. or-down vote. One of our colleagues, ment discrimination plaintiffs, and The Houston Chronicle, one of our the senior Senator from Massachu- other sympathetic parties on a variety major newspapers, in the year 2000 setts, said in 1998: of occasions. Never mind the fact that called her ‘‘[c]learly academically gift- Nominees deserve a vote. If our . . . col- good judges, such as Justice Owen, do ed,’’ stating that she ‘‘has the proper leagues don’t like them, vote against them. their best to follow the law, regardless balance of judicial experience, solid But don’t just sit on them—that is an ob- of which party will win and which legal scholarship, and real-world know- struction of justice . . . party will lose. That is what good how to continue to be an asset on the The senior Senator from Vermont, in judges do. Never mind that many of her high court.’’ 1998, said: criticized rulings were unanimous or The Dallas Morning News, another I have stated over and over on this floor near-unanimous decisions of a nine- major newspaper in our State, wrote on that I would refuse to put an anonymous member Texas Supreme Court. Never September 4, 2002: hold on any judge; that I would object and mind that many of these rulings sim- She has the brainpower, experience and fight against any filibuster on a judge, ply followed Federal precedents au- temperament to serve ably on an appellate whether it is somebody I opposed or sup- thored or agreed to by appointees of court. ported; that I felt the Senate should do its President Carter and President Clin- duty. The Washington Post wrote in 2002: ton, or by other Federal judges unani- She should be confirmed. Justice Owen is I could not agree more with those mously confirmed by the Senate. And indisputably well qualified. comments made in 1998 from the very never mind the fact that judges often Priscilla Owen is not just intellectu- same colleagues who today oppose the disagree, especially when a law is am- ally capable and legally talented, she is same principle they argued for a few biguous and requires careful and dif- also a fine human being with a big short years ago. We are doing a dis- ficult interpretation. heart. The depth of her humanity and service to the Nation and a disservice One of the focal points on Justice compassion is revealed through her sig- to this fine nominee in our failure to Owen’s record is a criticism of enforc- nificant free legal work and commu- afford her that up-or-down vote. ing a popular Texas law that requires nity activity. In fact, she has spent The new requirement the partisan parental notification before a minor most of her life devoted to her commu- minority is now imposing—that nomi- can obtain an abortion. Her opponents nity. She has worked, for example, that nees will not be confirmed without the allege in the parental notification case all citizens be ensured access to jus- support of 60 Senators—is, by their own that then-Justice Alberto Gonzales, tice, as the Texas Supreme Court’s rep- admission, unprecedented in Senate our current Attorney General, accused resentative on the mediation task force history. The reason for this is simple. her of ‘‘judicial activism.’’ I heard that of that court, as well as her service on The case for opposing this fine nominee argument again this morning on the statewide committees of lawyers and is so weak that using a double standard floor, notwithstanding the fact the her successful efforts to prompt the and changing the rules is the only way charge is demonstrably untrue. Texas Legislature to provide millions they can hope to defeat her nomina- For any Member to repeat this argu- of dollars per year for legal services to tion. What is more, they know it. ment that is simply not true, in spite the poor. Before her nomination was caught up of the fact that it has been dem- She was instrumental in organizing a in partisan special interest politics, the onstrated that it is not true, is to me group known as Family Law 2000, ranking Democrat on the Judiciary an unconscionable act of distortion of which seeks to find ways to educate Committee predicted that Priscilla the facts. Here again, we can disagree parents about the effect that divorce Owen would be swiftly confirmed. On about the policies, and we can even de- can have on their children and to less- the day of the announcement of the cide to vote differently on a nominee, en the negative impacts therefrom. She first group of nominees, including Jus- but let’s not disagree on the facts when teaches Sunday school at her church, tice Owen, he said he was ‘‘encour- they are so clear. Not once did Alberto St. Barnabas Episcopal Mission in Aus- aged’’ and that ‘‘I know them well Gonzales say Justice Owen is guilty of tin, TX, where she is an active mem- enough that I would assume they’ll go judicial activism. To the contrary, he ber. It is plain, from these and so many through all right.’’ never even mentioned her name in the other examples, that Justice Owen Notwithstanding the change of atti- particular opinions that are being dis- bears no resemblance to the caricature tude by the partisan minority, this cussed. Furthermore, our current At- that has been painted of her in the Sen- gridlock is really not about Priscilla torney General has since testified ate. She is, in fact, a fine person and a Owen. Indeed, just a few weeks ago the under oath that he never accused Jus- distinguished leader of the legal com- Democratic leader announced that Sen- tice Owen of any such thing. munity. ate Democrats would give Justice What’s more, the author of the pa- One would think that after 4 long Owen an up-or-down vote, albeit only if rental notification law that was at years, she would be afforded the simple other nominees were defeated or with- issue supports Justice Owen for this justice of an up-or-down vote. I remain drawn. Obviously, with these kinds of nomination, as does the pro-choice, optimistic, hopeful, that this violation offers being made based on cutting Democratic law professor who was ap- of many years of Senate tradition, the deals and pure politics, this debate is pointed to the Texas Supreme Court imposition of a new supermajority re- not about principle. It is all about poli- advisory committee who was supposed quirement of 60 votes, will be laid aside tics. It is shameful. to write rules, and did write rules, to in the interest of proceeding with the We should all subscribe to the notion implement the law. In her words, Owen people’s business, a job my colleagues that any nominee of any President, if simply did ‘‘what good appellate judges and I were elected to faithfully exe- they enjoy majority support in the do every day. . . . If this is activism, cute. Senate, should get an up-or-down vote. then any judicial interpretation of a For more than 200 years, it was a job I am talking about whether we have a statute’s terms is judicial activism.’’ that we faithfully executed when it Democrat in the White House or a Re- Mr. President, I ask unanimous con- came to voting on a President’s judi- publican, whether we have Democrat sent that this letter be printed in the cial nominees. Senators from both majorities in the Senate or Republican. RECORD at the end of my remarks. sides of the aisle exercised mutual re- The rules should apply across the The PRESIDING OFFICER. Without straint and did not abuse the privilege board exactly the same to all nomi- objection, it is so ordered. of debate out of respect for two coequal nees, regardless of who wins and who (See exhibit 1.) branches of government—the execu- loses from a political consideration. Mr. CORNYN. Mr. President, the tive, that has a constitutional right to But what bothers me most is that American people know judicial activ- choose his or her nominees, and an any fair examination of Justice Owen’s ism when they see it. They know a con- independent judiciary. record demonstrates how unconvincing troversial ruling that is totally out of Until 4 years ago, colleagues on both and unjustified the critics’ arguments step with a judge’s accepted role in our sides of the aisle consistently opposed are against her specifically. form of government when they see it,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.027 S18PT1 S5390 CONGRESSIONAL RECORD — SENATE May 18, 2005 whether it be the redefinition of mar- never intended for Congress to have with integrity and energy. She is not a judi- riage, the expulsion of the Pledge of Al- such unchecked authority to impose cial activist. She does not legislate from the legiance from our classrooms and other supermajority voting requirements bench. She does not invent the law. Nothing in her opinions while on the Texas Supreme expressions of faith from the public that fundamentally change the nature Court could possibly lead to a contrary con- square, the elimination of the three- of our democratic processes.’’ clusion, including her parental notification strikes-and-you’re-out law, and other Georgetown law professor Mark opinions. I suspect that Priscilla Owen’s penalties for convicted criminals, or Tushnet has written that ‘‘[t]he Demo- nomination is being blocked because she is the forced removal of military recruit- crats’ filibuster is . . . a repudiation of perceived as being anti-choice on the abor- ers from college campuses. Justice a settled, pre-constitutional under- tion issue. Owen’s rulings come nowhere near standing.’’ He has also written: This perception stems, I believe, from a se- ‘‘There’s a difference between the use ries of opinions issued by the Texas Supreme those examples of judicial activism Court in the summer of 2000 interpreting the that we would all recognize clearly and of the filibuster to derail a nomination Texas statute that requires parental notifi- plainly. and the use of other Senate rules—on cation prior to a minor having an abortion. There is a world of difference be- scheduling, on not having a floor vote The statute also provides for what is called tween struggling to interpret the am- without prior committee action, etc.— a ’’judicial bypass’’ to parental notification. biguous expressions of a statute and re- to do so. All those other rules . . . can Justice Owen wrote several concurring and fusing to obey a legislature’s directives be overridden by a majority vote of the dissenting opinions during this time. She has altogether, or substituting one’s per- Senate . . . whereas the filibuster can’t been criticized for displaying judicial activ- be overridden in that way. A majority ism and pursuing an anti-choice agenda in sonal views or agenda for the words of these opinions. This criticism is unfair for a statute. of the Senate could ride herd on a two reasons. It is clear, then, that Justice Owen’s rogue Judiciary Committee chair who First, the Texas statute at issue in these record deserves the broad and bipar- refused to hold a hearing on some cases contains many undefined terms. Fur- tisan support that she has gotten, and nominee; it can’t do so with respect to ther, the statutory text is not artfully draft- it is equally clear that her opposition a filibuster.’’ ed. I was a member of the Texas Supreme only comes from a narrow band on the And Georgetown law professor Susan Court’s Advisory Committee that drafted far-left fringes of the political spec- Low Bloch has condemned super- rules in order to help judges when issuing decisions under this parental notification stat- trum. majority voting requirements for con- ute. My involvement in this process made it So if the Senate were simply to fol- firmation, arguing that they would clear to me that in drafting the parental no- low more than 200 years of consistent allow the Senate to ‘‘upset the care- tification statute, the Texas Legislature Senate and constitutional tradition, fully crafted rules concerning appoint- ducked the hard work of defining essential dating back to our Founders, there ment of both executive officials and terms and placed on the Texas courts a real would be no question about her being judges and to unilaterally limit the burden to explicate these terms through case confirmed; she would be. Legal scholars power the Constitution gives to the law. across the political spectrum have long President in the appointment process. Moreover, the statute’s legislative history is not useful because it provides help to all concluded what we in this body know This, I believe, would allow the Senate sides of the debate on parental notification. instinctively, and that is to change the to aggrandize its own role and would Several members of the Texas Legislature rules of confirmation, as the partisan unconstitutionally distort the balance wanted a very strict parental notification minority has done, badly politicizes of powers established by the Constitu- law that would permit only infrequent judi- the judiciary and hands over control of tion.’’ cial bypass of this notification requirement. the judiciary to special interest groups. She even wrote on March 14, 2005: But several members of the Texas Legisla- Mr. President, 4 years is a long time. ‘‘Everyone agrees: Senate confirmation ture were on the other side of the political The majority leader and those who sup- requires simply a majority. No one in debate. These members wanted no parental port this nominee’s confirmation have notification requirement, and if one were im- the Senate or elsewhere disputes that.’’ posed, they wanted courts to have the power shown extraordinary patience during Mr. President, the record is clear. to bypass the notification requirement eas- this debate. But there is a point at The Senate tradition has always been ily. The resulting legislation was a product which patience ceases to be a virtue, majority vote, and the desire by some of compromise with a confusing legislative and I suggest that we have reached to alter that Senate tradition has been history. that point. We need a resolution of this roundly condemned by legal experts In her decisions in these cases, Justice issue. We need for Senators to step up across the political spectrum. Owen asserts that the Texas Legislature and to vote ‘‘yes’’ or vote ‘‘no.’’ But we Throughout our Nation’s more than wanted to make a strong statement sup- 200-year history, the constitutional porting parental rights. She is not wrong in simply need for them to vote. making these assertions. There is legislative The record is clear. The Senate tradi- rule and Senate tradition for con- history to support her. Personally, I agree tion has always been majority vote, firming judges has been majority with the majority in these cases. But I un- and the desire by some to alter that vote—and that tradition must be re- derstand Justice Owen’s position and legal Senate tradition has been roundly con- stored. After four years of delay, giving reasoning. It is based on sound and clear demned by legal experts across the Justice Priscilla Owen an up-or-down principles of statutory construction. Her de- spectrum. vote would be an excellent start. cisions do not demonstrate judicial activism. She did what good appellate judges do every Professor Michael Gerhardt, who ad- EXHIBIT 1 vises Senate Democrats about judicial day. She looked at the language of the stat- MAY 3, 2005. ute, the legislative history, and then decided confirmations, has written that a Re Priscilla Owen. how to interpret the statute to obtain what supermajority requirement for con- Hon. JOHN CORNYN, she believed to be the legislative intent. firming judges would be ‘‘problematic, Hart Senate Office Building, If this is activism, then any judicial inter- because it creates a presumption Washington, DC. pretation of a statute’s terms is judicial ac- against confirmation, shifts the bal- DEAR SENATOR CORNYN: I write in support tivism. Justice Owen did not invent the leg- ance of power to the Senate, and en- of the nomination of Priscilla Owen to the islative history she used to reach her conclu- hances the power of the special inter- United States Court of Appeals for the Fifth sion, just as the majority did not invent Circuit. I write as a law professor who spe- their legislative history. We ask our judges ests.’’ cializes in constitutional law. I write as a to make hard decisions when we give them D.C. Circuit Judge Harry Edwards, a pro-choice Texan, who is a political inde- statutes to interpret that are not well draft- respected Carter appointee, has written pendent and has supported many Democratic ed. We cannot fault any of these judges who that the Constitution forbids the Sen- candidates. And I write as a citizen who does take on this task so long as they do this ate from imposing a supermajority rule not want the abortion issue to so dominate work with rigor and integrity. Justice Owen for confirmations. After all, otherwise, the political debate that good and worthy ju- did exactly this. ‘‘[t]he Senate, acting unilaterally, dicial candidates are caught in its cross Second, we must be mindful that the deci- could thereby increase its own power hairs, no matter where they stand on the sions for which she is being criticized had to issue. do with abortion law. I do not know if Jus- at the expense of the President’’ and Justice Owen deserves to be appointed to tice Owen is pro-choice or not, but it does ‘‘essentially take over the appointment the Fifth Circuit. She is a very able jurist in not matter to me. I am pro-choice as I stated process from the President.’’ Edwards every way that should matter. She is intel- before, but I would not want anyone placed thus concluded that ‘‘the Framers ligent, measured, and approaches her work on the bench who would look at abortion law

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.029 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5391 decisions only through the lens of being pro- Mrs. HUTCHISON. Madam President, had created a vaccine to combat the choice. Few categories of judicial decisions I am very pleased my colleague, Sen- scourge of polio. One of Pat’s best are more difficult than those dealing with ator CORNYN, has made a wonderful friends remembers him exclaiming: abortion. A judge has to consider the fact statement about Priscilla Owen. He is ‘‘This is wonderful. This means my that the fetus is a potential human, and this potential will be ended by an abortion. All one of the few people who has actually daughter will never have to worry judges, including those who are pro-choice, served with her, being a member of the about being crippled by that disease.’’ must honor the spiritual beauty that is po- Texas Supreme Court with her. So hav- When Pat arrived back in Texas and tential human life and should grieve its loss. ing his insight into her as a profes- was discharged, he accepted a job with But a judge has other important human val- sional is, I think, very enlightening for the extension service that took him to ues to consider in abortion cases. A judge the record of this debate. I thank my south Texas. Suddenly, over a single also has to consider whether a woman’s inde- colleague from Texas, who is one of the weekend, he contracted bulbar polio. pendence and rights may well be unconsti- few people in the Senate who actually tutionally compromised by the arbitrary ap- He was rushed into an iron lung—and plication of the law. All this is further com- has been a state Supreme Court jus- died in a Houston hospital. Priscilla pounded when a minor is involved who is tice. I think that gives him a par- Owen was 10 months old. contemplating an abortion. I want judges ticular advantage in talking about her As you would expect, the sudden who will make decisions in the abortion area as a judge with judicial temperament, death of this promising young man with a heavy heart and who, therefore, will the demeanor of a judge, and her quali- sent his entire family into shock, espe- make sure of the legal reasoning that sup- ties as a judge. I thank my colleague. cially his wife. Priscilla’s mother reports such decisions. Mr. President, I am going to talk I think the members—all the members—of treated to a family farm in today about Priscilla Owen as a person. Collegeport, Texas. She stayed there the Texas Supreme Court did exactly this I think it is a part of this debate that when they reached their decisions in the pa- for five years grieving and trying to re- rental notification cases. I was particularly has never really been brought forth. I assemble her life. Eventually, she re- struck by the eloquence of Justice Owen am here to support her because she has married, and the small family moved when she discussed the harm that may come been a stellar representative of the to what was considered the big city, to a minor from having an abortion. She rec- judges in our country, as she has wait- Waco, Texas. That is where Priscilla ognized that the abortion decision may ed more than 4 years since she was Richman Owen grew up and went to haunt a minor for all her life, and her par- nominated to have an up-or-down vote ents should be her primary guides in making school. by the Senate. We have voted on Pris- Priscilla became a top student. She this decision. Surely, those of us who are cilla Owen, and she has won confirma- pro-choice have not come to a point where was a class officer. She worked part we would punish a judge who considers such tion four times in the Senate. But here time in high school and college at her harm as an important part of making a deci- we are again trying to get a vote that stepfather’s insurance business, and sion on parental notification, especially will put her in the office to which she she sent out premium notices and post- when legislative history supports the fact has been nominated and for which she ed payments. During summers, she re- that members of the Texas Legislature want- has received the majority vote. turned to Collegeport, helping run cated to protect the minor from this harm. As I have heard my colleagues, and some a pro-choice woman, I applaud the serious- tle and work in the rice field. As a interest groups, use very extreme lan- teenager, she spent long days during ness with which Justice Owen looked at this guage to describe Priscilla Owen. These Issue. the rice harvest driving the auger statements are coming, in many cases, If I thought Justice Owen was an agenda- wagon, taking rice from the wet fields driven jurist, I would not support her nomi- from people who have never met her to a kiln and drying them. and whose minds were made up before nation. Our founders gave us a great gift in Priscilla Richman started college at they ever learned one thing about her. our system of checks and balances. The judi- the University of Texas at Austin. cial branch is part of that system, and it is I want to spend a few minutes talking After a year, though, she returned imperative that it be respected and seen as about Priscilla Richman Owen, the per- home to Waco to be closer to her fam- acting without bias or predilection, espe- son that is known to those of us in ily, and she enrolled at Baylor Univer- cially since it is not elected. Any agenda- Texas who have seen her as a profes- driven jurist—no matter the issue—threat- sity. Her academic record was good, we ens the honor accorded the courts by the sional. Last month, I was sent an interesting should say, but it was not perfect. It American people. This is not Priscilla Owen. was not perfect. She got one B-plus— So even though I suspect Justice Owen is document. It was the newsletter of the graduating class of Texas A&M Univer- one B-plus in all of her days in college more conservative than I am and even and law school. The rest were A’s. Pris- though I disagree with some of her rulings, sity, the class of 1953. A prominent this does not change the reality that she is story had the headline: ‘‘Pat cilla Owen advanced to law school after an extremely well-qualified nominee who Richman’s Legacy.’’ It told a story al- only three years of college. She was should be confirmed. most nobody in the class knew—that named editor of the Baylor Law Re- It would be unfair to place Priscilla Owen Pat Richman, of Palacious, TX, who view. in the same category with other nominees She finished college and law school who, in my opinion, are judicial activists and had died tragically only 2 years after their graduation from Texas A&M and after five years and three months, and who I do not support. Some of these other when she took the Texas bar exam in nominees appear to want to dismantle pro- had left a baby daughter, that daughter grams and policies based on a political or of their beloved classmate is now at 1977 at age 23, she got the highest score economic agenda not supported by legal the center of a national controversy. in the State. analysis or constitutional history. They ap- Pat Richman was a leader of the Priscilla Owen was recruited into the pear to want to push their views on the coun- Corps of Cadets at Texas A&M, first Andrews Kurth law firm, one of the try while sitting on the bench. Priscilla sergeant of his company, and later its biggest in Houston, as a litigator at a Owen should not be grouped with them. Jus- battalion commander. He was one of time when women were not really in tice Owen possesses exceptional qualities the stars of the class, one of its most the courtroom very much. She was that have made and will make her a great highly successful, creating a statewide judge. I strongly urge her confirmation. promising leaders. Pat Richman en- Sincerely, tered active duty in the U.S. Army reputation in oil and gas litigation. LINDA S. EADS, upon graduation and was shipped to She chaired the firm’s recruitment Associate Professor of Law. Korea eight months later, but not be- committee and was made a partner of The PRESIDING OFFICER. The Sen- fore marrying his long-time sweet- the firm at the age of 30. ator has used his time. heart. When the boat left, his wife was In 1993, when she had been at An- Mr. CORNYN. I see my colleague, the pregnant. drews Kurth for 17 years, she was asked senior Senator from Texas, on the Pat returned from Korea in May, to run for election to the Texas Su- floor, and she intends to speak on the 1955, having served his country, having preme Court as a Republican. Although same subject. done his duty to our Nation. Priscilla judicial nominees run by party in I yield the floor. was 7 months old. He had never seen Texas, she was really apolitical. She The PRESIDING OFFICER (Ms. MUR- his baby daughter. On the way back had made donations to judicial can- KOWSKI). The Senator from Texas, Mrs. across the Pacific, news came to the didates in both parties just trying to be HUTCHISON, is recognized. ship. Researchers, led by Jonas Salk, a contributor and a community leader.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.006 S18PT1 S5392 CONGRESSIONAL RECORD — SENATE May 18, 2005 I am amused when I hear interest sought a State government salary and Justice Owen in the newspapers about groups say that Priscilla Owen is a par- gave up her big law firm partner share. all of these activities she has under- tisan, an ideologue. In 1993, when she The Code of Judicial Ethics restricts taken just to make our State and her was asked to run for the Supreme her off-bench activities. She cannot community a better place to live. Jus- Court of Texas, she could not remem- help raise funds even for her church. tice Owen is not a particularly public ber in what primary she had voted. It But she has devoted countless hours to- person. In fact, as you may have read would have been determined by the ward helping the less fortunate, those in the press last week, members of her judge races at the time and whether in need, and improving access to the church had no idea what she did for a there was a race in the Democratic or judicial system. living until a story appeared about her Republican primaries. She was told it For example, Justice Owen is a dog and this controversy in the Austin would be difficult to run on the ticket enthusiast and serves on the board of newspaper. if she had not voted in the primary in Texas Hearing and Service Dogs. This Throughout her four years awaiting a the previous election, and she had to go organization rescues dogs from pounds, Senate vote, Priscilla Owen has not down to the courthouse to find out in provides expensive training for them, complained, not in public, not in pri- which primary she had voted. It was and then gives the dogs to vate. She has sat quietly by as people Republican, and so she said yes. quadriplegics, paraplegics, and the who do not have the faintest idea what As it happened, in 1994, when she was hearing and sight impaired—people she is really like have vilified her, dis- running, I was running for reelection, who cannot afford these trained ani- torted her opinions, and questioned her and we campaigned together. I invited mals on their own. The dogs perform motives. her to join me on campaign trips. I all sorts of tasks that allow these dis- Many of my colleagues on the other have to tell you, she is not a rabble- abled people to live more independent side of the aisle have declined any op- rousing speaker. Priscilla Owen is a lives. portunity to meet with this lovely per- judge. She is soft spoken. She is schol- She is a founding member of the St. son. They have refused to sit down and arly. She is what you would want a Barnabas Episcopal Mission in Austin, ask her questions, to see if the person judge to be. She managed to win with Texas. She serves as head of the who is portrayed in the propaganda is 53 percent of the vote and became an church’s altar guild. And she teaches really the same person. It is their loss immediate leader on the Texas Su- Sunday school to preschool, kinder- because they are missing the oppor- preme Court. garten, and grade school children. On tunity to know a truly exceptional She also became a leader in a cause any given Sunday, you can find Justice human being. that makes me smile because I hear Owen hopping on one leg, reading sto- Over two years ago, an ordinary people on the other side of the aisle de- ries, and helping these children find Texan named Nancy Lacy, who is Pris- scribing her as if she is some big par- ways to make the right choices in their cilla Owen’s sister, attended her long- tisan. She writes articles and lobbies conduct. delayed confirmation hearings before the Texas Legislature to do away with Justice Owen has also worked to en- the Judiciary Committee in Wash- partisan election of judges because, as sure that all Texas citizens are now ington. She sat behind Justice Owen, she said in her articles, she thinks it provided access to justice. Yesterday at and she later gave the Dallas Morning taints the ability of the court to pro- a press conference, a former president News a summary of what she saw. She vide impartial justice. of the Texas Bar Association, one of 15 said: This is actually a controversial posi- former State bar presidents—Repub- It was eye opening. . . . It was a hard expe- tion for a judge in our State to say licans and Democrats—who support rience because no matter what she said, they that we should do away with partisan her, told an interesting story. In the were going to stick with the propaganda. It elections, because most of the Repub- mid-1990s, the Congress sharply re- was obvious. I was hoping they were going to licans in Texas think we should keep duced funding for the Legal Services really give her a shot, try to get to know who she really is, ask thoughtful questions. partisan elections. But she is not a pol- Corporation. The Texas legal aid sys- But the information they had was wrong to itician, she is a judge—exactly what we tem for the poor, including migrant begin with. I felt sorry for them at times; would want in a person nominated for workers, was in serious jeopardy. Pris- their staffs didn’t do a very good job. It was the circuit court of appeals. cilla Owen led a committee that per- obvious the special interest groups gave When she was up for reelection in suaded the Texas Legislature to pro- them the information, and they didn’t re- 2000, something happened that really vide millions in additional funding for search to see if it was true. The handwriting had not happened very often to a Re- legal services for the poor. The funding was on the wall. publican running statewide in Texas. filled gaps caused by the Federal cut to You know, Madam President, it The Democrats did not even put an op- help give legal help for housing, domes- makes you stop and think when real ponent against her. She had a liber- tic abuse, and food assistance eligi- people come before committees in this tarian opponent, and virtually every bility to thousands of low-income Tex- Congress how they must feel when they major newspaper in Texas endorsed ans who otherwise would not have been are tortured and pricked and badgered her. She was returned to office with 84 able to have that help. the way we often do without realizing percent of the vote. Priscilla Owen was the supreme that these are good people. They are We will have a lot of opportunity on court’s representative on the Medi- people willing to serve, even if you the Senate floor to discuss her court ation Task Force. The group worked might disagree with them. They are opinions, especially the countless hours over many months to willing to serve our country and they mischaracterizations of those opinions resolve differences between lawyer and have not been treated well. I believe that various interest groups have non-lawyer mediators. As we know, Priscilla Owen, especially, has not been made. But I want to share with you mediation often provides an effective treated well by this Senate. what she does when she is not hearing alternative to expensive, full-blown I am going to end with a wrap-up of and deciding cases because I believe it trials, thus making justice more acces- the beginning of the speech that I have will shed light on the character of this sible to people who cannot afford ex- made. The Texas A&M class of 1953 person whom I do not recognize when I pensive lawyers. held their annual reunion at a hotel in hear her described on this floor by Justice Owen is a member of the Gen- San Antonio last month. Priscilla many who have not even met with her. der Bias Reform Implementation Com- Richman Owen, known to the group as She gave up a highly lucrative pri- mittee and the Judicial Efficiency Pat Richman’s daughter, was their spe- vate practice a dozen years ago at the Task Force on Staff Diversity. She was cial guest. She was able to hear con- height of her earning power to run on a instrumental in organizing Family temporaries of her father tell stories reform platform for our State’s highest Law 2000 to educate parents about the about him that she had never heard be- court because there were scandals on effect of divorce and to lessen the nega- fore to get a better idea of what he the supreme court at the time and we tive impact on children. would have been like if he had lived were trying to recruit top-quality peo- These are not headline-grabbing as- into his seventies instead of dying ple to bring back the integrity and dig- signments. There is no public glory in when she was 10 months old. It was, by nity of our supreme court. So she this quiet work. I do not see pictures of all accounts, a moving experience.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.031 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5393 I hope that when the class of 1953 and If that person passes muster in the minor is mature and sufficiently well the people who went with Pat Richman Judiciary Committee, the procedure, informed to make the decision without to serve our country in Korea meet for the past 200 years, was that the notification of a parent; that notifica- again, that Pat Richman’s daughter nominee get a favorable recommendation would not be in the best interests will come back and she will be a mem- tion. Once in a while they come out of of the minor; or that notification may ber of the Court of Appeals, of the the committee with no recommenda- lead to physical, sexual, or emotional Fifth Circuit Court of Appeals of the tion. But ultimately what happens is abuse of the minor. United States. I think she deserves 100 Senators vote. They vote up or From reading Justice Owen’s opin- confirmation. down on these nominations. That is our ions with respect to the statute, I I thank the chair. I suggest the ab- responsibility. It is my responsibility found that Justice Owen interpreted sence of a quorum. to the people of the Commonwealth of the parental notice statute in Texas The PRESIDING OFFICER. The Virginia who elected me to confirm and its exceptions fairly and neutrally, clerk will call the roll. judges or deny confirmation—but ulti- in accord with the plain legislative lan- The bill clerk proceeded to call the mately vote. guage, as well as relying on precedent roll. What has happened in the last three from the Supreme Court of the United Mr. ALLEN. Madam President, I ask years, though, is an abrogation of this States. She expressly relied on U.S. Su- unanimous consent the order for the approach and fair consideration of judi- preme Court cases addressing similar quorum call be rescinded. laws to interpret the statutory excep- The PRESIDING OFFICER. Without cial nominees. We have seen unprece- tions. In fact, even the Washington objection, it is so ordered. dented obstruction and a requirement, Mr. ALLEN. Is it true that the pend- in effect, of a 60-vote margin, particu- Post has opined that: ing business before the Senate is the larly for circuit court judges. While some of Justice Owen’s opinions— nomination of Priscilla Owen and other Wendy Long, the counsel to the Judi- particularly on matters related to abortion— seem rather aggressive, none seems to us be- judges? cial Confirmation Network, observed a month ago: yond the range of reasonable judicial dis- The PRESIDING OFFICER. That is agreement. correct. It is abundantly clear that the American Mr. ALLEN. Madam President, in my people are tired of the partisan, political ma- That is the Washington Post and I view there are four pillars that are ab- neuvering and the unwarranted character as- would hardly call the Washington Post solutely essential for a free and just so- sassinations against qualified candidates for a bastion of conservative philosophy. ciety. The first of those pillars is free- the Federal bench. Justice Owen’s record in these cases dom of religion, where people’s rights She observed, and I agree: is far from that of an activist. In fact, are not enhanced or diminished on ac- People see through these aggressive nega- it demonstrates her judicial restraint count of their religious beliefs. The tive attacks waged by some individuals and and her understanding of the proper second pillar is freedom of expression, groups on the left and they want it to end. role of an appellate judge. Under the where people say what they want with- They want Senators to do their jobs and hold Texas statute, the Supreme Court of out retribution. Third is private owner- a straight up-or-down vote on nominees Texas does not review judicial bypass based on their qualifications, not the base- cases unless the bypass has already ship of property. And the fourth pillar less negative rhetoric of the left. for a free and just society is the rule of been rejected at the trial and the inter- law, where disputes are fairly adju- I agree. I think the people of America mediate appellate court level. In other dicated and our God-given rights are believe these nominees deserve a fair words, every time Justice Owen voted protected. vote based on their qualifications. I to deny a judicial bypass, she was sim- I believe it is absolutely essential think my colleagues should take no- ply upholding the rulings of lower that we have judges on the bench at tice. courts. That means she upheld the rul- the Federal level and indeed all levels Two of the nominees who have suf- ing of the trial judge, the only judge of Government who understand that fered at the hands of the opposition are who actually saw and heard the case, a their role is to adjudicate disputes fair- Judges Priscilla Owen and Janice Rog- decision with which at least two out of ly and honestly, to apply to the facts ers Brown. First, in respect to Justice three appellate court judges agreed. and the evidence of the case the laws Owen, I listened to the heartfelt views This type of deference is entirely ap- that were made by elected representa- of Senator HUTCHISON of Texas about propriate in cases such as this, where tives. We are a representative democ- Justice Owen. Senator HUTCHISON the determination turns largely on the racy. Judges ought to apply the law, knows her better than I do, but I factual findings and the credibility of not invent the law, not serve as a strongly support Justice Owen; not just the witnesses. The trial judge who ac- superlegislature, not to use their own her nomination but her confirmation. tually observes and hears the testi- personal views as to what the law In fact, she is arguably one of the best mony of a plaintiff in a judicial bypass should be. It is absolutely essential for nominees President Bush has nomi- case is best positioned to determine the our country, for the rule of law, for the nated to the appellate court. Even the credibility of that evidence and that stability one would want for the rule of American Bar Association agrees. They witness. law, for the credibility and the fair ad- unanimously rated Judge Owen well By deferring to the trial court’s judg- ministration of justice, that we have qualified, their highest rating. ment on factual questions, Justice judges who understand this basic prin- Sadly, Justice Owen was the first Owen has appreciated, obviously, the ciple. unanimously approved well-qualified proper role of an appellate judge. How- When it comes to the appointment of ABA nominee who was held up a few ever, when a trial judge commits a judges and the election of judges, in years ago in the Judiciary Committee. clear error, Justice Owen has not hesi- some States they are elected, in some What are some of the reasons why tated to reverse the judgment and they are appointed. At the Federal the Democrats are opposing Justice order a bypass, or remand for further level, the way it has been since the be- Owen? The Number one reason I have proceedings, as she has done on three ginning of the Republic is the Presi- heard is it was because of her interpre- occasions. dent nominates a man or a woman for tation of Texas’ parental notification My colleagues, I understand this pa- a particular vacancy. That individual statute. The Democrats and her oppo- rental notification issue. As Governor is examined very closely by the Judici- nents have charged Justice Owen is of Virginia, I worked for the passage ary Committee. They question and try found to be an activist in cases involv- and signed Virginia’s requirement to to determine what is their tempera- ing the interpretation of the Texas pa- notify parents if their unwed minor ment and what will they become once rental notification statute that was en- daughter, 17 or younger, is planning an they put on a robe. Especially at the acted in 1999. abortion. Opponents of this attacked Federal level it is important because If you want to look at that statute, it me and said things very similar to they are given lifetime appointments, says as follows. It requires notice to a what you hear about Justice Owen. so there is questioning done as to their parent when a minor woman seeks an They said we were trying to tear down scholarship and their judicial philos- abortion, but allows exceptions when Roe v. Wade. That is quite contrary ophy. That is very important. the trial court judge concludes the from my standpoint. I want the record

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.032 S18PT1 S5394 CONGRESSIONAL RECORD — SENATE May 18, 2005 to note that Justice Owen has repeat- Owen is nominated for as a judicial Justice Brown has been extremely edly demonstrated adherence to Su- emergency. Justice Owen is well quali- cooperative with the Senate Judiciary preme Court precedent, including Roe fied to be a judge on the Fifth Circuit Committee. She testified for nearly 5 v. Wade. In fact, almost 80 percent of Court of Appeals, and the longer the hours at her hearing and answered the American people believe a parental opposition keeps holding up this nomi- every charge leveled against her. Jus- notification statute for a minor is rea- nation—and this has been going on now tice Brown is clearly qualified for this sonable. for 4 years—the longer average citizens job, and her colleagues, Republican and I asked my staff to look back in my will have to wait to have their cases Democrats alike, agree. documents to find the speech I gave be- heard. She deserves a fair up-or-down Twelve of her colleagues wrote the fore I signed the bill on March 22, 1997. vote. following about her: Here is the reasoning that motivated With respect to Justice Janice Rog- We who have worked with her on a daily me and the people of Virginia to finally ers Brown, she has been nominated by basis know her to be extremely intelligent, pass a parental involvement measure— the President to the U.S. Court of Ap- keenly analytical and very hard working. We and I am for parental consents even peals for the DC Circuit, where cur- know she is a jurist who applies the law better, but our statute is similar to rently one-fourth of that court is va- without favor, without bias and with an even Texas. I said on the steps of Mr. Jeffer- cant. Her qualifications are impec- hand. son’s capital in Richmond, VA: cable. In the past years I talked about Now, isn’t that what one would want Today we are signing legislation affirming Miguel Estrada, another outstanding in a judge? This quote best summarizes the importance and the necessity of a par- nominee who had unanimous support, my faith that many people, including ent’s guidance and counsel if their young the highest recommendation from the myself, have in Justice Brown. In an daughter is facing the trauma of an abortion. American Bar Association, and who October 17, 2003 letter to Senator Ladies and gentlemen, parents have the was denied, year after year, the fair- right and the responsibility to be involved HATCH, Judge Talmadge R. Jones of the ness of an up-or-down vote. He was a Sacramento Superior Court wrote: with important decisions in their young chil- modern-day Horatio Alger story. dren’s lives, especially those that affect Justice Brown is an American suc- More importantly, the exceptional judicial their physical and emotional health. performance of Justice Brown as a Circuit cess story as well. She reflects the fact It was hard to get this bill passed. It Judge will readily be apparent to everyone, that with hard work and determination and a worthy tribute to the confidence was 17 years before it actually passed, you can succeed if you put your mind a true parental notification bill. This placed in her by both the President and the to it. Her rise from the humble begin- United States Senate. was logical law. When one considers nings she had in the segregated South that for a minor to get their ears The PRESIDING OFFICER. The time to becoming the first African-Amer- of the Senator has expired. pierced, one needs parental consent, it ican woman to serve on the highest makes a great deal of sense to me that Mr. ALLEN. I ask unanimous consent court in the largest State in the coun- to be allowed 5 more minutes. if a young daughter, unwed, 17 or try is truly an inspiring American suc- younger, is going through a trauma of Mr. SCHUMER. I object. cess story. The PRESIDING OFFICER. The ob- abortion, a parent ought to be in- In her 9 years on the California Su- jection is heard. volved. That is what the Texas law was preme Court, Justice Brown has earned Mr. SCHUMER. If the Senator wants about. When daughters are going the reputation of being a brilliant and to arrange to go for the next hour through this trauma, parents ought to fair jurist who is committed to the rule under Republican time, that is just know as opposed to being in the dark. of law. That reputation has returned fine. But I want to stress that the Texas her to the court when she was sup- I would like to accommodate my statutes and the Virginia statutes are ported by 76 percent of California vot- friend, but we have a set schedule. We merely parental notice statutes. Those ers, which was the largest margin of come at different times and places and statutes express the views of the people any of the four justices up for reten- of the State of Texas, the Common- tion that year. Her reputation has also we have stuck by it. We are already 2 wealth of Virginia, and indeed the led the Chief Justice of the California or 3 minutes over, so I have to object. more than 40 States that have some Supreme Court to call on Justice Mr. ALLEN. Madam President, I ask sort of parental involvement statutes Brown to write the majority opinion Unanimous Consent that I be allowed 1 on their books. In fact, they reflect the more times, in 2001 and 2002, than any minute and add 1 minute to the Demo- views of this country. In fact, they be- other justice on the Supreme Court of crats’ side to sum up. lieve what Justice Owen was doing was California. When someone gets 76 per- Mr. SCHUMER. I will accept that. correct in applying this statute as she cent of the vote and is called on to The PRESIDING OFFICER. Without did. write the majority opinion more times objection, it is so ordered. In summation, Justice Owen is a per- than any other justice on that court, Mr. ALLEN. I thank my colleagues. son with outstanding qualifications. that means you are well respected and In summation, Priscilla Owen, Janice She graduated at the top of her class at you are doing a good job and that you Rogers Brown, and all of the Presi- the Baylor Law School and subse- are clearly within the mainstream, not dent’s nominees, deserve a fair up-or- quently earned the highest score in the out of the mainstream as is asserted by down vote. State on the December 1977 Texas Bar those who obstruct her vote. The people all across this country, Exam. After graduation she practiced Justice Brown’s opponents would like whether they are down in Cajun county commercial litigation for 17 years and the American people to think she is a in Louisiana, whether they are down in became a partner at one of the most re- radical, an ideological extremist in her Florida, whether they are in the Black spected law firms in the State of Texas. opposition to government. I contend if Hills of South Dakota, or whether they Finally, in 1994, Justice Owen was she was so extreme, why did 76 percent are in the Shenandoah Valley of Vir- elected to the Texas Supreme Court. In of California voters support her? Sadly, ginia, expect action on judges. As much 2000, she won reelection by an over- her opponents continually attack her as people care about less taxation and whelming 84 percent of the vote, and for her opposition to government even energy security for this country and was endorsed by every major news- though she has stated for the record wanting us to be leaders in innovation, paper in Texas. that she does not hate government. If they really expect the Senate to act on Her support is wide and it is bipar- she hates government, why is she a judges. It is a values issue. It is a good tisan, ranging from a number of former part of it? government issue. It is a responsi- Democratic judges on the Supreme A thorough analysis of her opinions bility-in-governing issue that needs to Court of Texas to a bipartisan group of clearly indicate she is capable of dis- be addressed. 15 past presidents of the State Bar of secting her personally held views of her As I said earlier, there is no reason to Texas. dislike of expansive government, from filibuster these nominations. As Sen- It is important that we act on Jus- her opinions that seek to apply the law ators we have a responsibility to vote. tice Owen’s nomination because the as it exists and defer to the legislative These nominees deserve fair consider- Judicial Conference of the United judgments on how best to address so- ation, fair scrutiny, but ultimately we States has designated the seat Justice cial and economic problems. have a responsibility to get off our

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.034 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5395 haunches, show the backbone, show the We can all agree that lovely people tionate influence on the White House spine, vote yes or vote no, and be re- deserve opportunities, but when it and the Republican leadership in this sponsible to our constituents. comes to our courts and when it comes Senate seem to push people to abuse I thank you, Madam President, and I to making decisions about us, our fam- power. yield the floor. ily, about women, about children, It happened in the Schiavo case, and Mr. SCHUMER. I believe I now have about rape victims, about workers, the there was a revulsion in America. It 30 minutes? many things that come before a court, happened with threats against judges, The PRESIDING OFFICER (Mr. a record is what we have to look at and both made by some of my colleagues in THUNE). The minority has 61 minutes what we have to stand on. this body and certainly by some well- remaining. I thank my colleague from New York known activist religious figures. It has Mr. SCHUMER. But I have 30 of that, for giving me an opportunity to re- happened on Social Security where or 31. I yield 3 minutes to my colleague spond. there is an attempt to undo a very suc- from the State of Washington, and The PRESIDING OFFICER. The Sen- cessful government program. And that then 1 minute to my colleague from ator from California. is why the popularity, the respect that the State of California, and then I will Mrs. BOXER. Mr. President, I will this Republican leadership has in take the remaining 26 minutes. rebut something that my friend from America, goes down every day. I know, The PRESIDING OFFICER. Without Virginia, Senator ALLEN, said about as chair of the DSCC, because I keep an objection, it is so ordered. Janice Rogers Brown. He said she was eye on those things. The Senator from Washington. I make a plea. It is to the seven or Mrs. MURRAY. Mr. President, I in the mainstream. This is a woman who has served on the California Su- eight Republicans on that side of the thank my colleague from New York for aisle. Every one of them has told us yielding me just a few minutes. I was preme Court that is made up of six Re- publicans and one Democrat. She has they know the nuclear option is wrong. over in my office a few minutes ago lis- It is a plea to have the courage to tening to the debate on both sides, and dissented a third of the time because her Republican friends on that court stand up for what is right. There are I heard my good friend and colleague, many others of our colleagues on the the Senator from Texas, talk about her are not radical enough for her. Thirty- one times she stood alone on the side of other side of the aisle who have already tremendous friendship and passion for said they know the nuclear option is a rapist, on the side of energy compa- the woman whose nomination is in wrong, but they say they cannot resist nies against the consumers, against front of the Senate today, Priscilla the pressure. I understand it. We have women who were seeking to get contra- Owen. had times on the Democratic side ception. It goes on and on—against I have tremendous respect for Sen- where groups on the left extreme have workers. She said it was fine for ator HUTCHISON and all of her passion had undue influence. But it is in yours Latinos to have racial slurs used she has put in here. All Senators have and America’s detriment and to our against them in the workplace. been in a position of fighting hard for party’s detriment. something we believe in, someone we This is a woman with an inspiring We are on the precipice of a constitu- care about. Sometimes we win, some- personal life story. But it is what she tional crisis. It rests on the shoulders times we have lost. has done to other people’s lives that of three or four men or women on the One of the things that was said was makes her far out of the mainstream. other side of the aisle. We hope we will that many of the colleagues on this I thank my colleague for yielding. I not fall into the abyss. side of the aisle, many of my col- yield the floor. Judges are now under siege. Our Con- leagues have declined any opportunity The PRESIDING OFFICER. The Sen- stitution is under attack. Our precious to meet with this lovely person. They ator from New York. system of checks and balances is under have refused to sit down and ask her Mr. SCHUMER. Mr. President, this assault. Some of my colleagues seem to questions to see if the person that is debate is not only about Priscilla Owen have forgotten we in the Senate have a portrayed and the propaganda is really and whether she should become an ap- constitutional role to play, and we the same person. pellate judge, but it is about something will. The Founding Fathers did not in- Mr. President, I want to set the much more momentous. If the situa- tend us to march lockstep like lem- record straight. I did sit down and tion in the Senate were not so grave, mings behind every Presidential ap- meet with Judge Owen yesterday at there might be some humor in the fact pointee no matter how many times he the request of the Senator from Texas. my strict constructionist Republican or she is put before the Senate. The I could not agree more, she was a love- friends who daily claim to be against Founding Fathers, whom many of us ly person. But this is not a debate activist judges are, through the nu- like to cite, foresaw collaboration be- about a lovely person. This is a debate clear option, engaging in the most ac- tween the President and the Senate in about a record on judicial decisions and tivist reading of the Constitution to the seating of judges. The Founding about whether that record merits pro- seat an activist judge on the appellate Fathers expected, because of the advice moting someone to a lifetime appoint- court. That is breathtaking hypocrisy. and consent clause, the President ment. But we are more profound than that. would be judicious, that he would talk I will later today join with my col- We are on the precipice of a crisis, a to the Senate about nominees. leagues to give more specifics, but I constitutional crisis. The checks and This President has done none of that. have sat down with Priscilla Owen. I balances which have been at the core of No President has nominated judges have asked her questions, and I have this Republic are about to be evapo- more through an ideological spectrum reviewed the record. This is not about rated by the nuclear option, the checks than this President. When he asks why a person. This is about a record. It is and balances which say if you get 51 he doesn’t get cooperation from the about a record that is outside the percent of the vote you do not get your Democrat side, he has reaped what he mainstream on parental consent, which way 100 percent of the time. It is amaz- has sown. No consultation, no discus- we have heard about. But not just that, ing. It is almost a temper tantrum by sion, and nominees who tend to be way it is about victims’ rights, which any those on the hard right. They want over at the extreme. of us can be. It is about workers’ their way every single time, and they As Hamilton wrote in the Federalist rights, about a bias about campaign will change the rules, break the rules, Papers about the importance of the contributions. We will be setting that misread the Constitution so they will Senate’s role in approving judicial record straight throughout this debate. get their way. nominees, the possibility of rejection It is especially important for all to That is not becoming of the leader- of nominees would be a strong motive recognize a record says what someone ship of the Republican side of the aisle, to use care in proposing. But this will be and what decisions they will nor is it becoming of this Republic. President, instead of taking that care make about any one of us in this coun- That is what we call abuse of power. that the Founding Fathers sought, has try in the future. That is what I dis- There is, unfortunately, a whiff of ex- seen some of his nominees—a handful— pute. That is what I will discuss later tremism in the air. In place after place, rejected, and now instead of accepting today when I have more time to out- the groups that were way out of the that as a consequence of no consulta- line. mainstream with their dispropor- tion and of nominating extreme judges,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.036 S18PT1 S5396 CONGRESSIONAL RECORD — SENATE May 18, 2005 he seeks to encourage the majority lem. There is nothing in the Constitu- And it is an unbelievable turnaround, leader and others to change the rules tion that supports the nuclear option. an unbelievable act of hypocrisy, that in this hallowed institution. There is nothing in the Constitution all of a sudden activism, which means Why are we at this crisis point? The that requires a majority vote for every interpreting things in the Constitution bottom line is that no President in judicial nominee. Republicans know which are not in the writings of the memory has taken so little care in the this. Constitution, is OK when you want to proposing of judges. The Senator from Tennessee, our ma- get your way. It is wrong. What about abuse of power? I will jority leader, who got on the floor ear- Now, let me talk a little bit about talk for a moment, before I talk about lier today and said for 214 years there Priscilla Owen. She is the nominee be- Priscilla Owen, about the nuclear op- have not been filibusters of judges, has fore us today. This is the third time we tion. If there ever was something that a very short memory. I asked him this have considered the nomination of signified an abuse of power, a changing morning, Did you not, on March 8, 2000, Priscilla Owen. Each previous time she of the rules in midstream simply be- vote in favor of a filibuster of Richard got an up-or-down vote. She did not get cause you could not get your way on Paez to the Ninth Circuit Court of Ap- 60, but she sure got an up-or-down vote. every judge, it is this nuclear option. peals? Here is a copy of the vote. Vot- Everyone’s vote was on the record. There is now a desperate attempt on ing no: FRIST, Republican of Tennessee. This was not being done, what was the other side of the aisle not to call it Did he think it was unconstitutional done in the Clinton years, which was the nuclear option, but it was my col- then? He said on the floor, in answer, not even letting judges come up for a league from Mississippi, the former Well, some are successful, some are vote. Here we are again. majority leader, who gave it that not. I have never known the Constitu- Why are we doing Priscilla Owen again? Because 95 percent is not good name—with justification. You won’t tion to say that something is unconsti- enough for the President or for the change the name. To call it the con- tutional if it fails and constitutional if leadership here in the Senate. On the stitutional option is hypocrisy. There it succeeds. When we talk about at- merits, nothing has changed. There is is nothing in the Constitution that tempted murder or robbery or larceny, no question she is immoderate and that talks about filibuster or majority vote it is still a crime. she is a judicial activist. I continue to when it comes to judges in the Senate. So I would like to ask my colleague believe Justice Owen will fail my lit- It is a nuclear option because it will to answer during this debate, How can mus test, my only litmus test in terms vaporize whatever is left of bipartisan- he distinguish as unconstitutional our of nominating judges; that is, will they ship and comity in the Senate. votes to block judges, and it is per- Now, let me ask a question: How fectly acceptable, 5 years ago, his vote interpret law, not make law? Will they not impose their own views and have much power does the Republican lead- to block a judge, or the scores of votes enough respect for the Constitution ership need? How much power is it en- by other Republicans in favor of fili- and the laws of this land that they will titled to? Does a 1- or 2-percent point busters over the years, including those against Paez and Berzon and Fortas? not impose their own views? victory in the last election, does a mar- Well, do not ask me. Ask the people gin of five Senators give them the right Were they unconstitutional? I do not think so. who served with Justice Owen. They to get their way all the time and then believe that she, time and time again, to change the rules if they can’t? Furthermore, have judges never been blocked? All the time. One out of every cast aside decades of legal reasoning, The American people are under- miles of legislation, to impose her own standing this. There are only three five Supreme Court nominees did not make it to the Supreme Court. That is views. If there was ever a judge who branches of Government. The Repub- would substitute her own views for the lican Party has a tight grip on all part of the tradition of this country. Should the Senate have majority say? law, it is Judge Owen. Her record is a three. Republicans control the Presi- paper trail of case after case where she dency, they control the House, they No. Should we have the say the majority of the time? No. Should we have the thinks she knows better than hundreds control the Senate. They already have of years of legal tradition. control of the courts. say some of the time? Yes. And there is the balance. The more a President In one case, In re Jane Doe, Judge As the chart shows, of all of our judi- Owen’s dissent came under fire from cial circuits, only two have slight consults, the more the President nominates moderate nominees, the more her colleagues in the Texas Supreme Democratic majorities. The sixth is Court. They referred to her legal ap- even. And all the others have Repub- likely his nominees will succeed. Bill Clinton had a little trouble, but he con- proach as an effort to ‘‘usurp the legis- lican majorities. lative function.’’ That was a very con- The circuit courts, the courts of last sulted ORRIN HATCH regularly. PATRICK LEAHY has not been consulted by the servative court, and they still said Jus- resort, are overwhelmingly Republican tice Owen put her views ahead of the already in terms of their appointees. President at all. Another interesting point. It seems law. And on the new judges they have been Even more troubling, of course, is able to fill, they have gotten their way the only people who seem to cling to the nuclear option are those in elected what Attorney General Alberto 95 percent of the time. As one of my Gonzales said. He sat on the same colleagues said, if your child came office who are susceptible to the power and sway of these extremist groups. court with Judge Owen. He wrote a sep- home and said they got a 95 on their arate opinion in which he chastised the test, would you pat them on the head Conservatives who are not in public office, retired elected officials, com- dissenting judges, including Justice and say ‘‘good job’’ or would you say Owen, for attempting to make law, not mentators, have repeatedly said the ‘‘go change the rules, cheat until you interpret the law. These are Judge get 100 percent’’? That is what the nuclear option is not constitutional. How about George Will—hardly a lib- Gonzales’ words, not mine. He said that other side is doing. eral—one of the country’s most fore- to construe the law as the dissent did Ninety-five percent should make this most commentators. Here is what he ‘‘would be an unconscionable act of ju- President very happy. And maybe it said: dicial activism.’’ Those are not my would if he was left to his own devices. words. Those are the words of the man But the group of hard-right extremists, Some conservatives say the Constitution’s framers ‘‘knew what supermajorities they the President has appointed as Attor- who seem to have disproportionate wanted’’—the Constitution requires various ney General. sway, are not happy unless they have supermajorities, for ratifying treaties, im- In another case, Montgomery Inde- 100 percent. peachment convictions, etc.; therefore, other pendent School District v. Davis, the Now, let me talk a little bit about supermajority rules are unconstitutional. majority ruled in favor of a teacher calling it a ‘‘constitutional option.’’ But it stands— who had been wrongly dismissed, and The other side will, with a straight Listen to this. the majority, including Judge face, either tomorrow or the next day, But it stands conservatism on its head to Gonzales, wrote that: invoke our democracy’s chief charter, argue that what the Constitution does not the dissenting opinion’s misconception . . . the Constitution, in ruling that judi- mandate is not permitted. stems from its disregard— cial filibusters are prohibited by the Of course. The people who advocate Not its misinterpretation; ‘‘its dis- Constitution. There is only one prob- this are the greatest activists of all. regard’’—

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.039 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5397 of the [rules] the Legislature established. sanship are going to undo whatever is asking the majority leader to follow all In a third case, Texas Department of left of bipartisanship here in the Sen- the rules and precedents of the Senate, Transportation v. Able, Justice ate. not just the one he supports or any Gonzales also took Justice Owen to Amazingly enough, with all of the other group of Members might support. task for her activism, indicating she smoke pumped by the radical right’s Some have argued this debate is too had misunderstood the plain intent of media machines, talk radio, the Amer- inside baseball or, more appropriately the State legislature. ican people have a deep understanding. perhaps, too inside the beltway and The list goes on and on. And there is The only solace I have, as we are on that Americans don’t care about it. nothing to indicate she has backed off the edge of this crisis and the eve of a However, I believe that is wrong. To from her activist tendencies. great vote in the Senate, is that the date, I have received about 16,000 phone As extreme as Justice Owen is, Jus- American people understand what ma- calls, and they are running three to tice Janice Rogers Brown is even more jority leader FRIST is up to. They un- one in favor of opposing the nuclear op- so. derstand this is a power grab. They un- tion. The reason is, people are begin- The things she has said are unbeliev- derstand this is a breaking of the rules. ning to understand this debate is built able. She is an activist judge, more They understand the checks and bal- on the very foundation of why we are committed to advancing her own ex- ances will go by the wayside. What was here, why our democracy has been suc- treme beliefs and ideas than guaran- good enough 4 years ago, votes on fili- cessful over 200 years, and why our teeing a fair shake for millions of busters, is not acceptable today. Constitution is looked at as a model Americans who would be affected by I believe the nuclear option, even if it across the world in emergent democ- her decisions on the DC circuit. There should pass on the floor this week or racies. was the Lochner case which threw out next week, will not stand, that the Let me try to explain, once again, as unconstitutional a law that said American people will understand what why Senators take their role of advise bakery workers could not work a cer- is attempting to be done, they will rise and consent so seriously and what this tain number of hours. That was a New up and, whether it is at the polls or nuclear option will mean, not only for York law, so we are not even dealing just in the court of public opinion, the Senate and the judiciary but for with federalism. It was decided in 1906 cause the nuclear option to be undone. our Constitution and our country. or 1901, close to 100 years ago. If you go That is the faith I have in the Gov- First, Federal judges’ decisions im- to law school, it is called the worst Su- ernment we have and the people who pact laws that affect our everyday preme Court decision of the 20th cen- are governed. But let us not go through lives—privacy protection, intellectual tury. that. We will stop progress in the Sen- property, laws of commerce, civil She said it was decided correctly. ate. We will ruin bipartisanship, what- rights, environmental regulations, Judge Janice Rogers Brown believes ever is left of it, and we will be playing highway safety, product liability, the that if an employer wanted to employ with fire when it comes to the con- environment, retirement security. And a child for 80 hours in awful conditions, stitutional checks and balances that those are just a few examples. Who we that would be that employer’s con- are at the core of our Constitution and confirm is important because their stitutional right. our Republic. ability to interpret basic law, based on Justice Brown’s views on economics I will have plenty more to say in the the Constitution of the United States, make Justice Scalia look very liberal. upcoming weeks, but it is a momentous is critical to our functioning. Their She doesn’t want to roll back the clock time. I appeal once again to my col- independence to do that is critical. to the 1950s or even the 1930s. She leagues: Think of what you are doing. Secondly, Federal judges enjoy life- wants to go back to the 1800s. She has Think of its consequences. Maybe we time appointments. They don’t come been nominated to the most important won’t have to live with this, the great- and go with administrations, as do court in the country when it comes to est undoing of the Constitution that Cabinet Secretaries. They cannot be re- enforcing Government laws and rules— this Senate has seen in decades. moved from the bench, except in ex- environmental, labor—and yet she ab- I yield the remaining time to my col- tremely rare circumstances. In fact, in hors Government. league from California. our Government’s over 200-year his- Here is what she once wrote: The PRESIDING OFFICER. The Sen- tory, only 11 Federal judges have been Where government moves in, community ator from California is recognized. impeached and, of those, only 2 since retreats, civil society disintegrates, and our Mrs. FEINSTEIN. Mr. President, I 1936. ability to control our own destiny atrophies. thank the Senator from New York. He Thirdly, Federal judges are meant to Does the kind of person who thinks serves as the ranking member of the be independent. The Founding Fathers that way belong on any court of ap- Subcommittee on Administrative Over- intentionally embedded language in peals, and particularly on the DC Court sight and the Courts of the Judiciary the U.S. Constitution to provide checks of Appeals? Absolutely not. Committee, and he more or less heads and balances. Inherent in our Govern- For those reasons, the American Bar all of the hearings with respect to ment is conflict and compromise, and Association gave her one of the lowest these judges. He has done an excellent that is the fundamental principle in rankings any of this administration’s job. He is thorough. As everybody the structure of our Government. The circuit court judges have ever received. knows, he is a smart and intelligent judiciary is meant to be an inde- We stand on the edge. This is an man. He has made a very eloquent pendent, nonpartisan third branch. amazing time. I wake up in the morn- statement. So I thank him. I think John Adams, in 1776, made it ing, sometimes with butterflies in my Last week I came to the floor and very clear on the point of checks and stomach, thinking the Senate might discussed the nuclear option. I recog- balances and an independent judiciary, actually attempt to do this. If there nize today that we are now faced with when he said: was ever a time where the power grab going down this path. I am concerned The dignity and stability of government in has been so harsh, so real, and so that once begun, it is going to be hard, all its branches, the morals of the people and unyielding, it is now. It is not simply if not impossible, to reverse it. every blessing of society, depends so much that we have a disagreement of ideas I find it ironic in his statement the upon on upright and skillful administration and we argue vehemently. It seems majority leader said: of justice, that the judicial power ought to be distinct from both the legislative and ex- much more that the leadership on the All Members are encouraged to ensure that ecutive, and independent upon both, that so other side can’t stand the fact that rhetoric in this debate follows the rules and it may be a check upon both, as both should they don’t always get their way and best traditions of the Senate. be checked upon that . . . [The judges’] that they have to change the rules to That is exactly what this side of the minds should not be distracted with jarring do it. aisle is fighting for—the rules and the interests; they should not be dependent upon People who hate activist judges are traditions of the Senate. We are stand- any man or body of men. becoming activist themselves in the ing up to those in the other party who Now, that is the clearest statement sense that they read into the Constitu- want to break the rules and precedent of intent from our Founding Fathers, tion things that are never there. Peo- of the Senate. So in reality, it is those that the judiciary should be and must ple who say that they respect biparti- of us on this side of the aisle who are be independent. That is what is being

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.041 S18PT1 S5398 CONGRESSIONAL RECORD — SENATE May 18, 2005 eroded with the partisanship and with you cool it. The Senate is really and over again. So why suddenly is an the nuclear option. The Senate was formed on the basis that no legislation up-or-down vote now the be all and end meant to play an active role in the se- is better than bad legislation and that all? lection process. The judiciary was not the debates and disagreements over ju- Last administration, Republicans solely to be determined by the execu- dicial nominations ensures that the used the practice of blue slips or an tive branch. Last week, I described Senate confirms the best qualified can- anonymous hold, which I have just de- how, in the Constitutional Convention, didates. scribed, to allow a single Senator—not the first effort put forward was actu- So the Senate is meant to be a delib- 41 Senators, but 1—to prevent a nomi- ally to have the Senate nominate and erative body, and the rights of the mi- nation from receiving a vote in the Ju- appoint judges. Then it was later on, nority, characterized by the filibuster, diciary Committee, a 60-vote cloture with the consideration of others, are purposely designed to be strong. vote on the floor, or an up-or-down changed to allow the President to Others describe the Senate as a giant vote on the floor of the Senate. This nominate. But the explanation in the bicycle wheel with 100 spokes. If one was a filibuster of one, and it can still Federalist Papers is all centered Senator—one spoke—gets out of line, take place within the Judiciary Com- around the Senate having the real the wheel stops and, in fact, that is mittee. power to confirm, and that power is true. In our rules, any Senator can put The fact is, more than 60 judicial not a rubberstamp. a hold on a piece of legislation and es- nominees suffered this fate during the Because of these fundamental con- sentially force the majority to go to a last administration. In other words, cerns, for centuries there have been cloture vote—essentially, force a 60- over 60 Clinton judges were filibustered heated and important debates sur- vote necessity for any matter to be successfully by one Senator, often rounding judicial nominations. Today, brought to the floor. This distinguishes anonymous, often in secret, no debate rather than utilizing and preserving us from the House. Because we know it as to why. It was an effective black- the natural tension and conflict our is such a strong right, we are very re- ball. Constitution created, some in the Re- luctant and very reserved in the use of This is not tit-for-tat policy, but it is publican Party want to eviscerate and that right. This is what has produced important to recall that Senate rules destroy that foundation. Blinded by po- comity in this House, the collegiality. have been used throughout our history litical passion, some are willing to un- Everybody knows if you put a hold on by both parties to implement a strong ravel our Government’s fundamental something too often, you are going to Senate role and minority rights, even principle of checks and balances to jeopardize things you want. So what the right of one Senator to block a break the rules and discard Senate goes around comes around and comity, nomination. precedent. such as it may be, exists. Republicans have argued that the The nuclear option, if successful, will Now, when one party rules all three nominations they blocked are different turn the Senate into a body that could branches, that party rules supreme. because in the end, some, such as Rich- have its rules broken at any time by a But now one party is saying that su- ard Paez and Marsha Berzon, were con- majority of Senators unhappy with any preme rule is not enough, that they firmed. This ignores that it took over 4 position taken by the minority. It be- must also completely eliminate the years to confirm both of them because gins with judicial nominations. Next ability of the minority to have any of blue slips and holds. will be executive appointments, and voice, any influence, any input. In addition, if a party attempts to fil- then legislation. This is not the Senate envisioned by ibuster a nomination and a nominee is A pocket card being passed around in our Founding Fathers. It is not the eventually confirmed, that does not support of the nuclear option states Senate in which I have been proud to mean it is not a filibuster. Failure does this: serve for the last 12 years. And it is not not undo the effort. I pointed out ear- The majority continues to support the leg- the Senate in which great men and lier where, in 1881, President Hayes islative filibuster. women of both parties have served with nominated a gentleman to the Supreme Yes, they do today, but what happens distinction for over 200 years. We often Court. That was successfully filibus- when they no longer support it tomor- refer to the longest filibuster in his- tered throughout President Hayes’ row or the next day? If the nuclear op- tory, which was conducted by Senator term. When President Garfield then tion goes forward and they break Sen- Strom Thurmond and lasted for more came into office, he renominated the ate rules and throw out Senate prece- than 24 hours. That was an actual fili- individual, and the Senate then con- dent, then any time the majority de- buster, standing on the floor and firmed that individual. But that does cides the minority should not have the orating, or asking the clerk to read the not negate the filibuster. It was the right to filibuster, the majority can bill, or reading the telephone directory, first recorded act of a filibuster of a ju- simply break the rules again. Fifty-one and doing it hour after hour after hour, dicial nominee, and it, in fact, took votes are not too hard to get. Get the sending the message that you are stop- place and was successful for the length Vice President, have a close Senate, ping debate, that on the great wheel of of President Hayes’ term. and you get it. That will be new prece- comity one spoke is sticking out and More importantly, while some of dent again in the Senate. So once done, stopping it. People listen because, un- Clinton’s nominations eventually it is very hard to undo. That is why like the House, debate and discussion broke through the Republican pocket precedent plays such a big part in ev- has been important. It has been funda- filibuster, 61 of President Clinton’s ju- erything we do because we recognize mental in our being, and our ability to dicial nominations were not confirmed that once you change it, you open that stand up on the floor of the Senate and because of Republican opposition. Not door for all time. It can never be shut discuss issues of import before the only were they not confirmed, they again. If this is allowed to happen—if world on television, for the CONGRES- were not given a committee vote in Ju- the Republican leadership insists on SIONAL RECORD, for all of the people diciary. They were not given a cloture enforcing the nuclear option, the Sen- who watch on closed circuit television, vote here or an up-or-down vote on the ate becomes ipso facto the House of becomes a signal, I think, on Capitol floor. So these are really crocodile Representatives, where the majority Hill. tears. rules supreme and the party in power When Democrats were in the White Republicans have also argued that can dominate and control the agenda House—I will talk for a moment on the reason the nuclear option is needed with absolute power. Senate procedure—Republicans used now is because the Clinton nominees The Senate is meant to be different. the filibuster and other procedural were not defeated by a cloture vote. In In my talks, I often quote George delays to deny judicial nominees an up- essence, because different procedural Washington and point out how the Sen- or-down vote. So denying a judicial rules were used to defeat a nominee, it ate and House are often referred to as nominee an up-or-down vote is nothing does not count. a cup of coffee and a saucer. The House new. It has been done over and over On its face, this argument is absurd. is a cup of coffee. You drink your coffee and over again. I speak as a member of To the nominee, whatever rule was out of the cup. If it is too hot, you pour the Judiciary Committee for 12 years, used, their confirmation failed and the it into the saucer—the Senate—and and I have seen it done over and over result is the same: They did not get a

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vote, and they are not sitting on the Date nomina- 1—41 want to debate in public. We have Federal bench. tion first sub- voted no on cloture because we believe Nominees Court nominated to mitted to Sen- As I said, 61 Clinton nominees, in the ate our views are strong enough, that our time I have sat on the Senate Judici- rationale is strong enough and sub- Frank H. McCarthy ...... Northern District of Okla- 04/30/99 ary Committee—so I have seen this homa. stantive enough to face public scrutiny firsthand—were pocket filibustered by Patricia A. Coan ...... District of Colorado ...... 05/27/99 and warrant an extended debate in the Dolly M. Gee ...... Central District of Cali- 05/27/99 as little as one Senator in secret and, fornia. true tradition of the Senate. therefore, provided no information Frederic D. Woocher ...... Central District of Cali- 05/27/99 We may not all agree. Our country is fornia. about why their nomination was Gail S. Tusan ...... Northern District of Georgia 08/03/99 based on a foundation that protects the blocked. There was no opportunity to Steven D. Bell ...... Northern District of Ohio .... 08/05/99 freedom to disagree, to debate, to re- Rhonda C. Fields ...... District of Columbia ...... 11/17/99 address any concern or criticism about S. David Fineman ...... Eastern District of Pennsyl- 03/09/00 quire compromise. Neither party will vania. always be right when it comes to the their record and qualifications. Linda B. Riegle ...... District of Nevada ...... 04/25/00 Just to straighten out the record be- Ricardo Morado ...... Southern District of Texas .. 05/11/00 best policies for our country, and nei- K. Gary Sebelius ...... District of Kansas ...... 06/06/00 ther party will always be in power. So, cause I debated a Senator yesterday: 23 Kenneth O. Simon ...... Northern District of Ala- 06/06/00 of these were circuit court nominees bama. as I said initially, it is important to John S.W. Lim ...... District of Hawaii ...... 06/08/00 put this political posturing in context. and 38 were district court nominees. In David S. Cercone ...... Western District of Pennsyl- 07/27/00 addition, unlike what some have ar- vania. I believe filibusters should be far apart Harry P. Litman ...... Western District of Pennsyl- 07/27/00 and few, and should be reserved for the gued, this practice was implemented vania. throughout the Clinton administration Valerie K. Couch ...... Western District of Okla- 09/07/00 rare instances for judicial nominations homa. that raise significant concerns. when Republicans controlled the Sen- Marian M. Johnston ...... Eastern District of Cali- 09/07/00 ate, not just in the last year or final fornia. I voted against cloture in my Senate months of the tenure of the President. Steven E. Achelpohl ...... District of Nebraska ...... 09/12/00 career of 12 years on only 11 judicial Richard W. Anderson ...... District of Montana ...... 09/13/00 nominations and voted to confirm 573. The reason I mention this is because Stephen B. Lieberman ...... Eastern District of Pennsyl- 09/14/00 there is sort of an informal practice in vania. I believe judicial nominees must be Melvin C. Hall ...... Western District of Okla- 10/03/00 treated fairly and evenhandedly. I also the Judiciary Committee—it is called homa. the Thurmond rule—that when a nomi- believe it is the duty of the Senate to raise concerns or objections when there nee is nominated in the fall of year of Mrs. FEINSTEIN. Mr. President, the are legitimate issues that need to be a Presidential election, that nominee overwhelming question I have—and let discussed. does not generally get heard. But I am me ask everybody here—is the public interest better served by 41 Senators Discharging our obligation to advise not only talking about nominees at the and consent is not an easy task, espe- tail end; I am talking about nominees stating on the floor of the Senate why they are filibustering a nominee, as cially when it involves making a who were nominated in each of the 6 choice to oppose a nomination. As I Senator SCHUMER did, as others have years of the Clinton Administration in discussed earlier, I strongly believe the done earlier, and the reasons hang out which the Republican party controlled use of the blue slip and anonymous in public? Everybody can hear the rea- the Senate. holds has been abused in previous Con- sons; they can be refuted. There are The following is a list of President gresses. During the reorganization of reasons given with specificity. They Clinton’s judicial nominees who were the Senate in 2000, Senators DASCHLE are based on opinions, they are based blocked: and LEAHY worked to make the process on speeches, they are based on more fair and public. At that time, a Date nomina- writings, and they are discussed right blue slip was no longer allowed to be Nominees Court nominated to tion first submitted to Sen- on the floor in public. Or is the public anonymous and instead became a pub- ate interest better served by one Senator, lic document. This refining forced Sen- Circuit Court in secret, putting a hold on a nominee ators opposed to a nominee to be held or blue-slipping the nominee and pre- Charles R. Stack ...... Eleventh Circuit ...... 10/27/95 accountable for their positions. They J. Rich Leonard ...... Fourth Circuit ...... 12/22/95 venting that nominee from ever having could not hide behind a cloak of se- James A. Beaty, Jr ...... Fourth Circuit ...... 12/22/95 a hearing, from ever having a markup, Helene N. White ...... Sixth Circuit ...... 01/07/97 crecy. This step also wiped out many of Jorge C. Rangel ...... Fifth Circuit ...... 07/24/97 from ever having a vote in the Senate, the hurdles that had been used to de- Robert S. Raymar ...... Third Circuit ...... 06/05/98 and it is all done on the QT, no discus- Barry P. Goode ...... Ninth Circuit ...... 06/24/98 feat nominations, so many of the tools H. Alston Johnson, III ...... Fifth Circuit ...... 04/22/99 sion, no debate. It is, as I said, the epit- used by Republicans in the past, and James E. Duffy, Jr ...... Ninth Circuit ...... 06/17/99 ome of blackballs that exists in the Elena Kagan ...... DC Circuit ...... 06/17/99 referred to as a way to draw distinc- James A. Wynn, Jr ...... Fourth Circuit ...... 08/05/99 Senate. tions with a public cloture vote, are no Kathleen McCree Lewis ...... Sixth Circuit ...... 09/16/99 All during the Clinton years, Repub- Enrique Moreno ...... Fifth Circuit ...... 09/16/99 longer available. James M. Lyons ...... Tenth Circuit ...... 09/22/99 licans did not argue that checks and Today the blue slip is still used. How- Allen R. Snyder ...... DC Circuit ...... 09/22/99 balances had gone too far. In fact, the Robert J. Cindrich ...... Third Circuit ...... 02/09/00 ever, with each chairmanship, its effec- Kent R. Markus ...... Sixth Circuit ...... 02/09/00 opposite occurred. Republicans went to tiveness and its role has been modified. Bonnie J. Campbell ...... Eighth Circuit ...... 03/02/00 the floor to defend their right to block Stephen M. Orlofsky ...... Third Circuit ...... 05/25/00 Each chair of the Judiciary Committee Roger L. Gregory ...... Fourth Circuit ...... 06/30/00 nominations. Senator HATCH is a good says they are going to adhere to the Christine M. Arguello ...... Tenth Circuit ...... 07/27/00 friend of mine, but nonetheless here is Andre M. Davis ...... Fourth Circuit ...... 10/06/00 blue slip in a different way. That is the S. Elizabeth Gibson ...... Fourth Circuit ...... 10/26/00 his 1994 statement about the filibuster: anomaly in this process. One person in It is one of the few tools that the minority District Court Judiciary decides what the rules are has to protect itself and those the minority going to be. This is what we ought to John D. Snodgrass ...... Northern District of Ala- 09/22/94 represents. bama. change. Wenona Y. Whitfield ...... Southern District of Illinois 03/23/95 That was on judges. That was the Recently, Senator SPECTER, for ex- Leland M. Shurin ...... Western District of Missouri 04/04/95 chairman of the Judiciary Committee. ample, has indicated he will honor neg- John H. Bingler, Jr ...... Western District of Pennsyl- 07/21/95 vania. In 1996, Senator LOTT, then the lead- ative blue slips. It is a piece of paper Bruce W. Greer ...... Southern District of Florida 08/01/95 er, stated: that Senators from a nominee’s home Clarence J. Sundram ...... Northern District of New 09/29/95 York. The reason for the lack of action on the state send in. If you do not send them Sue E. Myerscough ...... Central District of Illinois ... 10/11/95 backlog of Clinton nominations— in or if you say you do not favor the Cheryl B. Wattley ...... Northern District of Texas .. 12/12/95 Michael D. Schattman ...... Northern District of Texas .. 12/19/95 That is an admission there were nominee, that nominee does not pro- Anabelle Rodriguez ...... District of Puerto Rico ...... 01/26/96 backlogs of Clinton nominations— ceed. So Senator SPECTER has said he Lynne R. Lasry ...... Southern District of Cali- 02/12/97 fornia. was his steadily ringing office phones saying will honor negative blue slips when Jeffrey D. Colman ...... Northern District of Illinois 07/31/97 ‘‘No more Clinton Federal judges.’’ they are applied to district court nomi- Robert A. Freedberg ...... Eastern District of Pennsyl- 04/23/98 vania. Also, in 1996, Senator CRAIG said: nees and that even one negative blue Legrome D. Davis ...... Eastern District of Pennsyl- 07/30/98 There is a general feeling that no more slip will be considered dispositive. vania. Lynette Norton ...... Western District of Pennsyl- 04/29/98 nominations should move. I think you’ll see However, when it comes to circuit vania. a progressive shutdown. court, blue slips will be given great James W. Klein ...... District of Columbia ...... 01/27/98 J. Rich Leonard ...... Eastern District of North 03/24/99 Now there are crocodile tears and weight but will not be dispositive on a Carolina. people are upset because 41 of us—not nomination.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.045 S18PT1 S5400 CONGRESSIONAL RECORD — SENATE May 18, 2005 Given that the meaning and effect of In Stevenson v. Superior Court, Jus- For a series of reasons, it has become a blue slip has changed, and I suspect tice Brown wrote a dissenting opinion more and more of interest to the Amer- will continue to change depending on that would have changed California law ican people the nature and quality of which party controls the Senate and to make it more difficult for senior judges that we appoint. That has re- which party is in the White House, I citizens to demonstrate age discrimi- sulted in a serious concern about the believe the blue slip process should be nation. A Republican justice, writing role of courts, the critical doctrine of eliminated altogether. In reality, its for the majority of the California Su- separation of powers; that is, what usefulness has already been lost. preme Court, criticized Justice Brown’s judges do and what they should do and Instead, I have long supported the opinion and he stated this: what their prerogatives are and what creation of a specific timeline for how The dissent’s real quarrel is not with our their responsibilities are as a judge. judicial nominations should be consid- holding in this case, [meaning the majority] President Bush, in his campaigns ered. Three months after nominations but with this court’s previous decision . . . both times, made absolutely clear that are submitted by the President, they and even more fundamentally with the legis- he believed the judge should be a neu- should be given a hearing in the Judici- lature itself. . . . The dissent [of Justice tral arbiter, a fair referee and, as such, ary Committee. In 6 months they Brown] refuses to accept and scarcely acknowledges these holdings. not have an agenda when they go on should be given a vote in the com- the bench. He has appointed and nomi- ‘‘These holdings’’ being the law of mittee. And in 9 months, floor action nated judges that share that view. And should be taken on the nomination. the State of California. Justice Brown’s open disdain toward they have been doing splendid jobs— But the filibuster should remain the Government is also disturbing, espe- the judges that have been confirmed. basic right of this institution. I believe cially in light of her nomination to the He has not asked that they promote his implementing this timeframe would go District of Columbia Circuit. Let me agenda, his politics, his view of the so- a long way toward alleviating the ten- explain why this is so important. The cial policies of America, he has simply sion that has plagued the consideration DC Circuit is the most prestigious and asked that they do the jobs they were of judicial nominees. powerful appellate court below the Su- appointed to do—that they serve in the I would like to spend a few moments, judicial branch of our government. since I believe I have the time, on one preme Court because of its exclusive jurisdiction over critical Federal con- It is true, however, that the Amer- nominee. It is the nominee who comes ican people have seen some things in from California. Of course I represent stitutional rights and Government regulations. Given this exclusive role, the the judicial branch that have troubled California. This is very hard for me to them. They have seen, for a number of do, but I believe this nominee clearly judges serving on this court play a special role in evaluating Government ac- years, two judges on the Supreme indicates the legitimacy of our posi- Court consistently dissent in death tion. I would like to turn to the Presi- tions. Janice Brown’s statements on the penalty cases. They don’t like the dent’s choice for a seat on the most Federal Government raise serious con- death penalty so they dissent in cases powerful appellate court in the Nation, that uphold its use. They declare, in the DC Circuit, Janice Rogers Brown. cerns about how she would perform on the DC Circuit if given a lifetime posi- every case they consider, that the In the case of this particular nomi- death penalty cruel and unusual, and nee, out of all the nominations, Justice tion. Let me illustrate. At a 2000 Federalist Society event, therefore, prohibited by the Constitu- Brown, in my view, is the clearest cut. tion of the United States. But they She has given numerous speeches over Justice Brown stated: Where government moves in, community failed to note that in that very same the years that express an extreme ide- Constitution there are eight or more ology, I believe an out-of-the-main- retreats, civil society disintegrates, and our ability to control our own destiny atrophies. references to capital crimes, permit- stream ideology. In those speeches she The result is: families under siege, war in the ting the taking of a person’s life with has used stark hyperbole, startlingly streets, unapologetic expropriation of prop- due process of law, there are multiple vitriolic language. That has been sur- erty, the precipitous decline of the rule of references to the death penalty in the prising, especially for a judge, let alone law, the rapid rise of corruption, the loss of Constitution and I think it is impor- a State Supreme Court justice from my civility and the triumph of deceit. The result tant to note that every State, at the State. But statements alone would not is a debased, debauched culture which finds time the Constitution was adopted, had be enough for me to oppose her nomi- moral depravity entertaining and virtue con- a death penalty and virtually every nation, because there are many nomi- temptible. We asked her about these statements country had one as well. nees whose opinions I have strongly Therefore, it is inconceivable to me disagreed with and voted to confirm. in the Judiciary Committee. Her answer was, ‘‘Well, I write my own how a judge who would follow his oath Jeffrey Sutton and Thomas Griffith to obey the commands of the Constitu- immediately come to mind. speeches.’’ So these are her words. tion could ever interpret the phrase Rather, my concern is that these These are her words, of somebody going ‘‘cruel and unusual’’—certainly it was views expressed in Justice Brown’s on the DC Circuit with enormous hos- speeches also drive her legal decision- tility to virtually anything the Gov- not unusual if it was the law of every making. On far too many occasions she ernment would do, and saying the Gov- State in the Nation at that time and has issued legal opinions based on her ernment is responsible for the loss of the Federal Government had laws sup- personal political beliefs, rather than civility, the triumph of deceit. porting the death penalty. So we know existing legal precedent. Let me give Justice Brown’s statements and ac- that some judges continue to conclude some instances. tions demonstrate that she is an activ- that the death penalty is cruel and un- In a speech to the Institute for Jus- ist judge with an unfortunate tendency usual. That is activism. They have al- tice on August 12, 2000, Justice Brown to replace the law as written with her lowed their personal opposition to the stated this: own extreme personal beliefs. This is death penalty to solely drive them, and Today, senior citizens blithely cannibalize not the kind of judge who should be on they have manipulated the words of their grandchildren because they have a the nation’s second most powerful the Constitution to make it say some- right to get as much free stuff as the polit- court. thing it plainly does not say. ical system will permit them to extract. The PRESIDING OFFICER. The Sen- Now we are seeing cases of judicial From the context of the speech, it is ator’s time is expired. activism on a whole raft of issues. We clear Justice Brown is referring to So- Mrs. FEINSTEIN. I will yield the have seen the Pledge of Allegiance cial Security and Medicare, two essen- floor, but if an opportunity comes up, I struck down by a Federal court. We tial programs that protect individuals will ask to recover it again. have seen the erosion of rights of prop- in their retirement, and two programs The PRESIDING OFFICER. The Sen- erty protected by the fifth amendment that today’s senior citizens have been ator from Alabama. that says you cannot take someone’s contributing to financially for decades. Mr. SESSIONS. Mr. President, we are property without paying them for it. Unfortunately, her legal decisions re- debating in the Senate today a very We have had courts redefine the mean- flect the same visceral hostility toward important issue. It is an issue that we ing of marriage under the guise of in- the rights of America’s seniors. Let me must deal with and one that may take terpreting a constitutional phrase that give you an example. days of debate. absolutely was never ever intended to

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.047 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5401 affect the definition of marriage. It Some people say: Well, the courts est possible rating by the American was probably the last thing in their had to act because the legislature did Bar Association. She finished at the minds when the people ratified the not act. But when the legislature does top of her class in law school. She Constitution. not act, that is an act. That is a deci- made the highest possible score on the We have had judges cite as authority sion, a decision not to change an exist- Texas bar exam. A lot of people take proceedings in the European Union, but ing law, and it deserves respect. that exam. That is a big deal, in my it is our Constitution we ratified. It is Our judges are people who take their opinion. She got 84 percent of the vote our Constitution, not some other. How office on trust. We have some exceed- in her reelection. She had the support can they define and make rulings based ingly fine ones and most do show dis- of every major newspaper in Texas, and on opinions in Europe when they go cipline, but I do believe this is a point many of them are not Republican against the very document that orches- in our history when the American peo- newspapers. She is a superb, magnifi- trates and organizes our Government? ple and the Congress need to decide to- cent nominee. We have consent decrees in prisons gether what we expect out of judges. However, the People for the Amer- and schools and mental health hos- Do we expect them to be the avant- ican Way TV ad wants you to believe pitals where Federal judges dominate garde of social and political policy? Or that she is an activist judge, even whole Government agencies and state do we expect them to be faithful and though we know that for her whole ca- legislatures for 30 years. We have had true arbiters of legitimate disputes to reer her whole philosophy of law is judges say you cannot have a Christ- interpret the law as they find it? that judges should follow the law and mas display because it violates the There is only one way, consistent not legislate from the bench. That is first amendment. And, we know that with our Constitution and our history her deepest abiding principle—be faith- jackpot verdicts are all too common. and our body politic, for our system to ful to it and not depart from it, wheth- The American people are concerned continue to work, and that is that er or not she agrees with it. about these things. These things are judges show restraint. That is what The People for the American Way bigger than Republican and Democrat, this debate is about. It is not about Re- cites as proof of her activism a fellow they go to the heart of the separation publicans. It is not about Democrats or justice on that court, now the Attorney of powers doctrine. President Bush was such things. General of the United States of Amer- honest and direct, and many of the peo- One of the things that has occurred ica, Alberto Gonzales, who they say ac- ple he has nominated have had an ob- in this confirmation process, for now cused her of being an activist in an jection to their nomination because, on nearly 20 years, has been the influence opinion he wrote. So they declare: Ah, occasion, they have written something of outside hard-left activist groups who she is an activist. The President’s own or have made a speech that indicates have a clear agenda with regard to the Attorney General said she is an activ- they share the view that a judge should Judiciary. They know exactly what ist. That is simply not so. show restraint and not promote their they want from the Judiciary, and they Let me just talk about the facts of own personal agenda from the bench. are determined to get it. They have this opinion for a minute. We need to That is the way it has been for 200 banded together. They build dossiers drive this home because so far as I can years. I remember when this debate got on nominees. They systematically take tell that is the only charge that has kicked off, I saw ‘‘Meet the Press,’’ out of context their comments and been made against her that amounts to when Hodding Carter was on it, and their statements and their positions. anything at all that has ever been con- used to be on the staff of President They release that to the public. Fre- sistently raised by those who oppose Carter, and he said: Well, I have to quently, they have support from the her nomination. admit we liberals are at the point we major liberal news organizations in the In the opinion the People for the are asking the courts to do for us that country to the sensational charges American Way cites as their evidence, which we can no longer win at the bal- they make and they sully the reputa- what happened was this—the Texas Su- lot box. tions of nominees who are good and preme Court was evaluating the mean- Too often that is what this is about. fine nominees. ing of the Texas parental notification A lot of these issues that are being de- It is a very difficult to turn the tide law on abortion for a teenager or a cided by courts and judges would never on that. It is unfair. We will talk about minor. Minors in Texas have to notify ever prevail at the ballot box. They that some today. But we have to recog- at least one of their parents before would not be passed by the Congress. nize this. they undergo the significant medical People say they are nice folks. They If I criticize my colleagues on the procedure of an abortion, unless there are smart people. If you criticize a other side of the aisle, I would say this: is a bypass to the parental notification judge, you are doing something that is Those people were not elected to the requirement granted by a court. And highly improper; you should never Senate. They have not taken an oath minors are allowed to ask for that judi- criticize a judge. That is not the his- to advise and consent and to do so hon- cial bypass for many reasons. This tory of the Republic. What the Amer- estly and with intellectual integrity. process allows them to set forth the ican people need to understand, I can- They did not do that. They are advo- reasons and not have to tell their par- not emphasize this too much, the prin- cates. They raise money by trying to ents that they are going to have an ciple on these issues I have just talked demonstrate to those who would con- abortion. about is very deep. What we are sug- tribute to them that President Bush’s Well, in this circumstance, a trial gesting is, and what is being implicated nominees are extreme and out of the judge heard the case. He saw the child here is, that unelected judges who are mainstream. They should not be call- who wanted to bypass and not tell her given a lifetime appointment by which ing the shots here. Frankly, my view parents, and he concluded that she did they are independent and unaccount- is, too often they have. Too often they not meet the statutory requirements able to the public, should not set social have taken nominees, and they have and should tell her parents. Lets be and political policy in this country. smeared them up, muddied them up, clear—the Texas parental notification Is that too much to ask? We have and then our Senators have not stepped requirement does not give the parents seen too much of that. It is being back and given them a fair shake. I do veto power, it does not mean they have taught in the law schools that the good not mean that personally to my col- to ‘‘consent.’’ She could still have the judges are the ones that step out in a leagues, but I think that is a fair obser- abortion, just as long as she told them, bold way and move the law forward to vation. I believe too often that has oc- ‘‘notified’’ them, of what she was about higher realms, they would say. But curred. to do. The reason to have this kind of have they forgotten that the people, if Two of the things that are typical of law is simple—there is a serious con- they wish to have a death penalty and that can be seen in an ad now being run cern that if you cannot give a child an it is consistent with a Constitution, on television against Priscilla Owen—I aspirin at school without parental per- their opinion makes little difference? don’t know in how many States—by mission, surely we ought not to be hav- They have one vote in the election, as People For the American Way. Let me ing doctors perform abortions on chil- everyone else does. If their views do remind you that Justice Priscilla dren without at least having the par- not get ratified, so what? Owen, from Texas, was given the high- ents notified of it.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.049 S18PT1 S5402 CONGRESSIONAL RECORD — SENATE May 18, 2005 That is what Texas voted to have as exceedingly well, went to UCLA Law ied her record, over the rhetoric of the their law. The Supreme Court has School and achieved great success interest groups who are not the least upheld parental notification statuses there, and eventually became a judge. bit interested in the integrity of the ju- as constitutional. So, in Texas, there It is terrific, the story of her life and diciary. They are interested in their became a fuss over the meaning of the her achievements. agenda. From my observation, one of law and Justice Owen concluded that She has served for 9 years now on the their guiding principles is that the the trial judge was correct in their de- California Supreme Court. She does, ends justify the means. cision that the girl did not meet the re- every day on the California Supreme After law school, Justice Brown quirements for parental notification Court, the same kind of things which served as a deputy legislative counsel and should notify her parents before President Bush has nominated her to in California for 2 years. She then the abortion. Justice Owen dissented do on the Court of Appeals here in DC. spent 8 years as a deputy attorney gen- from the main opinion and concluded As such, she reviews the transcripts of eral in the office of the California At- that the trial judge was correct and the the trials of cases conducted by trial torney General, where she wrote briefs child should notify her mama or daddy judges under them to see if there was and participated in oral arguments be- that she was going to have an abortion. an error in the conduct of that trial. fore appellate courts on behalf of the Whereas, Judge Gonzales’s opinion said The California Supreme Court does not State’s criminal appeals. So she that he had studied the Texas statute conduct trials. They do not make opin- learned a lot about criminal law, and and I have concluded that—it is not ions. They review trials below them to she prosecuted criminal cases in court perfectly clear, but I have concluded make sure they were conducted prop- and litigated a variety of civil issues. the legislature intended A and B. erly, that the judge followed the law Her keen intellect and work ethic made Therefore, if I don’t rule the other way, and did not commit errors. her a rising star on the California legal since I have concluded the legislature I think she has been trained exceed- scene. intended A and B, then I will be an ac- ingly well. As a member of the Cali- In 1994, then-Governor Pete Wilson tivist even though I personally hate to fornia Supreme Court she reads briefs. tapped her as his legal affairs sec- see this child not tell her parents. She listens to arguments by counsel, retary. Governor Pete Wilson came to So, to help us clear up this matter, and then writes opinions as they make Washington last week. For the most he came before the Judiciary Com- those judgments. Those opinions part, he was here to affirm Justice mittee, of which I am a member, and should be unbiased and I believe hers Brown. He thinks she is a magnificent testified about this case. Senator have been and will continue to be. We nominee. He absolutely supports her. He said he couldn’t be more proud of BROWNBACK, who is in the Chamber, need judges who write well and follow her service on the court and that it was asked him about it as Attorney Gen- the law and rule consistent with the outrageous what they were saying eral. And he was rock solid. He has law. If you look at Justice Brown’s career, I do not think anyone can con- about this fine nominee’s record. written a letter saying he was not re- She was then nominated and contend she has performed other than ad- ferring to Justice Owen when he made firmed as an associate justice on the mirably on the bench. She has written that comment in his opinion about ac- California Third District Court of Ap- beautifully and thoughtfully. She grad- tivism; certainly, did not mean to. He peals. And in 1996, as a result of her su- uated from UCLA, one of the Nation’s was referring to his own self, that if he perior performance on the appellate finest law schools. had concluded that the legislature court, Governor Wilson elevated her to In February of 2004, last year, the meant these things, then he was com- the California Supreme Court. pelled to rule against the trial judge or alumni of that not so conservative law I ask to be notified after 30 minutes he would be labeling himself an activ- school presented Justice Brown with have been consumed. ist. Justice Owen did not agree, she had an award for public service. In recog- The PRESIDING OFFICER. The Sen- not concluded the same things about nizing her, her fellow UCLA alumni— ator has 7 minutes remaining. the legislation that Judge Gonzalez the people who know her—they did not Mr. SESSIONS. Since she was ap- had. condemn her for being some extremist. pointed to the Supreme Court, a couple An SMU law professor wrote a beau- They said this: things have happened that provide con- tiful letter on behalf of Justice Owen. Janice Rogers Brown is a role model for fidence in her good performance. She said: those born to prejudice and disadvantage, During the 1998 election, she was on I am pro-choice, absolutely, but I believe and she has overcome adversity and obsta- the ballot and had to win the majority she followed the law carefully. She was a cles and, since 1996, has served as a member of the vote to stay on the bench. The of the California Supreme Court. The profes- scholar. She thought it through like a judge people of California, who didn’t vote should think it through, and, absolutely, sional training she received at UCLA Law School has permitted her, even now, when for President Bush and certainly are this is not evidence of activism and it, abso- not a rightwing electorate, voted to lutely, should not be held against her. decades remain to further enhance her career, to have already a profound and revital- keep Justice Janice Rogers Brown on Mr. President, I want to know what izing impact upon the integrity of American the court with 76 percent of the vote. the time agreement is and where we jurisprudence. That is a big vote by any standard. are. I will repeat that: Probably 20 percent of the people in The PRESIDING OFFICER (Mr. She has even now been found to have al- California vote against anybody on the SUNUNU). The Senator has 431⁄2 minutes ready a profound and revitalizing impact ballot. Other judges were on the ballot. remaining. upon the integrity of American jurispru- She got a higher percentage of the vote Mr. SESSIONS. Mr. President, I see dence. than any of the other four judges on Senator BROWNBACK is in the Chamber. I could not agree more. They go on to the ballot. That is an affirmation by I will finish within my 30 minutes. I be- say this: the people of California. lieve he will be speaking in the next 30 Despite her incredible intellect, work In 2002, for example, Justice Brown’s minutes; is that correct—or in that 40 ethic, determination, and resultant accom- colleagues on the supreme court relied minutes? plishments, she remains humble and ap- on her to write the majority opinion The PRESIDING OFFICER. That is proachable. for the court more times than any an appropriate division of time. That is important in a judge. A lot of other justice. What happens on a court, Mr. SESSIONS. I wish to share a lit- judges get to the point they think they such as a supreme court, once the tle bit about Justice Janice Rogers were anointed and not appointed, but court votes on how a case should be de- Brown. She grew up not too far from she has been on the bench for 9 years, cided, they appoint a member of the where I grew up in rural Alabama, in and they still say she keeps her per- court to write the opinion. If you write Greenville, AL. She, as a young Afri- spective and remains approachable to the opinion, you have to be on the ma- can-American child, had parents who all. That is not the Janice Rogers jority side. If some don’t agree and the were sharecroppers. They had a tough Brown you will be hearing about from majority agrees, then somebody writes life. She ended up moving, as a teen- those who want to tar and feather her. the majority opinion for the court. ager, to California, where she went I will take the word of the people We have had the suggestion that this through the school system there, did who know her, who have actually stud- justice of the California Supreme Court

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.051 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5403 is somehow out of the legal main- Committee over 2 years ago. I can re- constructionist would ask, is this with- stream, but in 2002, more than any member that during her confirmation in our purview under the Constitution? other justice on the court, she was hearing, she gave a law school pro- And if it is not, the case would be called on to write the majority opin- fessor dissertation to almost every thrown out, rather than the judge say- ion. That speaks volumes for the fact question that came up. She had the an- ing that the Constitution is an organic, that she is not out of the mainstream. swers. She responded directly to our living document, and I can look at this And there are few courts in the United colleagues. She is a brilliant lady, both law imaginatively, how I want to, and States more liberal than the California on resume and in person. then somehow find a way to reach the Supreme Court. Something you said earlier caught conclusion I want. Professor Gerald Ullman, who is a my attention, because it is what a lot To me, that is what the frustration of law professor in California, wrote a of this battle is about. The left in the public has been—that somehow beautiful letter supporting her. His America doesn’t get this agenda they are now thrown out of the process. statement sums up what we ought to through the legislative or executive They can vote for or against the Sen- think about as we consider this nomi- branch, so they go through the courts. ator from Alabama or the Senator from nation. He said: And that is really what we are fight- Kansas or the Senator from New Hamp- I don’t always agree with her opinions. ing about now, it seems to me—you shire or the Senator from Massachu- And then he said this: have judges we are putting forward for setts on the basis of a policy issue. But I have come to greatly admire her inde- confirmation who are strict construc- they don’t have any right or ability to pendence, her tenacity, her intellect, and her tionists, meaning they will rule within be able to contact a judge. Yet you wit. It is time to refocus the judicial con- the letter of the law of the Constitu- have these massive issues that directly firmation process on the personal qualities tion. The left wants people who will be impact people regarding marriage and of the candidates, rather than the hot button super legislators, legislating from the life. We have a bill up now where a Fed- issues of the past. We have no way of pre- bench. In your experience on the Judi- eral court has said that the Congress dicting where the hot buttons will be in the ciary Committee, have you heard that has appropriated this money and that years to come, and our goal should be to debate taking place, or is it always is inappropriate and they must give have judges in place with a reverence for our Constitution who will approach these issues pretty much underneath the water, you these moneys out. Under the Constitu- with independence, an open mind, and a lot really don’t see it? Have you heard tion, the appropriation powers are of commonsense, a willingness to work hard, that debate rise up where people say, clearly given to the Congress. The and an ability to communicate clearly and well, we cannot change the marriage court is now stepping into that. effectively. Janice Rogers Brown has dem- definition in the U.S. Congress or in My question to my colleague would onstrated all these qualities in abundance. the States, so we are going to do it be, Where does this stop if you don’t Her colleagues support her. A bipar- through the courts? start putting on judges who are judges tisan group of Justice Brown’s former Mr. SESSIONS. This motive is not rather than super legislators? Where judicial colleagues, including all of her talked about regularly in an open way, does it stop? colleagues on the court of appeals for but in a way it did become open. Short- Mr. SESSIONS. I could not agree the Third Circuit in California, have ly after Justice Owen was nominated, more with the Senator. He stated that written in support of her nomination. the Republicans lost a majority in the so beautifully and, I believe, so fairly. Twelve current and former colleagues Senate. I was chairing at that time the It is the real question here. As you wrote a strong letter to the committee Court Subcommittee of the Judiciary know—and I am not sure most of the stating: Committee, and that changed and Sen- people in our country have fully Much has been written about Justice ator SCHUMER became chairman of the thought it through—once a judge says Brown’s humble beginnings, and the story of committee. He announced that all the Constitution means that marriage her rise to the California Supreme Court is judges were basically driven by their should be redefined and every legisla- truly compelling. But that alone would not politics, and they all had ideologies, tive finding to the contrary is void, the be enough to gain our endorsement for a seat and that we ought to just consider only recourse the American people on the Federal bench. We believe that Jus- their politics when we are confirming have is to try to pass a constitutional tice Brown is qualified because she is a superb judge. We who have worked with her on them. We had a hearing on the politics amendment that requires, as you a daily basis know her to be an extremely in- of ideology and how we should handle know, a two-thirds vote of both Houses telligent, keenly analytical, and a very hard it. I thought the witnesses were uni- of Congress and three-fourths of the worker. We know that she is a jurist who ap- form, including Lloyd Cutler, counsel States. It is a monumental task. And plies the law without favor, without bias, to Jimmy Carter and to President Clin- then if you criticize the judge for their and with an even hand. ton, in their rejection of that principle. ruling, people say: Oh, you are vio- That was received by the committee They all agreed that the classical lating the separation of powers. I think October 16, 2003, when this process American rule of law says that judges when the courts tread into those areas began. are to be nonpartisan, that they are and start imposing political views, Justice Owen and Justice Brown are referees and arbiters and objective in- they can only expect that there will be both immensely qualified to serve on terpreters of the law, and it would un- criticism in return. the Federal bench. They deserve fair dermine that principle to start treat- Mr. BROWNBACK. I would think consideration by this body. That ing them like politicians. So it was dis- they would expect criticism on that. should come in the form of an up-or- cussed in a way that was honest, actu- But that has been the built-up frustra- down vote, not a filibuster. I trust we ally, and I think the overwhelming re- tion, where people say the only way we will have that soon. They certainly de- sult from the ABA and the witnesses can go is to amend the actual Constitu- serve it. was that considering politics during tion in the process. I do not believe I yield the floor. the judicial confirmation process that is the right way for our democ- The PRESIDING OFFICER. The Sen- would not be a good way to go. racy to be going. I appreciate my col- ator from Kansas. I know Senator BROWNBACK is aware league from Alabama and his work on Mr. BROWNBACK. Mr. President, I that a lot of the groups that drive the these issues. I believe that is really at thank my colleague from Alabama for objections to these nominees are very the core of these matters. his presentation and his work on the agenda-driven groups, they are activ- Mr. President, I note that we have Judiciary Committee since the time we ists, and I think that is pretty obvious had a lot of debate on Priscilla Owen have both been in the Senate. He has to anybody who is watching. and Janice Rogers Brown. I don’t think served for some time and has done an Mr. BROWNBACK. Mr. President, anyone who listens to any of this de- excellent job. He brings a lot of good that has been my view of what has been bate is unfamiliar with these two indi- sense to it. We are both very familiar taking place recently. Individuals in- viduals. I am going to talk some more, with Janice Rogers Brown and Justice creasingly have said we cannot win as well, about these individuals and an- Owen. They have been in front of us for this legislative fight in the States or in swer some questions and comments years now. Priscilla Owen was in front the Congress, so we are going to take it made from the other side about these of us when I was last on the Judiciary to the courts. A judge who is a strict two individuals.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.053 S18PT1 S5404 CONGRESSIONAL RECORD — SENATE May 18, 2005 At the end of the day, we need to rec- ica if the court starts walking—and ap- During a war, a President is stronger; ognize what this is about. I believe parently it has—into this issue of the the legislative body is considered President Bush responded to this well definition of marriage. These are weaker. Outside of war, it reverses and at his last press conference when he things, if properly left to legislative the legislature assumes more authority was asked: Why do you think the Sen- bodies to determine, look at and figure, over the executive branch. And for ate Democrats are opposing your nomi- wrestle with, and have elections about, years political scientists have debated nees? Do you think it is based on the which people can have an impact on this back and forth—who is gaining, religious preference of your nominees? and say, I think this should be a cer- who is receding. Yet we have seen tak- Some of these are people of faith who tain way, and a determination is then ing place now over the past 40 years an have religious conviction. He said: No, made by the people. That has been left ever-increasing encroachment of the I think it is because they would inter- up to the people, and it should be. judicial branch within these purviews pret the law rather than trying to re- When the court steps in and makes a reserved under the Constitution for the write the law, that these are people new determination, makes a new ruling legislative and the executive branches. who would stay within the construc- on it, that is going to build to that fes- I spoke of one just previously with tion of the law and the construction of tering. It happened in 1973 in Roe v. my colleague from Alabama, and that the Constitution and not try to rewrite Wade, where the Court discovers this is the appropriation of money. In the it. right to privacy that is a constitu- Constitution, the appropriation of I believe that is what really is at tional right to abortion, which cannot money is given to the legislative body. stake here. Are you going to have a be limited in any means, by any State, That is specifically stated within the super legislative judiciary, or are you by the Federal Government, by the Constitution. going to have one where it is the role Congress. Jerry Solomon, a former Congress- of a judiciary to determine what is con- Prior to that period of time, it had man from New York who passed away, stitutional within the framework of been held valid, constitutional, and ap- observed that a number of colleges in the Constitution, not what some sort propriate for States to regulate and to the United States were not allowing of expansive living document reading deal with this issue, so we had different military recruiters to come on to their of the Constitution would be? That States ruling different ways prior to college campuses. He said they ought really is the heart of the matter we are Roe v. Wade. This is what would hap- to at least have them come on to the debating here today. It is a very live pen again if and when Roe v. Wade is campuses and have their voices heard. issue in front of us right now. overturned; the States simply would The colleges said no. I note to those who may be listening then handle this issue as they did prior Congressman Solomon put forward to these proceedings right now, last to 1973. But once the Court discovers an amendment that if a college decides week, a Federal judge in the State of this constitutional right to privacy to bar military recruiters from its Nebraska ruled that the State con- that is interpreted to mean there is a campus, that is its right, but it then stitutional amendment that the people right to abortion, the states cannot de- cannot receive certain Federal appro- in Nebraska had passed defining mar- cide for themselves at all. priations. The amendment said if you We are starting down the same path riage as the union of a man and a are not going to let military recruiters with marriage. We can look around the woman—the people of Nebraska passed on campus, then we have the right to country and ask: Why are people fired a State constitutional amendment withhold these Federal funds. If you up about the judiciary? Why, during with 70 percent of the vote, which is a are not going to give them a chance at the last election cycle, was the lead ap- high mark in any election, saying, yes, free speech, we think there is some plause line for President Bush’s rallies we agree that the union of a man and price to be paid with that. about appointing judges who will stay woman is the definition of marriage in It is the authority of the Congress to within the laws rather than rewriting appropriate money. That was done Nebraska. A Federal court in Nebraska them? ruled that is not only unconstitutional The reason is people have this deep- with the Solomon amendment. It under several different provisions, but felt frustration at how the courts are passed by a majority vote. It passed by that civil unions must be granted to coming at all of these opinions, so con- a majority vote in the Senate and was people of the same gender. The Federal trary to the feelings of the vast major- signed into law by the President of the court is saying you must give that. ity of people in the United States. And United States. Now a Federal court says, no, Con- So it is not just saying that the State where is it written within the Con- gress, you cannot do that. The money of Nebraska is wrong and cannot define stitution, if it is within the document, must go to those colleges in spite of marriage, which we have left up to the that we should have a constitutional States in the history of the Republic, right to abortion? Bring it to this body, the Solomon amendment. How many but it is also saying that the U.S. Con- with two-thirds of the House and two- places across the country are courts al- stitution, in some reading of it, actu- thirds of the Senate, three-fourths of locating money for States? These are ally requires the recognition of same- the States passing it. That is how you specific authorities and powers re- sex civil unions. Where was that ever amend the Constitution, not by a ma- served to the legislative body, and the written in the Constitution? Where was jority vote of the Supreme Court. That reason is, the Founders, in all their that ever considered in any sort of con- is the durable way we amend the Con- wisdom, said legislators are elected by stitutional debate? Why is that, at this stitution and deal with it, instead of the people, and the allocation of money point in time in our Constitution, seen this building up of frustrations to the is one of the key power for any govern- as somehow in this organic document point where people say: I have been mental entity that should belong to of where we are today? disenfranchised. I thought the people the elected representatives of the peo- I think we have had 17 States now di- voted, that the people ruled, within the ple. But now we have the courts con- rectly vote on the issue of marriage, parameters of the Constitution. tinually taking, taking, taking. The ju- and every one of them said marriage is Remember, the Constitution gives a diciary continues to come in to areas the union of a man and a woman. Now broad swath of power to the people and reserved for the executive and legisla- you have a Federal court that says, no, limits government. That is the role of tive branches, and so we come to where that is not allowable for States to de- the Constitution. It gives broad au- we are today: President Bush seeking termine. States in every place and thority and power to the people and to appoint judges, bright judges, well- every region in the country have limits the role of the government. qualified judges, balanced judges, ones passed this when the people were al- We have embarked today upon ad- who say the law should be interpreted lowed to vote. Now you see again the dressing this issue. Really what we are as to what the law is, not what they issue-setting of an activist judiciary seeing take place now are these large choose for it to be or what outside going in and saying: We know what the plates pushing against each other. Po- groups want it to be. The Constitution people think and what the people vote litical scientists for years have debated is what it is, and it is not something on this, but we say different. You are the issue of Presidential power taking through which I can invent new rights, going to create yet another festering away from legislative power. That has however much as I think they should frustration among the people of Amer- always been the debate over the years. be in the Constitution. If that right is

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.055 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5405 to be, it should be passed by two-thirds case. Again, I want to put that issue to how that person could be somebody out of the House, two-thirds of the Senate, rest. Indeed, Justice Brown has taken of the mainstream of thought and serve three-fourths of the States, and then it issue with the Lochner decision. This is in so many capacities in that State. becomes a constitutional amendment, considered a judicial activism case. That seems to me to defy logic. not by a majority vote at the Supreme She is being accused of supporting it, She has performed a lot of commu- Court. when in fact she actually stated in an nity service. She served as a member of This is what these judges generally opinion that: the California Commission on the Sta- stand for. It is what we should get the The Lochner court was justly criticized for tus of African-American Males, focused judiciary back to. And yet nominees using the due process clause as though it on ways to correct inequities in the who would do that are being blocked, provided a blank check to alter the meaning treatment of African-American males they are being filibustered inappropri- of the Constitution as written. in employment and in the criminal jus- ately. That is Justice Janice Rogers Brown, tice and health care systems. Is this Priscilla Owen, Janice Rogers in a written opinion on Lochner. She out of the mainstream? She was a Brown—we have a group of four judges cannot be accused of this. Maybe her member of the Governor’s Child Sup- who collectively have been filibustered words in a speech are accused, saying port Task Force which reviewed and for a total of 13 years. It is amazing she is supportive of Lochner, but her made recommendations on how to im- that they would be filibustered for that actual stated written opinion says, no, prove California’s child support sys- period of time. that the Court was justly criticized for tem. Out of the mainstream? She was a This is a key, defining moment for us the Lochner case. I think those are im- member of the Community Learning as a country. Will the judiciary be the portant things to put clearly in the Advisory Board of the Rio Americano judiciary, or is it to continue to accu- record. High School and developed a program mulate power and become more of a Mr. President, I inquire of the Chair to provide government service intern- superlegislative body? That is much of how much time remains of my alloca- ships to high school students in Sac- the debate that is in front of us today tion? ramento. Out of the main stream? She The PRESIDING OFFICER. The Sen- with the judges. That is taking place in taught Sunday school at the Cordova ator from Kansas has 10 minutes re- the form of Priscilla Owen, Janice Rog- Church of Christ for more than 10 ers Brown, and several other judges. maining. Mr. BROWNBACK. Mr. President, I years, just as former President Carter That remains the issue. want to cover some of the ground on teaches Sunday school. Out of the When a Supreme Court position Janice Rogers Brown that is well mainstream? comes open, will we appoint somebody Given the impressive range of her ac- known in this situation because she who will stay within the letter of the tivities and legal and personal experi- has been in front of us so much, so law of the Constitution or not? Will it ences, it is no surprise that the Presi- long, but I think it bears repeating. require 60 votes to approve a Supreme dent would nominate her. What is sur- She was born to sharecroppers, came of Court judge, something that is never prising is that she would be labeled age in the Jim Crow era, went to seg- required, or will it be a majority vote? regated schools. Do you know what somehow out of the mainstream. I Must we have a supermajority? motivated her to become a lawyer? It think this is simply and demonstrably If you want a supermajority to ap- was her grandmother’s stories of ridiculous. If Janice Rogers Brown is prove a Supreme Court judge, then NAACP lawyer Fred Gray, who de- an extremist, the people of California, I amend the Constitution to state that it fended Rosa Parks, and her experience guess, must be so, too. In 2002 they requires a supermajority, like we do as a child of the South. overwhelmingly approved her in a re- with respect to treaties, what it takes When she was a teenager, Justice tention election with 76 percent of the to approve a treaty. The Founders did Brown’s family moved to Sacramento, vote. Her support was more than any not say that. They said advise and con- CA. She received her bachelor’s degree other justice on the ballot in that elec- sent. They did not say a supermajority in economics from California State in tion. or two-thirds vote of the body. They Sacramento in 1974 and her law degree If Janice Rogers Brown is extremist, said advise and consent. Do you any- from the UCLA School of Law in 1977. so, too, must be a bipartisan group of where interpret a supermajority vote These are all well-known matters. 15 California law professors who wrote to be required to approve a Supreme I don’t know if people know as well to the Senate Judiciary Committee in Court nominee? No, that is not within all of her public service, but they prob- support of Janice Rogers Brown, know- the reading and understanding of the ably cannot because it is so extensive. ing her to be: document. But because this role of All but 2 years of her 28 years in her . . . a person of high intellect, unquestion- judges as legislators keeps coming legal career have been in public serv- able integrity and evenhandedness. back up, particularly from the left, it ice. This is a public servant of 26 years She is not out of the mainstream. is going to continue to be pushed. standing. She is extraordinarily qualified, and There have been a number of issues I ask the Presiding Officer or any- this is just an attempt to smear a good raised regarding the nominees. I now body listening, if you serve as a public candidate. want to address what has been raised. servant for 26 years in the State of I turn, finally, to one issue about the It has been asserted that current At- California, how can you be a radical approval rate of court of appeals judges torney General Alberto Gonzales ac- conservative out of the mainstream ju- under President Bush. We heard a lot cused Priscilla Owen of judicial activ- dicial thought? Can that be while you of numbers thrown around about ism. He is Attorney General of the are serving for 26 years in public serv- judges and the number who have been United States and was on the Texas ice in the State of California in various approved by this administration and Supreme Court with Justice Owen. I capacities? She began her career in 1977 what happened under the remainder of asked the Attorney General in his con- and served 2 years as a deputy legisla- the Clinton years administration. I firmation hearing for Attorney General tive counsel in the California Legisla- want to put up one chart about this if that was something he had said tive Counsel Bureau. From 1979 to 1987 and talk briefly about it. about Priscilla Owen. He said no. He she was deputy attorney general in the We have a Republican President and testified under oath that Justice Owen office of the attorney general of Cali- a Republican Senate. I am delighted. I is a great judge he never accused of ju- fornia. Governor Pete Wilson selected think we are going to make good dicial activism. That is Alberto her to serve as his legal affairs sec- progress for the American people and Gonzales, under oath, in front of the retary from 1991 to 1994. She then show progress in moving things for- Judiciary Committee of the Senate. served on the State court of appeals for ward. I want to go back to two other I think that should put that to sleep. 2 years before joining the California Democrats, two Democratic Presidents He testified under oath that he had Supreme Court where she served with who had Democratic Senates under never accused Justice Owen of engag- distinction until 1996. Then she was in- them, an appropriate comparison of ap- ing in judicial activism. volved in her community. ples and apples, and look at the ap- Justice Brown was accused of justice So we have 26 years of public service proval rate of circuit court judges. Re- activism in supporting the Lochner in the State of California. I do not see member you have federal district court

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.057 S18PT1 S5406 CONGRESSIONAL RECORD — SENATE May 18, 2005 judges, circuit court judges, and then that now we have to deal with. It will want them confirmed. So they used Supreme Court Justices. Circuit court be a robust debate, and I hope at the their control of the Judiciary Com- and Supreme Court jurists are the ones end of the day what we will have is the mittee to make sure they were not con- who have the most latitude on enforce- approval of circuit court judges who firmed. There were over 60 of them. ment, interpretation, or rewriting of are mainstream and who are con- Now, the current President, Presi- laws. sistent; the role of the judiciary being dent George W. Bush, has sent 218 Look what we had under Democrat appropriate as it was designed by the names for a lifetime appointment on President Johnson, a Democrat Presi- Framers of the Constitution and the the Federal bench. We have approved dent: 95 percent approval rate of circuit Founders of the Republic and within 208. Yes, that is right, 218 names the court judges. President Carter, Demo- the lines of the Republic. If that is President has sent and we have ap- crat President, Democrat Senate: 93 what we will get back to, their proper proved 208. percent approval rate. President Bush, roles, the legislative, executive, and ju- The Constitution says something Republican President, Republican Sen- dicial branches, it will be a long time about this. It is not what my col- ate: 67 percent approval rate of circuit coming. But I think it is important and leagues have described. They misread court judges. it is worth doing. the Constitution. The Constitution What changed during this period of Mr. President, I thank my colleagues provides a two-step process for putting time? I suppose some would say they and yield the floor. someone on the Federal bench for a are nominating a different sort of The PRESIDING OFFICER. The Sen- lifetime: One, the President nominates; nominees who are not qualified or out- ator from North Dakota. and, two, the Congress decides. That is side the mainstream, but I think that Mr. DORGAN. Mr. President, it has called advice and consent. It is not the argument has been put to rest. What always been a great privilege for me to President who decides who goes on the you have taking place is the unprece- come to the floor of the Senate and en- Federal bench for a lifetime. It is a dented use and threat of the filibuster gage in debate. I graduated from a high two-step process. The candidate for a that has never been used before and is school senior class of nine students—in lifetime appointment must survive targeted at the circuit court, not at the top five, by the way. I come from a both, must get a Presidential nomina- the lower Federal court, the finders of town of 350 people in the southwest tion and then must be approved by the fact at the district court level, but at ranching corner of North Dakota. I Senate. the appellate level so that continued think it is a great privilege to be here, My colleagues say there is a require- broad interpretation of laws by which and a wonderful opportunity. ment in the Constitution that there be some would seek to put their own The reason the Senate is such an ex- an up-or-down vote that you cannot fil- views more in, can continue to be extraordinary opportunity—and I have ibuster. First, unlike my colleagues on pressed: 95, 93, 67. had the privilege to serve in both the that side of the aisle, many of whom Others will argue, What about the House and the Senate—is that the Sen- have voted for filibusters—and I will Clinton years? You have a Republican ate is the place of debate, unlimited de- not embarrass them by reading their Senate and a Democrat President. bate. Yes, there is the opportunity for names, but I could because they have There are obviously differences of opin- a filibuster in the Senate, but that is voted for filibusters previously on judi- ion that will occur during that period what forces compromise in the Senate. cial nominations. Unlike those cir- of time, more so than when you have a Unlike the House, there is a forcing of cumstances, we have voted on all of body that is of the same party. But compromise, which is what makes Gov- these judges. The 10 who were not ap- even then, we move forward large num- ernment work. proved had a vote in the Senate on a bers of Clinton nominees. This is un- I have been listening to this discus- motion to proceed, on a motion to in- precedented, 67 percent, the falloff sion. It is quite remarkable. This is a voke cloture. It required 60 votes and from what has taken place because of big issue. This is a serious issue. I have they did not get the 60 votes so the the use of the filibuster. been listening attentively to the speak- nomination did not proceed. This needs to change back to where ers. Our former colleague, the late Sen- The majority party is upset about the filibuster is not used against judi- ator Moynihan, once said, everyone is that. They believe democracy is one- cial nominees. Actually, I encourage entitled to their own opinion, but they party rule, the same party in the White my colleagues on the other side of the are not entitled to their own set of House, the House, and the Senate. aisle not to use the filibuster on this so facts. What is happening here is the They want their way and if they do not we can move forward with up-or-down continuation of the development of a get their way, they intend to violate votes and leave the institution intact, book of fiction by the majority side. the Senate rules to change the rules. the way it has been for two centuries, They come to us and say the fili- They will not ask the Parliamentarian where the filibuster is not used on the buster with respect to judicial nomina- when they make the motion. Why? Be- advice and consent provisions of judges tions is very unusual, it is unprece- cause they are wrong and they know it, that is required. Filibuster means dented, it is unconstitutional. Total and they will violate the rules of the supermajority vote on circuit court or fiction. How can they say that with a Senate, so they put their person in the Supreme Court nominees. That is not straight face? At least you would think Presiding Officer’s chair, the President contemplated, it is not considered, it is they would laugh from time to time of the Senate, and by 51 votes they will not appropriate under the Constitu- about what they are trying to pull over violate the rules of the Senate for the tion. the American people. first time in 200 years. Why? Because It is time to move these judges on They have filibustered. They have de- their nose is bent out of shape because forward. We are going to have a robust layed. They have blocked forever judi- they have not gotten every single judge debate for the next several days about cial nominations when there was a on the court they wanted. They have this. The issue underlying that is real- Democrat in the White House. only gotten 208 out of 218. ly going to be about the role of the ju- Let me read a few names: Snodgrass, Let me describe some I have opposed. diciary, whether it is expansive in re- Whitfield, Shurin, Bingler, Greer, I actually opposed one who was sent to writing broadly laws and the Constitu- Sundram, Stack, Wattley, Beaty, us by President Bush who wrote that tion, or if it is more strict construc- Rodriguez, Lasry, Klein, Freedberg, he believed a woman is subservient to a tionist, staying within the roles and Norton. I could read 60 of these. These man. I voted against that one. I guess boundaries of what the judiciary are the names of lifetime appointments I don’t want someone on the Federal should be. to the bench the President sent down bench for a lifetime who believes a I offer to have the American people to this Chamber in the 1990s, most of woman is subservient to a man. One of decide what role the judiciary has, which never even got 1 day of hearings, the keenest, finest minds of the 18th what role the United States Senate has not 1 day of hearings. Some of them, by century, but not someone suited to go on appointing people to the judiciary. I the way, were filibustered, but most to the Federal bench for a lifetime regret we are at this point. I regret were not even given the courtesy of 1 now, in my judgment. That person ac- this chart shows this way. But none- day of hearings because the majority tually did get through the Senate, I re- theless it is what it is. It is something party did not like them, and did not gret to say.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.059 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5407 Let me talk about a couple because I was on a television program with never been a filibuster before—you the majority has brought them to town one of my colleagues from the other know better than that. If they keep recently and they have been on tele- side. That colleague was saying it is doing it, I am going to come down and vision. Let me describe the record of a unconstitutional for us to filibuster a read the names of all of them on the couple of these nominees. court nominee. That very colleague has majority side that have voted for the First let me talk about Janice Rog- previously voted to filibuster a court filibuster. And I will read the names of ers Brown. She did not get the 60 votes. nominee. I wonder how they can stop all 60 judges into the RECORD—I should Let me describe why. Ms. Brown, as de- from grinning—at least? I understand not say 60 judges—60 nominees the last scribed by the last speaker, has a won- where a full-bellied laugh would not President sent down here that, in many derful life story, but she has served at occur on the Senate floor—but how can cases, did not even have the courtesy of some great length in the State of Cali- you avoid grinning when you stand up a hearing. fornia, and her views are so far out of and perpetrate these fictions? This position is hypocrisy, and it the mainstream that one wonders what They know better. needs to change. This so-called nuclear would have persuaded the President to Again, as my colleague, the late Sen- option is called ‘‘nuclear,’’ and it was send her name down. ator Moynihan said, everyone is enti- coined by the majority party. It is Let me give an example. She believes tled to their opinion, but not everyone called ‘‘nuclear’’ because nuclear re- zoning laws represent theft of property. is entitled to their own set of facts. lates to almost total destruction. And Let me explain that to you. Zoning Let’s at least deal with the truth in the some of them are gleeful now that they laws decide if you move into a residen- Senate. are headed toward a nuclear approach tial area and you have a house in a res- There is much we ought to do in the on the floor of the Senate. idential area and the lot right next Senate. My colleagues on the floor are This is a great institution. I am door to you is empty, you can have colleagues most often who stand up proud to be part of it. But this is not a some confidence they are not going to and talk about the real issues. I am proud day. America’s greatest mo- move a porn shop into that next lot. Or talking about Senator KENNEDY and ments are not found in circumstances there is not going to be a massage par- Senator DAYTON and others on the such as this. America’s greatest mis- lor in that next lot, or somebody is not issues of jobs, the jobs going overseas takes are often wrapped in the zeal of going to bring an automobile salvage at a record pace, health care, health excessive partisanship, and that is company and put it on the lot next to care costs that are devastating to peo- what we find here. And America’s your house. Zoning laws. She thinks ple and to their budgets and to busi- greatest mistakes are almost always— zoning laws are a theft of property. nesses. Energy, the price of gasoline, almost always—preceded by a moment, Do Americans want someone who be- the fact we are held hostage by the a split second, when it is possible to lieves there ought not be zoning? Or if Saudis and Kuwaitis and Iraqis and change your mind and do the right you decide you should not have a porn Venezuelans for oil we put through our thing. shop next to a school, you ought to pay transportation system and through That moment, that split second ex- the person who owns the property in gasoline that we run through our fuel ists now for the majority leader and order to avoid having the porn shop lo- injectors, and yet is there any discus- those who feel as he does, that they cate next to a school? Or a massage sion of that in the Senate? No, no, not ought to exercise the total destructive parlor next to the nursing home? That at all. Not at all. This is an agenda option they call the nuclear option. We ought to, in my judgment, work is so preposterous. What on Earth is driven outside this Chamber by inter- together. Mr. President, 208 of 218 that kind of thinking and why do we est groups that have forgotten the judges means we have worked together have a nomination of someone who Ninth Commandment. Yes, there were and done the right thing. There are no thinks like that? Ten Commandments, and the Ninth apologies from this side for exercising That same nominee says, by the way, says: Thou shalt not bear false witness. our constitutional right to make sure the Medicare Program and Social Secu- I ask my fellow citizens, turn on your we have men and women on the Fed- rity Program are the last vestiges of television and see what they are run- eral bench whom we are proud of, who socialism, the last of the New Deal so- ning on television: advertisements represent the mainstream of this coun- cialistic impulses of our country, and coming from religious organizations try. We have done that time and time says that these are cannibalizing from that fundamentally misrepresent—and and time again with President George our grandchildren. That we are they know they misrepresent—the W. Bush, and will continue to do that. cannibalizing from our grandchildren facts with this issue. The Ninth Com- But we will not give up the right to ex- because we have things such as Social mandment says: Thou shalt not bear ercise our responsibilities here on the Security and Medicare. false witness. The truth is this. The floor of the Senate on these important Am I pleased to oppose a nominee truth is, that this Congress has a right issues. with those views? Of course I am. We to an equal voice in who spends a life- Mr. President, I believe my time has have a right in this Chamber and that time on a Federal bench. The truth is, expired. I believe the Senator from right is in the Constitution to prevent we have cooperated to an extraor- Massachusetts follows me today. I someone such as that from going on dinary degree with this President. We yield the floor. the Federal bench. The majority party have approved 208 Federal judges. Let The PRESIDING OFFICER (Mr. MAR- says no, you do not have that right. me say, two of them are sitting on the TINEZ). The Senator from Massachu- They say they have what is called the Federal bench in North Dakota. I was setts. constitutional option. proud to work for both of them. They Mr. KENNEDY. I thank the Chair. Let me ask, in the hours in which we are both Republicans. I am a Demo- Mr. President, I would like to ask the debate this, if one Member of the Sen- crat. I am pleased they are both on the Chair to remind me when I have 10 ate, just one—I am not asking for five, Federal bench. I worked with the White minutes remaining. three or two, just one member of the House to get them there. I supported The PRESIDING OFFICER. The Sen- Senate will come to the Chamber of the them, as I have done with most of the ator currently has 45 minutes. Senate with the Constitution in their nominees coming from this President. Mr. KENNEDY. Mr. President, I com- pocket. Yes, you can put it in your But we have every right to decide, mend my friend and colleague from pocket. It is a rather small document. when this President sends us the name North Dakota for the excellent presen- If you cannot read it, we will get reme- of a nominee so far outside the main- tation he made. As a member of the Ju- dial reading or have someone read it to stream—and that is the case with the diciary Committee, I remember the you. Come down to the Senate and tell two they are talking about now, one well over 60 nominees who were denied us where it says that the minority in from Texas, one from California—we the courtesy to be considered and to the Senate does not have the right to have a right to decide not to advance have a hearing and go to the Senate invoke the rules of the Senate to pre- those names to give them a lifetime and have a debate and discussion on vent someone from going on the bench appointment on the Federal bench. the floor of the Senate. for a lifetime? Where does it say that To those who stand up on the floor of I do not think any of us who are in the Constitution? the Senate and say: Well, there has strongly opposed to what the Senator

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.061 S18PT1 S5408 CONGRESSIONAL RECORD — SENATE May 18, 2005 has referred to as the nuclear option lessly advocated its use, even for per- It is no surprise that civil rights are interested just to retaliate against sons with mental retardation. He has leaders oppose Mr. Pryor’s nomination, these Republican judges, the half a even ridiculed the Supreme Court Jus- including Rev. Fred Shuttlesworth, a dozen or so who have been mentioned, tices, calling them ‘‘nine octogenarian leader in the Alabama movement for debated, and discussed today, in return lawyers who happen to sit on the Su- voting rights, and many of Rev. C. T. for the way the over 60 nominees were preme Court.’’ He can’t even get his Vivian’s and many of Dr. King’s other treated under the previous administra- facts right. Only 2 of the 9 Justices are close advisers and associates. tion. But it does respond to the sugges- 80 or older. There can be no doubt that Mr. Pryor tions that have been made here on the Mr. PRYOR’s opposition to basic pro- sees the Federal courts as a place to floor that somehow institutionally our tections for the rights of the disabled is advance his political agenda. When friends on the other side have always particularly troubling. In one case, President Bush was elected in 2000, Mr. been for fairness in the consideration Justice Scalia, for a unanimous Pryor gave a speech praising his elec- of these nominees and considerate of Court—a unanimous Court—rejected tion as the ‘‘last best hope for fed- the President in meeting his responsi- his position that the Americans With eralism.’’ He ended his speech with bility of advising the Senate. Disabilities Act does not apply to State these words: I think many of us believe very deep- prisons. . . . a prayer for the next administration: ly that if there are Members in this In another case, the Supreme Court Please God, no more Souters. body who, as a matter of conscience, rejected his view that provisions of the In another speech he said he was feel strongly that those nominees or act ensuring that those with disabil- thankful for the Bush v. Gore decision: any nominee fails to be committed to ities have access to public services are I wanted Governor Bush to have a full ap- the fundamental core values of the unconstitutional. preciation of the judiciary and judicial selec- In that case, a plaintiff who uses a tion so we can have no more appointments Constitution, that they ought to be like Justice Souter. able to speak to it, they ought to be wheelchair challenged the denial of access to a courthouse where he had to His call to politicize the Supreme able to speak to it and not be muzzled, Court shows that he views the courts crawl up the stairs to reach the court- not be gagged, not be silenced. That is as places to make laws, not interpret room. Mr. Pryor claimed that the Con- the issue that is before the Senate now them. and will be addressed in these next few gress could not require States to make The real question is why, when there days, and why it is enormously impor- public facilities accessible to the dis- are so many qualified Republican at- tant for the country to pay attention abled. He said that because the dis- torneys in Alabama, the President to this debate and this discussion. abled have ‘‘no absolute right’’ to at- would choose such a divisive nominee. There is no breakdown in the judicial tend legal proceedings affecting their Why pick one whose record raises so confirmation process. Democrats in rights, denying them access to court- much doubt as to whether he will be this closely divided Senate have co- houses does not violate the principle of fair? Why pick one who can muster operated with the President on almost equal protection. only a rating of ‘‘partially unqualified’’ all his nominations. The Senate has The Supreme Court also rejected his from the American Bar Association? confirmed 208 of President Bush’s 218 radical view that executing retarded The administration has given us no nominees in the past 4 years, most of persons is not cruel and unusual pun- good answers to these questions be- whom are not people we would have ishment. And later the Eleventh Cir- cause there are none. Mr. Pryor is chosen ourselves. Ninety-five percent cuit court, a court dominated by con- clearly on the far fringe of legal think- have been confirmed. servative Republican appointees, ing and not someone who should be Only a handful did not receive the unanimously rejected Mr. Pryor’s at- given a lifetime appointment to the broad, bipartisan support needed for tempt to evade the Supreme Court de- court of appeals. confirmation. Their records show they cision. He had tried to prevent a pris- Of course, we oppose the attempt to would roll back basic rights and pro- oner with an IQ of 65, who even the break the Senate rules to put Mr. tections. Janice Rogers Brown, William prosecution agreed was mentally re- Pryor on the court. That is what our Pryor, Priscilla Owen, and William tarded, from claiming that he should Founding Fathers would have wanted Myers would erase much of the coun- not be executed. us to do, not to act as a rubber stamp try’s hard-fought progress toward On women’s rights, Mr. Pryor has for the administration. equality and opportunity. Their stated criticized constitutional protections Priscilla Owen, whose nomination values—subordinating the needs of against gender discrimination. He dis- the Senate is debating today, is an- families to the will of big business, de- missed as ‘‘political correctness’’ the other candidate on the far fringes of stroying environmental protections, Supreme Court’s decision that a State- legal thinking. Her record raises equal- and turning back the clock on civil run military academy could not deny ly grave concerns that she would try to rights—are not mainstream values. admission to women because of stereo- remake the law. Four times the Senate Democrats have, under the Senate’s types about how women learn. has declined to confirm her because of rules, declined to proceed on those Mr. Pryor has an especially troubling concerns that she won’t deal fairly nominees to protect America from record on voting rights. In a 1997 state- with a wide range of cases that can their radical views. ment to Congress, he opposed section 5 come before the Fifth Circuit, espe- The President has renominated Wil- of the Voting Rights Act, an indispen- cially on issues of major concern to liam Pryor for the 11th Circuit, which sable tool for assuring that all Ameri- workers, consumers, victims of dis- includes the States of Florida, Ala- cans have the right to vote regardless crimination, and women exercising bama, and Georgia. Mr. PRYOR’s record of race or ethnic background. He called their constitutional right. Yet the makes clear that his views are far out- this important law an ‘‘affront to fed- President chose to provoke a fight in side the legal mainstream. Mr. PRYOR eralism’’ and ‘‘an expensive burden the Senate by renominating her, is no conservative. Instead, he has that has far outlived its usefulness.’’ among other plainly unacceptable pushed a radical agenda contrary to In March, we commemorated the 40th nominees whom the Senate declined to much of the Supreme Court’s jurispru- anniversary of Bloody Sunday when confirm in the last Congress. dence over the last 40 years. Martin Luther King, Jr., Congressman Nothing has changed since we last re- Mr. PRYOR has fought aggressively to John Lewis, and others were brutally viewed her record to make Justice undermine Congress’s power to protect attacked on a peaceful march in Mr. Owen worthy of confirmation now. Her individual rights. He has tried to cut Pryor’s home State of Alabama in sup- supporters argue that she is being op- back on the Family and Medical Leave port of voting rights for all, regardless posed solely because of her hostility to Act, the Americans with Disabilities of race. Yet now the administration women’s constitutionally protected Act, and the Clean Water Act. He has wants our consent to a nominee who right to choose. In fact, her nomina- criticized the Voting Rights Act. He opposes the Voting Rights Act. There tion raises a wide range of major con- has been contemptuously dismissive of is too much at stake to risk confirming cerns because she so obviously fails to claims of racial bias in the application a judge who would turn back progress approach cases fairly and with an open of the death penalty. He has relent- on protecting the right to vote. mind.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.064 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5409 As the San Antonio Express News has that the result was required by the reason for the actions taken against stated, her ‘‘record demonstrates a re- plain meaning of the Texas law. Owen them—even though the law clearly sults-oriented streak that belies sup- dissented, claiming that Texas should states that workers need only prove porters’ claims that she strictly fol- be immune from these suits. Justice that discrimination was one of the mo- lows the law.’’ Gonzales wrote that she misread the tivating factors. Justice Owen’s view It is not just Senate Democrats who law, which he said was clear and un- would have changed the plain meaning question her judicial activism and will- equivocal. of the law to make it nearly impossible ingness to ignore the law. Even news- In another case, Justice Gonzales for victims of discrimination to prevail papers that endorsed her for the Texas joined the court’s majority that criti- in civil rights cases. Supreme Court now oppose her con- cized Justice Owen for disregarding the She joined an opinion that would firmation, after seeing how poorly she procedural limitations in the statute have reversed a jury award to a woman served as judge. and taking a position even more ex- whose insurance company had denied The Houston Chronicle wrote: treme than had been argued by the de- her claim for coverage of heart surgery Owen’s judicial record shows less interest fendant. bills. Many other such cases could be in impartially interpreting the law than in In another case in 2000, landowners cited. pushing an agenda. claimed a Texas law exempted them Justice Owen also dissented in a case And that she, it continues, ‘‘too often from local water quality regulations. involving three women who sought re- contorts rulings to conform to her par- The court’s majority ruled the law was lief for intentional infliction of emo- ticular conservative outlook.’’ an unconstitutional delegation of legis- tional distress on the job because of It noted that: lative authority to private individuals. constant humiliating and abusive be- It’s worth saying something that Owen is a Justice Owen dissented and sided with havior by their supervisor. regular dissenter on a Texas Supreme Court the large landowners, including con- The supervisor harassed and intimi- made up mostly of other conservative Repub- tributors to her campaign. Justice dated employees by the daily use of licans. Gonzales joined a majority opinion profanity; by screaming and cursing at The Austin American Statesman, in criticizing her, stating that most of her employees; by charging at employees their editorial, said Priscilla Owen ‘‘is opinion was nothing more than inflam- and physically threatening them; and so conservative that she places herself matory rhetoric, which merits no re- by humiliating employees, including out of the broad mainstream of juris- sponse. making an employee stand in front of prudence’’ and that she ‘‘seems all too Justice Gonzales also wrote an opin- him in his office for as long as thirty willing to bend the law to fit her views ion holding that an innocent spouse minutes while he stared at her. The ... ’’ could recover insurance proceeds when employees he harassed suffered from The San Antonio Express News said: her coinsured spouse intentionally set severe emotional distress, tension, [W]hen a nominee has demonstrated a pro- fire to their insured home. Justice nervousness, anxiety, depression, loss pensity to spin the law to fit philosophical Owen joined a dissent that would have of appetite, inability to sleep, crying beliefs, it is the Senate’s right—and duty—to denied the coverage of the spouse on spells and uncontrollable emotional reject the nominee. the theory that the arsonist might outbursts as a result of his so-called These are the San Antonio Express somehow benefit from the court’s deci- supervision. They sought medical and News, the Austin American Statesman, sion. Justice Gonzales’s majority opin- psychological help because of their dis- and the Houston Chronicle. ion stated that her argument was based tress. Her colleagues on the conservative on a ‘‘theoretical possibility’’ that Eight Justices on the Texas court Texas Supreme Court have repeatedly would never happen in the real world, agreed that the actions, viewed as a described her in the same way. They and that violated the plain language of whole, were extreme and outrageous state that Justice Owen puts her own the insurance policy. enough to justify the jury’s verdict of views above the law, even when the law In still another case, Justice Owen intentional infliction of emotional dis- is crystal clear. joined a partial dissent that would tress. Justice Owen wrote a separate Her former colleague on the Texas have limited the basic right to jury opinion, stating that while she agreed Supreme Court, our Attorney General trials. The dissent was criticized by the that there was evidence to support the Alberto Gonzales, has said she was other judges as a ‘‘judicial sleight of women’s case, she thought most of it guilty of ‘‘an unconscionable act of ju- hand’’ to bypass the Texas constitu- was ‘‘legally insufficient to support the dicial activism.’’ This is what the cur- tion. verdict.’’ rent Attorney General of the United Priscilla Owen is one of the most fre- Justice Owen’s record is particularly States said when he was on the su- quent dissenters on the conservative troubling in light of the important preme court: Justice Owen’s opinion Texas Supreme Court in cases involv- issues that come before the Fifth Cir- was ‘‘an unconscionable act of judicial ing basic protections for workers, con- cuit, which is also one of the most ra- activism.’’ sumers, and victims of discrimination. cially and ethnically diverse Circuits, Justice Gonzales’s statement that That court is dominated by Republican with a large number of low-income her position in this case was ‘‘an un- appointees, and is known for frequently workers, Latinos, and African-Ameri- conscionable act of judicial activism’’ ruling against plaintiffs. Yet, when the cans. It is particularly vital that was not a random remark. Not once, Court rules in favor of plaintiffs, Jus- judges on the court are fair to workers, not twice, but numerous times Justice tice Owen usually dissents, taking the victims of discrimination, and those Gonzales and his other colleagues on side of the powerful over individual who suffer personal injuries. the Texas Supreme Court have noted rights. Some have said that those who raise that Priscilla Owen ignores the law to She has limited the rights of minors questions about Justice Owen’s record reach her desired result. in medical malpractice cases. She has are somehow smearing her personally. In one case, Justice Gonzales held tried to cut back on people’s right to That’s untrue and unfair. Each of us the Texas law clearly required manu- relief when insurance company claims has a responsibility to review her facturers to be responsible to retailers are unreasonably denied, even in cases record and to take seriously the prob- who sell their products if those prod- of bad faith. Her frequent dissents show lems we find. ucts are defective. He wrote that Jus- a pattern of limiting remedies for That means taking seriously the tice Owen’s dissenting opinion would workers, consumers, and victims of dis- rights of persons like Ralf Toennies, judicially amend the statute to let crimination or personal injury. who was fired at age 55, and found that manufacturers off the hook. She dissented in a case interpreting a Justice Owen wanted to impose obsta- In 2000, Justice Gonzales and a ma- key Texas civil rights law that pro- cles to his age discrimination claim jority of the Texas Supreme Court tects against discrimination based on that were nowhere in the statute. We upheld a jury award holding the Texas age, race, gender, religion, ethnic back- must take seriously the rights of the Department of Transportation and the ground, and disability. Justice Owen’s women employees criticized by Justice local transit authority responsible for opinion would have required employees Owen for their testimony on workplace a deadly auto accident. He explained to prove discrimination was the only harassment in the emotional distress

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.066 S18PT1 S5410 CONGRESSIONAL RECORD — SENATE May 18, 2005 case. We can’t ignore the rights of the day’s specific written notice if a Sen- try, oil industry, pharmaceutical in- millions of families who live in the ator intends to try to suspend or dustry, Wall Street, or any other spe- Fifth Circuit States of Texas, Lou- change any rule. cial interest. In other words, the Sen- isiana, and Mississippi. Then they will have to break para- ate majority will always be able to get Finally, Justice Owen’s supporters graph 2 of rule V, which provides that its way, and the Senate our Founders have also suggested that she should be the Senate rules remain in force from created will no longer exist. It will be confirmed to the Court of Appeals be- Congress to Congress, unless they are an echo chamber to the House, where cause Texas voters elected her to their changed in accordance with the exist- the tyranny of the majority is so ramp- Supreme Court. ing rules. ant today. Obviously, there is a huge difference Then they will have to break para- One of the greatest privileges of my between State judges who must submit graph 2 of rule XXII, which requires a life is serving the people of Massachu- to local elections to keep their posi- motion, signed by 16 Senators, a 2-day setts in the Senate. I am reminded tions and Federal judges who are life- wait, and a three-fifths vote to close every day of my obligation to speak up time appointees, and are not meant to debate on the nomination itself. for them and fight for their concerns, respond to popular opinion. If we con- They will also have to break rule their hopes, and their values in this firm Justice Owen to the Fifth Circuit, XXII’s requirement of a petition, a Chamber. Many brave leaders from she will serve for life. So our responsi- wait, and a two-thirds vote to stop de- Massachusetts have held the seat I bility as Senators is very different. The bate on a rules change. hold today in the Senate. This seat was record of each nominee for a Federal Then, since they pretend to be pro- held by John Quincy Adams, who went judgeship is carefully considered by ceeding on a constitutional basis, they on to become the sixth President and Senators from all 50 States. will have to break the invariable rule was a great champion of free speech. Likewise, the fact that she received a of practice that constitutional issues He debated three Supreme Court nomi- high rating from the American Bar As- must not be decided by the Presiding nees and voted to confirm them all. He sociation or did well on the bar exam Officer, but must be referred by the refused to be silenced. does not erase her disturbing record. Presiding Officer to the entire Senate Charles Sumner was the Senate’s Priscilla Owen’s record raises major for full debate and decision. leading opponent of slavery. He was questions about her commitment to Throughout the process, they will beaten to within an inch of his life for the basic rights guaranteed by the Con- have to ignore or intentionally give in- speaking up for his convictions. It took stitution to all our citizens. correct answers to proper parliamen- him 3 years to recover from the inju- Mr. President, I want to take a few tary inquiries which, if answered in ries and return to the Senate to speak moments now to go over with the Sen- good faith and in accordance with the out against slavery once again. He de- ate some of the rules that are going to expert advice of the Parliamentarian, bated 11 Supreme Court nominees and have to be broken by the majority in would make clear that they are break- voted for 10 of them. He refused to be order to try to change the rules of the ing the rules. silenced. Senate. Eventually, when their repeated rule- Daniel Webster was one of our Na- I want to review very quickly what breaking is called into question, they tion’s greatest orators and the archi- we are faced with here. I will give two will blatantly, and in dire violation of tect of the Great Compromise of 1850. examples of individuals who I think the norms and mutuality of the Sen- He spoke up for a united America with failed to meet the standard for ap- ate, try to ignore the minority leader the words ‘‘liberty and union, now and proval in the Senate, that they have a and other Senators who are seeking forever, one and inseparable.’’ You can commitment to the core values of the recognition to make lawful motions or hear his words ringing through these Constitution. We have just seen exam- pose legitimate inquiries or make prop- halls even now. He debated 12 Supreme ples and statements and comments er objections. Court nominations; he voted to approve 8 and opposed 4. He refused to be from both individuals and from news- By this time, all pretense of comity, silenced. papers and other sources that I think all sense of mutual respect and fair- Henry Cabot Lodge, the Republican, ness, all of the normal courtesies that established convincingly these individ- opposed President Wilson’s efforts to allow the Senate to proceed expedi- uals do not have that kind of core com- join the League of Nations. He was the tiously on any business at all will have mitment required and should not be leading Republican voice on foreign been destroyed by the preemptive Re- given lifetime appointments. policy in his time. He debated 20 Su- Neither the Constitution, nor Senate publican nuclear strike on the floor. preme Court nominees, voted for 18, To accomplish their goal by using a rules, nor Senate precedents, nor and he opposed 2. He refused to be si- bare majority vote to escape the rule American history provide any justifica- lenced. tion for the majority leader’s attempt requiring 60 votes to cut off debate, John Kennedy not only was a cham- to selectively nullify the use of the fili- those participating in this charade pion for working men and women in buster to push through these radical will, even before the vote, already have Massachusetts, but he also battled in- nominees. Equally important, neither terminated the normal functioning of tolerance, injustice, and poverty dur- the Constitution, nor the rules, nor the Senate. They will have broken the ing his time in the Senate. He debated precedent, nor history provide any per- Senate compact of comity and will and supported four Supreme Court missible means for a bare majority of have launched a preemptive nuclear nominees. He, too, refused to be si- the Senate to take that radical step war. The battle begins when the per- lenced. without breaking or ignoring clear pro- petrators openly, intentionally, and re- These great Senators are remem- visions of applicable Senate rules and peatedly break clear rules and prece- bered and respected in our history be- unquestioned precedents. dents of the Senate, refuse to follow cause they spoke up for their convic- Here are some of the rules and prece- the advice of the Parliamentarian, and tions. They were not intimidated. They dents the executive will have to ask its commit the unpardonable sin of refus- did not back down from their beliefs. allies in the Senate to break or ignore ing to recognize the minority leader. They were not muzzled. They were not in order to turn the Senate into a Their hollow defenses to all these gagged. They would not be silenced. rubberstamp for the nominations: points demonstrate the weakness of And it will be a sad day for our democ- First, they will have to see that the their case. racy if the voices of our Nation’s elect- Vice President himself is presiding They claim that ‘‘we are only break- ed representatives can no longer be over the Senate so that no real Senator ing the rules with respect to judicial heard. needs to endure the embarrassment of nominations. We promise not to do so Mr. President, I yield the remaining publicly violating Senate rules and on other nominations or on legisla- time to my friend and colleague, the precedent and overriding the Senate tion.’’ No one seriously believes that. Senator from Montana. Parliamentarian the way our Presiding Having used the nuclear option to sal- The PRESIDING OFFICER. The Sen- Officer will have to do. vage a handful of activist judges, they ator from Montana is recognized. Next, they will have to break para- will not hesitate to use it to salvage Mr. BAUCUS. Mr. President, I thank graph 1 of rule V, which requires 1 some bill vital to the credit card indus- my good friend from Massachusetts.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.010 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5411 The Book of Proverbs teaches: Congress. Democrats lost 53 seats in derstand we have an order to go to re- Do not boast of tomorrow, for you do not the House and 7 seats in the Senate. cess. know what the day will bring. In 1980, the Senate changed hands The PRESIDING OFFICER. The Sen- In the play ‘‘Heracles,’’ the great from Democratic to Republican con- ator is correct. playwright Euripides wrote: trol, but in August of 1980, voters in f States with a Senate election told the All is change; all yields its place and goes. RECESS And the Greek philosopher ABC News-Louis Harris poll that they The PRESIDING OFFICER. Without Heraclitus said: would vote for Democrats for the Sen- ate by a margin of 47 percent for Demo- objection, the Senate will stand in re- Change alone is unchanging. crats and 45 percent for Republicans. cess until 4:45 today. I urge my colleagues to bear the con- And on the first Tuesday in November Thereupon, the Senate, at 3:43 p.m., stancy of change in mind as they con- 1980, Democrats lost 12 seats in the recessed until 4:45 p.m. and reassem- sider the proposal to break the rules to Senate. bled when called to order by the Pre- change the rules of the Senate. Many In November 2002, the voters gave the siding Officer (Mr. COBURN). in the Senate’s current majority seem Republican Party victory in the Sen- f bent on doing that. They seem quite ate. But my colleagues in the majority EXECUTIVE SESSION certain that they shall retain the Sen- would do well to remember. ate majority for quite some time there- After a victorious campaign, Roman after. generals used to be rewarded with a tri- But as Bertrand Russell said: NOMINATION OF PRISCILLA umph—a triumphant parade through RICHMAN OWEN TO BE UNITED Most of the greatest evils that man has in- the streets of Rome. Citizens acclaimed STATES CIRCUIT JUDGE FOR flicted upon man have come from people feel- them like gods. But tradition tells us THE FIFTH CIRCUIT ing quite certain about something, which, in that behind the general on his chariot fact, was false. stood a slave who whispered: Remem- The PRESIDING OFFICER. Under My colleagues do not need to strain ber that you are mortal. the previous agreement, the majority their memories to recall changes in the In the ceremony of a Pope’s ele- controls the next 60 minutes. The Sen- control of the Senate. Most recently, vation, they used to intone: Sic transit ator from Georgia. the Senate changed from Democratic gloria mundi: ‘‘So the glory of this Mr. CHAMBLISS. Are we in morning to Republican control as a result of the world away.’’ At that very moment, business or are we prepared to proceed? 2002 election. Democrats did control they would burn a handful of flax. The The PRESIDING OFFICER. We are the Senate throughout the sixties and burning flax would symbolize how tran- on nominations. the seventies, but since then the Sen- sitory the power in this world is. Mr. CHAMBLISS. Let me start by ate has governed under six separate pe- In an address in Milwaukee in 1859, asking, what is the pending business riods of one party’s control. The Sen- Abraham Lincoln said: before the Senate? ate switched from Democratic to Re- The PRESIDING OFFICER. The It is said an Eastern monarch once charged nomination of Priscilla Owen to be publican control in 1980, back to Demo- his wisemen to invent him a sentence, to be cratic control in 1986, back to Repub- ever in view, and which should be true and U.S. Circuit Judge. lican control in 1994, back to Demo- appropriate in all times and situations. They Mr. CHAMBLISS. Mr. President, I cratic control in 2001, and back to Re- presented him with the words: ‘‘And this, would like to take some time to dis- publican control again in 2002. too, shall pass away.’’ How much it ex- cuss the nominations of two nominees, Similarly, some in the Senate can re- presses! How chastening in the hour of pride! actually, to the Federal Court of Ap- member the decade after World War II. How consoling in the depths of affliction! peals. First, Justice Priscilla Owen of The Senate switched from Democratic Mr. President, I urge my colleagues the Supreme Court of the State of to Republican control in 1946, back to to remember that this Senate major- Texas to the U.S. Circuit Court of Ap- Democratic control in 1948, back to Re- ity, too, shall pass away. This truth peals for the Fifth Circuit, and then publican control in 1952, and then back may console us in the minority, should Justice Janice Rogers Brown of the Su- to Democratic control again in 1954. the majority choose to break the rules preme Court of California to the U.S. Senators who served from 1945 to 1955, to change the rules. But better still, Circuit Court of Appeals for the Dis- a mere 10 years, served under five sepa- better still would it be if the truth of trict of Columbia, along with why we rate periods of one party’s majority constant change would chasten the need to move forward to a fair up-or- control. current majority into abiding by the down vote on the nominations. One cannot always see that change is rules that protect Senators when they I would like to start with Judge Pris- coming, but change comes nonetheless. are in the majority and when they are cilla Owen. For example, in November 1994, Wash- in the minority alike. Justice Owen’s qualifications to ington saw one of the most sweeping We should protect the rules to pro- serve on the Fifth Circuit Court are changes in power in Congress of recent tect minority rights, for no one can readily apparent to anyone who looks memory. Very few saw that coming. ‘‘know what the day will bring.’’ at her background and experience. The majority in the House and the Sen- We should protect the rules that pro- Speaking to her in person—as I did 2 ate changed from Democratic to Re- tect minority rights, for ‘‘all yield years ago, shortly after I came over to publican. [their] place and go.’’ the Senate—only reinforces her obvi- It is by no means easy to see that And we should protect the rules that ous capabilities as a judge. change coming. In March of 1994, just protect minority rights, for it is true of Justice Owen graduated cum laude several months before the election, majority control, as it is true of all from Baylor Law School and then pro- voters told the Gallup poll that they things, that ‘‘change alone is unchang- ceeded to earn the highest score on the were going to vote Democratic by a ing.’’ Texas Bar exam that year. ratio of 50 percent Democratic to 41 Mr. President, I yield the floor and She practiced law for 17 years and be- percent Republican. That same month, suggest the absence of a quorum. came a partner with Andrews & Kurth, March of 1994, voters told the ABC The PRESIDING OFFICER. The a highly respected law firm in Texas, News poll that they were going to vote clerk will call the roll. before being elected to the Supreme Democratic by a ratio of 50 percent The legislative clerk proceeded to Court of Texas in 1994. Democratic to 34 percent Republican. call the roll. Before I talk any more about Justice As late as September of 1994, voters Mr. BAUCUS. Mr. President, I ask Owen’s qualifications as a judge, I want told the ABC News poll that they were unanimous consent the order for the to speak briefly about Priscilla Owen going to vote Democratic by a ratio of quorum call be rescinded. and the kind of person she is. Priscilla 50 percent Democratic to 44 percent Re- The PRESIDING OFFICER. Without Owen has spent much of her life devot- publican. On the first Tuesday in No- objection, it is so ordered. ing time and energy in service of her vember 1994, however, more than 52 Mr. BAUCUS. Mr. President, I yield community. She serves on the board of percent of voters voted Republican for the remainder of time on our side. I un- Texas Hearing & Service Dogs, and is a

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.069 S18PT1 S5412 CONGRESSIONAL RECORD — SENATE May 18, 2005 member of St. Barnabas Episcopal Mis- The focus should be on these can- any further. Now is no time for ob- sion in Austin, TX, where she teaches didates and their legal knowledge and structing the nomination of an emi- Sunday school and serves as the head experience. It should not be reduced to nently qualified jurist, one the Amer- of the altar guild. partisan battles over politics or ide- ican Bar Association has unanimously Having been a Sunday school teacher ology. The essential principle for pick- rated as ‘‘well qualified,’’ for confirma- myself, and having grown up in the ing a Federal judge should be their tion to this Fifth Circuit seat. Let’s Episcopal Church—and my mother was commitment to the law. We need get beyond the politics and confirm the head of the altar guild for several judges who put the law before personal this nominee. I urge my colleagues to decades—I know how much work that philosophy, ideology, or politics. That give Priscilla Owen a fair up-or-down involved from a civic and religious is what separates the judiciary from vote on her nomination to the Fifth standpoint. the legislative branch. Circuit Court of Appeals. She has worked to ensure that all Senators should not inject politics I now will move on to discuss another citizens are provided access to justice into the process, and nominees should nominee being considered by the Sen- as the court’s representative on the keep their politics out of the process as ate, Justice Janice Rogers Brown, who Texas Supreme Court Mediation Task well. the President has nominated to sit on Force and to various statewide com- The comments of some of my Demo- the U.S. Circuit Court of Appeals for mittees regarding legal services to the crat colleagues underscore that this de- the District of Columbia. poor and pro bono legal services. bate is not about whether Priscilla Since 1996, Janice Rogers Brown has She was part of a committee that Owen is well qualified as a judge. Her been an associate justice for the Su- successfully encouraged the Texas leg- record reflects it, the ABA acknowl- preme Court of California, our coun- islature to provide millions of addi- edges it, and so do many of my col- try’s most populous State. Justice tional dollars per year for legal serv- leagues on the other side. For example, Brown was initially appointed to the ices for the poor. consider these comments: California high court by then-Governor Justice Owen is a member of the Gen- Senator DURBIN on September 5, 2002: Pete Wilson. She was reelected to the der Bias Reform Implementation Com- California Supreme Court in 1998 by mittee and the Judicial Efficiency There is no dispute that Justice Owen is a woman of intellectual capacity and academic the citizens of California, at which Committee Task Force on Staff Diver- accomplishment. time she received 76 percent of the vote sity. She was instrumental in organizing Senator FEINSTEIN on July 23, 2002: in favor of her reelection. Prior to her service on the California Family Law 2000 to educate parents Justice Owen comes to us with a distin- Supreme Court, Justice Brown served about the effect of divorce and to less- guished record and with the recommendations of many respected individuals within for 2 years as a State appellate judge in en the negative impacts on children. her State of Texas . . . [She is] personable, Justice Priscilla Owen was elected by California. Before that, she served as intelligent, and well spoken. It is clear to me legal affairs secretary for Governor the people of Texas, the second most that Justice Owen knows the law. populous State in this great country, Wilson. For all but 2 of the past 24 Senator KENNEDY on September 5, to its highest court, the Supreme Court years, Justice Brown has dedicated her 2002: of Texas, where she serves today. In career to work in public service posi- her last reelection in the year 2000, she Justice Owen is an intelligent jurist. tions. won 84 percent of the vote and had the Senator KOHL on May 1, 2003: Despite this background of public endorsement of every major newspaper We all recognize her legal talents. service and accomplishment, Justice Brown, unfortunately, has become the in Texas. And Senator SCHUMER on July 23, Yet, there are still people who want 2002: target of liberal interest groups who claim she is out of the mainstream of the United States Senate to reject her I don’t think there is any question about nomination to the Federal bench be- your legal excellence. You have had a distin- legal thinking. Those who oppose con- cause she is supposedly out of the guished academic and professional career firmation of these two fine State su- mainstream in her legal reasoning. Out . . . I think anyone who has listened even to preme court justices, Janice Rogers of the mainstream? The people of 10 minutes of this hearing today has no Brown and Priscilla Owen, apparently Texas obviously don’t think she’s out doubt about the excellence in terms of the have no regard for the people of our of the mainstream. In fact, I submit to quality of your legal knowledge and your in- two most populous States, California you that in Texas and in the Fifth Cir- telligence, your articulateness, et cetera. and Texas, the people who know these cuit overall, she represents the main- I take my colleagues at their words. judges much better than anyone in this stream of legal thought. These comments are true and genuine. room or this body. I would imagine my friends on the With that in mind and knowing that I submit again, in California, our Na- other side of the aisle would agree with Justice Owen has the endorsement of tion’s most populous and one of our me that the American Bar Association the ABA as ‘‘well qualified,’’ since she more diverse States, reelection of Jus- is an organization considered by many was reelected with 84 percent of the tice Brown was 76 percent of the vote. to be well within the mainstream of vote in her home State, how can any- That proves she is regarded as in the legal thinking in this country. The one try to say she is out of the main- mainstream of legal thought. ABA rated Justice Owen as ‘‘Well stream? Why is it wrong to simply give Justice Brown rose from her early Qualified’’ for the Fifth Circuit—this is her a fair up-or-down vote to see years as a child of sharecropper parents its highest rating, often called the whether a majority of Senators be- in the State of Alabama in the 1950s, ‘‘gold standard’’ and indicating the lieves she is qualified for this position? one of the more difficult times in the best possible qualifications to serve on Let me remind Members again that history of our country for minorities, the Federal bench. By their opposition the Fifth Circuit seat to which she has to sit on the highest court in the State to Justice Owens confirmation, my col- been nominated has been designated as of California. With a 76 percent reelec- leagues on the other side seem to be a judicial emergency by the Judicial tion tally, it is obvious that a lot of telling the ABA: ‘‘Don’t bother with Conference of the United States. The people like Janice Rogers Brown. But your rating; it just doesn’t matter to judges down in the Fifth Circuit need nevertheless, Justice Brown has over- us.’’ some relief. Dockets are getting back- come adversity through her life and Even though they used to refer to a logged. Cases are being delayed and not now she is facing it in her nomination well qualified rating as the ‘‘golden moving as they should. People who live to the DC Circuit Court of Appeals. standard’’ for judicial nominees, now it in the Fifth Circuit need some relief. It is a core fundamental principle of seems this is just not about qualifica- Last week, on May 9, we marked the the American judicial system that jus- tions. fourth anniversary of Justice Owen’s tice is blind. The people can get a fair A judicial nominee’s qualifications nomination to the Fifth Circuit bench. hearing regardless of who they are, should matter most, and that nomi- Obstructing a nominee of the caliber of where they come from, or what they nee’s qualifications should be the sole Priscilla Owen to a seat characterized look like. Surely, nominees to the Fed- criterion for approving or blocking a as a judicial emergency is wrong. We eral bench deserve the same rights to a nomination. cannot afford to drag this process out fair hearing as any of us.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.011 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5413 Americans have a right to know judges in the eye and say: We are going Court. In fact, she was reelected with where their Senators stand. Americans to give you an up-or-down vote. I think 84 percent of the vote. Yet some try to have a right to hold their Senators ac- you are qualified and I will vote yes, or characterize her as somehow outside of countable. If a Senator opposes any I think you are not qualified and I will the mainstream. nominees, he or she should vote vote no. That is our obligation. That is How can they justify that? For 4 long against them, but they should vote. our duty. That is the direction in years now, her nomination has lan- They should not hide behind Senate which we must move. guished as a result of a deliberate and rules and parliamentary loopholes to I yield the floor. systematic strategy to deny up-or- block a vote. Our Nation’s legal system The PRESIDING OFFICER. The Sen- down votes to the President’s major- is more important than, and should be ator from Utah. ity-supported nominees. They claim above, petty partisan politics. There is Mr. HATCH. Mr. President, once nominees such as Justice Owen are ex- never any reason under any cir- again, I rise to speak on behalf of the tremists and conservative activists. cumstances that either political party nomination of Justice Priscilla Owen Her record does not support these as- should stall the courts from doing their to the Fifth Circuit Court of Appeals. I sertions, and I commend the President necessary work just for political gain. am very honored to do so. As we all for renominating this eminently quali- As Americans, we deserve a fair, func- know, the debate over this nomination fied jurist. In contrast to the false tioning legal system that is responsive will take place within the context of a charge that she is an extremist—and I to the law and not to some special in- historic constitutional struggle over might add, how can she be an extremist terest group. the President’s right to obtain an up- and have the highest approval of the We already have too much politics in or-down vote for his judicial nominees. American Bar Association, certainly America. We already have too much In all seven of these cases—in all not a conservative group? So in con- politics in our legal system. While it is seven—each of them has bipartisan up- trast to the false charge that she is an an unfortunate truth that partisan pol- or-down majority support. All we ask extremist, the fact is Priscilla Owen is itics infects Washington, it has no is they get a vote. one of those relatively few nominees place in our courts, it has no place in Now, that will be resolved soon who received a unanimously well-quali- the verdicts delivered by our Federal enough, but we should not forget that fied rating from the American Bar As- judges, and it has no place in the con- this is a fight worth having because sociation, the highest rating possible. this campaign of ongoing obstruction firmation process. We need the most I am under no illusions here. The is depriving us of good and needed qualified judges, not those who know Senate is a unique, deliberative insti- judges such as Priscilla Owen. We how to work their way through the po- tution where the opportunity for seri- should not forget that in the end this litical system. It is and must always be ous debate must be vigilantly pro- debate is about the individual nomi- a core fundamental principle of the tected. Unfortunately, it seems likely nees and their qualifications for serv- American judicial system that people that not many are going to have their ice on the Federal bench. This is a de- can get a fair hearing. Surely nominees minds changed by this debate. I hope bate about Justice Priscilla Owen, and to the Federal bench deserve the same the newly elected Members of the Sen- I am proud to support her. rights to a fair hearing as any of us. ate will pay close attention to the facts Because Justice Owen’s nomination The confirmation of judges should not surrounding the nomination of Pris- has never come up for an up-or-down be about ideology or partisanship. We cilla Owen. need to adhere to a consistent process vote, I have had 4 years to consider The Senate already knows Justice of investigation and decisionmaking this nomination and to get to know her Owen quite well. We have spent lit- that upholds the independent nature of personally, and to further familiarize erally hundreds of hours discussing her our judicial system. Nominees should myself with her record on and off the nomination. Many Senators have prob- be judged by their qualifications, noth- bench. The passage of time has only ably made up their minds. But for ing less and nothing more. Once the in- strengthened my conviction that she is many people, this inside-the-beltway vestigation is done, nominees deserve wholly deserving of a seat on the Fed- dispute is just now starting to draw at- an up-or-down vote. eral bench. She is a woman of real ac- tention. Only now, as this debate is Just as the Senate has been granted complishments, and the State of Texas coming to a head, is it the leading by the Constitution the right of advice is justifiably proud of her. I am proud story on the network nightly news. and consent, the Constitution has also of her. I am confident that if she is Therefore, it is as much for the Amer- bestowed on them the responsibility to ever given the vote she deserves, she ican people tuning into this debate as decide yes or no. If the nominee is will do our country proud as a Federal it is for my colleagues here that I want found wanting, a ‘‘no’’ vote should be circuit court of appeals judge. to address a handful of the unfair cast. But the permanent indecision and In her years as a justice on the Texas charges being made against her. And passing the buck serves no one. The es- Supreme Court, Priscilla Owen has we have heard them here on the floor sential principle in picking a Federal demonstrated the cautious, impartial today. judge should be their understanding mind and the willingness to listen that and commitment to the law. We need we seek from our judges in this coun- Justice Owen graduated first in her judges who put the law before personal try. Both her private practice—where class from Baylor Law School. She re- philosophy, personal ideology, and, cer- she became one of the first to break ceived the highest score on the State tainly, personal politics. That is what through the ‘‘glass ceiling’’ for women, bar exam. She went on to become a separates and protects an independent became a major partner in one of the partner in the prestigious firm of An- judiciary system from the mere politi- major law firms in the country, after drews & Kurth. cized legislative branch. being first in her class in law school, She was admitted to practice before When it comes to confirming judges, first on the bar examination, with the various State and Federal courts. She the primary criteria should be judicial highest grade there—and her actions is a member of the American Law In- and legal competence. The men and on the bench provide examples of the stitute, a prestigious organization; the women who make up the Federal judi- honor and dignity that an individual American Judicature Society, the ciary should be the best people avail- can bring to the practice of law. American Bar Association, and a fellow able for the job, experienced, knowl- Finally, she has comported herself of the American and Houston Bar edgeable, and well versed in the law. with confidence and professionalism in Foundations. In short, she possesses all Their job is too important to be deter- the face of exaggerations and unfair the attributes and membership in tra- mined by any single issue or political complaints lodged against her by inter- ditional legal organizations that are litmus test. est groups—the outside, leftwing inter- recognized by all of us, and these orga- I hope at the end of this debate, est groups—committed to her defeat. nizations place her firmly in the main- whether it ends tonight, whether it The people of Texas have recognized stream of all American lawyers and of ends tomorrow, whether it ends next these attributes in Judge Owen and re- American jurisprudence. week, that we can come together in a warded her twice by electing her and Committed to the principle of equal bipartisan way to look these two reelecting her to the Texas Supreme justice for all, she participated on the

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.074 S18PT1 S5414 CONGRESSIONAL RECORD — SENATE May 18, 2005 committee that successfully encour- those who are behind her. Look at all This is a false charge, and it is con- aged the Texas legislature to enact leg- the Democrats who have supported her. trary to the laws of many States and islation resulting in millions of dollars The abortion rights lobbyists focus other laws as well. Yet some interest per year in additional funds for pro- their attention on a series of Justice groups keep feeding this same mis- viders of legal services to the poor. Owen’s opinions in cases involving the leading information to journalists Does that sound like an extremist? Texas parental notification statute. It around the country. Just last night, This is the resume of somebody fully is worth noting that contrary to the the evening news on one of the major within the mainstream of our legal wishes of a vast majority of Americans, networks reported as fact the patently community. It is not the resume of a and the Supreme Court, groups such as false charge that Attorney General radical or an extremist, as has been the National Abortion Rights Action Gonzales called Justice Owen a judicial portrayed by some in this body on the League oppose even these modest pop- activist when he was her colleague on other side. It is the resume of a suc- ular restrictions on abortion rights, the Texas Supreme Court. This charge cessful attorney who went on to serve that are supported by 80 percent of the was made again this morning by the the public as a justice on the Texas Su- American people. The reality is it is senior Senator from Massachusetts. preme Court. Justice Owen, not these groups, who is Think about that. They know this She carried these mainstream profes- in the mainstream. The groups are the claim is fiction, but they nonetheless sional habits, honed in private prac- ones who are outside of the main- continue to launch it as though people tice, with her into her career as a judge stream. should believe it, even though it is fic- on the Texas Supreme Court. It is By the way, these are far-left Demo- tion. worth reconsidering what she had to cratic Party groups that are far out- Attorney General Gonzales confirmed say before the Senate Judiciary Com- side the mainstream in their interpre- this under oath—he was not criticizing tation. Anybody who disagrees with mittee during her first confirmation Justice Owen—in his January 6, 2005, them on anything is ‘‘outside of the hearing way back on July 1, 2002. In her confirmation hearing, and it is clear to mainstream’’ or ‘‘extremist.’’ Unfortu- opening statement, she referred to the anyone who bothers to read the opin- nately, some of our colleagues parrot four principles that guide her decision- ions that he never referred to Owen or what they say and what they tell them making as a judge. I am quoting her any other judge on the Texas Supreme to say. Court as a judicial activist. He was ba- here. In Texas, the law requires that a Now, these are her four rules she sically referring to himself. He felt if minor notify her parents of her deci- lives by. he didn’t rule the way he did, he would sion to have an abortion. That is what be a judicial activist. He didn’t make No. 1: Always remember that the people the law of Texas says. This is common that come into my court are real people with any criticism of her. But to read the in many States. Such statutes receive real problems. newspapers and to hear the television broad bipartisan support. I have men- No. 2: When it is a statute that is before broadcasters and to listen to our col- tioned 80 percent of the American peo- me, I must enforce it as you in the Congress leagues on the other side, they com- or in the State legislature, as the case may ple support these types of statutes. pletely distort what Attorney General be, have written it, unless it is unconstitu- Yet, in their wisdom, the Texas legisla- tional. ture provided an opportunity for a judi- Gonzales says. As a matter of fact, At- No. 3: I must strictly follow United States cial bypass of this notification of par- torney General Gonzales was one of the Supreme Court precedent. ents requirement in certain cir- strongest supporters of Priscilla Owen No. 4: Judges must be independent, both cumstances. because she is a terrific justice, as he from public opinion and from the parties and knows because he served side by side lawyers who appear before them. Judge Owen has been vilified in her dissent in the case of In re Doe I where with her on the Texas Supreme Court. That is a statement of Justice Pris- she had to interpret the State’s re- In the end, I am happy to have this cilla Owen before the Senate Judiciary quirement that a minor seeking a judi- debate. The American people know ju- Committee on July 21, 2002. This is cial bypass of the notification of par- dicial activism when they see it. Just hardly radical stuff. In fact, I would ents requirement demonstrate suffi- last week a Federal judge in Nebraska wager a vast majority of the American cient maturity to get the bypass. A fair invalidated a State constitutional people agree with those principles. reading of that opinion shows you Jus- amendment preserving traditional Yet to listen to those committed to tice Owen made a reasonable interpre- marriage in that State. If that opinion stonewalling this nomination—she has tation of the Texas law. is upheld, that will bind every State in now been waiting 4 years for this The other day it was reported that the Union under the full faith and cred- vote—you would walk away with a Nancy Keenan, the president of the it clause. Talk about activism. very different impression, if you lis- abortion advocacy group the National But I am sure that my colleagues on tened to them. I have been debating ju- Abortion Rights Advocacy League, said the other side will find that that judge dicial nominations for a long time—all she is committed to keeping what she was in the judicial mainstream or the 29 years of my service in the Senate— called ‘‘out of touch theological activ- mainstream of American jurispru- but these most recent attacks are ists’’ off the bench. I can only hope this dence. If they want to argue that Jus- novel ones. The insistence on denying talking point was not aimed at Justice tice Owen’s interpretation of a popular Justice Owen and other nominees up- Owen’s decision, which is certainly parental notification statute is an ac- or-down votes is part of a larger story well within the mainstream and sup- tivist one, I will be here to debate that dating back over 20 years now. ported by 80 percent of the American all day long. I might add that parents, In those earlier debates, some com- people. If so, her point misses the point in many of the cases, who are con- mitted to an activist judiciary used to entirely. Sadly, it seems that the delib- cerned about their daughters, ought to wear the label ‘‘judicial activist’’ erate misreading of Justice Owen’s have at least the privilege of being in a proudly on their sleeves. Over time, opinion may be for the sole purpose of position to help their daughters however, they have come to understand raising ill-founded doubts against Jus- through those trying times. That is that the American people like their tice Owen and other qualified nomi- what the courts and the statutes have judges interpreting rather than making nees. said. That is what any reasonable per- the laws. Judges should behave as Priscilla Owen only interpreted the son would say. Yet they brand Priscilla judges, not junior auxiliaries to the law to require that a minor seeking an Owen as an extremist. legislative branch. So now they charge abortion fully understand the impor- Why didn’t the American Bar Asso- conservative nominees with being ac- tance of the choice she is making and ciation do that? Why did the American tivists as well. be mature enough to make that choice. Bar Association give her the highest This is the principle charge against I thought these groups were in favor of possible rating that you can get? Dur- Justice Owen. The American people are supporting the right to make an in- ing the Clinton years that was the gold going to have to make up their own formed choice. When it comes to Jus- standard, the absolute gold standard. minds on this, but to me it is very tice Owen, I guess it is easier to un- Why isn’t it the gold standard today? clear that argument does not hold any fairly tar her as an anti-abortion activ- Why is this really terrific person being water. Look at her record. Look at ist. called a judicial activist, outside of the

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.076 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5415 mainstream, and an extremist? It is they voted for them and why have they that time about Justice Brown. She awful. filibustered? currently serves as an associate justice Those opposed to Justice Owen ig- I yield the floor. on the California Supreme Court, a po- nore the host of decisions in which she The PRESIDING OFFICER. The Sen- sition she has held since 1996. She is protected workers, consumers, the enator from Oklahoma is recognized. the first African-American woman to vironment, crime victims, and the Mr. INHOFE. Mr. President, first of serve on California’s highest court and poor—as though she didn’t care about all, let me acknowledge that the senior was retained with 76 percent of the people. There is a host of decisions Senator from Utah is so much more statewide vote in her last election. where she has shown great care for peo- knowledgeable on all these issues than It is kind of interesting that they use ple. They select individual things and most of the rest of us—certainly much the term ‘‘out of the mainstream’’ then distort them. It makes you won- more than I am. He has been on the quite often. Yet here is someone who der what their objection to this nomi- committee and has chaired the Judici- got 76 percent of the vote in a state- nee really is. It is clear they are not ary Committee. He knows these things. wide election. Justice Owen actually really interested in having a serious He is an attorney. I am none of the got 84 percent. I don’t think anybody in debate on the merits of Justice Owen’s above. I chair a committee called Envi- this body has been able to gain those nomination. For whatever reason, they ronment and Public Works. But I think majorities. are dead set on not having her on the it is important for those of us who are Justice Brown was the daughter of a Federal bench. not living this every day to express sharecropper. She was born in Green- We are going to hear her described as ourselves because we have just as ville, AL, in 1949. She grew up attend- an out-of-control activist. That strong feelings, even though we don’t ing segregated schools during the prac- couldn’t be further from the truth. The work with this on a daily basis. tice of Jim Crow policies in the South. senior Senator from Massachusetts has Mr. President, what is the question Her family moved to Sacramento, CA, called her and others of the President’s pending before the Senate? when she was in her teens, and she nominees Neanderthals. Come on here. The PRESIDING OFFICER. The later received her B.A. in economics This is supposed to be a sophisticated nomination of Priscilla Owen to be from California State, and earned her body. These are decent people. She was U.S. circuit judge. J.D. from UCLA School of Law in 1977. supported by virtually everybody in Mr. INHOFE. Mr. President, today, I She has participated in a variety of the State of Texas in her last reelec- want to enter into this debate, as we statewide and community organization—84 percent of the vote—every bar have so many times, on these judicial tions dedicated to improving the qual- association president and former presi- nominees, including Justice Priscilla ity of life for all citizens of California. dent, 15 of them, every major editorial Owen and Justice Janice Rogers For example, she has served as a board. And we know they are not gen- Brown, both of whom are highly quali- member of the California Commission erally in favor of Republicans, but they fied. on the Status of African-American all supported her. Priscilla Owen was nominated by Males, as a member of the Governor’s She was first in her law school class, President Bush to the U.S. Court of Ap- Child Support Task Force, and as a best bar exam in the State, partner in peals for the Fifth Circuit, a seat that member of the Community Learning a major law firm, broke through the has been designated a judicial emer- Advisory Board of the Rio Americano glass ceiling. She is a sitting justice on gency by the Judicial Conference of the High School. the Texas Supreme Court, reelected by United States. That means we have to Two weeks ago, my colleague in the an enormous majority, unanimously fill the seat. She has served on the other Chamber, Congressman DAN LUN- well-qualified rating from the Amer- Texas Supreme Court since 1994 and GREN of California—he is a Congress- ican Bar Association. And she is a Ne- was endorsed for reelection by every man I served with for many years when anderthal? Give me a break. major Texas newspaper. She practiced I was in the other body, and he went on That is how far these debates have commercial litigation for 17 years. She to be the Attorney General from the deteriorated over the years, especially received her undergraduate degree State of California. He spoke of his pro- when you find a moderate to conserv- from Baylor University and graduated fessional experience with Justice ative woman such as Priscilla Owen or third in her class from Baylor Law Brown. I really think it is important to a moderate to conservative African- School in 1977. The American Bar Asso- go back to people who have served with American justice like Janice Rogers ciation has unanimously rated Justice them at the grassroots level. He was in Brown. Owen as ‘‘well-qualified,’’ the highest State government with her in the early Janice Rogers Brown, think about possible rating. She is the first nomi- 1990s. Congressman LUNGREN said: it—sharecropper’s daughter, worked nee considered well-qualified by the . . . It is my observation that in the ab- her way through college and law school ABA to be denied a floor vote by the sence of the opportunity to be voted up or as a single mother, went on to hold Democrats. down, to be subjected to a debate on the three of the highest positions in Cali- Priscilla Owen even has significant floor of the United States Senate in the con- fornia State Government, State coun- bipartisan support from three former text of such a consideration, that in fact the sel to the Governor of the State of Democrat judges on the Texas Supreme Janice Rogers Brown that I know in the California, then-Governor Pete Wilson, Court and a bipartisan group of 15 past State of California . . . is not the person that I hear discussed, the person that I hear nominated her for the Supreme Court presidents of the State Bar Association characterized, or the person that I see pre- of California. She writes the majority of Texas. Justice Owen has served the sented in the press and other places. of the majority opinions on that liberal legal field in many capacities. She was When I was elected the attorney general in court. In other words, she is writing for liaison to the Texas Supreme Court’s the State of California and took office in all the of judges on that court in the mediation task force and on statewide January of 1991, I asked a number of people majority opinions. She is a terrific committees on providing legal services who had previously served in the attorney human being. Her problem is she is a to the poor and pro bono legal services. general’s Office for recommendations of peo- conservative African-American jurist, ple who should serve at the top level of the She has always been very sensitive to department of justice in my administration. approved by the American Bar Associa- the poor. Her name (Justice Brown) was always offered tion. And they call her an extremist. Justice Owen organized a group by those who had experience in that office. We have had negotiations here where called Family Law 2000, which warns During the confirmation hearings that we they were willing to throw these two parents about the difficulties children had, I had the opportunity to review the women, Priscilla Owen and Janice Rog- face when parents go through a di- opinions that she had written while on the ers Brown, off the cliff in favor of three vorce. appellate court. Interestingly enough, every or four men, white males, all of whom Similarly, President Bush has nomi- single member of the appellate court on deserved being confirmed themselves. I nated Justice Brown to the U.S. Court which she served recommended her confirmation to the California supreme court. I thought they were all bad and extrem- of Appeals for the DC Circuit. This recall at the time that the chief justice of ist, according to them. Why would they morning, I was at the White House. As the California supreme court, Justice Ron allow any of them to go through? Then I came back, I walked by that district George, surprised the public hearing that we again, if they are not, why haven’t court office and thought very much at had by actually putting on the table every

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.077 S18PT1 S5416 CONGRESSIONAL RECORD — SENATE May 18, 2005 single written opinion that she had done and strict the majority view, why can we not gree, and great boldness in the faith which is advising everybody there that he had read have a straight up-or-down vote? in Christ Jesus. every opinion that she had written at that That was on June 21, 1995. Hebrews 4:16 says: point in time, not once but twice, and ren- Senator LEAHY, who actually chaired Let us therefore come boldly unto the dering his opinion that she was well qualified that committee, said: throne of grace, that we may obtain mercy. to serve on the California supreme court. When President Bush nominated Clarence ... Further quoting: Thomas to the U.S. Supreme Court, I was the I agree with Justice Brown, as she re- If you look at her opinions, they are the first Member of the Senate to declare my op- cently told an audience, that people of opinions of someone who understands what I position to his nomination. I did not believe believe jurists ought to understand, that faith were embroiled in a war against that Clarence Thomas was qualified to serve secular humanists who threatened to their obligation is to interpret the law, not on the Court. Even with strong reservations, make the law. I felt that Judge Thomas deserved an up-or- divorce America from its religious He concluded his statement by say- down vote. roots, according to a newspaper quoted ing: Again, 4 years later, Senator LEAHY in an April 26, L.A. Times article. One example of this attack is our pa- My point this evening is a simple one. That said: rental notification and consent laws which we are observing in the Senate is de- . . . I also took the floor on occasion to op- nying the American people an opportunity to pose filibusters to hold them up and believe which require girls under 18 who are review the nominees of the President of the that we should have a vote up or down. seeking an abortion to either notify or United States. It is my belief that Janice obtain permission—either notify or ob- Senator LINCOLN said: Brown should be presented to the United tain permission—from one or both of It’s my hope that we’ll take the necessary States Senate for consideration. She is an her parents. Many States have such American story. From the humblest back- steps to give these men and these women especially the up-or-down vote that they de- laws. However, there are many in- ground, she has risen to the highest court in stances where these protective laws the most populous State in the Nation. She serve. subscribes to a judicial philosophy consid- That was in the year 2000. have been struck down by liberal ered radical in some circles, that the text of Senator SARBANES said: judges who are bypassing the law and the Constitution actually means something. It is not whether you let the President legislating from the bench. She holds to a consistent enforcement of in- have his nominees confirmed. You will not For example, on August 5, 1997, the dividual rights that is not result oriented. even let them be considered . . . with an up- California Supreme Court issued its de- In my judgment, these are the qualities of or-down vote. cision in American Academy of Pediat- a true jurist and is why she should be con- I could go on and on. In fact, I did the rics v. Lungren. The court held that firmed to sit on the DC Circuit Court of Ap- the 1987 statute requiring minors seek- peals and, at the very least, that her story be other day. I went over so many of these told in open debate on the floor of the United people who are demanding an up-oring abortion to obtain parental consent States Senate in the context of the consider- down vote. Not only are my colleagues or judicial authorization violates the ation of her nomination by the whole body. on the other side of the aisle holding California Constitution’s explicit right That is what we are attempting to do up these qualified judges by not allow- to privacy. today. This is a debate that could ing an up-or-down vote, I also believe This is outrageous. Parents have a quickly be brought to an end by a sim- they are discriminating against people right to know what their children are ple up-or-down vote. We offered the mi- of faith. doing. Children who are not old enough nority as much time as they wanted to I will reiterate a quote from an arti- to vote or drink, why should they be debate these nominees, as long as an cle in the L.A. Times that I read on the old enough to have an abortion without up-or-down vote would follow. But this floor in April regarding the filibuster at least telling their parents? We are hasn’t happened. of qualified nominees, such as Justices not talking about getting permission, As a matter of fact, at least seven of Owen and Brown. It states, and I am we are talking about notifying them. my colleagues from the other side of quoting now the L.A. Times which has In another case, Planned Parenthood the aisle have actually stated the same never been accused of being a Repub- v. Danforth, the Supreme Court held thing—that nominees deserve an up-or- lican newspaper: that statutes, which allow a parent or down vote regarding previous nomi- These are confusing days in Washington. guardian to absolutely prohibit an nees, and they all received an up-or- Born-again conservative Christians who abortion to be performed on a minor down vote. The same people now that strongly want to see President Bush’s judi- child, were unconstitutional. are objecting to an up-or-down vote are cial nominees voted on are leading the There are a number of such cases. the ones who stood up and said we charge against the Senate filibuster, and lib- The whole point is this is outrageous. think they should have an up-or-down eral Democrats are born-again believers in We keep hearing people say these two that reactionary, obstructionist legislative vote previously. Somehow that has justices are out of mainstream Amer- tactic. Practically every big-name liberal ica, and I suggest to you, Mr. Presi- changed from the 1990s, and they don’t senator you can think of derided the fili- want that. dent, that it is the individuals who are buster a decade ago and now sees the error of making the accusations who are out of Let me remind them that Senator his or her ways and will go to amusing DURBIN said this on September 28, 1998: lengths to try to convince you that the the mainstream. It was not long ago We should vote the person up or down. change of heart is explained by something that they did polling on all these tradi- That is all we want. deeper than the mere difference between tional values, and it would seem to me Senator FEINSTEIN, on September 16, being in the majority and being in the mi- that the traditional values are in the 1999, said a nominee is entitled to a nority. mainstream. It is the liberals who are vote. Vote them up or down. I know that both Justice Brown and opposing these nominations who are Again, Senator FEINSTEIN, a month Justice Owen are active members of out of the mainstream. later, said in October of 1999: churches and are distinguished women To give an example, by 85 to 15 per- Our institutional integrity requires an up- of faith. cent, Americans say religion is very or or-down vote. Justice Brown has taught adult Sun- fairly important in their lives. Only 15 That is what we are talking about, day school at her church for more than percent say it is unimportant. our institutional integrity. I agree 10 years, and Justice Owen teaches In the case of Government should help faith-based initiatives to help the with Senator FEINSTEIN from 1999. Sunday school and is the head of the On March 7, 2000, Senator KENNEDY altar guild at her church. poor, 72 percent of Americans agree. On said: One has to ask the question, Have we the issue of whether violent attackers The Chief Justice of the U.S. Supreme come to the point in America where of pregnant women who kill the baby Court said, ‘‘The Senate is surely under no Sunday school teachers are disqualified should be prosecuted for killing the obligation to confirm any particular nomi- by the strength of their faith and the baby, 84 percent say yes. That is main- nee, but after the necessary time for inquiry, boldness of their beliefs? stream. it should vote him up or down, which is ex- The Bible urges us, like Justices On the issue of whether children actly what I would like. Brown and Owen, to be bold in our should be allowed to pray in school, 78 Senator LAUTENBERG said: faith. I Timothy 3:13 says: percent of Americas agree. Talking about the fairness in the system For they that have used the office of a dea- And 73 percent of Americans favor a and how it is equitable for a minority to recon well purchase to themselves a good de- law requiring women under the age of

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.080 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5417 18 to get parental consent for any abor- voted in favor of parental notice, her few years ago, Nevada had an opening tion. Democrats are with the 24 percent determination was the same as the on the Ninth Circuit. I spoke with sev- who oppose it. lower court. It was very reasonable. eral people, people who would have That is mainstream America, Mr. Anybody could look at that and say been well-qualified as a candidate. I President. Also, 74 percent oppose re- this is a reasonable person. asked if they would be interested if I moving all references to God from When we review the record of a judi- put their name forward? I consider it a oaths of public office—74 percent—and cial nominee, when we review their great honor to be on the appellate 91 percent of Americans want to keep opinions, we should ask ‘‘does that court. The common feedback: ‘‘Why the phrase ‘‘under God’’ in the Pledge judge follow the law?’’ We ask ‘‘is this would I want to put in my name and go of Allegiance. judge well reasoned?’’ We ask ‘‘did they through that process given all that you Those who are opposing them are on look at the facts?’’ Anybody who has have to go through?’’ the other side of these issues. I suggest reviewed Priscilla Owen’s record and My fear is that we are discouraging this all averages to over 78 percent of her opinions would conclude that she the very type of people who should the American people believe these has a good temperament. They would apply for these positions from doing so. issues, and that is clearly the will of conclude that she was not making law We need the absolute best legal minds the American people. That is main- but was interpreting the law according to serve on the appeals courts and Su- stream. That is what our Founding Fa- to the way the Texas Legislature had preme Court that we can possibly get. thers talked about when they founded intended. In cases involving parental It should be an honor to serve there. this great country, this one Nation notification, they would conclude that We should not do anything to dishonor under God. she had faithfully applied the law. those positions with the political farce We have said it over and over again. In addition to discussing Justice that we have going on in the Senate. I see the distinguished Senator from Owen’s nomination, I also want to ad- The Democrats have accused Repub- licans of wanting to change the rules. Nevada is here to speak. I agree with dress the confirmation process as a The rules changed 2 years ago. And it all the liberal Democratic Senators whole. In the past, whether it was was the Senate Democrats that who in the 1990s said: All we want is an Judge Robert Bork or Clarence Thom- changed the rules with a partisan fili- up-or-down vote; that is all we are ask- as, Republicans were unhappy with the buster. A partisan filibuster was never ing today. They got theirs, now we de- treatment that some nominees of Re- done in the history of the Senate be- serve ours. publican President’s received. The rep- fore 2003, never. Search the history I yield the floor. utation of Judge Bork and Justice The PRESIDING OFFICER. The Sen- Thomas had been attacked. These fine books, it is very clear. The two cases Democrats bring up were not partisan ator from Nevada. men were vilified. Republicans felt Mr. ENSIGN. Mr. President, I rise to that those nominees were treated un- filibusters. The one case about Abe discuss the issue of judicial nominees, fairly in committee and then on the Fortas, that was clear, he had engaged their confirmation process and whether floor. in objectionable practices while serv- When President Clinton was Presi- ing as an associate justice on the Su- nominees should receive an up-or-down dent, some of his nominees were like- preme Court and was opposed by many vote. We are currently discussing Justice wise mistreated. The committee proc- Senators in both parties. He was not ess was used to delay hearings or to Priscilla Owen and her nomination to opposed on a party line basis. It was bottle up nominees. In most cases clear to President Johnson that his the Fifth Circuit Court of Appeals. though, those nominees were eventu- nominee did not have the votes to be There has been a lot said about this ally given an up or down vote. We have confirmed as Chief Justice of the Su- nominee. Her qualifications have been heard the other side complain about preme Court. enumerated on the Senate floor. We the delays that President Clinton’s What we call the constitutional op- have heard that she was elected with 84 nominees experienced. I believe that tion—is an effort to reestablish the tra- percent of the vote in Texas. This is a the Senate ought to fix that. dition of what the Senate has always very large percentage that represents I think it is damaging to our system done. The minority is correct that fili- overwhelming support in her home of government to deny any nominee an busters were allowed under the rules. State of Texas. up or down vote. The Senate should, But the people who considered them in My Democrat colleagues have ques- whether someone is nominated to serve the past, the majority of Senators, said tioned her position on the issue of pa- as a judge or in the administration at it would do too much damage to the in- rental notification. As my friend and an agency or department, provide each stitution to actually carry out those colleague from the State of Oklahoma nominee with an up or down vote. The filibusters. So, in a bipartisan fashion talked about, parental notification is Senate should reject this delaying tac- in the past, before the Democrats led supported by nearly 80 percent of the tic which denies a nominee a timely the current filibusters, Senators got American people. up-or-down vote in committee and on together and said: We will go ahead and Before a school nurse gives a child an the Senate floor. We ought to fix the have up-or-down votes on these nomi- aspirin, the school will ask for the par- whole process. nees. ent’s permission. When it comes to an Unfortunately, both Republicans and I believe, for the future of this insti- abortion, which is a surgical procedure, Democrats have been escalating the tution and for the future of bringing abortion providers do not want to be fight over nominees for years. As I good people to the judiciary, we need held to the same standard. The vast pointed out before, many Republicans to fix this process once and for all. majority of the American people be- felt that Judge Bork was mistreated. Whether it is a Republican President or lieve that a parent should be notified In response, President Clinton’s nomi- a Democrat President and whether Re- before a surgical procedure, like an nees were too. What one side does, the publicans or Democrats are in control abortion, is performed on a child. other side will ratchet it up to the next of the Senate, regardless of which The parental notification cases that level when they come into power. We party is in charge, good people should Priscilla Owen has heard while serving can’t keep doing that. Neither side is have an up-or-down vote in a timely on the Texas Supreme Court all in- going to win if we continue on this fashion in committee as well as on the volved a lower court decision that the path. But the American system of gov- floor of the Senate. child should tell a parent about her de- ernment and the American people will I hope we can join across the aisle sire to have an abortion. So in many of surely lose. Good people will no longer and fix this. I actually thought we these cases, Justice Owen was uphold- be willing to serve in the administra- should have fixed it last year before ing the determination of the lower tion or in positions on the bench if we the Presidential election. I tried to ex- court judge who had directly listened can’t put an end to this. No American tend my hand across the aisle last year to the testimony of the minor who is going to want to have their name and say to Democrats: We don’t know wanted an abortion. put up for a position if they are prom- who is going to win the Presidential In these cases, there was disagree- ised to be treated so horribly. election, so let’s put something in ment among the justices on the Texas My home State of Nevada is part of place now so that the filibuster will Supreme Court, but in cases where she the Ninth Circuit Court of Appeals. A not continue after the 2004 elections.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.082 S18PT1 S5418 CONGRESSIONAL RECORD — SENATE May 18, 2005 I don’t think it should matter wheth- did not champion their now precious historic role and present responsibility. er it is a Republican President or Dem- principle of an up-or-down vote for the But what is even worse, much worse, is ocrat President sending nominees up full Senate for each of his judicial that they evidently intend to violate here. It is OK to vote against them, but nominees. To the contrary, they them- the procedures and disregard the rules I don’t believe that only 40 Senators of selves prevented—or condoned others by which the Senate can properly one party should be able to choose who preventing—69 of President Clinton’s change one of its existing rules. They is on the bench. judicial nominees from a vote by the are going to use their own new and un- The PRESIDING OFFICER. The time full Senate. Many were denied con- precedented procedure and disregard a of the majority has expired. firmation hearings. Sometimes one ruling of the professional parliamen- Mr. ENSIGN. Mr. President, I will Senator singlehandedly blocked judi- tarian that their procedure violates conclude very briefly with this. For the cial nominations. They received no Senate rules. good of our country, for the balance of votes by the Senate, not by part of the A senior Republican aide was quoted powers, we need to end this process of Senate, not by all of the Senate, not in today’s Washington Post that Sen- filibustering good people. These good once, not ever, not this year, not next ator FRIST does not plan to consult the people deserve an up-or-down vote. It is year, not in 4 years, not ever—69 judi- Senate Parliamentarian at the time only fair. Let’s join together in a bipar- cial nominations. Republican leaders the nuclear option is deployed. The tisan fashion to do that. not only defended their actions to deny Parliamentarian ‘‘has nothing to do I yield the floor. confirmation votes to Clinton nomi- with this. He is a staffer and we don’t The PRESIDING OFFICER. The mi- nees, they bragged about it. have to ask his opinion.’’ nority now controls 90 minutes. Here are some of the statements they Of course they don’t because they are Who yields time? The Senator from made at the time: going to throw out the existing Senate rules that they do not like and make Minnesota. The confirmation process is not a numbers Mr. DAYTON. Mr. President, ‘‘how a game and I will not compromise the Senate’s up new rules that they do like. Then minority, reaching majority, seizing advise and consent function simply because they are going to ask the Presiding Of- authority, hates the minority’’ is at- the White House has sent us nominees that ficer, one of their own, to rule in their tributed by the Library of Congress to are either not qualified or controversial. favor and then all vote to ratify what a Leonard Robinson, in 1968. So I guess Another: they have just done, even though it is there is a historical precedent for the So we are not abusing our advise and con- wrong, and they know it is wrong. attitudes of the majority in the Senate sent power. As a matter of fact, I don’t think They can’t change a wrong into a today. The minority is treated often we have been aggressive enough in utilizing right with a vote. They cannot disguise with contempt and disdain. Presiding it to ensure that nominees to the Federal a shameful abuse of power by calling it Officers read their mail or sign photos bench are mainstream nominees. Do I have a constitutional option. There is noth- while our Members speak on the Sen- any apologies? Only one, I probably moved ing constitutional about violating Sen- too many judicial nominations already. ate floor. Democratic conferees are ex- ate rules, there is nothing American When I go around my State or around the about violating Senate rules, and there cluded from the committee meetings. country the last thing I hear people clam- Our Democratic Senate leader is again is nothing senatorial about violating oring for is more lifetime tenured Federal Senate rules. smeared and targeted as an obstruc- judges. In my career, I have learned to be ef- tionist. For what? For leading the mi- Regarding the use of the filibuster, fective in politics you have to become nority party’s lawful and proper dis- Republican leaders were equally em- a realist. To remain effective, you have sent to the policies and practices of the phatic: to remain an idealist. When I came to majority, as though the expression of It is very important that one faction or the Senate almost 41⁄2 years ago, I was dissent on the floor of the Senate were one party not be able to ride roughshod over both realistic and idealistic. I knew improper or un-American or, now we the minority and impose its will. The Senate that the legislative process brings out are even being told, un-Christian, is not the House. the best and the worst in people. But I when, in fact, it is the intolerance of The filibuster is one of the few tools thought the Senate would inspire more dissent that is improper, undemocratic, the minority has to protect itself and of the best. That the 1,863 men and and the charges that political or policy those the minority represents. Clearly, women who had preceded me into this disagreements here are actions what distinguishes the Senate as a leg- institution, many of them the best, the ‘‘against people of faith’’ are the slurs islative body is unlimited debate, a brightest, and the wisest of their gen- of charlatans. traditional aspect that most Senators erations, I thought their collective wis- We are at this brink because during have felt very important for 200 years. dom embodied in the Senate’s rules and President Bush’s first term, our Demo- The only way to protect minority procedures would elevate our indi- cratic caucus blocked approval of 10 of views in the Senate is through ex- vidual conduct and our collective ac- the President’s judicial nominees, tended debate. tions and protect us and, more impor- while 208 of his nominees were con- Their judicial blocking tactics are tantly, protect the American people firmed. That is a 95-percent approval right, but ours are wrong. Their use of from the missteps or the misguided at- rate. Ninety-five percent of President the filibuster is good, and ours is bad. tempts of one Senator, of a minority, Bush’s judicial nominees were con- How convenient. How self-serving. And or even of a majority. firmed by the Senate, but that is not how wrong. My faith in the uplifting effect of the good enough for this majority and this It is bad enough that the Senate Re- Senate was perhaps wrong or, rather, it President. Nothing less than 100 per- publican leadership wants to change was right until now. Now we are at the cent is acceptable. It has to be their the Senate rules to suit their purposes brink of desecrating this great institu- way all the time. and disregard 214 years of bipartisan tion. It will be a disgrace and a dese- A President who said he was going to institutional wisdom which understood cration if the Republican leaders of the change the tone in Washington, pro- and cared about the proper role of the Senate disregard longstanding Senate mote bipartisanship, encourage democ- Senate in our carefully designed sys- rules and substitute their own new racy, does just the opposite. He de- tem of checks and balances. As James rules and if a majority of Senators vote mands congressional submission, in- Madison, one of our Constitution’s to approve this wrongdoing. sists on his way always, denounces and principal architects, said during the Everyone here should know whatever tries to destroy whoever disagrees with Constitutional Convention in 1787: their honest differences of opinion him. In order to judge the form to be given to about Justice Owen, unilaterally I am astonished that the Senate Re- the Senate, take a view of the ends to be breaking rules because you do not like publican leadership has flip-flopped served by it. First, to protect the people them or because you will not get your just because the President is now Re- against the rulers. Second, to protect the way by following them, is wrong. It is publican instead of Democratic. Repub- people against the transient impressions terribly wrong. licans were in the majority in the Sen- which they themselves must be led. Now, why would the Senate’s Repub- ate for the last 6 years of President Bill It is bad enough the Republican lead- lican leadership do this to the institu- Clinton’s two terms, and they certainly ership wants to weaken the Senate’s tion? To prove what, to whom? This

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.090 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5419 week’s Congressional Quarterly reports take the lead on the issue of judicial Today, in the Senate, unfortunately, that the Senate majority leader told a reform and impeachment will probably those values are under attack. What we group of conservative activists ques- have the Republican presidential nomi- see in their continuing rush for power tioning his resolve to invoke the nu- nation in 2008. is that some here on the other side clear option: Not one to miss such an opportunity, want to turn this great institution sim- Remember, before I came here I used to cut House Majority Leader TOM DELAY de- ply into a rubberstamp for the current people’s hearts out. clared that the judiciary has ‘‘run administration. Nowhere is that more That is a very revealing statement. amok,’’ and poses a threat to self-gov- clear to me than with the nomination Not ‘‘saved’’ hearts or ‘‘mended’’ ernment. He threatens Congress must that is in front of us tonight, and that hearts, but cut them out. take action to rein in the judiciary and is of Judge Priscilla Owen. This ploy will cut out the Senate’s that such actions must be more than Senator FRIST said the other day heart of integrity. Why do it? From rhetoric. that the only argument he has heard much of what I have read, this is being And remember, before he came here, against Justice Owen is on parental set up as a presidential purity test. I he used to exterminate things. So the consent. I happen to agree with Sen- respect the majority leader’s right to threat of a congressional leader in run- ator FRIST that her views and her deci- run for President. I respect that abso- ning amok to take action against Fed- sions on this subject are very impor- lutely. I wish that it would not involve eral judges must be taken as ominously tant, but if he has not heard the argu- the institution of the Senate. as he undoubtedly intended it to be. ments against Justice Owen, I think he According to the executive director God’s will and Jesus’s word are hi- has not been listening enough. of the American Conservative Union, if jacked by false prophets like James On everything from parental consent he—the majority leader—aspires to the Dobson and Pat Robertson. The inde- to victims’ rights, to workers’ rights, 2008 Republican Presidential nomina- pendence of Federal judges is threat- to bias towards her campaign contribution, it is a test he has to pass. This is ened by TOM DELAY. Now the integrity tors, Justice Owen is too far out of the pass-fail. He does not get a grade here. of the Senate’s rules and procedures mainstream. Her radical views make a He cannot get a C for effort. He needs may be violated. And these are the men lifetime appointment inappropriate by to deliver on this. who want to run our country. They this body. Let me take just a few min- So this is not a constitutional op- want to dictate who is elected, decide utes to talk about some of those impor- tion. It is a campaign opportunity, ex- who will be appointed, and even deter- tant objections. cept that Senate leaders are supposed mine who is on God’s side, who is not. In Read v. Scott Fetzer Company, a to deliver the Senate from this, from Well, if ever—if ever—there were a 1998 case, Justice Owen ruled that a the President—any President—demand- need for 51 profiles in courage in the rape victim—a rape victim—could not ing that every one of his nominees be Senate, it is now, to save this Senate collect civil damages against a vacuum approved by a submissive body, the from those who would savage it for cleaner company that employed an in- Senate; from political zealots and ideo- their own gain. The world will note and home dealer who raped her while he logical fanatics demanding we give up long remember what we do here, and was demonstrating the company’s our role and our responsibility so they we will be judged—as we should— product even though the company had can fulfill their delusional rantings of whether we acted so that, as Abraham failed to check his references, and if how Federal judges cause everything Lincoln said, government of the people, they had, they would have found out he they cannot tolerate. Because there is by the people, and for the people shall had harassed women at his other jobs no doubt about it, getting 218 judges, not perish on this Earth or here in the and previously been formally charged instead of 208 judges, is just their be- Senate. and fired for inappropriate sexual con- ginning. And then, by God, those Mr. President, I yield the floor and duct with a child. But Justice Owen judges had better decide every case just suggest the absence of a quorum. ruled that rape victim could not col- right for them or it is ‘‘impeach, im- The PRESIDING OFFICER. The lect civil damages against that com- pale or eliminate.’’ clerk will call the roll. pany. Self-anointed evangelist James Dob- The legislative clerk proceeded to I believe it is pretty clear that Jus- son—recently, on a national televised call the roll. tice Owen does not protect victims’ rally appeared with the Senate Repub- Mrs. MURRAY. Mr. President, I ask rights. lican leader—has called the United unanimous consent that the order for In another case, in GTE Southwest, States Supreme Court Justice Anthony the quorum call be rescinded. Incorporated v. Bruce, a 1990 case, Jus- Kennedy the ‘‘most dangerous man in The PRESIDING OFFICER. Without tice Owen sided with an employer America,’’ and he has demanded he be objection, it is so ordered. whom the majority in that case ruled impeached, along with Justices O’Con- Mrs. MURRAY. Mr. President, I have inflicted intentional emotional distress nor, Ginsburg, Souter, Breyer, and Ste- been traveling around my State, like on employees when he subjected them vens, that is, six of the nine members many of my colleagues have. When I to ‘‘constant humiliating and abusive of the Supreme Court that he wants to travel around, people keep stopping me behavior,’’ including the use of harsh impeach; a Court he has compared to and asking me: Why should I hear vulgarities, infliction of physical and Nazism and to the Ku Klux Klan. about the judges you are debating back verbal terror, frequent assaults, and Not to be outdone, and this is a con- in Washington DC? Whether I am in physical humiliation. Justice Owen test of extreme, incendiary, vitriolic Spokane talking to constituents at a wrote her own opinion to make sure it hysterics, the director of Operation town meeting or in a grocery store on was clear she thought the shocking be- Rescue has alleged that the courts of Saturday or talking to family members havior was not enough to support a this land have become a tool in the at home, they all want to know what verdict for the workers. hands of the devil, by which the cul- we are talking about and why this de- It is clear to me that Justice Owen ture of death has found access. bate matters in their lives. will not protect workers’ rights and Pat Robertson has written that the Well, my answer to those constitu- should not be promoted to a lifetime out-of-control judiciary is the most se- ents, whether it is someone in a gro- appointment by this body. rious threat America has faced in near- cery store or just chatting with some- Justice Owen’s record shows she has ly 400 years of history, more serious one or a family member, is that we are consistently put huge corporations than al-Qaida, more serious than Nazi here for a very important reason; that ahead of people. She took campaign Germany and Japan, more serious than is, to fight for basic American values, contributions from companies includ- the Civil War. values all of us hold dear. I tell them ing Enron and Halliburton, and then Don Feder of Vision America claims: we are fighting for the rights of mi- she issued rulings in their favor. Many Liberal judges have declared unholy war on norities so all of us have an oppor- of her campaign contributions came us, and unless Christians fight back their tunity for a voice and a seat at the from a small group of special business faith, family, and freedom will be lost. table. I tell them we are fighting for interests that advanced very clear He also promised that whatever the constitutional principles that were anticonsumer and anti-choice agendas. prominent Republican was willing to given to the Senate 200 years ago. Critically, her record has shown that

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.094 S18PT1 S5420 CONGRESSIONAL RECORD — SENATE May 18, 2005 her donors enjoy greater success before the number is fewer than 1,900 in dent’s nominees have been approved by her than before the majority of the total—In all of that time, no Senator the Senate. court. Again, it is very clear to me has been so bold as to stand up and do How far back do you have to go to that Justice Owen will not protect the what we understand the majority lead- find another President with a batting rights of the people against these huge er is likely to do very soon, the so- record this good? Twenty-five years. special interests and is not deserving of called nuclear option. This President has done better than being promoted to a lifetime appoint- Why in the history of this Chamber any President in the last 25 years in ment by this body. has no Senator ever done this? Be- having his judicial nominees approved. But you do not have to just listen to cause, frankly, it strikes at the heart But from President Bush’s point of me. Listen to what some of her col- of this institution. It goes to the value view, from Vice President CHENEY’s leagues on the Texas Supreme Court of the Senate in our Constitution. point of view, it is not good enough. He said about her decisions. When the Constitution was written, wants them all. He wants every single In FM Properties v. City of Austin, the Senate was created as a different one of them, without dissent, without the majority called her dissent ‘‘noth- place. I served in the House of Rep- disagreement, without debate in the ing more than inflammatory rhetoric.’’ resentatives for 14 years. I was proud of Senate. He wants them all. In the case of In re Jane Doe III, Jus- that service, enjoyed it, and value the Should every President have that tice Enoch wrote specifically to rebuke House of Representatives and its role. power? I don’t think so. Republican or Owen for misconstruing the legisla- But it is a different chamber. Democrat, Presidents have to know ture’s definition of the sort of abuse The Senate was created so the minor- they can go too far. They can make bad that may occur when parents are noti- ity would always have a voice. Think decisions, decisions which take Amer- fied of a minor’s intent to have an about it. There are two Senators from ica down a path that is not right. And abortion, saying: every State, large or small. Think of they should know they will be held accountable for making those decisions. abuse is abuse; it is neither to be trifled the rules of the Senate from the begin- They should know they can come up with nor its severity to be second guessed. ning which said: No matter who you with the names of nominees who are are, what Senator you may be, you can And finally, as has been stated by my not good people for lifetime appoint- take to this floor and do as I am doing colleagues on the floor of the Senate, ments and that when they come to the now-Attorney General Alberto at this moment, begin a debate which Senate, the Senate will review them Gonzales, then an Owen colleague, cannot be closed down unless an ex- and may say no. It is that check and criticized her, not once, not twice, but traordinary majority of the Senate balance which makes the difference. 10 times in his rulings and called one of makes that decision. One of the central arguments that her interpretations of a parental con- Senator FRIST, now the Republican has been made over and over again sent law an ‘‘unconscionable act of ju- majority leader, has decided it is time about triggering the nuclear option, dicial activism.’’ to change that 200-year tradition, to which Senator FRIST is preparing to do, Unfortunately, this nomination is be- change the rules of the Senate in the is the assertion that the Senate has fore us. This is the type of activist middle of the game. By this change, he never denied a judicial nominee with judge we are being asked to give a life- will change a relationship between the majority support an up-or-down vote. time appointment. By stripping the Senate and the President. That is a That argument is plain wrong and it is Senate of its constitutional role, we bold move. It is a move we should misleading. President Clinton had 61 are seeing the effort to pack the courts think about very seriously. He will judicial nominees who never received with radical judges, push an extreme have Vice President CHENEY in the an up-or-down vote. I know. I was here. agenda, and leave millions of Ameri- chair, but that is no surprise. Every I watched it. I watched it as Senator cans behind. President and every Vice President ORRIN HATCH and the Judiciary Com- That is why I say to my constituents, wants more power. That is the nature mittee buried these nominees, refused whether they walk up to me in a gro- of our Government. But the Founding to even give them a hearing. An up-or- cery store or it is one of my family Fathers understood that, not just as a down vote? They didn’t get close to members or somebody I am talking to human impulse but a political impulse. even an invitation to Washington. in Spokane or Yakima or Vancouver or They said: The way we will restrain too Nominated by the President, they were Bellingham, the debate we are having much power in the Presidency is to ignored and rejected by the Senate Ju- is critically important. For the people have checks and balances, to give to diciary Committee. Now we have these we promote to lifetime appointments, other branches of Government—the ju- pious pronouncements that every judi- we need to know they will be fair and diciary and the legislative branch—an cial nominee deserves an up-or-down evenhanded and that they will protect opportunity to check the power of the vote. I don’t know if it is the water in the rights of Americans no matter President. We think about that today, Washington, water out of the Potomac where they live. That is why this fight and the rules of the Senate were part of River. It seems to create political am- is important, and that is why my col- those checks and balances. nesia among those who serve in the leagues are here on the floor of the A President can’t appoint a judge to Senate. Some of the same Senators on Senate. a lifetime appointment without the ad- the Republican side who have come to I see my colleague from Illinois is on vice and consent of the Senate. In the floor and said every nominee de- the floor. I know he is here to speak as other words, the President’s power is serves an up-or-down vote were the well. I yield time to him. limited by the power of the Senate to Senators who were stopping the nomi- The PRESIDING OFFICER. The Sen- advise and consent. The words were nees of President Clinton without so ator from Illinois. carefully chosen. The Senate wasn’t di- much as a hearing. Mr. DURBIN. Mr. President, I thank rected to always approve the Presi- ‘‘We want fairness.’’ They sure didn’t the Senator from Washington who has dent’s nominees. The President sub- want fairness when it came to that been on the floor today addressing mits the nominees and the Senate, as a President and his nominees. some of the major issues we are consid- separate institution of Government, I am sure the vast majority of them, ering. This is an historic debate. Al- makes the decision as to whether those probably all of them, would have had though there are few people gathered nominees will go forward. That is a majority support, had they received an on the Senate floor, many people limitation on the President’s power. up-or-down vote. But they were across Capitol Hill and across the Na- This President, when we take a look stopped in committee. I know it. I used tion are following this debate. This is at the record of how many judges he to go and plead for judges from Illinois the first time in the history of the Sen- has submitted and how many have been nominated by President Clinton. I can ate where there is an attempt being approved, has done quite well for him- recall Senators—and I won’t name made to change one of the most funda- self. This is the score for President names; I could—who just told me no. mental rules and one of the most fun- Bush since he has been elected Presi- We are not going to let President Clin- damental values of this institution. To dent: 208 of his judicial nominees have ton fill these courts. We are hoping he think how many Senators have come been approved, and only 10 have not. will be gone soon, and we will put a Re- and gone in the history of this body— More than 95 percent of this Presi- publican President in. We will take

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.096 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5421 care of those vacancies. We have some Let’s look at another nominee in the Gonzales—that her dissenting position people we want to put on those spots. same circuit. Jorge Rangel, a law firm in this case: The fairness of an up-or-down vote partner, a former Texas district court It would be an unconscionable act of judi- wasn’t the case around here at all. It judge, was nominated July 24, 1997. No cial activism. was fundamentally unfair. hearing. No committee vote. No floor That is the Attorney General of the The Republicans exercised their fili- vote. This qualified man languished for United States commenting on the busters, these pocket filibusters, months, waiting for his chance for even record of Priscilla Owen, who the ad- against 61 nominees from President a hearing before the Judiciary Com- ministration is now propounding to fill Clinton’s White House who never re- mittee. But the Senate Republicans this vacancy. ceived a vote in the Judiciary Com- said, no; this wasn’t about filling a va- Make no mistake, the vote on this mittee. And the myth of the up-or- cancy. It was about keeping a vacancy nominee, Priscilla Owen, is not a ref- down vote is also demonstrated by so they, in the hopes of the next elec- erendum on the contentious issue of looking at the history of Supreme tion, could fill it. abortion. I don’t oppose her because we Court nominations. Finally, look at Alston Johnson. He differ on abortion rights. In fact, we Norman Ornstein is well recognized was in a major law firm, nominated have confirmed 208 of President Bush’s on Capitol Hill, a thoughtful man. He April 22, 1999, by President Clinton. He judicial nominees, over 95 percent. pointed out today in an article in a was renominated in 2001. He never re- Trust me, the vast majority of them do newspaper known as Roll Call that ceived a hearing when Senator HATCH not share my view on the issue of abor- there have been 154 nominations in our was chairman of the Judiciary Com- tion. But that is not the test, nor Nation’s history to the Supreme Court. mittee. He never received a committee should it be. We expect President Bush Of that 154, 23 never received an up-or- vote. Certainly, he had no up-or-down to nominate people who have a position down vote; 1 out of 7 of the Supreme floor vote. Why? To keep the vacancy on abortion that may differ from mine. Court nominees never received an up- alive for Priscilla Owen, in the hopes That doesn’t disqualify anybody. That or-down vote. What a weak argument that someday there would be a Repub- is why 95 percent of his nominees have from the other side. been approved, despite those dif- Not only does history argue they are lican President who could fill it. The Judiciary Committee chairman, ferences. wrong, their memories should argue Orrin Hatch, denied each of these In my view, the Owen nomination is they are wrong. They didn’t offer an nominees a vote and a hearing. Now not just about abortion. I oppose her up-or-down vote to those nominees the Republicans want to reap the bene- because I don’t believe she has taken from President Clinton. an evenhanded or moderate approach Let’s talk about this particular cir- fits of their delay tactics. But they don’t come to this with clean hands. to applying the law. What distin- cuit. Let’s talk about what happened guishes this nominee, Priscilla Owen, here in the context of the Priscilla This vacancy exists today because three people were treated very poorly. from other judges being confirmed is Owen nomination for the Fifth Circuit. that she has repeatedly demonstrated Justice Owen is the only judicial nomi- They never received the benefit of the hearing that Priscilla had. They never her unwillingness to apply statutes and nee ever nominated by the President court decisions faithfully—on the issue on two occasions after being rejected had the committee vote that Priscilla Owen had. They were not debated on of abortion and many other issues. by the Senate Judiciary Committee. There is no dispute that Justice Never before has a judicial nominee re- the floor. They say she should be confirmed because she has a ‘‘well-quali- Owen is a woman of intellectual capac- ceived a negative vote in committee ity and academic accomplishment. The fied’’ rating by the American Bar Asso- and been confirmed by the Senate. The question before the Senate, however, is ciation. Let me tell you, it is an argu- Republican leadership speaks at great whether she exhibits the balance and ment of convenience. The nominees I length about the unprecedented ma- freedom from rigid ideology that must just mentioned—Jorge Rangel, Enrique neuvers of Democrats, but their strat- be the bedrock of a strong Federal judi- Moreno, and Alston Johnson—all had egy on this nominee is a first. Surely ciary. The answer, regrettably, is no. Justice Owen and Charles Pickering, ratings of ‘‘well-qualified’’. But their Although the Senate is once again a the former embattled nominee to the nominations were buried by Senator house divided, concerns about Justice Fifth Circuit, are not the only people HATCH. So this ‘‘good housekeeping Owen cross party lines. Those who qualified to serve on that circuit. It is seal of approval,’’ the ABA rating, know her the best, including colleagues a circuit that covers the States of meant nothing to the Senate Repub- on the Republican-dominated Texas Texas, Louisiana, and Mississippi. This licans when it came to the Clinton Supreme Court, have repeatedly ques- is an area of roughly 30 million people. nominees. tioned the soundness of her logic, her Much has been said today on the It is amazing to me that President judgment, and her legal reasoning dur- floor about Justice Owen’s record in Bush and his fine people in the White ing her 10 years on that court. House couldn’t find another name to preventing pregnant minors in Texas Consider some of the published com- bring to us for that important court. from receiving abortions through a ments of her colleagues on the Texas Justice Owen has been given two con- process known as a ‘‘judicial bypass.’’ Supreme Court. firmation hearings, something which 61 What is that all about? Most States, in In the case of FM Properties v. City Clinton nominees never had a chance writing laws, say when it comes to a of Austin, Justice Owen dissented in to receive. Three of President Clinton’s minor seeking an abortion, there can favor of a large landowner which nominees for the very same circuit be extraordinary circumstances when sought to write its own water quality were denied even a single hearing. parental consent is not appropriate. We regulations. The court majority wrote: Let’s take a look at these nominees. can think about those. There are vic- Most of Justice Owen’s dissent is nothing Enrique Moreno, an accomplished tims of incest. You would not expect more than inflammatory rhetoric and thus trial attorney, nominated on Sep- the victim to go to the family member merits no response. tember 16, 1999, by President Clinton to who perpetrated that crime for permis- That was the majority of the Texas fill a vacancy in the Fifth Circuit. No sion for an abortion. So they create a Supreme Court. Think about it. Attor- hearing. No committee vote. No floor process where those victims, with the ney General Gonzales says she has vote. Certainly, no up-or-down vote. I help of an advocate, can go to court taken part in unconscionable acts of would hope that my friends on the Re- and say to the court: My circumstances judicial activism. The majority of her publican side would scratch their heads are unusual. I should be treated dif- Texas Supreme Court says her dissent and search their memories and remem- ferently and given a different oppor- is nothing more than inflammatory ber Enrique Moreno when they say tunity. rhetoric in this case. every nominee is entitled to an up-or- We have heard the comment made by Then look at her dissenting opinion down vote. He was found qualified. He then-Texas Supreme Court justice, and in the case of Fitzgerald v. Advanced was turned down to keep the vacancy, now our Attorney General, Alberto Spine Fixation Systems, in favor of in the hopes of the Senate Republicans, Gonzales. When Priscilla Owen issued limiting liability for manufacturers that a Republican President would an opinion in the case involving judi- who made harmful products that income along to fill it. cial bypass, he said—Attorney General jured innocent people. What they said

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.098 S18PT1 S5422 CONGRESSIONAL RECORD — SENATE May 18, 2005 was that her dissent would in essence young woman named Denise orthodox liberal ideology which advocates a ‘‘judicially amend the statute to add Castaneda. centralized and uniform society. an exception not implicitly contained Denise suffered from hemolytic Here is her response: in the language of the statute.’’ To put spherocytosis, a genetic condition I am unfamiliar with this mission state- it in layman’s terms, she is not being a causing misshapen blood cells, and she ment . . . I have no knowledge of its origin judge, she is being a legislator and is needed to have her spleen and gall- or its context. writing law. bladder removed. Denise’s parents ob- She ducked the question. I can only According to the majority, her dis- tained preapproval for the surgery, yet conclude that she does not find that sent in a case involving the Texas open Justice Owen allowed the insurance mission statement repugnant. She records law, City of Garland v. Dallas company to deny coverage, in clear bad joined the Federalist Society, and that Morning News here is what the major- faith of their contractual obligation. is the viewpoint. ity of the court said about this nomi- One of her colleagues on the court It is a small organization. Fewer nee, Priscilla Owen: who disagreed with her in this case, than 1 percent of lawyers across Amer- Justice Raul Gonzalez, said Justice Effectively writes out the . . . Act’s provi- ica are members of this Federalist So- sions and ignores its purpose to provide the Owen’s opinion ‘‘ignores important evi- ciety. Yet over one-third of President public ‘‘at all times to complete information dence that supports the judgment . . . Bush’s circuit court nominees are about the affairs of government and the offi- and resolves all conflicts in the evi- members of the Federalist Society. If cial acts of public officials and employees.’’ dence against the verdict [for the fam- you do not have a Federalist Society According to six justices, including ily that was denied coverage].’’ secret handshake, then, frankly, you three appointed by George W. Bush Justice Raul Gonzalez concluded: If the evidence of this case is not good may not even have a chance to be con- when he was Governor of the State, enough to affirm judgment, I do not know sidered seriously by the Bush White Justice Owen’s dissenting opinion in what character or quantity of evidence House. Montgomery Independent School Dis- would ever satisfy the Court in this kind of When it comes to nominees to the ap- trict v. Davis is guilty of ‘‘ignoring case. pellate court, the White House has credibility issues and essentially step- Nor is it easy to satisfy Justice Owen made political ideology a core consid- ping into the shoes of the fact-finder to in the judicial bypass cases. Her tor- eration. President Bush did not take reach a specific result.’’ tured reasoning in cases involving the office with a mandate to appoint these In other words, she is picking and Texas parental notification law exhib- kinds of judges. He lost the popular choosing the evidence without treating its the same inclination by Justice vote in his first election, won the elec- it fairly. Who said that? Six justices on Owen for judicial activism I discussed toral vote by a decision of the Supreme her own Texas Supreme Court. Three of earlier. Court, and came back in this last elec- them were appointed by George W. I am alarmed by her attempt to force tion and won by virtue of one State. Bush. Her colleagues said that Owen’s young women seeking a legal judicial Had Ohio gone the other way, he would dissent, in this case against a teacher bypass under Texas law to demonstrate not be President today. What kind of who was unfairly fired ‘‘not only dis- that they considered religious issues in mandate is that for rewriting the regards the procedural limitations in their decision whether they were to courts and the laws that they consider? the statute but takes a position even have an abortion. This religious aware- The Nation needs more judicial more extreme than that argued for by ness test has no support in Supreme nominees who reflect the moderate the [school] board.’’ Court case law. She may view it as views of the majority of Americans and Judges can and should have lively de- something to be added to the law. It is who have widespread bipartisan sup- bate over how to interpret the law. not the law. And when judges go be- port. Priscilla Owen is not one of them. yond the clear limits of the law, they Senator CORNYN, our colleague from I do not believe this nominee should re- Texas, tried to assure us that judges in are writing the law, and that is not ceive a lifetime appointment, and I do Texas always talk this way. But Jus- their responsibility. not believe she is worth a constitu- Justice Owen told the Judiciary tice Owen’s tenure on the Texas Su- tional confrontation. Committee she would not be an activ- preme Court is remarkable for both the Today we had a gathering on the ist, that she would merely follow the frequency and intensity with which her steps of the Senate of Democrats serv- law. That is a safe answer. We hear it fellow Republicans on the court have ing in the House and the Senate. We from every nominee. But when it were glad that our colleagues from the criticized her for exceeding the bounds comes to the issue of abortion, the law House came over to support us in this of honest disagreement. These are Re- is not well settled. One study shows debate on the nuclear option. They do publican fellow justices carping, not that of 32 circuit court cases applying not have the constitutional responsi- Democrats. They are fellow justices, the 1992 case Planned Parenthood of appointed by Governor George W. Bush Southeastern Pennsylvania v. Casey, bility of confirming nominees to the and others. only 15 of those cases were decided by court, but they understand a little bit According to those who served with unanimous panels. So in a majority of about debate. Sadly, in the House of Representa- her and know her best, she has often the cases, judges viewing identical tives since I left, debate has virtually been guilty of ignoring plain law, dis- facts and laws reached different con- come to a standstill. Efforts are being torting legislative history, and engag- clusions. ing in extreme judicial activism. Priscilla Owen is a member and offi- made to close down debate, close down All too often during her judicial ca- cer of the Federalist Society. If you amendments. The House meets 2 or 3 reer, Justice Owen has favored manu- have never heard of it, this is the se- days a week, if they are lucky, and facturers over consumers, large cor- cret handshake at the White House. If goes home accomplishing very little porations over individual employees, you are a member of the Federalist So- except the most basic political agenda. insurance companies over claimants, ciety, you are much more likely to What a far cry from the House of Rep- and judge-made law over jury verdicts. progress, to have a chance to serve for resentatives in which I served. We used This pattern is consistent with her a lifetime on the bench. I have tried, as to go on days, sometimes weeks, on State court campaign promises. But it nominees would come before the Judi- critically important issues such as the ill suits a person seeking a lifetime ap- ciary Committee, to ask them: What is spread of nuclear weapons around the pointment to the Federal bench who the Federalist Society? Why is it so world. They were hotly contested de- promises to be fair and balanced. important that re´sume´s for would-be bates. There were amendments that Let me mention one example, a case judges be checked by the Federalist So- passed by a vote or two where we never I asked Justice Owen about at her ciety for the Bush White House to con- knew the outcome when we cast our hearing in 2002, Provident American In- sider you? vote. It does not happen anymore. The surance Company v. Castaneda. Justice I asked Priscilla Owen if she agreed House of Representatives has shut Owen, writing for a divided court, ruled with the Federalist Society’s published down debate, by and large, and when in favor of an insurance company that mission statement which says: they get to a rollcall vote that is very tried to find anything in its policy to Law schools and the legal profession are close, they will keep the rollcall vote avoid paying for critical surgery for a currently strongly dominated by a form of open for hours, twisting the arms of

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.101 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5423 Congressmen to vote the way the lead- plicating their ability to prosecute crimi- The President can expect to continue ership wants them to. nals. The Department also reports— to receive 95-percent approval, unless That is what is happening in the According to Senator FRIST— he changes the way he nominates House. Sadly, that is what happens that due to the delay in deciding immigra- judges—maybe even better in the fu- when a group is in power for too long. tion appeals, it cannot quickly deport illegal ture. But for us to change the rules of They forget the heritage of the institu- aliens who are convicted murderers, rapists, the Senate may give this President a tion they are serving. All that counts and child molesters. temporary victory. It may have some is winning, and they will win at any That was Senator FRIST’s quote on special interest groups calling Senator cost. May 9, waving the bloody shirt that if FRIST, the Republican majority leader, That is what is happening in this de- we do not move quickly on judicial congratulating him. But, frankly, it bate. There are forces in the Senate nominees, it will leave vacancies that will not be a day of celebration for that want to win at any cost, but the allow these criminals on the street. those who value the Constitution and cost of the nuclear option is too high. Facts do not support what Senator the traditions of the Senate. The cost of the nuclear option means FRIST said. In fact, you have to go back At this point I yield the floor. we will turn our back on a 200-year- to 1996 to find a lower number of judi- The PRESIDING OFFICER. The Sen- plus tradition. We will turn our back cial emergencies. Think about this. In ator from Washington. on extended debate and filibuster so 1994, there were 67 judicial emer- Mrs. MURRAY. Mr. President, I come this President can have more power. gencies, meaning vacancies that badly to the floor this evening to join my col- You wonder if 6 Republicans out of 55 needed to be filled. That, of course, was leagues to talk about the Senate’s de- are troubled by this. That is what it during the Clinton years, when many liberations on some of our administra- comes down to. If 6 Republicans believe of the Republicans were not holding tion’s judicial nominations. It is very this President has gone too far, that is hearings and insisting we didn’t need clear to me this is a debate about basic the end of the debate on the nuclear to fill vacancies. Today the number of American values. In drafting the Con- option—6 out of 55. It is possible it judicial emergencies is 18. What a dra- stitution, the Framers wanted the Sen- could reach that point where six come matic difference. ate to provide advice and consent on forward. I certainly hope they do. They I think it is clear. There are fewer ju- nominees who came before us to ensure will be remembered. Those six Repub- dicial emergencies now than there have that these very rights and values were licans who step forward and basically been in the last 9 or 10 years. For any protected. I believe as a Senator I have say the President is asking for too Senator to come to the floor and argue a responsibility to stand up for those much power, those six Republicans who that we are creating a situation where values on behalf of my constituents say the special interest groups that are criminals are roaming all over the from my home State of Washington. pushing this agenda so the President streets—where were these same critics Many activists today are com- will have every single judicial nomi- during the Clinton years when there plaining that certain Senators are at- nee, those six Republicans will be re- were many more judicial emergencies tacking religious or conservative val- membered. They will have stood up for and they were turning down the Clin- ues. I must argue that it is others, not the institution. ton nominees, denying them even an Democratic Senators, who are exer- It will not be popular. In some places opportunity for a hearing? cising their rights, who are pursuing a I am sure they are going to be roundly I think this debate is going to test nomination strategy that attacks the criticized, and they may pay a political us—in terms of the future of the Sen- basic values that were outlined in our price. But we would like to think— ate, in terms of our adherence to our Constitution. most of us do—that at that moment in oaths to protect and defend the Con- Our democracy values debate. It val- time when we are tested to do the right stitution of the United States. ues discussion. Our democracy values thing, even if it is not popular, we will Janice Rogers Brown is also a nomi- the importance of checks and balances. do it. I certainly hold myself to that nee who will likely follow Priscilla Our democracy values an independent standard. Sometimes I meet it, some- Owen to the floor. She, too, has been judiciary. But with this nuclear option times I fail. considered not only in committee but and the rhetorical assault that is being For those who are considering that also on the floor, and she will have her launched at Democratic Senators by today, I say to them there has never nomination submitted for us to con- activists around the country, we now been a more important constitutional sider again. see those values under attack. The nu- debate in the Senate in modern mem- She, of course, is looking for appoint- clear option is an assault on the Amer- ory. ROBERT C. BYRD, the Senator from ment to the second highest court in the ican people and many of the things we West Virginia, comes to the floor every land, the DC Circuit Court of Appeals. hold dear. It is an attempt to impose day and carries our Constitution with I have heard my colleagues, Senator on the country, through lifetime ap- him in his pocket. He has written a BOXER and Senator FEINSTEIN, from pointments, the extreme values held by two- or three-volume history of the Judge Janice Rogers Brown’s home a few at the cost of many. It is the tyr- Senate. He knows this institution bet- State of California, describe some of anny of the majority personified. Con- ter than anybody. the things she has said during the firming these nominees by becoming a I have listened to Senator BYRD, and course of serving as a judge. To say she rubberstamp for the administration I have measured the intensity of his is out of the mainstream is an under- would be an affront to the 200-year-old feeling about this debate. It is hard for statement. She is so far out of the system we have in place, a system of anyone to describe what this means to mainstream on her positions that you checks and balances. At the same time Senator BYRD. He believes what is at find it interesting that, of all of the I have to say it would be an affront to stake here is not just a vote on a judge. conservative Republican attorneys and the values I promised to defend when I What is at stake here is the future of judges in America, this is the best the came to the Senate. the Senate, the role of the issues, such White House can do, to send us some- It is not always easy. Building and as checks and balances, and I agree one who has such a radical agenda that maintaining a democracy is not easy. with him. she now wants to bring to the second But our system and the rights and the My colleagues made an argument highest court in the land. And that is values it holds dear are the envy of the that we have to go through these judi- what we are up against. world. In fact, the entire world looks at cial nominees and approve them be- There are some who argue, Why don’t us as a model for government. It is our cause we face judicial emergencies. Let you just step aside? Let these judges values they look to. We have to protect me read what Senator FRIST, the Re- come through. I hope it doesn’t come them, not only for us but for other publican majority leader, said on May to that. But I hope it does come to a fledgling democracies around the 9: point that we make it clear the nuclear world. Now, 12 of the 16 court of appeals vacancies option is over. I believe Senator HARRY I returned recently from a bipartisan have been officially declared judicial emer- REID, the Democratic leader, has said trip we took to Israel, Iraq, Georgia, gencies. The Department of Justice tells us and I believe that we will conscien- and Ukraine, where we saw up close the delay caused by these vacancies is com- tiously review every single nominee. leaders who are working very hard to

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.103 S18PT1 S5424 CONGRESSIONAL RECORD — SENATE May 18, 2005 write constitutions, to write laws, to dent. They think they know better, and powerful president. In the case of judicial ap- write policies. They were working I think not. pointments, the Founders specifically man- hard, all of them, to assure that even Today, it is fashionable for some of dated the Senate to play an active role pro- those who did not vote in the majority my colleagues on the other side of the viding both advice and consent to the Presi- dent. That shared authority was basic to the in their country would have a voice. aisle to disparage what they call activ- balance of powers among the branches. The challenges were varied in every ist judges. But this power grab, this nu- I am . . . attempting to say as strongly as country we went to. They faced every- clear option reveals the true motiva- I can that in considering any modification thing from protecting against terror- tion. There are those who want activ- Senators should realize they are dealing not ists to, in some cases, charging for ists on the bench to interpret the law with the particular dispute of the moment, electricity for the first time, to, in in a way I believe undermines impor- but with the fundamental character of the other cases, reforming corrupt institu- tant American values. Senate of the United States, and with the tions. But making sure that democ- I believe we have a responsibility to deeper issue of the balance of power between majority and minority rights. racies survive means having debates, it stand up and say no to extreme nomi- means bringing people to the table, and nees. But to know that, you do not Protection of minority rights has it means making tough decisions. But need to listen to me. Just look back at been a fundamental principle since the in each case, the importance of not the great Founders of this democracy. infancy of this democracy. It should disenfranchising any group within that The Framers, in those amazing years not—in fact, it cannot—be laid to rest country was an important part of mak- when our country was founded, took in this Chamber with this debate. ing sure that democracy worked. very great care in creating this new de- I know there are a lot of people won- So how we in this country accom- mocracy. They wrote into the Con- dering why the Senate is spending so plish the goal of sustaining a strong de- stitution the Senate’s role in the nomi- much time talking about Senate rules mocracy and ensuring people—all peo- nation process. They wrote into the and judicial nominations. They are ple—participation is extremely impor- Constitution and spoke about pro- wondering why I am talking about tant. tecting the minority against the tyr- nominees and quoting Madison and Elections are the foundation of our anny of the majority and their words Adams. They are wondering what this democracy. They actually determine ring true today. means to them. the direction of our country. But an James Madison, in his famous Fed- I make it clear: This debate is about election loss doesn’t mean you lose eralist No. 10, warned against the supe- whether we want a clean, healthy envi- your voice or you lose your place at rior force of an overbearing majority ronment and the ability to enforce our the table. Making sure we all have a or, as he called it, a dangerous vice. laws to protect it fairly. This debate is seat at the table is increasingly impor- He said: about whether we want to protect es- tant to keep our democracy strong. The friend of popular governments never sential rights and liberties. This debate That is why those of us on this side are finds himself so much alarmed for their is about whether we want free and open fighting so hard to keep our voice, to character and faith as when he contemplates government. This debate is about pre- have a seat at the table. their propensity to this dangerous vice. serving equal protection under the law. Recently we have heard a lot from Years prior, John Adams wrote in This debate is about whether we want the other side about attacks on faith 1776 on the specific need for an inde- to preserve the independent judiciary, and values. In fact, some are trying to pendent judiciary and checks and bal- whether we want to defend the Con- say our motive in this debate is some- ance. He said: stitution, and whether we will stand up how antifaith. I have to argue that just The dignity and stability of government in for the values of the American public. the opposite appears to me to be true. all its branches, the morals of the people and I believe these values are too pre- We have faith in our values, we have every blessing of society depends so much on cious to abdicate. Trusting in them, we faith in American values, and we have an upright and skillful administration of jus- will not let Republicans trample our tice that the judicial power ought to be dis- rights and those of millions of Ameri- faith that those values can and must be tinct from both the legislative and executive upheld. and independent upon both so that it may be cans who we are here to represent. We This is not an ideological battle be- a check upon both as both should be checks will stand and say yes to democracy, tween Republicans and Democrats, it is upon that. The Judges therefore should al- yes to an independent judiciary, yes to about keeping faith with the values ways be men of learning and experience in minority rights, and no to this unbe- and ideals our country stands for. Hav- the laws, of exemplary morals, great pa- lievable abuse of power. ing values and having faith in those tience, calmness, coolness and attention. I see my colleague from New York is values requires—requires that we make Their minds should not be distracted with here, and I know he has time tonight, sure those without a voice are listened jarring interests; they should not be depend- as well. ent on any man or body of men. to. Speaking up for those in poverty to I yield the floor. make sure they are fed is a faith-based I have to shudder at the thought of The PRESIDING OFFICER (Mr. what some of the great thinkers, the value. Making sure there is equal op- DEMINT). The Senator from New York. portunity and justice for the least great Founders of our democracy, Mr. SCHUMER. Mr. President, first, I among us is a faith-based value. Fight- would say to this attempted abuse of compliment my friend and colleague ing for human rights, taking care of power. Frankly, one of the best inter- from the great State of Washington for the environment, are faith-based val- pretations of the thoughts was offered her outstanding remarks and leader- ues. to this Senate by Robert Caro, the ship on this issue. She knows, because To now say those of us who stick up great Senate historian. He wrote a let- of her experience and her compassion for minority rights are antifaith is ter in 2003 and he talked about the need and humanity, what this nuclear op- frightening and, frankly, it is wrong. I for the Senate to maintain its history tion would mean to this Senate. I hope those who have decided to make and its traditions despite popular pres- thank the Senator for her leadership. this into some kind of faith/antifaith sures of the day and of the important Mr. President, there are so many debate will reconsider. This debate role that debate and dissension plays in things to say here. The idea of blowing should be about democracy. It should any discussion of judicial nominations. up the Senate, literally, almost, at be about the protection of an inde- In particular, he wrote of his concern least in terms of the rules, at least in pendent judiciary. And certainly it is a for the preservation of Senate tradition terms of comity, and at least in terms debate about the rights of minorities. in the face of attempted changes by a of bipartisanship, all because 10 judges Our system of Government, of checks majority run wild. have not been approved, is just appall- and balances, and our values, are under He said, in part: ing. attack today by this very transparent In short, two centuries of history rebut I mentioned earlier today, it seems grab for power. They are, with their any suggestion that either the language or like a temper tantrum if we do not get intent of the Constitution prohibits or coun- words and potential actions, attempt- sels against the use of extended debate to re- our way on every single one, say the ing now to dismantle this system de- sist presidential authority. To the contrary, hard-right groups, we will show them spite the clear intent of the Framers the nation’s Founders depended on the Sen- they cannot stop us on anything. That and the weight of history and prece- ate’s members to stand up to a popular and is how ideologues think. That is how

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.105 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5425 people who are so sure they have the the small number of judges we have can-American nominee to the Fourth message from God or from somebody chosen to filibuster. Yes, certainly Circuit. else, that they know better than every- there has not been a removal of clo- So what is happening here is very one else, that is how they think. They ture, but the bottom line is we have simple. The hard-right groups, way out cannot tolerate the fact that some of had votes, unlike when Bill Clinton of the mainstream, not Chambers of these judges, a small handful, have was President and 60 judges were Commerce or mainstream churches, been held up. pushed aside and not given a vote. but the hard-right groups, as I said, ei- We can tell in the debate today where The other point of the up-or-down ther some who believe, almost in a the- the enthusiasm and the passion is. vote is let 51 votes decide, let’s each ocratic way, that their faith—a beau- There is a weariness on the other side come to our own decision as we weigh tiful thing—should dictate not just of the aisle. My guess is that more the judges. their politics but everyone’s politics, than half of those on the other side, if Let me show the independence of the and some, from an economic point of it were a secret ballot, would vote decisions that have been made by those view, who do not believe there should against the nuclear option. They know on the other side. be any Federal Government involve- it is wrong. Ten have said to me: I am This is a compilation of all the votes ment in regulating our industries, our under tremendous pressure; I have to taken by Republican Members of the commerce, et cetera—these groups are vote for it. The reason the majority Senate for every one of President ideologues. They are so certain they leader has not called for a vote is be- Bush’s court of appeals nominees. are right. cause of the courageous handful who There have been 45. How many times They have some following in this have resisted the pressure. Four of has any Republican voted against any 1 body, but it is not even a majority of them have told me of the pressure on of those 45 at any single vote? If, of the Republican side of the aisle. And them. course, we were all coming to an inde- they certainly do not represent the ma- We used to hear about these groups pendent decision, do you think there jority view of any Americans in any influencing things. Does anyone have would be 100, 200, 300 out of the 2,700- single State. But they have a lot of any doubt that if not for the small some-odd votes cast? You would think sway. And until this nuclear option de- groups, some dealing with social issues so. Independent thinking, let’s have an bate occurred, they had very little op- because they think America has been up-or-down vote. Here is what it is: position. People did not know what was torn away from them, some deal with 2,703 to 1. Let me repeat that because it going on. And now, of course, this de- economic issues—they hate the fact is astounding: 2,703 ‘‘yes’’ votes by Re- bate allows us to expose the lie. that the commerce clause actually can publicans for court of appeals nomi- Let me say another thing about this protect workers. Their idea is that self- nees—45 of them—and 1 vote against. idea. One out of every five Supreme made businessman should not pay Now, how is that? First, people ask, Court nominees who was nominated by taxes, should be able to discriminate, Well, who is the one vote? Why did one a President in our history never made should be able to pollute the air and person, at one point, dissent from the it to the Supreme Court. The very first water. marching lockstep to approve every nominee, Mr. Rutledge, nominated by Janice Rogers Brown basically stands single nominee the President has pro- George Washington, was rejected by for the philosophy of the 1890s and said posed? Well, I will tell you who it was. the Senate, in a Senate that had, I be- over and over again that we should go It was TRENT LOTT, the former major- lieve it was, eight of the Founding Fa- back to the days when if you had a lot ity leader. On what judge? On Judge thers. Eight of the twenty-two people of money and power, you could do Roger Gregory, who was nominated by who voted in the Senate had actually whatever you wanted. It is an abnega- Bill Clinton to be the first Black man signed the Constitution, defining them tion of history, of the knowledge we to sit on the Fourth Circuit, which has as Founding Fathers. Did they have have learned. It is an abnegation of the a large black population. It is Virginia, votes like this? Of course not because free market principles are the best North Carolina, South Carolina—I am the Founding Fathers, in this Constitu- principles. not sure if it has Georgia in it or not; tion, wanted advice and consent. They But we have learned over the years I think not Georgia. say in the Federalist Papers, they they need some tempering and some And when President Bush renomi- wanted the President to come to the moderation. That is why we do not nated him, TRENT LOTT voted against Senate and debate and discuss. have the booms and busts that charac- him, maybe to help his friend, Jesse Has any Democrat been asked? Has terized America from 1870 to 1935. That Helms, who blocked every nominee and PATRICK LEAHY, our ranking member of is why people live better. Not because certainly every African-American Judiciary, been asked about who corporate America did good for them. nominee on the Fourth Circuit. That is should be nominees in these courts? They did do some good, and they do it. That is TRENT LOTT right there on Has there been a give-and-take the way more good now. It was through union- Roger Gregory. TRENT LOTT on every Bill Clinton regularly called ORRIN ization, through government rules that other nominee, every other Republican HATCH, chairman of the Judiciary Com- we transformed America from a nation Senator on every nominee: 100 percent mittee? There is a story, I do not know of a very few rich, a small middle class, of the time they voted for the Presi- if it is apocryphal, that ORRIN HATCH and a whole lot of poor people, into an dent’s nominee. said: You can’t get this guy for the Su- America that had more rich people, a So this idea that we are a delibera- preme Court. You can’t get this guy, large—gigantic, thank God—middle tive body, and we are going to look at but Breyer will get through. And Presi- class, and still too many poor people each person on the merits, I heard our dent Clinton nominated Breyer. Did but fewer poor people. majority leader say: Let’s look. Do you Stephen Breyer have ORRIN HATCH’s But Janice Rogers Brown believes all know what this means? Do you know exact political beliefs? No. Did he have government regulation is wrong. She what this spells, these numbers? R-U- Bill Clinton’s exact ones? No. It was a believes the New Deal was a socialist B-B-E-R-S-T-A-M-P. This Senate, compromise. That is what the Con- revolution that had to be undone. Do under Republican leadership, has be- stitution intended. mainstream conservatives believe come a complete rubber stamp to any- But when a President nominates that? Is it any wonder even the Cham- one the President nominates. Did judges through an ideological spec- ber of Commerce is against the nuclear maybe one of those nominees strike a trum, when he chooses not moderates, option? No. single Member of the other side as and not even mainstream conserv- There are so many points I wish to going too far on a single issue? Did atives, but people who are way over— make, and fortunately it seems we will maybe one of those nominees do some- way over—we have safeguards. One of have a lot of time to make these thing that merited they not be on the those safeguards is the filibuster. It points. I will focus on something that bench? Did maybe one of those nomi- says to the President: If you go really has not been focused on before, and nees not show judicial temperament? I far out and do not consult and do not that is this idea of an up-or-down vote. guess not. Rubber stamp: 2,703 to 1. trade off, you can run into trouble. First, we have had votes. Yes, the Once was there a dissent, only once, Well, George Bush did not consult. other side has needed 60 to prevail on and on Roger Gregory, the first Afri- He did what he said in the campaign,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.107 S18PT1 S5426 CONGRESSIONAL RECORD — SENATE May 18, 2005 that he was going to nominate least there was a good-faith effort by United States Court of Appeals for the ideologues. He said: I am going to these nominees, at least as I inter- Fifth Circuit. After reviewing her nominate judges in the mold of Scalia viewed them, being ranking Democrat record, hearing her testimony and eval- and Thomas. There probably should be on the Courts Subcommittee, to inter- uating her answers I voted against her a few Scalias on our courts. They pret the law, not to make the law. confirmation and explained at length should not be a majority. And Bush There are some the President nomi- the strong case against confirmation of nominates a majority. And he is now nated you can’t tolerate, that are this nomination. Nothing about her sowing what he has reaped—or reaping unpalatable. I debated Senator HATCH record or the reasons that led me then what he has sown. I come from New on the Wolf Blitzer show. He keeps to vote against confirmation has York City. We do not have that much bringing up the old saw: You are oppos- changed since then. Unlike the consid- agriculture, although I am trying to ing Janice Rogers Brown because you eration of the nomination of William help the farmers upstate. can’t stand having an African-Amer- Myers, on which the Judiciary Com- So that is the problem. This is not ican conservative. mittee held another hearing this year the Democrats’ problem. This is the They said that about PRYOR in terms before seeking reconsideration, there way the President has functioned in of being a Catholic and about Pick- has been no effort to supplement the terms of judicial appointments. This is ering in terms of being a Baptist. It is record on this nomination. Justice the way the Republican Senate, to a a cheap argument. I don’t care about Owen’s record failed to justify a favor- person, has been a rubber stamp with- the race, creed, color, or religion of a able reporting of the nomination in out giving any independent judgment. nominee. If that nominee believes the 2002 and was inadequate to gain the This is the way the Founding Fathers New Deal was a socialist revolution, if consent of the Senate during the last 2 wanted we Democrats and the Senate that nominee believes the case the Su- years. as a whole to act. And that is what we preme Court decided that said wage In 2001, Justice Owen was nominated are doing. and hour laws were unconstitutional to fill a vacancy that had by that time And then, when they do not get their was decided correctly in 1906, even existed for more than 4 years, since way—quite naturally, we did what we though it was overturned, I will oppose January 1997. In the intervening 5 are doing—they throw a temper tan- that nominee. That person should not years, President Clinton nominated trum. They say: We have to have all 100 be on the second most important court Jorge Rangel, a distinguished Hispanic percent. I want to repeat this because in the land. No way. We are doing what attorney from Corpus Christi, to fill this was said by someone—I do not re- the Founding Fathers wanted us to do. that vacancy. Despite his qualifica- member who—but I think it is worth We are doing the right thing. tions, and his unanimous rating of well saying. If your child, your son or One other point, and it relates to this qualified by the ABA, Mr. Rangel never daughter, came home and got 95 per- hallowed document—the Constitution. received a hearing from the Judiciary cent on a test, 95 percent, what would In the 1960s and 1970s, one of the main Committee, and his nomination was re- most parents do? They would pat him bugaboos of the conservative move- turned to the President without Senate or her on the head and say: Great job, ment was that the courts were going action at the end of 1998, after a fruit- Johnny. Great job, Jane. Maybe try to too far. They called them activist less wait of 15 months. do a little better, but you have done judges. They believed—from the left On September 16, 1999, President great. I am proud of you. side, not from the right side—that Clinton nominated Enrique Moreno, When President Bush gets the 95 per- these judges were making law, not in- another outstanding Hispanic attor- cent, he does not do that. President terpreting the law. And there are cases ney, to fill that same vacancy. Mr. Bush would advise—what he is doing, where they were right. I remember Moreno did not receive a hearing on his in effect, is saying to Johnny or Jane: being in college and being surprised as nomination either—over a span of more You only got 95 percent? I studied some of the cases that the Su- than 17 months. President Bush with- This is not what President Bush does. preme Court would do this. drew the nomination of Enrique It is what the far-right groups do, the So they created a counterreaction. Moreno to the Fifth Circuit and later hard-line far right. Only 95 percent? Ronald Reagan nominated conservative sent Justice Owen’s name in its place. Break the rules and get 100 percent. judges, not as conservative as George It was not until May of 2002, at a hear- What parent would tell their child Bush’s, but the bench had largely been ing presided over by Senator SCHUMER, that? Yet that is what these narrow- appointed by moderates, whether it be that the Judiciary Committee heard minded groups are saying. And wildly Kennedy, Johnson, Nixon, Ford, or from any of President Clinton’s three enough, the majority leader and most— Carter. So when Reagan came in and unsuccessful nominees to the Fifth Cir- and thank God, not yet all—of his cau- began to sprinkle some conservatives cuit. At that time, Mr. Moreno and Mr. cus is agreeing. Break the rules, in there, people didn’t make too much Rangel, joined by a number of other change the whole balance of power and of a fuss, especially at the courts of ap- Clinton nominees, testified about their checks and balances in this great Sen- peal level. treatment by the Republican majority. ate and great country so we don’t have The point I am making is this: So Thus, Justice Owen’s was the third 95 percent, but 100 percent. they didn’t like activist judges, judges nomination to this vacancy and the What is it that is motivating them? who would sort of read the Constitu- first to be accorded a hearing before Some say it is a nomination on the Su- tion and divine what was in it. And the committee. preme Court that might be coming up, they had a movement that said: You In fact, when the Judiciary Com- that they can’t stand the fact that only read the Constitution in terms of mittee held its hearing on the nomina- Democrats might filibuster. I can tell the words. If it doesn’t say it in the tion of Judge Edith Clement to the you, if the President nominates some- Constitution, you don’t do it. Fifth Circuit in 2001, during the most one who is a mainstream person, who I defy any Republican who says they recent period of Democratic control of will interpret the law, not make the don’t believe in activist judges to find the Senate, it was the first hearing on law, there won’t be a filibuster. the words ‘‘filibuster,’’ ‘‘up-or-down a Fifth Circuit nominee in 7 years. By They say: Well, they will have to vote,’’ ‘‘majority rule,’’ when it comes contrast, Justice Owen was the third agree with the Democrats on every- to the Senate. I would say that anyone nomination to the Fifth Circuit on thing. Bunk. I haven’t voted for all 208. who is now saying the Constitution which the Judiciary Committee held a I probably voted for about 195. I guar- says there cannot be a filibuster is hearing in less than 1 year. In spite of antee you, of those 195, I didn’t agree being just as activist in their interpre- the treatment by the former Repub- with the views of many. No litmus test tation of the Constitution as the judges lican majority of so many moderate ju- have I. I voted for an overwhelming they condemned in the 1960s and 1970s. dicial nominees of the previous Presi- majority who were pro-life even though I thank the Chair for the courtesy dent, we proceeded in July of 2001—as I I am pro-choice. I voted for an over- and yield the floor. said that we would—with a hearing on whelming majority who probably want Mr. LEAHY, Mr. President, 3 years Justice Owen. to cut back on Government activity in ago I first considered the nomination Justice Owen is one of among 20 areas that I would not cut back. But at of Priscilla Owen to be a judge on the Texas nominees who were considered

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.108 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5427 by the Judiciary Committee while I I would particularly like to commend The first area of concern to me is was chairman. That included nine dis- Senator FEINSTEIN, who chaired the Justice Owen’s extremism even among trict court judges, four United States hearing for Justice Owen, for managing a conservative Supreme Court of Attorneys, three United States Mar- that hearing so fairly and Texas. The conservative Republican shals, and three executive branch ap- evenhandedly. It was a long day, where majority of the Texas Supreme Court pointees from Texas who moved swiftly nearly every Senator who is a member has gone out of its way to criticize Jus- through the Judiciary Committee. of the Committee came to question tice Owen and the dissents she joined When Justice Owen was initially Justice Owen, and Senator FEINSTEIN in ways that are highly unusual, and in nominated, the President changed the handled it with patience and equa- ways which highlight her ends-oriented confirmation process from that used by nimity. activism. A number of Texas Supreme Republican and Democratic Presidents After that hearing, I brought Justice Court Justices have pointed out how for more than 50 years. That resulted Owen’s nomination up for a vote, and far from the language of statute she in her ABA peer review not being re- following an open debate where her op- strays in her attempts to push the law ceived until later that summer. As a ponents discussed her record and their beyond what the legislature intended. result of a Republican objection to the objections on the merits, the nomina- One example is the majority opinion Democratic leadership’s request to re- tion was rejected. Her nomination was in Weiner v. Wasson, 900 S.W.2d 316, Tex. tain all judicial nominations pending fully and openly debated, and it was re- 1995. In this case, Justice Owen wrote a before the Senate through the August jected. That fair treatment stands in dissent advocating a ruling against a recess in 2001, the initial nomination of sharp contrast to the way Republicans medical malpractice plaintiff injured Justice Owen was required by Senate had treated President Clinton’s nomi- while he was still a teenager. The issue rules to be returned to the President nees, including several to the Fifth Cir- was the constitutionality of a State without action. The Committee none- cuit. law requiring minors to file medical theless took the unprecedented action That should have ended things right malpractice actions before reaching of proceeding during the August recess there. But looking back, we now see the age of majority, or risk being out- to hold two hearings involving judicial that this nomination is emblematic of side the statute of limitations. Of in- nominations, including a nominee to the ways the White House and Senate terest is the majority’s discussion of the Court of Appeals for the Federal Republicans will trample on precedent the importance of abiding by a prior Circuit. and do whatever is necessary in order Texas Supreme Court decision unani- In my efforts to accommodate a num- to get every last nominee of this Presi- mously striking down a previous ber of Republican Senators—including dent’s confirmed, no matter how ex- version of the statute. In what reads as the Republican leader, the Judiciary treme he or she may be. Priscilla a lecture to the dissent, then-Justice committee’s ranking member, and at Owen’s nomination was the first judi- JOHN CORNYN explains on behalf of the least four other Republican members of cial nomination ever to be resubmitted majority: the committee—I scheduled hearings after already being debated, voted upon Generally, we adhere to our precedents for for nominees out of the order in which and rejected by the Senate Judiciary reasons of efficiency, fairness, and legit- they were received that year, in ac- Committee. imacy. First, if we did not follow our own de- When the Senate majority shifted, cisions, no issue could ever be considered re- cordance with longstanding practice of solved. The potential volume of speculative the committee. Republicans reconsidered this nomina- relitigation under such circumstances alone As I consistently indicated, and as tion and sent it to the Senate on a ought to persuade us that stare decisis is a any chairman can explain, less con- straight, party-line vote. Never before sound policy. Secondly, we should give due troversial nominations are easier to had a President resubmitted a circuit consideration to the settled expectations of consider and are, by and large, able to court nominee already rejected by the litigants like Emmanuel Wasson, who have be scheduled sooner than more con- Senate Judiciary Committee, for the justifiably relied on the principles articu- troversial nominations. This is espe- same vacancy. And until Senator lated in [the previous case]. . . . Finally, under our form of government, the legit- cially important in the circumstances HATCH gave Justice Owen a second imacy of the judiciary rests in large part that existed at the time of the change hearing in 2003, never before had the upon a stable and predictable decision- in majority in 2001. At that time we Judiciary Committee rejected its own making process that differs dramatically faced what Republicans have now ad- decision on such a nominee and grant- from that properly employed by the political mitted had become a vacancy crisis in ed a second hearing. And at that sec- branches of government. the Federal courts. From January 1995, ond hearing we did not learn much According to the conservative major- when the Republican majority assumed more than the obvious fact that, given ity on the Texas Supreme Court, Jus- control of the confirmation process in some time, Justice Owen was able to tice Owen went out of her way to ig- the Senate, until the shift in majority, enlist the help of the talented lawyers nore precedent and would have ruled vacancies rose from 65 to 110 and va- working at the White House and the for the defendants. The conservative cancies on the courts of appeals more Department of Justice to come up with Republican majority, in contrast to than doubled from 16 to 33. I thought it some new justifications for her record Justice Owen, followed precedent and important to make as much progress as of activism. We learned that given six the doctrine of stare decisis. A clear quickly as we could in the time avail- months to reconsider the severe criti- example of Justice Owen’s judicial ac- able to us that year, and we did. In cism directed at her by her Republican tivism. fact, through the end of President colleagues, she still admitted no error. In Montgomery Independent School Bush’s first term, we saw those 110 va- Mostly, we learned that the objections District v. Davis, 34 S.W. 3d 559, Tex. cancies plummet to 27, the lowest va- expressed originally by the Democrats 2000, Justice Owen wrote another dis- cancy rate since the Reagan adminis- on the Judiciary Committee were sin- sent which drew fire from a conserv- tration. cerely held when they were made, and ative Republican majority—this time The responsibility to advise and con- no less valid after a second hearing. for her disregard for legislative lan- sent on the President’s nominees is one Nothing Justice Owen said about her guage. In a challenge by a teacher who that I take seriously and that the Judi- record—indeed, nothing anyone else did not receive reappointment to her ciary Committee takes seriously. Jus- tried to explain about her record—was position, the majority found that the tice Owen’s nomination to the court of able to actually change her record. school board had exceeded its author- appeals has been given a fair hearing That was true then, and that is true ity when it disregarded the Texas Edu- and a fair process before the Judiciary today. cation Code and tried to overrule a Committee. I thank all members of the Senators who opposed this nomina- hearing examiner’s decision on the committee for being fair. Those who tion did so because Priscilla Owen’s matter. Justice Owen’s dissent advo- had concerns had the opportunity to record shows her to be an ends-oriented cated for an interpretation contrary to raise them and heard the nominee’s re- activist judge. I have previously ex- the language of the applicable statute. sponse, in private meetings, at her pub- plained my conclusions about Justice The majority, which included Alberto lic hearing and in written follow-up Owen’s record, but I will summarize Gonzales and two other appointees of questions. my objections again today. then-Governor Bush, was quite explicit

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.110 S18PT1 S5428 CONGRESSIONAL RECORD — SENATE May 18, 2005 about its view that Justice Owen’s po- nore the legislative limits on our jurisdic- section (b), which limits courts’ en- sition disregarded the law: tion, and not even Petitioners argue that we croachment on its legislatively estab- should do so on this basis. The dissenting opinion misconceives the lished policy decisions.’’ The dissent hearing examiner’s role in the . . . process by Again, Justice Owen joined a dissent further protests: stating that the hearing examiner ‘refused’ that the Republican majority described [b]ut if this Court has the power to broaden to make findings on the evidence the Board as defiant of legislative intent and in by judicial rule the categories of information relies on to support its additional findings. disregard of legislatively drawn limits. that are ‘‘confidential under other law,’’ As we explained above, nothing in the stat- Yet another clear example of Justice then subsection (b) is eviscerated from the ute requires the hearing examiner to make Owen’s judicial activism. statute. By determining what information findings on matters of which he is falls outside subsection (a)’s scope, this unpersuaded. . . . Some of the most striking examples Court may evade the mandates of subsection of criticism of Justice Owen’s writings, The majority also noted that: (b) and order information withheld whenever or the dissents and concurrences she it sees fit. This not only contradicts the spir- The dissenting opinion’s misconception of joins, come in a series of parental noti- it and language of subsection (b), it guts it. the hearing examiner’s role stems from its disregard of the procedural elements the fication cases heard in 2000. They in- Finally, the opinion concluded by as- Legislature established in subchapter F to clude: serting that Justice Owen’s interpreta- ensure that the hearing-examiner process is In In re Jane Doe 1, 19 S.W.3d 346, Tex. tion, ‘‘abandons strict construction fair and efficient for both teachers and 2000, where the majority included an and rewrites the statute to eliminate school boards. The Legislature maintained extremely unusual section explaining subsection (b)’s restrictions.’’ local control by giving school boards alone its view of the proper role of judges, ad- Yet again, her colleagues on the the option to choose the hearing-examiner monishing the dissent, joined by Jus- Texas court, citing Justice Owen’s ju- process in nonrenewal proceedings. . . . By tice Owen, for going beyond its duty to dicial activism. resolving conflicts in disputed evidence, ig- interpret the law in an attempt to These examples, together with the noring credibility issues, and essentially fashion policy. unusually harsh language directed at stepping into the shoes of the factfinder to Justice Owen’s position by the major- reach a specific result, the dissenting opin- Giving a pointed critique of the dis- ion not only disregards the procedural limi- senters, the majority explained that, ity in the Doe cases, show a judge out tations in the statute but takes a position ‘‘In reaching the decision to grant Jane of step with the conservative Repub- even more extreme than that argued for by Doe’s application, we have put aside lican majority of the Texas Supreme the board. our personal viewpoints and endeav- Court, a majority not afraid to explain Another clear example of Justice ored to do our job as judges—that is, to the danger of her activist views. Owen’s judicial activism. interpret and apply the Legislature’s I am also greatly concerned about Collins v. Ison-Newsome, 73 S.W.3d 178, will as it has been expressed in the Justice Owen’s record of ends-oriented Tex. 2001, is yet another case where a statute.’’ decision making as a Justice on the dissent, joined by Justice Owen, was In a separate concurrence, Justice Texas Supreme Court. As one reads roundly criticized by the Republican Alberto Gonzales wrote that to con- case after case, particularly those in majority of the Texas Supreme Court. strue the law as the dissent did, ‘‘would which she was the sole dissenter or dis- The Court cogently stated the legal be an unconscionable act of judicial ac- sented with the extreme right wing of basis for its conclusion that it had no tivism.’’ the Court, her pattern of activism be- jurisdiction to decide the matter before A conservative Republican colleague comes clear. Her legal views in so many cases involving statutory inter- it, and as in other opinions where Jus- of Justice Owen’s, pointing squarely to pretation simply cannot be reconciled tice Owen was in dissent, took time to her judicial activism. with the plain meaning of the statute, explicitly criticize the dissent’s posi- In In re Jane Doe 3, 19 S.W. 3d 300, the legislative intent, or the majority’s tions as contrary to the clear letter of Tex. 2000, Justice Enoch writes specifi- interpretation, leading to the conclu- the law. cally to rebuke Justice Owen and her sion that she sets out to justify some At issue was whether the Supreme follow dissenters for misconstruing the pre-conceived idea of what the law Court had the proper ‘‘conflicts juris- legislature’s definition of the sort of ought to mean. This is not an appro- diction’’ to hear the interlocutory ap- abuse that may occur when parents are priate way for a judge to make deci- peal of school officials being sued for notified of a minor’s intent to have an sions. This is a judge whose record re- defamation. The majority explained abortion, saying, ‘‘abuse is abuse; it is flects that she is willing and some- that it did not because published lower neither to be trifled with nor its sever- times eager to make law from the court decisions do not create the nec- ity to be second guessed.’’ bench. essary conflict between themselves. In one case that is perhaps the excep- Justice Owen’s activism and extre- The arguments put forth by the dis- tion that proves the rule, Justice Owen mism is noteworthy in a variety of sent, in which Justice Owen joined, of- wrote a majority that was bitterly cases, including those dealing with fended the majority, and they made criticized by the dissent for its activ- business interests, malpractice, access their views known, writing: ism. In In re City of Georgetown, 53 S.W. to public information, employment dis- The dissenting opinion agrees that ‘‘be- 3d 328, Tex. 2001, Justice Owen wrote a crimination and Texas Supreme Court cause this is an interlocutory appeal . . . this majority opinion finding that the city jurisdiction, in which she writes Court’s jurisdiction is limited,’’ but then ar- did not have to give the Austin Amer- against individual plaintiffs time and gues for the exact opposite proposition . . . ican-Statesman a report prepared by a This argument defies the Legislature’s clear time again, in seeming contradiction of consulting expert in connection with the law as written. and express limits on our jurisdiction. . . . pending and anticipated litigation be- The author of the dissenting opinion has One of the cases where this trend is written previously that we should take a cause such information was expressly evident is FM Properties v. City of Aus- broader approach to the conflicts-jurisdic- made confidential under other law tin, 22 S.W. 3d 868, Tex. 1998. I asked tion standard. But a majority of the Court namely, the Texas Rules of Civil Proce- Justice Owen about this 1998 environ- continues to abide by the Legislature’s clear dure. mental case at her hearing. In her dis- limits on our interlocutory-appeal jurisdic- The dissent is extremely critical of sent from a 6–3 ruling, in which Justice tion. Justice Owen’s opinion, citing the Alberto Gonzales was among the ma- They continue: Texas law’s strong preference for dis- jority, Justice Owen showed her will- [T]he dissenting opinion’s reading of Gov- closure and liberal construction. Ac- ingness to rule in favor of large private ernment Code sec. 22.225(c) conflates con- cusing her of activism, Justice Abbott, landowners against the clear public in- flicts jurisdiction with dissent jurisdiction, joined by Chief Justice Phillips and terest in maintaining a fair regulatory thereby erasing any distinction between Justice Baker, notes that the legisla- process and clean water. Her dissent, these two separate bases for jurisdiction. ture, ‘‘expressly identified eighteen which the majority characterized as The Legislature identified them as distinct categories of information that are ’pub- bases for jurisdiction in sections 22.001(a)(1) ‘‘nothing more than inflammatory and (a)(2), and section 22.225(c) refers specifi- lic information’ and that must be dis- rhetoric,’’ was an attempt to favor big cally to the two separate provisionsn of sec- closed upon request . . . [sec. (a)] The landowners. tion 22.001(a) providing for conflicts and dis- Legislature attempted to safeguard its In this case, the Texas Supreme sent jurisdiction. . . . [W]e cannot simply ig- policy of open records by adding sub- Court found that a section of the Texas

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.111 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5429 Water Code allowing certain private law to those facts, Justice Owen wrote The majority upheld a decision giving owners of large tracts of land to create a concurring opinion to explain her dif- the newspaper access to a document ‘‘water quality zones,’’ and write their ference of opinion on the key legal outlining the reasons why the city’s fi- own water quality regulations and issue in the case—whether the behavior nance director was going to be fired. plans, violated the Texas Constitution in evidence met the legal standard for Justice Owen made two arguments: because it improperly delegated legis- intentional infliction of emotional dis- that because the document was consid- lative power to private entities. The tress. ered a draft it was not subject to dis- Justice Owen contended that the con- Court found that the Water Code sec- closure, and that the document was ex- duct was not, as the standard requires, tion gave the private landowners, ‘‘leg- empt from disclosure because it was ‘‘so outrageous in character, and so ex- islative duties and powers, the exercise part of policy making. Both of these of which may adversely affect public treme in degree, as to go beyond all exceptions were so large as to swallow interests, including the constitu- possible bounds of decency...’’ The the rule requiring disclosure. The ma- tionally-protected public interest in majority opinion shows Justice Owen’s water quality.’’ The Court also found concurrence advocating an inexplicable jority rightly points out that if Justice that certain aspects of the Code and point of view that ignores the facts in Owen’s views prevailed, almost any the factors surrounding its implemen- evidence in order to reach a predeter- document could be labeled draft to tation weighed against the delegation mined outcome in the corporation’s shield it from public view. Moreover, to of power, including the lack of mean- favor. call a personnel decision a part of pol- ingful government review, the lack of Justice Owen’s recitation of facts in icy making is such an expansive inter- adequate representation of citizens af- her concurrence significantly mini- pretation it would leave little that fected by the private owners’ actions, mizes the evidence as presented by the would not be ‘‘policy.’’ the breadth of the delegation, and the majority. Among the kinds of behavior Quantum Chemical v. Toennies, 47 S.W. big landowners’ obvious interest in to which the employees were sub- 3d 473, Tex. 2001, is another troubling maximizing their own profits and mini- jected—according to the majority opin- case where Justice Owen joined a dis- mizing their own costs. ion—are: Upon his arrival the super- sent advocating an activist interpreta- The majority offered a strong opin- visor, ‘‘began regularly using the tion of a clearly written statute. In ion, detailing its legal reasoning and harshest vulgarity . . . continued to this age discrimination suit brought explaining the dangers of offering too use the word ‘‘f——’’ under the Texas civil rights statute, much legislative power to private enti- and ‘‘motherf——r’’ frequently when ties. By contrast, in her dissent, Jus- speaking with the employees . . . re- the relevant parts of which were mod- tice Owen argued that, ‘‘[w]hile the peatedly physically and verbally eled on Title VII of the federal Civil Constitution certainly permits the threatened and terrorized them... Rights Act—and its amendments—the Legislature to enact laws that preserve would frequently assault each of the appeal to the Texas Supreme Court and conserve the State’s natural re- employees by physically charging at centered on the standard of causation sources, there is nothing in the Con- them . . . come up fast . . . and get up necessary for a finding for the plaintiff. stitution that requires the Legislature over (the employee) . . . and yell and The plaintiff argued, and the five jus- to exercise that power in any par- scream in her face . . . called (an em- tices in the majority agreed, that the ticular manner,’’ ignoring entirely the ployee) into his office every day and plain meaning of the statute must be possibility of an unconstitutional dele- . . . have her stand in front of him, followed, and that the plaintiff could gation of power. Her view strongly fa- sometimes for as long as thirty min- prove an unlawful employment prac- vored large business interests to the utes, while (the supervisor) simply tice by showing that discrimination clear detriment of the public interest, stared at her . . . made (an employee) was ‘‘a motivating factor.’’ The em- and against the persuasive legal argu- get on her hands and knees and clean ployer corporation argued, and Jus- ments of a majority of the Court. the spots (on the carpet) while he stood tices Hecht and Owen agreed, that the When I asked her about this case at over her yelling.’’ Justice Owen did not plain meaning could be discarded in her hearing, I found her answer per- believe that such conduct was out- favor of a more tortured and unneces- plexing. In a way that she did not rageous or outside the bounds of de- sary reading of the statute, and that argue in her written dissent, at her cency under state law. the plaintiff must show that discrimi- hearing Justice Owen attempted to At her hearing, in answer to Senator nation was ‘‘the motivating factor,’’ in cast the FM Properties case not as, ‘‘a Edwards’s questions about this case, order to recover damages. fight between and City of Austin and Justice Owen again gave an expla- big business, but in all honesty, . . . nation not to be found in her written The portion of Title VII on which the really a fight about . . . the State of views. She told him that she agreed majority relies for its interpretation Texas versus the City of Austin.’’ In with the majority’s holding, and wrote was part of Congress’s 1991 fix to the the written dissent however, she began separately only to make sure that fu- United States Supreme Court’s opinion by stating the, ‘‘importance of this ture litigants would not be confused in the Price Waterhouse case, which case to private property rights and the and think that out of context, any one held that an employer could avoid li- separation of powers between the judi- of the outrages suffered by the plain- ability if the plaintiff could not show cial and legislative branches . . .’’, and tiffs would not support a judgment. discrimination was ‘‘the’’ motivating went on to decry the Court’s decision Looking again at her dissent, I do not factor. Congress’s fix, in Section 107 of as one that, ‘‘will impair all manner of see why, if that was what she truly in- the Civil Rights Act of 1991, does not property rights.’’ 22 S.W. 3d at 889. At tended, she did not say so in language specify whether the motivating factor the time she wrote her dissent, Justice plain enough to be understood, or why standard applies to both sorts of dis- Owen was certainly clear about the she thought it necessary to write and crimination cases, the so-called ‘‘mixed meaning of this case—property rights say it in the first place. It is a some- motive’’ cases as well as the ‘‘pretext’’ for corporations. what curious distinction to make—to cases. Another case that concerned me is advocate that in a tort case a judge The Texas majority concluded that GTE Southwest, Inc. v. Bruce, 990 S.W.2d should write a separate concurrence to they must rely on the plain language of 605, where Justice Owen wrote in favor explain which part of the plaintiff’s of GTE in a lawsuit by employees for case, standing alone, would not support the statute as amended, which could intentional infliction of emotional dis- a finding of liability. Neither her writ- not be any clearer that under Title VII tress. The rest of the Court held that ten concurrence, nor her answers in ex- discrimination can be shown to be ‘‘a’’ three employees subjected to what the planation after the fact, is satisfactory motivating factor. Justice Owen joined majority characterized as ‘‘constant explanation of her position in this case. Justice Hecht in claiming that federal humiliating and abusive behavior of In City of Garland v. Dallas Morning case law is clear (in favor of their their supervisor’’ were entitled to the News, 22 S.W. 3d 351, Tex. 2000, Justice view), and opted for a reading of the jury verdict in their favor. Despite the Owen dissented from a majority opin- statute that would turn it into its Court’s recitation of an exhaustive list ion and, again, it is difficult to justify polar opposite, forcing plaintiffs into of sickening behavior by the super- her views other than as being based on just the situation legislators were try- visor, and its clear application of Texas a desire to reach a particular outcome. ing to avoid. This example of Justice

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.113 S18PT1 S5430 CONGRESSIONAL RECORD — SENATE May 18, 2005 Owen’s desire to change the law from only mention of religion comes in a was ‘‘nothing more than inflammatory the bench, instead of interpret it, fits quotation meant to explain why the rhetoric.’’ They explained why her President Bush’s definition of activism parents of the minor are due notifica- legal objections were mistaken, saying to a ‘‘T’’. tion, not about the contours of what that no matter what the state legisla- Justice Owen has also demonstrated the government may require someone ture had the power to do on its own, it her tendency toward ends-oriented de- to prove to show she was fully well in- was simply unconstitutional to give cision making quite clearly in a series formed. Her reliance on Matheson for the big landowners the power they of dissents and concurrences in cases her proposed rewrite of the law is just were given. No talk of the City of Aus- involving a Texas law providing for a as faulty as her reliance on Casey. Nei- tin v. the State of Texas. Just the judicial bypass of parental notification ther one supports her reading of the facts. requirements for minors seeking abor- law. She simply tries a little bit of Likewise, the few explanations of- tions. legal smoke and mirrors to make it ap- fered for the many other examples of The most striking example is Justice pear as if they did. This is the sort of the times her Republican colleagues Owen’s expression of disagreement ends-oriented decision making that de- criticized her were unavailing. The tor- with the majority’s decision on key stroys the belief of a citizen in a fair tured reading of Justice Gonzales’ re- legal issues in Doe 1. She strongly dis- legal system. And most troubling of all marks in the Doe case were uncon- agreed with the majority’s holding on was her indication to Senator FEIN- vincing. He clearly said that to con- what a minor would have to show in STEIN that she still views her dissents strue the law in the way that Justice order to establish that she was, as the in the Doe cases as the proper reading Owen’s dissent construed the law would statute requires, ‘‘sufficiently well in- and construction of the Texas statute. be activism. Any other interpretation formed’’ to make the decision on her At her second, unprecedented hearing is just not credible. own. While the conservative Repub- in 2003, Justice Owen and her defenders And no reasons were offered for why lican majority laid out a well-reasoned tried hard to recast her record and oth- her then-colleague, now ours, Justice test for this element of the law, based ers’ criticism of it. I went to that hear- Cornyn, thought it necessary to ex- on the plain meaning of the statute ing, I listened to her testimony, and I plain the principle of stare decisis to and well-cited case law, Justice Owen read her written answers, many newly her in his opinion in Weiner v. Wasson. inserted elements found in neither au- formulated, that attempt to explain Or why in Montgomery Independent thority. Specifically, Justice Owen in- away her very disturbing opinions in School District v. Davis, the majority sisted that the majority’s requirement the Texas parental notification cases. criticized her for her disregard for leg- that the minor be ‘‘aware of the emo- But her record is still her record, and islative language, saying that, ‘‘the tional and psychological aspects of un- the record is clear. She did not satis- dissenting opinion misconceives the dergoing an abortion’’ was not suffi- factorily explain why she infused the hearing examiner’s role in the . . . cient and that among other require- words of the Texas legislature with so process,’’ which it said stemmed from, ments with no basis in the law, she, much more meaning than she can be ‘‘its disregard of the procedural ele- ‘‘would require . . . [that the minor] sure they intended. She adequately de- ments the Legislature established . . . should . . . indicate to the court that scribes the precedents of the Supreme to ensure that the hearing-examiner she is aware of and has considered that Court of the United States, to be sure, process is fair and efficient for both there are philosophic, social, moral, but she simply did not justify the leaps teachers and school boards.’’ Or why, in and religious arguments that can be in logic and plain meaning she at- Collins v. Ison-Newsome, a dissent brought to bear when considering abor- tempted in those decisions. joined by Justice Owen was so roundly tion.’’ In re Jane Doe 1, 19 S.W.3d 249, I read her responses to Senator criticized by the Republican majority, 256, Tex. 2000. HATCH’s remarks at that second hear- which said the dissent agrees with one In her written concurrence, Justice ing, where he attempted to explain proposition but then ‘‘argues for the Owen indicated, through legal citation, away cases about which I had expressed exact opposite proposition . . . that support for this proposition could concern at her first hearing. For exam- [defying] the Legislature’s clear and be found in a particular page of the Su- ple, I heard him explain the opinion she express limits on our jurisdiction.’’ preme Court’s opinion in Planned Par- wrote in F.M. Properties v. City of I have said it before, but I am forced enthood v. Casey. However, when one Austin. I read how he recharacterized to say it again. These examples, to- looks at that portion of the Casey deci- the dispute in an effort to make it gether with the unusually harsh lan- sion, one finds no mention of requiring sound innocuous, just a struggle be- guage directed at Justice Owen’s posi- a minor to acknowledge religious or tween two jurisdictions over some un- tion by the majority in the Doe cases, moral arguments. The passage talks in- important regulations. I know how, show a judge out of step with the con- stead about the ability of a State to through a choreographed exchange of servative Republican majority of the ‘‘enact rules and regulations designed leading questions and short answers, Texas Supreme Court, a majority not to encourage her to know that there they tried to respond to my question afraid to explain the danger of her ac- are philosophic and social arguments of from the original hearing, which was tivist views. No good explanation was great weight that can be brought to never really answered, about why Jus- offered for these critical statements bear.’’ Justice Owen’s reliance on this tice Owen thought it was proper for the last year, and no good explanation was portion of a United States Supreme legislature to grant large corporate offered two weeks ago. Politically mo- Court opinion to rewrite Texas law was landowners the power to regulate tivated rationalizations do not negate simply wrong. themselves. I remained unconvinced. the plain language used to describe her As she did in answer to questions The majority in this case, which invali- activism at the time. about a couple of other cases at her dated a state statute favoring corpora- When he nominated Priscilla Owen, hearing, Justice Owen tried to explain tions, did not describe the case or the President Bush said that his standard away this problem with an after-the- issues as Senator HATCH and Justice for judging judicial nominees would be fact justification. She told Senator Owen did. A fair reading of the case that they ‘‘share a commitment to fol- CANTWELL that the reference to reli- shows no evidence of a struggle below and apply the law, not to make law gion was not to be found in Casey after tween governments. This is all an at- from the bench.’’ He said he is against all, but in another U.S. Supreme Court tempt at after-the-fact, revisionist jus- judicial activism. Yet he has appointed case, H.L. v. Matheson. She explained tification where there really is none to judicial activists like Priscilla Owen that in ‘‘Matheson they talk about be found. and Janice Rogers Brown. that for some people it raises profound Justice Owen and Chairman HATCH’s Under President Bush’s own stand- moral and religious concerns, and explanation of the case also lacked ards, Justice Owen’s record of ends-ori- they’re talking about the desirability even the weakest effort at rebutting ented judicial activism does not qual- or the State’s interest in these kinds of the criticism of her by the F.M. Prop- ify her for a lifetime appointment to considerations in making an informed erties majority. In its opinion, the six the Federal bench. decision.’’ Transcript at 172. But again, justice majority said, and I am The President has often spoken of ju- on reading Matheson, one sees that the quoting, that Justice Owen’s dissent dicial activism without acknowledging

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.114 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5431 that ends-oriented decision-making not come to this point in time. I between a man and a woman—an ap- can come easily to extreme ideological lieve the majority leader, although ma- pointed judge deciding for the rest of nominees. In the case of Priscilla ligned today on the floor, has made a us—it could very well decide for all 50 Owen, we see a perfect example of such great and honest effort to work a com- States—whether or not we are going to an approach to the law, and I cannot promise in the matter before us. recognize marriage as between a man support it. The oath taken by federal I also believe what has happened in and a woman. We have heard Priscilla judges affirms their commitment to the past in terms of judges not coming Owen’s name linked several times be- ‘‘administer justice without respect to out of committee probably has been in- cause of her decisions—there were 13 or persons, and do equal right to the poor appropriate. That is not a partisan 14 decisions that came before the Texas and to the rich.’’ No one who enters a issue either. It has happened on both Supreme Court on judicial review of a federal courtroom should have to won- sides. As a matter of fact, there are ap- minor’s access to an abortion without der whether he or she will be fairly pellate judges now being held up by parental notification—not consent, but heard by the judge. Democratic Senators because they dis- notification. Justice Priscilla Owen’s record of ju- agree on their nomination to come In the one case that they bring up dicial activism and ends-oriented deci- through the Judiciary Committee. and misquote Attorney General sion making leaves me with grave As a member of the committee and a Gonzales on, she in fact did what the doubt about her ability to be a fair nonlawyer on the Judiciary Com- law said to do. The federal appellate judge. The President says he opposes mittee, it is becoming plain to me to court is not entitled, nor is the Su- putting judicial activists on the Fed- see the importance of the procedure preme Court of Texas, to review the eral bench, yet Justice Priscilla Owen within the committee. findings of fact. The finder of fact is the original court. They cannot make unquestionably is a judicial activist. I Having said that, the Constitution decisions on that. So she dissented on cannot vote to confirm her for this ap- gives the right to the President to ap- that basis. Judge Gonzales’ statement pointment to one of the highest courts point, under the advice and consent of was about whether or not he could go in the land. the Senate. The debate is about wheth- along with that in terms of what would The PRESIDING OFFICER. The Sen- er we will take a vote. be applied to him in terms of judicial ator from Oklahoma. President Bush’s appellate court activism. He has since said under oath Mr. COBURN. Mr. President, what is nominees have the lowest acceptance that in no way, or at any time, did he the matter pending before the Senate rate of any of the last four Presidents. accuse Priscilla Owen of being a judi- at this time? Is that because the nominees are ex- The PRESIDING OFFICER. The treme? Or is there some other reason cial activist. Let’s talk about activism. I want to nomination of Priscilla Owen. why we are in this mess that we find relate a story that happened to me Mr. COBURN. I thank the Chair. ourselves in? I really believe it is about about 6 years ago. I was in Stigler, OK, Mr. President, I would like to spend a the question: where do Supreme Court having a townhall meeting. A father few minutes talking about what we judges come from? They come from the walked in, 35 years of age, with tears have heard on the Senate floor today. appellate courts most often. And running down his cheek. In his hand, he The Presiding Officer and I are new whether or not we allow people—good, had a brown paper sack, and he inter- Members to the Senate. We were not honest people—to put their names for- rupted this meeting between me and here as this struggle began. I must say, ward and come before this body and about 60 people. His question to me I am pretty deeply saddened by the have true advice and consent is a ques- was: ‘‘Dr. Coburn, how is it that this misstatements of fact, the innuendo, tion we are going to have to solve in sack could be given to my 12-year old the half-truths we have heard on the the next couple of weeks. daughter?’’ Of course, I didn’t know Senate floor today. I also am somewhat There are lots of ways of solving it. what was in the sack. What was in the saddened by the fact that the Constitu- One is doing what Senator BYRD did sack was birth control pills, condoms, tion is spoken about in such light four times in his history as leader of and spermicide. The very fact that his terms. Because what the Constitution this body—a change in the rules by ma- daughter could be treated in a clinic says is that, in fact, the Senate sets its jority vote because the majority has without his permission for contracep- own rules and the Senate can change the majority. That is not a constitu- tives came about through judicial ac- its own rules. The first 100 years in this tional option; that is a Byrd option. tivism. The fact is that 80 to 85 percent body, there was not a filibuster, and That is an option vested in the power of the people in this country find that that filibuster has gone through mul- of the Senate under the Constitution to wrong. Yet, it cannot be turned around. tiple changes during the course of Sen- control the rules of the Senate. The fact is that 80 percent of the people ate history. Another little bit of history. Twenty- in this country believe that marriage is I pride myself on not being partisan five years ago, the filibuster was elimi- defined as that union between a man on either the Democratic or the Repub- nated on the Budget and Reconcili- and a woman, and a Federal judge—not lican side. I am a partisan for ideas, for ation Act. The Congress didn’t fall looking at the Constitution—not look- freedom, for liberty. I am also a par- apart. Under Senator BYRD’s changes ing at precedent, actually makes that tisan for truth. I believe, as we shave of the rules, the Senate did not fall change. that truth, we do a disservice not only apart. So the issue really is about So it is a battle about ideas. Priscilla to this body, but we also do a dis- whether or not the majority has the Owen recognizes what the law is. She service to the country. power to control the rules in the Sen- has stated uniformly that she will fol- Another principle I am trying to live ate. And the debate also is about low the precedents set before the court. by is the principle of reconciliation. As whether or not we are going to have an But we have gotten to where we are in we go forward in this debate, it is im- up or down, a fair vote on judges—just terms of the issues that inflame and in- portant for the American people to like we should have a debate on wheth- sight so much polarization in this body truly understand what the history is in er we should have a process change in and throughout the country because we this debate. At the beginning of the the Judiciary Committee for those have not had people following the law, Congress, the majority, whether it be judges who are appointed by any Presi- but in fact we have had judicial activ- Democrat or Republican in any Con- dent to come through. ism. gress, whoever is in control, has a right I said in my campaign for this office I congratulate President Bush for to set up the rules. that conservative and liberal wasn’t a sending these nominees to the Senate Those rules were set up in this Con- test for me for judges. The foundation floor. I have interviewed Priscilla gress with one provision—that an ex- and principles of our country, and Owen. Her history, her recommenda- ception be made on the very issue we proof of excellence in the study of and tions, her ratings are far in excess of are talking about today. Why was that acting on the law should be the re- superior. So why would this wonderful exception put there? That exception quirements. We had the unfortunate woman, who has dedicated her life to was put there in an attempt to work example today—this week—of a Fed- the less fortunate, to families, to re- out the differences over the things that eral judge in Nebraska negating a mar- instituting and strengthening mar- have happened in the past so we would riage law that defined marriage as be- riage, to making sure people who didn’t

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.115 S18PT1 S5432 CONGRESSIONAL RECORD — SENATE May 18, 2005 have legal aid had it, why is she being strong to continue to take the abuse er or not a minor child ought to have so lambasted, so maligned because of and maligning language that comes her parental involvement in a major proce- her beliefs? The beliefs she has are way. Why would somebody do that? It dure such as an abortion. what 80 percent of the people in this is because she believes in this country. Having delivered over 4,000 babies, country have, but she doesn’t fit with She believes in the foundational prin- having handled every complication of the beliefs of the elite liberal sect in ciples that our colleague from New pregnancy that is known, I am very fa- this country. York held up in the Constitution. She miliar with these issues. So it is a battle of ideas. It is a battle has sworn and believes in that Con- that will shape the future of our stitution. She has the courage to know There are five polls I would like to courts. How is it that a woman of such that the fight for our children, for our put in the RECORD. I ask unanimous stature will have the strength to with- parents to control the future for our consent that they be printed in the stand for 4 years—she has put every- children, is worth the fight. RECORD. thing about her, every aspect of her I would like to spend a minute going There being no objection, the mate- personal life, her public life, her judi- over some poll numbers with the Amer- rial was ordered to be printed in the cial career out front and has stood ican public on the very issue of wheth- RECORD, as follows: POLLS ON REQUIRING PARENTAL INVOLVEMENT IN MINORS’ ABORTIONS [March 23, 2005]

Favor Oppose Polls (percent) (percent)

‘‘Do you favor or oppose requiring parental notification before a minor could get an abortion?’’ Favor: 75%; Oppose: 18%; DK/NA 7%. (Quinnipiac University Poll, March 2–7, 2005.) (1,534 registered voters; margin of error: ±2.5%) ...... 75 18 ‘‘Next, do you favor or oppose each of the following proposals? How about— . . . A law requiring women under 18 to get parental consent for any abortion?’’ Favor: 73%; Oppose: 24%; No Opinion: 3%. (CNN/USA Today/Gallup, January 10–12, 2003.) (1,002 adults; margin of error: ±3%) ...... 73 24 ‘‘Do you favor or oppose requiring that one parent of a girl who is under 18 years of age be notified before an abortion is performed on the girl?’’ Favor: 83%; Oppose: 15%; Don’t Know/Refused: 2%. (Wirthlin Worldwide, October 19–22, 2001.) (1,021 adults; margin of error: ±3.07%) ...... 83 15 ‘‘Should girls under the age of 18 be required to get the consent of at least one parent before having an abortion?’’ Required: All—82%; Men—85%; Women—80%. Not Required: All—12%; Men—9%; Women—14%. Depends: All—2%; Men—2%; Women—2%. Don’t Know: All—4%; Men—4%; Women—4%. (Los Angeles Times, June 8–13, 2000.) (2,071 adults; margin of error: ±2%) ...... 82 12 ‘‘Would you favor or oppose requiring parental consent before a girl under 18 could have an abortion? Favor: 78%; Oppose: 17%; DK/NA/Depends: 5%. (CBS News/NY Times, January 1998.) ...... 78 17

Mr. COBURN. One is a March 2–7, law and creating something that was floor. But it is fair for a President to 2005, poll from Quinnipiac University: not there before. Activism is inten- have a vote on their nominations. Do you favor or oppose requiring parental tionally misinterpreting statutes to We have seen this President’s num- notification before a minor could get an produce a political gain. I will go back bers on appointments. That is right. abortion? to the child and the father, 35 years of Why has he had so many people ap- That is notification. Seventy-five age, screaming at the depths of his pointed? Because he has nominated percent of the people in this country heartache as to how in our country we great jurists, and could they have fili- agree with that. It is not an extreme have gotten to the point where a judge bustered others, they would have. The position when 75 percent of our fellow can decide ahead of the Senate, ahead ironic part is that they say that Pris- Americans think that is right—think of the House, ahead of both bodies and cilla Owen is ‘‘not qualified.’’ However, that in fact we don’t give up rights to the President, what will happen to our in the negotiations leading up to the our children until they are emanci- minor children. That is what this de- pated and are adults. point we find ourselves, the offer has bate is about. been made that we can pick two out of Next, do you favor or oppose each of the following proposals: A law requiring women Priscilla Owen exemplifies the values any four of the people who are on the under 18 to get parental consent for any that the American people hold, but she queue to come before this body and let abortion? also exemplifies the values of the those two go through and two be That is not notification, that is con- greatest jurists of our time: a strict ad- thrown away. If that is the case, if any sent. That is a CNN/USA Today/Gallup herence to the law, a love of the law, two will do, then they are obviously poll, January 10, 2003. and a willingness to sacrifice her life qualified. If they are acceptable under Seventy-three percent favor parents and her career and her personal reputa- a deal, then they are obviously quali- being involved in the health care of tion to go through this process. fied. their children and major decisions that Senator ENSIGN, the Senator from The argument against qualification, will affect their future. Nevada, made a very good point a mo- the activist charges do not hold water. Do you favor or oppose requiring that one ment ago, and I think it bears repeat- What does hold water is the fact that parent of a girl who is under 18 years of age ing. How many people will not put these individuals who stand in the be notified before an abortion is performed their name up in the future who are on the girl? mainstream of American thought, val- eminently qualified, have great judi- ues, and ideals will be appellate judges Eighty-three percent favor the par- cial history, will have great rec- and that someday maybe have an ap- ent being notified. That is a Wirthlin ommendations from the American Bar pointment or a nomination for a Su- Worldwide poll. Association but do not want to have to preme Court judgeship. That holds Should girls under the age of 18 be required go through the half-truths, the innu- water. We have to decide in the Senate to get the consent of at least one parent be- endos, and the slurring of character fore having an abortion? whether or not we are going to allow that occurs, to come before this body? That is a Los Angeles Times poll. the process of filibustering judicial Eighty-two percent believe that. My hope is that before we come to nominations to continue. If it con- What is described as extreme is the Byrd option or a change in the tinues, then lots of good people will mainline to the American public. What rules, that cooler heads will decide never put their name in the hat. Lots we have is a battle for ideas, a battle that we will not filibuster judges in the of good people will never be on the under which the future of our country future, and we will not block nomina- court. What will be on the court are will follow. tions at the committee. That is reason- people who are not proven, people who The word ‘‘activist’’ in reference to able. We do not have to do that. A do not have a record, people who are judges is a word that is wildly used. It President should have his nominees not the best. That is what will be on is almost amusing that we hear it from voted on. If they come to the com- the court. The country deserves better, one side of the Senate to the other side mittee and they do not have a rec- the Senate can do a better job than we of the Senate. What is activism on one ommendation, they should still come are doing today, and it is my hope that side is not activism on the other. What to the floor, or if they have a rec- we can resolve this conflict in a way is activism to the minority is not ac- ommendation they not be approved, that will create in the Senate a reputa- tivism to the majority. they should still come to the floor, or tion that says reconciliation over the What is activism? Activism is reach- if they have a recommendation they be issues that divide us is a principle that ing into the law and the precedents of approved, they should still come to the we can all work on, that we can solve,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.117 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5433 that we can do the work of the Amer- ceutical—including counterfeits and law enforcement officials are already ican people. But if that is not possible, potentially dangerous narcotics. This struggling to combat on a daily basis. then it is well within the constitu- is particularly concerning given the Why would we elect to open the door to tional powers of the leader of this body growing ease at which prescription importation when we know that doing to change the rules so that we can drugs can be purchased over the Inter- so will create infinite opportunities to carry out our constitutional respon- net. compromise the safety of our drug sup- sibilities. At the heart of the debate on foreign ply? Mr. President, I yield the floor and importation of prescription drugs is As we continue to debate the best suggest the absence of a quorum. the concern over the cost of prescrip- ways to ensure that Americans have The PRESIDING OFFICER. The tion drugs. Often proponents claim access to the highest quality, afford- clerk will call the roll. that importation would allow Ameri- able prescription drugs, I would cau- The legislative clerk proceeded to cans access to other countries’ drugs at tion my colleagues that importation is call the roll. a cheaper price, despite thorough anal- not the answer. It would be uncon- Mr. FRIST. Mr. President, I ask ysis by the U.S. Health and Human scionable to facilitate in any way the unanimous consent the order for the Services Task Force on Prescription dangerous shortcuts utilized in the quorum call be rescinded. Drug Importation. The HHS Task Philadelphia drug scam—shortcuts THE PRESIDING OFFICER. Without Force reported that any associated that circumvent the essential ongoing objection, it is so ordered. cost savings with importation would be patient relationship with physicians f negated by the costs associated with and other licensed professionals constructing and attempting to safely trained to monitor potential medica- MORNING BUSINESS maintain such a system, and ulti- tion interactions and side effects that Mr. FRIST. Mr. President, I ask mately concluded what both past and can lead to serious injury and/or death. unanimous consent that there now be a current Administrations have found: Congress should uphold the strong period of morning business, with Sen- the safety of imported drugs purchased regulatory standards on drug safety ators permitted to speak for up to 10 by individuals, via the Internet or that exist today, and not open our bor- minutes each. other means, cannot be guaranteed. ders to prescription drugs from a world The PRESIDING OFFICER. Without Moreover, generic prescription drugs in of unknown sources. objection, it is so ordered. America are on average 50 percent less f f than their foreign counterparts. This VICARIOUS LIABILITY REFORM holds true in the case of the ‘‘Bansal HEALTH CARE Organization,’’ in which the vast ma- Mr. SANTORUM. Mr. President, Mr. SANTORUM. Mr. President, at a jority of the trafficked drugs were sold being mindful of yesterday’s passage of time when the importance of the U.S. at prices higher than what a consumer SAFETEA, I rise to speak to an issue that was not addressed in the Senate Food and Drug Administration is high- would have paid at a legitimate phar- bill. This is an area of the legal system lighted by concerns over the safety of macy. The safety of the American drug needing reform that affects interstate pharmaceuticals, it would be foolish to supply should not be sacrificed for sup- commerce in the transportation sec- move forward with importation poli- posed savings. Those that continue to tor—vicarious liability. These types of cies that would circumvent the safety purport that importation would pro- laws exist in only a handful of States regulations of the FDA. I want to take vide cheaper drugs are misleading the where nonnegligent owners of rented this opportunity to highlight a recent American people, and as a result put- and leased vehicles are liable for the international Internet pharma-traf- ting their health and lives at risk. actions of vehicle operators. ficking network that was shut down in Importation will not equate to cheap- Although a vehicle renting or leasing Philadelphia, which I strongly believe er drugs for Americans, but it will lead company may take every precaution to provides a very accurate, and dis- to an explosion of opportunities for ensure that a vehicle is in optimal op- turbing, window on what exactly a pre- counterfeiters to take advantage of the erating condition and meets every safe- scription drug importation scheme American people by compromising the ty standard, these companies can still would mean for Americans. safety of our drug supply. Many indi- be subject to costly lawsuits due to the On April 20, 2005, the Department of viduals, both patients and healthcare actions of the vehicle’s operator, over Justice announced the unsealing of an professionals, who testified during the which the company has no control. indictment returned by a Federal HHS Task Force’s proceedings ex- Under these laws, leasing or rental grand jury on April 6, 2005. The indict- pressed significant concerns that im- companies can be liable simply because ment chronicled how the ‘‘Bansal Orga- portation would compromise the integ- they are the owner of the vehicle. nization’’ used the Internet to fill or- rity of the American drug supply by Though only a few States enforce ders for pharmaceuticals. In turn, this creating a vehicle through which ter- laws that threaten nonnegligent com- crime ring facilitated millions of un- rorists could easily introduce harmful panies with unlimited vicarious liabil- prescribed pills coming into the United agents in the United States. Recall ity, they affect consumers and busi- States—of which the bio-efficacy and that in 1982, seven Americans died after nesses from all 50 States. Vicarious li- the safety have yet to be determined— ingesting Tylenol laced with cyanide. ability means higher consumer costs in to consumers who only needed a credit More recently, in July 2003 members of acquiring vehicles and buying insur- card. These drugs included potentially a Florida-based drug-counterfeiting ance and means higher commercial dangerous narcotics, such as codine ring who sold and diluted counterfeited costs for the transportation of goods. and Valium, drugs that can cause seri- drugs were indicted, and 18 million tab- Left unreformed, these laws could have ous harm if not taken under a physi- lets of counterfeit Lipitor were re- a devastating, effect on an increasing cian’s supervision, and which have been called after evidence revealed that this number of small businesses that have highlighted repeatedly as drugs that popular anti-cholesterol drug had been done nothing wrong. pose special concerns as we debate pos- manufactured overseas and repackaged The House acted in H.R. 3 to address sible importation. in the United States to hide the decep- these unfair laws by creating a uniform Stretching from America to coun- tion. Importation would provide for standard to exclude nonnegligent vehi- tries such as India, Antigua, and Singa- any of these acts to be committed on a cle renting and leasing companies from pore, officials estimate that this inter- larger, exponentially more dev- liability for the actions of a customer national conspiracy provided $20 mil- astating, national scale. To put this in operating a safe vehicle. Under this lion worth of un-prescribed drugs to perspective, in 2003, 69 million prescrip- provision, States would continue to de- hundreds of thousands of people world- tions were written for Lipitor in the termine the level of compensation wide—most if not all of whom had no United States alone. available for accident victims by set- idea where their drugs originated. This The ‘‘Bansal Organization’’ bust is ting minimum insurance coverage re- drug scam exemplifies how the Internet but the latest in a series of illicit phar- quirements for every vehicle. Vicarious can be a door to an unregulated world maceutical trafficking scams, which liability reform would not protect com- of just about any kind of pharma- are extremely lucrative, and which our panies that have been negligent in

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.119 S18PT1 S5434 CONGRESSIONAL RECORD — SENATE May 18, 2005 their renting or leasing practices or in work on transportation issues. He is a I understand that under the Senate the care of the vehicle. This provision real leader in this area and I appreciate rules, a unanimous consent with- is a common sense reform that holds his hard work on behalf of the State of drawing a joint resolution would not be vehicle operators accountable for their Arkansas. I am aware of the Senator’s in order. Thus, copies S.J. Res. 13 will own actions and does not unfairly pun- requests and I understand the impor- remain available from the Government ish owners who have done nothing tance of these projects to Arkansas and Printing Office. However, while it is wrong. the country. My colleague has been my intent to continue to hold hearings Unfortunately, the Senate bill does very persistent and we have worked on the important issue of traditional not contain this important reform. I hard to include a formula in the bill marriage, it is not my intent to ad- urge my colleagues. to consider the that provides a significant increase in vance S.J. Res. 13 through the legisla- merits of this provision and retain the funding to Arkansas so that the State tive process. may be able to accomplish this task. House-passed language in the con- f ference bill. Specifically, Arkansas stands to gain ELLSWORTH AIR FORCE BASE f over $550 million over the 5 years of this bill, a 30 percent increase from the Mr. JOHNSON. Last week, Secretary TRANSPORTATION EQUITY ACT levels they received under TEA–21. of Defense Donald Rumsfeld sent his I–49 AND I–69 Would this amount be sufficient to base closure recommendations to the Mr. PRYOR. Mr. President, I rise make progress on the two important Base Realignment and Closure Com- today to discuss a matter of great im- interstates Senator PRYOR has men- mission. I am deeply disappointed with portance to my State, one that I hear tioned? his decision to include Ellsworth Air about every time I go home. Economic Mr. PRYOR. I thank the Senator Force Base. This recommendation is development and job creation is some- from Montana for his question. My un- short-sighted and harmful to our na- thing that every Arkansan is con- derstanding is that this amount would tional security. I am confident that the cerned about. One surefire way to gen- be enough to make substantial BRAC Commission will recognize the erate economic development and create progress on both projects until the invaluable contribution that Ellsworth jobs is through highway construction. next reauthorization. However, since makes to the defense of our homeland The U.S. DOT estimates that for every this bill does not include references to and will support removing it from the $1 billion of investment in highways, specific projects, the difficulty would list. 47,500 jobs are created, but the benefits be to make sure these projects did in- Ellsworth is one of only two bases in go far beyond that. It does Arkansans deed receive a large portion of this in- the country where the B–1 is stationed. no good to have good health care, edu- crease. Since the increases are largely In the past decade, the B–1 has been in- cation, and jobs if they don’t have the through apportioned programs to the valuable to our national defense and it roads to get there. Furthermore, busi- State, could my State use the increases is truly the backbone of our bomber ness investors do not want to place to fund these interstate projects? fleet. B–1 crews stationed at Ellsworth their companies anywhere that does Mr. BAUCUS. The Senator is correct have flown missions in Kosovo, Afghan- that the bill in the Senate does not not have ready access to interstate istan, and Iraq. During Operation Iraqi have specific funding for projects. How- roads. Freedom, B–1s were integral in liber- My State is in the process of building ever, it is up to the State of Arkansas ating Iraq by dropping more than half two new interstates that would to make the decision on how to spend the satellite guided munitions on crit- jumpstart economic growth, relieve this increase in funding and the addi- ical targets including command and congestion, and provide two additional tional money to the State can cer- control facilities, bunkers, and surface- freight corridors between our two larg- tainly be used to make progress on to-air missile sites. these projects. I would expect that est trading partners. In addition, Ellsworth is strategi- Future Interstate 49 connects Canada many States would consider projects cally located and has excellent access with New Orleans and would provide such as the ones described in Arkansas to B–1 training ranges. It is not threat- the only north-south corridor within that are nationally significant. It ened by urban encroachment or con- 300 miles, cutting through Kansas City, would be up to the State to set those gested air space and has strong com- MO and Western Arkansas. 1–49 is ex- priorities and move forward. I believe munity support. During the past dec- tremely important to Arkansas, as it the projects in Arkansas, both 1–49 and ade, I have used my position on the traverses the fastest growing part of 1–69, are in various stages of develop- Military Construction Appropriations my State, which is home to Wal-Mart, ment and construction. It is my under- Tyson’s, JB Hunt Transportation, and standing that both projects are eligible subcommittee to help direct funding to numerous other transportation compa- for Federal funding under this reau- Ellsworth for critical upgrades includ- nies. The potential for freight move- thorization bill we have written. ing a new base operations building, a ment along this corridor is enormous. Mr. PRYOR. I thank Senator BAUCUS B–1 training facility, and military However, the State of Arkansas has for his hard work as a manager of this housing that ranks amongst the best in lacked the funds to make significant bill and the ranking member of the the country. Given its ideal location, progress along the most expensive part Transportation and Infrastructure Sub- as well as the long-term investment in of the corridor. committee of EPW and ranking mem- the base’s infrastructure, Ellsworth is Future Interstate 69 connects Canada ber of the Finance Committee, and I capable of expanding and accepting with Mexico through Michigan, Indi- compliment him for this strong bill he new missions. ana, Kentucky, Tennessee, Mississippi, has helped put together. The Senator I emphatically disagree with the Sec- Arkansas, and Texas. It also has enor- always listens to my concerns, and I retary’s recommendation to close Ells- mous potential for freight movement, appreciate his willingness to include worth, and I am eager to work with the but it also cuts across the poorest re- such robust funding for my home Ellsworth Task Force, and the entire gion of my State where economic de- State. South Dakota Congressional delegation, to ensure Ellsworth remains a velopment is vitally important to the f future of local communities. The vital part of our national defense. Ells- amount of jobs a project such as I–69 DESIRE TO WITHDRAW S.J. RES. 13 worth is a premier installation that would create has the potential to lift Mr. BROWNBACK. Mr. President, has proven it can be a competitive these areas out of poverty. several weeks ago I introduced a joint military base for decades to come. During debate on the highway bill, I resolution which has been given the To that end, I am cosponsoring legis- have requested amounts that would number S.J. Res. 13. This resolution is lation that will postpone this round of provide Arkansas with a sufficient a one sentence amendment to the Con- base closures. At a time when we are amount of money to make significant stitution declaring that marriage is be- engaged in two military conflicts, as progress on these two extremely impor- tween a man and a woman. I would like well as rotating soldiers back to the tant roadways. the RECORD to reflect at this point that U.S. from overseas installations, we Mr. BAUCUS. I want to first com- I would like to withdraw this resolu- should not be closing bases at home. mend the Senator for his continued tion. Simultaneously closing domestic and

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.013 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5435 overseas bases will irrevocably damage CIVIC EDUCATION IN ACTION ranchlands, understanding how critical our ability to defend against threats at ∑ Mr. CRAPO. Mr. President, today I they are to supporting our local com- home and abroad. would like to recognize the out- munities, sustaining our Nation’s food This bill will delay this round of do- standing efforts of a group of young supply, and preserving clean water and mestic base closures until the rec- Idahoans from Madison High School in wildlife habitat. ommendations offered by the Overseas Rexburg, ID. These young men and A fourth generation California ranch- Basing Commission report has been re- women came to Washington, D.C., to er, Steve and his wife Jane manage viewed by the Department of Defense. represent my State in the national 18,000 acres of ranchland and 125 acres In addition, the bill would prohibit this finals of the ‘‘We the People: the Cit- of vineyards where they utilize a vari- round of base closures from com- izen and the Constitution’’ program. ety of innovative practices to promote mencing until combat units currently They represented Idaho well and are a sustainability and protect the environ- deployed to Iraq have returned home tribute to our State’s youth. ment. He effectively works with local and the Pentagon completes the quad- The national finals include a mock governments to protect ranch and rennial defense review. I firmly believe farmlands, and Steve and his family that these are reasonable and appro- congressional hearing which gives the students the opportunity to translate have also played an important role in priate steps to ensure we do not irre- providing habitat for the reintroduc- versibly impair our national defense. their specialized learning in history, social studies, government and civics tion of the California condor on their The entire State of South Dakota is land, including essential nesting proud of Ellsworth and the men and into action. As they use their newly- gained knowledge of the Constitution grounds. women stationed there for their role in But Steve’s efforts go far beyond his keeping America safe. We are confident and the Bill of Rights to examine, counter and defend issues facing Amer- own family’s farm. Steve helped form that the commission will see the mili- the California Rangeland Trust in 1998 tary value of Ellsworth and will sup- ica today, they come to appreciate the where he was elected to serve as the port removing it from the base closure timeless nature of this great document. founding chairman. With his leader- list. This experience gives students the opportunity to apply civic values to real- ship, the Rangeland Trust has pro- f life challenges and will serve them in tected over 170,000 acres of ranchland. ADDITIONAL STATEMENTS whatever they choose to do after they Steve has also served as vice-chairman graduate from high school. of the California Cattlemen’s Associa- Idaho can be proud of the growth of tion Land Use Committee, where his HONORING SOUTH DAKOTA civic virtue in these young people. As dedication and leadership galvanized AMERICAN LEGION AUXILIARY they look beyond themselves to the support among the ranching commu- ∑ Mr. JOHNSON. Mr. President, I rise realm of the public good, Idaho and nity for agricultural conservation and today to publicly commend two Amer- America will benefit as these individ- conservation practices. ican Legion Auxiliary units in South uals develop into responsible, intel- A look at Steve’s family history Dakota for the wonderful services they ligent citizens who practice discern- makes clear why he works so hard for provide to their communities. I point ment in judgment in matters of con- farmland preservation and takes these to Unit 230 Pike-Huska American Le- cern to our State and Nation. In the fu- efforts so seriously. Steve’s family gion Auxiliary Post of Aurora, and ture, these student citizens will be came to San Luis Obispo County in 1874 Unit 74 of Brookings as fine units more inclined to exhibit leadership and bought the family farm the fol- whose efforts are worthy of recogni- faithful to the ideals upon which our lowing year, meaning that Steve’s fam- tion. country was built and consonant with ily has been ranching in the county for In April of 2005, Unit 230 in Aurora the notions of liberty, freedom, justice 130 years. Steve grew up on the family sponsored an Election Forum designed and rule of law.∑ ranch and attended my alma mater, to introduce voters to the four can- Stanford University, before heading to didates running for Aurora City Coun- f the University of Colorado School of cil. The meeting enabled the commu- CONGRATULATING STEVE SINTON Law. After five years with the Cali- nity to not only meet the candidates, fornia Department of Water Resources ∑ Mrs. FEINSTEIN. Mr. President, I but also learn about their positions on in Sacramento, CA, Steve returned to rise today to congratulate Steve various issues. San Luis Obispo County to help man- Sinton of Shandon, CA, on winning the Additionally, Aurora Unit 230 joined age the family’s ranches and continue American Farmland Trust’s 2005 Stew- with Brookings Unit 74 to fulfill ‘‘The his private water law practice. In addi- ard of the Land Award. This award rec- Dictionary Project.’’ Since Aurora tion to all this, Steve also has been ac- ognizes Steve for his lifelong commit- school children are bussed to the three tive in his community, working with ment to conservation and sound stew- schools in the Brookings School Dis- numerous organizations, coaching ardship practices. He is the ninth trict, the two units collaborated by sports, and serving on the Shandon American farmer to win this award, purchasing and hand delivering 206 dic- School Board for fifteen years. tionaries, one to each third grade stu- and I am pleased to praise his efforts As a U.S. Senator representing the dent in the Brookings district. Upon and achievements today. State of California, I congratulate receiving the dictionary, each student Created in 1997 in honor of farmer Steve on winning this award and thank signed it, thus establishing it as his or and conservationist Peggy McGrath him for his many years of service to hers to keep. ‘‘The Dictionary Project’’ Rockefeller, the American Farmland our State. I wish to send my very best was so successful that the Auxiliary Trust gives the Steward of the Land to Steve, his wife Jane, and their two plans to continue this generous pro- Award each year to a farmer or farm children Julie and Daniel.∑ gram each year. family in the United States who has I am proud to have this opportunity shown outstanding leadership at the to honor the American Legion Auxil- national, State, and local levels in pro- f iary Unit 230 and Unit 74 for their out- tecting farmland and caring for the en- standing service. Their commitment to vironment. This award recognizes MESSAGE FROM THE HOUSE encouraging voter awareness and help- ranchers such as Steve and helps raise At 11:39 a.m., a message from the ing our young people in their pursuit of awareness about the public benefits of House of Representatives, delivered by knowledge is admirable. I strongly good stewardship and the importance Ms. Niland, one of its reading clerks, commend their hard work and dedica- of conserving land for future genera- announced that the House has passed tion, and I am very pleased that their tions. the following bill, in which it requests efforts are being publicly recognized Through his work on his own land the concurrence of the Senate: and celebrated. It is with great honor and throughout the State of California, H.R. 2360. An act making appropriations that I share their impressive commit- Steve Sinton has epitomized the spirit for the Department of Homeland Security for ment to civic duty with my col- of this award through his dedication to the fiscal year ending September 30, 2006, and leagues.∑ protecting our country’s farmlands and for other purposes.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.089 S18PT1 S5436 CONGRESSIONAL RECORD — SENATE May 18, 2005 MEASURES REFERRED a vacancy in the position of Inspector Gen- a rule entitled ‘‘Pacific Halibut Fisheries; eral, received on May 17, 2005; to the Com- Catch Sharing Plan; Fisheries Off West Coast The following bill was read the first mittee on Small Business and Entrepreneur- States and in the Western Pacific; Pacific and the second times by unanimous ship. Coast Groundfish Fishery; Specifications and consent, and referred as indicated: EC–2239. A communication from the Sec- Management Measures; Inseason Adjust- H.R. 2360. An act making appropriations retary of Energy, transmitting, pursuant to ments’’ (RIN0648–AS61) received on May 17, for the Department of Homeland Security for law, a report entitled ‘‘Department of En- 2005; to the Committee on Commerce, the fiscal year ending September 30, 2006, and ergy Activities Relating to the Defense Nu- Science, and Transportation. for other purposes; to the Committee on Ap- clear Facilities Safety Board’’; to the Com- EC–2250. A communication from the Regu- propriations. mittee on Energy and Natural Resources. lation Officer, Federal Highway Administra- EC–2240. A communication from the Sec- tion, Department of Transportation, trans- f retary of Health and Human Services, transmitting, pursuant to law, the report of a rule MEASURES READ THE FIRST TIME mitting, pursuant to law, a report entitled entitled ‘‘Uniform Relocation Assistance and ‘‘The Coordination of Provider Education Real Property Acquisition for Federal and The following bills were read the first Activities Provided Through Medicare Con- Federally-Assisted Programs’’ (RIN2125– time: tractors in Order to Maximize the Effective- AE97) received on May 18, 2005; to the Com- S. 1061. A bill to provide for secondary ness of Federal Education for Providers of mittee on Commerce, Science, and Transpor- school reform, and for other purposes. Services and Suppliers’’; to the Committee tation. on Finance. S. 1062. A bill to amend the Fair Labor f Standards Act of 1938 to provide for an in- EC–2241. A communication from the Sec- crease in the Federal minimum wage. retary of Health and Human Services, trans- EXECUTIVE REPORT OF mitting, pursuant to law, a report entitled COMMITTEE f ‘‘Coordinating Care for Medicare Bene- EXECUTIVE AND OTHER ficiaries: Early Experiences of 15 Demonstra- The following executive report of COMMUNICATIONS tion Programs, their Patients, and Pro- committee was submitted with printed viders’’; to the Committee on Finance. report 109–1 with Minority views: The following communications were EC–2242. A communication from the Attor- By Mr. LUGAR for the Committee on For- laid before the Senate, together with ney Advisor, Federal Railroad Administra- eign Relations. accompanying papers, reports, and doc- tion, Department of Transportation, trans- * John Robert Bolton, of Maryland, to be uments, and were referred as indicated: mitting, pursuant to law, the report of a va- the Representative of the United States of cancy in the position of Administrator, re- EC–2231. A communication from the Dep- America to the United Nations, with the ceived on May 17, 2005; to the Committee on uty Secretary of Defense, transmitting, pur- rank and status of Ambassador, and the Rep- Commerce, Science, and Transportation. resentative of the United States of America suant to law, the semi-annual report sub- EC–2243. A communication from the Attor- mitted in accordance to the Inspector Gen- in the Security Council of the United Na- ney Advisor, Federal Railroad Administra- tions. eral Act of 1978, as amended for October 1, tion, Department of Transportation, trans- 2004 through March 31, 2005; to the Com- mitting, pursuant to law, the report of a va- * Nomination was reported without mittee on Homeland Security and Govern- cancy in the position of Administrator, re- recommendation, subject to the nomi- mental Affairs. ceived on May 17, 2005; to the Committee on nee’s commitment to respond to re- EC–2232. A communication from the Under Commerce, Science, and Transportation. quests to appear and testify before any Secretary of Defense for Acquisition, Tech- EC–2244. A communication from the Attor- nology, and Logistics, transmitting, pursu- duly constituted committee of the Sen- ney Advisor, Federal Railroad Administra- ate. ant to law, a report entitled ‘‘Defense Acqui- tion, Department of Transportation, trans- ″ sition Challenge Program Fiscal Year 2004 ; mitting, pursuant to law, the report of a va- f to the Committee on Armed Services. cancy in the position of Administrator, re- INTRODUCTION OF BILLS AND EC–2233. A communication from the Sec- ceived on May 17, 2005; to the Committee on retary of the Treasury, transmitting, pursu- Commerce, Science, and Transportation. JOINT RESOLUTIONS ant to law, the periodic report on the na- EC–2245. A communication from the Vice The following bills and joint resolu- tional emergency with respect to Iran that President, Government Affairs, National tions were introduced, read the first was declared in Executive Order 12170 of No- Railroad Passenger Corporation, Amtrak, vember 14, 1979; to the Committee on Bank- and second times by unanimous con- transmitting, pursuant to law, a report enti- sent, and referred as indicated: ing, Housing, and Urban Affairs. tled ‘‘Amtrak Strategic Reform Initiatives EC–2234. A communication from the Con- and Fiscal Year 2006 Grant Request’’; to the By Mr. NELSON of Florida: gressional Review Coordinator, Animal and Committee on Commerce, Science, and S. 1059. A bill to amend the Robert T. Staf- Plant Health Inspection Service, Department Transportation. ford Disaster Relief and Emergency Assist- of Agriculture, transmitting, pursuant to EC–2246. A communication from the Sec- ance Act to specify procedures for the con- law, the report of a rule entitled ‘‘Karnal retary of Transportation, transmitting, pur- duct of preliminary damage assessments, to Bunt; Compensation for Custom Harvesters suant to law, a report on the Department’s direct the Secretary of Homeland Security in Northern Texas’’ (APHIS Docket No. 03– Fiscal Year 2004 Competitive Sourcing Ef- to vigorously investigate and prosecute in- 052–3); to the Committee on Agriculture, Nu- forts; to the Committee on Commerce, stances of fraud, including fraud in the han- trition, and Forestry. Science, and Transportation. dling and approval of claims for Federal EC–2235. A communication from the Prin- EC–2247. A communication from the Assist- emergency assistance, and for other pur- cipal Deputy Associate Administrator, Office ant Administrator for Procurement, Na- poses; to the Committee on Homeland Secu- of Policy, Economics, and Innovation, Envi- tional Aeronautics and Space Administra- rity and Governmental Affairs. ronmental Protection Agency, transmitting, tion, transmitting, pursuant to law, the re- By Mr. COLEMAN (for himself, Mr. pursuant to law, the report of a rule entitled port of a rule entitled ‘‘NASA Grant and Co- SMITH, Ms. SNOWE, Mr. DAYTON, and ‘‘Alternaria destruens Strain 059; Exemption operative Agreement Handbook—Research Mr. HARKIN): from the Requirement of a Tolerance’’ (FRL Misconduct’’ (RIN2700–AD11) received on S. 1060. A bill to amend the Internal Rev- No. 7708–3) received on May 16, 2005; to the May 17, 2005; to the Committee on Com- enue Code of 1986 to allow a credit against Committee on Agriculture, Nutrition, and merce, Science, and Transportation. income tax for the purchase of hearing aids; Forestry. EC–2248. A communication from the Dep- to the Committee on Finance. EC–2236. A communication from the Prin- uty Assistant Administrator for Operations, By Mrs. MURRAY: cipal Deputy Associate Administrator, Office National Marine Fisheries Service, National S. 1061. A bill to provide for secondary of Policy, Economics, and Innovation, Envi- Oceanic and Atmospheric Administration, school reform, and for other purposes; read ronmental Protection Agency, transmitting, transmitting, pursuant to law, the report of the first time. pursuant to law, the report of a rule entitled a rule entitled ‘‘Final Rule to Implement By Mr. KENNEDY (for himself, Mr. ‘‘Fludioxonil; Pesticide Tolerance’’ (FRL No. Resolutions Adopted by the Inter-American REID, Mr. DURBIN, Mr. HARKIN, Mr. 7711–9) received on May 16, 2005; to the Com- Tropical Tuna Commission and the Parties DODD, Ms. MIKULSKI, Mr. JEFFORDS, mittee on Agriculture, Nutrition, and For- to the Agreement on the International Dol- Mrs. MURRAY, Mr. REED, Mr. BINGA- estry. phin Conservation Program’’ ((RIN0648–AS05) MAN, Mrs. CLINTON, Mr. AKAKA, Mrs. EC–2237. A communication from the Chair- (I.D. No. 102004 A)) received on May 17, 2005; BOXER, Mr. CORZINE, Mr. DAYTON, Mr. man, Naval Sea Cadet Corps, transmitting, to the Committee on Commerce, Science, FEINGOLD, Mr. INOUYE, Mr. KERRY, pursuant to law, the 2004 Annual Report of and Transportation. Ms. LANDRIEU, Mrs. LINCOLN, Mr. the U.S. Naval Cadet Corps; to the Com- EC–2249. A communication from the Dep- LAUTENBERG, Mr. LEAHY, Mr. LEVIN, mittee on the Judiciary. uty Assistant Administrator for Operations, Mr. LIEBERMAN, Mr. OBAMA, Mr. EC–2238. A communication from the Ad- National Marine Fisheries Service, National ROCKEFELLER, Mr. SARBANES, Mr. ministrator, Small Business Administration, Oceanic and Atmospheric Administration, SCHUMER, Ms. STABENOW, Mr. WYDEN, transmitting, pursuant to law, the report of transmitting, pursuant to law, the report of and Mr. JOHNSON):

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.022 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5437 S. 1062. A bill to amend the Fair Labor SUBMISSION OF CONCURRENT AND rental-purchase agreements, including Standards Act of 1938 to provide for an in- SENATE RESOLUTIONS disclosures of all costs to consumers crease in the Federal minimum wage; read The following concurrent resolutions under such agreements, to provide cer- the first time. tain substantive rights to consumers By Mr. NELSON of Florida (for him- and Senate resolutions were read, and self, Mr. BURNS, and Mrs. CLINTON): referred (or acted upon), as indicated: under such agreements, and for other purposes. S. 1063. A bill to promote and enhance pub- By Mr. DEWINE (for himself and Mrs. lic safety and to encourage the rapid deploy- FEINSTEIN): S. 635 ment of IP-enabled voice services; to the S. Res. 145. A resolution designating June At the request of Mr. SANTORUM, the Committee on Commerce, Science, and 2005 as ‘‘National Safety Month″; to the Com- name of the Senator from Illinois (Mr. Transportation. mittee on the Judiciary. DURBIN) was added as a cosponsor of S. By Mr. COCHRAN (for himself, Mr. By Ms. CANTWELL (for herself, Mrs. 635, a bill to amend title XVIII of the KENNEDY, Mr. WARNER, Ms. CANT- MURRAY, Mr. STEVENS, and Mr. Social Security Act to improve the WELL, Ms. COLLINS, and Mr. DAYTON): PRYOR): S. 1064. A bill to amend the Public Health S. Res. 146. A resolution recognizing the benefits under the medicare program Service Act to improve stroke prevention, 25th anniversary of the eruption of Mount for beneficiaries with kidney disease, diagnosis, treatment, and rehabilitation; to St. Helens; considered and agreed to. and for other purposes. the Committee on Health, Education, Labor, By Ms. MURKOWSKI (for herself, Mr. S. 662 and Pensions. CRAPO, Mr. DEWINE, Mr. CRAIG, Ms. At the request of Ms. COLLINS, the By Mr. THUNE (for himself and Mrs. LANDRIEU, Mrs. LINCOLN, Mr. VITTER, name of the Senator from New Mexico CLINTON): Mr. ALLEN, and Mrs. FEINSTEIN): S. 1065. A bill to amend title 10, United S. Res. 147. A resolution designating June (Mr. BINGAMAN) was added as a cospon- States Code, to extend child care eligibility 2005 as ‘‘National Internet Safety Month″; sor of S. 662, a bill to reform the postal for children of members of the Armed Forces considered and agreed to. laws of the United States. who die in the line of duty; to the Committee By Mr. LOTT (for himself and Mr. S. 792 DODD): on Armed Services. At the request of Mr. DORGAN, the S. Res. 148. A resolution to authorize the By Mr. VOINOVICH (for himself, Ms. name of the Senator from Massachu- STABENOW, Mr. BUNNING, Mr. LEVIN, display of the Senate Leadership Portrait setts (Mr. KERRY) was added as a co- Mr. ALEXANDER, Mr. DEWINE, Mr. Collection in the Senate Lobby; considered MCCONNELL, and Mr. FRIST): and agreed to. sponsor of S. 792, a bill to establish a S. 1066. A bill to authorize the States (and f National sex offender registration subdivisions thereof), the District of Colum- database, and for other purposes. ADDITIONAL COSPONSORS bia, territories, and possessions of the United S. 881 States to provide certain tax incentives to S. 471 At the request of Ms. CANTWELL, the any person for economic development pur- At the request of Mr. SPECTER, the name of the Senator from North Da- poses; to the Committee on Finance. names of the Senator from Minnesota By Mrs. LINCOLN (for herself, Mr. kota (Mr. DORGAN) was added as a co- (Mr. DAYTON), the Senator from North BROWNBACK, Mr. JEFFORDS, and Mr. sponsor of S. 881, a bill to provide for DORGAN): Dakota (Mr. DORGAN), the Senator equitable compensation to the Spokane S. 1067. A bill to require the Secretary of from Wisconsin (Mr. FEINGOLD) and the Tribe of Indians of the Spokane Res- Health and Human Services to undertake ac- Senator from Hawaii (Mr. AKAKA) were ervation for the use of tribal land for tivities to ensure the provision of services added as cosponsors of S. 471, a bill to the production of hydropower by the under the PACE program to frail elders liv- amend the Public Health Service Act Grand Coulee Dam, and for other pur- ing in rural areas, and for other purposes; to to provide for human embryonic stem poses. the Committee on Finance. cell research. S.J. RES. 18 By Mrs. DOLE (for herself and Mr. BAU- S. 484 CUS): At the request of Mr. MCCONNELL, S. 1068. A bill to provide for higher edu- At the request of Mr. WARNER, the the name of the Senator from Florida cation affordability, access, and opportunity; name of the Senator from Ohio (Mr. (Mr. MARTINEZ) was added as a cospon- to the Committee on Health, Education, DEWINE) was added as a cosponsor of S. sor of S.J. Res. 18, a joint resolution Labor, and Pensions. 484, a bill to amend the Internal Rev- approving the renewal of import re- By Mrs. FEINSTEIN: enue Code of 1986 to allow Federal ci- strictions contained in the Burmese S. 1069. A bill to suspend temporarily the vilian and military retirees to pay Freedom and Democracy Act of 2003. duty on certain cases or containers for toys; health insurance premiums on a pretax At the request of Mrs. FEINSTEIN, the to the Committee on Finance. basis and to allow a deduction for By Mrs. FEINSTEIN: names of the Senator from New Jersey TRICARE supplemental premiums. S. 1070. A bill to suspend temporarily the (Mr. CORZINE), the Senator from Mary- duty on certain cases for toys; to the Com- S. 499 land (Ms. MIKULSKI), the Senator from mittee on Finance. At the request of Mr. DODD, the name Wisconsin (Mr. KOHL) and the Senator By Mrs. FEINSTEIN: of the Senator from New York (Mr. from Wisconsin (Mr. FEINGOLD) were S. 1071. A bill to extend the temporary sus- SCHUMER) was added as a cosponsor of added as cosponsors of S.J. Res. 18, pension of duty on certain bags for toys; to S. 499, a bill to amend the Consumer supra. the Committee on Finance. Credit Protection Act to ban abusive S. RES. 104 By Mrs. FEINSTEIN: credit practices, enhance consumer dis- S. 1072. A bill to extend the temporary sus- At the request of Mr. FEINGOLD, the pension of duty on cases for certain chil- closures, protect underage consumers, name of the Senator from Louisiana dren’s products; to the Committee on Fi- and for other purposes. (Ms. LANDRIEU) was added as a cospon- nance. S. 537 sor of S. Res. 104, a resolution express- By Mrs. FEINSTEIN: At the request of Mr. BINGAMAN, the ing the sense of the Senate encour- S. 1073. A bill to extend the temporary sus- name of the Senator from California aging the active engagement of Ameri- pension of duty on certain children’s prod- (Mrs. BOXER) was added as a cosponsor cans in world affairs and urging the ucts; to the Committee on Finance. of S. 537, a bill to increase the number Secretary of State to take the lead and By Mr. HARKIN: of well-trained mental health service coordinate with other governmental S. 1074. A bill to improve the health of Americans and reduce health care costs by professionals (including those based in agencies and non-governmental organi- reorienting the Nation’s health care system schools) providing clinical mental zations in creating an online database toward prevention, wellness, and self care; to health care to children and adoles- of international exchange programs the Committee on Finance. cents, and for other purposes. and related opportunities. By Mr. THUNE (for himself, Ms. S. 603 f SNOWE, Mr. BINGAMAN, Ms. COLLINS, At the request of Ms. LANDRIEU, the Mr. DOMENICI, Mr. GREGG, Mr. JOHN- name of the Senator from Washington STATEMENTS ON INTRODUCED SON, Mr. LOTT, Ms. MURKOWSKI, Mr. BILLS AND JOINT RESOLUTIONS STEVENS, and Mr. SUNUNU): (Mrs. MURRAY) was added as a cospon- S. 1075. A bill to postpone the 2005 round of sor of S. 603, a bill to amend the Con- By Mr. COLEMAN (for himself, defense base closure and realignment; to the sumer Credit Protection Act to assure Mr. SMITH, Ms. SNOWE, Mr. Committee on Armed Services. meaningful disclosures of the terms of DAYTON, and Mr. HARKIN):

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.019 S18PT1 S5438 CONGRESSIONAL RECORD — SENATE May 18, 2005 S. 1060. A bill to amend the Internal health professional organizations of the Deaf Hearing People (SHHH), Telecommuni- Revenue Code of 1986 to allow a credit and Hard of Hearing Alliance (DHHA), write cations for the Deaf, Inc. (TDI), against income tax for the purchase of to express our strong support for the ‘‘Hear- TECHUnit. hearing aids; to the Committee on Fi- ing Aid Assistance Tax Credit Act’’ you are introducing in the Senate today. While we MAY 17, 2005. nance. support and encourage more comprehensive Hon. NORM COLEMAN, Mr. COLEMAN. Mr. President, today solutions, we believe your legislation can aid U.S. Senate, I am introducing legislation to help some who presently have no options but to Washington, DC. millions of Americans enjoy the gift of pay out of pocket for these essential devices. sound. I am pleased to be joined by Enactment of your legislation will provide DEAR SENATOR COLEMAN: The American Senators GORDON SMITH, OLYMPIA J. a tax credit of up to $500 per hearing aid, Speech-Language-Hearing Association SNOWE, MARK DAYTON, and TOM HAR- available once every five years, towards the (ASHA) commends you for your continued purchase of a hearing aid(s) for individuals leadership on behalf of the estimated 28 mil- KIN, who I know care as deeply about these issues as I do. age 55 and over, or those purchasing a hear- lion American children and adults with hearing aid for a dependent. ing loss by introducing legislation to provide Hearing loss is one of the most com- As you have pointed out with the introduc- assistance to those purchasing hearing aids. mon and widespread health problems tion of this bill, special tax treatment would The Hearing Aid Assistance Tax Credit Act affecting Americans today. In fact, improve access to hearing aids since only 22 will provide financial assistance to those thirty-three babies are born each day percent of Americans who could benefit from who need hearing aids, but are unable to af- with hearing loss, making deafuess the hearing aids currently use them. Approxi- ford them. This bill will provide much need- most common birth defect in America. mately 1 million children under the age of 18 ed assistance to those adults over 55 years of According to the National Council on and nearly 10 million Americans over the age age and families with children who experi- Aging, as many as 70 percent of our el- of 54 have a diagnosed hearing loss but are ence hearing loss. not currently using a hearing aid. derly experience hearing loss. All told, The expense of the hearing aid is an impor- Studies indicate that when children with 31.5 million Americans currently suffer tant factor why Americans with hearing loss hearing loss receive early intervention and from some form of hearing loss. go without these devices. Some 40 percent of treatment with devices such as hearing aids, The good news is that 95 percent of individuals with hearing loss have incomes their speech and language development im- individuals with hearing loss can be of less than $30,000 per year. Nearly 30 per- proves dramatically, making the need for successfully treated with hearing aids. cent of those with hearing loss cite financial special education services less likely and costly. Research has also shown that the Unfortunately, however, only 22 per- constraints as a core reason they do not use hearing aids. In 2002, the average cost for a quality of life greatly improves for elderly cent of Americans suffering from hear- individuals who use hearing aids. ing loss can afford to use this tech- hearing aid was over $1,400, and almost two- thirds of individuals with hearing loss re- On behalf of the 118,000 audiologists, nology. In other words, over 24 million quire two devices, thereby increasing the av- speech-language pathologists, and hearing, Americans will live without sound be- erage out of pocket expense to over $2,800. speech, and language scientists qualified to cause they cannot afford treatment. The new tax credit you propose will assist meet the needs of the estimated 49 million That is why we are introducing the many who might otherwise do without and (or 1 in 6) children and adults in the United Hearing Aid Assistance Tax Credit Act. have limited options. States with communication disorders, we This legislation provides help to Hearing aids are presently not covered thank you for introducing this important those who need it most, our children under Medicare, or under the vast majority piece of legislation and look forward to and seniors, by providing a tax credit of state mandated benefits. In fact, 71.4% of working with you and your staff. of up to $500, once every 5 years, to- hearing aid purchases do not involve third Sincerely, ward the purchase of any ‘‘qualified party payments, placing the entire burden of DOLORES E. BATTLE, the hearing aid purchase on the consumer. hearing aid’’ as defined by the Federal President, American The need is real. Hearing loss affects 2–3 Speech-Language- Food, Drug, and Cosmetic Act. infants per 1,000 births. For adults, hearing Hearing Association. Hearing aids are not just portals to loss usually occurs more gradually, but in- sound, but portals to success in school, creases dramatically with age. Ten million business, and life. That is why a num- older Americans experience age-related hear- INTERNATIONAL HEARING SOCIETY, Livonia, MI, May 16, 2005. ber of diverse organizations, including ing loss. For workers, noise induced hearing loss is the second most self-reported occupa- Hon. NORM COLEMAN, the Hearing Industries Association, Hart Senate Office Building, Self Help for Hard of Hearing People, tional injury. Ten million young adults and working aged Americans have noise-induced Washington, DC. the International Hearing Society, the hearing loss. DEAR SENATOR COLEMAN: On behalf of the Deaf and Hard of Hearing Alliance, Enactment of your bill will make a dif- International Hearing Society (IHS), I write American Speech-Language-Hearing ference in the lives of some people with hear- to enthusiastically endorse the Hearing Aid Association, and the American Acad- ing loss. Currently 1.28 million Americans of Assistance Tax Credit Act. IHS represents emy of Audiology support the Hearing all ages purchase hearing aids each year, the vast majority of traditional hearing aid Aid Assistance Tax Credit Act. with many individuals requiring two devices, dispensers (hearing aid specialists) in the I ask unanimous consent that their bringing the total number of hearing aids United States. Hearing aid specialists are li- letters of support be printed in the purchased across all age groups to approxi- censed in 49 states (and registered in Colo- mately 2 million. This number has remained RECORD. rado) specifically to provide hearing health Hearing loss may be one of the most constant over recent years. While the legis- services. Our members test hearing; select, lation is not intended to cover the full cost common health problems in the United fit and dispense hearing aids; and provide of hearing aids, it will provide some measure hearing rehabilitation and counseling serv- States, but it doesn’t have to be. We of financial assistance to the groups who are ices. Hearing aid specialists dispense ap- can tackle the problem head on with in need of these devices but are unable to af- proximately one-half of all hearing aids in the Hearing Aid Assistance Tax Credit ford them. this country. Thank you for your leadership on this im- Act. IHS is deeply appreciative of your interest I look forward to working with my portant issue. We look forward to working with you to seek enactment of your legisla- in improving access to hearing health care. colleagues this Congress to approve Only approximately 20% of those who could this commonsense solution to a serious tion during the 109th Congress. Sincerely, benefit from amplification actually utilize problem. Alexander Graham Bell Association for hearing aids. Allowing a credit against tax There being no objection, the mate- the Deaf & Hard of Hearing (AGBell), for the purchase of hearing aids would likely rials were ordered to be printed in the American Academy of Audiology promote access to this effective but dramati- RECORD, as follows: (AAA), American Speech-Language- cally underutilized device. DEAF AND HARD OF HEARING ALLI- Hearing Association (ASHA), Con- We look forward to working together to ANCE: A COALITION OF CONSUMER ference of Educational Administrators promote the nation’s hearing health, a vital AND PROFESSIONAL ORGANIZA- of Schools and Programs for the Deaf component of overall health and well-being. TIONS, (CEASD), Cued Language Network of Please contact me or our Washington Coun- May 18, 2005. America (CLNA), Media Access Group sel Karen S. Sealander of McDermott Will & Hon. NORM COLEMAN, at WGBH. Emery with questions or for further informa- U.S. Senate, National Association of the Deaf (NAD), tion. Washington, DC. National Court Reporters Association Sincerely, DEAR SENATOR COLEMAN: We, the under- (NCRA), National Cued Speech Associa- HARLAN S. CATO, signed, representing both consumer and tion (NCSA), Self Help for Hard of President.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.027 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5439

MAY 18, 2005. party payments, thereby placing the entire care professionals providing the services Hon. NORM COLEMAN, burden of the purchase on the consumer. they need to fully function in society. U.S. Senate, The Hearing Aid Assistance Tax Credit Act Sincerely, Washington, DC., offers a practical, low cost, and common RICHARD E. GANS, DEAR SENATOR COLEMAN: On behalf of the sense solution to help older individuals who President. Hearing Industries Association (HTA) and may not otherwise be able to afford to pur- the individuals with hearing loss served by chase a hearing aid, or those purchasing a S. 1060 our members, I want to thank you for intro- hearing aid for their child. The bill is not in- Be it enacted by the Senate and House of Rep- ducing the Hearing Aid Assistance Tax Cred- tended to cover the full cost of hearing aids, resentatives of the United States of America in it Act, and offer HIA’s strong endorsement but would simply provide some measure of Congress assembled, and support for this worthwhile legislation. financial assistance to the populations who SECTION 1. SHORT TITLE. The Hearing Industries Association (HIA) are most in need of these devices but may This Act may be cited as the ‘‘Hearing Aid is dedicated to providing information about, not be able to afford them: those approach- Assistance Tax Credit Act’’. promoting the use of, and enhancing access ing or in retirement, and families with chil- SEC. 2. CREDIT FOR HEARING AIDS FOR SENIORS to amplification devices in the United dren. AND DEPENDENTS. States. These devices include externally This bipartisan initiative is endorsed by (a) IN GENERAL.—Subpart A of part IV of worn hearing aids, implantable hearing aids virtually the entire spectrum of organiza- subchapter A of chapter 1 of the Internal (cochlear, middle ear and brain stem) and an tions and consumer groups within the hear- Revenue Code of 1986 (relating to nonrefund- array of assistive listening devices (both per- ing health community. We view this legisla- able personal credits) is amended by insert- sonal and public area communication sys- tion as an effective and responsible means to ing after section 25B the following new sec- tems used in auditoriums, theaters, class- encourage individuals to treat their hearing tion: rooms and public buildings). Our members loss in order to maintain or improve quality ‘‘SEC. 25C. CREDIT FOR HEARING AIDS. work with the medical community and hear- of life. ‘‘(a) ALLOWANCE OF CREDIT.—In the case of ing aid professionals to treat hearing loss in an individual, there shall be allowed as a We are pleased to offer you our support. children and adults, and we have seen first- credit against the tax imposed by this chap- Respectfully, hand the dramatic benefit that hearing aids ter an amount equal to the amount paid dur- ERRY PORTIS, can provide in terms of greater safety, in- T ing the taxable year, not compensated by increased ability to communicate, and an over- Executive Director, surance or otherwise, by the taxpayer for the all significantly enhanced quality of life. Self Help for Hard of Hearing People. purchase of any qualified hearing aid. For the 31.5 million Americans who have ‘‘(b) MAXIMUM AMOUNT.—The amount al- some degree of hearing loss, the vast major- AMERICAN ACADEMY OF AUDIOLOGY, lowed as a credit under subsection (a) shall ity (95%) can be treated with hearing aids. Reston, VA, May 17, 2005. not exceed $500 per qualified hearing aid. Yet only 20% of those with hearing loss use Hon. NORM COLEMAN, ‘‘(c) QUALIFIED HEARING AID.—For purposes hearing aids, while a full 30% cite financial U.S. Senate, Hart Senate Office Building, of this section, the term ‘qualified hearing constraints as the reason they do not use Washington, DC. aid’ means a hearing aid— hearing aids. This modest bill would help DEAR SENATOR COLEMAN: The American ‘‘(1) which is described in section 874.3300 of countless older adults and children who need Academy of Audiology, the largest organiza- title 21, Code of Federal Regulations, and is hearing aids, but simply cannot afford them. tion of audiologists representing over 9,700 authorized under the Federal Food, Drug, The benefits, in terms of reduced special edu- audiologists, commends you on your leader- and Cosmetic Act for commercial distribu- cation costs for children, as well as reduced ship on hearing health care issues and cham- tion, and injuries and psychological and mental dis- pioning policies that benefit individuals with ‘‘(2) which is intended for use— orders associated with hearing loss in older hearing loss. ‘‘(A) by the taxpayer, but only if the tax- adults, are immense. The Academy supports the Hearing Aid As- payer (or the spouse intending to use the Again, on behalf of HIA and the individuals sistance Tax Credit Act which would provide hearing aid, in the case of a joint return) is with hearing loss whom we serve, we applaud a tax credit of up to $500 per hearing aid, age 55 or older, or your leadership in introducing the Hearing available once every five years, towards the ‘‘(B) by an individual with respect to whom Aid Assistance Tax Credit Act, and look for- purchase of a hearing aid(s) for individuals the taxpayer, for the taxable year, is allowed ward to working with you to pass the bill in age 55 and over, or those purchasing a hear- a deduction under section 151(c) (relating to the 109th Congress. ing aid for a dependent. As you have pointed deduction for personal exemptions for de- Sincerely, out with the introduction of this bill, special pendents). CAROLE ROGIN, tax treatment would improve access to hear- ‘‘(d) ELECTION ONCE EVERY 5 YEARS.—This Hearing Industries Association. ing aids since only 22 percent of Americans section shall apply to any individual for any who could benefit from hearing aids cur- taxable year only if such individual elects EAR ENATOR OLEMAN (at such time and in such manner as the Sec- D S C : On behalf of Self rently use them. Approximately, 1 million retary may by regulations prescribe) to have Help for Hard of Hearing People, the Na- children under the age of 18 and nearly 10 this section apply for such taxable year. An tion’s largest consumer group for people million Americans over the age of 54 have a election to have this section apply may not with hearing loss, we would like to express diagnosed hearing loss but are not currently be made for any taxable year if such election our support of the Hearing Aid Assistance using a hearing aid. Tax Credit Act. is in effect with respect to such individual More than 28 million Americans at all Hearing aids are presently not covered for any of the 4 taxable years preceding such stages of life have some form of hearing loss. under Medicare, or under the vast majority taxable year. If left untreated, hearing loss can severely of state mandated benefits. In fact, 71.4 per- ‘‘(e) DENIAL OF DOUBLE BENEFIT.—No credit reduce the quality of one’s personal and pro- cent of hearing aid purchases do not involve shall be allowed under subsection (a) for any fessional life. A landmark study conducted third party payments, placing the entire bur- expense for which a deduction or credit is al- by the National Council on Aging (NCOA) den of the hearing aid purchase on the pa- lowed under any other provision of this chap- concluded that hearing loss was associated tient/consumer. This legislation is a begin- ter.’’. with, among other things: depression, im- ning step to helping some individuals with (b) CLERICAL AMENDMENT.—The table of paired memory, social isolation and reduced this expense and raises the awareness of the sections for subpart A of part IV of sub- general health. For infants and children left impact that hearing loss has on today’s soci- chapter A of chapter 1 of such Code is untreated, the cost to schools for special ety. amended by inserting after the item relating education and other programs can exceed In addition, the Academy endorses the to section 25B the following new item: $420,000, with additional lifetime costs of $1 Hearing Health Accessibility Act (S. 277) to ‘‘Sec. 25C . Credit for hearing aids.’’. million in lost wages and other health com- provide Medicare beneficiaries with the op- (c) EFFECTIVE DATE.—The amendments plications, according to a respected 1995 tion of going to an audiologist or a physician made by this section shall apply to taxable study published in the International Journal for hearing and balance diagnostic tests. Di- years beginning after December 31, 2004. of Pediatric Otorhinolaryngology. rect access would improve Medicare bene- While fully 95 percent of individuals with ficiaries’ access to hearing care without di- By Mr. NELSON of Florida (for hearing loss could be successfully treated minishing the important role of medical doc- himself, Mr. BURNS, and Mrs. with hearing aids, only 22 percent currently tors, or expanding the scope of practice for CLINTON): use them, according to the largest national audiology. The Academy urges you to sup- S. 1063. A bill to promote and en- consumer survey on hearing loss in America. port this legislation as well. hance public safety and to encourage 1 Almost ⁄3 of the individuals surveyed cite fi- The Academy appreciates the opportunity the rapid deployment of IP-enabled nancial constraints as a core reason they do to work with you to promote these impor- not use hearing aids, which is not surprising tant initiatives in the 109th Congress. Again, voice services; to the Committee on since hearing aids are not covered under we thank you for your leadership in intro- Commerce, Science, and Transpor- Medicare, or under the vast majority of state ducing the Hearing Aid Assistance Tax Cred- tation. mandated benefits. In fact, over 71 percent of it Act and for your dedication to the needs of Mr. NELSON of Florida. Mr. Presi- all hearing aid purchases involve no third individuals with hearing loss and the health dent, I rise today with my colleagues,

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.053 S18PT1 S5440 CONGRESSIONAL RECORD — SENATE May 18, 2005 Senators BURNS and CLINTON, to intro- shall have the sole responsibility for the ‘‘(D) provide specific legislative language, duce the ‘‘IP-Enabled Voice Commu- proper design, operation, and function of the if necessary, for achieving the plan; and nications and Public Safety Act of 911 and E911 access capabilities offered to the ‘‘(E) provide recommendations on any leg- 2005’’ and ask unanimous consent that provider’s customers. islative changes, including updating defini- (g) PARITY OF PROTECTION FOR PROVISION tions, to facilitate a national IP-enabled the text of the bill be printed in the OR USE OF IP-ENABLED VOICE SERVICE.— emergency network. RECORD. (1) PROVIDER PARITY.—If a provider of an ‘‘(3) CONSULTATION.—In developing the plan There being no objection, the bill was IP-enabled voice service offers 911 or E–911 required by paragraph (1), the Office shall ordered to be printed in the RECORD, as services in compliance with the rules re- consult with representatives of the public follows: quired by subsection (a), that provider, its safety community, technology and tele- S. 1063 officers, directors, employees, vendors, and communications providers, and others it Be it enacted by the Senate and House of Rep- agents, shall have immunity or other protec- deems appropriate.’’. resentatives of the United States of America in tion from liability of a scope and extent that SEC. 4. DEFINITIONS. Congress assembled, is not less than the scope and extent of im- (a) IN GENERAL.—For purposes of this Act: SECTION 1. SHORT TITLE. munity or other protection from liability (1) 911 AND E–911 SERVICES.— This Act may be cited as the ‘‘IP–Enabled that any local exchange company, and its of- (A) 911.—The term ‘‘911’’ means a service Voice Communications and Public Safety ficers directors, employees, vendors, or that allows a user, by dialing the three-digit Act of 2005’’. agents, have under the applicable Federal code 911, to call a public safety answering point operated by a State, local government, SEC. 2. EMERGENCY SERVICE. and State law (whether through statute, ju- Indian tribe, or authorized entity. (a) 911 AND E–911 SERVICES.—Notwith- dicial decision, tariffs filed by such local ex- (B) E–911.—The term ‘‘E–911 service’’ means standing section 2(b) or any other provision change company, or otherwise), including in a 911 service that automatically delivers the of the Communications Act of 1934, the Com- connection with an act or omission involving 911 call to the appropriate public safety an- mission shall prescribe regulations to estab- the release of subscriber information related swering point, and provides automatic iden- lish a set of requirements or obligations on to the emergency calls or emergency serv- tification data, including the originating providers of IP-enabled voice service to en- ices to a public safety answering point, number of an emergency call, the physical sure that 911 and E–911 services are available emergency medical service provider, or location of the caller, and the capability for to customers to IP-enabled voice service. emergency dispatch provider, public safety, the public safety answering point to call the Such regulations shall include an appro- fire service, or law enforcement official, or user back if the call is disconnected. priate transition period by which to comply hospital emergency or trauma care facility. (2) IP-ENABLED VOICE SERVICE.—The term with such requirements or obligations and (2) USER PARITY.—A person using an IP-en- ‘‘IP-enabled voice service’’ means an IP-en- take into consideration available industry abled voice service that offers 911 or E–911 abled service used for real-time 2-way or technological and operational standards, in- services pursuant to this subsection shall multidirectional voice communications of- cluding network security. have immunity or other protection from li- (b) NON-DISCRIMINATORY ACCESS TO CAPA- ability of a scope and extent that is not less fered to a customer that— BILITIES.—Each entity with ownership or than the scope and extent of immunity or (A) uses North American Numbering Plan control of the necessary emergency services other protection from liability under appli- administered telephone numbers, or suc- infrastructure shall provide any requesting cable law in similar circumstances of a per- cessor protocol; and IP-enabled voice service provider with non- son using 911 or E–911 service that is not pro- (B) has two-way interconnection or other- discriminatory access to their equipment, vided through an IP-enabled voice service. wise exchange traffic with the public switched telephone network. network, databases, interfaces and any other (3) PSAP PARITY.—In matters related to related capabilities necessary for the deliv- IP-enabled 911 and E–911 communications, a (3) CUSTOMER.—The term ‘‘customer’’ in- ery and completion of 911 and E911 calls and PSAP, and its employees, vendors, agents, cludes a consumer of goods or services information related to such 911 or E911 calls. and authorizing government entity (if any) whether for a fee, in exchange for an explicit Such access shall be consistent with indus- shall have immunity or other protection benefit, or provided for free. try standards established by the National from liability of a scope and extent that is (4) IP-ENABLED SERVICE.—The term ‘‘IP-en- Emergency Number Association or other ap- not less than the scope and extent of immu- abled service’’ means the use of software, plicable industry standards organizations. nity or other protection from liability under hardware, or network equipment that enable Such entity shall provide access to the infra- applicable law accorded to such PSAP, em- an end user to send or receive a communica- structure at just and reasonable, nondiscrim- ployees, vendors, agents, and authorizing tion over the public Internet or a private inatory rates, terms and conditions. The government entity, respective, in matters re- network utilizing Internet protocol, or any telecommunications carrier or other entity lated to 911 or E–911 communications that successor protocol, in whole or part, to con- shall provide such access to the infrastruc- are not provided via an IP-enabled voice nect users— ture on a stand-alone basis. service. (A) regardless of whether the communica- TATE UTHORITY tion is voice, data, video, or other form; and (c) S A .—Nothing in this Act, (h) DELEGATION PERMITTED.—The Commis- (B) notwithstanding — the Communications Act of 1934, or any sion may, in the regulations prescribed (i) the underlying transmission technology Commission regulation or order shall pre- under this section, provide for the delegation used to transmit the communications; vent the imposition on or collection from a to State commissions of authority to imple- (ii) whether the packetizing and provider of voice services, including IP-en- ment and enforce the requirements of this depacketizing of the communications occurs abled voice services, of any fee or charge spe- section and the regulations thereunder. cifically designated or presented as dedi- at the customer premise or network level; or cated by a State, political subdivision there- SEC. 3. MIGRATION TO IP–ENABLED EMERGENCY (iii) the software, hardware, or network NETWORK. of, or Indian tribe on an equitable, and non- equipment used to connect users. Section 158 of the National Telecommuni- discriminatory basis for the support of 911 (5) PUBLIC SWITCHED TELEPHONE NETWORK.— and E–911 services if no portion of the rev- cations and Information Administration Or- The term ‘‘public switched telephone net- enue derived from such fee or charge is obli- ganization Act (as added by section 104 of the work’’ means any switched common carrier gated or expended for any purpose other than ENHANCE 911 Act of 2004) is amended— service that is interconnected with the tradi- support of 911 and E–911 services or enhance- (1) by redesignating subsections (d) and (e) tional local exchange or interexchange ments of such services. as subsections (e) and (f), respectively; and switched network. (d) STANDARD.—The Commission may es- (2) by inserting after subsection (c) the fol- (6) PSAP.—The term ‘‘public safety an- tablish regulations imposing requirements lowing: swering point’’ or ‘‘PSAP’’ means a facility or obligations on providers of voice services, ‘‘(d) MIGRATION PLAN REQUIRED.— that has been designated to receive 911 calls. entities with ownership or control of emer- ‘‘(1) NATIONAL PLAN REQUIRED.—No more (b) COMMON TERMINOLOGY.—Except as oth- gency services infrastructure under sub- than 18 months after the date of the enact- erwise provided in subsection (a), terms used sections (a) and (b) only to the extent that ment of the ENHANCE 911 Act of 2004, the in this Act have the meanings provided the Commission determines such regulations Office shall develop and report to Congress under section 3 of the Communications Act are technologically and operationally fea- on a national plan for migrating to a na- of 1934. sible. tional IP-enabled emergency network capa- (e) CUSTOMER NOTICE.—Prior to the compli- ble of receiving and responding to all citizen By Mr. COCHRAN (for himself, ance with the rules as required by subsection activated emergency communications. Mr. KENNEDY, Mr. WARNER, Ms. (a), a provider of an IP-enabled voice service ‘‘(2) CONTENTS OF PLAN.—The plan required CANTWELL, Ms. COLLINS, and by paragraph (1) shall— that is not capable of providing 911 and E–911 Mr. DAYTON): services shall provide a clear and con- ‘‘(A) outline the potential benefits of such S. 1064. A bill to amend the Public a migration; spicuous notice of the unavailability of such Health Service Act to improve stroke services to each customer at the time of en- ‘‘(B) identify barriers that must be over- tering into a contract for such service with come and funding mechanisms to address prevention, diagnosis, treatment, and that customer. those barriers; rehabilitation; to the Committee on (f) VOICE SERVICE PROVIDER RESPONSI- ‘‘(C) include a proposed timetable, an out- Health, Education, Labor, and Pen- BILITY.—An IP-enabled voice service provider line of costs and potential savings; sions.

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.043 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5441 Mr. KENNEDY. Mr. President, the bill may be used to train these per- was driving with her family south of San month of May is Stroke Awareness sonnel to provide more effective care Francisco. Her car swerved, but she was able Month, and it is a privilege to join Sen- to stroke patients in the crucial first to pull over before slumping at the wheel. Paramedics saw the classic signs of a stroke: ators COCHRAN, WARNER, CANTWELL, few moments after an attack. The 45-year-old driver couldn’t speak or COLLINS, and DAYTON in introducing The bill directs the Secretary of move the right side of her body. the Stroke Treatment and Ongoing Health and Human Services to conduct Had Ms. Mei’s stroke occurred a few miles Prevention Act of 2005. The STOP a national media campaign to inform to the south, she probably would have been Stroke Act is a vital step in building a the public about the symptoms of taken to Stanford University Medical Cen- national network of effective care to stroke, so that more patients can rec- ter, one of the world’s top stroke hospitals. diagnose and quickly treat victims of ognize the symptoms and receive There, a neurologist almost certainly would stroke and improve the quality of care prompt medical care. The bill also au- have seen her quickly and administered an intravenous drug to dissolve the clot. Stan- for stroke patients across America. thorizes the Secretary of HHS, acting ford was 17 miles away, across a county line. For over 20 years, stroke has been the through CDC, to operate the Paul But paramedics, following county ambu- third leading cause of death in our Coverdell National Acute Stroke Reg- lance rules that stress proximity, took her 13 country, affecting about 700,000 Ameri- istry, which will collect data about the miles north, to Kaiser Permanente’s South cans a year and killing approximately care of stroke patients and assist in San Francisco Medical Center. There, de- 163,000 a year. Every 45 seconds, an- the development of more effective spite her sudden inability to talk or walk other American suffers a stroke. Every treatments. and her facial droop, an emergency-room 3 minutes, another American dies. Few doctor concluded she was suffering from de- The bill also provides new resources pression and stress. It was six hours before a families today are untouched by this for states to improve the standard of neurologist saw her, and she never got the cruel, debilitating, and often fatal dis- care for stroke patients in hospitals, intravenous clot-dissolving drug. ease that strikes indiscriminately, and and to increase the quality of care in In a legal action brought against Kaiser on robs us of our loved ones. Even for rural hospitals through improvements Ms. Mei’s behalf, an arbitrator found that those who survive, a stroke can have in telemedicine. her care had been negligent, and in some as- devastating consequences. Over half of On Monday, the Wall Street Journal pects ‘‘incomprehensible.’’ Today, Ms. Mei all survivors are left with a disability. published an excellent article on the can’t dress herself and walks unsteadily, Prompt treatment with clot-dis- says her lawyer, Richard C. Bennett. The fin- inadequate treatment that stroke pa- gers on her right hand are curled closed, and solving drugs within three hours of a tients often encounter when ambu- she has had to give up her main avocations: stroke can dramatically improve these lances bring them to hospitals with calligraphy, ceramics and other types of art. outcomes. Yet, only 2–3 percent of all staffs not trained in the early treat- Kaiser declined to comment beyond saying stroke patients are treated with such a ment of stroke or lacking the needed that it settled the case under confidential drug within those crucial first three equipment to intervene early. Over terms ‘‘based on some concerns raised in the hours. Few Americans recognize the twenty years ago, the survival of trau- litigation.’’ symptoms of stroke, and crucial hours Stroke is the nation’s No. 1 cause of dis- ma victims was very much dependent ability and No. 3 cause of death, killing are often lost before a patient receives on whether the ambulance took them 164,000 people a year. But far too many treatment. Emergency room staffs are to a hospital with a trauma care cen- stroke victims, like Ms. Mel, get inadequate often not trained to recognize and ter, or to a hospital not equipped to care thanks to deficient medical training manage the symptoms, which further treat traumatic injury. Congress and outdated ambulance rules that don’t adds to the delay in treatment. Pa- passed the Trauma Care Systems Plan- send patients to the best stroke hospitals. tients at hospitals with primary stroke ning and Development Act of 1990 that Over the past decade, American medicine has learned how to save stroke patients’ centers have nearly five times greater revolutionized the treatment for acci- chance of receiving clot-dissolving lives and keep them out of nursing homes. dent victims. Now in 2005, it is long New techniques offer a better chance of com- drugs. past time to see that state of the art plete recovery by dissolving blood clots and Modern medicine is generating new care is made available to stroke pa- treating even more lethal strokes caused by scientific advances that increase the tients as quickly as possible. burst blood vessels in the brain. But few pa- chance of survival and at least partial Stroke is a national tragedy that tients receive this kind of treatment because or even full recovery following a leaves no American community most hospitals lack specialized staff and stroke. Physicians are learning to unscarred. Fortunately, if the right knowledge, stroke experts say. State and county rules generally require paramedics to manage strokes more effectively, and steps are taken during the brief win- they are also learning how to prevent take stroke patients to the nearest emer- dow of time available, effective treat- gency room, regardless of that hospital’s them in the first place. ment can make all the difference be- level of expertise with stroke. But science doesn’t save lives and tween healthy survival and disability Stroke care is positioned roughly where protect health by itself. We need to do or death. We need to do all we can to trauma care was a quarter-century ago. By more to bring new discoveries to the see that those precious few hours are 1975, surgeons expert at treating victims of patient and new awareness to the pub- not wasted. The STOP Stroke Act is a car crashes and other major accidents real- lic. That means educating as many significant step in reaching that goal. ized that taking severely injured patients to the nearest emergency room could mean people as possible about the warning May is Stroke Awareness Month, and I signs of stroke, so that they know death. So the surgeons led a push to make urge Congress to act quickly on this selected regional hospitals into specialized enough to seek medical attention. It legislation, and give stroke victims a trauma centers and to overhaul ambulance means training doctors and nurses in far better chance for full recovery. protocols so that paramedics would speed the the best techniques of care. It means I ask unanimous consent that the most severely injured to those centers. Now, finding better ways to treat victims as full text of a Wall Street Journal arti- in many areas of the U.S., accident victims quickly and as effectively as possible— cle of May 9 on this issue be printed in go quickly to a trauma center, and trauma specialists say this change has saved lives so that they have the best chance of the RECORD. full recovery. and lessened disability. There being no objection, the article Eighty percent or more of the 700,000 Our bill provides grants to States to was ordered to be printed in the implement statewide systems of stroke stokes that Americans suffer annually are RECORD, as follows: ‘‘ischemic,’’ meaning they are caused by care that will give health professionals [From the Wall Street Journal, May 9, 2005] blockage of an artery feeding the brain, usu- the equipment and training they need ally a blood clot. Most of the rest are ‘‘hem- STROKE VICTIMS ARE OFTEN TAKEN TO WRONG to treat this disorder. It also estab- orrhagic’’ strokes, resulting from burst blood HOSPITAL lishes a continuing education program vessels in or near the brain. Although they to make sure that medical profes- (By Thomas M. Burton) have different causes, both result in brain sionals are well trained and well aware Christina Mei suffered a stroke just before tissue dying by the minute. of the newest treatments and preven- noon on Sept. 2, 2001. Within eight minutes, Several factors have combined to prevent an ambulance arrived. Her medical fate may improvement in stroke care. In some areas, tion strategies. The initial point of have been sealed by where the ambulance hospitals have resisted movement toward a contact between a stroke patient and took her. system of specialized stroke centers because medical care is usually an emergency Ms. Mei’s stroke, caused by a clot blocking nondesignated institutions could lose busi- medical technician. Grants under this blood flow to her brain, occurred while she ness, according to neurologists who favor the

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.034 S18PT1 S5442 CONGRESSIONAL RECORD — SENATE May 18, 2005 changes. In addition, stroke treatment has In full view of other holiday travelers, Ms. injury than it prevents. And then there was lacked an organized lobby to galvanize pop- Shelton, then 66, slumped over, and an ambu- the economic issue: ‘‘Those hospitals with- ular and political interest in the ailment. lance was called. It was 4:45 p.m. out all the equipment and stroke experts,’’ DOCTOR IGNORANCE By 5:55 p.m., she arrived at what now is he says, ‘‘would be concerned about all the A big reason for the backwardness of much called Centinela Freeman Regional Medical patients going to a stroke center and taking stroke treatment is that many doctors know Center, four miles away in Marina del Rey. the patients away from us.’’ Dr. Stennes has little about it. Even emergency physicians Hospital records show that doctors thought since retired. and internists likely to see stroke victims Ms. Shelton had suffered an ‘‘acute stroke.’’ ‘‘All hospitals and clinicians try to deliver tend to receive scant neurology training in But she didn’t get a CT scan, a recommended the right care to patients, especially those their internships and residencies according initial step, until 9 p.m. By then, she was al- with urgent medical needs,’’ says Nancy E. to stroke specialists. ready outside the three-hour window for Foster, vice president for quality of the ‘‘Surprisingly, you could go through your safely administering intravenous tPA. American Hospital Association, which rep- entire internal medicine rotation without Records also say she didn’t receive the drug resents both large and small hospitals. training in neurology, and in emergency ‘‘due to unavailability of neurologist until ‘‘Community hospitals may be equally good medicine it hasn’t been emphasized,’’ says after the patient had been outside the three- at delivering stroke care, and it would be im- James C. Grotta, director of the stroke pro- hour time window.’’ portant for patients to know how well pre- gram at the University of Texas Health Ms. Shelton’s daughter, Sandi Shaw, was pared their local hospital is.’’ Science Center at Houston. until recently nurse-manager of the pres- Stroke experts aren’t proposing that every Many hospitals don’t have a neurologist tigious stroke unit at the University of hospital needs to specialize in stroke care ready to deal with emergencies. As a result, Texas Health Science Center at Houston. Ms. but instead that in every population center strokes aren’t treated urgently there, even Shaw says that at her unit, her mother there should be at least one that does. In At- though short delays increase chance of se- would have had a CT scan within five min- lanta, Emory University’s neuro-intensive vere disability or death. Even if doctors do utes of arriving, and tPA probably would care unit illustrates the special skills that react quickly, recent research has shown have been administered 30 or 35 minutes make for top care. Owen B. Samuels, direc- that many aren’t sure what treatment to after that. tor of the unit, estimates that 20% to 30% of provide. Today, according to her daughter, Ms. patients it treats received poor initial med- For example, a survey published in 2000 in Shelton often can’t come up with words or ical care before arriving at Emory, jeopard- the journal Stroke showed that 66 percent of relatives’ names, can’t take care of her fi- izing their futures or even lives. Brain hem- hospitals in North Carolina lacked any pro- nances, and can’t follow certain basic com- orrhages, for example, are commonly tocol for treating stroke. About 82 percent mands in neurological tests. misdiagnosed, even in patients who repeat- couldn’t rapidly identify patients with acute Kent Shoji, an emergency-room doctor at edly showed up at emergency rooms with un- stroke. Centinela Freeman who handled Ms. usually severe headaches, Dr. Samuels says. As with other life-threatening conditions, Shelton’s case, says, ‘‘She was a possible The Emory unit has 30 staff members, in- stroke patients are better off going where candidate for tPA,’’ but a CT scan was re- cluding two neuro-critical care doctors and doctors have had a lot of practice addressing quired first. ‘‘The order was put in for a CT five nurse practitioners. A team is on duty 24 their ailment. A seven-year analysis of sur- scan,’’ Dr. Shoji says, ‘‘I can’t answer why it hours a day. The unit handles about two gery in New York state in the 1990s showed took so long.’’ dozen patients most days, keeping the staff that patients with ruptured blood vessels in A Centinela Freeman spokeswoman says, busy. On the ward, nearly all patients are the brain were more than twice as likely to ‘‘We did not have 24/7 coverage with our CT unconscious or sedated, so it’s eerily silent. die—16% versus 7%—in hospitals doing few scan, and we had to call, a technician to Patients generally need to rest their brains such operations, compared with those doing come in. That’s pretty common with a com- as they recover from stroke or surgery. them regularly. A national study published munity hospital.’’ The hospital has since After a hemorrhagic stroke, blood pressure last year in the Journal of Neurosurgery been acquired by a larger health system and in the cranium builds as blood continues to showed a similar disparity. now does have 24-hour CT capability. seep out of the ruptured vessel. Pressure can Another major shortcoming of most stroke ‘PAROCHIAL INTERESTS’ be deadly, cutting off oxygen to the brain. Or escaped blood can cause a ‘‘vasospasm,’’ days treatment, according to many neurologists, A hospital-accrediting group has begun after the original stroke, in which the brain is the failure to use the genetically engi- designating hospitals as stroke centers, but reacts violently to seeped-out blood. In the neered clot-dissolving drug known as tPA. that is only part of what is needed, stroke worst case, the brain herniates, or squeezes Short for tissue plasminogen activator, tPA, experts assert. They say hospitals typically out the base of the skull, causing death. To which is made by Genentech Inc., has been have to come together to create local polit- avoid this, nurses at Emory constantly mon- shown to be a powerful treatment that can ical momentum to change state or county itor brain pressure and temperatures. They lessen disability for many patients. A study rules to that ambulances actually take put in drain lines. They infuse medicines to published in 2004 in The Lancet, a prominent stroke patients to stroke centers, not the dehydrate, depressurize and stop bleeding. medical journal, showed that the chances of nearest ER. New York, Maryland and Massa- Since Emory launched the neuro-intensive returning to normal are about three times chusetts are moving toward creating stroke- unit seven years ago, 42% of patients with greater among patients getting tPA in the care systems, and Florida recently passed a hemorrhagic strokes have become well first 90 minutes after suffering a stroke, even law creating stroke centers. But in many enough to go home, compared with 27% be- after accounting for tPA’s potential side ef- places, short-term economic interests im- fore. Fewer need rehabilitation—31% versus fect of cerebral bleeding that can cause pede change, some doctors say. 40%—and the death rate is down. death. But several recent medical-journal ar- ‘‘There are still very parochial interests by Damica Townsend-Head, 33, gave the ticles have found that nationally, only 2% to hospitals and physicians to keep patients lo- Emory team a scare. After surgery last fall 3% of strokes caused by clots are treated cally even if they’re not equipped to handle for a hemorrhagic stroke, her brain swelling with tPA, which has no competitor on the them,’’ says neurosurgeon Robert A. Sol- was ‘‘really out of control,’’ Dr. Samuels market. omon of New York Presbyterian Hospital/Co- says, raising questions about whether she Some authors of studies supporting the use lumbia. ‘‘Hospitals don’t want to give up pa- would survive. The staff put a ‘‘cooling cath- of tPA have had consultant or other finan- tients.’’ eter’’ into a blood vessel, which allowed the cial relationships with Genentech. Skeptics The University of California at San Diego circulation of ice water to bring down the of the drug point to these ties and stress runs one of the leading stroke hospitals in temperature in her blood and brain. They in- tPA’s side-effect danger. But among stroke the country. It and others in the area that tentionally dehydrated her brain to lower neurologists, there is a strong consensus are well prepared to treat stroke patients pressure. A month later, she woke up and re- that the drug is effective. have sought for a decade to set up a regional covered with minimal disability. She still One reason why many patients don’t re- system, but there has been little progress, walks with a cane and tires easily, but her ceive tPA is that they arrive at the hospital says Patrick D. Lyden, UCSD’s chief of neu- speech is normal and she hopes to return more than three hours after a stroke, the rology, ‘‘Some hospitals are resisting losing soon to work. ‘‘I consider her what we’re in time period during which intravenous tPA stroke business,’’ he says. ‘‘We have the business for,’’ Dr. Samuels says. should be given. But many hospitals and doc- same political crap as in most communities. tors don’t use tPA at all, even though it has Paramedics still take people to the local PUBLIC AWARENESS been available in the U.S. since 1996. The dis- ER.’’ The public’s low awareness of stroke symp- solving agent’s relatively high cost—$2,000 or Among the opponents of the stroke-center toms—and the need to respond imme- more per patient—is a barrier. Medicare pays concept during the 1990s was Richard diately—can also hinder proper care. hospital a flat reimbursement of about $6,700 Stennes, the ER director at Paradise Valley Ischemic strokes, those caused by clots or for stroke treatment, regardless of whether Hospital south of San Diego. In various pub- other artery blockage, cause symptoms such tPA is used. lic debates, Dr. Stennes recalls, he argued as muscle weakness or paralysis on one side, AIRPORT EMERGENCY that many apparent stroke patients would be slurred speech, facial droop, severe dizziness, Glender Shelton of Houston had an siphoned away from community hospitals unstable gait and vision loss. People with ischemic stroke caused by a clot at Los An- even if they didn’t turn out to have strokes. this kind of stroke are sometimes mistaken geles International Airport on Dec. 30, 2003. Also, he argued that tPA might cause more for being drunk. In addition to intense head

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.057 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5443 pain, a hemorrhagic stroke often leads to Snyder, the nurse in the ski area’s first-aid and the government’s role in helping nausea, vomiting or loss of balance or con- room quickly diagnosed stroke. She called a survivors cope with the loss of a loved sciousness. Still, many people with some of helicopter and an ambulance. one. All too often surviving spouses are these symptoms merely go to bed in hopes of Ms. Snyder says she knew the closest hos- forced to make difficult, life changing improving overnight, doctors say. Instead, pital with a stroke team was Sutter Rose- they should go immediately to a hospital ville Medical Center in Roseville, CA. The decisions alone. Both Senator CLINTON and demand a CT scan as a first diagnostic helicopter pilot was planning to take Mr. and I are determined to provide as step. Toeniskoetter to a closer ER, but Ms. Snyder much help as possible to those who The well-funded American Heart Associa- says she stood on the helicopter runners, de- must bear the burden of loss, particu- tion, established in 1924, has made many peo- manding the patient go to Sutter. The pilot larly those with young children. By ple aware of heart attack symptoms and eventually relented. Mr. Toeniskoetter went providing two years of child care eligi- thereby saved many lives. In contrast, the to Sutter, where he promptly received tPA. bility, our goal is to ensure that a sur- American Stroke Association was started Today, he has no disability and is back run- viving spouse has the time and tools only in 1998 as a subsidiary of the heart asso- ning a real estate-development business in ciation. The stroke association spent $162 the San Jose area. ‘‘Trauma patients go to necessary to make a healthy adjust- million last year out of the heart associa- trauma centers, not the nearest hospital,’’ ment to life after the servicemember’s tion’s $561 million overall budget. he says. ‘‘Stroke victims, too, require a real death. Many decisions face survivors, Justin Zivin, another University of Cali- specialized sort of care.’’ most importantly, how to make a liv- fornia at San Diego stroke expert, says the One-third of all strokes are suffered by ing. Often that means having to re- stroke association ‘‘is a terribly ineffective people under 60, and hemorrhagic strokes in enter the work force after years of bunch. When it comes to actual public edu- particular often strike young adults and being a working mother. The question cation, I haven’t seen anything.’’ children. Vance Bowers of Orlando, Fla., was The stroke association counters that it is 9 when he woke up screaming that his eyes of how to adequately care for young buying television and radio ads promoting hurt, shortly after 1 a.m. on Jan. 8, 2001. Mal- children while trying to find employ- awareness, similar to ones produced in 2003 formed blood vessels in his brain were bleed- ment or restart a career should not be and 2004. The group also sponsors research ing. He was in a coma by the time an ambu- an issue. Further, we have expanded and education, including an annual inter- lance delivered him at 1:57 a.m. to the near- this eligibility to include access to national stroke-medicine conference. est emergency room, at Florida Hospital child care centers in other Federal fa- It’s not just the general public that fails to East Orlando. cilities. This will aide surviving recognize stroke symptoms. Often, emer- Emergency-room doctors soon realized spouses with children if they are in the gency-room doctors and nurses don’t either. Vance had a hemorrhagic stroke. But neuro- Gretchen Thiele of suburban Detroit began surgery isn’t performed at that hospital. A process of relocating to an area of the having horrible headaches last May, for the sister hospital 14 minutes away by ambu- country without a military base near- first time in her life. ‘‘She wasn’t one to lance, Florida Hospital Orlando, did have by, but in the proximity of a local Fed- complain, but she said, ‘I can’t even lift my neurosurgical capability. But in part because eral building. I am honored that Sen- head off the pillow.’’’ recalls her daughter, of administrative tangles, Vance didn’t get ator CLINTON is working with me on Erika Mazero. Ms. Thiele, 57, nearly passed to the second hospital until 4:37 a.m., more this legislation and I encourage my out from the pain one night and suffered than two hours after his arrival. Surgery colleagues to support this important blurred vision. When the pain recurred in the began at 6:18 a.m. ‘‘This delay may have cost measure. morning, she went to the emergency room at this young man the possibility of a func- nearby St. Joseph’s Mercy of Macomb Hos- tional survival,’’ Paul D. Sawin, the neuro- By Mr. VOINOVICH (for himself, pital. Ms. Mazero says that during the six surgeon who operated on Vance, said in a let- hours her mother spent there, she was given ter to the hospitals’ joint administration. Ms. STABENOW, Mr. BUNNING, a CT scan, but not a spinal tap, which could Florida Hospital, an emergency-medicine Mr. LEVIN, Mr. ALEXANDER, Mr. definitively have shown she had a leaking group and an ER doctor recently agreed to DEWINE, Mr. MCCONNELL, and brain aneurysm, meaning a ballooned and settle a lawsuit filed against them in Orange Mr. FRIST): weakened artery in her brain. After the CT, County, Fla., Circuit Court by the Bowers S. 1066. A bill to authorize the States Ms. Thiele was given a muscle relaxant and family. The defendants agreed to pay a total (and subdivisions thereof), the District pain medicine and sent home, her daughter of $800,000, court records show. Monica Reed, of Columbia, territories, and posses- says. senior medical officer of the hospital, says sions of the United States to provide Two months later, the blood vessel burst. the care Vance received was ‘‘stellar’’ and Neurosurgeons at William Beaumont Hos- that any delays weren’t medically signifi- certain tax incentives to any person for pital in Royal Oak, Mich., did emergency cant. Vance’s stroke, not the care he re- economic development purposes; to the surgery, but Ms. Thiele suffered massive ceived, caused his injuries, she said. Committee on Finance. bleeding and died. Ali Bydon, one of the neu- Vance, now 13, survived but is mentally Mr. VOINOVICH. Mr. President, I rosurgeons at Beaumont, says a CT scan handicapped and suffers daily seizures, his rise today to introduce the Economic often is inadequate and that her condition mother, Brenda Bowers, says. Once a star Development Act of 2005 to authorize could have been detected earlier with a spi- baseball player, he goes by wheelchair to a States to provide tax incentives for nal tap, also called a lumbar puncture. ‘‘Had class for disabled children. He speaks very economic development purposes. she had a lumbar puncture and perhaps an slowly but not in a way that many people This legislation is crucial to preserve operation earlier, it might have saved her can understand. ‘‘He remembers playing life,’’ says Dr. Bydon. ‘‘In general, a person baseball with all of his friends,’’ his mother tax incentives as an important tool for who tells you, ‘I usually don’t get headaches, says but they rarely come around any more. State and local governments to pro- and this is the worst headache of my life,’ is ‘‘He really misses all that.’’ mote economic development in the something that should alarm you.’’ wake of last year’s decision by the In addition, he says Ms. Thiele ‘‘abso- By Mr. THUNE (for himself and Sixth Circuit Court of Appeals in Cuno lutely’’ was experiencing smaller-scale bleed- Mrs. CLINTON): v. DaimlerChrysler. ing in May that foreshadowed a more serious S. 1065. A bill to amend title 10, In its decision in Cuno, the Sixth Cir- rupture. If doctors identify this kind of United States Code, to extend child cuit struck down Ohio’s manufacturing bleeding early, he says, chances of death are ‘‘minimal.’’ But when a rupture occurs, he care eligibility for children of members machinery and equipment tax credit, says, ‘‘25% of patients never make it to the of the Armed Forces who die in the line which I helped enact while I was Gov- hospital, 25% die in the hospital and 25% are of duty; to the Committee on Armed ernor of Ohio, on grounds that it vio- severely disabled.’’ Services. lated the ‘‘dormant’’ Commerce Clause A St. Joseph’s hospital spokeswoman says Mr. THUNE. Mr. President, today I of the U.S. Constitution. The court the hospital has ‘‘very aggressive standards rise with my distinguished colleague ruled that the tax incentive violated for treatment, and we met this standard.’’ from New York, Senator CLINTON, to the Commerce Clause of the U.S. Con- declining to elaborate. introduce legislation that will provide stitution because it granted pref- DETERMINED NURSE a surviving spouse with two years of erential tax treatment to companies Paramedics did the right thing after Chuck child care eligibility on any military that invest within the State rather Toeniskoetter’s stroke, but only because of instillation or Federal facility with a than in other States. some extraordinary intervention. Mr. child care center. The legislation was The Cuno decision has had severe re- Toeniskoetter, then 55, was on a ski trip, Dec. 23, 2000, at Bear Valley, near Los Ange- inspired by our work on the Senate percussions across the country. The de- les. He had just finished a run at 3:30 p.m. Armed Services Committee. In Feb- cision immediately cast doubt on the when, in the snowmobile shop, he began slur- ruary the committee held an important constitutionality of tax incentives ring his words and nearly fell over. Kathy hearing on improving survivor benefits presently offered by all fifty States. As

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.063 S18PT1 S5444 CONGRESSIONAL RECORD — SENATE May 18, 2005 a result, States and businesses have undermine Ohio’s competitiveness in facturers don’t lose key tax incentives been reluctant to go forward with new attracting new businesses. just when such incentives are needed projects that depend on the avail- In the Cuno decision, the Sixth Cir- the most. ability of tax incentives out of concern cuit ruled that the manufacturing ma- The Cuno decision also sets a bad that the Cuno decision may be used to chinery and equipment tax incentive, precedent that, if not checked, could invalidate those incentives. This legal given by Ohio to DaimlerChrysler as upset our carefully balanced federal uncertainty has worsened an already part of its incentive package, violated system. One of the most ingenious as- challenging economic environment. the Commerce Clause of the U.S. Con- pects of the U.S. Constitution is that it Furthermore, the decision threatens to stitution because it discriminated leaves a great deal of power with the undermine federalism by dramatically against interstate commerce by grant- States. It gives the States flexibility to restricting the ability of States to ing preferential tax treatment to com- devise their own solutions and, in the craft their tax codes to promote eco- panies that expanded within the State process, fosters innovation in govern- nomic development in the manner they rather than in other States. ment. Thus, the States are the labora- determine is best. If left standing, this The Cuno decision is troubling for tories of our democracy and an innova- decision will handcuff the States in the several reasons. First, I believe the tion they have developed to help create Sixth Circuit, as well as States in Sixth Circuit failed to appreciate the jobs and prosperity are programs that other circuits where the court chooses need for States to condition the avail- encourage new growth through tax in- to follow Cuno, in their efforts to pro- ability of certain tax incentives on the centives for training, job creation, and mote economic growth and create jobs. undertaking of the specified economic investment in new plants and equip- Additionally, it will cripple their abil- activity within a State. In the case of ment. The availability of tax incen- ity to compete internationally. In to- the manufacturing machinery and tives was critical to our success in day’s competitive economic environ- equipment tax incentive, Ohio needed Ohio and in being number one in new ment, we can not afford to unilaterally to limit the availability of the tax in- plant construction and expansion. Be- discard the use of tax incentive to at- centive to the investments undertaken cause Ohio had the ability to devise tax tract business to this country. As a in the State. Otherwise, Ohio would incentives that fit its economic devel- former Governor who had to compete have been giving companies a tax in- opment needs, we were able to create against Japan, Canada, China and Eu- centive for activity that did not benefit thousands of new jobs. My legislation rope for new business projects, I know the State. In other words, Ohio would will guarantee that the States remain just how important a role tax incen- have been effectively subsidizing in- our engines of innovation. tives can play in attracting new busi- vestment in other States. We all know This legislation is something that nesses. I can assure you that our com- that in economics there is no free Congress should have done a long time petitors are certainly not going to stop lunch and States should not be forced ago. The courts are not well-suited to using tax incentives. Neither should to provide a free lunch when they making the often complex policy deci- we. choose to give tax incentives. If Ohio sions regarding whether a tax incentive Fortunately, the U.S. Constitution or any other State is willing to forego truly discriminates against interstate gives Congress the power to determine tax revenue, it should be allowed to re- commerce and hinders the creation of a which State actions violate the Com- ceive something in return, namely in- national market, or whether a tax in- merce Clause. The purpose of the Eco- vestment or other economic activity in centive actually fosters innovation and nomic Development Act of 2005 is the State. Accordingly, Ohio’s tax in- job growth. Such decisions necessarily therefore to have Congress override the centive did not discriminate against involve a careful weighing of com- decision in Cuno by authorizing States interstate commerce. It merely re- peting and often mutually exclusive in- to provide tax incentives for economic quired companies, if they chose to take terests, and therefore should be made development purposes. The legislation advantage of the incentive, to under- by Congress. Moreover, judicial deci- would remove the legal uncertainty take the investment in Ohio, the same sions often fail to provide bright lines surrounding tax incentives created by State that would be foregoing tax rev- on which incentives run afoul of the the Cuno decision and preserve the enue to provide the incentive. dormant Commerce Clause, injecting States’ power to design their tax codes There is also a little legal fiction uncertainty about the validity of cer- to promote economic development. present in the Cuno decision. The court tain tax incentives that makes busi- The history of the tax incentive states that Ohio could have provided a nesses weary of relying on them and re- struck down in Cuno demonstrates the direct subsidy to companies that un- duce their effectiveness. Indeed, the important role tax incentives can play dertook investment in the State. Be- Supreme Court itself has called its dor- in promoting economic development. cause Ohio decided to structure the mant Commerce Clause jurisprudence a When I was Governor of Ohio, at my re- program as a tax credit, however, the ‘‘quagmire.’’ Hence, it is time that quest and as part of my jobs incentive court said that it ran afoul of the Com- Congress provide some clear rules on package, the Ohio Legislature enacted merce Clause. I do not see how a direct the treatment of tax incentives under the manufacturing machinery and subsidy does not violate the dormant the Commerce Clause. equipment tax incentive to encourage Commerce Clause, but a tax credit As Supreme Court Justice Felix businesses to expand their operations does. They are economically the same. Frankfurter stated nearly a half-cen- in Ohio and to help draw new busi- If left standing, the Cuno decision tury ago: nesses to Ohio. It worked. Between 1993 will have a particularly detrimental ef- At best, this Court can only act nega- and 1997, Ohio was ranked number one fect on the U.S. manufacturing sector. tively; it can determine whether a specific in the Nation by Site Selection and In- From rising energy and health care state tax is imposed in violation of the Com- dustrial Development magazine three costs to frivolous lawsuits and unfair merce Clause. Such decisions must nec- times for highest number of new facili- international trade practices, the U.S. essarily depend on the application of rough ties, expanded facilities, and new man- manufacturing sector and the hard and ready legal concepts. We cannot make a ufacturing plants. Since the program’s working men and women who drive it detailed inquiry into the incidence of diverse economic burdens in order to determine the inception, businesses have been eligible are getting squeezed from all sides. De- extent to which such burdens conflict with to claim a total of $2 billion in credits spite all they are up against, it’s a tes- the necessities of national economic life. toward $34 billion in new equipment in- tament to their ability and determina- Neither can we devise appropriate standards vestments. tion that they are still the most pro- for dividing up national revenue on the basis Currently, this incentive is part of an ductive manufacturers in the world. of more or less abstract principles of con- incentive package being offered to This Sixth Circuit decision, however, is stitutional law, which cannot be responsive automobile manufacturer a new roadblock that threatens to take to the subtleties of the interrelated econo- DaimlerChrysler in support of its plans away one of the most effective and effi- mies of Nation and State. The problem calls for solution by devising for a $200 million expansion of their cient means for assisting manufactur- a congressional policy. Congress alone can Jeep plant. The ruling by the Sixth ers who want to create new jobs here in provide for a full and thorough canvassing of Circuit in Cuno, however, puts that ex- America. The Economic Development the multitudinous and intricate factors pansion in jeopardy and threatens to Act of 2005 will make sure that manu- which compose the problem of the taxing

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.040 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5445 freedom of the States and the needed limits own and should not be taken away. (4) is reduced or eliminated as a result of on such state taxing power. Congressional Moreover, if the Supreme Court fails to an increase in out-of-State activity by a per- committees can make studies and give the review the Cuno decision, then our son other than the recipient of the tax incen- claims of the individual States adequate tive or as a result of such other person not hearing before the ultimate legislative for- States, the States in the Sixth Circuit, having a taxable presence in the State; mulation of policy is made by the represent- will be at a competitive disadvantage (5) results in loss of a compensating tax atives of all the States. . . . Congress alone in attracting businesses against other system, because the tax on interstate com- can formulate policies founded upon eco- states which are not affected by the merce exceeds the tax on intrastate com- nomic realities. . . . Cuno decision and can offer tax incen- merce; The Economic Development Act of tives. (6) requires that other taxing jurisdictions 2005 is a good first step toward pro- The bill has also been endorsed by offer reciprocal tax benefits; or Governor Bob Taft of Ohio, the Na- (7) requires that a tax incentive earned viding the prudent and carefully con- with respect to one tax can only be used to sidered legislation that Justice Frank- tional Governors Association, the Na- reduce a tax burden for or provide a tax ben- furter urged the Congress to pass near- tional League of Cities, the National efit against any other tax that is not im- ly a half century ago. Association of Counties, the National posed on apportioned interstate activities. At its core, the Economic Develop- Conference of Mayors and the Federa- (b) NO INFERENCE.—Nothing in this section ment Act of 2005 recognizes that deci- tion of Tax Administrators, as well as shall be construed to create any inference sions should be made, if possible, at the by broad-based business coalitions and with respect to the validity or invalidity State and local level. States make and under the Commerce Clause of the United the Teamsters. States Constitution of any tax incentive de- should make decisions about the pro- I am hopeful that the seriousness of scribed in this section. grams and services they want to pro- this issue, and the severity of the rul- SEC. 4. DEFINITIONS; RULE OF CONSTRUCTION. vide with their tax dollars, not the ing’s possible ramifications, will allow (a) DEFINITIONS.—For purposes of this least of which are economic develop- us to see quick and positive consider- Act— ment programs. Highway funding, edu- ation of my bill. The States are in a (1) COMPENSATING TAX SYSTEM.—The term cation funding, welfare funding, and crisis mode because of this ruling. In ‘‘compensating tax system’’ means com- funding for seniors programs all vary Ohio, as I’m sure is the case across the plementary taxes imposed on both interstate from state to state because State legis- and intrastate commerce where the tax on country, many important projects have interstate commerce does not exceed the tax latures, acting on behalf of their citi- been put on hold as we await the on intrastate commerce and the taxes are zens, make choices and set priorities. court’s further action. imposed on substantially equivalent events. This has allowed government policy to The challenges that manufacturers (2) ECONOMIC DEVELOPMENT PURPOSES.—The reflect the diversity of interests in our and workers face today are daunting term ‘‘economic development purposes’’ great republic and results in better and but surmountable. The last thing we means all legally permitted activities for at- more responsive government. Accord- need, however, is an artificial legal tracting, retaining, or expanding business ingly, states should be allowed to hurdle that threatens to trip us up. I activity, jobs, or investment in a State. prioritize economic development in an urge my colleagues to support the Eco- (3) IMPOSED ON APPORTIONED INTERSTATE ACTIVITIES.—The term ‘‘imposed on appor- effort to create jobs and prosperity for nomic Development Act of 2005 so that tioned interstate activities’’ means, with re- their citizens, and, yes, attract busi- we can preserve the ability of the spect to a tax, a tax levied on values that ness from outside their State. If States States to foster economic development can arise out of interstate or foreign trans- choose to use tax incentives to pro- and help put our economy, and espe- actions or operations, including taxes on in- mote economic development, then that cially our manufacturing industries, come, sales, use, gross receipts, net worth, is not a violation of the interstate back on the road to recovery and pros- and value added taxable bases. Such term commerce clause, that’s simply their perity. shall not include taxes levied on property, choice. It is called federalism, and it I ask unanimous consent that the transactions, or operations that are taxable only if they exist or occur exclusively inside should not be thwarted by the courts. text of the bill be printed in the the State, including any real property and There are a couple of points about RECORD. severance taxes. this legislation that I would like to dis- There being no objection, the bill was (4) PERSON.—The term ‘‘person’’ means any cuss. First, this legislation is carefully ordered to be printed in the RECORD, as individual, corporation, partnership, limited crafted to protect the most common follows: liability company, association, or other or- and benign forms of tax incentives, but S. 1066 ganization that engages in any for profit or not to authorize those tax incentives Be it enacted by the Senate and House of Rep- not-for-profit activities within a State . that truly discriminate against inter- resentatives of the United States of America in (5) PROPERTY.—The term ‘‘property’’ state commerce. I believe this bill Congress assembled, means all forms of real, tangible, and intan- gible property. strikes the right balance between pro- SECTION 1. SHORT TITLE. (6) STATE.—The term ‘‘State’’ means each This Act may be cited as the ‘‘Economic tecting States’ tax rights and pre- of the several States (or subdivision thereof), Development Act of 2005’’. serving long-established protections the District of Columbia, and any territory against truly discriminatory State tax SEC. 2. AUTHORIZATION. or possession of the United States. Congress hereby exercises its power under practices. Second, this legislation does (7) STATE TAX.—The term ‘‘State tax’’ Article I, Section 8, Clause 3 of the United means all taxes or fees imposed by a State. not invalidate any tax incentives. It States Constitution to regulate commerce (8) TAX BENEFIT.—The term ‘‘tax benefit’’ only authorizes tax incentives. Any tax among the several States by authorizing any incentive not covered by the legisla- means all permanent and temporary tax sav- State to provide to any person for economic ings, including applicable carrybacks and tion’s authorization is simply subject development purposes tax incentives that carryforwards, regardless of the taxable pe- to the traditional dormant Commerce otherwise would be the cause or source of riod in which the benefit is claimed, re- Clause review by the courts. Third, this discrimination against interstate commerce ceived, recognized, realized, or earned. under the Commerce Clause of the United legislation does not require any state (9) TAX INCENTIVE.—The term ‘‘tax incen- to provide tax incentives. Although I States Constitution, except as otherwise pro- tive’’ means any provision that reduces a vided by law. had success using tax incentives to fos- State tax burden or provides a tax benefit as SEC. 3. LIMITATIONS. ter economic growth in Ohio while I a result of any activity by a person that is (a) TAX INCENTIVES NOT SUBJECT TO PRO- was Governor, I recognize that some enumerated or recognized by a State tax ju- TECTION UNDER THIS ACT.—Section 2 shall risdiction as a qualified activity for eco- states have concerns about whether not apply to any State tax incentive which— nomic development purposes. and how to offer tax incentives and (1) is dependent upon State or country of (b) RULE OF CONSTRUCTION.—It is the sense therefore believe it should be left to incorporation, commercial domicile, or resi- of Congress that the authorization provided the states to resolve these concerns. dence of an individual; in section 2 should be construed broadly and I am pleased that this legislation is (2) requires the recipient of the tax incen- the limitations in section 3 should be con- being co-sponsored by all of the Sen- tive to acquire, lease, license, use, or provide strued narrowly. ators representing States in the Sixth services to property produced, manufactured, SEC. 5. SEVERABILITY. generated, assembled, developed, fabricated, If any provision of this Act or the applica- Circuit. We all realize that the right of or created in the State; tion of any provision of this Act to any per- states to make their own decisions (3) is reduced or eliminated as a direct re- son or circumstance is held to be unconstitu- about the programs and services they sult of an increase in out-of-State activity tional, the remainder of this Act and the ap- offer within their boundaries is their by the recipient of the tax incentive; plication of the provisions of this Act to any

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.042 S18PT1 S5446 CONGRESSIONAL RECORD — SENATE May 18, 2005 person or circumstance shall not be affected demic. Today 65 percent of our popu- complex, multifaceted bill. But, this by the holding. lation is overweight or obese. Obesity afternoon, I’d just like to outline the SEC. 6. EFFECTIVE DATE. is associated with numerous health bill’s major elements: This Act shall apply to any State tax in- problems and increased risks of diabe- The first component addresses centive enacted before, on, or after the date healthy kids and schools. Prevention of the enactment of this Act. tes, heart disease, stroke, and several types of cancer, to name just a few. and the development of a healthy hab- By Mr. HARKIN: Another contributing factor to our its and lifestyles must begin in the S. 1074. A bill to improve the health health crisis is tobacco. We don’t hear early years, with our children. Unfor- of Americans and reduce health care as much about the dangers of tobacco tunately, today, we are heading in ex- costs by reorienting the Nation’s use, today, as we used to. That’s be- actly the wrong direction. More and health care system toward prevention, cause there is a perception that we’ve more children all across America are wellness, and self care; to the Com- turned the corner—that we’ve done all suffering from poor nutrition, physical mittee on Finance. that we need to do. But that perception inactivity, mental health issues, and Mr. HARKIN. Mr. President, for more is not accurate. In 2002, 46 million tobacco use. than a decade, I have spoken out about American adults regularly smoked For example, just since the 1980s, the the need to fundamentally reorient our cigarettes—that 26 percent of our popu- rates of obesity have doubled in chil- approach to health care in America—to lation. Nearly 40 percent of college- dren and tripled in teens. Even more reorient it towards prevention, aged students smoke. What this means alarming is the fact that a growing wellness and self care. is that after decades of education and number of children are experiencing I don’t think you’ll find too many efforts to stop tobacco use, more than what used to be thought of primarily people who would argue with the state- one in every four Americans is still ad- as adult health problems. Almost two- ment that if you get sick, the best dicted to nicotine and smoking. thirds—60 percent—of overweight chil- place in the world to get the care you Mental health is another enormous dren have at least one cardiovascular need is here in America. We have the challenge that we are grossly neglect- disease risk factor. Recent studies of best trained, highest-skilled health ing. Mental health and chronic disease children have shown that increasing professionals in the world. We have are intertwined. They can trigger one weight, greater salt consumption from cutting-edge, state-of-the-art equip- another. It is about time we stop sepa- fast food, and poor eating habits have ment and technology. We have world- rating the mind and body when dis- contributed to the rise in blood pres- class health care facilities and research cussing health. Prevention and mental sure, higher cholesterol levels, and a institutions. health promotion programs should be shockingly rapid increase in adult- But, when it comes to helping people integrated into our schools, work- onset diabetes. stay healthy and stay out of the hos- places, and communities along with The HeLP America Act will more pital, we fall woefully short. In the physical health screenings and edu- than double funding for the successful U.S., we spend in excess of $1.8 trillion cation. Surely, at the outset of the 21st PEP program, which promotes health a year on health care. Fully 75 percent century, it’s time to move beyond the and physical education programs in our of that total is accounted for by chron- lingering shame and stigma that often public schools. I find it disturbing that ic diseases—things like heart disease, attend mental health. more than one third of youngsters in cancer, and diabetes. And what these Seventy percent of all deaths in the grades 9 through 12 do not regularly en- diseases have in common is that—in so U.S. are now linked to chronic condi- gage in adequate physical activity. many cases—they are preventable. tions such as heart disease, cancer, and This is a shame, because studies show In the United States, we fail to make diabetes. In so many cases, these that regular physical activity boosts an up-front investment in prevention. chronic diseases are caused by poor nu- self-esteem and improves health. So we end up spending hundreds of bil- The HeLP America Act will also ex- lions on hospitalization, treatment, trition, physical inactivity, tobacco pand the Harkin Fruit and Vegetable and disability. This is foolish—and, use, and untreated mental illness. This Program to provide more free fresh clearly, it is unsustainable. In fact, I’ve is unacceptable. After many months of meetings and fruits and vegetables in more public long said that we don’t have a health discussions with Iowans and experts schools. The bill will also encourage care system here in America, we have a give schools incentives to create ‘‘sick care’’ system. And it is costing across the nation, today I am re-intro- healthier environments, including us dearly both in terms of health care ducing comprehensive legislation de- goals for nutrition education and phys- costs and premature deaths. signed to transform America’s ‘‘sick Consider the cost of major chronic care’’ system into a true health care ical activity. diseases—diseases that, as I said, are so system—one that emphasizes preven- The HeLP America Act would also often preventable. tion and health promotion. establish a grant program to provide For starters the annual cost of obe- I am calling this bill the HeLP Amer- mental health screenings and preven- sity is $117 billion. For cardiovascular ica Act, with HeLP as an acronym for tion programs in schools, along with disease is about $352 billion. For diabe- Healthy Lifestyles and Prevention. The training for school staff to help them tes it’s $132 billion. For smoking it’s aim is to give individuals and commu- recognize children exhibiting early more than $75 billion. And for mental nities the information and tools they warning signs. It will improve access to illness it’s $150 billion; indeed, major need to take charge of their own mental health services for students and depression is the leading cause of dis- health. their families. ability in the United States. Because if we are serious about get- New to the HeLP Act this year is a Now, if I bought a new car, drove ting control of health-care costs and strong focus on breastfeeding pro- that car off the lot, and never main- health-insurance premiums, then we motion. Sound nutrition begins the tained it—never checked the oil, never must give people access to preventive moment a baby is born and there is a checked the transmission fluid, never care . . . and we must give people the vast body of scientific evidence that got it tuned up—you’d think I was tools they need to stay healthy and shows beyond a shadow of a doubt that crazy, not to mention grossly irrespon- stay out of the hospital. mom’s milk is the ideal form of nutri- sible. The common-sense principle with This will take a sustained commit- tion to promote child health. But in an automobile is: ‘‘I pay a little now to ment from government, schools, com- the U.S. we don’t do enough to encour- keep the car maintained, or I pay a munities, employers, health officials, age breastfeeding. The HeLP America whole lot later.’’ and the tobacco and food industries. Act seeks to remove some of those bar- Well, it’s the same with our national But a sustained effort can have a huge riers and to encourage new mothers to health priorities. Right now, our payoff—for individuals and families, breastfeed. health care system is in a downward for employers, for society, for govern- The second broad component of the spiral. We are not paying a little now; ment budgets, and for the economy at HeLP American Act addresses Healthy so we are paying a whole lot later. large. Communities and Workplaces. For ex- For example, we are failing to ad- As I said, the HeLP America Act is ample, the bill aims to create a dress the nation’s growing obesity epi- comprehensive legislation. It a very healthier workforce by providing tax

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.032 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5447 credits to businesses that offer the foods we buy can be problematic— that people have the information and wellness programs and health club especially in restaurants. This is why tools and incentives they need to take memberships. Studies show that, on the HeLP America bill proposes to ex- charge of their health. And that is average, every $1.00 that is invested in tend the nutritional labeling require- what the HeLP America Act is all workplace wellness returns $3.00 in sav- ments of the National Labeling and about. ings on health costs, absences from Education Act, which currently covers Of course, this description of my bill work, and so on. the vast majority of retail foods, to just scratches the surface. The HeLP At a field hearing in Iowa last year, restaurants foods as well, which were America Act is comprehensive. It is I heard from Mr. Lynn Olson, CEO of exempted from the NLEA when it first ambitious. And I fully expect an uphill Ottumwa Regional Health Center. The passed. fight in some quarters of Congress. Center offers a comprehensive wellness The marketing of junk food—espe- program for its employees, including cially to kids—is out of control. It was But just as with the Americans with reduced health insurance premiums for estimated that junk food marketers, Disabilities Act 14 years ago, I am com- those employees who meet individual alone, spent $15 billion in 2002 pro- mitted to doing whatever it takes—and health goals. The Center has seen tre- moting their fare. And, I don’t have to for as long as it takes—to pass this mendous savings from their investment tell you, they are not advertising broc- critically needed legislation. in health promotion. coli and apples. No, the majority of It’s time to heed the Golden Rule of My bill also creates a grant program these ads are for candy and fast food— Holes, which says: When you are in a for communities, encouraging them to foods that are high in sugar, salt, fat, hole, stop digging. Well, we have dug develop localized plans to promote and calories. one whopper of a hole by failing to em- healthier lifestyles. For example, we Children—especially those under 8 phasize prevention and wellness. And want to support efforts like those years of age—do not always have the it’s time to stop digging. going on in Webster County and Mason ability to distinguish fact from fiction. City, IA, where mall walking programs The number of TV ads that kids see By Mr. THUNE (for himself, Ms. have been expanded into community- over the course of their childhood has SNOWE, Mr. BINGAMAN, Ms. COL- wide initiatives to promote wellness. doubled from 20,000 to 40,000. The sad LINS, Mr. DOMENICI, Mr. GREGG, At the same time, the bill provides thing is that, way back in the 1970s, the Mr. JOHNSON, Mr. LOTT, Ms. new incentives for the construction of Federal Trade Commission rec- MURKOWSKI, Mr. STEVENS, and bike paths and sidewalks to encourage ommended banning TV advertising to Mr. SUNUNU): more physical activity, especially kids. And what was Congress’s re- walking. It is shocking that, today, sponse? We made it even harder for the S. 1075. A bill to postpone the 2005 roughly one-quarter of walking trips FTC to regulate advertising for chil- round of defense base closure and re- take place on roads without sidewalks dren than it is to regulate advertising alignment; to the Committee on Armed or shoulders. And bike lanes are avail- for adults. My bill will restore the au- Services. able for only about 5 percent of bike thority of the FTC to regulate mar- Mr. THUNE. Mr. President, I rise trips. keting to kids, and it encourages the today to introduce a bill that would As my colleagues know, I have been a FTC to do so. delay the implementation of the 2005 longstanding advocate for the rights of The fourth component of the HeLP round of the Defense Base Closure and people with disabilities. So I have American Act addresses Reimburse- Realignment report issued by the De- given special attention to health-pro- ments for Prevention Services. Right partment of Defense on May 13, 2005. motion programs and activities that now, our medical system is setup to The bill would postpone the execution include this population. I just men- pay doctors to perform a $20,000 gastric of any decisions recommended in the tioned the bill’s incentives to create bypass instead of offering advice on report until certain anticipated events, bike lanes and sidewalks on newly con- how to avoid such risky procedures. having potentially large or unforeseen structed roads. This will make a big The bill will reimburse and reward phy- implications for our military force difference to people with disabilities, sicians for practicing prevention and structure, have occurred, and both the who often are forced to travel in the screenings. It will also expand Medi- department and Congress have had a street alongside cars because there are care coverage to pay for counseling for chance to fully study the effects such no sidewalks or bike lanes available for nutrition and physical activity, mental events will have on our base require- wheelchairs. health screenings, and smoking-ces- ments. The Centers for Disease Control has sation programs. It also would estab- The bill identifies three principal ac- funded a program called Living Well lish a demonstration project in the tions that must occur before imple- with a Disability, which has actually Medicare program, long overdue in my mentation of BRAC 2005. First, there decreased secondary conditions and led opinion, under which we can learn how must be a complete analysis and con- to improved health for participants. best to use our health care dollars to sideration of the recommendations of The program is an eight-session work- prevent chronic diseases rather than the Commission on Review of Overseas shop that teaches individuals with dis- just manage them once they’ve oc- Military Structures. The overseas base abilities how to change their nutrition curred. Frankly, it’s a little embar- commission has itself called upon the and level of physical activity. The pro- rassing that we haven’t done this be- Department of Defense to ‘‘slow down gram not only increases healthy activi- fore. and take a breath’’ before moving for- ties for people with disabilities, but has Finally, let me point out that the ward on basing decisions without also led to a 10 percent decline in the HeLP America Act will be paid for by knowing exactly where units will be re- cost for medical services, particularly creating a new National Health Pro- turned and if those installations are emergency-room care and hospital motion Trust Fund paid for through prepared or equipped to support units stays. penalties on tobacco companies that that will return from garrisons in Eu- In addition, my bill includes a Work- fail to cut smoking rates among chil- rope, consisting of approximately 70,000 ing Well with a Disability program, dren, by ending the taxpayer subsidy of personnel. which will build partnerships between tobacco advertising, and also by rein- employers and vocational rehabilita- stating the top income tax rates for Second, BRAC should not occur while tion offices with the aim of developing wealthy Americans. this country is engaged in a major war wellness programs in the workplace. It’s time for the Senate to lead and rotational deployments are still Mr. President, the third component America in a new direction. We need a ongoing. We have seen enough disrup- of the HeLP America Act addresses Re- new health care paradigm—a prevention of both military and civilian insti- sponsible Marketing and Consumer tion paradigm. tutions due to the logistical strain Awareness. Having accurate, readily Some will argue that avoiding obe- brought about by these constant rota- available information about the nutri- sity and preventable disease is strictly tions of units and personnel to Iraq and tional value of the foods we eat is the a matter of personal responsibility. Afghanistan without, at the same time, first step toward improving overall nu- Well, we all agree that individuals initiating numerous base closures and trition. Unfortunately, because of all should act responsibly. I’m all for per- the multiple transfer of units and mis- the gimmicks and hype that marketers sonal responsibility. But I also believe sions from base to base. This is simply use to entice us to buy their products, in government responsibility. Govern- too much to ask of our military, our determining the nutritional value of ment has a responsibility to ensure communities and the families of our

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.037 S18PT1 S5448 CONGRESSIONAL RECORD — SENATE May 18, 2005 servicemen and women, already S. 1075 AND REALIGNMENT.—Effective May 13, 2005, stretched and over-taxed. And frankly, Be it enacted by the Senate and House of Rep- the list of military installations rec- our efforts right now must be devoted resentatives of the United States of America in ommended for closure that the Secretary of to winning the global war on terrorism, Congress assembled, Defense submitted pursuant to section 2914(a) of the Defense Base Closure and Re- not packing up and moving units SECTION 1. POSTPONEMENT OF 2005 ROUND OF DEFENSE BASE CLOSURE AND RE- alignment Act of 1990 shall have no further around the country. ALIGNMENT. force and effect. (a) POSTPONEMENT.—Effective May 13, 2005, Our bill would delay implementation f of BRAC until the Secretary of Defense the Defense Base Closure and Realignment determines that substantially all Act of 1990 (part A of title XXIX of Public SUBMITTED RESOLUTIONS major combat units and assets have Law 101–510; 10 U.S.C. 2687 note) is amended by adding at the end the following: been returned from deployment in the ‘‘SEC. 2915. POSTPONEMENT OF 2005 ROUND OF Iraq theater of operations, whenever SENATE RESOLUTION 145—DESIG- DEFENSE BASE CLOSURE AND RE- NATING JUNE 2005 AS ‘‘NATIONAL that might occur. ALIGNMENT. SAFETY MONTH’’ Third, to review or implement the ‘‘(a) IN GENERAL.—Notwithstanding any BRAC recommendations without hav- other provision of this part, the round of de- Mr. DEWINE (for himself and Mrs. ing the benefit of either the Commis- fense base closure and realignment otherwise FEINSTEIN) submitted the following res- scheduled to occur under this part in 2005 by olution; which was referred to the sion or Congress studying the Quadren- reasons of sections 2912, 2913, and 2914 shall nial Defense Review, due in 2006, and occur instead in the year following the year Committee on the Judiciary: its long-term planning recommenda- in which the last of the actions described in S. RES. 145 tions seems counter-intuitive and com- subsection (b) occurs (in this section referred Whereas the mission of the National Safe- pletely out of logical sequence. There- to as the ‘postponed closure round year’). ty Council is to educate and influence soci- fore, the bill requires that Congress re- ‘‘(b) ACTIONS REQUIRED BEFORE BASE CLO- ety to adopt safety, health, and environ- ceive the QDR and have an opportunity SURE ROUND.—(1) The actions referred to in mental policies, practices, and procedures subsection (a) are the following actions: to study its planning recommendations that prevent and mitigate human suffering ‘‘(A) The complete analysis, consideration, and economic losses arising from prevent- as one of the conditions before imple- and, where appropriate, implementation by able causes; menting BRAC 2005. the Secretary of Defense of the recommenda- Whereas the National Safety Council Fourth and Fifth: BRAC should not tions of the Commission on Review of Over- works to protect lives and promote health go forward until the implementation seas Military Facility Structure of the with innovative programs; and development by the Secretaries of United States. Whereas the National Safety Council, Defense and Homeland Security of the ‘‘(B) The return from deployment in the founded in 1913, is celebrating its 92nd anni- Iraq theater of operations of substantially versary in 2005 as the premier source of safe- National Maritime Security Strategy; all (as determined by the Secretary of De- and the completion and implementa- ty and health information, education, and fense) major combat units and assets of the training in the United States; tion of Secretary of Defense’s Home- Armed Forces. Whereas the National Safety Council was land Defense and Civil Support Direc- ‘‘(C) The receipt by the Committees on congressionally chartered in 1953, and is cele- tive—only now being drafted. These Armed Services of the Senate and the House brating its 52nd anniversary in 2005 as a con- two planning strategies should be key of Representatives of the report on the quad- gressionally chartered organization; considerations before beginning any rennial defense review required to be sub- Whereas even with advancements in safety BRAC process. mitted in 2006 by the Secretary of Defense that create a safer environment for the peo- under section 118(d) of title 10, United States Finally, once all these conditions ple of the United States, such as new legisla- Code. tion and improvements in technology, the have been met, the Secretary of De- ‘‘(D) The complete development and imple- unintentional-injury death toll is still unac- fense must submit to Congress, not mentation by the Secretary of Defense and ceptable; later than one year after the occur- the Secretary of Homeland Security of the Whereas the National Safety Council has rence of the last of these conditions, a National Maritime Security Strategy. demonstrated leadership in educating the report that assesses the relevant fac- ‘‘(E) The complete development and imple- Nation in the prevention of injuries and tors and recommendations identified mentation by the Secretary of Defense of the deaths to senior citizens as a result of falls; Homeland Defense and Civil Support direc- Whereas citizens deserve a solution to na- by the Commission on Review of Over- tive. seas Base Structure; the return of our tionwide safety and health threats; ‘‘(F) The receipt by the Committees on Whereas such a solution requires the co- thousands of troops deployed in over- Armed Services of the Senate and the House operation of all levels of government, as well seas garrisons that will return to do- of Representatives of a report submitted by as the general public; mestic bases because of either overseas the Secretary of Defense that assesses mili- Whereas the summer season, traditionally base reduction or the end of our de- tary installation needs taking into account— a time of increased unintentional-injury fa- ployments in the war; and, any rel- ‘‘(i) relevant factors identified through the talities, is an appropriate time to focus at- evant factors identified by the QDR recommendations of the Commission on Re- tention on both the problem and the solution view of Overseas Military Facility Structure to such safety and health threats; and that would impact, modify, negate or of the United States; open to reconsideration any of the rec- Whereas the theme of ‘‘National Safety ‘‘(ii) the return of the major combat units Month’’ for 2005 is ‘‘Safety: Where We Live, ommendations submitted by the Sec- and assets described in subparagraph (B); Work, and Play’’: Now, therefore, be it retary of Defense for BRAC 2005. ‘‘(iii) relevant factors identified in the re- Resolved, That the Senate— This proposed delay only seems log- port on the 2005 quadrennial defense review; (1) designates June 2005 as ‘‘National Safe- ical and fair. There is no need to rush ‘‘(iv) the National Maritime Security ty Month’’; and into decisions, that in a few years from Strategy; and (2) requests that the President issue a now, could turn out to be colossal mis- ‘‘(v) the Homeland Defense and Civil Sup- proclamation calling upon the people of the port directive. takes. We can’t afford to go back and United States to observe the month with ap- ‘‘(2) The report required under subpara- propriate ceremonies and activities that pro- rebuild installations or relocate high- graph (F) of paragraph (1) shall be submitted mote acknowledgment, gratitude, and re- cost support infrastructure at various not later than one year after the occurrence spect for the advances of the National Safety points in this country once those in- of the last action described in subparagraphs Council and its mission. (A) through (E) of such paragraph. stallations have been closed or stripped Mr. DEWINE. Mr. President, today I of their valuable capacity to support ‘‘(c) ADMINISTRATION.—For purposes of sections 2912, 2913, and 2914, each date in a year join with Senator FEINSTEIN to submit critical missions. I, therefore, intro- that is specified in such sections shall be a resolution to designate June 2005 as duce this legislation today and call deemed to be the same date in the postponed ‘‘National Safety Month.’’ This year, upon my colleagues to join us in sup- closure round year, and each reference to a the National Safety Council has se- porting its passage. fiscal year in such sections shall be deemed lected ‘‘Safety: Where We Live, Work, I ask unanimous consent that the to be a reference to the fiscal year that is and Play’’ as the theme for National text of the bill be printed in the the number of years after the original fiscal Safety Month. year that is equal to the number of years RECORD. Public safety in our homes, commu- that the postponed closure round year is There being no objection, the bill was after 2005.’’. nities, workplace, and on our roads and ordered to be printed in the RECORD, as (b) INEFFECTIVENESS OF RECOMMENDATIONS highways is a vital challenge that we follows: FOR 2005 ROUND OF DEFENSE BASE CLOSURE must constantly address. According to

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.050 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5449 the National Safety Council, more than Resolved, That the Senate— Internet and for providing information and 20 million Americans suffer disabling (1) recognizes the 25th Anniversary of the training that develops the critical thinking injuries and 100,000 people die from eruption of Mount St. Helens on May 18, 2005; and decision making skills needed to be safe their injuries each year. In the United (2) acknowledges the importance of moni- online; and toring all 169 volcanoes in the United States (4) calls on Internet safety organizations, States, nearly 43,000 people die each and its territories; law enforcement, educators, community year from motor vehicle crashes, mak- (3) recognizes the invaluable work of the leaders, parents, and volunteers to increase ing auto fatalities the number one kill- Department of the Interior, the United their efforts to raise the level of awareness er of those between the ages of 4 and 34. States Geological Survey, the United States in the United States regarding the need for Many of these deaths and injuries can Forest Service, the Directorate of Emer- online safety. gency Preparedness and Response of the De- be prevented with proper education and f precautionary measures. partment of Homeland Security, and the The goal of National Safety Month is Cascade Volcano Observatory in monitoring SENATE RESOLUTION 148—TO AU- to raise public awareness of safety and the activities of Mount St. Helens; THORIZE THE DISPLAY OF THE (4) acknowledges the progress in science SENATE LEADERSHIP PORTRAIT prevention in hopes of reducing these that has led to a more comprehensive under- deaths and injuries. June also is an ap- standing of volcanology, seismology, and COLLECTION IN THE SENATE propriate month to focus our efforts on plate tectonics, thus enhancing the ability LOBBY public safety since the summer season to predict volcanic activity and eruptions; Mr. LOTT (for himself and Mr. DODD) is traditionally a time of increased un- and submitted the following resolution; intentional injuries and fatalities. (5) supports monitoring volcanoes and which was considered and agreed to: Throughout the month, the National helping to develop emergency response plans S. RES. 148 Safety Council and other safety organi- to ensure that the people and communities Whereas the objective of the Senate Lead- zations will urge businesses to increase of the United States are safe. f ership Portrait Collection is to commemo- their standards of safety in the work- rate the distinguished service to the Senate place and provide information to indi- SENATE RESOLUTION 147—DESIG- and the Nation of those Senators who have viduals regarding injury prevention in NATING JUNE 2005 AS ‘‘NATIONAL served as Majority Leader, Minority Leader, homes, communities, and on roads and INTERNET SAFETY MONTH’’ or President pro tempore: Now, therefore, be highways. I look forward to working it Ms. MURKOWSKI (for herself, Mr. Resolved, That (a) portraits in the Senate with other members of the Senate and CRAPO, Mr. DEWINE, Mr. CRAIG, Ms. House and the safety organizations to Leadership Portrait Collection may be dis- LANDRIEU, Mrs. LINCOLN, Mr. VITTER, played in the Senate Lobby at the direction help educate the public on the impor- Mr. ALLEN, and Mrs. FEINSTEIN) sub- of the Senate Commission on Art in accord- tance of injury prevention, so that we mitted the following resolution; which ance with guidelines prescribed pursuant to can reach our goal of saving more lives. was considered and agreed to: subsection (d). EINSTEIN I thank Senator F for her S. RES. 147 (b) The Senate Leadership Portrait Collec- support of this resolution and for her tion shall consist of portraits selected by the Whereas in the United States, more than 90 Senate Commission on Art of Majority or continued dedication to public safety. I percent of children in grades 5–12 now use Minority Leaders and Presidents pro tem- would also like to thank the National computers; pore of the Senate. Safety Council and congratulate them Whereas 26 percent of children in grades 5– (c) Any portrait for the Senate Leadership as the Council celebrates its 92nd anni- 12 in the United States are online for more Portrait Collection that is acquired on or than 5 hours a week, and 12 percent of such versary in 2005, as a leading source of after the date of adoption of this resolution children spend more time online than they safety and health information, edu- shall be of an appropriate size for display in do with their friends; cation, and training in the United the Senate Lobby, as determined by the Sen- Whereas 53 percent of children and teens in States. ate Commission on Art. the United States like to be alone when (d) The Senate Commission on Art shall f ‘‘surfing’’ the Internet, and 29 percent of prescribe such guidelines as it deems nec- such children believe their parents would ei- SENATE RESOLUTION 146—RECOG- essary, subject to the approval of the Com- ther express concern, restrict their Internet NIZING THE 25TH ANNIVERSARY mittee on Rules and Administration, to use, or take away their computer if their carry out this resolution. OF THE ERUPTION OF MOUNT parents knew where they were surfing on the ST. HELENS Internet; f Ms. CANTWELL (for herself, Mrs. Whereas 32 percent of the Nation’s stu- AMENDMENTS SUBMITTED AND MURRAY, Mr. STEVENS, and Mr. PRYOR) dents in grades 5–12 feel they have the skills PROPOSED submitted the following resolution; to get past filtering software, and 31 percent which was considered and agreed to: of youths in the United States have visited SA 762. Mr. NELSON, of Florida (for him- an inappropriate place on the Internet, 18 self, Mr. HAGEL, Mr. CORZINE, Mr. NELSON of S. RES. 146 percent of them more than once; Nebraska, Mr. SMITH, Ms. CANTWELL, Mr. Whereas, on May 18, 1980, at 8:32 a.m. Pa- Whereas 51 percent of the Nation’s stu- DAYTON, Mr. KERRY, Ms. LANDRIEU, Ms. MI- cific Daylight Time, the volcano of Mount dents in grades 5–12 trust the people they KULSKI, Mrs. MURRAY, Ms. STABENOW, Mrs. St. Helens erupted, changing its elevation chat with on the Internet; BOXER, Mr. PRYOR, Mr. DURBIN, Mr. JEF- from 9,677 feet to 8,363 feet; Whereas 12 percent of the Nation’s stu- FORDS, Mr. JOHNSON, and Mr. SALAZAR) sub- Whereas the eruption was triggered by an dents in grades 5–12 have been asked by mitted an amendment intended to be pro- earthquake of magnitude 5.1 approximately 1 someone they chatted with on the Internet posed by him to the bill S. 1042, to authorize mile beneath the volcano; to meet face to face, and 11.5 percent of such appropriations for fiscal year 2006 for mili- Whereas the lateral blast covered an area students have actually met face to face with tary activities of the Department of Defense, approximately 230 square miles and reached a stranger they chatted with on the Internet; for military construction, and for defense ac- as far as 17 miles northwest of the crater; and tivities of the Department of Energy, to pre- Whereas the velocity of the blast was esti- Whereas 39 percent of youths in grades 5–12 scribe personnel strengths for such fiscal mated to be at least 300 miles per hour; in the United States admit to giving out year for the Armed Forces, and for other Whereas the pyroclastic flows covered 6 their personal information, such as name, purposes; which was ordered to lie on the square miles, reached temperatures of 1,300 age, and gender over the Internet, and 14 per- table. degrees Fahrenheit, and moved at speeds be- cent of such youths have received mean or tween 50 and 80 miles per hour; threatening email while on the Internet: f Whereas, as a result of the eruption, over Now, therefore, be it TEXT OF AMENDMENTS 4,000,000,000 board-feet of timber was blown Resolved, That the Senate— down, which is enough material to build (1) designates June 2005 as ‘‘National Inter- SA 762. Mr. NELSON of Florida (for about 150,000 homes; net Safety Month’’; himself, Mr. HAGEL, Mr. CORZINE, Mr. Whereas volcanic ash clouded the sky (2) recognizes that National Internet Safe- NELSON of Nebraska, Mr. SMITH, Ms. above eastern Washington, reached the east ty Month provides an opportunity to educate CANTWELL, Mr. DAYTON, Mr. KERRY, coast of the United States in 3 days, and the people of the United States on the dan- Ms. LANDRIEU, Ms. MIKULSKI, Mrs. eventually circled the globe in 15 days; gers of the Internet and the importance of Whereas the eruption claimed the lives of being safe and responsible online; MURRAY, Ms. STABENOW, Mrs. BOXER, 57 people; and (3) commends and recognizes national and Mr. PRYOR, Mr. DURBIN, Mr. JEFFORDS, Whereas tens of thousands of animals per- community organizations for their work in Mr. JOHNSON, and Mr. SALAZAR) sub- ished: Now, therefore, be it promoting awareness of the dangers of the mitted an amendment intended to be

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\CR\FM\G18MY6.083 S18PT1 S5450 CONGRESSIONAL RECORD — SENATE May 18, 2005 proposed by him to the bill S. 1042, to PRIVILEGE OF THE FLOOR Whereas the lateral blast covered an area authorize appropriations for fiscal year approximately 230 square miles and reached Mr. DAYTON. Mr. President, I ask as far as 17 miles northwest of the crater; 2006 for military activities of the De- unanimous consent the privilege of the partment of Defense, for military con- Whereas the velocity of the blast was esti- floor be granted to Dana Chasin on my mated to be at least 300 miles per hour; struction, and for defense activities staff today and for subsequent debate Whereas the pyroclastic flows covered 6 and the Department of Energy, to pre- on judicial nominations. square miles, reached temperatures of 1,300 scribe personnel strengths for such fis- The PRESIDING OFFICER. Without degrees Fahrenheit, and moved at speeds be- cal year for the Armed Forces, and for objection, it is so ordered. tween 50 and 80 miles per hour; other purposes; which was ordered to Whereas, as a result of the eruption, over lie on the table as follows: f 4,000,000,000 board-feet of timber was blown down, which is enough material to build At the end of subtitle D of title VI, add the TRANSPORTATION EQUITY ACT: A about 150,000 homes; following: LEGACY FOR USERS Whereas volcanic ash clouded the sky SEC. 642. REPEAL OF REQUIREMENT OF REDUC- On Tuesday, May 17, 2005, the Senate above eastern Washington, reached the east TION OF SBP SURVIVOR ANNUITIES BY DEPENDENCY AND INDEMNITY passed H.R. 3, as follows: coast of the United States in 3 days, and COMPENSATION. (The bill will be printed in a future eventually circled the globe in 15 days; (a) REPEAL.—Subchapter II of chapter 73 of edition of the RECORD.) Whereas the eruption claimed the lives of 57 people; and title 10, United States Code is amended— f (1) in section 1450(c)(1), by inserting after Whereas tens of thousands of animals per- ‘‘to whom section 1448 of this title applies’’ APPOINTMENT ished: Now, therefore, be it Resolved, That the Senate— the following: ‘‘(except in the case of a death The PRESIDING OFFICER. The as described in subsection (d) or (f) of such (1) recognizes the 25th Anniversary of the Chair, on behalf of the Vice President, eruption of Mount St. Helens on May 18, 2005; section)’’; and in accordance with 22 U.S.C. 1928a– (2) in section 1451(c)— (2) acknowledges the importance of moni- (A) by striking paragraph (2); and 1928d, as amended, appoints the fol- toring all 169 volcanoes in the United States (B) by redesignating paragraphs (3) and (4) lowing Senators to the Senate Delega- and its territories; as paragraphs (2) and (3), respectively. tion to the NATO Parliamentary As- (3) recognizes the invaluable work of the Department of the Interior, the United (b) PROHIBITION ON RETROACTIVE BENE- sembly during the 109th Congress: The States Geological Survey, the United States FITS.—No benefits may be paid to any person Honorable JEFF SESSIONS of Alabama; Forest Service, the Directorate of Emer- for any period before the effective date pro- the Honorable MIKE ENZI of Wyoming; vided under subsection (e) by reason of the gency Preparedness and Response of the De- the Honorable JIM BUNNING of Ken- amendments made by subsection (a). partment of Homeland Security, and the tucky; and the Honorable NORM COLE- Cascade Volcano Observatory in monitoring (c) PROHIBITION ON RECOUPMENT OF CERTAIN the activities of Mount St. Helens; AMOUNTS PREVIOUSLY REFUNDED TO SBP RE- MAN of Minnesota. (4) acknowledges the progress in science CIPIENTS.—A surviving spouse who is or has f been in receipt of an annuity under the Sur- that has led to a more comprehensive under- vivor Benefit Plan under subchapter II of ORDER TO PRINT H.R. 3 standing of volcanology, seismology, and chapter 73 of title 10, United States Code, Mr. FRIST. I ask unanimous consent plate tectonics, thus enhancing the ability to predict volcanic activity and eruptions; that is in effect before the effective date pro- that H.R. 3, as passed by the Senate, be vided under subsection (e) and that is ad- and printed as passed. (5) supports monitoring volcanoes and justed by reason of the amendments made by The PRESIDING OFFICER. Without subsection (a) and who has received a refund helping to develop emergency response plans of retired pay under section 1450(e) of title objection, it is so ordered. to ensure that the people and communities 10, United States Code, shall not be required f of the United States are safe. to repay such refund to the United States. RECOGNIZING THE 25TH ANNIVER- f (d) RECONSIDERATION OF OPTIONAL ANNU- SARY OF THE ERUPTION OF NATIONAL INTERNET SAFETY ITY.—Section 1448(d)(2) of title 10, United States Code, is amended by adding at the end MOUNT ST. HELENS MONTH the following new sentences: ‘‘The surviving Mr. FRIST. I ask unanimous consent Mr. FRIST. Mr. President, I ask spouse, however, may elect to terminate an the Senate proceed to the immediate unanimous consent that the Senate annuity under this subparagraph in accord- consideration of S. Res. 146, submitted now proceed to consideration of S. Res. ance with regulations prescribed by the Sec- earlier today. 147 which was submitted earlier today. retary concerned. Upon such an election, The PRESIDING OFFICER. The payment of an annuity to dependent children The PRESIDING OFFICER. The under this subparagraph shall terminate ef- clerk will report the resolution by clerk will report the resolution by fective on the first day of the first month title. title. that begins after the date on which the Sec- The legislative clerk read as follows: The legislative clerk read as follows: retary concerned receives notice of the elec- A resolution (S. Res. 146) recognizing the A resolution (S. Res. 147) designating June tion, and, beginning on that day, an annuity 25th anniversary of the eruption of Mount 2005 as National Internet Safety Month. shall be paid to the surviving spouse under St. Helens. There being no objection, the Senate paragraph (1) instead.’’. There being no objection, the Senate proceeded to consider the resolution. (e) EFFECTIVE DATE.—The amendments Ms. MURKOWSKI. Mr. President, I made by this section shall take effect on the proceeded to consider the resolution. later of— Mr. FRIST. I ask unanimous consent rise in support of the resolution desig- (1) the first day of the first month that be- that the resolution and preamble be nating June 2005 as National Internet gins after the date of the enactment of this agreed to en bloc, the motion to recon- Safety Month. I am pleased to have Mr. Act; or sider be laid on the table, and any CRAPO, Mr. DEWINE, Mr. CRAIG, Ms. (2) the first day of the fiscal year that be- statements be printed in the RECORD LANDRIEU, Mrs. LINCOLN, Mr. ALLEN, gins in the calendar year in which this Act is and Mrs. FEINSTEIN join me in submit- enacted. without intervening action or debate. The PRESIDING OFFICER. Without ting this resolution. SEC. 643. EFFECTIVE DATE FOR PAID-UP COV- objection, it is so ordered. The Internet has become one of the ERAGE UNDER SURVIVOR BENEFIT most significant advances in the twen- PLAN. The resolution (S. Res. 146) was Section 1452(j) of title 10, United States agreed to. tieth century and, as a result, it affects Code, is amended by striking ‘‘October 1, The preamble was agreed to. people’s lives in a positive manner each 2008’’ and inserting ‘‘October 1, 2005’’. The resolution, with its preamble, day. However, this technology presents f reads as follows: dangers that need to be brought to the attention of all Americans. PRIVILEGE OF THE FLOOR S. RES. 146 Never before has the problem of on- Mr. CORNYN. Mr. President, I ask Whereas, on May 18, 1980, at 8:32 a.m. Pa- line predatory behavior been more of a unanimous consent that Caroline Gar- cific Daylight Time, the volcano of Mount concern. Consider the pervasiveness of St. Helens erupted, changing its elevation ner, a member of my staff, be granted from 9,677 feet to 8,363 feet; Internet access by children and the the privileges of the floor. Whereas the eruption was triggered by an rapid increase in Internet crime and The PRESIDING OFFICER. Without earthquake of magnitude 5.1 approximately 1 predatory behavior. Never before have objection, it is so ordered. mile beneath the volcano; powerful educational solutions—like

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00078 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.046 S18PT1 May 18, 2005 CONGRESSIONAL RECORD — SENATE S5451 Internet safety curricula for grades than 5 hours a week, and 12 percent of such The resolution, with its preamble, kindergarten through 12, youth em- children spend more time online than they reads as follows: do with their friends; powerment Internet safety campaigns S. RES. 148 and community-based Internet safety Whereas 53 percent of children and teens in the United States like to be alone when Whereas the objective of the Senate Lead- awareness presentations with the for- ‘‘surfing’’ the Internet, and 29 percent of ership Portrait Collection is to commemo- mation of community action teams— such children believe their parents would ei- rate the distinguished service to the Senate been more critical and readily at hand. ther express concern, restrict their Internet and the Nation of those Senators who have It is imperative that every community use, or take away their computer if their served as Majority Leader, Minority Leader, in every State be made aware of the in- parents knew where they were surfing on the or President pro tempore: Now, therefore, be crease in Internet-based criminal ac- Internet; it Whereas 32 percent of the Nation’s stu- Resolved, That (a) portraits in the Senate tivity so that all Americans may learn Leadership Portrait Collection may be dis- about the Internet safety strategies dents in grades 5–12 feel they have the skills to get past filtering software, and 31 percent played in the Senate Lobby at the direction which will help them to keep their of youths in the United States have visited of the Senate Commission on Art in accord- children safe from victimization. an inappropriate place on the Internet, 18 ance with guidelines prescribed pursuant to Consider the facts: In the United percent of them more than once; subsection (d). States, more than 90 percent of chil- Whereas 51 percent of the Nation’s stu- (b) The Senate Leadership Portrait Collec- dren in grades 5 through 12 now use dents in grades 5–12 trust the people they tion shall consist of portraits selected by the Senate Commission on Art of Majority or computers and have Internet access. chat with on the Internet; Whereas 12 percent of the Nation’s stu- Minority Leaders and Presidents pro tem- Twenty-six percent of children in that pore of the Senate. age group are online for more than 5 dents in grades 5–12 have been asked by someone they chatted with on the Internet (c) Any portrait for the Senate Leadership hours a week and 12 percent spend to meet face to face, and 11.5 percent of such Portrait Collection that is acquired on or more time online than they do with students have actually met face to face with after the date of adoption of this resolution their friends. a stranger they chatted with on the Internet; shall be of an appropriate size for display in An alarming statistic is that 39 per- and the Senate Lobby, as determined by the Sen- cent of youths in grades 5 through 12 in Whereas 39 percent of youths in grades 5–12 ate Commission on Art. (d) The Senate Commission on Art shall in the United States admit to giving out the United States admit giving out prescribe such guidelines as it deems nec- their personal information, such as name, their personal information, such as essary, subject to the approval of the Com- age, and gender over the Internet, and 14 per- their name, age and gender over the mittee on Rules and Administration, to cent of such youths have received mean or carry out this resolution. Internet. Furthermore, 12 percent of threatening email while on the Internet: students in the same age group have Now, therefore, be it f been asked by a stranger on the Inter- Resolved, That the Senate— MEASURES READ THE FIRST net to meet face to face. Unfortu- (1) designates June 2005 as ‘‘National Inter- TIME—S. 1061 AND S. 1062 nately, 11.5 percent of students in this net Safety Month’’; age group have actually met face to (2) recognizes that National Internet Safe- Mr. FRIST. Mr. President, I under- face with a stranger they met on the ty Month provides an opportunity to educate stand that there are two bills at the Internet. the people of the United States on the dan- desk, and I ask for their first reading gers of the Internet and the importance of Most disturbing are the patterns of en bloc. being safe and responsible online; The PRESIDING OFFICER. The Internet crimes against children. In (3) commends and recognizes national and 1996, the Federal Bureau of Investiga- community organizations for their work in clerk will read the titles of the bills for tion was involved in 113 cases involving promoting awareness of the dangers of the the first time en bloc. Internet crimes against children. In Internet and for providing information and The legislative clerk read as follows: 2001, the FBI opened 1,541 cases against training that develops the critical thinking A bill (S. 1061) to provide for secondary people suspected of using the Internet and decision making skills needed to be safe school reform, and for other purposes. to commit crimes involving child por- online; and A bill (S. 1062) to amend the Fair Labor (4) calls on Internet safety organizations, Standards Act of 1938 to provide for an in- nography or abuse. The U.S. Customs law enforcement, educators, community crease in the Federal minimum wage. Service now places the number of Web leaders, parents, and volunteers to increase sites offering child pornography at Mr. FRIST. Mr. President, I now ask their efforts to raise the level of awareness for a second reading and, in order to more than 100,000. Moreover, there was in the United States regarding the need for a 345 percent increase in the production online safety. place the bills on the calendar under the provisions of rule XIV, I object to of these sites just between February f 2001 and July 2001, according to a re- my own request, all en bloc. AUTHORIZING DISPLAY OF SEN- The PRESIDING OFFICER. Objec- cent study. ATE LEADERSHIP PORTRAIT tion is heard. Now is the time for America to focus COLLECTION The bills will receive their second its attention on supporting Internet reading on the next legislative day. safety, especially bearing in mind that Mr. FRIST. I ask unanimous consent children will soon be on summer vaca- the Senate now proceed to consider- S. 1062 tion and will subsequently spend more ation of S. Res. 148 submitted earlier Mr. KENNEDY. Mr. President, it has time online. Recent Internet crime today. now been 8 long years since the Na- trends indicate a call to action as it The PRESIDING OFFICER. The tion’s hardworking men and women pertains to national Internet safety clerk will report the resolution by had an increase in the minimum wage. awareness at all levels. title. The essence of the American dream is Mr. FRIST. I ask unanimous consent The legislative clerk read as follows: that if people work hard and play by the resolution be agreed to, the pre- A resolution (S. Res. 148) to authorize the the rules they can succeed in life and amble be agreed to, and the motion to display of the Senate leadership portrait col- support their families. But for millions reconsider be laid upon the table. lection in the Senate lobby. of hardworking Americans earning the The PRESIDING OFFICER. Without There being no objection, the Senate minimum wage, that dream has be- objection, it is so ordered. proceeded to consider the resolution. come a cruel hoax. An American who The resolution (S. Res. 147) was Mr. FRIST. I ask unanimous consent works full time, year-round at the cur- agreed to. the resolution be agreed to, the pre- rent minimum wage of $5.15 an hour The preamble was agreed to. amble be agreed to, the motion to re- earns $10,700 a year—$5,000 below the The resolution, with its preamble, consider be laid upon the table, and poverty line for a family of three. The reads as follows: any statements be printed in the minimum wage is too low. EORGE ILLER S. RES. 147 RECORD. Today Congressman G M and I are introducing the Fair Min- Whereas in the United States, more than 90 The PRESIDING OFFICER. Without percent of children in grades 5–12 now use objection, it is so ordered. imum Wage Act of 2005 to raise the computers; The resolution (S. Res. 148) was minimum wage to $7.25 an hour in Whereas 26 percent of children in grades 5– agreed to. three steps over the next 2 years. This 12 in the United States are online for more The preamble was agreed to. increase will directly raise the pay of

VerDate Aug 04 2004 05:34 May 19, 2005 Jkt 039060 PO 00000 Frm 00079 Fmt 0624 Sfmt 0634 E:\CR\FM\A18MY6.021 S18PT1 S5452 CONGRESSIONAL RECORD — SENATE May 18, 2005 seven and a half million workers, and works for a living should have to live PROGRAM indirectly benefit eight million more. in poverty. Mr. FRIST. Mr. President, tomorrow, Sixty-one percent of the beneficiaries f the Senate will resume consideration are women, and one-third of those of the nomination of Priscilla Owen to women are mothers. More than a third ORDERS FOR THURSDAY, MAY 19, 2005 be a U.S. circuit judge for the Fifth are people of color. Circuit. A number of our colleagues Two new reports emphasize the ur- Mr. FRIST. Mr. President, I ask came to the floor today to speak on the gency of this increase for millions of unanimous consent that when the Sen- nomination, and we had a good, sub- low-wage Americans and their families. ate completes its business today, it stantive debate from both sides of the The Children’s Defense Fund reports stand in adjournment until 9:30 a.m. on aisle. I hope Members will continue to that a single parent working full time Thursday, May 19. I further ask con- come to the floor during tomorrow’s at the current minimum wage earns sent that following the prayer and session and engage in this important enough to cover only 40 percent of the pledge, the morning hour be deemed discussion. cost of raising two children. Nearly 10 expired, the Journal of proceedings be I continue to hope that at some million children live in households approved to date, the time for the two point, after everyone has had an oppor- that would benefit from the increase leaders be reserved, and that the Sen- tunity to speak, we will be able to have we are proposing. ate then return to executive session an up-or-down vote on the nomination and resume consideration of the nomi- A report from the Center for Eco- of Priscilla Owen. In the meantime, I nation of Priscilla Owen to the Fifth thank Senators for coming to the floor, nomic Policy Research shows that min- Circuit Court of Appeals; provided fur- imum wage jobs are not just entry- and I do encourage Senators to take ther that the time from 10 a.m. to 10:45 advantage of the opportunity to speak level jobs for teenagers, contrary to be under the control of the majority what we often hear from opponents of over the course of the next several leader or his designee, and the time days. the minimum wage. A third of min- from 10:45 to 11:45 be under the control imum wage earners from ages 25 to 54 of the Democratic leader or his des- f will still be earning the minimum wage ignee; provided further that from 11:45 3 years later. Only 40 percent of them to 1:45 be under majority control, and will have moved out of the low-wage from 1:45 to 3:45 be under Democrat ADJOURNMENT UNTIL 9:30 A.M. workforce 3 years later. control. I further ask consent that the TOMORROW No matter how hard they work, min- times then rotate every 60 minutes in a Mr. FRIST. Mr. President, if there is imum wage workers are forced each similar fashion; provided further that no further business to come before the day to make impossible choices—be- 6:45 to 8:15 be under the control of the Senate, I ask unanimous consent that tween paying the rent and buying gro- Democratic leader or his designee, and the Senate stand in adjournment under ceries, or between paying the heating that 8:15 to 8:45 be under the control of the previous order. bill and buying clothes. These hard- the majority leader or his designee. There being no objection, the Senate, working Americans have earned a raise The PRESIDING OFFICER. Without at 8 p.m., adjourned until Thursday, and they deserve a raise. No one who objection, it is so ordered. May 19, 2005, at 9:30 a.m.

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