S8340 CONGRESSIONAL RECORD — SENATE September 9, 2002 reaching the authorization of the funds Midwestern States—is that just refers CONCLUSION OF MORNING available. Certainly that authorization to farmers. I want to tell you it is BUSINESS is not totally enough to fill all the farmers, but it is also those who raise The PRESIDING OFFICER. Morning needs, but it is an improvement over livestock, cattle, and sheep. People business is closed. the past. who are in that business need to be rec- f This also gives an opportunity for ognized as well, in terms of what we do those counties to create their own fi- here to help the agricultural industry EXECUTIVE SESSION nancial structure, much of which often during the drought. We will be dealing is tourism, which, again, is costly. I with that. We will come back to it. NOMINATION OF KENNETH A. thank the committee for what they I say again I hope we can set some MARRA, OF FLORIDA, TO BE have done with respect to payments in priorities for the relatively limited UNITED STATES DISTRICT lieu of taxes to the counties. I hope we amount of time left of this Congress. I JUDGE FOR THE SOUTHERN DIS- are able to include that. Our allocation hope that we select those items that TRICT OF FLORIDA is larger than the House and we need to are timely, that need to be done. I un- bring that up so we have a satisfactory derstand when we come to the end of a The PRESIDING OFFICER. Under arrangement. session everybody has ideas of things the previous order, the hour of 1 p.m. In the West we have had 3 years of that they would liked to have happened having arrived, the Senate will proceed very low rainfall, actual drought. It is that did not happen, but we are not to executive session and proceed with very difficult. In Washington, it is nor- going to be able to do all those things. the consideration of Executive Cal- mal to have 50 inches of rain a year. In So what we have to do collectively is endar No. 889, which the clerk will re- Wyoming, it is more likely to be an av- show some leadership as to which of port. erage of 16 or 17 inches. It is a low pre- those issues should be dealt with. Then The legislative clerk read that nomi- cipitation area at best. Therefore, we we can do that. nation of Kenneth A. Marra, of Florida, irrigate. Irrigation water generally I yield the floor and suggest the ab- to be United States District Judge for comes from reservoirs, from the runoff sence of a quorum. the Southern District of Florida. of snowfall that is captured in the The PRESIDING OFFICER. The The PRESIDING OFFICER. The Sen- mountains and let down during the clerk will call the roll. ator from Vermont. summer. We have had relatively slow The legislative clerk proceeded to Mr. LEAHY. Madam President, I do snowfall over the last several years and call the roll. believe that Judge Kenneth Marra will therefore our reservoirs are getting low Mr. LEAHY. Madam President, I ask be confirmed to the U.S. District Court and have been very low this year. We unanimous consent the order for the for the Southern District of Florida. I have had, certainly, a bona fide quorum call be rescinded. have heard of no opposition. This is a drought problem—not only in Wyoming The PRESIDING OFFICER (Mrs. LIN- judge who got strong bipartisan sup- but all through the area, including the COLN). Without objection, it is so or- port in the Senate Judiciary Com- Dakotas and down. There has been a dered. mittee, which usually guarantees a great deal of discussion about it. On confirmation on the floor. When that the Agriculture Committee we talked f happens, the Democratic-led Senate about that a great deal. The Agri- will confirm its 74th judicial nomina- culture Committee bill as prepared GRANDPARENTS DAY tion made by President George W. does not deal with drought. We think Bush. This will also be the 25th judicial Mr. LEAHY. Madam President, first, emergency vacancy that we have filled they will get support in the area of on a personal basis, earlier, at the crops, but it is based primarily on since I became chairman last summer, opening of the session, it was noted and the 18th since the beginning of this loans after the product is sold. If you that yesterday was Grandparents Day. did not produce a product, there is year. I send my best to all those who are The confirmation of Judge Marra will nothing there. That is why we need to grandparents. The Presiding Officer, of have disaster assistance. There will be bring additional resources to the U.S. course, is far too young to know the District Court for the Southern Dis- less spending in the Agriculture bill be- joys of that time in our lives. She does cause there will be less crops grown— trict of Florida. Judge Marra was nom- have the joy of two of the most beau- inated to fill a new position Congress with a higher price because there are tiful children anybody has seen in the less—but many farmers and ranchers created by statute to address the large Senate family. But there will be a day caseload, particularly the immigration will not produce a crop. when the other will come. The ranking We should offset some of that to the and criminal cases, facing the Federal member and I have the joy of being farm bill spending. Whether we offset court in Florida. He is one of three grandparents. it or not, the fact is there will be less Federal judicial nominations on the So I wish all grandparents the best money spent in that area than could be Senate Calendar for action. and also extend special wishes to one spent. Therefore, what we spend here I recall during the past administra- growing, shameless Leahy. could replace what was there. I hope tion, the Clinton administration, we all After that outrageous usurpation of that is the approach we take. worked very hard in cooperation with We should have some limitation on the podium, Madam President, prob- Senator GRAHAM and Senator MACK to how much we have there, but, indeed, ably, if my wife is watching, she is ensure that the Federal court in Flor- it is a big issue and it will be a $5.5 bil- probably beginning to wonder if I took ida had its vacancies filled promptly lion issue to be able to deal with the too much time off in August. with consensus nominees. Due to the losses that agriculture has suffered. bipartisan cooperation between one I hope, too, we do not simply focus on f Democrat Senator and one Republican farm crops. Again, in my State, the Senator and a Democratic President, biggest agricultural area is livestock. UNANIMOUS CONSENT the Senate was able to confirm 22 judi- Livestock people have suffered as well. AGREEMENT cial nominees from Florida, including 3 What has happened is there is no grass Mr. LEAHY. Madam President, I ask nominees to the Eleventh Circuit. But for grazing where the cattle are on pri- unanimous consent regarding the time it is unfortunate that this tradition of vate lands. In some cases where there of the chairman and the ranking mem- cooperation, coordination, and con- has been grazing allowed, in the forests ber of the Judiciary Committee that sultation has not continued with the or BLM, Federal lands, there has not was originally set to be half an hour current administration. been a sufficient amount of grass. evenly divided, that we still have that By my recollection, it was only the Ranchers have had to sell cattle be- half hour evenly divided, and the vote nomination of Judge Rosemary cause they have not had the feed and then begin after the expiration of that Barkett of the Florida Supreme Court will not have the feed this winter. time. to the Eleventh Circuit that generated When we do talk about agriculture, The PRESIDING OFFICER. Without any significant controversy or opposi- the idea often—particularly in some objection, it is so ordered. tion. I do recall that she was strongly

VerDate Sep 04 2002 01:57 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.010 S09PT1 September 9, 2002 CONGRESSIONAL RECORD — SENATE S8341 opposed by a number of Republican I mention this because there seems confirmation in the first 15 months. Senators because they did not agree to be some idea that somehow the Under George H. W. Bush, there were with her judicial philosophy. Those Democratic-led Senate is holding up 23; for the first 15 months of President voting against her included Senators judges. I think most of the Presidents Clinton, 45. Incidentally, that is with a HATCH, GRASSLEY, MCCONNELL, SPEC- with whom I have served would have Senate under the control of his own TER, and THURMOND, as well as Sen- been delighted to have had a Senate as party. And now, in 15 months, under ators LOTT, NICKLES, and HUTCHISON of cooperative as we have been. President George W. Bush, we have had Texas. They have an absolute right to Let me repeat that. In 15 months, 74 judicial confirmations—74. By any do that, of course. I respect that right. Democrats have done more on judicial standard you want, here is a case where Judge Barkett received the highest rat- confirmations than Republicans did in a different party than the President ing of the ABA, ‘‘well qualified,’’ and 30 months. has controlled the Senate, and we have yet 36 Republicans voted against her They, on the other side, do not want done more than was done for President confirmation, even though she had the to compare our record of accomplish- Reagan when his own party controlled strong bipartisan support of her home ment in evaluating judicial nominees the Senate, for President Bush when State Senators. Recent claims by some with theirs in their prior 61⁄2 years of another party controlled the Senate, that it is unprecedented to vote control. They do not want to own up to for President Clinton when we, the against a judicial nominee with a ‘‘well their delay and defeat through inaction Democrats, controlled the Senate. qualified’’ rating and to vote against of scores of judicial nominees during It shows we can move and will move, her based on her judicial philosophy the last administration. and we have been doing that notwith- thus ring hollow. All too often the only defense of their standing the fact that there has been Unfortunately, that is not the way record we hear is the claim that Presi- less cooperation from the White House the administration has dealt with Sen- dent Clinton ultimately appointed 377 than I have seen with either Demo- ators GRAHAM and NELSON now. But it judicial nominees, 5 fewer than Presi- cratic or Republican Presidents in 26 is a tribute to Senator GRAHAM and dent Reagan. This statement overlooks years in the Senate. It is unfortunate. Senator NELSON that we have made the the fact that the Republicans only al- President Bush will probably get a progress we have had. They could very lowed 245 of President Clinton’s judi- record number of his judges through at easily have exercised their right as the current pace of confirmations. But Senators and refused to accept the cial nominees to be confirmed. That I have to think how much better it nominees of President Bush. Of course, averages, incidentally, to about 38 con- 1 could be done with less rancor and with they would go no further under the firmations per year during their 6 ⁄2 even a modicum of cooperation. We blue-slip policy that both Republicans years of control. We confirmed 74 judi- have acted fairly and expeditiously and Democrats strongly support. But cial nominees in less than 15 months, they have been more than gracious in including 13 to the circuit courts. I be- notwithstanding the fact that Demo- their willingness to support these lieve we have reported 80 out of the Ju- crats have felt very concerned that for nominees. That is why they have gone diciary Committee. year after year after year after year in through. I mention this because of the persist- many of the circuit courts of this coun- This Democratic-led Senate has expe- ence of the myth of inaction in face of try, Republicans refused to even hold ditiously moved President Bush’s judi- such in the face of such a clear record hearings for the nominees, even though cial nominees. We have worked hard to of progress by Democrats. After a they had the highest ratings of the provide bipartisan support for the while, if someone keeps distorting the American Bar Association. They would White House’s nominations in spite of facts, if someone keeps stating things not even hold hearings, to say nothing an almost unprecedented lack of will- that are not true, people actually come about having a vote. ingness on the part of the White House to believe it is true. I am reminded of Then when the Republicans came in, to work with us. what Adlai Stevenson once said. I will suddenly there was an emergency; they In fact, I have been here 26 years: quote him: had to fill the vacancies in those cir- During the terms of President Ford, I have been thinking that I would make a cuits. Their obstruction created the President Carter, President Reagan, proposition to my Republican friends . . . problem. But notwithstanding that, in President George Herbert Walker Bush, that if they will stop telling lies about the many of those cases where Democrats President Clinton, and now President Democrats, we will stop telling the truth were not allowed to even have a hear- George W. Bush. This administration is about them. ing year after year after year, we have the least willing of any White House The truth is, of course, as these in the last 15 months moved forward during all that time—Republican or charts show, that we have a pretty with hearings and votes, and positive Democrat—to work with the Senate on good record of accomplishment despite votes, on the vast majority of his judi- judicial nominations. But even without the lack of cooperation from the ad- cial nominees. that cooperation, even with the un- ministration. I have no idea what political game is precedented lack of cooperation, we are With today’s vote, the Democratic- being played at the White House. I making progress. led Senate will confirm its 74th judge— know the people are very nice. Judge I would like to discuss the progress exceeding the number of circuit and Gonzalez is a very nice, very polite per- we have made. This chart shows what district court nominees confirmed in son. He is charming to be with. But the has happened in the 15 months the the last 30 months of Republican con- cooperation is not there. The President Democrats have controlled the Senate. trol of the Senate. We have done more is very nice, very charming. But the Contrast that to the Republicans’ first than Republicans did, and we have cooperation is not there. We could do 15 months when they controlled the done it in less than half the time. far better if they would just pick up Senate. In less than 15 months of We have confirmed more of this the phone and call the last three people Democratic control of the committee, President’s nominees, both circuit and from the last three Republican admin- we have held more hearings for more district court nominees, in less than 15 istrations—they do not even have to nominees, voted on more nominees in months, than were confirmed in the call a Democratic administration—and committee, and confirmed more nomi- comparable 15 months of the first term see how well this could be done. nees than the Republicans did in their of former President Reagan, the first As the distinguished ranking mem- first 15 months of control of the com- President Bush, and President Clinton. ber, my good friend from Utah, knows, mittee in 1995 and 1996. Let’s take a look at what has hap- I went down several times and worked We have confirmed more of President pened in the first 15 months. With to- with the Clinton White House so they George W. Bush’s Federal trial court day’s vote, the Democratic-led Senate could have cooperation with, and they nominees in less than 15 months than has confirmed 74 of this Republican did cooperate with, Republican Sen- were confirmed in the first 2 years of President’s judicial nominees in less ators in moving through judges. I his father’s Presidency. In fact, we con- than 15 months. would hope that with that precedent in firmed more in the first 15 months than Under President Reagan—and inci- mind, some might do the same. the Republicans were willing to con- dently, I might point out, he had a Democrats have reformed the process firm in their last 30 months. Senate of his own party—there were 54 for considering judicial nominees to

VerDate Sep 04 2002 01:57 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.013 S09PT1 S8342 CONGRESSIONAL RECORD — SENATE September 9, 2002 ensure bipartisan cooperation and (including the entire period of Repub- not at the 153 mark it would be had we greater fairness. For example, we have lican control of the Senate) and con- taken no action. Vacancies have been ended the practice of secretive, anony- firmed her last year, while three of reduced to 79 and are headed in the mous holds that plagued the period of President Clinton’s Fifth Circuit nomi- right direction. On July 10, 2001, with Republican control, when any Repub- nees never received hearings or votes the reorganization of the Senate, we lican Senator could hold any nominee on their nominations. We held the first began with 110 vacancies. When Repub- from his or her home state, his or her hearing on a Tenth Circuit nominee in lican gained control of the Senate in own circuit or any part of the country six years, and we have confirmed two 1995 the federal judicial vacancies num- for any reason, or no reason, without of President Bush’s nominees to the bered 65. The vacancies increased dur- any accountability. We have returned Tenth Circuit, while two of President ing their six and one-half years to more to the Democratic tradition of regu- Clinton’s nominees to that circuit than 110. Under the Democratic major- larly holding hearings, every few never received hearings or votes. We ity, by contrast, the number of vacan- weeks, rather than going for months held the first hearing for a Fourth Cir- cies is being significantly reduced. De- without a single hearing. In fact, we cuit nominee in three years, for Judge spite the large number of additional have held 23 judicial nominations hear- Roger Gregory, and the first hearing vacancies that have arisen in the past ings in our first 13 months, an average for an African American nominee to year, with the 61 district court con- of almost two per month. that court in United States history, firmations we have as of today, we In contrast, during the six and one- even though Judge Gregory and four have reduced district court vacancies half years of Republican control, they other nominees to that circuit (includ- to 50, almost to the level it was at went 30 months without holding a sin- ing three other African Americans) when Republicans took over the Senate gle judicial nominations hearing. By never received hearings or votes during in 1995. holding 23 hearings for 84 of this Presi- Republican control of the Senate. In fact, when we adjourned for the dent’s judicial nominees, we have held These are just a few examples of the August recess we had given hearings to hearings for more circuit and district historic accomplishments of the Demo- 91 percent of this President’s judicial court nominees than in 20 of the last 22 cratic-led Senate which debunk Repub- nominees who had completed their pa- years during the Reagan, first Bush, lican myths that Democrats caused the perwork and who had the consent of and Clinton Administrations. vacancy crisis, are delaying judicial both of their home-State Senators. As this chart shows, we have held appointments or have been retaliating That is, 84 of the 92 judicial nominees more hearings for President Bush’s ju- for years of obstruction on circuit with completed files had received hear- dicial nominees in less than 15 months court vacancies by Republicans. ings. There were only 16 circuit court va- than were held in 15 months for any of When we held our most recent hear- cancies when Republicans took over the past three Presidents. In the first ing on August 1, we had given hearings the Senate in January 1995. Unfortu- 15 months of the first term of President to 66 district court nominees and we nately, from January 1995 until Repub- Reagan, 17 judicial nominations hear- had run out of district court nominees licans relinquished control and allowed ings were held. In the first 15 months of with completed paperwork and home- the Judiciary Committee to be reorga- President George H.W. Bush’s term, 11 State consent. Only two district court nized in the summer of 2001, circuit hearings were held. And, in the first 15 nominees were eligible for that hear- court vacancies more than doubled months of President Clinton’s first ing. This is because the White House from 16 to 33. Republicans executed a term, 14 judicial nominations hearings changed the process of allowing the partisan political strategy to hold va- were held. In contrast, we have held 23 ABA to begin its evaluation prior to cancies open on the circuits for a Re- hearings in less than 15 months. That nomination. This change has cost the publican president to fill. It would cer- is almost as many as were held in the federal judiciary the chance over the tainly have been easier and less work first 15 months of the terms of the first last year to have 12 to 15 more district for Democrats to retaliate for the un- President Bush and President Clinton court nominees on the bench and hear- fair treatment of the last President’s combined. We have more than exceeded ing cases, because now the ABA can circuit court nominees. We did not. We the number of hearings held in the last only begin its evaluation once the have been, and will continue to be, 30 months of Republican control of the nomination is submitted to the Senate. more fair than the Republican major- Senate, when they held only 15 hear- The ABA also must wait until the Ad- ity was to President Clinton’s judicial ings. ministration provides the Senate with nominees. While some complain that a handful the nominee’s public questionnaire, Here is another chart that shows that of circuit court nominees have not yet more of President Bush’s judicial and lately the nominees’ documents had hearings, they fail to acknowledge nominees have been given committee have been arriving on a delayed basis, that Democrats have held hearings for votes than the nominees of prior presi- as well. Indeed, many of the two dozen more of President Bush’s circuit court dents. Unlike my Republican prede- nominations most recently received nominees, 18, than in any of the six and cessor, I have scheduled hearings and will likely not get hearings before ad- one-half years in which the Repub- votes on district and circuit court journment this year in large measure licans controlled the Committee before nominees whom I do not support. The because the White House unilaterally the change in majority last summer. Judiciary Committee has voted on 82 changed the process for consideration Republicans have utterly failed to ac- judicial nominees and favorably re- and has built additional delays into it. knowledge this fairness and progress ported 80. In less than 15 months, we In January I had proposed a simple under the Democratic majority. The have voted on more of President Bush’s procedural adjustment to allow the myth of obstruction of judicial nomi- district and circuit court nominees ABA evaluation to begin at the same nees fits their political strategy better than were voted on in the first 15 time as the FBI investigation, as was than the truth. months of any of the past three Presi- the practice in past Republican and The years of Republican inaction on dents. Moreover, we have voted on Democratic Administrations over 50 a number of circuit court vacancies has more nominees in less than 15 months years. Had this proposal been accepted, made it possible for Democrats to have than were voted on in the first 15 I am confident there would be more several ‘‘firsts,’’ or astounding accom- months of Presidents Reagan and than a dozen fewer vacancies in the plishments in addressing judicial va- George H.W. Bush combined, or Presi- federal courts. Instead, our efforts to cancies. For example, we held the first dents George H.W. Bush and Clinton increase cooperation with the White hearing for a nominee to the Sixth Cir- combined. We have even voted on more House have been rebuffed. We continue cuit in almost five years (that is more nominees in less than 15 months than to get the least cooperation from any than one full presidential term) and were voted on in the last 30 months of White House I can recall during my confirmed her, even though three of Republican control of the Senate, when nearly three decades in the Senate. President Clinton’s nominees to the 73 nominees were voted on by the Com- Yet, even with such lack of cooperation Sixth Circuit never received a hearing mittee. from the White House, the Senate has or a vote. We held the first hearing on Because we have moved quickly and set an impressive rate of confirming ju- a Fifth Circuit nominee in seven years responsibly, the number of vacancies is dicial nominees.

VerDate Sep 04 2002 01:57 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.016 S09PT1 September 9, 2002 CONGRESSIONAL RECORD — SENATE S8343 Here is another chart that shows how bored long and hard to evaluate the want to do so. I think Republicans Democrats have dramatically reduced records of the individuals chosen by wanted to ensure that they never the time between nomination and con- this President for lifetime seats on the treated President Clinton better than firmation of circuit court nominees. federal courts. The decisions we make the best year of former President Bush Since the Democrats assumed the ma- after reviewing their records will last (his last year) and they wanted to en- jority last July, the average time to well beyond the term of this President sure that President Clinton did not confirm circuit court nominees has and will affect the lives of the individ- beat President Reagan’s number of been drastically reduced to 147 days, uals whose cases will be heard by these confirmations, as a matter of partisan from a high during the most recent judges and maybe millions of others af- pride. years of Republican control of 374 days. fected by the precedents of these deci- Had Republicans kept up the pace of We have reduced the average time from sions of these judges. confirmation set by Democrats in the nomination to confirmation to two- Before anyone takes for granted how first President Bush’s last year and the and-a-half times less than the average fairly Democrats have treated this first two years of the Clinton Adminis- time to confirmation during Repub- President’s judicial nominees, receiv- tration, President Clinton would have lican control during the 106th and 105th ing up or down votes, they should take appointed substantially more than the Congresses when it took an average of a look at how poorly judicial nominees 377 judges who were ultimately con- 374 and 314 days, respectively, to con- were treated during the 61⁄2 years of Re- firmed in his two terms as president, firm President Clinton’s circuit court publican control of the Senate. In all, and the Democratic-led Senate Judici- nominees. several dozen judicial nominees of ary Committee would not have begun The Judiciary Committee has re- President Clinton never received a last July with 110 vacancies. Ironically, ported two more circuit court nomi- hearing or a vote. perhaps, Democrats have been so fair nees favorably to the Senate. We have When confronted with this, Repub- to President George W. Bush, despite held hearings on 18 circuit court nomi- licans often lament that about 50 of the the past unfairness of Republicans, nees and the Judiciary Committee has first President Bush’s judicial nomi- that if we continue at the current pace already voted on 17 of those 18 nomi- nees did not get a hearing before the of confirmation and vacancies continue nees. end of the session in Congress in 1992. to arise at the same rate, then Bush In spite of the obstacles the White What they consistently fail to mention will appoint 227 judges by the end of his House has put in the way of their own about this, however, is quite revealing. term. If he were elected to a second nominees through their lack of con- That year, the Senate confirmed more term, at the current pace, he would sultation and cooperation, we have of President George H.W. Bush’s judi- amass 454 judicial confirmations, dra- been able to have a productive year cial nominees than in any year of his matically more than President Reagan, while restoring fairness to the judicial presidency. He had 66 judicial nominees who Senator HATCH often calls the all- confirmation process. I regret that the confirmed that year, but the Senate time champ. This, too, demonstrates White House has chosen the strident simply could not get to the other 53 how fair Democrats have been. Perhaps path that it has with respect to judi- nominees he submitted in response to some may say we have been foolishly cial nominations, especially to the cir- the creation of dozens of new judge- fair, given how Democrats were treated cuit courts. As several Senators noted ships. So, even though some of his in the past. We have exceeded the pace last week, the Administration does not nominees were returned, the Senate set in 1992, 1993 and 1994, with 74 con- have carte blanche to insist on an ideo- confirmed a substantial number, 66, of firmations to date in little more than a logical takeover of the Courts of Ap- his judicial nominees in the 10 months year. peals with activist ultra-conservative they were in session that year, which In fact, when we adjourned for the nominees intended to tip the balance in was an election year, by the way. August recess we had given hearings to circuits around the country. The total Perhaps coincidentally, 66 is the 91 percent of this President’s judicial number of district and circuit court highest number of judicial confirma- nominees who had completed their pa- confirmations now stands at 74, and tions in one year that Republicans ever perwork and who had the consent of there remain a few weeks left in this allowed President Clinton to reach. both of their home-State Senators. session. So while we have been working They averaged 38 judicial confirma- That is, 84 of the 92 judicial nominees hard and productive, the Judiciary tions per year. In the last two years of with completed files had received hear- Committee and the Senate have not be- the Clinton Administration, Repub- ings. come a rubber stamp. licans allowed only 33 and 39 judges to Any way you look at the numbers, I am proud of the efforts of the Sen- be confirmed, respectively in 1999 and raw numbers or percentages, compari- ate to restore fairness to the judicial 2000. President George H.W. Bush had sons with the prior six years of Repub- confirmation process over this time. 66 confirmations in his last year of of- lican control or with prior Congresses The Senate Judiciary Committee is fice, an election year. In President and Republican presidents, the Demo- working hard to schedule hearings and Clinton’s last year in office only 39 crats have done more in less time. We votes on additional judicial nominees, judges were confirmed, during Repub- have been more fair by far. Yet we have but it takes time to deal with a mess of licans control. In 1996, Republican al- been unfairly labeled as obstructionist the magnitude we inherited. I think we lowed only 17 judges to be confirmed, because we have not been able to have have done well by the federal courts none to the circuit courts. In those two hearings for every single judicial nomi- and the American people, and we will election years combined Republicans nee in the short period we have been in continue to do our best to ensure that allowed only 56 confirmations. In 1992, the majority. This President still has all Americans have access to federal an election year, Chairman BIDEN over two years left in his term. judges who are unbiased, fair-minded pushed through 66 confirmations. I withhold the remainder of my time. individuals with appropriate judicial Unlike Democrats in 1992, Repub- The PRESIDING OFFICER. The Sen- temperament and who are committed licans cannot honestly claim that they ator from Utah. to upholding the Constitution and fol- moved a substantial number through Mr. HATCH. Madam President, I rise lowing precedent. but could not get to them all. Con- today to respond to some of the amaz- When the President sends judicial firming only 39 judicial nominees in ing assertions made by my distin- candidates who embody these prin- 2000 and returning more than that, 41, guished colleague and friend from ciples, they will move quickly, but in that year alone, simply does not Vermont. Of course, I do so with some when he sends controversial nominees compare with what happened in 1992 trepidation because each time we have whose records demonstrate that they when Democrats worked hard to move a back and forth like this one, I help lack these qualities and whose records through 66 of the first President Bush’s my colleague further the impression are lacking we will take the time need- judicial nominees in the space of 10 that he is out to create and that he has ed to evaluate their merits and to vote months. If 66 was such an easy number done a good job of creating, especially them up or down. to reach, why did Republicans reach with the press. I would like to thank the Members of that level only once in six years of con- The impression my colleague is seek- the Judiciary Committee who have la- trol? The answer is easy. They did not ing to create is that both sides come to

VerDate Sep 04 2002 01:57 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.017 S09PT1 S8344 CONGRESSIONAL RECORD — SENATE September 9, 2002 the table with unclean hands in the In an attempt to cloud up the rejec- introduce ideology into the confirma- matter of confirmations. It is a false tion of Justice Owen’s nomination, I tion process. I am heartened that edi- impression and it provides a smoke- have also heard my colleagues point to torial and op-ed writers across the screen of the stark reality of the poor the Clinton judges from Texas in par- country reflect not only support for performance of the Judiciary Com- ticular who never got a hearing. One Justice Owen but also the near uni- mittee this past year and during this said at the Owen hearing that I did not versal rejection of this misguided ef- session. give them a hearing. It was a very un- fort to make the independent Federal Naturally, my friend takes pride in fair characterization, and I will re- judiciary a mere extension of Congress his accomplishments this year, but not spond to it now. and less than the independent, coequal all of them. Let me list a few he As my friend knows well enough, nei- branch it was intended to be. misses. President Reagan took pride in ther of those nominees had the support Let me respond further to my good nominating the first woman to the Su- of their home state Senators. This pre- friend from Vermont. He is right that preme Court. My Democrat colleagues vented me, and would have prevented in this session so far the Senate has have now presided over the ‘‘Borking’’ the distinguished Senator from confirmed 73 judges. There is much ea- of the first woman in history, and one Vermont, if he were in my shoes, from gerness in my friend’s voice asserting of the leading women jurists in this scheduling a hearing for them. In part, that this number compares favorably country, Priscilla Owen. this was because President Clinton ig- to the last three sessions of Congress My colleague has also set a new nored the Texas Senators and the during which I was chairman. record for a Judiciary Committee Texas nominating commission in mak- Although I am flattered to hear my chairman. He has voted in 1 year ing those nominations. The practice of record used as the benchmark for fair- against more judicial nominees than honoring the home State Senators is ness, I am afraid this does not make for any chairman in the 212 years of the not one I put in place; it was put in a fair comparison because I was never Republic. Moreover, most of my Demo- place under Democrat leadership of the chairman during any of President Clin- crat colleagues on the Judiciary Com- committee, and appears agreeable to ton’s first 2 years in office. mittee have voted against more judi- Let me repeat that. I was never cial nominees in this last one year both parties. Today, Democrat Senators from the chairman of the Judiciary Committee than I have in my 26 years on the Judi- States of North Carolina, California, during any President’s first 2 years in ciary Committee. I voted against only and Michigan have prevented the Judi- office. I am glad to say, therefore, that one Clinton nominee, only one, but as ciary Committee from holding hearings the proper comparison is not, as they painful as that was, I did it standing on six of President Bush’s original Cir- say, about me. straight for all to see in the disinfect- My colleague speaks of the last 15 ant light of the Senate floor, not in the cuit Court of Appeals nominees who months when I was chairman, but this shadows of a committee vote. were nominated a year and a half ago, Also, in rejecting Justice Owen, my some of the greatest nominees I have compares apples to oranges. During President Clinton’s first Con- Democrat colleagues rejected for the seen in the whole time I have been in gress, when Senator BIDEN was the first time in history a nominee who has the Senate and on the Judiciary Com- chairman of the Judiciary Committee, received the American Bar Associa- mittee, now 26 years. the Senate confirmed 127 judicial nomi- tion’s unanimous rating, highest rating I know there are those who seem to of well qualified, the rating that ear- justify wrong in childlike fashion with nees. And Senator BIDEN achieved this lier this year they announced to be the the intellectual crutch of, ‘‘They did it, record despite not receiving any nomi- gold standard for judicial nominees and too.’’ Let me say that we Republicans nees for the first 6 months—in fact, which, of course, they now criticize be- have never done what was done to Jus- Senator BIDEN’s first hearing was held cause the independent body has rated tice Owen. I can’t think of anything in on July 20 of that year, more than a President Bush’s nominees as highly history that compares to that. Some week later than the first hearing of qualified as any we have ever seen. Democrats have attempted to leave the this session, which occurred on July 11, In other words, Priscilla Owen, who impression that Republicans have un- 2001. Clearly, getting started in July of had the support of both home State clean hands so as to soften the scrutiny year one is no barrier to the confirma- Senators, which is a requisite for con- of what was done to Justice Owen. The tion of 127 judges by the end of year sideration by the Committee, who had American people will see through this. two. But we have confirmed only 73 the highest rating given by the Amer- But let me assure you, none of those nominees in this session. ican Bar Association for a judicial nominees who did not get hearings Senator BIDEN’s track record during nominee, who is a supreme court jus- would trade places with Charles Pick- the first President Bush’s first two tice in Texas, and who, by anybody’s ering of Mississippi or Priscilla Owen years also demonstrates how a Demo- measurement who is fair, is in the of Texas. It is beyond peradventure crat-led Senate treated a Republican mainstream of American jurispru- that they would prefer to be ghosts of President. Then-Chairman BIDEN pre- dence, was dumped unceremoniously in nominations past than called racists, sided over the confirmation of all but 5 the committee by a 10-to-9 party vote, unjustly called racists, and have their of the first President Bush’s 75 nomi- a partisan party vote at that, and with- fine records of public service soiled by nees in that first two-year session. out giving her nomination the chance the Judiciary Committee. Chairman THURMOND’s record is simi- of being brought up on the floor of the I am heartened to know that beyond lar. The contrast to the present could Senate where I believe she would have the overwhelming support from her hardly be starker. passed, if not overwhelmingly, cer- home State of Texas and scores of op- Mr. President, we are about to close tainly comfortably. eds written across the country in sup- President Bush’s first 2 years in office I have heard my colleague from port of the Owen nomination, Justice having failed the standards set by Vermont defend against that by listing Owen’s nomination to the Fifth Circuit Chairmen BIDEN and THURMOND. That the 42 judicial nominees who did not has received editorial support from is nothing over which to be proud. We get confirmed by the end of the Clinton over 24 newspapers published across the still have 80 vacancies on the courts, administration. He doesn’t point out Nation and across the political spec- and 32 emergency vacancies. that there were 54 nominees left hang- trum. I have previously submitted Mr. President, one final point about ing at the end of the first Bush admin- these for the RECORD. Justice Owen. Much of the opposition istration when they were in charge. Prior to the vote in Committee, only against her was driven by interest And he does not explain that most, if three newspapers, in fact—in New groups that advocate for the right to not all, of the nominees left hanging at York, Los Angeles, and San Fran- abortion. Yet in Justice Owen we had the end of the Clinton administration, cisco—had come out firmly against the the first nominee we have considered however qualified, did not progress be- nomination. this session who has, as a judge, read cause either they were nominated too I am heartened by this national sup- those cases, cited them, quoted them, late or did not have their home state port not just for the sake of Justice applied them and followed them. She Senators’ support or had other prob- Owen, but because at her hearing I ex- did, however, interpret the new Texas lems that we cannot address. pressed alarm at the efforts of some to parental notice law and sought in one

VerDate Sep 04 2002 01:57 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.019 S09PT1 September 9, 2002 CONGRESSIONAL RECORD — SENATE S8345 particular case to make it rarer to by- Let’s speak truth to power. Justice cial litigation and representing clients pass than some of her colleagues on the Owen was picked to be opposed because at both the trial and appellate levels. court, although the Texas Supreme she is a friend of President Bush from Judge Marra gained experience in a va- Court agreed in most all other re- Texas. She was opposed by an axis of riety of matters, including antitrust, spects. profits. This axis of profits combines contracts, construction defects, condo- Of course, the charge that she is a ju- the money of trial lawyers and the minium and homeowner association dicial activist was a cynical trick of abortion industry to fund the Wash- disputes, and employment and housing words from Washington special interest ington special interest groups, and discrimination. lobbyists who have made their careers spreads its influence to the halls of In 1996 Judge Marra was appointed to taking positions without letting the power in Washington and in State the Fifteenth Judicial Circuit in Palm words of the Constitution stand be- courts across this country. Beach County, Florida. He has served tween them and their political objec- The Opposition against Justice Owen in the civil, family and criminal divi- tives. was intended not only to have a sions. Why did they oppose her? Ironically chilling effect for women jurists that Judge Marra will make a fine mem- enough, they are doing so because they will keep them from weighing in on ex- ber of the Federal bench. do not like the Texas statute requiring actly the sorts of cases that most in- I reserve the remainder of my time. parental notice in cases of abortions vite their participation and their per- The PRESIDING OFFICER. The Sen- ator from Vermont is recognized. for children. Justice Owen voted to spectives as women, but also on all Mr. LEAHY. Madam President, I am give the statute some meaning. Justice judges in all State courts who rule on sure it was inadvertent that when the Owen’s opponents think a minor should cases the trial lawyers want to win and distinguished Senator from Utah was always be able to avoid the Texas Leg- cash in on. talking about the editorials against islature’s standards. It is the groups al- When my colleagues voted against the nominee, Priscilla Owen, he said lied against Justice Owen who are the her, they chose to besmirch a model there were only three against. judicial activists, the ones who are young woman from Texas, who grew I refer, for example, to the Atlanta looking to achieve in the courts an up, worked hard and did all the right Journal-Constitution, and I will quote outcome that is at odds with the law things—including repeatedly answering from it and then put the whole edi- passed by the elected legislators. the call of public service at sacrifice of torial in the RECORD. Let’s be clear that the opposition to personal wealth and family. My Demo- I ask unanimous consent that arti- Justice Owen was all about abortion. crat colleagues voted, in effect, against cles in opposition to her be printed in But in Justice Owen’s case, it was not the American promise of fairness. the RECORD. that she opposed abortion rights—no This is a young woman who gave up There being no objection, the mate- decision of hers ever denied that right. a lucrative career to give public service rial was ordered to be printed in the I fear that the opposition to Justice on the Texas Supreme Court, and who RECORD, as follows: Owen is not about abortion rights ex- deserves to be on the Fifth Circuit [From the New York Times, Sept. 4, 2002] actly, but something much more insid- Court of Appeals. THE WRONG JUDGE ious—it was not about abortion rights Such a vote should have taken place Priscilla Owen, President Bush’s latest exactly but about abortion profits. in the light of this Senate floor, but nominee to the United States Court of Ap- Simply put, the abortion industry is the American people will hear of the peals for the Fifth Circuit, has been at times opposed to parental notice laws be- result notwithstanding the shadows. so eager to issue conservative rulings in cause they place a hurdle between I only hope the American people will cases before her on the Texas Supreme Court them and their clients—not the girls repair the damage done to the Con- that she has ignored statutory language and who come to them, but the adult men stitution when they vote in November. substituted her own views. This criticism who pay for the abortions. These adult I have reviewed Mr. Marra’s distin- comes not from the ‘‘special interest groups’’ she has charged with misstating her record, men, whose average age rises the guished career and I can say, without but from Alberto Gonzales, President Bush’s younger the girl is, are eager not to be hesitation, that he will be an excellent own White House counsel. Mr. Gonzales, who disclosed to parents, sometimes living addition to the prestigious Southern served with Justice Owen on the Texas high down the street. At $1,000 per abortion District of Florida. court, once lambasted her dissent in an abor- and nearly 1 million abortions per Mr. Marra comes to the federal bench tion case for engaging in ‘‘unconscionable year, the abortion industry is as big as with a unique and extremely useful . . . judicial activism.’’ Mr. Gonzales says any corporate interest that lobbies in qualification: Judge Marra is a former today that he nonetheless supports the ele- Social Studies teacher at Elmont Me- vation of Justice Owen. We do not. Washington. They not only ignore the In choosing a nominee for the Fifth Cir- rights of parents to hide their young morial High School in Elmont, New cuit—the powerful federal appeals court for daughters’ abortions, they also protect York. After teaching high school for Texas, Mississippi and Louisiana—President sexual offenders and statutory rapists. several years, Judge Marra Bush has looked to the extreme right wing of And who are the lobbyists for the inexplicably decided to change career the legal profession. Even on Texas’ conserv- abortion industry? Exactly the same paths and went to law school, grad- ative Supreme Court, Justice Owen has dis- cast that has launched an attack on uating from Stetson University College tinguished herself as one of the most con- Justice Owen. One wonders, as col- of Law in 1977. He then went to work servative members. A former lawyer for the umnist Jeff Jacoby did in the Boston for the United States Department of oil and gas industry, she reflexively favors manufacturers over consumers, employers Globe, who are the extremists on this Justice as part of its honor law grad- over workers and insurers over sick people. issue, who is out of the mainstream? uates program. While at the Depart- In abortion cases Justice Owen has been re- Not Justice Owen—82 percent of the ment of Justice, he was involved in sourceful about finding reasons that, despite American people favor consent and no- litigation which sought to protect the United States Supreme Court holdings and tice laws such as Justice Owen inter- land, water and mineral rights of Na- Texas case law, women should be denied the preted—86 percent in Illinois. tive Americans from encroachment and right to choose. I will say it again, while my col- to regain such resources that had been Justice Owen’s views are so far from the leagues continue in general to apply an mainstream that, on those grounds alone, wrongfully lost over the years. the Senate should be reluctant to confirm abortion litmus test, the assault After three years with the Depart- her. But what is particularly disturbing against Justice Owen was not about ment of Justice, Judge Marra joined about her approach to judging is, as Mr. abortion rights, it was about abortion the law firm of Wender, Murase & Gonzales has identified, her willingness to profits. It is not about a woman’s right White of Washington, D.C., where he ignore that text and intent of laws that to an abortion, it is about assailing pa- was involved in patent and trademark stand in her way. In an important age dis- rental laws that threaten the men who litigation, corporate law and litigation crimination case, Justice Owen dissented to pay for abortions. It is whether parents in the area of federal Indian law. In argue that the plaintiff should have to meet a higher standard than Texas law requires. should at least know, not even consent 1984 Judge Marra joined the law firm of Justice Owen has also shown a disturbing to, but just know, when a minor child Nason, Gildan, Yeager, Gerson & lack of sensitivity to judicial ethics. She has is having an abortion paid for by an White. He worked at that firm for the raised large amounts of campaign contribu- adult. next twelve years focusing on commer- tions from corporations and law firms, and

VerDate Sep 04 2002 03:39 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\A09SE6.003 S09PT1 S8346 CONGRESSIONAL RECORD — SENATE September 9, 2002 then declined to recuse herself when those Circuit has a long and honorable history—de- icy of nominating judges who believe in the contributors have had cases before her. And fending civil rights during the 1960s and the law more than any ideological agenda. as a judicial candidate, she publicly endorsed rights of asbestos workers, systematically a pro-business political action committee deceived and injured by their employers, in [From the San Francisco Chronicle, July 23, that was raising money to influence the rul- the 1970s. Owen would add nothing positive 2002] ings of the Texas Supreme Court. to that legacy. FEINSTEIN’S DECISIVE MOMENT After the Senate Judiciary Committee re- Americans want independent, common- Sen. Dianne Feinstein, D-Calif., faces a jected Judge Charles Pickering, another far- sensical and capable judges, not those whose momentous decision. Today, the Senate Ju- right choice, for a seat on the Fifth Circuit political ideology—from either direction— diciary Committee will hold hearings on earlier this year, the Bush administration wins them a nomination. As long as Bush Priscilla Owen, the president’s candidate for declared that it would not be intimidated continues to exclude the American Bar Assn. a lifetime appointment to the United States into choosing more centrist nominees. Sadly, from the nomination process, he should not Court of Appeals for the Fifth Circuit. With the administration has lived up to its threat. be surprised that his choices draw fire. the committee divided along party lines, In this dispute the Senate is right: the ad- Feinstein could cast the decisive vote. ministration should stop trying to use the [From the San Antonio Express-News, July When George W. Bush became president, he judiciary to advance a political agenda that 21, 2002] excoriated judicial activism and vowed to is out of step with the views of most Ameri- BUSH COURT CHOICE SHOULD BE REJECTED nominate justices who interpret the law, in- cans. Once competency is established, the most stead of trying to rewrite it. Justice Owen is a choice that makes sense important qualification for a judge is com- Priscilla Owen simply does not satisfy the for Justice Department ideologues who want mitment to following the law as it is writ- president’s own criteria for this position. Ac- to turn the courts into a champion of big ten—regardless of personal philosophy. cording to a report issued by People For the business, insurance companies and the reli- Justice Priscilla Owen is clearly com- American Way, a liberal advocacy group, gious right. But the American people deserve petent, but her record demonstrates a re- Owen has demonstrated a disturbing pattern better. Justice Owen’s nomination should be sults-oriented streak that belies supporters’ of overruling the law when it clashes with rejected. claims that she strictly follows the law. her conservative ideology. Because of Owen’s record as a member of In one case, for example, Owen’s dissenting [From the Los Angeles Times, July 23, 2002] the Texas Supreme Court, the Senate Judici- decision would have effectively rewritten a IDEOLOGUES ALL IN A ROW ary Committee should reject her nomination key Texas civil rights law by making it more Last year President Bush eliminated the to sit on the U.S. 5th Circuit Court of Ap- difficult for employees to prove discrimina- American Bar Assn. from the process of vet- peals. tion. Her colleagues on the bench—mostly ting potential judicial nominees, a role it Her most infamous opinions involve cases Bush appointees—wrote that her ruling ‘‘de- performed ably and in a nonpartisan way for in which minors were seeking a legal bypass fies the Legislature’s clear and express lim- the nine presidents before him. Now he relies allowing them to get an abortion without pa- its on our jurisdiction.’’ on the ideological tests of the very conserv- rental consent. With respect to reproductive rights, Owen ative Federalist Society. In those cases, she consistently landed in a advocated a far more restrictive interpreta- Not surprisingly, the men and women who small court minority that opposes such by- tion of the Texas law that allows a minor to pass this rigid test look remarkably alike on passes, while a majority of her fellow judges obtain an abortion without parental notifi- the bench. They often side with business in on an all-Republican court upheld the law as cation. Her dissent prompted then-Justice disputes involving employee rights, con- legislators wrote it. Alberto Gonzales, now the White House Former Justice Al Gonzales clearly point- sumers and the environment. They strongly counsel, to write that her opinion con- ed that out. In an opinion that countered a oppose abortion, and their opinions reveal a stituted ‘‘an unconscionable act of judicial dissent she supported, he wrote: ‘‘To con- strong streak of judicial activism dressed up activism.’’ Gonzales, naturally, now ex- strue the Parental Notification Act so nar- as traditional principle. presses the White House party line, hailing Priscilla Owen is among them. A protege of rowly as to eliminate bypasses, or to create Owen’s integrity and ability. ‘‘I’m confident Bush confident Karl Rove, who engineered hurdles that simply are not to be found in she will follow the law as defined by the Su- her 1994 election to the Texas Supreme the words of the statute, would be an uncon- preme Court,’’ Gonzales was quoted as say- Court, Owen is a nominee to a seat on the scionable act of judicial activism.’’ ing in the San Antonio Express-News. Now serving as President Bush’s White U.S. 5th Circuit Court of Appeals. She comes But close observers of her Texas record are House counsel, Gonzales is defending his before the Senate Judiciary Committee less confident of her objectivity. Danielle former state court colleague. However, opin- today to defend a record of indifference to Tierney, a Planned Parenthood spokes- ions she wrote in the parental consent cases the problems of most Americans. woman from Texas, said Owen has ‘‘a record show a clear line between strict construc- Senators should ask her why, for example, of active opposition to reproductive and tionist judges and activists. she voted to reverse a jury verdict in favor of women’s rights.’’ Owen, who remains on the state’s high a woman who had sued her health insurance Owen has also tried to finesse laws that court, is an activist. company for refusing necessary surgery to In recent years, judicial nomination strug- protect public information rights, the envi- remove her spleen and gallbladder. Her col- gles on Capitol Hill have become a game, ronment, and jury findings. league on the Texas high court, Alberto played by both parties, or petty obstruc- The point is, Owen has created a strong Gonzales, now Bush’s top legal advisor, dis- tionism. record of ‘‘rewriting’’ the law when it does sented, writing that Owen’s decision turned The Senate should not block a judicial not match her conservative convictions. the legal standard in that case ‘‘on its head.’’ nominee simply because he or she is more This is why it is vital that Feinstein reject Gonzales, a solid conservative himself, also conservative or more liberal than the Sen- this nomination. took issue with Owen in an abortion case ate’s majority party. that should draw tough questions from Sen. It also should not engage in petty personal [From the Dallas Morning News, July 16, Dianne Feinstein (D–Calif.), chairwoman of attacks. But concerns about Owen go to the 2002] today’s hearing. Texas law allows pregnant heart of what makes a good judge. JUSTICE OWEN: PERPETRATOR OR VICTIM OF teenagers in some instances to seek permis- When a nominee has demonstrated a pro- POLITICS? sion from a judge to have an abortion with- pensity to spin the law to fit philosophical HER ACTIVISM HAS BEEN EXTREME, EVEN BY out their parents’ consent. Owen has beliefs, it is the Senate’s right—and duty—to TEXAS STANDARDS staunchly opposed such ‘‘judicial bypasses.’’ reject that nominee. (By Craig McDonald) In one case, Gonzales, wrote, Owen’s opinion A hearing on Owen’s nomination is set for would have ‘‘create[d] hurdles that simply this week. Texas Supreme Court Justice Priscilla are not found in the . . . statute’’ and would Although Owen should be rejected for a Owen, who faces a Senate Judiciary Com- be ‘‘an unconscionable act of judicial activ- lifetime appointment, the Democrat-con- mittee hearing Thursday on her nomination ism.’’ in other cases, her colleagues have ac- trolled Senate should have given her a hear- to the 5th U.S. Circuit Court of Appeals, cused her of ‘‘inflammatory rhetoric.’’ ing long ago. Bush nominated Owen on May flunks the stated judicial criteria of both For all this, Owen’s nomination puts Fein- 9, 2001. President Bush and the Democratic chair- stein in a tough spot. She was chairwoman Owen and the president were owed better man of the Judiciary Committee. last March when the Judiciary Committee treatment. Even nominees who are destined Although the president nominated Justice rejected Charles Pickering, another Bush for rejection deserve timely consideration, Owen, she flunks his own pledge to appoint pick for the 5th Circuit. She is anxious to and the Democrats should pick up the pace ‘‘strict constructionists’’ who narrowly in- avoid being labeled obstructionist. But given in considering Bush’s judicial picks. terpret laws rather than write opinions pro- her repeated calls for mainstream nominees, During his years as Texas governor, Bush moting a political agenda. ‘‘I want people on not to mention her long support for abortion did a masterful job of selecting quality, mod- the bench who don’t try to use their position rights, Feinstein should vote no, and so erate judges. But his decision to nominate to legislate from the bench,’’ Mr. Bush has should her colleagues. Owen is a disappointment. said. Yet Justice Owen’s record on the Texas Although it is now one of the most con- We urge Bush to take more care in future Supreme Court is one of a judicial activist servative appellate federal courts, the 5th nominations and return to his previous pol- who seeks to make laws from the bench.

VerDate Sep 04 2002 04:40 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\A09SE6.007 S09PT1 September 9, 2002 CONGRESSIONAL RECORD — SENATE S8347 Justice Owen also flunks the criteria of Why then is it so darn hard to find these who is pushing her judicial nomination. But Senate Judiciary Committee Chairman Pat- kind of plain-and-simple judges? The answer, politics should not be the primary measure rick Leahy, who has pledged to stop any of course, is the dreaded P word; politics. of a judge’s ability to administer justice. ‘‘ideological court packing.’’ Justice Owen’s The ongoing battle in the Senate Judiciary As much as it pains me to say it, Justice record has established her as an ideological Committee over the nomination of Priscilla Enron should stay put in Texas. extremist out of the mainstream—even on Owen to the 5th U.S. Circuit Court of Ap- the all-conservative Texas Supreme Court. peals is a perfect example of how politics is [From the Houston Chronicle, July 31, 2002] Justice Owen’s extreme opinions have mo- making a certifiable mess of America’s judi- DIFI, OWEN WOULD BE VERY ODD COUPLE bilized a large coalition of Texas organiza- cial system. (By Cragg Hines) tions working to stop her appointment. The In seven years on the Texas Supreme groups fighting her nomination range from Court, the only way moderate-thinking peo- Sen. Dianne Feinstein, a wonderfully calm, the Texas chapter of the American Associa- ple in Texas survived Owen’s relentless cool Californian, loves to be the swing vote. tion of University Women to the Women’s ultra-conservative dissents was to toughen It increases the sense that she is unbought Health and Family Planning Association. our stomachs and take her many efforts to and unbossed, and it makes her political cur- They include the AFL–CIO, the National As- rewrite our state laws one day at a time. rency slightly more valuable than that of sociation for the Advancement of Colored This is a woman who has consistently ruled colleagues who fall predictably one way or People, Planned Parenthood, the Texas Civil against consumers, has routinely overturned another on an issue. Rights Project, the Texas Abortion Rights decisions of juries, has curtailed access to Part of this is political tromp l’oeil, an il- Action League and others. public records, and by anyone’s measure is lusion so strong that it’s difficult to tell it’s While each of those organizations has its an avid anti-abortion ideologue. not genuine. For, when the roll is called, own reasons for opposing Justice Owen, my Mind you: the Texas Supreme Court is no only rarely is Feinstein not reliably found group—Texas for Public Justice—is particu- bastion of liberalism. The nine members of where she sought to be—in her regular cen- larly troubled by the fact that she has the court are 100 percent pedigree Repub- ter-left Democratic pew. amassed a body of rulings that advance the lican, but Owen was such a right-wing activ- Which brings us to the nomination of Jus- agendas of the special interests that ist she managed to earn the nickname ‘‘Jus- tice Priscilla Owen of the Texas Supreme bankrolled her judicial campaigns. Thirty- tice Enron’’ for accepting $8,600 in Enron Court to be a judge on the 5th U.S. Circuit seven percent of the $1.4 million that Justice campaign funds in one year—$1,000 of it from Court of Appeals, a place where the conserv- Owen raised for her Supreme Court cam- Kenneth Lay himself—and turning around ative judicial activist, corporate suck-up and paigns came from donors with a direct stake the next and writing an opinion that saved made member (blood oath?) of the Federalist in case in her court. Enron $225,000 in school taxes. Society has no earthly place being. Letting special interests bankroll judicial As one of only nine states in the nation Feinstein ran last week’s hearing by the campaigns has shattered public confidence in with the sorry system of electing our judges Senate Judiciary Committee on Owen’s nom- Texas courts. A 1999 Texas Supreme Court with expensive campaigns paid for by the ination and said she was ‘‘keeping an open poll found that 83 percent of Texans, 79 per- very lawyers and businesses that come be- mind’’ regarding President Bush’s deter- cent of Texas lawyers and 48 percent of fore these judges for justice, Texas gets ex- mination to give Owen lifetime employment. Texas judges say campaign contributions actly the kind of justice we deserve. In the (For the forgetful: Bush and Owen both got significantly influence judicial decisions. case just mentioned, for example, Enron paid their start in statewide politics as clients of Commenting on the poll, U.S. Supreme Court for the privilege of robbing the public school the White House political high priest, Karl Justice Anthony Kennedy said, ‘‘The law children of Spring, a Houston suburb, of Rove.) commands allegiance only if it commands their rightful share of taxes. Feinstein’s self-advertised ‘‘open mind’’ is respect. It commands respect only if the pub- I don’t expect President Bush to nominate about the only hope for supporters of Owen. lic thinks judges are neutral.’’ judges to the federal bench with whom I The Judiciary Committee’s nine Republicans Since Justice Owen joined the high court agree politically. But I do expect Bush to need one of the panel’s 10 Democrats to vote in 1995, she has written and joined a slew of nominate people to lifetime positions on the with them to get the nomination to the opinions that favor businesses over con- federal bench who meet Bush’s own stand- floor. sumers, defendants over plaintiffs and judges ards of ‘‘strict constructionists,’’ judges who If the nomination is not cleared by the over lawmakers and juries. A 1999 study by will interpret rather than write the law. committee, it’s dead. None of this sending it Austin-based Court Watch found that indi- Owen fails the Bush test. to the floor without a recommendation in a viduals won just 36 present of their cases In no less than a dozen cases in which the Senate with a one-vote Democratic margin during Justice Owen’s tenure, compared to a Texas Supreme Court was asked to allow a and run by Majority Leader Tom Daschle, D– win rate of 66 percent for businesses, 70 per- pregnant teenager to bypass the state’s pa- S.D. cent for insurers and 86 percent for medical rental notification requirement and have an (Owen opponents would still like to hear interests. abortion, Owen voted every time to deny the something definitive from two other While all nine Texas Supreme Court jus- bypass and created hurdles that were not Demoracts—Sen. Joseph R. Biden, Jr. of tices are pro-business conservatives, Justice written in the state’s law. In one case, when Delaware, who did not show up for last Owen and Nathan Hecht became an isolated lawyers for a high school senior requested week’s hearing, and the enigmatic gen- bloc of extremist dissent about 1998. that the court act quickly on the girl’s re- tleman from Wisconsin, Sen. Russell D. Fein- Masquerading as ‘‘strict constructionists,’’ quest for permission to bypass the notifica- gold—but the focus is on Feinstein.) Justices Owen and Hecht have promoted the tion requirement, Owen wrote a dissent that Owen’s opponents believe that Feinstein interests of big business and the far right asked: ‘‘Why then the rush to judgment?’’ will eventually vote against the Texas jurist, with much less restraint than their fellow The girl was in the 15th week of pregnancy but they cannot be absolutely certain. Fein- Texas justices. That ultraconservative activ- at the time. stein is not about to help them divine the or- ism is all the more disturbing, given that it Owen’s rulings in these abortion notifica- acle at the moment. mirrors the agenda of the top donors to their tion cases were so strident that Alberto ‘‘I’ve been giving it a great deal of judicial war chests. Gonzales, now Bush’s White House counsel thought,’’ Feinstein said this week as the In making lifetime appointments to fed- but then a member of the Texas Supreme Senate headed toward summer recess. ‘‘I’m eral appeals courts, the president and the Court, wrote in a majority opinion that not going to let my decision be known, but Senate can—and should—do better. Justice Owen and two other dissenting justices were at an appropriate time, I will. Owen lacks criminal trial experience, has thwarting the clear intent of the law. To ac- ‘‘What I’ve said, and I’ve taken this posi- taken more than $500,000 in judicial con- cept their reasoning, he wrote, ‘‘would be an tion, I think, rather scrupulously, is that I tributions from interests with cases in her unconscionable act of judicial activism.’’ don’t make up my mind until after the hear- court and has produced a body of activist Gonzales finds himself in the role of reluc- ing.’’ opinions that are extremist—even by Texas tant cheerleader for Owen. In a telephone There was little in the hearing that should standards. interview from his office in the West Wing lead Feinstein, or any senator, to believe the other day, Gonzales claimed that he that Owen is anything but the very bright, [From the San Antonio Express-News, July never accused Owen of judicial activism and very ideological, very driven hard-right ju- 21, 2002] believes she would be an excellent judge. His rist revealed in her work over the last seven JUDGE OWENS FLUNKS BUSH’S OWN ‘‘STRICT opinion has written in black-and-white only years on Texas’ highest civil court. CONSTRUCTIONISTS’’ TEST two years ago—he clearly called her dissent Finally, Sen. Richard J. Durbin, D-Ill, (By Jan Jarboe Russell) an ‘‘unconscionable act of judicial activ- asked Owen directly about her position on In a perfect world, there wouldn’t be ‘‘lib- ism’’—but maybe in his struggle to find the abortion. eral’’ judges or ‘‘conservative’’ judges, there gray, Gonzales meant that he thought all of ‘‘My position is that Roe v. Wade has been would just be good judges. After all, if you three of the judges were unconscionable. the law of the land for many, many years ask ordinary people what they want in a fed- Who knows? Politics makes people parse ...,’’ Owen said, noting that decision had eral judge, what they want are judges who words very carefully. been modified (and made more restrictive by are fair, learned and impartial, judges who Owen’s political credentials are indeed im- subsequent rulings). ‘‘None of my personal have the ability to lay aside their own polit- pressive. She is a protege of Karl Rove, the beliefs would get in the way of me applying ical views and do their public duty. president’s political adviser, and it is Rove that law or any other law.’’

VerDate Sep 04 2002 03:39 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\A09SE6.011 S09PT1 S8348 CONGRESSIONAL RECORD — SENATE September 9, 2002 But Owen’s record, in a series of recent islature that she was even criticized by fel- was never given a hearing or a vote; abortion-related cases, suggests otherwise. low conservatives on the state Supreme Judge Stephen Orlofsky, from the In all but one of the cases, Owen sought to Court, including Alberto Gonzales, who is Third Circuit, was never given a hear- tweak and torture the Texas law to some- now Bush’s White House counsel. ing or a vote; Judge Andre Davis, from thing not intended by the Legislature. On abortion, age and employment dis- Feinstein was listening to all of this and, crimination, insurance and tax matters, the the Fourth Circuit, was never given a one assumes, took it on board. In case she former corporate oil lawyer repeatedly em- hearing or a vote; and Enrique Moreno, didn’t, an editorial in The Los Angeles Times bellished the plain language of the law to re- of the Fifth Circuit, was never given a the morning of the hearing should have write it to conform with her own ideological hearing and never given a vote. helped: The work of Owen and similarly situ- views. She also found ways to side consist- These are people with the highest ated conservative jurists ‘‘reveal(s) a strong ently with corporations, including Enron, possible rating from the ABA. Repub- streak of judicial activism dressed up as tra- which contributed generously to her Su- licans can say they never voted against ditional principle.’’ preme Court election campaign. them. Why? Because they were never The home state newspaper parsed Fein- President Bush has accused the Senate Ju- stein’s situation: She also chaired the hear- diciary Committee of blind partisanship, but brought up and never given a vote. If ings earlier this year in which the Judiciary the facts don’t bear that out. In less than they had been given a vote, they would Committee rejected Bush’s nomination of two years, the Democratic-controlled com- have known where they stood. Charles Pickering of Mississippi for a seat on mittee has approved more Bush nominees for My good friend from Utah, perhaps the 5th Circuit Court. the federal bench than the Republican-con- inadvertently, thought I was com- ‘‘She is anxious to avoid being labeled ob- trolled Senate Committee did in six years paring a time when he was not chair- structionist,’’ The Times said of Feinstein. with President Clinton. man. I do compare a time when he was ‘‘But given the repeated calls for main- Senate Judiciary Chairman Patrick Leahy chairman. I will take the first 15 stream nominees, not to mention her long (D-Vt.) has held hearings on 82 Bush judicial support of abortion rights, Feinstein should nominations, 80 of which have been approved months that he was chairman with a vote no, and so should her colleagues.’’ Fein- by the committee. Most of those nominees Democratic President. stein said she weighs such opinion but that it have been pro-life conservatives whose per- The Democratic President nominees is not dispositive. formance on the bench the committee still got 14 hearings in 15 months; the Re- One piece of baggage Feinstein would like judged to be fair and professional. For exam- publican President nominees, under my to discard in the Owen matter is that her ple, last week the committee unanimously chairmanship, got 23 hearings. vote will have anything to do with a business confirmed Bush’s choice of Federal District Nominees who received hearings relationship that the senator’s husband, Judge Reena Raggi of New York for the 2nd Richard C. Blum, has with Dr. James under Republicans were 67; under the U.S. Circuit Court of Appeals. Democrats with a Republican Presi- Leininger of San Antonio, a generous sup- Nevertheless, Bush lashed out angrily at porter of Owen’s judicial campaign. the Owen defeat: ‘‘I don’t appreciate it one dent, 84. ‘‘I’ve never met (Leininger), talked with bit, and neither do the American people.’’ Nominees confirmed, 56; in the same him, seen him, heard from him—and that’s Quite the contrary, Mr. President. The period of time, it was 74 with us. that,’’ Feinstein said. Nor, she said, ‘‘have I American people appreciate balanced judg- Nominees voted on in committee: ever talked to my husband about this, nor ing, and thanks to the Senate Judiciary They allowed 61 during that 15 months. has he ever talked to me about it.’’ Committee, they’re getting it. We have had votes on 82 of this Presi- So Feinstein should be able to vote against Mr. LEAHY. Madam President, I ask dent’s judicial nominees. Owen with a clear conscience. unanimous consent for 1 more minute, Mr. LEAHY. In part, this article It is nice to say nominations are not with another minute to be given to the says: being handled fairly. The fact is, if we Senator from Utah. used the Republican precedent as a Senate Judiciary Committee Chairman Mr. REID. Will the Senator yield? mark of fairness, we would not have to Patrick Leahy has held hearings on 82 Bush Mr. LEAHY. Yes. judicial nominations, 80 of which have been do anything else for the rest of the approved by the committee. Most of those Mr. REID. I was going to go into a year because we are way beyond what nominees have been pro-life conservatives quorum call for 5 or 6 minutes anyway. they did. whose performance on the bench the com- If the Senators would like 3 more min- I reserve the remainder of my time. mittee still judged to be fair and profes- utes each or something, that is fine. Mr. HATCH. Madam President, how sional. For example, last week the com- Otherwise, I will go into a quorum call. much time remains on each side? mittee unanimously reported on President Mr. LEAHY. Madam President, I ask The PRESIDING OFFICER. The Sen- Bush’s choice of Federal District Judge unanimous consent for that time. ator from Utah has 4 minutes 5 sec- Reena Raggi of New York for the U.S. Cir- The PRESIDING OFFICER. Without cuit Court of Appeals for the Second Circuit. onds. objection, it is so ordered. Mr. HATCH. How much on each side? Parenthetically, I might add that Mr. LEAHY. Madam President, there The PRESIDING OFFICER. The Sen- Judge Raggi was originally appointed was a suggestion made—I am sure inad- ator from Vermont has 7 seconds. by President Ronald Reagan, a con- vertent—by the distinguished Senator Mr. HATCH. Madam President, servative Republican who promised to from Utah that it was unprecedented again, the Senator from Vermont and I appoint only judges who satisfied his to see a nominee with a well-qualified are friends, but I totally disagree with litmus test. rating be voted against. Actually, the what he has been saying. It is a smoke The American people appreciate balanced Senator from Utah has voted against screen. judging, and thanks to the Senate Judiciary such a person, like Judge Rosemary Allow me to address the fate of nomi- Committee, they’re getting it. Barkett of Florida, as have a number of nees first sent up by the first President I ask unanimous consent that the others. But then there were a whole lot Bush. In fact, some pending today editorial be printed in the RECORD. of others who we can say were not without a hearing who were nominated There being no objection, the mate- voted against? Why? Because they were by the first President Bush nearly 10 rial was ordered to be printed in the never allowed to have a vote during Re- years ago. These are nominees still on RECORD, as follows: publican control of the Senate. the list after 10 years that the Demo- Through constant repetition, conservatives This is a partial list of nominees who crats have not allowed to come up: Ter- have managed to make a code phrase out of never had a vote, but they had the rence Boyle for the Fourth Circuit and ‘‘judicial activism,’’ applying it to rulings that in their mind go beyond the words in highest rating possible: H. Alston John Roberts for the DC Circuit, con- legislation or the U.S. Constitution. But con- Johnson from the Fifth Circuit was sidered one of the two or three greatest servatives themselves are hardly immune never given a hearing by the Repub- appellate lawyers in the country before from the problem. licans; James Duffy from the Ninth the Supreme Court; Henry Saad for the Case in point: Texas Supreme Court Jus- Circuit was never given a hearing; Sixth Circuit; Ronald Leighton for the tice Priscilla Owen, rejected last week for Kathleen McCree Lewis from the Sixth Western District of Washington; and the 5th U.S. Circuit Court of Appeals by the Circuit was never given a hearing or a Richard Dorr for the Western District Senate Judiciary Committee because of her vote; Judge James Lyons, from the of Missouri. All five of these nominees record of making law from the bench. The committee made the right decision for the Tenth Circuit, was never given a vote were nominated by the first President American people. or a hearing; Allen Snyder, from DC, Bush, better than 10 years ago, but Owen’s activist judging has gone so far be- had a hearing but no vote; Judge Rob- never received committee action at yond the statutes enacted by the Texas Leg- ert Cindrich, from the Third Circuit, that time. I hope they, too, will soon

VerDate Sep 04 2002 03:39 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\A09SE6.013 S09PT1 September 9, 2002 CONGRESSIONAL RECORD — SENATE S8349 receive their long-awaited hearings and the past year, the Senate has con- his tenure as a circuit judge, Judge confirmation votes. firmed only 13. There are still 19 Cir- Marra spent 16 years practicing com- By the way, there were 42 left over at cuit Court nominees pending in Com- mercial litigation in Palm Beach Coun- the end of the Clinton administration. mittee. By comparison, at the end of ty and Washington, DC. He also served Nine of them were put up so late, there President Clinton’s second year in of- as a trial attorney with the United was no way anybody could have gotten fice, we had confirmed 19 circuit judges States Department of Justice. them through. That brings us down to and had 15 circuit court vacancies. Judge Marra is a graduate of the 33, and of the 33, there were others who There were only two Circuit Court State University of New York at Stony did not have the support of both home- nominees left pending in committee at Brook and earned his law degree from State Senators. There were those who, the end of President Clinton’s first the Stetson University College of Law for one reason or another, could not year in office. In contrast, there were in 1977. Before attending law school, make it. 23 of President Bush’s Circuit Court the judge taught social studies to high Contrast that when Bush 1 left office nominees pending in Committee at the school students in New York. and the Democrats were in control. end of last year. The strength of Judge Marra’s nomi- There were 54 left over. That is 11 more Some try to blame the Republicans nation is evident from the strong sup- than were left when President Clinton for the vacancy crisis, but that is port that he has earned from his local left office. bunk. At the end of the 106th Congress bar. When asked to comment on his If you want to talk statistics, I can when I was chairman, we had 67 vacan- nomination for a January 4 Palm talk them all day long, and I can tell cies in the Federal judiciary. During Beach Post article, Amy Smith, presi- you we have been much more fair than the past 9 months, the vacancy rate dent of the Palm Beach County Bar As- what we have seen in the first 2 years has been hovering right around 100. sociation, said, ‘‘He is an absolutely of the Bush 2 administration. Today is at 80. perfect choice: impeccable background, I suggest that instead of spending our Some think that the point of ‘‘advise extremely intelligent, consistently one time talking about the same small and consent’’ is to match statistics of the highest rated judges in the judi- handful of Clinton nominees, we should from previous years. This rear-view- cial evaluations done here.’’ Ms. Smith focus on the ones pending before us mirror driving is nonsense. The Senate said Marra’s judicial demeanor ‘‘is gra- today who never saw the light of day has a duty to exercise its advice and cious and humble. The President the last time the Democrats controlled consent, and it has done so on only 40 couldn’t have made a better choice.’’ the Senate. percent of President Bush’s appellate When the Palm Beach County Bar Justice Owen, for instance—and this court nominations so far this Congress. Association released its biennial sur- is an important point—is literally the The question is not: How many judges vey of circuit and county judges earlier first one in history who had the sup- should we let President Bush have? The this spring, Judge Marra ranked the port of both-home State Senators, the question is: Is the Senate getting its highest in the neutrality and fairness highest rating of the American Bar As- work done? category, with 63 percent of the attor- sociation, and was voted down in com- The Sixth Circuit Court of Appeals, neys rating him as ‘‘outstanding.’’ mittee and not even given a chance to which encompasses the states of Michi- In Florida, Judge Marra submitted have a vote on the Senate floor. gan, Ohio, Kentucky and Tennessee, his application to a judicial nomi- Currently, there are 80 empty seats has only 8 of 16 seats filled, leaving nating committee comprised of a di- on the Federal judiciary. That is a 9.3- that court half-empty. The President verse group of Floridians, who in turn percent vacancy rate, one of the high- has nominated 8 individuals to fill recommended three candidates to the est in modern times. This means that these vacancies, but only two have re- President for consideration. Senator 9.3 percent of all Federal courtrooms ceived a hearing, despite the fact that BILL NELSON and I interviewed these are presided over by an empty chair. two of these nominees have been pend- candidates. There are currently 21 nominees who ing since May 9, 2001. In summary, Mr. Marra is an intel- are slated to fill positions which have The U.S. Court of Appeals for the ligent, well-respected, and qualified been declared judicial emergencies by District of Columbia is also func- candidate for the Federal bench. the Administrative Office of the tioning far below its normal capacity, I appreciate the Senate’s consider- Courts. Of those, 11 are Circuit Court of with 4 out of 12 authorized judgeships ation of Judge Marra’s nomination and Appeals nominees. currently vacant. Although the Presi- look forward to working with my col- Only 5 of President Bush’s first 11 dent nominated Miguel Estrada and leagues to confirm additional nominees circuit court nominees nominated on John Roberts on May 9, 2001, to fill to Florida’s Southern and Middle Dis- May 9, 2001—a year and a half ago al- seats on this Court, they have not yet tricts, two of the largest and busiest most—have had hearings. In other been given a hearing. judicial districts in the country. words, the Judiciary Committee has The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. All time taken no action whatsoever on nearly ator’s time has expired. has expired. half of the circuit court nominations Mr. LEAHY. Madam President, last The PRESIDING OFFICER. The that have been pending for over 16 year when the Republicans controlled question is, Will the Senate advise and months. the Senate Judiciary Committee, they consent to the nomination of Kenneth There is no reason for this other than did not hold one hearing on President A. Marra, of Florida, to be United stall tactics. All of these nominees re- Bush’s nominees. We have done 82. States District Judge for the Southern ceived qualified or well-qualified rat- Mr. GRAHAM. Mr. President, I would District of Florida? The yeas and nays ings from the American Bar Associa- like to thank the Judiciary Committee have been ordered. The clerk will call tion. for recognizing the needs of Florida the roll. There were 31 vacancies in the Fed- and favorably reporting the nomina- The bill clerk called the roll. eral courts of appeals on May 9, 2001, tion of Judge Kenneth A. Marra. Mr. REID. I announce that the Sen- and there are 28 today. The Senate Ken Marra, a skilled and respected ator from Hawaii (Mr. AKAKA), the Sen- Democrats are trying to create an illu- Judge in Florida’s Fifteenth Circuit, ator from Illinois (Mr. DURBIN), the sion of movement by creating great has been nominated to serve as a Fed- Senator from Iowa (Mr. HARKIN), the media attention and controversy con- eral judge in the busy Southern Dis- Senator from Connecticut (Mr. cerning a small handful of nominees in trict of Florida. If confirmed, he will LIEBERMAN), the Senator from Mary- order to make it look like progress. fill a newly created and much needed land (Ms. MIKULSKI), the Senator from But we are not making any progress in judgeship position. Washington (Mrs. MURRAY), are nec- filling circuit vacancies. Judge Marra’s solid qualifications essarily absent. President Bush has responded to the make him an ideal candidate for serv- Mr. NICKLES. I announce that the vacancy crisis in the appellate courts ice on the Federal bench. A circuit Senator from Colorado (Mr. ALLARD), by nominating a total of 32 top-notch judge since 1996, he currently serves in the Senator from Missouri (Mr. BOND), men and women to these posts—but the the Palm Beach County Court’s civil, the Senator from Kentucky (Mr. Senate is simply stalling them. Over family and criminal divisions. Before BUNNING), the Senator from Colorado

VerDate Sep 04 2002 03:39 Sep 10, 2002 Jkt 099060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G09SE6.024 S09PT1 S8350 CONGRESSIONAL RECORD — SENATE September 9, 2002 (Mr. CAMPBELL), the Senator from New The PRESIDING OFFICER. The Re- Marsha Berzon had been a prominent Hampshire (Mr. GREGG), the Senator publican leader. ACLU and Labor Union lawyer who op- from North Carolina (Mr. HELMS), the Mr. LOTT. Mr. President, I yield my- posed parental consent laws for minors’ Senator from Arkansas (Mr. HUTCH- self such time as I may consume under to have abortions and had worked INSON), the Senator from Pennsylvania the leader’s time. against the rights of individual work- (Mr. SANTORUM), the Senator from Ala- The PRESIDING OFFICER. The lead- ers in favor of the rights of unions. She bama (Mr. SESSIONS), the Senator from er has that right. was also a prominent and active mem- Alabama (Mr. SHELBY), the Senator f ber of the Brennan Center for Justice from New Hampshire (Mr. SMITH), the JUDICIAL NOMINATIONS that cranked out initiatives it charac- Senator from Pennsylvania (Mr. SPEC- terized as ‘‘stand[ing] up to right-wing Mr. LOTT. Mr. President, I do not TER), are necessarily absent. attacks on the judiciary.’’ want to take an extended period of The PRESIDING OFFICER (Mr. NEL- Richard Paez had written publicly of time because I know the managers of SON of Florida). Are there any other his belief that whenever judges feel leg- the legislation are here and ready to go Senators in the chamber desiring to islatures have failed to act, ‘‘there’s no forward with the very important con- vote? choice but for the courts to resolve the sideration of and amendments to the The result was announced—yeas 82, question that perhaps ideally and pref- Homeland Security Department, but I nays 0, as follows: erably should be resolved through the must comment on action last week of legislative process.’’ That is exactly [Rollcall Vote No. 211 Ex.] the Senate Judiciary Committee. the kind of judicial activism that Pris- YEAS—82 Once again, Mr. President, there has cilla Owen’s critics have falsely ac- Allen Dorgan Lugar been a tremendous miscarriage of jus- Baucus Edwards McCain tice by the Judiciary Committee. By a cused her of in order to give themselves Bayh Ensign McConnell vote of 10 to 9, a unanimous, partisan an excuse for voting against her. Paez Bennett Enzi Miller had also ruled as a district judge—prior Biden Feingold block of Democrats—10 Democrats— Murkowski to his confirmation to the appeals Bingaman Feinstein Nelson (FL) voted against the nomination of Pris- Boxer Fitzgerald Nelson (NE) cilla Owen, who had been nominated by court—that States and cities could not Breaux Frist Nickles outlaw was aggressive and intimi- Brownback Graham the President to a seat on the Fifth Reed Burns Gramm dating panhandling by the homeless be- Reid Circuit Court of Appeals. Byrd Grassley The way this nomination was han- cause it would infringe on a pan- Cantwell Hagel Roberts handler’s free speech rights. Rockefeller dled is a cause for great concern as well Carnahan Hatch Rosemary Barkett, while a Florida Carper Hollings Sarbanes as the fact that, once again, the Senate Chafee Hutchison Schumer will not have a chance to vote on a Supreme Court Justice, had argued for Cleland Inhofe Smith (OR) eminently qualified and experienced overturning the death penalty of a man Snowe Clinton Inouye nominee to serve on the Fifth Circuit who had brutally murdered a youth in Cochran Jeffords Stabenow Jacksonville and then sent a tape to Collins Johnson Stevens Court of Appeals. I am convinced that Conrad Kennedy Thomas had her nomination been permitted to the victim’s mother describing the hor- Corzine Kerry Thompson make it to the floor—as the Republican rible details of the killing. An opinion Craig Kohl Thurmond Majority in the past allowed numerous signed by Barkett opposed the death Crapo Kyl Torricelli arguing that the killing was ‘‘a social Daschle Landrieu Voinovich controversial Democrat nominees to Dayton Leahy Warner get to the floor—Judge Owen would be awareness case . . . effectuated to DeWine Levin Wellstone approved by the full Senate and she focus attention on . . . racial discrimi- Dodd Lincoln Wyden nation.’’ Domenici Lott would be confirmed. We always hear the arguments of Nevertheless, despite the misgivings NOT VOTING—18 those who say that there have been ac- and question marks from an ideology Akaka Gregg Murray tions in the past where nominees who standpoint as to whether or not they Allard Harkin Santorum should be confirmed, the Republican Bond Helms Sessions were qualified were not given votes. Bunning Hutchinson Shelby However, during the time when I was majority permitted all three of these Campbell Lieberman Smith (NH) majority leader I remember numerous nominations to come to the floor and Durbin Mikulski Specter cases where despite the belief of many be voted on by the full Senate and all The nomination was confirmed. Senators on our side that the nomi- three were confirmed. Mr. REID. I move to reconsider the nees’ views were far, far outside the Now, in contrast to these three far vote. mainstream, we still permitted their left nominees, let me speak to Priscilla Mr. LEAHY. I move to lay that mo- nominations to come to the floor. We Owen’s qualifications. tion on the table. did that because while we disagreed First of all, I am not one who thinks The motion to lay on the table was with their political and ideological it is particularly important whether agreed to. views, it was still hard to argue that the American Bar Association rates a The PRESIDING OFFICER. Under they were not professionally qualified. nominee qualified or not. But, of the previous order, the President will Mr. President, I specifically remem- course, the ABA’s judgment has been be notified of the Senate’s action. ber the nominations of Marsha Berzon, described by a number of leading f Richard Paez and Rosemary Barkett. Democrats as the gold standard in Certainly, these nominees, while they terms of evaluating a nominee’s quali- LEGISLATIVE SESSION were qualified, were in my opinion not fications to serve in the Federal judici- The PRESIDING OFFICER. Under near as qualified in the legal profession ary. Senator LEAHY and senator SCHU- the previous order, the Senate will now as Priscilla Owen. MER described it that way in a March return to legislative session. Berzon had had no judicial experience 16, 2001 letter to the President insisting f whatsoever. And a minority of the ABA that the ABA’s role in the judicial con- evaluation committee gave Berzon and firmation process had to be main- HOMELAND SECURITY ACT OF 2002 Paez only a ‘‘qualified’’ rating whereas tained. The PRESIDING OFFICER. Under the ABA committee unanimously— However, that did not prevent them the previous order, the Senate will re- unanimously—gave Priscilla Owen its from voting against Priscilla Owen sume consideration of H.R. 5005, which highest rating of ‘‘well qualified.’’ after she received a ‘‘well qualified’’ the clerk will report. Beyond professional qualifications, rating from the American Bar Associa- The legislative clerk read as follows: numerous Senators on this side of the tion—the highest possible rating they A bill (H.R. 5005) to establish the Depart- aisle also had severe concerns that could give and they gave it to her ment of Homeland Security, and for other Berzon, Paez, and Barkett were very unanimously. This is also the first in- purposes. far out of the mainstream in light of stance, I believe, that we have had of a Pending: their records which raised questions for nominee rated ‘‘well qualified’’ by the Lieberman amendment No. 4471, in the na- many Senators as to whether they American Bar Association being de- ture of a substitute. should be confirmed. feated in the Judiciary Committee and

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