Executive Session

EXECUTIVE SESSION

Mr. DURBIN. Mr. President, I thank the Senator from Washington who has been on the floor today addressing some of the major issues we are considering. This is an historic debate. Although there are few people gathered on the Senate floor, many people across Capitol Hill and across the Nation are following this debate. This is the first time in the history of the Senate where there is an attempt being made to change one of the most fundamental rules and one of the most fundamental values of this institution. To think how many Senators have come and gone in the history of this body--the number is fewer than 1,900 in total--In all of that time, no Senator has been so bold as to stand up and do what we understand the majority leader is likely to do very soon, the so-called nuclear option.

Why in the history of this Chamber has no Senator ever done this? Because, frankly, it strikes at the heart of this institution. It goes to the value of the Senate in our Constitution. When the Constitution was written, the Senate was created as a different place. I served in the House of Representatives for 14 years. I was proud of that service, enjoyed it, and value the House of Representatives and its role. But it is a different chamber.

The Senate was created so the minority would always have a voice. Think about it. There are two Senators from every State, large or small. Think of the rules of the Senate from the beginning which said: No matter who you are, what Senator you may be, you can take to this floor and do as I am doing at this moment, begin a debate which cannot be closed down unless an extraordinary majority of the Senate makes that decision.

Senator Frist, now the Republican majority leader, has decided it is time to change that 200-year tradition, to change the rules of the Senate in the middle of the game. By this change, he will change a relationship between the Senate and the President. That is a bold move. It is a move we should think about very seriously. He will have Vice President Cheney in the chair, but that is no surprise. Every President and every Vice President wants more power. That is the nature of our Government. But the Founding Fathers understood that, not just as a human impulse but a political impulse. They said: The way we will restrain too much power in the Presidency is to have checks and balances, to give to other branches of Government--the judiciary and the legislative branch--an opportunity to check the power of the President. We think about that today, and the rules of the Senate were part of those checks and balances.

A President can't appoint a judge to a lifetime appointment without the advice and consent of the Senate. In other words, the President's power is limited by the power of the Senate to advise and consent. The words were carefully chosen. The Senate wasn't directed to always approve the President's nominees. The President submits the nominees and the Senate, as a separate institution of Government, makes the decision as to whether those nominees will go forward. That is a limitation on the President's power.

This President, when we take a look at the record of how many judges he has submitted and how many have been approved, has done quite well for himself. This is the score for President Bush since he has been elected President: 208 of his judicial nominees have been approved, and only 10 have not. More than 95 percent of this President's nominees have been approved by the Senate.

How far back do you have to go to find another President with a batting record this good? Twenty-five years. This President has done better than any President in the last 25 years in having his judicial nominees approved. But from President Bush's point of view, from Vice President Cheney's point of view, it is not good enough. He wants them all. He wants every single one of them, without dissent, without disagreement, without debate in the Senate. He wants them all.

Should every President have that power? I don't think so. Republican or Democrat, Presidents have to know they can go too far. They can make bad decisions, decisions which take America down a path that is not right. And they should know they will be held accountable for making those decisions. They should know they can come up with the names of nominees who are not good people for lifetime appointments and that when they come to the Senate, the Senate will review them and may say no. It is that check and balance which makes the difference.

One of the central arguments that has been made over and over again about triggering the nuclear option, which Senator Frist is preparing to do, is the assertion that the Senate has never denied a judicial nominee with majority support an up-or-down vote. That argument is plain wrong and it is misleading. President Clinton had 61 judicial nominees who never received an up-or-down vote. I know. I was here. I watched it. I watched it as Senator ORRIN HATCH and the Judiciary Committee buried these nominees, refused to even give them a hearing. An up-or-down vote?

They didn't get close to even an invitation to Washington. Nominated by the President, they were ignored and rejected by the Senate Judiciary Committee. Now we have these pious pronouncements that every judicial nominee deserves an up-or-down vote. I don't know if it is the water in Washington, water out of the Potomac River. It seems to create political amnesia among those who serve in the Senate. Some of the same Senators on the Republican side who have come to the floor and said every nominee deserves an up-or-down vote were the Senators who were stopping the nominees of President Clinton without so much as a hearing.

``We want fairness.'' They sure didn't want fairness when it came to that President and his nominees.

I am sure the vast majority of them, probably all of them, would have had majority support, had they received an up-or-down vote. But they were stopped in committee. I know it. I used to go and plead for judges from Illinois nominated by President Clinton. I can recall Senators--and I won't name names; I could--who just told me no. We are not going to let President Clinton fill these courts. We are hoping he will be gone soon, and we will put a Republican President in. We will take care of those vacancies. We have some people we want to put on those spots. The fairness of an up-or-down vote wasn't the case around here at all. It was fundamentally unfair.

The Republicans exercised their filibusters, these pocket filibusters, against 61 nominees from President Clinton's White House who never received a vote in the Judiciary Committee. And the myth of the up-or-down vote is also demonstrated by looking at the history of Supreme Court nominations.

Norman Ornstein is well recognized on Capitol Hill, a thoughtful man. He pointed out today in an article in a newspaper known as Roll Call that there have been 154 nominations in our Nation's history to the Supreme Court. Of that 154, 23 never received an up-or-down vote; 1 out of 7 of the Supreme Court nominees never received an up-or-down vote. What a weak argument from the other side.

Not only does history argue they are wrong, their memories should argue they are wrong. They didn't offer an up-or-down vote to those nominees from President Clinton.

Let's talk about this particular circuit. Let's talk about what happened here in the context of the Priscilla Owen nomination for the Fifth Circuit. Justice Owen is the only judicial nominee ever nominated by the President on two occasions after being rejected by the Senate Judiciary Committee. Never before has a judicial nominee received a negative vote in committee and been confirmed by the Senate. The Republican leadership speaks at great length about the unprecedented maneuvers of Democrats, but their strategy on this nominee is a first. Surely Justice Owen and Charles Pickering, the former embattled nominee to the Fifth Circuit, are not the only people qualified to serve on that circuit. It is a circuit that covers the States of Texas, Louisiana, and Mississippi. This is an area of roughly 30 million people. It is amazing to me that President Bush and his fine people in the White House couldn't find another name to bring to us for that important court.

Justice Owen has been given two confirmation hearings, something which 61 Clinton nominees never had a chance to receive. Three of President Clinton's nominees for the very same circuit were denied even a single hearing. Let's take a look at these nominees.

Enrique Moreno, an accomplished trial attorney, nominated on September 16, 1999, by President Clinton to fill a vacancy in the Fifth Circuit.

No hearing. No committee vote. No floor vote. Certainly, no up-or-down vote. I would hope that my friends on the Republican side would scratch their heads and search their memories and remember Enrique Moreno when they say every nominee is entitled to an up-or-down vote. He was found qualified. He was turned down to keep the vacancy, in the hopes of the Senate Republicans, that a Republican President would come along to fill it.

Let's look at another nominee in the same circuit. Jorge Rangel, a law firm partner, a former Texas district court judge, was nominated July 24, 1997. No hearing. No committee vote. No floor vote. This qualified man languished for months, waiting for his chance for even a hearing before the Judiciary Committee. But the Senate Republicans said, no; this wasn't about filling a vacancy. It was about keeping a vacancy so they, in the hopes of the next election, could fill it.

Finally, look at Alston Johnson. He was in a major law firm, nominated April 22, 1999, by President Clinton. He was renominated in 2001. He never received a hearing when Senator Hatch was chairman of the Judiciary Committee. He never received a committee vote. Certainly, he had no up-or-down floor vote. Why? To keep the vacancy alive for Priscilla Owen, in the hopes that someday there would be a Republican President who could fill it.

The Judiciary Committee chairman, Orrin Hatch, denied each of these nominees a vote and a hearing. Now the Republicans want to reap the benefits of their delay tactics. But they don't come to this with clean hands. This vacancy exists today because three people were treated very poorly. They never received the benefit of the hearing that Priscilla had. They never had the committee vote that Priscilla Owen had. They were not debated on the floor. They say she should be confirmed because she has a ``well-qualified'' rating by the American Bar Association. Let me tell you, it is an argument of convenience. The nominees I just mentioned--Jorge Rangel, Enrique Moreno, and Alston Johnson--all had ratings of ``well-qualified''. But their nominations were buried by Senator Hatch. So this ``good housekeeping seal of approval,'' the ABA rating, meant nothing to the Senate Republicans when it came to the Clinton nominees.

Much has been said today on the floor about Justice Owen's record in preventing pregnant minors in Texas from receiving abortions through a process known as a ``judicial bypass.'' What is that all about? Most States, in writing laws, say when it comes to a minor seeking an abortion, there can be extraordinary circumstances when parental consent is not appropriate. We can think about those. There are victims of incest. You would not expect the victim to go to the family member who perpetrated that crime for permission for an abortion. So they create a process where those victims, with the help of an advocate, can go to court and say to the court: My circumstances are unusual. I should be treated differently and given a different opportunity.

We have heard the comment made by then-Texas Supreme Court justice, and now our Attorney General, Alberto Gonzales. When Priscilla Owen issued an opinion in the case involving judicial bypass, he said--Attorney General Gonzales--that her dissenting position in this case:

It would be an unconscionable act of judicial activism.

That is the Attorney General of the United States commenting on the record of Priscilla Owen, who the administration is now propounding to fill this vacancy.

Make no mistake, the vote on this nominee, Priscilla Owen, is not a referendum on the contentious issue of abortion. I don't oppose her because we differ on abortion rights. In fact, we have confirmed 208 of President Bush's judicial nominees, over 95 percent. Trust me, the vast majority of them do not share my view on the issue of abortion. But that is not the test, nor should it be. We expect President Bush to nominate people who have a position on abortion that may differ from mine. That doesn't disqualify anybody. That is why 95 percent of his nominees have been approved, despite those differences.

In my view, the Owen nomination is not just about abortion. I oppose her because I don't believe she has taken an evenhanded or moderate approach to applying the law. What distinguishes this nominee, Priscilla Owen, from other judges being confirmed is that she has repeatedly demonstrated her unwillingness to apply statutes and court decisions faithfully--on the issue of abortion and many other issues.

There is no dispute that Justice Owen is a woman of intellectual capacity and academic accomplishment. The question before the Senate, however, is whether she exhibits the balance and freedom from rigid ideology that must be the bedrock of a strong Federal judiciary. The answer, regrettably, is no.

Although the Senate is once again a house divided, concerns about Justice Owen cross party lines. Those who

know her the best, including colleagues on the Republican-dominated Texas Supreme Court, have repeatedly questioned the soundness of her logic, her judgment, and her legal reasoning during her 10 years on that court.

Consider some of the published comments of her colleagues on the Texas Supreme Court.

In the case of FM Properties v. City of Austin, Justice Owen dissented in favor of a large landowner which sought to write its own water quality regulations. The court majority wrote:

Most of Justice Owen's dissent is nothing more than inflammatory rhetoric and thus merits no response.

That was the majority of the Texas Supreme Court. Think about it. Attorney General Gonzales says she has taken part in unconscionable acts of judicial activism. The majority of her Texas Supreme Court says her dissent is nothing more than inflammatory rhetoric in this case.

Then look at her dissenting opinion in the case of Fitzgerald v. Advanced Spine Fixation Systems, in favor of limiting liability for manufacturers who made harmful products that injured innocent people. What they said was that her dissent would in essence ``judicially amend the statute to add an exception not implicitly contained in the language of the statute.'' To put it in layman's terms, she is not being a judge, she is being a legislator and is writing law.

According to the majority, her dissent in a case involving the Texas open records law, City of Garland v. Dallas Morning News here is what the majority of the court said about this nominee, Priscilla Owen:

Effectively writes out the ..... Act's provisions and ignores its purpose to provide the public ``at all times to complete information about the affairs of government and the official acts of public officials and employees.''

According to six justices, including three appointed by George W. Bush when he was Governor of the State, Justice Owen's dissenting opinion in Montgomery Independent School District v. Davis is guilty of ``ignoring credibility issues and essentially stepping into the shoes of the fact-finder to reach a specific result.''

In other words, she is picking and choosing the evidence without treating it fairly. Who said that? Six justices on her own Texas Supreme Court. Three of them were appointed by George W. Bush. Her colleagues said that Owen's dissent, in this case against a teacher who was unfairly fired ``not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the [school] board.''

Judges can and should have lively debate over how to interpret the law. Senator Cornyn, our colleague from Texas, tried to assure us that judges in Texas always talk this way. But Justice Owen's tenure on the Texas Supreme Court is remarkable for both the frequency and intensity with which her fellow Republicans on the court have criticized her for exceeding the bounds of honest disagreement. These are Republican fellow justices carping, not Democrats. They are fellow justices, appointed by Governor George W. Bush and others.

According to those who served with her and know her best, she has often been guilty of ignoring plain law, distorting legislative history, and engaging in extreme judicial activism.

All too often during her judicial career, Justice Owen has favored manufacturers over consumers, large corporations over individual employees, insurance companies over claimants, and judge-made law over jury verdicts. This pattern is consistent with her State court campaign promises. But it ill suits a person seeking a lifetime appointment to the Federal bench who promises to be fair and balanced.

Let me mention one example, a case I asked Justice Owen about at her hearing in 2002, Provident American Insurance Company v. Castaneda. Justice Owen, writing for a divided court, ruled in favor of an insurance company that tried to find anything in its policy to avoid paying for critical surgery for a young woman named Denise Castaneda.

Denise suffered from hemolytic spherocytosis, a genetic condition causing misshapen blood cells, and she needed to have her spleen and gallbladder removed. Denise's parents obtained preapproval for the surgery, yet Justice Owen allowed the insurance company to deny coverage, in clear bad faith of their contractual obligation.

One of her colleagues on the court who disagreed with her in this case, Justice Raul Gonzalez, said Justice Owen's opinion ``ignores important evidence that supports the judgment ..... and resolves all conflicts in the evidence against the verdict [for the family that was denied coverage].''

Justice Raul Gonzalez concluded:

If the evidence of this case is not good enough to affirm judgment, I do not know what character or quantity of evidence would ever satisfy the Court in this kind of case.

Nor is it easy to satisfy Justice Owen in the judicial bypass cases. Her tortured reasoning in cases involving the Texas parental notification law exhibits the same inclination by Justice Owen for judicial activism I discussed earlier.

I am alarmed by her attempt to force young women seeking a legal judicial bypass under Texas law to demonstrate that they considered religious issues in their decision whether they were to have an abortion. This religious awareness test has no support in Supreme Court case law. She may view it as something to be added to the law. It is not the law. And when judges go beyond the clear limits of the law, they are writing the law, and that is not their responsibility.

Justice Owen told the Judiciary Committee she would not be an activist, that she would merely follow the law. That is a safe answer. We hear it from every nominee. But when it comes to the issue of abortion, the law is not well settled. One study shows that of 32 circuit court cases applying the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, only 15 of those cases were decided by unanimous panels. So in a majority of the cases, judges viewing identical facts and laws reached different conclusions.

Priscilla Owen is a member and officer of the Federalist Society. If you have never heard of it, this is the secret handshake at the White House. If you are a member of the Federalist Society, you are much more likely to progress, to have a chance to serve for a lifetime on the bench. I have tried, as nominees would come before the Judiciary Committee, to ask them: What is the Federalist Society? Why is it so important that résumés for would-be judges be checked by the Federalist Society for the Bush White House to consider you?

I asked Priscilla Owen if she agreed with the Federalist Society's published mission statement which says:

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.

Here is her response:

I am unfamiliar with this mission statement ..... I have no knowledge of its origin or its context.

She ducked the question. I can only conclude that she does not find that mission statement repugnant. She joined the Federalist Society, and that is the viewpoint.

It is a small organization. Fewer than 1 percent of lawyers across America are members of this Federalist Society. Yet over one-third of President Bush's circuit court nominees are members of the Federalist Society. If you do not have a Federalist Society secret handshake, then, frankly, you may not even have a chance to be considered seriously by the Bush White House.

When it comes to nominees to the appellate court, the White House has made political ideology a core consideration. President Bush did not take office with a mandate to appoint these kinds of judges. He lost the popular vote in his first election, won the electoral vote by a decision of the Supreme Court, and came back in this last election and won by virtue of one State. Had Ohio gone the other way, he would not be President today. What kind

of mandate is that for rewriting the courts and the laws that they consider?

The Nation needs more judicial nominees who reflect the moderate views of the majority of Americans and who have widespread bipartisan support. Priscilla Owen is not one of them. I do not believe this nominee should receive a lifetime appointment, and I do not believe she is worth a constitutional confrontation.

Today we had a gathering on the steps of the Senate of Democrats serving in the House and the Senate. We were glad that our colleagues from the House came over to support us in this debate on the nuclear option. They do not have the constitutional responsibility of confirming nominees to the court, but they understand a little bit about debate.

Sadly, in the House of Representatives since I left, debate has virtually come to a standstill. Efforts are being made to close down debate, close down amendments. The House meets 2 or 3 days a week, if they are lucky, and goes home accomplishing very little except the most basic political agenda. What a far cry from the House of Representatives in which I served. We used to go on days, sometimes weeks, on critically important issues such as the spread of nuclear weapons around the world. They were hotly contested debates. There were amendments that passed by a vote or two where we never knew the outcome when we cast our vote. It does not happen anymore. The House of Representatives has shut down debate, by and large, and when they get to a rollcall vote that is very close, they will keep the rollcall vote open for hours, twisting the arms of Congressmen to vote the way the leadership wants them to.

That is what is happening in the House. Sadly, that is what happens when a group is in power for too long. They forget the heritage of the institution they are serving. All that counts is winning, and they will win at any cost.

That is what is happening in this debate. There are forces in the Senate that want to win at any cost, but the cost of the nuclear option is too high. The cost of the nuclear option means we will turn our back on a 200-year-plus tradition. We will turn our back on extended debate and filibuster so this President can have more power.

You wonder if 6 Republicans out of 55 are troubled by this. That is what it comes down to. If 6 Republicans believe this President has gone too far, that is the end of the debate on the nuclear option--6 out of 55. It is possible it could reach that point where six come forward. I certainly hope they do. They will be remembered. Those six Republicans who step forward and basically say the President is asking for too much power, those six Republicans who say the special interest groups that are pushing this agenda so the President will have every single judicial nominee, those six Republicans will be remembered. They will have stood up for the institution.

It will not be popular. In some places I am sure they are going to be roundly criticized, and they may pay a political price. But we would like to think--most of us do--that at that moment in time when we are tested to do the right thing, even if it is not popular, we will do it. I certainly hold myself to that standard. Sometimes I meet it, sometimes I fail.

For those who are considering that today, I say to them there has never been a more important constitutional debate in the Senate in modern memory. ROBERT C. BYRD, the Senator from West Virginia, comes to the floor every day and carries our Constitution with him in his pocket. He has written a two- or three-volume history of the Senate. He knows this institution better than anybody.

I have listened to Senator Byrd, and I have measured the intensity of his feeling about this debate. It is hard for anyone to describe what this means to Senator Byrd. He believes what is at stake here is not just a vote on a judge. What is at stake here is the future of the Senate, the role of the issues, such as checks and balances, and I agree with him.

My colleagues made an argument that we have to go through these judicial nominees and approve them because we face judicial emergencies. Let me read what Senator Frist, the Republican majority leader, said on May 9:

Now, 12 of the 16 court of appeals vacancies have been officially declared judicial emergencies. The Department of Justice tells us the delay caused by these vacancies is complicating their ability to prosecute criminals. The Department also reports--

According to Senator Frist--

that due to the delay in deciding immigration appeals, it cannot quickly deport illegal aliens who are convicted murderers, rapists, and child molesters.

That was Senator Frist's quote on May 9, waving the bloody shirt that if we do not move quickly on judicial nominees, it will leave vacancies that allow these criminals on the street.

Facts do not support what Senator Frist said. In fact, you have to go back to 1996 to find a lower number of judicial emergencies. Think about this. In 1994, there were 67 judicial emergencies, meaning vacancies that badly needed to be filled. That, of course, was during the Clinton years, when many of the Republicans were not holding hearings and insisting we didn't need to fill vacancies. Today the number of judicial emergencies is 18. What a dramatic difference.

I think it is clear. There are fewer judicial emergencies now than there have been in the last 9 or 10 years. For any Senator to come to the floor and argue that we are creating a situation where criminals are roaming all over the streets--where were these same critics during the Clinton years when there were many more judicial emergencies and they were turning down the Clinton nominees, denying them even an opportunity for a hearing?

I think this debate is going to test us--in terms of the future of the Senate, in terms of our adherence to our oaths to protect and defend the Constitution of the United States.

Janice Rogers Brown is also a nominee who will likely follow Priscilla Owen to the floor. She, too, has been considered not only in committee but also on the floor, and she will have her nomination submitted for us to consider again.

She, of course, is looking for appointment to the second highest court in the land, the DC Circuit Court of Appeals. I have heard my colleagues, Senator Boxer and Senator Feinstein, from Judge Janice Rogers Brown's home State of California, describe some of the things she has said during the course of serving as a judge. To say she is out of the mainstream is an understatement. She is so far out of the mainstream on her positions that you find it interesting that, of all of the conservative Republican attorneys and judges in America, this is the best the White House can do, to send us someone who has such a radical agenda that she now wants to bring to the second highest court in the land. And that is what we are up against.

There are some who argue, Why don't you just step aside? Let these judges come through. I hope it doesn't come to that. But I hope it does come to a point that we make it clear the nuclear option is over. I believe Senator HARRY REID, the Democratic leader, has said and I believe that we will conscientiously review every single nominee. The President can expect to continue to receive 95-percent approval, unless he changes the way he nominates judges--maybe even better in the future. But for us to change the rules of the Senate may give this President a temporary victory. It may have some special interest groups calling Senator Frist, the Republican majority leader, congratulating him. But, frankly, it will not be a day of celebration for those who value the Constitution and the traditions of the Senate.

At this point I yield the floor.

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