Senate Coverage -- (May '05)

LIVE THREAD Presser with Sen John Cornyn 11AM est..C-span 1 on judicial nominations..

LIVE ON C-SPAN-2 ******* UC Agreement by Sen REID !!

Spring has FINALLY arrived.

(I think)

So i am thinking of dussting off the grill later this week.

You?

It's vile smut of a kind I have never seen before and threatening to some folks here..

I am wondering if anyone has talked to the FBI about it.

What has been haappening has GOT to count as a Hate Crime.

(and yes,, be glad you missed it)

You've got mail.

Spring is here as well. (Korea)
I am back and ready to head back to work.

I may do some grilling this weekend. Thanks for the idea!

Have a good day!

(And share recipes if you think of it!)

Tiamat

Specter up talking about the judges now

On C-span right now is a replayed press conference with the State Dept---they are saying why they won't release any more documents to Biden and Dodds in order to kill Bolton's nomination!!!!

Boy, the press is just MAD that they are taking in the REPS side in the argument!!!! Funny...

09:30 AM (est)C-span2 Congressional News Conference Judicial Nominations U.S. Capitol John Cornyn , R, Texas

I think this is from yesterday...

Monday, May 9, 2005

The Senate convened at 2:00 p.m. and adjourned at 7:09 p.m. One record vote was taken.

Next Senate meeting: Tuesday, May 10, 2005

9:45 a.m.: Convene and begin a period of morning business. Thereafter begin consideration of the Conference Report to accompany H.R.1268, the Iraq/Afghanistan Supplemental Appropriations bill.

I'll be posting Specter's comments shortly......

Mr. SPECTER. Mr. President, I thank the Chair for the recognition, but 15 minutes--if I could have the attention of the chairman of the committee, my colleague, Senator Inhofe? Fifteen minutes is insufficient. I had been seeking time since last week and had been assured by the floor staff that I could have 45 minutes starting at 3:10.

I understand the importance of the highway bill. I am here to talk about the constitutional or nuclear option in my capacity as chairman of the Judiciary Committee. I know the highway bill is important, and I have been pressing to bring it up, but the matter I wanted to speak on is perhaps of greater importance.

I had asked for 45 minutes and thought I might do it in 25, but it was reduced in a negotiating session with Senator Inhofe to 15, and I cannot do it in 15. So I will be back another time.

I yield the floor.

JUDICIAL NOMINATIONS

Mr. SPECTER. Mr. President, I have sought recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear, or constitutional, option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of

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votes to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution.

The fact is that all or almost all Senators want to avoid the crisis. I have repeatedly heard colleagues on both sides of the aisle say it is a matter of saving face. But as yet we have not found the formula to do so.

I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees, one by one, for up-or-down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed or at least voted up or down. If the straitjacket of party loyalty were removed by the Democrats, even more might be confirmed.

As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim they are victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun in so many different ways that even my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving the numbers in this debate.

The history of Senate practices has demonstrated that in the last 2 years of President Reagan's administration and through 4 years of the administration of President George Herbert Walker Bush, the Democrats slowed down the nomination process. When we Republicans won the 1994 elections and gained the Senate majority, we exacerbated the pattern of delay and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased for district nominees as well as for circuit nominees. That was followed by the filibuster of many qualified judicial nominees by the Democrats following the 2002 elections. In an unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was then broken when President Bush agreed to refrain from further recess appointments.

Against this background of bitter and angry recriminations, with each party serially trumping the other to get even, or to dominate, the Senate now faces dual threats--one called the filibuster and the other the constitutional or nuclear option, which rivals the United States-Union of Soviet Socialist Republic confrontation of mutually assured destruction. Both situations are accurately described by the acronym MAD.

We Republicans are threatening to employ the option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for blowing the place up. This gridlock occurs at a time when we expect a U.S. Supreme Court vacancy within the next few months. If the filibuster would leave an eight-person Court, we could expect many 4-to-4 votes, since the Court now often decides cases with a 5-to-4 vote. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect circuit court decisions with many splits among the circuits. So the rule of law would be suspended on many major issues.

In moving in the Judiciary Committee to select nominees for floor action, in my capacity as Chairman I have first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more.

I carefully examined Myers' record. Noting that he had opposition from some groups such as the Friends of the Earth and the Sierra Club, it was nonetheless my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee executive session on March 17 of this year. To be sure, critics could pick at the Myers record as they could at any Senator's record, but overall Myers was, in my opinion, worthy of confirmation.

I then set out to solicit others' views on Myers, including ranchers, loggers, miners, and farmers. In those quarters I found a significant enthusiasm for Myers' confirmation, so I urged those groups to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened and the prospects for obtaining the additional few votes to secure cloture vanished.

I am confident if the party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed.

That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination.

Informally, but authoritatively, I have been told the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the calendar now awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by the end of this month.

There are no objections to three nominees from the State of Michigan for the Sixth Circuit--Richard Griffin, David McKeague, and Susan Bakke Neilson--but their confirmations are being held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the remaining fourth vacancy and Michigan District Court vacancies on another day. The Michigan Senators do make a valid point on the need for consultation on the other Michigan vacancies, and that can be accommodated.

In the exchange of offers and counteroffers between Senator Frist, the majority leader, and Senator HARRY REID, the Democratic leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges--Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers--with a choice to be selected by Republicans. An offer to confirm any one of those four nominees is in reality an explicit concession that each is qualified for the court, and they are being held hostage as pawns in a convoluted chess game which has spiraled out of control.

If the Democrats believe each is qualified, a deal for confirmation for any one of them is repugnant to the basic democratic principle of individual fair and equitable treatment and further violates Senators' oath on the constitutional confirmation process. Such dealmaking would further confirm public cynicism about what goes on in Washington behind closed doors.

Instead, let the Senators consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually.

By memorandum dated April 7, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's records demonstrating she was not hostile to Roe v. Wade and that her decisions were based on solid judicial precedence. No one has challenged that legal analysis.

Similarly, I distributed a memorandum containing an analysis of Judge William Pryor's record since he has been sitting on the Eleventh Circuit. It shows a pattern by Judge Pryor of concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis.

California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected for provocative or extreme ideas and speeches, none of us would hold public office. The fact is, the harm to the Republic, at worst, by confirmation of all pending circuit court nominees, is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option.

None of these circuit judges could make new law because all are bound and each one has agreed on the record to follow U.S. Supreme Court decisions. While it is frequently argued

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that Supreme Court decisions are in many cases final because the Supreme Court grants certiorari in so few cases, the circuit courts sit in panels of three so that no one of these nominees could unilaterally render an unjust decision since at least one other circuit judge on the panel must concur.

While it would be naive to deny that ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue. It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party-line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations.

The Senate has arrived at this confrontation by exacerbation as each side has ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of consultation/conciliation could diffuse the situation.

This has already been offered by the Democrats informally, signaling their intentions not to filibuster Griffith or Boyle, and by offering no objections to the three Michigan nominees. Likewise, it has been reported that Senator Reid has privately told Republicans he does not intend to block votes on any Supreme Court nominee except in extreme cases. A public statement of confirmation with an amplification on what constitutes ``extreme case'' could go a long way to diffusing the situation.

Senator Schumer praised White House Counsel Gonzales during his confirmation hearings for times in which now-Attorney General Gonzales consulted with Senator Schumer on President Bush's judicial nominees affecting the State of New York. On April 11 of this year, a nominee pushed by Senator Schumer, Paul Crotty, was confirmed for the federal court in New York. Both New Jersey Senators, Senators TORRICELLI and CORZINE, approved all five district court nominations for their State in the 107th Congress. And in that Congress, Florida's Democratic Senators, BOB GRAHAM and BILL NELSON, appointed representatives to a commission which recommended federal judges to President Bush. President Bush recently nominated Minority Leader HARRY REID's pick for the District Court for the District of Nevada.

So there have been some significant signs of

consultation and conciliation by the Republicans on choices by Democratic Senators.

I have reason to believe the President is considering consultation with the Michigan Senators on some federal judicial vacancies in their state and perhaps beyond.

One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere. Meanwhile, the far left and far right are urging each side to shun compromise. ``Pull the trigger,'' one side says. ``Filibuster forever,'' the other side retorts. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to another.

The Senate today stands on the edge of an abyss. Institutions such as our Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark protracted era of divided partisanship. But if we cease this aimless and endless game of political chicken, we could restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage, courage from each Senator, courage to think and act with independence.

Our immortal Senate is depending on that courage. Now the question remains as to whether we have it.

Since the United States and the Union of Soviet Socialist Republics avoided the nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise?

As a result of the time constraints, I have abbreviated the oral presentation of this statement. I ask unanimous consent the full text be printed at the conclusion of this statement, including my statement which I now make that the text is necessarily repeated to a substantial extent of what I have delivered orally, but it is included so that a full text may be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Mr. SPECTER. Mr. President, I seek recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear or constitutional option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of votes required to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution.

The fact is that all, or almost all, Senators want to avoid the crisis. I have had many conversations with my Democratic colleagues about the filibuster of judicial nominees. Many of them have told me that they do not personally believe it is a good idea to filibuster President Bush's judicial nominees. They believe that this unprecedented use of the filibuster does damage to this institution and to the prerogatives of the President. Yet despite their concerns, they gave in to party loyalty and voted repeatedly to filibuster Federal judges in the last Congress.

Likewise, there are many Republicans in this body who question the wisdom of the constitutional or nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives. Knowing that the Senate is a body that depends upon collegiality and compromise to pass even the smallest resolution, they worry that the rule change will impair the ability of the institution to function.

I have repeatedly heard colleagues on both sides of the aisle say it is really a matter of saving ``face''; but, as yet, we have not found the formula to do so. I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees one by one for up or down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed; or, at least voted up or down. If the straightjacket of party loyalty were removed, even more might be confirmed.

For the past 4 months since becoming Chairman of the Judiciary Committee, my first priority has been to process the nominees through committee to bring them to the floor. As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim that they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate.

In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes to two additional circuit court nominees. As a result, the confirmation rate for Reagan's circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. While the confirmation rate decreased, the length of time it took to confirm judges increased. From the Carter administration through the first 6 years of the Reagan administration, the length of the confirmation process for both district and circuit court seats consistently hovered at approximately 50 days. For Reagan's final Congress, however, the number doubled to an average of 120 days for these nominees to be confirmed.

The pattern of delay and denial continued through 4 years of President George H.W. Bush's administration. President Bush's lower court nominees waited, on average, 100 days to be confirmed, which was about twice as long as had historically been the case. The Democrats also denied committee hearings for more nominees. President Carter had 10 nominees who did not receive hearings. For President Reagan, the number was 30. In the Bush Sr. administration the number jumped to 58.

When we Republicans won the 1994 election and gained the Senate majority, we exacerbated the pattern of delaying and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased even further to 192 days for district court nominees and 262 days for circuit court nominees. Through blue slips and holds, 60 of President Clinton's nominees were blocked. When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton

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withdrew 12 of those nominations and chose not to re-nominate 16.

After the 2002 elections, with control of the Senate returning to Republicans, the Democrats resorted to the filibuster on ten circuit court nominations, which was the most extensive use of the tactic in the Nation's history. The filibuster started with Miguel Estrada, one of the most talented and competent appellate lawyers in the country. The Democrats followed with filibusters against nine other circuit court nominees. During the 108th Congress, there were 20 cloture motions on 10 nominations. All 20 failed.

To this unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was broken when President Bush agreed to refrain from further recess appointments.

Against this background of bitter and angry recriminations, with each party serially trumping the other party to ``get even'' or, really, to dominate, the Senate now faces dual threats, one called the filibuster and the other the constitutional or nuclear option, which rival the US/USSR confrontation of mutually assured destruction. Both situations are accurately described by the acronym ``MAD.''

We Republicans are threatening to employ the constitutional or nuclear option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by obstructing the Senate on a host of matters. Each ascribes to the other the responsibility for ``blowing the place up.''

The gridlock occurs at a time when we expect a United States Supreme Court vacancy within the next few months. If a filibuster would leave an 8 person court, we could expect many 4 to 4 votes since the Court now often decides cases with 5 to 4 votes. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect the circuit court decision with many splits among the circuits, so the rule of law would be suspended on many major issues.

In moving in the Judiciary Committee to select nominees for floor action, I first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more. I carefully examined Myers' record. Noting that he had opposition from some groups such as Friends of the Earth and the Sierra Club, it was my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee Executive Session on March 17, 2005. To be sure, critics could pick at his record as they could at any Senator's record; but overall Mr. Myers was worthy of confirmation.

I then set out to solicit others' views on Myers, including the ranchers, loggers, miners, and farmers. In those quarters, where I found significant enthusiasm for the Myers confirmation, I urged them to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened, and the prospects for obtaining the additional few votes to secure cloture vanished. I am confident that if party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed. That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination.

Informally, but authoritatively, I have been told that the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the Senate calendar awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by mid-May.

There are no objections to three nominees from the State of Michigan for the Sixth Circuit: Richard Griffin, David McKeague and Susan Bakke Neilson; but their confirmations are held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the Fourth Circuit vacancy and Michigan district court vacancies on another day. The Michigan Senators make a valid point on the need for consultation on the other Michigan vacancies and that can be accommodated.

In the exchange of offers and counteroffers between Sen. FRIST, majority leader and Sen. HARRY REID, the Democrat leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges: Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers with the choice to be selected by Republicans.

An offer to confirm any one of the those four nominees is an explicit concession that each is qualified for the court and that they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats really believe each is unqualified, a ``deal'' for confirmation for anyone of them is repugnant to the basic democratic principle of individual, fair, and equitable treatment and violates Senators' oaths on the constitutional confirmation process. Such ``deal-making'' confirms public cynicism about what goes on behind Washington's closed doors.

Instead, let the Senate consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually. By memorandum dated April 7, 2005, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's record demonstrating she was not hostile to Roe vs. Wade and that her decisions were based on solid judicial precedent. No one has challenged that legal analysis.

By memorandum dated January 12, 2005, I distributed an analysis of decisions by Judge William Pryor that shows his concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis. California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected by provocative/extreme ideas in speeches, none of us would hold public office.

The fact is that the harm to the Republic, at worst, by the confirmation of all pending circuit court nominees is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option. None of these circuit judges could make new law because all are bound, and each one agreed on the record, to follow U.S. Supreme Court decisions. While it is frequently argued that circuit court opinions are in many cases final because the Supreme Court grants certiorari in so few cases, circuit courts sit in panels of three so that no one of these nominees can unilaterally render an unjust decision since at least one other circuit judge on the panel must concur.

While it would be nai 4ve to deny that the ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue.

It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations.

The Senate has arrived at this ``confrontation by exacerbation'' as each side ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of conciliation/consultation could diffuse the situation. This has already been offered by the Democrats, informally signaling their intentions not to filibuster Griffith or Boyle. Likewise, it has been reported that Senator REID has privately told Republicans that he doesn't intend to block votes on any Supreme Court nominees, except in extreme cases. A public statement with an amplification of what constitutes an ``extreme case'' could go a long way.

Sen. SCHUMER praised White House Counsel Gonzales's consultation with him on President Bush's judicial nominees. On April 11, 2005, the President's nominee for the U.S. District Court for the Southern District of New York, Paul Crotty, supported by Senator SCHUMER, was confirmed. Both New Jersey Senators, Bob Torricelli and Jon Corzine, approved all five district court nominations for their state in the 107th Congress. In the 107th Congress, Florida's Democratic Senators, BOB GRAHAM and BILL NELSON, appointed representatives to a commission which recommended Federal judges to President Bush.

President Bush recently nominated Minority Leader HARRY REID's pick for the U.S. District Court for the District of Nevada. I have reason to believe the President is considering consultation with the Michigan Senators on some Federal judicial vacancies in their State and perhaps beyond.

One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere.

Meanwhile, the far left and the far right are urging each side to shun compromise: pull the trigger; filibuster forever. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to the other.

The Senate today stands on the edge of the abyss. Institutions like the Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark, protracted era of divisive partisanship. But if we cease this aimless game of political chicken, we can restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage. Courage from each senator. Courage to think and act with independence. Our immortal Senate is depending on our courage. Do we have it?

Since the U.S. and USSR avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise.

Mr. SPECTER. I suggest the absence of a quorum.

One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere. Meanwhile, the far left and far right are urging each side to shun compromise. ``Pull the trigger,'' one side says. ``Filibuster forever,'' the other side retorts. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to another.

Specter does NOT understand the beast that is the democratic party...........

He really thinks the dems will follow us if we "take the high road"?

JUDICIAL NOMINATIONS -- (Senate - May 09, 2005)

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---

Mr. FRIST. Mr. President, 4 years ago today President Bush nominated Miguel Estrada to the District of Columbia Circuit Court of Appeals. His nomination should have gone smoothly. The American Bar Association pronounced him highly qualified, a rating my colleagues on the other side of the aisle once called the gold standard. He clerked for a Supreme Court Justice and worked in both the Bush and Clinton administrations.

The Honduran immigrant then won top honors at Columbia University and Harvard Law School. Miguel Estrada epitomized the American dream. But Miguel Estrada's nomination never received an up-or-down vote. A minority of Senators used the filibuster to stop the Senate from exercising its constitutional duty to advise and consent.

Senators supporting his nomination made seven attempts to bring his nomination to a vote. Each time the effort failed. Finally, after enduring 2 years of obstruction, Miguel Estrada withdrew his name from consideration.

Unfortunately, today marks the fourth anniversary of another candidate whose nomination is, likewise, being blocked. Priscilla Owen, who has served on the Texas Supreme Court for 10 years, has earned the praise of both Republicans and Democrats. Judge Owen won reelection to the Texas bench with 84 percent of the vote and the endorsement of every major newspaper in the State.

Former justice Raul Gonzalez, a Democrat, says:

I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity. I recommend her for confirmation without reservation.

Still, a minority of Senators is using the filibuster to stop this Senate from exercising its constitutional duty to advise and consent, to vote up or down, to vote yes or no, to vote, confirm or reject.

This campaign of obstruction is unprecedented. Before Miguel Estrada, the Senate had never denied a judicial nominee with majority support an up-or-down vote. In the last Congress, the President submitted 34 appeals court nominees to the Senate. Ten of those nominees continue to be blocked. Each has been rated ``qualified'' or ``well-qualified'' by the American Bar Association, each has the majority support of the Senate, and each would be confirmed if brought to the Senate floor to a vote.

Meanwhile, the other side threatens to shut down the Senate and obstruct government itself if it does not get its way. Instead of thoughtful deliberation and debate, a small minority is attempting to change 225 years of constitutional history. Former Senate majority leader Bob Dole is correct when he says:

By creating a new threshold for the confirmation of judicial nominees, the Democratic minority has abandoned the tradition of mutual self-restraint that has long allowed the Senate to function.

Precedent has been replaced with partisanship, and respect for the separation of powers tossed aside.

Now, 12 of the 16 court of appeals vacancies have been officially declared judicial emergencies. The Department of Justice tells us that the delay caused by these vacancies is complicating their ability to prosecute criminals. The Department also reports that due to the delay in deciding immigration appeals, it cannot quickly deport illegal aliens who are convicted murderers, rapists, and child molesters.

Additionally, there are notoriously long delays in deciding habeas petitions, meaning that both victims' families and prisoners often wait years before getting final resolution on murder convictions.

All of this obstruction must stop. It is hurting the nominees. It is hurting the Senate. It is hurting the American people.

For most of the 20th century the same party controlled the White House and the Senate. Yet until the last Congress, no minority ever denied a judicial nominee with majority support an up-or-down vote. They treated judicial nominees fairly. They respected the Senate's role in the appointments process designed by the Framers.

Before the recess, I came to the Senate to offer a compromise. That proposal was simple: Appeals court judicial nominees should get a fair, open, and exhaustive debate, and then they should get an up-or-down vote. Whether on the floor or in committee, it is time for judicial obstruction to end no matter which party controls the White House or the Senate.

Senate tradition is comprised of shared values based on civility and respect for the Constitution. I sincerely hope that Senate tradition can be restored. It is a matter of fairness. It is a matter of honor. It is our constitutional duty to give these nominees a vote.

I yield the floor.

Senate just got started........

bump

NOMINATION OF PRISCILLA OWEN

Mr. CORNYN. Mr. President, 4 years ago, the President nominated Texas Supreme Court Justice Priscilla Owen to serve on the United States Court of Appeals for the Fifth Circuit. Justice Owen is an exceptional jurist, a devoted public servant, and an extraordinary Texan. Yet after 4 years, she still awaits an up-or-down vote on the floor of the Senate. Four years today and we are still waiting for a vote.

Although a bipartisan majority of the Senate stands ready to confirm this outstanding nominee, a partisan minority obstructs the process and refuses to allow that vote on her nomination. What is more, the partisan minority now insists, for the first time in history, that she must be supported by a supermajority of 60 Senators rather than the constitutional standard and the Senate tradition of majority vote.

I know Justice Owen personally, having served with her on the Texas Supreme Court for 3 years. She is a distinguished jurist and public servant who has excelled at virtually everything she has set out to do. She was a top graduate of Baylor Law School at the remarkable age of 23 and scored the top score on the Texas bar exam. She entered the legal profession at a time when relatively few women did. After a distinguished record in private practice, she reached the pinnacle of the Texas bar, the Texas Supreme Court. In doing so, she was supported by a larger percentage of Texans than any of her colleagues during her last election, receiving around 84 percent of the vote, after enjoying the endorsement of virtually every newspaper in Texas. She has been honored as the Baylor Young Lawyer of the Year and the Baylor University Outstanding Alumna.

Priscilla Owen enjoys significant bipartisan support. Three Democratic judges on the Texas Supreme Court and a bipartisan group of 15 presidents of the State Bar of Texas support her nomination.

The Houston Chronicle, in September of 2000, called Owen ``[c]learly academically gifted,'' stating that she ``has the proper balance of judicial experience, solid legal scholarship and real-world know-how to continue to be an asset on the high court.''

The Dallas Morning News wrote in support of Owen on September 24, 2002:

She has the brainpower, the experience and temperament to serve ably on an appellate court.

The Washington Post wrote on July 24, 2002:

She should be confirmed. Justice Owen is indisputably well qualified.

Lori Ploeger, Justice Owen's former law clerk, wrote in a letter to Senator Leahy on June 27, 2002:

During my time with her, I developed a deep and abiding respect for her abilities, her work ethic, and, most importantly, her character. Justice Owen is a woman of integrity who has profound respect for the rule of law and our legal system. She takes her responsibilities seriously and carries them out diligently and earnestly.

Ms. Ploeger continued:

Justice Owen is a role model for me and for other women attorneys in Texas.

Mary O'Reilly, a lifetime member of the NAACP and a Democrat, in a letter to Senator DIANNE FEINSTEIN, dated August 14, 2002, wrote:

I met Justice Owen in January of 1995, while working with her on the Texas Supreme Court Gender Neutral Task Force ..... I worked with Justice Owen on Family Law 2000, an important state-wide effort initiated in part by Justice Owen ..... In the almost eight years I have known Justice Owen, she has always been refined, approachable, even-tempered and intellectually honest.

Priscilla Owen is not just intellectually capable and legally talented; she is also a fine human being with a big heart. The depth of her humanity and compassion is revealed through her significant free legal work and community activity.

Priscilla has spent much of her life devoting time and energy in service of her community. She has worked to ensure that all citizens are provided access to justice as the court's representative on the Texas Supreme Court Mediation Task Force and to statewide committees, as well as in her successful efforts to prompt the Texas legislature to provide millions of dollars per year in legal services for the poor. She was instrumental in organizing a group Ms. O'Reilly spoke of known as Family Law 2000 which seeks to find ways to educate parents about the effect divorce can have on children and seeks to lessen the negative impacts it has on them. She also teaches Sunday school at St. Barnabas Episcopal Mission in Austin, TX, where she is an active member.

It is plain from these and so many other examples that Justice Owen is a fine person and a distinguished leader in the legal community. One would think that after 4 long years, she would be afforded the simple justice of an up-or-down vote. I remain optimistic. While I know the Democratic leader has offered a UC to consider the nomination of one of the justices currently being filibustered, I don't see why that same principle would not apply to all of the justices, and we would just say that any nominee of any President, whether they be Republican or Democrat, where a bipartisan majority stands ready to confirm them, should receive that up-or-down vote on the Senate floor. I remain hopeful the current 4-year violation of long-term Senate tradition, the imposition of this new supermajority requirement, will be laid aside in the interest of proceeding with the people's business, a job my colleagues and I were elected to faithfully execute.

For more than 200 years, it was a job that we did indeed execute. Senators from both sides exercised mutual restraint and did not abuse the privilege of debate out of respect for two coequal branches of government--the executive that has the constitutional right to choose his or her nominees and an independent judiciary. Indeed, until 4 years ago, colleagues on both sides of the aisle have consistently opposed the use of the filibuster to prevent nominees from receiving an up-or-down vote where they clearly had bipartisan majority support.

Senator Kennedy, the distinguished senior Senator from Massachusetts, said in 1998:

Nominees deserve a vote. If our ..... colleagues don't like them, vote against them. But don't just sit on them--that is obstruction of justice.

And Senator Leahy, the distinguished ranking member of the Judiciary Committee, who was just on the floor, said in 1998:

I have stated over and over again on the floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should just do its duty.

I could not agree more with these comments made by Senator Leahy and Senator Kennedy. But today we are doing a disservice to this fine nominee in our failure to afford her that up-or-down vote that they advocated a few short years ago. The new requirement this partisan minority is now imposing, that nominees won't be confirmed without support of 60 Senators, is, by their own admission, wholly unprecedented in Senate history.

The reason for this is simple: The case for opposing this fine nominee is so weak that using a double standard and changing the rules is the only way they can defeat her nomination. What is more, they know it, too.

Before her nomination got caught up in this partisan fight, the ranking Democrat on the Judiciary Committee

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predicted that Justice Owen would be swiftly confirmed. On the day of the announcement of the first group of nominees, 4 years ago, including Owen, he said he was ``encouraged'' and that ``I know them well enough that I would assume they would all go right through.''

Notwithstanding the change of attitude by the partisan minority, this gridlock is not really about Priscilla Owen, certainly not about Priscilla Owen the person. Indeed, just a few weeks ago, the Democratic leader announced that Senate Democrats would give Justice Owen an up-or-down vote, albeit only if other nominees were defeated or withdrawn or simply thrown overboard.

Obviously, this debate is not about principle. It is all about politics. It is shameful. Any fair examination of Justice Owen's record demonstrates how unconvincing the critics' arguments are.

For example, Justice Owen is accused of ruling against injured workers, against those seeking relief from employment discrimination, and other sympathetic parties on some occasions. Never mind, however, that good judges such as Judge Owen do their best to follow the law regardless of which party will win and which party will lose. Never mind that many of her criticized rulings were unanimous or near unanimous decisions of a nine-member Texas Supreme Court. Never mind that many of these rulings simply followed Federal precedent authored and agreed to by appointees of Presidents Carter and Clinton or by other Federal judges unanimously confirmed by the Senate. Never mind that judges often disagree, especially when the law is ambiguous and requires careful and difficult interpretation.

The Democratic leader raised the frequent objection and that is criticized Justice Owen for attempting to interpret and enforce a popular Texas law requiring parental notification before a minor can obtain an abortion. Her opponents allege that in one parental notification case, then-Justice Alberto Gonzales accused her of judicial activism. That charge is untrue. I read myself the opinions again this weekend and the charge is simply untrue. Gonzales did not accuse Owen of judicial activism. Not once did he say Justice Owen was guilty of judicial activism. To the contrary, he never mentioned her name or her opinion in the opinion the critics cite.

Furthermore, our current Attorney General has since testified under oath that he never accused Owen of any such thing. What is more, the author of the parental notification law in question supports Justice Owen, as does the pro-choice Democratic law professor who was appointed to the Texas Supreme Court's advisory committee to implement that law. In other words, Owen simply did ``what good appellate judges do every day. If this is activism, then any judicial interpretation of a statute's terms is judicial activism.''

Mr. President, I ask unanimous consent this letter be printed in the RECORD at the close of my remarks.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

(See exhibit 1).

Mr. CORNYN. The American people know a controversial ruling when they see one, be it the redefinition of a traditional institution such as marriage, the expulsion of the Pledge of Allegiance, and other expressions of faith from the public square, the elimination of the ``three strikes and you're out'' law, and other penalties for convicted criminals, or the forced removal of military recruiters from college campuses. Justice Owen's rulings fall nowhere near this standard or category. There is a whole world of difference between struggling to interpret the ambiguous expressions of a legislature and refusing to obey a legislature's directives altogether.

It is clear Justice Owen deserves the broad bipartisan and enthusiastic support she obviously enjoys across the political spectrum. It is equally clear her opposition comes only from a narrow band on the far left fringes of that political spectrum. If the Senate were merely to observe 200 years of consistent Senate and constitutional tradition dating back to our Founders, there would be no question about her ability to be confirmed. She would be sitting on the Fifth Circuit Court of Appeals.

Legal scholars across the political spectrum have long concluded what we in this body know instinctively, and that is to change the rules of confirmation as a partisan minority has done badly politicizes the judiciary and hands over control of the judiciary to special interest groups. One Professor Michael Gerhardt, who advises Senate Democrats on judicial confirmation, has written that a supermajority requirement for confirming judges would be ``problematic, because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of special interests.''

DC Circuit Judge Harry Edwards, a respected Carter appointee, has written that the Constitution forbids the Senate from imposing a supermajority rule for confirmation. After all, otherwise, ``the Senate, acting unilaterally, could thereby increase its own power at the expense of the President'' and ``essentially take over the appointment process from the President.'' Judge Edwards thus concluded that ``the framers never intended for the Congress to have such unchecked authority to impose supermajority voting requirements that fundamentally change the nature of our democratic process.''

Mr. President, I think I have about 5 more minutes of my remarks. I ask unanimous consent that I be given an additional 5 minutes and the Senator from Vermont be given the same.

Mr. LEAHY. I have no objection.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. CORNYN. I thank the Chair. I thank the Senator from Vermont.

Georgetown Law Professor Mark Tushnet has written that ``the Democrats' filibuster is a repudiation of a settled preconstitutional understanding.'' He has also written, ``There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules--on scheduling, on not having a floor vote without prior committee action, etc.--to do so. All those other rules can be overridden by a majority of the Senate whereas the filibuster cannot be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do that with respect to a filibuster.''

Georgetown Law Professor Susan Bloch has condemned supermajority voting requirements for confirmation, arguing that they would allow the Senate to ``upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own rules and would unconstitutionally distort the balance of powers established by the Constitution.''

In summary, the record is clear. The Senate tradition has always been majority vote, at least up until the last 4 years. The desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum. And now the 100 Members of this body have a decision to make. Do we accept this dramatic and dangerous departure from 200 years of Senate precedent or do we work to restore the tried and true Senate tradition and practice?

I know the majority leader and, indeed, the Democratic leader have been working trying to find a way. I prefer, though, a way that would allow our nominees, all nominees, whether they be Republican or Democrat, to receive an up-or-down vote where a majority of the Senate stands ready to confirm them. I believe we should choose collaboration over contention any day of the week, if possible. But bipartisanship is a two-way street. Both sides must agree to certain fundamental principles and the most fundamental principle is fairness. Fairness means the same rules apply, the same standards, whether the President is a Republican or Democrat. But bipartisanship is difficult when long-held understandings and the willingness to abide by basic agreements and principles have unraveled so badly. When fairness falters, bipartisanship, too, will fail.

So I ask my colleagues what are we to do when these basic principles, commitments, and understandings have been so badly trampled upon? What are

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we to do when nominees are attacked for doing their jobs, when they are attacked for following precedents adopted and agreed to by Presidents Carter and Clinton, and when they are singled out for rulings agreed to by a unanimous, or near unanimous court? What are we to do when these nominees are demonized and caricatured beyond recognition, when they are condemned as unqualified while at the same time they are deemed unanimously well qualified by organizations Democrats used to revere? What are we to do when Senate and constitutional traditions are abandoned for the first time in more than two centuries, when both sides once agreed nominees should never be blocked by filibuster and then one side denies the existence of that very agreement, when their interpretation of Senate tradition changes based on who is in the Oval Office?

It is time to fix the broken judicial confirmation process. It is time to end the blame game and fix the problem and move on. And it is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans.

Mr. President, I thank the Chair. I thank my colleague from Vermont and yield the floor.

Exhibit 1

SOUTHERN METHODIST UNIVERSITY,

Dallas, TX, May 3, 2005.
Re Priscilla Owen

Senator John Cornyn,
Hart Senate Office Building,
Washington, DC.

DEAR SENATOR CORNYN: I write in support of the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. I write as a law professor who specializes in constitutional law. I write as a pro-choice Texan, who is a political independent and has supported many Democratic candidates. And I write as a citizen who does not want the abortion issue to so dominate the political debate that good and worthy judicial candidates are caught in its cross hairs, no matter where they stand on the issue.

Justice Owen deserves to be appointed to the Fifth Circuit. She is a very able jurist in every way that should matter. She is intelligent, measured, and approaches her work with integrity and energy. She is not a judicial activist. She does not legislate from the bench. She does not invent the law. Nothing in her opinions while on the Texas Supreme Court could possibly lead to a contrary conclusion, including her parental notification opinions. I suspect that Priscilla Owen's nomination is being blocked because she is perceived as being anti-choice on the abortion issue.

This perception stems, I believe, from a series of opinions issued by the Texas Supreme Court in the summer of 2000 interpreting the Texas statute that requires parental notification prior to a minor having an abortion. The statute also provides for what is called a ``judicial bypass'' to parental notification. Justice Owen wrote several concurring and dissenting opinions during this time. She has been criticized for displaying judicial activism and pursuing an anti-choice agenda in these opinions. This criticism is unfair for two reasons.

First, the Texas statute at issue in these cases contains many undefined terms. Further, the statutory text is not artfully drafted. I was a member of the Texas Supreme Court's Advisory Committee that drafted rules in order to help judges when issuing decisions under this parental notification statute. My involvement in this process made it clear to me that in drafting the parental notification statute, the Texas Legislature ducked the hard work of defining essential terms and placed on the Texas courts a real burden to explicate these terms through case law.

Moreover, the statute's legislative history is not useful because it provides help to all sides of the debate on parental notification. Several members of the Texas Legislature wanted a very strict parental notification law that would permit only infrequent judicial bypass of this notification requirement. But several members of the Texas Legislature were on the other side of the political debate. These members wanted no parental notification requirement, and if one were imposed, they wanted courts to have the power to bypass the notification requirement easily. The resulting legislation was a product of compromise with a confusing legislative history.

In her decisions in these cases, Justice Owen asserts that the Texas Legislature wanted to make a strong statement supporting parental rights. She is not wrong in making these assertions. There is legislative history to support her. Personally, I agree with the majority in these cases. But I understand Justice Owen's position and legal reasoning. It is based on sound and clear principles of statutory construction. Her decisions do not demonstrate judicial activism. She did what good appellate judges do every day. She looked at the language of the statute, the legislative history, and then decided how to interpret the statute to obtain what she believed to be the legislative intent.

If this is activism, then any judicial interpretation of a statute's terms is judicial activism. Justice Owen did not invent the legislative history she used to reach her conclusion, just as the majority did not invent their legislative history. We ask our judges to make hard decisions when we give them statutes to interpret that are not well drafted. We cannot fault any of these judges who take on this task so long as they do this work with rigor and integrity. Justice Owen did exactly this.

Second, we must be mindful that the decisions for which she is being criticized had to do with abortion law. I do not know if Justice Owen is pro-choice or not, but it does not matter to me. I am pro-choice as I stated before, but I would not want anyone placed on the bench who would look at abortion law decisions only through the lens of being pro-choice. Few categories of judicial decisions are more difficult than those dealing with abortion. A judge has to consider the fact that the fetus is a potential human, and this potential will be ended by an abortion. All judges, including those who are pro-choice, must honor the spiritual beauty that is potential human life and should grieve its loss. But a judge has other important human values to consider in abortion cases. A judge also has to consider whether a woman's independence and rights may well be unconstitutionally compromised by the arbitrary application of the law. All this is further compounded when a minor is involved who is contemplating an abortion. I want judges who will make decisions in the abortion area with a heavy heart and who, therefore, will make sure of the legal reasoning that supports such decisions.

I think the members--all the members--of the Texas Supreme Court did exact1y this when they reached their decisions in the parental notification cases. I was particularly struck by the eloquence of Justice Owen when she discussed the harm that may come to a minor from having an abortion. She recognized that the abortion decision may haunt a minor for all her life, and her parents should be her primary guides in making this decision. Surely, those of us who are pro-choice have not come to a point where we would punish a judge who considers such harm as an important part of making a decision on parental notification, especially when legislative history supports the fact that members of the Texas Legislature wanted to protect the minor from this harm. As a pro-choice woman, I applaud the seriousness with which Justice Owen looked at this issue.

If I thought Justice Owen was an agenda-driven jurist I would not support her nomination. Our founders gave us a great gift in our system of checks and balances. The judicial branch is part of that system, and it is imperative that it be respected and seen as acting without bias or predilection, especially since it is not elected. Any agenda-driven jurist--no matter the issue--threatens the honor accorded the courts by the American people. This is not Priscilla Owen. So even though I suspect Justice Owen is more conservative than I am and even though I disagree with some of her rulings, this does not change the reality that she is an extremely well-qualified nominee who should be confirmed.

It would be unfair to place Priscilla Owen in the same category with other nominees who, in my opinion, are judicial activists and who I do not support. Some of these other nominees appear to want to dismantle programs and policies based on a political or economic agenda not supported by legal analysis or constitutional history. They appear to want to push their views on the country while sitting on the bench. Priscilla Owen should not be grouped with them. Justice Owen possesses exceptional qualities that have made and will make her a great judge. I strongly urge her confirmation.

Sincerely,

Linda S. Eads,
Associate Professor of Law.

Senate just got started........

Lots going on. Hard to know which way to turn. Coleman is on with Laura right now. He thanked her for clarifying that "Lardball" was a reference to the Chris Matthews show and not to him.

HATCH on the floor.......Talking filibusters

Hatch is doing the numbers game as his opening gambit.