Congressional Record, Volume 148 Issue 112 (Monday, September 9, 2002)

[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]
[Senate]
[Pages S8340-S8350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF KENNETH A. MARRA, OF FLORIDA, TO BE UNITED STATES
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA

The PRESIDING OFFICER. Under the previous order, the hour of 1 p.m.
having arrived, the Senate will proceed to executive session and
proceed with the consideration of Executive Calendar No. 889, which the
clerk will report.
The legislative clerk read that nomination of Kenneth A. Marra, of
Florida, to be United States District Judge for the Southern District
of Florida.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I do believe that Judge Kenneth Marra
will be confirmed to the U.S. District Court for the Southern District
of Florida. I have heard of no opposition. This is a judge who got
strong bipartisan support in the Senate Judiciary Committee, which
usually guarantees a confirmation on the floor. When that happens, the
Democratic-led Senate will confirm its 74th judicial nomination made by
President George W. Bush. This will also be the 25th judicial emergency
vacancy that we have filled since I became chairman last summer, and
the 18th since the beginning of this year.
The confirmation of Judge Marra will bring additional resources to
the U.S. District Court for the Southern District of Florida. Judge
Marra was nominated to fill a new position Congress created by statute
to address the large caseload, particularly the immigration and
criminal cases, facing the Federal court in Florida. He is one of three
Federal judicial nominations on the Senate Calendar for action.
I recall during the past administration, the Clinton administration,
we all worked very hard in cooperation with Senator Graham and Senator
Mack to ensure that the Federal court in Florida had its vacancies
filled promptly with consensus nominees. Due to the bipartisan
cooperation between one Democrat Senator and one Republican Senator and
a Democratic President, the Senate was able to confirm 22 judicial
nominees from Florida, including 3 nominees to the Eleventh Circuit.
But it is unfortunate that this tradition of cooperation, coordination,
and consultation has not continued with the current administration.
By my recollection, it was only the nomination of Judge Rosemary
Barkett of the Florida Supreme Court to the Eleventh Circuit that
generated any significant controversy or opposition. I do recall that
she was strongly

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opposed by a number of Republican Senators because they did not agree
with her judicial philosophy. Those voting against her included
Senators Hatch, Grassley, McConnell, Specter, and Thurmond, as well as
Senators Lott, Nickles, and Hutchison of Texas. They have an absolute
right to do that, of course. I respect that right. Judge Barkett
received the highest rating of the ABA, ``well qualified,'' and yet 36
Republicans voted against her confirmation, even though she had the
strong bipartisan support of her home State Senators. Recent claims by
some that it is unprecedented to vote against a judicial nominee with a
``well qualified'' rating and to vote against her based on her judicial
philosophy thus ring hollow.
Unfortunately, that is not the way the administration has dealt with
Senators Graham and Nelson now. But it is a tribute to Senator Graham
and Senator Nelson that we have made the progress we have had. They
could very easily have exercised their right as Senators and refused to
accept the nominees of President Bush. Of course, they would go no
further under the blue-slip policy that both Republicans and Democrats
strongly support. But they have been more than gracious in their
willingness to support these nominees. That is why they have gone
through.
This Democratic-led Senate has expeditiously moved President Bush's
judicial nominees. We have worked hard to provide bipartisan support
for the White House's nominations in spite of an almost unprecedented
lack of willingness on the part of the White House to work with us.
In fact, I have been here 26 years: During the terms of President
Ford, President Carter, President Reagan, President George Herbert
Walker Bush, President Clinton, and now President George W. Bush. This
administration is the least willing of any White House during all that
time--Republican or Democrat--to work with the Senate on judicial
nominations. But even without that cooperation, even with the
unprecedented lack of cooperation, we are making progress.

I would like to discuss the progress we have made. This chart shows
what has happened in the 15 months the Democrats have controlled the
Senate. Contrast that to the Republicans' first 15 months when they
controlled the Senate. In less than 15 months of Democratic control of
the committee, we have held more hearings for more nominees, voted on
more nominees in committee, and confirmed more nominees than the
Republicans did in their first 15 months of control of the committee in
1995 and 1996.
We have confirmed more of President George W. Bush's Federal trial
court nominees in less than 15 months than were confirmed in the first
2 years of his father's Presidency. In fact, we confirmed more in the
first 15 months than the Republicans were willing to confirm in their
last 30 months.
I mention this because there seems to be some idea that somehow the
Democratic-led Senate is holding up judges. I think most of the
Presidents with whom I have served would have been delighted to have
had a Senate as cooperative as we have been.
Let me repeat that. In 15 months, Democrats have done more on
judicial confirmations than Republicans did in 30 months.
They, on the other side, do not want to compare our record of
accomplishment in evaluating judicial nominees with theirs in their
prior 6\1/2\ years of control. They do not want to own up to their
delay and defeat through inaction of scores of judicial nominees during
the last administration.
All too often the only defense of their record we hear is the claim
that President Clinton ultimately appointed 377 judicial nominees, 5
fewer than President Reagan. This statement overlooks the fact that the
Republicans only allowed 245 of President Clinton's judicial nominees
to be confirmed. That averages, incidentally, to about 38 confirmations
per year during their 6\1/2\ years of control. We confirmed 74 judicial
nominees in less than 15 months, including 13 to the circuit courts. I
believe we have reported 80 out of the Judiciary Committee.
I mention this because of the persistence of the myth of inaction in
face of such in the face of such a clear record of progress by
Democrats. After a while, if someone keeps distorting the facts, if
someone keeps stating things that are not true, people actually come to
believe it is true. I am reminded of what Adlai Stevenson once said. I
will quote him:

I have been thinking that I would make a proposition to my
Republican friends . . . that if they will stop telling lies
about the Democrats, we will stop telling the truth about
them.

The truth is, of course, as these charts show, that we have a pretty
good record of accomplishment despite the lack of cooperation from the
administration.
With today's vote, the Democratic-led Senate will confirm its 74th
judge--exceeding the number of circuit and district court nominees
confirmed in the last 30 months of Republican control of the Senate. We
have done more than Republicans did, and we have done it in less than
half the time.
We have confirmed more of this President's nominees, both circuit and
district court nominees, in less than 15 months, than were confirmed in
the comparable 15 months of the first term of former President Reagan,
the first President Bush, and President Clinton.
Let's take a look at what has happened in the first 15 months. With
today's vote, the Democratic-led Senate has confirmed 74 of this
Republican President's judicial nominees in less than 15 months.
Under President Reagan--and incidently, I might point out, he had a
Senate of his own party--there were 54 confirmation in the first 15
months. Under George H. W. Bush, there were 23; for the first 15 months
of President Clinton, 45. Incidentally, that is with a Senate under the
control of his own party. And now, in 15 months, under President George
W. Bush, we have had 74 judicial confirmations--74. By any standard you
want, here is a case where a different party than the President has
controlled the Senate, and we have done more than was done for
President Reagan when his own party controlled the Senate, for
President Bush when another party controlled the Senate, for President
Clinton when we, the Democrats, controlled the Senate.
It shows we can move and will move, and we have been doing that
notwithstanding the fact that there has been less cooperation from the
White House than I have seen with either Democratic or Republican
Presidents in 26 years in the Senate. It is unfortunate.
President Bush will probably get a record number of his judges
through at the current pace of confirmations. But I have to think how
much better it could be done with less rancor and with even a modicum
of cooperation. We have acted fairly and expeditiously notwithstanding
the fact that Democrats have felt very concerned that for year after
year after year after year in many of the circuit courts of this
country, Republicans refused to even hold hearings for the nominees,
even though they had the highest ratings of the American Bar
Association. They would not even hold hearings, to say nothing about
having a vote.
Then when the Republicans came in, suddenly there was an emergency;
they had to fill the vacancies in those circuits. Their obstruction
created the problem. But notwithstanding that, in many of those cases
where Democrats were not allowed to even have a hearing year after year
after year, we have in the last 15 months moved forward with hearings
and votes, and positive votes, on the vast majority of his judicial
nominees.
I have no idea what political game is being played at the White
House. I know the people are very nice. Judge Gonzalez is a very nice,
very polite person. He is charming to be with. But the cooperation is
not there. The President is very nice, very charming. But the
cooperation is not there. We could do far better if they would just
pick up the phone and call the last three people from the last three
Republican administrations--they do not even have to call a Democratic
administration--and see how well this could be done.
As the distinguished ranking member, my good friend from Utah, knows,
I went down several times and worked with the Clinton White House so
they could have cooperation with, and they did cooperate with,
Republican Senators in moving through judges. I would hope that with
that precedent in mind, some might do the same.
Democrats have reformed the process for considering judicial nominees
to

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ensure bipartisan cooperation and greater fairness. For example, we
have ended the practice of secretive, anonymous holds that plagued the
period of Republican control, when any Republican Senator could hold
any nominee from his or her home state, his or her own circuit or any
part of the country for any reason, or no reason, without any
accountability. We have returned to the Democratic tradition of
regularly holding hearings, every few weeks, rather than going for
months without a single hearing. In fact, we have held 23 judicial
nominations hearings in our first 13 months, an average of almost two
per month.
In contrast, during the six and one-half years of Republican control,
they went 30 months without holding a single judicial nominations
hearing. By holding 23 hearings for 84 of this President's judicial
nominees, we have held hearings for more circuit and district court
nominees than in 20 of the last 22 years during the Reagan, first Bush,
and Clinton Administrations.
As this chart shows, we have held more hearings for President Bush's
judicial nominees in less than 15 months than were held in 15 months
for any of the past three Presidents. In the first 15 months of the
first term of President Reagan, 17 judicial nominations hearings were
held. In the first 15 months of President George H.W. Bush's term, 11
hearings were held. And, in the first 15 months of President Clinton's
first term, 14 judicial nominations hearings were held. In contrast, we
have held 23 hearings in less than 15 months. That is almost as many as
were held in the first 15 months of the terms of the first President
Bush and President Clinton combined. We have more than exceeded the
number of hearings held in the last 30 months of Republican control of
the Senate, when they held only 15 hearings.
While some complain that a handful of circuit court nominees have not
yet had hearings, they fail to acknowledge that Democrats have held
hearings for more of President Bush's circuit court nominees, 18, than
in any of the six and one-half years in which the Republicans
controlled the Committee before the change in majority last summer.
Republicans have utterly failed to acknowledge this fairness and
progress under the Democratic majority. The myth of obstruction of
judicial nominees fits their political strategy better than the truth.
The years of Republican inaction on a number of circuit court
vacancies has made it possible for Democrats to have several
``firsts,'' or astounding accomplishments in addressing judicial
vacancies. For example, we held the first hearing for a nominee to the
Sixth Circuit in almost five years (that is more than one full
presidential term) and confirmed her, even though three of President
Clinton's nominees to the Sixth Circuit never received a hearing or a
vote. We held the first hearing on a Fifth Circuit nominee in seven
years (including the entire period of Republican control of the Senate)
and confirmed her last year, while three of President Clinton's Fifth
Circuit nominees never received hearings or votes on their nominations.
We held the first hearing on a Tenth Circuit nominee in six years, and
we have confirmed two of President Bush's nominees to the Tenth
Circuit, while two of President Clinton's nominees to that circuit
never received hearings or votes. We held the first hearing for a
Fourth Circuit nominee in three years, for Judge Roger Gregory, and the
first hearing for an African American nominee to that court in United
States history, even though Judge Gregory and four other nominees to
that circuit (including three other African Americans) never received
hearings or votes during Republican control of the Senate. These are
just a few examples of the historic accomplishments of the Democratic-
led Senate which debunk Republican myths that Democrats caused the
vacancy crisis, are delaying judicial appointments or have been
retaliating for years of obstruction on circuit court vacancies by
Republicans.
There were only 16 circuit court vacancies when Republicans took over
the Senate in January 1995. Unfortunately, from January 1995 until
Republicans relinquished control and allowed the Judiciary Committee to
be reorganized in the summer of 2001, circuit court vacancies more than
doubled from 16 to 33. Republicans executed a partisan political
strategy to hold vacancies open on the circuits for a Republican
president to fill. It would certainly have been easier and less work
for Democrats to retaliate for the unfair treatment of the last
President's circuit court nominees. We did not. We have been, and will
continue to be, more fair than the Republican majority was to President
Clinton's judicial nominees.

Here is another chart that shows that more of President Bush's
judicial nominees have been given committee votes than the nominees of
prior presidents. Unlike my Republican predecessor, I have scheduled
hearings and votes on district and circuit court nominees whom I do not
support. The Judiciary Committee has voted on 82 judicial nominees and
favorably reported 80. In less than 15 months, we have voted on more of
President Bush's district and circuit court nominees than were voted on
in the first 15 months of any of the past three Presidents. Moreover,
we have voted on more nominees in less than 15 months than were voted
on in the first 15 months of Presidents Reagan and George H.W. Bush
combined, or Presidents George H.W. Bush and Clinton combined. We have
even voted on more nominees in less than 15 months than were voted on
in the last 30 months of Republican control of the Senate, when 73
nominees were voted on by the Committee.
Because we have moved quickly and responsibly, the number of
vacancies is not at the 153 mark it would be had we taken no action.
Vacancies have been reduced to 79 and are headed in the right
direction. On July 10, 2001, with the reorganization of the Senate, we
began with 110 vacancies. When Republican gained control of the Senate
in 1995 the federal judicial vacancies numbered 65. The vacancies
increased during their six and one-half years to more than 110. Under
the Democratic majority, by contrast, the number of vacancies is being
significantly reduced. Despite the large number of additional vacancies
that have arisen in the past year, with the 61 district court
confirmations we have as of today, we have reduced district court
vacancies to 50, almost to the level it was at when Republicans took
over the Senate in 1995.
In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President's judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.
When we held our most recent hearing on August 1, we had given
hearings to 66 district court nominees and we had run out of district
court nominees with completed paperwork and home-State consent. Only
two district court nominees were eligible for that hearing. This is
because the White House changed the process of allowing the ABA to
begin its evaluation prior to nomination. This change has cost the
federal judiciary the chance over the last year to have 12 to 15 more
district court nominees on the bench and hearing cases, because now the
ABA can only begin its evaluation once the nomination is submitted to
the Senate. The ABA also must wait until the Administration provides
the Senate with the nominee's public questionnaire, and lately the
nominees' documents have been arriving on a delayed basis, as well.
Indeed, many of the two dozen nominations most recently received will
likely not get hearings before adjournment this year in large measure
because the White House unilaterally changed the process for
consideration and has built additional delays into it.
In January I had proposed a simple procedural adjustment to allow the
ABA evaluation to begin at the same time as the FBI investigation, as
was the practice in past Republican and Democratic Administrations over
50 years. Had this proposal been accepted, I am confident there would
be more than a dozen fewer vacancies in the federal courts. Instead,
our efforts to increase cooperation with the White House have been
rebuffed. We continue to get the least cooperation from any White House
I can recall during my nearly three decades in the Senate. Yet, even
with such lack of cooperation from the White House, the Senate has set
an impressive rate of confirming judicial nominees.

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Here is another chart that shows how Democrats have dramatically
reduced the time between nomination and confirmation of circuit court
nominees. Since the Democrats assumed the majority last July, the
average time to confirm circuit court nominees has been drastically
reduced to 147 days, from a high during the most recent years of
Republican control of 374 days. We have reduced the average time from
nomination to confirmation to two-and-a-half times less than the
average time to confirmation during Republican control during the 106th
and 105th Congresses when it took an average of 374 and 314 days,
respectively, to confirm President Clinton's circuit court nominees.
The Judiciary Committee has reported two more circuit court nominees
favorably to the Senate. We have held hearings on 18 circuit court
nominees and the Judiciary Committee has already voted on 17 of those
18 nominees.
In spite of the obstacles the White House has put in the way of their
own nominees through their lack of consultation and cooperation, we
have been able to have a productive year while restoring fairness to
the judicial confirmation process. I regret that the White House has
chosen the strident path that it has with respect to judicial
nominations, especially to the circuit courts. As several Senators
noted last week, the Administration does not have carte blanche to
insist on an ideological takeover of the Courts of Appeals with
activist ultra-conservative nominees intended to tip the balance in
circuits around the country. The total number of district and circuit
court confirmations now stands at 74, and there remain a few weeks left
in this session. So while we have been working hard and productive, the
Judiciary Committee and the Senate have not become a rubber stamp.
I am proud of the efforts of the Senate to restore fairness to the
judicial confirmation process over this time. The Senate Judiciary
Committee is working hard to schedule hearings and votes on additional
judicial nominees, but it takes time to deal with a mess of the
magnitude we inherited. I think we have done well by the federal courts
and the American people, and we will continue to do our best to ensure
that all Americans have access to federal judges who are unbiased,
fair-minded individuals with appropriate judicial temperament and who
are committed to upholding the Constitution and following precedent.
When the President sends judicial candidates who embody these
principles, they will move quickly, but when he sends controversial
nominees whose records demonstrate that they lack these qualities and
whose records are lacking we will take the time needed to evaluate
their merits and to vote them up or down.
I would like to thank the Members of the Judiciary Committee who have
labored long and hard to evaluate the records of the individuals chosen
by this President for lifetime seats on the federal courts. The
decisions we make after reviewing their records will last well beyond
the term of this President and will affect the lives of the individuals
whose cases will be heard by these judges and maybe millions of others
affected by the precedents of these decisions of these judges.
Before anyone takes for granted how fairly Democrats have treated
this President's judicial nominees, receiving up or down votes, they
should take a look at how poorly judicial nominees were treated during
the 6\1/2\ years of Republican control of the Senate. In all, several
dozen judicial nominees of President Clinton never received a hearing
or a vote.
When confronted with this, Republicans often lament that about 50 of
the first President Bush's judicial nominees did not get a hearing
before the end of the session in Congress in 1992. What they
consistently fail to mention about this, however, is quite revealing.
That year, the Senate confirmed more of President George H.W. Bush's
judicial nominees than in any year of his presidency. He had 66
judicial nominees confirmed that year, but the Senate simply could not
get to the other 53 nominees he submitted in response to the creation
of dozens of new judgeships. So, even though some of his nominees were
returned, the Senate confirmed a substantial number, 66, of his
judicial nominees in the 10 months they were in session that year,
which was an election year, by the way.
Perhaps coincidentally, 66 is the highest number of judicial
confirmations in one year that Republicans ever allowed President
Clinton to reach. They averaged 38 judicial confirmations per year. In
the last two years of the Clinton Administration, Republicans allowed
only 33 and 39 judges to be confirmed, respectively in 1999 and 2000.
President George H.W. Bush had 66 confirmations in his last year of
office, an election year. In President Clinton's last year in office
only 39 judges were confirmed, during Republicans control. In 1996,
Republican allowed only 17 judges to be confirmed, none to the circuit
courts. In those two election years combined Republicans allowed only
56 confirmations. In 1992, an election year, Chairman Biden pushed
through 66 confirmations.
Unlike Democrats in 1992, Republicans cannot honestly claim that they
moved a substantial number through but could not get to them all.
Confirming only 39 judicial nominees in 2000 and returning more than
that, 41, in that year alone, simply does not compare with what
happened in 1992 when Democrats worked hard to move through 66 of the
first President Bush's judicial nominees in the space of 10 months. If
66 was such an easy number to reach, why did Republicans reach that
level only once in six years of control? The answer is easy. They did
not want to do so. I think Republicans wanted to ensure that they never
treated President Clinton better than the best year of former President
Bush (his last year) and they wanted to ensure that President Clinton
did not beat President Reagan's number of confirmations, as a matter of
partisan pride.
Had Republicans kept up the pace of confirmation set by Democrats in
the first President Bush's last year and the first two years of the
Clinton Administration, President Clinton would have appointed
substantially more than the 377 judges who were ultimately confirmed in
his two terms as president, and the Democratic-led Senate Judiciary
Committee would not have begun last July with 110 vacancies.
Ironically, perhaps, Democrats have been so fair to President George W.
Bush, despite the past unfairness of Republicans, that if we continue
at the current pace of confirmation and vacancies continue to arise at
the same rate, then Bush will appoint 227 judges by the end of his
term. If he were elected to a second term, at the current pace, he
would amass 454 judicial confirmations, dramatically more than
President Reagan, who Senator Hatch often calls the all-time champ.
This, too, demonstrates how fair Democrats have been. Perhaps some may
say we have been foolishly fair, given how Democrats were treated in
the past. We have exceeded the pace set in 1992, 1993 and 1994, with 74
confirmations to date in little more than a year.
In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President's judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.
Any way you look at the numbers, raw numbers or percentages,
comparisons with the prior six years of Republican control or with
prior Congresses and Republican presidents, the Democrats have done
more in less time. We have been more fair by far. Yet we have been
unfairly labeled as obstructionist because we have not been able to
have hearings for every single judicial nominee in the short period we
have been in the majority. This President still has over two years left
in his term.
I withhold the remainder of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Madam President, I rise today to respond to some of the
amazing assertions made by my distinguished colleague and friend from
Vermont. Of course, I do so with some trepidation because each time we
have a back and forth like this one, I help my colleague further the
impression that he is out to create and that he has done a good job of
creating, especially with the press.
The impression my colleague is seeking to create is that both sides
come to

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the table with unclean hands in the matter of confirmations. It is a
false impression and it provides a smokescreen of the stark reality of
the poor performance of the Judiciary Committee this past year and
during this session.
Naturally, my friend takes pride in his accomplishments this year,
but not all of them. Let me list a few he misses. President Reagan took
pride in nominating the first woman to the Supreme Court. My Democrat
colleagues have now presided over the ``Borking'' of the first woman in
history, and one of the leading women jurists in this country,
Priscilla Owen.
My colleague has also set a new record for a Judiciary Committee
chairman. He has voted in 1 year against more judicial nominees than
any chairman in the 212 years of the Republic. Moreover, most of my
Democrat colleagues on the Judiciary Committee have voted against more
judicial nominees in this last one year than I have in my 26 years on
the Judiciary Committee. I voted against only one Clinton nominee, only
one, but as painful as that was, I did it standing straight for all to
see in the disinfectant light of the Senate floor, not in the shadows
of a committee vote.
Also, in rejecting Justice Owen, my Democrat colleagues rejected for
the first time in history a nominee who has received the American Bar
Association's unanimous rating, highest rating of well qualified, the
rating that earlier this year they announced to be the gold standard
for judicial nominees and which, of course, they now criticize because
the independent body has rated President Bush's nominees as highly
qualified as any we have ever seen.
In other words, Priscilla Owen, who had the support of both home
State Senators, which is a requisite for consideration by the
Committee, who had the highest rating given by the American Bar
Association for a judicial nominee, who is a supreme court justice in
Texas, and who, by anybody's measurement who is fair, is in the
mainstream of American jurisprudence, was dumped unceremoniously in the
committee by a 10-to-9 party vote, a partisan party vote at that, and
without giving her nomination the chance of being brought up on the
floor of the Senate where I believe she would have passed, if not
overwhelmingly, certainly comfortably.
I have heard my colleague from Vermont defend against that by listing
the 42 judicial nominees who did not get confirmed by the end of the
Clinton administration. He doesn't point out that there were 54
nominees left hanging at the end of the first Bush administration when
they were in charge. And he does not explain that most, if not all, of
the nominees left hanging at the end of the Clinton administration,
however qualified, did not progress because either they were nominated
too late or did not have their home state Senators' support or had
other problems that we cannot address.
In an attempt to cloud up the rejection of Justice Owen's nomination,
I have also heard my colleagues point to the Clinton judges from Texas
in particular who never got a hearing. One said at the Owen hearing
that I did not give them a hearing. It was a very unfair
characterization, and I will respond to it now.
As my friend knows well enough, neither of those nominees had the
support of their home state Senators. This prevented me, and would have
prevented the distinguished Senator from Vermont, if he were in my
shoes, from scheduling a hearing for them. In part, this was because
President Clinton ignored the Texas Senators and the Texas nominating
commission in making those nominations. The practice of honoring the
home State Senators is not one I put in place; it was put in place
under Democrat leadership of the committee, and appears agreeable to
both parties.

Today, Democrat Senators from the States of North Carolina,
California, and Michigan have prevented the Judiciary Committee from
holding hearings on six of President Bush's original Circuit Court of
Appeals nominees who were nominated a year and a half ago, some of the
greatest nominees I have seen in the whole time I have been in the
Senate and on the Judiciary Committee, now 26 years.
I know there are those who seem to justify wrong in childlike fashion
with the intellectual crutch of, ``They did it, too.'' Let me say that
we Republicans have never done what was done to Justice Owen. I can't
think of anything in history that compares to that. Some Democrats have
attempted to leave the impression that Republicans have unclean hands
so as to soften the scrutiny of what was done to Justice Owen. The
American people will see through this.
But let me assure you, none of those nominees who did not get
hearings would trade places with Charles Pickering of Mississippi or
Priscilla Owen of Texas. It is beyond peradventure that they would
prefer to be ghosts of nominations past than called racists, unjustly
called racists, and have their fine records of public service soiled by
the Judiciary Committee.
I am heartened to know that beyond the overwhelming support from her
home State of Texas and scores of op-eds written across the country in
support of the Owen nomination, Justice Owen's nomination to the Fifth
Circuit has received editorial support from over 24 newspapers
published across the Nation and across the political spectrum. I have
previously submitted these for the Record.
Prior to the vote in Committee, only three newspapers, in fact--in
New York, Los Angeles, and San Francisco--had come out firmly against
the nomination.
I am heartened by this national support not just for the sake of
Justice Owen, but because at her hearing I expressed alarm at the
efforts of some to introduce ideology into the confirmation process. I
am heartened that editorial and op-ed writers across the country
reflect not only support for Justice Owen but also the near universal
rejection of this misguided effort to make the independent Federal
judiciary a mere extension of Congress and less than the independent,
coequal branch it was intended to be.
Let me respond further to my good friend from Vermont. He is right
that in this session so far the Senate has confirmed 73 judges. There
is much eagerness in my friend's voice asserting that this number
compares favorably to the last three sessions of Congress during which
I was chairman.
Although I am flattered to hear my record used as the benchmark for
fairness, I am afraid this does not make for a fair comparison because
I was never chairman during any of President Clinton's first 2 years in
office.
Let me repeat that. I was never chairman of the Judiciary Committee
during any President's first 2 years in office. I am glad to say,
therefore, that the proper comparison is not, as they say, about me.
My colleague speaks of the last 15 months when I was chairman, but
this compares apples to oranges.
During President Clinton's first Congress, when Senator Biden was the
chairman of the Judiciary Committee, the Senate confirmed 127 judicial
nominees. And Senator Biden achieved this record despite not receiving
any nominees for the first 6 months--in fact, Senator Biden's first
hearing was held on July 20 of that year, more than a week later than
the first hearing of this session, which occurred on July 11, 2001.
Clearly, getting started in July of year one is no barrier to the
confirmation of 127 judges by the end of year two. But we have
confirmed only 73 nominees in this session.
Senator Biden's track record during the first President Bush's first
two years also demonstrates how a Democrat-led Senate treated a
Republican President. Then-Chairman Biden presided over the
confirmation of all but 5 of the first President Bush's 75 nominees in
that first two-year session. Chairman Thurmond's record is similar. The
contrast to the present could hardly be starker.
Mr. President, we are about to close President Bush's first 2 years
in office having failed the standards set by Chairmen Biden and
Thurmond. That is nothing over which to be proud. We still have 80
vacancies on the courts, and 32 emergency vacancies.
Mr. President, one final point about Justice Owen. Much of the
opposition against her was driven by interest groups that advocate for
the right to abortion. Yet in Justice Owen we had the first nominee we
have considered this session who has, as a judge, read those cases,
cited them, quoted them, applied them and followed them. She did,
however, interpret the new Texas parental notice law and sought in one

[[Page S8345]]

particular case to make it rarer to bypass than some of her colleagues
on the court, although the Texas Supreme Court agreed in most all other
respects.
Of course, the charge that she is a judicial activist was a cynical
trick of words from Washington special interest lobbyists who have made
their careers taking positions without letting the words of the
Constitution stand between them and their political objectives.

Why did they oppose her? Ironically enough, they are doing so because
they do not like the Texas statute requiring parental notice in cases
of abortions for children. Justice Owen voted to give the statute some
meaning. Justice Owen's opponents think a minor should always be able
to avoid the Texas Legislature's standards. It is the groups allied
against Justice Owen who are the judicial activists, the ones who are
looking to achieve in the courts an outcome that is at odds with the
law passed by the elected legislators.
Let's be clear that the opposition to Justice Owen was all about
abortion. But in Justice Owen's case, it was not that she opposed
abortion rights--no decision of hers ever denied that right. I fear
that the opposition to Justice Owen is not about abortion rights
exactly, but something much more insidious--it was not about abortion
rights exactly but about abortion profits.
Simply put, the abortion industry is opposed to parental notice laws
because they place a hurdle between them and their clients--not the
girls who come to them, but the adult men who pay for the abortions.
These adult men, whose average age rises the younger the girl is, are
eager not to be disclosed to parents, sometimes living down the street.
At $1,000 per abortion and nearly 1 million abortions per year, the
abortion industry is as big as any corporate interest that lobbies in
Washington. They not only ignore the rights of parents to hide their
young daughters' abortions, they also protect sexual offenders and
statutory rapists.
And who are the lobbyists for the abortion industry? Exactly the same
cast that has launched an attack on Justice Owen. One wonders, as
columnist Jeff Jacoby did in the Boston Globe, who are the extremists
on this issue, who is out of the mainstream? Not Justice Owen--82
percent of the American people favor consent and notice laws such as
Justice Owen interpreted--86 percent in Illinois.

I will say it again, while my colleagues continue in general to apply
an abortion litmus test, the assault against Justice Owen was not about
abortion rights, it was about abortion profits. It is not about a
woman's right to an abortion, it is about assailing parental laws that
threaten the men who pay for abortions. It is whether parents should at
least know, not even consent to, but just know, when a minor child is
having an abortion paid for by an adult.
Let's speak truth to power. Justice Owen was picked to be opposed
because she is a friend of President Bush from Texas. She was opposed
by an axis of profits. This axis of profits combines the money of trial
lawyers and the abortion industry to fund the Washington special
interest groups, and spreads its influence to the halls of power in
Washington and in State courts across this country.
The Opposition against Justice Owen was intended not only to have a
chilling effect for women jurists that will keep them from weighing in
on exactly the sorts of cases that most invite their participation and
their perspectives as women, but also on all judges in all State courts
who rule on cases the trial lawyers want to win and cash in on.
When my colleagues voted against her, they chose to besmirch a model
young woman from Texas, who grew up, worked hard and did all the right
things--including repeatedly answering the call of public service at
sacrifice of personal wealth and family. My Democrat colleagues voted,
in effect, against the American promise of fairness.
This is a young woman who gave up a lucrative career to give public
service on the Texas Supreme Court, and who deserves to be on the Fifth
Circuit Court of Appeals.
Such a vote should have taken place in the light of this Senate
floor, but the American people will hear of the result notwithstanding
the shadows.
I only hope the American people will repair the damage done to the
Constitution when they vote in November.
I have reviewed Mr. Marra's distinguished career and I can say,
without hesitation, that he will be an excellent addition to the
prestigious Southern District of Florida.
Mr. Marra comes to the federal bench with a unique and extremely
useful qualification: Judge Marra is a former Social Studies teacher at
Elmont Memorial High School in Elmont, New York. After teaching high
school for several years, Judge Marra inexplicably decided to change
career paths and went to law school, graduating from Stetson University
College of Law in 1977. He then went to work for the United States
Department of Justice as part of its honor law graduates program. While
at the Department of Justice, he was involved in litigation which
sought to protect the land, water and mineral rights of Native
Americans from encroachment and to regain such resources that had been
wrongfully lost over the years.
After three years with the Department of Justice, Judge Marra joined
the law firm of Wender, Murase & White of Washington, D.C., where he
was involved in patent and trademark litigation, corporate law and
litigation in the area of federal Indian law. In 1984 Judge Marra
joined the law firm of Nason, Gildan, Yeager, Gerson & White. He worked
at that firm for the next twelve years focusing on commercial
litigation and representing clients at both the trial and appellate
levels. Judge Marra gained experience in a variety of matters,
including antitrust, contracts, construction defects, condominium and
homeowner association disputes, and employment and housing
discrimination.
In 1996 Judge Marra was appointed to the Fifteenth Judicial Circuit
in Palm Beach County, Florida. He has served in the civil, family and
criminal divisions.
Judge Marra will make a fine member of the Federal bench.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Madam President, I am sure it was inadvertent that when
the distinguished Senator from Utah was talking about the editorials
against the nominee, Priscilla Owen, he said there were only three
against.
I refer, for example, to the Atlanta Journal-Constitution, and I will
quote from it and then put the whole editorial in the Record.
I ask unanimous consent that articles in opposition to her be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, Sept. 4, 2002]

The Wrong Judge

Priscilla Owen, President Bush's latest nominee to the
United States Court of Appeals for the Fifth Circuit, has
been at times so eager to issue conservative rulings in cases
before her on the Texas Supreme Court that she has ignored
statutory language and substituted her own views. This
criticism comes not from the ``special interest groups'' she
has charged with misstating her record, but from Alberto
Gonzales, President Bush's own White House counsel. Mr.
Gonzales, who served with Justice Owen on the Texas high
court, once lambasted her dissent in an abortion case for
engaging in ``unconscionable . . . judicial activism.'' Mr.
Gonzales says today that he nonetheless supports the
elevation of Justice Owen. We do not.
In choosing a nominee for the Fifth Circuit--the powerful
federal appeals court for Texas, Mississippi and Louisiana--
President Bush has looked to the extreme right wing of the
legal profession. Even on Texas' conservative Supreme Court,
Justice Owen has distinguished herself as one of the most
conservative members. A former lawyer for the oil and gas
industry, she reflexively favors manufacturers over
consumers, employers over workers and insurers over sick
people. In abortion cases Justice Owen has been resourceful
about finding reasons that, despite United States Supreme
Court holdings and Texas case law, women should be denied the
right to choose.
Justice Owen's views are so far from the mainstream that,
on those grounds alone, the Senate should be reluctant to
confirm her. But what is particularly disturbing about her
approach to judging is, as Mr. Gonzales has identified, her
willingness to ignore that text and intent of laws that stand
in her way. In an important age discrimination case, Justice
Owen dissented to argue that the plaintiff should have to
meet a higher standard than Texas law requires.
Justice Owen has also shown a disturbing lack of
sensitivity to judicial ethics. She has raised large amounts
of campaign contributions from corporations and law firms,
and

[[Page S8346]]

then declined to recuse herself when those contributors have
had cases before her. And as a judicial candidate, she
publicly endorsed a pro-business political action committee
that was raising money to influence the rulings of the Texas
Supreme Court.
After the Senate Judiciary Committee rejected Judge Charles
Pickering, another far-right choice, for a seat on the Fifth
Circuit earlier this year, the Bush administration declared
that it would not be intimidated into choosing more centrist
nominees. Sadly, the administration has lived up to its
threat. In this dispute the Senate is right: the
administration should stop trying to use the judiciary to
advance a political agenda that is out of step with the views
of most Americans.
Justice Owen is a choice that makes sense for Justice
Department ideologues who want to turn the courts into a
champion of big business, insurance companies and the
religious right. But the American people deserve better.
Justice Owen's nomination should be rejected.
____

[From the Los Angeles Times, July 23, 2002]

Ideologues All in a Row

Last year President Bush eliminated the American Bar Assn.
from the process of vetting potential judicial nominees, a
role it performed ably and in a nonpartisan way for the nine
presidents before him. Now he relies on the ideological tests
of the very conservative Federalist Society.
Not surprisingly, the men and women who pass this rigid
test look remarkably alike on the bench. They often side with
business in disputes involving employee rights, consumers and
the environment. They strongly oppose abortion, and their
opinions reveal a strong streak of judicial activism dressed
up as traditional principle.
Priscilla Owen is among them. A protege of Bush confident
Karl Rove, who engineered her 1994 election to the Texas
Supreme Court, Owen is a nominee to a seat on the U.S. 5th
Circuit Court of Appeals. She comes before the Senate
Judiciary Committee today to defend a record of indifference
to the problems of most Americans.
Senators should ask her why, for example, she voted to
reverse a jury verdict in favor of a woman who had sued her
health insurance company for refusing necessary surgery to
remove her spleen and gallbladder. Her colleague on the Texas
high court, Alberto Gonzales, now Bush's top legal advisor,
dissented, writing that Owen's decision turned the legal
standard in that case ``on its head.''
Gonzales, a solid conservative himself, also took issue
with Owen in an abortion case that should draw tough
questions from Sen. Dianne Feinstein (D-Calif.), chairwoman
of today's hearing. Texas law allows pregnant teenagers in
some instances to seek permission from a judge to have an
abortion without their parents' consent. Owen has staunchly
opposed such ``judicial bypasses.'' In one case, Gonzales,
wrote, Owen's opinion would have ``create[d] hurdles that
simply are not found in the . . . statute'' and would be ``an
unconscionable act of judicial activism.'' in other cases,
her colleagues have accused her of ``inflammatory rhetoric.''
For all this, Owen's nomination puts Feinstein in a tough
spot. She was chairwoman last March when the Judiciary
Committee rejected Charles Pickering, another Bush pick for
the 5th Circuit. She is anxious to avoid being labeled
obstructionist. But given her repeated calls for mainstream
nominees, not to mention her long support for abortion
rights, Feinstein should vote no, and so should her
colleagues.
Although it is now one of the most conservative appellate
federal courts, the 5th Circuit has a long and honorable
history--defending civil rights during the 1960s and the
rights of asbestos workers, systematically deceived and
injured by their employers, in the 1970s. Owen would add
nothing positive to that legacy.
Americans want independent, common-sensical and capable
judges, not those whose political ideology--from either
direction--wins them a nomination. As long as Bush continues
to exclude the American Bar Assn. from the nomination
process, he should not be surprised that his choices draw
fire.
____

[From the San Antonio Express-News, July 21, 2002]

Bush Court Choice Should Be Rejected

Once competency is established, the most important
qualification for a judge is commitment to following the law
as it is written--regardless of personal philosophy.
Justice Priscilla Owen is clearly competent, but her record
demonstrates a results-oriented streak that belies
supporters' claims that she strictly follows the law.
Because of Owen's record as a member of the Texas Supreme
Court, the Senate Judiciary Committee should reject her
nomination to sit on the U.S. 5th Circuit Court of Appeals.
Her most infamous opinions involve cases in which minors
were seeking a legal bypass allowing them to get an abortion
without parental consent.
In those cases, she consistently landed in a small court
minority that opposes such bypasses, while a majority of her
fellow judges on an all-Republican court upheld the law as
legislators wrote it.
Former Justice Al Gonzales clearly pointed that out. In an
opinion that countered a dissent she supported, he wrote:
``To construe the Parental Notification Act so narrowly as to
eliminate bypasses, or to create hurdles that simply are not
to be found in the words of the statute, would be an
unconscionable act of judicial activism.''
Now serving as President Bush's White House counsel,
Gonzales is defending his former state court colleague.
However, opinions she wrote in the parental consent cases
show a clear line between strict constructionist judges and
activists.
Owen, who remains on the state's high court, is an
activist.
In recent years, judicial nomination struggles on Capitol
Hill have become a game, played by both parties, or petty
obstructionism.
The Senate should not block a judicial nominee simply
because he or she is more conservative or more liberal than
the Senate's majority party.
It also should not engage in petty personal attacks. But
concerns about Owen go to the heart of what makes a good
judge.
When a nominee has demonstrated a propensity to spin the
law to fit philosophical beliefs, it is the Senate's right--
and duty--to reject that nominee.
A hearing on Owen's nomination is set for this week.
Although Owen should be rejected for a lifetime
appointment, the Democrat-controlled Senate should have given
her a hearing long ago. Bush nominated Owen on May 9, 2001.
Owen and the president were owed better treatment. Even
nominees who are destined for rejection deserve timely
consideration, and the Democrats should pick up the pace in
considering Bush's judicial picks.
During his years as Texas governor, Bush did a masterful
job of selecting quality, moderate judges. But his decision
to nominate Owen is a disappointment.
We urge Bush to take more care in future nominations and
return to his previous policy of nominating judges who
believe in the law more than any ideological agenda.
____

[From the San Francisco Chronicle, July 23, 2002]

Feinstein's Decisive Moment

Sen. Dianne Feinstein, D-Calif., faces a momentous
decision. Today, the Senate Judiciary Committee will hold
hearings on Priscilla Owen, the president's candidate for a
lifetime appointment to the United States Court of Appeals
for the Fifth Circuit. With the committee divided along party
lines, Feinstein could cast the decisive vote.
When George W. Bush became president, he excoriated
judicial activism and vowed to nominate justices who
interpret the law, instead of trying to rewrite it.
Priscilla Owen simply does not satisfy the president's own
criteria for this position. According to a report issued by
People For the American Way, a liberal advocacy group, Owen
has demonstrated a disturbing pattern of overruling the law
when it clashes with her conservative ideology.
In one case, for example, Owen's dissenting decision would
have effectively rewritten a key Texas civil rights law by
making it more difficult for employees to prove
discrimination. Her colleagues on the bench--mostly Bush
appointees--wrote that her ruling ``defies the Legislature's
clear and express limits on our jurisdiction.''
With respect to reproductive rights, Owen advocated a far
more restrictive interpretation of the Texas law that allows
a minor to obtain an abortion without parental notification.
Her dissent prompted then-Justice Alberto Gonzales, now the
White House counsel, to write that her opinion constituted
``an unconscionable act of judicial activism.'' Gonzales,
naturally, now expresses the White House party line, hailing
Owen's integrity and ability. ``I'm confident she will follow
the law as defined by the Supreme Court,'' Gonzales was
quoted as saying in the San Antonio Express-News.
But close observers of her Texas record are less confident
of her objectivity. Danielle Tierney, a Planned Parenthood
spokeswoman from Texas, said Owen has ``a record of active
opposition to reproductive and women's rights.''
Owen has also tried to finesse laws that protect public
information rights, the environment, and jury findings.
The point is, Owen has created a strong record of
``rewriting'' the law when it does not match her conservative
convictions.
This is why it is vital that Feinstein reject this
nomination.
____

[From the Dallas Morning News, July 16, 2002]

Justice Owen: Perpetrator or Victim of Politics?

her activism has been extreme, even by texas standards

(By Craig McDonald)

Texas Supreme Court Justice Priscilla Owen, who faces a
Senate Judiciary Committee hearing Thursday on her nomination
to the 5th U.S. Circuit Court of Appeals, flunks the stated
judicial criteria of both President Bush and the Democratic
chairman of the Judiciary Committee.
Although the president nominated Justice Owen, she flunks
his own pledge to appoint ``strict constructionists'' who
narrowly interpret laws rather than write opinions promoting
a political agenda. ``I want people on the bench who don't
try to use their position to legislate from the bench,'' Mr.
Bush has said. Yet Justice Owen's record on the Texas Supreme
Court is one of a judicial activist who seeks to make laws
from the bench.

[[Page S8347]]

Justice Owen also flunks the criteria of Senate Judiciary
Committee Chairman Patrick Leahy, who has pledged to stop any
``ideological court packing.'' Justice Owen's record has
established her as an ideological extremist out of the
mainstream--even on the all-conservative Texas Supreme Court.
Justice Owen's extreme opinions have mobilized a large
coalition of Texas organizations working to stop her
appointment. The groups fighting her nomination range from
the Texas chapter of the American Association of University
Women to the Women's Health and Family Planning Association.
They include the AFL-CIO, the National Association for the
Advancement of Colored People, Planned Parenthood, the Texas
Civil Rights Project, the Texas Abortion Rights Action League
and others.
While each of those organizations has its own reasons for
opposing Justice Owen, my group--Texas for Public Justice--is
particularly troubled by the fact that she has amassed a body
of rulings that advance the agendas of the special interests
that bankrolled her judicial campaigns. Thirty-seven percent
of the $1.4 million that Justice Owen raised for her Supreme
Court campaigns came from donors with a direct stake in case
in her court.
Letting special interests bankroll judicial campaigns has
shattered public confidence in Texas courts. A 1999 Texas
Supreme Court poll found that 83 percent of Texans, 79
percent of Texas lawyers and 48 percent of Texas judges say
campaign contributions significantly influence judicial
decisions. Commenting on the poll, U.S. Supreme Court Justice
Anthony Kennedy said, ``The law commands allegiance only if
it commands respect. It commands respect only if the public
thinks judges are neutral.''
Since Justice Owen joined the high court in 1995, she has
written and joined a slew of opinions that favor businesses
over consumers, defendants over plaintiffs and judges over
lawmakers and juries. A 1999 study by Austin-based Court
Watch found that individuals won just 36 present of their
cases during Justice Owen's tenure, compared to a win rate of
66 percent for businesses, 70 percent for insurers and 86
percent for medical interests.
While all nine Texas Supreme Court justices are pro-
business conservatives, Justice Owen and Nathan Hecht became
an isolated bloc of extremist dissent about 1998.
Masquerading as ``strict constructionists,'' Justices Owen
and Hecht have promoted the interests of big business and the
far right with much less restraint than their fellow Texas
justices. That ultraconservative activism is all the more
disturbing, given that it mirrors the agenda of the top
donors to their judicial war chests.
In making lifetime appointments to federal appeals courts,
the president and the Senate can--and should--do better.
Justice Owen lacks criminal trial experience, has taken more
than $500,000 in judicial contributions from interests with
cases in her court and has produced a body of activist
opinions that are extremist--even by Texas standards.
____

[From the San Antonio Express-News, July 21, 2002]

Judge Owens Flunks Bush's Own ``Strict Constructionists'' Test

(By Jan Jarboe Russell)

In a perfect world, there wouldn't be ``liberal'' judges or
``conservative'' judges, there would just be good judges.
After all, if you ask ordinary people what they want in a
federal judge, what they want are judges who are fair,
learned and impartial, judges who have the ability to lay
aside their own political views and do their public duty.
Why then is it so darn hard to find these kind of plain-
and-simple judges? The answer, of course, is the dreaded P
word; politics. The ongoing battle in the Senate Judiciary
Committee over the nomination of Priscilla Owen to the 5th
U.S. Circuit Court of Appeals is a perfect example of how
politics is making a certifiable mess of America's judicial
system.
In seven years on the Texas Supreme Court, the only way
moderate-thinking people in Texas survived Owen's relentless
ultra-conservative dissents was to toughen our stomachs and
take her many efforts to rewrite our state laws one day at a
time. This is a woman who has consistently ruled against
consumers, has routinely overturned decisions of juries, has
curtailed access to public records, and by anyone's measure
is an avid anti-abortion ideologue.
Mind you: the Texas Supreme Court is no bastion of
liberalism. The nine members of the court are 100 percent
pedigree Republican, but Owen was such a right-wing activist
she managed to earn the nickname ``Justice Enron'' for
accepting $8,600 in Enron campaign funds in one year--$1,000
of it from Kenneth Lay himself--and turning around the next
and writing an opinion that saved Enron $225,000 in school
taxes.
As one of only nine states in the nation with the sorry
system of electing our judges with expensive campaigns paid
for by the very lawyers and businesses that come before these
judges for justice, Texas gets exactly the kind of justice we
deserve. In the case just mentioned, for example, Enron paid
for the privilege of robbing the public school children of
Spring, a Houston suburb, of their rightful share of taxes.
I don't expect President Bush to nominate judges to the
federal bench with whom I agree politically. But I do expect
Bush to nominate people to lifetime positions on the federal
bench who meet Bush's own standards of ``strict
constructionists,'' judges who will interpret rather than
write the law. Owen fails the Bush test.
In no less than a dozen cases in which the Texas Supreme
Court was asked to allow a pregnant teenager to bypass the
state's parental notification requirement and have an
abortion, Owen voted every time to deny the bypass and
created hurdles that were not written in the state's law. In
one case, when lawyers for a high school senior requested
that the court act quickly on the girl's request for
permission to bypass the notification requirement, Owen wrote
a dissent that asked: ``Why then the rush to judgment?'' The
girl was in the 15th week of pregnancy at the time.
Owen's rulings in these abortion notification cases were so
strident that Alberto Gonzales, now Bush's White House
counsel but then a member of the Texas Supreme Court, wrote
in a majority opinion that Owen and two other dissenting
justices were thwarting the clear intent of the law. To
accept their reasoning, he wrote, ``would be an
unconscionable act of judicial activism.''
Gonzales finds himself in the role of reluctant cheerleader
for Owen. In a telephone interview from his office in the
West Wing the other day, Gonzales claimed that he never
accused Owen of judicial activism and believes she would be
an excellent judge. His opinion has written in black-and-
white only two years ago--he clearly called her dissent an
``unconscionable act of judicial activism''--but maybe in his
struggle to find the gray, Gonzales meant that he thought all
of three of the judges were unconscionable. Who knows?
Politics makes people parse words very carefully.
Owen's political credentials are indeed impressive. She is
a protege of Karl Rove, the president's political adviser,
and it is Rove who is pushing her judicial nomination. But
politics should not be the primary measure of a judge's
ability to administer justice.
As much as it pains me to say it, Justice Enron should stay
put in Texas.
____

[From the Houston Chronicle, July 31, 2002]

DiFi, Owen Would Be Very Odd Couple

(By Cragg Hines)

Sen. Dianne Feinstein, a wonderfully calm, cool
Californian, loves to be the swing vote. It increases the
sense that she is unbought and unbossed, and it makes her
political currency slightly more valuable than that of
colleagues who fall predictably one way or another on an
issue.
Part of this is political tromp l'oeil, an illusion so
strong that it's difficult to tell it's not genuine. For,
when the roll is called, only rarely is Feinstein not
reliably found where she sought to be--in her regular center-
left Democratic pew.
Which brings us to the nomination of Justice Priscilla Owen
of the Texas Supreme Court to be a judge on the 5th U.S.
Circuit Court of Appeals, a place where the conservative
judicial activist, corporate suck-up and made member (blood
oath?) of the Federalist Society has no earthly place being.
Feinstein ran last week's hearing by the Senate Judiciary
Committee on Owen's nomination and said she was ``keeping an
open mind'' regarding President Bush's determination to give
Owen lifetime employment. (For the forgetful: Bush and Owen
both got their start in statewide politics as clients of the
White House political high priest, Karl Rove.)
Feinstein's self-advertised ``open mind'' is about the only
hope for supporters of Owen. The Judiciary Committee's nine
Republicans need one of the panel's 10 Democrats to vote with
them to get the nomination to the floor.
If the nomination is not cleared by the committee, it's
dead. None of this sending it to the floor without a
recommendation in a Senate with a one-vote Democratic margin
and run by Majority Leader Tom Daschle, D-S.D.
(Owen opponents would still like to hear something
definitive from two other Demoracts--Sen. Joseph R. Biden,
Jr. of Delaware, who did not show up for last week's hearing,
and the enigmatic gentleman from Wisconsin, Sen. Russell D.
Feingold--but the focus is on Feinstein.)
Owen's opponents believe that Feinstein will eventually
vote against the Texas jurist, but they cannot be absolutely
certain. Feinstein is not about to help them divine the
oracle at the moment.
``I've been giving it a great deal of thought,'' Feinstein
said this week as the Senate headed toward summer recess.
``I'm not going to let my decision be known, but at an
appropriate time, I will.
``What I've said, and I've taken this position, I think,
rather scrupulously, is that I don't make up my mind until
after the hearing.''
There was little in the hearing that should lead Feinstein,
or any senator, to believe that Owen is anything but the very
bright, very ideological, very driven hard-right jurist
revealed in her work over the last seven years on Texas'
highest civil court.
Finally, Sen. Richard J. Durbin, D-Ill, asked Owen directly
about her position on abortion.
``My position is that Roe v. Wade has been the law of the
land for many, many years . . . ,'' Owen said, noting that
decision had been modified (and made more restrictive by
subsequent rulings). ``None of my personal beliefs would get
in the way of me applying that law or any other law.''

[[Page S8348]]

But Owen's record, in a series of recent abortion-related
cases, suggests otherwise. In all but one of the cases, Owen
sought to tweak and torture the Texas law to something not
intended by the Legislature.
Feinstein was listening to all of this and, one assumes,
took it on board. In case she didn't, an editorial in The Los
Angeles Times the morning of the hearing should have helped:
The work of Owen and similarly situated conservative jurists
``reveal(s) a strong streak of judicial activism dressed up
as traditional principle.''
The home state newspaper parsed Feinstein's situation: She
also chaired the hearings earlier this year in which the
Judiciary Committee rejected Bush's nomination of Charles
Pickering of Mississippi for a seat on the 5th Circuit Court.
``She is anxious to avoid being labeled obstructionist,''
The Times said of Feinstein. ``But given the repeated calls
for mainstream nominees, not to mention her long support of
abortion rights, Feinstein should vote no, and so should her
colleagues.'' Feinstein said she weighs such opinion but that
it is not dispositive.
One piece of baggage Feinstein would like to discard in the
Owen matter is that her vote will have anything to do with a
business relationship that the senator's husband, Richard C.
Blum, has with Dr. James Leininger of San Antonio, a generous
supporter of Owen's judicial campaign.
``I've never met (Leininger), talked with him, seen him,
heard from him--and that's that,'' Feinstein said. Nor, she
said, ``have I ever talked to my husband about this, nor has
he ever talked to me about it.''
So Feinstein should be able to vote against Owen with a
clear conscience.
Mr. LEAHY. In part, this article says:

Senate Judiciary Committee Chairman Patrick Leahy has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously reported on
President Bush's choice of Federal District Judge Reena Raggi
of New York for the U.S. Circuit Court of Appeals for the
Second Circuit.

Parenthetically, I might add that Judge Raggi was originally
appointed by President Ronald Reagan, a conservative Republican who
promised to appoint only judges who satisfied his litmus test.

The American people appreciate balanced judging, and thanks
to the Senate Judiciary Committee, they're getting it.

I ask unanimous consent that the editorial be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Through constant repetition, conservatives have managed to
make a code phrase out of ``judicial activism,'' applying it
to rulings that in their mind go beyond the words in
legislation or the U.S. Constitution. But conservatives
themselves are hardly immune from the problem.
Case in point: Texas Supreme Court Justice Priscilla Owen,
rejected last week for the 5th U.S. Circuit Court of Appeals
by the Senate Judiciary Committee because of her record of
making law from the bench. The committee made the right
decision for the American people.
Owen's activist judging has gone so far beyond the statutes
enacted by the Texas Legislature that she was even criticized
by fellow conservatives on the state Supreme Court, including
Alberto Gonzales, who is now Bush's White House counsel.
On abortion, age and employment discrimination, insurance
and tax matters, the former corporate oil lawyer repeatedly
embellished the plain language of the law to rewrite it to
conform with her own ideological views. She also found ways
to side consistently with corporations, including Enron,
which contributed generously to her Supreme Court election
campaign.
President Bush has accused the Senate Judiciary Committee
of blind partisanship, but the facts don't bear that out. In
less than two years, the Democratic-controlled committee has
approved more Bush nominees for the federal bench than the
Republican-controlled Senate Committee did in six years with
President Clinton.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously confirmed Bush's
choice of Federal District Judge Reena Raggi of New York for
the 2nd U.S. Circuit Court of Appeals.
Nevertheless, Bush lashed out angrily at the Owen defeat:
``I don't appreciate it one bit, and neither do the American
people.''
Quite the contrary, Mr. President. The American people
appreciate balanced judging, and thanks to the Senate
Judiciary Committee, they're getting it.
Mr. LEAHY. Madam President, I ask unanimous consent for 1 more
minute, with another minute to be given to the Senator from Utah.
Mr. REID. Will the Senator yield?
Mr. LEAHY. Yes.
Mr. REID. I was going to go into a quorum call for 5 or 6 minutes
anyway. If the Senators would like 3 more minutes each or something,
that is fine. Otherwise, I will go into a quorum call.
Mr. LEAHY. Madam President, I ask unanimous consent for that time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, there was a suggestion made--I am sure
inadvertent--by the distinguished Senator from Utah that it was
unprecedented to see a nominee with a well-qualified rating be voted
against. Actually, the Senator from Utah has voted against such a
person, like Judge Rosemary Barkett of Florida, as have a number of
others. But then there were a whole lot of others who we can say were
not voted against? Why? Because they were never allowed to have a vote
during Republican control of the Senate.
This is a partial list of nominees who never had a vote, but they had
the highest rating possible: H. Alston Johnson from the Fifth Circuit
was never given a hearing by the Republicans; James Duffy from the
Ninth Circuit was never given a hearing; Kathleen McCree Lewis from the
Sixth Circuit was never given a hearing or a vote; Judge James Lyons,
from the Tenth Circuit, was never given a vote or a hearing; Allen
Snyder, from DC, had a hearing but no vote; Judge Robert Cindrich, from
the Third Circuit, was never given a hearing or a vote; Judge Stephen
Orlofsky, from the Third Circuit, was never given a hearing or a vote;
Judge Andre Davis, from the Fourth Circuit, was never given a hearing
or a vote; and Enrique Moreno, of the Fifth Circuit, was never given a
hearing and never given a vote.

These are people with the highest possible rating from the ABA.
Republicans can say they never voted against them. Why? Because they
were never brought up and never given a vote. If they had been given a
vote, they would have known where they stood.
My good friend from Utah, perhaps inadvertently, thought I was
comparing a time when he was not chairman. I do compare a time when he
was chairman. I will take the first 15 months that he was chairman with
a Democratic President.
The Democratic President nominees got 14 hearings in 15 months; the
Republican President nominees, under my chairmanship, got 23 hearings.
Nominees who received hearings under Republicans were 67; under the
Democrats with a Republican President, 84.
Nominees confirmed, 56; in the same period of time, it was 74 with
us.
Nominees voted on in committee: They allowed 61 during that 15
months. We have had votes on 82 of this President's judicial nominees.
It is nice to say nominations are not being handled fairly. The fact
is, if we used the Republican precedent as a mark of fairness, we would
not have to do anything else for the rest of the year because we are
way beyond what they did.
I reserve the remainder of my time.
Mr. HATCH. Madam President, how much time remains on each side?
The PRESIDING OFFICER. The Senator from Utah has 4 minutes 5 seconds.
Mr. HATCH. How much on each side?
The PRESIDING OFFICER. The Senator from Vermont has 7 seconds.
Mr. HATCH. Madam President, again, the Senator from Vermont and I are
friends, but I totally disagree with what he has been saying. It is a
smoke screen.
Allow me to address the fate of nominees first sent up by the first
President Bush. In fact, some pending today without a hearing who were
nominated by the first President Bush nearly 10 years ago. These are
nominees still on the list after 10 years that the Democrats have not
allowed to come up: Terrence Boyle for the Fourth Circuit and John
Roberts for the DC Circuit, considered one of the two or three greatest
appellate lawyers in the country before the Supreme Court; Henry Saad
for the Sixth Circuit; Ronald Leighton for the Western District of
Washington; and Richard Dorr for the Western District of Missouri. All
five of these nominees were nominated by the first President Bush,
better than 10 years ago, but never received committee action at that
time. I hope they, too, will soon

[[Page S8349]]

receive their long-awaited hearings and confirmation votes.
By the way, there were 42 left over at the end of the Clinton
administration. Nine of them were put up so late, there was no way
anybody could have gotten them through. That brings us down to 33, and
of the 33, there were others who did not have the support of both home-
State Senators. There were those who, for one reason or another, could
not make it.
Contrast that when Bush 1 left office and the Democrats were in
control. There were 54 left over. That is 11 more than were left when
President Clinton left office.
If you want to talk statistics, I can talk them all day long, and I
can tell you we have been much more fair than what we have seen in the
first 2 years of the Bush 2 administration.
I suggest that instead of spending our time talking about the same
small handful of Clinton nominees, we should focus on the ones pending
before us today who never saw the light of day the last time the
Democrats controlled the Senate.
Justice Owen, for instance--and this is an important point--is
literally the first one in history who had the support of both-home
State Senators, the highest rating of the American Bar Association, and
was voted down in committee and not even given a chance to have a vote
on the Senate floor.
Currently, there are 80 empty seats on the Federal judiciary. That is
a 9.3-percent vacancy rate, one of the highest in modern times. This
means that 9.3 percent of all Federal courtrooms are presided over by
an empty chair.
There are currently 21 nominees who are slated to fill positions
which have been declared judicial emergencies by the Administrative
Office of the Courts. Of those, 11 are Circuit Court of Appeals
nominees.
Only 5 of President Bush's first 11 circuit court nominees nominated
on May 9, 2001--a year and a half ago almost--have had hearings. In
other words, the Judiciary Committee has taken no action whatsoever on
nearly half of the circuit court nominations that have been pending for
over 16 months.
There is no reason for this other than stall tactics. All of these
nominees received qualified or well-qualified ratings from the American
Bar Association.
There were 31 vacancies in the Federal courts of appeals on May 9,
2001, and there are 28 today. The Senate Democrats are trying to create
an illusion of movement by creating great media attention and
controversy concerning a small handful of nominees in order to make it
look like progress. But we are not making any progress in filling
circuit vacancies.
President Bush has responded to the vacancy crisis in the appellate
courts by nominating a total of 32 top-notch men and women to these
posts--but the Senate is simply stalling them. Over the past year, the
Senate has confirmed only 13. There are still 19 Circuit Court nominees
pending in Committee. By comparison, at the end of President Clinton's
second year in office, we had confirmed 19 circuit judges and had 15
circuit court vacancies.
There were only two Circuit Court nominees left pending in committee
at the end of President Clinton's first year in office. In contrast,
there were 23 of President Bush's Circuit Court nominees pending in
Committee at the end of last year.
Some try to blame the Republicans for the vacancy crisis, but that is
bunk. At the end of the 106th Congress when I was chairman, we had 67
vacancies in the Federal judiciary. During the past 9 months, the
vacancy rate has been hovering right around 100. Today is at 80.
Some think that the point of ``advise and consent'' is to match
statistics from previous years. This rear-view-mirror driving is
nonsense. The Senate has a duty to exercise its advice and consent, and
it has done so on only 40 percent of President Bush's appellate court
nominations so far this Congress. The question is not: How many judges
should we let President Bush have? The question is: Is the Senate
getting its work done?
The Sixth Circuit Court of Appeals, which encompasses the states of
Michigan, Ohio, Kentucky and Tennessee, has only 8 of 16 seats filled,
leaving that court half-empty. The President has nominated 8
individuals to fill these vacancies, but only two have received a
hearing, despite the fact that two of these nominees have been pending
since May 9, 2001.
The U.S. Court of Appeals for the District of Columbia is also
functioning far below its normal capacity, with 4 out of 12 authorized
judgeships currently vacant. Although the President nominated Miguel
Estrada and John Roberts on May 9, 2001, to fill seats on this Court,
they have not yet been given a hearing.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. LEAHY. Madam President, last year when the Republicans controlled
the Senate Judiciary Committee, they did not hold one hearing on
President Bush's nominees. We have done 82.
Mr. GRAHAM. Mr. President, I would like to thank the Judiciary
Committee for recognizing the needs of Florida and favorably reporting
the nomination of Judge Kenneth A. Marra.
Ken Marra, a skilled and respected Judge in Florida's Fifteenth
Circuit, has been nominated to serve as a Federal judge in the busy
Southern District of Florida. If confirmed, he will fill a newly
created and much needed judgeship position.
Judge Marra's solid qualifications make him an ideal candidate for
service on the Federal bench. A circuit judge since 1996, he currently
serves in the Palm Beach County Court's civil, family and criminal
divisions. Before his tenure as a circuit judge, Judge Marra spent 16
years practicing commercial litigation in Palm Beach County and
Washington, DC. He also served as a trial attorney with the United
States Department of Justice.
Judge Marra is a graduate of the State University of New York at
Stony Brook and earned his law degree from the Stetson University
College of Law in 1977. Before attending law school, the judge taught
social studies to high school students in New York.
The strength of Judge Marra's nomination is evident from the strong
support that he has earned from his local bar. When asked to comment on
his nomination for a January 4 Palm Beach Post article, Amy Smith,
president of the Palm Beach County Bar Association, said, ``He is an
absolutely perfect choice: impeccable background, extremely
intelligent, consistently one of the highest rated judges in the
judicial evaluations done here.'' Ms. Smith said Marra's judicial
demeanor ``is gracious and humble. The President couldn't have made a
better choice.''
When the Palm Beach County Bar Association released its biennial
survey of circuit and county judges earlier this spring, Judge Marra
ranked the highest in the neutrality and fairness category, with 63
percent of the attorneys rating him as ``outstanding.''
In Florida, Judge Marra submitted his application to a judicial
nominating committee comprised of a diverse group of Floridians, who in
turn recommended three candidates to the President for consideration.
Senator Bill Nelson and I interviewed these candidates.
In summary, Mr. Marra is an intelligent, well-respected, and
qualified candidate for the Federal bench.
I appreciate the Senate's consideration of Judge Marra's nomination
and look forward to working with my colleagues to confirm additional
nominees to Florida's Southern and Middle Districts, two of the largest
and busiest judicial districts in the country.
The PRESIDING OFFICER. All time has expired.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Kenneth A. Marra, of Florida, to be United
States District Judge for the Southern District of Florida? The yeas
and nays have been ordered. The clerk will call the roll.
The bill clerk called the roll.
Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from Illinois (Mr. Durbin), the Senator from Iowa (Mr. Harkin),
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland
(Ms. Mikulski), the Senator from Washington (Mrs. Murray), are
necessarily absent.
Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard),
the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr.
Bunning), the Senator from Colorado

[[Page S8350]]

(Mr. Campbell), the Senator from New Hampshire (Mr. Gregg), the Senator
from North Carolina (Mr. Helms), the Senator from Arkansas (Mr.
Hutchinson), the Senator from Pennsylvania (Mr. Santorum), the Senator
from Alabama (Mr. Sessions), the Senator from Alabama (Mr. Shelby), the
Senator from New Hampshire (Mr. Smith), the Senator from Pennsylvania
(Mr. Specter), are necessarily absent.
The PRESIDING OFFICER (Mr. Nelson of Florida). Are there any other
Senators in the chamber desiring to vote?
The result was announced--yeas 82, nays 0, as follows:

[Rollcall Vote No. 211 Ex.]

YEAS--82

Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Burns
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Hagel
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Sarbanes
Schumer
Smith (OR)
Snowe
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NOT VOTING--18

Akaka
Allard
Bond
Bunning
Campbell
Durbin
Gregg
Harkin
Helms
Hutchinson
Lieberman
Mikulski
Murray
Santorum
Sessions
Shelby
Smith (NH)
Specter
The nomination was confirmed.
Mr. REID. I move to reconsider the vote.
Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the President will
be notified of the Senate's action.

____________________