STATEMENT BY SENATOR EDWARD M. KENNEDY ON NOMINATIONS OF PRISCILLA OWEN, WILLIAM MYERS, JANICE ROGERS BROWN, AND WILLIAM PRYOR
(As Prepared for Delivery)
Mr. President, there is no breakdown in the judicial confirmation process. Democrats in this closely divided Senate have cooperated with the President on almost all his nominations. The Senate has confirmed 208 of President Bush's 218 nominees in the past four years, most of whom are not people we would have chosen ourselves. 95% have been confirmed.
Only a handful did not receive the broad bi-partisan support needed for confirmation. Their records showed they would roll back basic rights and protections. Janice Rogers Brown, William Pryor, Priscilla Owen, and William Myers would erase much of the country's hard-fought progress toward equality and opportunity. Their stated values -- subordinating the needs of families to the will of big business, destroying environmental protections, and turning back the clock on civil rights -- are not mainstream values. Democrats have, under the Senate's Rules, declined to proceed on those nominees to protect America from their radical views.
The President has re-nominated William Pryor for the Eleventh Circuit, which includes the states of Florida, Alabama, and Georgia. Mr. Pryor's record makes clear that his views are far outside the legal mainstream. Mr. Pryor is no "conservative." Instead, he has pushed a radical agenda contrary to much of the Supreme Court's jurisprudence over the last forty years.
Mr. Pryor has fought aggressively to undermine Congress's power to protect individual rights. He's tried to cut back on the Family and Medical Leave Act, the Americans with Disabilities Act, and the Clean Water Act. He's criticized the Voting Rights Act. He's been contemptuously dismissive of claims of racial bias in the application of the death penalty. He's relentlessly advocated its use, even for persons with mental retardation. He's even ridiculed the Supreme Court justices, calling them "nine octogenarian lawyers who happen to sit on the Supreme Court." (He can't even get his facts right. Only two of the nine justices are 80 or older.)
Mr. Pryor's opposition to basic protections for the rights of the disabled is particularly troubling. In one case, Justice Scalia, for a unanimous Court, rejected his position that the Americans with Disabilities Act doesn't apply to state prisons.
In another case, the Supreme Court rejected his view that provisions of the Act ensuring that those with disabilities have access to public services is unconstitutional. In that case, a plaintiff who uses a wheelchair challenged the denial of access to a courthouse, where he had to crawl up the stairs to reach the courtroom. Mr. Pryor claimed that Congress could not require states to make public facilities accessible to the disabled. He said that because the disabled have "no absolute right" to attend legal proceedings affecting their rights, denying them access to courthouses does not violate the principle of equal protection.
The Supreme Court also rejected his radical view that executing retarded persons is not cruel and unusual punishment. And later, the Eleventh Circuit, a court dominated by conservative, Republican appointees, unanimously rejected Mr. Pryor's attempt to evade that Supreme Court decision. He had tried to prevent a prisoner with an IQ of 65 -- who even the prosecution agreed was mentally retarded -- from claiming that he should not be executed.
On women's rights, Mr. Pryor has criticized constitutional protections against gender discrimination. He dismissed as "political correctness" the Supreme Court's decision that a state-run military academy could not deny admission to women because of stereotypes about how women learn.
Mr. Pryor also has an especially troubling record on voting rights. In a 1997 statement to Congress, he opposed Section 5 of the Voting Rights Act, an indispensable tool for ensuring that all Americans have the right to vote, regardless of race or ethnic background. He called this important law "an affront to federalism" and "an expensive burden that has far outlived its usefulness."
In March, we commemorated the fortieth anniversary of Bloody Sunday, when Martin Luther King, Congressman John Lewis, and others were brutally attacked on a peaceful march in Mr. Pryor's home state of Alabama in support of voting rights for all, regardless of race. Yet now the Administration wants our consent to a nominee who opposes the Voting Rights Act. There's too much at stake to risk confirming a judge who would turn back progress on protecting the right to vote.
It's no surprise that civil rights leaders oppose Mr. Pryor's nomination, including Reverend Fred Shuttlesworth, a leader in the Alabama movement for voting rights, Reverend C.T. Vivian, and many of Dr. King's other close advisors and associates.
There can be no doubt that Mr. Pryor sees the federal courts as a place to advance his political agenda. When President Bush was elected in 2000, Mr. Pryor gave a speech praising his election as the "last best hope for federalism." He ended his speech with these words -- a "prayer for the next administration: Please God, no more Souters."
In another speech, he said he was thankful for the Bush v. Gore decision. "I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." His call to politicize the Supreme Court shows that he views the courts as places to make law, not interpret it.
The real question is why, when there are so many qualified Republican attorneys in Alabama, the President would choose such a divisive nominee? Why pick one whose record raises so much doubt as to whether he will be fair? Why pick one who can muster only a rating of partially unqualified from the American Bar Association? The Administration has given us no good answers to these questions, because there are none. Mr. Pryor is clearly on the far fringe of legal thinking, and not someone who should be given a life-time appointment to the courts of appeals. Of course we oppose the attempt to break Senate rules to put Mr. Pryor on the court. That is what our founding fathers would have wanted us to do, not to act as a rubber stamp for the Administration.
Priscilla Owen -- whose nomination the Senate is debating today -- is another candidate on the far fringes of legal thinking. Her record raises equally grave concerns that she would try to remake the law. Four times, the Senate has declined to confirm her, because of concerns that she won't deal fairly with the wide range of cases that come before the Fifth Circuit, especially on issues of major concern to workers, consumers, victims of discrimination, and women exercising their constitutional right to choose.
Yet the President chose to provoke a fight in the Senate by renominating her, among other plainly unacceptable nominees whom the Senate declined to confirm in the last Congress. Nothing has changed since we last reviewed her record to make Justice Owen worthy of confirmation now.
Her supporters argue that she is being opposed solely because of her hostility to women's constitutionally-protected right to choose. In fact, her nomination raises a wide range of major concerns, because she so obviously fails to approach cases fairly and with an open mind. As the San Antonio Express-News has stated, her "record demonstrates a results-oriented streak that belies supporters' claims that she strictly follows the law."
It's not just Senate Democrats who question her judicial activism and willingness to ignore the law. Even newspapers that endorsed her for the Texas Supreme Court now oppose her confirmation after seeing how poorly she served as a judge. The Houston Chronicle wrote that her "record shows less interest in impartially interpreting the law than in pushing an agenda," and that she "too often contorts rulings to conform to her particular conservative outlook." It noted that "It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans."
The Austin American-Statesman wrote that Priscilla Owen "is so conservative, she places herself outside of the broad mainstream of jurisprudence," and that she "seems all too willing to bend the law to fit her views."
The San Antonio Express-News said that "[w]hen 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."
Her colleagues on the conservative Texas Supreme Court have repeatedly described her in the same way. They state that Justice Owen puts her own views above the law, even when the law is crystal clear. Her former colleague on the Texas Supreme Court, our Attorney General Alberto Gonzales, has said she was guilty of "an unconscionable act of judicial activism."
Some claim that Attorney General Gonzales didn't mean what he said. But in fact, Justice Gonzales' separate opinion specifically rejected the dissenting position subscribed to by Justice Owen. He emphasized that the majority opinion was based on the text of a law written by the Texas Legislature. He said, "[o]ur role as judges requires that we put aside our own personal views of what we might like to see enacted, and instead do our best to discern what the Legislature actually intended."
Justice Gonzales went on to say that the opinion she subscribed to, set forth narrow standards contrary to the intent of the legislature. "I respectfully submit that these are policy decisions for the Legislature," he said. And this is what he clearly criticized as "unconscionable activism."
Justice Gonzales' statement that her position in this case was "an unconscionable act of judicial activism" was not a random remark. Not once, not twice, but numerous times, Justice Gonzales and his other colleagues on the Texas Supreme Court have noted that Priscilla Owen ignores the law to reach her desired result.
In one case, Justice Gonzales held that Texas law clearly required manufacturers to be responsible to retailers that sell their products if those products are defective. He wrote that Justice Owen's dissenting opinion would "judicially amend the statute" to let manufacturers off the hook.
In 2000, Justice Gonzales and a majority of the Texas Supreme Court upheld a jury award holding the Texas Department of Transportation and the local transit authority responsible for a deadly auto accident. He explained that the result was required by the "plain meaning" of Texas law. Justice Owen dissented, claiming that Texas should be immune from these suits. Justice Gonzales wrote that she misread the law, which he said was "clear and unequivocal."
In another case, Justice Gonzales joined a majority that criticized Justice Owen for "disregarding the procedural limitations in the statute," and "taking a position even more extreme" than had been argued by the defendant.
In another case in 2000, landowners claimed a Texas law exempted them from local water quality regulations. The court's majority ruled that the law was an unconstitutional delegation of legislative authority to private individuals. Justice Owen dissented and sided with the large landowners including contributors to her campaign. Justice Gonzales joined a majority opinion criticizing her view, stating that most of her opinion was "nothing more than inflammatory rhetoric which merits no response."
Justice Gonzales also wrote an opinion holding that an innocent spouse could recover insurance proceeds when her co-insured spouse intentionally set fire to their insured home. Justice Owen joined a dissent that would have denied coverage of the spouse, on the theory that the arsonist might somehow benefit from the court's decision. Justice Gonzales' majority opinion stated that her argument was based on a "theoretical possibility" that would never happen in the real world, and that violated the plain language of the insurance policy.
In still another case, Justice Owen joined a partial dissent that would have limited the basic right to jury trials. The dissent was criticized by the other judges as a "judicial sleight of hand" to bypass the Texas Constitution.
Priscilla Owen is one of the most frequent dissenters on the conservative Texas Supreme Court in cases involving basic protections for workers, consumers, and victims of discrimination. That court is dominated by Republican appointees, and is known for frequently ruling against plaintiffs. Yet, when the Court rules in favor of plaintiffs, Justice Owen usually dissents, taking the side of the powerful over individual rights.
She has limited the rights of minors in medical malpractice cases. She has tried to cut back on people's right to relief when insurance company claims are unreasonably denied, even in cases of bad faith. Her frequent dissents show a pattern of limiting remedies for workers, consumers, and victims of discrimination or personal injury.
She dissented in a case interpreting a key Texas civil rights law that protects against discrimination based on age, race, gender, religion, ethnic background, and disability. Justice Owen's opinion would have required employees to prove discrimination was the only reason for the actions taken against them -- even though the law clearly states that workers need only prove that discrimination was one of the motivating factors. Justice Owen's view would have changed the plain meaning of the law to make it nearly impossible for victims of discrimination to prevail in civil rights cases.
She joined an opinion that would have reversed a jury award to a woman whose insurance company had denied her claim for coverage of heart surgery bills. Many other such cases could be cited.
Justice Owen also dissented in a case involving three women who sought relief for intentional infliction of emotional distress on the job because of constant humiliating and abusive behavior by their supervisor.
The supervisor harassed and intimidated employees by the daily use of profanity; by screaming and cursing at employees; by charging at employees and physically threatening them; and by humiliating employees, including making an employee stand in front of him in his office for as long as thirty minutes while he stared at her. The employees he harassed suffered from severe emotional distress, tension, nervousness, anxiety, depression, loss of appetite, inability to sleep, crying spells and uncontrollable emotional outbursts as a result of his so-called supervision. They sought medical and psychological help because of their distress.
Eight Justices on the Texas Court agreed that the actions, viewed as a whole, were extreme and outrageous enough to justify the jury's verdict of intentional infliction of emotional distress. Justice Owen wrote a separate opinion, stating that while she agreed that there was evidence to support the women's case, she thought most of it was "legally insufficient to support the verdict."
Justice Owen's record is particularly troubling in light of the important issues that come before the Fifth Circuit, which is also one of the most racially and ethnically diverse Circuits, with a large number of low-income workers, Latinos, and African-Americans. It is particularly vital that judges on the court are fair to workers, victims of discrimination, and those who suffer personal injuries.
Some have said that those who raise questions about Justice Owen's record are somehow smearing her personally. That's untrue and unfair. Each of us has a responsibility to review her record and to take seriously the problems we find.
That means taking seriously the rights of persons like Ralf Toennies, who was fired at age 55, and found that Justice Owen wanted to impose obstacles to his age discrimination claim that were nowhere in the statute. We must take seriously the rights of the women employees criticized by Justice Owen for their testimony on workplace harassment in the emotional distress case. We can't ignore the rights of the millions of families who live in the Fifth Circuit states of Texas, Louisiana, and Mississippi. Finally, Justice Owen's supporters have also suggested that she should be confirmed to the Court of Appeals because Texas voters elected her to their Supreme Court.
Obviously, there is a huge difference between state judges who must submit to local elections to keep their positions and federal judges who are lifetime appointees, and are not meant to respond to popular opinion. If we confirm Justice Owen to the Fifth Circuit, she will serve for life. So our responsibility as Senators is very different. The record of each nominee for a federal judgeship is carefully considered by Senators from all 50 states.
Likewise, the fact that she received a high rating from the American Bar Association or did well on the bar exam does not erase her disturbing record. Priscilla Owen's record raises major questions about her commitment to the basic rights guaranteed by the Constitution to all our citizens.
The majority leader has indicated that he will soon begin debate on yet another extreme, right-wing nominee, Janice Rogers Brown, whom the President has nominated for the very important D.C. Circuit. Janice Rogers Brown's record on the California Supreme Court makes clear that -- like Priscilla Owen -- she's a judicial activist who will roll back basic rights. When she joined the California Supreme Court, the California State Bar Judicial Nominees Evaluation Commission had rated her "not qualified," and "insensitive to established legal precedent" as a member of the state court of appeals.
All Americans, wherever they live, should be concerned about her nomination to the D.C. Circuit, which interprets federal laws that protect our civil liberties, workers' safety, and our ability to breathe clean air and drink clean water in our communities. Only the D.C. Circuit can review the national air quality standards under the Clean Air Act and national drinking water standards under the Safe Drinking Water Act. This court also hears the lion's share of cases involving rights of employees under the Occupational Safety and Health Act and the National Labor Relations Act.
Yet Janice Rogers Brown's record shows a deep hostility to civil rights, to workers' rights, to consumer protection, and to a wide variety of governmental actions in many other areas -- the very issues that predominate in the D.C. Circuit.
Perhaps most disturbing is the contempt she has repeatedly expressed for the very idea of democratic self-government. She has stated that "where government moves in, community retreats [and] civil society disintegrates." She has said that government leads to "families under siege, war in the streets." In her view, "when government advances . . . freedom is imperiled [and] civilization itself jeopardized."
She has criticized the New Deal, which gave us Social Security, the minimum wage, and fair labor laws. She's questioned whether age discrimination laws benefit the public interest. She's even said that "Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much 'free' stuff as the political system will permit them to extract."
No one with these views should be confirmed to a federal court and certainly not to the federal court most responsible for cases affecting government action. It's no wonder that an organization seeking to dismantle Social Security is running ads supporting her nomination to the second most powerful court in the country.
Janice Rogers Brown has also written opinions that would undermine civil rights. She has held, for example, that the First Amendment prevents courts from granting injunctions against racial slurs in the workplace, even when those slurs are so pervasive that they create a hostile work environment in violation of federal job discrimination laws. In other opinions, she has argued against allowing victims of discrimination to obtain relief in state courts, or to obtain damages from administrative agencies for their pain and suffering. She has rejected binding precedent on the constitutional limits on an employer's ability to require employees to submit to drug tests.
Americans should be concerned that President Bush has selected William Myers for the important Ninth Circuit court of appeals. Mr. Myers is a long-time mining and cattle industry lobbyist. He has compared federal laws protecting the environment to "the tyrannical actions of King George" over the American colonies. He has denounced our environmental laws as "regulatory excesses."
In the Interior Department, he served his corporate clients instead of the public interest. As Solicitor of Interior, he tried to give public land worth millions of dollars to corporate interests. He issued an opinion clearing the way for mining on land sacred to Native Americans, without consulting the tribes affected by his decision -- although he took the time to meet personally with the mining company that stood to profit from his opinion.
William Myers is a particularly inappropriate choice for the Ninth Circuit, which contains many of America's most precious natural resources and national parks, including the Grand Canyon and Yosemite National Park, and which is home to many Native American tribes. The Ninth Circuit decides many of the most important environmental disputes affecting America's natural heritage.
It has a special role in safeguarding the cultural and religious heritage of the first Americans. It deserves an impartial judge who will deal fairly with environmental claims, not a mining company lobbyist clearly opposed to environmental protections. The Ninth Circuit needs judges who will respect Native American rights, not a judge whom the head of the National Congress of American Indians has called the "worst possible choice" for Native Americans.
Yesterday we celebrated the 51st anniversary of the Supreme Court's historic decision in Brown v. Board of Education. It is a timely reminder of the important role that courts play in upholding the rights of the most vulnerable persons in our society.
On May 17, 1957, the third anniversary of Brown, Martin Luther King hailed the decision as "a great beacon light of hope to millions . . . who had dared only to dream of freedom." He reminded us of the need "to place judges on the benches . . . who will 'do justly and love mercy.'" That is what we must remember when we decide whether to confirm judges to the lifetime appointments on the federal courts. We must ensure that we confirm judges who will uphold individual rights, even against powerful corporate or governmental interests.
The nation's founders understood that those in power might believe that the rules that most Americans live by don't apply to them. That's why they put in place a democracy that preserves our rights and freedoms through checks and balances. These checks and balances protect our mainstream values by preventing one party from arrogantly imposing its extreme views on the nation. Without these checks and balances -- without the right to debate -- the Senate will be nothing more than a rubber stamp for a President's nominees.
History will judge us harshly if we don't stand tall against the brazen abuses of power demonstrated by these nominees. The issues at stake in these nominations go well beyond partisan division. The basic values of our society -- whether we will continue to be committed to fairness and opportunity and justice for all -- are at issue.
Many well-qualified, fair-minded nominees could be quickly confirmed if the Bush Administration would give up the right-wing litmus test it applied to these nominees. Why, when there are so many qualified Republican attorneys, would the President choose nominees whose records raise so much doubt about whether they will follow the law? Why force an all-out battle over a few right-wing nominees, when the nation has so many more pressing problems, such as national security, the economy, education, and health care?
President Bush knows how to pick mainstream judges when he wants to. As I said at the outset, 208 of his 218 picks have made it through the Senate. But when a nominee gets strong opposition from 41 or more Senators, that's a very reliable indication that the nomination is a non-starter, and the President is well-advised to re-think it.
The idea that we have abused the filibuster is nonsense. We have used it as a last resort when the President has ignored our advice. And our advice is: Pick mainstream, moderate judges who will uphold the individual rights of all Americans -- not radical ideologues like Priscilla Owen, William Myers, Janice Rogers Brown, and William Pryor.
Of all the qualified Republican attorneys, why chose Priscilla Owen, whose own colleagues on the conservative Texas Supreme Court say bends the law to reach a desired result?
Why pick William Pryor, who opposes rights for the disabled, voting rights, and the Family Medial Leave Act, and who contemptuously calls the Supreme Court "nine octogenarian lawyers"?
Why pick William Myers who opposes environmental protections and tried to give away valuable public lands?
And why pick Janice Rogers Brown -- who thinks senior citizens "cannibalize their grandchildren" by seeking support from society in their old age?
Neither the Constitution, nor Senate Rules, nor Senate precedents, nor American history, provide any justification for the Majority Leader's attempt to selectively nullify the use of the filibuster to push through these radical nominees. Equally important, neither the Constitution nor the Rules nor the precedents nor history provide any permissible means for a bare majority of the Senate to take that radical step without breaking or ignoring clear provisions of applicable Senate Rules and unquestioned precedents. Here are some of the rules and precedents that the executive will have to ask its allies in the Senate to break or ignore, in order to turn the Senate into a rubber stamp for nominations:
- First, they will have to see that the Vice President himself is presiding over the Senate, so that no real Senator needs to endure the embarrassment of publicly violating the Senate's rules and precedents and overriding the Senate Parliamentarian, the way our presiding officer will have to do; - Next, they will have to break Paragraph 1 of Rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule; - Then they will have to break paragraph 2 of Rule V, which provides that the Senate Rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules; - Then they will have to break paragraph 2 of Rule XXII, which requires a motion signed by 16 Senators, a two-day wait and a 3/5 vote to close debate on the nomination itself; - They will also have to break Rule XXII's requirement of a petition, a wait, and a 2/3 vote to stop debate on a Rules change; - Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the presiding officer but must be referred by the Presiding officer to the entire Senate for full debate and decision; - Throughout the process they will have to ignore, or intentionally give incorrect answers to, proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the parliamentarian, would make clear that they are breaking the rules; - Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the Minority Leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections.
By this time, all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the pre-emptive Republican nuclear strike on the Senate floor.
To accomplish their goal of using a bare majority vote to escape the rule requiring 60 votes to cut off debate, those participating in this charade will, even before the vote, already have terminated the normal functioning of the Senate. They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war. The battle begins when the perpetrators openly, intentionally and repeatedly, break clear rules and precedents of the Senate, refuse to follow the advice of the Parliamentarian, and commit the unpardonable sin of refusing to recognize the minority leader.
Their hollow defenses to all these points demonstrate the weakness of their case:
They claim, "We are only breaking the rules with respect to judicial nominations; we promise not to do so on other nominations or on legislation." No one seriously believes that. Having used the nuclear option to salvage a handful of activist judges, they will not hesitate to use it to salvage some bill vital to the credit card industry, or the oil industry or the pharmaceutical industry, or Wall Street, or any other special interest. In other words, the Senate majority will always be able to get its way, and the Senate our founders created will no longer exist. It will be an echo chamber to the House, where the tyranny of the majority is so rampant today.
One of the greatest privileges of my life is serving the people of Massachusetts in the United States Senate. And I am reminded every day of my obligation to speak up for them and to fight for their concerns, their hopes, and their values in this chamber.
Many brave leaders from Massachusetts held the seat that I hold today in the United States Senate.
This seat was held by John Quincy Adams, who went on to become our sixth president, and was a great champion of free speech. He refused to be silenced.
Charles Sumner was the Senate's leading opponent of slavery. He was beaten to within an inch of his life for speaking up for his convictions. It took him three years to recover from his injuries and return to the Senate to speak out against slavery once again. He refused to be silenced.
Daniel Webster, one of our nation's greatest orators and the architect of the Great Compromise of 1850. He spoke up for a united America with the words "liberty and union, now and forever, one and inseparable." You can hear his words ringing through these halls even now. He refused to be silenced.
Henry Cabot Lodge, the Republican, opposed President Wilson's efforts to join the League of Nations. He was the leading Republican voice on foreign policy in his time. He refused to be silenced.
John F. Kennedy not only was a champion of working people in Massachusetts, but he also battled intolerance, injustice, and poverty during his time in the Senate. He, too, refused to be silenced.
These great Senators are remembered and respected in our history because they spoke up for their convictions. They were not intimidated. They did not back down from their beliefs. They would not be muzzled. They would not be gagged. They would not be silenced.
And it will be a sad day for our democracy if the voices of our nation's elected representatives can no longer be heard.