Nomination of Priscilla Owen to be United States Circuit Judge for the Fifth Circuit (Continued)

NOMINATION OF PRISCILLA OWEN TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Mr. SCHUMER. Madam President, I want to thank our leader on the Judiciary Committee for his indefatigable efforts to keep the bench nonpartisan, or bipartisan, or at least moderate, as much as he has done. History will look back very kindly on the leadership of the Senator from Vermont and say that he made a courageous fight. Many of us are proud to be at his side in that fight.
    
I will speak for a few minutes about the nomination of Judge Owen. The issue is not whether Judge Owen is a conservative; it is whether she will take her own views and subrogate them to the views of what the law is. If we look at her history, time and time again Judge Owen has been unwilling to follow the law and instead impose her own very conservative ideology on the courts. She is clearly not a moderate, but it is not even that she is a conservative that bothers many of us. I have voted for over 100 judges that the President has nominated, and the vast majority could clearly be classified as conservative. In fact, what worries us about Judge Owen is that she is what conservatives used to excoriate, an activist, somebody who will impose her own views because she feels them so strongly and passionately.
    
I respect people who feel things passionately. I do. But when someone is a judge, that is not what they should bring to the bench. It is not really passion, except in rare instances, that serves the bench well. It is, rather, an ability to understand the law and follow it.

I do not have many doubts that Judge Owen understands the law. She is a bright person. I have very real doubts whether she will follow it.
    
Conservative members of the Texas bench, none other than Judge Gonzales, now the President's counsel, have pointed out in instance after instance where Judge Owen has simply gone far afield and imposed her own views rather than do what the Founding Fathers wanted. I speak of the Founding Fathers, and it is a timely coincidence that our leader from West Virginia has come in. He has been the guardian of the Constitution, and he could tell us better than anyone else that the Founding Fathers asked—judges to interpret the law, not make law. The great irony, as we go through these debates, is that in the 1960s and 1970s the hue and cry of people of Judge Owen's philosophy was that judges are making law from the bench.
    
I had some sympathy for those arguments then. I have sympathy now, even though I might be very sympathetic to the laws they were making. But now, all of a sudden we have had nominee after nominee who are not activists from the left but activists from the right. It is quite logical that if one is on either the far left or the far right, they will have much more of a desire—there are exceptions to every rule but much more of a desire to impose law rather than interpret law, and of all the nominees who have come before us, Judge Owen seems to be the apotheoses of that view because in case after case that is exactly what she has done.
    
Many of us believe, for instance, that Miguel Estrada would do the same thing, but he does not have a record and he refuses to answer questions. But with Judge Owen, the record is crystal clear that in instance after instance she has not subrogated her own personal feelings but, rather, let them dominate her decisionmaking. That is not what a judge ought to be.
    
We will defeat this motion for cloture, and I am glad we will. History will look kindly on that as well because never has a President of the United States been more ideological in his selection of judges, never.
    
I have been studying the history and for the first time, this President—whether because he wants to win political favor of the hard right or because he believes it himself, I do not know; I have not discussed it with him—this President wishes to change America through the article III section of Government, the judiciary. And so nominee after nominee is not just a mainstream conservative but somebody who wears their views on their sleeve and is not at all shy about imposing those views on court decisions.
    
So those of us on this side who are opposing Judge Owen, and some of the other judges, believe that we are fighting for the Constitution, we are fighting for what the Founding Fathers intended judges to be, we are fighting a President who is more ideological in his selection of judges than any, and we will continue this fight.
    
I have seen our caucus. We were hesitant when we took the first steps. We are stronger. I think we feel this issue more passionately than before, not at all for political reasons. I can't tell you where the political chips fall out on this one. It is a rather esoteric issue. A few people in America on each side feel strongly about the issue but most do not. We know we are doing the right thing.
    
I am proud of our caucus. I am proud of this moment today. I think it is so important to try to get the President to back off this plan, which is so out of the thinking of the Founding Fathers, to make law from the one nonelected section of the Government, the judiciary, the article III section.
    
So I will stand proudly today and move that we not go to vote on Judge Owen, not because she has not answered questions. To her credit, she was more forthright than Miguel Estrada and, frankly, than John Robert of yesterday but, rather, because she does not represent the kind of judge the Founding Fathers wanted and America should have. I hope we can defeat her.
    
I yield my remaining time back to our leader from Vermont.