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Public Statements

Executive Session

Location: Washington, DC



Mr. COBURN. Mr. President, what is the matter pending before the Senate at this time?

The PRESIDING OFFICER. The nomination of Priscilla Owen.

Mr. COBURN. I thank the Chair.

Mr. President, I would like to spend a few minutes talking about what we have heard on the Senate floor today. The Presiding Officer and I are new Members to the Senate. We were not here as this struggle began. I must say, I am pretty deeply saddened by the misstatements of fact, the innuendo, the half-truths we have heard on the Senate floor today. I also am somewhat saddened by the fact that the Constitution is spoken about in such light terms. Because what the Constitution says is that, in fact, the Senate sets its own rules and the Senate can change its own rules. The first 100 years in this body, there was not a filibuster, and that filibuster has gone through multiple changes during the course of Senate history.

I pride myself on not being partisan on either the Democratic or the Republican side. I am a partisan for ideas, for freedom, for liberty. I am also a partisan for truth. I believe, as we shave that truth, we do a disservice not only to this body, but we also do a disservice to the country.

Another principle I am trying to live by is the principle of reconciliation. As we go forward in this debate, it is important for the American people to truly understand what the history is in this debate. At the beginning of the Congress, the majority, whether it be Democrat or Republican in any Congress, whoever is in control, has a right to set up the rules.

Those rules were set up in this Congress with one provision--that an exception be made on the very issue we are talking about today. Why was that exception put there? That exception was put there in an attempt to work out the differences over the things that have happened in the past so we would not come to this point in time. I believe the majority leader, although maligned today on the floor, has made a great and honest effort to work a compromise in the matter before us.

I also believe what has happened in the past in terms of judges not coming out of committee probably has been inappropriate. That is not a partisan issue either. It has happened on both sides. As a matter of fact, there are appellate judges now being held up by Democratic Senators because they disagree on their nomination to come through the Judiciary Committee.

As a member of the committee and a nonlawyer on the Judiciary Committee, it is becoming plain to me to see the importance of the procedure within the committee.

Having said that, the Constitution gives the right to the President to appoint, under the advice and consent of the Senate. The debate is about whether we will take a vote.

President Bush's appellate court nominees have the lowest acceptance rate of any of the last four Presidents.

Is that because the nominees are extreme? Or is there some other reason why we are in this mess that we find ourselves in? I really believe it is about the question: where do Supreme Court judges come from? They come from the appellate courts most often. And whether or not we allow people--good, honest people--to put their names forward and come before this body and have true advice and consent is a question we are going to have to solve in the next couple of weeks.

There are lots of ways of solving it. One is doing what Senator Byrd did four times in his history as leader of this body--a change in the rules by majority vote because the majority has the majority. That is not a constitutional option; that is a Byrd option. That is an option vested in the power of the Senate under the Constitution to control the rules of the Senate.

Another little bit of history. Twenty-five years ago, the filibuster was eliminated on the Budget and Reconciliation Act. The Congress didn't fall apart. Under Senator Byrd's changes of the rules, the Senate did not fall apart. So the issue really is about whether or not the majority has the power to control the rules in the Senate. And the debate also is about whether or not we are going to have an up or down, a fair vote on judges--just like we should have a debate on whether we should have a process change in the Judiciary Committee for those judges who are appointed by any President to come through.

I said in my campaign for this office that conservative and liberal wasn't a test for me for judges. The foundation and principles of our country, and proof of excellence in the study of and acting on the law should be the requirements. We had the unfortunate example today--this week--of a Federal judge in Nebraska negating a marriage law that defined marriage as between a man and a woman--an appointed judge deciding for the rest of us--it could very well decide for all 50 States--whether or not we are going to recognize marriage as between a man and a woman. We have heard Priscilla Owen's name linked several times because of her decisions--there were 13 or 14 decisions that came before the Texas Supreme Court on judicial review of a minor's access to an abortion without parental notification--not consent, but notification.

In the one case that they bring up and misquote Attorney General Gonzales on, she in fact did what the law said to do. The federal appellate court is not entitled, nor is the Supreme Court of Texas, to review the findings of fact. The finder of fact is the original court. They cannot make decisions on that. So she dissented on that basis. Judge Gonzales' statement was about whether or not he could go along with that in terms of what would be applied to him in terms of judicial activism. He has since said under oath that in no way, or at any time, did he accuse Priscilla Owen of being a judicial activist.

Let's talk about activism. I want to relate a story that happened to me about 6 years ago. I was in Stigler, OK, having a townhall meeting. A father walked in, 35 years of age, with tears running down his cheek. In his hand, he had a brown paper sack, and he interrupted this meeting between me and about 60 people. His question to me was: ``Dr. Coburn, how is it that this sack could be given to my 12-year old daughter?'' Of course, I didn't know what was in the sack. What was in the sack was birth control pills, condoms, and spermicide. The very fact that his daughter could be treated in a clinic without his permission for contraceptives came about through judicial activism. The fact is that 80 to 85 percent of the people in this country find that wrong. Yet, it cannot be turned around. The fact is that 80 percent of the people in this country believe that marriage is defined as that union between a man and a woman, and a Federal judge--not looking at the Constitution--not looking at precedent, actually makes that change.

So it is a battle about ideas. Priscilla Owen recognizes what the law is. She has stated uniformly that she will follow the precedents set before the court. But we have gotten to where we are in terms of the issues that inflame and insight so much polarization in this body and throughout the country because we have not had people following the law, but in fact we have had judicial activism.

I congratulate President Bush for sending these nominees to the Senate floor. I have interviewed Priscilla Owen. Her history, her recommendations, her ratings are far in excess of superior. So why would this wonderful woman, who has dedicated her life to the less fortunate, to families, to reinstituting and strengthening marriage, to making sure people who didn't have legal aid had it, why is she being so lambasted, so maligned because of her beliefs? The beliefs she has are what 80 percent of the people in this country have, but she doesn't fit with the beliefs of the elite liberal sect in this country.

So it is a battle of ideas. It is a battle that will shape the future of our courts. How is it that a woman of such stature will have the strength to withstand for 4 years--she has put everything about her, every aspect of her personal life, her public life, her judicial career out front and has stood strong to continue to take the abuse and maligning language that comes her way. Why would somebody do that? It is because she believes in this country. She believes in the foundational principles that our colleague from New York held up in the Constitution. She has sworn and believes in that Constitution. She has the courage to know that the fight for our children, for our parents to control the future for our children, is worth the fight.

I would like to spend a minute going over some poll numbers with the American public on the very issue of whether or not a minor child ought to have parental involvement in a major procedure such as an abortion.

Having delivered over 4,000 babies, having handled every complication of pregnancy that is known, I am very familiar with these issues.

There are five polls I would like to put in the RECORD. I ask unanimous consent that they be printed in the RECORD.

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


Mr. COBURN. One is a March 2-7, 2005, poll from Quinnipiac University:

Do you favor or oppose requiring parental notification before a minor could get an abortion?

That is notification. Seventy-five percent of the people in this country agree with that. It is not an extreme position when 75 percent of our fellow Americans think that is right--think that in fact we don't give up rights to our children until they are emancipated and are adults.

Next, do you favor or oppose each of the following proposals: A law requiring women under 18 to get parental consent for any abortion?

That is not notification, that is consent. That is a CNN/USA Today/Gallup poll, January 10, 2003.

Seventy-three percent favor parents being involved in the health care of their children and major decisions that will affect their future.

Do you favor or oppose requiring that one parent of a girl who is under 18 years of age be notified before an abortion is performed on the girl?

Eighty-three percent favor the parent being notified. That is a Wirthlin Worldwide poll.

Should girls under the age of 18 be required to get the consent of at least one parent before having an abortion?

That is a Los Angeles Times poll. Eighty-two percent believe that.

What is described as extreme is mainline to the American public. What we have is a battle for ideas, a battle under which the future of our country will follow.

The word ``activist'' in reference to judges is a word that is wildly used. It is almost amusing that we hear it from one side of the Senate to the other side of the Senate. What is activism on one side is not activism on the other. What is activism to the minority is not activism to the majority.

What is activism? Activism is reaching into the law and the precedents of law and creating something that was not there before. Activism is intentionally misinterpreting statutes to produce a political gain. I will go back to the child and the father, 35 years of age, screaming at the depths of his heartache as to how in our country we have gotten to the point where a judge can decide ahead of the Senate, ahead of the House, ahead of both bodies and the President, what will happen to our minor children. That is what this debate is about.

Priscilla Owen exemplifies the values that the American people hold, but she also exemplifies the values of the greatest jurists of our time: a strict adherence to the law, a love of the law, and a willingness to sacrifice her life and her career and her personal reputation to go through this process.

Senator Ensign, the Senator from Nevada, made a very good point a moment ago, and I think it bears repeating. How many people will not put their name up in the future who are eminently qualified, have great judicial history, will have great recommendations from the American Bar Association but do not want to have to go through the half-truths, the innuendos, and the slurring of character that occurs, to come before this body?

My hope is that before we come to the Byrd option or a change in the rules, that cooler heads will decide that we will not filibuster judges in the future, and we will not block nominations at the committee. That is reasonable. We do not have to do that. A President should have his nominees voted on. If they come to the committee and they do not have a recommendation, they should still come to the floor, or if they have a recommendation they not be approved, they should still come to the floor, or if they have a recommendation they be approved, they should still come to the floor. But it is fair for a President to have a vote on their nominations.

We have seen this President's numbers on appointments. That is right. Why has he had so many people appointed? Because he has nominated great jurists, and could they have filibustered others, they would have. The ironic part is that they say that Priscilla Owen is ``not qualified.'' However, in the negotiations leading up to the point we find ourselves, the offer has been made that we can pick two out of any four of the people who are on the queue to come before this body and let those two go through and two be thrown away. If that is the case, if any two will do, then they are obviously qualified. If they are acceptable under a deal, then they are obviously qualified.

The argument against qualification, the activist charges do not hold water. What does hold water is the fact that these individuals who stand in the mainstream of American thought, values, and ideals will be appellate judges and that someday maybe have an appointment or a nomination for a Supreme Court judgeship. That holds water. We have to decide in the Senate whether or not we are going to allow the process of filibustering judicial nominations to continue. If it continues, then lots of good people will never put their name in the hat. Lots of good people will never be on the court. What will be on the court are people who are not proven, people who do not have a record, people who are not the best. That is what will be on the court. The country deserves better, the Senate can do a better job than we are doing today, and it is my hope that we can resolve this conflict in a way that will create in the Senate a reputation that says reconciliation over the issues that divide us is a principle that we can all work on, that we can solve, that we can do the work of the American people. But if that is not possible, then it is well within the constitutional powers of the leader of this body to change the rules so that we can carry out our constitutional responsibilities.

Mr. President, I yield the floor and suggest the absence of a quorum.

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