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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - May 18, 2005)



Mr. KENNEDY. Mr. President, I was wondering if our leader is familiar with the letter which members of our Judiciary Committee sent to the chairman of our committee that points out there are now some 30 vacancies on the Federal bench for which the President has not yet sent a nominee to the Senate. If he would work with Senators of both parties to identify qualified, consensus nominees for each of these spots, the vacancy numbers on our courts could be lowered even further. However, as much as we have offered to work with him finding these nominees and getting them confirmed, there has been absolutely no response.

I am just wondering whether, as we are addressing the issues of one nominee--and the issue that is before the Senate is filling vacancies on the courts--I am just interested if the majority leader has any information from the administration as to when we are going to be able to fill these other nominations.

The ACTING PRESIDENT pro tempore. The majority leader.

Mr. FRIST. Mr. President, I would be happy to look at the letter and request of the administration, what requests are made in the letter, and see what their response would be.

In the meantime, Mr. President, what I would like to do is proceed with Priscilla Owen, who is a qualified nominee, who is a nominee we are going to have a lot of debate on back and forth, to determine whether or not she is out of the mainstream, as people say. We will go through regular order and take these nominees the President has submitted to the Judiciary Committee, who have been fully evaluated in the Judiciary Committee, and who now are on the Executive Calendar ready for business.

So we are going to begin that debate shortly.

Mr. KENNEDY. Well, reserving my rights further, Mr. President, as I understand, there is a new nominee who is on the Executive Calendar, Brian Sandoval of Nevada, who has general broad support. Is he not a nominee we could confirm in a matter of moments here? We could at least take care of that vacancy.

Mr. FRIST. Mr. President, I do not believe he is on the Executive Calendar. To the best of my knowledge--at least he is not on the Executive Calendar as printed today.


Mr. REID. Mr. President, I know we need to move on. I want to briefly say we are following the rules. We believe in following the rules, not breaking the rules. And while it is good to talk about this up-or-down vote, the fact is if we move forward as contemplated by the majority, it is moving toward breaking the rules to change the rules. That is improper. It will change the Senate forever and that is not good.

Mr. KENNEDY. Mr. President, further reserving the right to object, I want to support our Democratic leader. I believe the record now is we have approved 96 percent of the judicial nominees of this administration. And as we know in terms of reading the Constitutional Convention our Founding Fathers expected this was going to be, we were going to exercise our own independent best judgment on nominees. And if I could ask the majority leader, is this the same Priscilla Owen which our current Attorney General suggested ``unconscionable acts of judicial activism?'' That is, our current Attorney General has accused this nominee of that kind of activity. Is this the same Priscilla Owen who is now being recommended, about which our current Attorney General made that comment not once, not twice, not three times, but 11 times?


Mr. KENNEDY. Mr. President, I commend my friend and colleague from North Dakota for the excellent presentation he made. As a member of the Judiciary Committee, I remember the well over 60 nominees who were denied the courtesy to be considered and to have a hearing and go to the Senate and have a debate and discussion on the floor of the Senate.

I do not think any of us who are strongly opposed to what the Senator has referred to as the nuclear option are interested just to retaliate against these Republican judges, the half a dozen or so who have been mentioned, debated, and discussed today, in return for the way the over 60 nominees were treated under the previous administration. But it does respond to the suggestions that have been made here on the floor that somehow institutionally our friends on the other side have always been for fairness in the consideration of these nominees and considerate of the President in meeting his responsibility of advising the Senate.

I think many of us believe very deeply that if there are Members in this body who, as a matter of conscience, feel strongly that those nominees or any nominee fails to be committed to the fundamental core values of the Constitution, that they ought to be able to speak to it, they ought to be able to speak to it and not be muzzled, not be gagged, not be silenced. That is the issue that is before the Senate now and will be addressed in these next few days, and why it is enormously important for the country to pay attention to this debate and this discussion.

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 4 years, most of whom are not people we would have chosen ourselves. Ninety-five percent have been confirmed.

Only a handful did not receive the broad, bipartisan support needed for confirmation. Their records show 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 renominated William Pryor for the 11th 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 40 years.

Mr. Pryor has fought aggressively to undermine Congress's power to protect individual rights. He has tried to cut back on the Family and Medical Leave Act, the Americans with Disabilities Act, and the Clean Water Act. He has criticized the Voting Rights Act. He has been contemptuously dismissive of claims of racial bias in the application of the death penalty. He has relentlessly advocated its use, even for persons with mental retardation. He has 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 2 of the 9 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--a unanimous Court--rejected his position that the Americans With Disabilities Act does not 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 are 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 the 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 court, a court dominated by conservative Republican appointees, unanimously rejected Mr. Pryor's attempt to evade the 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 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 assuring 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 40th anniversary of Bloody Sunday when Martin Luther King, Jr., 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 is too much at stake to risk confirming a judge who would turn back progress on protecting the right to vote.

It is no surprise that civil rights leaders oppose Mr. Pryor's nomination, including Rev. Fred Shuttlesworth, a leader in the Alabama movement for voting rights, and many of Rev. C. T. Vivian's and many of Dr. King's other close advisers 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 laws, not interpret them.

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 lifetime appointment to the court of appeals.

Of course, we oppose the attempt to break the 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 a wide range of cases that can come before the Fifth Circuit, especially on issues of major concern to workers, consumers, victims of discrimination, and women exercising their constitutional right. 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 is 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 judge.

The Houston Chronicle wrote:

Owen's judicial record shows less interest in impartially interpreting the law than in pushing an agenda.

And that she, it continues, ``too often contorts rulings to conform to her particular conservative outlook.''

It noted that:

It's worth saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

The Austin American Statesman, in their editorial, said Priscilla Owen ``is so conservative that she places herself out 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:

[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 the nominee.

These are the San Antonio Express News, the Austin American Statesman, and the Houston Chronicle.

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.'' This is what the current Attorney General of the United States said when he was on the supreme court: Justice Owen's opinion was ``an unconscionable act of judicial activism.''

Justice Gonzales's 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 the Texas law clearly required manufacturers to be responsible to retailers who 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 the Texas law. 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 the court's 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 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, 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 coinsured spouse intentionally set fire to their insured home. Justice Owen joined a dissent that would have denied the coverage of the spouse on the theory that the arsonist might somehow benefit from the court's decision. Justice Gonzales's 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.

Mr. President, I want to take a few moments now to go over with the Senate some of the rules that are going to have to be broken by the majority in order to try to change the rules of the Senate.

I want to review very quickly what we are faced with here. I will give two examples of individuals who I think failed to meet the standard for approval in the Senate, that they have a commitment to the core values of the Constitution. We have just seen examples and statements and comments from both individuals and from newspapers and other sources that I think established convincingly these individuals do not have that kind of core commitment required and should not be given lifetime appointments.

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 precedent, 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 the executive will have to ask its allies in the Senate to break or ignore in order to turn the Senate into a rubberstamp for the 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 Senate rules and precedent 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 2-day wait, and a three-fifths 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 two-thirds 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 preemptive Republican nuclear strike on the floor.

To accomplish their goal by 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 that ``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, oil industry, pharmaceutical industry, 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 Senate. I am reminded every day of my obligation to speak up for them and fight for their concerns, their hopes, and their values in this Chamber. Many brave leaders from Massachusetts have held the seat I hold today in the Senate. This seat was held by John Quincy Adams, who went on to become the sixth President and was a great champion of free speech. He debated three Supreme Court nominees and voted to confirm them all. 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 3 years to recover from the injuries and return to the Senate to speak out against slavery once again. He debated 11 Supreme Court nominees and voted for 10 of them. He refused to be silenced.

Daniel Webster was 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 debated 12 Supreme Court nominations; he voted to approve 8 and opposed 4. 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 debated 20 Supreme Court nominees, voted for 18, and he opposed 2. He refused to be silenced.

John Kennedy not only was a champion for working men and women in Massachusetts, but he also battled intolerance, injustice, and poverty during his time in the Senate. He debated and supported four Supreme Court nominees. 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 were not muzzled. They were not 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.


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