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Nomination of Priscilla Richman Owen to be United States Circuit Judge for the Fifth Circuit--Continued

Location: Washington, DC



Ms. CANTWELL. Mr. President, I discuss the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals, and to briefly discuss the compromise before us on the so-called nuclear option.

I continue to oppose all three of the nominees that will proceed to up-or-down votes as the result of this compromise, and I will be voting against cloture on Priscilla Owen as a result. But I do acknowledge the importance of preserving the process of debating judicial nominees. I do not feel that the filibuster has been misused with regard to President Bush's nominees, as I'll explain shortly, but I am impressed at the efforts of my colleagues on both sides of the aisle to avoid the all-or-nothing nuclear option vote that threatened to cause us to break down as an institution.

I also express my hope that the term ``extraordinary circumstances'' that is in this compromise is interpreted sensibly. When extreme nominees threaten the balance of our federal courts, I view those as extraordinary circumstances. I will continue to vote to block any nominee who is not suitable for the bench, and it will continue to be an unusual exception for me not to support a nominee. My standard has been extraordinary circumstances all along.

As a former member of the Judiciary Committee, I attended a hearing on Priscilla Owen that lasted a full day. During that hearing, Owen's record showed a particular disregard for precedent and the plain rule of law.

Anyone who walks into a courtroom as a plaintiff or a defendant in this country should do so having the full confidence that there is impartiality on the part of the judge on the bench. They should have total confidence that the rule of law will be followed, and believe the issues will be judged on their merits rather than viewed through the prism of an individual judge's personal values or beliefs.

There is reason to be concerned about the record of Priscilla Owen. Time after time, even her own Republican colleagues, on a predominantly Republican Texas Supreme Court bench, criticized her for failing to follow precedent or interpreting statutes in ways that ignore the clear intent of the law.

What some of Owen's colleagues on the bench have said about her opinions I think is important. In a case dealing with a developer seeking to evade Austin's clean water laws, her dissent was called ``nothing more than inflammatory rhetoric.''

In another case, her statutory interpretation was called ``unworkable.'' In yet another case, the dissent she joined was called ``an unconscionable act of judicial activism.''

There is another reason this nomination is so important. This is critical to all the nominees we are considering for appointment to the Federal bench, and especially important for you here this morning. That is, what is the judicial philosophy and commitment to upholding current law as it relates to a citizen's right to privacy. I asked Justice Owen at her hearing about her beliefs on the right to privacy. I asked her if she believed there was constitutional right to privacy and where she found that right in the Constitution.

She declined at the time to answer that question without the relevant case information and precedents before her. When Senator Feinstein followed up with a similar question, Owen against would not answer whether she believes a right to privacy does exist within the Constitution.

The question of whether a nominee believes that the right to privacy exists with regard to the ability to make decisions about one's own body is only the tip of the privacy iceberg. I believe that we are in an information age that poses new challenges in protecting the right to privacy. We are facing difficult issues including whether U.S. citizens have been treated as enemy combatants in a prison without access to counselor trial by jury, whether businesses have access to some of your most personal information, whether the Government has established a process for eavesdropping or tracking U.S. citizens without probable cause, and whether the Government has the ability to develop new software that might track the use of your own computer and places where you might go on the Internet without your consent or knowledge. There are a variety of issues that are before us on an individual's right to privacy and how that right to privacy is going to be interpreted. A clear understanding of a nominee's willingness to follow precedent on protecting privacy is a very important criterion for me, and it should be a concern for all Members.

Of course, some of my concern and skepticism about Justice Owen's views on privacy results from the opinions she wrote in a series of cases interpreting the Texas law on parental notification. In 2000 the State of Texas passed a law requiring parental notification. But they also included a bypass system for extreme cases.

Eleven out of 12 times Owen analyzed whether a minor should be entitled to bypass the notice requirement, she voted either to deny the bypass or to create greater obstacles to the bypass.

Owen wrote in dissent that she would require a minor to demonstrate that she had considered religious issues surrounding the decision and that she had received specific counseling from someone other than a physician, her friend, or her family. Requirements, I believe, that go far beyond what the statute requires.

In interpreting the ``best interest'' arm of the statute, Owen held that a minor should be required to demonstrate that the abortion itself--not avoiding notification--was in the individual's best interests. In this particular case, I think she went far beyond what the statue required.

Where does that put us? Women in this country rely on the right to choose. It is an issue on which we have had 30 years of settled law and case precedent. In the Fifth Circuit, there are three States that continue to have unconstitutional laws on the books, and legislatures that are hostile to that right to choose. The Federal courts are the sole protector of women's right to privacy in these states. I do not believe that the rights of the women of the Fifth Circuit can be trusted to Justice Priscilla Owen.

The Senate provides each of us with the procedural privilege to thoroughly discuss my concerns about this nominee--the filibuster. The filibuster has been used against me on issues I care deeply about, just as I have used this procedure when it was necessary to protect the people of my state. This body, in which I am so privileged to serve, is more important than any one of us, precisely because even one Senator can stand up for her state in the face of a powerful majority.

This agreement, whatever else I might think of it, preserves the rights in this body that make it unique and that give it the most credibility. Each of us has to respect the views of the rest. When 40 of us stand together, the other 60 must negotiate. That is healthy and that is what happened here. The rules of the Senate, and the existence of the Federal judiciary itself, pose proper checks on majority and Presidential power. That is the way it should stay.

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