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“NOMINATION OF PRISCILLA OWEN” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S5528-S5529 on April 30, 2003.
The publication is reproduced in full below:
NOMINATION OF PRISCILLA OWEN
Mr. KYL. Mr. President, I rise in morning business for a moment to speak about the nomination of Priscilla Owen of Texas to the Federal bench.
This is really an extraordinary nomination. It is very troubling to me that it appears most of our colleagues on the other side of the aisle are willing to keep Justice Owen from getting a vote. In the past, even with very controversial votes on Justices to the Supreme Court--and I have, for example, Justice Clarence Thomas in mind, and there was significant opposition to the confirming of Justice Thomas, primarily by Members of the other side of the aisle--the leaders of the Democratic Party understood that tradition called for a vote--probably knowing they would lose the vote. They, nevertheless, refused to support any kind of filibuster and they voted against Justice Thomas's confirmation. But he was confirmed 52-48.
I always respected the things they said at or about the time of that confirmation--that they would not ever support a filibuster, regardless of their particular feelings about the nominee. I thought that took courage, and I respected it, coming, as it did, from some of the key leaders of the Democratic side of the Senate. It confirmed to me that the tradition of the Senate relationship of comity we have with the President in dealing with his nominees, and the importance of our responsibilities with respect to confirming Justices of the Supreme Court and members of the Federal bench generally, is such that partisanship and tactical advantage could be laid to the side for the good of the country and these nominations could be voted on.
Now, there have been votes--sometimes--where the nominee lost. Most of the time, when votes are allowed to happen, the nominees prevail. But the new situation we have in this body, starting out with the President's nomination of Miguel Estrada--and now sadly, it seems, with the nomination of Priscilla Owen--we are going to require that unless 60 Members of the Senate agree to allow a vote, we don't get a vote. A filibuster, in other words, becomes the benchmark, the standard for confirmation of judges.
It has never been that way. There has only been one successful filibuster, and that was a very strange situation. There has never been a partisan filibuster in this body until now. It is especially remarkable because, in the case of Justice Owen, for example, one cannot claim, as has been claimed with regard to Miguel Estrada, that her record is unknown or unclear, or that there is more information that needs to be gleaned. She appeared not once but twice before the Judiciary Committee. The reason I wanted to take the floor briefly today is to say to my friends I don't think I have ever seen a nominee who handled herself or himself better than Justice Owen did at those hearings. She was forthcoming, brilliant in her exposition of the law, measured, and she clearly has the temperament to be a good judge.
She has been serving as a justice of the State Supreme Court of Texas. She has the support of another former justice of that court, Judge Gonzales, who obviously is now acting as the President's counsel, and the support of Democrats and Republicans alike.
The American Bar Association, as with Miguel Estrada, has recommended her for confirmation. She stayed at the hearing for as long as Members wanted her to stay. She answered all of the questions. So the same argument cannot be made that has been made about Miguel Estrada.
In fact, one of my colleagues on the other side of the aisle made it clear, in discussing the nomination of Miguel Estrada, that the only thing standing in the way of a vote--they would not necessarily commit to voting for him but at least allowing a vote on him--was producing this information which they say they want from the Justice Department about his prior employment. But for that, that vote could occur, seeming to suggest that the same thing would be the case with any other nominee--that as long as the information was forthcoming and they knew about the individual, that therefore they could vote.
In fact, the last line, after this colleague talked to others in the Democratic Party, states: Look, if we can just get this information, do you think we can vote? And the answer was: Affirmative, to a person, because, frankly, then we would know for whom we were voting.
There was no commitment to vote for Miguel Estrada but at least they would allow the vote to go forward because they would then know ``for whom we are voting.''
Well, we do know who we are voting for in the case of Justice Owen. Her record is out there for everyone to see. There has never been a suggestion by anybody that she needs to produce more in the way of a record. It is there to be evaluated.
I suspect the reason Members on the other side of the aisle will not allow her to come to a vote is because they fear she will be more conservative as a justice than they would like to see. Let's be honest about it.
I voted for numerous circuit court nominees of President Clinton knowing they were far more liberal than I am. On my own circuit, the Ninth Circuit Court of Appeals, I voted for several who I knew were more liberal, and their voting record subsequently has borne that. They were confirmed. I voted for them. I felt President Clinton was the President; he was elected by all of the people. He had the right to nominate his own people, and if they were otherwise qualified, then I ought to vote for them. That has always been the tradition, that has always been the standard, by which we have judged these candidates for circuit court. So it is very troubling now to have a new standard imposed on us.
I come this morning to note that we are soon going to go back to the nomination of Priscilla Owen. I implore my colleagues to think about what they are doing by creating the 60-vote standard. There is no way that can be the standard only for Republican Presidents and not Democratic Presidents. It is either going to be the standard or it is not. If it becomes the standard for all Presidents, then I believe it is only a very short period of time before the confirmation process is going to grind to a halt because there will always be political differences.
By and large, that is what divides the Democrat and Republican Parties. We view life a little bit differently. We are all great Americans. We all support the troops and all want the judiciary to succeed, but we have some philosophical differences. That is fine, but they should not be the basis for not confirming judges or, more importantly, for requiring 60 votes to confirm because it is a very rare Senate in which one party has more than 60 votes in controlling the Senate. So it is basically going to grind the confirmation process to a halt.
That is a breach of our comity to the judicial branch; it is a breach of our obligations to the American people, to ensure justice is done. We know that justice delayed is justice denied. We have already heard from the Supreme Court Chief Justice about the emergencies that exist because we cannot fill these vacancies.
We have a crisis. We have to find a way to resolve this crisis. I suggest that the simplest way to do this, that is fair to everybody, is the way we have always done it: Express yourself, allow the vote to occur, vote your conscience and then move on. But do not hold up the votes simply because you have a philosophical disagreement with the President who nominates these candidates.
I urge my colleagues to think carefully because in the case of Priscilla Owen, as the bar association found, as the Judiciary Committee concluded in its most recent action by passing her out on the Executive Calendar, she is a fine justice. She would make a fine member of the Federal bench. There is no legitimate reason to oppose her.
I urge my colleagues to think about this as we focus on her qualifications, on the relationship between the Senate and the House, and on the obligation we have to the courts and to the American people. This is serious and we ought to be acting in a serious way. I urge my colleagues to support the nomination of Justice Priscilla Owen.
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