John Cornyn

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to talk about the anticipated vacancy on the U.S. Supreme Court. Whatever the timeframe for a vacancy on the Court, the process for selecting the next Associate or Chief Justice should reflect the very best of the American judiciary, not the worst of American politics. We deserve a Supreme Court nominee who reveres and respects the law--and a confirmation process that is civil, respectful, and keeps politics out of the judiciary. This morning, a number of our colleagues on the other side of the aisle asked to be consulted about any future Supreme Court nomination. I have two responses. First, we should be clear. Although consultation, in theory, may or may not be a good idea, there is no constitutional requirement or Senate tradition that obligates the President, or anyone in the executive branch, to consult with individual Senators, let alone with the Senate as an institution. Second, consultation may or may not be a good idea, but Senators should behave in a manner that is both respectful and deserving of such a special role in the Supreme Court nomination process, if they expect the administration to meet them halfway. At a minimum, the President should consider the following three conditions before agreeing to any special consultation with any particular Senator. First, whoever the nominee is, the Senate should focus its attention on judicial qualifications, not personal political beliefs. Second, whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan, political, or personal attacks. Third, whoever the nominee is, the Senate should apply the same fair process that has existed for more than two centuries, and that is confirmation or rejection by a majority vote. First, as I said, there is no constitutional or Senate tradition requiring consultation with individual Senators, let alone with the Senate as an institution. The text of the Constitution contemplates no formal role for the Senate as an institution--let alone individual Senators--to advise on selecting Justices on the Supreme Court, or on any Federal court. As renowned constitutional scholar and historian, David Currie, has pointed out, President George Washington did not consult with the Senate. I quote: ``Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.'' Professor Michael Gerhardt, the top Democrat adviser on the confirmation process, has similarly noted that ``the Constitution does not mandate any formal prenomination role for the Senate to consult with the President; nor does it impose any obligation on the President to consult with the Senate prior to nominating people to confirmable posts.'' My second point: If there is to be any consultation, the Senate must first show that it will behave itself in a manner worthy of such a special role in the Supreme Court nomination process. After all, there is a right way and a wrong way to debate the merits of a Supreme Court nominee. And history itself provides some useful benchmarks. First, whoever the nominee is, the Senate should focus its attention on judicial qualifications--not on personal political beliefs. When President Clinton nominated Ruth Bader Ginsburg to the Court in 1993, Senators knew that she was a brilliant lawyer with a strong record of service in the law. Senators knew that she served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. And they know that she had previously written that traditional marriage laws are unconstitutional; that the Constitution guarantees a right to prostitution; that the Boy Scouts, Girl Scouts, Mother's Day, and Father's Day are all discriminatory institutions; that courts should force taxpayers to pay for abortions against their will; and that the age of consent for sexual activity should be lowered to the age of 12. The Senate, nevertheless, confirmed her by a vote of 96 to 3. Similarly, when Steven Breyer, nominated in 1994 by President Clinton, and Antonin Scalia, nominated in 1986 by President Reagan, the Senate recognized that these were brilliant jurists with strong records of service. Breyer had served previously as chief counsel to Senator Ted Kennedy on the Senate Judiciary Committee. His nomination to the Court was opposed by many conservatives because of alleged hostility to religious liberty and private religious education, while Scalia was known to hold strongly conservative views on a number of topics. The Senate, nevertheless, confirmed them by votes of 87 to 9 and 98 to 0, respectively. Second, whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan political or personal attacks. Unfortunately, as we know, respect for nominees has not always been the standard--at least it has not always been observed. Lewis Powell, a distinguished member of the U.S. Supreme Court, during his nomination process was accused of demonstrating ``continued hostility to the law,'' and waging a ``continual war on the Constitution.'' Senate witnesses warned that his confirmation would mean that ``justice for women would be ignored.'' John Paul Stevens, also with a distinguished record of service on the Supreme Court, was charged during his confirmation hearings with ``blatant insensitivity to discrimination against women.'' Anthony Kennedy, also on the Court, was scrutinized for his ``history of pro bono work for the Catholic Church,'' and found to be ``a deeply disturbing candidate for the United States Supreme Court,'' according to some accounts. David Souter, also on the U.S. Supreme Court, during his confirmation process, was described as ``almost neanderthal,'' ``biased,'' and ``inflammatory.'' One Senator actually said Souter's civil rights record was ``particularly troubling'' and ``raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.'' That same Senator condemned Souter for making ``reactionary arguments'' and for being ``willing to defend the indefensible'' and predicted that, if confirmed, Souter would ``turn the clock back on the historic progress of recent decades.'' At Senate hearings, witnesses cried that, ``I tremble for this country if you confirm David Souter,'' warning that ``women's lives are at stake,'' and even predicting that ``women will die.'' The best apology for these ruthless and reckless attacks is for them never to be repeated again. Unfortunately, recent history is not particularly promising. Even before President Bush took office in January 2001, the now-leader of the opposition party in the Senate told Fox News Sunday that ``we have a right to look at John Ashcroft's religion,'' to determine whether there is ``anything with his religious beliefs that would cause us to vote against him.'' And over the last 4 years, this President's judicial nominees have been labeled ``kooks,'' ``Neanderthals,'' and even ``turkeys.'' Respected public servants and brilliant jurists have been called ``scary'' and ``despicable.'' Third, whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries when it comes to confirmation or rejection--by an up-or-down vote of the majority. Our colleagues on the other side of the aisle have recently asked to be consulted about any future Supreme Court nomination--even though the Constitution provides only for advice and consent of the Senate, not individual Senators, and only with respect to the appointment, not the nomination of any Federal judge. If Senators want an extraordinary and extraconstitutional role in the Supreme Court nomination process, the President should first consider seeking a commitment from them to subscribe to the three principles that I have talked about briefly above. After years of unprecedented obstruction and destructive politics, we must restore dignity, honesty, respect, and fairness to our Senate confirmation process. That is the only way to keep politics out of the judiciary.

Mr. CORNYN. I ask unanimous consent to be allowed to speak as in morning business.

Mr. CORNYN. Again, the distinguished assistant majority leader is correct.

Mr. CORNYN. The distinguished assistant majority leader is correct.

Mr. CORNYN

Mr. CORNYN. Mr. President, I wish to associate myself with the articulate and poignant remarks of the junior Senator from Tennessee. He is absolutely right, of course, that the era of widespread lynching in our nation's history is deplorable. And he is right that we must look to the future, to ensure that such crimes are never again allowed to occur. There are different ways to acknowledge those times when Americans have failed to achieve the goals we have set for ourselves. The Senator from Tennessee quotes Maya Angelou, who once wrote, ``History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.'' Indeed, let us learn from the past, and look forward with such courage.

Mr. CORNYN

Mr. CORNYN. Mr. President, on February 16, shortly before the President's Day recess, the Senator from Vermont and I introduced the OPEN Government Act of 2005 (S. 394)--bipartisan legislation to promote accountability, accessibility, and openness in government, principally by strengthening and enhancing the Federal law commonly known as the Freedom of Information Act. s When I served as Attorney General of Texas, it was my responsibility to enforce Texas's open government laws. I am pleased to report that Texas is known for having one of the strongest sets of open government laws in our Nation. And since that experience, I have long believed that our Federal Government could use ``a little Texas sunshine.'' I am thus especially enthusiastic about the OPEN Government Act, because that legislation attempts to incorporate some of the most important principles and elements of Texas law into the Federal Freedom of Information Act. And I am gratified that Senators Alexander, Feingold, Isakson, and Nelson of Nebraska are cosponsors of the bipartisan Cornyn-Leahy bill. This legislation enjoys broad support across the ideological spectrum. Indeed, since its introduction on February 16, the legislation has attracted additional support. In particular, I am pleased to report the endorsements of three conservative public interest groups--one devoted to the defense of property rights, Defenders of Property Rights, led by Nancie G. Marzulla, one devoted to the issue of racial preferences in affirmative action programs, One Nation Indivisible, led by Linda Chavez, and one devoted to the protection of religious liberty, Liberty Legal Institute, led by Kelly Shackelford. I ask unanimous consent that their endorsement letters be printed in the Record at the close of my remarks. The point of including these letters in the Record, of course, is not that these groups are right or wrong in the pursuit of their respective causes, but that the cause of open government is neither a Republican nor a Democrat issue--neither a conservative nor a liberal issue--rather, it is an American issue. I would like to take a few moments to emphasize one particular provision of the Cornyn-Leahy bill--section 8. It is a common sense provision. This provision should not be at all controversial, and indeed, I am not aware of any opposition whatsoever to it. The provision would simply help to ensure an open and deliberate process in Congress, by providing that any future legislation to establish a new exemption to the Federal Freedom of Information Act must be stated explicitly within the text of the bill. Specifically, any future attempt to create a new so-called ``(b)(3) exemption'' to the Federal FOIA law must specifically cite section (b)(3) of FOIA if it is to take effect. The justification for this provision is simple: Congress should not establish new secrecy provisions through secret means. If Congress is to establish a new exemption to FOIA, it should do so in the open and in the light of day. A recent news report published by the Cox News Service amply demonstrates the importance of this issue, and specifically emphasizes the need for section 8 of the Cornyn-Leahy bill. I ask unanimous consent that a copy of this news report be printed at the close of my remarks. Senator Leahy and I firmly believe that all of the provisions of the OPEN Government Act are important--and that, as the recent Cox News Service report demonstrates, section 8 in particular is a worthy provision that can and should be quickly enacted into law. We note that July 4 is the anniversary of the 1966 enactment of the original Federal Freedom of Information Act. Accordingly, we plan to devote our efforts this month to getting section 8 approved by Congress and submitted to the President for his signature by that anniversary date. Toward that end, we rise today to introduce separate legislation to enact section 8 of the OPEN Government Act into law. We ask our colleagues in this chamber to support this measure, first in the Senate Judiciary Committee, and then on the floor of the United States Senate. And we look forward to working with our colleagues in the House-- including Representative Lamar Smith, the lead sponsor of the OPEN Government Act in the House, H.R. 867, as well as Chairman Tom Davis, who leads the House Committee on Government Reform, and Chairman Todd Platts, who leads the House Government Reform subcommittee that recently held a hearing to review the Federal FOIA law. Section 8 of the Cornyn-Leahy bill is a common-sense, uncontroversial provision that deserves the support of every member of Congress. It simply provides that, when Congress enacts legislation--specifically, legislation to exempt certain documents from disclosure under FOIA--it do so in the open. After all, if documents are to be kept secret by an act of Congress, we should at least make sure that that very act of Congress itself not be undertaken in secret. A Senate Judiciary subcommittee held a hearing on the OPEN Government Act on March 15. I hope that at least section 8 of the legislation can be enacted into law quickly, and that Congress will then move to consider the other important provisions of the bill.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia be authorized to meet on Tuesday, May 24, 2005, at 10 a.m. for a hearing entitled, ``Safeguarding the Merit System: A Review of the U.S. Office of Special Counsel.''

Mr. CORNYN. Mr. President, I ask unanimous consent that the Subcommittee on Federal Financial Management, Government Information, and International Security be authorized to meet on Tuesday, May 24, 2005, at 2 p.m. for a hearing regarding ``Overview of the Competitive Effects of Speciality Hospitals.''

Mr. CORNYN. Mr. President, I ask unanimous consent, pursuant to Rule 26.5(a) of the Standing Rules of the Senate, that the Select Committee on Intelligence be authorized to meet after conclusion of the first two hours after the meeting of the Senate commences on May 24, 2005.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, May 24, 2005 at 9:30 a.m. to hold a hearing on nominations.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Tuesday, May 24, 2005, at 10 a.m., in 628 Dirksen Senate Office Building, to consider the nominations of Alex Azar, II, to be Deputy Secretary of Health and Human Services, Department of Health and Human Services, Washington, DC; Timothy D. Adams, to be Under Secretary for International Affairs, U.S. Department of Treasury; Shara L. Aranoff, to be Member of the International Trade Commission; Suzanne C. DeFrancis to be Assistant Secretary for Public Affairs, U.S. Department of Health and Human Services; and Charles E. Johnson, to be Assistant Secretary for Budget, Technology and Finance, U.S. Department of Health and Human Services.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Tuesday, May 24, 2005, at 10 a.m. on S. 529, a bill to authorize funding for the U.S. Anti-Doping Agency (USADA) and to designate it as the official doping agency of the U.S. Olympic Committee.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on May 24, 2005, at 3 p.m., to conduct a hearing on ``Money Laundering and Terror Financing Issues in the Middle East.''

Mr. CORNYN

Mr. CORNYN. Mr. President, at various times during the course of debate in recent days over the nomination of Justice Priscilla Owen, a number of her previous rulings have been badly mischaracterized. Last Thursday, May 19, I rose to speak about a number of those cases and to correct the record. And just this morning, I published an op-ed in National Review Online to further rebut these baseless criticisms. I ask unanimous consent that an excerpt of that op-ed be printed in the Record.

Mr. CORNYN

Mr. CORNYN. I understand there are two bills at the desk that are due for a second reading. I ask unanimous consent they be read for a second time en bloc.

Mr. CORNYN. In order to place the bills on the calendar under the provisions of rule XIV, I object to further proceeding, en bloc.

Mr. CORNYN

Mr. CORNYN. I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 11:30 a.m. on Monday, May 23. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and that the Senate then return to executive session and resume consideration of the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals, provided that the time from 12 noon until 1 p.m. be under the control of the majority leader or his designee and, at 1 p.m., the Democratic leader or his designee be recognized; provided that floor time then rotate between the two leaders or their designees every 60 minutes until 4 p.m., at which time the majority leader or his designee be recognized until 4:45 p.m., to be followed by the Democrat leader or his designee from 4:45 p.m. until 5:30 p.m.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I am pleased to join Senator Leahy to offer important legislation in our continued bipartisan effort to combat the trafficking of illegitimate goods throughout the world. Recently, we have worked together on a matter near and dear to my heart--good government legislation related to the Freedom of Information Act, and it is indeed a pleasure to work with the Ranking Member of the Judiciary Committee again. The rampant distribution of illegitimate goods--be it counterfeited products, illegal copies of copyrighted works or any other form of piracy--undermines property rights, threatens American jobs, decreases consumer safety and, often times, supports organized crime and terrorist activity. Amazingly, it is estimated that between 5 percent and 7 percent worldwide trade is conducted with counterfeit goods and services. According to FBI estimates, counterfeiting costs U.S. businesses as much as $200-$250 billion annually--and that costs Americans their jobs--more than 750,000 jobs according to U.S. Customs. In recent years, this plague on global trade has grown significantly. According to the World Customs Organization and Interpol, the global trade in illegitimate goods has increased from $5.5 billion in 1992 to more than $600 billion per year today. That is--$600 billion per year illegally extracted from the global economy. But perhaps most troubling, the counterfeit trade threatens our safety and our security. Counterfeit goods undermine our confidence in the reliability of our goods and service. For example, the Federal Aviation Administration estimates that 2 percent the 26 million airline parts installed each year are counterfeit. And the Federal Drug Administration estimates that as much as 10 percent pharmaceuticals are counterfeit. Worse yet--evidence indicates that the counterfeit trade supports terrorist activities. Indeed, Al Qaeda training manuals recommended the sale of fake goods to raise revenue. And the reach of counterfeiting runs deep in my own home State of Texas. Data is difficult to collect, but a 1997 piece detailing Microsoft's efforts to combat counterfeiting and piracy--while dated-- pointed out that this type of activity costs Texas over 10,000 jobs and almost $1 billion. Today, we know those numbers are much higher. We must act to stop this illegal activity. The legislation we offer today, the Protecting American Goods and Services Act, is not complicated, it is not long--but its global impact will be significant. The legislation is designed to provide law enforcement with additional tools to curb the flow of these illegitimate goods. First, the bill would make it specifically illegal to import or export unauthorized copies of copyrighted works or counterfeit goods. Second, it would make it illegal to possess counterfeit goods with the intention of selling them. Finally, the bill would more clearly specify that it is illegal to give away counterfeit goods in exchange for some future benefit--in effect, the ``bartering'' of counterfeit goods in such a way that avoids criminality. Each of these items was highlighted by the Department of Justice in its October, 2004 report on its Task Force on Intellectual Property. In it, the Department describes the significant limitation law enforcement often times faces in pursuing counterfeiters and offers, among others, the principles embraced in the Protecting American Goods and Services Act, as possible solutions to these obstacles. This legislation, and other reforms, will help turn the tide of the growing counterfeit trade. The legislation is critically important to law enforcement--but it is even more critical for businesses, large and small, throughout America--including in my home State of Texas--as well as for ensuring the safety of consumers around the globe. Those who traffic in counterfeit goods put Americans in danger, support terrorism and undermine the health of our Nation's economy. It is time to put an end to this scourge on society. I look forward to working with my colleagues to move this legislation forward, and in so doing, protect property rights, protect consumer safety, preserve American jobs and bolster the American economy. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I am pleased to join Senator Leahy to offer important legislation in our continued bipartisan effort to combat the trafficking of illegitimate goods throughout the world. Recently, we have worked together on a matter near and dear to my heart--good government legislation related to the Freedom of Information Act, and it is indeed a pleasure to work with the Ranking Member of the Judiciary Committee again. The rampant distribution of illegitimate goods--be it counterfeited products, illegal copies of copyrighted works or any other form of piracy--undermines property rights, threatens American jobs, decreases consumer safety and, often times, supports organized crime and terrorist activity. Amazingly, it is estimated that between 5 percent and 7 percent worldwide trade is conducted with counterfeit goods and services. According to FBI estimates, counterfeiting costs U.S. businesses as much as $200-$250 billion annually--and that costs Americans their jobs--more than 750,000 jobs according to U.S. Customs. In recent years, this plague on global trade has grown significantly. According to the World Customs Organization and Interpol, the global trade in illegitimate goods has increased from $5.5 billion in 1992 to more than $600 billion per year today. That is--$600 billion per year illegally extracted from the global economy. But perhaps most troubling, the counterfeit trade threatens our safety and our security. Counterfeit goods undermine our confidence in the reliability of our goods and service. For example, the Federal Aviation Administration estimates that 2 percent the 26 million airline parts installed each year are counterfeit. And the Federal Drug Administration estimates that as much as 10 percent pharmaceuticals are counterfeit. Worse yet--evidence indicates that the counterfeit trade supports terrorist activities. Indeed, Al Qaeda training manuals recommended the sale of fake goods to raise revenue. And the reach of counterfeiting runs deep in my own home State of Texas. Data is difficult to collect, but a 1997 piece detailing Microsoft's efforts to combat counterfeiting and piracy--while dated-- pointed out that this type of activity costs Texas over 10,000 jobs and almost $1 billion. Today, we know those numbers are much higher. We must act to stop this illegal activity. The legislation we offer today, the Protecting American Goods and Services Act, is not complicated, it is not long--but its global impact will be significant. The legislation is designed to provide law enforcement with additional tools to curb the flow of these illegitimate goods. First, the bill would make it specifically illegal to import or export unauthorized copies of copyrighted works or counterfeit goods. Second, it would make it illegal to possess counterfeit goods with the intention of selling them. Finally, the bill would more clearly specify that it is illegal to give away counterfeit goods in exchange for some future benefit--in effect, the ``bartering'' of counterfeit goods in such a way that avoids criminality. Each of these items was highlighted by the Department of Justice in its October, 2004 report on its Task Force on Intellectual Property. In it, the Department describes the significant limitation law enforcement often times faces in pursuing counterfeiters and offers, among others, the principles embraced in the Protecting American Goods and Services Act, as possible solutions to these obstacles. This legislation, and other reforms, will help turn the tide of the growing counterfeit trade. The legislation is critically important to law enforcement--but it is even more critical for businesses, large and small, throughout America--including in my home State of Texas--as well as for ensuring the safety of consumers around the globe. Those who traffic in counterfeit goods put Americans in danger, support terrorism and undermine the health of our Nation's economy. It is time to put an end to this scourge on society. I look forward to working with my colleagues to move this legislation forward, and in so doing, protect property rights, protect consumer safety, preserve American jobs and bolster the American economy. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. I now ask unanimous consent there be a period of morning business with Senators permitted to speak up to 10 minutes each.

Mr. CORNYN

Mr. CORNYN. Mr. President, on behalf of the majority leader, this cloture vote will occur on Tuesday, and the leader will announce the precise timing of that vote next week.

Mr. CORNYN

Mr. CORNYN. Mr. President, on Monday, the Senate will resume consideration of the nomination of Priscilla Owen to serve as a circuit judge on the Fifth Circuit Court of Appeals. Monday will be the fourth consecutive day the Senate considers the Owen nomination. Over the past 3 days, a number of Members, on both sides of the aisle, have come to the floor to speak on the nomination. We have conducted over 25 hours of debate, and we will continue on Monday. Moments ago, we filed a cloture motion on the nomination, and that will ripen on Tuesday of next week. On behalf of the majority leader, I remind my colleagues the leader has announced our next rollcall vote will occur Monday afternoon at 5:30. That vote will be on a motion to instruct the Sergeant at Arms to request Senators' attendance. Senator Frist will have more to say about next week's session on Monday.

Mr. CORNYN

Mr. CORNYN. If there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. CORNYN

Mr. CORNYN. Mr. President, the record is clear, notwithstanding what some opponents have said today and in the last 4 years. The Senate tradition has always been a majority vote, and the desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum. I will close by simply reinforcing what the Senator from Arizona stated so well in his earlier remarks. To employ the Byrd option is not a radical move at all. It would merely be an act of restoration. In fact, as we have heard time and time again, there is ample precedent to support the use of this point of order. The senior Senator from West Virginia was then majority leader of this body and used this on four separate occasions--in 1977, in 1979, in 1980 and again in 1987--to establish precedence to change Senate procedure during a session of Congress. Other leading Senators from the other side of the aisle have recognized, time and again, the legitimacy of the Byrd option, including the Senator from Massachusetts, as well as the junior Senator from New York as recently as 2 years ago. In the end, I believe this debate demonstrates, without a doubt, that it is time to fix our broken judicial confirmation process. It is time to end the blame game, to fix the problem, and to move on and do the American people's business. It is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans. It is simply intolerable for a partisan minority to block a bipartisan majority from conducting the Nation's business. It is intolerable that the standards now change depending on who is in the White House and which party is the majority party in the Senate. And it is simply intolerable that this nominee--this fine and decent human being--an outstanding judge has wasted 4 long years for a simple up-or- down vote. Yes, we need a fair process for selecting fair judges, after full investigation, full questioning, full debate, and then a vote. Throughout our Nation's more than 200-year history, constitutional rule and Senate tradition for confirming judges has always been a majority vote. And that tradition--broken 4 years ago after this nominee and others were proposed by the President--must be restored. After 4 years of delay, affording Justice Owen a simple up-or-down vote would be an excellent start. Mr. President, I thank the Chair and yield the floor. Exhibit 1 Professor Michael Gerhardt, who advises Senate Democrats about judicial confirmations, has written that a supermajority requirement for confirming judges would be ``problematic, because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of the special interests.'' D.C. Circuit Judge Harry Edwards, a respected Carter appointee, has written that the Constitution forbids the Senate from imposing a supermajority rule for confirmations. After all, otherwise, ``[t]he Senate, acting unilaterally, could thereby increase its own power at the expense of the President'' and ``essentially take over the appointment process from the President.'' Edwards thus concluded that ``the Framers never intended for Congress to have such unchecked authority to impose supermajority voting requirements that fundamentally change the nature of our democratic processes.'' Georgetown law professor Mark Tushnet has written that ``[t]he Democrats'' filibuster is . . . a repudiation of a settled, pre-constitutional understanding.'' He has also written: ``There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules--on scheduling, on not having a floor vote without prior committee action, etc.--to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so with respect to a filibuster.'' And Georgetown law professor Susan Low Bloch has condemned supermajority voting requirements for confirmation, arguing that they would allow the Senate to ``upset the I carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives to the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution.'' She even wrote on March 14, 2005: ``Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that.''

Mr. CORNYN. Mr. President, at a time when it seems like too often debate on the President's nominees have shed more heat than light, it has been a delight for me to sit here, as the Chair has, and listen to the Senator from Arizona present in comprehensive detail the legal and constitutional framework for the Senate's authority to set its own rules by establishing precedents, passing standing rules, adopting standing orders by unanimous consent, and otherwise. It was an excellent presentation and, indeed, a strong case, and that is exactly why leading Senators on the other side of the aisle, including the former Democratic majority leader, the Senator from West Virginia, the Senator from Massachusetts, and the junior Senator from New York, have all stated, as recently as 2 years ago, that, of course, a majority of Senators has the power to set rules, precedents, and procedures. Indeed, that is why the power of the Senate majority to set rules, precedents, and procedures is known as the Byrd option or, as some have called it, the constitutional option. Let me begin my remarks by making one simple point. I would prefer the bipartisan option to the Byrd option every time. America works better, indeed the Senate works better, when we work together in a bipartisan way to try to solve the problems that come before the Congress. I would much prefer to stand up here, after waking each day, and conduct business in a bipartisan manner. I have done my best to make the most of every opportunity that I have seen to do so since I have been in the Senate. For example, I have enjoyed working with the senior Senator from Vermont on legislation to strengthen the accessibility, accountability, and openness of the Federal Government. I have worked with the junior Senator from Wisconsin and the senior Senator from Connecticut on the important issue of continuity of Government in the wake of a future terrorist attack. I have worked with the senior Senator from New York on ways that we together can combat modern day slavery and human trafficking. And I have worked with the senior Senator from Massachusetts on military citizenship and immigration issues. I would choose collaboration in this kind of bipartisan cooperation any day of the week. But bipartisanship is a two-way street. Both sides must agree on certain fundamental principles and a fair process that applies no matter who is in power, whether we have a Republican President or a Democratic President, whether we have a Republican majority or a Democratic majority. The most fundamental principle of all is fairness. Fairness means that the same rules apply regardless of who is President. Bipartisanship is difficult, however, when long-held understandings and the willingness to abide by basic agreements and principles has unraveled so badly. Where fairness falters, bipartisanship will fail. So I ask my colleagues, what are we supposed to do when these basic principles, commitments, and understandings have unraveled? What are we to do when nominees are attacked, including being called names, simply for doing their jobs, when they are attacked for following judicial precedents adopted and agreed to by appointees of Presidents Clinton and Carter, when they are singled out for their decision on a particular case even though it was held by a unanimous or near unanimous court? What are we to do when these nominees are demonized and caricatured beyond recognition to those of us who actually know them; when Senators on the other side of the aisle call them kooks, despicable, Neanderthal, and scary; when nominees are condemned as unqualified or perhaps lacking in judicial temperament, while at the same time they are deemed unanimously well qualified by the American Bar Association, an institution that the Democrats have always revered and held up as the gold standard when it came to qualifications to serve on the Federal judiciary? What are we to do when Senate and constitutional traditions are abandoned for the first time in more than two centuries, when both sides once agreed that nominees would never be filibustered, and then one side simply denies the existence of that very agreement when it suits them, when their interpretation of Senate tradition changes based on who happens to occupy the Oval Office and who happens to be in the majority in the Senate? What are we to do when our colleagues boast to their campaign contributors of this ``unprecedented'' obstruction, and then come to the Senate floor and claim that it is someone else who has changed the rules; when our colleagues justify their obstruction by pointing to Clinton nominees, such as their most prominent example, Judge Richard Paez, who was confirmed by standards they now reject for this President's nominees? What are we to do when our colleagues on the other side of the aisle claim that Justice Owen must cross the threshold of 60 votes, whereas Judge Paez only required 51 votes to be confirmed? What are we to do when the Democrats' former majority leader, the Senator from West Virginia, claims on 1 day that the filibuster is sacrosanct and sacred to the Founders when in January of 1995 he said: I have seen filibusters. I have helped to break them . . . the filibuster was broken--back, neck, legs, arms. Finally, what are we to do when they claim on 1 day that all they seek is more time to debate a nomination and then claim on another day that there are not enough hours in the universe to debate the nomination? The new requirement this partisan minority is now imposing, that nominees will not be confirmed without the support of at least 60 Senators, is, by their own admission, wholly unprecedented in Senate history. The reason for this is simple. The case for opposing this fine nominee, Justice Priscilla Owen, is so weak the only way they can attempt to successfully oppose her is by changing the rules, imposing a double standard in an attempt to defeat her nomination. Different Senators during the course of this debate have come to the floor and criticized judicial decisions that Justice Owen has participated in as a member of the Texas Supreme Court. As Members of this body know, I formerly served on that same court and for 3 years had the distinct pleasure of serving alongside of this able judge and fine and decent human being. I can tell you from the sharp attacks that have been made against her and the mischaracterizations that have been made of the opinions she has written and joined, I doubt that many Senators have actually read those opinions. If they had, they would not be able, with a straight face, to make some of the claims that have been made on this floor. Rather than reading the opinions of this able jurist and fine and decent human being, it appears the talking points they have been using are written, not based on what these cases actually say, but they are talking points prepared by political consultants who are more concerned with winning a partisan political battle at any cost. A number of Senators, for example, have mentioned a case called Montgomery Independent School District v. Davis. That is supposed to be an example of Justice Owen being ``out of the mainstream.'' But I ask my colleagues, just read the opinion. The case involved the authority of a local school board to dismiss a poorly performing and abusive teacher. This teacher admitted that she had referred to her students as little blank blank blanks, a four-letter expletive that I will not mention on the floor of the Senate. But when confronted with this, the teacher justified the use of this expletive--to schoolchildren mind you--on the bizarre ground that she used exactly the same language when talking to her own children--clearly unacceptable conduct on the part of any teacher, or any adult who is given the authority to deal so closely with impressionable children. The Senator from New York says this teacher was wrongly dismissed. Numerous other Senators have likewise characterized Justice Owen's decision in the case the same way. I have children. Many Senators have children. Are Justice Owen's opponents really arguing that this teacher acted appropriately? That she was wrongly dismissed and that somehow this decision, or this ruling by Justice Owen--I should say in her dissenting opinion--somehow renders her out of the mainstream? Justice Owen simply said the local school board was justified in dismissing this teacher, hardly a decision out of the mainstream. I daresay the vast majority of America would agree with her. However, in that case the majority of the Texas Supreme Court disagreed and held that the school board could not dismiss the teacher, notwithstanding the fact that she conceded the language that she used. Justice Owen's dissenting opinion simply concluded that the majority ``allows a state hearing examiner to make policy decisions that the Legislature intended local school boards to make.'' She also noted that the majority ``misinterpreted the Education Code.'' Another case that Senators, particularly the Senator from Massachusetts, attacked Justice Owen for was Texas Farmers Insurance Company v. Murphy. In this case, Justice Owen ruled that neither an arsonist nor his spouse should benefit from his crime by recovering insurance proceeds. The senior Senator from Massachusetts says this position puts Justice Owen out of the mainstream. I disagree. Do Justice Owen's opponents really believe that it is extreme and out of the mainstream to say that arsonists and their spouses should not benefit from their crime? I also point out that Justice Owen's ruling in this case followed two unanimous decisions of the Fifth Circuit Court of Appeals, the very court to which she has been nominated. Again, hardly out of the mainstream. How about the case of FM Properties Operating Company v. the City of Austin, relied upon also by the senior Senator from Massachusetts and other Senators? Justice Owen is criticized for dissenting in this case because she did not want to use a doctrine known as the nondelegation doctrine in order to strike down a Texas law as unconstitutional. Yet just last month, another Senator, this time the senior Senator from Delaware, criticized another judicial nominee, Bill Pryor, for wanting to use the nondelegation doctrine in another situation. So Justice Owen's critics seem to be saying if you support the use of this particular legal doctrine, the nondelegation doctrine, you are out of the mainstream. And if you oppose the nondelegation doctrine, you are somehow out of the mainstream. I ask them, which one is it? The truth is, this legal doctrine known as nondelegation is a controversial theory that is often harshly criticized by liberals who accuse conservatives of wanting to use it to strike down laws enacted by the legislature. That is fine. Fair enough. But that is exactly what Justice Owen's dissent criticized the majority of the court for doing. She stated the court has seized upon this rarely used nondelegation doctrine to claim the constitutional authority for an unprecedented restriction of the legislature's power, and that the court today exercises raw power to override the will of the legislature and of the people of Texas. It reminds me of the lyrics of a country and western song: ``Darned If I Do, Danged If I Don't.'' Justice Owen cannot win. She is being whipsawed by Senators who on one hand criticize her for doing one thing, when other Senators criticize some other nominee for doing something else. They really are arguing both sides against the middle and these nominees cannot win, according to that inconsistent, and some might even claim hypocritical test. The Senator from Illinois has attacked Justice Owen for a ruling in the City of Garland v. Dallas Morning News. In that case Justice Owen followed precedents adopted by three appointees of President Carter to the Federal bench. So Justice Owen is now too conservative and out of the mainstream because she happens to agree with presidential appointees of President Jimmy Carter? The majority opinion in that case said we should not blindly follow the Federal courts. Justice Owen simply said that the courts should follow Federal precedence because Texas open government laws had originally been modeled after the Federal Freedom of Information Act. One last example. The Senator from Washington mentioned a case that was discussed in a recent op-ed in Roll Call. She claimed that in Read v. Scott Fetzer Company, Judge Owen would not allow a woman who was raped by a vacuum cleaner salesman to sue the company that had hired him without a background check. The Senator should check her facts because it is simply not true. The Senator must not have seen my letter published in Roll Call a few days later because I pointed ought there, as I point out here, that the dissenting opinion made clear no one questions that the company that had hired the rapist is, in fact, liable. The justices simply disagreed on whether another company, one that had not hired the rapist and had no relationship with the rapist, should also have been held liable. Of course, a number of Senators have spoken about the parental notification cases. That is the attempt by the Texas Supreme Court to interpret a new statute which stands for the proposition which I think most Americans would agree with, that when minor girls seek to get an abortion, they should notify their parents or, failing that, seek a bypass of that requirement from a judge. That is what the legislature said they should do, and that is precisely the statute that Justice Owen sought to interpret. I ask the people across America who may be listening to the debates we are having in the Senate, whom would you trust to judge Justice Own and whether she did a good job in that case? Who was more credible to talk about the quality of Justice Owen's legal analysis in the parental notification cases? Would it be, perhaps, say, the author of the law she was interpreting who supports Justice Owen? Would it be, perhaps, her former colleagues on the court, including former Justices Alberto Gonzales and Greg Abbott, who support Justice Owen's nomination. How about now--Attorney General Alberto Gonzales, who swore under oath that the accusations we are hearing are untrue and that he never accused her of being a judicial activist. I have seen some of the advertising that has been done by some of the interest groups attacking Justice Owen unfairly who are claiming that Alberto Gonzales accused her of being a judicial activist. As I pointed out, he swore under oath that is not true. It is clear by any reasonable reading of the opinions that he never referred to her by name or was even, in fact, referring to her by implication. It reminds me of what Mark Twain said: A lie can travel around the world while the truth is still putting on its shoes. How about the pro-choice Democratic law professor appointed by the Texas Supreme Court to help set up procedures under which parental notification statute. Would critics tend to think she might be a credible person when it comes to whether Justice Owen did a good job if this same Democratic pro-choice law professor supports Justice Owen too? She said in a letter that has been made part of the Congressional Record Justice Owen simply did what good appellate judges do every day. If this is activism, then any judicial interpretation of a statute's terms is judicial activism. I ask, should we trust the critics who have misconstrued and mischaracterized and painted a picture of this fine person beyond any recognition by those who know her and have worked alongside her or do you trust the people who actually know her, the people who have worked most closely with her? In fact, it is the very same liberal special interest groups who criticize her today who never wanted the legislature to pass this parental notification law in the first place. It is these same liberal interest groups who literally make their living trashing nominees of this President who are criticizing Justice Owen today. As a former justice of the Texas Supreme Court myself, I find these cases moderately interesting reading. Most Senators and most Americans probably do not, and that is fine. But we can surely agree on this. If these cases are accurately characterized and understood, they definitively demonstrate that Justice Owen is a capable and well- qualified judge, and that of course is why she enjoys such impressive and wide-ranging endorsements from across the aisle. We should keep our eye on the ball. Let's remember what judicial activism really means because the American people know a controversial judicial ruling when they see one. Whether it is the radical redefinition of our society's most basic institutions like marriage, or the expulsion of the Pledge of Allegiance from our classrooms, or from the public square, whether it is the elimination of the three strikes and you are out law and other penalties against hardened criminals, or the forced removal of military recruiters from college campuses, Justice Owen's ruling, of course, falls nowhere near this category of cases. There is a world of difference between struggling to try to interpret the ambiguous expressions of a legislative body and refusing to obey a legislature's directives altogether. If the Senate today were simply to follow more than 200 years of consistent Senate and Constitutional tradition dating back to our Founding Fathers, there would be no question that Justice Owen would be confirmed today. President after president after president had their judicial nominees confirmed by a majority vote, not a supermajority vote. By their own admission, at least at one time, Justice Owen's opponents in this body are using unprecedented tactics to block her nomination and prevent a bipartisan majority from casting their vote in favor of her confirmation. Again, the reason is simple: The case for opposing this fine nominee is simply so weak that only by using a double standard and changing the rules can they hope to defeat her. Legal scholars across the spectrum have long concluded what we in the Senate know instinctively, and that is to change the rules of confirmation, as a partisan minority has done these last 4 years, badly politicizes the confirmation, as a partisan minority has done, and badly politicizes the Judiciary and hands over control of the judicial confirmation process to special interest groups. I ask unanimous consent a summary of supporting quotes from legal scholars be printed in the Record at the conclusion of my remarks.