Orrin Hatch

Mr. HATCH

Mr. HATCH. How much time remains on both sides?

Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished Senator from Georgia.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, I will only take a few minutes and then I intend to yield back the remainder of our time, as long as no one else wants to speak. I appreciate the distinguished Senator from Iowa. I would have yielded time to him, had he needed time, without the extra 10 minutes that were asked for. It seems to me the arguments on the other side come down to this. Mr. Sutton is outside the mainstream of American jurisprudence, that he advocated cases that literally the Supreme Court agreed with, that they disagree with, maybe I disagree with, but the Supreme Court did decide in at least two of those cases, nine to zip, in favor of Mr. Sutton's position. That is basically what it seems to come down to. The fact is, Mr. Sutton, as an advocate, has an obligation to argue the best he can for his clients. He did that, winning 9 of the 12 cases that he had before the Supreme Court, and a number of them unanimously--that they have been complaining about. In the Garrett case, he got five Justices on the Supreme Court, a clear majority, to go along with his particular position. I have read the letter from some of my colleagues on the Judiciary Committee that indicated he has never advocated for a civil rights position. That is pure bunk, and I have made that case here today. What is behind this type of treatment of an excellent nominee such as Jeffrey Sutton? I can understand the distinguished Senator from Iowa who is a very strong advocate for persons with disabilities, as am I, who may not have read the full judicial record and who may not, as a nonlawyer, fully appreciate the role of an advocate. But it is very difficult for me to understand how members of the Judiciary Committee who are advocates themselves, who hold their attorney's licenses in good esteem, can make some of the arguments they have made, and especially in the letter they distributed to all Senators. The record flies in the face of those allegations. The fact is, I believe Jeffrey Sutton will be one of the most sensitive people towards persons with disabilities because he comes from that mindset. His father ran a school for persons with disabilities, kids who suffered from cerebral palsy. He worked for his father. He has argued for persons with disabilities and he has argued in cases where the Court decided against the Americans with Disabilities Act. But the Court made that decision. Is the Court outside the mainstream of American juris prudence? I am sure each of us in this body can find a case or two in which we disagree with the Supreme Court. I can find a lot of cases with which I disagree. But their pronouncements happen to be the law and that has been the law ever since Marbury v. Madison. All I can say is that here is a person who is respected by his peers, who receives the highest rating from the American Bar Association--not a conservative organization, something that has been called the gold standard by my colleagues on the other side--who has eminent experience before the U.S. Supreme Court and other appellate bodies in this country, one of the premier appellate lawyers in the country, even though he is only 45 years of age, who has had extensive experience as an advocate for a wide variety of diverse people, who appeared before the committee and everybody on the committee, even those who are against him here today, admit he is a fine person with great ability. But they try to smear the Federalist Society by saying these are Federalist Society nominees. That is a joke. The Federalist Society puts on the best seminars of any legal society in America today, and those seminars are always balanced with the left and the right. They give the left every chance to explain their position and give the right every chance to explain their position. That is precisely what a good legal society should do. They do not take advocacy positions but they do try to get people to think about the law. I get a little tired of having the Federalist Society run down when some of the most eminent people in society are members of the Federalist Society, which is basically a debating society considering the various aspects of the law and making sure both sides are heard. That is pretty hard to beat. I hope I am wrong, that the real reasons against Mr. Sutton is, No. 1, he is so good; No. 2, he has a chance of being on the Supreme Court someday and why not damage him now so he can't be there; No. 3, he might be pro-life, although I personally don't know what he is with regard to that issue. Those seem to be the major issues. The fact is, he has the highest rating he can possibly have from the American Bar Association. He is an excellent lawyer. He is an excellent advocate. He is a person whom I believe will do justice on the courts. By all measurement by any fair person, any student of the law, you would have to conclude that this man not only is within the mainstream of American juris prudence, but he is one of the leaders in the mainstream of American juris prudence. For the life of me, I don't understand why anybody would vote against Jeffrey Sutton. The mere fact that he may have represented some clients who they don't like, they on the other side, that is not a good enough argument. In fact, it is laughable. Good lawyers represent their clients. In the Garrett case, contrary to what has been argued, he didn't ask for that case. He was called by the attorney general of the State involved and asked if he would be willing to represent them, if I recall correctly. So the arguments that have been made--I haven't heard one meritorious argument on this whole debate. If you look at the record, there is every meritorious argument as to why those who really understand the law, those who really are fair about this process, would vote for Jeffrey Sutton. Mr. President, if there is no one else who wants to speak, then I yield the remainder of my time. Mr. President, I ask for the yeas and nays.

Mr. HATCH. I have no objection if the Senator from Iowa would like to follow the Senator from New York.

Mr. HATCH. Mr. President, I understand the time is divided equally. Whatever is left, they would use.

Mr. HATCH. I have no objection if the Senator from Iowa wants to speak at this time.

Mr. HATCH. It is our understanding if we didn't take the floor, Senator Schumer would. He is not here, but I would be happy to yield to the Senator from Iowa. I reserve the remainder of our time.

Mr. HATCH. Mr. President, I reserve the remainder of our time. Senator Schumer is now here and he can go ahead.

Mr. HATCH

Mr. HATCH. Mr. President, that is not only absurd, it is ridiculous. But that is typical of what is going on here. Rather than give an honest vote up or down, which is what advise and consent means under the Constitution, they would prefer to try to take back the floor, although they are in the minority. I have nothing against Judge Prado. In fact, I will vote for him. I think he is terrific. But it is unseemly for them to try to interrupt the Owen nomination, which has been brought to the floor in accordance with the usual procedures around here, to try to justify their obstruction of not only Miguel Estrada but also Justice Owen by voting for another nominee and making it look as if they are being reasonable about these matters. First of all, this is the first time in the history of this Republic that a second nominee for a circuit court of appeals is being filibustered. To make it look like they are not filibustering, to make it look like they are being reasonable, they are trying to overrule what the majority leader has brought to the floor. I suspect if the Parliamentarian continues to maintain that ruling, we will have to face that problem. Will our colleagues on the other side stop at nothing in their zeal to obstruct a vote up or down on President Bush's nominees? I think it shows even further how broken the Senate is, how broken this procedure and process is. Now, my Democratic colleagues have brought up the fact that Priscilla Owen was defeated last year. Let us remember that she was defeated on a party line, partisan vote, a vote of obstruction. After the first of this year, she was brought up again in committee and passed through the committee with a majority vote--again, a straight partisan vote. All Republicans voted for her and all Democrats on the committee voted against her. Mr. President, I think it is unseemly what the Democrats are trying to do. I think they are trying to cover up their approaches. I think they are trying to cover up their obstruction. I think it is an insult to Justice Owen, an insult to the President of the United States, and it is unfair. Unfortunately, I suspect we have to live with this type of unfairness. Mr. President, I yield the floor.

Mr. HATCH. Mr. President, let's be honest about this. The Senator has been very blunt, very forthright and honest in his remarks that they intend to stop Miguel Estrada and Priscilla Owen. So now we are in the second filibuster. Let nobody have any illusions, we did not know until now that literally they were going to filibuster Priscilla Owen. Now we have two first-time-in-history filibusters against circuit court of appeals judges because the minority does not like these two judges, even though both of them have their gold standard imprinted upon them, unanimously well qualified, by their gold standard, the American Bar Association. It is unseemly, and it appears to anybody who is a fairminded person that there is no real desire to treat Miguel Estrada, with all of his qualifications, and Priscilla Owen with all of her qualifications, in a fair manner. It is also very apparent that the President of the United States is not going to be treated in a fair manner as well. I have no objection to Judge Prado. If that is what they want to do, we will see about that, and we will see about it tomorrow. The fact is, that does not negate the fact that for the first time in history we have this type of obstruction rather than up-or-down votes of executive nominee judges for the circuit court of appeals. I hate to think how this body has devolved from a body that works together to try to albeit argue and fight over certain nominees, but usually and always in the past we voted on them, how it has devolved into this morass whereby two excellent people with the highest recommendations from the American Bar Association and virtually everybody in their communities are being held up for no good reason at all, other than obstruction. Now we at least know where we stand. I am willing to say I believe both of these people will be confirmed in the end, and I believe our colleagues on the other side are going to see that confirmation occur. At least that is what I intend. I hope we can fully debate these matters and then vote up or down. If my colleagues do not like Miguel Estrada, vote against him. If they do not like Priscilla Owen, vote against her. But do not do this anticonstitutional approach of filibustering Executive Calendar circuit court of appeals nominees for the first time in history. We have been willing to put up with a certain amount of this, but there is going to be an end to this type of obstruction. It has got to come to an end, and I intend to see that it comes to an end if I can. I may not be able to, but I think there is a way we can do that. I am just warning the other side that I believe sooner or later we are going to have up-or-down votes on these two jurist candidates. I think it is pretty hard to make a case against Priscilla Owen that does not distort her record, that is factual and nondistortable. I think it is going to be very difficult to make a case against her. For the life of me, I do not understand why our colleagues on the other side are filibustering this excellent woman, who has such impeccable credentials. They have plucked a couple of cases out of the air to criticize her. I venture to say any judge who has been around for a considerable period of time, any of us could find some faults with that judge or we could find cases with which we do not agree. But relatively few matters can they point to that would justify the kind of treatment Priscilla Owen is receiving at this time. I think we should continue the debate. I intend to do so, and we will see where we go from there. I hope my colleagues will be fair, but so far I have not seen it. I think we are in the middle of an obstructive set of tactics that are beneath the dignity of the Senate. Be that as it may, our colleagues do have certain rights. I respect those rights and we will just see where we go from here. I believe Priscilla Owen ought to be confirmed, as I believe Miguel Estrada ought to be confirmed, as I believe Mr. Sutton, who is now confirmed, needed to be confirmed. With regard to Roberts, I might as well make it clear we already have a deal. We have made an agreement. So that should not even enter into this question of whether one person should be confirmed ahead of another. I agree that is a comme ci, comme ca type of thing, but we expect to have a vote on Mr. Roberts. So we will revote him out of committee. We have a rehearing after 12 hours of hearings. We were promised a vote on Justice Cook from Ohio. I hope that vote will be tomorrow, or the next day, in accordance with the agreement we made, because she was supposed to come up right away within a week. Roberts will be up for his second extensive confirmation hearing tomorrow. I intend to be there. Then he will be put on the markup a week from this Thursday. We have had a good-faith assurance that they will not try to put him over for another week. So let's hope our colleagues live up to this agreement. It has not been an easy one for me to make, but we have made it. There have been some pluses to us and some pluses to them. But it is done. So Roberts is not part of the equation, nor should he be used as part of the equation. It is the desire of the majority leader to have Owen approved first. On the other hand, we will see what happens tomorrow. I yield the floor.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Well, if the Senator would yield, maybe I can satisfy--I have no objection----

Mr. HATCH. Mr. President, Justice Owen is committed to opening opportunities to women in the legal profession. She has been a member of the Texas Supreme Court Gender Neutral Task Force, and she served as one of the editors of the Gender Neutral Handbook, a guide for all Texas lawyers and judges on the issue of recognizing and combating gender bias in the legal field. Incredibly, this is the same woman the usual interest groups mischaracterize as ``anti-woman.'' Justice Owen's confirmation is backed by Texas lawyers such as E. Thomas Bishop, president of the Texas Association of Defense Counsel, and William B. Emmons, a Texas trial attorney and a Democrat who says that Justice Owen ``will serve [the Fifth Circuit] and the United States exceptionally well.'' You can see the type of bipartisan support Justice Priscilla Owen enjoys. Justice Owen has served on the Texas Supreme Court since 1994, winning reelection to another 6-year term in the year 2000. She had bipartisan support, earning the endorsement of all major Texas newspapers and the endorsement of the Texas voters--84 percent of the electorate to be exact. This kind of support--running across the board and across party lines--leaves no doubt that Justice Owen is a fair-minded, mainstream jurist. The fact that Justice Owen earned an ABA rating of unanimous well qualified, the gold standard of many of my colleagues on the other side when evaluating judicial nominees, is further evidence of Justice Owen's fitness to serve on the Fifth Circuit Court of Appeals. This well qualified rating means that Justice Owen is at the top of the legal profession in her legal community; that she has outstanding legal ability, breadth of experience, and the highest reputation for integrity; and that she has demonstrated, or exhibited the capacity for, judicial temperament. This ranking comes only after careful investigation and consideration. There is close examination of the nominee's legal writing--whether judicial opinions, law review articles, or other scholarship. Lawyers in private practice and in the public sector are interviewed and provide their candid assessment of the nominee. Those interviewed may be law school professors, lawyers working for public interest services, members of bar associations and legal organizations, and community leaders. Men and women of all backgrounds are invited by the ABA to assess the nominee's fitness for judicial service. All of this investigation is done to provide a full picture of the nominee's qualifications for the federal judiciary. Justice Priscilla Owen will be a great asset to the Fifth Circuit. One can nitpick at her record, as many have done, and will no doubt continue to do, but when we lay out her full record and look at it with a sense of balance, we see a judge who honors the law and lives up to her judicial oath. I express my hope, once again, that we will commit to hold a debate and then vote on Justice Owen's confirmation. This will allow each Senator to decide the merits of her record for himself or herself and allow the entire Senate to fulfill its constitutional duty. I, for one, hope we are not set up for another filibuster--another first time in history. I hope that will not be the case, but if it is, I hope we can face it head on. Ultimately, I hope we can somehow or other pull out the stops and get a vote for Justice Owen up and down. Those who do not agree with her can vote against her; and those who do, can vote for her. This is an excellent woman, one of the best nominees I have seen in my whole 27 years on the Senate Judiciary Committee. I do not think you can find better people than Justice Owen. I personally believe she is a person of great capacity, and I think her record proves that. Mr. President, I yield the floor.

Mr. HATCH. Please let me finish.

Mr. HATCH. I understand. They were nominated by a Republican President. Let me finish this. My colleague has been very generous with his time.

Mr. HATCH. They were nominated--both of them--three times by two different Presidents. From the time they were first nominated to today, it has been 12 years. I will make that more clear. With regard to the 54 holdovers when the Democrats controlled the committee and we had a Republican President, we didn't have the screaming and mouthing off about that from our side. Compare that to when President Clinton left office and there were 67 vacancies, 30 fewer during my chairmanship and 41 left holding versus the 54. By the way, of the 41, 9 were put up so late that nobody could have gotten them through no matter who the Judiciary chairman was. There were really 32. If you take away those who had absolutely no consultation with home State Senators--I mean none--then that reduces it some more. If you take away those who had further investigatory problems, that reduced it some more. There were some--I have been honest to admit this--whom I wish I could have gotten through who I think deserved to go through. But there were many in the 54 who were left by the Democrats who should have gotten through, too. The point I am making is that it isn't the same because the Judiciary Committee chairman can't get some of the holdovers through. I don't blame Senator Biden. I don't think I should be blamed. I did the best I could. It isn't the same as when somebody is brought to the floor and a filibuster occurs. The fact is there has never been a true filibuster up until Miguel Estrada--now Priscilla Owen--and from what the Senator told me, it looks as if they are going to filibuster Judge Pickering even before we have his hearing this year. I hope that is not true. But it apparently is true with regard to Miguel Estrada and Priscilla Owen. I think we have to break through this nonsense. Maybe we will approve all of these judges who are brought to the floor. That is what we should do as Republicans with a Republican President, and we would hope--and, in fact, in every case we have had Democrats' support for these judges--in every case, including Jeffrey Sutton today. It isn't as if it was a wholly partisan process. The Senator is probably right. If we get these judges to the floor, presumably we will pass them. I am not sure of that in every case, as I think we should. But if the Senator doesn't like them, and if others on this side don't, as they did in the case of Jeffrey Sutton, vote against them. It is true, Jeffrey Sutton is now confirmed and will receive his certification to become a circuit court of appeals judge. But my colleagues on the other side made this political point. They don't like some of the things he has done as an advocate. That was their right, to do so. I thought it wasn't the right thing to do myself. I believed there was too much politics involved. But you had a right to do that. But he was confirmed. As Senator Reid, the distinguished Senator from Nevada, pointed out, there were a number of Presidential candidates who were not here to vote on Jeffrey Sutton's nomination. If they thought it was so important a vote, and that the judicial confirmation process is important, they should have been here. I think we all would agree with that. They knew this was the game that was being played to embarrass Mr. Sutton--not by the Senator from New York, and not by a number of others.

Mr. HATCH. Mr. President, I am pleased today to voice my strong support for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals. Justice Owen's nomination has been pending now for nearly 2 years--720 days in total, so I hope we can vote on it soon. Justice Owen is among the longest pending judicial nominees selected by President Bush. She was first nominated on May 9, 2001, so it is natural that we should move forward at this time. I should say at the outset that I truly hope the news reports are inaccurate about another move by the other side to filibuster a well- qualified nominee and deny a vote by the full Senate. We know the usual liberal interest groups are crying for a filibuster, but we ought to do what the American people have sent us here to do, and vote. I expressed a similar hope when Miguel Estrada's nomination reached the floor on February 5. Yet here we are 3 months and 4 cloture votes later and still he has not been allowed a vote. We have 200 years of precedent for providing an up-or-down vote on judicial nominees and we should follow that. If certain Senators do not like Priscilla Owen or Miguel Estrada, they ought to vote no. That is their right. But they ought to vote. I fully support an open debate on Justice Owen's nomination. And we have had a number of debates already. I do not, however, support any filibuster on a circuit court nominee, or any judge for that matter, or, frankly, anybody on the Executive Calendar. I think in the past some of us voted against cloture on Executive Calendar nominees without realizing how important it is to not filibuster the President's nominees, whoever the President might be. I believe we have made those mistakes. And I believe I probably have. It is the wrong thing. But nobody has ever filibustered a circuit court of appeals nominee until Miguel Estrada. If they filibuster Priscilla Owen, that means two in 1 year in a procedure that has never before been used. I fully support an open debate on Justice Owen's nomination. Like I say, we should not suffer through another filibuster. My colleagues on the other side of the aisle have already set a terrible partisan precedent in filibustering for the first time in history a circuit court nominee, Miguel Estrada. A simultaneous filibuster of two nominees would not only be unpredecented, but I think it would damage all three institutions even more. Let us have a full and open debate and then leave it up to each Senator to decide for himself or herself by holding a simple up-or-down vote. Let me now explain why I intend to vote yes on Justice Owen's nomination. Justice Owen is a terrific selection for the Fifth Circuit Court of Appeals. She has the intelligence, the education, the experience, and the integrity we look for in a federal judge. A native of Texas, Justice Owen attended Baylor University and Baylor University School of Law. She graduated cum laude from both institutions and served as a member of Baylor's law review. In addition, she finished third in her law school class, which means that she is worthy of the appointment, something most lawyers can never dream about. Justice Owen went on to earn the highest score on the Texas bar exam and thereafter accepted a position at the nationally ranked Houston law firm of Andrews & Kurth. She worked for the next 17 years as a commercial litigator with the firm, specializing in oil and gas matters and doing some work in securities and railroad issues. Justice Owen has the full support of Senators Hutchison and Cornyn-- both Senators from Texas--who know her well. Senator Cornyn has spoken in committee and on the Senate floor about his time working as a fellow Justice to Justice Owen on the Texas Supreme Court. Senator Cornyn has spoken to the criticism of Justice Owen's work on the bench and has made a strong case for Justice Owen's confirmation. I would commend Senator Cornyn's remarks regarding Justice Owen as worthy of the special attention of all my fellow Senators. Senator Cornyn's responses to criticisms of Justice Owen's judicial record are especially enlightening. Former Texas Supreme Court Justices John L. Hill, Jack Hightower, and Raul Gonzalez--each of them a committed Democrat--also endorse Justice Owen. In particular, they note her impartiality and restraint on the bench. A group of 15 former Presidents of the Texas State Bar supports Justice Owen. This is no partisan group. They write: ``Although we profess different party affiliations and span the spectrum of views of legal and policy issues, we stand united in affirming that Justice Owen is a truly unique and outstanding candidate for appointment to the Fifth Circuit.'' I ask unanimous consent that a copy of this letter be printed in the Record.

Mr. HATCH. Mr. President, Justice Owen is recognized for her services for the poor and for her work on gender and family law issues. Justice Owen has taken a genuine interest in improving access to justice for the poor. She successfully fought with others for more funding for legal aid services for the indigent. Hector De Leon, former president of Legal Aid of Central Texas, has written: ``Justice Owen has an understanding of and a commitment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of insight and empathy that Justice Owen will bring to the Fifth Circuit.'' I ask unanimous consent that a copy of this letter be printed in the Record.

Mr. HATCH. Will the Senator yield on that?

Mr. HATCH. Mr. President, I ask unanimous consent the Senate now resume consideration of the nomination of Priscilla Owen to be United States Circuit Judge for the Fifth Circuit.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I appreciate the Senator yielding. I think it is a credit to him. We don't have enough debates around here where we have interchanges with each other. We stand up and make speeches, and generally they are written speeches. We don't have this type of high- quality debate. Let me just answer the Senator on a few of his assertions that I think are profoundly wrong. First of all, they were not just a few bad cases. They were activist cases that were clearly outside the realm, in the eyes of many, including mine, of what good judicial conduct should be. Second, I think there were other reasons--further investigation and so forth. But even more important than that, I would put my report record up as chairman of the Judiciary Committee against any Democrat chairman--my chairmanship with a Democrat in the White House--against any Democrat chairman with a Republican in the White House with regard to how many people were held over who didn't make it through the process. For instance, when Joe Biden was chairman and the Democrats controlled the committee in 1992 and President Bush left office, there were 97 vacancies and 54 left holding. Two of the fifty- four included Mr. Roberts--who is going to come up again for another hearing tomorrow in committee--and Judge Boyle from North Carolina, who have been sitting there for over 12 years. We didn't complain about it. I think maybe somebody complained, but I didn't. We understand that there are some holdups.

Mr. HATCH. I don't know if that is true or not. All I can say is I was the one who put them through. I also have to correct the record because there has never been a true filibuster against President Clinton's nominees or any other Democrat President's nominees--never. There have been cloture votes. In most of the cloture votes, those were time management approaches. Yes, we had a few people over here who wanted to filibuster, but we were able to stop them. There was no case--none, zero, nada, not ever--where a Democrat nominee who was brought to the floor was not ultimately voted on up or down--never--until this year with Estrada and now Priscilla Owen, and I presume, from what you have said, perhaps Judge Pickering. My contention is this. I know the distinguished Senator from New York is a good lawyer. He is a good friend. I value his friendship. But the fact is, I think there is much merit in having healthy debate, raising the difficulties you have with a judge, but then having a vote up or down. Vote whichever way you want to, for or against. But it is unseemly to start clogging up the Senate with true filibusters for the purpose of trying to stop these people from having a vote up or down. That was never done, not at any time during my tenure as chairman, and I made sure it wasn't done because I don't believe that is constitutionally a sound thing to do.

Mr. HATCH. Will the Senator yield?