Kay Hutchison

Mrs. HUTCHISON

Mrs. HUTCHISON. I object.

Mrs. HUTCHISON. Will the Senator yield?

Mrs. HUTCHISON. I want to clarify a point because the Senator from New York tried to equate a filibuster with a hold. I was hoping the Senator from Alabama would show the difference between a hold and a filibuster. If we start calling a hold a filibuster, then we have really changed the rules around here because holds are used for a variety of purposes. They are used for negotiation, and they may or may not lead to a filibuster, and usually they don't. To say that someone put a hold on someone and then there was an effort through extended debate to get those holds taken off is a filibuster is a misreading of the rules; would the Senator agree?

Mrs. HUTCHISON. Mr. President, Senator Hatch will be on the floor shortly. Before he gets here, I want to talk about one of the nominees who we will be voting on, once again, with cloture votes on Friday. That is Justice Priscilla Owen. Justice Priscilla Owen has had a vote in the Senate. She has had four or five votes in the Senate. If we were adhering to the Constitution of the United States, she would be sitting on the Fifth Circuit today. There are three vacancies on the Fifth Circuit. They need to fill their bench. She should be sitting there because she has gotten more than 51 votes. But Priscilla Owen is not sitting on the Federal bench today because we have a new standard that has been put in place for the first time since 1789. Last year, we started having a 60-vote standard for Federal judges. So Priscilla Owen, although she has repeatedly and every time, gotten over the required 51 percent, is not sitting on the Federal bench today. No. Instead, this very qualified supreme court justice of the State of Texas is doing her job, doing it very well, serving as a supreme court justice in the State of Texas, even though she has gotten the requisite number of votes on repeated occasions to be confirmed as a Federal judge by the standards of this Congress from 1789 until 2002, until the rules were changed because we are now filibustering Federal judge nominees. Priscilla Owen was endorsed by every newspaper in Texas when she ran for reelection. Priscilla Owen made the highest grade--the highest grade--on the bar exam when she took it. She graduated at the top of her class from Baylor Law School. She has had an exemplary record both as a supreme court justice for the State of Texas and as a practicing lawyer. She is experienced. She is qualified. She was rendered qualified by the ABA system, the committee, and she has been endorsed by Democrats and Republicans throughout Texas. She has been endorsed by Democratic supreme court justices with whom she served on the Supreme Court of Texas. The former chief justice of the supreme court, a Democrat, named John R. Hill, who also was a Democrat attorney general in the State of Texas--a very fine one, a very respected lawyerNOTICE If the 108th Congress, 1st Session, adjourns sine die on or before November 21, 2003, a final issue of the Congressional Record for the 108th Congress, 1st Session, will be published on Monday, December 15, 2003, in order to permit Members to revise and extend their remarks. All material for insertion must be signed by the Member and delivered to the respective offices of the Official Reporters of Debates (Room HT-60 or S-410A of the Capitol), Monday through Friday, between the hours of 10:00 a.m. and 3:00 p.m. through Friday, December 12, 2003. The final issue will be dated Monday, December 15, 2003, and will be delivered on Tuesday, December 16, 2003. None of the material printed in the final issue of the Congressional Record may contain subject matter, or relate to any event that occurred after the sine die date. Senators' statements should also be submitted electronically, either on a disk to accompany the signed statement, or by e-mail to the Official Reporters of Debates at ``Record@Sec.Senate.gov''. Members of the House of Representatives' statements may also be submitted electronically by e-mail, to accompany the signed statement, and formatted according to the instructions for the Extensions of Remarks template at http://clerkhouse.house.gov/ forms. The Official Reporters will transmit to GPO the template formatted electronic file only after receipt of, and authentication with, the hard copy, and signed manuscript. Deliver statements to the Official Reporters in Room HT-60 of the Capitol. Members of Congress desiring to purchase reprints of material submitted for inclusion in the Congressional Record may do so by contacting the Office of Congressional Publishing Services, at the Government Printing Office, on 512-0224, between the hours of 8:00 a.m. and 4:00 p.m. daily. By order of the Joint Committee on Printing. ROBERT W. NEY, Chairman. in Texas; supreme court chief justice and attorney general of our State--said Priscilla Owen is unqualifiedly the best we could have for this court. She is a person who ought to be on the Federal court. In fact, he came up here and tried to meet with Democratic Senators to talk about how qualified she is. That Priscilla Owen is not sitting on the Fifth Circuit today is a tragedy, and it is not right. She is not the only one who has been asked to meet this higher standard. Look at Miguel Estrada, who came to our country as a boy and did not even speak English, who studied so hard that he was able to go to Columbia and become a Phi Beta Kappa, and then to Harvard Law School, where he graduated, again in the top of his class. Miguel Estrada, the American dream; Miguel Estrada, who sat here since May of 2001, who got the requisite number of votes to be confirmed for the DC Circuit--well over 51--time and time and time again, but he is not sitting on the DC Circuit. He finally said: I can't take this anymore. I have to get on with my life. In September, he said: Take my name off the list. Why? Why have we set a higher bar for Priscilla Owen and Miguel Estrada--these two perfectly qualified people, with great academic standing, with great records, with experience, everything you would want on the Federal bench? What are we going to do to the people who would ask for Federal benches in the future? I am very concerned that after watching this process so many of them are going to say: Please, don't throw me in that briar patch. So, Mr. President, I do not think we should change the Constitution of the United States without going through the process of a constitutional amendment. Have we had a vote on the floor that got a two-thirds majority saying that we will have a 60-vote requirement for confirming Federal judges? Have we done that? That is the process for amending the Constitution of the United States. But I do not think that since I have been here I have seen a vote that would say: No, it is not a 51-vote margin; it is 60. No, Mr. President, we have not had that vote. But, in fact, the amendment to the Constitution is being put forward without going through the process. Because we now have six people nominated to the circuit court bench who are having to meet a higher standard than 51. And that is not right. To date, our President, President Bush, has had 63 percent of his nominees to the circuit court confirmed. The previous three Presidents have had 91 percent of their circuit court judges confirmed by this time in their terms. So I am going to turn the floor over to the distinguished chairman of the Judiciary Committee who has done a wonderful job trying to get these nominations through the process. He has done a magnificent job in trying to bring these great nominees to the floor. But we are standing here tonight because this is a constitutional issue, and it is important. It is important that these good people, who have submitted themselves for this process to be confirmed as Federal circuit judges, be able to, with dignity, have a vote up or down with the same standard that we have had since 1789; and that is a 51-vote margin. Thank you, Mr. President. I yield the floor.

Mrs. HUTCHISON. Mr. President, will the Senator yield?

Mrs. HUTCHISON

Mrs. HUTCHISON. If she has the majority vote on the floor of the Senate, and the Constitution says that advise and consent is not a supermajority, that is what it implies because it didn't ask for a supermajority, then why isn't she sitting on the Fifth Circuit bench right now?

Mrs. HUTCHISON. I thank the Senator from Utah.

Mrs. HUTCHISON. Mr. President, will the Senator yield for a question?

Mrs. HUTCHISON. You know, the distinguished Senator from North Carolina is a graduate of Harvard Law School. She went through when it was very tough. I am a graduate of the University of Texas Law School, and there were five women in my class of 500. So we know what it is like to go through those hard times and graduate from law school. Frankly, we would have a hard time finding a job. Priscilla Owen went through that. She has known the tough times. She has known herself to be superior. That is why I appreciate the Senator from North Carolina talking about my friend, Justice Owen, and why I am standing up for her today, because I know what she has been through. She has come out on top. She has come out on top in everything she has done, and she would have gotten a majority vote on the floor of the Senate. She deserves to be sitting on the Fifth Circuit today. I will ask this final question. Why in the world would the Senate put a blemish on the record of a woman who has high moral standards, who has faced the electorate and won overwhelmingly, who has been endorsed by every newspaper in Texas, and got the highest number of votes the year she ran? Why would the Senate keep her from getting the appointment she is so qualified for?

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, reserving the right to object, I ask consent that the Senator modify her request so that just prior to proceeding as requested, the three cloture votes be vitiated, the Senate would then immediately proceed to three consecutive votes on the confirmation of the nominations, with no intervening action or debate.

Mrs. HUTCHISON. Mr. President, reserving the right to object, I certainly understand the sentiments of the distinguished deputy leader. We do all want to be able to do that, and we will be able to go in shifts. All Members are very interested in what is going on and very pleased that there is action by the United States to make sure that we do everything possible for the stability of Iraq. But we are in a very important debate. We are debating a constitutional issue. I would have to object.

Mrs. HUTCHISON

Mrs. HUTCHISON. Madam President, I am pleased to present the fiscal year 2004 military construction appropriations conference report for the Senate's consideration. This bill provides $9.316 billion for military construction, family housing, and base realignment and closure activities for the Department of Defense for fiscal year 2004. The negotiations over this conference report were uncharacteristically long and difficult for a military construction bill. This difficulty stemmed from two sources. First, and quite simply, there is less money this year for military construction. The administration's request was $1.6 billion below the amount appropriated last year. Even with an allocation slightly above the President's request, this conference agreement provides $1.4 billion less than last year. Compounding this difficulty were two very different points of view about military construction on the part of the Senate and House this year. The administration is in the midst of the most sweeping restructuring of our overseas basing structure since the end of World War II. This restructuring will involve the closure of hundreds of installations, the construction or expansion of perhaps dozens more, the return of significant numbers of U.S. troops to the continental United States, and major changes to the way our Nation stations and deploys its armed forces. This plan is still very much a work in progress. In testimony and briefings by Defense Department officials and military commanders this year--at this time--the scope, timing, and cost are not yet determined. In the face of this uncertainty, the Senate was unwilling to commit prematurely to all of the new construction proposed for U.S. facilities in Europe and Korea, and instead chose to shore up badly needed investment in U.S. military facilities in the United States. The House chose a different approach, voicing many of the same concerns as the Senate but agreeing nevertheless to fund most of the overseas construction. To pay for that construction the House made significant cuts to the President's priorities for domestic military construction spending, including nearly $50 million from already underfunded programs for the National Guard. These different priorities set the stage for the difficult conference we have just concluded. Fortunately, I believe we have crafted a conference agreement that accommodates the most pressing authorities of both chambers and the administration within the funding we were allocated. The Senate agreed to reinstate a number of projects in Europe for which our commander there, General Jones, made personal appeals. After hearing from General LaPorte, we also provided funding for two additional barracks projects in Korea on the condition that a facilities master plan and cost- sharing arrangements with the Korean government are completed before construction on these projects begins. Funding for domestic projects was decreased somewhat but we were successful in reinstating $108 million in cuts made by the House to the President's budget request, including over $42 million for sorely needed Guard projects. The conferees also agreed to create a commission that will study the structure of our overseas bases in light of changing political and military circumstances and provide Congress an independent assessment of our future basing requirements overseas. In short, the conference agreement represents what conference agreements usually do--a respectable compromise among competing priorities. I would like to express my deepest appreciation to the ranking member on the military construction appropriations subcommittee, Senator Dianne Feinstein of California. We have worked extraordinarily closely throughout this process--and through two supplemental appropriations bills passed this year--and I have appreciated her counsel as we have faced these difficult issues. Her staff, Christina Evans and B.G. Wright, worked hand in hand with my staff, Dennis Ward and his assistant, Sean Knowles. I don't think a better cross-party working relationship exists in the Senate. This truly has been bipartisan effort. They have worked together to make the very best military construction bill that could possibly be made. I thank Senator Feinstein for her engagement and willingness to work together for our military. I am pleased to present the fiscal year 2004 Military Construction appropriations conference report and recommend its adoption by the Senate.

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, just to get an understanding, after that 2 minutes 20 seconds, then it goes to the Democratic side for 30 minutes and then back to the Republican side? Is that the way it is?

Mrs. HUTCHISON. Mr. President, in the 2 minutes that I have, I say I think the junior Senator from Texas made a very important point and that is the importance of the delicate balance of powers that was put in our Constitution. I think it is important that we do not say, well, 98 percent of the time we adhere to the Constitution. We need to adhere to the Constitution 100 percent of the time. The Constitution has always said, from its beginning, that we would have a majority required to confirm the judicial nominees of the President. Now, this is by implication, because when the Constitution meant to have a supermajority, it so stated. We have always had a majority, and that is what, by its silence, the advise and consent part of the Constitution has required for judicial nominees, until last year. In fact, I think the President is losing his constitutional right to appoint Federal judges. I think this whole situation is going to deter good people from offering themselves for the bench, and the judiciary must have good people if we are going to keep that very strong separation of powers with three separate but equal branches of Government. In his first 2 years of office, President Bush was able to get 53 percent of his circuit court judges confirmed. The previous three Presidents each had 91 percent in the first 2 years of their office in the very important circuit court judge appointments. Now, the circuit court, of course, is the next step below the Supreme Court. So a 53 percent record in the first 2 years is something that I think should not be accepted. It is very important that we try to get votes on these judges.

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, I object.

Mrs. HUTCHISON

Mrs. HUTCHISON. I yield up to 4 minutes to the senior Senator from Missouri, Mr. Bond.

Mrs. HUTCHISON. Mr. President, I yield up to 4 minutes to the Senator from Wyoming, Mr. Thomas.

Mrs. HUTCHISON. I yield up to 3 minutes to the Senator from Idaho, Mr. Craig.

Mrs. HUTCHISON. Mr. President, I ask what the allocation of time is.

Mrs. HUTCHISON. Fifteen?

Mrs. HUTCHISON. I yield up to 1 minute to the Senator from Mississippi, Mr. Lott.

Mrs. HUTCHISON. Mr. President, if I could ask a unanimous consent request and see if this is what people want: that there be 15 minutes divided on the Democratic side as they wish and 5 minutes to the Senator from Alabama, for a total of 20 minutes from now. Is that an acceptable unanimous consent request to all on the floor?

Mrs. HUTCHISON. I yield up to 4 minutes to the Senator from New Mexico, Mr. Domenici.

Mrs. HUTCHISON. Mr. President, how much time is remaining on our side?

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, I yield 7 minutes to the senior Senator from Alaska.