Statement Of Senator Patrick Leahy
Owen Cloture Vote
July 29, 2003

Today, we are asked again to consider the controversial nomination of Justice Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit.  All that has changed since the Senate last voted is that the Administration and Republicans have ratcheted up their unprecedented partisanship and the use of judicial nominees for partisan political purposes.  Recently they have reached a new low through political ads and statements that should offend all Americans.  Last week I urged our Republican Senate colleagues to disavow those despicable efforts.  Instead, they are choosing to continue the unfounded smear campaign of insult and division.

I request that articles from the New York Times this past Sunday as well as editorials from the Boston Globe, Washington Post, Huntsville Times, Palm Beach Post, Atlanta Journal and Constitution, and Pittsburgh Post-Gazette be included at this point in the Record.  

The President picked this particular fight with the United States Senate by re-nominating a divisive and controversial activist to another circuit court.  That is regrettable.  The Republican leadership in the Senate is forcing this confrontation at this time, which is neither necessary nor constructive.  I am sorry that the White House has chosen to make these matters into partisan political fights rather than to work with Senate Democrats to fill judicial vacancies with qualified, consensus nominees. 

Despite the historic low level of cooperation from the White House, we have already confirmed 140 of President Bush’s judicial nominees-- including some of the most divisive and controversial sent by any President.  This year, the Senate has debated and voted on the nominations of three circuit court nominees, who received more than 40 negative votes, which are enough votes to have blocked them from ever being confirmed.  For example, Jeffrey Sutton’s nomination to the Sixth Circuit received the fewest number of favorable votes of any confirmation in almost 20 years, with only 52. 

This Administration is seeking to force through the confirmation process more and more extreme nominees in its effort to pack the courts and tilt them sharply in a narrow ideological direction.  Too many of this Administration’s nominations divide the American people and the Senate more than they unite us.  This unprecedented level of assertiveness by the Administration is leading to more and more confrontations with the Senate.  As the Republicans in the Senate have abandoned any effort to provide a check or balance in this process it has fallen to Senate Democrats to seek to protect the independence of the federal courts and the rights of all Americans.

Our Democratic Senate leadership worked hard earlier this year to correct some of the problems that arose from some of the earlier hearings and actions of the Judiciary  Committee.  However, once again just last week, the Republican members of the Judiciary Committee decided to override the rights of the minority and violate longstanding Committee precedent in order rush to judgment even more quickly for this President’s most controversial nominees.  That was another sad day in Committee and a devastating day for the Senate.  And yet, Republicans persist in their obstinate and single-minded crusade to pack the federal bench with right-wing ideologues, regardless of what rules, longstanding practices, personal assurances, or relationships are broken or ruined in the process. 

What Republican partisans fail to recognize is that Democrats have worked diligently and fairly to consider President Bush’s nominees, including nominees to the same court as Justice Owen is nominated.  Two months ago, on May 1, 2003, the Senate confirmed Judge Edward Prado to the U.S. Court of Appeals for the Fifth Circuit.  Senate Democrats cleared the nomination of Judge Edward Prado to the United States Court of Appeals for the Fifth Circuit without delay.  We still do not know who on the Republican side delayed consideration of the consensus nomination of Judge Prado for a month.  All Democratic Senators serving on the Judiciary Committee voted to report his nomination favorably.  All Democratic Senators indicated that they were prepared to proceed with the nomination.  When Republicans finally agreed to turn to that nomination, Judge Prado was confirmed unanimously.   

When Democrats assumed Senate leadership in the summer of 2001 there had not been a Fifth Circuit nominee confirmed for seven years.  Indeed, Republicans had blocked consideration of three qualified nominees to the Fifth Circuit during 1995-2001, along with some 60 other judicial nominees of President Clinton’s.  In 2001, Democrats worked hard on the nomination of Judge Edith Brown Clement, a conservative judge.  With the efforts of Democrats, Judge Clement was confirmed in 2001.  Thus, unlike the years 1995-2001 when Republicans were preventing action on President Clinton’s nominees to the Fifth Circuit and throughout the country, Democrats have already cooperated in the confirmation of two of President Bush’s nominees to the Fifth Circuit. 

In spite of the treatment by Republicans of so many moderate judicial nominees of the previous President, we proceeded last July with a hearing on Justice Owen.  We proceeded with Committee debate and votes on all three of President Bush’s Fifth Circuit nominees despite the treatment of President Clinton’s nominees by the Republican majority.  The nomination of Priscilla Owen was rejected by the Senate Judiciary Committee.  She was rejected as a judicial activist with extreme views.  The matter should have ended there and then.  Never before in our nation’s history has a President renominated someone to the same judicial vacancy after rejection by the Judiciary Committee.  The President’s renomination of Priscilla Owen was itself unprecedented.  When Republicans insisted on bringing up the nomination for a party-line vote in Committee, that too was unprecedented.    

Far from the labels that Republican partisans will bandy around, Democrats have tried very hard to work with this Administration to fill judicial vacancies.  This is in great contrast to the fate of many of President Clinton’s nominees from Texas, who were blocked and delayed by the Republican majority, including Enrique Moreno, nominated to the Fifth Circuit Court of Appeals but who never got a hearing, never got a vote; Judge Jorge Rangel, nominated to the Fifth Circuit Court of Appeals but who never got a hearing, never got a vote; and Judge Hilda Tagle to the District Court, whose confirmation was delayed nearly two years for no good reason.

We have worked hard to try to balance the need to have enough judges to handle cases with the imperative that they be fair judges for all people, poor or rich, Republican or Democrat, of any race or religion.  This has been especially difficult because a number of this President’s judicial nominees have records that do not demonstrate that they will be fair and impartial. 

The White House’s allies have bombarded us with all sorts of misleading information to try to bully us into rolling over and rubber-stamping these nominees.  They are playing politics with the judicial branch and using it for partisan political purposes.  That is most regrettable. Their charges of prejudice are simply appalling and should be rejected by all Americans as the crass and base partisan politics that they are. 

The plain fact is that this Senate has confirmed more judges at a faster pace than in any of the past six and one half years under Republican control with a Democratic President.  With Democrat cooperation, this Senate has doubled the number of judicial confirmations and more than doubled the number of circuit court confirmations of President Bush’s nominees compared to how the Republican-controlled Senate treated President Clinton’s.  The Senate has confirmed 40 judges already this year.  That exceeds the number of judges during all of 2000, 1999, and 1997, and is more than twice as many judges as were confirmed during the entire 1996 session.  It is more than the average annual confirmations for the six and one-half years the Republican majority controlled the pace of confirmations from 1995 through the first half of 2001.  Thus, in the first seven months of this year, we have already exceeded the year totals for four of the six years the Republican majority controlled the pace of President Clinton’s judicial nominees and the Republican majority’s yearly average.  One hundred and forty lifetime confirmations in two years is better than in any 3-year period from 1995 though 2000, when a Republican majority controlled the fate of President Clinton’s judicial nominations. 

We have already this year confirmed 10 judges to the Courts of Appeals.  This is more than were confirmed in all of four of the past six years when the Republicans were in the majority -- in 1996, 1997, 1999, and 2000.  And in the two other years, the 10th circuit nominee was not confirmed until much later in the year.   We have now confirmed 27 circuit court judges nominated by President Bush.  This is more circuit court judges confirmed at this point in his presidency than for his father, President Clinton, or President Reagan at the same point.  We have made tremendous progress and I want to thank, in particular, the Democratic members of the Judiciary Committee for their hard work in this regard.  These achievements have not been easy.  The Senate is making some progress.  More has been achieved than Republicans are willing to acknowledge. 

So, as we repeat our vote on this nomination today and Republicans continue their drumbeat of unfair political recriminations, we should all acknowledge how far we have come from the 110 vacancies that Democrats inherited from the Republican majority in the summer of 2001.  In addition to more confirmations and fewer vacancies, we have more federal judges serving than ever before.   

 Under a Republican majority, circuit vacancies more than doubled and overall vacancies increased dramatically.  Despite the fact that close to 90 additional vacancies have arisen since the summer of 2001, we have worked hard and cut those vacancies from 110 to less than 60.   Earlier this year, until new judgeships were authorized, the vacancy rate on the federal courts was at the lowest number in 13 years.  Even with the 15 new judgeships effective this month, the vacancy rate is now well below where Senator Hatch inherited it, and well below the rate Senator Hatch called “full-employment.”  There are more full-time federal judges on the bench today than at any time in U.S. history, in the last 214 years.  (And, if you add in the senior judges, there are more than 1,000 federal judges sitting on the federal courts.).  

With a modicum of cooperation from the other end of Pennsylvania Avenue and the other side of the aisle we could achieve so much more.  As it is, we have worked hard to repair the damage to the confirmation process and achieved significant results.  Republicans seem intent on inflicting more damage to the process, to the Senate, and to the independence of the federal courts.

Unfortunately, the nomination of Justice Owen is a nomination that should never have been remade.  It was rejected by the Judiciary Committee last year after a fair hearing and extensive and thoughtful substantive consideration.  The White House would rather play politics with judicial nominations than solve problems.  This unprecedented renomination of a person voted down by the Senate Judiciary Committee is proof of that.  That Senate Republicans are continuing to press this matter knowing the outcome of this vote shows what a charade this has become.

This nomination is extreme.  This nominee has shown herself to be a judicial activist and an extremist even on the very conservative Texas Supreme Court where her conservative colleagues have criticized her judging as activist again and again. 

The nomination process starts with the President.  It is high time for the White House to stop the partisanship and campaign rhetoric and work with us to ensure the independence and impartiality of the federal judiciary so that the American people, all of the American people, can go into every federal courtroom across the country and know that they will receive a fair hearing and justice under the law.   It is time for Senate Republicans to stand up for the Senate’s role as a check on the unfettered power of the President to pack the courts and for fairness. 

                                                                     # # # # #