Statement Of Senator Patrick Leahy
On The Fourth Cloture Vote On The Owen Nomination
November 14, 2003

Today, we are asked to consider the controversial nomination of Justice Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit for the fourth time.  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.  We have now been subjected to a ridiculous display of political showmanship – 40 hours of a phony filibuster on a phony topic.  My Democratic colleagues did a remarkable job of refuting the manufactured arguments and specious numbers presented here on the floor since yesterday evening, and I applaud their efforts.  I am sorry that our colleagues on the other side of the aisle decided to persist in their foolishness, but it has been to no avail.  The American people know that we have done our duty under the Constitution. 

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.  It is unfortunate 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 168 of President Bush’s judicial nominees -- including some of the most divisive and controversial sent by any President.  And until today, only four have been blocked because we have found them so extreme, so out of the mainstream, so dangerous to the independence of the judiciary, that we could not see them confirmed.

But the President has not heeded our message.  Instead of seeing that some of his nominees are unacceptable to the American people, this Administration continues to seek to force through the confirmation process more and more extreme nominees.  This President wants to pack the courts and tilt them sharply in a narrow ideological direction, no matter what the Senate may think.  He has insisted on dividing the American people and the Senate with such choices for our independent federal judiciary.

Too many of this Administration’s nominations divide the American people and the Senate.  This unprecedented level of assertiveness by the Administration has led to an unfortunate level of confrontation with the Senate.  But 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.

What Republican partisans fail to recognize is that Democrats have worked diligently and fairly to consider nearly every one of President Bush’s nominees, including nominees to the same court as Justice Owen is nominated.  Last spring, 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.  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.  Our good faith efforts have been met only with more arrogance.  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 68 judges already this year.

In less than three years’ time, President George W. Bush exceeded the number of judicial nominees confirmed for President Reagan in all four years of his first term in office.  Senate Democrats have cooperated so that this President already surpassed the record of the President Republicans acknowledge to be the “all time champ” at appointing federal judges.  Since July, 2001, despite the fact that the Senate majority has shifted twice, with today’s vote, a total of 168 judicial nominations have been confirmed, including 29 circuit court appointments. 

One would think that the White House and the Republicans in the Senate would be heralding this landmark.  One would think they would be congratulating themselves for  putting more lifetime appointed judges on the federal bench than President Reagan did in his entire first term and doing it in three-quarters the time.  But Republicans have a different partisan message and this truth is not consistent with their efforts to mislead the American people into thinking that Democrats have obstructed judicial nominations.

Not only has this President been accorded more Senate confirmations than President Reagan achieved during his entire first term, but he has also achieved more confirmations this year than in any of the six years that Republicans controlled the Senate when President Clinton was in office.  Not once was President Clinton allowed 68

confirmations in a year when Republicans controlled the pace of confirmations.  Despite the high numbers of vacancies and availability of highly qualified nominees, Republicans never cooperated with President Clinton to the extent Senate Democrats have.  President Bush has appointed more lifetime circuit and district court judges in 10 months this year than President Clinton was allowed in 1995, 1996, 1997, 1998, 1999, or 2000.  

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.     

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 this or of any President to pack the courts.   

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