Floor Statements

I rise today to express my unqualified support for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals. Last evening I talked about the importance of this debate and this vote. I talked about this vote as an opportunity to remedy the mistreatment Justice Owen received last September when she was voted down in committee, along party lines, and blocked from receiving a Senate vote. We know she would have been confirmed in the Senate by both Democrat and Republican Members, but unfortunately she was never allowed to make it to that point. I talked about this vote as an opportunity for the Senate to show we can be fair to a well-qualified nominee and provide him or her a simple up-or-down vote.

Finally, I talked about this vote as an opportunity to place a great judge, Justice Owen, on the bench. I convened a hearing for Justice Owen last month because I wanted to provide all of my colleagues an opportunity to ask questions of her and to hear her answers. I want to clear up misstatements and misrepresentations of her record dating back to last year. I was confident Justice Owen would again demonstrate her intelligence and capacity for Federal judicial service. To put it mildly, she certainly did not disappoint. She handled questions with insightful and substantive answers. She was a superb witness, one of the best we have ever had before the Senate Judiciary Committee.

We heard valuable testimony from Senator Cornyn, a new Senator, but no newcomer to Justice Owen's record or the workings of the Judiciary. In fact, he served with Justice Owen on the Texas Supreme Court for a period of 3 years, serving side by side with her. He had been a Texas trial judge before that time. He also served as a Texas State attorney general for the last 3 years. Senator Cornyn answered a frequent criticism leveled at Justice Owen, a criticism that is false, that she is out of the mainstream on her own court. If anyone would know whether Justice Owen, in fact, fits this characterization, Senator Cornyn would know. He worked next to her, heard the very same oral arguments she did, examined and debated the same law and facts with her, and decided the very same cases she did.

There is no doubt, then, Justice Cornyn disagreed with Justice Owen at times. I can reel off a few case names as well as anyone. But the significant thing is that he supports her confirmation despite attempts by some to create division where none exists.

Former Texas Supreme Court Justices John L. Hill, Jack Hightower, and Raul Gonzalez, all Democrats, are united in concurring with Senator Cornyn's opinion calling Justice Owen unbiased and restrained in her decisionmaking and applauding her for her impeccable integrity, for her great character and great scholarship. The diverse and formidable group, made up of 15 former presidents of the Texas State bar, wrote in a letter of support: Although we prefer different party affiliations and span the spectrum of views of legal and policy issues, we stand united in affirming that Justice Owen is a true, unique, and outstanding candidate for the appointment to the Fifth Circuit.

There is no dissent from Hector De Leon, immediate past president of Legal Aid of Central Texas, who applauds Justice Owen's commitment to improving the quality of legal services for the poor, or from Mary Sean O'Reilly, lifelong member of the NAACP, pro-choice Democrat who worked with Justice Owen on gender and family law issues. They are joined in support by E. Thomas Bishop, president of the Texas Association of Defense Counsel, who writes: I cannot imagine a more qualified, ethical, and knowledgeable person to sit on the Fifth Circuit; and William B. Emmons, self-styled Texas trial attorney, Democrat, and ``no friend of Priscilla

Owen''--those are his words--who, nevertheless, said: Justice Owen will serve the Fifth Circuit of the United States exceptionally well.

Those who have been in support of Justice Owen are familiar with her record of service, but it deserves brief review in the Senate. Priscilla Owen is a native of Palacios, Texas, a town located on the southern coast of Texas, grew up in Waco, TX, and attended school there. Following graduation from high school, Justice Owen enrolled in Baylor University where she received a bachelor of arts degree cum laude. She attended Baylor University School of Law with a scholarship, again excelling in studies by achieving cum laude and serving as a member of the law review. She scored the highest score in the State on the Texas bar exam after finishing school, a terrific accomplishment in a State the size of Texas.

Justice Owen worked for the Houston firm Andrews & Kurth as a commercial litigator for 17 years, gaining seasoning in appearances before Texas State and Federal courts and courts elsewhere.

Besides extensive work in oil and gas litigation, she handled securities matters and did work on cases heard by the Texas Railroad Commission. She became a partner with the firm in the mid-1980s.

Priscilla Owen successfully ran for a seat on the Texas Supreme Court in 1994 and was reelected in the year 2000 for another 6-year term. Her reelection run in 2000 was supported by every major Texas newspaper. She won with 84 percent of the popular vote.

Based on this shining record of academic and professional achievement, the American Bar Association awarded Justice Owen a unanimous well-qualified rating. That is after sending representatives into the State, talking to people on all sides of various issues; talking to people on both sides of the political spectrum, both Democrats and Republicans; talking to fellow members of the bar, those who knew her the best. They came up with a unanimously well-qualified rating, the highest rating the American Bar Association can give.

This rating does mean 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. Only a few people achieve that select highest rating.

Justice Owen is a member of the prestigious American Law Institute, the American Judicature Society and the American Bar Association, and a Fellow at the Houston and American Bar Associations. She has taken a genuine interest in improving access to justice for the poor while serving on the bench as a liaison to State committees on pro bono and legal services for the indigent. She worked with others to successfully petition the Texas State Legislature to provide better funding for organizations devoted to helping the poor with legal support services.

Earlier, I mentioned a letter of support for Justice Owen, which was sent by Hector De Leon, past President of Legal Aid of Central Texas. Let me just quote a small part of that letter, because it makes the point better than I can, regarding Justice Owen.

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.

Justice Owen is active in her church and respected in her community. She is a mentor to young women attorneys, having made it to the top of the legal profession during a period of time when relatively few women went to law school--fewer were hired by preeminent firms--and even fewer are advanced thereafter to partnership. Justice Owen did all three.

As a judge, Justice Owen is an advocate for breaking glass ceilings in the legal field. She has served on the Texas Supreme Court Gender Neutral Task Force, a working group seeking to promote equality for women in the Texas legal system, and addressing problems of gender bias in the profession. And, she served as one of the editors of the Gender Neutral Handbook, a guide made available to all Texas lawyers and judges, and intended to educate and create awareness about gender bias.

If you look at her record, it is hard for me to imagine why my colleagues on the other side of the floor, on the Judiciary Committee, voted against her in any way. I don't see how they could possibly vote against her with the record that she has. But they did. I suspect that politics had a little bit to do with it.

Justice Priscilla Owen is an excellent choice for the Fifth Circuit. There is no doubt that some will pull isolated bits and pieces out of Justice Owen's rich and textured background in an attempt to discredit and diminish her accomplishments and abilities and jurisprudence. There is no doubt some will avoid mentioning the positive aspects of Justice Owen's career, and despite this fact, it bears noting once more that those who know Priscilla Owen best know what a terrific judge she is now and will be on the Federal court.

I have come to know Justice Owen and her record and I agree she has been an excellent State judge, and she promises to be an excellent Federal judge. I ask my distinguished colleagues in the Senate to join me in voting for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals, and I certainly hope this great justice is not going to be filibustered, as Miguel Estrada has been.

Nevertheless, we are prepared for whatever happens here. She stands in a unique position as one of the finest women lawyers in the country, one of the finest women justices in the country, and one of the finest people who really has worked so hard for women and women's issues and gender issues who has ever served in any court in this country. It is very difficult for me to see how anybody could vote against her.

I hope we can have this vote, up or down, within a relatively short period of debate. I hope everybody will get to the floor and say what they have to say about Justice Owen, and we will be happy to enter into debate at any time.

I yield the floor.

Mr. President, I suggest the absence of a quorum.

Mr. President, I am pleased today to speak in support of Judge Cormac Carney, who has been nominated to the United States District Court for the Central District of California.

Following his graduation from Harvard Law School in 1987, Judge Carney entered private practice with the high powered law firm of Latham & Watkins. He worked there until 1991. He next worked as an associate for another widely respected law firm, O'Melveny & Myers, where he became a partner in 1995. He remained at O'Melveny until his appointment to the Orange County Superior Court in 2001, where he has presided over both criminal and civil matters.

Prior to his appointment to the bench, Judge Carney was an exceptional business litigator who typically represented Fortune 500 companies as both plaintiffs and defendants. His areas of expertise included complex matters such as real estate, partnership, lender liability, environmental law, intellectual property, and insurance coverage.

Even with a heavy workload and prestigious clients, Judge Carney devoted numerous hours to pro bono work for the disadvantaged. As a partner at O'Melveny, he supervised the firm's junior lawyers on pro bono cases, which included housing issues, education, civil rights, and the rights of homeless people. Because of the firm's extensive pro bono work, the Orange County Bar Association awarded it the Pro Bono Services Award, and the Orange County Public Law Center awarded it the Law Firm of the Year Award.

Since his appointment to the bench, Judge Carney has become involved with victims' rights. He currently serves as a member of the Governing Board of Victim Assistance Programs in Orange County. The Board provides support and guidance to all victim assistance programs and advises on procedure and policies relating to operations of victim centers located throughout Orange County.

Although Judge Carney has had a stellar legal career, I must note that before he made law his chosen profession he played professional football, first for the New York Giants and then for the Memphis Showboats. The legal profession is fortunate that he ultimately joined our ranks, since he has served on both sides of the bench with compassion, integrity, intelligence and fairness. I am confident that he will serve with the same qualities on the Federal district court bench.

Mr. President, I compliment the distinguished minority leader for this very sensitive and very important statement about this wonderful person. As someone who belongs to a family which has lost my older brother, and lost a brother-in-law--an older brother in the Second World War, and brother-in-law in Vietnam--and then have another brother-in-law who is suffering tremendously from his war wounds, who fought both in the Inchon Reservoir in Korea and also in Vietnam, I have to say these are the greatest of all Americans. I really appreciate his sensitivity in delivering this message for the Senate here today.

Mr. President, I ask unanimous consent the Senate now resume executive session for the consideration of Calendar No. 86, Priscilla Richman Owen, of Texas, to be U.S. Circuit Judge for the Fifth Circuit.

There will be no action on this tonight.

Mr. President, to answer my distinguished friend, the reason Priscilla Owen is being brought up today is because we are gradually trying to move the President's nominees as quickly as we can. She was nominated on May 9, 2001, almost 2 years ago. I am trying to do it, as close as I can, in chronological order, which seems to me to be the way to go, when I can.

I am not the only one who made this decision; a number of people did, including the majority leader, who desired to bring Priscilla Owen up today. I commend him because she really deserves to be brought up at this particular time. She has been waiting for almost 2 years and went through what I consider to be a tremendously insensitive hearing when the Democrats controlled the committee, and then came back for another hearing just a short while ago, where I think she more than substantiated the reasons why the President would have picked her to be a nominee for the Circuit Court of Appeals.

So I rise today to express my enthusiastic support for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals.

The Senate's consideration of Justice Owen's nomination is important. It is important because it represents an opportunity to remedy the mistreatment Justice Owen received last September when she was voted down in the Judiciary Committee along party lines and not allowed a vote on the Senate floor, where she would have been confirmed by Members of both parties. The decision by the committee last September was unprecedented, representing the first time a nominee rated unanimously well qualified by the American Bar Association had been voted down by the Judiciary Committee. This is despite the fact that Justice Owen had--as she does today--the full, unqualified support of her home State Senators, both of whom testified on her behalf.

It is important to note that with regard to circuit court of appeals nominees, it is important to have the support of both Senators, but it is not absolutely essential. In the case of district court judges, it has been all but essential. The reason is that circuit court of appeals nominees represent not just one State but a whole series of States, as is the case in the Fifth Circuit.

It is important because this nomination will demonstrate whether the senate will be fair to a qualified nominee and provide an up and down vote. This isn't just a qualified nominee; this is a well-qualified nominee, according to the American Bar Association.

It is perhaps most important because we have the opportunity to place a great judge on the Fifth Circuit Court of Appeals.

Three weeks ago we took the first step in remedying the wrongful treatment inflicted on Justice Owen last fall by holding an open hearing in which I invited all Members to come and ask her questions. Members were also free to submit any written questions following the close of the hearing. The hearing was informative. It was productive. Justice Owen answered every question during the hearing and responded to lengthy written questions with substantive can cogent answers. As she has done throughout this process, Justice Owen consistently demonstrated her intelligence, her legal acumen, and her respect for the law.

The hearing was valuable for several reasons. First, the hearing allowed us to obtain some much needed perspective and insights from Senator Cornyn, who, as we all know, served with Justice Owen on the Texas Supreme Court and observed her work as a judge day to day for 3 years in hundreds of cases. He knows her. He knows what it is to be a judge and to be called upon to make hard decisions in close cases. He knows the workings of the Texas Supreme Court. He was most helpful in placing into proper context what outsiders seem to think was extremely unusual or striking criticism from her court colleagues in a few cases--and darn few cases.

Senator Cornyn showed that this type of talk is common among court members and that such criticism is perfectly normal and even healthy for a well-functioning judiciary. Judges disagree from time to time, and they may express themselves with fervor during such times. That is to be expected. Senator Cornyn personally attested to Justice Owen's dedication to her judicial duties. He has seen the work and the care she puts into deciding each case. He also attested to her commitment to enforcing the will of the legislature. As Senator Cornyn said.

I know [Justice Owen] is a good judge who always tries to

faithfully read and apply the law. That is simply what good

judges do, and we can ask for nothing more.

In this regard, it strikes me once again as significant that the two individuals conscripted as star witnesses to discredit Justice Owen as an activist judge--Judge Alberto Gonzales and Senator Cornyn--are actually two of her biggest supporters and attest to her fitness for the bench and for this position on the Fifth Circuit Court of Appeals. Nothing can change that fact no matter how hard some try to pretend otherwise.

Justice Owen is also firmly supported by former Texas Supreme Court Chief Justice John L. Hill and former Justices Jack Hightower and Raul Gonzalez, all of whom are Democrats and all of whom know Justice Owen's record. Justices Hightower and Gonzalez have the additional perspective of judges who personally served with Justice Owen. Fifteen past presidents of the Texas State Bar, Democrats and Republicans alike, have enthusiastically endorsed her. Those who know Justice Owen and her record best know she will make an excellent Federal circuit court of appeals judge.

Second, the hearing allowed us to set the record straight: Justice Owen does not engaged in results-oriented jurisprudence nor does she see such practices as desirable or legitimate in any manner. In addition, there is no credible evidence that Justice Owen harbors biases against plaintiffs or defendants or favors one interest over another. Some have charged that she consistently rules against certain plaintiffs and legal rights. Justice Owen has provided the committee with a long list of decisions which refute that charge. One the issue of results-oriented decisionmaking, let me quote what she said to Senator Kennedy on this subject:

I do not try to achieve a result, and I don't look at

whether I want one side to win or the other side or one

segment of our population to be favored over another. That is

not my job.

Later she said, regarding her decisions:

Sometimes workers win, sometimes big companies win. The

outcome is determined by the law applied to the facts, not my

favoring one side or the other.

These are the words of a judge who understand her role and respects the limits of her judicial authority. We don't need politicians and legislators dedicated to achieving certain results, policies, or outcomes serving on the bench as judges who would do the same.

Incidentally, I find it particularly ironic that on the one hand, Justice Owen is faulted by some for engaging in results-oriented decisionmaking, and, on the other hand, she is faulted for not engaging in what amounts to results-oriented decisionmaking. Thus she is criticized for not reaching ``balance'' in her decisions, for voting too often or too infrequently--take your pick--in the majority or dissent--take your pick--in particular types of cases--take your pick-- or for not sticking up for, showing sufficient ``sympathy'' for, or displaying enough ``dedication'' to, certain types of litigants.

Of course, we should shun jurists who are looking to achieve ``balance'' in their decisions or do what may be popular or controversial in a case--apart from what an honest reading of the law and facts in that case would dictate. And it is serious error--indeed, a misunderstanding of the role of our independent judiciary--to simply translate

a judge's decision in a certain case as that judge's intent to achieve a certain outcome or set some broad policy that will favor or prove ``hostile'' to certain types of future litigants. A decision naturally will prove ``detrimental'' to one of the parties--one side loses the case--but we can hardly criticize the judge who is following the law as passed by the legislature. It is not a matter of looking to see whether some partisan interest group has characterized a judge as ``deaf'' to certain concerns or ``coldhearted'' to certain plaintiffs; it is a matter of looking to see whether a judge can put aside personal feelings and apply the law.

Sometimes, as Senator Cornyn helpfully pointed out during the hearing 2 weeks ago, a judge may or may not like the posture of the case or the record developed in the lower court, but an appellate judge must take the case as it is and make the best decision based upon the law and the facts. That is a judge's job, that is what we expect judges to do, and that is all we should expect judges to do. Justice Owens has lived up to that standard.

Third, the hearing set the record straight on Justice Owen's decisions in judicial bypass cases. No matter how much some would prefer to argue the point, these cases were not about the right to an abortion. There was never any question about the girls' right to an abortion. Indeed, Justice Owen argued in the Doe 2 case that, based on a 1990 Supreme Court decision striking down a Minnesota statute requiring a minor girl to obtain consent from both parents, a statute requiring a girl to notify both parents would also be questionable under the Constitution. Clearly, Justice Owen recognizes a woman's right to obtain an abortion. These cases were about whether a minor girl should be required to notify one parent before obtaining an abortion, in accordance with the Texas state legislation enactments. And Justice Owen has been well within the mainstream of her court in the 14 decided cases, joining the majority judgment in 11 of those cases.

And we should never lose track of the fact that out of the close to 800 bypass cases since the Texas statute was passed, a mere 12 girls have appealed all the way to the Texas Supreme Court. These are usually the toughest cases. By this time, two courts--the trial and the appeals courts--have already considered the bypass petitions and turned them down. Given the deference appellate courts must pay to the findings of the trial court--the court which is in the very best position to listen to the girl, consider all relevant evidence, and hear the arguments-- the decision is likely to affirm the lower court rulings denying a bypass. That should be no great surprise. Certainly Justice Owen and her colleagues on the Texas Supreme Court disagreed in some cases, but in all cases there was a genuine effort to apply applicable precedent.

These parental consent cases show that Justice Owen takes Supreme Court precedent seriously: she looks to precedent for guidance, she cites it, and she makes a good-faith effort to apply it to the case at hand. She understands the rules of appellate review and takes pains to follow them. She is a judge who defers to the legislature's considered judgment in its policy choices and earnestly seeks to ascertain legislative intent in her rulings. None of her opinions, to quote the Washington Post, ``seem[] to us [to be] beyond the range of reasonable judicial disagreement.''

I have been on the Judiciary Committee a long time--27 years now--and I have seen many, many nominees come through the committee. Justice Owen takes a backseat to no one. She has shown herself to be a brilliant, fair, and restrained jurist who will be a strong credit to the Federal courts. Simply put, Justice Owen deserves to be on the bench. I urge my colleagues to do what is right and join me in supporting her confirmation to the Fifth Circuit Court of Appeals.

Mr. President, I suggest the absence of a quorum.

How much time remains on both sides?

Mr. President, this is the first true filibuster in history of a circuit court of appeals nominee--the first one in history. It just has never happened before, no matter how controversial the nominee--and this one certainly is not controversial. They just haven't found anything to criticize him with, and that is the problem.

The distinguished Senator from Vermont says he is not going to rubberstamp anybody. Don't anybody worry about that. The Democrats have not rubberstamped one of these judicial nominations of President Bush so far. In fact, they voted against a high percentage of President Bush's nominees.

Frankly--ask all those who have gone through this process--it is an arduous, difficult, and in many ways a demeaning process as a result of the way my colleagues on the other side seem to be attacking these nominees.

The White House has been accused of political games in putting Miguel Estrada up, and in not allowing fishing expeditions into the most sensitive documents in the Justice Department. Those documents are the appeal, certiorari, and amicus recommendations

made by people such as Mr. Estrada while they are there.

Seven living former Solicitors General have all said there is no way that any administration should give those documents to the Senate. I might add, four of those are Democrats, three of whom were Democratic Solicitors General with whom Miguel Estrada worked and for whom they had great affection. Seth Waxman, who is a great lawyer here in this town and a partisan Democrat, basically said Estrada has every qualification a person should have for the bench and basically said he did a good job while at the Department.

I heard the distinguished Senator from Illinois say he has little to show in legal writings. What about the 15 briefs he has written for the U.S. Supreme Court? That is a lot of legal writings, more than almost any nominee we have had here in the history of my 27 years on the Judiciary Committee. What about all the appeal briefs he has written and the reply briefs he has written, not only on the Supreme Court but in the circuit courts of appeals? They have access to every one of those. What about all the written questions they have given him? Only two asked for them after the hearing, and then we agreed to provide him to answer more written questions, and only one or two have asked further written questions.

There is no desire on the part of my Democratic colleagues to learn more about Miguel Estrada. There is a desire to find something they can hang their hat on to stop him because he is on the fast track to the Supreme Court, they believe. The best way they can show President Bush they are not going to have a conservative Hispanic on the court is by attacking Miguel Estrada, and that is what is behind this matter.

Today we are debating a historic fourth cloture vote on the nomination of Miguel Estrada. No other Executive Calendar nominee, judicial or nonjudicial, has ever been subjected to four cloture votes in this body.

Let me state that a clear majority of this body supports this nomination, as has been determined by the past three cloture votes. So it is regrettable that a minority of Senators have followed their script of obstructionism to prevent the Senate from concluding this debate on this nomination and allowing the Senate to proceed to a final vote. However, it is not surprising they have stalled this nomination. In September of last year, a Democratic staffer on the Judiciary Committee is quoted in The Nation magazine as saying:

Estrada is 40, and if he makes it to the circuit then he

will be Bush's first Supreme Court nominee. He could be on

the Supreme Court for 30 years and do a lot of damage. We

have to stop him now.

That, by the way, is a Democratic staffer on the Senate side.

I am not going to name names on the floor.

Mr. President, I ask for the regular order.

It appears the real reason for the filibuster--I suggest to the distinguished Senator, just read The Nation magazine and you can find out for yourself. Why should I provide information to you anymore?

It appears that the real reason for this filibuster is the threat of a Justice Estrada on the Supreme Court. Of course, I take issue with the assertion that Mr. Estrada would do any so-called damage on any court. In fact, I am confident that he would be a fair and unbiased judge who would follow the law. He would not be an activist, which is probably what this staffer meant when he said that Mr. Estrada would do a lot of damage. But I find it ironic that this staffer knew enough about Miguel Estrada last September to proclaim that he must be stopped at all costs, when some of my Democratic friends insist on continuing this filibuster because they allegedly do not know enough about his views. Read the Nation magazine. I think the real reason for this filibuster lies in the rest of the staffer's quote: That Mr. Estrada is a Supreme Court caliber attorney whose ascension to the Federal bench must be stopped now.

This unparalleled filibuster is one of many weapons of obstruction designed to prevent the President from having his nominees fairly considered and voted upon by the Senate. This is according to a partisan game plan, developed and coordinated as early as April 2001, when, according to the New York Times, Senate Democrats met in a private retreat to forge a unified party strategy to combat the White House on judicial nominees. I would like them to deny this. I would like them to tell me The New York Times misquoted and didn't tell the truth here. They can't deny it. As one participant in the meeting stated, according to that press account, it was ``important for the Senate to change the ground rules'' on judicial nominations.

One of the three noted liberals who coached Senate Democrats on changing the ground rules on judicial nominations was University of Chicago law professor Cass Sunstein. Just the other day I came across a Yale Law Review article that Professor Sunstein co-authored in 1992 entitled The Senate, the Constitution, and the Confirmation Process. This article advocates a confirmation process in which the Senate plays a more aggressive and high-profile role. I found surprisingly familiar many of the principles he propounds in that article because I have heard a number of my Democratic colleagues also arguing for their adoption time and again in the Judiciary Committee and on the Senate floor.

For example, Professor Sunstein says:

[T]he criticisms of the current process are telling.

Supporters of the administration object that members of the

Senate, and private groups generally critical of the

Administration, expend enormous energy not in

disinterested inquiry but in trying to `catch' the

nominee: to find some statement in her record that reveals

a belief so extreme as to be `out of the mainstream.'

When I read this statement, I thought it sounded familiar, so I took a look at the remarks of my colleague from New York Senator Schumer, when he chaired a hearing in June 2001 at which he argued that a judicial nominee's ideology should play a role in the confirmation process.

Sure enough, here is what my good friend said:

[T]his unwillingness to openly examine ideology has

sometimes led Senators who oppose a nominee to seek out non-

ideological disqualifying factors, like small financial

improprieties from long ago, to justify their opposition.

This, in turn, has led to an escalating war of ``gotcha''

politics that, in my judgment, has warped the Senate's

confirmation process and harmed the Senate's reputation.

Professor Sunstein also argues that:

[t]he senate should place the burden of proof--with respect

to character, excellence, and point of view--on the nominee.

He continues:

In exercising its consent power, the Senate is entitled to

reject nominees simply because they have not established that

they have the requisite qualities, even if there is

considerable uncertainly on that point.

Well, as we all know, after Senator Schumer's hearing on ideology in the confirmation process, he held a second hearing arguing Professor Sunstein's precise point: That the burden of proving worthiness for confirmation should be on the nominee. In fact, this is one of the factors sustaining this filibuster: The ill-formed perception that Miguel Estrada has not proven that he deserves to be confirmed to the DC Circuit.

Back to Professor Sunstein. He also says:

The President, his opponents say, chooses `stealth'

nominees whom he has reason to believe are deeply

conservative, but whose views the Senate will not be able to

uncover.

This, of course, is precisely how Senator Schumer characterized Mr. Estrada in The Nation magazine last fall. He said:

Estrada is like a Stealth missile--with a nose cone--coming

out of the right wing's deepest silo.

I have heard a number of my other Democratic colleagues join in the chorus of labeling Mr. Estrada a stealth nominee.

Mr. President, I think I have made my point. This 1992 article written by Cass Sunstein provided the basis for the model that some of my Democratic colleagues are using to stall up or down votes on President Bush's judicial nominees, including Miguel Estrada. This filibuster is part of a coordinated attack designed to deny President Bush's circuit nominees a seat on the Federal bench.

Don't get me wrong--Professor Sunstein is an unabashedly liberal law professor, and as such it can be argued that he has carte blanche, or even an obligation, to push the far-left envelope, which he regularly does. But this does not mean that my Democratic colleagues have an obligation to blindly follow him into the far-left. Some of them have refused to do so, and I commend them for that.

For the others, I will repeat my sentiments which I stated here on the Senate floor just a few weeks ago. This historic cloture vote represents another opportunity for my Democratic colleagues to reverse course. This is the time to end their dangerous obstructionist tactics and grant Mr. Estrada the up or down vote any judicial nominee deserves. They are free to vote against confirming him if they truly believe that he has not answered their questions, or that his record is incomplete without examining the Solicitor General memoranda. But they should not continue to obstruct the will of the majority of this body that desires to give this nominee a vote.

Mr. President, how much time remains on my side?

Mr. President, I reserve the remainder of my time.

Mr. President, how much time remains?

Mr. President, how much time remains on the other side?

Mr. President, I think the Senator is correct to say that opponents have a right to feel the way they do, but they do not have a right constitutionally to filibuster a judicial nominee, in my opinion. And they can vote against this nominee if they want to. If they feel that deeply about their points of view, they ought to vote against the nominee, but they should not use some phony fishing expedition request, knowing that no administration can give up these documents because they are the most privileged documents in the Justice Department. And the former Democrat Solicitors General who are alive say that.

I talked to the current Solicitor General, and he said there is no way they can give those documents up. It would ruin the work of the people's attorney, the Solicitor General. And they know that. So that is just a phony excuse to be able to try and stop this nominee.

By the way, with regard to what the distinguished Senator from Vermont said--he brought up that certain nominees Stephen Breyer, Rosemary Barkett, Richard Paez, and Marsha Berzon were filibustered. Not one of them was filibustered. He brought up they were not confirmed, but they were all confirmed. There has never been a judicial nominee to the circuit court of appeals in this country stopped by a filibuster--never--until this one. And, as far as I am concerned, this one is not going to be stopped either, if we do what is right.

And, of course, a cloture vote does not always signify a filibuster. A lot of these cloture votes we have had in the past--that is why I talk in terms of true filibusters versus time management devices used by the majority leader, whoever that may be. In some cases, our own majority leader moved for cloture. So don't give me the argument that this is not the first filibuster. This is the first filibuster, first true filibuster of a circuit court of appeals nominee in history.

Now, no Republican has claimed that Lavenski Smith or Julia Smith Gibbons were filibustered, but both of these Bush circuit nominees were subjected to cloture votes last year. So that is just a phony argument.

Now, they have so much information on this man there is little or no excuse for not proceeding to a vote. The problem is, they cannot find anything wrong with him. There is so much that is right about Miguel Estrada. And I just cannot quite see some of the arguments that have been given.

Mr. President, how much time is left?

Mr. President, I would like to be interrupted at the end of 1 minute so I can give 2 minutes to the distinguished Senator from Pennsylvania.

Let me say something about the memoranda that my Democratic colleagues demand the White House release. These are appeal, certiorari, and amicus recommendations that Mr. Estrada authored while a career lawyer at the Justice Department. Let's be clear on that.

I keep hearing my Democratic colleagues say there is all this precedent for the release of documents by the White House. Well, of course, the White House releases documents to the Senate every day. But they are not appeal, certiorari, and amicus recommendations, and there is absolutely no precedent for the large-scale fishing expedition they seek on Mr. Estrada--not any.

I agree with the seven former living Solicitors General, four of whom are Democrats, who say that the White House is right not to release Mr. Estrada's memoranda.

Mr. President, I reserve the remainder of my time.

Mr. President, I ask unanimous consent to have printed in the Record the Rules of Procedure for the Committee on the Judiciary for the 108th Congress.

Mr. President, the National Center for Missing and Exploited Children is a critical component of our Nation's battle against child pornography and child exploitation. It is absolutely dedicated to eradicating these evils, and its members work tirelessly towards this end. The Center deserves more than just kind words for these heroic efforts; Federal funding is necessary for it to continue this good work. Indeed, Congress has tasked the Center with many missions, including maintaining the cyber-tipline that receives reports of on-line child pornography, which the Center forwards to appropriate law enforcement officials. In this, as well as many other areas, the Center forms a valuable partnership with both Federal and State law enforcement officials and prosecutors in redressing a host of crimes against children.

The Center's cause is just and its history of performance is excellent. I am pleased to be the lead cosponsor of legislation that will continue to authorize funding for the National Center for Missing and Exploited Children for the next four years. Senator Leahy and I introduced this legislation in the 107th Congress, and our bipartisan effort continues in this new Congress. Our bill again authorizes funding at $20 million per year--twice the previous authorization--in recognition of the severity of the problem and the increased duties the Center has taken on.

As the Chairman of the Judiciary Committee, I am confident that this bill will become law very soon. I hope all of my colleagues will join Senator Leahy and me in supporting this bill.

Mr. President, the National Center for Missing and Exploited Children is a critical component of our Nation's battle against child pornography and child exploitation. It is absolutely dedicated to eradicating these evils, and its members work tirelessly towards this end. The Center deserves more than just kind words for these heroic efforts; Federal funding is necessary for it to continue this good work. Indeed, Congress has tasked the Center with many missions, including maintaining the cyber-tipline that receives reports of on-line child pornography, which the Center forwards to appropriate law enforcement officials. In this, as well as many other areas, the Center forms a valuable partnership with both Federal and State law enforcement officials and prosecutors in redressing a host of crimes against children.

The Center's cause is just and its history of performance is excellent. I am pleased to be the lead cosponsor of legislation that will continue to authorize funding for the National Center for Missing and Exploited Children for the next four years. Senator Leahy and I introduced this legislation in the 107th Congress, and our bipartisan effort continues in this new Congress. Our bill again authorizes funding at $20 million per year--twice the previous authorization--in recognition of the severity of the problem and the increased duties the Center has taken on.

As the Chairman of the Judiciary Committee, I am confident that this bill will become law very soon. I hope all of my colleagues will join Senator Leahy and me in supporting this bill.

Mr. President, I am pleased that the full Senate is considering the nomination of Timothy Tymkovich to the U.S. Court of Appeals for the Tenth Circuit.

Timothy Tymkovich, a graduate of Colorado College and the University of

Colorado School of Law, has worked as a partner in private practice since 1996 with the firm of Hale Hackstaff Tymkovich, representing clients in matters involving State licensing and regulatory issues. He has also acquired some expertise in State and Federal election issues, and he has represented a variety of political parties and candidates. Since 1997 he has represented Great Outdoors Colorado, a highly successful State program which devotes lottery monies to fund wildlife and land conservation efforts and State recreation programs.

Mr. Tymkovich has been a great public servant for the State of Colorado, serving from 1991 to 1996 as the State Solicitor General, where he acted as the chief appellate lawyer for the citizens of Colorado. In that capacity he ably represented the State in State and Federal courts, including the Colorado Supreme Court, the Tenth Circuit Court of Appeals, and the U.S. Supreme Court. He provided legal assistance to the Colorado General Assembly and acted as a liaison to Colorado's congressional delegation. He acted as the Attorney General's delegate to Colorado's judicial selection process. He also worked to reform State criminal, consumer protection and antitrust laws.

When he left the office of Solicitor General, the Denver Post editorialized, ``In an age in which lawyers and government workers are often held in low esteem, Tymkovich, a member of both groups, has stood in stark contrast to both stereotypes.'' The Post added, ``Tymkovich has set a high standard of service.''

Mr. Tymkovich is well respected by his peers for his professionalism and commitment to the field of law. He is a member of the prestigious American Law Institute, which selects members on the basis of professional achievement and demonstrated interest in the improvement of the law; the International Society of Barristers, an honor society made up of 650 trial attorneys in the United States and elsewhere; the American Bar Foundation, which is the research arm of the American Bar Association; and the Colorado Bar Foundation. He currently serves as Chair of the Colorado State Board of Ethics, which acts to advise the Colorado governor and executive branch on ethics issues.

From 1999 to 2001 he served as counsel to the Columbine Review Commission, which was responsible for reviewing all aspects of the 1999 shootings at Columbine High and making recommendations to the Governor regrading ways to respond to, and even prevent, future assaults of the same type. From 1998 to 2000 he served as Chair to the Colorado Governor's Task Force on Civil Justice Reform, which issued findings on the status of civil justice in Colorado and offered recommendations for improvements.

Mr. Tymkovich's nomination has drawn powerful support from all corners. He enjoys the unqualified endorsements of Colorado Senators Campbell and Allard; a number of former Colorado Supreme Court justices, including Justices Erickson, Dubofsky, Neighbors, Rovira, Quinn, and Scott; Colorado Governor Bill Owens; the Colorado Attorney General, Ken Salazar; and Colorado's major newspapers, the Denver Post and the Rocky Mountain News. Significantly Mr. Tymkovich is also supported by former three-term Colorado Governor Roy Romer, who has served as the national vice chair of the Democratic Leadership Council, national co-chairman of the Clinton-Gore `96 campaign, co-chairman of the Democratic National Platform Committee in 1992, and chair of the Democratic Governors' Association in 1991.

I firmly believe Mr. Tymkovich will make a great member of the Tenth Circuit. I urge all of my colleagues to vote to confirm this highly qualified nominee.

Unfortunately there seems to be confusion about Mr. Tymkovich's record on several fronts.

First, some have confused Mr. Tymkovich's advocacy with his personal views. As an advocate for Colorado, Mr. Tymkovich had a duty to defend the laws of Colorado, including Amendment 2. It is entirely unfair and erroneous to state that Mr. Tymkovich has provided his personal views or opinions on these issues. He has not.

Second, it has been said that Mr. Tymkovich compared Amendment 2 to prohibitions on cockfighting and other activities. He has not. As he pointed out to Senator Leahy on February 26, he was quoting a Supreme Court opinion for the simple proposition that there is Supreme Court precedent for a moral component as a rational motivation for an electorate. This wasn't Mr. Tymkovich's personal opinion, it was what the Supreme Court has said on this issue. Mr. Tymkovich made this point clear a month ago.

I raise these points because some seem to be attempting to reshape Mr. Tymkovich's record on the floor into a form I do not recognize. This man has a distinguished legal career. He is supported by Democrats and Republicans alike. He has served as a successful litigator and he was an excellent Solicitor General for Colorado. Those who know him support him and know he will be a terrific judge.

``special'' rights

I would like to respond to the allegation that Mr. Tymkovich views protection for gays and lesbians as providing ``special treatment'' for them.

First of all, Mr. Tymkovich's use of the term `'special treatment'' mirrored the terminology used by participants in the political debate over Amendment 2's passage.

Second, as part of his job as Solicitor General, Mr. Tymkovich had to defend the provisions of Amendment 2, which was intended to disallow laws recognizing ``minority states,'' ``quota preference,'' ``protected status,'' or ``claim of discrimination'' on the basis of sexual orientation.

Never did Mr. Tymkovich in his brief or his law review article argue that homosexuals should not enjoy the Fourteenth Amendment protections available to all.

In the Colorado brief before the U.S. Supreme Court, Mr. Tymkovich specifically pointed out, sponsors of the Amendment intended to prevent a new preferred status designation. To quote the brief: ``Individuals would retain precisely the same rights under State and Federal law that they had prior to the enactment of the special protections'' disallowed by Amendment 2, and Through Amendment 2, Colorado has simply defined the package of civil rights available to homosexuals and bisexuals under the Colorado Constitution as no larger than that provided by the Constitution and laws of the United States.''

It is important to note that Mr. Tymkovich's testimony before Congress in 1996 represented the views of the Colorado Attorney General. He was not there to provide his own views; he was there as an official representative of the State. In fact, Mr. Tymkovich noted during his February 12 hearing that he agreed with some of the testimony, while he disagreed with other parts.

Thank you, Mr. President. I yield the floor.

Mr. President, I suggest the absence of a quorum.

Mr. President, I rise today to introduce the Tax Court Modernization Act. I am joined in this legislation by my colleague Senator Breaux, and by the Chairman and Ranking Democrat of the Finance Committee, Senator Grassley and Senator Baucus.

The United States Tax Court plays an important role in our tax system. However, it has been years since Congress has taken a good hard look at the Tax Court. This bipartisan piece of legislation will improve this Court in a number of ways, and I would like to take a moment to summarize some of its provisions.

First, the TCMA would make minor changes in the Tax Court's jurisdiction. These are small changes that will

have a big impact on the Court's efficiency. For example, the bill would allow the Tax Court to hire employees on its own, just as other courts do. Currently, the Tax Court is forced to hire through the Executive Branch's Office of Personnel Management, entangling the executive power with the judicial power. Restoring the constitutional separation of powers in the hiring process will increase the independence of the Tax Court.

Second, the TCMA would improve the way that Tax Court judges receive retirement benefits and other non-salary benefits. I believe that Tax Court judges should be treated the same way that bankruptcy, Court of Federal Claims, and Article III judges are treated when it comes to fringe benefits.

Tax Court judges are often not provided with the same benefits as similarly appointed Article I and Article III judges. For example, Congress allows Article III, bankruptcy, and Court of Federal Claims judges to participate in the Thrift Savings Plan in addition to the Civil Service Retirement System, while Tax Court judges are ineligible to participate in this program. These disparities in the treatment of our Tax Court judges affect the Court's ability to attract and retain seasoned judges, as well as talented employees.

I have spent many years observing the Federal judiciary. I have spent many years trying to improve the Judicial Branch of our government and to make it the very finest court system the world has ever known. I look forward to working with my colleagues on the Senate Finance Committee on this important piece of legislation. I urge my colleagues, both on the Finance Committee and in the Senate as a whole, to support this legislation.

Mr. President, I rise today to introduce the Tax Court Modernization Act. I am joined in this legislation by my colleague Senator Breaux, and by the Chairman and Ranking Democrat of the Finance Committee, Senator Grassley and Senator Baucus.

The United States Tax Court plays an important role in our tax system. However, it has been years since Congress has taken a good hard look at the Tax Court. This bipartisan piece of legislation will improve this Court in a number of ways, and I would like to take a moment to summarize some of its provisions.

First, the TCMA would make minor changes in the Tax Court's jurisdiction. These are small changes that will

have a big impact on the Court's efficiency. For example, the bill would allow the Tax Court to hire employees on its own, just as other courts do. Currently, the Tax Court is forced to hire through the Executive Branch's Office of Personnel Management, entangling the executive power with the judicial power. Restoring the constitutional separation of powers in the hiring process will increase the independence of the Tax Court.

Second, the TCMA would improve the way that Tax Court judges receive retirement benefits and other non-salary benefits. I believe that Tax Court judges should be treated the same way that bankruptcy, Court of Federal Claims, and Article III judges are treated when it comes to fringe benefits.

Tax Court judges are often not provided with the same benefits as similarly appointed Article I and Article III judges. For example, Congress allows Article III, bankruptcy, and Court of Federal Claims judges to participate in the Thrift Savings Plan in addition to the Civil Service Retirement System, while Tax Court judges are ineligible to participate in this program. These disparities in the treatment of our Tax Court judges affect the Court's ability to attract and retain seasoned judges, as well as talented employees.

I have spent many years observing the Federal judiciary. I have spent many years trying to improve the Judicial Branch of our government and to make it the very finest court system the world has ever known. I look forward to working with my colleagues on the Senate Finance Committee on this important piece of legislation. I urge my colleagues, both on the Finance Committee and in the Senate as a whole, to support this legislation.

Mr. President, I am pleased today to rise in support of Judge Theresa Lazar Springmann, who has been nominated to the United States District Court for the Northern District of Indiana.

Judge Springmann has served on both sides of the bench with distinction. Upon graduation from the University of Notre Dame Law School, Judge Springmann clerked for the Honorable James T. Moody of the United States District Court for the Northern District of Indiana-- the very court she will join upon her confirmation. She then entered private practice as an associate with Spangler, Jennings & Dougherty, P.C., and later became the first woman partner there. During her tenure in private practice, she specialized in insurance defense litigation, automobile liability, contract disputes, unfair competition and trade infringement. She also participated in her firm's pro bono program, accepting at least three cases a year from Legal Services of Northwest Indiana, Inc., in Gary IN.

Judge Springmann has made a broad range of contributions to the bar. She was a founding member of the Lake County Bar Association and has served in various leadership roles with this organization. Judge Springmann is also a member of the Federal Bar Association and the Women Lawyers Association.

Since 1995, Judge Springmann has served as a United States Magistrate Judge for the Northern District of Indiana. From 2000 to 2002, she served as the Federal Magistrate Judges Association Seventh Circuit Director, where she represented all magistrate judges in the Seventh Circuit in forming policy positions and recommendations to the Administrative Office and Federal Judicial Council on issues concerning magistrate judges.

I am confident that Judge Springmann will serve on the bench with integrity, intelligence and fairness.

Mr. President, I rise today to express my support for the military tax bill that is currently pending before the Senate.

First, I would like to commend Senator Grassley, the chairman of the Finance Committee, and Senator Baucus, the committee's ranking Democrat, for their leadership in bringing this legislation to this point. Although this bill has a great deal of support in the Senate and in the House, it has not been an easy process to get it enacted, as the Senate and House each have different versions of the bill. In fact, this legislation was passed in the Senate and in the House last fall in the final days of the 107th Congress. Unfortunately, Congress adjourned before the differences in the bills could be worked out.

As we debate this bill today, hundreds of thousands of our military men and women are in harm's way in Iraq, including 3,000 National Guardsmen and reservists from Utah who have been called into active service. These brave individuals are selflessly risking their lives for their country. Most, if not all, of these people are also making big financial sacrifices to serve in the military. While this bill will not come close to compensating our service people for these financial sacrifices, it will bring some basic fairness to their tax lives.

The tax provisions in this bill are targeted and modest. They are also very much needed. I urge my colleagues to quickly join me in supporting this bill, and I hope the House will join with us in working out the differences in the two versions of this legislation so that these modest relief measures can be quickly sent to the President and signed into law.

Mr. President, I rise in support of the confirmation of James Selna to the U.S. District Court for the Central District of California. I have had the pleasure to review Mr. Selna's distinguished career and I am confident that he will make a fine Federal judge.

Judge Selna graduated Order of the Coif from Stanford Law School in 1970. Upon graduation he joined the prestigious law firm of O'Melveny & Myers, where he maintained a sophisticated commercial practice. Upon becoming a partner in 1978, Judge Selna was involved in many high profile cases, including representing the National Football League in defending antitrust claims. In the period immediately preceding his appointment to the Superior Court, his practice consisted of litigating complex commercial disputes, typically involving high technology issues and companies.

While in private practice, Judge Selna provided many hours of pro bono services to various organizations. For example, he has provided hundreds of hours of legal services on behalf of the Newport Harbor Museum in a successful constitutional challenge to Federal funding restrictions in the 1989/1990 appropriation for the Endowment for the Arts. In addition, he has provided legal advice while serving on the board of Phoenix House of Orange County, a nonprofit drug rehabilitation organization. I would like to commend Judge Selna for the many hours he has given to better his community.

Since 1998, Judge Selna has served with distinction on the Orange County Superior Court. His judicial experience on the State bench will serve him well in the Federal district court. I urge my colleagues to join me in strong support of Judge Selna's nomination.

I yield the floor.

Mr. President, I am pleased to support Philip P. Simon, who has been nominated to the U.S. District Court for the Northern District of Indiana.

Our nominee has had a distinguished legal career. Upon graduation from Indiana University Law School, Mr. Simon joined the law firm of Kirkland & Ellis as an associate, where he focused on general commercial and construction-related litigation, products liability, and employment discrimination and issues.

He next began a long career with the United States Attorney's Office, serving first in the Northern District of Indiana, then in the District of Arizona, and finally returning to the Northern District of Indiana, where he currently serves as Chief of the Criminal Division. During his 13 years with the U.S. Attorney's Office, Mr. Simon has handled a variety of issues ranging from routine drug cases to large scale drug distribution rings, public corruption cases, firearms violations, kidnapping, and white collar fraud.

Mr. Simon is also a member of the Federal Bar Association, the Illinois State Bar Association, and the Chicago Bar Association.

I am confident that Mr. Simon's extensive litigation experience will make him an excellent addition to the Federal bench.