Floor Statements

Mr. President, as we debate the nominations of Richard Griffin and David McKeague to the Sixth Circuit Court of Appeals, and move on to their almost certain confirmation, I believe we must acknowledge the cooperation and statesmanship of the two Senators from Michigan who have compromised a great deal in order to contribute to the preservation of the rules and traditions of the Senate. Senator Levin and Senator Stabenow have spent much of the last 4 years trying to persuade the President to fulfill his constitutional duty and consult with them on his Michigan appointments, to no avail. Because of that lack of cooperation, combined with the shameful treatment given to President Clinton's nominees, the Michigan Senators exercised their right as home State Senators to withhold their consent to the nominations of candidates chosen without consultation to the Sixth Circuit.

The Michigan Senators had the support of other Senators. Nonetheless, the Michigan Senators, with grace and dedication to this institution, withdrew their opposition to three of those nominees as part of the discussions related to averting the nuclear option. Because of their willingness to go forward, we are here today debating and voting upon the confirmation of two nominees to the Sixth Circuit despite a lack of consultation by President Bush and a complete disregard for the history of this court.

First, it is essential to explain what a significant break with precedent it was that these two nominees were even given a hearing in the last Congress without the support of either of their home State Senators. The scheduling of that hearing was another example of the downward spiral the committee traveled over the last 2 years, when we witnessed rule after rule broken or misinterpreted away.

The list is long. From the way that home State Senators were treated to the way hearings were scheduled, to the way the committee questionnaire was altered, to the way our committee's historic protection of the minority by committee rule IV was violated; the Republican leadership on the committee last Congress destroyed virtually every custom and courtesy that had been available to help create and enforce cooperation and civility in the confirmation process.

The then-chairman of the committee crossed a critical line that he had never before crossed when in June of 2003, he held a hearing for Henry Saad, another of the Michigan nominees to the Sixth Circuit, opposed by both of his home State Senators. It may have been the first time any chairman and any Senate Judiciary Committee proceeded with a hearing on a judicial nominee over the objection of both home State Senators. It was certainly the only time in the last 50 years, and I know it to be the only time during my 31 years in the Senate.

Having broken a longstanding practice of the Judiciary Committee founded on respect for home State Senators, whether in the case of a district or circuit court nominee, the committee's leadership did not hesitate to break it again and hold a hearing for Richard Griffin and David McKeague.

The Michigan Senators did not do what so many other Senators did when holding up more than 60 of President Clinton's nominees, and block them silently. To the contrary, they came to the committee and articulated their very real grievances with the White House and their honest desire to work towards a bipartisan solution to the problems filling vacancies in the Sixth Circuit. We should have respected their views, as the views of home State Senators have been respected for decades. I urged the White House to work with them. I proposed reasonable solutions to the impasse that the White House rejected. The Michigan Senators proposed reasonable solutions, including a bipartisan commission, but the White House rejected every one.

Although President Bush promised on the campaign trail to be a uniter and not a divider, his practice once in office with respect to judicial nominees has been most divisive. Citing the remarks of a White House official, The Lansing State Journal reported that President Bush was simply not interested in compromise on the existing vacancies in the State of Michigan. It is unfortunate that the White House was never willing to work toward consensus with all Senators and on all courts. Over the last 4 years, time and again the good faith efforts of Senate Democrats to repair the damage done to the judicial confirmation process over the previous six years were rejected. And time and again, the rules were thrown by the wayside.

When Republicans chaired the Judiciary Committee and we were considering the nominations of a Democratic President, one negative blue slip from just one home State Senator was enough to doom a nomination and prevent a hearing on that nomination. This included all nominations, including those to the circuit courts. How else to explain the failure to schedule hearings for such qualified and noncontroversial nominees as James Beaty and James Wynn, African- American nominees from North Carolina? What other reason could plausibly be found for what happened to the nominations of Enrique Moreno and Jorge Rangel--both Latino, both Harvard graduates, both highly rated by the ABA, and both denied hearings in the Judiciary Committee? There is no denying that was the rule during the previous Democratic administration. There is no way around the conclusion that with a Republican in the White House, the Republicans in the Senate have found it politically expedient to change the rules and reverse their own practices time and again.

In all, more than 60 of President Clinton's judicial nominees and more than 200 of his executive branch nominees were defeated in Senate committees through the enforcement of rules and precedents that the Republican majority later found inconvenient--now that there is a Republican in the White House. Indeed, among the more than 60 Clinton judicial nominees who the committee never considered there were more than a few who were blocked despite positive blue slips from both home State Senators. So long as a Republican Senator had an objection, it appeared to be honored, whether that was Senator Helms of North Carolina objecting to an African-American nominee from Virginia or Senator Gorton of Washington objecting to nominees from California.

During the last Congress, the Judiciary Committee also took the unprecedented action of proceeding to a hearing on the nomination of Carolyn Kuhl to the Ninth Circuit over the objection of Senator Boxer. When the senior Senator from California announced her opposition to the nomination as well at the beginning of a Judiciary Committee business meeting, I suggested to the chairman that further proceedings on that nomination ought to be carefully considered. I noted that he had never proceeded on a nomination opposed by both home State Senators once their opposition was known. Senator Feinstein likewise reminded the then-chairman of his statements in connection with the nomination of Ronnie White when he acknowledged that had he known both home Sstate Senators were opposed, he would never have proceeded. Nonetheless, in one in a continuing series of changes of practice and position, the committee was required to proceed with the Kuhl nomination. A party- line vote was the result.

With the Saad nomination, the committee made a further profound change in its practices. When a Democratic President was doing the nominating and Republican Senators were objecting, a single objection from a single home State Senator stalled the nomination. There was not a single example of a single time that the committee went forward with a hearing over the objection or negative blue slip of a single Republican home State Senator during the Clinton administration. But once a Republican President was doing the nominating, no amount of objecting by Democratic Senators was sufficient. The committee overrode the objection of one home State Senator with the Kuhl nomination. The committee overrode the objection of both home State Senators when a hearing and a vote was held on the Saad nomination, and once more by holding a hearing and vote for the two circuit court nominees we are discussing today.

I know it is frustrating that there have been unfilled vacancies on the Sixth Circuit for so long. Many of us experienced worse frustration during the Clinton years when good nominees were held up for no discernable reason--other than politics. During President Clinton's second term, the Republican Senate majority shut down the process of confirmations to the Sixth Circuit entirely, and three outstanding nominees were not accorded hearings, committee consideration or Senate votes. In fact, while there were numbers of vacancies on the Sixth Circuit and nominees for those vacancies, from November of 1997 there was not a confirmation to that court until the confirmation of Julia Smith Gibbons while I was chairman on July 29, 2002, a span of nearly 5 years. Not a single Sixth Circuit nominee was even given a hearing during Republican control of the 106th Congress, and one of the nominees, Kent Marcus from Ohio, testified at a Judiciary subcommittee hearing in 2002 that he was told that he would not be confirmed despite public support from his home State Senators. Republicans wanted to keep the vacancies in

case a Republican was elected President.

When I chaired the committee, we broke that impasse with the first Sixth Circuit confirmation in those many years. I scheduled a hearing and a vote for Julia Smith Gibbons of Tennessee, who was confirmed shortly thereafter, and I did the same for John Rogers of Kentucky, who was confirmed in November of 2002.

I know that around the time a Republican leadership staffer was found to have stolen confidential Democratic files there were outrageous accusations made that Judge Gibbons' confirmation was delayed to affect a pending affirmative action case in some way. I have never considered the outcome of any particular case when scheduling that or any other nominee for a hearing.

The facts of this nomination belie this scurrilous accusation. Judge Gibbons was nominated to the Sixth Circuit in October 2001 but did not have a completed file until November 15, shortly before the end of the first session of the 107th Congress. Before her paperwork was complete, the Sixth Circuit panel assigned to the affirmative action cases had already circulated a request for the full court to hear argument, and on November 16, the Sixth Circuit ordered that the case to be argued to the full court. The oral argument in that case took place after Thanksgiving, on December 6.

Given the lateness of her nomination, her paperwork, and the year, Gibbons could not realistically have expected a hearing, a committee vote and a confirmation vote to all have taken place in the 3 weeks between the time her paperwork was complete and the time the Sixth Circuit sat for the oral argument in that case and took a poll about the outcome of that case. The ordinary practice is that only the judges who are on the court at the time the court votes to hear the case ``en banc'' can participate in the case, even if they retire. It is just unreasonable to contend that Judge Gibbons could have heard the December 6 argument in that case.

When we returned for the second session of the 107th Congress, I scheduled several hearings at the request of a number of different Republican Senators. The first circuit court nominee to get a hearing was Michael Melloy for the Eighth Circuit at Senator Grassley's request; followed by Judge Pickering, who was supported by Senator Lott; then Judge D. Brooks Smith, for the Third Circuit, at Senator Specter's request; then Terrence O'Brien, for the Eighth Circuit, at the request of Senators Thomas and Enzi; and Jeffrey Howard, for the First Circuit, who was supported by Senator Bob Smith.

Once those hearings were completed, in the week of April 15, I scheduled a hearing for Judge Gibbons. Her hearing was held on April 25. I listed her for a committee vote the very next week, and all of the Democratic Senators joined in voting her out the same day, May 2. She did not get an immediate floor vote due to a dispute between the White House and Senators over commissions, but she was ultimately confirmed on July 29, 2002.

The Sixth Circuit issued its decision in the Michigan affirmative action case on May 14, 2002, which means the judges were already working on the majority and dissenting opinions for weeks, likely even months, given the complexity of the case. The Supreme Court, where I think we all knew the issue would finally be decided, accepted the appeal of the affirmative action decision later that year and issued its ruling on June 23, 2003.

To say that Democrats used their power to influence the Sixth Circuit in any case is demonstrably false. What is factually true is that from the time the case against the University of Michigan case was filed in District Court until the time I facilitated the confirmation of Judge Gibbons, Republicans had successfully blocked any and all appointees to that Circuit.

Even after the 107th Congress, Democrats continued to cooperate in filling seats on the Sixth Circuit. Although many of us strongly opposed their nominations, we did not block the confirmations of two more controversial judges to that court: Deborah Cook and Jeffrey Sutton. With their confirmations, that brought us to a total of four Sixth Circuit confirmations in 3 years as opposed to no confirmation in the last 3 years of the Clinton administration. We cut Sixth Circuit vacancies in half. With cooperation from the White House, we could have done even better.

The Republican Senate majority refused for over 4 years to consider President Clinton's well-qualified nominee, Helene White, to the Sixth Circuit. Judge White has served on the Michigan Court of Appeals with Judge Griffin since 1993, and, prior to her successful election to that seat, served for nearly 10 years as a trial judge, handling a wide range of civil and criminal cases. She was first nominated by President Clinton in January 1997, but the Republican-led Senate refused to act on her nomination. She waited in vain for 1,454 days for a hearing, before President Bush withdrew her nomination in March 2001. It stands in contrast to the recent mantra from Republicans that every judicial nominee is entitled to an up-or-down vote.

President Clinton had also nominated Kathleen McCree Lewis. She is the daughter of a former Solicitor General of the United States and a former Sixth Circuit Judge. She was also passed over for hearings for years. No effort was made to accord her consideration in the last 18 months of President Clinton's term. The Republican double standard denied her the treatment they now demand for every Bush nominee.

Despite the flawed process that brought us here, the Michigan Senators understood that in recent weeks we found ourselves on the brink of a terrible moment in the United States Senate when the majority leader would break the rules to change the rules in order to achieve the President's goal of packing the courts. They understood the extreme tactics of the Republican majority. I applaud their sacrifice, and hope that the President was listening to the 14 other Senators who expressly asked him in their memorandum of understanding on nominations to engage in real consultation with home State Senators. That is sound advice.

In deference to the Michigan Senators, I will no longer oppose these confirmations. Still, there are issues related to their records and views that trouble me. I hope that they will be able to put any ideologies or preconceptions aside and rule fairly in all cases.

As a judge on the Michigan Court of Appeals since 1989, Judge Griffin has handled and written hundreds of opinions involving a range of civil and criminal law issues. Yet, a review of Judge Griffin's cases on the Michigan Court of Appeals raises concerns. He has not been shy about interjecting his own personal views into some of his opinions, indicating that he may use the opportunity, once confirmed, to further his own agenda when confronted with cases of first impression.

For example, in one troubling case involving the Americans with Disabilities Act--ADA--Doe v. Mich. Dep't of Corrections, Judge Griffin followed precedent and allowed the State disability claim of disabled prisoners to proceed, but wrote that, if precedent had allowed, he would have dismissed those claims. Griffin authored the opinion in this class action brought by current and former prisoners who alleged that the Michigan Department of Corrections denied them certain benefits on the basis of their HIV-positive status. Although Judge Griffin held that the plaintiffs had stated a claim for relief, his opinion makes clear that he only ruled this way because he was bound to follow the precedent established in a recent case decided by his Court. Moreover, he went on to urge Congress to invalidate a unanimous Supreme Court decision, written by Justice Scalia, holding that the ADA applies to State prisoners and prisons. He wrote, ``While we follow Yeskey, we urge Congress to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.''

In other cases, he has also articulated personal preferences that favor a narrow reading of the law, which would limit individual rights and protections. For example, in Wohlert Special Products v. Mich. Employment Security Comm'n, he reversed the decision of the Michigan Employment Security Commission and held that striking employees were not entitled to unemployment benefits. The Michigan Supreme Court vacated part of Judge Griffin's decision, noting that he had inappropriately made his own findings of fact

when ruling that the employees were not entitled to benefits. This case raises concerns about Judge Griffin's willingness to distort precedent to reach the results he favors.

In several other cases, Judge Griffin has gone out of his way to interject his conservative personal views into his opinions. The appeals courts are the courts of last resort in over 99 percent of all federal cases and often decide cases of first impression. If confirmed, Judge Griffin will have much greater latitude to be a conservative judicial activist.

It is ironic that Judge Griffin's father who, as Senator in 1968, launched the first filibuster of a Supreme Court nominee and blocked the nomination of Justice Abe Fortas to serve as Chief Justice. Despite the deference given in those days to the President's selected nominee, former Senator Griffin led a core group of Republican Senators in derailing President Johnson's nomination by filibustering for days. Eventually, Justice Fortas withdrew his nomination. I know that the Republicans here have called filibusters of Federal judges ``unconstitutional'' and ``unprecedented'', but this nominee's father actually set the modern precedent for blocking nominees by filibuster on the Senate floor.

The second of the two nominees before us today is David McKeague. His record raises some concerns, and his answers to my written questions on some of these issues did little or nothing to assuage them.

In particular, I am concerned about Judge McKeague's decisions in a series of cases on environmental issues. In Northwoods Wilderness Recovery v. United States Forest Serv., 323 F.3d 405 (6th Cir. 2003), Judge McKeague would have allowed the U.S. Forest Service to commence a harvesting project that allowed selective logging and clear-cutting in areas of Michigan's upper peninsula. The appellate court reversed him and found that the Forest Service had not adhered to a ``statutorily mandated environmental analysis'' prior to approval of the project, which was dubbed ``Rolling Thunder.''

Sitting by designation on the Sixth Circuit, Judge McKeague joined in an opinion that permitted the Tennessee Valley Authority--TVA--broadly to interpret a clause of the National Environmental Policy Act in a way that would allow the TVA to conduct large-scale timber harvesting operations without performing site-specific environmental assessments. This is the case of Help Alert Western Ky., Inc. v. Tenn. Valley Authority, 1999 U.S. App. LEXIS 23759 (6th Cir. 1999). The majority decision in this case permitted the TVA to determine that logging operations that covered 2,147 acres of land were ``minor,'' and thus fell under a categorical exclusion to the environmental impact statement requirement. The dissent in this case noted that the exclusion in the past had applied only to truly ``minor'' activities, such as the purchase or lease of transmission lines, construction of visitor reception centers and onsite research.

Judge McKeague also dismissed a suit brought by the Michigan Natural Resources Commission against the Manufacturer's National Bank of Detroit, finding that the bank was not liable for the costs of environmental cleanup at sites owned by a ``troubled borrower.'' This is the case of Kelley ex rel. Mich. Natural Resources Comm'n v. Tiscornia, 810 F. Supp. 901 (W.D. Mich. 1993). The bank took over the property from Auto Specialties Manufacturing Company when it defaulted on its loans. The Natural Resources Commission argued that the bank should be responsible for taking over the cost of cleanup because it held the property when the toxic spill occurred, but Judge McKeague disagreed.

In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992), Judge McKeague rejected the efforts of a citizen who lived close to a landfill to require the Federal Aviation Administration to enjoin landfill cleanup efforts until an environmental impact statement regarding the efforts could be prepared. The citizen contended that if the statement were prepared, the inadequacies of a State-sponsored cleanup would be revealed and appropriate corrective measures would be undertaken to minimize further environmental contamination and wetlands destruction. Holding that the alleged environmental injuries were ``remote and speculative,'' Judge McKeague denied the requested injunctive relief.

In Pape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253 (W.D. Mich.), Judge McKeague seems to have ignored relevant facts in order to prevent citizen enforcement of environmental protections. Dale Pape, a private citizen and wildlife photographer, sued the U.S. Corps of Army Engineers under the Federal Resource Conservation and Recovery Act of 1976 (RCRA), alleging that the Corps mishandled hazardous waste in violation of RCRA, destroying wildlife in a park near the site. Despite the Supreme Court's holding in Lujan v. Defenders of Wildlife that ``the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing,'' and even though RCRA specifically conferred the right for citizen suits against the government for failure to implement orders or to protect the environment or health and safety, Judge McKeague dismissed the case, holding that plaintiff lacked standing to sue.

Judge McKeague found plaintiff's complaint insufficient on several grounds, in particular plaintiff's inability to establish which site specifically he would visit in the future. Plaintiff had stated in his complaint that he ``has visited the `area around' the RACO site `at least five times per year' and that he has made plans to vacation in `Soldiers Park' located `near' the RACO site in early October 1998, where he plans to spend his time `fishing, canoeing, and photographing the area.' '' Comparing Pape's testimony with that of the Lujan plaintiff, who had failed to win standing after he presented general facts about prior visits and an intent to visit in the future, Judge McKeague rejected Pape's complaint as too speculative, based on the Court's holding in Lujan that:

[Plaintiffs'] profession of an ``intent'' to return to the

places [plaintiffs] had visited before--where they will,

presumably, this time, be deprived of the opportunity to

observe animals of the endangered species--is simply not

enough to establish standing . . .. Such ``some day''

intention-- without any description of concrete plans, or

indeed, even any specification of when the some day will be--

do not support a finding of the ``actual or imminent'' injury

that our cases require.

In concluding that ``the allegations contained in plaintiff's first amended complaint fail to establish an actual injury because they do not include an allegation that plaintiff has specific plans to use the allegedly affected area in the future,'' Judge McKeague seemed to ignore completely the detailed fact description that Pape submitted in his amendment complaint. The judge further asserted that there was no causal connection between the injury and the activity complained of, and that, in any case, the alleged injury was not redressable by the suit.

On another important topic, that of the scheme of enforcing the civil and constitutional rights of institutionalized persons, I am concerned about one of Judge McKeague's decisions. In 1994, in United States v. Michigan, 868 F. Supp. 890 (W.D. Mi. 1994), he refused to allow the Department of Justice access to Michigan prisons in the course of its investigation into some now notorious claims of sexual abuse of women prisoners by guards undermines the long-established system under the Constitutional Rights of Institutionalized Persons Act or CRIPA. That act's investigative and enforcement regime is unworkable if the Department of Justice is denied access to State prisons to determine if enough evidence exists to file suit, and Judge McKeague's tortured reasoning made it impossible for the investigation to continue in his district.

I know that concern for the rights of prisoners who have often committed horrendous criminal acts is not politically popular, but Congress enacted the law and expected its statute and its clear intent to be followed. It seems to me that Judge McKeague disregarded legislative history and the clear intent of the law, and that sort of judging is of concern to me.

Finally, I must express my profound disappointment in his answer to a question I sent him about a presentation he made in the Fall of 2000, when he made what I judged to be inappropriate and insensitive comments about the health and well-being of sitting Supreme Court Justices. In a speech to a law school audience about the impact of the 2000 elections on the

courts, Judge McKeague discussed the possibility of vacancies on the Court over the following year. In doing so he felt it necessary to not only refer to--but to make a chart of--the Justices' particular health problems, and ghoulishly focus on their life expectancy by highlighting their ages. He says he does not believe he was disrespectful, and used only public information. There were other, better ways he could have made the same point, and it is too bad he still cannot see that.

Under our Constitution, the Senate has an important role in the selection of our judiciary. The brilliant design of our Founders established that the first two branches of Government would work together to equip the third branch to serve as an independent arbiter of justice. As columnist George Will once wrote: ``A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited.'' The structure of our Constitution and our own Senate rules of self-governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party has never acted in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. It acted to ignore precedents and reinterpret longstanding rules to its advantage, but fortunately its attempt to eliminate the voice of the minority entirely failed because of the efforts of well- meaning and fair-minded Senators. Two more well-meaning and fair-minded Senators did their part to save the Senate by clearing the way for the confirmation of the two nominees today. I hope that despite the concerns I have expressed and others that may emerge during this debate, once confirmed Judge Griffin and Judge McKeague will fulfill their oath and provide fair and impartial justice to all who come before them.

Mr. President, with the leader on the floor, have the yeas and nays been ordered on these two nominees?

Mr. President, I ask unanimous consent that it be in order at this time to ask for the yeas and nays on both nominations.

Mr. President, I ask for the yeas and nays.

Mr. President, I know the two Senators from Michigan support both these nominees. They both returned positive blue slips, which is one of the reasons they are moving so quickly.

As to when the time arrives that the leader wishes to begin the votes, I ask unanimous consent that at that time the time on this side of the aisle be yielded back, whether I am on the floor or not.

Mr. President, less than 2 weeks after the horrific events of September 11, Congress passed a law to establish the September 11 Victim Compensation Fund, providing assistance to victims and their families during an unimaginably difficult time. I was pleased to work with my colleagues to create this needed resource for the families of this national tragedy. The families of victims that died in the September 11 attacks also came together and created their own nonprofit organization, Families of September 11.

Although no amount of compensation can replace a lost loved one, Families of September 11 and Ken Feinberg, the Special Master in charge of overseeing the Fund, worked diligently to improve the rules governing the September 11 Victim Compensation Fund, to give the victims and their families more flexibility and to provide information to victims and their families about how and where they could find support. Working together, Mr. Feinberg and Families of September 11 reached out to the victims and their families to make sure they understood their rights and to assist them in filing their claims. This task was made all the more difficult because many victims and survivors of those terrorist attacks had to confront the logistical burden and emotional pain of filing a death or injury claim.

Last October, Mr. Feinberg submitted to the Department of Justice a final report summarizing the accomplishments and work of the September 11 Victim Compensation Fund. While the September 11 Victim Compensation Fund has reached its final deadline, Families of September 11 continues its mission, including supporting legislation on security and intelligence reform. This week, Families of September 11 also submitted a final report to the Department of Justice, sharing the experiences of the victims and their families, including those who chose not to participate in the September 11 Victim Compensation Fund. The report in its entirety may be read at http://www.familiesofseptember11.org. Mr. President, I ask that a copy of the Executive Summary of this report be in the Record for lawmakers and the public to review.

Mr. President, I see the distinguished President pro tempore on the Senate floor. I understand that he is going to ask consent that we recess. I first ask unanimous consent that my time not begin until after the time necessary for the distinguished senior Senator from Alaska, and I yield to him.

Mr. President, over the course of the Senate's consideration of the nomination of Janice Rogers Brown, we have heard many compelling statements in opposition. Significantly, we have heard from both Senators from California in opposition. Their opposition, like mine, is based on Justice Brown's record.

Through bipartisan action, the Senate has deterred the misguided bid by some on the other side of the aisle for one-party rule by means of their so-called nuclear option. Thanks to the hard work of a bipartisan group of 14 Senators, we have, for now, preserved the system of checks and balances. I mention this because as we vote on the nomination of Janice Rogers Brown, I urge all Senators to take seriously the Senate's constitutionally mandated role in determining who is going to serve lifetime appointments in the Federal judiciary.

I wish all Senators, Republicans and Democrats alike, would take these matters seriously and vote their consciences and evaluate with clear eyes the fitness of this woman for this lifetime appointment. After all, some of my Republican colleagues have admitted to me privately how they would like to vote. They know that Justice Brown is a consummate judicial activist whose record shows she favors rolling back the clock 100 years on workers' and consumer rights and consistently has taken the side of corporations against average Americans.

Her record shows she does not believe in clean air and clean water protections for Americans and their communities. She does not believe in laws providing affordable housing, and she would, if she could, wipe out zoning laws that protect homeowners. Her record shows she takes an extremely narrow view of protections against sexual harassment, race discrimination, employment discrimination, and age discrimination. In fact, she has such a hostility toward such programs as Social Security that she has argued that Social Security is unconstitutional. She has said that ``[t]oday's senior citizens blithely cannibalize their grandchildren . . . ''

Why is this important? Because she would be on a court that would handle every one of these issues, and it would mean that as a judicial activist, she would rule entirely different in the cases that court decides.

We have heard a lot about her life story. If this were a vote on a Senate resolution commemorating her life story, I am sure the entire Senate would gladly support it. Instead, this is a vote about the lives of multiple millions of other Americans whose lives would be affected by this nominee's ideological activist penchants. This is, after all, a lifetime appointment on a Federal circuit court on which her ideology would be especially harmful and destructive to the people. That is why she has earned opposition of African-American leaders, law professors, and newspapers around the country. In fact, the list of African- American organizations and individuals opposing Justice Brown's nomination is one of the most troubling indications that this is another divisive, ideologically driven nomination. All 39 members of the Congressional Black Caucus oppose her nomination. The Nation's oldest and largest association of predominantly African-American lawyers and judges, the National Bar Association, and its state counterpart, the California Association of Black Lawyers, both oppose this nomination. The foremost national civil rights organization, the Leadership Conference on Civil Rights, opposes it.

The women of Delta Sigma Theta oppose this nomination.

I ask unanimous consent that letters detailing opposition, as well as a list of such letters, be printed in the Record.

Mr. President, and, of course, both the Senators from her home State have opposed her. In fact, if she is confirmed, this may be the first such Senate confirmation over the opposition of both home State Senators in the history of the Senate, something, I might say, that during President Clinton's time was inconceivable-that Republicans would even consider a nomination if one Senator from the home State opposed the nominee and, of course, under no circumstances both. Here both Senators do oppose her, and yet her nomination is going forward.

There remain 36 Republican Senators serving today who voted against the nomination of Justice Ronnie White of Missouri in 1999. Justice White is now the chief justice of the Missouri Supreme Court, having been that high court's first African-American member. Former Senator Ashcroft came to the floor and vilified Justice White as pro criminal in 1999, after action on that nomination had been delayed more than 2 years. Then, in a surprise party-line vote, Republican Senators all voted against his confirmation. In fact, that is the only party-line vote to defeat a judicial nomination that I can remember in my 31 years here.

Immediately after this party-line vote, by which Republican Senators defeated the nomination of Justice Ronnie White, many of them told us: We know he is qualified, but we had no choice because both home State Senators opposed the nomination. In order to respect the views of these home State Senators, they had to vote against a nominee who many felt was highly qualified.

Both Justice Brown's home State Senators oppose her confirmation. They have been consistent in that opposition. Republican Senators felt compelled to vote against Justice White, a nominee of President Clinton, in 1999 because of the opposition of his home State Senators. It is hard to see how they can now turn around and say: Well, but we can vote for a Republican nominee notwithstanding the same kind of opposition.

It is not just the two distinguished Senators from California who oppose her. Her views are so extreme that more than 200 law school professors around the Nation wrote to the Judiciary Committee expressing opposition.

The ``Los Angeles Times'' concludes she is a ``bad fit for a key court.'' The ``Detroit Free Press'' concluded she ``has all but hung a banner above her head declaring herself a foe to privacy rights, civil rights, legal precedent, and even colleagues who don't share her extreme leanings.''

I ask unanimous consent that these editorials, as well as a list of other editorials opposing the Brown nomination, be printed in the Record.

Mr. President, I have voted to confirm hundreds of nominees with whom I differ. I vote for them when I think they will be fair and impartial. I voted for hundreds of President Bush's nominees, as I did his father, President Reagan, and President Ford, all Presidents with whom I have been proud to serve. But I voted against those, whether Republican or Democratic nominees, if I disagreed with them, if I felt they could not be impartial.

I believe Judge Brown has proven herself to be a results-oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change depending upon the subject before her and the results she wants to reach. She is the definition of an activist judge, the sort of person President Bush said he would not nominate.

Whether it is protection of the elderly, workers and consumers, privacy rights, free speech, civil liberties, and many more issues, she has inserted her radical views into her judicial opinions time and again.

She repeatedly and consistently has advocated turning back the clock 100 years to return to an era where worker protection laws were found unconstitutional.

It is no small irony this President, who spoke of being a uniter, has used his position to renominate Justice Brown and others after they failed to get consent of the Senate.

These provocative nominees have divided the Senate and the American people, and they brought us to the edge of a nuclear winter in the Senate.

This confrontational approach and divisiveness have continued, despite the confirmation of 209 out of his 218 jurdicial nominees.

I oppose giving Justice Brown this lifetime promotion to the second highest court in our land because the American people deserve judges who will interpret the law fairly and objectively. Janice Rogers Brown is a committed judicial activist who has a record of using her position as a member of a court to put her views above the law and above the interests of working men and women and families across the Nation.

We must not enable her to bring her ``jurisprudence of convenience'' to one of the most important Federal courts in the Nation.

Over the course of the Senate's consideration of the nomination of Janice Rogers Brown to be a judge on the United States Court of Appeals for the D.C. Circuit, I have publicly explained why I cannot support it. My opposition is based on Justice Brown's extensive record, which raises unavoidable concerns about her pursuit from the bench of her extremist judicial philosophy and therefore about her fitness for this lifetime appointment. Justice Brown failed to gain the consent of the Senate last year. As I explained in April when voting against her confirmation in the Senate Judiciary Committee, not only has Justice Brown failed to resolve any of my concerns since her hearing in late 2003, but Justice Brown's opinions issued since that time reinforce and deepen the troubling patterns in her record.

Through bipartisan action, the Senate has deterred the misguided bid by some on the other side of the aisle for one-party rule by means of their nuclear option. Thanks to the hard work of a bipartisan group of 14 Senators, we have, for now, preserved the system of checks and balances, designed by the Founders, that are so integral to the function of the Senate and to its role. As we turn now to the nomination of Janice Rogers Brown, I urge all Senators to take seriously the Senate's constitutionally mandated role as a partner with the executive branch in determining who will serve lifetime appointments in the federal judiciary. I urge all Senators, Republicans and Democrats alike, to take these matters seriously and vote their consciences. Republican Senators and Democratic Senators alike will need to evaluate, with clear eyes, the fitness of Justice Brown for this lifetime judicial appointment before casting a difficult vote on this problematic and highly controversial nominee. My opposition to Justice Brown's nomination is based, as it has always been, on her record.

Justice Brown is a consummate judicial activist whose record shows that she favors rolling back the clock 100 years on workers' and consumers' rights and taking the side of corporations against average Americans. Her record shows she does not believe in clean air and clean water protections for Americans and their communities, she does not believe in laws providing affordable housing, and that she would, if she could, wipe out zoning laws that protect homeowners by keeping porn shops and factories from moving in next door. Her record shows she takes an extremely narrow view of protections against sexual harassment, race discrimination, employment discrimination, and, most of all, age discrimination. In fact, Justice Brown has a hostility toward such programs as Social Security that is so great that she has argued that Social Security is unconstitutional, and has said that ``[t]oday's senior citizens blithely cannibalize their grandchildren. . . .''

We have heard a great deal from Justice Brown's supporters about her life accomplishments. It is an impressive story, and Justice Brown's accomplishments in the face of so much adversity are commendable. But we cannot base our votes on the confirmation of a lifetime appointee to a Federal court on biography alone. If this were a vote on a Senate resolution commemorating her life story, I am sure the entire Senate would gladly support it. But instead, this is a vote about the lives of multiple millions of other Americans whose lives would be affected by this nominee's ideological penchants.

I hope that, as debate Justice Brown's nomination, we will not--as we did 2\1/2\ years ago--hear the whispering of unfounded smears against those who oppose this nomination. I have spoken recently about my disappointment in the White House and Republican partisans for fanning the flames of bigotry and refusing to tamp down unfounded claims that amount to religious McCarthyism. I urged the White House, Republican leaders, and moderate Republicans to join me in condemning the injection of such smears into the consideration of nominations. The failure to do so risks subverting this constitutional process and the independence of our federal courts.

The unfounded charges of bigotry are belied by the numbers of major African-American leaders, newspapers and law professors across the country who also oppose this nomination based on Justice Brown's record of extremism. The list of the African-American organizations and individuals who oppose Justice Brown's nomination is a clear indication that this is another divisive, ideologically driven nomination. The 39 members of the Congressional Black Caucus oppose Justice Brown's nomination, including the respected congressional delegate from the District of

Columbia, Eleanor Holmes Norton, and Representatives Charles Rangel, Elijah Cummings and John Conyers, and the chair of the Congressional Black Caucus, Representative Mel Watt. The nation's oldest and largest association of predominantly African-American lawyers and judges--the National Bar Association--and its State counterpart--the California Association of Black Lawyers--both oppose this nomination. The foremost national civil rights organization, the Leadership Conference on Civil Rights, opposes this nomination. The women of Delta Sigma Theta oppose this nomination. Dr. Dorothy Height, Dr. Joseph Lowery and Julian Bond, historic leaders in the fight for equal rights, have spoken out against this nomination.

The baseless smears that we have heard are irresponsible, harmful and demonstrably false. Democrats have voted to confirm each of the other 15 African-American judges nominated by President Bush and brought to the Senate for a vote, including all four of the other African- Americans confirmed to appellate courts. Democrats have fought hard to integrate the Fourth Circuit, working with Senator Warner through the confirmation of Judge Roger Gregory, and with Senator Edwards on the confirmation of Judge Allyson Duncan. And it was Democratic Members who were outraged at the Republicans' partyline vote against Justice Ronnie White and Republican pocket filibusters of Judge Beatty, Judge Wynn, Kathleen McCree Lewis, and so many outstanding African-Americans judges and lawyers blocked during the Clinton years.

Let us not see that shameful card dealt from the deck of unfounded charges that some stalwarts of this President's most extreme nominees have come more and more to rely upon. Let us stick to the merits. As so many have explained in such detail over the last few days, those who oppose her do so because they retain serious doubts about her nomination and see her as an ideologue or a judicial activist.

The basis for my opposition is the extremism of Justice Brown's record. That, too, is the reason both of her home State Senators oppose her. As we have heard in the Judiciary Committee and here on the Senate Floor, both Senators from California, who arguably know this nominee and her record better than most, strongly oppose Justice Brown's confirmation. There was a time in the Senate, not that long ago, when opposition by a nominee's home State Senators, no matter how late in the day it was announced, was enough to halt a nomination. I remember how that tradition was adhered to scrupulously by Republican Senators 5\1/2\ years ago when the Senate voted on the confirmation of Ronnie White to be a judge in Missouri. Even though one of his home State Senators had warmly endorsed him at his hearing, an eleventh hour reversal by that Senator led to every Republican Senator voting against Justice White. Thirty-six of those Senators are still serving in the Senate today, and if the approval of a nominee's home State Senator is as important today as it was in 1999, then the Senate will reject this nomination. The former Chairman of the Judiciary Committee came to the Senate after the defeat of Justice White's nomination to explain explicitly the importance of home State opposition in that unprecedented party-line vote.

As I have detailed, Justice Brown's home State Senators are not the only ones who oppose her. Her views, both in speeches and in opinions issued from the bench, are so extreme that more than 200 law school professors from around the country wrote to the Committee, prior to her hearing, expressing their opposition.

The Senate is faced with several extreme nominees who have clear records of trying to rewrite the law from the bench. In Justice Brown's hearing before the Committee, then-Chairman Hatch began the hearing by referring to President Bush's description of his judicial nomination standard: ``Every judge I appoint will be a person who clearly understands the role of the judge is to interpret the law, not to legislate from the bench. My judicial nominees will know the difference.'' Regretfully, Justice Brown, a practitioner of a results- oriented brand of judicial activism so radical she is frequently the lone dissenter from a 6-1 Republican majority court, represents the antithesis of the President's purported standard. In re-nominating Justice Brown after she failed to gain consent of the Senate, the President has, again, selected a judicial nominee who deeply divides the American people and the Senate.

After Justice Brown's record was examined in the hearing on her nomination, editorial pages across the country came to the same conclusion. Justice Brown's home State newspaper, The Los Angeles Times, concluded she is a ``bad fit for a key court,'' after finding that ``in opinions and speeches, Brown has articulated disdainful views of the Constitution and government that are so strong and so far from the mainstream as to raise questions about whether they would control her decisions.'' The Detroit Free Press concluded: ``Brown has all but hung a banner above her head declaring herself a foe to privacy rights, civil rights, legal precedent and even colleagues who don't share her extremist leanings.'' The Atlanta Journal and Constitution concluded that Janice Rogers Brown is ``not qualified for the U.S. Court of Appeals for the D.C. Circuit.'' The Washington Post found that Justice Brown is ``one of the most unapologetically ideological nominees of either party in many years.'' And The New York Times concluded that, based on Justice Brown's record as a judge, she has ``let ideology be her guide in deciding cases.'' I would ask that these editorials expressing opposition, as well as a list of all of the editorials opposing the Brown nomination be entered in the Record.

Justice Brown has a lengthy record of opinions, of speeches and of writings. She has very strong opinions, and there is little mystery about her views, even though she sought to moderate them when she appeared before the Judiciary Committee. I come to my decision, after reviewing Justice Brown's record--her judicial opinions, her speeches and writings--and considering her testimony and oral and written answers provided to the Senate Judiciary Committee.

My opposition is not about whether Justice Brown would vote like me if she were a member of the United States Senate. I have voted to confirm probably hundreds of nominees with whom I differ. Nor is this about one dissent or one speech. This is about Justice Brown's approach to the law, an approach which she has consistently used to promote her own ideological agenda that is out of the mainstream. Her hostility both to Supreme Court precedent and to the intent of the legislature does not entitle her to a lifetime appointment to this highly important appellate court.

As I have said--and as remains true today--Janice Rogers Brown's approach to the law can be best described as a ``jurisprudence of convenience.'' Justice Brown has proven herself to be a results- oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change and shift depending on the subject matter before her and the results she wants to reach.

Hers is a record of sharp-elbowed ideological activism.

While Justice Brown's approach to the law has been inconsistent--she has taken whatever approach she needs to in order to get to a result she desires--the results which she has worked toward have been very consistent, throughout her public record. At her hearing, Justice Brown attempted to separate her speeches from her role as a judge. However, on issue after issue--the protection of the elderly, workers and consumers; equal protection; the takings clause; privacy rights; free speech; civil liberties; remedies; the use of peremptory challenges, and many more--Justice Brown has inserted her radical views into her judicial opinions time and time again. In fact, Justice Brown's comments to groups across the country over the last 10 years repeated the same themes--sometimes even the same words--as she has written in her bench opinions.

In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown wrote of the demise of the Lochner era, claiming ``the `revolution of 1937' ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution.'' Similarly, in a speech to the Federalist Society, she said of the year 1937: it ``marks the triumph of our own socialist revolution.''

In San Remo Hotel v. City and County of San Francisco, Justice Brown wrote, ``[t]urning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.'' Similarly, two years earlier, she told an audience at the Institute for Justice: ``If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy--a license to steal, a warrant for oppression.''

As Berkeley Law School Professor Stephen Barnett pointed out about Justice Brown's ``apparent claim that these are `just speeches' that exist in an entirely different world from her judicial opinions,'' ``that defense not only is implausible but trivializes the judicial role.'' I agree with Professor Barnett on this and understand his determination to oppose her nomination. Justice Brown's provocative speeches are disturbing in their own right, and they are made more so by their reprise in her opinions.

During her hearing, Justice Brown told the Committee that she will ``follow the law.'' However, her opinions from the bench speak much louder than her words to the Committee. In such a judicial dissent she wrote, ``We cannot simply cloak ourselves in the doctrine of stare decisis.''

Justice Brown's disregard for precedent in her opinions in order to expand the rights of corporations and wealthy property owners, at the expense of workers and individuals who have been the victims of discrimination, stands among the clearest illustrations of Justice Brown's results-oriented jurisprudence. In several dissents, Justice Brown called for overturning an exception to at-will employment that has been long recognized by the California Supreme Court, and was created to protect workers from discrimination. She has repeatedly argued for overturning precedent to provide more leeway for corporations against attempts to stop the sale of cigarettes to minors, prevent consumer fraud, and prevent the exclusion of women and homosexuals.

Justice Brown has also been inconsistent in the application of rules of judicial interpretation--again depending on the result that she wants to reach in order to fulfill her extremist ideological agenda.

These legal trends--her disregard for precedent, her inconsistency in judicial interpretation, and her tendency to inject her personal opinions into her judicial opinions--lead to no other conclusion but that Janice Rogers Brown is--in the true sense of the words--a judicial activist.

When it is needed to reach a conclusion that meets her own ideological beliefs, Justice Brown stresses the need for deference to the legislature and the electorate. However, when the laws--as passed by legislators and voters--are different than laws she believes are necessary, she has shown no deference, presses her own agenda and advocates for judicial activism.

One stark example comes in an opinion she wrote where in order to support her view that judges should be able to limit damages in employment discrimination cases, she concluded that ``creativity'' was a permissible judicial practice and that all judges ``make law.''

Justice Brown's approach to the law has led to many opinions which are highly troubling. She repeatedly and consistently has advocated turning back the clock 100 years to return to an era where worker protection laws were found unconstitutional. She has attacked the New Deal, an era which created Social Security, fair labor standards and child labor laws, by calling it ``fundamentally incompatible with the vision that undergirded this country's founding.'' Justice Brown's antipathy to the New Deal and Social Security is so strong, that she stated, in Santa Monica Beach v. Superior Court of L.A. County, 19 Cal. 4th 952 (1999), that ``1937 [the year in which much of President Roosevelt's New Deal legislation took effect] . . . marks the triumph of our own socialist revolution . . .''

Justice Brown's hostility toward Social Security is part of larger hostility toward the needs and the rights of senior citizens. In a 2000 speech to a right-wing group, Justice Brown claimed that, ``Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much `free' stuff as the political system will permit them to extract.'' Justice Brown has injected this hostility into her opinions. In Stevenson v. Superior Court of Los Angeles County, 16 Cal. 4th 880 (1997), Justice Brown was the only member of the court to find that age discrimination victims cannot sue under common law because, as she stated in that case, she does not believe age discrimination stigmatizes senior citizens.

And she has repeatedly opposed protections against discrimination of individuals--in their jobs and in their homes. Justice Brown's claims that her words do not mean what they say are simply unconvincing.

Another troubling aspect of Justice Brown's nomination is the court for which she has been nominated. She is being considered for a position on the premier administrative law court in the nation--a court that is charged with overseeing the actions of federal agencies that are responsible for worker protections, environmental standards, consumer safeguards, and civil rights protections.

I am concerned about her ability to be a fair arbitrator on this court. Justice Brown has made no secret of her disdain for government's role in upholding protections against the abuse of the powerless, those who struggle in our society, and our environment. She has said, ``. . . where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.''

How can someone who has demonstrated her activism be entrusted to make fair and neutral decisions when faced with the responsibility of interpreting the powers of the federal government and the breadth of regulatory statutes? Justice Brown responded to this question at her hearing by calling on us to review her record as a judge to see that she does not ``hate government.'' Well, I did review her record. And, what I found was disturbing: She has used her position on and off the bench to argue for the dismantling of government from the inside out.

Since the Senate last considered Justice Brown's nomination, her troubling jurisprudence has not changed. As demonstrated by her recent opinions, Justice Brown has continued to be a results-oriented judge with little consistency in judicial interpretation who gives great deference to her own agenda rather than to precedent, to the intent of the legislature, or to the Constitution.

In the last 18 months, since Justice Brown appeared before the Judiciary Committee:

She has expressly ignored Supreme Court precedent in seeking judicial repeal of a State antidiscrimination statute giving drug benefits to women, despite her own finding that the statute met the Supreme Court's test.

She has denigrated the constitutional right to privacy and bodily integrity as mere ``sympathy'' by the majority.

She has shown deference to the intent of employers rather than to precedent, to the detriment of the retirement benefits of long-term workers.

She has sought to replace the legislature's judgment regarding the value of expert testimony related to ``Battered Women's Syndrome'' with her own judgment that domestic violence is ``simply a label, now codified,'' which would make it more difficult to prosecute domestic violence.

She has sought to overturn a long line of precedent that African- American women are considered a ``cognizable group'' for the purpose of assessing where a prosecuting attorney has violated equal protection in the use of peremptory challenges.

She has demonstrated her hostility to common law by overturning California's century-old second-degree felony murder rule.

She has sought to make it more difficult for a worker to pursue a sexual harassment claim against her employer by strictly enforcing release language in a separate worker's compensation settlement, even though this result would, according to the majority, ``create a trap for the unwary worker.''

Justice Brown's record since her hearing--and since she was last rejected by the Senate--has only brought into sharper focus the radicalism of her opinions and only deepened my concern about her extremism.

Indeed, in the last several days the United States Supreme Court decision

in a regulatory takings case demonstrates anew just how far out of the mainstream she is. In this case, a strong majority of the Supreme Court rejected the approach that Justice Brown has endorsed in her efforts to expand the takings clause of the Constitution to thwart local government regulation for health, safety, controlled growth and economic development.

America would look like and be a very different place if Justice Brown had her way. She would do away with many of the core protections Americans count on to keep their jobs and communities safe and their retirements secure. There would be few if any laws protecting Americans from race discrimination, employment discrimination or age discrimination, or protecting a woman's right to choose. Corporate speech would be protected, but not the first amendment rights of employees to criticize an employer's practices. Corporations would be protected against suits for stock fraud and for illegally selling cigarettes to minors, but private employers would not be required to provide contraceptive drug benefits for women.

Justice Brown's America would mean a return to the widely and justifiably discredited Lochner era, an era named after a Supreme Court decision so widely-derided that even Robert Bork called its judicial activism an ``abomination.'' A return to the Lochner era would mean a return to a time without protections against child labor. It would mean a return to a time without zoning protections to prevent porn shops and factories and rat-infested slaughterhouses from moving in next door to Americans' homes; a time without consumer protection and laws providing for affordable housing; a time without worker safety laws and without fair labor standards; and a time without laws protecting clean air and clean water. And it would mean a return to a time without Social Security.

It is no small irony that this President, who spoke of being a uniter, has used his position to re-nominate Justice Brown and others after they failed to gain consent of the Senate. These provocative nominees have divided the Senate and the American people and brought the Senate to the edge of a ``nuclear winter.'' His divisiveness has continued, despite the confirmation of 209 out of his 218 judicial nominees. It is no small irony that this President, who spoke with disdain of ``judicial activism,'' has nominated several of the most consummate judicial activists ever chosen by any President. None of the President's nominees is more in the mold of a judicial activist than this nominee.

I oppose giving Justice Brown this lifetime promotion to the second highest court in our land because the American people deserve judges who will interpret the law fairly and objectively. Janice Rogers Brown is a committed judicial activist who has a consistent record of using her position as a member of the court to put her views above the law and above the interests of working men and women and families across the Nation. We should not enable her to bring her ``jurisprudence of convenience'' to one of the most important Federal courts in the Nation.

Mr. President, today I call to the attention of the Senate several successful Vermont businesses being honored this year by the Small Business Administration, SBA. An outstanding group of Vermonters are being awarded 2005 Vermont Small Business Champion Awards, and the prestigious Vermont Small Business Person of the Year Award is being awarded to the owner and president of Four Seasons Garden Center, Oliver Gardner.

It is a great pleasure to recognize the enterprises and business leaders who will receive Vermont Small Business Champion Awards: Karen and Brian Zecchinelli of the Wayside Restaurant, Family-Owned Business of the Year; Emily Kaminsky of Community Capital of Central Vermont, Financial Services Champion of the Year; Jean Elizabeth Temple of Jean Elizabeth's Soap Company, Home-Based Business Champion of the Year; Paula Cope of Cope & Associates, Small Business Woman of the Year; Claudia Clark of Moosewood Hollow, Vermont Microenterprise of the Year; Edward Walbridge of Walbridge Electric, Veteran Small Business Champion of the Year; and Linda Ingold of the Vermont Women's Business Center, Women in Business Champion of the Year.

I would like to take a moment to draw special attention to my friend Oliver Gardner, the 2005 Vermont Small Business Person of the Year. His Four Seasons Garden Center in Williston is one of Vermont's great small business success stories, built on Yankee determination and responsible business practices. Gardner was selected for outstanding leadership related to his company's staying power, employee growth, increase in sales, innovative ingenuity, response to adversity, and contributions to the community.

Following Gardner's purchase of Four Seasons in 1978, the company has seen steady growth. Employee numbers have risen from 50 to 98 during peak season, and annual revenues have increased from $800,000 in 1977, to $4 million, as of October 2004. Now, Four Seasons is considered one of Vermont's largest local gardening resources. When Gardner learned of the imminent arrival of Home Depot and Wal-Mart back in 1994, he implemented a dynamic plan to boost Four Seasons' competitive edge. The business expanded and relocated to a 10-acre lot less than a mile from the big-box stores in Williston. The plan was a stellar success and promoted increased sales at a time when many independent garden centers were closing due to pressure from chain store giants.

Despite a progressive, 20-year spinal cord disease that restricts his mobility, Gardner has demonstrated extraordinary determination, persistence, and creativity. Also exceptional is Gardner's commitment to his goals for social and environmental responsibility in business. Four Seasons promotes gardening programs for the entire family and offers free access to its new facility to all organizations interested in gardening and a healthy environment.

I congratulate Oliver and all of the 2005 winners, who are accepting their prestigious awards today in Burlington, for jobs well done.

Mr. President, I am proud to join Senators Biden, Hatch, Specter and other cosponsors to introduce today the bipartisan VAWA, the Violence Against Women Act of 2005.

Our Nation has made remarkable progress over the past 25 years in recognizing that domestic violence and sexual assault are crimes, providing legal remedies, social supports and coordinated community responses. Millions of women, men, children and families, however, continue to be traumatized by abuse, leading to increased rates of crime, violence and suffering.

I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Violence and abuse affect people of all walks of life every day and regardless of gender, race, culture, age, class or sexuality. Such violence is a crime and it is always wrong, whether the abuser is a family member, someone the victim is dating, a current or past spouse, boyfriend, or girlfriend, an acquaintance or a stranger.

The National Crime Victimization Survey estimates there were 691,710 non-fatal, violent incidents committed against victims by current and former spouses, boyfriends or girlfriends now termed intimate partners by DOJ--during 2001. Eight-five percent of those incidents were against women. The rate of non-fatal intimate partner violence against women has fallen steadily since 1993, when the rate was 9.8 incidents per 1,000 people. In 2001, the number fell to 5.0 incidents per 1,000 people, nearly a 50 percent reduction. Tragically, however, the survey found that 1,600 women were killed in 1976 by a current or former spouse or boyfriend, while in 2000 some 1,247 women were killed by their intimate partners.

VAWA became law in 1994 and was reauthorized in 2000. It has provided aid to law enforcement officers and prosecutors, encouraged arrest policies, stemmed domestic violence and child abuse, established training programs for victim advocates and counselors, and trained probation and parole officers who work with released sex offenders. This Congress we have the opportunity to reauthorize VAWA and make improvements to vital core programs, tighten criminal penalties against domestic abusers, and create new solutions to challenges in other crucial aspects of domestic violence and sexual assault, such as treating children victims of violence, augmenting health care for rape victims, holding repeat offenders and Internet stalkers accountable, and helping domestic violence victims keep their jobs.

I am particularly proud to note that included in VAWA 2005 are reauthorizations for two programs that I authored. In a small, rural Sate like Vermont, our county and local law enforcement agencies rely on cooperative, interagency efforts to combat and solve significant problems. That is why I authored the Rural Domestic Violence and Child Victimization Enforcement Grant Program as part of the original VAWA. This program helps services available to rural victims and children by encouraging community involvement in developing a coordinated response to combat domestic violence, dating violence and child abuse. Adequate resources combined with sustained commitment will bring about significant improvements in rural areas to the lives of those victimized by domestic and sexual violence.

The Rural Grants Program section of VAWA 2005 reauthorizes and expands the existing education, training and services grant programs that address violence against women in rural areas. This provision renews the rural VAWA program, extends direct grants to state and local governments for services in rural areas and expands areas to include community collaboration projects in rural areas and the creation or expansion of additional victim services. This provision includes new language that expands the program coverage to sexual assault, child sexual assault and stalking. It also expands eligibility from rural states to rural communities, increasing access to rural sections of otherwise highly populated states. This section authorizes $55,000,000 annually for 2006 through 2010, which is an increase of $15 million per year.

The second grant program I authored that is included in VAWA 2005 is the Transitional Housing Assistance Grants for Victims of Domestic Violence, Dating Violence, Sexual Assault or Stalking. This program, which became law as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today, the PROTECT Act of 2003, authorizes grants for transitional housing and related services for people fleeing domestic violence, sexual assault or stalkers. At a time when the availability of affordable housing has sunk to record lows, transitional housing for victims is especially needed. Today more than 50 percent of homeless individuals are women and children fleeing domestic violence. We have a clear problem that is in dire need of a solution. I want this program to be part of the solution.

Transitional housing allows women to bridge the gap between leaving violence in their homes and becoming self-sufficient. VAWA 2005 amends the existing transitional housing program administered by the Office on Violence Against Women in the Department of Justice. This section expands the current direct-assistance grants to include funds for operational, capital and renovation costs. Other changes include providing services to victims of dating violence, sexual assault and stalking; extending the length of time for receipt of benefits to match that used by Housing and Urban Development transitional housing programs; and updating the existing program to reflect the concerns of the service provision community. The provision would increase the authorized funding for the grant from $30,000,000 to $40,000,000.

Now it is time to strengthen the prevention of violence against women and children and its devastating costs and consequences. This legislation goes beyond simple words of recognition and efforts to increase awareness of the problem of violence to save the lives of battered women, rape victims and children who grow up with violence. I look forward to working further with fellow Senators on VAWA 2005 and I urge the Senate to take prompt action on this legislation.

Mr. President, I am proud to join Senators Biden, Hatch, Specter and other cosponsors to introduce today the bipartisan VAWA, the Violence Against Women Act of 2005.

Our Nation has made remarkable progress over the past 25 years in recognizing that domestic violence and sexual assault are crimes, providing legal remedies, social supports and coordinated community responses. Millions of women, men, children and families, however, continue to be traumatized by abuse, leading to increased rates of crime, violence and suffering.

I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Violence and abuse affect people of all walks of life every day and regardless of gender, race, culture, age, class or sexuality. Such violence is a crime and it is always wrong, whether the abuser is a family member, someone the victim is dating, a current or past spouse, boyfriend, or girlfriend, an acquaintance or a stranger.

The National Crime Victimization Survey estimates there were 691,710 non-fatal, violent incidents committed against victims by current and former spouses, boyfriends or girlfriends now termed intimate partners by DOJ--during 2001. Eight-five percent of those incidents were against women. The rate of non-fatal intimate partner violence against women has fallen steadily since 1993, when the rate was 9.8 incidents per 1,000 people. In 2001, the number fell to 5.0 incidents per 1,000 people, nearly a 50 percent reduction. Tragically, however, the survey found that 1,600 women were killed in 1976 by a current or former spouse or boyfriend, while in 2000 some 1,247 women were killed by their intimate partners.

VAWA became law in 1994 and was reauthorized in 2000. It has provided aid to law enforcement officers and prosecutors, encouraged arrest policies, stemmed domestic violence and child abuse, established training programs for victim advocates and counselors, and trained probation and parole officers who work with released sex offenders. This Congress we have the opportunity to reauthorize VAWA and make improvements to vital core programs, tighten criminal penalties against domestic abusers, and create new solutions to challenges in other crucial aspects of domestic violence and sexual assault, such as treating children victims of violence, augmenting health care for rape victims, holding repeat offenders and Internet stalkers accountable, and helping domestic violence victims keep their jobs.

I am particularly proud to note that included in VAWA 2005 are reauthorizations for two programs that I authored. In a small, rural Sate like Vermont, our county and local law enforcement agencies rely on cooperative, interagency efforts to combat and solve significant problems. That is why I authored the Rural Domestic Violence and Child Victimization Enforcement Grant Program as part of the original VAWA. This program helps services available to rural victims and children by encouraging community involvement in developing a coordinated response to combat domestic violence, dating violence and child abuse. Adequate resources combined with sustained commitment will bring about significant improvements in rural areas to the lives of those victimized by domestic and sexual violence.

The Rural Grants Program section of VAWA 2005 reauthorizes and expands the existing education, training and services grant programs that address violence against women in rural areas. This provision renews the rural VAWA program, extends direct grants to state and local governments for services in rural areas and expands areas to include community collaboration projects in rural areas and the creation or expansion of additional victim services. This provision includes new language that expands the program coverage to sexual assault, child sexual assault and stalking. It also expands eligibility from rural states to rural communities, increasing access to rural sections of otherwise highly populated states. This section authorizes $55,000,000 annually for 2006 through 2010, which is an increase of $15 million per year.

The second grant program I authored that is included in VAWA 2005 is the Transitional Housing Assistance Grants for Victims of Domestic Violence, Dating Violence, Sexual Assault or Stalking. This program, which became law as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today, the PROTECT Act of 2003, authorizes grants for transitional housing and related services for people fleeing domestic violence, sexual assault or stalkers. At a time when the availability of affordable housing has sunk to record lows, transitional housing for victims is especially needed. Today more than 50 percent of homeless individuals are women and children fleeing domestic violence. We have a clear problem that is in dire need of a solution. I want this program to be part of the solution.

Transitional housing allows women to bridge the gap between leaving violence in their homes and becoming self-sufficient. VAWA 2005 amends the existing transitional housing program administered by the Office on Violence Against Women in the Department of Justice. This section expands the current direct-assistance grants to include funds for operational, capital and renovation costs. Other changes include providing services to victims of dating violence, sexual assault and stalking; extending the length of time for receipt of benefits to match that used by Housing and Urban Development transitional housing programs; and updating the existing program to reflect the concerns of the service provision community. The provision would increase the authorized funding for the grant from $30,000,000 to $40,000,000.

Now it is time to strengthen the prevention of violence against women and children and its devastating costs and consequences. This legislation goes beyond simple words of recognition and efforts to increase awareness of the problem of violence to save the lives of battered women, rape victims and children who grow up with violence. I look forward to working further with fellow Senators on VAWA 2005 and I urge the Senate to take prompt action on this legislation.

For the third time this year, Senator Cornyn and I have joined to introduce common sense proposals to strengthen open government and the Freedom of Information Act, or FOIA. The Senator from Texas has a long record of promoting open government, most significantly during his tenure as Attorney General of Texas. He and I have forged a valuable partnership in this Congress to support and strengthen FOIA. We introduced two bills earlier this year, and held a hearing on our bill, the Open Government Act, issues during Sunshine Week in March.

The bill we introduce today is simple and straightforward. It simply requires that when Congress sees fit to provide a statutory exemption to FOIA, it must state its intention to do so explicitly. The language of this bill was previously introduced as section eight of S. 394, the Open Government Act.

No one argues with the notion that some government information is appropriately kept from public view. FOIA contains a number of exemptions for national security, law enforcement, confidential business information, personal privacy, and other matters. One provision of FOIA, commonly known as the (b)(3) exemption, states that records that are specifically exempted by statute may be withheld from disclosure. Many bills that are introduced contain statutory exemptions, or contain language that is ambiguous and might be interpreted as such by the courts. In recent years, we have seen more and more such exemptions offered in legislation. A 2003 Justice Department report stated that Congress has been ``increasingly active in enacting such statutory provisions.'' A June 3, 2005, article by the Cox News Service titled, ``Congress Cloaks More Information in Secrecy,'' pointed to 140 instances ``where congressional lawmakers have inserted such exemptions'' into proposed legislation. I commend this article to my colleagues and understand that Senator Cornyn has placed a copy in the Record.

Our shared principles of open government lead us to believe that individual statutory exemptions should be vigorously debated before lawmakers vote in favor of them. Sometimes such proposed exemptions are clearly delineated in proposed legislation, but other times they amount to a few lines within a highly complex and lengthy bill. These are difficult to locate and analyze in a timely manner, even for those of us who stand watch. As a result, such exemptions are often enacted with little scrutiny, and as soon as one is granted, others are requested.

The private sector has sought many exemptions in exchange for agreeing to share information with the government. One example of great concern to me is the statutory exemption for critical infrastructure information that was enacted as part of the Homeland Security Act of 2002, the law that created the Department of Homeland Security. In this case, a reasonable compromise, approved by the White House, to balance the protection of sensitive information with the public's right to know was pulled out of the bill in conference. It was then replaced with text providing an overly broad statutory exemption that undermines Federal and State sunshine laws. I have introduced legislation, called the Restoration of Freedom of Information Act, to revert to that reasonable compromise language.

Not every statutory exemption is inappropriate, but every proposal deserves scrutiny. Congress must be diligent in reviewing new exemptions to prevent possible abuses. Focusing more sunshine on this process is an antidote to exemption creep.

When we introduced the Open Government Act in February, we addressed this matter with a provision that would require Congress to identify proposed statutory exemptions in newly introduced legislation in a uniform manner. Today, we introduce that single section as a new bill that we hope can be enacted quickly.

I want to thank the Senator from Texas for his personal dedication to these issues. I urge all members of the Senate to join us in supporting this bill.

Mr. President, I have been privileged to have served under both President Clinton and President George W. Bush as one of the two Senate delegates to the United Nations, and there is no doubt that the United States Permanent Representative to the U.N. is one of the most important diplomatic posts in the U.S. government.

The Permanent Representative is the public face, voice, and vote of the United States at the world's only body charged with maintaining international peace and security. Therefore, it is essential that this individual be someone with indisputable integrity and extraordinary diplomatic abilities. After listening to John Bolton's confirmation hearings before the Senate Foreign Relations Committee, I feel confident in saying that John Bolton is not that person.

Most troubling to me are allegations from senior U.S. intelligence officials--including a senior Bush administration appointee--of Mr. Bolton trying to intimidate and even remove intelligence analysts simply because they did not share his political views. Mr. Bolton even went so far as to get in his car and go out to the CIA to seek the removal of one intelligence officer. At any time, but especially in the wake of the massive intelligence failures associated with the decision to invade Iraq, efforts by administration officials to shape intelligence to conform to a particular preconceived view is unacceptable. It is essential that dissent be tolerated and even encouraged in the intelligence community and not distorted to fit a particular ideology or political agenda.

Second, I have strong concerns that Mr. Bolton's pattern of inflammatory statements about the U.N. will make it difficult for him to effectively advance U.S. security interests in New York and to build support for much-needed reforms at the U.N. The last thing we want is for countries to make Mr. Bolton an excuse for resisting reform. Taking a tougher approach to the U.N. through constructive criticism is one thing; disregarding its value and belittling its very existence is another. We need someone in New York who is unafraid to shake things up and challenge the status quo, but that person must also have the credibility, temperament, and diplomatic skills to work with other nations, form coalitions, and advance U.S. interests. The only tool in Mr. Bolton's toolbox appears to be a hammer.

Third, I am disturbed by some of the contradictions in Mr. Bolton's recent testimony. For example, Mr. Bolton pledged to the Foreign Relations Committee that he has not and will not make statements that are not approved by the administration. Yet his own testimony about Iran appeared to do just that--using language rejected by the administration more than a year ago. There are other instances of this behavior during the hearings, where our Ambassador to South Korea has disputed what Mr. Bolton said

Finally, there is a tone and temperament issue with Mr. Bolton's nomination. According to respected officials who have worked with him, Mr. Bolton bullies, belittles and undermines those who do not agree with him. We all lose our cool from time to time. Disagreements are part of human discourse. But, there is a pattern with Mr. Bolton that goes beyond appropriate behavior--a disturbing trait for someone seeking to become our chief diplomat at a place where people come together to resolve disagreements.

When Mr. Bolton was nominated to be Under Secretary of State in 2001, I strongly opposed and voted against his nomination. At that time, I had serious reservations about his experience, diplomatic temperament, and his poor track record on non-proliferation and arms control. Over the last four years, Mr. Bolton has proved me right. As the top proliferation official at the State Department, Mr. Bolton has been ineffective in his current responsibilities and the world has become more dangerous under his watch. The Bush administration's record on proliferation, from Pakistan to Iran to North Korea, has been poor, at best.

After much debate, the Foreign Relations Committee was not able to support Mr. Bolton's nomination and, rather, reported it out without recommendation. Secretary Powell's Chief of Staff has said that Mr. Bolton would be an ``abysmal'' ambassador to the U.N. I might not put it as strongly as that, but I will be opposing the nomination of Mr. Bolton.

Mr. President, 3 years ago I first considered the nomination of Priscilla Owen to be a judge on the United States Court of Appeals for the Fifth Circuit. After reviewing her record, hearing her testimony and evaluating her answers I voted against her confirmation and explained at length the strong case against confirmation of this nomination. Nothing about her record or the reasons that led me then to vote against confirmation has changed since then.

Now that the Republican leadership's misguided bid for one-party rule, the nuclear option, has been deterred, we have arrived at a moment when every one of the 100 of us must examine Priscilla Owen's record and decide for him or herself whether it merits a lifetime appointment to the Fifth Circuit.

I believe Justice Owen has shown herself over the last decade on the Texas Supreme Court to be an ends-oriented judicial activist, intent on reading her own policy views into the law. She has been the target of criticism by her conservative Republican colleagues on the court, and not just in the context of the parental notification cases that have been discussed so often before, but in a variety of types of cases where the law did not fit her personal views, including in cases where she has consistently ruled for big business and corporate interests in cases against worker and consumers. This sort of judging ought not to be rewarded with such an important and permanent promotion.

In 2001, Justice Owen was nominated to fill a vacancy that had by that time existed for more than four years, since January 1997. In the intervening 5 years, President Clinton nominated Jorge Rangel, a distinguished Hispanic attorney from Corpus Christi, to fill that vacancy. Despite his qualifications, and his unanimous rating of Well Qualified by the ABA, Mr. Rangel never received a hearing from the Judiciary Committee, and his nomination was returned to the President without Senate action at the end of 1998, after a fruitless wait of 15 months.

On September 16, 1999, President Clinton nominated Enrique Moreno, another outstanding Hispanic attorney, to fill that same vacancy. Mr. Moreno did not receive a hearing on his nomination either--over a span of more than 17 months. President Bush withdrew the nomination of Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name in its place. It was not until May of 2002, at a hearing presided over by Senator Schumer, which the Judiciary Committee heard from any of President Clinton's three unsuccessful nominees to the Fifth Circuit. At that time, Mr. Moreno and Mr. Rangel, joined by a number of other Clinton nominees, testified about their treatment by the Republican majority. Thus, Justice Owen's was the third nomination to this vacancy and the first to be accorded a hearing before the Committee.

In fact, when the Judiciary Committee held its hearing on the nomination of Judge Edith Clement to the Fifth Circuit in 2001, during the most recent period of Democratic control of the Senate, it was the first hearing on a Fifth Circuit nominee in 7 years. By contrast, Justice Owen was the third nomination to the Fifth Circuit on which the Judiciary Committee held a hearing in less than 1 year. In spite of the treatment by the former Republican majority of so many moderate judicial nominees of the previous President, we proceeded in July of 2001--as I said that we would--with a hearing on Justice Owen.

Justice Owen is one of among 20 Texas nominees who were considered by the Judiciary Committee while I was Chairman. That included nine District Court judges, four United States Attorneys, three United States Marshals, and three Executive Branch appointees from Texas who moved swiftly through the Judiciary Committee.

When Justice Owen was initially nominated, the President changed the confirmation process from that used by Republican and Democratic Presidents for more than 50 years. That resulted in her ABA peer review not being received until later that summer. As a result of a Republican objection to the Democratic leadership's request to retain all judicial nominations pending before the Senate through the August recess in 2001, the initial nomination of Justice Owen was required by Senate rules to be returned to the President without action. The committee nonetheless took the unprecedented action of proceeding during the August recess to hold two hearings involving judicial nominations, including a nominee to the Court of Appeals for the Federal Circuit.

In my efforts to accommodate a number of Republican Senators-- including the Republican leader, the Judiciary Committee's ranking member, and at least four other Republican members of the committee--I scheduled hearings for nominees out of the order in which they were received that year, in accordance with longstanding practice of the committee.

As I consistently indicated, and as any chairman can explain, less controversial nominations are easier to consider and are, by and large, able to be scheduled sooner than more controversial nominations. This is especially important in the circumstances that existed at the time of the change in majority in 2001. At that time we faced what Republicans have now admitted had become a vacancy crisis in the federal courts. From January 1995, when the Republican majority assumed control of the confirmation process in the Senate, until the shift in majority, vacancies rose from 65 to 110 and vacancies on the Courts of Appeals more than doubled from 16 to 33. I thought it important to make as much progress as quickly as we could in the time available to us that year, and we did. In fact, through the end of President Bush's first term, we saw those 110 vacancies plummet to 27, the lowest vacancy rate since the Reagan administration.

The responsibility to advise and consent on the President's nominees is one that I take seriously and that the Judiciary Committee takes seriously. Justice Owen's nomination to the Court of Appeals has been given a fair hearing and a fair process before the Judiciary Committee. I thank all members of the committee for being fair. Those who had concerns had the opportunity to raise them and heard the nominee's response, in private meetings, at her public hearing and in written follow-up questions.

I would particularly like to commend Senator Feinstein, who chaired the hearing for Justice Owen, for managing that hearing so fairly and evenhandedly. It was a long day, where nearly every Senator who is a member of the committee came to question Justice Owen, and Senator Feinstein handled it with patience and equanimity.

After that hearing, I brought Justice Owen's nomination up for a vote, and following an open debate where her opponents discussed her record and their objections on the merits, the nomination was rejected. Her nomination was fully and openly debated, and it was rejected. That fair treatment stands in sharp contrast to the way Republicans had treated President Clinton's nominees, including several to the Fifth Circuit.

That should have ended things right there, but it did not. Priscilla Owen's nomination was the first judicial nomination ever to be resubmitted after already being debated, voted upon and rejected by the Senate Judiciary Committee.

When the Senate majority shifted, Republicans reconsidered this nomination and sent it to the Senate on a straight, party-line vote. Never before had a President resubmitted a circuit court nominee already rejected by the Senate Judiciary Committee, for the same vacancy. And until Senator Hatch gave Justice Owen a second hearing in 2003, never before had the Judiciary Committee rejected its own decision on such a nominee and granted a second hearing. And at that second hearing we did not learn much more than the obvious fact that, given some time, Justice Owen was able to enlist the help of the talented lawyers working at the White House and the Department of Justice to come up with some new justifications for her record of activism. We learned that given six months to reconsider the severe criticism directed at her by her Republican colleagues, she still admitted no error. Mostly, we learned that the objections expressed originally by the Democrats on the Judiciary Committee were sincerely held when they were made and no less valid after a second hearing. Nothing Justice Owen said about her

record--indeed, nothing anyone else tried to explain about her record-- was able to actually change her record. That was true then, and that is true today.

Senators who opposed this nomination did so because Priscilla Owen's record shows her to be an ends-oriented activist judge. I have previously explained my conclusions about Justice Owen's record, but I will summarize my objections again today.

I am not alone in my concerns about Justice Owen. Her extremism has been evident even among a conservative Supreme Court of Texas. The conservative Republican majority of the Texas Supreme Court has gone out of its way to criticize Justice Owen and the dissents she joined in ways that are highly unusual, and in ways which highlight her ends- oriented activism. A number of Texas Supreme Court Justices have pointed out how far from the language of statute she strays in her attempts to push the law beyond what the legislature intended.

One example is the majority opinion in Weiner v. Wasson. In this case, Justice Owen wrote a dissent advocating a ruling against a medical malpractice plaintiff injured while he was still a teenager. The issue was the constitutionality of a State law requiring minors to file medical malpractice actions before reaching the age of majority, or risk being outside the statute of limitations. Of interest is the majority's discussion of the importance of abiding by a prior Texas Supreme Court decision unanimously striking down a previous version of the statute. In what reads as a lecture to the dissent, then-Justice John Cornyn explains on behalf of the majority:

Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy. First, if we did not follow our own decisions, no issue could ever be considered resolved. The potential volume of speculative relitigation under such circumstances alone ought to persuade us that stare decisis is a sound policy. Secondly, we should give due consideration to the settled expectations of litigants like Emmanuel Wasson, who have justifiably relied on the principles articulated in [the previous case]. . . . Finally, under our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government.

According to the conservative majority on the Texas Supreme Court, Justice Owen went out of her way to ignore precedent and would have ruled for the defendants. The conservative Republican majority, in contrast to Justice Owen, followed precedent and the doctrine of stare decisis. A clear example of Justice Owen's judicial activism.

In Montgomery Independent School District v. Davis, Justice Owen wrote another dissent which drew fire from a conservative Republican majority--this time for her disregard for legislative language. In a challenge by a teacher who did not receive reappointment to her position, the majority found that the school board had exceeded its authority when it disregarded the Texas Education Code and tried to overrule a hearing examiner's decision on the matter. Justice Owen's dissent advocated for an interpretation contrary to the language of the applicable statute. The majority, which included Alberto Gonzales and two other appointees of then-Governor Bush, was quite explicit about its view that Justice Owen's position disregarded the law:

The dissenting opinion misconceives the hearing examiner's

role in the . . . process by stating that the hearing

examiner `refused' to make findings on the evidence the Board

relies on to support its additional findings. As we explained

above, nothing in the statute requires the hearing examiner

to make findings on matters of which he is unpersuaded. . . .

The majority also noted that:

The dissenting opinion's misconception of the hearing

examiner's role stems from its disregard of the procedural

elements the Legislature established in subchapter F to

ensure that the hearing-examiner process is fair and

efficient for both teachers and school boards. The

Legislature maintained local control by giving school boards

alone the option to choose the hearing-examiner process in

nonrenewal proceedings. . . . By resolving conflicts in

disputed evidence, ignoring credibility issues, and

essentially stepping into the shoes of the factfinder to

reach a specific result, the dissenting opinion not only

disregards the procedural limitations in the statute but

takes a position even more extreme than that argued for by

the board. . . .

This is another clear example of Justice Owen's judicial activism.

Collins v. Ison-Newsome, is yet another case where a dissent, joined by Justice Owen, was roundly criticized by the Republican majority of the Texas Supreme Court. The Court cogently stated the legal basis for its conclusion that it had no jurisdiction to decide the matter before it, and as in other opinions where Justice Owen was in dissent, took time to explicitly criticize the dissent's positions as contrary to the clear letter of the law.

At issue was whether the Supreme Court had the proper ``conflicts jurisdiction'' to hear the interlocutory appeal of school officials being sued for defamation. The majority explained that it did not because published lower court decisions do not create the necessary conflict between themselves. The arguments put forth by the dissent, in which Justice Owen joined, offended the majority, and they made their views known, writing:

The dissenting opinion agrees that ``because this is an

interlocutory appeal . . . this Court's jurisdiction is

limited,'' but then argues for the exact opposite proposition

. . . This argument defies the Legislature's clear and

express limits on our jurisdiction. . . . The author of the

dissenting opinion has written previously that we should take

a broader approach to the conflicts-jurisdiction standard.

But a majority of the Court continues to abide by the

Legislature's clear limits on our interlocutory-appeal

jurisdiction.

They continue:

[T]he dissenting opinion's reading of Government Code sec.

22.225(c) conflates conflicts jurisdiction with dissent

jurisdiction, thereby erasing any distinction between these

two separate bases for jurisdiction. The Legislature

identified them as distinct bases for jurisdiction in

sections 22.001(a)(1) and (a)(2), and section 22.225(c)

refers specifically to the two separate provisions of section

22.001(a) providing for conflicts and dissent jurisdiction. .

. . [W]e cannot simply ignore the legislative limits on our

jurisdiction, and not even Petitioners argue that we should

do so on this basis.

Again, Justice Owen joined a dissent that the Republican majority described as defiant of legislative intent and in disregard of legislatively drawn limits. This is yet another clear example of Justice Owen's judicial activism.

Some of the most striking examples of criticism of Justice Owen's writings, or the dissents and concurrences she joins, come in a series of parental notification cases heard in 2000. They include:

In In re Jane Doe 1, where the majority included an

extremely unusual section explaining its view of the proper

role of judges, admonishing the dissent, joined by Justice

Owen, for going beyond its duty to interpret the law in an

attempt to fashion policy.

Giving a pointed critique of the dissenters, the majority explained that, ``In reaching the decision to grant Jane Doe's application, we have put aside our personal viewpoints and endeavored to do our job as judges--that is, to interpret and apply the Legislature's will as it has been expressed in the statute.''

In a separate concurrence, Justice Alberto Gonzales wrote that to construe the law as the dissent did, ``would be an unconscionable act of judicial activism.'' A conservative Republican colleague of Justice Owen's points squarely to her judicial activism. I know that the Attorney General now says that when he wrote that he was not referring to her, and I don't blame him for taking that position. After all, he is the Attorney General charged with defending her nomination. But there is no way to read his concurring opinion as anything other than a criticism of the dissenters, Owen included. Listen to the words he wrote:

The dissenting opinions suggest that the exceptions to the

general rule of notification should be very rare and require

a high standard of proof. I respectfully submit that these

are policy decisions for the Legislature. And I find nothing

in this statute to directly show that the Legislature

intended such a narrow construction. As the Court

demonstrates, the Legislature certainly could have written

[the law] to make it harder to by pass a parent's right to be

involved. . . But it did not. . . . Thus, to

construe Parental Notification Act so narrowly as to

eliminate bypasses or to create hurdles that simply are

not to be found in the words of the statute, would be an

unconscionable act of judicial activism.

Owen is one of two justices who wrote a dissent, so she is naturally included in the ``dissenting opinions'' to which he refers. It doesn't get much clearer than this. But you don't have to take my word for it. Mr. Gonzales himself has acknowledged as much.

Twice before Justice Owen's first hearing in the Judiciary Committee, he and his spokesperson admitted that his comments referred to a disagreement between justices. The New York Times of April 7, 2002, reported that, ``a spokesman for Mr. Gonzales, minimized the significance of the disagreement, [saying] ``Judge Gonzales's opinion and Justice Owen's dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute.'' On July 22, 2003, the New York Times reported that in an interview he had with the then- White House Counsel, ``Mr. Gonzales sought to minimize the impact of his remarks. He acknowledged that calling someone a `judicial activist' was a serious accusation, especially among Republicans who have used that term as an imprecation against liberals.''

Of course, Mr. Gonzales went on to tell the reporter that he still supported Justice Owen for the Fifth Circuit, and I expect he would. He works for the President and supports his efforts to fill the federal courts with ideologues and activists, and I appreciate his honesty. It was only years later, when he was before the Judiciary Committee for his own confirmation to be Attorney General that he told us his comments did not refer to Justice Owen, rather to himself, and what he would be doing if he expressed an opinion like that of the dissent. So, I will take the Attorney General at his word, but I will take his original writing and his earliest statements as the best evidence of his view of Justice Owen's opinion in Doe 1, and leave his later, more politically influenced statements, to others.

Jane Doe 1 was not the only one of the parental consent cases where Justice Owen's position was criticized by her Republican colleagues. In In re Jane Doe 3, Justice Enoch writes specifically to rebuke Justice Owen and her fellow dissenters for misconstruing the legislature's definition of the sort of abuse that may occur when parents are notified of a minor's intent to have an abortion, saying, ``abuse is abuse; it is neither to be trifled with nor its severity to be second guessed.''

In one case that is perhaps the exception that proves the rule, Justice Owen wrote a majority opinion that was bitterly criticized by the dissent for its activism. In In re City of Georgetown, Justice Owen wrote a majority opinion finding that the city did not have to give The Austin American-Statesman a report prepared by a consulting expert in connection with pending and anticipated litigation because such information was expressly made confidential under other law--namely, the Texas Rules of Civil Procedure.

The dissent is extremely critical of Justice Owen's opinion, citing the Texas law's strong preference for disclosure and liberal construction. Accusing her of activism, Justice Abbott, joined by Chief Justice Phillips and Justice Baker, notes that the legislature, ``expressly identified eighteen categories of information that are `public information' and that must be disclosed upon request . . . [sec. (a)] The legislature attempted to safeguard its policy of open records by adding subsection (b), which limits courts' encroachment on its legislatively established policy decisions.'' Id. at 338. The dissent further protests:

[b]ut if this Court has the power to broaden by judicial rule

the categories of information that are 'confidential under

other law,' then subsection (b) is eviscerated from the

statute. By determining what information falls outside

subsection (a)'s scope, this Court may evade the mandates of

subsection (b) and order information withheld whenever it

sees fit. This not only contradicts the spirit and language

of subsection (b), it guts it.

Finally, the opinion concluded by asserting that Justice Owen's interpretation, ``abandons strict construction and rewrites the statute to eliminate subsection (b)'s restrictions.''

Yet again, her colleagues on the Texas court, cite Justice Owen's judicial activism.

These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views.

Justice Owen makes bad decisions even when she is not being criticized by her colleagues. Among these decisions are those where she skews her decisions to show bias against consumers, victims and just plain ordinary people in favor of big business and corporations. As one reads case after case, particularly those in which she was the sole dissenter or dissented with the extreme right wing of the Court, her pattern of activism becomes clear. Her legal views in so many cases involving statutory interpretation simply cannot be reconciled with the plain meaning of the statute, the legislative intent, or the majority's interpretation, leading to the conclusion that she sets out to justify some pre-conceived idea of what the law ought to mean. This is not an appropriate way for a judge to make decisions. This is a judge whose record reflects that she is willing and sometimes eager to make law from the bench.

Justice Owen's activism and extremism is noteworthy in a variety of cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she writes against individual plaintiffs time and time again, in seeming contradiction of the law as written. In fact, according to a study conducted last year by the Texas Watch Foundation, a non-profit consumer protection organization in Texas, in the last six years, Owen has not dissented once from a majority decision favoring business interests over victims, but has managed to differ from the majority and dissent in 22 of the 68 cases where the majority opinion was for the consumer.

One of the cases where this trend is evident in FM Properties v. City of Austin, I asked Justice Owen about this 1998 environmental case at her hearing. In her dissent from a 6-3 ruling, in which Justice Alberto Gonzales was among the majority, Justice Owen showed her willingness to rule in favor of large private landowners against the clear public interest in maintaining a fair regulatory process and clean water. Her dissent, which the majority characterized as ``nothing more than inflammatory rhetoric,'' was an attempt to favor big landowners.

In this case, the Texas Supreme Court found that a section of the Texas Water Code allowing certain private owners of large tracts of land to create ``water quality zones,'' and write their own water quality regulations and plans, violated the Texas Constitution because it improperly delegated legislative power to private entities. The court found that the Water Code section gave the private landowners, ``legislative duties and powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality.'' The court also found that certain aspects of the Code and the factors surrounding its implementation weighed against the delegation of power, including the lack of meaningful government review, the lack of adequate representation of citizens affected by the private owners' actions, the breadth of the delegation, and the big landowners' obvious interest in maximizing their own profits and minimizing their own costs.

The majority offered a strong opinion, detailing its legal reasoning and explaining the dangers of offering too much legislative power to private entities. By contrast, in her dissent, Justice Owen argued that, ``[w]hile the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State's natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner,'' ignoring entirely the possibility of an unconstitutional delegation of power. Her view strongly favored large business interests to the clear detriment of the public interest, and against the persuasive legal arguments of a majority of the court.

When I asked her about this case at her hearing, I found her answer perplexing. In a way that she did not argue in her written dissent, at her hearing Justice Owen attempted to cast the FM Properties case not as, ``a fight between and City of Austin and big business, but in all honesty, . . .

really a fight about . . . the State of Texas versus the City of Austin.'' In the written dissent however, she began by stating the, ``importance of this case to private property rights and the separation of powers between the judicial and legislative branches . . .'', and went on to decry the Court's decision as one that, ``will impair all manner of property rights.'' At the time she wrote her dissent, Justice Owen was certainly clear about the meaning of this case property rights for corporations.

Another case that concerned me is GTE Southwest, Inc. v. Bruce, where Justice Owen wrote in favor of GTE in a lawsuit by employees for intentional infliction of emotional distress. The rest of the court held that three employees subjected to what the majority characterized as ``constant humiliating and abusive behavior of their supervisor'' were entitled to the jury verdict in their favor. Despite the court's recitation of an exhaustive list of sickening behavior by the supervisor, and its clear application of Texas law to those facts, Justice Owen wrote a concurring opinion to explain her difference of opinion on the key legal issue in the case whether the behavior in evidence met the legal standard for intentional infliction of emotional distress.

Justice Owen contended that the conduct was not, as the standard requires, ``so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency `` The majority opinion shows Justice Owen's concurrence advocating an inexplicable point of view that ignores the facts in evidence in order to reach a predetermined outcome in the corporation's favor.

Justice Owen's recitation of facts in her concurrence significantly minimizes the evidence as presented by the majority. Among the kinds of behavior to which the employees were subjected--according to the majority opinion--are: Upon his arrival the supervisor, ``began regularly using the harshest vulgarity . . . continued to use the word ``f---'' and ``motherf---r'' frequently when speaking with the employees . . . repeatedly physically and verbally threatened and terrorized them . . . would frequently assault each of the employees by physically charging at them . . . come up fast . . . and get up over (the employee) . . . and yell and scream in her face . . . called (an employee) into his office every day and . . . have her stand in front of him, sometimes for as long as thirty minutes, while (the supervisor) simply stared at her . . . made (an employee) get on her hands and knees and clean the spots (on the carpet) while he stood over her yelling.'' Id. at 613-614. Justice Owen did not believe that such conduct was outrageous or outside the bounds of decency under state law.

At her hearing, in answer to Senator Edwards's questions about this case, Justice Owen again gave an explanation not to be found in her written views. She told him that she agreed with the majority's holding, and wrote separately only to make sure that future litigants would not be confused and think that out of context, any one of the outrages suffered by the plaintiffs would not support a judgment. Looking again at her dissent, I do not see why, if that was what she truly intended, she did not say so in language plain enough to be understood, or why she thought it necessary to write and say it in the first place. It is a somewhat curious distinction to make to advocate that in a tort case a judge should write a separate concurrence to explain which part of the plaintiff's case, standing alone, would not support a finding of liability. Neither her written concurrence, nor her answers in explanation after the fact, is satisfactory explanation of her position in this case.

In City of Garland v. Dallas Morning News, Justice Owen dissented from a majority opinion and, again, it is difficult to justify her views other than as being based on a desire to reach a particular outcome. The majority upheld a decision giving the newspaper access to a document outlining the reasons why the city's finance director was going to be fired. Justice Owen made two arguments: that because the document was considered a draft it was not subject to disclosure, and that the document was exempt from disclosure because it was part of policy making. Both of these exceptions were so large as to swallow the rule requiring disclosure. The majority rightly points out that if Justice Owen's views prevailed, almost any document could be labeled draft to shield it from public view. Moreover, to call a personnel decision a part of policy making is such an expansive interpretation it would leave little that would not be ``policy.''

Quantum Chemical v. Toennies is another troubling case where Justice Owen joined a dissent advocating an activist interpretation of a clearly written statute. In this age discrimination suit brought under the Texas civil rights statute, the relevant parts of which were modeled on Title VII of the federal Civil Rights Act--and its amendments--the appeal to the Texas Supreme Court centered on the standard of causation necessary for a finding for the plaintiff. The plaintiff argued, and the five justices in the majority agreed, that the plain meaning of the statute must be followed, and that the plaintiff could prove an unlawful employment practice by showing that discrimination was ``a motivating factor.'' The employer corporation argued, and Justices Hecht and Owen agreed, that the plain meaning could be discarded in favor of a more tortured and unnecessary reading of the statute, and that the plaintiff must show that discrimination was ``the motivating factor,'' in order to recover damages.

The portion of Title VII on which the majority relies for its interpretation was part of Congress's 1991 fix to the United States Supreme Court's opinion in the Price Waterhouse case, which held that an employer could avoid liability if the plaintiff could not show discrimination was ``the'' motivating factor. Congress's fix, in Section 107 of the Civil Rights Act of 1991, does not specify whether the motivating factor standard applies to both sorts of discrimination cases, the so-called ``mixed motive'' cases as well as the ``pretext'' cases.

The Texas majority concluded that they must rely on the plain language of the statute as amended, which could not be any clearer that under Title VII discrimination can be shown to be ``a'' motivating factor. Justice Owen joined Justice Hecht in claiming that federal case law is clear--in favor of their view--and opted for a reading of the statute that would turn it into its polar opposite, forcing plaintiffs into just the situation legislators were trying to avoid. This example of Justice Owen's desire to change the law from the bench, instead of interpret it, fits President Bush's definition of activism to a ``T''.

Justice Owen has also demonstrated her tendency toward ends-oriented decision making quite clearly in a series of dissents and concurrences in cases involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortions.

The most striking example is Justice Owen's expression of disagreement with the majority's decision on key legal issues in Doe 1, which I discussed earlier in a different context. She strongly disagreed with the majority's holding on what a minor would have to show in order to establish that she was, as the statute requires, ``sufficiently well informed'' to make the decision on her own. While the conservative Republican majority laid out a well-reasoned test for this element of the law, based on the plain meaning of the statute and well-cited case law, Justice Owen inserted elements found in neither authority. Specifically, Justice Owen insisted that the majority's requirement that the minor be ``aware of the emotional and psychological aspects of undergoing an abortion'' was not sufficient and that among other requirements with no basis in the law, she, ``would require . . . [that the minor] should . . . indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.''

In her written concurrence, Justice Owen indicated, through legal citation, that support for this proposition could be found in a particular page of the Supreme Court's opinion in Planned Parenthood v. Casey. However, when one looks at that portion of the Casey decision, one finds no mention of requiring a minor to acknowledge religious or moral arguments. The passage talks instead about the ability of a State to ``enact rules and regulations designed

to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear,'' Justice Owen's reliance on this portion of a United States Supreme Court opinion to rewrite Texas law was simply wrong.

As she did in answer to questions about a couple of other cases at her hearing, Justice Owen tried to explain away this problem with an after-the-fact justification. She told Senator Cantwell that the reference to religion was not to be found in Casey after all, but in another U.S. Supreme Court case, H.L. v. Matheson. She explained that in ``Matheson they talk about that for some people it raises profound moral and religious concerns, and they're talking about the desirability or the State's interest in these kinds of considerations in making an informed decision.'' Transcript at 172. But again, on reading Matheson, one sees that the only mention of religion comes in a quotation meant to explain why the parents of the minor are due notification, not about the contours of what the government may require someone to prove to show she was fully well informed. Her reliance on Matheson for her proposed rewrite of the law is just as faulty as her reliance on Casey. Neither one supports her reading of the law. She simply tries a little bit of legal smoke and mirrors to make it appear as if they did. This is the sort of ends-oriented decision making that destroys the belief of a citizen in a fair legal system. And most troubling of all was her indication to Senator Feinstein that she still views her dissents in the Doe cases as the proper reading and construction of the Texas statute. In these cases, Priscilla Owen tried to insert requirements into the law that the Texas legislature had not included in the law. Simply put, Justice Owen engaged in judicial activism. In fact, as I've said, it was in one of these cases that Attorney General Alberto Gonzales, referred to Owen's position in the case as ``an unconscionable act of judicial activism.''

Senators have criticized Justice Owen's activism in the parental notification cases. We have not criticized the laws themselves. In fact, some Democratic Senators have noted their support for these kinds of statutes. Republicans have strayed far from the issue. What is relevant here is that Priscilla Owen tried to insert requirements into the law that the Texas legislature had not included. A State legislature can enact constitutional parental notification laws. A judge is not supposed to rewrite the law but to apply it to the facts and to ensure its constitutionality.

If she wants to rewrite the law, she should leave the bench and run for a seat in the state legislature.

At her second, unprecedented hearing in 2003, Justice Owen and her defenders tried hard to recast her record and others' criticism of it. I went to that hearing, I listened to her testimony, and I read her written answers, many newly formulated, that attempt to explain away her very disturbing opinions in the Texas parental notification cases. But her record is still her record, and the record is clear. She did not satisfactorily explain why she infused the words of the Texas legislature with so much more meaning than she can be sure they intended. She adequately describes the precedents of the Supreme Court of the United States, to be sure, but she simply did not justify the leaps in logic and plain meaning she attempted in those decisions.

I read her responses to Senator Hatch's remarks at that second hearing, where he attempted to explain away cases about which I had expressed concern at her first hearing. For example, I heard him explain the opinion she wrote in F.M. Properties v. City of Austin. I read how he recharacterized the dispute in an effort to make it sound innocuous, just a struggle between two jurisdictions over some unimportant regulations. I know how, through a choreographed exchange of leading questions and short answers, they tried to respond to my question from the original hearing, which was never really answered, about why Justice Owen thought it was proper for the legislature to grant large corporate landowners the power to regulate themselves. I remained unconvinced. The majority in this case, which invalidated a state statute favoring corporations, did not describe the case or the issues as Senator Hatch and Justice Owen did. A fair reading of the case shows no evidence of a struggle between governments. This is all an attempt at after-the-fact, revisionist justification where there really is none to be found.

Justice Owen and Chairman Hatch's explanation of the case also lacked even the weakest effort at rebutting the criticism of her by the F.M. Properties majority. In its opinion, the six justice majority said, and I am quoting, that Justice Owen's dissent was ``nothing more than inflammatory rhetoric.'' They explained why her legal objections were mistaken, saying that no matter what the state legislature had the power to do on its own, it was simply unconstitutional to give the big landowners the power they were given. No talk of the City of Austin v. the State of Texas. Just the facts.

Likewise, the few explanations offered for the many other examples of the times her Republican colleagues criticized her were unavailing. The tortured reading of Justice Gonzales' remarks in the Doe case were unconvincing. He clearly said that to construe the law in the way that Justice Owen's dissent construed the law would be activism. Any other interpretation is just not credible.

And no reasons were offered for why her then-colleague, now ours, Justice Cornyn, thought it necessary to explain the principle of stare decisis to her in his opinion in Weiner v. Wasson. Or why in Montgomery Independent School District v. Davis, the majority criticized her for her disregard for legislative language, saying that, ``the dissenting opinion misconceives the hearing examiner's role in the . . . process,'' which it said stemmed from, ``its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards.'' Or why, in Collins v. Ison-Newsome, a dissent joined by Justice Owen was so roundly criticized by the Republican majority, which said the dissent agrees with one proposition but then ``argues for the exact opposite proposition . . . [defying] the Legislature's clear and express limits on our jurisdiction.''

These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views. No good explanation was offered for these critical statements last year, and no good explanation was offered two weeks ago. Politically motivated rationalizations do not negate the plain language used to describe her activism at the time.

I also briefly set the record straight about a number of mischaracterizations of the opposition to Justice Owen's nomination. Earlier in this debate, at least one Senator said that opposition Senators, are ``discriminating against people of faith.'' Sadly, these statements follow a pattern of despicable accusations, made often by the radical interest groups backing these nominations and made too frequently here by those repeated these slurs. The assertion that any Senator opposes someone because she is a Sunday school teacher is a new low, however. Even President Bush has disavowed that attack.

I oppose Priscilla Owen, not because of her faith, which I respect, but because she is an ends-oriented judicial activist who is so far outside of the mainstream that she has often been criticized harshly by the Texas Supreme Court's conservative majority. In case after case, Justice Owen's opinions make clear that she is a judge willing to make law from the bench rather than follow the language and intent of the legislature or judicial precedent. While some of the clearest examples of her judicial activism come in her dissents in cases involving the parental notification law, there are, as I have explained, many other examples in cases having nothing to do with abortion.

Justice Owen's position as a frequent dissenter on the Texas Supreme Court shows how extreme she can be and how far from the letter of the law she strays in her attempts to push her own political and ideological agenda. Not

only has the majority of that conservative court criticized her dissents on numerous occasions, but the majority's criticisms of her opinions are unusual for their harsh tone. Surely the Republican members of the Texas Supreme Court criticized Priscilla Owen not because she is a person of faith, but because she insists on impermissibly legislating from the bench. I concur.

Senators oppose Priscilla Owen's confirmation because she has attempted to substitute her own views for those of the legislature. What is relevant is that she is writing law, rather than interpreting law, as evidenced in the opinions in which she would have added requirements that the Texas legislature did not put into the law.

An evaluation of Priscilla Owen's decisions shows that it is she who is results-oriented; she crafts her decisions in order to promote business interests over individuals and to advance various social agendas, rather than simply following the law and evaluating the facts of a given case. Justice Owen has been broadly and repeatedly criticized by her fellow Republican Texas Supreme Court Justices for disregarding statutes and the intent of the legislature, instead, pursuing her own activist results. In many cases in which she has dissented and been criticized by the majority, her opinions were to benefit corporate interests including numerous companies that contributed to her campaign.

For instance, in FM Properties Operating Co. v. City of Austin, which I have already discussed, where she ruled to let a single developer dodge Austin's water quality rules, Justice Owen received $2,500 in campaign contributions from one of the FM Properties company's partners and over $45,000 from the company's lawyers.

It is worth noting that my Democratic colleagues and I do not stand alone in opposing Priscilla Owen's nominations. We are in the good company of a broad array of newspaper editorial boards, prominent organizations, and individuals throughout the country and in Justice Owen's home state of Texas.

The groups opposing Justice Owen range from the AFL-CIO and the Leadership Conference on Civil Rights to the Endangered Species Coalition and the National Partnership for Women and Families. Texas opposition to the Owen nomination has come from a wide variety of groups including the American Association of University Women of Texas, Texas Lawyers for a Fair Judiciary, and the Texas chapters of the National Organization for Women and the Mexican American Legal Defense and Education Fund, MALDEF, just to name a few. Among the many citizens who have written to oppose Justice Owen's nomination are dozens of attorneys from Texas and elsewhere, as well as C.L. Ray, a retired Justice of the Texas Supreme Court, who wrote, ``I have rarely seen a public servant show so much contempt for the laws of this State.''

Lawyers who appear in front of Justice Owen in Texas Supreme Court rate her poorly as well. The most recent results of the Houston Bar Association's Judicial Evaluation Poll shows that 45 percent of the respondents rated Justice Owen ``poor,'' more than gave that lowest rating to any other justice. She was in last place in the ``acceptable'' category, with only 15 percent, and in second-to-last place among her colleagues in receiving a rating of ``outstanding'', with only 39 percent giving her that review.

I have heard Senator Cornyn say that Justice Owen has been supported by major newspapers in Texas, but that support must have been for her election to the Texas Supreme Court because, to the contrary, a number of major newspaper editorial boards in Texas have expressed their opposition to Justice Owen's confirmation to the federal appellate bench.

The San Antonio Express News criticized Owen because ``[o]n the Texas Supreme Court, she always voted with a small court minority that consistently tries to bypass the law as written by the Legislature.''

The Houston Chronicle cited complaints about Owen ``run from a penchant for overturning jury verdicts on tortuous readings of the law to a distinct bias against consumers and in favor of large corporations,'' and the newspaper concluded that she ``has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law. Anyone willing to look objectively at Owen's record would be hard-pressed to deny that.''

The Austin American-Statesman wrote that Owen is ``out of the broad mainstream of jurisprudence'' and ``seems all too willing to bend the law to fit her views, rather than the reverse.'' The newspaper continued, ``Owen also could usually be counted upon in any important case that pitted an individual or group of individuals against business interests to side with business.''

Editorial boards throughout the country echo the opinions of Owen's home state newspapers. Newspapers from the Palm Beach Post and the Charleston Gazette to the Los Angeles Times and the Detroit Free Press have spoken out against this extreme nomination. The Atlanta Journal- Constitution wrote that Owen ``has a lopsided record favoring large corporations,'' while the Minneapolis Star-Tribune wrote that ``[e]ven her court colleagues have commented on her habit of twisting law to fit her hyperconservative political views'' and that ``Owen's ethical compass is apparently broken.'' Educated observers who review Priscilla Owen's record recognize that she is an ends-oriented judicial activist who is not an appropriate nominee for a lifetime appointment to one of the most important courts in the land.

When he nominated Priscilla Owen, President Bush said that his standard for judging judicial nominees would be that they ``share a commitment to follow and apply the law, not to make law from the bench.'' He said he is against judicial activism. Yet he has appointed judicial activists like Priscilla Owen and Janice Rogers Brown.

Under President Bush's own standards, Justice Owen's record of ends- oriented judicial activism does not qualify her for a lifetime appointment to the federal bench.

The President has often spoken of judicial activism without acknowledging that ends-oriented decision-making can come easily to extreme ideological nominees. In the case of Priscilla Owen, we see a perfect example of such an approach to the law, and I cannot support it. The oath taken by federal judges affirms their commitment to ``administer justice without respect to persons, and do equal right to the poor and to the rich.'' No one who enters a federal courtroom should have to wonder whether he or she will be fairly heard by the judge.

Justice Priscilla Owen's record of judicial activism and ends- oriented decisionmaking leaves me with grave doubt about her ability to be a fair judge. The President says he opposes putting judicial activists on the Federal bench, yet Justice Priscilla Owen unquestionably is a judicial activist. I cannot vote to confirm her for this appointment to one of the highest courts in the land.

I have said time and time again that if somebody walks into a federal court, they should not have to wonder whether they will be treated fairly based on whether they are a Republican or a Democrat, a defendant or a plaintiff, rich or poor. They should know that they are going to be treated fairly no matter who they are and that their case will be determined on the merits. In Priscilla Owen's case, her record shows that litigants cannot be sure of that. The President may well get the votes to put Priscilla Owen on the Fifth Circuit today, but would it not have been better to have nominated someone with a record of fairness and impartial judging who could be confirmed by a united, not a divided Senate.

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

Mr. President, I understand the time on our side has expired. While we are waiting for the distinguished Republican leader to come to the floor, I ask to continue until he arrives. Of course, I will yield to him as soon as he seeks recognition.

That we have terminated the debate and are now voting on this controversial nomination demonstrates our good will in light of the agreement reached two days ago to avoid triggering the Republican leadership's bid for one-party rule. Fourteen of our colleagues came to us with a bipartisan plan to avoid the Majority leader's nuclear option, which was a short-sighted effort to change the more than 200 years of Senate tradition, precedent and rules by destroying minority rights.

While we may not all agree with every part of the agreement, by our votes yesterday and today Democrats are showing that we are prepared to move on. I urge the Republican leader not to be captive of the narrow special interest that have moved and pushed so much the effort toward the nuclear option. We have a great deal of work to do in this body, work that can be accomplished easily by Republicans and Democrats working together, not by those who want simply partisan rules.

I expect that in due course the Senate will consider each of the three controversial nominees mentioned in Part I. A. of that Memorandum of Understanding. I do not expect there to be any repeat by Democrats of the extraordinary obstruction by Republicans of President Clinton's judicial nominees. For example, I do not expect any of the tactics used by Republicans during the extensive delay in Senate consideration of the Richard Paez nomination. Judge Paez waited more than four years before we were able to get a vote on his confirmation longer than the Priscilla Owen nomination has been pending. I recall some Republicans mounting an extraordinary motion after the filibuster of his nomination was broken to indefinitely postpone the vote; a last-ditch, unprecedented effort that was ultimately unsuccessful. Of course, Judge Helene White never got a vote or even a hearing in more than four years. Republicans denied her a hearing for a period longer than the Owen nomination has been pending. Like more than 60 of President Clinton's moderate and qualified judicial nominations, she was subjected to the Republican pocket filibuster.

In this connection I should also note that last night the Senate, with Democratic cooperation, entered into unanimous consent agreement to govern the consideration and vote on three additional circuit court nominees, Tom Griffith, Richard Griffin, and David McKeague. Those are nominations that will be debated and voted upon when the Senate returns from Memorial Day. The Democratic Leader deserves great credit for forging significant progress on these matters.

I have seen reports that the vote today of the nomination of Priscilla Owen is the ``first'' of this President's controversial nominees. That is not true. This administration has sent divisive nominee after divisive nominee to the Senate. Several controversial judicial nominees have already been voted upon by the Senate. Among the 208 judges already confirmed are some who were confirmed with less than 60 votes, some with more than 40 negative votes. The President's court- packing efforts are not new but continuing. Moreover, his penchant for insisting on divisive nominations is not limited to the judiciary, as will be demonstrated, again, when the Senate turns to the nomination of John Bolton following the vote on the Owen nomination.

As for the nomination of Priscilla Owen, after reviewing her record, hearing her testimony and evaluating her answers I am voting against her confirmation. I believe Justice Owen has shown herself over the last decade on the Texas Supreme Court to be an ends-oriented judicial activist, intent on reading her own policy views into the law. She has been the target of criticism by her conservative Republican colleagues on the court in a variety of types of cases where the law did not fit her personal views, including in cases where she has consistently ruled for big business and corporate interests in cases against worker and consumers. This sort of judging ought not to be rewarded with such an important and permanent promotion. She skews her decisions to show bias against consumers, victims and just plain ordinary

people in favor of big business and corporations.

As one reads case after case, particularly those in which she was the sole dissenter or dissented with the extreme right wing of the Court, her pattern of activism becomes clear. Her legal views in so many cases involving statutory interpretation simply cannot be reconciled with the plain meaning of the statute, the legislative intent, or the majority's interpretation, leading to the conclusion that she sets out to justify some pre-conceived idea of what the law ought to mean. This is not an appropriate way for a judge to make decisions. This is a judge whose record reflects that she is willing and sometimes eager to make law from the bench.

Justice Owen's activism and extremism is noteworthy in a variety of cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she writes against individual plaintiffs time and again, in seeming contradiction of the law as written. In fact, according to a study conducted last year by the Texas Watch Foundation, a non-profit consumer protection organization in Texas, in the last six years, Owen has not dissented once from a majority decision favoring business interests over victims, but has managed to differ from the majority and dissent in 22 of the 68 cases where the majority opinion was for the consumer.

It is worth noting that the opposition to Priscilla Owen's nomination includes a broad array of newspaper editorial boards, prominent organizations, and individuals throughout the country and in Justice Owen's home state of Texas. Groups opposing Justice Owen range from the AFL-CIO and the Leadership Conference on Civil Rights to the Endangered Species Coalition and the National Partnership for Women and Families. Opposition to the Owen nomination has come from a wide variety of groups in Texas including the American Association of University Women of Texas, Texas Lawyers for a Fair Judiciary, and the Texas chapters of the National Organization for Women and the Mexican American Legal Defense and Education Fund (MALDEF), just to name a few. Among the many citizens who have written to oppose Justice Owen's nomination are dozens of attorneys from Texas and elsewhere, as well as C.L. Ray, a retired Justice of the Texas Supreme Court, who wrote, ``I have rarely seen a public servant show so much contempt for the laws of this State.''

Lawyers who appear in front of Justice Owen in Texas Supreme Court rate her poorly as well. The most recent results of the Houston Bar Association's Judicial Evaluation Poll shows that 45 percent of the respondents rated Justice Owen ``poor,'' more than gave that lowest rating to any other justice. She was in last place in the ``acceptable'' category, with only 15 percent, and in second-to-last place among her colleagues in receiving a rating of ``outstanding,'' with only 39 percent giving her that review.

I have heard Senator Cornyn say that Justice Owen has been supported by major newspapers in Texas, but that support must have been for her election to the Texas Supreme Court because a number of major newspaper editorial boards in Texas have expressed their opposition to Justice Owen's confirmation to the federal appellate bench.

When he nominated Priscilla Owen, President Bush said that his standard for judging judicial nominees would be that they share a commitment to follow and apply the law, not to make law from the bench. He said he is against judicial activism. Yet he has nominated judicial activists like Priscilla Owen. Under President Bush's own standards, Justice Owen's record of ends-oriented judicial activism does not qualify her for a lifetime appointment to the federal bench.

I have said time and time again that if somebody walks into a federal court, they should not have to wonder whether they will be treated fairly based on whether they are a Republican or a Democrat, a defendant or a plaintiff, rich or poor. They should know that they are going to be treated fairly no matter who they are and that their case will be determined on the merits. In Priscilla Owen's case, her record shows that litigants cannot be sure of that. The President may well get the votes to put Priscilla Owen on the Fifth Circuit today, but would it not have been better to have nominated someone with a record of fairness and impartial judging who could be confirmed by a united, not a divided Senate?

Mr. President, I see the distinguished Republican leader now on the floor of the Senate. I will close--so that he may be recognized--by saying, again, when somebody walks into a Federal court, they should not have to ask themselves: Is this a Republican court or Democratic court? This is an independent judiciary.

I yield to the distinguished majority leader.

Mr. President, what is the parliamentary situation?

I thank the distinguished Presiding Officer. I will take some of my time.

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

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

Mr. President, the Senate is on a path toward a divisive and actually unnecessary showdown. I have been here long enough to know that if the vote on the Republican leader's nuclear option were by a secret ballot it would fail overwhelmingly. There are too many Senators who will tell you privately that on a secret ballot they would never vote for it. We know this because, as these Senators know, it is harmful to this institution and it is wrong for this country--wrong in terms of protecting the rights of the American people, wrong in terms of undercutting our fundamental system of checks and balances, wrong in terms of defending the independence of and public support for an independent Federal judiciary. But especially it is wrong in unilaterally destroying minority protections in the Senate in order to promote one-party rule, something this Senate has never known and has never wanted.

I have served in the Senate for almost 31 years. During that time, several times the Democrats were in charge of the Senate--in the majority. Several times the Republicans were. The hallmark of every leader, Republican or Democratic, was that the special minority protections of the Senate would remain. No matter who was in the majority, they believed they had as their obligation protecting the rights of the minority because that is what the Senate is all about. Every Senate majority leader took as his trust to make sure that when he left, the Senate had at least the strengths it had when he took over.

Today, Democratic Senators alone will not be able to rescue the Senate and our system of checks and balances from the breaking of the Senate rules the Republican leadership seem so insistent on demanding. It will take at least six Republicans standing up for fairness and for checks and balances. I know a number of Senators on the other side of the aisle know in their hearts that this nuclear option is the wrong way to go.

Senators on both sides of the aisle have called for the vote on the nuclear option to be one of principle rather than one of party loyalty, and for this to be a vote of conscience. I agree. To ensure that it is, I urge both the Republican leader from Tennessee and the Democratic leader from Nevada--both of whom are my friends--to announce publicly, today, in advance of the momentous vote that awaits us at the end of this debate, that every Senator should search his or her heart, his or her conscience, and vote accordingly.

I call on both the Democratic and Republican leaders to announce that there will be no retribution or punishment visited upon any Senator for his or her vote.

I remember in the aftermath of another vote, one I called at that time a profile in courage, when our friend, the senior Senator from Oregon, Mark Hatfield, cast the deciding vote against a proposed constitutional amendment. Ten years ago some of the newer Republican Senators at the time reportedly wanted to strip him of the chairmanship of the Appropriations Committee. The press at the time provided counsel to those newer Senators, some having recently arrived from the other Chamber, and who were accustomed to the way the Republican Party in that body operates, where everything is all or nothing.

At the time, some of those Members urged that Senator Hatfield be penalized for his vote of conscience, a vote they did not like. They thought conscience should be set aside, he should have toed the party line. I remember the unfair pressures brought to bear on Senator Hatfield. I do not want to see that befall other Senators, Republican or Democrat, whichever way they choose to vote on the nuclear option.

The Senate has its own carefully calibrated role in our system of Government. The Senate was not intended to function like the House. The Great Compromise of the Constitutional Convention more than 200 years ago was to create in the Senate a different legislative body from the House of Representatives. Those fundamental differences

include equal representation for each State in accordance with article I, section 3. Thus, Vermont has equal numbers of Senators to New York or Idaho or California. The Founders intended this as a vital check. Representation in the Senate is not a function of population or based on the size of a State or its wealth.

Another key difference is the right to debate in the Senate. The filibuster is quintessentially a Senate practice. James Madison wrote in Federalist No. 63 that the Senate was intended to provide ``interference of some temperate and respectable body of citizens'' against ``illicit advantage'' and the ``artful misrepresentations of interested men.'' It was designed and intended as a check, a balancing device, as a mechanism to promote consensus and to forge compromise.

The House of Representatives has a different and equally crucial function in our system. I respect the House and its traditions just as I respect and honor the Senate tradition. It is the Senate and only the Senate that has a special role in our legislative system to protect the rights of a minority from the divisive or intemperate acts of a headstrong majority.

As the Republican leader agreed in debate with Senator Byrd last week, there is no language in the Constitution that creates a right to a vote or a nomination or a bill. If there were such a right, if there were a right in the Constitution to require a vote, then Republicans violated that more than 60 times by 60 times refusing to have a vote on President Clinton's judicial nominees, by 60 pocket filibusters of Clinton judicial nominations and about 200 other executive nominations.

According to the Congressional Research Service, more than 500 judicial nominations for circuit and district court did not receive final Senate votes between 1945 and 2004. That is more than 500. It amounts to 18 percent of all overall nominations. By contrast, this President has seen more than 95 percent of his judicial nominations confirmed, 208 to date.

What the Republican leadership is seeking to do is to change the Senate rules in accordance with them but by breaking them. It is wrong that the Senators who refused to have votes on more than 60 of President Clinton's judicial nominees, and hundreds of his executive branch nominees, have only one Republican agenda now--to contend the votes and nominations are constitutionally required.

The Constitution hasn't changed from the time of the Clinton Presidency to Bush's Presidency, nor have the Senate rules been changed. That is why I like to keep the Senate autonomous and secure in a ``nuclear free'' zone.

The partisan power play now underway by Republicans will undermine the checks and balances established by the Founders of the Constitution. It is a giant leap toward one-party rule with an unfettered executive controlling all three branches of the Federal Government. It not only would demean the Senate and destroy the comity on which it depends, but it would undermine the strong, independent Federal judiciary protecting rights of liberties of all Americans against the overreaching of political branches.

It is saying, no matter whether you are Republican or Democrat or Independent in this country, only Republicans need apply because they will control the executive branch, the House of Representatives, the Senate, and now the independent Federal judiciary. That is what it comes down to. There will be no checks and balances on who goes on a Federal bench for a lifetime job, lifetime position. There will be no checks and balance. It will be, if you are a Republican, you can be on the Federal bench and help shape it; otherwise, forget about it.

This is not a country of one-party rule. I hope this country is never one of one-party rule. No democracy law exists if it is there by one- party rule.

Our Senate Parliamentarian, who is nonpartisan, our Congressional Research Service, which is there to serve both Republicans and Democrats, have said the so-called nuclear option would go against Senate precedent. In other words, to change the rule, you would have to break the rule. In other words, to say we are going to talk about how judges should judge, we will break our own laws to do it. What an example to a great and good country like ours. What an example to say we are somehow above the law.

What it is saying to the American people, you 280 million Americans, you follow the law, but 100 Senators are better than that. We don't have to follow the law. We stand above the law. In fact, if we don't like the law, we will break the law and make a new one.

Do our friends on the other side of the aisle want to so blatantly break the rules for short-term political gain? Do they desire to turn the Senate into a place where the parliamentary equivalent of brute force is whatever can be rammed through by partisan ramrodding and arm twisting?

We are not playing king of the hill. We are protecting the Constitution. We are protecting the best checks and balance of our Nation, the Senate, and we are doing it so we can remove the checks and balance of the Federal judiciary. What enormous stakes.

That is why I say if this were a secret ballot, the nuclear option would never pass. There are too many Senators who state privately in the cloakrooms, the dining room, and the Senate gym, they know this is wrong but they have to follow party discipline.

We did not come to this crossroad overnight. No Democratic Senator wanted to filibuster. Not one of us came to those votes easily. We hope we are never forced by an overaggressive executive and compliant majority into another filibuster over a judicial nomination. Filibusters, like the confrontation the Senate is being forced into over the last several days, are the direct result of a deliberate attack by the current administration and its supporters in the Senate against not only the traditions of the Senate but the rules: We are willing to break the rules that serve our purpose for the moment.

The nuclear option is the grand culmination of their efforts. It is intended to clear the way for this President to appoint a more extreme and more divisive choice--not only in the circuit courts of appeals but should a vacancy arise on the Supreme Court. That is not how the Senate has worked or should work.

I have been here with six Presidents. It has been the threat of a filibuster that has encouraged a President to moderate his choice and work with Senators on both sides of the aisle, both Republican and Democratic Senators. Of the six Presidents I have served with, five of them actually looked at the advice and consent clause and worked with Senators from both parties for both advice and consent of the judges. But this has been politicized and the Senate Republicans have systematically eliminated every other traditional protection for the minority. Now their target is a Senate filibuster, the only route that is left to allow a significant Senate minority to be heard.

Under pressure from the White House over the last 2 years prior to this year, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking the longstanding precedent and Senate tradition with respect to handling lifetime appointments to the Federal bench. Senate Republicans have had one set of practices to delay and defeat 61 of a Democratic President's moderate, qualified judge nominations. But then they suddenly switch gears and switch the rules to rubberstamp a Republican President's choices to lifetime judicial positions, including many who were very controversial.

The list of broken rules and precedents is long, including in the way the home State Senators were treated, the way hearings were scheduled, in the way the committee questionnaire was unilaterally altered, to the way the Judiciary Committee historic protection of the minority by committee rule IV was repeatedly violated. In the last Congress they destroyed virtually every custom and courtesy used throughout history to enforce cooperation and civility in the confirmation process.

For years, Democratic Senators have been warning that the deterioration of Senate rules and practices, if done away with, would also do away with the protection of minority rights.

So that is where we are. I have been proud to serve here both in the majority and the minority. I remember all the times when I was here as a member of the majority party, it was constantly drummed into us at our party

caucuses, at party meetings, we have to maintain the Senate rules to protect the rights of the then minority, the Republicans.

It is amazing to me the Senate, the place that is supposed to be the conscience of our Nation, would allow a President, any President, to convince them to turn their back on precedent, on history, but also on their own rules.

We have always been a check and balance on Presidents. Now we have Senators who will tell you, quietly outside the Chamber, they are frustrated by taking orders from the White House and yet will not stand up and say no, we don't work for the White House. We are not appointed by the White House. We are elected by the people of our State. We swear on the oath to protect the Constitution. We are not protecting it when we break our own rules. We are not protecting the people of this country when we throw away the ability to have checks and balances. This is a serious mistake, and we will rue this day.

So at this ninth hour, I say to Senators: Vote your conscience. As I said earlier, if this was a secret ballot, the nuclear option would never pass. But vote your conscience. And again, I would urge both the Republican leader and the Democratic leader to announce on the floor of the Senate that nobody will be punished if they vote their conscience because, after all, why would anybody want to serve, why would anybody want to be 1 of 100 to represent 280 million Americans? Why would you want to serve in the Senate if you felt you could not vote your conscience? I will vote mine on this issue. I will vote to protect the rights of the minority--all minorities throughout this country. I will vote to uphold the law. I will vote to uphold the rules of the Senate. And I will vote to uphold that which causes us to have a check and balance where instead of rushing off the cliff following one person on either the right or the left, we seek the compromises that are best for this country.

I see the distinguished Senator from New York on the floor. I am perfectly willing to yield the remainder of my time to her.

Mr. President, I understand we have 1 minute left.

I thank the distinguished Presiding Officer, and I thank the Senator from New York for her comments.

Mr. President, I would simply reiterate what I said before. If the vote on the nuclear option was cast in secret, from everything I have been told by my fellow Senators, it would go down to crashing defeat. As Senators know, we have to break the rules to change the rules.

Again, I would just urge that both leaders, both the Republican and Democratic leaders, make it clear to their Members that nobody is going to be punished for a vote on conscience. I hope Senators will stand up and be a profile in courage, vote their conscience, and vote the right way.

Mr. President, the hour of 5:30 has arrived, so I yield the floor.

Quorum Call

Mr. President, I see the Republican leader is not on the floor yet, so I will suggest the absence of a quorum to accommodate him. I suggest the absence of a quorum.

Mr. President, I have made no secret how I regard the Republican Leader's bid for one-party rule through his insistence to trigger the ``nuclear option.'' I view it as a misguided effort that would undercut the checks and balances that the Senate provides in our system of government, undermine the rights of the American people, weaken the independence and fairness of the Federal courts, and destroy minority rights here in the Senate. In that regard, I thank the Senators who joined in the debate on Friday for their contributions, including in particular Senator Dodd, Senator Levin, Senator Jeffords, Senator Dayton, Senator Lincoln, Senator Lieberman and Senator Dorgan. Theirs were outstanding statements.

The Senate is not the House. It was not intended to function like the House. The ``Great Compromise'' of the Constitutional Convention more than 200 years ago was to create in the Senate a different legislative body from the House of Representatives. Those fundamental differences include equal representation for each State in accordance with article I, section 3. Thus, Vermont has equal numbers of Senators to New York and Idaho, as compared to California. The Founders intended this as a vital check. Representation in the Senate is not a function of population or based on the size of a State or its mineral wealth.

Another key difference is the right to debate in the Senate. The filibuster is quintessentially a Senate practice. James Madison wrote in Federalist No. 63 that the Senate was intended to provide ``interference of some temperate and respectable body of citizens'' against ``illicit advantage'' and the ``artful misrepresentations of interested men.'' It was designed and intended as a check and to provide balance. In no way do I intend to disrespect the House of Representatives by these remarks. I respect the House. I respect its traditions. But it is the Senate that protects the minority and thereby serves a special role in our national government.

Others have alluded to some valuable history lessons during the course of this debate. One of those lessons comes from 1937, the last time a President sought to pack the courts. President Franklin Roosevelt was coming off a landslide victory over Alf Landon. He attempted to pack the Supreme Court. Democrats--Senators from President Roosevelt's own party--stood up to him. In May 1937 the Senate Judiciary Committee criticized the Roosevelt court-packing plan as an effort by the executive branch to dominate the Judicial Branch with the acquiescence of the legislative branch. The Senate stood up for checks and balances and protected the independence of the judiciary. It is time again for the Senate to stand up, and I hope that there are Senators of this President's party who have the courage to do so, today.

The Constitution nowhere says that judicial confirmations require 51 votes. Indeed, when Vermont became the 14th State in 1791, there were then only 28 Members of the U.S. Senate. More recently, Supreme Court Justices Sherman Minton, Louis Brandeis, and James McReynolds were confirmed with 48 votes, 47 votes and 44 votes, respectively.

As the Republican leader admitted in debate with Senator Byrd last week, there is also no language in the Constitution that creates a right to a vote for a nomination or a bill. If there were such a right, it was violated more than 60 times when Republicans refused to consider President Clinton's judicial nominees. According to the Congressional Research Service more than 500 judicial nominations for circuit and district courts have not received a final Senate vote between 1945 and 2004--over 500--that is 18 percent of those nominations. By contrast, this President has seen more than 95 percent of his judicial nominations confirmed, 208 to date.

The Constitution provides for the Senate to establish its own rules in accordance with article I, section 5. The Senate rules have for some time expressly provided for nominations not acted upon by the Senate-- ``neither confirmed nor rejected during the session at which they are made''--being ``returned by the Secretary to the President.'' That is what happened to those 500 nominations over the last 60 years.

What the Republican leadership is seeking to do is to change the Senate rules not in accordance with them but by breaking them. It is ironic that Republican Senators, who prevented votes on more than 60 of President Clinton's judicial nominees and hundreds of his executive branch nominees because one anonymous Republican Senator objected, now contend that the votes on nominations are constitutionally required.

No President in our history, from George Washington on, has ever gotten all his judicial nominees confirmed by the Senate. President Washington's nomination of John Rutledge to be Chief Justice of the U.S. Supreme Court was not confirmed by the Senate. Senate Republicans now deny the

filibusters they attempted against President Clinton's judicial nominees and they ignore the filibusters they succeeded in using against his executive branch nominees. They seek not only to rewrite the Senate's rules by breaking them but to rewrite history. I ask that a copy of the recent article by Professor John J. Flynn be included in the Record.

Helping to fuel this rush toward the nuclear option is new vitriol that is being heaped both upon those who oppose a handful of controversial nominees and oppose the nuclear option, as well as on the judiciary itself. We have seen threats from House Majority Leader Tom Delay and others about mass impeachments of judges with whom they disagree. We have seen Federal judges compared to the KKK, called ``the focus of evil,'' and we have heard those supporting this effort quote Joseph Stalin's violent answer to anyone who opposed his totalitarianism by urging the formula of ``No man, No problem.'' Stalin killed those with whom he disagreed. That is what the Stalinist solution is to independence. Regrettably, we have heard a Senator trying to relate the recent rash of courtroom violence and the killings of judges and judges' family members with philosophical differences about the way some courts have ruled.

This debate in the Senate last week started with rhetoric from the other side accusing disagreeing Senators of seeking to ``kill'' and ``assassinate.'' Later in the week another member of the Republican leadership likened Democratic opponents of the nuclear option to Adolph Hitler. Still another Republican Senator accused Senators who oppose judicial nominees of discriminating against people of faith. This is in direct violation of the Republican leader's own statement at the outset of this debate that the rhetoric in this debate should ``follow the rules, and best traditions of the Senate.'' This has sunk too low and it has got to stop.

It is one thing for those outside the Senate to engage in incendiary rhetoric. In fact, I would have expected Senators and other leaders to call for a toning down of such rhetoric rather than participating and lending support to events that unfairly smear Senators as against people of faith. Within the last several days, the Rev. Pat Robertson called Federal judges, quote, ``a more serious threat to America then Al Qaeda and the Sept. 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings.'' He went on to proclaim the Federal judiciary ``the worst threat American has faced in 400 years worse than Nazi Germany, Japan and the Civil War.'' This is the sort of incendiary rhetoric that Republican Senators should be disavowing. Instead, they are adopting it and exploiting it in favor of their nuclear option.

It is base and it is wrong, and just the sort of overheated rhetoric that we should all repudiate. Not repeating such slander is not good enough. We should reject it and do so on a bipartisan basis. Republicans as well as Democrats should affirmatively reject such harsh rhetoric. It does not inspire; it risks inciting.

Last week as we began this debate, the Judiciary Committee heard the testimony of Judge Joan Lefkow of Chicago. She is the Federal judge whose mother and husband were murdered in their home. She counsels: ``In this age of mass communication, harsh rhetoric is truly dangerous. [F]ostering disrespect for judges can only encourage those that are on the edge, or on the fringe, to exact revenge on a judge who ruled against them.'' She urged us as public leaders to condemn such rhetoric. I agree with her. She is right and she has paid dearly for the right to say so.

Those driving the nuclear option engage in a dangerous and corrosive game of religious McCarthyism, in which anyone daring to oppose one of this President's judicial nominees is branded as being anti-Christian, or anti-Catholic, or ``against people of faith.'' It continued over the last several weekends, it continued last week on the Senate floor. It is wrong; it is reprehensible. These charges, this virulent religious McCarthyism, are fraudulent on their face and destructive.

Injecting religion into politics to claim a monopoly on piety and political truth by demonizing those you disagree with is not the American way. Injecting politics into judicial nominations, as this administration has done, is wrong, as well.

I would like to keep the Senate safe and secure and in a ``nuclear free'' zone. The partisan power play now underway by Republicans will undermine the checks and balances established by the Founders in the Constitution. It is a giant leap toward one-party rule with an unfettered Executive controlling all three branches of the Federal Government. It not only will demean the Senate and destroy the comity on which it depends; it also will undermine the strong, independent Federal judiciary that has protected the rights and liberties of all Americans against the overreaching of the political branches.

Our Senate Parliamentarian and our Congressional Research Service have said that the so-called nuclear option would go against Senate precedent. Do Republicans really want to blatantly break the rules for short-term political gain? Do they really desire to turn the Senate into a place where the parliamentary equivalent of brute force is what prevails?

Just as the Constitution provides in article V for a method of amendment, so, too, the Senate rules provide for their own amendment. Sadly, the current crop of partisans who are seeking to limit debate and minority rights in the Senate have little respect for the Senate, its role in our government as a check on the executive, or its rules. Republicans are in the majority in the Senate and chair all of its committees, including the Rules Committee. If Republicans have a serious proposal to change the Senate rules, they should introduce it. The Rules Committee should hold meaningful hearings on it and consider it and create a full and fair record so that the Senate itself would be in position to consider it. That is what we used to call ``regular order.'' That is how the Senate is intended to operate, through deliberative processes and with all points of view being protected and being heard.

That is not how the ``nuclear option'' will work. It is intended to work outside established precedents and procedures. Use of the ``nuclear option'' in the Senate is akin to amending the Constitution not by following the procedures required by article V but by proclaiming that 50 Republican Senators and the Vice President have determined that every copy of the Constitution shall contain a new section--or not contain some of those troublesome amendments that Americans like to call the Bill or Rights. That is wrong. It is a kind of lawlessness that each of us should oppose. It is rule by the parliamentary equivalent of brute force.

Never in our history has the Senate changed its governing rules except in accordance with those rules. I was a young Senator in 1975 when Senate rule XXII was last amended. It was amended after cloture on proceeding to the resolution to change the rule was invoked in accordance with rule XXII itself and after cloture on the resolution was invoked in accordance with the requirement then and still in our rules that ending debate on a rule change requires the concurrence of two-thirds of the Senate. That was achieved in 1975 due in large part to the extraordinary statesmanship and leadership of Senator Byrd. And then the Senate adopted the resolution, which I supported. The resolution we adopted reduced the number of votes needed to end debate in the Senate from two-thirds to three-fifths of those Senators duly chosen and sworn. The Senate has operated under these rules to terminate debate on legislative matters and nominations for the last 30 years. Before that the Senate's requirement to bring debate to a close was even more exacting and required more Senators to vote to end a filibuster. I say, again, that the change in the Senate rules was accomplished in accordance with the Senate rules and the way in which they provide for their own amendment.

There has been a good deal of chest pounding on the other side of the aisle recently about the supposed sanctity of 51 votes to prevail, to end debate, to amend the Senate rules. Senators know that, in truth, there are a number of instances in which 60 votes are needed to prevail. These are not theoretical matters, but matters constantly used by Republican leaders to thwart ``majority'' votes on matters they do not like.

The most common 60-vote threshold is what is required to prevail on a motion to waive a series of points of orders arising from the Budget Act and budget resolutions. In fact, just this year in the deficit- creating budget passed by the Senate with Republican votes, they created new points of order that will require 60 votes in order to be overcome.

There are dozens of recent examples, but a few should make this concrete. In March 2001, a majority of Senators voted to establish a Social Security and Medicare ``lockbox.'' That was a good idea. Had we been able to prevail then, maybe some of the problems being faced by the Social Security trust fund and Medicare might have been averted or mitigated. But even though 53 Senators voted to waive the point of order and create the lockbox, it was not adopted by the Senate.

There is another example from soon after the 9/11 attacks. A number of us were seeking to provide financial assistance, training and health care coverage for aviation industry employees who lost their jobs as a result of the terrorist attacks. We had a bipartisan coalition of more than 50 Senators; it was, as I recall, 56. But the votes of 56 Senators were not sufficient to end the debate and enact that assistance.

I also remember an instance in October 2001, when I chaired the Foreign Operations Subcommittee of the Senate Appropriations Committee. I very much wanted to have the Senate do our job and complete our consideration of the funding measure necessary to meet the commitments made by President Bush to foreign governments and to provide life- saving assistance around the world. We voted on whether the Senate would be allowed to proceed to consider the bill--not to pass it, mind you, just to proceed to debate it. Republicans objected to considering the bill both times. We were required to make a formal motion to proceed to the bill. Then minority Senators, Republican Senators, filibustered proceeding to consideration of the bill. We were required to petition for cloture to ask the Senate to agree to end the debate on whether to proceed to consider the bill and begin that consideration. Fifty Senators voted to end the debate. Only 47 Senators voted to continue the filibuster. Still, the majority, with 50 votes to 47 votes did not prevail. Although we had a majority, we failed and the Senate did not make progress.

It happened again, in the summer of 2002, a bipartisan majority here in the Senate wanted to make progress on hate crimes legislation. The Senate got bogged down when the bill was filibustered. The effort to end the debate and vote up or down on the bill got 54 votes, 54 to 43. Fifty Senators voted to end the debate. Only 43 Senators voted to continue the filibuster. Did the majority prevail? No. The bill was not passed.

More recently, in 2004, 59 Senators supported a 6-month extension of a program providing unemployment benefits to individuals who had exhausted their State benefits. Those 59 Senators were not enough of a majority to overcome a point of order and provide the much-needed benefits for people suffering from extensive and longstanding unemployment. The vote was 59 to 40, but that was not a prevailing majority.

Around the same time in 2004 we tried to provide the Federal assistance needed to fund compliance with the Individuals with Disabilities Education Act. Although 56 Senates voted in support and only 41 in opposition, that was not enough to overcome a point of order. The vote was 56 to 41, but that was not a sufficient majority.

Just last month, too recently to have been forgotten, there was an effort to amend the emergency supplemental appropriations bill to include the bipartisan Agricultural Jobs bill that Senator Craig has championed. That amendment was filibustered and the Senate voted whether to end debate on the matter. The vote was 53 in favor of terminating further debate and proceeding to consider this much needed and long overdue measure. Were those 53 Senators, Republicans and Democrats, enough of a majority to have the Senate proceed to consider an up or down vote on the AgJobs bill to help our local industries? No, here, again, the Republican leadership prevailed and prevented consideration of the bipartisan measure with only 45 votes.

Every Senator knows, and others who have studied the Senate and its practices to protect minority rights, know that the Senate rules retained a provision that requires a two-thirds vote to end debate on a proposed change to the Senate rules. Thus, rule XXII provides that ending debate on ``a measure or motion to amend the Senate rules'' takes ``two-thirds of the Senators present and voting.'' If all 100 Senators vote, that means that 67 votes are required to end debate on a proposal to amend the Senate rules. In 1975, for example, the vote to end debate on the resolution I have spoken about to change the Senate rules was 73 to 21.

Every Senator knows that for the last 30 years, since we lowered the cloture requirement in 1975, it takes ``three-fifths of the Senators duly chosen and sworn,'' or 60 votes to end debate on other measures and matters brought before the Senate. Just recently there was a filibuster on President Bush's nomination to head the Environmental Protection Agency, Douglas Johnson. Sixty-one Senators voted to end that filibuster, to bring that debate to a close, and Mr. Johnson was confirmed. I voted for cloture and for Mr. Johnson. Despite Republican filibusters of Dr. Henry Foster to be the Surgeon General, Sam Brown to be an ambassador and others during the Clinton years, I considered the matter on its merits, as I always try to do, and voted to provide the supermajority needed for Senate action.

So when Republican talking points trumpet the sanctity of 51 votes, Senators know that the Republican majority insists upon 60-vote thresholds all the time, or rather all the time that it is in their short-term interests.

Finally, Mr. President, for purposes of the record, I need to set the record straight, again. I have done so periodically, including most recently on May 9, 2005, and toward the end of the last session of Congress on November 23, 2004.

Unlike the frog in the water who fails to notice the heat slowly rising until he finds himself boiling, Democrats have been warning for years that the Republican destruction of Senate rules and traditions was leading us to this situation. The administration and its facilitators in the Senate have left Democrats in a position where the only way we could effectively express our opposition to a judicial nominee was through the use of the filibuster.

We did not come to this crossroads overnight. No Democratic Senator wanted to filibuster, not a one of us came to those votes easily. We hope we are never forced by an aggressive Executive and compliance majority into another filibuster for a judicial nominee, again. The filibusters, like the confrontation that the Senate is being forced into over the last several days, are the direct result of a deliberate attack by the current administration and its supporters here in the Senate against the rules and traditions of the Senate. Breaking the rules to use the Republican majority to gut Senate rule XXII and prohibit filibusters that Republicans do not like is the culmination of their efforts. That is intended to clear the way for this President to appoint a more extreme and more divisive choice should a vacancy arise on the Supreme Court.

This is not how the Senate has worked or should work. It is the threat of a filibuster that should encourage the President to moderate his choices and work with Senators on both sides of the aisle. Instead, this President has politicized the process and Senate Republicans have systematically eliminated every other traditional protection for the minority. Now their target is the Senate filibuster, the only tool that was left for a significant Senate minority to be heard.

Under pressure from the White House, over the last 2 years, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition with respect to handling lifetime appointments to the Federal bench. With the Senate and the White House under control of the same political party we have witnessed one committee rule after another broken or misinterpreted away. The Framer's of the Constitution warned against the dangers of such factionalism, undermining the structural separation of powers. Republicans in the Senate have utterly failed to defend this institution's role as a check on the President in the area of nominations. It surely

weakens our constitutional design of checks and balances.

As I have detailed over the last several years, Senate Republicans have had one set of practices to delay and defeat a Democratic President's moderate and qualified judicial nominations and a different playbook to rubberstamp a Republican President's extreme choices to lifetime judicial positions. The list of broken rules and precedents is long--from the way that home State Senators were treated, to the way hearings were scheduled, to the way the committee questionnaire was unilaterally altered, to the way the Judiciary Committee's historic protection of the minority by committee rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that had been used throughout Senate history to help create and enforce cooperation and civility in the confirmation process.

We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computers reflecting a ``by any means necessary'' approach. It is as if those currently in power believe that that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient.

The Constitution mandates that the President seek the Senate's advice on lifetime appointments to the Federal bench. Up until 4 years ago, Presidents engaged in consultation with home State Senators about judicial nominations, both trial court and appellate nominations. This consultation made sense: Although the judgeships are Federal positions, home State officials were best able to ensure that the nominees would be respected. The structure laid out by the framers for involving the Senate contemplated local involvement in the appointments, and for almost 200 years, with relatively few exceptions, the system worked. This administration, by contrast, rejects our advice but demands our consent.

The sort of consultation and accommodation that went on in the Clinton years is an excellent example. The Clinton White House went to great lengths to work with Republican Senators and seek their advice on appointments to both circuit and district court vacancies. There were many times when the White House made nominations at the direct suggestion of Republican Senators, and there are judges sitting today on the Ninth Circuit and the Fourth Circuit, in the district courts in Arizona, Utah, Mississippi, and many other places because President Clinton listened to the advice of Senators in the opposite party. Some nominations, like that of William Traxler to the Fourth Circuit from South Carolina; Barbara Durham and Richard Tallman to the Ninth Circuit from Washington; Stanley Marcus to the Eleventh Circuit from Florida; Ted Stewart to the District Court in Utah; James Teilborg to the District Court in Arizona; Allen Pepper to the District Court in Mississippi; Barclay Surrick to the District Court in Pennsylvania, and many others were made on the recommendation of Republican Senators. Others, such as President Clinton's two nominations to the Supreme Court, were made with extensive input from Republican Senators. For evidence of this, just look at Orrin Hatch's book ``Square Peg,'' where he tells the story of suggesting to President Clinton that he nominate Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court and of warning him off of other nominees whose confirmations would be more controversial or politically divisive.

In contrast, since the beginning of its time in the White House, this Bush administration has sought to overturn traditions of bipartisan nominating commissions and to run roughshod over the advice of Democratic Senators. They changed the systems in Wisconsin, Washington, and Florida that had worked so well for so many years. Senators Graham and Nelson were compelled to write in protest of the White House counsel's flaunting of the time-honored procedures for choosing qualified candidates for the bench. They ignored the protests of Senators like Barbara Boxer and John Edwards who not only objected to the unsuitable nominee proposed by the White House, but who, in attempts to reach a true compromise, also suggested Republican alternatives. Those overtures were flatly rejected.

Indeed, the problems we face today in Michigan are a result of a lack of consultation with that State's Senators. The failure of the nomination of Claude Allen of Virginia to a Maryland seat on the Fourth Circuit shows how aggressive this White House has been. Now, the White House counsel's office will say it informs Democratic Senators' offices of nominations about to be made. Do not be fooled. Consultation involves a give and take, a back and forth, an actual conversation with the other party and an acknowledgement of the other's position. That does not happen.

The lack of consultation by this President and his nominations team resulted in a predictable outcome--a number of instances where home State Senators withheld their consent to nominations. The next action, however, was unpredictable and unprecedented. The former Republican chairman of the Judiciary Committee went ahead, ignored his own perfect record of honoring Republican home State Senators' objections to President Clinton's nominees and scheduled hearings nonetheless. In defense of those hearings we have heard how other chairmen, Senators Kennedy and Biden, modified the committee's policies to allow for more fairness in the consideration of a more diverse Federal bench. That is not what the former Republican chairman was doing, however. His was a case of double standards--one set of rules and practices for honoring Republican objections to President Clinton's nominees and another for overriding Democratic objections to President Bush's.

While it is true that various chairmen of the Judiciary Committee have used the blue-slip in different ways, some to maintain unfairness, and others to attempt to remedy it, it is also true that each of those chairmen was consistent in his application of his own policy--that is, until 2 years ago. When a hearing was held for Carolyn Kuhl, a nominee to the Ninth Circuit from California who lacked consent from both of her home State Senators, that was the first time that the former chairman had ever convened a hearing for a judicial nominee who did not have two positive blue slips returned to the committee. The first time, ever. It was unprecedented and directly contrary to the former Republican chairman's practices during the Clinton years.

Consider the two different blue slips utilized by the former Republican Chairman: one used while President Clinton was in office, and one used after George W. Bush became the President. These pieces of blue paper are what then-Chairman Hatch used to solicit the opinions of home-state Senators about the President's nominees. When President Clinton was in office, the blue slip sent to Senators, asked their consent. On the face of the form was written the following: ``Please return this form as soon as possible to the nominations office. No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators.''

Now consider the blue slip when President Bush began his first term. That form sent out to Senators was unilaterally changed. The new Republican blue slip said simply: ``Please complete the attached blue slip form and return it as soon as possible to the committee office.'' That change in the blue slip form marked the about-face in the direction of the policy and practice used by the former Republican chairman once the person doing the nominating was a Republican.

I understand why Republican Senators want to have amnesia when it comes to what happened to so many of President Clinton's nominees. The current Republican chairman calculates that 70 of President Clinton's judicial nominees were not acted upon. One of the many techniques used by the former Republican chairman was to enforce strictly his blue slip policy so that no nominee to any court received a hearing unless both home State Senators agreed to it. Any objection acted as an absolute bar to the consideration of any nominee to any court. No time limit was set for returning the blue slip. No reason had to be articulated. In fact, the former Republican chairman cloaked the matter in secrecy

from the public. I was the first Judiciary chairman to make blue slips public. During the Clinton years home State Senators' blue slips were allowed to function as anonymous holds on otherwise qualified nominees. In the 106th Congress, in 1999-2000, more than half of President Clinton's circuit court nominees were denied confirmation through such secret partisan obstruction, with only 15 of 34 confirmed in the end. Outstanding and qualified nominees were never allowed a hearing, an up or down vote in committee vote or on the Senate floor. These nominees included the current dean of the Harvard Law School, a former attorney general from Iowa, a former law clerk to Chief Justice Rehnquist and many others--women, men, Hispanics, African Americans and other minorities, an extensive collection of qualified nominees.

Another longstanding tradition that was broken in the last two years was a consistent and reasonable pace of hearings. Perhaps it is not entirely accurate to say the tradition had been respected during the Clinton administration, since during Republican control months could go by without a single hearing being scheduled. But as soon as the occupant of the White House changed and a Republican majority controlled the committee that all changed. In January, 2003, one hearing was held for three controversial circuit court nominees, scheduled to take place in the course of a very busy day in the Senate. There was no precedent for this in the years that Republicans served in the majority and a Democrat was in the White House. In 6 years during the Clinton administration, never once were three circuit court nominees, let alone three very controversial ones, before this body in a single hearing. But it was the very first hearing that was scheduled by the former Republican chairman when he resumed his chairmanship. That first year of the 107th Congress, with a Republican in the White House, and a Republican chairman of the Judiciary Committee, the Republican majority went from idling--the restrained pace it had said was required for Clinton nominees--to overdrive for the most controversial of President Bush's nominees.

When there was a Democratic President in the White House, circuit nominees were delayed and deferred, and vacancies on the courts of appeals more than doubled under Republican leadership, from 16 in January 1995, to 33 when the Democratic majority took over midway through 2001.

Under Democratic leadership we held hearings on 20 circuit court nominees in 17 months. Indeed, while Republicans averaged seven confirmations to the circuit courts every 12 months for President Clinton, the Senate under Democratic leadership confirmed 17 circuit judges in its 17 months in the majority--and we did so with a White House that was historically uncooperative.

Under Republican control, the Judiciary Committee played fast and loose with other practices. One of those was the committee practice of placing nominees on markup agendas only if they had answered all of their written questions within a reasonable amount of time before the meeting. Last Congress that changed, and nominees were listed when the former chairman wanted them listed, whether they were ready or not. Of course, any nominee can be held over one time by any member for any reason, according to longstanding committee rules. By listing the nominees before they were ready, the former chairman ``burned the hold'' in advance, circumvented the committee rule, and forced the committee to consider them before they were ready. Another element of unfairness was thereby introduced into the process.

Yet another example of the kind of petty changes that occurred during the last Congress were the bipartisan changes to the committee questionnaire that were unilaterally rescinded by the former Republican chairman. In April of 2003 it became clear that the President's nominees had stopped filling out the revised Judiciary Committee questionnaire we had approved a year and a half earlier with the agreement of the administration and Senate Republicans. It was a shame, because my staff and Senator Hatch's staff worked hard to revise the old questionnaire, which had not been changed in many years, and was in need of updating for a number of reasons. There were obsolete references, vague and redundant requests for information, and instructions sorely in need of clarification. There were also important pieces of information not asked for in the old questionnaire, including congressional testimony a nominee might have given, writings a nominee might have published on the Internet, and a nominee's briefs or other filings in the Supreme Court of the United States. We worked hard to include the concerns of all members of the committee, and we included the suggestions from many people who had been involved in the judicial nominations process over a number of years.

Indeed, after the work was finished, Senator Hatch himself spoke positively about the revisions we had made. At a Committee business meeting he praised my staff for, ``working with us in updating the questionnaires.'' He noted: ``Two weeks ago, we resolved all remaining differences in a bipartisan manner. We got an updated questionnaire that I think is satisfactory to everybody on the committee, and the White House as well.'' I accepted his words that day.

As soon as he resumed his chairmanship, he rejected the improvements we made in a bipartisan way, however. The former Republican chairman notified the Department of Justice that he would no longer be using the updated questionnaire he praised not so long before but, instead, decided that the old questionnaire be filled out. He did not notify any member of the minority party on the committee. Unlike the bipartisan consultation my office engaged in during the fall of 2001, and the bipartisan agreement we reached, the former Republican chairman acted by unilateral fiat without consultation.

The protection of the rights of the minority in the committee was eliminated with the negation of the committee's rule IV, a rule parallel to the Senate filibuster rule. In violation of the rules that have governed that committee's proceedings since 1979, the former Republican chairman chose in 2003 to ignore our longstanding committee rules and he short-circuited committee consideration of the circuit court nominations of John Roberts and Deborah Cook.

Since 1979 the Judiciary Committee has had this committee rule to bring debate on a matter to a close while protecting the rights of the minority. It may have been my first meeting as a Senator on the Judiciary Committee in 1979 that Chairman Kennedy, Senator Thurmond, Senator Hatch, Senator Cochran and others discussed adding this rule to those of the Judiciary Committee. Senator Thurmond, Senator Hatch and the Republican minority at that time took a position against adding the rule and argued in favor of any individual Senator having a right to unlimited debate--so that even one Senator could filibuster a matter. Senator Hatch said that he would be ``personally upset'' if unlimited debate were not allowed. He explained:

There are not a lot of rights that each individual Senator

has, but at least two of them are that he can present any

amendments which he wants and receive a vote on it and number

two, he can talk as long as he wants to as long as he can

stand, as long as he feels strongly about an issue.

It was Senator Bob Dole who drew upon his Finance Committee experience to suggest in 1979 that the committee rule be that ``at least you could require the vote of one minority member to terminate debate.'' Senator Cochran likewise supported having a ``requirement that there be an extraordinary majority to shut off debate in our committee.''

The Judiciary Committee proceeded to refine its consideration of what became rule IV, which was adopted the following week and had been maintained ever since. It struck the balance that Republicans had suggested of at least having one member of the minority before allowing the chairman to cut off debate. That protection for the minority had been maintained by the Judiciary Committee for 24 years under five different chairmen--Chairman Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch previously and during my tenure as chairman.

Rule IV of the Judiciary Committee rules provided the minority with a

right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing to terminate the debate. That rule and practice had until two years ago always been observed by the committee, even as we dealt with the most contentious social issues and nominations that come before the Senate. Until that time, Democratic and Republican chairmen had always acted to protect the rights of the Senate minority.

Although it was rarely utilized, rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress. That is the important function of the rule. Just as we have been arguing lately about the Senate's cloture rule, the committee rule protected minority rights, and enforced a certain level of cooperation between the majority and minority in order to get anything accomplished. That was lost last Congress as the level of partisanship on the Judiciary Committee and within the Senate sunk to a new low when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives.

That this was a premeditated act was apparent from the debate in the committee. The former Republican chairman indicated that he had checked with the Parliamentarians in advance, and he apparently concluded that since he had the raw power to ignore our committee rule so long as all Republicans on the committee stuck with him, he would do so. It was a precursor of what is happening now in the Senate.

I understand that the Parliamentarians advised the former chairman that there is no enforcement mechanism for a violation of committee rules and that the Parliamentarians view Senate committees as autonomous. I do not believe that they advised him that he should violate our committee rules or that they interpreted our committee rules. I cannot remember a time when Senator Kennedy or Senator Thurmond or Senator Biden were chairing the committee when any of them would have even considered violating their responsibility to the Senate and to the committee and to our rules or that we needed an enforcement mechanism or penalty for violation of a fundamental committee rule.

In fact, the only occasion I recall that the former Republican chairman was previously faced with implementing committee rule IV, he himself did so. In 1997, Democrats on the committee were seeking a Senate floor vote on President Clinton's nomination of Bill Lann Lee to be the assistant attorney general for civil rights at the Department of Justice. Republicans were intent on killing the nomination in committee. The committee rule came into play when in response to an alternative proposal by the Republican Chairman, I outlined the tradition of our Committee and said:

This committee has rules, which we have followed

assiduously in the past and I do not think we should change

them now. The rules also say that 10 Senators, provided one

of those 10 is from the minority, can vote to cut off debate.

We are also required to have a quorum for a vote.

I intend to insist that the rules be followed. A vote that

is done contrary to the rules is not a valid one.

Immediately after my comment, the same former Republican Chairman abandoned his earlier plan and said:

I think that is a fair statement. Rule IV of the Judiciary

Committee rules effectively establishes a committee

filibuster right, as the distinguished Senator said.

With respect to that nomination in 1997, he acknowledged:

Absent the consent of a minority member of the Committee, a

matter may not be brought to a vote. However, Rule IV also

permits the Chairman of the Committee to entertain a non-

debatable motion to bring any matter to a vote. The rule also

provides as follows: `The Chairman shall entertain a non-

debatable motion to bring a matter before the Committee to a

vote. If there is objection to bring the matter to a vote

without further debate, a rollcall vote of the Committee

shall be taken, and debate shall be terminated if the motion

to bring the matter to a vote without further debate passes

with ten votes in the affirmative, one of which must be cast

by the Minority.'

Thereafter, he made the nondebatable motion to proceed to a vote and under the rules of the committee there was objection and a rollcall vote was taken on whether to end the debate. In that case, the former Republican chairman followed the rules of the committee.

At the beginning of the last Congress, we reaffirmed our tradition and clarified that at the time the Senate was divided 50-50 and the committee was divided 50-50, the rules would be interpreted so that the minority was the party other than that of the chairman.

But when the nominations of John Roberts, Deborah Cook and Jeff Sutton were being considered simultaneously, Democrats sought to continue debate on some of them and focus first on Sutton. We were overridden and the bipartisan tradition and respect for the rights of the minority ended when the former Republican Chairman decided to override our rights and the rule rather than follow it. He did so expressly and intentionally, declaring: ``[Y]ou have no right to continue a filibuster in this committee.'' He decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and it was, in fact, terminated prematurely. I had yet to speak to any of the circuit nominees and other Democratic Senators had more to say. He completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the committee.

I know the frustrations that accompany chairing the Judiciary Committee. I know the record we achieved during my 17 months of chairing that committee, when we proceeded with hearings on more than 100 of President Bush's judicial nominees and scores of his executive nominees, including extremely controversial nominations, when we proceeded fairly and in accordance with our rules and committee traditions and practices to achieve almost twice as many confirmation for President Bush as the Republicans had allowed for President Clinton, and know how that record was mischaracterized by partisans. I know that sometimes a chairman must make difficult decisions about what to include on an agenda and what not to include, what hearings to hold and when. In my time as chairman I tried to maintain the integrity of the committee process and to be bipartisan. I noticed hearings at the request of Republican Senators and allowed Republican Senators to chair hearings. I made sure the committee moved forward fairly on the President's nominees in spite of the administration's unwillingness to work with us to fill judicial vacancies with consensus nominees and thereby fill those vacancies more quickly. But I cannot remember a time when Chairman Kennedy, Chairman Thurmond, Chairman Biden, or I, ever overrode by fiat the right of the minority to debate a matter in accordance without longstanding committee rules and practices.

By bending, breaking and changing so many committee rules, Republicans crossed a threshold of partisan overreaching that should never have been crossed. As they passed each awful milestone, I urged the Republican leadership to reconsider, to turn back and to reinstate comity.

That is the backdrop for this debate now before the Senate. An overly aggressive executive, added by a majority of the same political party in the Senate, acted last Congress to eliminate any meaningful role of the minority at the committee level and to eliminate our traditions, rules and practices that had protected the minority. This abuse of power and drive toward one-party rule by the Republican leadership has been building for years and is culminating this week through their unprecedented attack on the Senate's rules, role and history. For years now, Democratic Senators have been warning that the deterioration of Senate rules and practices that have protected minority rights was leaving us, the Senate, and the American people in a dire situation.

This systematic and corrosive erosion of checks and balances has brought the Senate to this precipice. The filibuster in the Senate is the last remaining check on the abuses of one-party rule and the undermining of the fairness and independence of the federal judiciary. If the Senate is to serve its constitutional role as a check on

the executive, its protection must be preserved. That is the decision the Senate will be facing tomorrow.

[From the Salt Lake Tribune]

Hatch is Wrong About History of Judicial Appointments

(By John J. Flynn)

The Constitution provides the president ``shall nominate,

and by and with the Advice and Consent of the Senate,''

appoint judges and all other officers of the United States.

Throughout most of the Constitutional Convention, the power

to appoint ambassadors, judges and other officers of the

United States was vested solely in the Senate. It was decided

late in the convention that the Senate should share the

appointment power with the president. Clearly, the framers

expected the Senate would have an equal say in appointments.

Several nominations for positions in the executive branch

have been rejected over the past two centuries. Even more

nominations for life-time appointments to the judiciary have

been rejected because such nominations are for life and they

are nominations to an independent branch of government.

For many years rejections were often carried out by the

informal process of senators withholding ``blue slips'' for

nominees from their home states. When a senator did not

return a blue slip approving the nominee, the nomination was

killed without a vote by the full Senate. It was a method for

insuring the president sought the ``advice'' of the Senate

and senators before nominating a person for the judiciary.

The result was that only qualified moderates were usually

appointed to the bench.

Utah's Sen. Orrin Hatch ended the ``blue slip'' practice.

Sen. Hatch also began the practice of ``filibustering by

committee chairperson'' nominees proposed by President

Clinton. He simply refused to hold hearings on nominations

even where senators from the nominee's home state approved of

the nomination.

More than 60 Clinton judicial nominees were not even

accorded the courtesy of a hearing during the Hatch

chairmanship of the Senate Judiciary Committee. They were

never given the chance for an ``up or down vote'' by the full

Senate. For Sen. Hatch to now object to the use of a

filibuster to halt nominations is less than disingenuous.

Contrary to Sen. Hatch's representations in his Tribune op-

ed piece last Sunday, Republicans led a filibuster of the

nomination of Justice Abe Fortas to the position of chief

justice in 1968. I watched the filibuster. When a cloture

vote failed to muster the necessary super majority to end the

debate after four days of the filibuster, Justice Fortas

asked to have his nomination withdrawn.

The modem divisiveness in the Senate over judicial

nominations is directly traceable to the Senate's partisan

treatment of judicial nominations beginning with Justice

Fortas. The level of divisiveness has been increased by

President Bush. He threw down a partisan gauntlet by

renominating several controversial candidates not confirmed

by the prior Senate.

The main qualifications of these candidates appears to be

their appeal to the religious right and their rigid

ideological views calling into question their capacity to

judge objectively contentious issues coming before the

courts.

The Bush administration apparently believes that the Senate

should simply rubber-stamp nominees it selects without Senate

advice, much less the consent of a sizeable majority of the

Senate. Slogans like seeking the appointment of judges who

will not ``make law'' are trumpeted while President Bush

nominates persons who will ``make law''--law of the sort

advocated by his administration and its closed-minded right-

wing supporters.

Because of the nature of the job of judges, the framers of

the Constitution vested the Senate with a co-equal power over

the nomination and confirmation of persons for lifetime

appointments to the judiciary. The Senate's role is not a

subservient one of rubber-stamping anyone the president

nominates unless it is found that they are an ax murderer or

child molester.

This was made clear in the Federalist Papers, numbers 76-

78. Over the past two centuries, the Senate developed a

number of checks on both the president and members of the

Senate to prevent the president and a majority of the Senate

from running roughshod over those with substantial objections

to nominations made by the president.

The result, until the first Bush administration and Sen.

Hatch's chairmanship of the Judiciary Committee, has been

negotiation and compromise over judicial nominees and the

appointment of qualified moderates to the bench for the most

part.

The present dispute over whether to eliminate the

filibuster as a device to block nominees that a sizeable

block of senators finds objectionable presents a further and

dangerous erosion of the Senate's advice-and-consent

function.

The Republicans hold a 55-to-45 majority of the seats in

the Senate. The Republican majority represents approximately

47 percent of the United States population, while the 45-

member Democrat minority represent 53 percent of the

population. Senators representing less than a majority of the

population are advocating the complete ceding of the advice-

and-consent function to any president with a numerical

majority of the membership of the Senate from his or her own

political party.

The end result of the political campaign to further weaken,

if not eliminate, the advice and-consent function of the

Senate, will be to establish powers similar to those of the

English monarch in 1789. The founders expressly sought to

avoid this result by requiring the independent advice and

consent of senators in the nomination and confirmation of

important executive branch positions and lifetime

appointments to the bench.

For Republicans to repudiate that role of the Senate,

especially after their sorry record in dealing with the

judicial nominees of President Clinton, is not only the

height of hypocrisy, but is a dangerous precedent they will

live to regret.

This is not the time for political opportunism,

presidential arrogance or misleading oped pieces by Sen.

Hatch. It is a time for members of the Senate to begin to act

responsibly when carrying out their advice-and-consent

function rather than further erode an important institutional

check upon executive branch power and a majority party in the

Senate that does not represent a majority of the American

people.

Mr. President, I thank the Senator from Iowa for his courtesy. I apologize to the Senator from Colorado. I was distracted when he was giving the order to put us out. I should have realized, after 31 years here, when we are on autopilot. And, of course, the Senator was following precisely the agreement as usually somebody does in wrapup that has been worked out between the Democratic leader and the Republican leader and was totally within his rights. I apologize for interrupting.

Mr. President, the distinguished Senator has always been protective of the rights of Members of both sides.

Mr. President, we have other Senators who wish to speak.

There has been a lot that has gone on here tonight. I will speak further on this tomorrow. I thought on this occasion it would not be inappropriate to quote again from ``Profiles in Courage.''

At the end of that book, President Kennedy included a eulogy. Interestingly enough, it was a eulogy in 1866 upon the death of Senator Solomon Foot, a predecessor of mine from Vermont. The eulogy for Senator Foot of Vermont was delivered by Senator William Pitt Fessenden of Maine. Senator Fessenden, like Senator Foot, was a Republican--in fact, all Senators from Vermont, every single Senator from Vermont, with the exception of one, has been a Republican. But Senator Fessenden would soon thereafter vote against his party to acquit President Andrew Johnson of charges of impeachment.

Senator Fessenden was the first of seven courageous Republican Senators who voted his conscience before his country rather than party. Despite the pressures and whatever the consequences, he exercised his judgment as a Senator, consistent with his oath to do impartial justice.

Let me just read what he said after the death of Senator Foot of Vermont:

When, Mr. President, a man becomes a member of this body,

he cannot even dream of the ordeal to which he cannot fail to

be exposed;

of how much courage he must possess to resist the

temptations which daily beset him;

of that sensitive shrinking from undeserved censure which

he must learn to control;

of the ever-recurring contest between a natural desire for

public appropriation and a sense of public duty;

of the load of injustice he must be content to bear, even

from those who should be his friends;

the imputations of his motives;

the sneers and sarcasms of inmorance malice;

all the manifold injuries which partisan or private

malignity, disappointed of its objects, may shower upon his

unprotected head.

All this, Mr. President, if he retained his integrity, he

must learn to bear unmoved, and walk steadily onward in the

path of duty, sustained only by the reflection that time may

do him justice, or if not, that after all his individual

hopes and aspirations, and even his name among men, should be

of little account to him when weighed in the balance against

the welfare of a people of whose destiny he is a constituted

guardian and defender.

A number of our Senate colleagues today from both parties stood up to keep the Senate from making a terrible, an irreparable mistake-- terrible and irreparable because, for the first time in over 200 years, the Senate would no longer have a check and balance. For the first time in over 200 years, the Senate would no longer be able to protect the rights of the minorities.

I applaud them for this. As I said, I will speak more tomorrow. I thank my distinguished colleague and dear friend from Iowa for letting me go ahead.

I yield the floor.

Today, I am partnering with Senator Cornyn in another of our bipartisan efforts to improve the lives of Americans through effective and efficient government. The bill we are introducing, the ``Protecting American Goods and Services Act of 2005,'' will strengthen our ability to combat the escalating problem of counterfeiting worldwide. In order to effectively fight intellectual property theft, we need stiff penalties for counterfeiters and those who are caught with counterfeit goods with the intent to traffic their false wares. Ours is a short bill--indeed, it is only four pages long--but it will have global implications in the fight against piracy.

Counterfeiting is a growing problem that costs our economy hundreds of billions of dollars every year and has been linked to organized crime, including terrorist organizations. According to the International Anti-Counterfeiting Coalition, counterfeit parts have been discovered in helicopters sold to NATO, in jet engines, bridge joints, brake pads, and fasteners in equipment designed to prevent nuclear reactor meltdowns. The World Health Organization estimates that the market for counterfeit drugs is about $32 billion each year.

Several years ago, Senator Hatch joined me in sponsoring the ``Anti- counterfeiting Consumer Protection Act of 1996,'' which addressed counterfeiting by amending several sections of our criminal and tariff codes. That law made important changes, particularly by expanding RICO, the federal anti-racketeering law, to cover crimes involving counterfeiting and copyright and trademark infringement. Then, as now, trafficking in counterfeit goods hurts purchasers, state and federal governments, and economies at every level.

Perhaps most disturbingly, the U.S. Customs Service reports that terrorists have used transnational counterfeiting operations to fund their activities: The sale of counterfeit and pirated music, movies, software, T-shirts, clothing, and fake drugs ``accounts for much of the money the international terrorist network depends on to feed its operations.''

Last year, as in years past, I worked with Senator Allen on an amendment to the Foreign Operations bill that provides the State Department with vital resources to combat piracy of U.S. goods abroad. The bill we ultimately passed included $3 million for this important purpose. Yet more work both at home and abroad remains. When you consider that the economic impact of tangible piracy in counterfeit goods is estimated to be roughly $350 billion a year and to constitute between 5 percent and 7 percent of worldwide trade, a few million dollars is a worthwhile investment.

We have certainly seen how this form of theft touches the lives of hard-working Vermonters. Burton Snowboards is a small company, whose innovation has made it an industry leader in snowboarding equipment and apparel. Unfortunately, knock-off products carrying Burton's name have been found across the globe. Vanessa Price, a representative of Burton, testified about counterfeiting at the Judiciary Committee's March 23, 2004, hearing on this topic. In addition to learning about the economic costs of counterfeiting, I asked her after the hearing about the risks posed to consumers by these goods. Her answer was chilling: ``In the weeks since my Senate testimony, I discovered a shipment of counterfeit Burton boots for sale through a discount sports outfit . . . After examining the poor quality of the counterfeit boots, we determined that anyone using the boots for snowboarding risks injury due to a lack of reinforcement and support in the product's construction.''

Customers and businesses lose out to counterfeiters in other ways, too. SB Electronics in Barre, Vt. has seen its capacitors reverse engineered and its customers lost to inferior copycat models. Vermont Tubbs, a furniture manufacturer in Rutland, has seen its designs copied, produced offshore with inferior craftsmanship and materials, and then reimported, so that the company is competing against cheaper versions of its own products. And Hubbardton Forge in Castleton, Vt. has seen its beautiful and original lamps counterfeited and then sold within the United States at prices--and quality--far below their own. This is wrong. It is unfair to consumers who deserve the high quality goods they think they are paying for, and it is unfair to innovators who play by the rules and deserve to profit from their labor.

The bill that I am introducing today with Senator Cornyn will help to combat this growing scourge.

The bill will criminalize the possession of counterfeit goods with the intent to sell or traffic in those goods, and it expands the definition of ``traffic'' to include any distribution of counterfeits with the expectation of gaining something of value--criminals should not be able to skirt the law simply because they barter illegal goods and services in exchange for their illicit wares. Finally, the bill will criminalize the importation and exportation of counterfeit goods, as well as of bootleg copies of copyrighted works into and out of the United States.

By tying off these loopholes and improving U.S. laws on counterfeiting, we will be sending a powerful message to the criminals who belong in jail, and to our innovators.