Statement of U.S. Senator Russ Feingold on the Nomination of Priscilla Owen May 24, 2005 Mr. FEINGOLD. Mr. President, I voted no on cloture and I will vote no on the nomination of Priscilla Owen to be a judge on the U.S. Court of Appeals for the Fifth Circuit. I'd like to take a few minutes today to explain my votes. I also want to make a few comments on the events that led up to these votes. I strongly opposed the threat of the nuclear option. I believe this was an illegitimate tactic, a partisan abuse of power that was a threat to the Senate as an institution and to the country. Attempting to blackmail the minority into giving up the rights that have been part of the Senate's traditions and practices for centuries was a new low for a majority that has repeatedly been willing to put party over principle. Unfortunately, the blackmail was partially successful. While I applaud the efforts of the Senators who worked hard to broker an agreement, the end result is that three nominees who don't deserve lifetime appointments to the judiciary will now be confirmed. The agreement reached by our colleagues states that filibusters should be reserved for extraordinary circumstances. For me, that has always been the test. And Democrats have stuck by that standard in blocking just 10 out of the 218 nominations of President Bush that have been brought to the floor. A number of very conservative and very controversial nominees have been confirmed by the Senate. Jeffrey Sutton, now a judge on the 6th Circuit, was confirmed by a vote of 52-41. No filibuster was used there. Jay Bybee, the author of the infamous torture memo, now sits on the 9th Circuit. He was not filibustered. Michael McConnell, a conservative and strongly anti-choice law professor often mentioned as a possible Supreme Court nominee, was confirmed for the 10th Circuit. He was not filibustered. Dennis Shedd was confirmed to the 4th Circuit by a vote of 55-44. He could have been filibustered, but he wasn't. The idea that the filibuster has been used over the past several years as a tool to block all the nominees that the minority oppose is ludicrous. There were, and there continue to be, very good reasons to block a certain small number of nominees. Nothing that occurred last night changes that one iota. I will continue to vote against cloture only in extraordinary circumstances. I did that when we voted on cloture on the Owen nomination in 2003, and each subsequent time. And I have done it again today. For the majority to have created this constitutional crisis over what came down to five nominees was wrong. It was an abuse of power. The American people did not support it and they will not support it in the future. With respect to the Owen nomination, there are a number of factors that require us to give this nomination very careful consideration. First, we should consider that judges on our Courts of Appeals have an enormous influence on the law. Whereas decisions of the District Courts are always subject to appellate review, the decisions of the Courts of Appeals are subject only to discretionary review by the Supreme Court. The decisions of the Courts of Appeals are in almost all cases final, as the Supreme Court agrees to hear only a very small percentage of the cases on which its views are sought. That means that the scrutiny that we give to Circuit Court nominees must be greater than that we give to District Court nominees. And, of course, the scrutiny we give to Supreme Court nominees will be even greater. Another important consideration is the ideological balance of the Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and Mississippi. The Fifth Circuit contains the highest percentage of minority residents -- over 40 percent -- of any circuit other than the D.C. Circuit. It is a court that during the civil rights era issued some of the most significant decisions supporting the rights of African American citizens to participate as full members of our society. As someone who believes strongly in freedom, liberty, and equal justice under law, and the important role of the federal courts to defend these fundamental American principles, I am especially concerned about the make-up of our circuit courts and their approaches to civil rights issues. Even after 8 years of a Democratic President, the Fifth Circuit had twice as many Republican appointees as Democratic appointees. That is because during the last 6 years of the Clinton administration, the Judiciary Committee did not report out a single judge to the Fifth Circuit. As we all know, that was not for a lack of nominees to consider. President Clinton nominated three well-qualified lawyers to the Fifth Circuit -- Jorge Rangel, Enrique Moreno, and Alston Johnson. None of these nominees even received a hearing before this Committee. When then-Chairman Leahy held a hearing in July 2001 on the nomination of Judge Edith Brown Clement for a seat on the Fifth Circuit, only a few months after she was nominated, and less than 2 months after Democrats took control of the Senate, it was the first hearing in the Judiciary Committee for a Fifth Circuit nominee since September 1994. Judge Clement, of course, was confirmed later in the year. So, there's a history here, and a special burden on President Bush to consult with our side on nominees for this Circuit. Otherwise, we would simply be rewarding the obstructionism that the President's party engaged in over the last 6 years of the Clinton Administration by allowing him to fill with his choices seats that his party held open for years, even when qualified nominees were advanced by President Clinton. And I say once again, my colleagues on the Republican side bear some responsibility for this situation. There was a time when I thought they might help resolve it by urging the Administration to address the Senate's failure to take up Clinton nominees. This entire controversy over judges that has come to a head in the past several weeks could have been avoided if our Republican colleagues had convinced the President to renominate even a few of those Clinton nominees who never received a hearing or vote in Committee, including Clinton nominees to the Fifth Circuit. That, of course, did not happen. There was no effort to reach a real compromise that would take into account the concerns of all parties. A compromise at the point of a gun is not a compromise. That, I'm afraid, is what we had last night. With that background, let me outline the concerns that have caused me to reach the conclusion that Justice Owen should not be confirmed. Justice Owen has had a successful legal career. She graduated at the top of her class from Baylor University Law School, worked as an associate and partner at the law firm of Andrews and Kurth in Houston, and has served on the Texas Supreme Court since January 1995. These are great accomplishments. But Justice Owen's record as a member of the Texas Supreme Court leads me to conclude that she is not the right person for a position on the Fifth Circuit. I am not convinced that Justice Owen will put aside her personal views and ensure that all litigants before her on the Fifth Circuit received a fair hearing. Her decisions in cases involving consumers' rights, worker's rights, and reproductive rights suggest that she would be unable to maintain an open mind and provide all litigants a fair and impartial hearing. Justice Owen has a disturbing record of consistently siding against consumers or victims of personal injury and in favor of business and insurance companies. When the Texas Supreme Court, which is a very conservative and pro-business court, rules in favor of consumers or victims of personal injury, Justice Owen frequently dissents. According to Texas Watch, during the period 1999-2002, Justice Owen dissented almost 40 percent of the time in cases in which a consumer prevailed. But in cases where the consumer position did not succeed, Justice Owen never dissented. At her first hearing, Senator Kennedy and then-Senator Edwards asked Justice Owen to cite cases in which she dissented from the majority and sided in favor of consumers. Justice Owen could cite only one case, Saenz v. Fidelity Guaranty Ins. Underwriters, 925 S.W. 2d 607 (Tex. 1996). But Justice Owen's opinion in this case hardly took a pro-consumer position since it still would have deprived the plaintiff of the entire jury verdict. She did not join Justice Spector's dissent, which would have upheld the jury verdict in favor of Ms. Saenz. Also during that first hearing, Senators Feinstein and Durbin questioned Justice Owen about Provident American Ins. Co. v. Castaneda, 988 S.W. 2d 189 (Tex. 1998). In that case, the plaintiff sought damages against a health insurer for denying health care benefits, after the insurer had already provided pre-operative approval for the surgery. Justice Owen, writing for the majority, reversed the jury's verdict in favor of the plaintiff and rejected the plaintiff's claim that the health insurer violated the Texas Insurance Code and the Deceptive Trade Practices Act. At the hearing, Justice Owen defended her opinion by saying that she believed that the plaintiff was seeking extra-contractual damages and that the plaintiff had already received full coverage under the policy and statutory penalties. But, in the words of her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice Owen's opinion "may very well eviscerate the bad-faith tort as a viable case of action in Texas." Id. at 212, Gonzalez, J., joined by Spector, J., dissenting. The cause of action for bad faith is designed to deter insurers from engaging in bad faith practices like denying coverage in the first place. In addition, with respect to several decisions involving interpretation and application of the Texas parental notification law, I am deeply troubled by Justice Owen's apparently ignoring the plain meaning of the statute and injecting her personal beliefs concerning abortion that have no basis in Texas or U.S. Supreme Court law. In 2000, the Texas legislature enacted a parental notification law that allows a minor to obtain an abortion without notification of her parents if she demonstrates to a court that she has complied with one of three "judicial bypass" provisions: (1) that she is "mature and sufficiently well informed" to make the decision without notification to either of her parents, (2) that notification would not be in her best interest, or (3) that notification may lead to her physical, sexual, or emotional abuse. During Justice Owen's first confirmation hearing, Senator Cantwell questioned Justice Owen about her positions in cases interpreting this law, focusing on Justice Owen's insistence in In re Jane Doe, 19 S.W. 3d 249, 264-65 (Tex. 2000) (Owen , J., concurring) ("Doe I"), that teenagers be required to consider "philosophic, social, moral, and religious" arguments before seeking an abortion. In her opinion, Justice Owen cited the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to support her contention that states can require minors to consider religious views in their decision to have an abortion. But, as Senator Cantwell noted, Casey in no way authorizes states to require minors to consider religious arguments in their decision on whether to have an abortion. Upon this further questioning, Justice Owen then said that she was referring to another Supreme Court case, H.L. v. Matheson, 450 U.S. 398 (1981), even though her opinion only cited Casey for this proposition. And even Matheson does not say that minors can be required by state law to consider religious arguments. Justice Owen was going beyond not only a plain reading of the Texas statute, but Supreme Court case law, and inappropriately injecting her own personal views to make it more difficult for a minor to comply with the statute and obtain an abortion. I was also not satisfied with Justice Owen's responses to my questions about bonuses to Texas Supreme Court law clerks. I asked her at the hearing whether she saw any ethical concerns with allowing law clerks to receive bonuses from their prospective employers during their clerkships. I also explored the topic further with her in follow-up written questions. Justice Owen stated repeatedly in her written responses to my questions that she is not aware of law clerks actually receiving bonuses while they were employed by the Court. She reaffirmed that testimony in her second hearing. This seems implausible given the great amount of publicity given to an investigation pursued by the Travis County Attorney of exactly that practice and the well publicized modifications to the Texas Supreme Court's rules that resulted from that investigation and the accompanying controversy. Even more disturbing, Justice Owen took the position, both at the first hearing and in her responses to written questions, that because the Texas Supreme Court Code of Conduct requires law clerks to recuse themselves from matters involving their prospective employers, there really is no ethical concern raised by law clerks accepting bonuses while employed with the Court. I disagree. It is not sufficient for law clerks to recuse themselves from matters involving their prospective employers if they have received thousands of dollars in bonuses while they are working for the court. The appearance of impropriety and unfairness that such a situation creates is untenable. As I understand it, the federal courts have long prohibited federal law clerks both from receiving bonuses during their clerkships and from working on cases involving their prospective employers. I'm pleased that the Texas Supreme Court finally recognized this ethical problem and changed its code of conduct for clerks. Justice Owen , in contrast, seems intent on defending the prior, indefensible, practice. Finally, I want to note the unusual nature of this particular nomination. Unlike so many nominees during the Clinton years, Justice Owen was considered in the Judiciary Committee under Senator Leahy's leadership in 2002. She had a hearing, and she had a vote. Her nomination was rejected. This was the first time in history that a Circuit nominee who was formally rejected by the Committee, or the full Senate for that matter, has been renominated by the same President to the same position and sent to the floor. Defeated judicial nominations should not be reconsidered like legislation that is not enacted. After all, legislation can be revisited after it is enacted. If Congress makes a mistake when it passes a law, it can fix that mistake in subsequent legislation. Judicial appointments are for life. Confirmations cannot be taken back or fixed. A vote to confirm a nominee is final. A vote to reject that nominee should be final as well. For the President to renominate a defeated nominee and the Senate to reconsider her simply because of the change of a few seats in an election cheapens the nomination process and the Senate's constitutional role in that process. Justice Owen is bright and accomplished. But, based on her judicial record, Justice Owen is not the right choice for this position.

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