[Pages S7391-S7396]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF JULIA SMITH GIBBONS, OF TENNESSEE, TO BE U.S. CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT--Resumed

cloture motion

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now go into executive session and proceed to the cloture
vote on Executive Calendar No. 810.
Under the previous order, the Chair lays before the Senate the
pending cloture motion, which the clerk will report.
The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on Executive
Calendar No. 810, the nomination of Julia Smith Gibbons, of
Tennessee, to be U.S. Circuit Judge for the Sixth Circuit.
Harry Reid, Tom Daschle, Charles Schumer, Mitch
McConnell, Fred Thompson, Bill Frist, Phil Gramm, Jon
Kyl, Charles Grassley, Wayne Allard, Trent Lott, Don
Nickles, Larry E. Craig, Craig Thomas, Mike Capo, Jeff
Sessions, Pat Roberts, Jim Bunning, John Ensign, Orrin
G. Hatch.

The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call under the rule has been waived.
The question is, Is it the sense of the Senate that debate on
Executive Calendar No. 810, the nomination of Julia Smith Gibbons, of
Tennessee, to be U.S. Circuit Judge for the Sixth Circuit, shall be
brought to a close?
The yeas and nays are required under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from California (Mrs. Boxer), the Senator from Hawaii (Mr.
Inouye,) the Senator from Georgia (Mr. Miller), and the Senator from
Washington, (Mrs. Murray), are necessarily absent.
Mr. NICKLES. I announce that the Senator from Missouri (Mr. Bond),
the Senator from Texas (Mr. Gramm), the Senator from North Carolina
(Mr. Helms), the Senator from Texas (Mrs. Hutchison) the Senator from
Arkansas (Mr. Hutchinson), and the Senator from Wyoming (Mr. Thomas)
are necessarily absent.
The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 89, nays 0, as follows:

[[Page S7392]]

[Rollcall Vote No. 193 Exe.]

YEAS--89

Akaka
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Inhofe
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NOT VOTING--11

Biden
Bond
Boxer
Gramm
Helms
Hutchinson
Hutchison
Inouye
Miller
Murray
Thomas
The PRESIDING OFFICER. On this vote, the yeas are 89, the nays are 0.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. HATCH. Mr. President, this morning we moved closer to the
confirmation of Judge Julia Smith Gibbons of Tennessee to the 6th
Circuit Court of Appeals. In so doing, we will bring relief to a
Circuit with a 50 percent vacancy rate, with 9 empty seats out of 18,
despite the fact that the President nominated 6 fine public servants to
fill those seats on May 9, 2001, well over 400 days ago. I look forward
to confirming her finally.
I rise this morning to express my most profound concern for the
course of judicial confirmations in general and my support for the
confirmation of Justice Priscilla Owen of Texas. The Judiciary
Committee gave Justice Owen a 5-hour hearing earlier this week, which I
am afraid did not do credit to the Committee.
I will comment on Justice Owens' qualifications, and to address some
of the deceptions, distortions and demagoguery orchestrated against her
nomination, that we have all read in the national and local papers.
I would like first to comment on the two jingos that are being used
about her record as if they had substance: namely, that Justice Owen is
``conservative'' and that she is ``out of the mainstream.'' Of course,
this comes from the Washington interest groups, in many cases, who
think that mainstream thought is more likely found in Paris, France,
than Paris, Texas.
I must admit that it's curious to hear it argued that a nominee twice
elected by the people of the most populous State in the Circuit for
which she is now nominated is ``out of the mainstream.'' Texans are no
doubt entertained to hear that.
Listening to some of my colleagues' commentary on judges, I sometimes
think that main-stream for them is a northeastern river of thought that
travels through New Hampshire early and often, widens in Massachusetts,
swells in Vermont, and deposits at New York City. Well, the mainstream
that I know, and that most Americans can relate to, runs much broader
and further than that.
The other mantra repeated by Justice Owen's detractors is that she is
``conservative.'' I believe that the use of political or ideological
labels to distinguish judicial philosophies has become highly
misleading and does a disservice to the public's confidence in the
independent judiciary, of which the Senate is the steward.
I endorse the words of my friend, and former Chairman of the
Judiciary Committee, Senator Biden, when he said some years ago that:
``[Judicial confirmation] is not about pro-life or pro-choice,
conservative or liberal, it is not about Democrat or Republican. It is
about intellectual and professional competence to serve as a member of
the third co-equal branch of the Government.''
I believe it is our duty to confirm judges who stand by the
Constitution and the law as written, not as they would want to rewrite
them. That was George Washington's first criterion for the Federal
bench, and it is mine. I also want common sense judges who respect
American culture. I believe that is what the American people want.

I believe we do a disservice to the independence of the Federal
judiciary by using partisan or ideological terms in referring to
judges.
My reason was well stated by Senator Biden when he said that: ``it is
imperative [not to] compromise the public perception that judges and
courts are a forum for the fair, unbiased, and impartial adjudication
of disputes.''
We compromise that perception, I believe, when we play partisan or
ideological tricks with the judiciary. Surely, we can find other ways
to raise money for campaigns and otherwise play at politics, without
dragging this nation's trust in the judiciary through the mud, as some
of the outside groups continue to do.
All you have to do to see my point is read two or three of the fund-
raising letters that have become public over the past couple of weeks
that spread mistruths and drag the judiciary branch into the mud, as
many recent political campaigns increasingly find themselves.
On a lighter note, while on ideology, let me pause to point out that
one of the groups deployed against Justice Owen is the Communist Party
of America, but then I don't know that they have come out in favor of
any of President Bush's nominees. I suspect after the fall of the
Berlin Wall, they must have a lot of time on their hands.
Today I wish to address just why a nominee with such a stellar
record, a respected judicial temperament, and as fine an intellect as
Justice Owen has, who graduated third in her class from Baylor's law
school, a great Baptist institution, when few women attended law
school, let alone in the South, who obtained the highest score in the
Texas Bar examination, and who has twice been elected by the people of
Texas to serve on their Supreme Court, the last time with 83 percent of
the votes and the support of every major newspaper of every political
stripe, I would like to address just why such a nominee could get as
much organized and untruthful opposition from the usual leftist,
Washington special interest groups that we see. I will peel through
what is at play for those groups. We need to expose and repel what is
at play for the benefit and independence of this Senate.

And I would like to address also the reasons why I am confident that
she will be confirmed notwithstanding. Not least of which is that, far
from being the ``judicial activist'' some would have us believe her to
be, she garnered the American Bar Association's unanimous rating of
``well qualified.'' The Judiciary Committee has never voted against a
nominee with this highest of ratings.
The first reason for the organized opposition, of course, is plain.
Justice Owen is from Texas, and Washington's well paid reputation
destroyers could not help but attempt to attack the widely popular
President of the United States, at this particular time in an election
year, by attacking the judicial nominee most familiar to him. Justice
Owen, welcome to Washington.
But as I prepared more deeply for the Hearing earlier this week, the
second reason became apparent to me. In my 26 years on the Judiciary
Committee I have seen no group of judicial nominees as superb as those
that President Bush has sent to us, and he has sent both Democrats and
Republicans.
In reading Justice Owen's decisions, one sees a judge working hard to
get it right, to get at the legislature's intent and to apply binding
authority and rules of judicial construction. It is apparent to me that
of all the sitting judges the President has nominated, Justice Owen is
the most outstanding nominee. She is, in my estimation, the best, and
despite what her detractors say, she is the best judge that any
American, any consumer and any parent could hope for.
Her opinions, whether majority, concurrences or dissents, could be
used as a law school text book that illustrates exactly how, and not
what, an appellate judge should think, how she should write, and just
how she should do the people justice by effecting their will through
the laws adopted by their elected legislatures. Justice Owen clearly
approaches these tasks with both scholarship and mainstream American
common sense. She does not

[[Page S7393]]

substitute her views for the legislature's, which is precisely the type
of judge that the Washington groups who oppose her do not want.

She is precisely the kind of judge that our first two Presidents,
George Washington and John Adams, had in mind when they agreed that the
justices of the State supreme courts would provide the most learned
candidates for the Federal bench.
So in studying her record, the second reason for the militant and
deceptive opposition to Justice Owen became quite plain to me. In this
world turned upside down, simply put, she is that good.
Another reason for the opposition against Justice Owen is the most
demagogic, the issue of campaign contributions and campaign finance
reform. Some of her critics are even eager to tie her to the current
trouble with Enron.
Well, she clearly has nothing to do with that. Neither Enron nor any
other corporation has donated to her campaigns, in fact, they are
forbidden by Texas law to make campaign contributions in judicial
elections. It was embarrassing to me, as it would be to any American
who watched the hearing earlier this week, to see Justice Owen defeat
these demagogic allegations, but being a Texas woman, she did so with
style, elegance, and grace--and without embarrassing her questioners.
Not that there was even a need for more questions. The Enron and
campaign contributions questions were amply clarified in a letter to
Chairman Leahy and the Committee dated April 5 by Alberto Gonzales. I
will ask unanimous consent, to place this and other related letters
into the Record. And I would place into the Record a retraction from
The New York Times saying that they got their facts wrong on this Enron
story. Such retractions don't come often, not as often as the invention
of facts by the smear groups. And despite the retraction, CNN was
repeating the same wrong facts just this week!

Notably, at the hearing Justice Owen received no questions from my
Democrat colleagues on her views on election reform and judicial
reform, of which she is a leading advocate in Texas. She is also a
leader in Gender Bias Reform in the courts and a reformer on divorce
and child support proceedings. But my colleagues seemed to take little
interest in this, nor in her acclaimed advocacy to improve legal
services and funding for the poor.
All of these are aspects of her record her detractors would have us
ignore, I certainly did not read these positive attributes in those
fancy documents, or should I say booklets, released prior to the
hearing by the Washington radical special interests lobby.
I will also ask unanimous consent, to place into the Record letters
from leaders of the Legal Society and 14 past presidents of the Texas
Bar Association, many of whom are leading Texas Democrats.
The fourth reason for the opposition to Justice Owen is the most
disturbing to me. For some months now, a few of my Democrat colleagues
have strained to point out when they believe they are voting for
judicial nominees that they believe to be pro-life. I have disputed
this when they have said it because the record contains no such
information of personal views from the judges we have reported
favorably out of the Judiciary Committee.
Each time they assert it, my staff has scoured the transcripts of
hearings and turned up nothing. What does turn up is that each time my
colleagues have asserted this, they have done so only for nominees who
are men.
I am afraid that the main reason Justice Owen is being opposed, is
not that personal views, namely on the issue of abortion, are being
falsely ascribed to her, they are, but rather because she is a woman in
public life who is believed to have personal views that some maintain
should be unacceptable for a woman in public life to have.
Such penalization is a matter of the greatest concern to me because
it represents a new glass ceiling for women jurists. And they have come
too far to suffer now having their feet bound up just as they approach
the tables of our high courts after long-struggling careers.
I am deeply concerned that such treatment will have a chilling effect
on women jurists that will keep them from weighing in on exactly the
sorts of cases that most invite their participation and their
perspectives as women.
The truth is that Justice Owen has never written or said anything
critical of abortion rights. In fact, the cases she is challenged on
have everything to do with the rights of parents to be involved in
their children's lives, and nothing to do with the right to an
abortion.
Ironically, the truth is that the cases that her detractors point to
as proof of apparently unacceptable personal views are a series of
fictions. This is what I mean about exposing the misstatements of the
left-wing activist groups in Washington. I will illustrate just three
of these fictions.
The first sample fiction is the now often-cited comment attributed to
then Texas Supreme Court Justice Alberto Gonzales, written in a case
opinion, that Justice Owen's dissent signified ``an unconscionable act
of judicial activism.'' Someone should do a story about how often this
little shibboleth has been repeated in the press and in several
websites of the professional smear groups. The problem with it is that
it isn't true. Justice Gonzales was not referring to Justice Owen's
dissent, but rather to the dissent of another colleague in the same
case.

The second sample fiction is the smear group's misrepresented
portrayal of a case involving buffer zones and abortion clinics. In
that case, the majority of the Texas Supreme Court ruled for Planned
Parenthood and affirmed a lower court's injunction that protected
abortion clinics and doctor's homes and imposed 1.2 million dollars in
damages against pro-life protestors. In only a few instances, the court
tightened the buffer zones against protestors. Justice Owen joined the
majority opinion and was excoriated by dissenting colleagues, who were,
by that way, admittedly pro-life.
When describing that decision then, abortion rights leaders hailed
the result as a victory for abortion rights in Texas. Planned
Parenthood's lawyer said the decision ``isn't a home run, it's a grand
slam.''
Of course, that result hasn't changed, but the characterization of it
has. This is how Planned Parenthood describes this same case in their
fact sheet on Justice Owen: ``[Owen] supports eliminating buffer zones
around reproductive health care clinics . . .''
In fact, her decision did exactly the opposite.
The third and most pervasive sample fiction concerns Justice Owen's
rulings in a series of Jane Doe cases which first interpreted Texas'
then-new parental involvement law. The law, which I think is important
to emphasize was passed by the Texas legislature, not by Justice Owen,
with bipartisan support, requires that an abortion clinic give notice
to just one parent 48 hours prior to a minor's abortion. Unlike States
with more restrictive laws such as Massachusetts, Wisconsin, and North
Carolina, consent of the parent is not required in Texas. A minor may
be exempted from giving such notice if they get court permission.

Since the law went into effect, over 650 notice bypasses have been
requested from the courts. Of these 650 cases, only 10 have had facts
so difficult that two lower courts denied a notice bypass, only 10 have
risen to the Texas Supreme Court.
Justice Owen's detractors would have us believe that in these cases,
she would have applied standards of her own choosing. Ironically, in
each and every example they cite, whether concurring with the majority
or dissenting, Justice Owen was applying not her own standards but the
standards enuniciated in the Roe v. Wade line of decisions of the
United States Supreme Court, which she followed and recognized as
authority.
For example, detractors take pains to tell us that Justice Owen would
require that to be sufficiently informed to get an abortion without a
parent's knowledge, that the minor show that they are being counseled
on religious considerations. They appear to think this is nothing more
than opposition to abortion rights. They are so bothered with this
religious language that various documents produced by the abortion
industry lobby italicize the word religious. But this standard is not
Justice Owen's invention, but rather the words of the Supreme Court's
pro-choice decision in Casey.

[[Page S7394]]

Should she not follow one Supreme Court decision, but be required to
follow another? Is that what we want our judges to do, pick and choose
which decisions to follow? That appears to be the type of activist
judge these groups want, and this Senate should resist all such
attempts.
The truth is that rather than altering the Texas law, Justice Owen
was trying to effect the legislator's intent. No better evidence of
this is the letter of the pro-choice woman Texas Senator stating her
``unequivocal'' support of Justice Owen.
Senator Shapiro says of Justice Owen: ``Her opinions interpreting the
Texas [parental involvement law] serve as prime example of her judicial
restraint.'' I understand why the Washington left-wing groups don't
like that in a judge, but the Senate and the Judiciary Committee should
applaud and commend such restraint and temperament.
The truth is that, rather than being an activist foe of Roe, Justice
Owen repeatedly cites and follows Roe and its progeny as authority. She
has to, it's what the Court has said is the law. Compare this to
Justice Ruth Bader Ginsburg who wrote in 1985 that the Roe v. Wade
decision represented ``heavy handed judicial intervention'' that was
``difficult to justify.''
In relation to this, I would like briefly to comment on the mounting
offensive of some to change the rules of judicial confirmation by
asking nominees to share personal views or to ensure that nominees
share the personal views of the Senator on certain cases.
To illustrate my view, I'll tell you that many people have recently
called on the Judiciary Committee to question nominees as to their
views on the pledge of allegiance case. My full-throated answer to this
is no, as much as I think that that case was wrongly decided. I also
happen to think that the recent School Voucher case is the most
important civil rights decision since Brown but I am not going to ask
people what they think about that case either.
Such questions threaten the heart of the independent judiciary and
attempt to accomplish by hidden indirection what Senators cannot do
openly by constitutional amendment. It is an attempt to make the courts
a mere extension of the Congress.
I speak against this practice in the strongest terms, and, in my
view, any nominee who answers such questions would not be fit for
judicial office and would not have my vote.

The truth is that there are many who, like Justice Ginsburg, think
that cases like Griswold or Roe were wrongly decided as a
constitutional matter even if they agree with the policy result, just
as the great liberal Justice Hugo Black did in his dissent in Griswold.
A few weeks ago we heard testimony from Boyden Gray, a former White
Counsel and a former Supreme Court clerk, that Chief Justice Warren
though that Brown v. Board of Education was his worst ruling as matter
of constitutional law, but not his least necessary to end
desegregation.
Some of Justice Owen's detractors have made much about the fact that
she is not afraid to dissent. Of course, they fail to mention dissents
like her opinion in Hyundai Motor v. Alvarado, in which Justice Owens'
reasoning was later adopted by the United States Supreme Court on the
same difficult issue of law.
They also overlooked here dissent in a repressed memory/sexual abuse
case where she took the majority to task with these words: ``This is
reminiscent of the days when the crime of rape went unpunished unless
corroborating evidence was available. The Court's opinion reflects the
attitudes reflected in that era.''
Perhaps, they thought that this dissent showed her too representative
of American women. Despite deceptive opposition I think that Justice
Owen should be confirmed.

I will ask unanimous consent to place into the Record an editorial of
earlier this week from The Washington Post, a liberal publication,
calling on us to be fair and calling on this Senate to confirm Justice
Owen.
I have hope that my Democrat colleagues on the Judiciary Committee
will be led by the time-tested standards well-stated by Senator Biden,
and look again to qualifications and judicial temperament, not base
politics. Whether the Biden standard will survive past our time, will
be tested now.
If we fail the test we will breach our responsibility as auditors of
the Washington special interest groups and the Judiciary's stewards on
behalf of all the people, and not just some.
Mr. President, I ask unanimous consent that the documents to which I
have referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The White House,

Washington, DC, April 5, 2002.
Hon. Patrick J. Leahy,
U.S. Senate, Washington, DC.
Dear Chairman Leahy: In our recent conversations, you
suggested that the White House should examine whether
contributions Justice Owen received for her campaigns for the
Texas Supreme Court raise any legitimate issue with respect
to her fitness to serve on the Fifth Circuit. We have done as
you have suggested, and I see no basis to question Justice
Owen's fitness to serve on the Fifth Circuit. The record
reflects that she has at all times acted properly and in
complete compliance with both the letter and the spirit of
the rules relating to judicial campaign finance.
I am certain you will agree that it was entirely proper for
Justice Owen's campaign to receive contributions. Article 5
of the Texas Constitution provides that candidates for the
state judiciary run in contested elections, which are
partisan under Texas election law, and Canon 45(1) of the
Texas Code of Judicial Conduct provides that the candidates
may solicit and accept campaign funds. Like Senators,
therefore, candidates for the state judiciary in Texas may
receive contributions to finance their campaigns.
To be sure, Justice Owen and many others would prefer a
system of appointed rather than elected state judges. In
fact, Justice Owen has long advocated appointment of judges
(coupled with retention elections). She has written to fellow
Texas attorneys on the issue, committed to a new system in
League of Women Voters publications, and appeared as a pro-
reform witness before the Texas Legislature. She has
explained even to partisan groups why judges should be
selected on merit. But the people in some states, including
Texas, have chosen a system of contested elections for
judges. Elected state judges certainly are not barred from
future appointment to the federal judiciary; on the contrary,
some notable federal appellate judges whom President Clinton
nominated and you supported were state judges who had run and
been elected in contested elections--Fortunato Benevides and
James Dennis, for example, from the Fifth Circuit.
I am also certain you would find nothing inappropriate
about the sources from which Justice Owen's campaign received
contributions. In her 1994 and 2000 elections, Justice Owen's
campaign quite properly received contributions from a large
number of entities and individuals, with no single
contributor predominating. In the 1994 election cycle, her
campaign received approximately $1.2 million in contributions
from 3,084 different contributors. Included in that total was
$8,800 from employees of Enron and its employee-funded
political action committee. Employees of Enron thus
contributed less than 1% of the total contributions to her
campaign. And Justice Owen's campaign, of course, received no
corporate contributions from Enron or any Enron-affiliated
corporation, as such corporate contributions are not
permissible under Texas law. Notably, in the 1994 election,
not only did Justice Owen comply with all campaign laws, she
went beyond what the law required and voluntarily limited
contributions when many other judicial candidates did not do
so.
In the 2000 election cycle, Justice Owen's campaign
received approximately $300,000 in contributions from 273
different contributors. In that cycle, her campaign received
no contributions from Enron or its affiliates, from employees
of Enron, or from Enron's political action committee. In
addition, Justice Owen ultimately had no Democratic or
Republican opponent in the 2000 election cycle, and she
closed her campaign office and returned most of her
unspent contributions, an act that I believe is unusual in
Texas judicial history.
It was entirely proper for Justice Owen's campaign to
receive campaign contributions, including the contributions
from Enron employees. Indeed, seven of the nine current Texas
Supreme Court Justices received Enron contributions, and
several of them received more than Justice Owen's campaign
received. As this record demonstrates, elected judges
certainly did not act improperly in the past, before anyone
knew about Enron's financial situation, by receiving
contributions from employees of Enron--any more than it could
be said that Members of Congress acted improperly in the past
by receiving contributions from Enron.
If, as is evident from the foregoing discussion, there was
nothing amiss with the fact that Justice Owen received
donations or with the sources from which she received them,
the only other possible area of concern with her conduct
relating to campaign contributors would be her decisions from
the bench. Texas Code of Judicial Conduct Cannon 3(B)(1)
provides that a judge ``shall hear and decide matters
assigned to the judges except those in which disqualification
is required or recusal is appropriate.'' And it is

[[Page S7395]]

well-established that judicial recusal is neither necessary
nor appropriate in cases involving parties or counsel who
contributed to that judge's campaign. See Public Citizen,
Inc. v. Bomer, 274 F.3d 212, 215 (5th Cir. 2001); Apex Towing
Co., v. Tolin, 997 S.W.2d 903, 907 (Tex. App. 1999), rev'd on
other grounds, 41 S.W.3d 118 (Tex. 2001); Aguilar v.
Anderson, 855 S.W.2d 799, 802 (Tex. App. 1993); J-IV Invs. v.
David Lynn Mach., Inc., 784 S.W.2d 106, 107 (Tex. App. 1990).
Indeed, in any state with elected judges, any other rule
would be unworkable. The primary protections against
inappropriate influence on judges from campaign contributions
are disclosure of contributions and adherence to the
tradition by which judges explain the reasons for their
decisions. If the people of a state deem those protections
insufficient, the people may choose a system of appointed
judges rather than elected judges, as Justice Owen has
advocated for Texas.
Surmising that the concerns you raised would likely focus
on her sitting in cases in which Enron had an interest, we
have undertaken a review of her decisions in such cases. We
have reviewed Texas Supreme Court docket records and Enron's
1994-2000 SEC Form 10Ks to determine the cases in which Enron
or affiliates of Enron were parties to proceedings before the
Court since January 1995 (when Justice Owen took her seat).
The decisions of the Texas Supreme Court since January 1995
in proceedings involving Enron have been ordinary and raise
no questions whatsoever.
A judge's decisions are properly assessed by examining
their legal reasoning, not by conducting any kind of
numerical or statistical calculations. But even those who
would attempt to draw conclusions based on such calculations
would find nothing in connection with these Enron cases. To
begin with, we are aware of no proceeding involving Enron in
which Justice Owen cast the deciding vote. In six proceedings
in which we know that Enron was a party, Justice Owen's vote
can be characterized as favorable to Enron in two cases and
adverse in two cases. With respect to the remaining two, one
cannot be characterized either way, and she did not
participate in the other case because it had been a matter at
her law firm when she was a partner. Eight other matters came
before the Court in which we know that Enron or an affiliate
was a party, but the court declined to hear them. In those
matters, the Court's actions could be characterized as
favorable to Enron in four cases, adverse in three cases, and
one was dismissed by agreement of the parties. We will supply
the Judiciary Committee copies of the cases on request.
There has been some media attention on one case involving
Enron in which Justice Owen wrote the opinion for the Court.
See Enron Corp. v. Spring Creek Independent School District,
922 S.W.2d 931 (Tex. 1996). The issue in that case concerned
the constitutionality of an ad valorem tax statute that
allowed market value of inventory to be set on one of two
different dates. The Court held that the statute did not
violate the state constitution--and the decision was
unanimous. I understand that two Democratic Justices who sat
on the Court at that time (Justice Raul Gonzalez and Rose
Spector) have written to you to explain the case, indicating
that Justice Owen's participation in the case was entirely
proper. Moreover, the lawyer who represented a part opposing
Enron in this case (Robert Mott) recently was quoted as
saying that criticism of Justice Owen for her role in this
case is ``nonsense'' Texas Lawyer (April 1, 2002). In my
judgment, this case raises no legitimate issue with respect
to Justice Owen's confirmation.
Finally, I am informed that, if confirmed, Justice Owen
will donate all of her unspent campaign contributions to
qualify tax-exempt charitable and educational institutions,
as is contemplated under section 254.205(a)(5) of the Texas
Election Code.
I trust that the foregoing will resolve all questions
concerning the propriety of Justice Owen's activities in
relation to financing her campaigns. As you know, I served
with Justice Owen, and I am convinced from my work with her
that she is a person of exceptional integrity, character, and
intellect. Both Senators from Texas strongly support her
nomination. The American Bar Association has unanimously
rated Justice Owen ``well qualified,'' and one factor in that
rating process is the nominee's integrity.
Despite her superb qualifications and the ``Judicial
emergency'' in the Fifth Circuit declared by the Judicial
Conference of the United States, Justice Owen has not
received a hearing for nearly 11 months since her May 9,
2001, nomination. We respectfully request that the Committee
afford this exceptional nominee a prompt hearing and vote.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.
____

April 1, 2002.
Re Justice Priscilla Owen.

Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Russell
Senate Office Building, Washington, DC.
Dear Senator Leahy: We served on the Texas Supreme Court
with Justice Priscilla Owen when the case of Enron
Corporation et al. v. Spring Creek Independent School
District, 922 S.W.2d 931 (Tex. 1996) was decided. The issue
in this case was the constitutionality of an ad valorem tax
statute that allowed market value of inventory to be set on
two different dates. In a unanimous opinion, all justices,
Democrats and Republican alike, agreed with the opinion
authored by Justice Owen that the choice of the valuation
date in ad valorem tax statute did not violate a provision of
the State Constitution requiring uniformity and equality in
ad valorem taxation. We found the decision of the United
States Supreme Court and other states instructive on this
issue.
In our ruling, we agreed with the rulings of the Harris
County Appraisal District and the trial court.
Cordially,
Raul A. Gonzalez,
Justice, Texas Supreme Court, 1984-1998.
Rose Spector,
Justice, Texas Supreme Court, 1992-1998.
____

Perdue, Brandon,

Fielder, Collins & Mott, L.L.P.,

Houston, TX, July 1, 2002.
Re Justice Priscilla Owen.

Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Russell
Senate Office Building, Washington, DC
Dear Chairman Leahy: My name is Robert Mott. I was the
legal counsel for the Spring Independent School District in
the case of Enron Corporation et al. v. Spring Independent
School District, 922 S.W.2d 931 (Tex. 1996). We were the
losing party in this case.
I have been disturbed by the suggestions that Justice
Priscilla Owen's decision in this case was influenced by the
campaign contributions she received from Enron employees. I
personally believe that such suggestions are nonsense.
Justice Owen authored the opinion of a unanimous court
consisting of both Democrats and Republican. While my clients
and I disagreed with the decision, we were not surprised. The
decision of the Court was to uphold an act of the Legislature
regarding property valuation. It was based upon United States
Supreme Court precedent, of which we were fully aware when we
argued the case.
I firmly believe that there is absolutely no reason to
question Justice Owen's integrity based upon the decision in
this case.
Sincerely,
Robert Mott.
____

De Leon, Boggins & Icenogle,

Austin, TX, June 26, 2002.
Re nomination of the Honorable Priscilla Owen to the U.S.
Court of Appeals for the Fifth Circuit.

Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Russell
Senate Office Building, Washington, DC.
Dear Senator Leahy: This correspondence is sent to you in
support of the nomination by President Bush of Texas Supreme
Court Justice Priscilla Owen for a seat on the U.S. Court of
Appeals for the Fifth Circuit.
As the immediate past President of Legal Aid of Central
Texas, it is of particular significance to me that Justice
Owen has served as the liaison from the Texas Supreme Court
to statewide committees regarding legal services to the poor
and pro bono legal services. Undoubtedly, Justice Owen has an
understanding of and a commitment to the availability of
legal services to those who are disadvantaged and unable to
pay for such legal services. It is that type of insight and
empathy that Justice Owen will bring to the Fifth Circuit.
Additionally, Justice Owen played a major role in
organizing a group known as Family Law 2000 which seeks to
educate parents about the effect the dissolution of a
marriage can have on their children. Family Law 2000 seeks to
lessen the adversarial nature of legal proceedings
surrounding marriage dissolution. The Fifth Circuit would be
well served by having someone with a background in family law
serving on the bench.
Justice Owen has also found time to involve herself in
community service. Currently Justice Owen serves on the Board
of Texas Hearing and Service Dogs. Justice Owen also teaches
Sunday School at her Church, St. Barnabas Episcopal Mission
in Austin, Texas. In addition to teaching Sunday School
Justice Owen serves as head of the altar guild.
Justice Owen is recognized as a well rounded legal scholar.
She is a member of the American Law Institute, the American
Judicature Society, The American Bar Association, and a
Fellow of the American and Houston Bar Foundations. Her
stature as a member of the Texas Supreme Court was recognized
in 2000 when every major newspaper in Texas endorsed Justice
Owen in her bid for re-election to the Texas Supreme Court.
It has been my privilege to have been personally acquainted
with various members of the U.S. Court of Appeals for the
Fifth Circuit. The late Justice Jerry Williams was my
administrative law professor in law school and later became a
personal friend. Justice Reavley has been a friend over the
years. Justice Johnson is also a friend. In my opinion,
Justice Owen will bring to the Fifth Circuit the same
intellectual ability and integrity that those gentlemen
brought to the Court.
I earnestly solicit your favorable vote on the nomination
of Justice Priscilla Owen for a seat on the U.S. Court of
Appeals for the Fifth Circuit.
Thank you for your attention to this correspondence.
Very truly yours,
Hector De Leon.

[[Page S7396]]

____
Texas Association

of Defense Counsel, Inc.,

Austin, TX, June 19, 2001.
Re nomination of Justice Patricia Owen for the United States
Fifth Circuit of Appeals.
Senator Patrick Leahy,
Senate Judiciary Committee,
Washington, DC.
Dear Senator Leahy: I have had the privilege of knowing
Justice Patricia Owen of the Texas Supreme Court, both
personally and professionally, for many years. I cannot
imagine a more qualified, ethical, and knowledgeable person
to sit on the United States Fifth Circuit Court of Appeals.
I accept the reality that politics is a part of our
culture, but I know that when it comes to appointing federal
judges, we must transcend politics and look to character and
ability. Patricia Owen has the character and ability to make
all of us, Democrat and Republican, proud.
I ask that your Committee act swiftly to confirm her
nomination to the United States Fifth Circuit Court of
Appeals.
Thank you.
Sincerely,
E. Thomas Bishop.
____

Hughes/Luce, LLP.,

Dallas, TX, July 15, 2002.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, Russell Senate Office
Building, Washington, DC.
Dear Chairman Leahy: As past presidents of the State Bar of
Texas, we join in this letter to strongly recommend an
affirmative vote by the Judiciary Committee and confirmation
by the full Senate for Justice Priscilla Owen, nominee to the
United States Court of Appeals for the Fifth Circuit.
Although we profess different party affiliations and span
the spectrum of views of legal and policy issues, we stand
united in affirming that Justice Owen is a truly unique and
outstanding candidate for appointment to the Fifth Circuit.
Based on her superb integrity, competence and judicial
temperament, Justice Owen earned her Well Qualified rating
unanimously from the American Bar Association Standing
Committee on the Federal Judiciary--the highest rating
possible. A fair and bipartisan review of Justice Owen's
qualifications by the Judiciary Committee certainly would
reach the same conclusion.
Justice Owen's stellar academic achievements include
graduating cum laude from both Baylor University and Baylor
Law School, thereafter earning the highest score in the Texas
Bar Exam in November 1977. Her career accomplishments are
also remarkable. Prior to her election to the Supreme Court
of Texas in 1994, for 17 years she practiced law specializing
in commercial litigation in both the federal and state
courts. Since January 1995, Justice Owen has delivered
exemplary service on the Texas Supreme Court, as reflected by
her receiving endorsements from every major newspaper in
Texas during her successful re-election bid in 2000.
The status of our profession in Texas has been
significantly enhanced by Justice Owen's advocacy of pro bono
service and leadership for the membership of the State Bar of
Texas. Justice Owen has served on committees regarding legal
services to the poor and diligently worked with others to
obtain legislation that provides substantial resources for
those delivering legal services to the poor.
Justice Owen also has been a long-time advocate for an
updated and reformed system of judicial selection in Texas.
Seeking to remove any perception of a threat to judicial
impartiality, Justice Owen has encouraged the reform debate
and suggested positive changes that would enhance and improve
our state judicial branch of government.
While the Fifth Circuit has one of the highest per judge
caseloads of any circuit in the country, there are presently
two vacancies on the Fifth Circuit bench. Both vacancies have
been declared ``judicial emergencies'' by the Administrative
Office of the U.S. Courts. Justice Owen's service on the
Fifth Circuit is critically important to the administration
of justice.
Given her extraordinary legal skills and record of service
in Texas, Justice Owen deserves prompt and favorable
consideration by the Judiciary Committee. We thank you and
look forward to Justice Owen's swift approval.
Darrell E. Jordan.
On behalf of former Presidents of the State Bar of Texas:
Blake Tartt; James B. Sales; Hon. Tom B. Ramey, Jr.; Lonny D.
Morrison; Charles R. Dunn; Richard Pena; Charles L. Smith;
Jim D. Bowmer; Travis D. Shelton; M. Colleen McHugh; Lynne
Liberato; Gibson Gayle, Jr.; David J. Beck; and Cullen Smith.
____

[From the Washington Post, July 24, 2002]

The Owen Nomination

The nomination of Priscilla Owen to the 5th Circuit Court
of Appeals creates understandable anxiety among many liberal
activists and senators. The Texas Supreme Court justice, who
had a hearing yesterday before the Senate Judiciary
Committee, is part of the right flank of the conservative
court on which she serves. Her opinions have a certain
ideological consistency that might cause some senators to
vote against her on those grounds. But our own sense is that
the case against her is not strong enough to warrant her
rejection by the Senate. Justice Owen's nomination may be a
close call, but she should be confirmed.
Justice Owen is indisputably well qualified, having served
on a state supreme court for seven years and, prior to her
election, having had a well-regarded law practice. So rather
than attacking her qualifications, opponents have sought to
portray her as a conservative judicial activist--that is, to
accuse her of substituting her own views for those of
policymakers and legislators. In support of this charge, they
cite cases in which other Texas justices, including then-
Justice Alberto Gonzales--now President Bush's White House
Counsel--appear to suggest as much. But the cases they cite,
by and large, posed legitimately difficult questions. While
some of Justice Owen's opinions--particularly on matters
related to abortion--seem rather aggressive, none seems to us
beyond the range of reasonable judicial disagreement. And Mr.
Gonzales, whatever disagreements they might have had,
supports her nomination enthusiastically. Liberals will no
doubt disagree with some opinions she would write on the 5th
Circuit, but this is not the standard by which a president's
lower-court nominees should be judged.
Nor is it reasonable to reject her because of campaign
contributions she accepted, including those from people
associated with Enron Corp. Texas has a particularly ugly
system of judicial elections that taints all who participate
in it. State rules permit judges to sit on cases in which
parties or lawyers have also been donors--as Justice Owen did
with Enron. Judicial elections are a bad idea, and letting
judges hear cases from people who have given them money is
wrong. But Justice Owen didn't write the rules and has
supported a more reasonable system.
Justice Owen was one of President Bush's initial crop of 11
appeals court nominees, sent to the Senate in May of last
year. Of these, only three have been confirmed so far, and
six have not even had the courtesy of a hearing. The fact
that President Clinton's nominees were subjected to similar
mistreatment does not excuse it. In Justice Owen's case, the
long wait has produced no great surprise. She is still a
conservative. And that is still not a good reason to vote her
down.
____

[From the New York Times, January 25, 2002]

Corrections

An article in Business Day on Tuesday about criticism of
Justice Priscilla Owen of the Texas Supreme Court, a nominee
for a federal judgeship who accepted campaign donations from
Enron, misstated the amount of money saved by the company
because of a decision she wrote, dealing with taxes owed to a
local school district. It was $224,988.65, not $15 million.
The larger sum, cited in her opinion as the district's
revenue loss, was the amount by which the value of a piece of
the company's land was lowered.

____________________