The
battle over the confirmation of President George W. Bushs
nominations to the federal bench has been anything but routine.
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Owens
Defeat Draws Line in the Sand
The
battle over the confirmation of President George W. Bushs
nominations to the federal bench has been anything but routine.
However, a nominee who has served as a state supreme court justice
over the past eight years, elected to a second term with 84 percent
of the vote and with the endorsements of every major newspaper in
the state, should clear the Senates "advise and consent"
hurdle with relative ease. Add to that a unanimous "well-qualified"
rating from the American Bar Associations Committee on the
Judiciary, the support of colleagues, a bipartisan group of 15 former
state bar presidents, both her states senators and a majority
in the U.S. Senate and you have a shoo-in, right?
Not
according to the infamous "Gang of Ten" that now controls
the Senate Judiciary Committee.
Last
week, the committee voted along party lines to reject the confirmation
of Texas Supreme Court Justice Priscilla Owen to the Fifth Circuit
Court of Appeals. Motions to send her nomination to the Senate floor
with no recommendation, or a negative recommendation, were also
rejected by 10-9 votes. The votes marked the first time in history
the Judiciary Committee had rejected a nominee with a unanimous
rating of "well-qualified" by the American Bar Association.
So
much for Chairman Patrick Leahys (D-VT) "Gold Standard."
Owens
defeat is the second time this year the committee has voted down
a nominee to fill federal court vacancies. The confirmation of Charles
Pickering, also a candidate for the Fifth Circuit, was defeated
in March.
Like
Pickering, Owen was a victim of character assassination by radical
special interests and the 10 Democrats on the committee who made
her defeat a top priority. Citing opinions she wrote siding with
business and interpreting Texas parental notification statute,
Justice Owens attackers claimed her judicial behavior to be
"way out of the mainstream."
Those
accusations, however, lacked merit according to those from both
sides of the political spectrum who examined her writings closely.
The editorial page of the Washington Post, hardly a bastion
for conservative thought, described the opinions in question as
within "the range of reasonable judicial disagreement."
Even some of her harshest critics acknowledged Justice Owen had
a "good judicial temperament" and "unquestionable
integrity," qualities traditionally embraced by Democrats and
Republicans alike.
Owens
defeat is much more than just another rejection of one of the presidents
judicial nominees. Since Democrats took control of the Senate Judiciary
Committee, the majority has worked ferociously to redefine, both
substantively and procedurally, the standards by which federal judges
are confirmed. Under current leadership, ideology has become the
benchmark for confirmation, replacing traditional considerations
of each nominees experience, professional competence and judicial
temperament. Senator Charles Schumer (D-NY), who can be described
as the Don of the Judiciary on this issue, summed up the new standard
for confirmation by stating, "We are not going to simply say
that someone has an unbelievable legal mind and an unblemished character
and then just approve them," describing Owens nomination.
"Ideology will make a difference."
This
overt standard of ideological litmus tests crosses the line with
regard to the Senates role in the confirmation process. Its
application to Justice Owen further tarnishes the constitutional
integrity of an already hobbled process. "Its a changing
of the ground rules in a way that has immense ramifications,"
said Senator Jeff Sessions (R-AL), describing the Owen vote. "Were
passing some kind of threshold today," said Senator Mitch McConnell
(R-KY). President Bush remarked, "I dont think this is
a wise line for us to cross over. . . [Justice Owens defeat]
is bad for our country, its bad for our bench."
President
Bush has nominated 32 appellate judges; a mere 14 of whom have been
confirmed. Many are being refused hearings in the Senate Judiciary
Committee, including six of the initial 11 nominated to the Circuit
Courts of Appeal in May, 2001. Justice Owen waited an astonishing
14 months before receiving the hearing that preceded her defeat
more than a month later.
Simply
put, there are too many vacancies on the federal bench. Dockets
are overloaded and justice is being denied. The "Gang of Ten"
is clearly unfazed by this reality, as its members appear dead-set
on killing all nominees, regardless of qualifications, who dont
fit their narrow ideals for the court.
The
line in the sand has been drawn with the defeat of Justice Priscilla
Owen, and her rejection, an injustice in and of itself, has subverted
the confirmation process. That is an injustice for the American
people.
[September
12, 2002]
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