The battle over the confirmation of President George W. Bush’s nominations to the federal bench has been anything but routine. Owen’s Defeat Draws Line in the Sand

The battle over the confirmation of President George W. Bush’s 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 Senate’s "advise and consent" hurdle with relative ease. Add to that a unanimous "well-qualified" rating from the American Bar Association’s Committee on the Judiciary, the support of colleagues, a bipartisan group of 15 former state bar presidents, both her state’s 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 Leahy’s (D-VT) "Gold Standard."

Owen’s 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 Owen’s 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.

Owen’s defeat is much more than just another rejection of one of the president’s 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 nominee’s 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 Owen’s nomination. "Ideology will make a difference."

This overt standard of ideological litmus tests crosses the line with regard to the Senate’s role in the confirmation process. Its application to Justice Owen further tarnishes the constitutional integrity of an already hobbled process. "It’s a changing of the ground rules in a way that has immense ramifications," said Senator Jeff Sessions (R-AL), describing the Owen vote. "We’re passing some kind of threshold today," said Senator Mitch McConnell (R-KY). President Bush remarked, "I don’t think this is a wise line for us to cross over. . . [Justice Owen’s defeat] is bad for our country, it’s 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 don’t 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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