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A project tracking federal judicial nominations and courts.
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EDITORIALS The News Journal [Wilmington, DE], EDITORIAL (Feb. 28, 2005) The president and his conservative allies in the Senate intend to make martyrs of Mr. Myers and a few other rejects for top judgeships by nominating them again to provoke a big fight with Democrats. Despite the campaign to paint Senate Democrats as obstructionists, the fact is that the Senate approved more than 200 people for federal judgeships during Mr. Bush's first term. Only 10 were blocked by Democrats, who had sound reasons to do so. Article II of the Constitution states that certain presidential appointments, judges among them, must be "by and with the advice and consent of the Senate." The Framers included that for a reason, so presidential action does not go unchecked. In the 1930s the Senate stopped President Franklin D. Roosevelt from packing the Supreme Court with justices who would vote his way. Now some senators, mostly Democrats, believe it is their duty to prevent George W. Bush from packing the federal courts with radical conservatives who would make decisions the president favors. The overwhelming number of President Bush's judicial appointments are now on the bench. It wasn't that way for President Bill Clinton. Sen. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, recalled last week in a New York Times article that "his party behaved badly when it blocked many of President Bill Clinton's nominees in an effort to keep them off the bench." Senate Majority Leader Bill Frist and the White House should remember that. Democrats are a distinct minority in the Senate and their only real weapon to block action is the filibuster, an arcane maneuver to keep the Senate from acting. Sen. Frist says he's going to try to pass a law limiting filibusters on judicial nominees. Sen. Specter opposes that, and says there will be war in the Senate if Republicans try it. President Bush wants to put as many conservative thinkers on federal courts as possible. In fact, he already has them. He should move on. Sending rejected nominees back to the Senate is a declaration of war neither he nor the country needs." Full text The Mercury News [San Jose, CA], EDITORIAL (Feb. 23, 2005) Senators must vet nominations for those posts carefully, weeding out those who lack sufficient smarts or temperament, or who appear to come with a political agenda that would clash with good case law, sound precedence and public will. It's the latter problem that led Democratic senators to stage filibusters over 10 of the 52 appellate court candidates that President Bush nominated in his first term. The Democrats' implicit message: Send us moderate nominees or conservatives who aren't judicial activists, and they'll sail through. Bush has ignored it. Interpreting his narrow electoral victory as an ideological acclamation, the president has resubmitted the names of seven of the previously blocked nominees. Bush is picking a fight on political grounds and Democrats should oblige him. Among the seven:
It takes 40 of 100 senators to block a nomination by filibustering. Republican senators are raising the stakes by threatening to abolish the filibuster and confirm judicial nominations by a simple 51-vote majority vote. That's being called the "nuclear option" because Democrats have vowed to bring the Senate to a standstill in reprisal. Once employed, the Democrats could someday pull the same maneuver on Republicans. A unique Senate tradition, the filibuster is not a tactic that should be used lightly or often. But it's an appropriate use of power to thwart disastrous, irreversible nominations. Over the decades, both parties have used it to moderate presidential appointments. This year, it should be used at least seven more times." Full text Newsday, EDITORIAL (May 21, 2004) This week's deal will leave five of them on the sidelines, where they belong. The other two are William Pryor and Charles Pickering. Bush appointed Pickering to the Fifth Circuit Court of Appeals in New Orleans and Pryor to the Eleventh Circuit Court of Appeals in Atlanta while Congress was in recess. Their nominations are officially still before the Senate, but the law allows them to remain on the bench until the current session of Congress ends this fall. . . . Ideology has clearly played a role in Bush's nominations. It is disingenuous for the president to insist that consideration of ideology should have no place in Senate confirmation." Atlanta Journal-Constitution, EDITORIAL (Nov. 13, 2003) The Republicans' pointless pouting session may backfire when Americans learn the real facts. When Bill Clinton was president, the GOP didn't stop at holding up a measly four judicial nominees. They held up 60, refusing to allow committee votes on most of them. . . . [T]hree . . . nominees blocked by the Democrats hold radical views that make them unfit for promotions to higher courts. Alabama Attorney General William Pryor, selected for the 11th U.S. Circuit Court of Appeals (which hears cases out of Georgia) has opposed civil rights, women's rights and federal environmental protections; federal district Judge Charles Pickering, nominated for the 5th Circuit, mounted an unusual campaign to get a reduced sentence for one of the defendants in a cross-burning conviction -- and without notifying the lawyers on both sides; and Texas Supreme Court Justice Priscilla Owen, another 5th Circuit nominee, was criticized by her court colleagues for letting her personal anti-abortion views go beyond the letter of the law she was asked to construe. The Democrats also rightly object to California Justice Carolyn Kuhl, nominated for the 9th Circuit, who supported tax-exempt status for Bob Jones University while it was still segregated; and California Justice Janice Rogers Brown, nominated for the influential D.C. Circuit Court of Appeals, who has said she's not sure the Bill of Rights should ever have been applied to the states. (Republicans hypocritically call Democrats opposition to Brown, who is African-American, "racist." In fact, she's opposed by civil rights organizations across the country, including the NAACP.) Most Americans believe in the Constitution's advice and consent provision, designed by the forefathers to prevent the executive from packing the courts with cronies or ideologues. But now, the GOP is pushing to eliminate the honored Senate filibuster rule, which has proved useful in holding up questionable court nominees." Full text (Registration required) Minneapolis Star Tribune, EDITORIAL (Nov. 13, 2003) [I]n the three years since President Bush took office, Senate Democrats have confirmed 168 judicial nominees -- more judges than Ronald Reagan got approved in his first four years. That Democrats have objected to four nominees is hardly worth mentioning when you consider what the Republicans did during the Clinton years: They refused to approve 60 judicial candidates -- often without citing any reason at all. . . . Democrats have already joined with Republican colleagues in approving dozens of women judges; the objections to the unapproved nominees are as gender-free as they can be. What's so troubling about this small group? Democrats consider each nominee too outlandish on matters of legal theory to qualify for the bench. Take California Supreme Court Justice Janice Rogers Brown, for instance, whom Bush wants to move to the U.S. Circuit Court of Appeals for the District of Columbia. . . . She has repeatedly challenged the high court's doctrine of incorporation, which for decades has obliged states -- not just the feds -- to honor the Bill of Rights. Brown recanted that view at her confirmation hearing -- always a worrisome sign -- but hasn't been able to live down earlier comments that court rulings upholding the New Deal marked "the triumph of our socialist revolution." This isn't the sort of dispassionate respect for precedent Americans expect in their judges. Then there's Carolyn Kuhl, awaiting approval for a spot on the Ninth Circuit Court of Appeals. She's shown a similar disregard for judicial precedent. . . . Objections to Priscilla Owen, nominee for the Fifth Circuit Court of Appeals, are easy to understand: Owen's 1994 campaign to win a seat on the Texas Supreme Court was engineered by Karl Rove, President Bush's envoy to the radical right. Even her court colleagues have commented on her habit of twisting law to fit her hyperconservative political views, and of expressing open disdain for the high court's abortion rulings. What's more, Owen's ethical compass is apparently broken: She's accepted campaign cash from companies and law firms -- and then declined to recuse herself when those donors have appeared before her. Democrats have been doing what senators are supposed to do -- reviewing judicial appointments, consenting to the many that pass muster and holding back on the few that don't. For Republicans to throw a prolonged public fit over such temperate behavior won't -- and shouldn't -- change the Democratic tune. All it will do is squander what little bipartisan goodwill still survives in Washington." San Francisco Chronicle, EDITORIAL (Nov. 12, 2003) Presidents typically shape the judiciary to reflect their own views. But with Charles Pickering, Priscilla Owe[n], William Pryor, Miguel Estrada and now Brown, Bush seems bent on stacking the bench with ideologues. President Bush could end the judicial gridlock by offering candidates who are, at minimum, committed to fundamental constitutional principles and, unlike Brown, understand the role of government in protecting individual rights." Full text Palm Beach Post, EDITORIAL (Nov. 7, 2003) On Thursday, Democrats again blocked a floor vote on the appointment of Alabama Attorney General William Pryor to the 11th U.S. Circuit Court of Appeals, . . . Also on Thursday, the judiciary committee sent the nomination of California Supreme Court Justice Janice Rogers Brown to the full Senate. Democrats have promised to mount another filibuster, and President Bush has given them no choice. Since Mr. Bush took office in January 2001, the Senate -- which for part of his term was under Democratic control -- has confirmed 168 judges to the district and appellate courts. A Democratic-controlled Senate even approved Dennis Shedd, a protégé of former Sen. Strom Thurmond, who ran for president in 1948 on a platform of racial segregation. Civil rights groups had opposed Judge Shedd's nomination. So the president can't credibly complain that he has had trouble getting the judges he wants. But when any president appoints someone who is a judicial extremist, any Senate is duty-bound to contest that choice. Democrats have done so in the case of Mr. Pryor, along with Texas Supreme Court Justice Priscilla Owen, U.S. District Judge Charles Pickering and Miguel Estrada. . . . All five of the current nominees would go to key appeals courts, where most federal law is made. The Democrats are right to keep standing. Full text The San Francisco Chronicle, EDITORIAL (Sept. 14, 2003) Estrada's refusal . . to hand over some of the memos he wrote as an attorney in the solicitor general's office or to answer some pointed questions . . . sped the way to his departure. The handling of Estrada's nomination points to severe problems with the judicial selection process -- where politics, not qualifications, appear to play the pivotal role. The Bush administration has been its own worst enemy, pushing forward a number of unsuitable candidates such as Alabama Attorney General William H. Pryor and Texas Judge Priscilla Owen whose records suggest they cannot separate their ideology from the law. . . . Bush would be wise to end the stalemate by rejecting unworthy candidates and nominating stellar judges who can be supported by members of both parties." Full text The Oregonian, EDITORIAL (Sept. 14, 2003) It's working. Bush has nominated nearly 200 people for federal judge seats. Fully 145 nominees already have sailed quietly through the Senate confirmation process, though most were hand-selected for their conservative outlook. But a few nominations have stalled -- including that of high-profile lawyer Miguel Estrada, who withdrew earlier this month.... It's a sign that the process is running smoothly. If anything, too smoothly. People nominated by Bush but blocked by skeptical Democrats include U.S. District Judge Charles W. Pickering Sr. of Mississippi; Texas Supreme Court Justice Priscilla R. Owen; California Superior Court Judge Carolyn B. Kuhl; Alabama Attorney General Bill Pryor; and Arkansas lawyer James Holmes.... The problem comes when judges are unable to separate personal opinions from professional conduct; when their impartiality about case law isn't reliable. Then the question of judicial temperament looms. Whether conservative or liberal, nominees who put personal zeal over professional restraint have no place on the bench. It's the Senate's job to keep the president's considerable power over the judicial branch in check. If that means a few well-timed filibusters, so be it. As for Bush's blocked nominees,... Pryor was caught in an investigation for his work in GOP fund-raisers.... The other nominees have track records that similarly defy constitutional law or common sense. Bush can do better than this. The president has ... an obligation to pick nominees who will give Americans a fair, impartial hearing. When he doesn't, responsible senators should continue to protest judicial nominees without apology." The New York Times, EDITORIAL (September 10, 2003) Some of the stiffest opposition to Mr. Estrada, who was nominated to the United States Court of Appeals for the District of Columbia Circuit, came from Hispanic leaders, including the Congressional Hispanic Caucus. And while many Democratic senators opposed Mr. Estrada, they have voted to confirm 12 of President Bush's other Hispanic judicial nominees. The Republicans' record is worse. In the Clinton era, they denied confirmation votes to six Hispanic judicial nominees, and delayed others for years. Jorge Rangel, who went 15 months without a hearing on his federal appeals court nomination, wrote to Senate Democrats last week to ask where Republican senators' "cry for diversity on the bench" was when he was forced to withdraw in 1998. Hispanic leaders did not oppose Mr. Estrada because he is Hispanic. Catholic senators like Richard Durbin and Patrick Leahy do not oppose William Pryor, a nominee to the United States Court of Appeals for the 11th Circuit, because he is Catholic. Senators Dianne Feinstein and Barbara Boxer do not oppose Priscilla Owen, a nominee to the United States Court of Appeals for the 5th Circuit, because she is a woman. Mr. Estrada would not answer senators' questions. Mr. Pryor and Ms. Owe[n] have met resistance for their archconservative views. Diversity is not the only issue on which Republicans are not talking straight. During the Clinton administration, prominent Republicans argued that there were too many judges on the District of Columbia Circuit, and opposed Clinton nominees on the grounds that confirming them would be a waste of tax dollars. But now that a Republican president is nominating people like Mr. Estrada to the court, these objections to its size have withered.... The confirmation of federal judges is too important to be treated so cynically. Republican and Democratic senators know what they are fighting over: legitimate disagreements over how to interpret the Constitution and define the role of a federal judge. They owe it to the American people to be honest about their differences." Full textThe Berkshire [MA] Eagle, EDITORIAL (Aug. 5, 2003) Rather than further tie themselves up in knots, Republicans should abandon the anti-Catholic card. While they are it, they should stop embarrassing themselves by claiming Democrats are anti-Hispanic for opposing the nomination of Miguel Estrada to the bench and anti-woman for blocking the judicial nomination of Priscilla Owen. Mr. Estrada is a victim of the White House's refusal to release the records of his actions while working for the administration. Ms. Owen, like Mr. Pryor and court nominee Charles Pickering, for that matter, are under attack because they are unqualified for judicial service. Senate Republicans should instead insist that President Bush send them qualified candidates for the judiciary, rather than fringe rightists designed to appease the president's hard-core constituents. Should this happen, they may be surprised by how easy it is to get them approved." The New York Times, EDITORIAL (August 4, 2003) The Republicans took a similar tack earlier this year when they accused Democrats who opposed Miguel Estrada, a far-right nominee for a D.C.-based federal appeals court, of being anti-Hispanic, and opponents of Priscilla Owen, a far-right nominee for a federal appeals court based in New Orleans, of being anti-woman. In each case the opposition had to do with the nominee's judicial views, and that's true as well with Mr. Pryor. . . . In the Senate debate last week, Mr. Leahy rightly asked why "fair-minded Republican senators" were not standing up to their party's demagogy and "religious McCarthyism." Even senators who support the administration's nominees should be speaking out against the dangerous charges of religious bias being made on their behalf." Full text The Atlanta Journal-Constitution, EDITORIAL (August 4, 2003) Democrats would be remiss in exercising their "advice and consent" responsibility if they did not block Pryor, Owen and Kuhl. All have records of ideological extremism inconsistent with respect for tolerance and diversity. As Alabama attorney general, Pryor has sought to weaken environmental protections, . . . Owen, the Texas Supreme Court justice nominated to the New Orleans-based 5th Circuit, . . . has a lopsided record favoring large corporations. Kuhl's right-wing fervor is best epitomized by her losing argument in the U.S. Supreme Court for the restoration of tax-exempt status to Bob Jones University. That was before the school rescinded its ban on interracial dating. Republicans and Democrats share blame for the rancorous standoff -- one that the president has shown no inclination to ameliorate despite suggestions that he confer with the minority party, as other presidents have done, to seek their advice on his candidates. Meanwhile, Senate Majority Leader Bill Frist is threatening to circumvent the filibuster process on judges-- but as conservative pundit George Will wrote in defense of the filibuster in 1993: "Democracy is trivialized when reduced to simple majoritarianism." The Democrats' filibuster is our only hope that this administration won't pack the courts with judges eager to reverse precedents that reflect the American mainstream." Full text (Registration required) MIAMI HERALD, EDITORIAL (July 31, 2003) In cloture votes this week, the Senate should block the Pryor nomination along with those of three other extremist Bush nominees: Priscilla Owen, Charles Pickering and Miguel Estrada. Rejecting these nominations will send a message to the president that Americans want judges who are in the political mainstream, not extremists and ideologues. The Senate has approved 140 of President Bush's judicial nominations, including Hispanics and Catholics. Those 140 hold generally conservative views as would be expected from Mr. Bush. The difference with these four nominees is that they are on the far-right fringe. Their views are light-years away from the mainstream views of the American majority that our federal judiciary should represent. There are many qualified jurists and legal experts in the United States whose records reflect that broad middle spectrum. It is from this large pool of talent that President Bush should seek future court nominees to keep America's federal court system in accord with its people." Full text (Registration required) Houston Chronicle, EDITORIAL (5/11/03) The problem is not that Owen is "too conservative," as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans. . . . The complaints against Owen's conduct on the bench 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. Some detractors find her demeanor unbecoming of a judge (according to one report, Owen actually turned her back to an attorney arguing before the court). One troubling case cited by Owen critics involved the Ford Motor Co., which lawyers for a paralyzed teenager sued over a seat belt they alleged was faulty. Owen cited problems with where the matter had been litigated in rejecting the trial jury's verdict favoring the teen, but venue was not even a matter the parties had brought up. In another case Owen's opinion allowed now-disgraced Enron to avoid paying millions in school taxes to the Spring Independent School District by choosing its own asset valuation date. The company picked a date on which gas prices were at their lowest. Although an appellate court had made a plausible argument that it was unconstitutional for a state law to give some taxpayers such an unfair advantage over others, Owen's opinion upheld Enron's view. Democrats showed with the recent confirmation of Bush nominee Edward Prado of San Antonio to the 5th Circuit that they don't want to sink all the president's judicial picks. In fact, the Senate has confirmed 124 judges since July of 2001, choosing to filibuster on only two, Owen and Miguel Estrada, Bush's pick for a seat on the U.S. Court of Appeals for the District of Columbia. The public should question why President Bush chooses to put up such ideologically driven nominees. . . . The Democrats' stalling on Owen's nomination is political, to be sure. But it also represents a rational desire to prevent the lifetime appointment of a justice who 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 New York Times, EDITORIAL (5/5/03) Austin American-Statesman, EDITORIAL (4/29/03) Owen is so conservative that she places herself out of the broad mainstream of jurisprudence. She seems all too willing to bend the law to fit her views, rather than the reverse. 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. Owen is being appointed to a lifetime position in the judicial branch of government, not to a post in which her duty is to carry out the will of the president. And given the narrowness of his 2000 election victory, Bush is not in a position to argue that the public has said it wants ultra-conservative judges. If the Senate Democrats invoke their power to filibuster, Owen would be the second judge nominated by Bush to be blocked in such a way. The other is Miguel Estrada, who was nominated to the U.S. Circuit Court of Appeals for the District of Columbia, and who Democrats suspect is a radical, ideological conservative. Democrats are not blindly opposing all of the president's judicial nominees. Many have been confirmed by the Senate, and others have won committee approval without controversy, including Edward Prado of San Antonio, a federal district judge who was nominated to the 5th Circuit. But Owen should not be confirmed." Full text (Registration required) The New York Times, EDITORIAL (4/17/03) At Judge Owen's confirmation hearings, it was abundantly clear that she is far to the right of most Americans and that her ideology drives her decisions. On the Texas Supreme Court, she argued in one case that a minor seeking an abortion could be required to prove that she was awareof the religious objections to abortion. Judge Owen has also consistently ruled against workers, accident victims and victims of discrimination. It is not by chance that the Senate is being asked to confirm someone with these views. The White House has culled the legal profession to find nominees with aggressive conservative agendas. It is asking senators to approve, along with Judge Owen, Carolyn Kuhl, who was a strong supporter of maintaining the tax-exempt status of Bob Jones University, which discriminated against blacks; Jeffrey Sutton, a lawyer who has severely set back the rights of the disabled; and James Leon Holmes, who has compared abortion to the Holocaust. Judge Owen was voted down by the Senate Judiciary Committee last year, but the administration renominated her when Republicans took control. Ignoring the committee's decision is only one in a growing list of ways the White House and its allies have politicized judicial selection. The latest, and most disturbing, move came when former President George Bush held a fund-raiser for a group that will run ads attacking senators who do not fall into lock step behind the administration's nominees. Many senators have stood up to the administration's assault on an independent judiciary, but others have been too silent. Senator Dianne Feinstein, who represents California, one of the nation's most diverse states, should be a stronger voice against nominees like Judge Owen and Judge Kuhl, who have shown disregard for victims of discrimination. Senator Arlen Specter, who comes from Pennsylvania, a state with a proud labor tradition, should be speaking out against nominees like Judge Owen and Deborah Cook, who reflexively favor corporations over the little guy. The filibuster is not a tool to be used lightly. But the Senate has been right to use it against the nomination of Miguel Estrada, who is hiding his views on legal issues. It should do the same to stop the once-rejected Judge Owen, and tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary.
The Boston Globe, EDITORIAL (1/27/2003) The last two elections suggest that many voters have marched to the middle of the road. Federal judges should reflect this moderate mind-set. Instead, Bush is nominating political lightning rods. Among them is US District Judge Charles Pickering of Mississippi, whose nomination was defeated last year by Democrats on the Senate Judiciary Committee. . . This group includes Judge Priscilla Owen of the Texas Supreme Court, who has been nominated to the Fifth Circuit Court of Appeals. She has been described as being too conservative. Senator Patrick Leahy of Vermont, former chairman of the Judiciary Committee, called Owen's record 'too extreme even in the context of the very conservative Texas Supreme Court.' Leahy points to several cases when that court's Republican majority criticized Owen for extreme dissenting opinions, . . . The Senate must be tougher in its scrutiny. These nominees should have a proven ability to protect and promote the progress of justice in America." Capital Times EDITORIAL (1/23/03) Detroit Free Press, EDITORIAL (1/21/03) Although Democrats don't wield much power these days, they do have one potent tool in their political arsenal: the filibuster. This procedural delaying tactic should not be wielded often, lest the minority party look obstructionist. But keeping the courts within the realm of mainstream jurisprudence is a worthy use. Owen was rejected because of her record of hostility toward women's rights, the poor and ordinary citizens who challenge big businesses. By renominating them, President George W. Bush has sent a loud message that he intends to remake the courts to suit his wishes -- or at least please the most extreme conservatives who got him elected. Senate Democrats need to be equally strong in asserting their advice-and-consent privileges. Presidents are allowed to nominate whomever they want. The Senate is there to keep things in check when the executive branch reaches too far. By virtue of his position, Bush is entitled to tilt the courts through his nominees to the federal bench. But that doesn't give him license to jolt justice in a sharply different direction. His nominees look ready to turn their backs on this country's history of condemning discrimination and upholding the rights of its least powerful citizens. In the long run, there may not be a more important area for the Senate to draw the line. Full text L.A. Times, EDITORIAL (1/13/03) San Antonio Express-News, EDITORIAL (01/10/03) The two are Charles Pickering, a Mississippi judge who appears to share U.S. Sen. Trent Lott's racial views, and Texas Supreme Court Judge Priscilla Owen . . . With these misguided nominations, Bush is playing partisan hardball at a time when he should be looking for ways to work with Democrats and unify the nation. With problems in Iraq and North Korea and the continued threat of al-Qaida, this is no time for Democrats and Republicans to be at each other's throats over judicial nominees who were rejected last year for good reasons. Bush's decision to try to push Owen and Pickering through the Republican-controlled Senate was both unwise and baffling. . . . In its own way, the Owen re-nomination is equally problematic. On the Texas Supreme Court, she always voted with a small court minority that consistently tries to bypass the law as written by the Legislature. . . . What a pity to spill so much partisan blood over two nominees who should not be recycled. When Bush was governor of Texas, he had a genius for bipartisanship, based in part on his ability to nominate moderates to important positions. At a time when America urgently needs to be united, we urge Bush to return to his successful Texas strategy. The Washington Post, EDITORIAL, (1/9/03) The president came to town promising to change the tone of debate and to reach across party lines. Now he seems to have settled on a different course. Some of his advisers apparently have concluded that polarizing political fights with Democrats benefit the administration; that ugly combat, even in a losing and not terribly worthy cause, such as the renomination of Judge Pickering, only shores up support among the Republicans' socially conservative Southern base. as a method of governing, all-out war from Day One leaves much to be desired. Full text The Atlanta Journal-Constitution, EDITORIAL (9/9/02) Case in point: Texas Supreme Court Justice Priscilla Owen, rejected last week for the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee because of her record of making law from the bench. The committee made the right decision for the American people. Owen's activist judging has gone so far beyond the statutes enacted by the Texas Legislature that she was even criticized by fellow conservatives on the state Supreme Court, including Alberto Gonzales, who is now Bush's White House counsel. . . . The American people appreciate balanced judging, and thanks to the Senate Judiciary Committee, they're getting it." The New York Times, EDITORIAL (9/4/02) In choosing a nominee for the Fifth Circuit--the powerful federal appeals court for Texas, Mississippi and Louisiana--President Bush has looked to the extreme right wing of the legal profession. Even on Texas' conservative Supreme Court, Justice Owen has distinguished herself as one of the most conservative members. A former lawyer for the oil and gas industry, she reflexively favors manufacturers over consumers, employers over workers and insurers over sick people..." Full text (does require free registration with NYTimes.com) The San Francisco Chronicle, EDITORIAL (7/23/02) The point is, Owen has created a strong record of "rewriting" the law when it does not match her conservative convictions. This is why it is vital that Feinstein reject this nomination." Full text The Los Angeles Times, EDITORIAL (7/23/02) Priscilla Owen is among them...She comes before the Senate Judiciary Committee today to defend a record of indifference to the problems of most Americans. Senators should ask her why..." Full text (does require free registration with LATimes.com) San Antonio Express-News, EDITORIAL (7/21/02) Justice Priscilla Owen is clearly competent, but her record demonstrates a results-oriented streak that belies supporters' claims that she strictly follows the law. Because of Owen's record as a member of the Texas Supreme Court, the Senate Judiciary Committee should reject her nomination to sit on the U.S. 5th Circuit Court of Appeals. . . . opinions she wrote in the parental consent cases show a clear line between strict constructionist judges and activists. Owen, who remains on the state's high court, is an activist. . . . concerns about Owen go to the heart of what makes a good judge. When a nominee has demonstrated a propensity to spin the law to fit philosophical beliefs, it is the Senate's right - and duty - to reject that nominee. . . . During his years as Texas governor, Bush did a masterful job of selecting quality, moderate judges. But his decision to nominate Owen is a disappointment. We urge Bush to take more care in future nominations and return to his previous policy of nominating judges who believe in the law more than any ideological agenda." Full text (Registration required) COMMENTARY Naples Daily News [FL], COLUMN (March 8, 2005) Actually Byrd, a noted scholar of the Senate and its procedures, made an interesting speech opposing the "nuclear option" of cutting off Senate debate on judicial nominees. "Rumor has it there is a plot afoot in the Senate to curtail the right of extended debate in this hallowed chamber, not in accordance with its rules, mind you, but by fiat from the chair," said the elderly Byrd. He is also famed for his magniloquent speaking style, a splendid old-fashioned oratory known to older Americans who had to study rhetoric. Byrd tangentially mentioned Hitler, quoting historian Alan Bullock to make the following point: "Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the state: The correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal." A point worth pausing over. Byrd went on to suggest the "nuclear option" ploy is similar in that it involves the same premise: If you can't win under the rules, you change the rules. Certainly a case of rhetorical overreach, but then, that is a hazard of public speaking. The blogger Wonkette posted an amusing collection of Republican politicians comparing this, that and the other to Nazi Germany -- a ruling on abortion, stem cell research, even the Kyoto protocol. In 2002, former Sen. Phil Gramm of Texas managed to find a tax bill like something "right out of Nazi Germany. I don't understand ... why all of a sudden we are passing laws that sound as if they are right out of Nazi Germany." Rhetorical overreach plagues many: George W. Bush once managed to invoke the tragic memory of 9-11 in aid of a capital gains tax cut. Byrd's really quite thoughtful speech should appeal to conservatives with its emphasis on historical precedent, constitutional responsibilities, and the system of checks and balances. Byrd also made a spirited attack on Franklin D. Roosevelt for his misbegotten plan to "pack" the Supreme Court. All of this was about Bush's decision to renominate 20 of his choices for the federal bench who never got a vote in his first term because of threatened filibusters. For some reason, Republicans have chosen to treat these rebuffs as though they were World War III, accusing Democrats of the dread "obstructionism." Their own record during the Clinton years of knocking off dozens of President Clinton's judicial nominees gives not the slightest pause. The 20 retreads include some real dogs. One of these prizes is William G. Myers III, nominated for a lifetime seat on the U.S. Court of Appeals for the Ninth Circuit. His qualifications consist of having spent most of his adult life as a lobbyist for Western mining, timber and oil companies. Bush named him top lawyer in the Interior Department in 2001, apparently on the grounds that Myers once compared the federal government's management of federal lands to the tyranny of King George III. Another gem is Janice Rogers Brown of California, nominated for the D.C. Court of Appeals, who described the New Deal as "the triumph of our socialist revolution" and praised an infamous line of Supreme Court cases from 1905 to 1937 striking down worker health and safety laws as infringing on the rights of business. (Of course your employer has a right to kill you -- what are you, out of the mainstream?) Still another prize in this package is Claude A. Allen, who believes abortion rights are causing genocide of black people. A supporter of abstinence education, Allen backed the administration's decision to remove information about condoms from the Web site of the Centers for Disease Control. My personal fave is Priscilla Owen of the Texas Supreme Court, who is so far out that Alberto Gonzales once denounced one of her decisions as "an unconscionable act of judicial activism." Then there's William Haynes, principal author and defender of the administration's dubious handling of several torture issues. All in all, a lovely bunch of coconuts, with a collective record showing opposition to human rights, civil rights, abortion rights - pretty much everything but property rights. Go, Byrd." Full text The Los Angeles Times, OP-ED (November 2, 2003) For instance, he nominated Miguel Estrada, a Latino described by co-workers as a right-wing "ideologue." Estrada was forced by firm opposition to withdraw as nominee to the D.C. Circuit Court of Appeals. Justice Janice Rogers Brown, Bush's newest nominee for the prestigious D.C. Circuit, is an African American, a Californian and a woman - but she too is a right-wing conservative who says the court decisions that upheld the New Deal mark "the triumph of our socialist revolution" and believes that age discrimination protections provide no public benefit. Also out of the mainstream are Henry Saad, an Arab American from Michigan, nominated to the 6th Circuit seat; William Pryor, a Catholic picked for the 11th Circuit; and two women, Priscilla Owen (5th Circuit) and Carolyn Kuhl (9th Circuit). In fact, Charles Pickering (5th Circuit) is the only nominee who doesn't fall into any of these categories. . . . [T]his is just plain cynical. Because these candidates don't reflect the ethnic and racial groups they come from and because (in searching high and low for, say, right-wing African Americans) Bush has had to sacrifice quality, Democrats - who have long been the ones speaking out most strongly for diversity - have felt obliged to oppose many of these nominees. Democrats have argued that these appeals court nominees are fringe thinkers who should be withdrawn in favor of moderates so the courts will better reflect mainstream U.S. opinion. Unfortunately, they are talking to themselves. The White House ignores all substantive argument and fires back with name-calling: Opponents to Estrada were bashed by the administration as anti-Latino, just as critics of Pryor are denounced as anti-Catholic. Already, those opposing Brown are being labeled racist and sexist. As a founder of the California Assn. of Black Lawyers, I know this pattern well. It was clearly visible as long ago as the appointment of Justice Clarence Thomas in 1991. And it's dangerous. . . . If the personal factor is considered at all, it should be in relation to substance, so that the nominee reflects the prevalent views of the group. Estrada, for example, was demonstrably hostile to the positions of most Latino organizations. Similarly, very, very few African Americans subscribe to the ultraconservative opinions expressed by Brown. . . . In urging the White House to name moderates so as to end the current rancor, Democrats have completely missed the point. The controversy is the point. Moderate nominees of any race or heritage would generate much less news coverage and therefore many fewer opportunities for the administration to accuse Democrats of prejudice against the nominees' race, gender or religion." Robert L. Harris is a former president of the National Bar Assn. and a founder of the California Assn. of Black Lawyers. Full text (Registration required) SEATTLE POST-INTELLIGENCER, OP-ED (May 14, 2003) The "Willy" here mentioned is William Fletcher, a University of California law professor whose nomination to the 9th U.S. Circuit Court of Appeals by President Clinton was kept in limbo for 2 1/2 years by Senate Republicans. The example of Fletcher, and two long-delayed 9th Circuit nominees out of Seattle, came to mind last week as cable-TV news channels gave President Bush time to fulminate over Senate Democrats' decision to block two of his most controversial appellate court nominees. Delays in confirming nominees Priscilla Owen and Miguel Estrada were a "disgrace," Bush intoned. He decried "obstructionist tactics" that "threaten judicial independence." What is this man so angry about? After all, the Senate has confirmed more than 120 of his judicial nominees. The vacancy rate in the federal court system stands at just 5.7 percent, the lowest in 11 years. By contrast, just a few years back, as many as 10 of the 28 judgeships on the 9th Circuit went vacant as the GOP-controlled Senate held up a Democratic president's nominations. The court, with jurisdiction over nine Western states, had a backlog of more than 600 cases. Could be that Bush is beholden to his political guru. White House political strategist Karl Rove was paid more than $250,000 in 1994 to oversee Owen's campaign for a seat on the Texas Supreme Court. Or the president could be displaying stage anger. Talking up conservative judges is a tried-and-true tactic to get blood and saliva flowing in the right wing of the Republican Party: These elephants never forget and still feel mightily wronged by the Supreme Court confirmation battles of Robert Bork and Clarence Thomas. The real reason, though, could be a characteristic piece of (to use Rove's joke nickname) Bush "strategery." The more this president demands, the more insistent he is, the more he gets. The ordinary citizen ought to tune in to this battle. Basic rights are at stake, from an injured consumer's ability to haul corporations into court, to a citizen's right to due process, to obtaining information from an intensely secretive administration in our capital. On rare occasions when it is covered by our supine and superficial national media, the fight over judicial nominations is depicted as part of the Washington, D.C., "power game" and an example of "hardball." We've yet to see it here. Washington has an outstanding federal bench. Elsewhere, however, conservative judicial activism is very much in vogue. The boy, Willie Searcy, died while awaiting his new trial. In the legal world of Priscilla Owen, the right to life may begin at conception. It seems, however, to end at birth." Houston Chronicle COMMENTARY (3/14/03) There is a common theme in Estrada's and Owen's attempts to get on the circuit court bench. It involves, to put it mildly, evasion and equivocation. Neither wants to say anything of substance that would give senators further reason to vote against them. They hide behind a legal canon forbidding judicial nominees to make specific pledges or promises but that should not be construed to prohibit nominees from discussing general philosophy about issues that could come before them. . . . Owen, whose nomination was defeated last year and who was sent back to the Senate by Bush when Republican took control in January, has a record -- one that shows . . . she is willing to impose her personal views regardless of the law. "I assure you that I do not ever try to achieve a result," Owen told the Judiciary Committee last week, a statement that cannot be sustained in light of her performance in a string of cases that have come before the state Supreme Court." Houston Chronicle, COMMENTARY (7/16/02) Owen, a justice on the Texas Supreme Court, just happens to be a very, very conservative judicial activist who appears willing to attempt to twist the law to fit her very, very conservative political views. . . . Owen has been a conservative activist in overturning jury awards, belittling consumers and driving a hole in the state's freedom of information law." Dallas Fort Worth Star-Telegram, COMMENTARY (7/15/02) Read more about the nomination of Judge Priscilla Owen. Home | Search | Privacy |
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