Four-Year Injustice - Priscilla Owen deserves a vote!

NATIONAL REVIEW ONLINE.COM ^ | MAY 9, 2005 | SENATOR JOHN CORNYN

[CHARLITE]

Four years ago today, President George W. Bush nominated Priscilla Owen to serve on the federal court of appeals. Justice Owen is an extraordinary Texan, an exceptional jurist, and a devoted public servant. Yet, after four years, she is still waiting for an up-or-down vote in the United States Senate. What's more, a partisan minority of senators now demands — for the first time in history — that she must be supported by a supermajority of 60 senators, rather than the constitutional rule and Senate tradition of majority vote. After four years, it is long past time to restore sanity and Senate tradition to our judicial confirmation process.

I know Priscilla personally, because we served together on the Texas supreme court. Throughout her life, she has excelled in virtually everything she has ever done. She was a law-review editor, a top graduate from Baylor Law School at the remarkable age of 23, and the top scorer on the Texas bar exam. She entered the legal profession at a time when relatively few women did, and after a distinguished record in private practice, she reached the pinnacle of the Texas bar — a seat on the Texas supreme court. She was supported by a larger percentage of Texans than any of her colleagues during her last election, after enjoying the endorsement of every major Texas newspaper.

Unsurprisingly, then, the American Bar Association, after careful study, unanimously rated her well qualified to serve on the federal bench — their highest rating.

Unsurprisingly, she enjoys the enthusiastic support of a bipartisan majority of senators.

Yet a partisan minority of senators now insists that Owen may not be confirmed without the support of a supermajority of 60 senators — a demand that is, by their own admission, wholly unprecedented in Senate history. Why? Simple: The case for opposing her is so weak that changing the rules is the only way they can defeat her nomination.

What's more, they know it, too. Before her nomination became caught up in partisan special-interest politics, the top Democrat on the Judiciary Committee predicted that Owen would be swiftly confirmed. On the day of the announcement of the first group of nominees, including Owen, he said he was "encouraged" and that "I know them well enough that I would assume they'll go through all right." Indeed, just a few weeks ago, the Minority Leader announced that Senate Democrats would give Justice Owen an up-or-down vote — albeit only if Republicans agreed to deny the same courtesy to other nominees.

These concessions are understandable, because the case against Owen is unconvincing. For example, Owen is accused of ruling against injured workers, employment discrimination plaintiffs, and other sympathetic parties on a variety of occasions. Never mind, however, that good judges like Justice Owen do their best to follow the law, regardless of which party will win and which will lose. Never mind that many of her criticized rulings were unanimous or near-unanimous decisions of the Texas Supreme Court. Never mind that many of these rulings simply followed federal precedents authored and agreed to even by appointees of Presidents Clinton and Carter, or by other federal judges unanimously confirmed by the United States Senate. Never mind that judges often disagree — especially when a law is ambiguous and requires careful and difficult interpretation.

Justice Owen is also criticized for enforcing a popular Texas law generally requiring parental notification before a minor can obtain an abortion. Her opponents allege that, in one parental-notification case, then-Justice Alberto Gonzales accused her of "judicial activism."

This charge is unpersuasive for at least two reasons. First, judges disagree all the time — that's why we have multi-member courts. U.S. Supreme Court Justice John Paul Stevens once accused Justice Byron White of "judicial activism," while in another opinion he accused Justice Lewis Powell and Sandra Day O'Connor of "judicial activism."

But second, and more importantly, Gonzales did not accuse Owen of judicial activism. Not once did he say that "Justice Owen is guilty of judicial activism." To the contrary, Gonzales never even mentioned her ruling. And he has since testified under oath that he never accused Owen of any such thing. What's more, the author of the parental notification law supports Owen — as does the pro-choice Democrat law professor who was appointed to the Texas supreme court's Advisory Committee to implement that law. In her words, Owen simply "did what good appellate judges do every day. . . . If this is activism, then any judicial interpretation of a statute's terms is judicial activism."

The American people know a controversial ruling when they see one — whether it's the redefinition of marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from the public square — whether it's the elimination of the three-strikes-and-you're out law and other penalties against convicted criminals, or the forced removal of military recruiters from college campuses. Owen's rulings fall nowhere near this category of cases. There is a world of difference between struggling to interpret the ambiguous expressions of a legislature, and refusing to obey a legislature's directives altogether.

The Senate judicial confirmation process has been at times emotional and politically divisive, and that is unfortunate. But all Americans of good faith should at least agree that we need a fair process for selecting judges — with full investigation, full questioning, full debate, and then an up-or-down vote. And all Americans should agree that, although nobody likes to lose, the rules should always be the same, regardless of whether the president is Republican or Democrat. Throughout our nation's more than 200-year history, the constitutional rule and Senate tradition for confirming judges has been majority vote. senators should uphold and restore that tradition — and giving Owen an up-or-down vote, after four years of delay, would be an excellent start.

The Honorable John Cornyn is an U.S. senator from Texas and a member of the Senate Judiciary Committee. He served previously as Texas attorney general and state supreme court justice.

[Christian4Bush]

Makes me want to move to Texas from California BUMP!

[Huck]

Didn't the GOP bottle up Clinton picks in committee in the 90s? I bet the GOP can just cut and paste their whiny speeches from old Dem speeches from the 90s. If they wanted to fix this, they'd act. I think they want to milk it for a while longer, maybe get one more election out of it, because all this bloviating is just pointless.

[Chode]

when is the next window for Recess Appointments???

[jcb8199]

Wondering why you haven't already BUMP...

As the saying goes, "I wasn't born in Texas, but I got here as fast as I could!"

And: "Texas: Where Heaven is a local call"

[CHARLITE]

".......all this bloviating is just pointless.",br>

Really, it's becoming absurd. I agree with you. The average American voter is probably already tuned out, and only some diehards remain to rant and rave about this impasse, but neither party is doing themselves much good. Both of them are earning a fatigued disrespect among voters. In a word, we are exasperated!

[NutCrackerBoy]

The fact that both Parties have escalated the judicial nomination gridlock over the years doesn't make all of their actions equal. Be wary of accepting the equivalencies being passed around by MSMers like Tim Russert, who ambushed the GOP critter on his program. These people are not your friend.

[Huck]

The fact that both Parties have escalated the judicial nomination gridlock used parliamentary tactics to block a floor vote on nominees.

"Escalated the..gridlock?" C'mon. Enough with the euphamisms. Both sides have blocked votes on nominees they didn't like. Why are you so reluctant to say it? I'm guessing it's because you want the GOP not just to prevail on this, but you want them to be in the right. Right?

I see it differently. I don't think the Constitution forbids filibusters of judges any more than it forbids bottling them up in committee. Constitutionally, one is no different than the other. What I want to see is the raw exercise of power by the GOP. I just want them to do it because they can. I don't care what is "right," because neither is "right." They are simply battling, and one side will win.

But if the GOP were going to exercise their power, they'd have done it by now.

[Huck]

There's a hackneyed, somewhat rough old expression that applies to the GOP here:

$hit or get off the pot.

[Huck]

I'll tell you what set me off about this article was the whiny, crybaby title. Injustice? C'mon. Maybe if it was meant as a pun, but really, the GOP made their nominees wait years, too. It's a fact. Playing the victim when you are the majority is really, really lame. It's like when you hear someone say something is "unconscienable." Anytime I hear that word, I know I'm listening to a liar.

[Xenalyte]

Any move toward resolution of the situation would indicate that the Republicans have grown gonads. I have yet to encounter evidence in that regard.

[NutCrackerBoy]

Both sides have blocked votes on nominees they didn't like. Why are you so reluctant to say it? I'm guessing it's because you want the GOP not just to prevail on this, but you want them to be in the right. Right?

Wrong. I want the Senate to do its job, and I want Democrats to pay a political price commensurate to how wrong the crap they are pulling is. Unless you are willing to critically review the history, I ask you not to repeat uncritically the incorrect charge that both sides have done it equally.

Politics were played with Clinton 42's judges, they were delayed, but for the most part eventually got through, with the exception of a flurry at the tail end of Clinton's Presidency. The Senate did the business of the Senate.

Were there very qualified judges then who never saw the light of day? Did the Republicans repeatedly Bork the nominees and distort their records by inventing ridiculous "disqualifying" stuff?

Don't let the Rats off so easy!

[Huck]

Very qualified? Slightly qualified? What's the difference? What are the qualifications, anyway? It's not a case of the Senate doing its job. The Senate is possessed of (by) two political parties. They vie for power, they try to stymie the other's attempts to do things. They try to embarass their opponents. One party has most of the press on its side. The other has Fox, Rush, etc. It all comes down to head count in the end. That's how the game is played. But they try to weaken and distract the others and scare them from acting. The GOP should stop talking and act. Do you realize they've been talking about this for years now? Years!

Here's an old chestnut from February, 2003:

Bush urges Senate to approve Estrada nomination

In it, Bush is said to have "accused Senate Democrats on Tuesday of playing "shameful politics" after they announced they had the votes to block an immediate confirmation vote on his nomination of Miguel Estrada to the federal appeals bench."

Oh my goodness! Shameful politics? Ghastly! Unspeakable! For shame! Blah blah waah waaah.

So, it's been 2+ years. Call me crazy, but that's more than enough time to get it done. Just DO IT!! And make Janice Rogers Brown the first one through!! Or else they are total failures.

[sphinx]

I see it differently. I don't think the Constitution forbids filibusters of judges any more than it forbids bottling them up in committee.

I disagree. The Congress has a committee structure. Most of the serious work is done in committee. On nominations, the serious congressional oversight is done in committee. If the president sends up a bad or otherwise controversial nomination, that's the place to stop it.

Remember, to "bottle it up in committee" requires that you have a majority of the committee disposed to do so. A MAJORITY. You can't filibuster in committee. You have to have the votes.

There is a clear distinction to be made between killing a nomination -- or indefinitely postponing it, which amounts to the same thing -- by majority vote in committee and, on the other hand, blocking it through a minority filibuster on the floor.

I was frustrated, but had no procedural objection, when the Democrats running the Judiciary Committee shut down Presidents Reagan and Bush's nominations prior to the 1988 and 1992 elections. They were simply holding those seats open, hoping a Democrat would get a chance to fill them. Nor is there a procedural objection to a Republican-controlled Judiciary Committee turning the tables. In all these cases, those doing the "obstructing" had a majority of the votes in committee. The 'rats are now trying to equate this with a filibuster on the floor of nominees who enjoy majority support both in committee and the full Senate.

Not so.

[Huck]

The Congress has a committee structure. Most of the serious work is done in committee. On nominations, the serious congressional oversight is done in committee. If the president sends up a bad or otherwise controversial nomination, that's the place to stop it.

There's nothing in the Constitution about committees. I think it's totally up to them to be serious, non-serious, or whatever. The Senate rules its own affairs. My point is simply that you can't on the one hand say nominees deserve an up or down vote on the full Senate, and on the other hand block up or down votes in committee by not even considering the nominees. It's a joke.

Remember, to "bottle it up in committee" requires that you have a majority of the committee disposed to do so.

So on the one hand, the Constitution supposedly requires a simple majority of the Senate to confirm, making a mere 41 senator blockade a travesty of justice, yet 10 senators in a committee is democracy in action? C'mon. Why kid yourself? I don't believe the Constitution requires the Senate to confirm one way or the other. But you can't say that 41 senators blocking a nominee is wrong, but 10 blocking one is right. They are both examples of senators using available tactics to get their way. Nothing more.

There is a clear distinction to be made between killing a nomination -- or indefinitely postponing it, which amounts to the same thing -- by majority vote in committee and, on the other hand, blocking it through a minority filibuster on the floor.

LOL. I love all the euphamisms. "Postponing indefinitely" is substantively different from unlimited debate? I think not. In both cases, a minority of senators use senate rules to block a full vote. You can't believe the constitution requires an up or down vote of the full senate on the one hand, and say a committee majority of 10 can block one on the other. I think both the committee block and the filibuster are permitted. The GOP are either suckers or playing us for suckers by not simply acting, and Rush and Hannity and the others are all out to lunch crying moral outrage instead of just flexing the old muscles and taking what we've earned at the ballot box. If they don't come through, they'll all pay a price.

You can go on with the talking points all you want. "Enjoy majority support", blah blah. You watch. Filibuster of nominees will never ever be ruled unconstitutional. Ever. We're not talking about morality here. We're not even talking about fairness. We're just talking about what's allowed and what's not. What the dems are doing is allowed. The GOP can stop it too, simply by changing the rules. Why they haven't done it in the last 2 years is beyond me. Don't you think two years is long enough to wait for action? Not so.