Take The High Road On Judges, Mr. Biden

Free Congress Foundation ^ | 09-05-02 | John Nowacki

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Subject: fcfnnn090502 Inside: John Nowacki's Commentary: Take The High Road, Mr. Biden

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> Free Congress Foundation's
> Notable News Now
> September 5, 2002
>
> The Free Congress Commentary
> Take The High Road On Judges, Mr. Biden
> By John Nowacki
>
>
> Senator Joseph R. Biden, Jr. is in a difficult position these days.  When
> the Judiciary Committee meets today, the senior senator from Delaware must
> decide whether to allow the full Senate to vote on judicial nominee
> Priscilla Owen.  On one hand, he is under tremendous pressure from liberal
> interest groups to say no.  On the other, his own principles make the case
> for saying yes.
>
> Justice Owen is a member of the Texas Supreme Court, nominated to the Fifth
> Circuit Court of Appeals over 15 months ago.  Mr. Biden's decision will
> determine whether every senator has the opportunity to vote on her
> nomination.  As he noted after the debate and vote on an appeals court judge
> several years ago, nominations require a full Senate vote.
>
> "My reading of the Constitution, though, is the Judiciary Committee is not
> mentioned," he said, adding that the Senate is discussed.  "We only in the
> Judiciary Committee have the right to give advice to the Senate, but it is
> the Senate that gives its advice and consent on judicial nominations . . . .
> But it is not . . . appropriate not to have hearings on [nominees], not to
> bring them to the floor and not to allow a vote."
>
> Nevertheless, interest groups are lobbying him to ignore the Constitution
> and kill her nomination in committee.  That would be a drastic step indeed.
> Not only has he committed himself to upholding the Constitution, but as a
> former chairman of the Judiciary Committee, he should be one of the
> strongest advocates for allowing the full Senate to do its constitutional
> duty.
>
> If Justice Owen can be portrayed as undeserving of confirmation, her
> opponents reason, they might persuade Mr. Biden to deny the Senate a chance
> to vote.  But once again, their argument runs counter to his acknowledged
> responsibility to support and defend the constitutional process.
>
> Even if Mr. Biden decides that she should not be confirmed, allowing her
> nomination to be reported out preserves his right -- and the right of every
> other senator -- to vote yes or no on her confirmation.  There is no
> impediment to his following the Constitution while opposing her nomination
> when it reaches the Senate floor.
>
> Whether he will actually oppose it is an interesting question.  He has
> openly set out his test for lower court nominees, one that he believes most
> senators have used throughout his career.
>
> Does the nominee have the capacity, competence, and temperament for the
> court?  Is she of good character and free of conflicts of interest?  Would
> she faithfully apply the Constitution and Supreme Court precedent?  In
> regard to Justice Owen, the answer each time is yes.
>
> She has earned a unanimous well-qualified rating from the American Bar
> Association -- which evaluates open-mindedness, freedom from bias and
> commitment to equal justice under the law in addition to intellect, judgment
> and experience.  Some of Mr. Biden's Democratic colleagues refer to this
> rating as "the gold standard by which judicial candidates are judged."
>
> She was elected in 1994 to her state's highest court, winning re-election in
> 2000 with 84 percent of the vote.  Her nomination has the support of her
> home state senators, 15 past presidents of the Texas bar and numerous
> colleagues from her years as a judge and a practicing attorney.
>
> Most significantly, she has shown fidelity to the law and U.S. Supreme Court
> precedent.  Several interest groups have criticized and even misrepresented
> her judicial decisions, and in some cases involving Texas's then-new
> parental notification law, she has actually been attacked for following the
> court's lead.
>
> The record shows Justice Owen to be an impartial judge who properly defers
> to the legislature and leaves her personal views at the courthouse door. By
> the senator's established standards, she is a nominee who merits
> confirmation.
>
> This vote is a real test for Mr. Biden.  Will he allow the special interest
> groups from the left to push him along their course, or will he stand as a
> fair-minded liberal who is guided by his conscience and the Constitution?
>
> Earlier this year, he took the easy road, refusing to allow a Senate vote
> for another nominee to the same court -- a decision that did not reflect
> well on his reputation as a plain-talking and principled legislator.
>
> He is in a difficult position, but he does not face a difficult choice.  His
> understanding of the full Senate's role under the Constitution is clear.
> When his name is called today, he should put principle above politics and
> send Justice Owen's nomination on to all of his colleagues.  He may vote for
> her or against her in the end, but as Mr. Biden knows, voting yes in
> committee is the right thing to do.
>
> John Nowacki is Director of Legal Policy at the Free Congress Foundation.  A
> version of this commentary appeared in The Delaware State News on Monday.
>
> Today's FCF News on Demand
>
> Visit http://www.fcfnewsondemand.org to hear these stories:
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