- The Washington Times - Thursday, May 9, 2002

It is understandable if Priscilla Owen, a justice of the Texas Supreme Court, thinks she has wound up in the wrong queue.

A year ago this week, President Bush nominated her to the U.S. 5th Circuit Court of Appeals. Later that month, James Jeffords bolted the Republican Party, shifting control of the Senate to the Democrats. And guess what? Justice Owen hasn't even had a hearing. Had Mr. Jeffords not quit the GOP, state Justice Owen, a capable nominee unanimously accorded a "well-qualified" rating by the American Bar Association, today would be U.S. Judge Owen.

Justice Owen isn't the only Bush nominee waiting outside the hearing room. She was one of 11 circuit nominees announced on May 9, 2001. Three two of them Democrats chosen as a conciliatory gesture ? have been confirmed. Like Justice Owen, the seven remaining have gone without hearings. So have many circuit nominees named later by Mr. Bush.

Here is the line score: Of the 30 circuit judges Mr. Bush has nominated, just nine have been confirmed. One Charles Pickering, also for the 5th Circuit was rejected in committee. Two have had hearings, and just last week one of them was voted out of committee. The rest wait alongside Justice Owen.

The circuit courts have increasing importance. The district courts try cases, but the circuit courts review their decisions. And because the Supreme Court takes so few cases, the circuits often settle the law for the states within their jurisdiction, which, in the case of the 5th Circuit, are Texas, Mississippi and Louisiana. Like the Supreme Court, the circuits can trend to the judicial right or left, depending on their composition.

Like Mr. Bush, Judiciary Committee Democrats are keenly aware of the circuits' importance. You can see a pattern in the committee's handling of circuit nominees: The ones it regards as more moderate have been confirmed or had hearings, while those it sees as more conservative the largest number have been disapproved (Judge Pickering) or left waiting, like Justice Owen.

Despite or perhaps because of her long wait, she could get a hearing this year. Committee Chairman Patrick Leahy, Vermont Democrat, has promised one, and certainly she should have one. It could prove especially contentious.

Why? Because the 5th Circuit has become the bloody crossroads in the confirmation wars. President Bill Clinton made four nominations to the court, and only one was confirmed. The Republicans then in control of the committee refused to grant hearings to the other three, two of them on grounds they lacked home-state senatorial support. Still angry over that, the Democrats see those seats as rightfully theirs and are loath to have judicial conservatives confirmed to seats once designated for judicial liberals.

The Senate already has confirmed one Bush 5th Circuit nominee Edith Clement Brown. She may fill a confirmation quota of one. Recall that Judge Pickering was felled in committee after a total attack waged by the outside interest groups that work in close concert with committee Democrats.

Those groups already have gone to war on the Owen nomination, her Enron "connections" made into a talking point. In 1994, she received $8,600 in campaign contributions from Enron-related sources. In 1996, she wrote a unanimous opinion siding with Enron, a decision that benefited the company by $225,000. There is nothing here: The contributions to her were fully legal, other justices participating in the case also received Enron contributions, and recusal was neither necessary nor appropriate.

Too friendly to business is the surviving charge, but it is light rifle fire compared to the B-1 bombing that could come. Justice Owen has written in cases asking her court to interpret a statute providing that a girl under 18 must notify her parents before having an abortion unless a court is notified and finds she is mature enough to make the decision apart from her parents. The cases aren't easy because the law is vague. Justice Owen's opinions are defensible and consistent with U.S. Supreme Court holdings.

But defeating any judge not in agreement with the project of maximizing the abortion right has become an undeclared Judiciary Committee goal. The National Abortion Rights Action League already has judged Justice Owen guilty of "the most extreme hostility to reproductive rights" of any Bush nominee.

Justice Owen may get a hearing this year, but it isn't clear that she, not to mention other circuit nominees likewise given hearings, would survive the 10 Democrats who control the committee. The nominees' best hope may lie with hearings held next year after an election that has produced a Republican Senate. That is why the Senate races this fall, including the one in Texas, are as much about the future of the federal judiciary as they are about taxes, energy and the rest.


Terry Eastland is publisher of the Weekly Standard.


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