- The Washington Times - Tuesday, September 10, 2002

The Democrat-controlled Senate Judiciary Committee is implacably committed to shipwrecking President George Bush's judicial nominees guilty of thinking outside leftist ideological orthodoxies on such matters as abortion, race, church-state relations, or federalism.
The Committee's 10-9 rejection last Thursday of Priscilla R. Owen for the U.S. 5th Circuit Court of Appeals epitomizes its doctrinaire opposition to nominees unwilling to parrot its ideological dogmas. Jonathan Swift's benighted Yahoos on the Judiciary Committee have captured the commanding heights of the federal judiciary, and only a Republican-controlled Senate after November can save the third branch from impending brain death.
Nominee Owen's credentials dazzled. She was a seasoned eight-year member of the Texas Supreme Court. She attracted more than 80 percent of popular support in her state supreme court election. The American Bar Association's Committee on the Federal Judiciary, populated by pronounced liberals, unanimously rated Justice Owen "highly qualified," its premier endorsement.
As a law school student, private practitioner, and state supreme court justice, Priscilla Owen excelled like a thoroughbred amongst plow horses.
She thought and wrote with meticulous care and scholarship. Impeccability marked her judicial temperament. And Justice Owen's felicitous defense of her credentials during a televised Judiciary Committee hearing chaired by Sen. Dianne Feinstein, California Democrat, should have convinced all but leftist true believers that the nominee was a judge's judge. Indeed, the committee balked at sending Justice Owen's nomination to the Senate floor precisely because it feared her confirmation by the 100-member upper chamber, especially after Georgia Democrat Zell Miller voiced support for the nominee.
The Judiciary Committee's scorn for intellectual vitality that challenges leftist conventional wisdom harkens back to the Pope's Index Liborum Prohibitorum. The ideologically extreme Democrats will not countenance nominees who have entertained even fleeting doubts over a constitutional right to an abortion, racial or gender preferences, the power of Congress to encroach on traditional state prerogatives on exotic commerce clause theories, or discrimination against religious organizations in the administration of secular programs. President Bush's earlier 5th Circuit nominee, Judge Charles W. Pickering, was axed by the committee for decades-old vagrant remarks suggesting racial insensitivity despite enthusiastic support from grass-roots blacks who praised the nominee's contribution to interracial harmony.
Justice Owen was pushed off the cliff largely because of her carefully reasoned interpretation of a Texas statute enabling minors to demand abortions without notifying a parent or guardian. Justice Owen's Democrat executioners, who probably have neither read nor digested the multiple volumes written by the United States Supreme Court about the abortion rights of minors, insisted her interpretation was wrong and betrayed hostility toward following the high court's abortion decrees.
That smacked of ignorance upbraiding knowledge. Mankind should be thankful that neither Einstein, nor Copernicus, nor Galileo, nor William Harvey had to pass Judiciary Committee scrutiny to expound their revolutionary wisdom.
The United States Supreme Court is not infallible. It desperately needs thoughtful challenges to the intellectual foundations of its opinions to prevent the descent of constitutional law into a petrified forest. The high court has overruled hundreds of precedents, both great and small.
During the six-year span from 1937-1943, a staggering 35 cases were jettisoned amidst cheering from political liberals. As Justice Louis D. Brandeis underscored in Burnet vs. Coronado Oil & Gas Co. (1932), "The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."
The Judiciary Committee's Democrats sermonize that they support "mainstream nominees" to conceal their reactionary opposition to judges who think. Justice Owen was a mainstream nominee to all but the ideologically transfixed. Her overwhelming support from both popular and legal circles reached across ideological boundaries. Judiciary Committee Democrats have celebrated ABA ratings as the gold standard for qualifications; and Justice Owen passed that standard with unanimity. They tacitly conceded Justice Owen would win confirmed if the full Senate voted by killing the nomination within their ideologically extreme enclave.
In sum, if Justice Owen was not "mainstream," then the word has lost any meaning.
What the Committee's Democrats are genuinely seeking is a federal judiciary pledged to ape their narrow ideological convictions. They have felled not only Justice Owen and Judge Pickering by committee deaths, but also a sparkling array of companion Bush nominees,(such as superstars John Roberts, Miguel Estrada and Mike McConnell), by refusing even committee hearings.
All this Judiciary Committee anti-intellectualism portends disaster.
The law is institutionally backwardlooking, and thrives on constant prodding to avoid stagnation. That is why Justice Oliver Wendell Holmes preached that judges are generally naive, need education in the obvious, and habitually cling to an ancient rule from blind imitation of the past.
The Founding Fathers envisioned the Senate confirmation role as a screen against incompetence, cronyism and corruption. By imposing a narrow and extreme ideological litmus test for federal appellate nominees, the Judiciary Committee's Democrats are usurping the president's constitutionally dominant role in appointment process. That worrisome usurpation will end if Republicans capture control of the Senate next November. The fate of enlightened judging is at hand.


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