Saturday, May 14, 2005

Four highly qualified appellate-court nominees, led by Texas Supreme Court Justice Priscilla Owen, have recently emerged from the Senate Judiciary Committee.

The Senate Democratic leadership has formally rejected Senate Majority Leader Bill Frist’s fair-minded compromise, which would guarantee all circuit-court and Supreme Court nominees swift consideration by the Senate Judiciary Committee, regardless of the political party of the president nominating the judges or the party holding majority power in the Senate. The compromise also would have prohibited judicial filibusters , thus guaranteeing each high-level judicial nominee an up-or-down vote following up to 100 hours of debate.

The stage is now set for the long-awaited Senate floor showdown. Mr. Frist is being forced to do what previous Democratic leaders have repeatedly done. In all likelihood, next week he will set in motion a process to change the Senate’s rules by seeking a majority vote to prohibit filibusters against judicial nominees.

Justice Owen, a 10-year veteran of the Texas Supreme Court who first distinguished herself in Texas legal circles by achieving the highest score on the state bar exam, reportedly has been selected by Mr. Frist to be the focus of the filibuster fight. She was first nominated to the U.S. Circuit Court of Appeals for the Fifth District (Texas, Louisiana and Mississippi) more than four years ago. On four occasions during 2003, Democrats sustained a filibuster against Justice Owen.

Readers of this page know that we oppose the outsized role the relatively liberal American Bar Association played for nearly 50 years by rating prospective judicial nominees “well-qualified,” “qualified” or “not qualified.” The ABA lost a great amount of credibility when four members of its evaluation committee absurdly rated Robert Bork “not qualified” for the Supreme Court in 1987. So, we enthusiastically endorsed President Bush’s decision in March 2001 to terminate the ABA’s pre-nomination role in evaluating judges. Immediately, Democratic Sens. Charles Schumer and Patrick Leahy, (Mr. Leahy would become chairman of the Judiciary Committee when Democrats gained majority power in the Senate three months later) wrote to President Bush, stating: “We firmly believe that ending the long-established practice of ABA review would dilute the quality of the federal bench. The process of judicial selection needs more information about the competence and integrity of potential nominees, not less.”

Senate Democrats resuscitated the ABA’s role, with Mr. Leahy stating that he regarded the group’s evaluation as “the gold standard” for evaluating judges. Shortly after the nomination of Justice Owen, the ABA unanimously gave her its highest rating of “well-qualified.”

But in September 2002, when committee Democrats finally got around to voting on the Owen nomination, it was rejected on a 10-9 party-line vote. Justice Owen thus became the first nominee in history who received a unanimous, “well-qualified” rating by the “gold-standard” ABA to be denied a floor vote by the Judiciary Committee. Having been endorsed by Georgia Democratic Sen. Zell Miller, she would almost certainly have won confirmation on the Senate floor.

Precisely two months after the Democrat-controlled Judiciary Committee rejected Justice Owen, voters returned control of the U.S. Senate to Republicans in a midterm congressional election during which President Bush vigorously campaigned against Democratic obstructionism against his circuit-court nominations. In early 2003, the president renominated Justice Owen to the Fifth Circuit. Since then, Democrats have denied her an up-or-down vote on the Senate floor.

Despite Mr. Leahy’s assertion that she was “too extreme for Texas,” Justice Owen was reelected to the Texas Supreme Court in 2000 with 84 percent of the vote after being endorsed by the largest newspapers in Texas’s three biggest cities: the Houston Chronicle, the Dallas Morning News and the San Antonio Express-News. And while NARAL Pro-Choice America has criticized her positions on Texas’s parental-notification law relating to abortions for minors, it is worth noting that Justice Owen is among the 80 percent of Americans who support parental notification.

Four years is long enough. Justice Owen deserves an up-or-down vote, the sooner the better.

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