Senate Majority Leader Bill Frist plans for Texas Supreme Court Justice Priscilla Owen to be the judicial nomination on which he uses the “nuclear option” against Democratic filibusters later this month, according to Republicans familiar with his plans.
Justice Owen, first nominated to the 5th U.S. Circuit Court of Appeals four years ago yesterday, has often been seen as the most likely nominee to be pushed though. And when Mr. Frist, Tennessee Republican, made his final offer to Democrats last month to avoid a showdown, he mentioned only one nominee: Justice Owen.
The Republican sources, both on and off Capitol Hill, say the choice of Justice Owen for the precedent-setting vote is based in part on the political calculation that she is a sure winner and, as one source said, “a great face” for this issue.
She has impeccable academic credentials, received the highest rating from the American Bar Association and is supported by both Republicans and Democrats who know her.
“She’s very intellectually honest,” said Judge Mary Sean O’Reilly, a Texas Democrat who has known Justice Owen for more than 10 years. “She has an uncommon ability. She just gets it completely.”
After graduating near the top of her law school class, Justice Owen earned the highest score in the state on the December 1977 Texas bar exam. In 2000, Justice Owen won re-election to the Texas Supreme Court with 84 percent of the vote — the highest of any justice running in the state that year.
But most appealing, Republicans say, is that the very cases for which Justice Owen has been most strenuously attacked are rulings that are overwhelmingly popular with American voters.
Democrats’ primary line against Justice Owen has been several cases in which she argued that the teenagers involved were not mature enough to bypass a Texas law requiring them to notify a parent before having an abortion.
“Her record to date is not only predictive of a judge who is personally anti-choice, but one who is willing to rewrite the law in accordance with those beliefs,” said a position statement released by NARAL Pro-Choice America. Senate Democrats then went after her, describing her as “far outside the mainstream.”
Yet polls show overwhelming support for laws requiring minors to get permission from a parent before getting an abortion. That support is even higher for laws that only require notification.
Justice Owen has been approved twice by the Senate Judiciary Committee. Both times, all panel Democrats opposed her. She has majority support by the full Senate, but a minority group of Democrats has voted four times to prevent her from getting an up-or-down vote on the floor.
Also coming to her defense are Texas Democrats who know her.
“They don’t know the woman. They’ve made no effort to get to know her, and they’re not treating her fairly,” former Texas Supreme Court Justice John Hill said of his fellow Democrats in the Senate.
Justice Hill, who admonished senators on both sides of the aisle for maligning judicial picks, said the portrayal isn’t “the Priscilla Owen I know.”
“She’s a conservative person and her view of the law is probably from a conservative orientation, just like a liberal judge will decide cases from a liberal orientation,” he said. “But she tries to follow the law as it’s been decided or as it’s been interpreted. That’s just been a bad rap against her.”
Republicans were particularly outraged when Sen. Edward M. Kennedy, Massachusetts Democrat and a member of the Judiciary Committee, referred to Justice Owen and other Bush nominees as “neanderthal.”
“Ted Kennedy doesn’t know her,” said Darrell E. Jordan, a Republican and a former president of the Texas Bar Association.
“Anyway, didn’t Ted Kennedy have to cheat to get out of law school?” he said, referring to Mr. Kennedy’s 1951 expulsion from Harvard for cheating on an undergraduate Spanish exam.
Judge O’Reilly, the Texas Democrat, wasn’t as hard on Mr. Kennedy, but called his description “unfair.”
“She’s a very thoughtful and studied woman,” she said. “Sure, she’s a conservative, but she’s the opposite of neanderthal.”