Texas Supreme Court Justice Priscilla Owen was confirmed to a federal appeals court seat yesterday as Senate Majority Leader Bill Frist declared victory and reminded Democrats that if they “abuse” the judicial filibuster again, he will employ the so-called “nuclear option.”
“I am now hopeful, but wary,” Mr. Frist said of the truce reached Monday night, just hours before he planned to eliminate the judicial filibuster with what he calls the “constitutional option.”
“If nominees receive up-or-down votes and the sword of the filibuster is sheathed, then the Republican leadership can be proud that its focused direction on the constitutional option arrested a dangerous and destructive trend,” Mr. Frist said. “If filibusters again erupt under circumstances other than extraordinary, we will put the constitutional option back on the table and move to implement it.”
Senate Minority Leader Harry Reid, Nevada Democrat, later told reporters he was “very disappointed” to hear Mr. Frist’s warning.
“We’ve got to move on,” he said. “The nuclear option is over.”
Yesterday’s 55-43 vote to confirm Justice Owen to the U.S. Court of Appeals for the 5th Circuit ended a four-year drama that some said threatened to “blow up” the Senate. Democrats and outside liberal groups described her as an anti-woman judicial activist.
“Priscilla Owen has voted against a woman’s right to choose in every abortion-related opinion,” said Eleanor Smeal, president of Feminist Majority Foundation.
In particular, liberals oppose Justice Owen for declining in several cases to allow juveniles to bypass the Texas law requiring that minors notify their parents before undergoing an abortion.
Yesterday’s vote was largely a party-line vote. Sen. Lincoln Chafee of Rhode Island was the only Republican to oppose her.
Two surprising votes came from Democratic Sens. Robert C. Byrd of West Virginia and Mary L. Landrieu of Louisiana. After voting four times since May 2003 to deny Justice Owen a final confirmation vote, they agreed to give her a vote and then voted in support of her nomination.
“I voted four times previously not to invoke cloture on Priscilla Owen, because I respected the right of the Senate to hear further debate,” Mr. Byrd said before the vote. “Having examined these aspects [of her philosophy], as well as her prior record as a justice on the Texas Supreme Court, I shall vote in support of her nomination.”
He also specifically addressed the concerns of some in his party about her abortion rulings.
“I know that some critics assail Justice Owen’s belief that, in certain circumstances, minors should be required to notify their parents prior to obtaining an abortion,” he said. “However, I cannot help but believe that in many, but perhaps not all, cases, young women would do well to seek guidance from their parents or legal guardians, who would have their best interests at heart when these young women are confronted with making such a difficult decision.”
One “no” vote came from Sen. Ken Salazar, Colorado Democrat, who campaigned last year on a promise to oppose the Democratic filibusters against Mr. Bush’s judicial nominees.
Mr. Salazar was among the 14 who crafted the deal to preserve the filibuster but appeared torn as to how he would vote on the final confirmation of Justice Owen.
Sandwiched between Democratic Sens. Barbara Boxer of California and Debbie Stabenow of Michigan in the well of the Senate, Mr. Salazar several times moved his right hand to indicate his vote before letting it drop to his side as one of the women whispered in his ear.
Finally, Mr. Salazar raised his right hand and cast his vote against Justice Owen.
Mr. Frist said that while he was pleased the compromise allowed a vote on Justice Owen, he noted it would not have come if he hadn’t been willing to take the extraordinary measure of banning judicial filibusters.
“Without the constitutional option, Priscilla Owen would never have come to a vote,” he said. “Without the constitutional option, judicial filibusters would have become a standard instrument of minority party policy.”