Karl Rove's Legal Tricks
By John Nichols
July 3, 2002
This article appeared in the July 22, 2002 edition of The Nation.
When Texas Supreme Court Justice Priscilla Owen comes before the Senate Judiciary Committee for the hearing on her nomination to the Court of Appeals for the Fifth Circuit, she will face an unprecedented level of criticism from individuals and organizations familiar with her record of extreme right-wing judicial activism. The noisiest of these complaints is unlikely, however, to rival the loud critique offered by one of her fellow justices on the state court.
In 2000, when the Texas high court rejected one of many attempts by Owen to prevent a young woman from obtaining an abortion without parental consent, one of the justices who formed the majority felt it was necessary to explicitly condemn Owen's effort to thwart the clear intent of the law. To follow Owen's lead, the justice declared, "would be an unconscionable act of judicial activism."
The Texas justice who identified Owen as a radical jurist because of her willingness to rewrite laws in order to achieve results never intended by legislators, no longer serves on the state court. He has a new job--as President George W. Bush's in-house lawyer. That means that as the Senate Judiciary Committee prepares for a high-stakes hearing on Owen's nomination to a place on the second-highest rung of the federal judiciary, White House counsel Alberto Gonzales finds himself in the uncomfortable position of having to sing the praises of a woman he knows from personal experience to be a right-wing radical.
How did Gonzales, who as White House counsel heads the Bush Administration's screening committee on judicial appointments, wind up on the cheerleading squad for an appeals court nominee whose extremism he scored barely two years ago? That's easy. Gonzales is not in charge on this one. "Owen," explains Craig McDonald, director of the nonpartisan group Texans for Public Justice, "is a Karl Rove special."
Rove, the political Svengali who ran George W. Bush's presidential campaign and parlayed that experience into a taxpayer-funded job as White House senior adviser, has orchestrated Owen's rapid rise ever since he plucked her from a gig as an undistinguished hired gun for Transcontinental Gas Pipe Line and other energy firms to make her his pet judicial candidate. Back in 1994 the man whom Lone Star pols still refer to as "Bush's brain" wanted to make the state's top court politically friendly for the man he was about to make governor. Owen seemed suitably pliable, and with Rove guiding her campaign, the political unknown who in sixteen years as a corporate lawyer was the sole counsel on only four cases that were tried to a verdict was suddenly a Texas Supreme Court justice. Now Rove is determined to place his protégée on one of the most influential appeals court benches in the land.
This confirmation crusade is not about Owen, who has never been anything more than a political pawn for the nation's premier GOP operative. It's not even about Rove's desire to exact revenge for the Senate Judiciary Committee's rejection of Mississippi Judge Charles Pickering's nomination to serve on the Fifth Circuit. Rather, Rove is working to win the fight to confirm Owen in order to send a powerful signal to movement conservatives about this Administration's determination to pack the courts with judicial activists who are willing to challenge antidiscrimination laws, upset basic protections for workers and consumers, and, above all, build a judicial infrastructure that will eventually overturn abortion rights. "Clearly," says McDonald, "Rove picked her as a favor to the right wing because she is the darling of the right wing."
Satisfying the far right--especially the fundamentalist right, for whom banning abortion remains priority number one--is Rove's special mission. Speaking in March to what he thought was a closed-door meeting of the Family Research Council, now the most influential Christian conservative activist group in the land, Rove preached about how the Administration and Republicans in Congress are "creating a culture of life" with legislation such as the House-passed Born-Alive Infants Protection Act. But, Rove said, the fundamental fight is for control of the courts. "We need to find ways to win the war," he told 300 of the nation's most determined abortion foes. "This is a gigantic war with a whole series of battles that need to be fought."
The next battle is likely to be carried out on behalf of Owen, who "exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named," according to Kate Michelman, president of the National Abortion and Reproductive Rights Action League. Placing Owen on an appeals court that is already one of the most conservative in the land, Michelman argues, could have a devastating impact on the right to choose in Southern states, where that right is already under assault. Antiabortion activists effectively share Michelman's views: In an action alert urging members to make calls on Owen's behalf to Pennsylvania Republican Senator Arlen Specter, a supporter of abortion rights who sits on the Judiciary Committee, the Pennsylvania Pro-Life Federation said of her: "At least one of [Bush's] appointments has already faced the abortion issue as a judge and ruled for the pro-life side."
For the Bush team, which always worries about its right flank, the coming fight over Owen's nomination offers an opportunity to energize right-wing troops for the US Supreme Court nomination wars--where the Administration will seek to upset the Court's prochoice majority--which are as close as Chief Justice William Rehnquist's next visit to his back doctor; for the 2002 Senate races that will determine the partisan balance in Washington; and for the 2004 re-election campaign, which is the continual obsession of the Bush team. Essential to all of Rove's calculations is a plan to energize the religious right. Within Republican circles, Rove quietly expresses frustration with the fact that 4 million Americans who identify themselves as Christian fundamentalists, evangelicals or Pentecostals did not vote in 2000. "We may have failed to motivate them," grumbles Rove. He has heard the message of conservative activists like Gary Bauer and Focus on the Family's James Dobson, who say that the battle to shape federal courts willing to overturn the 1973 Roe v. Wade decision legalizing abortion is what their constituents care about.
Ever since Bush's election, religious right activists have been busy developing their capacity to wage judicial confirmation fights, preparing for what Dobson refers to as the "critical moment" when a Supreme Court opening occurs. Asserting that the battles over nominations are bringing on a "watershed moment in American History," the Christian Coalition is stepping up activism on judicial selection issues. The Free Congress Foundation is developing files on Senate Democrats with an eye toward using their own statements about GOP delays in filling judicial vacancies during the Clinton years against them. Concerned Women for America, a 500,000-member social policy powerhouse, recently made Tom Jipping--the right's ablest analyst of confirmation fights--its "senior fellow in legal studies." And Jipping's spin is now regularly echoed, often down to the exact phrasing, on the Wall Street Journal editorial page, in the pages of conservative publications such as National Review and Human Events, and on radio personality Rush Limbaugh's nationally syndicated program.
Conscious of the religious right's intense interest in the shape of the federal judiciary, Rove has for some time been willing to clear his calendar--easily one of the most packed in Washington--in order to attend meetings of the White House judicial selection task force. His presence is just one indication of the Bush Administration's willingness to politicize the judicial selection process to a greater extent than any previous administration. Dispensing with long-established bipartisan approaches, the White House ended the practice of having the American Bar Association screen potential nominees, began withholding documents from the Senate Judiciary Committee and transformed the White House into a command center for plotting to turn nomination fights into political dynamite. At GOP fundraising events, President Bush now repeats the mantra, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate."
To that end, Rove has begun holding regular nomination and confirmation strategy sessions with key senators, GOP operatives from around the country and conservative interest groups. Party activists and campaign contributors have been asked to join the White House in ramping up efforts to defeat Democratic senators who oppose Bush's judicial nominees. After Rove and Vice President Dick Cheney went to Capitol Hill for a closed-door meeting with Senate Republicans, a key Judiciary Committee member, Jeff Sessions, said, "The White House, I'm convinced, is confident and bullish and determined to push this issue, as we are in the Senate."
On Capitol Hill, Rove is working not just with senators but also with members of the House of Representatives. He helped coordinate a May press conference at which two dozen Republican senators--including supposed moderates such as Maine's Susan Collins, who showed up wearing a "Remember Pickering" sticker--took turns accusing Democrats of politicizing the confirmation process. Rove has also forged an alliance with US Representative Thomas Davis of Virginia, the chair of the National Republican Congressional Committee, to get GOP members of the House to build home-state pressure on Judiciary Committee Democrats and to use the concerns about confirmation fights to gin up grassroots activism on behalf of Republican candidates. While polls show Americans in general rate judicial confirmation fights low on their list of concerns, GOP pollster Whit Ayres says, "It's potentially a very significant campaign issue, particularly in generating intensity among Republican voters." That may be even more true now that a June decision by the Ninth Circuit Court of Appeals to prohibit required recitation of the Pledge of Allegiance--because of the "one nation under God" line--is being spun by GOP pols as a new reason to "take back the courts."
Rove's most serious work is with the conservative faithful, who he believes can be a counterweight to the coalition of progressive groups that scored a surprising win in their push to prevent the confirmation of Pickering, an old-school Southern conservative. On the very day that the Judiciary Committee rejected Pickering for a place on the court of last resort for most federal cases coming out of Mississippi, Louisiana and Texas, Rove mourned Pickering's defeat as a "judicial lynching" before a Family Research Council gathering and promised revenge. And what sweeter revenge could there be than placing Owen--who is even more conservative than Pickering and, at age 47, able to make much more of a lifetime appointment than the 65-year-old Mississippian--on the Fifth Circuit bench?
On one of the nation's most conservative state courts, Owen is part of a militant minority that argues that the court has not veered far enough right. She has written or joined eighty-seven dissents from court decisions she deemed insufficiently activist in scope and character. Her judicial advocacy has taken many forms--from active support for curtailing access to public records, to backing moves to undermine the role and authority of civil juries, to her persistent efforts to ease restrictions on business. On a court with an exceptionally well documented pro-business bias--a poll conducted by the court itself found that 83 percent of the Texas public, 79 percent of Texas lawyers and 48 percent of Texas judges believe campaign contributions play a significant role in determining the court's stance on issues of interest to donors--Owen has distinguished herself as a slavish defender of corporations. "Mention her name and people say, 'Oh, Judge Enron,'" notes Nan Aron, who heads the Washington-based Alliance for Justice. "If you were looking for a judge whose record illustrates the hold that Enron established over state courts, she would be a leading contender."
The recipient of $8,600 in campaign contributions from Enron's political action committee and key executives, including a $1,000 check from Enron CEO Ken Lay, Owen wrote a 1996 Texas Supreme Court decision that allowed Enron to avoid paying $224,989 in school taxes. It may be unfair to suggest that Owen gave Enron special treatment, however, since she sided with her corporate donors in more than 80 percent of the cases in which she participated--a notably higher ratio than the court as a whole. Owen is a "business can do no wrong" judge--even if that means twisting the law in absurd directions. When the court majority, in a relatively rare affront to a land developer, overturned a state law written specifically to exempt a single developer--who happened to be an Owen political contributor--from Austin's water quality standards, she objected so vociferously that the majority opinion concluded: "Most of Justice Owen's dissent is nothing more than inflammatory rhetoric and thus merits no response."
Perhaps the most troubling characteristic of Owen's pro-business record is the determination with which she has led fights to erect barriers that prevent injured consumers from recovering damages from corporations, that restrict the ability of civil juries to side with plaintiffs who sue corporations and that undermine antidiscrimination protections--particularly for women. Owen dissented from a ruling that upheld a jury verdict awarding a woman $160,000 in damages from a vacuum-cleaner sales company after she was raped by one of the firm's door-to-door salesmen; Owen argued that it was unreasonable to have expected the corporation to do the background check that would have revealed the man's previous arrest for indecency with a child.
After Owen was nominated for the Fifth Circuit bench, groups including the Texas AFL-CIO, the Texas Civil Rights Project, the Women's Health and Family Planning Association of Texas and the National Council of Jewish Women sent a letter to President Bush that stated in part: "Justice Owen's activism betrays a judicial philosophy at odds with your own stated goal of nominating judges who will interpret rather than write the law." In a letter to Senate Judiciary Committee chair Patrick Leahy, a prominent Houston attorney who is board certified in civil appellate law wrote: "Justice Owen is the type of judge who can ignore facts--when it helps corporations to do so--yet rail against the failure of her fellow Texas Supreme Court justices to pay more attention to the facts when she wants the court to stop a minor from getting an abortion."
Again and again, the conversation about Owen circles back to abortion. It is on this issue, above all others, that she has distanced herself even from fellow conservatives. In every decision she has written on this issue, she has argued against a woman's right to choose. In a dozen "Jane Doe" cases in which the court was asked to allow a pregnant teenager to bypass the state's parental notification requirements and receive an abortion, Owen voted every time to deny the bypass. When lawyers for a college-bound teenager who was in her fifteenth week of pregnancy--and who had already endured more than a month of legal delays--asked that the high court expedite action on the high school senior's request for permission to bypass the parental notification requirement, the court majority quickly granted the bypass. Owen wrote a dissent that asked: "Why then the rush to judgment?"
"We're going to hear people complaining that Justice Owen is being attacked unfairly by individuals and groups that raise questions about her approach to abortion issues," says Sarah Wheat of the Texas Abortion and Reproductive Rights Action League. "But Justice Owen is the one who has made abortion an issue." Noting the nominee's activist record, Wheat adds, "Senators have a responsibility to determine whether federal court nominees can be trusted to uphold the law."
When the Judiciary Committee holds its hearing on Owen, perhaps as early as this month, some Democratic senators are certain to raise concerns. But committee members are already feeling intense pressure from Bush supporters. The Vermont Republican Party is attacking Leahy for creating a "judicial crisis" with his failure to advance the Owen nomination, while the Traditional Values Coalition is attacking him nationally as "an out-of-control chairman leading an out-of-control committee in a time of war." Some Judiciary Committee members, such as New York Democrat Chuck Schumer--who has complained about the Administration's attempt to "stack the nation's bench with right-wing ideologues"--have sent clear signals that they are willing to reject nominees who are not "mainstream" jurists. But there are no guarantees that the committee's Democratic majority will follow Schumer's standard. Some prochoice Democrats, such as Wisconsin Democrat Russ Feingold and North Carolina's John Edwards, have expressed reservations about rejecting nominees on ideological grounds.
Veteran observers of nomination fights say that the Judiciary Committee vote on Owen's nomination could set the parameters not just for future appeals court nominations and confirmations but for the Supreme Court nomination clashes. With the rejection of Pickering, Democrats on the committee signaled that they were willing to block the nomination of a judge with a troubling record of racial insensitivity. Now the question is whether the committee will take into account other forms of extremism--on issues such as workplace discrimination, corporate responsibility and, above all, the right to choose.
Texan Craig McDonald sees it as a worthy battle. "You hear talk about whether this judicial nomination or that judicial nomination deserves to be more controversial," he says. "I would just say that as far as those of us who have watched Priscilla Owen and Karl Rove and George W. Bush for a lot of years are concerned, this is the one that deserves to be controversial." McDonald adds that "the Owen nomination is not a Texas fight or a Fifth Circuit fight. This is really a struggle to determine whether a political operative, Karl Rove, and his crew are going to determine the makeup of our federal courts."