With power shift in Senate, Owen has 2nd chance at federal benchDavid Pasztor, AMERICAN-STATESMAN STAFF
November 7, 2002
The nomination of Texas Supreme Court Justice Priscilla Owen to a federal appeals bench appears destined to resurface as Republicans prepare to take control of the U.S. Senate. Voting 10-9 on straight party lines, the Democratic-controlled Senate Judiciary Committee delivered President Bush a stinging rebuke in early September by rejecting Owen's nomination to the 5th U.S. Circuit Court of Appeals, which handles all federal appeals from Texas, Mississippi and Louisiana.
Bush said he "didn't appreciate it one bit" that the committee squelched a nominee who was not only from his home state, but who also is a personal friend. Leading Republicans vowed to revive Owen's nomination if they won control of the Senate. Now they have. John Cornyn, newly elected to the Senate after making Owen's rejection an issue in his campaign against Democrat Ron Kirk, said Wednesday that he hopes Bush will resubmit Owen's name. "I look forward to voting for her confirmation," Cornyn said. If Owen is elevated, it might open the door for Republican Xavier Rodriguez to return to the Texas Supreme Court.
Sen. Kay Bailey Hutchison, who championed Owen's cause during contentious confirmation hearings, also said she plans to make Owen's reconsideration a priority, right behind homeland security. "We need to empty the pipeline of President Bush's qualified nominees," Hutchison said at a news conference Wednesday. "I talked to (GOP Senate leader) Trent Lott about Priscilla Owen being the first. He feels strongly, as do I, that those who were treated so badly should go first. I have every confidence that Priscilla Owen will be confirmed."
Owen declined to comment about her possible future as a federal judge. The coalition of groups that fought Owen's first bid for the seat, including abortion rights activists and a roster of liberal watchdog groups, is gearing up to oppose her nomination again. The groups cast Owen as an extreme judicial conservative who would erode abortion rights and rule against consumers and labor interests.
But they concede the odds are against them not only in the Owen fight, but in opposing future Bush court nominations as well. "I think there's a good chance that it's not just going to be Owen, but we're going to see a whole string of candidates just like her," said Kae McLaughlin, executive director of the Texas Abortion and Reproductive Rights Action League.
It remains unclear exactly how Owen's nomination might resurface. Technically, her name will remain before the Senate until the Congressional session ends in December. In theory, Republicans could retake control of the Judiciary Committee and revisit her nomination before then. Or, Bush could resubmit Owen's name when the new Congress is seated in January. Bush has not yet said if he would do so. The Alliance for Justice, a Washington-based coalition of public-interest groups that opposed Owen, called on Bush not to push her nomination again.
"We think it would be an incredible insult to the institutional prerogatives of the Senate to try to bring her nomination back up," said Louis Bograd, the alliance's legal director. "It would be a slap in the face."
Should Owen ultimately be confirmed for the appeals bench, it would prolong a game of musical chairs on the Texas Supreme Court that began Wednesday.
Rodriguez, who was appointed to the state's highest civil court in 2001, resigned from the court the day after Steven Wayne Smith was elected to it. Smith had beaten Rodriguez in the GOP primary and will take his seat as soon as election returns are certified. But if Owen leaves the court, Gov. Rick Perry has said he would like to appoint Rodriguez again to fill her vacant seat. Rodriguez, who was unpacking boxes Wednesday at his private law office in San Antonio appeared receptive to the possibility of returning to the bench.
"We're just going to have to see how this plays out," Rodriguez said. "I'd prefer to discuss that with the governor if the time comes."