Tuesday, May 3, 2005

Who will be the judge -- or judges -- Republicans send to the Senate floor for confirmation to trigger what they call the nuclear option, voting the Senate's 218-year-old filibuster rule out of existence? There are indications that Priscilla Owen will emerge as the public face of what's likely to be a wildly contentious battle that poses serious political risks for both parties.

The woman who could detonate the "nuclear option"

By Eric Boehlert, Salon.
May 3, 2005

With the White House signaling its intention to force a showdown over a handful of stalled judicial nominees, the question is no longer if it will happen but when, and with which nominees as first up. Who will be the judge -- or judges -- Republicans send to the Senate floor for confirmation to trigger what they call the nuclear option, voting the Senate's 218-year-old filibuster rule out of existence?

There are indications that Priscilla Owen will emerge as the public face of what's likely to be a wildly contentious battle that poses serious political risks for both parties. Senate Majority Leader Bill Frist singled out Owen for praise during his controversial videotaped appearance at the so-called Justice Sunday rally on April 25. And on April 28 Frist again highlighted Owen's plight as a stalled judicial nominee.

The White House has certainly shown unusual dedication to Owen's nomination. Since being chosen in 2001 as one of Bush's original slate of federal nominees, Owen, a justice on the Texas Supreme Court, has been unable to gain any support among Democrats, who uniformly reject her as an ideologue who tries to create law from the bench.

More troubling for her nomination is that when he was Owen's colleague as a justice on the Texas Supreme Court, Attorney General Alberto Gonzales accused her of trying to implement "an unconscionable act of judicial activism." The charge came during a heated abortion ruling in which Owen tried to make the burden for a minor even more onerous than the Texas Legislature intended. Time and again while serving with Owen, Gonzales admonished her for straying too far from the clear intent of Texas statutes. Today, however, Gonzales praises Owen as "superbly qualified," while her supporters try valiantly -- and at times imaginatively -- to explain away the damning "judicial activism" description.

But the Republicans' use of an allegedly activist judge as a battering ram in their campaign against judicial activism is just one of many layers of irony that surround Owen's nomination.

In another, Republicans complain bitterly that Bush's judges are not getting fair hearings, yet Owen is the first nominee in Senate history to be given a hearing, to be rejected by the Judiciary Committee, and then to be renominated to the federal bench by the president.

What's more, the opening on the 5th Circuit for which Bush nominated Owen exists only because Republicans for years refused to hold up-or-down votes on three judges nominated separately by President Clinton. Yet now Republicans are demanding an up-or-down vote on Owen.

"It's a house of mirrors," says Craig McDonald, director of Texans for Public Justice, a nonprofit corporate watchdog group that opposes the Owen nomination.

Paul Rosenzweig, a senior fellow at the conservative Heritage Foundation, dismisses the attacks on Owen. "She's well within the mainstream of judicial thinking. But the merits of her views are not driving this debate. For instance, I can't see a fig's worth of difference between her opinion's or Jeffery Sutton's on the 6th Circuit." (Sutton is one of Bush's nominees who was confirmed with the support of Democrats.)

Of course, as some observers have noted, the oncoming Senate showdown isn't just about Owen or any of the other stalled nominations. It's about U.S. Chief Justice William Rehnquist -- specifically, who will replace him when he retires as expected this spring or summer. The White House wants the filibuster rule off the table so it can nominate and -- with 55 votes in the Senate -- confirm virtually whomever it wants for that key post.

"My guess is that it's between Antonin Scalia and Clarence Thomas, and Thomas has the edge with Bush," says Jonathan Turley, a professor at Georgetown University School of Law, referring to the U.S. Supreme Court's two most conservative members. "So ultimately, this filibuster vote will be about Thomas. If the filibuster rule is not defeated, Thomas will never see the inside of the chief justice's chamber."

Owen may soon get the spotlight in the filibuster showdown. It's a star turn that seemed unimaginable just 11 years ago. Prior to being elected to the Texas Supreme Court in 1994 (Karl Rove served as her $250,000 campaign consultant), Owen practiced commercial litigation in Houston for 17 years, arguing one federal appellate case and one state appellate case and writing the briefs for one other state court appeal. According to the Texas Lawyer newspaper, Owen had toiled in "legal obscurity."

"She was a second-tier oil and gas litigator," McDonald says.

The American Bar Association rated Owen well qualified, but she received much lower marks from members of her local Houston Bar Association. According to its 2003 survey of Texas jurists, the most recent poll available from the association, just 43 percent labeled her work "outstanding," and 47 percent thought her performance on the bench was "poor." Hers was the highest "poor" rating of any of the justices on the all-Republican Texas Supreme Court. Interestingly, Owen received her lowest marks in response to the question asking whether she was "impartial and open-minded with respect to determining the legal issues."

"We're not talking about a jurist who's widely respected," Turley says. He supports nine of the 12 Bush nominees whom Democrats have balked at confirming. Owen is not among them. "She's a low-quality appointment," Turley says. "There's no reason why, on the merits, she'd be elevated to the federal bench. I could think of two dozen very conservative judges who could contribute more."

The Houston Chronicle concluded that Owen is "less interested in impartially interpreting the law than in pushing an agenda."

Editorial page writers might be dismissed as natural adversaries of Owen's. But between 1999 and 2000, the person who most effectively chronicled the judge's aggressive judicial activism while she was ensconced in the Texas court's ultraconservative faction and dissented on dozens of cases decided by the all-Republican court was none other than Attorney General Gonzales.

As the liberal advocacy group People for the American Way has documented, in the span of less than two years then-Justice Gonzales singled out Owen's dissents 11 times, accusing her of ignoring the legislative intent of laws and instead struggling to manufacture an outcome. "We're going to let Alberto Gonzales be our best witness," says Ralph Neas, president and CEO of the advocacy group.

In several decisions concerning Texas' Parental Notification Act, the Gonzales-led majority rejected the views of Owen and the other dissenters who regularly tried to make it harder for pregnant girls to obtain what's known in Texas as a "judicial bypass," meaning they didn't have to inform their parents before having an abortion. The majority scolded Owen, insisting that judges "cannot ignore the statute or the record," or try to create new law.

In a harmful-product case, Gonzales wrote that Owen's dissent (in favor of the manufacturer) would have required the court to act improperly and "judicially amend" the law.

In a wrongful-termination case, the Gonzales majority, which found in favor of a fired employee, criticized Owen's dissent, saying it "defies the Legislature's clear and express limits on our jurisdiction," adding, "We cannot simply ignore the legislative limits on our jurisdiction."

When not specifically accusing Owen of judicial activism, Gonzales and other members of the majority were dissing her legal thinking, waving off one dissent as "nothing more than inflammatory rhetoric and thus merits no response."

But it was Gonzales' now infamous putdown accusing Owen of "an unconscionable act of judicial activism" that has hung like an anchor around the judge's neck. The reprimand came in yet another parental notification case, a string of which dominated Texas Supreme Court headlines during its 2000 session. Once again, Owen in her dissent felt the girl in the case needed to do more to obtain a judicial bypass, saying she didn't think the minor had been adequately informed about the alternatives to abortion. (In a previous opinion, she had urged that a girl be required to show an understanding of the "philosophic, moral, social and religious arguments that can be brought to bear" before receiving a bypass, despite the fact Texas law simply required that minors be "mature and sufficiently well informed" about abortion.)

In its ruling in the more recent case, the all-Republican majority took time to lecture the dissenters, including Owen, regarding the proper role of judges, particularly with regard to emotional issues such as abortion. They emphasized, "As judges, we cannot ignore the statute or the record before us" -- the clear implication being that Owen had tried to do just that.

Additionally, Gonzales wrote a separate concurring opinion in which he criticized the far-right dissent for suggesting a "narrow construction" of the bypass provision that was nowhere to be found in Texas law. According to Gonzales, "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."

When Bush nominated Owen in 2001, critics latched on to the language used by Gonzales, who graciously tried to downplay it but never denied that Owen was his intended target. By the time of her first Senate confirmation hearing in 2002, however, Republicans had come up with an alternative (and convenient) explanation. Sen. Orin Hatch, R-Utah, condemned the use of the quote, suggesting that "someone should do a story about how often this little shibboleth has been repeated in the press and in several Web sites of the professional smear groups." Said Hatch: "The problem with it is that it isn't true. Justice Gonzales was not referring to Justice Owen's dissent but rather to the dissent of another colleague in the same case."

Hatch claimed that Gonzales' attack on judicial activism was directed at Justice Nathan Hecht, far and away the most conservative member of the Texas Supreme Court, who wrote vitriolic dissents throughout the Parental Notification Act saga. Writing in the Weekly Standard in July 2002, its publisher, Terry Eastland, took the same tack as Hatch, insisting that liberal groups' "anti-Owen reading of Justice Gonzales' words in In re Jane Doe is wrong." The real target, according to Eastland, was Hecht.

However, the key passage of Gonzales' concurring opinion begins, "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof" (emphasis added). The use of the plural "opinions" makes it clear Gonzales was not just referring to Hecht.

More recently, on April 21, PowerLine.com, the home of right-wing analysis, argued that any suggestion that Gonzales was attacking Owen is "ludicrous." Instead, Power Line's John Hinderaker insisted, Gonzales' language, which objected to efforts to "require a high standard of proof" for abortions, was directed at two of the three dissenters, but not to Owen because her dissent never tried to make it harder for minors to have abortions. Instead, according to Hinderaker, Owen dissented only because she felt the Supreme Court was conducting a fact-finding mission in the case, which is the job of the trial judge. "Thus, on its face, Gonzales' criticism of 'judicial activism' did not apply to Owen's dissent," Hinderaker wrote.

That's just not true. In Owen's dissent she clearly objects to the majority's ruling, complaining: "Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives." That statement has nothing to do with concerns about an appellate court overstepping its bounds. Owen, creating a higher standard, simply didn't think Doe did enough to obtain a bypass.

Perhaps more important, this novel, everyone-but-Owen spin clashes with the updated explanation Owen herself offered at a second Senate hearing in 2003. There, she expanded on Hatch's 2002 theory that Gonzales was not referring to her by suggesting that he was not referring to any of the Texas Supreme Court justices: "I do not believe that he was attacking me, or for that matter, any dissent on the court," Owen testified.

The final, and most puzzling, Republican evolution came this January during Gonzales' confirmation hearing as attorney general. Asked about Owen by Sen. Sam Brownback, R-Kan., a supporter of Owen's nomination, Gonzales took the fall on behalf of the embattled nominee: "My comment about an act of judicial activism was not focused at Judge Owen," he said. "It was actually focused at me." He added, "As to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the Legislature intended."

In other words, if Gonzales hadn't followed what he believed to be the true intent of the statue by granting a judicial bypass to the Jane Doe minor, then he would have been guilty of an "unconscionable act of judicial activism."

"Absent any indication that Gonzales was lying to the Senate, I credit his statement," says Rosenzweig at the Heritage Foundation.

But for some legal scholars, the attorney general's latest explanation was just too much. "In a city that revolves on spin, that spin is so great it threatens to take the Earth off its axis," says Turley.

Even some hardcore conservatives seem to agree. When the topic of Gonzales and Owen came up recently on FreeRepublic.com, one member posted the exact language Gonzales had used in his opinion. The Freeper concluded, "To me, it sounds like he is saying the dissenters are falling prey to their ideology and not basing their decision on the law. That means Owen, too. How do you not reach that conclusion?"

Ultimately Owen's dissents in the Texas abortion cases have served as a double-edged sword, helping make her a hero among the members of the right wing who pushed for her unlikely nomination, but also leading her to be tagged as a judicial activist by Gonzales just when Republicans were railing against judicial activism. (Ironically, Gonzales' more moderate approach in the same abortion cases could cost him a seat on the Supreme Court; influential anti-abortion groups claim the rulings prove he's too soft to be trusted.)

If Owen does end up as the public face of the filibuster showdown, it will be fitting, McDonald says. "They're using the most extreme tactics for the most extreme justice."