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The looming filibuster showdown is likely to be triggered by Priscilla Owen, who was accused of judicial activism by an unlikely foe -- Alberto Gonzales.
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."
