...concerns about Owen go to the heart of what makes a good judge...

May 18, 2005 4:21 PM

Meet Priscilla Owen,2-time nominee for the 5th Circuit Court of Appeals, Senate nuclear option trigger, and "activist judge" who White House Counsel Gonzales himself criticized ...for "an unconscionable act of judicial activism" in seeking to restrict a minor's right to an abortion. ...

This PDF from People for the American Way goes case-by-case to paint a damning picture: It focuses not only on the evidence from Justice Owen’s dissenting opinions that she is a right wing judicial activist, but also on the fact that this conclusion is established by the criticism often leveled at her by her conservative colleagues on the Court, particularly including Alberto Gonzales. Indeed, during the relatively brief time that they served together on the Court, Gonzales wrote or joined numerous opinions sharply criticizing opinions written or joined by Owen. This report also addresses Justice Owen’s failure at her confirmation hearing to dispel the serious concerns that had been raised about her record. For the reasons we discuss below, the Judiciary Committee made the correct decision in refusing to confirm Priscilla Owen to the Fifth Circuit. It should make the same decision again.
posted by amberglow (30 comments total)

Nice job on the not-quite-in-context quote from Gonzales.
posted by Kwantsar at 4:27 PM on May 18, 2005

from page 24 of the pdf (about what happened at her first hearing (she was rejected): ...Owen’s anti-consumer record has led Texas Watch to conclude that “Justice Owen has proven herself to be an anti-consumer judge with biases towards corporate and insurance interests.” At Owen’s confirmation hearing, Senator Feinstein stated to Justice Owen that “I had some Texas lawyers come to me who were consumer lawyers. And they said their concern was they didn’t believe they could ever get a fair shot in your courtroom. . . [I]n ten years of serving on this committee no one has ever said that before.” Given these serious concerns, a number of Senators questioned Justice Owen specifically about her pro-business, anti-consumer record. Senator Edwards prefaced his questions on this subject by identifying several of the cases in which Owen had dissented from majority rulings in favor of consumers and other citizens and been sharply criticized by the Court majority.

Another PDF report from Texas Watch's Court Watch: Texas Supreme Court Justice Pricilla Owen - No Friend of Texas Consumers
posted by amberglow at 4:28 PM on May 18, 2005

And why should we believe Hindrocket over every newspaper in the country, Kwantsar? Where's the actual transcript?

This from the Nation is telling, too, chronicling Owens as a Rove special--...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." ... (2002)
posted by amberglow at 4:34 PM on May 18, 2005

I'm kind of surprised that the Republicans in the senate are being so gracious (or myopic, drooling morons). It's like they don't understand how close they are to being the minority party, or perhaps they expect the democrats to forgive and forget.

My hypothesis is this: the same profound ignorance they're working to cultivate in the voting public has taken hold of them.
posted by mullingitover at 4:36 PM on May 18, 2005

This is supposedly the TX Supreme Court transcript of the case, and on page 40, you find Gonzales' quote: ...The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent’s right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute’s legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, 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. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so. ...

mulling, some people are saying that they don't ever expect to lose any election again, thanks to Diebold and compliant State Officials in charge of voting--there's no rational explanation for trying to kill something that you'll need in the future--the filibuster.
posted by amberglow at 4:44 PM on May 18, 2005

So if she's so obviously unqualified, why not trust the senators to vote her nomination down? Of if you expect the senate to vote strictly along party lines, what's the justification for not allowing the senators to do what they were elected by the majority of their states' voters to do?
posted by jfuller at 4:48 PM on May 18, 2005

She already was voted down, in 2002, in Committee. That's how the Senate works--Committee first. It works that way for bills becoming laws, and judicial nominations, and many other things. Why should they do things differently now? Because Bush said so?
posted by amberglow at 4:55 PM on May 18, 2005

Hey look. I've stumbled upon amberglow's personal weblog and soapbox.

(Looks around)

Wait a minute! This is still MetaFilter.

BTW, I completely agree with the sentiment, amberglow. But just a day or two ago you were talking about political grandstanding in the Senate. I'm surprised that you think this is something other than just that. After the Schaivo debacle and Social Security tanking in the polls, Repubs need to start accomplishing things or 2006 will be a mighty nice election for Democrats.
posted by SeizeTheDay at 5:07 PM on May 18, 2005

I like how amberglow says that's "supposedly" the "transcript of the case." Uh, actually that's the published opinion of the Texas Supreme Court. I don't think Priscilla Owens should be a federal judge, and I like Hindrocket at all, but his analysis of the opinion is correct: that Gonzales quote is pretty clearly taken out of context.
posted by monju_bosatsu at 5:08 PM on May 18, 2005

... *don't* like Hindrocket ...
posted by monju_bosatsu at 5:22 PM on May 18, 2005

> Why should they do things differently now? Because Bush said so?

Why not? The senate has changed its procedural rules in the past, they're not carved in stone (or written into the Constitution.)

As for Owen's having been voted down in committee before, she's been renominated since then, which is the president's prerogative even if it is just to precipitate a showdown.

as Naral has it,

The President’s decision to renominate Priscilla Owen, along with anti-choice Charles Pickering, is unprecedented and divisive. Both nominees were rejected last year by the Senate Judiciary Committee after full and fair hearings. Their renominations demonstrate great disrespect for the Committee’s careful exercise of its constitutional duty of advice and consent. Pro-choice and pro-civil rights Senators must stand firm against President Bush’s attempts to roll back hard-won rights. The White House cannot use its narrow electoral advantage to pack the courts for a generation to come.

Whether he can or can't remains to be seen. I'm a Falcons fan, but on this occasion Go Packers!
posted by jfuller at 5:29 PM on May 18, 2005

Might also add that it was, ironically, most un-forward-looking of progressives to depend so heavily on the judiciary to enact their program, since over the history of the Republic the judiciary has been a highly conservative, even reactionary, branch of government. For part of the 20th century the federal bench, at least, was quite different from its traditional character, but it was to be expected that a basically regressive institution would eventually regress to the mean.
posted by jfuller at 5:48 PM on May 18, 2005

Why not? The senate has changed its procedural rules in the past, they're not carved in stone (or written into the Constitution.)
I'll let a Republican answer that one: ... The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as about Democratic obstinacy, according to numerous government scholars. The result could be a more powerful White House, a weakened Congress and the possible erosion, if not end, of the most powerful tool available to the minority party, they said.

"This is being done to ... help a president achieve what he wants to achieve," said former Rep. Mickey Edwards, R-Okla., now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient." ...

monju: i said "suppposed" earlier because i grabbed it from google and it's not from an official Texas Court site--it's not taken out of context at all--Gonzales speaks of the dissenting opinions. (note the plural) Just because he runs aways from it later doesn't mean it doesn't say what it says. Maybe you can explain his words more clearly?

Seize: this is grandstanding, but if successful will mean the end of advise and consent entirely. Read the quote above.
posted by amberglow at 5:50 PM on May 18, 2005

After the Schaivo debacle and Social Security tanking in the polls, Repubs need to start accomplishing things or 2006 will be a mighty nice election for Democrats.

Well, they've already got lots of judges in, more than Clinton did, so maybe there's more important things to get accomplished.
posted by anthill at 6:32 PM on May 18, 2005

The rules of the Senate are not carved in stone, but they do require a 2/3 majority to alter them, assuming playing by the rules is something we're still interested in. In case anybody was wondering, the super-sneaky nuclear option is not some brilliant discovery of a loophole in the rules -- it's just ignoring them. When the option is deployed, Frist will ask for a vote to proceed notwithstanding the Senate parliamentarian's ruling that 55 (or however many, less than 60) votes is not enough for cloture. Proceeding in defiance of the rules will require only 51 votes.

And then, arreviderci, World's Greatest Deliberative Body!
posted by aaronetc at 7:25 PM on May 18, 2005

Why not? The senate has changed its procedural rules in the past, they're not carved in stone (or written into the Constitution).

I'm glad you think they're not written into the Constitution, because the nuclear option isn't a procedural rule change, it's 50 Senators and the VP deciding that the Senate rules themselves are un-Constitutional -- just because they can't get 60 votes for these judges. Basically the republican talking points are backwards: filibuster = standard Senatorial rule gaming; nuclear option = unprecedented partisan constitution-abusing maneuver.

(as aaronetc said)
posted by fleacircus at 7:25 PM on May 18, 2005

> the possible erosion, if not end, of the most powerful tool available to the minority
> party, they said.

How great a tragedy is that, exactly? The last time time the filibuster was newsworthy, before the current episode, was back when it was being used by Dixiecrats to block civil rights legislation.
posted by jfuller at 4:04 AM on May 19, 2005

this is good: The Top 10 filibuster falsehoods

and get a load of Frist : ... Fierce debate began immediately with Senate Majority Leader Bill Frist, a Tennessee Republican, accusing Democrats of using obstructionist tactics to "kill, to defeat, to assassinate these nominees." ...
posted by amberglow at 6:10 AM on May 19, 2005

So if she's so obviously unqualified, why not trust the senators to vote her nomination down? Of if you expect the senate to vote strictly along party lines, what's the justification for not allowing the senators to do what they were elected by the majority of their states' voters to do?

Because other senators were elected to filibuster right wing crazies by the majorities in their state.
posted by delmoi at 8:19 AM on May 19, 2005

Also, it's pretty clear that Gonzales was talking about Owen and others, not about "himself" as he claims now. That's just rediculous.
posted by delmoi at 8:26 AM on May 19, 2005

As Majority Leader of the Senate, Bill Frist (and when I say Bill Frist, I mean James Dobson) could care less about our system of government.
The entire idea is to replace our democracy with theocracy anyway and Mullah Dobson will be damned if its gonna be democratic!
Any political party with such severe myopia isn't worthy of serving the best interests of our corporate America by God Dobson!
Just think about it, what if the Dems became the majority in 2006?
Well, they may do away with the bothersome rules and impeach every damn one of Dubya's activist judges just for living and replace them with their own sock puppets.
No more independent judiciary, thank God Dobson! Don't think it can't happen?
Well, you may be right if Diebold and recent elections are any indicator.
Ahhh... the illusions of democracy, I remember it well.

I, for one, welcome our new Mullahs! [I hope the FBI picks this up so I don't have to go to Gitmo soon]
posted by nofundy at 10:52 AM on May 19, 2005

the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster. It was an understanding and agreement, and it has been abused.

So quoth Rick Santorum (R-Sphincter).

Really? That's what's been abused? Pointing out that the rules are being changed, without the benefit of actually having enough votes to effect said change, is the moral equivalent of murdering six million people and overrunning Europe?

He can say this with a straight face?
posted by Vidiot at 2:51 PM on May 19, 2005

yup--he's an imbecile, and a bastard. Don't forget his "gay marriage is a bigger threat than terrorism"

Speaking of bastards...Novak on Capital Gang--: Hunt: “Bob, why would Senator Frist refuse an offer to break the deadlock?”

Novak: “Because the whole system is that you’re not going to have — like going to a concentration camp and picking out which people go to the death chamber. You’re not going to let the Democrats do that, say, ‘We’re going to — we’re going to confirm this person, we’re not going to confirm the other person.’”
posted by amberglow at 3:29 PM on May 19, 2005

and this one's for you, Hindrocket fans: Hitler Outrage
Now that Senator Rick Santorum has gone and compared the Democrats to Hitler, I suppose it's blogger protocol to rehash all the "outrage" Republicans expressed when they tried to associate an amateur MoveOn.org ad with the Democratic Party last summer. ... John Hinderaker: I, personally, would like to see a moratorium on all references to Hitler, the Third Reich, Nazism and the Holocaust in the context of domestic political debate. ...
posted by amberglow at 4:41 PM on May 19, 2005

posted by amberglow at 4:21 PM PST
posted by amberglow at 4:28 PM PST on May 18
posted by amberglow at 4:34 PM PST on May 18
posted by amberglow at 4:44 PM PST on May 18
posted by amberglow at 4:55 PM PST on May 18
posted by amberglow at 5:50 PM PST on May 18
posted by amberglow at 6:10 AM PST on May 19
posted by amberglow at 3:29 PM PST on May 19
posted by amberglow at 4:41 PM PST on May 19

And I thought that I posted too much sometimes...
posted by thedevildancedlightly at 5:20 PM on May 19, 2005

Newsweek on Owen: ...In one frequently cited case, Owen ruled against a woman who'd been raped by a door-to-door vacuum salesman. She said that the company should not be held liable for failing to conduct a background check—even though it would have uncovered the salesman's record as a sex offender. In another instance, Owen ruled that a teenager paralyzed in a car accident by a faulty restraint system could not sue the carmaker. ...

(and note in the story that Gonzales is still lying about the famous quote)
posted by amberglow at 4:46 PM on May 22, 2005

All news outlets reporting that a deal has been reached.
posted by trey at 4:44 PM on May 23, 2005

unbelievable--the GOP can't be trusted at all. I'm betting this deal dies as soon as Frist hears from his rightwing masters.
posted by amberglow at 5:27 PM on May 23, 2005

I agree -- there is far too much ambiguity in the deal. What are "extraordinary circumstances?" This isn't so much a deal as it is a delay. It makes Frist look terrible, though, so I'm OK with that.
posted by trey at 5:31 PM on May 23, 2005

and what good is a filibuster if you can't use it? what kind of deal is this? (or, i'm hoping, but don't really think so, that it's a thing to force Frist's hand entirely--but why would Warner and the other GOP people do that?)
posted by amberglow at 5:42 PM on May 23, 2005