WASHINGTON (ABP) — An epic Senate battle over President Bush's judicial nominees has begun. And the woman who is in the middle of it is providing fodder for both sides in the caustic debate.
Opponents of nominee Priscilla Owen say she is guilty of “judicial activism,” particularly against young women seeking legally to avoid parental-notification laws governing abortion. But her supporters say she consistently has fought against “judicial activism” by preventing courts from overreaching their authority.
As of mid-afternoon on May 19, senators were headed for a procedural vote on Owen, a Texas Supreme Court justice who is nominated for an open seat on the 5th U.S. Circuit Court of Appeals. The showdown may end a centuries-old Senate tradition and open the door to a significant rightward shift in the nation's federal courts.
Senators began floor debate on Owen's nomination May 18, but it quickly became clear that they were talking about much more than one woman's professional fate.
“In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up-or-down vote on judicial nominees,” said Senate Majority Leader Bill Frist (R-Tenn.), in presenting Owen's nomination. “That was unprecedented. Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote. Yet it happened — again, and again, and again, and again, and again, and again.”
But, Senate Minority Leader Harry Reid (D-Nev.) countered, “[T]he right to extended debate is never more important than when one party controls Congress and the White House. In these cases, the filibuster serves as a check on power and preserves our limited government.”
He continued, “Right now, the only check on President Bush is the Democrats' ability to voice their concern in this body, the Senate. If Republicans roll back our rights in this chamber, there will be no check on their power. The radical right wing will be free to pursue any agenda they want, and not just in judges. Their power will be unchecked on Supreme Court nominees, the President's nominees in general, and legislation such as Social Security privatization.”
Owen was first nominated for the slot more than four years ago. But Senate Democrats have held up her nomination, as well as a handful of others, by use of a Senate rule that requires 60 votes to cut off debate and move to a substantive vote on any nomination or piece of legislation. The procedure — known as a filibuster — has been used to block 10 nominees. Senators, meanwhile, have approved more than 200 Bush court nominees, most without objection from Democrats.
But long-simmering debates over the role of the federal courts and the ideological tilt of the judiciary have placed special pressure on the Senate. Democrats say they have used the unusual move because most of the filibustered nominees have been ideological extremists who, if approved, would use their influence to impose their own beliefs on the law.
Republicans, meanwhile, contend the nominees are qualified and the Senate owes them approval by simple majority vote. Republicans hold a 55-44 advantage over Democrats in the chamber, which also includes one left-leaning independent.
Some Republicans have also argued that approval of more conservative Bush nominees would prevent the kind of “activist” judicial rulings they oppose.
That's why Frist has placed Owen's nomination back before the Senate, in a bid to try a parliamentary end-run around Democrats that would do away with the filibuster rule with only 51 votes.
An examination of Owen's record shows that she has provided fodder for both sides of the debate.
Democrats' main objection to Owen is that she has been a judicial activist during her years on the Texas court.
“Anchoring the right wing of a very conservative Texas Supreme Court, Justice Owen takes a hard-right, activist approach to judicial decision-making,” read a report from the Alliance for Justice, a left-leaning group. “Often disagreeing even with her conservative colleagues, Justice Owen has reliably voted to throw out jury verdicts against corporations, dismiss suits brought by workers for job-related injuries, discrimination and unfair employment practices, and ignore or rewrite judicial bypass provisions in Texas' parental notification statute in an effort to deny relief to pregnant minors.”
But Boyden Gray, a Washington lawyer and chairman of the conservative Committee for Justice, said those charges are without merit.
“Time and again, in her opinions Justice Owen has stressed that the function of a court in interpreting a legal text is to give effect to the intent of the lawgiver,” Gray wrote in a report that appears on the federal Department of Justice's website. “Justice Owen consistently has interpreted Texas statutes in light of the binding precedents of the United States Supreme Court. She has deferred to the enactments of the Texas Legislature, denying that judges legitimately can interpret statutory language to reflect their own political or ideological commitments.”
One of the most publicized reasons Democrats and some left-leaning groups have cited for opposing Owen involves a string of decisions regarding Texas' law requiring parental notification before a minor can receive an abortion.
In the cases, Owen repeatedly ruled against girls who had attempted to use the law's “judicial bypass,” whereby a child can receive permission for the procedure from a judge in lieu of her parents if she meets certain criteria. The criteria include being able to prove that she is “sufficiently mature and well informed” of the procedure and its physical and psychological consequences, or the ability to show evidence that being forced to inform her parents would cause her significant harm.
In the first case, Owen said the girl had not sufficiently proven that she met the first bypass criterion because she “should be able to demonstrate to a court that she understands that some women have experienced severe remorse and regret. She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral and religious arguments that can be brought to bear when considering an abortion.”
Owen qualified the remarks by saying, “A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or profess any religious beliefs.”
In a second case, Owen cited Supreme Court precedent to say that Texas legislators must have intended, when they wrote the law, to require minors not only to prove that not notifying their parents of an abortion was in their best interest, but that having the abortion itself was also in their best interest.
In a third such case, Owen and two other justices dissented from the court's majority, which had ruled that a high school senior on her way to college was sufficiently mature and well informed to bypass parental notification and have an abortion. Owen's then-colleague Alberto Gonzales said the dissenters would require a “high standard of proof” for such bypasses, but such a question was better left to legislators.
Gonzales, who is now Bush's attorney general, went on to say, “[T]o 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.”
Groups opposed to Owen have seized on Gonzales' language as the central piece of evidence in their case against Owen. But her supporters have worked overtime to counter that charge.
As far as the first two cases go, Gray wrote, Owen was simply following higher judicial precedent. Owen said the same. “I did what good appellate judges do every day,” she told a Senate committee. “If this is activism, then any judicial interpretation of a statute's terms is judicial activism.”
As for the charge that even her fellow conservative Republican, Gonzales, accused her of “activism?” Her supporters have said Gonzales wasn't talking about her specifically.
Sen. John Cornyn (R-Texas), one of Owen's former colleagues on the Texas Supreme Court, wrote a May 9 opinion piece for the conservative National Review in which he called the activism charge “unpersuasive.”
[J]udges disagree all the time — that's why we have multimember courts,” Cornyn continued. “U.S. Supreme Court Justice John Paul Stevens once accused Justice Byron White of 'judicial activism,' while in another opinion he accused Justice Lewis Powell and Sandra Day O'Connor of 'judicial activism.'”
Gonzales himself has said he was not referring directly to Owen's ruling with the “activism” accusation. However, Democrats have noted, Gonzales said that only after he was nominated by Bush for the attorney general position.
Whatever Owen's record, her case will prove a test for whether Frist can do away with the filibuster on federal judges — thus setting up a bigger battle.
With at least one vacancy on the closely divided U.S. Supreme Court likely — and as many as three more possible — before the end of Bush's term, whichever way this dispute ends may have significant legal ramifications for generations of Americans to come.