When the United States Senate reconvenes this week, members of the Senate Judiciary Committee will be asked to vote on the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. It is a vote that will be closely watched by both purveyors and critics of gender politics.
Owen, who currently serves as a justice of the Texas Supreme Court, is the most recent target of the feminist hit squad led by a coalition of leftist organizations including the National Organization of Women (NOW). Feminist special interest groups claim that the confirmation of Justice Owen to the federal bench would be a setback for American women. But would it?
Feminist opposition to Owen is focused on the Justice’s deference to state legislative policy choices in two cases involving Texas’ parental notification law. In those cases, Owen wrote that, in passing the law, the Texas legislature sought to ensure that underage girls seeking abortions be fully informed of the ramifications of their decision. In so reasoning, Owen was not proclaiming her own personal views on the way to handle this complicated question — rather she was following the will of the legislature and carefully applying Supreme Court precedent and accepted cannons of statutory construction.
Owen’s opponents argue that these cases prove that Owen is biased against pro-choice litigants and in favor of the pro-life position. Not so. In truth, Justice Owen has never stated a personal view on abortion, and a careful review of Owen’s record reveals that she bases her legal opinions not on the parties before her, or on the political implications of the Court’s rulings, but on the facts and the law in each case. Indeed, while the special interest groups may disagree with Owen’s legal opinions in the parental notification cases, many feminists previously hailed the result in a controversial buffer zone case in which Owen sided with Planned Parenthood and voted to uphold restrictions on anti-abortion protesters.
Less ideological observers of Justice Owen’s reject demagogic claims that her elevation to the federal bench imperils women’s rights. Indeed, many regard Justice Owen as a path breaker and a role model for American women. In 1977 (when women made up only 28 percent of the American law students), Owen graduated third in her class from Baylor University Law School, and went on to earn the highest score on the Texas state bar examination. After practicing commercial litigation for seventeen years with the law firm Andrew & Kurth, Owen successfully ran for a seat on the Texas Supreme Court, to which she was re-elected by overwhelming margins in 2000. On the bench, Justice Owen has earned a reputation as a restrained and principled jurist and has been a leader in the movement to eliminate gender bias in the legal system and a reformer on divorce and child support proceedings.
Not surprisingly, then, the American Bar Association has rated Justice Owen “well qualified” — the organization’s highest rating. But, although Democratic Senators have previously referred to the ABA ratings as “Gold Standard” by which Senators should judge nominees to the federal bench, many of these same Senators have now joined with the special interest groups in opposition Owen.
One Democratic Senator who reportedly remains undecided on the Owen nomination is Senator Joseph Biden (D-Del). Some years ago, Biden stated that “[Judicial confirmation] is not about pro-life or pro-choice, conservative or liberal, it is not about Democrat or Republican. It is about intellectual and professional competence to serve as a member of the third co-equal branch of the Government.” In May 2002 Senator Biden put aside partisan politics to vote in favor of a controversial nominee to the U.S. Court of Appeals for the Third Circuit, citing the importance of applying a consistent and neutral standard to all judicial nominees — irrespective of the political affiliation of the nominee of the appointing authority.
Biden now seems to be leaning against voting to confirm Owen, although it is not at all clear why. Certainly Owen exudes “intellectual and professional competence.” And among practitioners in the Texas bar, Owen has earned a reputation for fairness and impartiality. But therein lies the problem.
Feminist special interest groups — who are lobbying Biden hard — do not support fair and impartial jurists because they in fact want to stack the courts with judges who will use their power to impose a radical view of gender relations on the American public. Any nominee who cannot be counted on to deliver the politically correct result in all future cases is, in the view of the organized feminist movement, highly suspect. More so if the candidate also happens to be female. (A woman whose legal rulings feminists cannot reliably count on provides a rather uncomfortable public relations problem for the movement).
Recognizing the higher burden placed on female nominees, Senator Orrin Hatch (R-Utah) has chastised his Democratic colleagues for their willingness to buck the feminist establishment in order to vote in favor of conservative male nominees but not to support female judicial candidates who meet with feminist disapproval.
Whether Senator Biden can be mau-maued by the feminist special interest groups into voting against the nomination of Priscilla Owen remains to be seen. Senator Hatch has challenged his colleagues to reject partisan politics and help break the “new glass ceiling” preventing qualified female nominees from assuming their place in the federal judiciary. Let’s hope that Senator Biden remembers his earlier pronouncements and rises to that challenge.
Jennifer C. Braceras is Senior Fellow for Legal Policy with the Independent Women’s Forum and a commissioner on the United States Commission for Civil Rights.