The Washington Times reports today (thanks, Polipundit, for the tip) that Priscilla Owen, the Texas Supreme Court justice whom the Bush administration has been trying for four years to appoint to the federal Fifth Circuit Court of Appeals bench, will be the test case, so to speak, of Senate Majority Leader Bill Frist?s “nuclear option” rules change that would bar the filibuster in judicial confirmations.
I say: Go, Priscilla! And thanks for your patience, too. Owen’s stalled confirmation is an absurdity, an example of Democratic partisanship carried to shameful extremes. It is also an example of the extent to which the Democratic Party has suicidally tied its fortunes to the agendas of radical-left interest groups that enjoy the contempt, not the support, of most Americans. (See this list of organizations that oppose the Owen nomination, a list that includes the “Bush Is Hitler” Moveon.org, the religion-hating People for the American Way, and, of course, the National Organization for Women, a group that would rather promote leftist politics than one of the women it claims to be “for.”)
Priscilla Owen has a career that ought to make any feminist genuinely interested in women’s equality proud: She graduated at nearly the top of her class at Baylor University’s law school at a time when female law students were relatively few, received the highest score on the Texas bar exam in 1977, and worked for a top law firm. When she ran for reelection to the Texas Supreme Court, she won with 84 percent of the vote. The American Bar Association, not known for its conservative proclivities, awarded her its highest, “very qualified,” rating for the 5th Circuit seat. When Bush named her, even most Democrats regarded her as ashoo-in. Her politics weren’t theirs, but she had won their respect for her brains, honesty, and legal acumen, just as Ruth Bader Ginsburg, whose politics certainly aren’t liberal, won the respect of many Republicans when Bill Clinton appointed her to the Supreme Court.
Then the liberal interest groups got into action. The Senate Judiciary Committee defeated Owen’s confirmation on a narrow 10-9, utterly partisan vote in 2002. Now, with a new, majority-Republican Senate, Owen has cleared the Judiciary Committee on a 10-8 vote. She deserves that federal appeals court seat.
What is standing in Owen’s way is that in a Texas Supreme Court case, she voted to dissent to a ruling that allowed a minor teenager to bypass Texas’s parental-notification law and have an abortion without telling her parents first. That vote in the “Jane Doe” case–one of three dissents in a 4-3 decision–has infuriated the left, which now deems Owen to be “out of the mainstream” and an unseemly “judicial activist” lacking in respect for the law of the land. Never mind that Owen and the other two Texas Supreme Court justices who dissented along with her in “Jane Doe” merely wanted to uphold a trial-court judge’s finding of fact (upheld by an intermediate appeals court) that the teenage girl in question was not mature enough to have an abortion without notifying her parents. Never mind that Owen has never voted against abortion rights per se and has declared that as a federal judge she would consider herself obligated to uphold Roe vs. Wade. Never mind that parental-notification laws are perfectly constitutional under Roe vs. Wade and that Americans overwhelmingly support them. The American left is rabid on the subject of abortion, and anyone who disagrees with its extremist position is targeted for political extinction.
The blogsite Power Line featured an able defense of Owen’s position a few weeks ago:
“[N]o one trained in the law would argue that the principles relied on by Justice Owen constitute ‘judicial activism.’ On the contrary, showing appropriate deference to the fact findings done by the trial court is fundamental to the appellate process and is a basic component of judicial restraint, not judicial activism. It is deeply ironic that the one case relied on by Justice Owen’s critics for the proposition that she is an ‘activist’ is a case in which she voted to affirm the trial court and the Texas Court of Appeals, and deferred to the fact findings made by the trial court….
“… I do not believe that any fair-minded lawyer, of any political persuasion, could read the opinions in the Jane Doe case, and find anything that would raise the slightest doubt about Justice Owen’s fitness as an appellate judge. On the contrary, she appears to have discharged her duty in that case commendably, and to have been a model of judicial restraint.”
Indeed, as Power Line noted, if there was any “judicial activism” at work in the “Jane Doe” case, it was on the part of the four-justice majority, which seemed to re-weigh the evidence that the trial judge considered in order to reach a different conclusion. That is something that appellate courts are not supposed to do, as long as there is some evidence that would reasonably support the trial judge’s ruling. It was why, for example, the numerous courts that examined Judge George Greer’s finding that Terri Schiavo would have wanted her feeding tube removed refused to overturn that finding. They might not have agreed with Greer’s assessment of the evidence, but they knew that no court system can function if every court in the system is allowed effectively to hold a new trial when the outcome of a case does not seem agreeable.
It is time to stop allowing disgruntled senators to use the filibuster to require a 60 percent vote for judicial confirmations when the law requires only a simple majority. And it is time for every honest feminist worth her salt to stand up for Priscilla Owen.