Jewish World Review Sept. 10, 2002 / 4 Tishrei, 5763

Terry Eastland

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Ashcroft's obtuse judicial statement | Once upon a time, another judicial nomination failed. It was 1987, and the nominee for the Supreme Court was Robert Bork. Some supporters came up with a button they sported on their chests. "Reappoint Bork," it said. That, of course, never was going to happen and technically couldn't have, given that Bork hadn't received the Senate approval needed to effect his appointment.

"Renominate" would have been the correct verb then, and, not incidentally, it is the correct verb now, an imperative whose object would be another rejected nominee. Only this time it wouldn't be an act of mere sentiment to utter, even to print on a button, this imperative: "Renominate Owen." For if the Republicans reclaim the Senate, there is no good reason President Bush should fail to submit the name of Priscilla Owen, once again, for a seat on the 5th U.S. Circuit Court of Appeals.

Owen's treatment last week by the Senate Judiciary Committee merely confirmed the importance to judicial selection of which party a president's or the one opposite his controls the Senate. Thanks to James Jeffords' break from the Republican Party in 2001, the Democrats have controlled the Senate by a single vote, 50 to 49. In the Judiciary Committee, they have a 10-to-9 edge, with the 10 Democrats ponder the names Leahy, Kennedy and Schumer being among the party's most liberal members.

Committee Democrats have been purposely slow to hold hearings on appellate court nominees they regard as threateningly conservative. Owen, a Texas Supreme Court justice, waited more than 14 months for her July 23 hearing. The tenor of the questions suggested the Democrats already had decided against her.

Republicans held out hope that Dianne Feinstein might vote for the nomination. Or that Joseph Biden, who sometimes is sensible, might come around. But the committee voted not simply to reject the nomination but also against motions to send it to the full Senate with no recommendation or even with an unfavorable one. All three votes were along party lines, 10 to 9.

There is no question that Justice Owen would have been confirmed had the full Senate voted, since Democrat Zell Miller, from Georgia, already had announced his support. And, of course, the full Senate would have voted had Republicans controlled the Senate.

Make no mistake: The committee's disposition of the Owen nomination was the act of a willful majority. It had little to do with the nominee herself.

In fact, as nominees go, Priscilla Owen was a good one, a judge learned in the law and of demonstrated character. She was attacked from the left, mostly for opinions she wrote in business cases and in ones interpreting the state's parental notification statute. Those opinions, when examined closely, certainly were defensible within "the range of reasonable judicial disagreement," as The Washington Post, not a conservative organ, stated in an editorial endorsement. The likewise not-conservative American Bar Association unanimously deemed Justice Owen "well qualified," the highest rating it gives judicial nominees.

Nevertheless, Judiciary Committee Chairman Patrick Leahy said of this twice-elected Texas Supreme Court justice, who had won endorsements for that office from every major newspaper, that she "was too extreme for Texas."

Priscilla Owen is the second Bush nominee that the Judiciary Committee has rejected. The first was Charles Pickering, also designated for the 5th Circuit. But Judge Pickering was a less impressive nominee. The defeat of the Owen nomination means that no Bush nominee, at least to the appeals courts, should dare be confident of confirmation. In fact, just the opposite should be presumed.

That is why Attorney General John Ashcroft's statement imploring the committee to hold hearings for other appellate court nominees who have gone hearingless for many months is obtuse. Assuming an intransigent Democratic majority, a hearing no longer is likely to be, as the Republicans have thought, a steppingstone to confirmation. Instead, it probably will be a prelude to rejection.

Miguel Estrada or John Roberts or Michael McConnell, all excellent nominees who have gone without a hearing, should hope that the Senate is distracted by other business and that Republicans recapture it this fall. In which case, their nominations would succeed. As would, of course, that of Priscilla Owen

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

09/04/02: The Education Gadfly stings again
08/28/02: So then let the president declare war
08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2002, Terry Eastland