Last year President Bush eliminated the American Bar Assn. from the process of vetting potential judicial nominees, a role it performed ably and in a nonpartisan way for the nine presidents before him. Now he relies on the ideological tests of the very conservative Federalist Society.
Not surprisingly, the men and women who pass this rigid test look remarkably alike on the bench. They often side with business in disputes involving employee rights, consumers and the environment. They strongly oppose abortion, and their opinions reveal a strong streak of judicial activism dressed up as traditional principle.
Priscilla Owen is among them. A protege of Bush confidant Karl Rove, who engineered her 1994 election to the Texas Supreme Court, Owen is a nominee to a seat on the U.S. 5th Circuit Court of Appeals. She comes before the Senate Judiciary Committee today to defend a record of indifference to the problems of most Americans.
Senators should ask her why, for example, she voted to reverse a jury verdict in favor of a woman who had sued her health insurance company for refusing necessary surgery to remove her spleen and gallbladder. Her colleague on the Texas high court, Alberto Gonzales, now Bush's top legal advisor, dissented, writing that Owen's decision turned the legal standard in that case "on its head."
Gonzales, a solid conservative himself, also took issue with Owen in an abortion case that should draw tough questions from Sen. Dianne Feinstein (D-Calif.), chairwoman of today's hearing. Texas law allows pregnant teenagers in some instances to seek permission from a judge to have an abortion without their parents' consent. Yet Owen has staunchly opposed such "judicial bypasses." In one case, Gonzales wrote, Owen's opinion would have "create[d] hurdles that simply are not found in the ... statute" and would be "an unconscionable act of judicial activism." In other cases, her colleagues have accused her of "inflammatory rhetoric."
For all this, Owen's nomination puts Feinstein in a tough spot. She was chairwoman last March when the Judiciary Committee rejected Charles Pickering, another Bush pick for the 5th Circuit. She is anxious to avoid being labeled obstructionist. But given her repeated calls for mainstream nominees, not to mention her long support for abortion rights, Feinstein should vote no, and so should her colleagues.
Although it is now one of the most conservative appellate federal courts, the 5th Circuit has a long and honorable history--defending civil rights during the 1960s and the rights of asbestos workers, systematically deceived and injured by their employers, in the 1970s. Owen would add nothing positive to that legacy.
Americans want independent, common-sensical and capable judges, not those whose political ideology--from either direction--wins them a nomination. As long as Bush continues to exclude the American Bar Assn. from the nomination process, he should not be surprised that his choices draw fire.