And their take on Owen: Why The Senate Judiciary Committee Was Right to Reject the Nomination of Priscilla Owen Introduction Download this report now. On September 5, 2002, the Senate Judiciary Committee rejected the confirmation of Priscilla Owen, a Texas Supreme Court Justice who had been nominated by President Bush to a seat on the United States Court of Appeals for the Fifth Circuit. Because of serious concerns about Justice Owen’s rulings and her record, her nomination had generated significant controversy and strong opposition. As 19 Texas civil rights, women’s rights, labor, consumer, and other organizations concluded, “Owen’s rulings often favor the interest of corporate Texas or government at the expense of ordinary Texans.” According to her own conservative colleagues on the Texas Supreme Court, including Alberto Gonzales and other justices appointed by then-Governor Bush, Owen had written or joined many dissents and other opinions that would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. Indeed, the Houston Chronicle had characterized Owen as “one of the most conservative” justices on “Texas’ Republican-dominated top court.” B. Roth, “Bush Submits 11 Names for Federal Bench: Texan Among Nominees,” Houston Chronicle (May 10, 2001) at A1. At her confirmation hearing before the Judiciary Committee on July 23, 2002, Owen was questioned extensively by Committee members about her record and the serious concerns that her record had raised. Owen’s testimony at the hearing did not dispel, and in fact reinforced, those serious concerns, and the Committee thereafter rejected Owen’s confirmation. Belying his frequent claim that he is a “uniter, not a divider,” President Bush has re-nominated Priscilla Owen to the Fifth Circuit. He has done this despite the very serious concerns about Owen that not only were documented from her judicial record but also confirmed by the opinions of some of his own appointees to the Texas Supreme Court. He has done this despite the strong opposition to Owen’s confirmation when she was first nominated, as well as her rejection by the Judiciary Committee. Indeed, to our knowledge, no federal judicial nominee who has been rejected in one Congress has ever been re-nominated by the President to the same position. In re-nominating Justice Owen, President Bush regrettably has ignored calls for him to “resist[] the temptation to seek the confirmation of judges the Judiciary Committee has already voted down,” as well as a letter from more than two dozen Texas groups urging that he not re-nominate Owen. Nothing in the few months since the rejection of Justice Owen’s confirmation makes her any more suitable for a lifetime appointment to the federal Court of Appeals. All that has changed is the political composition of the Senate. The serious concerns that were raised before about Justice Owen’s record, heightened by her failure to dispel those concerns at her confirmation hearing, are as valid now as they were last year when the Judiciary Committee rejected her confirmation. Justice Owen’s judicial record, particularly her record of dissents, indicates that she is a judicial activist who would allow her right wing ideology to trump her responsibilities as a judge to follow the law, not make it. As with any state Supreme Court, many Texas Supreme Court rulings are decided without dissent. Compared with her colleagues, however, Owen has dissented frequently, and in a right-wing activist direction on a conservative court. A review of the Court’s written opinions since Owen joined the Court in January 1995 through June 2002 (just prior to her July 2002 hearing), confirms the conclusion of Texans for Public Justice that Owen was, for that period, the second most frequent dissenter among the justices then serving on the Court. More important, the content of Owen’s dissents demonstrate that she is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the Court appointed by then-Governor Bush, particularly in cases dealing with individual rights. In fact, many of Owen’s dissents reveal a judicial philosophy directly contrary to President Bush’s asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents that Owen has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. In one case, Owen’s extreme views even led current White House Counsel Alberto Gonzales, then her colleague on the Texas Supreme Court, to charge her and her fellow dissenters with “an unconscionable act of judicial activism.” In another case, Gonzales’ majority opinion called a dissent by Owen an attempt to “judicially amend” a Texas statute. Her dissents demonstrate that, for Owen, ideology supercedes her responsibility as a judge to interpret the law; the criticism by her conservative colleagues of her efforts to make law from the bench further underscores this conclusion. This report is drawn from the several reports that we issued last year in opposition to Owen’s confirmation. (Those reports, along with other resources regarding Justice Owen, are listed in the Appendix.) It focuses not only on the evidence from Justice Owen’s dissenting opinions that she is a right wing judicial activist, but also on the fact that this conclusion is established by the criticism often leveled at her by her conservative colleagues on the Court, particularly including Alberto Gonzales. Indeed, during the relatively brief time that they served together on the Court, Gonzales wrote or joined numerous opinions sharply criticizing opinions written or joined by Owen. This report also addresses Justice Owen’s failure at her confirmation hearing to dispel the serious concerns that had been raised about her record. For the reasons we discuss below, the Judiciary Committee made the correct decision in refusing to confirm Priscilla Owen to the Fifth Circuit. It should make the same decision again. The full "report": http://www.pfaw.org/pfaw/dfiles/file_151.pdf
basically, "we don't agree with your political views...so we don't want you to be a judge...but we don't have enough ELECTED officials to override a vote...so we'll sabotage the process with a filibuster -- a procedure of delay, Constitution be damned." yeah...great.
Estrada refused to answer key questions at his Senate Judiciary Committee hearing about his judicial philosophy, such as his views about important Supreme Court decisions. MM, I think that this is the big rub that the Dems have against backing Estrada. (Personally, I see too much arrogance on Estrada's part, which may mean that he does not have the proper temperant for being a judge). BTW, most of Bush;s judicial nominees have gone though without fillibuster. So that should mean that you are mostly happy with the Senate Democrats, right?
NW -- ummmm...that is not the big rub against Estrada. It's last on the list posted here...and it's only recently been an issue. there were efforts to block this guy's nomination before he was even called to the Senate Judiciary Committee. I don't give any Senator credit for NOT filibustering a freaking judicial nomination. I don't give myself credit for not lying to my clients. I don't give you credit for not robbing a bank today. (you did abstain from robbing a bank today, didn't you? )
Isn't a filibuster only a stall tactic a senator uses when he doesn't have the majority? If he had majority, the legislature would just vote it down.
Oh, the HORROR!! I still don't see any SPECIFIC issues addressed in either of those articles. Just other peoples vauge (sp?) opinions.
Are we sure that these nominees don't represent the views of a majority of the American people? It appears to me that the real problem is that they oppose the views of the Democratic Party, not necessarily the views of the public at large. I don't know that we've heard the public's opinion on these nominees.
basically, "we don't agree with your political views...so we don't want you to be a judge...but we don't have enough ELECTED officials to override a vote...so we'll sabotage the process with a filibuster -- a procedure of delay, Constitution be damned." Ummm, "Constitution be damned"? I was under the impression that a filibuster was a legal and acceptable Senate move. It seems to me not allowing a filibuster would more fit the "Constitution be damned" argument.
but they don't have majority...so instead, they override the will of the elected majority using procedural delay. just want to point that out.
Go to the People for the American Way website and you might find some more information (I don't guarantee that you will, though, but there are some other links). http://www.pfaw.org
filibuster is absolutely legal...though, this might change that for the purpose of a judicial nomination...i was actually refering more to concepts like separation of powers and the legally proscribed procedure for the confirmation or rejection of judicial nominees.
filibuster is absolutely legal...though, this might change that for the purpose of a judicial nomination...i was actually refering more to concepts like separation of powers and the legally proscribed procedure for the confirmation or rejection of judicial nominees. Sure, but filibustering is as much a part of the process as nominations and confirmation votes. Executives are allowed to nominate for simplicity; the Senate is allowed to confirm to get breadth of agreement; substantial minorities are allowed to filibuster to ensure nothing controversial gets passed by a slim majority. All of these are a part of the process. Our system is specifically designed not to be efficient - this is an example of that in action.
so you think in this context that this is just fine, huh? just make sure you'd feel that way if this were a republican MINORITY holding up a democratic judicial nomination this way.
But what about this claim from the article: "The Senate has a constitutional responsibility to exercise its advice and consent function and hold up or down votes on all judicial nominees within a reasonable time after nomination..." If there is such a "reasonable time" requirement, would these filibusters not work against that? Of course, I don't know if there is a such a requirement or even what a "reasonable time" would be. I know Estrada was originally nominated almost two years ago.
http://news.findlaw.com/hdocs/docs/estrada/whcgonzales21203ltr.pdf I'm linking you to a letter written by Alberto Gonzales, special counsel to the President, addressed to Sen Dachle and Sen Leahy. It is rather lengthy, but if you have the time, browse it. As for the Senate's role in this procedure, here's some important commentary cited in the letter: Senator Biden (1997): "Any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life, and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court. Alexander Hamilton (Federalist Paper No. 76): the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment or from a view to popularity." It was anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal" Senator Leahy (Oct. 3, 2000) -- "Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what had happened in the Senate where confirmations are held up not because somebody votes down a nominee, but because they can never get a vote. Gov. Bush said, 'You have the nominee. Hold the hearing. Then within 60 days, vote them up or vote them down. Don't leave them in limbo.' Frankly, that is what we're paid to do in this body. We are paid to vote either yes or not - not vote maybe. When we hold a nominee up by not allowing them a vote and not taking action one way or another, we are not only voting 'maybe,' but we are doing a terrible disservice to the man or woman we do this to." Senator Daschle (Oct. 5, 1999): "The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. An up or down vote, that is all we seek for Berzon and Paez. And after years of waiting, they deserve at least that much."
The only side of this argument saying "Constitution be damned" are the Democrats. Chuck Schumer actually had the nerve to present the following solution to President Bush. Both the Administration and the Senate should agree to the creation of nominating commissions in every state, the District of Columbia, and each Circuit Court of Appeals. Every commission will consist of an equal number of Republicans and Democrats, chosen by the President and the opposition party's Senate leader. Each commission will propose one candidate to fill each vacancy. Barring evidence that any candidate proposed by a commission is unfit for judicial service, the President will nominate the individual and the Senate will confirm her or him. Schumer is actually asking President Bush to abdicate his Constitutional role of appointing Judges!
As terrible as this is, I'm glad for anything that keeps Owen (a judge so conservative that even Gonzales chided her in an opinion for her bias) off the bench. Bush was supposed to be a uniter, yet he has sought out nominees that are ultra-right. I don't like it when time is wasted in filibusters either, but maybe this administration should avoid people like Owens. I will get more info (i.e. the case) later.
so you think in this context that this is just fine, huh? just make sure you'd feel that way if this were a republican MINORITY holding up a democratic judicial nomination this way. I don't like filibusters in general. But I see no reason why filibustering to hold up a judicial nomination is any worse than using a filibuster to hold up major legislation that can directly affect millions of people - which happens all the time and no one seems to have a problem with. If we were going to get rid of them, there are much better reasons than to prevent the holdup of controversial judicial nominees. The only side of this argument saying "Constitution be damned" are the Democrats And MadMax
