Avoiding a political mushroom cloud over a Texas judge

EDITORIAL BOARD
Thursday, May 19, 2005
The U.S. Senate has reached a historic crossroads, deciding whether to violate one of its oldest traditions in order to force a vote on several of President Bush's judicial nominations, starting with one from Texas.
Although we are not enthusiastic about the president's nomination of Justice Priscilla Owen of the Texas Supreme Court to the 5th U.S. Circuit Court of Appeals, we do not support a Democratic filibuster of it. If Democrats insist on a filibuster, however, we urge that Republicans not use their majority muscle to violate Senate tradition by resorting to a parliamentary maneuver that's become known as the "nuclear option."
The GOP proposal is called the "nuclear option" because it would end a tradition that has — with some exceptions — served the chamber well. Democrats have promised to tie up Senate business to retaliate.
The White House's choice of the divisive Owen is the cause of this turbulence. Owen is not a conservator of precedent or status quo, but an activist who will, when she can, use the bench to advance a conservative ideology — just as conservatives have complained for years that liberal judges do.
The clearest example of her activism came in early 2000 when the Texas Supreme Court ruled on a series of cases filed under a new law requiring underage girls to notify a parent before getting an abortion. The issue was how tightly to draw the exception for a "judicial bypass," which would allow a girl to get court permission to not notify a parent.
Before an all-Republican court, the law would be interpreted rather narrowly. But Owen and Justice Nathan Hecht, in particular, argued for an interpretation so tight that it would have effectively nullified the new law. In one case, an exasperated justice on the majority side accused the minority, including Owen, of favoring "an unconscionable act of judicial activism." That justice was Alberto Gonzales, now the U.S. attorney general. (Gonzales favors Owen's confirmation.)
Moreover, Owen routinely favors business interests over consumer, environmental and other interests. An example: In a 2000 case, the all-Republican Texas court ruled 6-3 for the City of Austin in striking down a law intended to exempt some property owners from city environmental regulations. Owen wrote a dissent favoring property rights. The dissent was described by the majority opinion as mostly "inflammatory rhetoric."
Nonetheless, we acknowledge Owen's qualifications for the bench in terms of education, experience and judicial temperament. Despite criticism as unrelenting as it is harsh, she has conducted herself with professional and personal dignity since Bush first nominated her four years ago.
If a judicial nominee is legally qualified and nominated by the president, some argue, that should be enough for the Senate to confirm. We disagree. For Cabinet posts and other administration jobs, the president is generally entitled to those he wants to administer policy.
Judges, however, are nominated to a separate and equal branch of government, not to carry out presidential policy but to administer justice impartially. What's more, a federal judge is the "gift that keeps on giving." Unlike executive branch appointees, they do not step down when the president leaves office but can keep their offices for the rest of their lives. The Senate owes the president no presumption of approval for his judicial nominations, and it serves as an important check and balance to his choices.
Frustrated Republicans note that a Senate majority — 51 or more — would confirm the Bush nominations but for the Senate's longstanding rule that requires 60 votes to end debate. Democrats would have a better argument for invoking that rule, launching a filibuster to block Owen's nomination, if she had been nominated to the U.S. Supreme Court. Her opinions there would have far more impact on national policy than on an appeals court.
Democrats blocked 10 of the president's 45 nominees for appeals courts. At issue now are seven of those 10 who were renominated, led by Owen. None is so important as to merit destruction of the filibuster, which remains an important tool for a minority party to defend its interests in extreme circumstances.
Both parties have used the filibuster. The Democrats are using it now. And if they don't blow up the filibuster rule now, the Republicans will use it in the future.
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