The White House has certainly shown unusual dedication to Owen’s nomination. Since being chosen in 2001 as one of Bush’s original slate of federal nominees, Owen, a justice on the Texas Supreme Court, has been unable to gain any support among Democrats, who uniformly reject her as an ideologue who tries to create law from the bench.

More troubling for her nomination is that when he was Owen’s colleague as a justice on the Texas Supreme Court, Attorney General Alberto Gonzales accused her of trying to implement “an unconscionable act of judicial activism.” The charge came during a heated abortion ruling in which Owen tried to make the burden for a minor even more onerous than the Texas Legislature intended. Time and again while serving with Owen, Gonzales admonished her for straying too far from the clear intent of Texas statutes. Today, however, Gonzales praises Owen as “superbly qualified,” while her supporters try valiantly — and at times imaginatively — to explain away the damning “judicial activism” description.

But the Republicans’ use of an allegedly activist judge as a battering ram in their campaign against judicial activism is just one of many layers of irony that surround Owen’s nomination.

In another, Republicans complain bitterly that Bush’s judges are not getting fair hearings, yet Owen is the first nominee in Senate history to be given a hearing, to be rejected by the Judiciary Committee, and then to be renominated to the federal bench by the president.

What’s more, the opening on the 5th Circuit for which Bush nominated Owen exists only because Republicans for years refused to hold up-or-down votes on three judges nominated separately by President Clinton. Yet now Republicans are demanding an up-or-down vote on Owen.

“It’s a house of mirrors,” says Craig McDonald, director of Texans for Public Justice, a nonprofit corporate watchdog group that opposes the Owen nomination.

Paul Rosenzweig, a senior fellow at the conservative Heritage Foundation, dismisses the attacks on Owen. “She’s well within the mainstream of judicial thinking. But the merits of her views are not driving this debate. For instance, I can’t see a fig’s worth of difference between her opinion’s or Jeffery Sutton’s on the 6th Circuit.” (Sutton is one of Bush’s nominees who was confirmed with the support of Democrats.)

Of course, as some observers have noted, the oncoming Senate showdown isn’t just about Owen or any of the other stalled nominations. It’s about U.S. Chief Justice William Rehnquist — specifically, who will replace him when he retires as expected this spring or summer. The White House wants the filibuster rule off the table so it can nominate and — with 55 votes in the Senate — confirm virtually whomever it wants for that key post.

“My guess is that it’s between Antonin Scalia and Clarence Thomas, and Thomas has the edge with Bush,” says Jonathan Turley, a professor at Georgetown University School of Law, referring to the U.S. Supreme Court’s two most conservative members. “So ultimately, this filibuster vote will be about Thomas. If the filibuster rule is not defeated, Thomas will never see the inside of the chief justice’s chamber.”

Owen may soon get the spotlight in the filibuster showdown. It’s a star turn that seemed unimaginable just 11 years ago. Prior to being elected to the Texas Supreme Court in 1994 (Karl Rove served as her $250,000 campaign consultant), Owen practiced commercial litigation in Houston for 17 years, arguing one federal appellate case and one state appellate case and writing the briefs for one other state court appeal. According to the Texas Lawyer newspaper, Owen had toiled in “legal obscurity.”

“She was a second-tier oil and gas litigator,” McDonald says.

The American Bar Association rated Owen well qualified, but she received much lower marks from members of her local Houston Bar Association. According to its 2003 survey of Texas jurists, the most recent poll available from the association, just 43 percent labeled her work “outstanding,” and 47 percent thought her performance on the bench was “poor.” Hers was the highest “poor” rating of any of the justices on the all-Republican Texas Supreme Court. Interestingly, Owen received her lowest marks in response to the question asking whether she was “impartial and open-minded with respect to determining the legal issues.”

“We’re not talking about a jurist who’s widely respected,” Turley says. He supports nine of the 12 Bush nominees whom Democrats have balked at confirming. Owen is not among them. “She’s a low-quality appointment,” Turley says. “There’s no reason why, on the merits, she’d be elevated to the federal bench. I could think of two dozen very conservative judges who could contribute more.”

The Houston Chronicle concluded that Owen is “less interested in impartially interpreting the law than in pushing an agenda.”

Editorial page writers might be dismissed as natural adversaries of Owen’s. But between 1999 and 2000, the person who most effectively chronicled the judge’s aggressive judicial activism while she was ensconced in the Texas court’s ultraconservative faction and dissented on dozens of cases decided by the all-Republican court was none other than Attorney General Gonzales.

As the liberal advocacy group People for the American Way has documented, in the span of less than two years then-Justice Gonzales singled out Owen’s dissents 11 times, accusing her of ignoring the legislative intent of laws and instead struggling to manufacture an outcome. “We’re going to let Alberto Gonzales be our best witness,” says Ralph Neas, president and CEO of the advocacy group.

In several decisions concerning Texas’ Parental Notification Act, the Gonzales-led majority rejected the views of Owen and the other dissenters who regularly tried to make it harder for pregnant girls to obtain what’s known in Texas as a “judicial bypass,” meaning they didn’t have to inform their parents before having an abortion. The majority scolded Owen, insisting that judges “cannot ignore the statute or the record,” or try to create new law.

In a harmful-product case, Gonzales wrote that Owen’s dissent (in favor of the manufacturer) would have required the court to act improperly and “judicially amend” the law.

In a wrongful-termination case, the Gonzales majority, which found in favor of a fired employee, criticized Owen’s dissent, saying it “defies the Legislature’s clear and express limits on our jurisdiction,” adding, “We cannot simply ignore the legislative limits on our jurisdiction.”

When not specifically accusing Owen of judicial activism, Gonzales and other members of the majority were dissing her legal thinking, waving off one dissent as “nothing more than inflammatory rhetoric and thus merits no response.”

But it was Gonzales’ now infamous putdown accusing Owen of “an unconscionable act of judicial activism” that has hung like an anchor around the judge’s neck. The reprimand came in yet another parental notification case, a string of which dominated Texas Supreme Court headlines during its 2000 session. Once again, Owen in her dissent felt the girl in the case needed to do more to obtain a judicial bypass, saying she didn’t think the minor had been adequately informed about the alternatives to abortion. (In a previous opinion, she had urged that a girl be required to show an understanding of the “philosophic, moral, social and religious arguments that can be brought to bear” before receiving a bypass, despite the fact Texas law simply required that minors be “mature and sufficiently well informed” about abortion.)

In its ruling in the more recent case, the all-Republican majority took time to lecture the dissenters, including Owen, regarding the proper role of judges, particularly with regard to emotional issues such as abortion. They emphasized, “As judges, we cannot ignore the statute or the record before us” — the clear implication being that Owen had tried to do just that.

Additionally, Gonzales wrote a separate concurring opinion in which he criticized the far-right dissent for suggesting a “narrow construction” of the bypass provision that was nowhere to be found in Texas law. According to Gonzales, “To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.”

When Bush nominated Owen in 2001, critics latched on to the language used by Gonzales, who graciously tried to downplay it but never denied that Owen was his intended target. By the time of her first Senate confirmation hearing in 2002, however, Republicans had come up with an alternative (and convenient) explanation. Sen. Orin Hatch, R-Utah, condemned the use of the quote, suggesting that “someone should do a story about how often this little shibboleth has been repeated in the press and in several Web sites of the professional smear groups.” Said Hatch: “The problem with it is that it isn’t true. Justice Gonzales was not referring to Justice Owen’s dissent but rather to the dissent of another colleague in the same case.”

Hatch claimed that Gonzales’ attack on judicial activism was directed at Justice Nathan Hecht, far and away the most conservative member of the Texas Supreme Court, who wrote vitriolic dissents throughout the Parental Notification Act saga. Writing in the Weekly Standard in July 2002, its publisher, Terry Eastland, took the same tack as Hatch, insisting that liberal groups’ “anti-Owen reading of Justice Gonzales’ words in In re Jane Doe is wrong.” The real target, according to Eastland, was Hecht.

However, the key passage of Gonzales’ concurring opinion begins, “The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof” (emphasis added). The use of the plural “opinions” makes it clear Gonzales was not just referring to Hecht.

More recently, on April 21, PowerLine.com, the home of right-wing analysis, argued that any suggestion that Gonzales was attacking Owen is “ludicrous.” Instead, Power Line’s John Hinderaker insisted, Gonzales’ language, which objected to efforts to “require a high standard of proof” for abortions, was directed at two of the three dissenters, but not to Owen because her dissent never tried to make it harder for minors to have abortions. Instead, according to Hinderaker, Owen dissented only because she felt the Supreme Court was conducting a fact-finding mission in the case, which is the job of the trial judge. “Thus, on its face, Gonzales’ criticism of ‘judicial activism’ did not apply to Owen’s dissent,” Hinderaker wrote.

That’s just not true. In Owen’s dissent she clearly objects to the majority’s ruling, complaining: “Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives.” That statement has nothing to do with concerns about an appellate court overstepping its bounds. Owen, creating a higher standard, simply didn’t think Doe did enough to obtain a bypass.

Perhaps more important, this novel, everyone-but-Owen spin clashes with the updated explanation Owen herself offered at a second Senate hearing in 2003. There, she expanded on Hatch’s 2002 theory that Gonzales was not referring to her by suggesting that he was not referring to any of the Texas Supreme Court justices: “I do not believe that he was attacking me, or for that matter, any dissent on the court,” Owen testified.

The final, and most puzzling, Republican evolution came this January during Gonzales’ confirmation hearing as attorney general. Asked about Owen by Sen. Sam Brownback, R-Kan., a supporter of Owen’s nomination, Gonzales took the fall on behalf of the embattled nominee: “My comment about an act of judicial activism was not focused at Judge Owen,” he said. “It was actually focused at me.” He added, “As to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the Legislature intended.”

In other words, if Gonzales hadn’t followed what he believed to be the true intent of the statue by granting a judicial bypass to the Jane Doe minor, then he would have been guilty of an “unconscionable act of judicial activism.”

“Absent any indication that Gonzales was lying to the Senate, I credit his statement,” says Rosenzweig at the Heritage Foundation.

But for some legal scholars, the attorney general’s latest explanation was just too much. “In a city that revolves on spin, that spin is so great it threatens to take the Earth off its axis,” says Turley.

Even some hardcore conservatives seem to agree. When the topic of Gonzales and Owen came up recently on FreeRepublic.com, one member posted the exact language Gonzales had used in his opinion. The Freeper concluded, “To me, it sounds like he is saying the dissenters are falling prey to their ideology and not basing their decision on the law. That means Owen, too. How do you not reach that conclusion?”

Ultimately Owen’s dissents in the Texas abortion cases have served as a double-edged sword, helping make her a hero among the members of the right wing who pushed for her unlikely nomination, but also leading her to be tagged as a judicial activist by Gonzales just when Republicans were railing against judicial activism. (Ironically, Gonzales’ more moderate approach in the same abortion cases could cost him a seat on the Supreme Court; influential anti-abortion groups claim the rulings prove he’s too soft to be trusted.)

If Owen does end up as the public face of the filibuster showdown, it will be fitting, McDonald says. “They’re using the most extreme tactics for the most extreme justice.”

A more direct – and less theocratic – answer would be that this one got through because of the nature of the ban, which allows Republicans in an election year to once again accuse Democrats of waging the real war on women. Or, as the National Right to Life Committee put it, “Members who recently have embraced contrived political rhetoric asserting they are resisting a ‘war on women’ must reflect on whether they wish to be recorded as being defenders of the escalating war on baby girls.” In other words, this is about making Democrats squirm – not unlike what’s happening in reverse in the Senate.

Franks previously tried to attach his bill to the Violence Against Women Act, which has turned into another political cudgel. He made another concession when he dropped the “racial discrimination” provisions of the bill, which the Washington Post’s Dana Milbank aptly described as “the latest attempt to protect racial minorities from themselves.” Under the rules through which it was introduced, Franks’s Prenatal Non-Discriminational Act (PRENDA) needs two-thirds of the House to pass, meaning it needs roughly 50 votes from Democrats.

Today happens to be the third anniversary of the murder of Dr. George Tiller, who provided abortions in the most difficult cases amid actual violence, the daily threat of such violence, and politicized law enforcement tactics. PRENDA would ask the already besieged physicians still alive to police their patients’ decisions – especially their Asian-American patients, who would be singled out for disparate care – and to subject doctors to a fine or a up to a year in prison, or both. It’s utterly unconstitutional of course. Unless you’re in a state where later abortions are limited to special circumstances like threat to life, the United States doesn’t interfere, and rightly so, with a woman’s reason for having an abortion.

In the U.S., this is a “solution” in search of a problem. Even in immigrant communities that show very limited evidence of more boys being born than girls later in the birth order, abortion is far from the only mechanism available to sort for sex. Half of American fertility clinics offer some possibility of sorting by sex before a pregnancy. But if you ask people who actually work on this issue in Asia, where skewed sex ratios – whether achieved through IVF, abortion or even infanticide — can be socially destabilizing, they’ll tell you that limiting reproductive freedom isn’t the answer. The only mechanism that has changed anything (the go-to example is South Korea, where abortion is technically illegal but widely tolerated) is moving toward a more gender-equitable society where life as a woman is less of a burden. Part of that equitable society includes women making the decision when and if to be mothers. Seeking to chip away at that right is the true hypocrisy.

UPDATE: While a majority of the House voted in favor of PRENDA Thursday, 247-168, it did not pass since Republicans called it up under rules requiring a two-thirds majority.

What spurred such rage? Nothing so incendiary as transvaginal ultrasounds or birth control — just the Paycheck Fairness Act, which passed the Democratic House in 2009 but fell to a filibuster by two votes in the Senate in 2010. It modifies the 1963 Equal Pay Act, strengthening enforcement and creating better mechanisms for wage transparency, and authorizes new research on the pay gap and a grant program to teach negotiation skills to women and girls. And while it probably doesn’t have a prayer in the House — if it can even pass this Senate — it manages to bring feminist-friendly legislation back on the table while doubling as a political tool to force Republicans into an uncomfortable corner.

Better yet, it gets to the subject Republicans have intermittently accused Democrats of obfuscating: the economy. As Sen. Patty Murray taunted in a press conference, “To those Republicans who claim to be so concerned about the economy, now is your chance to sign on, When women are not paid what they deserve, middle-class families and communities pay the price.”

Whatever happens with the Paycheck Fairness Act (likely nothing) or the dueling versions of the Violence Against Women Act, this week also saw a bill move that, if it makes it into law, would represent a rare, if tiny, expansion of abortion access on the federal level. That would be the Shaheen Amendment, named for another female Democratic senator, which allows female servicemembers — who suffer disproportionate levels of sexual assault — insurance coverage for abortion in cases of rape and incest. (Currently, the Department of Defense offers coverage only if the woman’s life is in danger, a much more limited policy than that of other federal employees.)

The amendment passed in the Senate Armed Services Committee’s version of the National Defense Authorization Act, with three Republican votes — Sens. John McCain, Scott Brown and Susan Collins. (Democrat Ben Nelson voted against it). Of course, if it manages to get through the full Senate, it has the anti-choice House to contend with. That it would be incredibly narrow says a lot about the state of reproductive rights in this country — after all, rape and abortion exceptions are a compromise that, while reflecting American public opinion, truly jibe with neither side’s actual worldview. But you have to start somewhere, and a time of heated political rhetoric about women’s rights is as good as any other.

“He said that the congresswoman could, if she desired, sit on the dais of the hearing, but she would not be allowed to speak,” Norton told Salon after the hearing. She declined an offer she said “no self-respecting member” would accept.

“I certainly didn’t give them that optic,” she said drily.

Franks was technically within his rights – per the rules, the Democratic minority was granted one witness, D.C. resident Christy Zinks, who had an abortion at almost 22 weeks after the detection of a severe fetal abnormality. Still, as Norton pointed out, “there is a long tradition that goes back more than a century of allowing members to testify on a bill that may touch upon the district.” Nancy Pelosi also condemned the move.

In the testimony she wasn’t allowed to give, Norton says the so-called Pain-Capable Unborn Child Protection Act “is the first bill ever introduced in Congress that would deny constitutional rights to the citizens of only one jurisdiction in the United States, and it is the first bill ever introduced in Congress that would ban abortions after 20 weeks of pregnancy.” Last year, House Republicans managed to strike a budget deal that would deny the District of Columbia the right to use its own Medicaid funds to pay for abortions — another byproduct of the fact that D.C. is ultimately under congressional oversight and has only partial self-governance.

Seven states have followed Nebraska in passing manifestly unconstitutional bans on later abortions without health exceptions, on the scientifically suspect notion that a fetus can feel pain after 20 weeks. So far, pro-choice organizations have declined to mount a legal challenge, for complicated reasons.

Norton called it a “stalking horse” for the overturning of Roe. “We understand we’re the vehicle, we know we’re not the object of affection,” she said. “What they want from the Congress is a federal imprimatur to continue their march in the states, to say, even the Congress has voted for a bill to limit abortion to 20 weeks.”

The National Right to Life Committee has called the bill its “top congressional priority for 2012,” and will score members based on their votes, even though it likely has no chance of getting past the Senate – or the president. “They are serious about this bill,” Norton told Salon. “They’re not playing.”

That said, she thinks that despite Franks’ zeal, other House Republicans have lost their zeal for fighting what’s still being called the war on women. An earlier Franks bill, seeking to limit race- and sex-selective abortions, didn’t make it to the floor. And on the House version of the Violence Against Women Act, fiercely opposed by the White House and women’s groups, “They keep saying that they’re working on a way to reach an accommodation, and for them, that is unusual to say,” Norton said.

“They didn’t anticipate the way the war on women, as it is called, has boiled up to the surface,” Norton said. “And they’re trying to quell it somewhat.”

“Our concern is for the privacy of these women and for their health and safety, for which Central Family Planning has shown very little regard,” said Operation Rescue’s Troy Newman – while posting photographs of the documents, partially redacted in black marker, online.

Antiabortion activists want to create the impression that one way or another, a woman’s decision to have an abortion will be discovered and exposed. The Central Family Medical incident is only the latest skirmish in a decades-long effort to undermine the privacy of abortion patients and harass doctors. In the early ’90s, for example, at least one group of clinic protesters printed on their signs the names of women seeking abortions that day, alongside “don’t kill your baby.” Such actions, while failing to make abortion illegal, have nevertheless managed to cloak it in a stigma that belies the fact that one in three women will have an abortion before the age of 45. Now, activists are seeking new ways to shame women who seek abortions, from requiring them to hand over personal information to actually hacking into their medical records.

Kansas has been ground zero for this: Last year, the Kansas Board for Discipline of Attorneys recommended that former Attorney General Phill Kline, a hero to Operation Rescue, have his legal license suspended indefinitely for mishandling the records from murdered abortion provider George Tiller’s clinic. (The Kansas Supreme Court will make the final call.) But the zeal to keep, and sometimes steal, abortion records casts a wide net.

In Texas, the state Department of Health is trying to implement a failed legislative measure that would require abortion clinics to report far more information about their patients to the state. In Florida, voters will weigh in on a ballot measure that would exempt abortion from the privacy clause in the state constitution, with the short-term aim being to strip minors of a right to privacy that would preclude parental consent. The U.K. recently jailed a hacker who stole and intended to publish the records of 10,000 women who visited the country’s largest abortion provider.

“It promotes the idea that abortion – or your privacy, if you have any – is not safe,” says Katie Stack, a graduate student and activist who spoke out about her abortion on an MTV special, “No Easy Decision.” That put her in close contact with the “online ministry” – the name antiabortion activists have given their efforts to reach women considering abortions through the Internet.

This has been the unstated goal of many activists in the antiabortion movement — and, sometimes, the stated one. “This might sound a little strange,” said antiabortion activist Lila Rose at the Value Voters Summit in 2009, but “if I could insist, as long as they are legal in our nation, abortions would be done in the public square, until we were so sick and tired of seeing them that we would do away with the injustice altogether … maybe then we might hear angels singing when we ponder the glory of conception.”

Rose won’t get her wish any time soon, but antiabortion activists are trying to use the Internet to have a similar effect. Rose was recently on a panel at the International Pro-Life Youth Conference about social media and pro-life activism, where topics included targeting women who are seeking information about abortion online, whether through Yahoo Answers or YouTube commenters – including figuring out where they live and recommending a crisis pregnancy center nearby.

“Privacy is very important to women who have abortions,” says Kate Cockrill, program director of the Social and Emotional Aspects of Abortion project, at the University of California, San Francisco. She points out that abortion is traditionally underreported even in confidential surveys, “which is a good indication that women don’t want to be associated with abortion experience in the eyes of someone who’s gathering data, even if it’s anonymous.”

Cockrill recently conducted a survey, as yet unpublished, that seeks to measure the impact of social stigma on women who’ve had abortions. It asked 641 women who had had abortions about 61 items, including questions about the fear people would gossip about you, judge you or hurt you, or the fear that you would lose an important relationship.

So far, she’s found that the women who experienced the most stigma were worried about being judged more than they were about being hurt or harmed, that they feared loss of social status and the ruining of their public identity, that they felt isolated and guilty, and that they feared community condemnation.

But as with other abortion restrictions, which create extra burdens in the supposed service of changing women’s minds, it’s not clear that anyone’s mind is being changed.

“Lots of women who feel a lot of stigma about abortions have abortion anyway,” Cockrill says. “If it’s not doing what antiabortion people want it to do, which is reducing the number of abortions, is it doing something on the other end, [after the fact]?”

Cockrill and her team are going to be using their scale in a study next year to look at the relationship between stigma and poor coping after abortion. Given that antiabortion activists have added to their obsessions the alleged harm abortion causes to women, there’s reason to believe that this is a self-fulfilling prophecy.

Women who have abortions, Cockrill says, “have a huge range of political views.” In fact, in her survey, only 62 percent of the women identified as pro-choice. (Seven percent identified as prolife, and 18 percent described their position as “mixed or neither.”)

“A lot of women don’t experience their abortions as a political act,” Cockrill says, partly an extension of the fact that they don’t see it as constitutive of their identity.

Whether it’s political rhetoric or individual ambivalence, these women are highly sensitive about whom they tell they had abortions. Sixty-four percent of the women in the study said they’d “withheld information about my abortion to someone I’m close to,” and 45 percent said they’d “lied to someone I’m close to about my abortion.”

They may not see it as political, but that silence functions as a vicious circle that antiabortion activists happily seize upon and promote. Cockrill says, “Some people say, ‘We need to have more people come out about their abortions.’ But it’s impossible to get more women to talk about their abortions if they don’t feel supported. And it needs to be on women’s own terms.”

On Monday, a U.S. District Court judge didn’t buy the state’s legislation defunding Planned Parenthood, putting a temporary stay on the enforcement of the law. But within a day, there was another judge who found the argument persuasive: Fifth Circuit Judge Jerry Smith, last seen obnoxiously demanding that a female Justice Department lawyer ”submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.” (Kevin Drum memorably compared it to “a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before,” and you wouldn’t have to look hard to find the sexist condescension.)

The District Court judge had written 24 pages on the constitutional merits, focusing on Planned Parenthood’s First Amendment rights of association. Smith issued two sentences two hours after the state’s petition, undoing that, and apparently buying the state of Texas’ argument that Planned Parenthood’s alleged “abortion promoting” mission justified discriminating against a qualified provider of healthcare.  (The clinics receiving WHP funding don’t even provide abortions, but other Planned Parenthood clinics do.)

In an election year, these posturings take on new meaning; by today, Planned Parenthood was proclaiming in a news release, “What would Mitt Romney’s America look like for women’s health care?  We need look no further than Texas,” and highlighting the policy similarities of Romney and Perry on women’s health. Romney, of course, has pledged to defund Planned Parenthood, which during the primaries became a consensus Republican issue. The last federal attempt to do so, last year’s Pence Amendment, nearly shut down the entire government, though Obama held the line — as he pointed out in a recent campaign video supporting the organization.

The presidential policies matter, but as we can see from Texas, the judiciary, prompted by state legislatures that are coming off a wave of abortion restrictions, is currently wielding the most power when it comes to women’s everyday lives, and the 5th Circuit in particular has been unrepentantly hostile to reproductive rights. When they failed with Pence, right-to-lifers turned to the states, primed by the 2010 election of even more anti-choice legislators and governors. In Texas, the conservative 5th Circuit has become a brick wall, previously allowing enforcement of the most extreme ultrasound law in the country, one that requires a woman to listen to the results.

Smith is a Reagan appointee, as is his fellow 5th Circuit conservative gadfly Edith Jones, who wrote the opinion in the ultrasound case, though if they’re feeling particularly emboldened lately, you can’t really blame them. After all, the Obama administration has shown little interest in prioritizing the judiciary, even after Bush’s ambitious effort to fill federal appellate courts with movement conservatives. A January Brookings Institution report showed that Obama has nominated fewer federal trial judges than his predecessors, even as a wave of judges retires. (Unprecedented Senate intransigence is a major factor in confirmations, but doesn’t explain the nominations.)  And Dahlia Lithwick has argued that “Obama, like Bill Clinton before him, has selected lower court judges more notable for their racial and gender diversity than their hard-left judicial orientation.”

All of this is to say that as long as states like Texas keep passing laws that punish women and stretch the boundaries of constitutional interpretation, to put it mildly, the buck is likelier than ever to stop at a judge like Jerry Smith.