The battle over Bush's judges

Liberals are mobilizing to fight antiabortion zealot Priscilla Owen's nomination to the Court of Appeals, but there's a long list of pro-life nominees queued up behind her.

By Michelle Goldberg
Published July 19, 2002 9:28PM (EDT)

The Bush administration is gearing up for its second big judicial confirmation battle, as the Senate prepares to hold hearings next Tuesday on Priscilla Owen, a conservative Texas judge whom President Bush nominated to the 5th Circuit Court of Appeals, one of the highest courts in the country.

Liberals have already scored one knockout, defeating Bush nominee Charles Pickering for the same appeals court in March, after opponents made sure charges of racism doomed the conservative federal judge and former state senator. Now, a comparable coalition of liberal groups has united to fight Owen, including the Texas AFL-CIO, the Texas NAACP and the Texas Gray Panthers. But none have been louder than pro-choice groups -- including the National Organization for Women, the National Abortion Rights Action League and Planned Parenthood -- because Owen is considered a formidable enemy of abortion rights, even by Texas Republican standards.

Whether Democrats come together to reject Owen as they did Pickering will indicate how hard they're prepared to battle to stop Bush from stacking the courts with what Sen. Charles Schumer, D-N.Y., has called "out-of-the-mainstream conservative ideologues." In May, Bush complained that the Democrats' failure to confirm his nominees was creating a judicial "vacancy crisis" in American courts. Schumer shot back: "Nominate ideologues willing to sacrifice the interests of many to serve the interests of a narrow few, and you'll have a fight on your hands. It's that simple."

Actually, it's not simple at all. Owen is at the center of a growing political firestorm over the role of ideology in the judicial selection process, and how far the Senate can take its constitutionally mandated charge to "advise and consent" on the president's nominees. She's just one of Bush's many deeply conservative picks for the federal bench. If all -- or even most -- of Bush's choices are confirmed, it will push the federal judiciary significantly to the right. Nowhere is that more clear than on the issue of abortion, which is paramount to partisans on both sides.

Meanwhile, Democratic senators, still smarting from the way Republicans derailed Clinton nominees during the last administration, want payback, but it's unclear how much political capital they're willing to spend to fight judges most of their constituents have never heard of.

So far, they've been dealing with Bush's more extreme picks by refusing to deal with them. When senators don't schedule hearings, "nominees just go off into limbo," says Sheldon Goldman, University of Massachusetts political science professor and author of "Picking Federal Judges: Lower Court selection from Roosevelt through Reagan."

The widely disparaged 9th Circuit ruling on the Pledge of Allegiance gave Republicans an opening to hammer on the Democrats to speed things up. "This is a good moment to shine the spotlight on where Democrats stand in terms of appointing activist judges," Republican National Committee spokesman Kevin Sheridan said at the time. "It's a wake-up call to the American people that certain Democrats, especially in the Senate leadership, have an agenda that may be out of step with the rest of America, that they stand in the way of judges that act only within the bounds of mainstream American legal opinion."

Now, though, things are starting to roll. The Senate just confirmed the passionately antiabortion, professionally unspectacular Lavenski Smith -- a virtual unknown with just a single year on the bench -- to the 8th Circuit. Bush's 22 circuit court appointees reflect a wide range of experience, including little-known legal names like Smith as well as respected scholars like Michael McConnell, but they all have one thing in common: A strident opposition to abortion.

With Owen's hearings next week, the furious behind-the-scenes political wrangling over judicial ideology is moving into the open.

"They've tried to kill all the nominees or delay them," fumed Phyllis Schlafly, the high-profile president of the conservative Eagle Forum and a diehard abortion opponent. "There's an unwillingness to admit that Bush won the election. He won and he can put forth his nominees and his ideas and legislative proposals whatever they are, and I see no reason why he has to moderate them in order to please the media or people in the Senate."

Public attention to the court's role in abortion is usually focused on the Supreme Court, and the question of whether nominees to the court will uphold Roe vs. Wade, the landmark 1973 decision that legalized abortion. But these days the most important battles over reproductive rights are being fought in state legislatures and, by extension, the district and circuit courts where statutes limiting abortion usually get their final hearings.

With Roe still standing, states aren't allowed to outlaw abortion entirely, but the 1992 Supreme Court decision Planned Parenthood of Southeastern Pennsylvania vs. Casey gave states the power to regulate abortion as long as they don't impose a vaguely defined "undue burden" on women.

Under that rubric, states have enacted hundreds of restrictions on both abortion providers and abortion seekers, including laws requiring minors to get parental consent, mandating waiting periods, extending doctors' liability and imposing onerous regulations on abortion clinics. Since the Supreme Court rarely accepts abortion cases -- it's only heard two in the last 10 years -- it's the circuit courts that are left to decide what an undue burden is.

Bush's 22 pending circuit court nominees can be expected to construe "undue burden" very narrowly, advocates say. Several aren't just antiabortion -- they're bona-fide pro-life activists, and they'll have enormous power to impose their views.

The dozen circuit courts of appeal are the second-highest courts in America. Each covers a multi-state region, and together they hear far more cases than the Supreme Court -- last term, the Supreme Court heard about 90 cases, the circuit courts 57,422. According to NARAL, if all of Bush's circuit court nominees are confirmed, by the end of the year 10 of the 12 courts will have antiabortion majorities, up from seven right now. "Day in and day out, the lower courts are the courts of last resort for most litigants," says Betsy Cavendish, legal director of the National Abortion Rights Action League.

For anyone seeking to protect abortion rights, the idea of Owen as a last resort is grim. She was described by the Houston Chronicle as being "stricter and more conservative than the majority of her all-Republican colleagues" on the Texas Supreme Court. In Texas, Owen had to hear so-called "Jane Doe" cases dealing with that state's parental notification law, which mandated that minors who couldn't go to their parents had to get permission from the court to get an abortion. She voted against Jane Doe in every case but one (in which she was ruling on a clear-cut procedural issue). In a case in which she dissented from the majority recommendation to allow an abortion, her colleagues -- Republicans all -- wrote that opposition to abortion "does not excuse judges who impose their own personal convictions into what must be a strictly legal enquiry."

Her ideology is mirrored by many of Bush's other nominees.

On Monday, the Senate confirmed the nomination of Lavenski Smith to the 8th Circuit. In addition to serving as the executive director of the Arkansas branch of the Rutherford Institute -- the Christian-right group that bankrolled Paula Jones' lawsuit against President Clinton -- Smith was a lawyer for the plaintiff in a case called Unborn Child Amendment Committee vs. Dr. Harry Ward, a suit to try to prevent abortions from being performed in public hospitals, even with private funds. In his failed run for the Arkansas Supreme Court, Smith received donations from a PAC whose sole purpose is to promote antiabortion candidates.

While working in the Colorado attorney general's office, Timothy Tymkovich, nominated to the 10th Circuit, fought a Medicaid statute requiring states to fund abortions for poor women if they were the victim of rape or incest. He lost in both the district court and the Court of Appeals, and his appeal to the Supreme Court was turned down. He also testified against the Medicaid statute before a Senate Governmental Affairs Committee.

Carolyn Kuhl, nominee for the 9th Circuit, wrote what a colleague described as an "aggressive" memo urging the Supreme Court to reverse Roe during her tenure in the Reagan administration Justice Department. As a private attorney, she filed a brief in the Rust vs. Sullivan case in support of the so-called "gag rule," a regulation that prohibits health workers who work at family planning clinics that get government funds from even mentioning abortion to their patients.

Even 10th Circuit nominee Michael McConnell, whom several law professors describe as among the most moderate of Bush's picks, signed a "statement of pro-life principle and concern" in 1996, calling for a constitutional amendment banning all abortions and saying, "Abortion kills 1.5 million innocent human beings in America every year. There is no longer any serious scientific dispute that the unborn child is a human creature who dies violently in the act of abortion ... Abortion kills: few would now deny that."

That statement outlined the antiabortion strategy of chipping away at abortion rights while waiting for Roe vs. Wade to be overturned. "In its 1992 Casey decision, the Supreme Court agreed that the state of Pennsylvania could regulate the abortion industry in a number of ways," the statement says. "These regulations do not afford any direct legal protection to the unborn child. Yet experience has shown that such regulations -- genuine informed consent, waiting periods, parental notification -- reduce abortions in a locality, especially when coupled with positive efforts to promote alternatives to abortion and service to women in crisis. A national effort to enact Pennsylvania-type regulations in all fifty states would be a modest but important step toward the America we seek."

Such rhetoric alarms abortion-rights activists because, if confirmed, McConnell and the other judges will be ruling on precisely such regulations, which in some states are already making it extremely difficult in a practical sense for women looking to end their pregnancies.

For example, many states have passed "Targeted Regulations of Abortion Providers," or TRAP laws, which impose impossibly detailed rules on abortion clinics, right down to the temperature the air conditioner must be set to. Dr. Mary E. Smith, the only abortion provider in Texas north of Dallas, operated for years undaunted by antiabortion harassment. Her home address, drivers license and the names and ages of her family members was published on the Nuremberg Files Web site, which advocates violence against abortion doctors. But Texas' TRAP laws finally made it financially impossible for her to continue providing abortions.

Nor are TRAP laws the only statutes threatening abortion access. Oklahoma is expected to appeal a district court decision that a law mandating parental consent was unconstitutional because it lacked provisions for judicial bypass and medical emergencies; the case would be heard by the 10th Circuit, to which Bush has nominated two strongly antiabortion judges.

The 7th Circuit is hearing a case called A Woman's Choice vs. Newman, which challenges an Indiana law requiring women to get information about abortion's risks, alternatives to the procedure and the size and viability of her fetus in a face-to-face meeting with a medical professional 18 hours before an abortion. Right now, women receive the information over the phone. According to Janet Crepps, staff attorney at the Center for Reproductive Law and Policy, for women who have to travel a long way to find a doctor who performs abortions, being forced to make two trips or stay overnight could be prohibitive.

"The district judge in that case found that the two-trip requirement would probably result in 10 percent of women being unable to obtain abortions," Crepps says. "For abused women, it's hard enough to get away once." Crepps doesn't know whether the 7th Circuit will uphold the Indiana law or not. "If you look at the court as a whole, it's fairly balanced between the more conservative judges and judges who may be willing to extend a fair amount of protection to abortion rights," she says. "In a circuit like that, one or two judges could make a huge difference."

Of course, whenever Democrats object to potential judges because of their views on abortion rights, Republicans call it a litmus test. "Personal views should be left at the courthouse door," says John Nowacki, director of legal policy at the D.C.-based Free Congress Foundation, a conservative group that's been a loud voice in favor of Owen. "When you get into this sort of ideological litmus test, it compromises judicial independence and hurts the idea of a fair judiciary. One of the biggest problems with the confirmation process right now is using this sort of a test. It's an excuse to openly politicize the process, and that can only hurt it."

The problem is that Democrats aren't the only ones with an abortion litmus test. Bush's conservative base expects him to pass over pro-abortion-rights candidates, and he seems to have made it a pivotal -- if not the pivotal -- issue in his selections. "We know that Clinton had a litmus test on that issue," says Schlafly. "We've got a new administration now, and I think we're entitled to go the other way."

And they have. "If there's anyone who's not hostile [to abortion rights], you'd have to wonder how the person snuck through," says Michael Gerhardt, a William and Mary School of Law professor who authored a book about the federal appointments process. "Hostility itself is an expectation, maybe even a condition."

In fact, Bush included a few moderates in his initial picks, renominating two circuit judges picked by Clinton, Barrington Parker and Roger Gregory, both of whom have since been confirmed. While Parker has issued rulings that anger abortion-rights activists, including a ruling that "the government may make a value judgment that supports childbirth over abortion," Gregory is considered pro-choice.

But since Gregory, not a single one of Bush's circuit court nominees have been supporters of abortion rights (at least not openly so). In fact, they've overwhelmingly come from the far right of the Republican Party.

"There is no question that George W.'s nominees are more uniform in their approach than either his father's or Clinton's," says Gerhardt. "There are a number of Reagan and George H.W. veterans who take a position that George H.W. Bush in particular did not do a good enough job in vetting ideology." Bush the son, he says, is correcting his father's moderation.

And since opposition to abortion has played a major role in getting these judges nominated, abortion-rights advocates say Democrats can't very well ignore the issue. After all, it's not simply that Bush is choosing judges who share his strict, literal interpretations of constitutional freedoms and who happen to be antiabortion. In some cases, their opposition to abortion is their qualification. While McConnell has a reputation for judicial restraint and scholarly brilliance, some of Bush's other picks are professional nonentities or judicial activists who tend to use the bench to override laws they disagree with -- exactly what Bush has said judges shouldn't do.

Lavenski Smith is obscure among his colleagues; he hasn't published a single book or article. During his hearing, he was criticized for failing to cite a well-known precedent that contravened the argument he made in his Unborn Child Amendment Committee case. The American Bar Association code of conduct requires lawyers to cite relevant legal authority; failing to do so might suggest a disregard for precedent.

Priscilla Owen also has a history of putting her beliefs before legal exactitude -- in one parental bypass case, Al Gonzales, her Republican colleague on the bench, called her position an "unconscionable act of judicial activism." Now White House counsel, Gonzales is responsible for promoting Owen's confirmation.

Unlike McConnell, Owen has not won the support of anyone except her ideological kin. According to Susan Hayes, a former clerk in the Texas Supreme Court who later represented abortion-seeking minors in front of Owen, "Her nomination really shocked a lot of Texas Supreme Court insiders, because she was not considered the best and the brightest. She has trouble keeping up with her workload. My biggest issue with her is her workload and the clarity of her opinions. Her job as an appellate judge is to make the law clearer for the lower courts. Her opinions are difficult to follow, and she's slow. If the White House is concerned about the backlog in the federal judiciary, she's not a very good pick."

And that's why Democrats haven't been moving terribly quickly to hold hearings and votes on some of Bush's judicial picks. While 58 of Bush's 106 nominees to the federal bench have been confirmed, the pace is slower for his circuit court selections, who are both more powerful and more controversial. Out of his 32 nominations, only 10 have gone through. Republicans are particularly incensed that seven of Bush's first 11 nominees have not yet had hearings.

"The committee has gone first to nominees where there is consensus," says David Carle, spokesman for Senate Judiciary Committee Chairman Patrick Leahy. "More controversial nominees take more time."

Things have also been stalled by the Bush administration's decision to cut the American Bar Association out of its historical role in vetting nominees, something Goldman described as a "radical and very counterproductive step." Because the Bar Association no longer checks out potential judges before they're put forward, the Senate has to do a review after they've been nominated, which takes about a month.

But there's no doubt that some Democratic delay is payback for the Republican Senate's blocking of an unprecedented 167 Clinton nominees -- which in turn gave Bush an inordinate number of seats to fill. The current Senate, says Hofstra University law professor Robin Charlow, "is not anywhere near as bad as the situation was with Clinton, where the judiciary was decimated."

"There's no question that ideology is playing a big role now," says Goldman. "For the Democratic senators, they feel that the Republicans rewrote the rules by holding up or vetoing Clinton nominees on the basis of ideology, and what's fair is fair. Traditionally, the Senate has not considered ideology a factor in the confirmation process, but that began to change during the Reagan administration and that has continued through to today. The Republicans ratcheted it up during the Clinton administration."

That has led to all-out political war over what was once seen as an impartial process. In a subcommittee speech, Schumer explicitly laid out the source of Democratic rancor. "They created a problem by not confirming qualified nominees. They propose to solve the problem by nominating out-of-the-mainstream conservative ideologues," he said. "Then they complain when we don't move quickly enough to implement their unacceptable solution. It's rank hypocrisy. There's no other way to put it. We're not going to be bamboozled into rubber-stamping a slate of [Antonin] Scalias and [Clarence] Thomases who, by any measure, are conservative activist judges. We're not going to be bullied into letting this administration stack the courts for decades to come."

Nevertheless, the Senate has moved forward with many of Bush's nominees, especially for lower courts. "Of the 70 or so nominees the Judiciary Committee has approved, nearly all are pro-life Republicans," says Carle. Among them are Jay Zainey, former chair of Louisiana Lawyers for Life, whom the Senate unanimously confirmed as district judge in Eastern Louisiana in February. Recently, Zainey dismissed the case of a woman who was imprisoned while pregnant and denied access to an abortion.

But since their power is much greater, circuit court nominees like Owen and McConnell are certain to be scrutinized much more closely.

Even some liberals insist the Senate should vet judicial nominees on a range of issues, most importantly their qualifications for the job, and not merely whether they agree with them politically. That's why several support Michael McConnell, though they disagree with him on the issues. "Bush is not going to appoint people who don't agree with what he says, and he himself is very conservative," says Charlow, who specializes in religion and the constitution. "It's very unlikely he's going to name somebody who thinks abortion is a good idea. No matter who he names, they're probably not going to be personally in favor of abortion rights. The issue for me is not whether they're in favor of abortion rights or not, it's how crazed they are."

She says that McConnell, for example, "is not a crazy person. He's not going to go out of his way to distort the law, and he doesn't assume that everything he believes politically is the law." Though she's pro-choice and describes McConnell as far more conservative than she is, she says, "I would not hesitate for a minute to confirm him."

But nobody beyond the right seems to be buying the notion that the president's nominees deserve the benefit of the doubt simply because they are his nominees.

"The argument from the current Bush administration's point of view is that somehow a president's nominees are clothed with a presumption of confirmability," Gerhardt says. "I don't know that that's true. He asked for deference precisely because he's the president and he chooses them, but he chooses them on specific criteria and then tries to dictate the terms on which the Senate will review them. The senators have an equal voice in this process."

Let the shouting begin.

Michelle Goldberg

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

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