Owen's fate is in Feinstein's hands

Demos charge Bush's choice for the 5th Circuit is an extremist; the GOP calls her opponents sexist. The tiebreaker will go to the senior senator from California.

By Anthony York
Published July 24, 2002 10:42PM (EDT)

The Senate Judiciary Committee postponed a final decision on the future of Texas Supreme Court Justice Priscilla Owen, leaving in limbo President Bush's choice to fill a vacancy on the 5th U.S. Circuit Court of Appeals. The delay came after the all-day confirmation hearing, a predictably partisan affair, ended without a resolution.

The White House fell into a familiar, defensive pose. "There is a judicial emergency, a judicial vacancy crisis throughout this country, and that's because the Senate has failed to act on many of the president's nominees," said White House spokesman Ari Fleischer, saying Owen was one of 21 circuit court nominees that the Senate has yet to act on.

Exactly when a vote on Owen's nomination may come remains unclear. But after Tuesday's hearing, it did seem clear that Owen's fate rests with Sen. Dianne Feinstein, D-Calif., the apparent swing voter on the committee. But she may have the August recess to make up her mind. "Our best guess is that it won't happen until September," said Scott Gerber, spokesman for Feinstein.

Owen was nominated after Bush's first pick for the 5th Circuit, Charles Pickering, was defeated in March on a 10-9 party-line vote. If Owen's nomination is defeated, it would amount to an escalation in the longstanding war between the parties over filling vacancies in the federal courts.

While Democrats complained mightily about the Republican-controlled Senate's refusal to schedule hearings for Clinton judicial appointees, they have responded in kind since taking control of the Senate last year.

To say that Owen was in the center of a political storm would be an understatement. The same abortion rights and civil rights groups that helped kill the Pickering nomination were calling for Owen's defeat, branding her an antiabortion zealot, while the White House and Owen's defenders accused Democrats and their allies of demagoguery.

"She has demonstrated that she is willing to remake the law in accordance with her ideology in order to achieve a desired result," said Ralph Neas, president of People for the American Way, which opposed Owen's confirmation.

Testifying in Owen's defense, Texas Republican Sen. Phil Gramm said, "The idea that this good woman is some kind of political activist or a kook is as far as you can get from the truth."

Owen's opponents have done everything they can to defeat her nomination, including shine a spotlight on $8,600 in political contributions that Owen received from Enron employees and PACs during her two campaigns for the Texas Supreme Court. Critics like Leahy also pointed to a court decision in which Owen joined the rest of the Supreme Court in a ruling that favored Enron. Leahy said he was troubled that Owen did not recuse herself from the case.

Unlike Army Secretary Thomas White's recent appearance before the Senate Commerce Committee, in which the Republicans on the committee stepped aside as Democrats took their shots, this hearing featured a vibrant back-and-forth between committee members from the opening gavel. The usual suspects quickly fell into their familiar roles -- Utah Republican Sen. Orrin Hatch cast as the partisan stooge and Vermont Democratic Sen. Patrick Leahy as the partisan bully.

Both men played their rolls perfectly. Hatch led Owen through a series of pointed, softball questions geared at clearing Owen's name and attacking her political opponents. Leahy, meanwhile, went out of his way to link Owen with an issue that has been a bad one for Republicans everywhere -- corporate responsibility.

Hatch began by accusing Democrats opposed to Owen's nomination as sexist, claiming she is being penalized "because she is a woman in public life who is believed to have personal views that some maintain should be unacceptable for a woman in public life to have." This, he said, "represents a new glass ceiling for woman jurists, and they have come too far to suffer now having their feet bound up just as they approach the tables of our high courts."

The loyal opposition was no more graceful, particularly Leahy, who chairs the Judiciary Committee. Leahy pointed out that the seat Owen is now up for has been vacant since the Clinton administration, back when Hatch himself refused to give two separate Clinton nominees -- both Latino -- as much as a hearing.

Leahy made a point of highlighting the Clinton appointees' ethnicity three separate times in his remarks, in what was either some strange ploy for swing voter support or an implication of Republican racism, or possibly both. Coming to Owen's defense, Gramm responded in kind, pointing out that the "single mom" that sat before the committee was worthy of its support.

Leahy was unmoved. He grilled Owen about a series of decisions in which she, in Leahy's description, sided with big business over the interests of the common Texan, and often in opposition to other conservatives on the court. "You seem to be outside what is arguably a very conservative Supreme Court," Leahy said.

Leahy bullied Owen with his questioning, interrupting her often in his low baritone, between her futile attempts to sneak in a word or two in her defense. One time he even interrupted to tell her, "Nobody wants to cut you off."

Hatch and Leahy were separated literally and figuratively by Feinstein, who presided over Tuesday's hearings. Advocates in the room pushing for Owen's defeat quickly trained their attention on the California senator, looking for clues.

But after the hearing, Feinstein was still coy about whether she would support the Owen nomination. "She has not made a decision," spokesman Gerber said. "I think she was interested to hear what Owen had to say. She's going to continue to examine the record over the next week, and make a decision then."

Feinstein's questions of Owen Tuesday focused on a series of cases involving a Texas state law that requires minors to receive parental permission before having an abortion. Owen consistently ruled against girls who sought judicial permission to waive parental consent because of difficult family situations.

Feinstein also raised concerns that Owen was too political, a judge who put personal ideology before the law. "There is a feeling among some that you are a judicial activist," Feinstein said.

But Owen said the attacks levied against her by abortion rights groups were unfair. "The picture that some special interest groups have painted of me is wrong," she said. "When I decide a case I must do so on the basis of fair and consistent application of the law."

Anthony York

Anthony York is Salon's Washington correspondent.

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