When Senate Republicans led the 1968 filibuster that blocked the nomination of Abe Fortas as chief justice of the Supreme Court, his opponents focused on an alleged ethical lapse that they said disqualified him.
The real reasons for obstructing Fortas ranged from his liberal ideology and his Democratic partisanship to his Jewish heritage, but his troubles intensified after Sen. Robert Griffin, the Michigan Republican leading the campaign against him, discovered that Fortas had accepted $15,000 to deliver a series of summer school lectures at the American University law school -- and that his lecture fee had been subsidized by his former partners and clients.
This lapse in ethical judgment outraged Griffin and his colleagues, although they could point to no decision or pending case before the Supreme Court that involved any of the donors. That issue probably killed the Fortas nomination.
Ethical standards seem to have declined considerably over the past four decades -- at least among Republican senators and their preferred nominees for the federal bench. What compromised the late Fortas to an unacceptable degree now looks quaintly innocent compared with the record of Priscilla Owen, who has taken hundreds of thousands of dollars from companies and lawyers with cases in her court -- and issued rulings favorable to them on many, many occasions.
Owen is the conservative judicial activist from Texas whose nomination to a lifetime appointment on the federal appellate court may soon spark the long-awaited "nuclear" confrontation in the Senate over the filibuster. If the Republicans applied the same ethical test to her that their predecessors used to disqualify Fortas, she would have been forced to withdraw her nomination, just as he did.
Then she could go home and continue her career of catering to the corporations, trade associations and law firms that have financed her campaigns for the Texas Supreme Court (which were run, incidentally, by Karl Rove).
While much of the debate over the Owen nomination has focused on her opinion in a controversial abortion rights case -- in which her activist interpretation earned a scathing denunciation from none other than Alberto Gonzales, then her colleague on the Texas high court -- it is not her extremist ideology alone that should give senators pause. Equally disturbing is her involvement in the Lone Star State's "pay for play" judicial system, which is something she has in common with Gonzales.
Only a few states require nominees to their highest court to run for election -- and thus to raise enormous sums of money to pay for the cost of statewide campaigns. In Texas, where campaign fundraising taints so much of the political system, the state Supreme Court has suffered national ignominy for many years because of the confluence of corporate contributions and judicial decisions.
Naturally, George W. Bush chose to elevate the two members of that court who took the largest sums of campaign money from Texas business interests while he was governor -- Gonzales, who set the record, and Owen, who came in second.
Owen's defenders argue that she should not suffer from her participation in a system that stigmatizes every judge with the appearance of corruption. The Texas Supreme Court has swung far to the right ever since the state's business interests and corporate law firms joined forces in financing campaigns by conservative nominees about 15 years ago (and hired Rove to help them win).
And Owen appears quite comfortable with the Texas system. Certainly she has never spoken out against its sleaziness, which during her years on the court has convinced most Texans that corporate contributions influence judicial decisions.
That widespread suspicion isn't theoretical. Among the most notorious examples is a case in which Owen wrote the majority opinion that allowed Enron Corp. to escape more than $200,000 in school district taxes. In her 1994 campaign, she took $8,600 from the Houston energy firm and $31,550 from its lawyers at the powerhouse firm of Vinson & Elkins; her consultant Rove also worked for Enron. Two years later, when Spring Independent School District vs. Enron reached her court, she did not recuse herself from the case. Her opinion allowed Enron to choose its own method for valuation, cutting the taxable property assessment by millions of dollars.
So obnoxious was her conduct in the Enron case that it provoked the Houston Chronicle -- a newspaper that has enthusiastically endorsed Bush -- to urge the Senate to reject her nomination three years ago. While acknowledging that Democratic objections to Owen were hardly apolitical, the newspaper's editorial said the Democrats were also displaying "a rational desire to prevent the lifetime appointment of a justice who has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law."
Owen's devotion to her business ideology and apparent sympathy toward her campaign contributions has often left her in the extremist minority, even on the right-tilting Texas bench. One of her better-known dissents came in a case that tested the constitutionality of a state law that had been written specifically to exempt a land developer from the city of Austin's water quality regulations.
Having taken $2,500 from that developer (and an additional $45,000 from the developer's law firm), Owen blasted her colleagues for violating the firm's "property rights," which included the right to foul the water supply in her view. The majority replied that her dissent was "nothing more than inflammatory rhetoric and thus merits no response."
Indeed, Owen has issued rulings favoring her big-business contributors in the overwhelming majority of cases in which they appeared before her.
Given the culture of corruption on Capitol Hill, where pay for play has become a way of life, it may be too much to expect that the Republican leadership would worry about Owen's ethics. And expecting them to remember the ethical considerations that defeated Fortas is equally unrealistic. After all, they suddenly seem unable to remember that the Fortas filibuster ever happened.