Fallout from the filibuster deal

Another look at Justice Priscilla Owen's profile casts a shadow on Dems' ability to invoke "extraordinary circumstances" in future confirmation fights.


Mark Follman
May 26, 2005 7:58PM (UTC)

The last week has seen plenty of theorizing about the fallout from Republicans' war on the judicial filibuster in the Senate. There is the bigger picture to worry about: the greater flock of right-wing Bush nominees who could be confirmed over the next three years; the imminent battle over the next chief justice of the Supreme Court, and one, or possibly two other openings on the highest bench. And then there is the sobering fact of at least three of Bush's far-right nominees suiting up for Circuit Court seats now.

The New York Times' David Kirkpatrick gives us another look today at what's in store with Justice Priscilla Owen, the first nominee to be confirmed following Monday's compromise deal. When the Senate asked Owen for the most significant opinions she had written during her time on the Texas Supreme Court, writes Kirkpatrick, "she provided a list with a distinctive theme: tough." That would be one way to say it: "She chose opinions overturning rulings in favor of a child born with birth defects, a worker injured on an oil rig, a nurse fired for blowing the whistle on a drug-dealing co-worker, a family with an interest in an oil field that had been drained by a nearby company, asbestos and breast-implant plaintiffs and a student whose school made him cut his hair."

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"She represents a part of the Texas culture that is basically a frontier mentality," noted Southern Methodist University law professor Linda S. Eads, who is an Owen supporter and a former deputy attorney general of Texas.

Owen's confirmation won't necessarily change the balance of the Fifth Circuit in New Orleans, which is already dominated by Republicans. But it may define a more important one: "After Senate Democrats allowed her confirmation to break a stalemate over judicial nominations," writes Kirkpatrick, "her conservative supporters argued that her confirmation set a benchmark. Judges with records and views like Ms. Owen's, her supporters argue, can no longer be construed as objectionable. They note that none of her opinions have been overturned."

If conservatives are right, the bar is now set pretty darn high for Dems' to invoke "extraordinary circumstances," per Monday's agreement, in order to use the filibuster in the future. Looking at Owen's pedigree, does anybody really want to think about the kind of nominee that'll require?

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Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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