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

July 19, 2002 | 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."

Next page: The abortion battle has moved to the states