The Battle of New Orleans

A week of political developments now suggests that President Bush is on a collision course with Senate Democrats over the judicial nomination of Priscilla Owen. On Sunday, incoming Senate minority leader Harry Reid proclaimed that he would not simply accept the judicial nominations of the President without question. He spent most of his time attacking the notion that Clarence Thomas should be Chief Justice of the US Supreme Court. But several of Bush’s picks remain in limbo, with Democrats like Reid threatening a filibuster. On Monday, the US Supreme Court ridiculed three appellate decisions of the Fifth Circuit (to which Owen has been nominated) over death penalty procedure. The most outstanding case, evidence came forward of the Dallas district attorney using jury handbooks that recommend only whites to serve on juries. Add that on Thursday, President Bush had announced no more Cabinet members were leaving. The remaining holdovers are all either minorities or women. And then later on Thursday, Fifth Circuit judge Charles Pickering announced his retirement from the court in favor of “someone younger”. Pickering had been grilled in hearing over his seemingly benign view of a cross-burning defendant. Bush had issued a recess appointment, which would last until the start of the next Congress, after being denied a vote on the Senate floor.

All roads lead to Owen. Bush likes nominating women and minorities to major government posts, using it as a way to appear inclusive even if his policies are not. Owen is a polarizing figure that Democrats detest, but they may have a tough decision whether to dig in and filibuster her only to have Chief Justice of the Supreme Court William Rehnquist resign and trigger an even bigger battle. Owen’s views on the death penalty and abortion are not uplifting, helping fuel the fire between the Fifth Circuit and Supreme Court over death penalty appeals. And Pickering’s exit paves the way for a “younger nominee”. Lastly, Judiciary Committee Arlen Specter is unlikely to suffocate Owen in committee.

What will Reid do? If he knows the Owen won’t pass on the floor of the Senate, he would not resist. If he believes she would squeak through…he would mount an aggressive attack on her using the not so secret weapon. White House Counsel Alberto Gonzales served on the Texas Supreme Court with Owen in the 1990. In at least one major abortion case involving parental notification, Gonzales heavily criticized Owen for being on the fringe of judicial opinion. Instead of using a filibuster solely to delay the vote, the Democrats may turn into a media event all its own: effectively airing every piece of her dirty laundry and painting her as an “activist judge”. Bush used the term to great effect in ’04 but if the Democrats can demonstrate hypocrisy on the matter he might lose the issue.

Still, there is reason to think that Bush merely wants this to happen to vindicate his opinion and alienate more people about the priorities of Senate Democrats. He would love nothing more than to categorize Reid as an “obstructionist”.

Overlooked in all this is the fact that a vote on Owen could backfire. A number of Republican senators running for reelection in 2006 come from battleground states. With Republicans doing better with women in 2004, a number of senators might simply refuse to cast votes. Among the hunted are Olympia Snowe (ME), Rick Santorum (PA), George Allen (VA), and John Ensign (NV) and Lincoln Chafee (RI). Add pro-choice Republicans Lisa Murkowski (AK), Arlen Specter (PA), and Susan Collins (ME) and things start to appear almost dicey for Owen. Yet there is no denying she would easily be confirmed on a straight party-line vote.

Why is Owen so important? Because “judicial activism” supposedly only happens in the Ninth Circuit, based in San Francisco and occupying the largest federal appellate caseload and the largest number of reversals by the Supreme Court. But judicial activism, as in the case of the Texas death penalty lawsuits, can be sins of omission as well as commission. The Fourth Circuit, based in Richmond, Virginia has seen a bevy of suits dealing with terrorism related matters. And the Seventh Circuit has several jurists who favor more radical alterations of contract law. The Fifth Circuit sits in New Orleans. Owen’s presence there would preserve the current state of affairs. Keeping a seat vacant might cause just the opposite.