The Magazine

The Willful Majority

Aug 5, 2002, Vol. 7, No. 45 • By TERRY EASTLAND, FOR THE EDITORS
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NO ONE HAS PROVED more important to the confirmation of judges--or non-confirmation, as the case may be--than James Jeffords, who last year shifted control of the Senate to the Democrats. Had Jeffords not bolted the Republican party, we wouldn't be writing this editorial, for, as the lawyers say, there would be no case or controversy. The Republican Senate would be quietly and without delay confirming Bush's nominees.

But Jeffords did what he did, and with the Democratic Senate pitted against the Republican administration, confirmation has become less a process than a time of stress--especially for nominees to the highly important circuit courts of appeal. It is common for presidents to see most of their circuit nominees confirmed during at least their first two years in office. But, at the 18-month mark of the Bush presidency, only 34 percent of circuit nominees--11 of 32--have been confirmed.

That is far and away the lowest percentage at such an early point in any presidency, and might not be as startling if Bush's nominees were on the whole a subpar bunch--which is manifestly not the case--or if the president had tapped most of the nominees only recently, within the past six months, say. But among the unconfirmed are 10 lawyers Bush named more than a year ago. And only 2 of them have even had hearings before the Judiciary Committee.

By putting the Democrats in charge of the Senate, Jeffords's switch made it possible for them to slow the process for circuit nominees. Of course, if a less liberal group of Democrats were sitting on the Judiciary Committee, the percentage of confirmed circuit nominees probably would be higher. But the 10 Democrats on the committee (there are 9 Republicans) are, as a group, more liberal than the Senate's Democratic majority. As such, they are more inclined than not to oppose a nominee on ideological grounds--as Sen. Charles Schumer has argued should be the standard. And, holding a one-vote edge, the Democrats on the committee have the raw power to kill a nomination, as they did earlier this year with Charles Pickering's.

So far, Pickering is the only nominee to have been voted down in committee. Will Texas Supreme Court Justice Priscilla Owen become the second? Bush announced her nomination to the Fifth Circuit more than 400 days ago--on May 9, 2001. Last week she finally got a hearing. There is no question that she is qualified. She excelled in law school and for 17 years as a commercial litigator with a top-tier firm in Houston. She was elected to the Texas Supreme Court in 1994 and reelected overwhelmingly in 2000, having been endorsed by every major newspaper in the state. Former justices of the Texas Supreme Court and past presidents of the state bar have fairly leaped to say good things about her. And the American Bar Association in its review of her candidacy for the Fifth Circuit--an assessment Senate Democrats insist upon for every nominee--unanimously deemed her "well-qualified," its highest rating.

It so happens, however, that Owen has drawn the ire of the political and legal left, in Texas and in Washington. An aggressive campaign to defeat her nomination has focused on opinions said to be biased against abortion rights. Of course, the issue with any set of opinions is how they interpret and apply the relevant law. And in assessing how a judge treats a particular law, one must take care: Some laws can reasonably be construed in different ways. So it has been with Texas's Parental Notification Act, which creates a judicial bypass by which teenage girls may have abortions under certain circumstances without telling their parents. Owen has more narrowly construed the statute than have some of her colleagues, including then Justice Alberto Gonzales (now White House counsel). But her interpretation of the law--the subject that dominated her hearing--is well within the bounds of reason.

Still, committee Democrats can defeat the Owen nomination if they want to. And the fix may be in. During the hearing, no Democrat voiced support. In Texas, Ron Kirk, the Democratic nominee for Phil Gramm's seat, has opposed her nomination. If the committee rejects Owen, however, it will be making a major statement. For where Pickering was a marginal choice for the Fifth Circuit, Owen is truly a first-rate nominee. If the committee denies her, it can deny anyone--including anyone the president might name to the Supreme Court. President Bush may well be facing, in the 10 Democrats who sit on the Judiciary Committee, an entirely willful majority.

Whatever the fate of the Owen nomination, it should be obvious that if the president wants to appoint judges and justices who share his judicial philosophy, he needs to have reversed what James Jeffords wrought. He needs a Republican Senate--which he can help bring about.

--Terry Eastland, for the Editors