CHALK UP A BIG ONE for Priscilla Owen, an unsung winner of last Tuesday's election, and a partial architect of the Republican victory. Owen is the Texas judge who was a Bush nominee for the U.S. Court of Appeals for the Fifth Circuit. She was described by the American Bar Association as "highly qualified," but her nomination never made it to the Senate floor. The ten Democrats on the Senate Judiciary Committee who served as the gatekeepers objected that she was much too "extreme." What made her "extreme" was her support for parental notification in the case of abortion for minors, a position that over 80 percent of Americans support. Liberal interest groups prevailed on liberal senators, themselves to the left of their party. Two of these senators, Dianne Feinstein and Charles Schumer, announced their intention to make unquestioning support for unrestricted abortion a litmus test for approving judges. Owen went down.
George W. Bush did not forget Owen. In every speech he made in his whirlwind tour just before the election, he was careful to include in his brief against Democrats that they were refusing to let his judges even be voted on. He said this in New Hampshire, in Colorado, in the Carolinas, in Missouri and in Minnesota, in Georgia and Texas. All of these states will now have Republican senators. Feinstein and Schumer are still in the Senate, but in the minority, where their power to block nominees will be vastly reduced. They will be able to vote against
Bush nominees on the floor of the Senate, but they will no longer be able to keep them from getting there. Owen will come up again.
What fired up Republican voters? Things just like this. Owen would almost certainly have won on the floor of the Senate, as would Charles Pickering, another ill-fated nominee. But the Democrats used their majority on the committee to keep these Bush picks from reaching the floor. Committee chairman Patrick Leahy also broke his word on a long-standing matter of senatorial courtesy, refusing to let the last nominee of Strom Thurmond (retiring now at the age of 100) come to a vote in committee. As reporter Byron York explained, "Leahy lied."
Then came New Jersey. What do you do in a key Senate race with a clod of a candidate who is rapidly sinking under the combined weight of multiple scandals? You yank him out and replace him with...Frank Lautenberg, who is ancient and graceless but not actually under indictment. New Jersey had rules for changing steeds in midstream, meant to be used in cases of the illness or death of the candidate (not his moral impairment), and then not to be used any later than 51 days before the election. When Torricelli was yanked, there were 36 days to go. But what are a few laws among friends? They found a state supreme court packed with donors to Democrats. Legalists screamed, but the justices paid no attention. Lautenberg replaced Torricelli on the ballot, and he won.
Or did he? The 2000 Florida recount is often described as a red flag to Democrats--sure to enrage and inspire their fervent supporters. What is said less often (but is no less true) is that Florida is also a red flag to conservatives, who remember with loathing the legal contortions of Al Gore and the law-bending, deadline-extending antics of the Florida courts. Of what did the Supreme Court of New Jersey remind all these people? The Florida supreme court. The Lautenberg switch was everything that they detested: It was opportunistic. It was extra-legal. It was Gorean. And it was Clintonesque. At the time, it was hailed as the masterstroke that would save the Senate for Democrats, but that failed to work out as expected. What does it profit a party if it wins in New Jersey but loses in New Hampshire, Georgia, and Missouri? Lautenberg, like Schumer and Leahy, is now in the Senate, but in the minority. Which will not be all that much fun.
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