Appeals court nominee Priscilla Owen's second appearance before the Senate Judiciary Committee March 13 showed that the two sides fighting over judicial nominations are barely speaking the same language.
President Bush nominated Owen, a Texas Supreme Court justice, to the U.S. Court of Appeals for the Fifth Circuit on May 9, 2001. Democrats waited 440 days before granting Owen a hearing, but only one-tenth that long to defeat her in committee. Bush re-nominated Owen on January 7.
In his opening statement, Sen. Patrick Leahy (D.-Vt.) called the March 13 hearing "unprecedented, because never before has a President resubmitted a Circuit Court nominee already rejected by the Senate Judiciary Committee." Yet, as he spoke those words, an equally unprecedented filibuster was occurring on the Senate floor against appeals court nominee Miguel Estrada, nominated the same day as Owen. Leahy himself led the filibuster later that day by helping defeat an unprecedented second cloture motion to end debate.
Owen's rejection by the committee was itself virtually unprecedented, only the sixth time in 60 years the committee actually voted not to send a nominee to the full Senate for consideration. As a lawyer, Leahy knows what it means to waive the opportunity to make certain arguments. He has, by his own actions, certainly waived any argument based on a lack of precedent.
In that same opening statement, Leahy noted that Republicans, when they ran the Senate, did not give hearings to two of President Clinton's Fifth Circuit nominees. But Leahy may want to reconsider using Republican treatment of Clinton nominees as his standard. Both parties delay or deny hearings, but Republicans never voted down a Clinton nominee in the Judiciary Committee, as Leahy & Company did to Owen. And Presidents re-submitting nominations is nothing new. President Clinton re-submitted dozens, nearly every one later confirmed by the Republican Senate.
Judiciary Chairman Orrin Hatch (R.-Utah) described a now-familiar pattern. Accusations or claims from leftist groups and Senate Democrats are exposed, corrected and answered. Hatch described the next step this way: "I was struck at the pervasive way in which Justice Owen's answers were almost totally ignored. The same accusations made by members at her hearing were repeated - as if Justice Owen's answers did not even exist - as if she was never before the committee."
Sen. Edward Kennedy (D.-Mass.) is perhaps the worst offender. He looks only at winners and losers in a nominee's past decisions, does the math, and attributes those results to the judge's bias rather than to the law. Judges who rule for the employer in "too many" discrimination suits are "anti-worker." Judges who rule for the insurance company "too often" are "anti-consumer." Judges whose rulings do not suit Kennedy do not have an "open mind." That's how Kennedy could say Owen has "views hostile to workers' rights" and demand to know any time she had "stood up for the plaintiff."
Owen again expressed the right view. "I do not ever try to achieve a result," she explained. "That is not what judging is about." Rather, she said, "I judge cases by what is right. I do not judge cases by what is politically correct."
The Leahy/Kennedy result-oriented, ideology-focused, litmus test is the antithesis of the rule of law. Chief Justice William Rehnquist says judicial independence is the "crown jewel" of our judicial system. Leftists would turn it into cheap costume jewelry.