Justice Owen is one of several Bush appellate nominees attacked by environmental groups. I debunked a bunch of their charges for NRO almost three years ago here. Nothing’s changed, other than the amount of time Owen’s been waiting for a Senate vote.

Senator Cornyn addresses some popular left points on Priscilla Owen in a letter in the current Roll Call, so it’s worth reading (not available online):

Nan Aron’s May 10 Guest Observer, “What’s Wrong With President Bush’s Gang of Seven,” criticizes certain opinions authored or joined by Justice Priscilla Owen. As a former Texas Supreme Court justice who served with Owen, I welcome any serious dialogue about the law or about her rulings in particular. Unfortunately, Aron’s charges are deeply flawed and badly misrepresent the cases.

Aron claims that one case (I assume it’s Hyundai Motor Co. v. Alvarado) involved a “faulty constraint mechanism” that resulted in a car accident. Wrong. In fact, the car in question fully satisfied the federal standard then in effect – namely, that cars be, among other options, “equipped with a two-point passive restraint system.” Despite federal law, the plaintiff chose to sue anyway. Owen’s opinion simply held that Congress had forbidden such suits once the federal standard had been met. Out of the mainstream? Not even close. Her opinion followed the “solid majority of the courts to consider this issue” – including precedents authored by judges appointed by President Jimmy Carter. Moreover, the U.S. Supreme Court later adopted her approach, in an opinion authored by Clinton appointee Justice Stephen Breyer (Geier v. American Honda Motor Co., Inc.).

Aron claims that another opinion (I assume it’s Read v. Scott Fetzer Co.) said that a woman raped by a vacuum cleaner salesman could not “sue the company, which had hired him without a background check.” Wrong again. The dissenting opinion made expressly clear that “[n]o one questions that [the company that had hired the rapist] is liable.” The justices simply disagreed on whether another company – one that had not hired the rapist and had no relationship with the rapist – should also have been held liable. Out of the mainstream? Of course not.

Finally, Aron claims that Owen “ignored” a Texas law “designed to help pregnant teens obtain an abortion with court permission.” Wrong yet again.

First, the law simply empowers parents to be notified about the actions of their minor children. Many pro-abortion interest groups actively opposed the enactment of the law – but that was the act of the Texas Legislature, not Owen.

Moreover, Aron repeats the tired and refuted claim that then-Justice Alberto Gonzales accused Owen of an “unconscionable act of judicial activism” in one parental notification case. In fact, Gonzales has sworn – under oath – that he supports Owen and that he never accused her of any such thing.

Ask yourself this question: Who is more credible to talk about the quality of Owen’s legal analysis of the parental notification statute? The author of the statute – who supports her? The pro-choice Democratic law professor appointed by the Texas Supreme Court to craft procedures under the statute – who also supports her? Or the special interest groups who never wanted the law to go into effect in the first place?

We can have serious debates about the law. There are real issues of judicial activism in our nation – whether it’s the redefinition of marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from the public square, whether it’s the elimination of the three-strikes-and-you’re out law and other penalties against convicted criminals, or the forced removal of military recruiters from college campuses. But there is a world of difference between struggling to interpret the ambiguous expressions of a legislature and refusing to obey a legislature’s directives altogether.

Owen is a good judge. She deserves to be confirmed, and most of all, she deserves an up-or-down vote.

Sen. John Cornyn (R-Texas)

Before the public-relations consultants to the Senate Democrats and the left-leaning interest groups came up with the (silly) claim that it is their devotion to separation-of-powers principles and their fidelity to the Constitution that requires them to continue preventing votes on the president’s judicial nominees, they had another, more candid, argument: These nominees are “extreme,” and should for that reason be kept off the federal courts.

The premise of this argument–namely, that “extremists” should not be federal judges–is easy to endorse. The problem, of course, is that the president’s nominees have been nowhere near “extreme,” but have instead been men and women of great intelligence and achievement, with views about the Constitution and the rule of law that are responsible and sensible. In my view, the public desperately needs to be educated about what, exactly, are the predicates for the claims by the New York Times, various senators, and left-leaning pressure groups that the president’s nominees are “extreme.” I am confident that a healthy majority of Americans would be surprised to learn what is in fact the case, namely, that “extreme” turns out to mean “thinks like most people about the role of courts, the rule of law, and the structure of the Constitution.” I once read a short piece by a well-respected (center-left) scholar who pointed out that only a tiny handful of Americans–fewer than 5%, if I remember–agree with the program of the New York Times editorial page. And yet, departure from that program, and nothing else, is what is resulting in the “extreme” defamation.

So, fight the labels, and get to the merits. The obstructionists should have to be more explicit about what they think it is “extremist” to believe, i.e., Congress’s power is bounded, the text of statutes and constitutional provisions should trump judicial policy judgments, abortion–even if legal–may be reasonably regulated, religious expression is protected in the public square, etc. I suspect, more specifically, that if more Americans actually read, or knew about, the stirring and inspiring work of Justice Janice Rogers Brown–”Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”–they would stand up and cheer.

A Clinton appointee has tossed out the state’s law barring distribution of sexually explicit pictures to minors over the Internet, saying it violates the First Amendment and Congress’ authority over interstate commerce.

With all the current analysis of the Senate teetering at the precipice of judicial filibuster reform, few reporters have traced the roots of the Democratic decision to ratchet up their tactics against President Bush’s judicial nominees. The filibuster is just the latest escalation in the war waged against Robert Bork, Clarence Thomas, and some of President Bush 41’s appellate nominees via committee procedure.

The latest chapter–captured in May 2001 by the New York Times–begins with a retreat at which law professors Lawrence Tribe and Cass Sunstein, along with the National Women’s Law Center’s Marcia Greenberger, addressed Senate Democrats. The trio argued the federal courts were at a critical juncture and that Democrats needed to “change the ground rules” on judicial confirmations.

Soon Sen. Chuck Schumer began to publicly advocate that ideology be openly considered by senators in their advice and consent role–reversing the tradition of deference to the president in the judicial selection process–and demanding a pre-nomination veto. Tribe, Sunstein, and Greenberger all testified at Schumer’s hearings, advocating for judicial ideology consideration.

From the Bush 43 administration’s outset, the majority Democrats had slow walked the appellate confirmation process. They turned a corner by defeating Charles Pickering in the Judiciary Committee on a party line vote (which, incidentally led to the Committee for Justice’s formation).

When the Democrats lost the Senate majority in November 2002, they made the final, radical decision: to change the ground rules on judicial confirmations via filibuster of Miguel Estrada because–as we learned subsequently from discovered strategy memos–”he is dangerous” because “he is Latino” and “the White House seems to be grooming him for the Supreme Court.”

So, when recounting why the Senate is at daggers drawn, teetering at the edge of institutional bedlam, let’s give credit where it’s due: to Lawrence Tribe, Cass Sunstein, and Marcia Greenberger.

This is National Review Online’s latest feature: a blog devoted to judicial news, specifically the current Senate battle over judicial nominations. It’s a topic only getting hotter by the date. Stay tuned to “Bench Memos” for news and analysis from smart and clued-in legal and political types.

Judge Bill Pryor, who was recess appointed to the U.S. Court of Appeals for the 11th Circuit after he was filibustered in the last Congress, was voted out of the Senate Judiciary Committee by a party line 10-8 vote today, setting him up in the list of judges to be obstructed on the floor by Democrats. Candidates Terrence Boyle (4th Circuit) and Brett Kavanaugh (D.C. Circuit) were again stalled in committee today.