Conservatives have good reason to be unhappy with the agreement announced last night concerning the Senate’s judicial-confirmation process. The agreement does not guarantee up-or-down votes on all of President Bush’s judicial nominees, nor does it restore the Senate’s unswerving 214-year tradition of majority vote for all judicial nominees. In addition, the agreement attempts to rewrite Article II of the Constitution, by giving the Senate an advise-and-consent role in the nomination, as well as the appointment, of judges (see here and here for more). Our objectives are still within reach, however. As one of the signatories to the agreement made clear last night, the agreement does not foreclose the use of the Byrd option in the event that the filibuster continues to be abused. Moreover, conservatives should be proud of the principled manner in which they have conducted this debate.
The other side’s position, by contrast, is an intellectual shambles. The agreement guarantees up-or-down votes to Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor–three well-qualified nominees who were once deplored as extreme and dangerous (as late as yesterday afternoon). The agreement is thus an effective admission of guilt–an admission that these fine nominees should never have been filibustered in the first place. Moreover, by forbidding future filibusters of judicial nominations except under “extraordinary circumstances,” the agreement establishes a new benchmark for future conduct in the United States Senate–namely, that other qualified judges who are firmly committed to the law, like Owen, Brown, and Pryor, deserve an up-or-down vote, too.
Likewise, for months it was claimed that the filibuster is sacrosanct to the Founders, and that using the Byrd option to restore Senate tradition would be illegal. Yet Senator Robert Byrd reminded the world just last week that our Founders did not tolerate filibusters–that “the rules adopted by the United States Senate in April 1789 included a motion for the previous question,” which “allowed the Senate to terminate debate” by majority vote. And just yesterday, he conceded that “the so-called nuclear option has been around for a long time. It doesn’t take a genius to figure that out.”
It is now conceded that Justice Owen, Justice Brown, and Judge Pryor all deserve up-or-down votes. I happen to know personally that the case against Justice Owen was especially weak, because I know Priscilla personally from our service together on the Texas supreme court. Just consider the following litany of supposedly “out of the mainstream” rulings for which she was criticized:
‐A number of senators criticized Justice Owen’s opinion in Montgomery Independent School District v. Davis. One senator specifically attacked her for failing to protect a teacher who was “wrongly dismissed.” The case involved the authority of a local school board to dismiss a poorly performing and abusive teacher. The teacher had admitted that she had referred to her students as “little s***s.” When confronted, the teacher justified the use of the expletive on the bizarre ground that she used exactly the same language when talking to her own children. The teacher regularly insulted parents as well. The opinion joined by Justice Owen concluded that the school board was authorized to dismiss this teacher. It noted that the majority’s ruling “allows a state hearing examiner to make policy decisions that the Legislature intended local school boards to make,” and that the majority had “misinterpreted the Education Code.”
‐One senator attacked Justice Owen for her opinion in Texas Farmers Insurance Co. v. Murphy. In this case, Justice Owen simply joined an opinion holding that neither an arsonist nor his spouse should benefit from his crime by recovering insurance proceeds. The opinion followed two unanimous decisions of the Fifth Circuit, the very court to which Justice Owen has been nominated.
‐Justice Owen was also criticized for a ruling she and I both joined in Peeler v. Hughes & Luce and Darrell C. Jordan–in which we simply held that an admitted criminal could not benefit from criminal activity by suing the criminal-defense attorney for malpractice.
‐A number of senators focused on Justice Owen’s opinion in FM Properties Operating Co. v. City of Austin. One senator specifically criticized her for refusing to rule that a Texas water law “was an unconstitutional delegation of legislative authority.” Yet liberal attorneys regularly criticize the nondelegation doctrine and claim that conservatives wrongly use it to invalidate laws duly enacted by the legislature. In fact, just last month one senator criticized another nominee, Bill Pryor, for championing the nondelegation doctrine. So Justice Owen’s critics seem to argue that if you support the nondelegation doctrine, you are out of the mainstream, and that if you oppose the nondelegation doctrine, you are out of the mainstream. It reminds me of a country-western song: “Darned If I Don’t, Danged If I Do.”
‐One senator claimed that, in Read v. Scott Fetzer Co., Justice Owen ruled that a woman raped by a vacuum-cleaner salesman could not sue the company that had employed him after failing to undertake a standard background check–an allegation recently articulated in an op-ed in Roll Call. Yet as my letter to the editor noted, that allegation is plainly false. As the opinion joined by Justice Owen noted, “[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.
‐Justice Owen was also criticized for her ruling in Hyundai Motor Co. v. Alvarado. In that case, an automobile alleged to be defective had in fact fully satisfied the federal standard then in effect. The plaintiff chose to sue anyway, despite federal law. Justice Owen simply held that Congress had forbidden such lawsuits once the federal standard had been met–a technical legal doctrine known as federal preemption. For this, she was sharply criticized. Yet her opinion simply 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 Justice Owen’s approach (Geier v. American Honda Motor Co., Inc.), in an opinion authored by Clinton appointee, and former Democrat chief counsel of the Senate Judiciary Committee, Justice Stephen Breyer.
‐Justice Owen was likewise criticized for her rulings in Quantum Chemical Corp. v. Toennies, a case involving a Texas civil-rights law expressly modeled after Title VII of the federal Civil Rights Act of 1964, and City of Garland v. Dallas Morning News, a Texas open-government law modeled after the federal Freedom of Information Act. Once again, all she did was follow precedents adopted by appointees of Presidents Carter and Clinton.
‐Justice Owen and I happened to disagree in Weiner v. Wasson, a case involving a technical matter of applying a statute of limitations to a medical malpractice suit. One senator argued that my opinion was “a lecture to the dissent” about the importance of stare decisis and following precedent. The argument is baseless. In fact, Justice Owen didn’t try to overturn precedent in that case; only the defendant did. Moreover, Justice Owen’s ruling contained an equally emphatic “lecture” to the defendant about the importance of following precedent.
And of course, there were the now-famous cases involving the popular Texas parental-notification law–a parental-rights law that generally requires minors to notify one parent before obtaining an abortion. Readers should ask themselves one simple question: Who would you trust to analyze and determine the quality of Justice Owen’s legal analysis in those cases? The author of the Texas law–who supports Owen? Her former colleagues on the court, including former Justices Alberto Gonzales and Greg Abbott, who support her? Now-Attorney General Alberto Gonzales, who has testified–under oath–that he supports Justice Owen and that, contrary to false reports, he never accused her of “judicial activism”? The pro-choice Democrat law professor appointed by the Texas supreme court to set up procedures under the statute–who supports Owen, and who has written: “If this is activism, then any judicial interpretation of a statute’s terms is judicial activism”? Or do you trust the liberal special-interest groups who sharply opposed the Texas law, and never wanted that law to be enacted in the first place? Or the groups who literally make a living destroying the reputation of this president’s nominees?
The attacks on these rulings by Justice Owen reminded me of what Mark Twain once said: “A lie can travel halfway around the world while the truth is still putting on its shoes.” But let’s keep our eye on the ball. The American people know a controversial ruling when they see one–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. Justice Owen’s rulings fall nowhere near this category of cases. 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.
Thankfully, the Senate has now effectively acknowledged this important distinction, by guaranteeing Justice Owen an up-or-down vote after four long years.
A Fair Shot, Finally
After enduring years of harsh, unjustified attacks, Justice Owen, Justice Brown, and Judge Pryor will soon finally get an up-or-down vote on the Senate floor. They are highly qualified nominees who are firmly committed to the rule of law. Moreover, by forbidding future filibusters of judicial nominations except under “extraordinary circumstances,” the agreement establishes an important new benchmark for future conduct in the United States Senate. The agreement announced last night acknowledges that Owen, Brown, and Pryor should never have been filibustered in the first place, and moreover, that the Senate must not filibuster similarly qualified nominees in the future. Otherwise, “the spirit and continuing commitments made in this agreement” will have been violated, and in that event, the signatories will be–and should feel–free to take action to restore the 214-year Senate tradition of majority vote.
–John Cornyn (R., Texas) is an United States senator from Texas and member of the Senate Judiciary Committee. He previously served as Texas attorney general and, for 13 years, as state-supreme-court justice and district judge. .