Priscilla Owen, 50, is one of the more talented women of her generation. She finished third in her class at Baylor Law School. She had the best score in the state on the Texas bar exam when she took it in 1977. Her performance as a judge on the Texas supreme court has earned her the highest rating from the American Bar Association. It’s the sort of career that liberals promoting the advancement of women should swoon over. But Senate Democrats are blocking her nomination to a federal appeals court, not just because she is supposedly too conservative, but because she is too female.
White guys who are as or more conservative than Owen have been confirmed as appellate judges, while her nomination has languished for four years. So it goes in the judicial wars. A woman. A black. A Catholic. A Hispanic. It sounds like the beginning of a bad ethnic joke, but it’s the lineup of the Democrats’ top filibuster victims.
If the Equal Employment Opportunity Commission were reviewing the Democrats’ filibuster choices, it would have grounds for a disparate-impact lawsuit. The over-representation of minorities and women–especially if you put aside nominees from Michigan who have been targeted in a spat dating back to the Clinton years–is not a coincidence. Democrats fear that a non-Protestant, nonwhite non-male might be easier for President Bush to elevate to the Supreme Court from a federal appeals court, so they want to keep nominees with the “wrong” demographics from getting on an appeals court in the first place. Consider Miguel Estrada, or as some Democrats think of him, “the dangerous Latino.”
A Democratic Senate aide wrote in 2001 that liberal groups were especially keen to block Estrada. They consider him, the aide wrote, “especially dangerous because he had a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” Peter Beinart, editor of the liberal New Republic, agreed that it was important to block the “Honduran immigrant” for the same reason. Estrada withdrew his nomination in 2003.
This doesn’t make Democrats racist, sexist, or any other -ist. And they are correct in their political reasoning. Republicans have played demographic politics to help get conservatives on the Supreme Court, namely Antonin Scalia (Italian American) and Clarence Thomas (African American). But that doesn’t make the Dems’ racial and gender profiling any less awkward. In the filibuster fight, Democrats invoke minority rights. What they are attempting to vindicate is the right of the Senate minority to block minorities.
The logic of the Democratic position entails a kind of inverse Leninism–better is worse. The more attractive a nominee’s personal story, the more imperative it is to oppose him or (especially) her. Democrats might have filibustered California Supreme Court Justice Janice Rogers Brown anyway, but her fate was surely and truly sealed by the fact that she is black, was raised by sharecroppers in segregationist Alabama, and worked her way through law school as a single mother after her first husband died. This background screams “attractive U.S. Supreme Court nominee.” So for the left, Brown is “a dangerous black woman.”
Because Democrats have used unprecedented judicial filibusters to block the nominees, they have had to apply red-hot rhetoric to justify themselves. Priscilla Owen might have been a garden-variety conservative if she had a Y chromosome, but as a woman she is deemed an “extremist” undeserving of an up-or-down vote on the Senate floor. The evidence adduced to support this charge is primarily her decisions on the Texas supreme court in cases involving the state’s parental-notification statute. She ruled with the majority in nine out of 12 such cases, hardly a sign of runaway judicial extremism.
When it comes to Owen, Brown, or presumably other compelling conservative women appellate nominees, Democrats have a simple message: “You’ve come a long way, baby. Go no further.”
–Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.
(c) 2004 King Features Syndicate