Four years ago today, President George W. Bush nominated Priscilla Owen to serve on the federal court of appeals. Justice Owen is an extraordinary Texan, an exceptional jurist, and a devoted public servant. Yet, after four years, she is still waiting for an up-or-down vote in the United States Senate. What’s more, a partisan minority of senators now demands–for the first time in history–that she must be supported by a supermajority of 60 senators, rather than the constitutional rule and Senate tradition of majority vote. After four years, it is long past time to restore sanity and Senate tradition to our judicial confirmation process.
I know Priscilla personally, because we served together on the Texas supreme court. Throughout her life, she has excelled in virtually everything she has ever done. She was a law-review editor, a top graduate from Baylor Law School at the remarkable age of 23, and the top scorer on the Texas bar exam. She entered the legal profession at a time when relatively few women did, and after a distinguished record in private practice, she reached the pinnacle of the Texas bar–a seat on the Texas supreme court. She was supported by a larger percentage of Texans than any of her colleagues during her last election, after enjoying the endorsement of every major Texas newspaper.
Unsurprisingly, then, the American Bar Association, after careful study, unanimously rated her well qualified to serve on the federal bench–their highest rating.
Unsurprisingly, she enjoys the enthusiastic support of a bipartisan majority of senators.
Yet a partisan minority of senators now insists that Owen may not be confirmed without the support of a supermajority of 60 senators–a demand that is, by their own admission, wholly unprecedented in Senate history. Why? Simple: The case for opposing her is so weak that changing the rules is the only way they can defeat her nomination.
What’s more, they know it, too. Before her nomination became caught up in partisan special-interest politics, the top Democrat on the Judiciary Committee predicted that Owen would be swiftly confirmed. On the day of the announcement of the first group of nominees, including Owen, he said he was “encouraged” and that “I know them well enough that I would assume they’ll go through all right.” Indeed, just a few weeks ago, the Minority Leader announced that Senate Democrats would give Justice Owen an up-or-down vote–albeit only if Republicans agreed to deny the same courtesy to other nominees.
These concessions are understandable, because the case against Owen is unconvincing. For example, Owen is accused of ruling against injured workers, employment discrimination plaintiffs, and other sympathetic parties on a variety of occasions. Never mind, however, that good judges like Justice Owen do their best to follow the law, regardless of which party will win and which will lose. Never mind that many of her criticized rulings were unanimous or near-unanimous decisions of the Texas Supreme Court. Never mind that many of these rulings simply followed federal precedents authored and agreed to even by appointees of Presidents Clinton and Carter, or by other federal judges unanimously confirmed by the United States Senate. Never mind that judges often disagree–especially when a law is ambiguous and requires careful and difficult interpretation.
Justice Owen is also criticized for enforcing a popular Texas law generally requiring parental notification before a minor can obtain an abortion. Her opponents allege that, in one parental-notification case, then-Justice Alberto Gonzales accused her of “judicial activism.”
This charge is unpersuasive for at least two reasons. First, judges disagree all the time–that’s why we have multi-member courts. U.S. Supreme Court Justice John Paul Stevens once accused Justice Byron White of “judicial activism,” while in another opinion he accused Justice Lewis Powell and Sandra Day O’Connor of “judicial activism.”
But second, and more importantly, Gonzales did not accuse Owen of judicial activism. Not once did he say that “Justice Owen is guilty of judicial activism.” To the contrary, Gonzales never even mentioned her ruling. And he has since testified under oath that he never accused Owen of any such thing. What’s more, the author of the parental notification law supports Owen–as does the pro-choice Democrat law professor who was appointed to the Texas supreme court’s Advisory Committee to implement that law. In her words, Owen simply “did what good appellate judges do every day. . . . If this is activism, then any judicial interpretation of a statute’s terms is judicial activism.”
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. 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.
The Senate judicial confirmation process has been at times emotional and politically divisive, and that is unfortunate. But all Americans of good faith should at least agree that we need a fair process for selecting judges–with full investigation, full questioning, full debate, and then an up-or-down vote. And all Americans should agree that, although nobody likes to lose, the rules should always be the same, regardless of whether the president is Republican or Democrat. Throughout our nation’s more than 200-year history, the constitutional rule and Senate tradition for confirming judges has been majority vote. senators should uphold and restore that tradition–and giving Owen an up-or-down vote, after four years of delay, would be an excellent start.
–The Honorable John Cornyn is an U.S. senator from Texas and a member of the Senate Judiciary Committee. He served previously as Texas attorney general and state supreme court justice.