On a straight party-line vote, Senate Judiciary Committee Democrats rejected President George Bush’s judicial nominee for the 5th Circuit Court because she once upheld a moderately pro-life state law.
Texas Supreme Court Justice Priscilla Owen was eminently qualified: she sat on Texas’s top court since 1994; her 2000 re-election to the Texas Supreme Court, which she won with 84 per cent of the vote, was endorsed by every major paper – liberal and conservative – in her state; she was unanimously rated “well qualified” – its highest rating – by the American Bar Association.
Several moderate Democrats who do not sit on the Judiciary Committee, which votes to recommend the president’s nominees to the full Senate for confirmation, indicated they would support her.
The vote marked the first time in history that a nominee ranked as “well qualified” by the ABA was defeated in committee.
But Owen ran into what ranking Republican Senator Orrin Hatch (Utah) called the “axis of profits” – a network of abortion providers, trial lawyers and the Washington-based special interest groups they fund.
With one million abortions a year costing $1,000 each, Hatch said, “the fight over Priscilla Owen is not about abortion rights, but abortion profits.”
Indeed, abortion was the central, perhaps only, issue Democrats used to deny Owen a seat on the 5th Circuit Court.
Senator Dianne Feinstein (D-Calf.) complained that Owen opposed a “woman’s right to choose.” Feinstein justified using abortion as a litmus test, saying “the issue of choice … is extremely important.”
But it wasn’t abortion, per se, that was the issue. Rather, Democrats, feminist groups and abortion advocates opposed Owen for her vote upholding a Texas state law requiring a minor to notify – notify, not seek permission – a parent before having an abortion.
Democrats complain that Owen was a “judicial activist” who crafted laws from the bench including parental notification. But the parental notification law in Texas was passed by the legislature and has the support of 82 per cent of Americans.
In the 1980s and 90s, Democrats complained that Republicans had a litmus test for judicial nominees of whether or not they supported Roe v. Wade, the 1973 Supreme Court decision that effectively legalized an absolute right to abortion, saying employing any litmus tests was the wrong approach to choosing judges.
But now, Democrats are using “abortion rights” as a litmus test, opposing Bush nominees who oppose limitless access to abortion.
New York Senator Charles Schumer (D-N.Y.) defended the party’s litmus test: “If you persist in sending us controversial nominees, we have no choice but to closely scrutinize their records and reject those who would bring an ideological agenda to their powerful posts on the federal bench.”
At least one Democrat spoke up on the issue. Senator Zell Miller of Georgia said, “I really hope we will not begin the trend of rejecting nominees over narrow, single-issue litmus tests.” But Senator Edward Kennedy (D-Mass.) promised conservative nominees will continue to be defeated.
