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The case of judges v. ideology

A Texas judge fuels debate over whether Bush appointees will interpret the law, or make it.

She has been so controversial that a fellow conservative on the Texas Supreme Court, the man who is now Mr. Bush's legal counsel, denounced one of her positions as "an unconscionable act of judicial activism."

Her nomination to a federal circuit court last year was rejected by the Democratic-controlled Senate Judiciary Committee.

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But now Priscilla Owen is back.

Bush has renominated the Texan to the federal bench, and with Republicans narrowly controlling the US Senate, her approval is now much more likely. She does not, of course, rankle all conservatives - and is, in fact, the darling of many. To friends and foes alike, her nomination, along with that of conservative Judge Charles Pickering Sr. of Mississippi, symbolizes a larger fight over the shape of the American judiciary - and over just how important judges' political views should be.

"One of the great debates in recent years ... is whether these judges should bring their ideological orientation to their work or whether they should apply the law on its own terms," says Roger Pilon, director of the Cato Institute's Center for Constitutional Studies in Washington.

Whoever fills the seats, the appellate courts play a crucial role in America's justice system. While the US Supreme Court is often called the "court of last resort," the vast majority of appealed cases never get there. In 2001, for example, the appellate courts issued over 28,000 decisions while the Supreme Court issued fewer than 100.

The nomination process has been mired in partisan politics for years. But if Bush succeeds in filling all vacancies at the circuit level, Republican-appointed judges will have the majority in 11 of 13 courts.

Owen, as one of the most controversial nominees, will be an important test for the White House. To critics, she is an activist bent on transforming her ideology into precedent. Of particular concern is a dissenting opinion she wrote in 2000 on Texas's parental notification law, which allows minors seeking abortions to bypass parental notification if certain criteria are met.

In her dissent, Owen tried to construct additional barriers to bypassing notification, prompting then-Justice Alberto Gonzales to chastise her. And, in fact, she has voted to deny the bypass in every case that has come before the Texas Supreme Court.

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Last July, the Senate Judiciary Committee also grilled her about $8,600 in legal campaign contributions she received from Enron before it collapsed. They wanted to know why she had not recused herself in a subsequent case involving Enron and the Spring School District, in which the court's unanimous decision saved the company $224,989 in taxes. "I find so many of these things where you seem to be outside the mainstream of what is arguably a very conservative supreme court," said committee chairman Patrick Leahy (D) of Vermont, during questioning.

'Still well within the mainstream'

But if Owen has virulent critics, she also has ardent defenders. "Priscilla Owen is not some sort of wide-eyed right winger," says Kelly Shackelford, chief counsel at the Liberty Legal Institute in Plano, Texas. "She is more reflective of the conservative judicial philosophy, but she is still well within the mainstream."

Many consider her an outstanding judge who bases decisions strictly on the law. She received a "well-qualified" rating from the American Bar Association and was twice elected to the state's high court, winning the second time with 84 percent of the vote. How can one judge prompt such radically different responses? It may have as much to do with the ideological camps as with Owen herself.

Conservatives see a need to rescue America's judiciary from years in which liberal judges were more interested in making law than interpreting it. Liberals, meanwhile, see Bush - and PresidentsBush Sr. andReagan before him - as nominating extremists prone to the same sin.

"The president is determined to change the national debate [on abortion] through ... nomination of far-right judicial activists," says Kate Michelman, president of NARAL Pro-Choice America in Washington. "Most Americans don't realize that many of their rights are really worked out at the appellate level, not at the Supreme Court level. That's why it's so important."

Along with Owen, Bush renominated 30 other previously rejected judges at both the circuit-court and district-court level, including Judge Pickering, accused by civil rights groups of being racially insensitive. Democrats are considering a filibuster of Mr. Pickering's nomination - an unprecedented move in the judicial process.

Currently, there are 25 empty circuit-court seats, the most desperate being the Sixth Circuit, with six vacancies. Many have gone unfilled for years, and Ralph Neas, president of the liberal Washington group People for the American Way, calls it a calculated plan by Republicans.

He points to Trent Lott's control of the Senate during the Clinton administration, when 35 percent of the president's circuit-court nominees were blocked.

A partisan payback, ratcheted up

But others say it's Democrats who aren't playing fair. After stating that he'd nominate only people "who clearly understand the role of a judge is to interpret the law, not to legislate from the bench," Bush has struggled to get nominees confirmed. Of 11 judges he's nominated to fill 25 circuit-court vacancies, only 5 have been confirmed. Owen was among those rejected.

"There is concern about the balance of the courts insofar as the nominees of a particular president share the political views of that party," says Carl Tobias, a law professor at the University of Nevada at Las Vegas who has studied the process.

He says that only within the last 20 years have appellate vacancies gone unfilled. He points to a number of factors hindering the confirmation process, including an increase in the number of appellate judges since the 1950s, a shrinking number of cases heard by the Supreme Court, and a divided government aware of how critical appellate courts have become.

"That has led to this dynamic of payback on both sides," he says, adding that it's been ratcheted up recently. More dramatic is the tiny number of judges confirmed in election years, he says. "The party out of power is hoping to capture the presidency," he says. "But with a government so closely divided, I think that calls for more moderation all the way around."


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