On the Merits

Wednesday, May 25, 2005

THE DEAL TO avert the so-called nuclear option on judicial nominees means that three of the most controversial of President Bush's appeals court picks will get up-or-down votes. It is widely assumed that they will be confirmed, since Republicans will support them and Democrats oppose them. But the merits of the three nominations -- Texas Supreme Court Justice Priscilla R. Owen for the U.S. Court of Appeals for the 5th Circuit, William H. Pryor Jr. for the 11th Circuit and California Supreme Court Justice Janice Rogers Brown for the D.C. Circuit-- differ considerably. None of them warrants a party-line vote. In our view, Democrats ought to reconsider their opposition to Justice Owen, while Republicans ought not blithely support either Judge Pryor, whom Mr. Bush installed on the court by temporary recess appointment, or Justice Brown.

Democrats have attacked Justice Owen as a radical conservative eager to substitute her views for those of elected officials. She is part of the conservative flank of a conservative court. Some of her opinions, particularly concerning abortion, seem fairly aggressive. But the cases that have made her controversial -- even the now-famous abortion case in which her then-colleague on the court, Alberto R. Gonzales, seemed to accuse her of judicial activism -- presented difficult questions about which reasonable minds can disagree. Justice Owen would not have been our choice for the job. But she is undoubtedly well-qualified, and the case against her is not strong enough to justify denying the president his choice. Mr. Bush did win the election.

The other two nominees are a different matter. Judge Pryor, until Mr. Bush put him on the court, was the elected attorney general of Alabama -- and one of the most aggressively partisan state attorneys general in the country. He energetically pursued a hard-line states' rights agenda and a lowering of the church-state wall (though he did stand up for the rule of law when then-state chief justice Roy S. Moore flouted a federal court order to remove his monument to the 10 Commandments from the Supreme Court building). Perhaps more disturbingly, his stated view of the courts is overtly political. He has spoken in favor of impeaching judges who "repeatedly and recklessly . . . overturn popular will and . . . rewrite constitutional law." He ended one speech by praying, "Please, God, no more Souters" -- a slap at Supreme Court Justice David H. Souter, in whose performance many conservatives feel acute disappointment. In the wake of the 2000 election crisis, he declared himself pleased that the Supreme Court had split 5 to 4 in resolving the matter -- a division nearly everyone else regarded as deeply unfortunate. The split, he said, would give the new president "a full appreciation of the judiciary and judicial selection." Republicans as much as Democrats should object to such unstinting partisanship in a judge.

Justice Brown, meanwhile, is one of the most overtly ideological nominees of either party in many years. In speeches she has openly yearned for the "Lochner era," a period in the early decades of the 20th century during which the Supreme Court invalidated various regulatory actions in the name of a supposed right of free contract. This is one of the most discredited periods of the court's history, a time when the courts wrote libertarian economic theory into the Constitution. And her speeches are not merely playful musings, for Justice Brown's work on the court in California reflects the same nostalgia. For years, Republicans have railed against "judicial activism." If that term has any meaning, it certainly describes Justice Brown's adventurous approach to economic liberties.

Now that these nominees will get a vote, Republicans who have been shielded by Democratic filibusters need to take a stand. Are these really people they want on the bench?

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