Judgeship Deal Called Into Question
Thursday, May 26, 2005
The Senate yesterday approved the nomination of Priscilla R. Owen as a federal appellate judge, ending a four-year battle over the Texas jurist and marking the first tangible results of a bipartisan Senate agreement on judicial appointees.
But the 55 to 43 vote fell mainly along party lines, a reminder of the deep ideological divisions that persist over President Bush's judicial nominations, despite the deal forged on Monday by 14 Republican and Democratic senators that averted a showdown over efforts to change a rule to deny the Democrats' the right to filibuster.
The deal allowed up-or-down votes on Owen and two others whose nominations have been held up for years: William Pryor Jr. of Alabama and Janice Rogers Brown of California. However, the fate of a handful of other nominees, including William G. Myers III and Henry W. Saad, remains in doubt. Lawmakers say the big question now is whether the agreement -- reached without the backing of Senate leaders -- will stick once Owen, Pryor and Brown are all approved.
After the vote, Bush said that Owen, 50, a Texas Supreme Court justice, would bring a "wealth of experience and expertise" to the federal bench. "I urge the Senate to build on this progress and provide my judicial nominees the up-or-down votes they deserve," the president said in a statement.
Majority Leader Bill Frist (R-Tenn.) said in a written statement that "we cannot stop with this single step," and revived a threat to deny Democrats their right to filibuster judicial nominations -- the "nuclear option" -- if the Democrats violate the agreement.
"We must give fair up or down votes to other previously blocked nominees," he added. "It is the only way to close this miserable and unprecedented chapter in Senate history."
Democratic leader Harry M. Reid (Nev.) said he is "ready to put all this behind us and move on" and that he "would hope the president would move on."
Many senators in both parties who did not participate in the negotiations are unhappy about the Monday night deal -- Democrats because they believe that Owen, Pryor and Brown are too conservative, and Republicans because too many other nominees are left hanging. Sen. Conrad Burns (R-Mont.), complained that Myers, a former mining lobbyist, was left out of the deal and declared that "I'm committed to making sure that he gets the vote that he deserves."
Another showdown is brewing over White House staff secretary Brett M. Kavanaugh and William J. Haynes II, the Pentagon's general counsel, both of whom were nominated to the federal bench in 2003. The Senate Judiciary Committee was scheduled to vote today on Kavanaugh, but a spokesman for the panel said that action probably would be delayed until after the week-long Memorial Day recess.
Democrats emerged from compromise talks Monday night believing they had an agreement with GOP negotiators to block Kavanaugh and Haynes, preferably in committee. A senior Republican leadership aide said that after extensive consultation with Republican participants in the talks, he concluded there is no such deal and said Republicans would press for up-or-down votes for Kavanaugh and Haynes on the Senate floor.
Owen was one of Bush's first judicial picks and was first nominated on May 9, 2001. Democrats targeted her partly on the basis of a dissenting opinion the Texas Supreme Court judge wrote in a case dealing with the state's parental notification law for minors seeking abortions. Democrats said Owen's opinion went beyond established law and precedent to reflect her anti-abortion views. Ultimately, they blocked her confirmation four times.
Frist defended Owen as "a gentle woman, accomplished lawyer and brilliant Texas jurist" who was subjected to Democratic attacks that "rendered her almost unrecognizable." But even conservative Democrats were uncomfortable with giving Owen a lifetime appointment. For instance, Sen. Ben Nelson (Neb.), one of the key Democratic dealmakers and a frequent Republican ally, held a one-on-one meeting with Owen but left still concerned that she would practice judicial activism. Nelson voted against Owen yesterday.
On the final vote, Owen drew support from 53 Republicans, as well as Democratic Sens. Robert C. Byrd (W.Va.) and Mary Landrieu (La.). Opposed were 41 Democrats, plus Lincoln D. Chafee (R-R.I.) and James M. Jeffords of Vermont, an independent.
At a news conference yesterday, Tony Perkins, president of the conservative Family Research Council, voiced "anger and disgust" with the seven GOP negotiators and accused them of betraying the conservative voters who helped strengthen the GOP's hold on the Senate last year.
"Monday night's compromise does not resolve this battle over the judiciary and the president's right to nominate judges of his choice," Perkins told reporters. "However, the day of decision is coming."
Liberal activists, meanwhile, roamed the Capitol trying to round up support for defeating Brown and Pryor in the up-or-down votes that they have been guaranteed -- a long-shot prospect because it would require the defection of at least six Republicans, assuming all Democrats vote against the two.
"Both are willing to impose their ultra-conservative views from the bench, and roll back years of progress on issues of social justice," Ralph G. Neas, president of People for the American Way, one of the main liberal groups involved the judicial showdown, said in a statement.