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May 10, 2005


Bill Frist is setting up to use the nuclear option on Priscilla Owen, according to the Washington Times. The entire judicial nomination fight is an example of insider politics taking over real-world consideration - Democrats haven't paid for opposition to or obstruction of judicial nominees, largely because the nominees held back are in positions that have little to no direct relevance to most Americans' political understanding. They're not high-profile in a publicity sense, and after they're confirmed, they're about as likely to be seen on TV again as Cop Rock.

Frist, on the other hand, is playing really bad politics to attempt to score a much, much larger pragmatic victory - but this handful of judges isn't permanent, even if the appointments are lifelong, nor are they the sole determinant of federal interpretation of law. For what he gets, the seventh-grade-civics realization that Republicans just killed some old and not-really-understood portion of the government doesn't quite play well for them. Rather than highlight the dastardly deeds of the demonic Democrats, it's a great way to arouse the unfocused and uninformed ire of the body politic. To be blunt, the American people are never quite as dangerous as they are when they're angry about something that they don't really understand.

Choosing Priscilla Owen is, however, intelligent for two reasons. First, she's the only nominee that has the particular "well-qualified" rating from the ABA, and second, the fight's mainly over her abortion stance. Republicans love abortion battles, especially because there are so many ways to make up statistics about them, and it fundamentally alters the debate to her stance on abortion politics, rather than the "advise and consent" clause of the Constitution. If he can pull it off, the debate becomes about abortion law rather than Senate bylaws, and Owen likely gets through.

There is, of course, much, much more to this than the Post lays out, but it comes down to whether or not Democrats can not only block Owen, but articulate why she's being blocked.

In other words, we're likely fucked.

May 10, 2005 in Policy | Permalink


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It is my understanding the that main issue the Democrats have with Owens is that her opinion was congruent with Texas law requiring that guardians of minors be informed of an abortion.
One reader railed at me and told me that the federal case Planned Parenthood v Casey trumped Texas law. Well, I took a good look at that case and the SCOTUS ruled that parental notification was, indeed, acceptable.

So, I am interested in knowing what the beef with Owens is? I appears that she followed the law of Texas within the rulings of the CASEY ruling from SCOTUS.

Posted by: Robert Zimmerman | May 10, 2005 5:15:22 PM

After reading the above comment, I'm pretty sure we Dems are going to get our asses kicked. Bob Zimmerman is intelligent, informed on the issues, and concerned about the outcome.

Frist and the evil-doers at the White House are going to put a smiling soccer-Mom on TV and complain that the Dems are being mean to her. End of story. Confirmed.

Posted by: Depressed New Yorker | May 10, 2005 5:55:08 PM

we're likely fucked.

Are you kidding? The nuclear option requires Cheney to override a ruling by a parliamentarian that was appointed by Trent Lott: that is, someone totally in the tank for the GOP, an appointment of the rankest partisan hackery, and even he is expected to rule for the Democrats. That's how unprecedented, radical, reckless, really, this ploy is.

They should call it the Al-Qaeda option: they may get their judges, but the Senate will be broken beyond repair for probably a couple of decades.

Posted by: ktheintz | May 10, 2005 6:36:58 PM

I also wouldnt underestimate that Owen's stance on abortion isn't explicable and demonstrably towards the edge. She was - or at least can be explained as - pretty extreme on refusing any girl the option of opting out of parental notification, something that's still a bit cloudy in the overall abortion conversation. Americans may not like to think about high schoolers getting abortions, but aside from the fact that vthey do, the notion that an especially abused girl might need protection from parental notification is explicable and possibly sympathetic. Though, admittedly, complicated. Plus, more than most, Owen can be tarred with being a little to close to corporate donors and Enron in particular.

There is, admittedly, a way of presenting Owen that plays right into the way conservative opponents want this fight to go, by martyring her as being sacrificed by extremists on abortion. But she's not a great candidate, or that card would have already worked. And, frankly, after years of screaming that ABA rankings are partisan and meaningless, it's a little late to hoist Owen up on that score.

I will maintain, at least until painfully proven otherwise, that neither Owen nor the "nuclear option" is a slam dunk. And the real tale of this turn of events just might be that Republicans wouldn't mind a Frist so damaged by failure that not only his Presidential aspirations would be toast, but that the disaster would be complete enough that he'd also have to relinquish his leader post.

Just a thought.

Posted by: weboy | May 10, 2005 8:50:31 PM

Well..."Depressed New Yorker"'s shitty Yankee attitude aside, I was asking a serious question to something that I didn't fully understand. Unlike him, I don't get all my information from Bussflash or democraticunderground. And, of course, he wouldn't or couldn't help me. Anyone out there with less attitude that could answer this for me (see first post in this thread)?
Thanks in advance.

Posted by: Robert Zimmerman | May 11, 2005 8:33:04 AM

Never mind. I have since read the opinions in the Jane Doe case. After that, I feel the same way the ABA and the overwhelming majority of Texas voters feel. She will, indeed, be eventually confirmed. The opposition has little to stand upon other than "She didn't rule for the outcome we wanted".

Posted by: Robert Zimmerman | May 11, 2005 9:52:08 AM

When I first encountered Mr. Zimmerman I had thought he was a forty-something crank, but I'm beginning to pick up on the little tell-tales of a 15-year-old of unorthodox parenting with too much internet access. Not enough to come to a conclusion yet, but still.

I still do not understand why Rove thinks Owens is the poster-child for this issue. She's terrible, barely qualified, and unquestionably of unsatisfactory judicial temperament. Reid should start the filibuster himself and just read from Al Gonzales's concurring opinion blasting her activist departure from clear precedent. Pryor I would be somewhat afraid of, but this woman's a loser. No Dem backs down just because she's soccer-mommy.

And Mr. Zimmerman: Again, Casey doesn't say what you think it says; notice requirements are permissible only under the "undue burden" standard, yada yada, more first-year con law, short end of it is, if there's not a meaningful judicial bypass procedure, notice requirements are impermissible. So you might say your conclusion of the con law is exactly inapposite. And the mysterious reason the Supreme Court's construction of the Constitution trumps state law? U.S. Const. art. VI, § 1, cl. 2. A little something we call the "Supremacy Clause." Accord Marbury v. Madison.

Posted by: Tony the Pony | May 11, 2005 11:21:10 AM

Well, Tony,
CASEY did, indeed, state that parental notification was not an "undue burden".
Yeah, that Rove is a dumbass, isn't he? He never knows what he's doing. It must be tough on you knowing that you are vastly superior to those who disagree with you as you watch the peoples' elected officials and the voters themselves vote the "wrong" way time after time after time.
I suggest you buckle up for the confirmation of Owens and whine about it later, Bozo. It's more likely than not.

Your friend,


Posted by: Robert Zimmerman | May 11, 2005 1:16:49 PM

You'll have to forgive me, as I misspoke earlier. Casey involved parental consent requirements, not notice requirements.

Okay, I'm going to go over this slowly:

1) "sometimes" has a different meaning than "always"
2) "sometimes okay" has a different meaning than "always okay"
3) "Constitutional provided there is an adequate judicial bypass" has a different meaning than "constitutitonal irrespective of whether there is a judicial bypass."

Get it? The key thing is, if you remove a clause starting with the word "if" from a sentence, you us change its meaning.

Now that you've learned that lesson, I suggest you read Casey again.

Posted by: Tony the Pony | May 11, 2005 2:15:56 PM

Sigh. For the rest of you wondering what lesson was lost, here's the deal:

Parental consent requirements are okay so long as they contain a judicial bypass mechanism. That mech must satisfy four req'ts: (a) it must allow the minor to show she is mature enough to request an abortion; (b) it must allow her to show that irrespective of her maturity, an abortion would be in her best interests; (c) it must ensure her anonymity; and (d) it must be expeditious enough not to forestall an abortion until moot, e.g., until third trimester or childbirth. 497 US at 510.

The Texas statute tracked this requirement. As bad as Judge Owen's opinion in this case, the real loser was the trial court, which transparently did not take seriously the facial command of the statute and did not even undertake factfinding as to Jane Doe's maturity before issuing a verdict. This was obvious to a majority of the Texas court, but Judge Owen concluded differently, evidently because she felt it should be a condition to the constitutional right to seek an abortion that your parents be able to punish you. I'm not kidding, see her opinion Section III, slip op. at 79.

It was a transparently bad opinion, and if I may opine on the matter, having just read it, I cannot conclude that the woman seriously understands appellate work. She refers only to "precedent" without explaining what precedent it is to which she appeals, and her discussion of factual review raises the suspicion that she's not ever heard of the abuse-of-discretion standard.

Posted by: Tony the Pony | May 11, 2005 2:39:01 PM

You might at least be honest with your reader and disclose that Justice Owen was only one of three that filed dissenting opinions.
Although you have your opinion as to how it should have been decided, Tony, others disagree with you and some were actually there, on the court, and hearing the case.

Here's a good question for you:
If Justice Owens opinion was so fatally flawed, why does the ABA give her the unanimous approval? Are they blind? Is it a right-wing conspiracy? All of the above?

Posted by: Robert Zimmerman | May 11, 2005 3:08:00 PM

I always love it when the decidedly illiberal, for convenience' sake, take what they imagine to be liberal positions. "Others have different opinions," (I'm paraphrasing) says Mr. Zimmerman, as though knowledge of our own limitations entails an obligation never to think hard about anything.

Being found well qualified by the ABA ain't what it used to be, frankly. You don't have to be especially smart to get high marks, nor especially thoughtful, nor overly judicious. I believe the lion's share of the ratings are taken up with quantifiable attributes, like number of years on the bench or in practice. And this is not exactly news, Mr. Zimmerman.

Further, the ABA, like the media, is overly sensitive of accusations of liberal bias, and bends over backwards to be accommodating of conservative viewpoints, even when it's silly to do so (like, say, when many conservatives pretend that one of the most well-known cases of federal constitutional law doesn't exist).

And not to be too much of a snob about it, but the politicization of the judiciary, especially over abortion, has led to a lot of heated opinions from the state and federal bench. That three judges could be clearly wrong in Texas doesn't surprise me one bit.

Mr. Zimmerman: Roe exists. It's binding on the inferior federal courts; it's binding on the states. You are free to disagree with it, you're free to call for its reversal, but someone who rules from the bench as though it were no precedent whatsoever is flouting her oath to uphold this nation's laws. And to do so is a flagrant act of judicial activism, and Judge Owen's willingness to ignore the clear command of both the laws of Texas and the Constitution of the United States is exactly why more thoughtful observers than some fifteen-year-old from Florida have concluded she lacks the judicial temperament to sit on the Circuit Court of Appeals.

Posted by: Tony the Pony | May 11, 2005 5:53:26 PM

Well, Tony,
Thanks for the conversation. I did learn a lot by reading the six opinions of the Jane Doe case. Thanks for the links. Yes, Tony, Roe does exist. That is about all we agree upon.
I will stick by my prediction that Owens will be confirmed one way or another. When that happens, you will have the pleasure of grousing about it later.

Posted by: Robert Zimmerman | May 11, 2005 7:07:19 PM

I look forward to it. You really think Frist has the votes for the nuclear option? By all means, say as much. I believe that vote's scheduled for early next week.

Posted by: Tony the Pony | May 12, 2005 11:11:05 AM

Well, Tony, I think Reid thinks so. Harry is trying to negotiate out of a showdown by promising to confirm some, but not the fabulous four. See

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