Statement of PFAW President Ralph G. Neas on the Priscilla Owen Nomination and Cloture Vote

Today the Senate has stopped the Bush administration’s effort to force right-wing judicial activist Priscilla Owen onto the federal appeals court. People For the American Way applauds the senators who took a stand to deny Texas Supreme Court Justice Priscilla Owen a powerful lifetime job on the appeals court. There are compelling reasons not to subject more Americans to her approach to judging, which is to allow her right-wing ideology to override her responsibilities as a judge.

Two confirmation hearings have only affirmed and reaffirmed that Justice Owen is not fit for the federal appeals court. She has tried to rewrite the law in order to reach an ideologically favored outcome, often at the expense of the rights and interests of individual Texans. She is at the far fringe of a very conservative court, so much so that even her conservative colleagues have frequently criticized her efforts to remake the law, including then-Justice Alberto Gonzales and other Bush appointees to the Texas court. President Bush’s decision to renominate Owen, even though she was rejected by the Senate Judiciary Committee last year after a thorough public hearing, demonstrated the administration’s eagerness to solidify right-wing domination of the federal appeals courts and its contempt for the Senate’s constitutional advise and consent role.

Justice Owen is only the second Bush administration nominee whose confirmation has been prevented by a Senate filibuster, while well over 100 judges have been confirmed. To call that record obstructionist is absurd. In fact, we believe senators should be more willing to use the filibuster against extremist nominees like Jeffrey Sutton, who was confirmed earlier this week.

To claim that use of the filibuster is unconstitutional, as some Republican senators and administration officials now suggest, is ludicrous and would be laughable were it not so dangerous. The record is clear that the filibuster – a procedure that forces some degree of bipartisan consensus on important issues – has been used by both Republicans and Democrats with respect to controversial judicial nominations. Moreover, during the Clinton administration, Senate Republicans blocked dozens of Clinton nominees with much less open and accountable procedures like secret holds and indefinite delays. How can it be unconstitutional for 41 Senators to stop a few controversial nominees when Senate Republicans allowed one or a small handful of senators to block huge numbers of nominees?

The argument that filibusters against judicial nominees are unconstitutional has no grounding in history or law, and is being raised to try to create an illusion of legitimacy for Republican threats of illegitimate tactics to steamroll Senate resistance to extremist nominees. It looks as if the stage is being set for an outrageous scheme to change the rules of the game in advance of a potential Supreme Court nomination this summer.

There is so much at stake in the struggle for a fair and independent judiciary — Americans’ right to privacy and reproductive choice, individuals’ ability to count on the courts to help them get justice against powerful institutions, the federal government’s ability to protect civil rights, clean air and water, and religious liberty.

Justice Owen’s record of right-wing judicial activism has generated intense opposition to her nomination by state and national public interest advocates, and gave senators good cause to prevent her confirmation. If President Bush is serious about filling the vacancies on the courts, he must be willing to engage in bipartisan consultation and compromise. When he nominates more mainstream judges, they get approved. But when he insists on nominating ideologues, they should not.