The work of Chicago-based
writer Stephanie B. Goldberg has appeared in Business
Week, the New York Times, the Chicago Tribune
and many other publications. She is a former senior editor
of the ABA Journal and writes for a number of ABA
magazines.
For
a Woman to Get that Federal Court Nomination, Does She
Have to be Scalia in a Skirt? by Stephanie Goldberg
President
Bush changes the way federal judges are chosen, looking
to ideology as a major factor in their selection.
Texas Supreme Court Justice Priscilla
Owen has friends in high places-- White House Counsel
Alberto R. Gonzales, once her colleague on the state's
highest court, and Bush advisor Karl Rove, who was
intimately involved in her campaign when she first
ran for election in 1994. Perhaps that explains why
President Bush recently renominated the ultraconservative
to the U.S. Court of Appeals for the Fifth Circuit
after the Senate Judiciary Committee defeated her
nomination last September.
In the old Senate, the Democrats
had the clout to stop a nomination like Owen's in
its tracks. That's much less likely to happen now,
with Republicans controlling the Senate, albeit by
a slim majority, 51-49. With the GOP holding sway
over both the legislative and executive branches,
Bush is now positioned to make good on his campaign
promise to appoint conservative judges in the mold
of Supreme Court Justices Antonin Scalia and Clarence
Thomas. To that end, he seems to be rewriting the
rules of picking judges-- even making what ranking
Democrat Senator Patrick Leahy called the "unprecedented"
move of sending back rejected candidates like Owen
and Charles Pickering of Mississippi for reconsideration.
To be fair, each administration tries
to put its stamp on the judiciary, and politics weigh
heavily in the consideration of any nominee. Clinton's
appointments greatly increased diversity on the bench-
-close to half the people he named were minorities
or women-- but, centrist that he was, he had no interest
in packing the court with ideologues, nor in the battles
it would take to get a Republican-dominated Senate
to confirm them.
By contrast, the Republicans, beginning
with Reagan, have hewed to a long-range plan to put
far-right jurists on the bench, and Owen certainly
fills the bill. "It's dismaying," says legal
ethicist and Stanford law professor Deborah L. Rhode.
"Her distinctive qualification from this administration's
point of view appears to be her strong ideological
bias."
Traditionally, objections such as
Rhode's are seen as playing politics or beside the
point-- why shouldn't the party in power be able to
place whoever it wants on the bench? At least, that's
what the Republicans argue. But Rhode disagrees. "These
are lifetime appointments whose influence will be
felt long after this administration is gone. We have
a right to expect mainstream candidates who represent
all of us, not just a particular constituency."
Actually, the demand for centrism
goes to the very heart of judicial temperament, says
Sheldon Goldman, author of Picking FederaI Judges
(Yale University Press, 1997) and a professor
of political science at University of Massachusetts
at Amherst. "Judges are supposed to be neutral
arbiters of the law. If they want to be advocates,
they shouldn't be judges," he says.
By that standard, Owen is manifestly
unfit for office. A formidable opponent of abortion
rights, she has never allowed a minor seeking an abortion
to obtain a judicial bypass of the parental consent
requirement. Indeed, she has tried to toughen the
standards so greatly that even Gonzales, while on
the Texas Supreme Court with her, reproached her in
an opinion for "unconscionable" judicial
activism. Her record in age discrimination cases is
equally hard-line: If she had her way, it would be
impossible to bring an age discrimination claim unless
that was the only plausible reason for dismissal.
"That means if someone came to work five minutes
late, he doesn't have a case," says Houston employment
lawyer Margaret A. Harris.
President
Bush changes the way federal judges are chosen, looking
to ideology as a major factor in their selection.