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VOL. 4, NO. 15 OCT 04, 2002

Senate Democrats Continue Scorched
Earth Policy Toward Courts
 
"With court decisions on abortion, gay rights, civil liberties and education at stake, not to mention vacancies on the U. S. Supreme Court, the upcoming elections could tip the scale of power and set national policy for decades to come." So asserted CBN's White House correspondent, Melissa Charbonneau on Oct. 1. Truer words were never spoken. The uproar precipitated recently by the withdrawal of Robert Torricelli from New Jersey's U. S. Senate race (already involving the state courts and now, possibly, the U. S. Supreme Court) further showcases the centrality of the courts to all of American life and of the elections of 2002 to the future of the courts.

On the eve of the adjournement of the 107th Congress, this "Court Watch Update" reviews "The Numbers" (statistics concerning George Bush's judicial nominations) and "The Nominees" (brief case studies of Senate Democrats' bludgeoning of two of Bush's best selections).


The Numbers
 
Court Watch has posted on our web page the federal judicial nomination statistics as of October 1, 2002. These deserve careful scrutiny, as they reveal the high degree of obstructionism inflicted by liberal Democrats on the judicial selection process. A few other statistics help to complete this deplorable picture:

  Among current active federal judges, 52% have been appointed by Democrat presidents; 49% by GOP presidents (the 100% plus total results from rounding off percentages);

  Among current federal judges, 46% are Clinton appointees; the more the Democrat-controlled Senate can stall Bush nominees, the longer Demo appointees will predominate, as most vacancies are now occurring in GOP-appointed seats;

  Of the eleven Court of Appeals nominees constituting Bush's first group of judicial nominees in May of 2001, 6 (55%) have not even received a Judiciary Committee hearing; 2 (18%) have had a hearing but were denied floor consideration by the ten Demos on the Committee (nine Republicans voted to pass the nominees to the entire chamber); and 3 (27%) have had a hearing but no vote;

  These appellate nominees have been stuck in Committee over 500 days, while similar nominees of our three most recent presidents were confirmed in an average of 81 days;

  Also compared to recent presidents, Bush has made 45% more nominations but has garnered less than 50% of the confirmation rate of his three immediate predecessors.


The Nominees
 
The Senate Judiciary Committee has subjected several of Bush's Court of Appeals nominees to what commentator Melissa Charbonneau calls the radical liberals' "scorched earth policy." Two cameos of Committee treatment of two of Bush's best nominations are especially revealing:

  Justice Priscilla Owen of the Texas Supreme Court nominated to the Fifth Circuit: The Committee defeated Owen in a straight party line vote of 9-10. After this rejection, Majority Leader Tom Daschle said, "The message is this: We will confirm qualified judges. Don't send us unqualified people." Yet Justice Owen was a college and law school honor graduate, a twice-elected member of the Texas Supreme Court (elected the second time with 84% of the vote and the endorsement of every major Texas newspaper); a judge with a record of respect for the limits of court action and the powers of the legislature and a stated commitment to U. S. Supreme Court precedents; and the recipient of a unanimous rating of "well qualified" by the ABA (the Democrats' professed "gold standard" in judicial selection).

Her defeat represents the first time that the Senate has rejected such a recipient and also a woman nominee. Georgia Democrat Zell Miller had announced that he would support Owen if her name reached the Senate floor, which would have created a tie vote of 50-50, undoubtedly broken in Owen's favor by Senate Presiding Office, Vice-President Dick Cheney.

Owen's 4 ½ long hearing was chaired by California Democrat Dianne Feinstein rather than by Committee Chairman Patrick Leahy. Fueled by the ubiquitous liberal interest groups (National Abortion Rights Action League, People for the American Way, National Organization for Women, etc.) the radical liberals on the Committee harangued at Owen on non-issues. The radicals found her unacceptable for their universal reason--their fear that she would be pro-life on the Fifth Circuit. Her decisions upholding parental rights in minors' abortion cases in Texas fed liberals' fears, and they also accused her of being an "activist." The hypocrisy of this charge is two-fold: not only did it come from one of the consummate activist group in America today, but in the parental rights cases disparaged by the radicals, Owens had upheld parental rights because of her deference to legislative intent in passing the law.

  Law Professor Michael McConnell of the University of Utah Law School nominated to the Tenth Circuit: McConnell was grilled by the Judiciary Committee on a variety of issues. Like Owen, he was anathema to Committee Demos because of their fears he would be a pro-life judge. His opposition to gay rights (as evidenced in his role in the Boy Scouts of America v. Dale case and other activities) and his advocacy of government "neutrality" in church-state relations also absolutely disqualify him for the Tenth Circuit in the minds of the Committees' radical ideologues.

The Committee was not reassured when McConnell, like Owen, assured the Committee that he would follow the law regardless of his personal views. Additionally, the support offered McConnell by over 300 law professors (many of them liberal) fell on deaf ears in the Committee.

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