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Jewish World Review Sept. 9, 2002 / 3 Tishrei, 5763

David Limbaugh

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The Tyranny of the Ten


http://www.NewsAndOpinion.com | In rejecting Justice Priscilla Owen, a perfectly qualified nominee for the federal appellate bench, the Democratically controlled Senate Judiciary Committee has exhibited again its selective contempt for the Constitution it is entrusted to safeguard.

The Committee torpedoed the Texas Supreme Court Justice's nomination to the 5th U.S. Circuit Court of Appeals in New Orleans in a strict party-line vote, with 10 Democrats voting down nine Republicans.

The Constitution gives the president the appointment power, not the Senate, whose role is limited to "advice and consent." Back when words had meaning, people understood that the Senate's function was to vet nominees for their fitness and qualifications, not their ideology.

If we read the Constitution as authorizing Senate rejection solely for political reasons, then we must assume that the Framers intended that any time the opposition party controlled the Senate, there would be a freeze on the president's appointment power. That makes no sense, especially since the judiciary is supposed to be the one non-political branch.

The senators' usurpation is all the more outrageous when you consider that just 10 senators again thwarted the will of the full Senate by refusing to permit a floor vote. (It is widely believed that the whole Senate would have handily confirmed Owen.)

Of course, Democrats deny they're playing politics. Senator Majority Leader Daschle said with a straight face, "The message is this: We will confirm qualified judges. Don't send us unqualified people." Daschle knows he's fibbing here.

Just consider Justice Owen's qualifications: She has stellar academic credentials -- she graduated in the top of her class from Baylor Law School and earned the highest score on the Texas Bar Exam -- (those are objective accomplishments, by the way, and no one can distort them, as they can other aspects of her record.) Not only that, but she received the highest rating (well qualified) from the liberal American Bar Association through a unanimous vote of its Standing Committee on the Federal Judiciary and had the endorsement of both of her state's senators. She has an excellent record on the bench and was reelected to the Texas Supreme Court in 2000 with 84 percent of the vote.

Sorry, this has nothing to do with Owen's fitness, as illustrated by the remarks of Committee Members Patrick Leahy and Diane Feinstein, who both called her a conservative extremist. Feinstein added, "Not only does this appellate court represent many people who are poor, many people who are minority, many people who depend on the court for a fair and impartial shake." But the court needs a judge that rules "based on the law, not on the basis of the justice's beliefs."

Forget the predictable liberal insult that conservatives, and specifically conservative judges, ignore the interests of the poor and minorities. (You might be interested to learn, though, while we're at it, that Owen was instrumental in getting legislation passed in Texas to provide millions of dollars to the poor for legal services.) But for liberals to rail against judicial activism -- a practice they've always rigorously defended -- is too preposterous for words. Plus, it is simply untrue that Justice Owen is an activist jurist.

The opposition to Owen boils down to two related factors: One is that she's conservative and believes in judicial restraint. But to many liberals, standing in the way of liberal activism through judicial restraint is conservative activism. The other, flowing from the first, is that liberal extremist groups (People for the American Way, NARAL, NOW, etc.), militantly oppose Owen, and these groups have a title deed to the souls of the 10 obstructionists, among others. How ironic that these progressives continue to reconstruct the glass ceiling they've pretended to abhor.

Why do these fine groups really oppose Owen? Well, in her private life she used to be an outspoken opponent of abortion. Yes, and she was on the Board of Advisors for the Federalist Society -- an organization liberals loathe because it believes the Constitution ought to be interpreted according to its original intent. But worse, she showed her true colors (family values advocate) when she helped organize Family Law 2000, a group to educate parents about the detrimental impact divorce has on children. Worse yet, she's a Sunday School teacher and serves as head of the altar guild at her church.

Republicans recapturing the Senate would not be a panacea, but it would be a start. Until they do, liberals will continue to veto constitutionalist judges with traditional values. Can you handle that truth?

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.

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