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Jewish World Review July 26, 2002 / 17 Menachem-Av, 5762

Michael Long

Mike Long
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Where's Honest Debate on Judge Owen?

NOW members should demand better of President Kim Gandy


http://www.NewsAndOpinion.com | In politics, the utopian vision is to win within a framework of honest debate, and not just by any means necessary. Yet any pretense of that notion is now long lost in the case against Texas Supreme Court Justice Priscilla Owen, President Bush's nominee for the 5th U.S. Circuit Court of Appeals in New Orleans.

Justice Owen's record is politically conservative. For that reason alone, the usual suspects oppose her, including People for the American Way, the National Abortion Rights Action League, and Planned Parenthood. But political opinions within the range of common judicial disagreement are not grounds to reject a nominee. The left knows this, which is why they're attacking Judge Owen by misrepresenting her record instead.

Particularly offensive is the innuendo from NOW President Kim Gandy.

In a NOW press release of July 19, Ms. Gandy blurred the line between her distaste for Justice Owen's politics and the nominee's judicial philosophy. Commenting on a 2000 case in Texas, Ms. Gandy observes first that Justice Owen supports a stricter interpretation of parental consent laws on abortion. Then she juxtaposes the statement with the fact that Justice Owen voted to uphold a lower court ruling rejecting one particular young girl's appeal for a consent bypass.

That alone is a shaky enough claim of cause and effect, but the deception goes deeper, as her two statements turn out to be unrelated. If she had argued honestly, Ms. Gandy would have spelled out what she as a lawyer knows-and what she herself said in a December speech: superior courts are courts of review. Justice Owen explained this for even non-lawyers in her published decision: "The question … is not whether this court would have ruled differently [than the lower court]. The question is whether legally sufficient evidence supports the trial court's judgment. The answer … is yes."

Similarly, Ms. Gandy has suppressed facts about Justice Owen's record on campaign contributions (even the Washington Post dismantled her argument on that one); and, in the spirit of the old Smathers smear (with its "salubrious" places and a "thespian" wife), vilified the judge for membership in the "ultra-conservative" Federalist Society, a legal group praised by such "ultra-conservatives" as law professor Alan Dershowitz, ACLU head Nadine Strossen, and Clinton White House Counsel Bernard Nussbaum.

Or consider this slap at the U.S. Supreme Court. In her National Press Club speech, she runs down a list of matters she claims are, despite the reams of caselaw on them, simply "knocked out" by the courts: "gun control, environment, civil rights, disability rights, age discrimination, women's rights, sexual orientation, the whole range of issues…."

Then, as she did before, she follows up that provocation with an unrelated statement, that the U.S. Supreme Court "reverse[d] part of the Violence Against Women Act."

The implication is clear: a conservative Supreme Court will be lax on all those issues, right down to punishing wife beaters!

But consider how her implication compares with the facts: In the case in question, the Court overturned a portion of the 1994 anti-crime bill that failed on technical grounds; specifically, because legislators codified the dubious notion that rape is a factor in interstate commerce. The Court said that Congress couldn't interpret the commerce clause that way-and, contrary to what Ms. Gandy says, the court decided nothing about rape, or the goal of the statute in question.

Finally, one of her most condescending shots came when, again in her Press Club speech, she misrepresented the most basic role of the Supreme Court: to decide the whether or not a law is constitutional. She said, "The court is simply declaring, well, the Congress didn't have the authority, under the Constitution, to pass that law. What? The Congress didn't have the authority to pass that law? That's what they're saying."

Yet surely the president of NOW knows that legislation on, as she put it, "gun control, environment, civil rights," et al. was made possible almost entirely by the Court's ruling that "Congress didn't have the authority to pass" this or that law.

It would be a breath of fresh air if members of NOW called on Kim Gandy to clean up her act-she is, after all, speaking for them. And even opponents of NOW believe that most members of the group are a lot more careful with the facts than she has been.

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JWR contributor Michael Long is a a director of the White House Writers Group. Comment by clicking here.

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© 2001, Michael Long