Justice denied

September 09, 2002

BARELY ABLE to contain his righteous umbrage, President Bush denounced last week the Senate Judiciary Committee's rejection of a second Bush appeals court nominee as "bad for the bench" and "bad for the country."

He was right -- but equally to blame.

Texas Supreme Court Justice Priscilla Owen was caught in the crossfire of an increasingly ugly, partisan and ultimately destructive struggle for ideological control of the federal judiciary. As the battle rages, vacancies grow, cases back up and Americans are denied their day in court.

Mr. Bush has the power to call a halt to it, to be the bigger man. Instead, he is threatening escalation.

Appointment and confirmation to the federal bench no longer have much to do with legal skill, scholarly brilliance or such quaint notions as judicial temperament. Since the 1980s, when Senate Democrats blocked Robert Bork's appointment to the Supreme Court because they objected to his conservative views, philosophical litmus tests have more and more become the determining factor.

The federal bench now exhibits a clear bent to the right, reflecting the dozen years that Republican presidents Reagan and the elder Bush picked candidates for the lifelong jobs. President Clinton's efforts to tip the balance back toward the left were mostly thwarted when the Republicans took over the Senate for the last six years of his tenure and refused to give some of his nominees so much as a hearing.

The current chief executive arrived in January 2001 to find 80 seats empty on the federal district and appeals court benches. He set about filling them with judges who share his conservative views on abortion and other issues. But the confirmation process in a Senate run once again by Democrats is moving so slowly that it can barely keep up with retirements. The judicial vacancy level is about the same today as it was when Clinton left office.

Worse than the footdragging are the sordid campaigns waged against nominees by outside interest groups of all stripes. With their own professional and fund-raising interests in mind, such groups often distort a nominee's record to rally the opposition.

Justice Owen was savaged as "ultraconservative," primarily because she cast a dissenting vote against the Texas court's decision to grant to a minor seeking an abortion a waiver from the state law requiring that her parents be notified.

That stand was condemned as "judicial activism" by the same people who welcome judicial activism in support of their own views.

Justice Owen, a favorite of Bush political guru Karl Rove, may not have been the best choice for the federal bench. But this process wasn't about her. It was about sending messages and wielding power and scoring points in the fall elections.

The American people deserve better from everyone involved.

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