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May 6, 2005

Filibuster Test
Senate Majority Leader Bill Frist

Senate Majority Leader Bill Frist, R-Tenn, addresses a crowd via teleconferencing at an evangelical Christian rally called "Justice Sunday," April 24, 2005, in Louisville, Kentucky, in an effort to rally churchgoers to protest the filibuster tactic used by Democrats to stall President Bush's picks for the federal court. (AP/Patti Longmire)

At some point during the the next two weeks, the Senate fight over President Bush's nominations to federal appeals courts will come to a head, and it is going to be bitter. Democrats oppose seven of the president's nominations, mostly on the grounds that they have taken extreme conservative positions. They threaten to filibuster, to prevent the Republican majority in the Senate from approving the judges. Some Republican leaders are ready to use the so-called nuclear option -- a vote to change current Senate rules to make any filibuster ineffective. The Democrats threaten to respond by using other rules to shut down Congress.

One nominee who seems likely to be at the center of the fight is Justice Priscilla Owen of Texas, who has been nominated to the 5th Circuit U.S. Court of Appeals. Justice Owen has been elected twice to the Texas Supreme Court, where she has served since 1995. Prior to that she practiced commercial law in Texas for 17 years, after graduating with honors from Baylor University Law School in 1977.

The American Bar Association has rated Justice Owen "well-qualified" -- its highest possible rating. Opponents claim Justice Owen is a judicial activist who ignores the law to impose her conservative viewpoint. We offered an opponent and a supporter of Justice Owen the opportunity to make their cases, and we asked them to focus on the merits, rather than the politics.

President of People for the American Way Ralph Neas:

"Priscilla Owen has a long history of decisions that tend to favor some, usually big corporations and special interests, and hurt others, the people who don't have lots of money or political power.

Instead of interpreting the law, Priscilla Owen uses her position to re-write the law to fit her own ideological perspectives. That's one of the reasons that while more than 200 of President Bush's judicial nominees have been approved, Priscilla Owen is among just 10 who have not."

Justice Owen's supporters say she is a highly qualified, principled jurist who decides cases according to the law, not her personal preferences.

Senator John Cornyn of Texas:

"Justice Owen not only received the overwhelming support of the newspaper editorial boards in her state, but was re-elected overwhelmingly to the court, demonstrating that she is clearly within the judicial mainstream in Texas, and indeed throughout American jurisprudence. She is not the caricature that her opponents have tried to make her out to be.

She deserves an up or down vote now, having waited coming up on four years since President Bush first nominated her to this important office. The senators who are opposed to her nomination should vote against her, those who support her should vote for her. And I'm confident that a bipartisan majority will vote to confirm Justice Owen if given that opportunity."

Joining the panel is David Rivkin, an attorney who has written for the WSJ editorial page and served in the Justice Department under Presidents Reagan and Bush.
Paul Gigot
Paul Gigot
"Priscilla Owen was first nominated four years ago. Is she the right choice here for the Republicans to bring up to test this filibuster question? And, getting down to the nitty-gritty politics, is there a compromise that can be worked out to avoid the showdown?"
Melanie Kirkpatrick
Melanie Kirkpatrick
"I think she's exceptionally good. One reason is that she's already been debated in the Senate for more than 60 hours. That's the second longest in history. She is a very careful jurist. She's also very well-qualified. Not only did the ABA vote her well-qualified, but they did so unanimously, which doesn't happen to a lot of judges that come before them."
Daniel Henninger
Daniel Henninger
"All of these rulings and philosophies that the Democrats are protecting were enacted from 1973 onwards, when, in fact, they did hold electoral and political majorities. They have a legacy that they're trying to protect. The Republicans are saying, 'Look, we now hold both political majorities and we want to change things.' We're at a point of just insurmountable tension. It ought to be put before the American people and I think the nuclear option would do that."
David Rivkin
David Rivkin
"Majority Leader Frist offered a compromise -- and people have forgotten it -- some time ago. Instead of doing this whole thing, he offered an arrangement to be worked out for the Democrats whereby you would have a considerable amount of time for debate, up to 100 hours, that would in effect enable the Democrats to get their grievances out, to have a serious extended debate. The Democrats said no."

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ARCHIVE: WSJ - Paul Gigot Commentary

ARCHIVE: WSJ - Daniel Henninger Commentary

BIO: Baker & Hostetler Law - David Rivkin