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May 6, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. Federal judges and the so-called nuclear option: sometime in the next two weeks the 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, claiming that they are extreme conservatives. They threaten to filibuster, preventing an up or down vote on the Senate floor in which the Republican majority and some Democrats would approve the president's choices. Some Republican leaders are ready to use the so-called nuclear option, changing Senate rules to make any filibuster ineffective. The Democrats threaten to respond by using other rules to shut down Congress.

With me to discuss all this are: Dan Henninger, columnist and deputy editor of THE WALL STREET JOURNAL editorial board; Melanie Kirkpatrick, associate editor of the editorial page; and David Rivkin, an attorney who has written for the editorial page and served in the Justice Department under Presidents Reagan and Bush.

We begin by focusing on the nominee who seems likely to be at the center of the fight, 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. She has served there 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.

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. Opponents claim Justice Owen is a judicial activist who ignores the law to impose her conservative viewpoint. Here is Ralph Neas, President of People for the American Way.

RALPH NEAS: In our government, we need independent judges who give each side a fair hearing and create a level playing field. That's not Priscilla Owen. 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.

Let's talk specifics. She's a judicial activist. Even Alberto Gonzalez, the president's own attorney general, repeatedly criticized Priscilla Owen when they served together on the Texas Supreme Court. He called one position she took "an unconscionable act of judicial activism." And the HOUSTON CHRONICLE, one of her home state newspapers, says she shows "less interest in impartially interpreting the law than in pushing an agenda." The CHRONICLE also says she has a distinct bias against consumers and in favor of large corporations.

Look at the cases. A liquor retailer sold alcohol to an obviously-intoxicated customer. The customer got behind the wheel of his car, crashed, and caused a nine-year-old girl permanent brain damage. But Owen let this retailer off the hook. And Owen actually subscribes to the radical philosophy that if polluters don't want to follow environmental regulations, well, they don't have to. She's encountered great opposition from people in Texas, including Texas for Public Justice, the AFL-CIO, the NAACP, the Gray Panthers, and the Women's Political Caucus.

Judicial appointments are lifetime appointments. These positions are so powerful and so influential that we should be looking for supremely qualified judges who can attract bipartisan support. Unfortunately, Priscilla Owen falls far short.

PAUL GIGOT: Justice Owen's supporters say she is a highly qualified, principled jurist who decides cases according to the law, not her personal preferences. Here is Senator John Cornyn of Texas.

JOHN CORNYN: For three years it was my pleasure to serve on the Texas Supreme Court with Justice Priscilla Owen. During that time and since then, I have known her to not only be a warm and engaging human being, but an excellent judge, one of the smartest, most diligent judges I have ever come to know during my career as a Texas judge where I served for 13 years before coming to the United States Senate.

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. Some have accused her of judicial activism and erroneously taking out of context the words of now Attorney General Alberto Gonzalez, who served on the Texas Supreme Court with her. Rather than judicial activism -- that is, substituting her views for that of the Texas legislature -- she did her dead level best to try to enforce a statute that enjoyed not only the overwhelming support of the Texas legislature, but also the overwhelming support of the people of Texas, which said that minors, before they get an abortion, should notify their parents just as they would if they received any other type of medical treatment.

Of course, there was a judicial bypass as part of that statute, and she did her best to interpret it in a way that was consistent with legislative intent, exactly what a good judge should try to do. 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.

PAUL GIGOT: Melanie, she was first nominated four years ago. Is she the right choice here for the Republicans to bring up to test this filibuster question?

MELANIE KIRKPATRICK: Yes, she is. Any one of the seven who were filibustered in the last Congress and have been re-nominated would have been a good choice, but 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. The first was Miguel Estrada, who was filibustered in the last Congress. And a lot of these issues have already been discussed. They're on the public record. She is a very careful jurist, and I think the record shows -- and as we've debated in the Senate -- that she sticks very closely to Supreme Court precedent and she follows the instructions of the state legislature.

In addition to which, if you look at a bunch of objective measures, she's also very well-qualified. Not only did the ABA, the American Bar Association, vote her well-qualified, but they did so unanimously, which doesn't happen to a lot of judges that come before them.

PAUL GIGOT: There's also another judge who might come up early, Janice Rogers Brown of the California Supreme Court. Is there some chance that these could be companion nominations?

MELANIE KIRKPATRICK: Yeah, I think that probably will happen. And Janice Rogers Brown is also a very good choice. Again, like Priscilla Owen, she was voted onto the bench in California by an overwhelming percentage of voters. I think it was 76 percent in the case of Rogers Brown in California. And California is not a conservative state, and the Supreme Court of California is not a conservative court. So that says something about her being more of a mainstream judge than is charged.

PAUL GIGOT: So Republicans clearly think that they're putting judges here who will be harder for Democrats to filibuster. Dan, you've looked at the whole list of nominees that are threatened to be filibustered. Is there any common theme here that unites them, and unites Democrats in their opposition to them? Or is it a lot of different issues?

DAN HENNINGER: In a way it's both. The Democrats disagree with these nominees on pretty much everything. Let's go down a list of the complaints that the People for the American Way have made against these nominees: William Meyers -- ruled wrongly on a Wetlands Protection case; Henry Saad ruled against plaintiffs in an insurance claim; Richard Griffin, unemployment benefits; David McKeague supposedly ruled wrongly in a logging and clear cutting case, or an Americans with Disabilities Act; Janice Brown, it's workers' rights; and Priscilla Owen, as Ralph Neas said, it's hostility to consumers.

So the impression is often given this is all about abortion and Roe v. Wade. It's not. It's about everything. If you make a list of, say, 15 issues on which a judge could conceivably rule, if they rule wrongly on one then by the Democrat's logic, you are disqualified.

PAUL GIGOT: A reporter asked the president in a press conference the other week why he thought the Democrats were opposing this nominee. He said, judicial philosophy. It sounds like that's exactly what you're saying, Dan, that it is a kind of broadly philosophical objection to their jurisprudence. Is that what this is all about?

DAN HENNINGER: Exactly. For the last 25 or 30 years, Democratic judicial philosophy has been rather broad. They've given a lot of wiggle room to judges to decide what they want. The Republican idea is that the cases should be resolved more narrowly. Within that disagreement, there isn't much room for compromise between the Democrats and Republicans, if you define the resolution of these issues as it's being done by the Democrats in the Senate right now.

PAUL GIGOT: What's happened so often, I think, in our politics in the last 20, 30 years, particularly since Roe v. Wade, but even going back before that, is that the courts have become the place where we settle so many of our hot disputes, particularly on cultural matters, on abortion, on gay rights, but even on things like school choice and on commercial regulation. They settle these things because the legislatures have either abdicated or the courts have taken on that power, David. And that's why these disputes are so furious.

DAVID RIVKIN: And pernicious. And there's no middle ground. But I want to emphasize a point that Dan made. Judicial philosophy used to be considered by the Democrats to be fairly narrow. It really was about privacy cases. Now, it is exceedingly broad. And if this train is not arrested 20 years from now, we'll be talking about 100 issues. Think about it, 100 issues depending on any one of them, if you do not rule the right way, to Democrats means you don't belong in the mainstream. That is just absolutely pernicious.

PAUL GIGOT: David, let's talk about the legality and constitutionality of the filibuster. Some people say it's an abuse of the advise and consent power, which is explicitly given to the Senate by the Constitution. How do you read the law here?

DAVID RIVKIN: I think that it is unlikely to be a case, because of constraints in standing and other bars of people to get to a courtroom that would resolve it.

PAUL GIGOT: You mean a case that, somebody would bring a case. If the rules of the Senate are changed, nobody is going to be able to have standing to block that decision.

DAVID RIVKIN: Correct. Conversely, if rules are not changed and somebody does not get confirmed for that reason. But it's fair to say there is a serious constitutional problem here. And interestingly enough, the Democrats in many ways, in my opinion, have invited this problem, because instead of portraying this as a crass political fight, and absorbing their damage, they have portrayed it in pseudo-constitutional terms. A number of senior Democrat leaders in the Senate are basically arguing that it's not only appropriate but indeed necessary somehow under the Constitution to use the Senate as this minority protection rights body, or interest body, and you need a super majority for it -- which is of course absolute nonsense. There are very few provisions in the Constitution -- treaties, constitutional amendments, expelling a member -- that requires super majority. Everything else requires a majority. So they're the ones who are casting this whole thing in pseudo-constitutional terms. By doing that, I really think they are unduly aggrandizing their own power, and entrenching upon the president's power. Because remember, the point to appoint people and confirm is in Article 2. It's the executive power. The Senate, if you look at Alexander Hamilton's Federalist Papers passages, it's a small checking power. It's not the same as legislation.

MELANIE KIRKPATRICK: I was going to say, what does the election mean last November if it doesn't mean that the president has the right to appoint his own judges, and the Senate, a Republican Senate, can't confirm them. This is not about whether or not these candidates deserve a vote. Excuse me, it is about whether or not they deserve a vote. If the Democrats think they're not qualified, then vote against them.

PAUL GIGOT: What about the history of this in the Senate? At least as my reading of the Congressional Research Service Study on this showed, the filibuster has never been used to defeat a nominee in an appellate judge case. Debatable whether it was used against Abe Fortis in 1968 at the Supreme Court level. Some people say Fortis was already on his way out when Strom Thurman pulled that trigger. But at the appellate court level, it has never stopped a nominee.

MELANIE KIRKPATRICK: That's exactly right. And also, this idea that the filibuster is sacrosanct is crazy. The filibuster was never even permitted to be used against a nominee until 1949.

DAVID RIVKIN: That's right. But I would put it actually very crisply, Paul. Forget the term "filibuster." The point is that no judicial nominee has ever been, up until this whole episode, defeated in one down, didn't get confirmed in a situation the majority of senators were prepared to vote for him. And Fortis is the case in point.

PAUL GIGOT: Dan, there may be a cost here, though, might there not be, in terms of Republicans paying that in the future in terms of protection of minority rights? What happens if, down the road, as inevitably will happen, Republicans are in the minority, they decide they want to filibuster a liberal president's nominee? They won't have the filibuster to use, will they?

DAN HENNINGER: No, they may not. I think they have to make that calculation, whether the stakes here are high enough to take that risk. And I personally think the stakes are high enough. We are at -- and picking up David's point about the politics -- I think the Democrats should be pushing the politics on this. I mean, all of these rulings and philosophies that they are protecting were enacted from 1973 onwards, when in fact they did hold electoral and political majorities in this country. They have a legacy that they're trying to protect. And 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.

PAUL GIGOT: What about the point other people raised, which is, this has been fought over, as Melanie said, in the last two or three elections, and Republicans have won Senate seats with it. Why not let the Democrats filibuster again, and then fight over this issue in 2006 and they'll gain more seats? In other words, settle this politically outside of changing the rules of the Senate.

DAN HENNINGER: I think it's unlikely that our politics will do that. I think it stales, that the issue will simply recede, the Senate will go onto tomorrow's business, and by and large it will not be resolved in the 2006 elections.

MELANIE KIRKPATRICK: Could I add -- I think there's two other things going on here. One is the possibility of a Supreme Court nomination, or the likelihood of a Supreme Court nomination. And if the filibuster issue isn't solved now, it's likely to come up again with a Supreme Court nomination.

PAUL GIGOT: And would be used particularly in that kind of a nomination, when the stakes are even higher.

MELANIE KIRKPATRICK: And the other question, the other thing that's going on here -- and I'll just mention it very briefly -- is that if you look at the list of those who are being filibustered, there are several women and there's an African-American, and there is a man who would be the first Arab-American, Henry Saad, on an appeals court.

PAUL GIGOT: Let's get to the nitty-gritty politics here. Is there a compromise, David, that can be worked out, do you think, to avoid the showdown?

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. And quite frankly, because of just the finite number of hours that exist at any legislative session, put some limits on the number of candidates the president can put forward. Because remember, most things get done by unanimous consent. So that would have been a very reasonable compromise. So no rule change, even with regard to executive calendar. But this kind of an arrangement.

The Democrats said no. I'm quite actually convinced that they're pushing it for reasons that transcend the judges. In some way it's interesting. The Democrats really believe that they are a minority party. They are interested, as a long-term governance procedure, to devising approaches which are not in the Constitution, that unduly entrench and magnify the power of the minority. So actually from a political perspective, it's fascinating. Perhaps they're more pessimistic about their prospects than ...

PAUL GIGOT: But you're saying that they're doing this not because they expect to be able to win politically, but because they expect to continue losing politically? I mean, the Democrats I talk to expect to, they think they can pin a defeat on the Republicans here by presenting them as somehow ...

DAVID RIVKIN: If I may, I'm talking about overarching justification for this. Of course they expect to win, to build up enough Democrats. But again, maybe I'm taking their rhetoric too seriously. I'm impressed by their fairly cosmic constitutional rhetoric about the need to protect minority interests from the tyranny of a majority.

PAUL GIGOT: Very briefly Melanie, then, do the Republicans have the votes here to pull the trigger on the nuclear option?

MELANIE KIRKPATRICK: Yes, I think they do, and all the vote counters in the Senate leadership say they do.

PAUL GIGOT: Okay, thanks very much to all of you. Next subject.