Here Come the Judges -- Again: Round Two for Owen, Pickering

Illustration By Doug Potter

"We will mobilize our constituents to urge her defeat on the Senate floor," said Craig McDonald, director of Texans for Public Justice, of the Bush administration's renomination of former Texas Supreme Court Justice Priscilla Owen to a seat on the 5th Circuit Court of Appeals. Owen's name, along with that of Mississippi U.S. District Judge Charles Pickering, was among the group of 31 resubmitted by the White House to the U.S. Senate in early January. All had failed to pass the Democrat-controlled Judiciary Committee prior to the November election, although most had been expected to receive eventual approval. The Republicans now hold a narrow Senate majority (51-48, with one independent) and thus control of the Judiciary Committee, and they expect to be able to hold enough votes on the Senate floor to confirm all the president's nominees.

The Owen and Pickering nominations garnered the most controversy last year, as liberal groups attacked Owen's Texas Supreme Court record of pro-business and anti-abortion decisions and Pickering's history, as a state representative and a judge, of support for racial segregation. Both nominations failed in committee on straight-party 10-9 votes; Republicans were particularly angered that the judiciary refused even to pass its negative recommendation on to the floor for a full Senate vote. Following the GOP victories last November, Owen's renomination was expected, but Pickering's seemed less likely. His candidacy had been closely associated with Mississippi Sen. Trent Lott, forced out in December as majority leader after apparently expressing nostalgia for racial segregation. Even Lott himself, trying desperately to save the leadership position he eventually lost to Tennessee Sen. Bill Frist, declared he would have to "reconsider" the Pickering nomination in light of the bitter lessons he was learning about the country's persistent racial tensions.

But Lott's fall from grace has apparently had little effect on the White House, and the nominations are being seen as one more indicator that the administration will persist in its plan of using its narrow majority to move the judiciary as far to the right as possible. The 5th Circuit is already known as the most conservative in the country, even though its jurisdiction (Texas, Louisiana, Mississippi) includes the nation's highest concentration of minority citizens. "By renominating Pickering and Owen," said McDonald, "President Bush has thrown a bone to the extreme-right wing of the Republican Party. He aims to pack the courts with ideologues who will use the bench to rewrite laws and roll back rights."

Texans for Public Justice, known nationally for its advocacy of judicial and campaign-finance reform, is hardly alone in its opposition to the nominations. Opposition to Judge Owen comes from a long list of Texas progressive organizations: the American Association of University Women of Texas, the Gray Panthers, the Mexican-American Legal Defense and Education Fund, National Organization for Women, Planned Parenthood, Texas Abortion and Reproductive Rights Action League, Texas AFL-CIO, Texas NAACP, and so on. They describe Owen's Supreme Court record as "judicial activism" in reaching for the most inflexibly conservative interpretation of already conservative Texas laws on matters like abortion and consumer rights. Speaking for the coalition of Texas groups opposing the nomination, McDonald concluded, "Justice Owen consistently injects her anti-choice, anti-worker, anti-consumer views into her rulings."

Pickering has an equally intransigent record on abortion rights, but is more notorious for his political and judicial history of defending segregation in the name of "states' rights." During his first hearing before the Judiciary Committee, he was questioned sharply for once lobbying the Justice Department for a lighter sentence for a man convicted of a federal hate crime in a cross burning.

But conservative groups are equally mobilized to defend the Bush judicial nominations, and they accuse liberal activists of distorting the records of qualified candidates for partisan purposes. One White House official complained to the Washington Post of "the gross distortions about Judge Pickering, including the alleged intent of writings from his days in college [defending anti-miscegenation laws], when he has the support of many black leaders and testified against the Ku Klux Klan." But black organizations in Mississippi were the first to object to Pickering's nomination, and national NAACP board Chairman Julian Bond said simply, "A vote for Charles Pickering is a vote against civil rights."