Open warfare has broken out between the White House and Capitol Hill over President
George Bush's most controversial nomination to date to the bench of American high
The nomination of a politically loyal judiciary is the singular way in which
US Presidents outlive their terms, leaving an imprint on the nation in the form
of judges who can sit on the bench making law for life - and the Bush White House
intends Judge Priscilla Owen from Texas to be one such judge.
Bush has intervened to back Owen, and her campaign is being managed - as they
all have since her Texas days - by Karl Rove, long-time political organizer for
the Bush family and now White House chief adviser.
The Democrat-controlled Senate, however, is fighting her nomination to the
powerful fifth circuit Appeals Court, the tier beneath the US Supreme Court.
Senators and a host of organizations petitioning their judiciary committee
say Owen has used the bench to advance a a zealous right-wing ideology, contesting
the right to abortion and favoring big oil and energy companies, including the
disgraced Enron, which has been one of her - and the President's - biggest financial
They are in turn accused by the White House of detonating a 'judicial crisis'.
The committee's chairman, Senator Patrick Leahy, a Democrat from Vermont, particularly
demanded that the White House 'look into' Owen's Enron connection, after being
passed a report by a research group, Texans for Public Justice, detailing the
firm's contributions, after which she ruled in their and other donors' interests
In one instance she wrote an opinion overturning another court, exempting Enron
from paying school taxes. The director of another group, Nan Aron of the Alliance
for Justice, said: 'Mention her name and people say "Oh, Judge Enron".'
'I would just say,' said Texans for Public Justice's Craig McDonald, 'that
as far as those of us who have watched Priscilla Owen, Karl Rove and George W.
Bush for a lot of years are concerned, this is the one that deserves to be controversial.
This is not a Texas fight or a fifth circuit fight; this is a struggle to determine
whether a political operative, Karl Rove, and his crew are going to determine
the make-up of the federal courts'.
So far as some senators are concerned, the most controversial rulings Owen
made in Texas were in about a dozen cases concerning abortion, and a legal obligation
that minors receive parental consent before terminating a pregnancy.
Those rulings have made abortion an issue for the first time in the selection
of a high court judge. Although the right to abortion is enshrined in US law,
its eventual abolition is one of Rove's dearest causes. He recently addressed
the Christian Conservative Family Research Council, saying: 'We need to find ways
to win this war.'
In the Texas courts, a girl can appeal against the obligation if she can show
that telling her parents might harm her, as happened in most Texas cases. But
Owen, dissenting, ruled throughout that the question was not whether telling parents
would harm the child, but having the abortion at all.
Minors, she said, should have to demonstrate to the court 'that philosophic,
social, moral and religious arguments can be brought to bear' on abortions, in
addition to those enshrined into law, which concern mainly health risks.
'It was nothing to do with telling parents,' said McDonald, 'she was trying
to stop these minors from having an abortion, which is something very different.'
Herein lies a twist to Owen's nomination. One of her cheerleaders on Capitol
Hill last week was White House counsel Alberto Gonzales. He joined the Texas Supreme
Court when Bush was state Governor, then was elevated to Washington and tipped
to be the next judge to take a seat on the bench of the highest court in the land,
the Supreme Court.
And yet, when Owen was overruled in trying to stop an abortion in 2000, even
her colleague on the bench, Gonzales, protested that to follow her lead 'would
be an unconscionable act of judicial activism'.
A legal watchdog, People for the American Way, argues that Owen indulges in
'activist' lawmaking which establishes law rather than interpret it. 'President
Bush has said he wants judges who will interpret the law, not make it,' said the
group's director, Ralph Neas. 'In Priscilla Owen, he has found the exact opposite.'
© Guardian Newspapers Limited 2002