Thanks to the compromise agreement made possible by seven Democrats who collaborated with Republicans to end the Senate impasse over judicial nominations, Priscilla Owen will now join the 5th U.S. Circuit Court of Appeals.
Four years of successful efforts by civil rights, women's rights, religious and consumer groups to prevent confirmation of the right-wing extremist were undone Wednesday, as the Senate voted 56-43 to confirm a nominee whose judicial activism on the Texas Supreme Court was so reckless that another member of that court, Alberto Gonzales, who now serves as the nation's attorney general, referred to her actions as "unconscionable."
The final vote broke along partisan lines. Fifty-three Republicans and two Democrats, Louisiana's Mary Landrieu and West Virginia's Robert Byrd, voted to confirm Owen. Forty-two Democrats and one Independent, Vermont's Jim Jeffords, voted against confirmation.
Those numbers are significant because they show that Democrats had the 40 votes that were needed to sustain a filibuster against Owen.
That means that, had Democrats held firm and forced moderate Republicans to reject the unpopular "nuclear option" that Senate Majority Leader Bill Frist, R-Tenn., was attempting to impose on the Senate, Owen might very well have been kept off the court. National polls showed an overwhelming majority of Americans opposed Frist's plan to bar judicial filibusters, thereby allowing confirmation of even the most objectionable of the Bush administration's nominees.
A number of moderate Republicans had indicated that they were uncomfortable with the majority leader's scheme to rewrite Senate rules, and there was at least a reasonable chance that a coalition of Democrats and moderate Republicans could have preserved the ability of the minority party to block extremist nominees. Unfortunately, in return for the agreement to put the "nuclear option" on hold, seven moderate Democrats agreed to allow confirmation votes for at least three blocked appeals court nominees.
Owen's confirmation on Wednesday represents the first of what are likely to be many confirmations of extreme, unqualified and ethically dubious nominees for the appeals court, traditionally the court of last hope of low-income Americans, people of color and women. Equal justice concerns are of particular significance in the cases of the 5th Circuit, which includes Texas, Louisiana and Mississippi and is home to the highest percentage of minority residents of any circuit in the country.
As disappointing as the collapse of conscience on the part of most Democrats has been, however, it is important to remember that 18 members of the opposition caucus held firm against the compromise of principles. Those senators - including Russ Feingold of Wisconsin - refused to vote for the cloture motion that shut down the filibuster option and cleared the way for Owen's confirmation.
Feingold, a member of the Judiciary Committee, was blunt in his dismissal of claims that the deal that has put Owen on the appeals court represented a legitimate "compromise."
"There was no effort to reach a real compromise that would take into account the concerns of all parties. A compromise at the point of a gun is not a compromise," he said. "I strongly opposed the threat of the nuclear option. I believe this was an illegitimate tactic, a partisan abuse of power that was a threat to the Senate as an institution and to the country. Attempting to blackmail the minority into giving up the rights that have been part of the Senate's traditions and practices for centuries was a new low for a majority that has repeatedly been willing to put party over principle. Unfortunately, the blackmail was partially successful," said Feingold, who explained that "the end result is that nominees who don't deserve lifetime appointments to the judiciary will now be confirmed."
© 2005 Capital Times