Senator Leahy, have you no sense of decency?

Great Debates
21

Since when are Republican hands clean on accusing people of being racist. When Judge Miguel Estrada was up for nomination, the Republicans accused Democrats of opposing him because of his race (as opposed to his conservative voting record), despite the fact that they had already confirmed three Hispanic judges so far. Yet, we got this.

“They (Democrats) don’t want Miguel Estrada because he’s Hispanic,” Senate Minority Leader Trent Lott, R-MS

“If you are a conservative and minority, the bar goes up a lot higher. This is Clarence Thomas all over again. This is complete discrimination.” Sen. Rick Santorum, R-PA

“I want to say to Democrats … you don’t have to be afraid, they (Hispanics) are good lawyers and great judges.” Sen. Pete Domenici, R-NM

Spinsanity has some good comments on stuff like this:
http://www.spinsanity.org/columns/20010702.html

22

I think you ought to prove that accusation or withdraw it, **wring[/'b] Somebody once told me that people get pitted for unsupported accusations. :wink:

Apos, I agree that Republicans do not have clean hands. But, this sort of demonization is now more typical of Democrats. [old man voice]When I was boy, Democrats like Hubert Humphrey and Adlai Stevenson were exceptionally honorable, while Republicans like Joseph McCarthy and Richard Nixon behaved sleazily. But, now…[/old man voice]

I think it’s true that the Democrats have delayed on Miguel Estrada because he’s Hispanic. It’s not that they’re racists; they’re just playing hardball politics. They want to avoid or delay the rise of prominent Republican Hispanics.

Furthermore, it’s a lot more serious to accuse a judge of racism than to accuse politicians of playing politics.

23

december: I am emphatically not here to debate your wholly spurious claim that what happened today was somehow worse or different than what the Republicans did to Clinton’s judicial nominees when they were in the Senate. Besides, I’m more than happy to let you prattle on and on about how Republicans are the forces of good and the Democrats are the forces of evil. It’s so transparent it can’t help but lend weight to the contrary position, whatever that may be.

What I am here to do is tell you about the nominee the Judiciary Committee rejected today. My legal practice consists almost entirely of appellate work in the Texas state courts. I read every opinion the Texas Supreme Court issues, and I also follow a lot of the cases they consider for discretionary review. I also have personal knowledge of the court and the justices that extends well beyond simple study of their opinions.

The Texas Supreme Court is a very conservative court, consisting of 9 (well, eight–Justice Baker just retired) elected Republicans. Nevertheless, I have a ton of respect for the court and the justices who sit on it.* They’re very conservative, but it’s a consistent and fair court, and they follow the law as it is handed to them by the Texas Legislature, Congress, and the U.S. Supreme Court.

Some conservative courts are activist courts. (Hello there, Fourth Circuit! Found any other constitutional principles you’d like to ignore lately?) The Texas Supreme Court is not one of them. If I have clear precedent that says my client is right, they’re going to agree with my client even though they’d rather not. Several of the justices are first-rate legal scholars, and one or two of justices I would be very pleased to see nominated to the U.S. Supreme Court.

Justice Owen has been a member of the court since she was first elected to the position in 1994. She has no other judicial experience; before winning her seat, she was a partner in a fairly big Houston firm, practicing primarily oil and gas law. The court doesn’t do a lot of oil and gas work these days, but it’s well served by her presence when those cases appear. (In that regard, I note this opinion dissenting from denial of review in an oil and gas case, about which she was apparently convincing enough that the court granted the motion for rehearing, and issued this unanimous opinion resolving a question that had been unanswered for several decades.)

But Justice Owen has also been one of the court’s two or three most conservative members, and that’s saying something on an all-Republican, elected court in one of the most conservative states in the nation. I believe that it is more than fair to describe her as a judicial activist. The criticism that she favors businesses over injured plaintiffs is valid–I cannot recall any opinion in which she favored an allegedly injured plaintiff over a business or professional who was being sued.

Justice Owen does a lot of dissents and concurrences (typically joined by or joining Justice Hecht), and I tend to think that it’s those opinions–not the majorities, where you have to satisfy at least 4 other votes–that show what kind of judge a person is. I hardly ever agree with a dissenting opinion Justice Owen issues, even though I agree with this very conservative court’s majorities at least three quarters of the time. I could cite any number of dissents and tell you why Owen was wrong about them, but it would bore you to tears. And frankly, even I think she’s wring in almost all of her dissents linked from the page wring cited earlier, damn few of them are anything other than a legitimate interpretation of existing law.

But how about the ol’ abortion litmus test? I believe there are plenty of legitimate complaints on that point. When the Texas legislature passed a parental consent law in 1999, the court was quickly involved in a series of “Jane Doe” appeals from pregnant teenage girls who wanted to avoid the requirement of obtaining parental consent for an abortion, but who had been denied that option by trial court judges. Owen dissented every time the court decided that a trial court either abused his discretion by denying the judicial bypass or needed to make additional findings before denying the request. She joined the opinions that affirmed the denial of the girls’ request. Those opinions are troubling to me as a supporter of abortion rights, but more importantly, I believe those positions improperly sought to apply entirely inapplicable standards for the sake of reaching an anti-abortion outcome.

The relevant opinions in the best example of the parental notification cases are:[ul][li]Justice O’Neill’s majority opinion[]Justice Owen’s dissent []Justice Hecht’s totally inappropriate dissent []Justice (now White House Counsel) Gonzales’ concurrence taking the dissenters to task for being more concerned with the outcome than the applicable legal standards, and []Justice Enoch’s concurrence (joined by Justice Baker) sharply criticizing Justice Hecht for violating the court’s own rules and basically being a jerk.[/ul][/li]
On the whole, however, Justice Owen should have been confirmed. I cannot recall any opinion she wrote that would call into question her commitment to civil rights or civil liberties (abortion rights obviously excepted). Justice Owens’ conservatism is predominantly a pro-business, anti-government conservatism, and frankly, that kind of perspective is not one that worries me about federal appellate court judges. I just don’t care what quantum of proof a plaintiff has to offer in an age discrimination case or the proper method of determining the value of stock options. As long as a judge isn’t going to rewrite existing interpretations of the Constitution or declare jihad on the legislative branch’s policy decisions, I’m perfectly happy just having a bunch of smart judges exercising their independent judgment to decide the cases that come before them. And there is zero evidence (abortion excepted) that Priscilla Owen is in any way inclined to do those things.

I could offer a lot more personal opinions and observations, but frankly, I can’t. So I’ll leave it at that. I disagree with her strongly, and I have serious concerns about the positions she would take on the Fifth Circuit, but she should have been confirmed.

*That assessment contrasts quite sharply with the Texas Court of Criminal Appeals, which I regard as a disgrace and one of the worst courts in the nation.

On Preview:

No shit? You mean the Republicans are being all nice to all those Republican nominees, while the Democrats are sometimes not so nice? Who’da thunk it? Why, I bet it’s been almost two years since the Republicans were mean to a judicial nominee! Glad to know they’ve given it up. :rolleyes:

24

Your assertion is silly: Democrats are the only ones in a position to do this to someone now, since it’s the Republicans doing the nominating. The only meaningful comparison here is to how the Republicans acted when the Democrats were the ones sending nominees to the slaughter.

25

Minty, as a recovering Texan…(little town called Waco…you never heard of it, nothing ever happens there…) I think you may have inadvertently understated a truth that is obvious to you and myself. Just as you say, when you call a Texan “conservative” you are “saying a lot”. In truth, you are talking just to the left of Kublai Khan. The Dopers you adress are, primarily, from the more or less “normal” states, Connecticut, Vermont, New Hampshire, places like that where public and civil psychosis is not so prevalent. They are simply not equipped to understand.

If Ms. Owen is considered to be, by and large, sternly conservative by Texas standards, thats more than extremist enough for me.

Further, I am persuaded by what I have read about her that she does, in fact, reach beyond the moment of the case to leverage some proscriptions against abortion. To a large degree, the abortion debate is over, most Americans have moved on, sensible conservatives pick more worthy fights.

Her committment to rear-gaurd and reactionary means to make difficult what she hasn’t the power to forbid is a bad sign, bad enough for me to support a vote to reject.

If the people of Texas want to elect her to thier courts, fine. Elevation to a serious Federal bench, no.

26

God forbid I should be young, female and pregnant in Texas.

27

I can’t seem to find where a democrat called the judge racist. are you quoting another news story that you have not linked?

28

What the Republicans accused Democrats of was far mroe than simple politics: what Lott and Domenici said, at the very least, goes well over the line. The only thing “excusable” about it is that the Democrats made similar comments when Republicans refused to consider or nominate black judges. It’s all the same game.

29

minty – thank you for your input. It’s greatly appreciated.

hansel – I agree with you that, “The only meaningful comparison here is to how the Republicans acted when the Democrats were the ones sending nominees to the slaughter.” That’s why I compared today with the period when Clinton was saddled with a Republican Senate.

He had difficulty getting hearings for his nominees. There was often unconcionable delay. But, when they finally got a hearing before the Judiciary Committee, they were all confirmed IIRC and none of them were slandered as Pickering and Owen were. One nominee, Ronnie White, was rejected by the full Senate and was called “soft on crime.” In my opinion, he should have been confirmed and the label was inappropriate. Still, I maintain that there is a difference in the level of vituperation.

spooge – The word racist was not used, but some Democrats made accusations that amounted to labeling him a racist. From an earlier thread,

Apos – I’m unclear about what you mean that Lott and Domenici’s accusations went “well over the line.” I heard Lott on TV accuse the Dems of going “over the line” by rejecting a well-qualified candidate with an unblemished record only because they didn’t like her politics. I heard Senator Schumer agree that the Democrats had done this, but he said it was justified.

In what way do you believe the Republican criticism went over the line?

30

Because they said that the Democratic opposition to Estrada was due to anti-Hispanic racism.

31

—I heard Lott on TV accuse the Dems of going “over the line” by rejecting a well-qualified candidate with an unblemished record only because they didn’t like her politics. I heard Senator Schumer agree that the Democrats had done this, but he said it was justified.—

Schumer is on record as saying that ideology is exactly WHY the Senate confirms judiciary candidates in the first place, so it’s a little silly to suggest that this is something nasty and under the table.
And I agree with him. It is legitimate when Republicans do it, and legitimate when Democrats do it. Controling the politics of the judiciary is one of the checks of the system. What isn’t legitimate is a lot of the rhetoric.

Accusing Democrats of being wary of the capabilities Hispanics is quite a different issue. So is accusing judges of being racist.

32

<<Schumer is on record as saying that ideology is exactly WHY the Senate confirms judiciary candidates in the first place, so it’s a little silly to suggest that this is something nasty and under the table. >>

Apos, I think the issue of ideology has been somewhat masked in the past. E.g., Clarence Thomas was hammered by Democrats about having allegedly been a poor administrator. They didn’t actually care how good an administrator he was, it was really his ideology they objected to.

The Owen nomination was the perhaps the first one where ideology was so clearly the only reason for rejection. That’s something new, I guess.

<<they said that the Democratic opposition to Estrada was due to anti-Hispanic racism.>>

Can we have a cite, please or some evidence, Captain Amazing?

33

This is the first time the Senate Judiciary Committee has ever rejected a candidate for the appeals court who was unanimously rated as “well qualified” by the ABA.

The Republicans have never done this.

FWIW.

Regards,
Shodan

34

The quote Apos gave:

When somebody says that, or when Trent Lott says, “They don’t want him because he’s Hispanic.”, that suggests to me, at least, that the people being talked about are racist and anti-Hispanic.

35

This is touchingly ironic. Perhaps you don’t recall that Bush has ruled out the ABA’s role in judicial nominations.

36

I don’t know whether the Republicans have ever done that or not. I do know that the Republicans in Congress from 1994 on had a habit of not deciding at all on judicial appointments, leaving federal seats vacant.

37

OK Cap’n, I agree that what Domenici said was wrong and stupid. He deserves your criticism. (Assuming that Apos’s quote is accurate. It’s not from the Spinsanity article he cited. BTW I also agree with Apos’s praise for Spinsanity.)

However, I support Lott’s statement. If the Democrats are choosing to delay Republican Hispanic nominees so as to keep Hispanics in the Democratic fold, that could be looked at as mere hardball politics. But, it would mean that Democrats put their political success ahead of Hispanic progress. That’s not really racism, but it comes close. It’s surely nothing to boast about.

Maeglin, it’s not ironic at all. If a high ABA rating had previously guaranteed approval, this would be ironic. But, that was not the case. The Dems would have rejected Owen, regardless. The fact that the (allegedly) liberally biased ABA unimously gave Owen their highest rating helps show that the Dems have upped the partisanship quotient.

38

Here’s what appears to be an extremely well-researched discussion of the relative confirmation rates of judicial nominees over the past 25 years:

http://www.rc3.org/reports/judicial_appointments.php

Complete with links to cites and everything. To summarize, confirmation periods have gotten progressively longer since the late 70’s when the president and congress are of differing parties. Reagan’s was slow, Bush I’s slower, Clinton’s slower yet. Bush II’s will likely be even worse.

However, I have read a couple of good discussions of the matter that mentioned that when Clinton was in office, he deliberately picked a lot of nominees that he knew wouldn’t have a chance in hell - people that either weren’t qualified, or who the conservatives were guaranteed to find fault with. He also tended to push for confirmations at grossly inappropriate times, like during election periods, when just about nothing gets accomplished, or when the budget needs to get done, or whatnot. I unfortunately cannot post cites for these, as they were both in print.

Democrats do tend to hate conservative minorities. It has nothing to do with racism, but everything to do with race. Minorities are supposed to be loyal democrats - any who become republicans are typically viewed as traitors to the cause. This is why you get inane political contests like in DC where you have one black candidate telling the other more conservative black candidate that he’s “not black enough” - ie, he’s not as Democrat-ic as he should be. While this doesn’t excuse a republican calling a democrat racist, there is an element of truth to the goading of Sen. Domenici, in that race certainly was a factor in the behavior of the democrats.

And I disagree wholeheartedly with both of you. Ideology should be completely and utterly irrelevant. What should be relevant is whether or not the judge has a habit of making well-reasoned interpretations of the law, and upholding it fairly. Now it’s true that ideology could cause a judge to sway in his or her judgement - and if this is the case, it will be apparent in their record. But if, for example, I am on the record as being a vehement racist, yet I constantly have a record of upholding the law where discrimination laws are concerned, how does my ideology make me a less effective judge? To use a more likely example, if I am pro-life (as I believe Owen was), yet I pass judgements that are perfectly in line with the abortion laws as written (which she did), why should my ideology be used against me? Indeed, wouldn’t that make me an especially effective judge, as I could be counted on to make fair judgements even when I disliked the laws I needed to defend?
Jeff

39

WIW = Very little. When the Republicans were in charge of the Judiciary Committtee, they just refused to bring “well qualified” Deomcratic nominees any vote at all. The end result is identical. At least the Democrats had the balls to put their ideological opposition on the record instead of sticking their heads in the sand.

40

I believe a substantive citation is required for these kinds of claims.

Both sides of the ideological spectrum frankly come off to me as whiney hypocritical lying bitches.

In re the substance, and without standing up for the source organizations I note
an analysis for judicial nominations in last two years of Clinton by
the CCRC
http://www.cccr.org/Chapter3.pdf
and a similar analysis from here
http://www.afj.org/jsp/report2000/toc.cfm
suggest the assertion is false or only true in a very technical sense.

So, let’s see some substantive data from both sides rather than this tedious oh you guys are worse than we are whinging.

BTW december, do look up the word substantive before making a non-substantive reply. I know it is pointless to think otherwise, but my misplaced optimism gets to me now and again.