Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Monday, August 05, 2002
 
Findlaw has published a strong article essentially arguing that since judicial nominations are based on political criteria, there is no reason the Senate should be shy of using similar criteria in confirmations.

The specific case focussed on is Priscilla Owens, Bush's nominee for the Fifth Circuit Court of Appeals. In making the nomination, Bush chose between two women on the Texas Supreme Court, Owens and Deborah Hankinson. (Presumably, although the article didn't discuss this, the fact that the candidates considered were both women was another political decision.) Hankinson was later told directly that she had been eliminated due to her relatively moderate views on abortion, although according to the article "[it] is no secret around the Texas courthouse, Hankinson enjoys a substantially better reputation as a jurist than does Owen".

Owen is said to have a reputation for being slow to write decisions, and the case cited on the subject is astonishing. In Miles v Ford, plaintiffs were the parents of a teenage boy who had been made quadriplegic in an auto accident, and were alleging that defects in the Ranger he was riding in contributed to his injury. A lower court had awarded $40 M in actual and punitive damages. In responding to Ford's appeal, the Mileses requested an early adjudication because they were receiving no money while the case was under appeal and the medical fees they were paying for their son's care were causing them serious hardship, Ford joined in the request for the case to be disposed of promptly.

Owens wrote the majority opinion in a 5 - 4 ruling that overturned the original verdict on the grounds that the suit had been filed in the wrong court, forcing the Mileses to start over from the beginning after already spending many years in litigation. The decision was handed down 17 months after arguments in the case had been heard. The court also formally denied the request for expedited action with the statement, "The request is overruled, not because it should not have been granted, but because, in fact, it was not granted."

Owens supporters now argue that the Senate has been improperly slow in granting her a hearing. Maybe Leahy should just respond, "A prompt hearing on the Owens nomination was denied, not because it should not have been granted, but because, in fact, it was not granted." I'm sure Owens would understand.



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