Sunday, July 21, 2002
Judicial nomination in the news: The nomination of Texas Supreme Court Justice Priscilla Owen to the Fifth Circuit is in the news these days. The frustrating thing is that -- even in this linked article from law.com, specifically written for lawyers, and all the more so in the general press -- there's very little ACTUAL INFORMATION that would allow a reader to make up her own mind. It is supremely unhelpful, for instance, to know that Victoria Toensing says for public consumption that Owen is a moderate: of course she says that, as a political actor making "spin" in a political drama. Nobody's rational decisionmaking process is actually helped by a quote from her. Nor does negative commentary from NARAL tell us, frankly, anything other than that NARAL's against Owen; and though this is enough information for some people, others would prefer the underlying data so as to make up their own minds.
But the news media so rarely give us the underlying data. Part of the problem -- a big part of the problem, I think -- is that practicing lawyers are understandably cautious about giving frank negative assessments about sitting judges, even when those negative assessments can be accompanied by actual supporting facts. Surely every good appellate lawyer in Texas knows whether Justice Owen understands and applies the basic principles of how to do appellate judging fairly, or not. They could also tell us whether she ever, or often, joins or writes an opinion that is pro-individual rather than pro-corporate in difficult and disputed tort cases; whether she ever, or often, joins or writes an opinion that is pro-defendant rather than pro-government in difficult and disputed criminal cases; or whether on the other hand her vote is nearly always predictable on the cases that divide the Justices. They could tell us, bottom line, whether her judicial opinions conveniently wind up in line with her politics even when it requires lots of fancy footwork to reach that convenient result, or whether they don't. They could give us, even better, specific examples of cases where she's gone out on a limb or ignored the record or ignored precedent in order to reach a result in line with her politics, or they could tell us that nobody can come up with a case where she's done that. Then, further, they could tell us whether, even on cases that involve honestly disputable novel issues of law, she always (or usually or only sometimes) reaches legal views that coincide with the Republican Party's political views; even if this wouldn't necessarily show dishonesty, it is relevant for the legitimate political aspect of the confirmation process. These are the sorts of things what we, and the Senate, need to know, rather than battling spin-quotes from the usual CNN suspects.
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