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omg 5th circuit w/ 2 trumpistas

no lnx an 11 21

'Pro-death cult strikes back': Right-wing judges block Biden’s vaccine rule for big companies

Kenny Stancil and Common Dreams November 08, 2021

Progressives concerned about workplace safety and public health responded with dismay after a federal appeals court on Saturday temporarily blocked the Biden administration's attempt to require workers at companies with 100 or more employees to be vaccinated against Covid-19 or tested weekly.

Citing "grave statutory and constitutional" problems with the rule, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit issued the stay in response to a joint petition filed Friday by a coalition of businesses, conservative advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah.

That legal challenge, and separate lawsuits from Republican-led states, came just one day after President Joe Biden announced that the Occupational Safety and Health Administration (OSHA) would begin enforcing its newly unveiled Emergency Temporary Standard (ETS) in the coming weeks. Companies with at least 100 employees have until December 5 to require unvaccinated workers to wear masks indoors, and by January 4, they must require vaccinations or administer weekly tests.

Decrying the decision of the "right-wing Fifth Circuit," labor journalist Steven Greenhouse said on social media that "it's terrible for worker safety and public health that three conservative activist judges have suspended Biden's... new rule requiring workers at companies with more than 100 workers to get vaccinated or tested."

"OSHA's mission is to protect workers' health," Greenhouse continued, "but the appellate judges seem to forget that Covid has killed thousands of meatpacking, retail, and other workers."

More than 750,000 people in the U.S. have died from Covid-19 since the pandemic started last March, and the disease continues to kill nearly 1,100 people per day, most of them unvaccinated, according to the U.S. Centers for Disease Control and Prevention (CDC).

Recent studies confirm that vaccines save lives.Last month, the U.S. Department of Health and Human Services analyzed the relationship between county-level inoculation rates and Covid-19 outcomes among U.S. seniors and found that vaccines helped ward off 265,000 infections, 107,000 hospitalizations, and 39,000 deaths during the first five months of 2021.

And in September, CDC researchers found that individuals in the U.S. who were not fully vaccinated last spring and summer were 11 times more likely to die after being infected with the coronavirus—and over 10 times more likely to be hospitalized—than those who were fully inoculated.

Greenhouse said that "the judges evidently sympathize with [Texas Republican Gov.] Greg Abbott's let-people-die stance—that it'soverreachfor OSHA to act strongly to protect workers from Covid."

David Michaels, a leader of OSHA during the Obama administration, also rebuked the federal appeals court, describing its decision as legally dubious and politically motivated.

"The same activist court that refused to stay Texas' law that permits bounty hunters to sue anyone who aids an abortionafter six weeks of pregnancy has stayed an OSHA rule that is clearly within OSHA's authority, will save lives, and make workplaces safe," he told the New York Times.

According to the Times, "At the core of the legal challenge is the question of whether OSHA exceeded its authority in issuing the rule and whether such a mandate would need to be passed by Congress."

The newspaper reported:

The suit against the mandate stated that President Biden "set the legislative policy" of substantially increasing the number of Americans covered by vaccination requirements, and "then set binding rules enforced with the threat of large fines."

"That is a quintessential legislative act—and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety," the suit said. "Nowhere in OSHA's enabling legislation does Congress confer upon it the power to end pandemics."

Corporate executives asked, and the Biden administration agreed, to delay implementation of OSHA's new ETS "until after the New Year, citing concerns about worker shortages during the important holiday season," Reuters noted.

Solicitor of Labor Seema Nanda, meanwhile, said in a statement that the Labor Department, home to OSHA, is "confident in its legal authority" to issue vaccine requirements.

The vaccine rule for companies with 100 or more employees "applies to 84.2 million workers at 1.9 million private-sector employers," Reuters reported. "OSHA estimates that 31.7 million of [those] workers are unvaccinated and 60% of employers will require vaccinations, up from 25% today, resulting in another 22.7 million employees getting vaccinated."

Several million additional workers are covered by the Biden administration's vaccine mandate for employees of the executive branch, federal contractors, and staff at healthcare facilities that accept Medicare or Medicaid funding. OSHA officials say they are considering expanding the jab-or-test rule to include companies with fewer than 100 workers.

"The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," Nanda said. "We are fully prepared to defend this standard in court."

The Fifth Circuit panel's two-page order directs the Biden administration to respond to the request for a permanent injunction against the rule by 5 p.m. ET Monday.

As the Times noted, it remains unclear whether the court's stay "would be a procedural blip for the Biden administration or the first step in the unwinding of the mandate."

The newspaper explained that "after both sides have filed briefs, the court will decide whether to lift the temporary injunction, allowing the rule to proceed as planned, or whether to grant a permanent injunction. OSHA could then take the case to the Supreme Court."

While some legal experts argue that the Labor Department has the regulatory authority to compel private employers to protect the health of workers and the broader public through mandatory vaccination amid a deadly global pandemic,Josh Blackman, a professor at South Texas College of Law Houston, told Reuters that "there will be so much litigation it will never see the light of day."

Twenty-four attorneys general threatened to sue the Biden administration over the rule back in September, and several followed through immediately after it was published in the federal register on Friday.

In addition to the petition filed with the Fifth Circuit, attorneys general in 11 states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming—filed a lawsuit in the U.S. Court of Appeals for the Eighth Circuit.

And in the U.S. Court of Appeals for the Eleventh Circuit, the states of Alabama, Florida, and Georgia sued, with Florida Republican Gov. Ron DeSantis saying at a press conference that "the federal government can't just unilaterally impose medical policy under the guise of workplace regulation."

Roughly 70% of U.S. adults are fully inoculated against Covid-19, and about 80% have received at least one shot, according to the CDC. Recent polling shows that a majority of U.S. adults favor Covid-19 vaccination requirements, with only about one-fifth to one-quarter of respondents opposed.

OSHA, Reuters pointed out, is "fighting history. The agency has issued 10 ETS over its 50 years. Of the six that were challenged in court, only one survived entirely intact."

Donald Verrilli, U.S. solicitor general during former President Barack Obama's administration, however, told the news outlet that the Biden administration "wouldn't move forward unless they thought that they could defend it legally... I think the constitutional challenges are all going to fail."

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5th U.S. Circuit Court of Appeals at New Orleanson Saturday granted an emergency motion to stay the federal government’s vaccine mandate for larger employers pending expedited judicial review.

The 5th Circuit acted in a suit by several companies and the states of Texas, Louisiana, Mississippi, South Carolina and Utah.

The New York Times, the Washington Post and Reuters are among the publications covering the 5th Circuit stay. How Appealing links to the 5th Circuit’s Nov. 6 order.

The court said it granted the stay because the plaintiffs’ petitions “give cause to believe there are grave statutory and constitutional issues” with the vaccine mandate.

Missouri and 10 other Republican-led states have filed a separate challenge before the 8th Circuit at St. Louis,according to prior New York Times coverage and Bloomberg Law.

Three states led by Florida also filed a challenge in the 11th Circuit at Atlanta, and seven states led by Kentucky filed a challenge in the 6th Circuit at Cincinnati.

The Occupational Safety and Health Administration had released the rule Thursday. It requires businesses with more than 100 employees to require workers to get vaccinated or to wear a face mask indoors and test negative for COVID-19 on a weekly basis.

The rule says unvaccinated workers must begin wearing masks by Dec. 5 and workers must complete their vaccine regimen by Jan. 4.

The OSHA enacted the rule as an “emergency temporary standard” needed to protect employees from danger.

The 5th Circuit plaintiffs contend that the rule is “a quintessential legislative act—and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety,” according to suit coverage by the New York Times.

The 5th Circuit per curiam order was signed by U.S. Circuit Judges Edith Jones, Kyle Duncan and Kurt Engelhardt.

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https://www.ca5.uscourts.gov/about-the-court/fifth-circuit-judges

 Chief Judge Priscilla R. Owen

Born 1954 in Palacios, TX

Federal Judicial Service:

Judge, U.S. Court of Appeals for the Fifth Circuit

Nominated by George W. Bush on February 14, 2005, to a seat vacated by William L. Garwood. Confirmed by the Senate on May 25, 2005, and received commission on June 3, 2005. Served as chief judge, 2019-present.

Education:

Baylor University, B.A., 1975

Baylor University School of Law, J.D., 1977

Professional Career:

Private practice, Houston, Texas, 1978-1994

Justice, Supreme Court of Texas, 1995-2005

Member, Judicial Conference of the United States, 2019-present

Other Nominations/Recess Appointments:

Nominated to U.S. Court of Appeals for the Fifth Circuit, May 9, 2001; no Senate vote

Nominated to U.S. Court of Appeals for the Fifth Circuit, September 4, 2001; no Senate vote

Nominated to U.S. Court of Appeals for the Fifth Circuit, January 7, 2003; no Senate vote

Judge Carolyn Dineen King

Judge E. Grady Jolly

 Judge Patrick E. Higginbotham

Judge W. Eugene Davis

Judge Edith H. Jones

Born 1949 in Philadelphia, PA

Federal Judicial Service:

Judge, U.S. Court of Appeals for the Fifth Circuit

Nominated by Ronald Reagan on February 27, 1985, to a new seat authorized by 98 Stat. 333. Confirmed by the Senate on April 3, 1985, and received commission on April 4, 1985. Served as chief judge, 2006-2012.

Education:

Cornell University, B.A., 1971

University of Texas School of Law, J.D., 1974

Professional Career:

Private practice, Houston, Texas, 1974-1985

Member, Judicial Conference of the United States, 2006-2012

Other Nominations/Recess Appointments:

Nominated to U.S. Court of Appeals for the Fifth Circuit, September 17, 1984; no Senate vote

Judge Jerry E. Smith

Judge John M. Duhé, Jr.

   Judge Jacques L. Wiener, Jr.

Judge Rhesa H. Barksdale

Judge Fortunato P. Benavides 

Judge Carl E. Stewart

Judge James L. Dennis

Judge Edith Brown Clement  

Judge Jennifer Walker Elrod

Judge Leslie H. Southwick

Judge Catharina Haynes

Judge James E. Graves, Jr.

Judge Stephen A. Higginson 

Judge Gregg J. Costa

Judge Don R. Willett

Judge James C. Ho

Judge Stuart Kyle Duncan

Born 1972 in Baton Rouge, LA

Federal Judicial Service:

Judge, U.S. Court of Appeals for the Fifth Circuit

Nominated by Donald J. Trump on January 8, 2018, to a seat vacated by W. Eugene Davis. Confirmed by the Senate on April 24, 2018, and received commission on May 1, 2018.

Education:

Louisiana State University, B.A., 1994

Louisiana State University, Paul M. Hebert Law Center, J.D., 1997

Columbia Law School, LL.M., 2004

Professional Career:

Law clerk, Hon. John M. Duhe, Jr., U.S. Court of Appeals for the Fifth Circuit, 1997-1998

Private practice, Houston, Texas, 1998-1999

Assistant solicitor general, State of Texas, 1999-2001

Private practice, Austin, Texas, 2001-2002

Associate-in-law, Columbia Law School, 2002-2004

Assistant professor of law, University of Mississippi School of Law, 2004-2008

Appellate chief, Office of the Attorney General, State of Louisiana, 2008-2012

General counsel, The Becket Fund for Religious Liberty, Washington, D.C., 2012-2014

Private practice, Washington, D.C., 2014-2018

Other Nominations/Recess Appointments:

Nominated to U.S. Court of Appeals for the Fifth Circuit, October 2, 2017; no Senate vote

 Judge Kurt D. Engelhardt

Born 1960 in New Orleans, LA

Federal Judicial Service:

Judge, U.S. District Court for the Eastern District of Louisiana

Nominated by George W. Bush on September 4, 2001, to a seat vacated by Morey L. Sear. Confirmed by the Senate on December 11, 2001, and received commission on December 13, 2001. Served as chief judge, 2015-2018. Service terminated on May 15, 2018, due to appointment to another judicial position.

Judge, U.S. Court of Appeals for the Fifth Circuit

Nominated by Donald J. Trump on January 8, 2018, to a seat vacated by Edith Brown Clement. Confirmed by the Senate on May 9, 2018, and received commission on May 10, 2018.

Education:

Louisiana State University, B.A., 1982

Louisiana State University, Paul M. Hebert Law Center, J.D., 1985

Professional Career:

Law clerk, Hon. Charles Grisbaum, Louisiana Court of Appeal, Fifth Judicial Circuit, 1985-1987

Private practice, Metairie, Louisiana, 1987-2001

Other Nominations/Recess Appointments:

Nominated to U.S. District Court for the Eastern District of Louisiana, August 2, 2001;no Senate vote

Nominated to U.S. Court of Appeals for the Fifth Circuit, October 5, 2017; no Senate vote

Judge Andrew S. Oldham

Judge Cory T. Wilson

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...There was another story that perhaps gave weight to this theory, “Republicans for Choice vs. Republicans for Choice” by Jeff Johnson, about the conflict between Stone’s Republicans for Choice PAC and Republicans for Choice, an affiliate of Planned Parenthood. Stone’s group supported the appointment by George W. Bush of Priscilla Owen to the Fifth Circuit, while the Planned Parenthood affiliate was opposed. “I worry that if we in the pro-choice movement attack even those judicial nominees who are responsible and acclaimed jurists that we will appear like the ‘boy who cried wolf’ when the really bad nominees come forward,” wrote Stone. “We need to pick our fights and this should not be one of them.” “Republicans for Choice”, you discovered in this article, was a name that had been trademarked by Planned Parenthood in 1990, with an agreement between the group and Stone allowing her to use it, with necessary qualifiers to avoid confusion. Yet the confusion appeared inevitable, given the names; Stone’s website was republicansforchoice.com, while republicansforchoice.org was the affiliate’s. “We are Republican first and pro-choice second in their eyes,” said Stone of her disagreement with Planned Parenthood. “Our group was organized to be party-friendly and to work out the issue within the party … I have been a target more often than not because they see me as being ‘too Republican.’” In their mailer “Priscilla Owen Nominee for United States Court of Appeals For the Fifth Circuit: Executive Summary”, NARAL would write the following as their basis for opposing the nomination:

...http://italkyoubored.wordpress.com/2014/02/15/roger-stone-pretty-reckless-is-going-straight-to-hell-part-eight/

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Justice Owen was, by all accounts, a respected but little-known lawyer in Houston in 1994 when she wasfirst elected to the State Supreme Court with Mr. Rove's support and tutelage. Her experience up to then largely involved obscure legal cases involving pipelines and federal energy regulations.

At the time, Mr. Rove was helping to make over the Texas Supreme Court from a bench populated by Democrats widely viewed as favorable to the plaintiffs' bar - the lawyers who sue companies - to the business-friendly Republican stronghold it is today.

Ms. Owen would probably never have had a chance to run for the Supreme Court, because everyone considered it a hopeless task to oppose the enormously popular incumbent, Justice Lloyd Doggett. But when a Congressional seat opened up suddenly, Justice Doggett, a Democrat, decided to leave the court and run for the House. Ms. Owen found herself the Republican nominee in a state turning increasingly Republican.

Mr. Rove, who had helped select her as the Republican candidate, helped raise more than $926,000 for her campaign, almost half from lawyers and others who had business before the court, according to Texans for Public Justice, a liberal group in Austin that tracks Texas campaign donations. Mr. Rove's firm was paid some $247,000 in fees.

When Mr. Bush was first elected to the White House, Mr. Rove again chose Ms. Owen, by then a justice on the Texas Supreme Court for nearly a decade, to be among the president's first appeals court candidates, administration and Congressional officials said. In doing so, the officials said, Mr. Rove had to disagree with Alberto R. Gonzales, then the White House counsel and now attorney general. Mr. Gonzales had served on the Texas Supreme Court with Justice Owen and while he liked her greatly, he had preferred another member of the court, Justice Deborah Hankinson, for the federal court seat.

Mr. Rove's third intervention came last year when the state's chief justice retired and Gov. Rick Perry privately offered to nominate Justice Owen to the post, senior Texas Republicans said in interviews. Justice Owen, whose nomination to the federal appeals court had been blocked by a Democratic filibuster, called Mr. Rove for advice before declining; some Republican political figures said he told her to turn down the post and remain ready and available for the current battle, while another Republican said Mr. Rove told her that it was her choice, but that she still had a chance at the federal court seat. The Texas Republicans who spoke about Mr. Rove's role would not allow their names to be published because they are still active in politics.

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Priscilla Owen: Corporate Hack

The Times' Neil Lewis today chronicles the rise of Justice Priscilla Owen?one of the federal court nominees that Senate Democrats...

By Bradford Plumer | Mon May. 16, 2005

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The Times' Neil Lewis today chronicles [1] the rise of Justice Priscilla Owen—one of the federal court nominees that Senate Democrats have promised to filibuster—noting the guiding hand of Rove in the background. It's a good piece, but as with many pieces about Owen, the big controversy over her nomination seems to revolve around her abortion views. Those views are appalling, but as Mother Jones' Michael Scherer reported [2] two years ago,it's her business connections—and bought-and-paid-for proclivity to shill for corporations—that are truly troubling. Here's Scherer's description of the Rove and Owen tale:

The conflicts this created were on full display in the case of Priscilla Owen, now a Bush nominee to the 5th Circuit Court of Appeals. When she first decided in the early 1990s that she wanted to run for a spot on the Texas Supreme Court, she called on Ralph Wayne, president of theTexas Civil Justice League, a trade group formed by the state's manufacturing, transportation, and energy industries."I said, 'Have you talked to Karl Rove?'" Wayne remembers. "She said, 'No, but I think I should.'"

After Rove met with Wayne and Owen, he signed on, giving the candidate the seal of approval from the state's corporate establishment. The money followed. Owen raised $1.1 million for her successful 1994 state Supreme Court campaign, with a record 21 percent coming directly from the business community and much more coming from corporate defense lawyers. Judge Owen later repaid the favor, in part, by lending her endorsement to a Texas Civil Justice League fundraising appeal.

By the time Rove was done, the last Democrat had been purged from the Texas Supreme Court. "The cases all started getting decided anti-consumer, on the side of big business," says Phil Hardberger, a retired Texas appellate court judge who is a Democrat. Jury verdicts, once embraced by the Democratic court, were now overturned or reduced. By the 1997-98 term, defendants were winning 69 percent of the time, andinsurance companies, doctors, and pharmaceutical firms were winning nearly every case. Owen consistently distinguished herself as one of the conservative court's most strident conservatives. In one decision, Owen argued unsuccessfully in support of a water-quality exemption tailored for an Austin land developer who had given $2,500 to her campaign. The court majority dismissed her contention as "nothing more than inflammatory rhetoric."

Like I said, the abortion rhetoric gets all the attention, but it's the business stuff that's truly galling. Note that Karl Rove has worked hard to create a purely corporate judiciary in Texas, and now Republicans are trying to replicate his success on the national stage. And Owen is one of the worst of the bunch. That's the main reason for filibustering her nomination: judges should uphold the rule of law, not the bottom line—and that's a principle well worth going to unprecedented lengths to fight for.

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Source URL: http://www.motherjones.com/mojo/2005/05/priscilla-owen-corporate-hack

Links:

[1] http://www.nytimes.com/2005/05/16/politics/16owen.html?ei=5090&en=5ce8d7aaf281976b&ex=1273896000&partner=rssuserland&emc=rss&pagewanted=print

[2] http://www.motherjones.com/news/feature/2003/11/ma_564_01.html

http://www.motherjones.com/transition/inter.php?dest=http://www.motherjones.com/print/2500

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http://mail.sourcewatch.org/index.php/Priscilla_Owen

According to the Traditional Values Coalition, Priscilla Owen was a "nominee to the United States Court of Appeals for the 5th Circuit Court. Priscilla Owen is currently a Justice on the Supreme Court in Texas. She has been nominated for a position designated as a judicial emergency by the Administrative Office of the United States Courts.

"Texans for Public Justice claim that Owen received contributions from Enron and then gave a favorable ruling in Enron Corp. v. Spring I.S.D. in 1996. The truth is that all court justices, Democrats and Republicans alike, signed a unanimous Supreme Court ruling which relied on two previous U.S. Supreme Court cases in the Enron case. Owen received $8,600 from Enron out of $134,058 all members of the Supreme Court received. It is legal for Justices running for office to take campaign contributions.

"Texans for Public Justice also claim that she will rule in favor of groups that contribute to her election campaign. Owen has publicly stated that she supports a constitutional amendment that will change how judges are elected in Texas. She supports a plan whereby judges will run in a non-partisan manner."

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"Justice Priscilla Owen is a member of the Houston Chapter of the Federalist Society. She is considered to be on 'the far right wing' of the Texas court. In one case, concerning a state law relating to the ability of minors to obtain an abortion without parental consent, then-Texas Supreme Court Justice Alberto R. Gonzalez, now chief White House counsel, warned that adopting the position of the dissenters, including Owen, 'would be an unconscionable act of judicial activism.' In September 2002, the Senate Judiciary Committee rejected Owen's nomination." [1]

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For further information on Priscilla Owen:

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wiki

Priscilla Richman Owen (born October 4, 1954) is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on theTexas Supreme Court.

Contents

  [hide] 

Early life

Priscilla Owen was born in Palacios, Texas. Her earliest years were spent on her family's farm in Collegeport.[1] She later grew up and went to school in Waco. She worked part-time during high school and college at her stepfather's insurance company. During summers, she returned to Collegeport, working in rice fields and herding cattle.

Owen started college at the University of Texas at Austin and later transferred to Baylor University to be near her family in Waco. She earned a Bachelor of Arts degree, cum laude, from Baylor. She then went to Baylor Law School, where she became editor of theBaylor Law Review, and graduated cum laude in 1977, receiving a Juris Doctor degree. From among approximately 400 examinees, at age 23, she received the highest score on the December 1977 Texas bar examination.

She joined the Andrews & Kurth law firm in Houston, as a litigator, specializing in oil and gas litigation. She made partner at the age of 30. In private practice, Owen handled a broad range of civil matters at the trial and appellate levels. She was admitted to practice before various state and federal trial courts and appellate courts. She is a member of the American Law Institute, the American Judicature Society, the American Bar Association, and a Fellow of the American and Houston Bar Foundations.

In 1993, after 17 years at Andrews & Kurth, she was asked to run for the Texas Supreme Court as a Republican. She won with 53 percent of the vote, promising to restore integrity and dignity to a court tainted by scandal.

Owen had written articles and lobbied the Texas Legislature to eliminate partisan election of judges, arguing that they hinder the ability of courts to provide impartial justice. When she was up for reelection in 2000, Democrats did not put up an opponent against her, and she was returned to office with 84 percent of the vote, defeating aLibertarian opponent with the help of endorsements from newspapers statewide.

Owen served on the board of Texas Hearing and Service Dogs, which rescues dogs from pounds, provides training for them, and then gives the dogs to disabled people who cannot otherwise afford them. In addition, she was a founding member of the St. Barnabas Episcopal Mission in Austin, Texas and has taught Sunday school.

In the mid-1990s, Congress reduced funding for the Legal Services Corporation. Owen was part of a committee that successfully encouraged the Texas Legislature to enact legislation that has resulted in millions of dollars per year in additional funds for providers of legal services to the poor.

Owen served as the Texas Supreme Court's representative on the Court-Annexed Mediation Task Force, working to resolve differences between lawyer and non-lawyer mediators, in order to provide an alternative to expensive courtroom trials. She has been a member of the Gender Bias Reform Implementation Committee and statewide committees regarding legal services to the poor and pro bono legal services.

Owen also served on the boards of advisors of the Houston and Austin Chapters of theFederalist Society. Owen was instrumental in organizing a group known as Family Law 2000 that seeks to find ways to educate parents about the effect that divorce can have on their children and to lessen the adversarial nature of legal proceedings when a marriage is dissolved.

Fifth Circuit nomination and confirmation

Owen was nominated on May 9, 2001 by President George W. Bush to fill a vacancy on the Fifth Circuit created by Judge William Lockhart Garwood, who had taken Senior status on January 23, 1997. Senate Democrats immediately decided to block her nomination for two reasons. First, the Democrats were angry that two previous nominees that President Clinton had nominated to Garwood's empty seat, Jorge Rangel andEnrique Moreno, were never given hearings by the U.S. Senate during Clinton's second term because the Senate was at the time controlled by Republicans. Second, they considered her to be too conservative. As a result, the Senate Democrats, who controlled the Senate Judiciary Committee during the 107th Congress did not let Owen's nomination come up for a vote. In 2003, after Republicans had taken the Senate back, Democrats filibustered her. In 2005, after Republicans picked up four more seats in the Senate during the 109th Congress was her nomination again considered.

Owen had considerable judicial experience as a member of the Texas Supreme Court, and had been rated "Well-Qualified" (highest possible) by the American Bar Associationfor the Fifth Circuit position.[2] According to ABC News reporter Jan Crawford Greenburg, Senate Democrats strategically "targeted outspoken conservatives who were potential Supreme Court picks....their successes in filibustering women, Hispanics, and African Americans in 2003 undermined Bush's plans to replace [retiring U.S. Supreme Court Associate Justice Sandra Day O'Connor] with another woman or a minority."[3]Supporters of the Owen nomination asserted that her criticized rulings were often near-unanimous, or simply followed federal precedents. Judge Owen was touted as a judicial conservative who would, in the words of President Bush, "interpret the law, not legislate from the bench."[4]

Opponents, however, criticized her for what they claimed were her conservative positions on contentious social and economic issues, and pro-corporate decisions. Democratic Senator Edward Kennedy said that President Bush's appointee as Attorney General,Alberto Gonzales, during his service with Owen on the Texas Supreme Court had frequently criticized Owen; Gonzales argued, said Kennedy, that one ofOwen's positions taken in dissent would "judicially amend" a statute for the benefit of manufacturers selling defective products.[5] On abortion, Owen was criticized by pro-choice groups for her interpretation of Texas's parental-notification law, and for joining a majority decision on overrides only once.[6]

In May 2005 a compromise was arranged by a bipartisan group of moderate senators called the Gang of 14, which allowed for Owen to be finally given a full Senate vote. On May 24, 2005 debate on her nomination was ended by a vote of 81–18. She was finally confirmed by a vote of 55–43 on May 25, 2005 and was sworn in on June 6, 2005. Owen was the third judge nominated by Bush to the Fifth Circuit and confirmed by the United States Senate.

Possible Supreme Court nomination

In 2005, Owen was often cited as a potential Bush Supreme Court nominee to replace retired justice Sandra Day O'Connor. On September 17 of 2005, Minority Leader Harry Reid informed Majority Leader Bill Frist that Owen would be filibustered if she were nominated for the Supreme Court, but Frist believed at the time that Owen could still be confirmed in the face of a filibuster.[7] In a surprise, Bush nominated Harriet Miers to fill the Justice O'Connor vacancy. When Miers withdrew her nomination, Samuel Alito was named as her replacement.

Notable opinions

In 2010, Judge Owen joined Emilio M. Garza and Edith Brown Clement in affirming the dismissal of the complaint in Doe v. Silsbee Independent School District.[8] The plaintiff ("H.S.") was a cheerleader who was ordered by her high school to cheer for her alleged rapist, a basketball player named Rakheem Bolton.[9] H.S. refused and was kicked off the team. She sued, claiming a violation of her First Amendment right to free speech. The Eastern District of Texas, Judge Thad Heartfield, granted the school district's motion to dismiss,[10] and Judges Clement, Garza, and Owen affirmed.[8] H.S. was ordered to pay the school $45,000 in legal fees for filing a "frivolous" lawsuit.[9]

See also

References

Some of the material on this page is taken from the website of the U.S. Department of Justice, Office of Legal Policy. As a product of the United States government, this material is in the public domain. Other material on this page is from a speech by Texas Senator Kay Bailey Hutchison.[1]

Footnotes

  1. ^ ^Jump up to:^a^ ^b^ See Speech by Texas Senator Kay Bailey Hutchison via Archive.org (2005-05-18).
  2. Jump up ABA ratings during 109th Congress.
  3. Jump up Greenburg, Jan Crawford. Supreme Conflict; The Inside Story of the Struggle for Control of the United States Supreme Court, pages 255 and 314 (2007).
  4. Jump up Bush, George. Remarks by the President at Bush-Cheney 2004 Reception (2003-07-18).
  5. Jump up Kennedy Statement (2005-05-18 via archive.org).
  6. Jump up Report from National Abortion Rights Action League.
  7. Jump up Novak, Robert. Chicago Sun-Times, (2005-09-18)
  8. ^ ^Jump up to:^a^ ^b^ Doe v. Silsbee Independent School District, Opinion of the Fifth Circuit Court of Appeals
  9. ^ ^Jump up to:^a^ ^b^ Cheerleader must compensate school that told her to clap 'rapist'
  10. Jump up Doe v. Silsbee Independent School District, Petition for Writ of Certiorari to the United States Supreme Court, appendix B

External links

Preceded by

William Garwood

Judge of the United States Court of Appeals for the Fifth Circuit

2005–present

Incumbent

...

Categories: 

Karl Rove's Legal Tricks | The Nation

When Texas Supreme Court Justice Priscilla Owen comes before the Senate Judiciary Committee for the hearing on her nomination to the Court of Appeals for the Fifth Circuit, she will face an unprecedented level of criticism from individuals and organizations familiar with her record of extreme right-wing judicial activism. The noisiest of these complaints is unlikely, however, to rival the loud critique offered by one of her fellow justices on the state court.

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In 2000, when the Texas high court rejected one of many attempts by Owen to prevent a young woman from obtaining an abortion without parental consent, one of the justices who formed the majority felt it was necessary to explicitly condemn Owen’s effort to thwart the clear intent of the law. To follow Owen’s lead, the justice declared, “would be an unconscionable act of judicial activism.”

The Texas justice who identified Owen as a radical jurist because of her willingness to rewrite laws in order to achieve results never intended by legislators, no longer serves on the state court. He has a new job–as President George W. Bush’s in-house lawyer. That means that as the Senate Judiciary Committee prepares for a high-stakes hearing on Owen’s nomination to a place on the second-highest rung of the federal judiciary, White House counsel Alberto Gonzales finds himself in the uncomfortable position of having to sing the praises of a woman he knows from personal experience to be a right-wing radical.

How did Gonzales, who as White House counsel heads the Bush Administration’s screening committee on judicial appointments, wind up on the cheerleading squad for an appeals court nominee whose extremism he scored barely two years ago? That’s easy. Gonzales is not in charge on this one. “Owen,” explains Craig McDonald, director of the nonpartisan group Texans for Public Justice, “is a Karl Rove special.”

Rove, the political Svengali who ran George W. Bush’s presidential campaign and parlayed that experience into a taxpayer-funded job as White House senior adviser, has orchestrated Owen’s rapid rise ever since he plucked her from a gig as an undistinguished hired gun for Transcontinental Gas Pipe Line and other energy firms to make her his pet judicial candidate. Back in 1994 the man whom Lone Star pols still refer to as “Bush’s brain” wanted to make the state’s top court politically friendly for the man he was about to make governor. Owen seemed suitably pliable, and with Rove guiding her campaign, the political unknown who in sixteen years as a corporate lawyer was the sole counsel on only four cases that were tried to a verdict was suddenly a Texas Supreme Court justice. Now Rove is determined to place his protégée on one of the most influential appeals court benches in the land. This confirmation crusade is not about Owen, who has never been anything more than a political pawn for the nation’s premier GOP operative. It’s not even about Rove’s desire to exact revenge for the Senate Judiciary Committee’s rejection of Mississippi Judge Charles Pickering’s nomination to serve on the Fifth Circuit. Rather, Rove is working to win the fight to confirm Owen in order to send a powerful signal to movement conservatives about this Administration’s determination to pack the courts with judicial activists who are willing to challenge antidiscrimination laws, upset basic protections for workers and consumers, and, above all, build a judicial infrastructure that will eventually overturn abortion rights. “Clearly,” says McDonald, “Rove picked her as a favor to the right wing because she is the darling of the right wing.”

Satisfying the far right–especially the fundamentalist right, for whom banning abortion remains priority number one–is Rove’s special mission. Speaking in March to what he thought was a closed-door meeting of the Family Research Council, now the most influential Christian conservative activist group in the land, Rove preached about how the Administration and Republicans in Congress are “creating a culture of life” with legislation such as the House-passed Born-Alive Infants Protection Act. But, Rove said, the fundamental fight is for control of the courts. “We need to find ways to win the war,” he told 300 of the nation’s most determined abortion foes. “This is a gigantic war with a whole series of battles that need to be fought.”

The next battle is likely to be carried out on behalf of Owen, who “exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named,” according to Kate Michelman, president of the National Abortion and Reproductive Rights Action League. Placing Owen on an appeals court that is already one of the most conservative in the land, Michelman argues, could have a devastating impact on the right to choose in Southern states, where that right is already under assault. Antiabortion activists effectively share Michelman’s views: In an action alert urging members to make calls on Owen’s behalf to Pennsylvania Republican Senator Arlen Specter, a supporter of abortion rights who sits on the Judiciary Committee, the Pennsylvania Pro-Life Federation said of her: “At least one of [Bush’s] appointments has already faced the abortion issue as a judge and ruled for the pro-life side.”

For the Bush team, which always worries about its right flank, the coming fight over Owen’s nomination offers an opportunity to energize right-wing troops for the US Supreme Court nomination wars–where the Administration will seek to upset the Court’s prochoice majority–which are as close as Chief Justice William Rehnquist’s next visit to his back doctor; for the 2002 Senate races that will determine the partisan balance in Washington; and for the 2004 re-election campaign, which is the continual obsession of the Bush team. Essential to all of Rove’s calculations is a plan to energize the religious right. Within Republican circles, Rove quietly expresses frustration with the fact that 4 million Americans who identify themselves as Christian fundamentalists, evangelicals or Pentecostals did not vote in 2000. “We may have failed to motivate them,” grumbles Rove. He has heard the message of conservative activists like Gary Bauer and Focus on the Family’s James Dobson, who say that the battle to shape federal courts willing to overturn the 1973 Roe v. Wade decision legalizing abortion is what their constituents care about.

Ever since Bush’s election, religious right activists have been busy developing their capacity to wage judicial confirmation fights, preparing for what Dobson refers to as the “critical moment” when a Supreme Court opening occurs. Asserting that the battles over nominations are bringing on a “watershed moment in American History,” the Christian Coalition is stepping up activism on judicial selection issues. The Free Congress Foundation is developing files on Senate Democrats with an eye toward using their own statements about GOP delays in filling judicial vacancies during the Clinton years against them. Concerned Women for America, a 500,000-member social policy powerhouse, recently made Tom Jipping–the right’s ablest analyst of confirmation fights–its “senior fellow in legal studies.” And Jipping’s spin is now regularly echoed, often down to the exact phrasing, on theWall Street Journal editorial page, in the pages of conservative publications such as National Review and Human Events, and on radio personality Rush Limbaugh’s nationally syndicated program.

Conscious of the religious right’s intense interest in the shape of the federal judiciary, Rove has for some time been willing to clear his calendar–easily one of the most packed in Washington–in order to attend meetings of the White House judicial selection task force. His presence is just one indication of the Bush Administration’s willingness to politicize the judicial selection process to a greater extent than any previous administration. Dispensing with long-established bipartisan approaches, the White House ended the practice of having the American Bar Association screen potential nominees, began withholding documents from the Senate Judiciary Committee and transformed the White House into a command center for plotting to turn nomination fights into political dynamite. At GOP fundraising events, President Bush now repeats the mantra, “We’ve got to get good, conservative judges appointed to the bench and approved by the United States Senate.”

To that end, Rove has begun holding regular nomination and confirmation strategy sessions with key senators, GOP operatives from around the country and conservative interest groups. Party activists and campaign contributors have been asked to join the White House in ramping up efforts to defeat Democratic senators who oppose Bush’s judicial nominees. After Rove and Vice President Dick Cheney went to Capitol Hill for a closed-door meeting with Senate Republicans, a key Judiciary Committee member, Jeff Sessions, said, “The White House, I’m convinced, is confident and bullish and determined to push this issue, as we are in the Senate.”

On Capitol Hill, Rove is working not just with senators but also with members of the House of Representatives. He helped coordinate a May press conference at which two dozen Republican senators–including supposed moderates such as Maine’s Susan Collins, who showed up wearing a “Remember Pickering” sticker–took turns accusing Democrats of politicizing the confirmation process. Rove has also forged an alliance with US Representative Thomas Davis of Virginia, the chair of the National Republican Congressional Committee, to get GOP members of the House to build home-state pressure on Judiciary Committee Democrats and to use the concerns about confirmation fights to gin up grassroots activism on behalf of Republican candidates. While polls show Americans in general rate judicial confirmation fights low on their list of concerns, GOP pollster Whit Ayres says, “It’s potentially a very significant campaign issue, particularly in generating intensity among Republican voters.” That may be even more true now that a June decision by the Ninth Circuit Court of Appeals to prohibit required recitation of the Pledge of Allegiance–because of the “one nation under God” line–is being spun by GOP pols as a new reason to “take back the courts.”

Rove’s most serious work is with the conservative faithful, who he believes can be a counterweight to the coalition of progressive groups that scored a surprising win in their push to prevent the confirmation of Pickering, an old-school Southern conservative. On the very day that the Judiciary Committee rejected Pickering for a place on the court of last resort for most federal cases coming out of Mississippi, Louisiana and Texas, Rove mourned Pickering’s defeat as a “judicial lynching” before a Family Research Council gathering and promised revenge. And what sweeter revenge could there be than placing Owen–who is even more conservative than Pickering and, at age 47, able to make much more of a lifetime appointment than the 65-year-old Mississippian–on the Fifth Circuit bench?

On one of the nation’s most conservative state courts, Owen is part of a militant minority that argues that the court has not veered far enough right. She has written or joined eighty-seven dissents from court decisions she deemed insufficiently activist in scope and character. Her judicial advocacy has taken many forms–from active support for curtailing access to public records, to backing moves to undermine the role and authority of civil juries, to her persistent efforts to ease restrictions on business. On a court with an exceptionally well documented pro-business bias–a poll conducted by the court itself found that 83 percent of the Texas public, 79 percent of Texas lawyers and 48 percent of Texas judges believe campaign contributions play a significant role in determining the court’s stance on issues of interest to donors–Owen has distinguished herself as a slavish defender of corporations. “Mention her name and people say, ‘Oh, Judge Enron,'” notes Nan Aron, who heads the Washington-based Alliance for Justice. “If you were looking for a judge whose record illustrates the hold that Enron established over state courts, she would be a leading contender.”

The recipient of $8,600 in campaign contributions from Enron’s political action committee and key executives, including a $1,000 check from Enron CEO Ken Lay, Owen wrote a 1996 Texas Supreme Court decision that allowed Enron to avoid paying $224,989 in school taxes. It may be unfair to suggest that Owen gave Enron special treatment, however, since she sided with her corporate donors in more than 80 percent of the cases in which she participated–a notably higher ratio than the court as a whole. Owen is a “business can do no wrong” judge–even if that means twisting the law in absurd directions. When the court majority, in a relatively rare affront to a land developer, overturned a state law written specifically to exempt a single developer–who happened to be an Owen political contributor–from Austin’s water quality standards, she objected so vociferously that the majority opinion concluded: “Most of Justice Owen’s dissent is nothing more than inflammatory rhetoric and thus merits no response.”

Perhaps the most troubling characteristic of Owen’s pro-business record is the determination with which she has led fights to erect barriers that prevent injured consumers from recovering damages from corporations, that restrict the ability of civil juries to side with plaintiffs who sue corporations and that undermine antidiscrimination protections–particularly for women. Owen dissented from a ruling that upheld a jury verdict awarding a woman $160,000 in damages from a vacuum-cleaner sales company after she was raped by one of the firm’s door-to-door salesmen; Owen argued that it was unreasonable to have expected the corporation to do the background check that would have revealed the man’s previous arrest for indecency with a child.

After Owen was nominated for the Fifth Circuit bench, groups including the Texas AFL-CIO, the Texas Civil Rights Project, the Women’s Health and Family Planning Association of Texas and the National Council of Jewish Women sent a letter to President Bush that stated in part: “Justice Owen’s activism betrays a judicial philosophy at odds with your own stated goal of nominating judges who will interpret rather than write the law.” In a letter to Senate Judiciary Committee chair Patrick Leahy, a prominent Houston attorney who is board certified in civil appellate law wrote: “Justice Owen is the type of judge who can ignore facts–when it helps corporations to do so–yet rail against the failure of her fellow Texas Supreme Court justices to pay more attention to the facts when she wants the court to stop a minor from getting an abortion.”

Again and again, the conversation about Owen circles back to abortion. It is on this issue, above all others, that she has distanced herself even from fellow conservatives. In every decision she has written on this issue, she has argued against a woman’s right to choose. In a dozen “Jane Doe” cases in which the court was asked to allow a pregnant teenager to bypass the state’s parental notification requirements and receive an abortion, Owen voted every time to deny the bypass. When lawyers for a college-bound teenager who was in her fifteenth week of pregnancy–and who had already endured more than a month of legal delays–asked that the high court expedite action on the high school senior’s request for permission to bypass the parental notification requirement, the court majority quickly granted the bypass. Owen wrote a dissent that asked: “Why then the rush to judgment?”

“We’re going to hear people complaining that Justice Owen is being attacked unfairly by individuals and groups that raise questions about her approach to abortion issues,” says Sarah Wheat of the Texas Abortion and Reproductive Rights Action League. “But Justice Owen is the one who has made abortion an issue.” Noting the nominee’s activist record, Wheat adds, “Senators have a responsibility to determine whether federal court nominees can be trusted to uphold the law.”

When the Judiciary Committee holds its hearing on Owen, perhaps as early as this month, some Democratic senators are certain to raise concerns. But committee members are already feeling intense pressure from Bush supporters. The Vermont Republican Party is attacking Leahy for creating a “judicial crisis” with his failure to advance the Owen nomination, while the Traditional Values Coalition is attacking him nationally as “an out-of-control chairman leading an out-of-control committee in a time of war.” Some Judiciary Committee members, such as New York Democrat Chuck Schumer–who has complained about the Administration’s attempt to “stack the nation’s bench with right-wing ideologues”–have sent clear signals that they are willing to reject nominees who are not “mainstream” jurists. But there are no guarantees that the committee’s Democratic majority will follow Schumer’s standard. Some prochoice Democrats, such as Wisconsin Democrat Russ Feingold and North Carolina’s John Edwards, have expressed reservations about rejecting nominees on ideological grounds.

Veteran observers of nomination fights say that the Judiciary Committee vote on Owen’s nomination could set the parameters not just for future appeals court nominations and confirmations but for the Supreme Court nomination clashes. With the rejection of Pickering, Democrats on the committee signaled that they were willing to block the nomination of a judge with a troubling record of racial insensitivity. Now the question is whether the committee will take into account other forms of extremism–on issues such as workplace discrimination, corporate responsibility and, above all, the right to choose.

Texan Craig McDonald sees it as a worthy battle. “You hear talk about whether this judicial nomination or that judicial nomination deserves to be more controversial,” he says. “I would just say that as far as those of us who have watched Priscilla Owen and Karl Rove and George W. Bush for a lot of years are concerned, this is the one that deserves to be controversial.” McDonald adds that “the Owen nomination is not a Texas fight or a Fifth Circuit fight. This is really a struggle to determine whether a political operative, Karl Rove, and his crew are going to determine the makeup of our federal courts.”