Abe Fortas' vs Priscilla Owen's Filibusters

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Robert J. Berger" <rberger () ibd com>
Date: May 20, 2005 5:05:05 PM EDT
To: Dewayne Hendricks <dewayne () warpspeed com>
Cc: Dave Farber <dave () farber net>
Subject: Abe Fortas' vs Priscilla Owen's Filibusters


Fortas who?

If the GOP applied the same ethical tests to Priscilla Owen that its
predecessors used to disqualify a liberal judge in 1968, she'd have to
withdraw her nomination.

- - - - - - - - - - - -
By Joe Conason
http://www.salon.com/opinion/conason/2005/05/20/owen_and_ethics/

May 20, 2005 | When Senate Republicans led the 1968 filibuster that
blocked the nomination of Abe Fortas as chief justice of the Supreme
Court, his opponents focused on an alleged ethical lapse that they
said disqualified him.

The real reasons for obstructing Fortas ranged from his liberal
ideology and his Democratic partisanship to his Jewish heritage, but
his troubles intensified after Sen. Robert Griffin, the Michigan
Republican leading the campaign against him, discovered that Fortas
had accepted $15,000 to deliver a series of summer school lectures at
the American University law school -- and that his lecture fee had
been subsidized by his former partners and clients.

This lapse in ethical judgment outraged Griffin and his colleagues,
although they could point to no decision or pending case before the
Supreme Court that involved any of the donors. That issue probably
killed the Fortas nomination.

Ethical standards seem to have declined considerably over the past
four decades -- at least among Republican senators and their preferred
nominees for the federal bench. What compromised the late Fortas to an
unacceptable degree now looks quaintly innocent compared with the
record of Priscilla Owen, who has taken hundreds of thousands of
dollars from companies and lawyers with cases in her court -- and
issued rulings favorable to them on many, many occasions.

Owen is the conservative judicial activist from Texas whose nomination
to a lifetime appointment on the federal appellate court may soon
spark the long-awaited "nuclear" confrontation in the Senate over the
filibuster. If the Republicans applied the same ethical test to her
that their predecessors used to disqualify Fortas, she would have been
forced to withdraw her nomination, just as he did.

Then she could go home and continue her career of catering to the
corporations, trade associations and law firms that have financed her
campaigns for the Texas Supreme Court (which were run, incidentally,
by Karl Rove).

While much of the debate over the Owen nomination has focused on her
opinion in a controversial abortion rights case -- in which her
activist interpretation earned a scathing denunciation from none other
than Alberto Gonzales, then her colleague on the Texas high court --
it is not her extremist ideology alone that should give senators
pause. Equally disturbing is her involvement in the Lone Star State's
"pay for play" judicial system, which is something she has in common
with Gonzales.

Only a few states require nominees to their highest court to run for
election -- and thus to raise enormous sums of money to pay for the
cost of statewide campaigns. In Texas, where campaign fundraising
taints so much of the political system, the state Supreme Court has
suffered national ignominy for many years because of the confluence of
corporate contributions and judicial decisions.

Naturally, George W. Bush chose to elevate the two members of that
court who took the largest sums of campaign money from Texas business
interests while he was governor -- Gonzales, who set the record, and
Owen, who came in second.

Owen's defenders argue that she should not suffer from her
participation in a system that stigmatizes every judge with the
appearance of corruption. The Texas Supreme Court has swung far to the
right ever since the state's business interests and corporate law
firms joined forces in financing campaigns by conservative nominees
about 15 years ago (and hired Rove to help them win).

And Owen appears quite comfortable with the Texas system. Certainly
she has never spoken out against its sleaziness, which during her
years on the court has convinced most Texans that corporate
contributions influence judicial decisions.

That widespread suspicion isn't theoretical. Among the most notorious
examples is a case in which Owen wrote the majority opinion that
allowed Enron Corp. to escape more than $200,000 in school district
taxes. In her 1994 campaign, she took $8,600 from the Houston energy
firm and $31,550 from its lawyers at the powerhouse firm of Vinson &
Elkins; her consultant Rove also worked for Enron. Two years later,
when Spring Independent School District vs. Enron reached her court,
she did not recuse herself from the case. Her opinion allowed Enron to
choose its own method for valuation, cutting the taxable property
assessment by millions of dollars.

So obnoxious was her conduct in the Enron case that it provoked the
Houston Chronicle -- a newspaper that has enthusiastically endorsed
Bush -- to urge the Senate to reject her nomination three years
ago. While acknowledging that Democratic objections to Owen were
hardly apolitical, the newspaper's editorial said the Democrats were
also displaying "a rational desire to prevent the lifetime appointment
of a justice who has shown a clear preference for ruling to achieve a
particular result rather than impartially interpreting the law."

Owen's devotion to her business ideology and apparent sympathy toward
her campaign contributions has often left her in the extremist
minority, even on the right-tilting Texas bench. One of her
better-known dissents came in a case that tested the constitutionality
of a state law that had been written specifically to exempt a land
developer from the city of Austin's water quality regulations.

Having taken $2,500 from that developer (and an additional $45,000
from the developer's law firm), Owen blasted her colleagues for
violating the firm's "property rights," which included the right to
foul the water supply in her view. The majority replied that her
dissent was "nothing more than inflammatory rhetoric and thus merits
no response."

Indeed, Owen has issued rulings favoring her big-business contributors
in the overwhelming majority of cases in which they appeared before
her.

Given the culture of corruption on Capitol Hill, where pay for play
has become a way of life, it may be too much to expect that the
Republican leadership would worry about Owen's ethics. And expecting
them to remember the ethical considerations that defeated Fortas is
equally unrealistic. After all, they suddenly seem unable to remember
that the Fortas filibuster ever happened.

- - - - - - - - - - - -

About the writer
Joe Conason writes a weekly column for Salon and the New York
Observer. His book "Big Lies: The Right-Wing Propaganda Machine and
How It Distorts the Truth" is available
here. http://jump.salon.com/xlink?1940

---
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com



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