Karl Rove's Legal Tricks
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 the Wall 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."