Karl Rove's Legal Tricks

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.

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."

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