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The US Judicial System: Judge Priscilla Owen



The most attractive feature of the US political system are congressional hearings. However, the meeting of the Senate Judiciary Committee to confirm Priscilla Owen to be a judge of the Fifth Circuit Court showed the weakness of the system. She is a member of the Texas Supreme Court, and the American Bar Association (ABA) gave her its highest rating. The politicization of the US judicial system was evident when the government stopped taking into account the opinion of the ABA in hearings on nominations to the US Supreme Court. Now it has taken that disregard one step further. It is as though a university administration made a professorial appointment disregarding the judgment of the committee appointed to review the candidate's publications.

It was a bitter partisan fight. The chairman, Senator Patrick Leahy (D, Vermont) was blatantly unfair. The Republicans repeatedly asked that the vote be put to the whole Senate, but he refused to endorse that solution. Orrin Hatch, the ranking Republican member, made an excellent statement defending Judge Owen, but Leahy paid no attention. He just patted Hatch on the back, as though they were old buddies. Judge Owen made an excellent impression on me, but she was not in evidence when the final vote was taken. Many of the votes were cast by proxy, meaning that the Senator himself was not present, possibly wishing to avoid the acid debate. At one point there was not a quorum. The Republicans spoke well, but a crude tone was introduced by Charles Schumer (D., New York), who said the committee would not be bamboozled.

One of the main points discussed was abortion. The Catholic Church and many non-Catholics view abortion, except in certain cases, as murder. Judge Owen's record on this is was distorted by the Democrats to make it appear that she was some reactionary monster. She is the essential Texan, being a graduate of Baylor Law School. The Democrats accused the Texas Supreme Court of being reactionary, and there was an undercurrent of hostility toward Texas as the base of the Bush administration.

Two conclusions must be drawn. The American judicial system is very politicized. Jon Kyl (R. Arizona) said it has always been so. Indeed, no judicial system in developed countries is so politicized. The second conclusion is that this episode will damage the image of the US abroad. Jeff Sessions (R, Akabama) made this point, quoting a book on law in underdeveloped countries, but his accent was so thick that I could not catch the name of the author or the title.

The Republicans again criticized the New York Times for opposing the nomination. In areas where I am competent to judge, that paper is well-informed and fair. In this case. I cannot say. In any case, whoever is right, it was a sad day for the US Senate. It reminded me of the hearings about Robert Bork, whom President Reagan nominated for the Supreme Court. There are numerous Texan WAISers. We would be interested in their opinion. The appointment was to the Fifth Circuit Court. Here is a peculiarity of the American system. The federal government cannot interfere in appointments to state courts, but it can in those to circuit courts, which embrace more than one state. Good WAISer Hank Greely, who graduated from Yale Law School in 1977, then served as a clerk to Judge John Minor Wisdom of the Fifth Circuit Court before going on to serve as a clerk for Judge Potter Stewart of the US Supreme Court. Hank would seem to be especially qualified to express an opinion on this case. He came to Stanford in 1985. I suspect he may will disagree with me.

Ronald Hilton - 9/6/02


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