Chief Justice Scalia?

As I've written about before, Repubilcans are threatening to scrap the Senate filibuster that Democrats have threatened to use against a couple of President Bush's judicial nominations. The poster girl in that battle is a judge named Priscilla Owen.

Interestingly, Owen is the first nominee in the history of the US Senate to be given a hearing, to be rejected by the Judiciary Committee, and then to be renominated to the federal bench by the president.

Ironically, What's more, the opening on the 5th Circuit for which Bush nominated Owen exists only because Republicans for years refused to hold up-or-down votes on three judges nominated separately by President Clinton. Yet now Republicans are demanding an up-or-down vote on Owen.

But what's more curious is her penchant for judicial activism. Odd considering the fact that demonizing so-called judicial activism is at the heart of the conservative strategy to take over the judiciary.

While on the Texas Supreme Court, Owen was repeatedly criticized for judicial activism by one of her colleagues. That colleague is now Attorney General of the United States Alberto Gonzales.

Then-Justice Gonzales accused her of trying to implement "an unconscionable act of judicial activism." The charge came during a heated abortion ruling in which Owen tried to make the burden for a minor even more onerous than the Texas Legislature intended.

Time and again while serving with Owen, Gonzales admonished her for straying too far from the clear intent of Texas statutes. Today, however, Gonzales praises Owen as "superbly qualified," while her supporters try valiantly -- and at times imaginatively -- to explain away the damning "judicial activism" description.

Furthermore, in the span of less than two years then-Justice Gonzales singled out Owen's dissents 11 times, accusing her of ignoring the legislative intent of laws and instead struggling to manufacture an outcome.

Owen didn't get high marks from her local bar association either. In a 2003 survey of Texas jurists, 47% labelled her performance 'poor' versus only 43% who labelled it 'outstanding.'

Some observers believe that the current filibuster isn't about Priscilla Owen or the tiny percentage of Bush judicial appointees blocked by Democrats; it's about who will replace US Supreme Court Chief Justice William Rehnquist, who is expected to retire this year. Bush is believed to be leaning toward Clarence Thomas or Antonin Scalia, the Court's two most hardline conservative justices.

Frankly, I'd be surprised if Democrats filibustered either nomination. Scalia's original appointment ot the Court passed 98-0 and Thomas' faced opposition not based on his shaky qualifications but on allegations of sexual harassment.

Bush replacing Rehnquist with another conservative justice probably won't provoke that much huffing and puffing from Democrats; even though Rehnquist is more a traditional 'small government' conservative than an activist ideologue like Scalia and Thomas.

I think Democrats will save their fury from if one of the six moderate or liberal justices creates a vacancy during the Bush presidency.


Update: Perhaps the White House's affinity for Justice Owen is more simple. Apparently, she was a protege of Karl Rove, the president's political maven.