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After years of relative quiet, the abortion issue is about to take center stage in the judicial confirmation drama. Until now, liberal activists have not emphasized abortion in their public assessment of President George W. Bush’s nominees, and Democratic senators have not made it a major focus of their questioning. But that is about to change with controversial appellate nominee Priscilla Owen, who as a Texas Supreme Court Justice in 2000 ruled against pregnant teens in several cases brought by girls hoping for judicial relief from a state law that requires them to notify their parents before having an abortion. Owen, eyed for a seat on the 5th U.S. Circuit Court of Appeals, comes up for a Senate Judiciary Committee hearing on Tuesday. Says Kate Michelman, president of the National Abortion and Reproductive Rights Action League (NARAL), an early opponent of Owen’s: “Priscilla Owen is among those nominees who are poised to engage in a rollback of women’s reproductive rights.” Supporters of Bush’s nominees, including C. Boyden Gray, a partner at Washington, D.C.’s Wilmer, Cutler & Pickering who served as White House counsel for the first President Bush, defend Owen and say the abortion issue is merely a rallying cry for liberal activists. “I always thought abortion was overblown as a federal constitutional issue,” says Gray, who prepared a detailed position paper describing Owen as “a restrained, principled jurist.” “I don’t think the presidential election turned on this, and neither should a judicial nomination,” Gray says. Indeed, until now, abortion has not played a central role in nominations battles for several years. Although NARAL was part of the coalition that earlier this year defeated 5th Circuit nominee Charles Pickering, for example, the Pickering controversy turned mostly on civil rights and ethical issues. But now, in addition to Owen, liberals are poised to challenge prospective appeals judges John Roberts Jr., Carolyn Kuhl, and Michael McConnell, on what many consider to be the nation’s most divisive social issue. “I believe that the Bush administration is committed to using judicial nominations to achieve its social goals, which include limiting the reproductive rights of women,” says Michelman of NARAL. “The administration is trying to create a legal structure that implements its vision of a society that does not include the right to choose.” None of these three nominees has had a hearing yet. Roberts, a nominee for the D.C. Circuit, and Kuhl, tapped for the 9th Circuit, have drawn fire from the Alliance for Justice and others because as lawyers in the Justice Department, they helped write briefs arguing for the overruling of Roe v. Wade. The Alliance for Justice’s Web site says McConnell, a 10th Circuit nominee, once signed a petition calling for a constitutional amendment banning abortion. LOOKING BACK Although abortion came up at the U.S. Supreme Court confirmation hearings of Robert Bork and David Souter in the Reagan and first Bush administrations, the issue was relatively dormant in the Clinton years. According to Eleanor Acheson, who spearheaded nominations for Clinton as a Justice Department official, the Clinton administration made it clear that it would pick only judges who supported Roe v. Wade, and conservatives were unable to mount effective opposition. At her 1993 confirmation hearing, for example, Ruth Bader Ginsburg explicitly endorsed abortion rights. Americans United for Life and other anti-abortion groups testified against her Supreme Court nomination, but she drew only three negative votes on the Senate floor. Now, as both sides prepare furiously for a showdown in the Judiciary Committee on the Owen nomination, conservatives are downplaying the importance of the abortion issue. Supporters of the Bush administration say that rather than use reproductive rights as a litmus test, the president picks judges who champion his preference for judicial restraint rather than judicial activism. “Americans need to be concerned about judicial activism, regardless of what side it comes from,” says Kay Daly, a Republican activist who runs the Coalition for a Fair Judiciary, which supports Owen. “If the left says this is about abortion, they need to go back and read [Owen's] cases and the facts,” says Daly. “This is not about abortion. For the liberals, this is about politics, pure and simple.” If people in high places had really carried out a plan to pack the federal courts with abortion opponents, Daly adds, there would be clear results by now. “Where are all the reversals? Don’t you think Roe would have been overruled by now? It just hasn’t happened,” she says. A NOMINEE’S OPINIONS D.C. lawyer Victoria Toensing of diGenova & Toensing is a board member of Women in the Senate and House, which raises money for pro-choice Republican women candidates. She supports the Owen nomination — and says Owen’s liberal, pro-choice opponents are off base. Toensing terms Owen “a moderate judge.” According to a count by former White House Counsel Gray, in 12 parental-notification cases in 2000, Owen voted against abortion without parental notification nine times, but voted to allow a teen to seek an abortion three times. In the Texas parental-notification cases, Toensing says, Owen “is being attacked for her interpretation of a statute passed by the state legislature. It was not a constitutional case at all. I can’t fault a judge who interprets the law.” Toensing says she does not know whether Owen supports the right to abortion and considers it “inappropriate to ask her.” But Elliot Mincberg, legal director of People for the American Way, which opposes Owen, argues that a candidate’s position on reproductive rights is critical. “Now that it’s apparent that there are ways of cutting back on abortions without overruling Roe v. Wade, such as banning so-called partial-birth abortions and imposing waiting periods, abortion can be relevant to lower-court nominations,” Mincberg says. Owen did not return a call for comment. Dawn Johnsen, a law professor at Indiana University who is a former legal director of NARAL and former deputy assistant attorney general for legal counsel, says that on issues of federalism and states’ rights, lower-court judges wrote opinions that paved the way for later Supreme Court rulings. “In the abortion context, it could be the same thing,” says Johnsen. Owen’s fate in the closely divided Senate Judiciary Committee is seen as too close to call. Several Democrats on the committee, such as Dianne Feinstein, D-Calif., and Charles Schumer, D-N.Y., are strong pro-choice advocates. Sen. Arlen Specter, R-Pa., is also pro-choice. Democrats have asked a few related questions to previous nominees, including a question Sen. Herbert Kohl, D-Wis., put to 4th Circuit nominee Dennis Shedd regarding Griswold v. Connecticut, a Supreme Court case that paved the way for Roe. Shedd said it was beyond doubt that the Constitution contains a right to privacy but declined to discuss his views on abortion, saying the issue might come before him as a judge. Last week, Owen met with President Bush in the White House in an unusually dramatic show of support. Sen. Kay Bailey Hutchinson, R-Texas, shepherded her home state nominee around Capitol Hill. She told The Dallas Morning News that the president is “totally committed to this fine nominee” and “very frustrated with the lack of response to his nominees by the Senate.”

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