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After three nominations, four years of waiting and a U.S. Senate showdown that nearly required a change of a 200-year rule to assist her, the Senate finally confirmed Priscilla Owen for a seat on the 5th U.S. Circuit Court of Appeals last week. The U.S. Senate ended debate and confirmed Owen’s nomination by a 56-43 vote on May 25. Owen becomes the record-holder for the longest wait for any judge to be confirmed to the 5th Circuit in modern history, according to two appellate court experts. Owen says she’s pleased that the confirmation process has concluded. “I am honored and humbled to be joining the federal judiciary, which is filled with men and women dedicated to the ideals of justice and equality, to the rule of law and to providing efficient resolution of disputes,” she says in a statement. Owen was a lightning rod for criticism after liberal activist groups loudly disapproved of her nomination; they cited her record of consistently favoring business and advocating in an opinion that Texas make it more difficult for minors seeking abortions to win judicial bypasses under Texas’ parental notification law. Democratic senators had consistently filibustered her nomination. But her supporters say Owen is a brilliant justice whom critics attacked unfairly and who refrains from making law from the bench. Her final confirmation vote as a justice brought praise from some Texas appellate lawyers such as Roger Townsend, a partner in the Houston office of Alexander Dubose Jones & Townsend. “I think she’ll fit in perfectly” at the 5th Circuit, Townsend says. “She’s always been a solid judge. She’s always been a conservative judge by admission and record. But I think the portrayal of her nationally was unfair.” Another appellate attorney who represents plaintiffs is also glad to see Owen reach the 5th Circuit for different reasons. “I guess what it comes down to is that her opportunity to invoke a sort of a pro-corporate agenda is probably diminished as a result of her promotion,” says John Gsanger, a partner in Corpus Christi’s Edwards Law Firm. Because the 5th Circuit’s caseload is mostly criminal, Owen’s chances to write the sort of opinions that frustrated her opponents while on Texas’ highest civil court will be reduced, he says. Owen’s biggest supporter in the U.S. Senate says the hue and cry over her nomination was much ado about nothing. “The sky did not fall when the clerk called the roll; the earth did not stop rotating on its axis when we stood up and voted,” says U.S. Sen. John Cornyn, R-Texas, who served with Owen as a justice on the Texas Supreme Court. “A supremely qualified nominee received the up-or-down vote she deserved, and a bipartisan majority voted to confirm her nomination,” Cornyn says. It’s “something we could have done four years ago, and something I hope we can now move forward and do the same for the other judicial nominees who, like Owen, were unjustly filibustered by a partisan minority.” People For the American Way President Ralph G. Neas, who leads one of the groups that strongly opposed Owen’s nomination, was disappointed by the confirmation vote. “Her record demonstrates she is willing to rewrite the law from the bench to the benefit of the powerful and [to] the detriment of the powerless,” Neas says. To get Owen through, 14 moderate senators crafted a two-page bipartisan deal that allowed the Senate to avoid a historic vote on eliminating the judicial filibuster. The chamber voted decisively to cut off debate and hold an up-or-down vote on her nomination. “This has been a bad patch for the Senate,” says former Senate Majority Leader Trent Lott, R-Miss., minutes after the Senate voted 81-18 to end debate on Owen’s nomination. “We’ve looked bad and acted bad. Now we need to go on with the business the people want us to work on.” For several weeks, the Senate anticipated the use of what came to be known as the nuclear option, a parliamentary maneuver engineered by Senate Majority Leader Bill Frist, R-Tenn., that would have forced an end to the judicial filibuster and allowed Republicans to confirm judicial nominees with a simple majority vote. Democrats had successfully used the filibuster against 10 federal appeals court nominees, including Owen, in the last congressional session, because Republicans were never able to muster the 60 votes required to cut off debate. Democratic Leader Harry Reid of Nevada had sworn to bring much of the Senate’s business to a halt if Frist invoked the rule change, which he could do with just 50 votes — a tie that would presumably be broken by Vice President Dick Cheney in his role as Senate president. But on May 23, a group of seven Republicans, led by Arizona Sen. John McCain, and seven Democrats, headed by Arkansas freshman Sen. Mark Pryor and Nebraska Sen. Ben Nelson, announced they had reached an agreement that would preclude filibusters of judicial or Supreme Court nominees except in “extraordinary circumstances.” In addition, the agreement mandated that Democrats would not filibuster Owen, whom President George W. Bush first nominated in May 2001, or two other controversial judges: California Supreme Court Justice Janice Rogers Brown, nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, and former Alabama Attorney General William Pryor Jr., nominated for a seat on the 11th Circuit. The number of Democrats and Republicans who signed the agreement is significant: At least five Democrats, voting along with all 55 GOP Senators, were needed to ensure that debate on any of the controversial nominees could be cut off; conversely, if at least six Republicans agreed not to vote for the nuclear option, then Frist would not have had the 50 votes he needed to implement the rule change. The 14 breakaway senators made no commitment one way or the other about whether two other nominees could be filibustered: former Interior Department Solicitor General William Myers, nominated for a seat on the 9th Circuit, and Henry Saad, nominated for a seat on the 6th Circuit. “It’s not a contract,” Nelson said after the senators took a vote to cut off floor debate on Owen. “It’s a mutual agreement. And I’m going to vote for cloture every time I can.” Nelson echoed comments made by others in the group of 14, that the agreement could provide at least some impetus for the Senate to work on a more bipartisan basis. “This spirit of compromise and mutual trust is really something that might carry over into other areas,” Nelson said, adding quickly that the group was an ad hoc collection of senators, including the chamber’s dean, Robert Byrd, D-W.Va., who has been in the Senate some 45 years, that had no plans to continue meeting regularly. “We don’t see this as a new group,” Nelson said. “And I suspect the two leaders wouldn’t want that, either.” It remained unclear on May 24 when Frist would decide to go forward with a floor debate and an up-or-down vote on the nominations of Brown and Pryor. Also unclear was the future of two other controversial nominees whom the Senate had yet to vote out of the Senate Judiciary Committee this session: Brett Kavanaugh, a former associate White House counsel who helped pick some of President George W. Bush’s judicial nominees, and Terrence Boyle, a longtime federal district judge in North Carolina. Most senators met last week’s agreement with unabashed relief; many had believed their chamber would have slowed down to the point where senators would do little business. But it was still an open question which party would suffer more damage politically. “This was an anomaly, a huge issue about the integrity of the institution at stake,” McCain says. “The American people were very unhappy about the way we were doing business.” As members and staffers continued to debate the merits of the compromise and, more importantly, which side came out on top, Democrats were quick to point out that they still retain the right to filibuster, although the criteria of “extraordinary circumstances” — a term undefined in the agreement — limits that ability. But Republicans noted that they were now guaranteed an up-or-down vote on the three nominees the Democrats widely view as the most problematic. “And we’re going to get a conservative on the Supreme Court,” Lott said. “So get happy, Sen. Schumer and Barbara Boxer,” Lott said, referring to New York Democrat Charles Schumer and California Democrat Barbara Boxer, two of the Senate’s most liberal members. T.R. Goldman is congressional correspondent for Legal Times , an affiliate of Texas Lawyer and Law.com.

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