Nel's New Day

November 1, 2013

Confirmations Have Consequences

Last Monday I cheered when the state Supreme Court overturned just part of the draconian Texas law keeping women without money from abortions. The good feeling was short-lived: yesterday a higher court reinstated the law that forces 12 of the state’s clinics that perform abortions to close their doors, to no longer help women with any health issues. Because of a three-judge panel of the 5th Circuit Court of Appeals, Texas’ abortion restrictions have now gone into effect, and all appointments have been canceled.

The U.S. Supreme Court ruled that states cannot impose “undue burdens” on women who intend to terminate pregnancies. But the three-judge panel of the court considered the requirement of traveling several hundred miles each way to a health clinic is not really an “undue burden.” They agreed that the new Texas law would increase the cost of an abortion because of fewer providers in the state, but “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough” to strike it down.

Who are the three judges who made the decision against the women of Texas? The author of the ruling is Priscilla Owens, confirmed by the GOP Senate in 2005 to a seat that the GOP had refused to fill while Bill Clinton was president. She is so radical that then-Attorney General Alberto Gonzales—no liberal—accused her as being guilty of “an unconscionable act of judicial activism” in a reproductive-rights case during their tenure together on the Texas Supreme Court.

The editorial board of the Houston Chronicle described Owen as “less interested in impartially interpreting the law than in pushing an agenda.” Owen’s hometown Austin American-Statesman described her as “so conservative that she places herself out of the broad mainstream of jurisprudence,” adding that she “seems all too willing to bend the law to fit her views, rather than the reverse.”

Twenty years ago, Enron’s political action committee gave Owen $8,600 for her successful Supreme Court bid. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron’s school taxes by $15 million. Between 1993 and 2001, Enron contributed $134,058—more than any other corporation—to Owen and other members of the Texas Supreme Court. In 2001, Enron filed bankruptcy and became an example of willful corporate fraud and corruption. A study by Texans for Public Justice found that the court ruled in Enron’s favor in five out of six cases involving the company since 1993.

Owens has also been a strong supporter of Halliburton, declining to hear a case overturning a $2.6 million jury verdict for a field worker who had been framed to test positive for cocaine. Halliburton provided thousands of dollars to Owens’ campaign.

In 2003, the Austin-American Statesman declared that Owen could “usually be counted upon in any important case that pitted an individual or group of individuals against business interests to side with business.” Furthermore, she had a questionably ethical tendency to take “campaign contributions from law firms and corporations … and then, without recusing herself, [rule] in their favor when their cases came before her.”

Owen’s rulings are considered so business-friendly and tainted that a member of the National Employment Lawyers Association once quipped:

“In my more cynical moments, I suggest that, just as sports stadiums are now named after corporations, judicial seats are soon to follow. In that vein, I believe that Justice Owen could well fill the Exxon/Mobil or Wal-Mart seat on the Fifth Circuit.”

She has no trail of articles or speeches, but her pro-business approach can be traced through her rulings.

The day after the decision to deny Texas women their constitutional rights, Justice Janice Rogers Brown ruled that employers can ignore the federal birth control rules on the flimsiest of religious excuses. She started her written opinion by labeling the Affordable Care Act a “behemoth.” Nine years ago, she was the only judge on the California Supreme Court to rule as she did in her most recent decision, a position that led George W. Bush to appoint her to the U.S. Court of Appeals for the District of Columbia Circuit.

The federal court panel made its decision by a 2-1 vote. The dissenting judge, Harry Edwards, wrote:

“There are three reasons why the Mandate [to provide free contraception] does not substantially burden the Gilardis’ ‘exercise of religion.’ First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products.”

Brown has strong opinions: FDR’s New Deal is a “socialist revolution,” and through Social Security, “senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.” Her opinions from the bench suggest that all labor, business or Wall Street regulation is constitutionally suspect, an adversarial position on a court that makes decisions on most federal administration and regulation cases such as those involving regulations set by agencies like the Social Security Administration, Federal Elections Commission, Equal Employment Opportunity Commission, Federal Communications Commission, and those dealing with federal environmental and labor laws.

Also confirmed in 2005 to her current position on a federal court, Brown was earlier the first California Supreme Court Justice to receive an unqualified rating from the state bar and still be nominated by a governor, in this case GOP Pete Wilson, and put on the state court.

In 2000, she upheld an initiative that banned affirmative action for women and minorities in public contracts, hiring, and college admissions. Although she ruled that the First Amendment should protect racial slurs and discriminatory speech in the workplace, she thought that it should not protect the right to freely assemble. To Brown, ageism is not a form of discrimination, and that it’s too easy to prosecute against discrimination based on disability.

At the same time as these anti-women decisions from two different federal courts of appeal, GOP senators are filibustering the first of President Obama’s nominees to the DC Court of Appeals. Because the court is short three of eleven justices, the GOP appointees dominate the court. (The elevation of John Roberts to the U.S. Supreme Court has left a vacancy for eight years.) Senate Minority Whip John Cornyn (R-TX) wrote that the GOP senators should prevent all of Obama’s nominees from being confirmed to this court to keep Democrats from gaining a majority. At this time, three of the judges were appointed by Bush 43 and one by Bush 41.

When Senate Democrats threatened to filibuster Brown’s nomination, they caved because the GOP senators were going to invoke the “nuclear option” to eliminate filibusters of judicial nominees. The same thing happened to get Owens confirmed. GOP threats resulted in two of the conservative and activist judges in the country gaining seats on a federal circuit court of appeals.

The most frightening part of these two anti-women decisions is that they come from the highest courts in the land except for the highly conservative U.S. Supreme Court. Appeals will go to the full court but may move on to the U.S. Supreme Court. These appeals could lead to a reversal in which women lack the rights to contraception and abortions as they did a half-century ago. Even worse, some people consider Janice Rogers Brown as a candidate for the U.S. Supreme Court.

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