Tony Perkins, president of the conservative Christian think tank Family Research Council, baselessly accused Democratic senators of opposing President Bush's judicial nominees because of their deeply held Christian beliefs in opposition to abortion rights.
“What is alarming about these 10 nominees that Mrs. Clinton and others say are bad or extreme is that they're people of deep religious conviction. And what this happens to be is a filibuster of people of faith,” Perkins stated on his April 18 radio broadcast, referring to Sen. Hillary Rodham Clinton (D-NY) and other Senate Democrats who have filibustered a handful of Bush's judicial nominees. Retired judge Charles W. Pickering Sr., who President Bush recess-appointed to the 5th U.S. Circuit Court of Appeals after Democrats filibustered his nomination, joined Perkins, claiming falsely that Senate Democrats filibustered his nomination solely because of Pickering's anti-abortion position:
PICKERING: The reason that I didn't get an up-and-down vote is because the groups that opposed me were concerned about the abortion issue. ... The issue that drove the engine of opposition was abortion.
PERKINS: It's almost as if there's a radical minority in the U.S. Senate that's saying this: “You have to choose between your faith and public service.”
PICKERING: Tony, that's exactly right. ... It was very evident with the Catholic nominees that anybody who had strong religious convictions on the issue of abortion, they [Democratic senators] were going to filibuster.
In fact, the Senate has confirmed 205 of Bush's judicial nominees -- most with substantial Democratic support -- and few, if any, of these confirmed judges have voiced support for abortion rights. Indeed, many are overtly anti-abortion (e.g., Michael W. McConnell, confirmed to the 10th U.S. Circuit Court of Appeals in Denver, John G. Roberts, confirmed to the District of Columbia Circuit, and James Leon Holmes, confirmed to the Eastern District of Arkansas.) What distinguishes the nominees whom Democrats have filibustered is what Democrats say is their unwillingness or inability to put aside their ideological views and follow the law. In the case of the three nominees listed below, opponents have cited specific actions and statements related to abortion that run counter to precedent and statutory law:
While serving on the Texas Supreme Court, Owen dissented strongly from the court's 2000 ruling on Jane Doe 1(II), 19 S.W.3d 346, which determined that “Jane Doe” had met the legal requirements for a judicial bypass under the state's parental notification law governing abortion for minors. Owen said the court had acted “irresponsibly.” Her dissent earned a harsh rebuke from fellow Republican justice Alberto Gonzales, who is now U.S. attorney general. Gonzales accused Owen essentially of rewriting the law by ignoring the language of the statute and legislative history, and wrote that adopting Owen's position on the case “would be an unconscionable act of judicial activism.” Bush nominated Owen to the 5th U.S. Circuit Court of Appeals in July 2002 and re-nominated her in February 2005.
Opponents of Owen's nomination have cited numerous other reasons for their opposition.
Janice Rogers Brown
Brown was the sole dissenter in the 1997 California Supreme Court case of Academy of American Pediatrics v. Lungren, in which the court ruled that a parental consent law restricting minors from receiving abortions explicitly violated the state constitution's right to privacy. In her dissent in the case, Brown claimed that the California constitution's explicit right of privacy was no broader than the right of privacy under the U.S. Constitution, despite clear state supreme court precedent to the contrary.
The State Bar of California staunchly opposed Brown's nomination to the California Supreme Court. The bar stated in 1996 that her “judicial opinions were insensitive to established precedents and improperly reflected [her] philosophical and personal views.” When Bush nominated Brown to the U.S. Court of Appeals for the D.C. Circuit in July 2003, the Congressional Black Caucus stated: “Justice Brown's record proves that she is unable or unwilling to divorce her personal views from her responsibility to fairly interpret the law or the Constitution.” Progressive advocacy group People for the American Way (PFAW) outlined the numerous substantive reasons for Democratic opposition to Brown's nomination in a 2003 report.
William H. Pryor
Bush granted Pryor a recess appointment to the 11th Circuit over Senate Democrats' objections last year. Democrats have cited a number of statements by Pryor, a former Alabama attorney general, as evidence that Pryor would be unwilling to uphold the constitutional right to an abortion. For example, he referred to the Supreme Court's ruling in Roe v. Wade as “the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.” He has criticized the Supreme Court's ruling in Planned Parenthood v. Casey “for preserv[ing] the worst abomination of constitutional law in our history: Roe v. Wade.” In a response to a 2002 NARAL Pro Choice America survey of attorneys general, he reiterated, “Abortion is murder, and Roe v. Wade is an abominable decision.” At Pryor's June 2003 Judiciary Committee hearing, several senators, including Republican Sen. Arlen Specter, who is now chairman of the committee, expressed concern that Pryor would be unable to separate these strongly held views from what the law requires:
SPECTER: With that personal belief, Attorney General Pryor, what assurances can you give to the many who are raising the question as to whether, when you characterized it as an abomination and slaughter, that you can follow the decision of the United States Supreme Court, which you consider an abomination and having led to slaughter?
Apart from positions Pryor has taken on abortion issues, Democrats have cited numerous other substantive objections to Pryor's nomination.
Further, though Pickering claimed that Democrats blocked his nomination because of his views on abortion, Democrats actually cited the extraordinary lengths to which he went to force federal prosecutors to drop a charge against a convicted cross-burner in order to circumvent a mandatory five-year sentence. In 2002, a group of law professors wrote Sen. Patrick Leahy (D-VT), who was then chairman of the Judiciary Committee, to assert that Pickering's letter to the Justice Department in the cross-burning case represented a breach of judicial ethics. Democrats raised this issue repeatedly during his 2003 nomination hearing. Pickering announced his retirement in December 2004.
Apart from this case, Senate Democrats also cited other factors in their opposition to his nomination: Pickering's district court decisions were frequently reversed by the 5th Circuit for violating “well-settled principles of law” ; his stated predisposition against claims of employment discrimination; and a false statement he made to the Senate Judiciary Committee regarding his contact with the segregationist Mississippi Sovereignty Commission.