Oh, those manly Indy car drivers.

Prior to the Indy 500 on Sunday, driver Robby Gordon started a whine-fest. Gordon and several others are complaining that female driver Danica Patrick (who finished fourth and became the first woman to ever lead the Indy 500) has an unfair advantage because she does not weigh as much as the men, and they want the rules changed.

What are they going to do if male jockeys--who are hardcore athletes, by the way--decide to start racing cars? You don't hear Patrick complaining that because of her size she is not as strong as the other drivers. Also, I don't remember anyone making this complaint about Janet Guthrie, Lyn St. James, or Sarah Fisher. Then again, none of them finished fourth.

Listen up, boys. Quit your crying and try to find your gonads. Seriously.

Example #2 of the Bush Agenda: Condoleezza Rice

Now she is Secretary of State, but Condi was the National Security Adviser in Bush's first term. According to the Progressive Government Institute, the NSA "is involved in all national security decisions and helps coordinate the implementation of national security policies across various government departments.

From Rice's bio on the State Department website, here is her professional experience prior to becoming National Security Adviser:

In June 1999, she completed a 6-year tenure as Stanford University 's Provost, during which she was the institution's chief budget and academic officer. As Provost she was responsible for a $1.5 billion annual budget and the academic program involving 1,400 faculty members and 14,000 students.

As professor of political science, Dr. Rice has been on the Stanford faculty since 1981 and has won two of the highest teaching honors -- the 1984 Walter J. Gores Award for Excellence in Teaching and the 1993 School of Humanities and Sciences Dean's Award for Distinguished Teaching.

At Stanford, she has been a member of the Center for International Security and Arms Control, a Senior Fellow of the Institute for International Studies, and a Fellow (by courtesy) of the Hoover Institution. Her books include Germany Unified and Europe Transformed (1995) with Philip Zelikow, The Gorbachev Era (1986) with Alexander Dallin, and Uncertain Allegiance: The Soviet Union and the Czechoslovak Army (1984). She also has written numerous articles on Soviet and East European foreign and defense policy, and has addressed audiences in settings ranging from the U.S. Ambassador's Residence in Moscow to the Commonwealth Club to the 1992 and 2000 Republican National Conventions.

From 1989 through March 1991, the period of German reunification and the final days of the Soviet Union, she served in the Bush Administration as Director, and then Senior Director, of Soviet and East European Affairs in the National Security Council, and a Special Assistant to the President for National Security Affairs. In 1986, while an international affairs fellow of the Council on Foreign Relations, she served as Special Assistant to the Director of the Joint Chiefs of Staff. In 1997, she served on the Federal Advisory Committee on Gender -- Integrated Training in the Military.

An impressive resume in general, but it is missing something. While she had plenty of experience with and knowledge about Russia and Eastern Europe before the collapse of the Soviet Union, she had no experience or training whatsoever regarding the Middle East. Call me crazy, but it seems to me that in 2001, national security issues involved the Middle East much more than Soviet Russia and the old Eastern Bloc.

If I am correct, then Rice was not really equipped to be an effective NSA, and her record as NSA supports this view. Her performance regarding events related to 9-11 was weak, as shown by her testimony before the 9-11 Commission. Rice insisted there was no way to prevent or foresee the attacks on 9-11, but Richard Ben-Veniste was not convinced. He kept asking Rice about the August 6, 2001, Presidential Daily Briefing (PDB), and Rice kept insisting that it did not indicate that bin Laden was planning to attack the U.S. And then this happened:

MR. BEN-VENISTE: Isn't it a fact, Dr. Rice, that the August 6th PDB warned against possible attacks in this country? And I ask you whether you recall the title of that PDB.

MS. RICE: I believe the title was "Bin Laden Determined to Attack Inside the United States."

Rice's attempts to spin her position were bullshit in my opinion, but read the testimony for yourself. Fred Kaplan had a good summary of Rice's testimony and what it showed about her job performance in relation to 9-11:

Rice's central point this morning, especially in her opening statement, was that nobody could have stopped the 9/11 attacks. The problem, she argued, was cultural (a democratic aversion to domestic intelligence gathering) and structural (the bureaucratic schisms between the FBI and the CIA, among others). But this is the analysis of a political scientist, not a policymaker. Culture and bureaucracies form the backdrop against which officials perceive threats, devise options, and make choices. It is good that Rice, a political scientist by training, recognized that this backdrop can place blinders and constraints on decision-makers. But her job as a high-ranking decision-maker is to strip away the blinders and maneuver around the constraints. This is especially so given that she is the one decision-maker who is supposed to coordinate the views of the various agencies and present them as a coherent picture to the president of the United States. Her testimony today provides disturbing evidence that she failed at this task—failed even to understand that it was part of her job description.

(emphasis added). The Iraq war elicited an equally underwhelming effort from Rice. There is no question that the Department of Defense dominated and dictated national security policy after 9-11. It always seemed to me that Rice never did anything of any substance regarding Iraq. She just went along to get along from what I could see--and others saw the same. On October 12, 2003, the Washington Post printed an article about Rice by Glenn Kessler and Peter Slevin. The entire article is lengthy, but here is one highlight regarding Iraq:

Rice's reputation was damaged in July, when she acknowledged that she had not entirely read the most authoritative assessment of prewar intelligence on Iraq's weapons programs. She also said the White House was unaware of CIA doubts about an allegation that Iraq had sought uranium in Africa, although her staff had received two CIA memos and a call from CIA Director George J. Tenet on the subject.

It's rather difficult to coordinate policy efforts when you don't read key information, don't you think? Oh, but wait, there's more:

Rice's hands-off approach is most evident in the aftermath of the war with Iraq. Administration officials felt that the postwar effort in Afghanistan -- a diverse collection of nations doing assigned tasks -- had been inefficient and ineffectual. So the Pentagon was given the primary responsibility for rebuilding Iraq.

Yet, after former Iraqi president Saddam Hussein and his armies vanished in early April, signs quickly emerged that the Bush administration had not completely prepared for the aftermath. The early relief and reconstruction effort, assigned by Bush to the Pentagon in January, stumbled over such basics as staffing, transportation and communications. U.S. authorities sent inconsistent messages about Iraq's political future and proved unable to provide a clear vision to Iraqis or Congress of what the Bush White House intended.

"The NSC is not performing its traditional role, as adjudicator between agencies," said a State Department official, who described "a very scattershot approach to staffing and management. You never knew quite what you were supposed to be doing and with whom."

A U.S. official who served in Iraq said the NSC failed to make decisions about Iraq's postwar reconstruction and governance until long after the war ended. Decisions that some agencies thought had been settled were unexpectedly reopened or reinterpreted by the Pentagon, he said.

*******

Some of Powell's key lieutenants, who had gone along with the president's decision to give the Pentagon the principal postwar role, were frustrated first by the Defense Department's refusal to include them -- and then Rice's unwillingness to intercede.

Rice's "hand's-off approach was also examined.

But the complaints about her skills at managing foreign policy are in many ways more serious, and have not received much of a public airing.

Many officials with firsthand knowledge of White House decision making contend that Rice is weak at forging those decisions, sometimes attempting to meld incompatible approaches that later fail. She is also perceived as not resolving enough issues before they reach the president and doing a poor job of making sure his wishes are carried out.

Administration officials said the situation has left many problems unresolved, especially at lower levels, and led to frequent policy shifts. Decisions are made and then altered or reversed, and feuding advisers have been emboldened to keep pressing their case or to even ignore policy guidance in the hope of achieving final victory.

In Rice, "you've never really had a national security adviser who's ready to discipline the process, to drive decisions to conclusions and, once decisions are made, to enforce them," said one former senior NSC staff member. In particular, he said, "she will never discipline Don Rumsfeld" when he undercuts decisions that have been made. "Never any sanctions. Never any discipline. He never paid a price."

Rice is not a leader. Rice is not a decision maker. She apparently is not even a good manager. If she cannot confront or coordinate officials in her own government, what are the chances she can do any of that with the leaders of other countries? And if you think she is not supposed to do these things as Secretary of State, check out the official description of her duties.

Some insight into Rice's performance as NSA was provided by Alan Gilbert, who was one of Rice's graduate professors at the University of Denver. Commenting on her appearance before the 9-11 Commission, Gilbert wrote the following for Salon.com:

Condi has always been a great performer. As a pianist, as an ice skater, as a student, as a provost, as a presidential advisor, she has always been on stage. She adapts her performance to her audience: Josef Korbel and, to some extent, me once upon a time, President Bush now. She can be fierce. Donald Rumsfeld, who waged war in Iraq without a plan for the occupation, lost control to Condi and the National Security Council. But tragically, she is also a person without a core, who loses herself in her performance. National security was her responsibility. She failed in that responsibility because she was too busy perfecting her performance as a Bush team player when the Bush team, obsessed with wild fantasies of global domination, had lost touch with reality.

And I fear this is what we can expect from Rice in her role as Secretary of State. As Kessler and Plevin put it, "Rice has proved to be a poised and articulate defender of President Bush's policies." That's all she did as NSA, and that is one reason why she is now Secretary of State. She is now in a position to try to force those policies onto other countries, and that scares me.

Example #1 of the Bush agenda: Alberto Gonzales

Overview

So the Bolton nomination survived the committee phase, but without a positive recommendation, and the vote will be coming soon. I wish I thought there was a reasonable chance that the vote before the full Senate will not go along party lines--or that at least enough Republicans would vote against Bolton to keep him from becoming U.N. Ambassador. Sadly though, I am not optimistic.

I've said it before, and I'll say it again--go to Laura Rozen's site, War and Piece, for everything to know about the Bolton nomination. There you will find an abundance of reasons why the opposition to Bolton is NOT merely partisan in nature.

What really bothers me, however, is that the Bolton nomination is just a part of a much bigger scheme, as I explained in the previous post. I also said that I would explain in a post why three people should have been sacked rather than promoted. Well, there has been a slight change in plan. I will devote a separate post to each individual. And first up is...

Alberto Gonzales

As White House counsel, he helped write the Patriot Act, passionately defended it (while not really answering questions about it), and was a central player in policies that led to the abuse scandals in Iraq and Guantanamo Bay. A comprehensive look at how Gonzales helped shape administration policy in this regard is found at the website of Human Rights First. Included are all the relevant memoranda and letters. So, after all that, Bush promoted Gonzales to Attorney General, and thus put him in charge of the Department of Justice. As AG, he also ultimately controls the domestic efforts of the war on terror (thanks in large part to the Homeland Security Act), and he sets the policy and agenda for all federal criminal prosecution efforts. The DOJ contains approximately 60 organizations, including

• Bureau of Alcohol, Tobacco, Firearms, and Explosives
• Criminal Division
• Drug Enforcement Agency
• Federal Bureau of Investigation (FBI)
• INTERPOL--U.S. National Central Bureau
• National Drug Intelligence Center
• Office of Intelligence Policy and Review
• Office of Legal Policy
• Tax Division

Should you have any doubt that Gonzales ultimately is in charge of all these organizations, check out the organization chart at the DOJ website.

So why would Bush put him in such a position? Part of the answer lies in the dominant pattern in Gonzales's political career. As explained in this biography of Gonzales, prior to his public career, Gonzales was a partner with the Houston-based law firm Vinson & Elkins (the firm that represented Enron--gee, what a coincidence). In 1994, George W. Bush--then governor of Texas--appointed Gonzales as general counsel. Gonzales's next public post came in 1997 as Texas Secretary of State, for which he was appointed by...George W. Bush. In 1999, there was an unexpired term on the Texas Supreme Court, and George W. Bush appointed Gonzales to fill that term. When Bush became President in 2001, he tapped Gonzales to be White House counsel. And now, thanks to Bush, Gonzales is Attorney General. What this means is that Gonzales owes his entire political career to Bush, and Gonzales is going to be controlled by Bush and his evil genius, Karl Rove.

Another (and related) reason for Gonzales's promotion is that in the war on terror, Gonzales has always advocated basically unlimited discretion and power for the President. Gonzales's position--and it's repeated rejection by the courts, including the U.S. Supreme Court--is detailed in a briefing paper on the Human Rights First site. The opening summary is a good one:

Gonzales has claimed sweeping authority for the President as Commander-in-Chief to unilaterally determine who is an enemy combatant and to detain any such person indefinitely and incommunicado without any established legal rights and subject only to such procedural protections as the President deems prudent in the individual case.

According to Gonzales, that "sweeping authority" extends to U.S citizens. In a February 24, 2004, speech before the American Bar Association, Gonzales discussed the cases of Yaser Hamdi and Jose Padilla, both U.S. citizens. Hamdi was fighting with the Taliban in Afghanistan when he was captured, and Padilla was arrested in Chicago. Both were declared "enemy combatants" by Bush and held without charges or representation. Early in the speech, Gonzales criticized press reports of these cases:

To state repeatedly that detainees are being held without charge mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court-- and states in prior wars have generally not done so. It is understandable, perhaps, that some people, especially lawyers, should want to afford the many due process protections that we have grown accustomed to in our criminal justice system to the individuals captured in our conflict with al Qaeda. It has been many years, fortunately, since the United States has been in a conflict that spans the globe, where enemy combatants have been captured attempting to attack our homeland. But the fact that we have not had occasion to apply the well-established laws of war does not mean that they should be discarded. The United States must use every tool and weapon--including the advantages presented by the laws of war--to win the war against al Qaeda.

(emphasis added). Notice that Gonzales said nothing about U.S. citizens. Everything is couched in terms of war in general and the war on terror in particular. This should be a huge concern for all U.S. citizens.

Cause for such concern is exemplified by the Hamdi case. Hamdi was held without charges being filed against him and without any due process rights granted. The Fourt Circuit Court of Appeals had ruled that this was permissible, that the President had full discretion to do this, and that no Court had authority to say otherwise once it was determined that Hamdi was an "enemy combatant." In his speech, Gonzales had this to say about the Fourth Circuit's decision:

The Government's record in the courts on the scope of the President’s authority, as you probably know, has been mixed. The Fourth Circuit in Hamdi agreed that the President may detain enemy combatants, including American citizens, and further agreed that judicial review should be highly deferential. The Court reasoned that the designation of Hamdi as an enemy combatant bears the closest imaginable connection to the President's constitutional responsibility during the actual conduct of hostilities, and that while judicial review does not disappear during wartime, the review of battlefield capture in overseas conflicts is a highly deferential one.

Applying this deference to the facts of the case, the Fourth Circuit concluded that despite his status as an American citizen currently detained on American soil . Hamdi is not entitled to challenge the facts presented by the United States. The Court held that where as here, a petitioner has been designated as an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner’s detention.

*******

You will not be surprised to learn that we found the Fourth Circuit decision to be brilliant, and the panel's reasoning incisive and unimpeachable.

The United States Supreme Court disagreed. While five of the Justices agreed that the President has the authority to detain a citizen as an enemy combatant, eight of the nine reversed the Fourth Circuit on due process issues. Justice O'Connor, writing for four of the Justices, said the following:

The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. (124 S. Ct. at 2635).

*******

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. (124 S. Ct. at 2648).

*******

Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding-- one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U.S., at 455-457, 105 S.Ct. 2768. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker. Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. (124 S. Ct. at 2651).

(emphasis added). And in case O'Connor is too liberal for some of you, then read these words from Justice Scalia:

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, § 8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. (124 S. Ct. at 2668-2669).

(emphasis added). Gonzales said in his speech that the President has the authority to hold any U.S. citizen as an enemy combatant for an indefinite amount of time, never charge that citizen with anything, deny him legal counsel, and never give him a hearing of any kind. In other words, Gonzales feels that the President can avoid and violate the U.S. Constitution and the other laws of this nation with impunity. In an 8-1 vote, the Supreme Court said "WRONG!" As Justice Scalia noted, Gonzales's position violates the very principles on which this country was established. That is a big part of the reason why all Americans should be nervous about Gonzales being Attorney General.

Some of you might think that the Hamdi case should not cause alarm. After all, the evidence indicates that Hamdi was fighting for the Taliban. He was captured by the Northern Alliance during the war in Afghanistan. It therefore appears that he was taken as a prisoner during a war on foreign soil. Since no U.S. citizen here in this country could meet those circumstances, we have nothing to worry about, right?

Don't count on it.

Remember what I said early on in this post:

As AG, he also ultimately controls the domestic efforts of the war on terror (thanks in large part to the Homeland Security Act), and he sets the policy and agenda for all federal criminal prosecution efforts.

Some of the criminal laws Gonzales gets to enforce are those in Chapter 113B of Title 18 of the U.S. Code. Those statutes deal with terrorism, and 18 U.S.C. § 2331 defines the pertinent terms:

As used in this Chapter--

(4) the term “act of war” means any act occurring in the course of—
(A) declared war;
(B) armed conflict, whether or not war has been declared, between two or more
nations; or
(C) armed conflict between military forces of any origin; and

(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws
of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination,
or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.

(emphasis added). Those definitions are very broad, or at least open to very broad interpretation. The war on terror certainly comes within the definition of "act of war." Any criminal violation could be a possible act of "domestic terrorism," and for anyone thinking that it will be rare that a crime could be determined to meet the criteria of § 2331(5)(B), remember two things: 1) the person who ultimately decides how the government will seek to enforce that provision is Alberto Gonzales, and 2) he is the man that said that locking up U.S. citizens for an indefinite time without charging them, allowing them legal counsel, or giving them a hearing of any kind--in violation of the Constitution--is perfectly alright.

Thanks to George W. Bush, that man has become The Man, and now he is in a position to affect all of our daily lives, and he has shown he does not care about the Bill of Rights.

Preview of a post about the Bush agenda

Priscilla Owen just got confirmed, and next up for a vote is John Bolton as U.N. ambassador. These two are part of a much larger agenda for the Bush administration. That agenda is taking people and moving them up the political ladder into jobs where they can have a greater impact on our lives. Other than Owen and Bolton, here are a few examples: Alberto Gonzales from White House Counsel to Attorney General; Condoleezza Rice from National Security Adviser to Secretary of State; and Paul Wolfowitz from Deputy Secretary of Defense to President of the World Bank.

It might seem that Priscilla Owen does not fit in this group because she was not part of the Bush administration and was not apponted to office by Bush. However, Owen was selected to run for office by none other than Karl Rove, which means that her judicial career--past and present--is tied to Bush.

That means that all five of the people named herein owe their positions to George W. Bush. In other words, they can all be controlled.

In a future post I will discuss why Gonzales, Rice, and Wolfowitless should have been sacked, not promoted. I have already done that regarding Owen (see The Senate should reject Priscilla Owen and Priscilla Owen: compassionate conservative or...?), and Laura Rozen's site, War and Piece, has everything to show why Bolton should not be confirmed.

Priscilla Owen is confirmed.

Priscilla Owen will now be a federal appellate judge. For me the only bright side is I will not have to deal with her in future appeals to the Supreme Court of Texas.

Just remember what I have said about the ultimate objective being to get her on the U.S. Supreme Court. If it comes to pass that she is nominated to the Supreme of Supremes, the Democrats had better invoke the right to filibuster, for it appears that any Republicans who have doubts about Owen don't have the cajones to vote against her. Of course, the mid-term elections could produce a Democratic majority in the Senate, which would change the dynamics big time.

Anyone who understands the rule of law, the principle of precedent, and the role of the judiciary should be opposed to Priscilla Owen sitting on any appellate court, but most especially the U.S. Supreme Court. This is not a partisan/red-blue state/liberal-conservative matter. Any Supreme Court nominee who is a liberal and has displayed the judicial demeanor and practices of Priscilla Owen would also receive criticism from me. Result-oriented political hacks of any kind should not be Justices on the U.S. Supreme Court.

No Nuke-u-ler Option

There has been a truce called in the filibuster war. As reported by the AP at 8:50 tonight, the Senate has reached a compromise regarding judicial nominees.

Under the terms, Democrats agreed to allow final confirmation votes for Priscilla Owen, Janice Rogers Brown and William Pryor, named to appeals court seats. There is “no commitment to vote for or against” the filibuster against two other conservatives named to appeals courts, Henry Saad and William Myers.

The agreement said future judicial nominees should “only be filibustered under extraordinary circumstances,” with each Democratic senator holding the discretion to decide when those conditions had been met.

So the dreaded "nuclear option" will not be utilized. I suppose that is good news. Now comes the bad news...

And Republicans said they would seek to confirm Owen as early as Tuesday, with other cleared nominees to follow quickly.

I wish there would be further debate on the Senate floor regarding Owen, but I ain't holding my breath.

Over at Talking Points Memo, Josh Marshall posted an email from a Texas lawyer suggesting that Owen on the Fifth Circuit, while bad, would not be as bad as having Janice Rogers Brown on the D.C. Circuit Court of Appeals. I have to disagree with my fellow member of the Texas Bar. As I said in concluding The Senate should reject Priscilla Owen,

I guarantee that if Owen gets confirmed to the Fifth Circuit, and a place on the Supreme Court opens up while Bush is still in office, Priscilla Owen will be nominated for that position (unless Rehnquist retires, in which case Scalia will precede Owen). I believe that Bush is not interested in long term plans the way Reagan was when he got to appoint the majority of the federal judiciary. Bush wants big changes, and he wants them now. The only way he can do that in terms of the judiciary is to appoint extremist, highly activist judges to appellate positions. That's why Priscilla Owen's nomination was resubmitted.

Mark my words, America. This is a dangerous situation which needs to be avoided, and such avoidance must start with the rejection of Priscilla Owen.

That makes Owen far more dangerous than Brown.

Priscilla Owen: compassionate conservative or...?

Introduction

In the previous post, I noted that Priscilla Owen "is a notoriously slow judge whose backlog routinely holds up the court." And sometimes her seeming sloth has far greater consequences.

Consider the case of Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). The full story of this case exemplifies so much of how the GOP and big business have systematically dismantled the civil justice system and stripped away any hope of justice in Texas--unless you happen to be big business or the government. However, that story will have to wait for another time.

The case from trial court through the court of appeals (the first time)

Here is the story of the Miles case and the person most directly affected by it, Willie Searcy. If you want a more detailed narrative, read two articles by Lou Dubose: "Trial and Error; How Priscilla Owen 'poured out' Willie Searcy," published on April 25, 2003; and "Willie's Story," published on May 12, 2005. One day in April 1993 Willie, his little brother, and his step father (Ken Miles) were traveling on I-35 in Dallas County in a Ford Ranger truck. A car traveling in the opposite direction crossed the median and ran into the Ranger head on. Willie suffered severe injuries which rendered him a quadriplegic who could not breathe without a ventilator. Suffice it to say that he required constant care for the rest of his life. As described in "Trial and Error:"

Willie Searcy would be a "ventilator-dependent quadriplegic" for the rest of his life. He spent three months in Methodist Hospital in Dallas. And three more months in a private rehabilitation facility in Dallas. Within six months, his mother Susan and stepfather Ken were looking at $550,000 in medical bills. The rest of their lives would be defined by medical bills. Willie Searcy would require full-time nursing care. He would have to be "coughed" by an attendant. His trachea tube would have to be regularly suctioned to allow a clear path for the ventilator to breathe for him. Every bodily function would be regulated and performed by a relative, nurse, or attendant.

*******

Willie needed full-time professional health care. He needed a back-up ventilator, an alarm system. He needed a transducer–a box someone would press against his throat to allow him to "talk." If he could get a small plastic keyboard fitted to his palate, he would be able to use his tongue to run electrical appliances, such as a wheelchair and an adjustable bed, and a computer.

The Mileses felt that the seat belt Willie was wearing was defective, and they decided to file suit against Ford in 1994. The suit was filed suit in Rusk County instead of Dallas County primarily (but not solely) in order to get the case to trial quickly. Rusk County is a small rural county, and the court docket there was much smaller than in Dallas County. As Willie's attorney, Jack Ayres, said, "We were in a race to save this kid’s life." Ford filed a motion to transfer venue to Dallas County. This motion was denied.

After denying Ford's motion for continuance, the trial court in Rusk County set the trial for January 1995. One thing you need to understand is that while about one year might seem like a long time to wait for a trial, the reality is that that is practically light speed, especially in a case like this. In any event, the trial took four months. Ayres had asked for $26 million, but the jury awarded $30 million in actual damages and $10 million in punitive damages.

Ford appealed the verdict, and there were some issues that Ayres wanted to appeal. What followed was a one year delay in the appellate process. Most counties in Texas are in one appellate district. Rusk County, however, is in two appellate districts, with appellate courts in Texarkana and Tyler. Ayres filed his appeal in Texarkana, and then Ford filed its appeal in Tyler. After much wrangling, it was determined that Texarkana would hear the entire appeal. That was victory for Willie, but it had cost a year. As long as a case is on appeal, there are circumstances under which the losing party does not have to pay the damages award, and those circumstances were present. That meant that during this time Ford did not have to pay for any of Willie's medical expenses--and the Miles' insurance did not cover all the bills.

On March 13, 1996, the Texarkana Court of Appeals upheld the $30 million actual damages award, overturned the punitive damages award and remanded that issue to the trial court (sent it back to the trial court for a retrial), and denied Ayres's appeal.

All parties filed an appeal to the Texas Supreme Court.

Priscilla Owen took her own damn sweet time.

"Trial and Error" described the circumstances when the process began in the Supreme Court:

Willie Searcy’s case moved from Texarkana to Austin. Jack Ayres asked the Supreme Court to expedite the appeal. In the three years since the accident, he had grown more familiar with the almost impossible daily life of Willie Searcy and his parents. Nursing care was patched together. There was no backup ventilator or portable generator to eliminate the risk of power failures. And there was a constant fear of death from autonomic dysreflexia–a spike in blood pressure if a leg or arm is improperly positioned and not moved by the nurse. "This was on all our minds all the time," Ayres said. On paper Willie Searcy was a millionaire, in possession of a $30 million judgment provided to him by a Texas jury in state district court. Yet his life was at risk because his family didn’t have the money to pay for a complete health care program. This time Ford’s attorneys joined Ayres in filing a motion requesting the Supreme Court to expedite the case.

According to the docket sheet on the Supreme Court's website, that motion was eventually overruled, but much happened before that. At the time Ford filed its appeal with the Supreme Court, such an appeal was known as an application for writ of error (the procedure now is known as a petition for review). Here was how the process worked. After the court of appeals issued its judgment, a party wishing to appeal to the Supreme Court had a certain time within which to file an application for writ of error. Ford's application was originally due on June 13, 1996, but Ford moved for an extension on June 12, and the motion was granted the following day.

Another important part of the process was the assignment of cases among the Justices. Cases were assigned by means of a blind draw. Unfortunately for Willie Searcy, the Justice who drew his case was Priscilla Owen. Dubose quoted a lawyer who worked at the Supreme Court at the time as saying "That kid’s fate was decided when Justice Owen picked that card."

The Supreme Court's docket sheet shows that the joint motion to expedite was filed on July 23, 1996. The Court never ruled on that motion until it decided the case on March 19, 1998.

Ford filed its application for writ of error on September 5, 1996, and the application was granted on October 25, 1996. What this means is that the Supreme Court decided to take the case and rule on it. The vast majority of applications were denied, meaning that the Supreme Court would not consider the case, and the judgment of the Court of Appeals would stand.

Oral argument was heard on November 11, 1996. Once oral argument takes place, a case is "submitted" to the Court, meaning that the next action will be the Court's decision. Now, it might seem like three months is a long time, but is remarkable that this case went from being filed to being submitted in three months. At that point, the Court was acting in an expedited manner--even though there had been no ruling on the joint motion to expedite.

Unfortunately, nothing else in the case was expedited. By a vote of 5-4, the Court ruled in favor of Ford and issued the majority's opinion--written by Owen--on March 19, 1998--15 months later.

Owen's opinion

Before discussing Owen's opinion, more points of applicable appellate procedure must be discussed. When the Supreme Court granted an application for writ of error, it would state in writing the issues, or points of error, it would address. Part of what made Owen's opinion bullshit was that her judgment was based on an issue that was not among those the Court said it would address. That was the venue issue. Generally, if the Court subsequently wanted to address another issue, it would inform the parties and ask for additional briefing. That was not done in this instance. There was nothing illegal about that, however. Under the application for writ of error process, the application actually served as the appealing party's full brief on the merits. Thus, the application could be up to 50 pages long. Any issue not raised and briefed in the application would be waived. In the current petition for review process, an appealing party first files a petition for review, which has a 15-page limit, meaning it cannot possibly be a full brief on the issues. If the petition is granted, then the party gets to file a 50-page brief. The Miles case was heard under the application for writ of error process. Thus, I would be very surprised if Ford did not address the venue issue in its application. If Ford did brief that issue, then the Supreme Court--in spite of the fact it did not say it would consider the issue--was still free to address that issue and base its decision on it, and there was no requirement that it ask for further briefing.

Still, the issue was not discussed at all at the oral argument, and neither party knew the issue would determine the outcome of the case.

This in part explains the extreme delay in the issuance of Owen's opinion. According to "Trial and Error," "two former clerks said discussion about Willie Searcy’s case was acrimonious" because Owen wanted to take up the venue issue. The Justices hold regular conferences to discuss cases, and final opinions are not issued until those conferences produce a majority. It seems that it took Prissy a long time to find four other judges who would condone her bullshit.

A discussion of why Owen's ruling on the venue issue was wrong is beyond the scope of this post. Instead, I will simply provide excerpts from Justice Deborah Hankinson's dissenting opinion.

The Court begins by citing the correct standard of review for venue determinations, but then fails to apply it properly. A reviewing court must defer to the trial court's venue determination if any probative evidence supports the trial court's venue ruling, even if the preponderance of the evidence is to the contrary.

*******

As with its application of the standard of review, the Court's analysis of the substantive standard for determining venue fails to give due weight to the particular facts of this case...Resolution of venue issues perforce requires detailed factual analysis; the Court's failure to give due weight to the facts in this case is thus all the more troubling.

Misapplying standards of review, ignoring facts, not following the law--all of that is standard operating procedure for the Supreme Court of Texas.

Pursuant to that SOP, Owen ruled that venue was improper in Rusk County and that the case should have been heard in Dallas County. Under Texas law, a finding of improper venue requires reversal of the original judgment. In this case, that meant that Willie Searcy and his family came away from the Texas Supreme Court with no money to pay for his medical care. Instead what they faced was a whole new trial in Dallas County.

The joint motion to expedite

Generally, courts routinely grant joint motions made by the parties. Joint motions will be denied if the relief sought is something that displeases the judge (such as efforts to extend deadlines or allow more documents to be filed with the court), or if the judge has some other objective, or both.

In the Miles case, the Supreme Court did something that is a tactic among trial judges who want do something but make it look like they have done nothing: they simply do not make a ruling on a motion. As noted, the motion to expedite was filed on July 23, 1996. If that motion had been granted in a timely manner--and there is no legitimate reason whatsoever that it should not have been granted--there is no way that Owen could have taken 15 months to issue the majority opinion.

So why was the motion not ruled upon until the Court made its ruling on the case? Before answering that question, let's look at what the Court said in its order of March 19, 1998 (the order can be found via this link).

The motion to accelerate is overruled with the following notation: The Mileses requested expedited consideration of these appeals because of Willie Searcy's severe injuries and his need for expensive medical care. Ford joined that request. The request is overruled, not because it should not have been granted, but because, in fact, it was not granted.

(emphasis added). Can you believe that bullshit? See, now those reponsible can say "Well, we're not bad people, because, after all, we did not overrule the motion to expedite, we just did not grant it." This is the kind of crap the Texas Supreme Court has been doing for over ten years. But wait...the order went on to say the following:

The practice of this Court has been to carry such requests along with the appeal under the assumption that we give full and timely consideration to every appeal before us. While members of this Court disagree over whether our disposition in this case has been timely, some citing to the complexity of the issues, notwithstanding the ultimate outcome, and others asserting that notwithstanding the complexity of the issues, these appeals should have concluded months ago, we unanimously agree that the parties' request should have been granted.

(emphasis added). Look at that again. The Court--including the five Justices that ruled against Willie Searcy--agreed that the motion to expedite should have been granted, but basically also said that the case still might have been decided in the same amount of time.

So the question remains as to why it took so long for Owen to issue the majority opinion. Well, the answer is simple. It took that long to figure out some way to make sure Ford would win. The Texas Supreme Court has had as its mission to make sure that plaintiffs never win. For reasons that turn on an explanation of appellate standards of review (whichI will not undertake here), what has been particularly abhorrent is the Court's habit of overturning jury verdicts in favor of plaintiffs. The short explanation is that given the applicable standards of review and the presumptions an appellate court is supposed to make regarding jury verdicts, overturning a jury verdict should rarely happen. Instead, the Texas Supreme Court has made the reversal of jury verdicts for plaintiffs a routine action.

And that gets us back to the Miles case. There was no way the Supremes could let the jury award of $30 million stand. My guess is that after reading the Court of Appeals' opinion, reviewing the record, and hearing the oral argument, Owen thought that she could not overturn the case on the basis of the evidence, so she had to find some other way, and then she had to find four other Justices to go along with her, and that took time.

Then again, maybe that is not the real answer. If an appellate court is looking to overturn a case, it will usually look first to technicalities, like venue. That is the easiest way to reverse cases, and the one that is least open to criticism. As shown by the Court of Appeals' opinion (922 S.W.2d 572), the venue issue was examined in detail, and it should not have taken Owen 15 months to decide the case on the basis of venue. And so the question of why it took Owen so damn long to decide the case is still open.

What is not open to speculation, however, is that 1) even Owen admitted that the motion to expedite should have been granted; and 2) Owen's delay meant that Willie Searcy unecessarily went more than a year without all the medical care he needed.

Back to the trial court...and the great beyond

The case went back to a trial court, this time in Dallas. The trial judge granted a summary judgment in Ford's favor, which meant that the Mileses and Willie had to go through the appellate process all over again. Once again, a Court of Appeals ruled in Willie's favor. The Dallas Court of Appeals reversed the summary judgment and ordered the case sent back to the trial court. Ford would have appealed that decision to the Supreme Court, but never got that chance.

The Court of Appeals made its ruling on June 29, 2001. By that time Willie Searcy was 21 years old, and that meant that his weekly nursing care being provided by Medicaid was cut from 104 hours to 34. The only way the Mileses could afford to get those 70 hours back was if Susan Miles's employer would agree to provide it through Susan's insurance. The employer's medical director declined the coverage.

On July 3, 2001--almost five years after the case got to the Texas Supreme Court--Willie's nurse left the Miles' home at 4:00 a.m. Shortly thereafter, Willie's ventilator malfunctioned, and he died.

Priscilla Owen's last word on Willie Searcy

The four Justices who joined Owen's majority opinion must share responsibility with Owen for the Supreme Court's actions in Ford Motor Co. v. Miles. But Priscilla Owen alone has responsibility for her own words. "Willie's Story" describes how during her previous nomination to the Fifth Circuit, Owen actually had to appear before the Senate Judiciary Committee. There Senator Diane Feinstein asked Owen why it took so long to render a decision in the Miles case when Willie Searcy's life was so precarious.

Owen's answer was, "He didn't pass away while his case was before my court."

Gee, I guess that is a prime example of that "Culture of Life" the Bush administration keeps talking about.

The Senate should reject Priscilla Owen.

Overview

Well, the battle over judicial filibusters is dangerously close to becoming an all out war, as the renewed nomination of Priscilla Owen has gone to the Senate floor. As I have said before, I am no fan of the filibuster, but if it is the only way to keep Owen from being confirmed, I'm all for it.

Priscilla Owen should be rejected because she simply is not qualified to sit on the Fifth Circuit Court of Appeals. Moreover, she is a result-oriented political hack that has no regard for the rule of law. She has never had an original thought or voice as a judge. She will do only what her masters tell her to do.

And what do I know about any of this? As a lawyer in Texas who specializes in civil appeals, I have some knowledge about Priscilla Owen. I also have some knowledge about the Fifth Circuit Court of Appeals.

The Fifth Circuit is, without question, one of the most--and possibly the most--conservative courts in the nation. One might think that therefore I do not like the Fifth Circuit, but that is not the case. While I do not like some of the decisions of that Court, I nonetheless think it is a very good court. As a lawyer, the things I want the most in a court are consistency, fairness, and efficiency. The Fifth Circuit has all of that, as I will explain later.

Owen's experience

Owen was elected to the Texas Supreme Court in 1994. In order to begin to understand why she has no business being a judge, take a look at her bio on the Supreme Court of Texas website:

Justice Priscilla Owen was elected to the Supreme Court of Texas in 1994 and reelected in 2000. She is a native Texan and earned her B.A. from Baylor University and her J.D. in 1977 from the Baylor University School of Law, where she ranked in the top of her graduating class.

Before her election, Justice Owen was a partner in the Houston firm of Andrews & Kurth, L.L.P where she practiced commercial litigation for seventeen years. She was admitted to practice before the United States Courts of Appeals for the Fourth, Fifth, Eighth and Eleventh Circuits. Justice Owen was chosen as Baylor Young Lawyer of the Year and one of Baylor's Outstanding Young Alumna. She is a member of the American Law Institute and serves as the Supreme Court's liaison to the Texas Legal Services for the Poor Special Committee, and the Supreme Court Advisory Committee on Court-Annexed Mediations.

Did you notice any mention of judicial positions she held before running for the highest civil court in Texas? Let me answer that: No, you did not. That because she had never been a judge of any kind. ZERO judicial experience.

That in and of itself is not determinative, for other Justices' first judicial post had been the Texas Supreme Court. However, almost all of them had some other relevant experience. For instance, both Lloyd Doggett (whose place on the Court was taken by Owen) and Jack Hightower had extensive legislative careers before joining the Court. Why is that important? Such experience gives one an understanding of the overall governmental process and how each branch relates to the others. Owen had no such experience. Of the current Justices, only Chief Justice Wallace Jefferson has no previous judicial experience. However, he had other highly relevant experience.

Chief Justice Jefferson's official bio explains that

He had been a partner in the appellate-specialty firm Crofts, Callaway & Jefferson and twice won cases he argued before the U.S. Supreme Court. He started his law practice with Groce, Locke and Hebdon in 1988 and helped found Crofts, Callaway & Jefferson in 1991. Chief Justice Jefferson is certified in civil appellate law by the Texas Board of Legal Specialization.

(emphasis added). In other words, before joing the Supreme Court, Jefferson had extensive appellate experience and expertise. This is very important. There are big differences in trial and appellate litigation. Anyone who is going to be on the highest appellate court in a state necessarily needs to know about and understand those differences. Anyone who is going to be on the highest appellate court in a state necessarily needs to know about and understand the appellate process and rules and how appellate decisions effect a state's laws. Wallace Jefferson had that knowledge and understanding before he became a Supreme Court Justice. Priscilla Owen did not.

Priscilla Owen had almost zero appellate experience in her seventeen years of private law practice. The Alliance for Justice detailed Owen's experience on pp. 2-3 of a report from July 2002 (the footnote citations have been omitted):

Owen’s sixteen-year career in private practice was devoted almost entirely to the representation of oil and gas companies, primarily corporate transactional work with some litigation, and the representation of individual litigants in small-stake suits. She had little appellate experience at either the federal or state level...

During her time in private practice, Owen was apparently involved in 44 cases in her local court, the Harris County (Houston) district court. Of these, we were able to identify her client and the prevailing party in 33 cases, many of which were characterized by local lawyers as “boring,” “penny ante,” and “low level.” Apparently, nine of the cases in which she represented the plaintiff were dismissed for want of prosecution (“DWOP”). We believe that Justice Owen should be questioned about these cases to determine if she simply failed to pursue them in a timely manner (thereby burdening the court and harming her client) or if there was another reason – legitimate or not – for their dismissal.

In eight of the ten cases Justice Owen lists in her Senate Judiciary Committee Questionnaire as her most significant, she represented oil and gas companies. Five of the ten involved representation of one of Owen’s biggest clients, “Transco” (Transcontinental Gas Pipe Line Corporation), “an interstate natural gas pipeline company.” In two of the others, Owen represented Lone Star, another pipeline company, and in another, IP Petroleum. Her last two “big ten” cases were both boundary disputes between Owen’s clients and their neighbors, one involving a blocked driveway.

Democrat Jimmy Carroll, Owen’s opponent in the 1994 Texas Supreme Court campaign, challenged her characterization of her appellate experience, attacking her for “puffed up” campaign claims. Despite working at a major law firm with a substantial appellate practice for sixteen years, according to Dallas Morning News and our own records search, Owen argued only one federal appellate case and one case in a state appellate court, and wrote the briefs for one other state appeal.

(emphasis added). In 1994, I had been licensed almost seven years, and I had at least three times the appellate experience of Owen by then--and yet I could not have imagined running for the Supreme Court. The above excerpt shows that Owen also lacked any significant litigation experience at the trial level. Owen running for the Texas Supreme Court in the first place is like someone playing a musical instrument intermittently for several years and then deciding he is qualified to direct a major symphony orchestra. To use a sports analogy that only hockey-starved fans will understand, Owen running for the Supreme Court is like Gary Bettman wanting to be commisssioner of the NHL. And Owen actually getting elected has been like Bettman actually being commissioner of the NHL, which is to say the results have been bad.

Owen's record on the Supreme Court shows she is a result-oriented political hack.

During her first years on the Court, the only thing that could be said about Owen is that whatever Justice Nathan Hecht did, she would do the same. She rarely wrote any opinions, especially majority opinions. Hecht, on the other hand is perhaps the biggest windbag in judicial history (and he did not use to be).

As an aside, Hecht was a trial judge in Dallas and a justice on the Dallas Court of Appeals before joining the Supreme Court. Before becoming one of the Supremes, I thought Hecht was one of the state's best judges. He was articulate, reasonable, and committed to the principles of judicial precedent and restraint. The same can be said of former Supreme Court Justice Craig Enoch. However, once they reached the Texas Supreme Court, they changed radically. For that matter, the same thing happened (but not to as great an extent) to John Cornyn, who is now a U.S. Senator.

But back to Owen...No one was really surprised by Owen doing everything Hecht did. After all, since she had ZERO judicial experience and almost no appellate experience and no significant trial litigation experience, she needed someone to follow. Also, it turns out that Owen and Hecht had dated. Now isn't that sweet?

And then she started writing opinions...The Alliance for Justice report (p. 6) contains an excerpt of a letter that a Texas member of the National Employment Lawyers Association wrote to Senate Judiciary Chair Patrick Leahy, asking him to oppose Owen’s confirmation:

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. Justice Owen is the type of judge who can ignore facts – when it helps corporations to do so – yet then rail against the failure of her fellow Texas Supreme Court colleagues to pay more attention to the facts when she wants the court to stop a minor from getting an abortion… Justice Owen is only a judge because she was swept into office in the Republican sweep of 1994. There are many fine Republican jurists in this state, but Justice Owen is not one of them.

This explains in part why Owen was selected to run for office in the first place. Another part of the explanation is that she was picked by Karl Rove, who also served as a consultant on her first campaign and got paid $250,000 for his efforts. In 1994, Texas was absolutely primed for a Republican takeover. That fact--and the fact that Texas still has straight ticket voting--meant that any Republican running for office was likely to win. The public in general knows little or nothing about judicial candidates, and that also contributed to Owen's election. In Owen, the Republicans had someone who would owe them big time and would do whatever they ordered. And that's the rest of the explanation of why Owen ran for office in the first place.

The letter excerpt is right about Owen's record on the Court. Should you need further proof, the Alliance for Justice report (pp. 7-15) contains summaries of her decisions and opinions.

Owen also has shown questionable ethics in her practices and decisions. "Judging Prissy," an April 12, 2002, article in the Texas Observer, states the matter first in general terms: "Texas Ethics Commission and Court records reveal that 37 percent of the $1.4 million that Justice Owen raised for her campaigns came from lawyers and litigants who had a direct stake in cases before her court." And then the article describes three prime examples:

In a 1996 opinion, for example, the Court reversed a lower court ruling and lowered the tax exposure of a major donor, the H.E.B. grocery store chain (H.E. Butt Grocery Co. v. Jefferson County). In another case, the Court upheld a verdict for a plaintiff injured in an H.E.B. store. Yet Justice Owen–who has taken $7,500 from H.E.B.’s owner–joined a dissent that would have overturned that jury verdict (H.E. Butt Grocery Co. v. Bilotto).

On the day of the H.E.B. tax case, the court issued an Owen-authored opinion that haunts her nomination like a nightmare. That decision overturned a lower appeals court ruling to free Enron Corp.–the justices’ No. 1 source of corporate donations–from having to pay $224,989 in school taxes (Enron v. Spring Independent School District). Speaking about Owen’s nomination last month, Senate Judiciary Committee Chair Patrick Leahy (D-VT), said, "I have heard from a lot of Republicans who are concerned about her Enron connections." One question that seems certain to arise in an Owen hearing is something like: "Justice Owen, please explain how a judge who is not blind to appearances of impropriety would take $8,600 from Enron’s PAC and executives–including $1,000 from Ken Lay–and then NOT recuse herself from a $224,989 ruling in Enron’s favor?"

That is a very good question, but one I seriously doubt will be answered--if asked--in the debate on the Senate floor. Part of the answer is that Texas law does not require recusal in such cases, but that does not in any way reduce the impropriety. Also, see pp. 19-20 of the Alliance for Justice report for other ethically questionable actions by Owen.

The Alliance for Justice report (pp. 15-19) also discusses Owen's rulings and opinions in environmental and abortion rights cases. According to the report (p. 19),

Former staffers on the court have said of Owen’s opposition to the right to choose: “Abortion is her one guiding moral issue”; “Those cases are really personal issues for her”; “She’d be very dangerous on the Fifth Circuit in terms of abortion…. She’s going to go a certain way regardless of facts or law”; and “Some judges I know are pro-life and follow the law… put personal opinions aside… Owen isn’t capable of doing that.”

Indeed, Owen is not capable of doing that in any type of case--and that is the worst possible kind of jurist, regardless of whether that judge is liberal or conservative.

Further evidence of Owen's bias and disregard for the law (which makes her a big time activist judge, by the way) is seen in a report from Texas Court Watch entitled "Texas Supreme Court Justice Priscilla Owen--No Friend to Consumers."

Moreover, her work habits are poor. From the Alliance for Justice report (p. 21):

Other factors raise questions about Justice Owen’s fitness for a lifetime appointment on the federal appellate bench. She is a notoriously slow judge whose backlog routinely holds up the court. Former clerks allege that her backlog was so problematic that the Court enacted one or more administrative rules as remedies. Several clerks recall times when Owen was so far behind that other justices ordered opinions to be taken from her chambers.

(footnotes omitted).

There is so much more evidence of Owen's abysmal record as a judge. Still, the foregoing shows that she is biased, ignores the law and the facts when it suits her interests (which are the interests of big business, insurance companies, and government), allows her own personal feelings to determine her rulings, is ethically challenged, and does not do her work in a timely manner. In other words, she is a result-oriented political hack. This means that no matter what the facts are, no matter what the law is, no matter how clear that law might be, no matter how well-established the law might be, Owen is going to decide what result she wants and then manipulate and mangle the law and facts to justify her predetermined outcome. That is the antithesis of how a judge is supposed to operate, and it is dangerous. And that is true of any judge, liberal as well as conservative.

Owen is not up to the standards of the Fifth Circuit.

As I said above, in spite of the facts that the Fifth Circuit is probably the most conservative court in the nation and that I disagree with some of their opinions, I consider the Fifth Circuit to be a good court because it has "consistency, fairness, and efficiency." Allow me to explain. In my experience, the Fifth Circuit is definitely consistent. The Court as a whole generally takes a narrow, conservative interpretation of the law, and it does so almost all the time. The Court meticulously adheres to precedent, especially its own. Yet, the Court is willing to re-examine it's rulings, and it does analyze each case based on its unique facts. Moreover, the Court generally does make an effort to fully explain its decisions, particularly if a decision varies in some way from precedent. I have found that the Fifth Circuit allows a party to be heard and gives a ruling on a party's claims, even if that ruling sometimes is "You're wrong, now sit down and shut up." Also, the Fifth Circuit is an efficiently run Court. Cases do not just languish there indefinitely.

Priscilla Owen does not have any of the characteristics discussed above. Oh wait--she is consistent in that she pursues her own agenda and disregards the law and facts, but as stated, that is not what the Fifth Circuit does. Owen is not up to quality of the judges currently on the Fifth Circuit Court of Appeals.

Moreover, there is another area in which Owen has ZERO experience, and that is criminal law. As shown above, she did no criminal law in her private prcatice. Also, the Texas Supreme Court hears only civil cases. The highest court in the state for criminal appeals is the Court of Criminal Appeals. The Fifth Circuit has to address plenty of criminal cases.

Part of what drives me crazy is that there are other Republican judges that are far more qualified for the Fifth Circuit than Owen, yet Bush is just dead set determined to get that hack on the Court. I will give four federal judges in Dallas as examples. The first is Sidney Fitzwater. He is a staunch conservative who emphasizes following the letter of the law. He was a state district judge before going to the federal bench in 1986. Judge Fitzwater is also very consistent and fair in his treatment of parties and cases. Another example is David Godbey. Judge Godbey was a professor of mine at SMU. From 1995-2002 he served as a state district judge, and then he was appointed to the federal bench by George W. Bush. He is extremely intelligent, and he is just a good guy on top of that. And if you are looking for a female judge, look no further than Jane Boyle. Judge Boyle has extensive experience as a prosecutor at both the state and federal level, and for twelve years she served as a Magistrate Judge in the Northern District of Texas before being appointed to the bench by George W. Bush. Magistrate Judges rule on many issues in the federal court system. Without them, the federal system would grind to a halt. I appeared before Judge Boyle several times when she was a Magistrate Judge, and I was always impressed with her intellect and ability to handle cases. She would be an excellent choice for the Fifth Circuit. Are you concerned with ethnic diversity? Then consider Jorge Solis. Judge Solis has extensive experience as a prosecutor, served as a state district judge, and has been on the federal bench since 1991. I have also appeared before Judge Solis, and he is a sincere, fair, and diligent judge. Of all the objections I have seen raised against Owen, I do not see how any of them could be applied to Judges Fitzwater, Godbey, Boyle, or Solis. In other words, any of them would likely breeze through the confirmation process, especially since they have all been through it before.

And yet Bush resubmitted Owen's nomination, and that indicates a major problem in my view.

This is not just about getting good judges appointed.

Bush is not concerned about getting good judges appointed. If he was, he would select nominees such as the four judges I described above. Not only would they make excellent appellate judges, they would be confirmed quickly. From a logistical standpoint, Bush's choice of nominees makes little sense. For federal appellate court appointments, it makes far more sense to choose federal district judges for at least two reasons: 1) they have experience in the federal stsytem and in applying federal law (and believe me, that is different from state law systems), and 2) they have already passed the confirmation process before. Instead, Bush has chosen judges such as Owen and Janice Rogers Brown, who are state court judges who have controversial and extreme views.

So why is Bush insisting on getting Priscilla Owen on the Fifth Circuit? One answer is that Bush wants someone who he can absolutely control, especially on the issue of abortion. However, that is not the whole picture. One judge on a Court of Appeals is not going to make that much difference. Even if the most left-wing, wild-eyed radical got appointed to the Fifth Circuit, the Fifth Circuit would still be the most conservative court in the nation. Moreover, the federal appellate courts do not determine national law. That's what the U.S. Supreme Court does, and therein lies the rest of the answer.

I guarantee that if Owen gets confirmed to the Fifth Circuit, and a place on the Supreme Court opens up while Bush is still in office, Priscilla Owen will be nominated for that position (unless Rehnquist retires, in which case Scalia will precede Owen). I believe that Bush is not interested in long term plans the way Reagan was when he got to appoint the majority of the federal judiciary. Bush wants big changes, and he wants them now. The only way he can do that in terms of the judiciary is to appoint extremist, highly activist judges to appellate positions. That's why Priscilla Owen's nomination was resubmitted.

Mark my words, America. This is a dangerous situation which needs to be avoided, and such avoidance must start with the rejection of Priscilla Owen.

Newsweek--what were you thinking?

Here's a quick recap of events: Newsweek published an item in the "Periscope" section of the May 9, 2005, issue stating that there had been incidents of desecration of the Qur'an by guards at Guantanomo Bay, and such incidents included flushing the holy book down the toilet. That report caused outrage in many places, especially Afghanistan, where anti-American protests turned violent, resulting in 15 deaths. Then, over this past weekend, Newsweek said, "Oops...we might have gotten the facts wrong."

In this week's issue (dated May 23), Newsweek gives its explanation for the error--twice. First, Mark Whitaker, Newsweek's editor, has a column in which he says, "I think it's important for the public to know exactly what we reported, why, and how subsequent events unfolded." There is also an article in the magazine, "How a Fire Broke Out," which gives a more detailed explanation than Whitaker's column. Basically, here is Newsweek's side of the story:

1. There had been similar media reports months earlier. From the Newsweek article: "As early as last spring and summer, similar reports from released detainees started surfacing in British and Russian news reports, and in the Arab news agency Al-Jazeera; claims by other released detainees have been covered in other media since then." Whitaker added that "Although other major news organizations had aired charges of Qur'an desecration based only on the testimony of detainees, we believed our story was newsworthy because a U.S. official said government investigators turned up this evidence."
2. Word was that the Southern Command (which is in charge of Guantanomo) was investigating reports of prisoner abuse and was about to complete its report. Newsweek reporter Michael Isikoff contacted the abovementioned official about the upcoming report, who told Isikoff of the Qur'an desecration, including the toilet allegation.
3. According to the article, Newsweek "provided a draft of the NEWSWEEK PERISCOPE item to a senior Defense official, asking, 'Is this accurate or not?'" That official corrected one item not related to the desecration allegations, about which he said nothing.

So Newsweek decided to print the desecration allegations.

Let's just assume for the sake of argument that all of the above is true and that Newsweek properly followed acceptable journalistic standards. That still does not justify the printing of the item.

"How a Fire Broke Out" states three reasons why Newsweek should have taken more care--and time--before publishing the allegations. First, "obviously the reports of Qur'anic desecration touch a particular nerve in the Islamic world." Duh. This should have been bloody obvious. Just look at the millions of people here who got so completely bent out of shape over the removal--not desecration--of a Ten Commandments monument. Moreover, if Newsweek had waited a short time, perhaps it would have discovered "before the fact" the following:

But to Muslims, defacing the Holy Book is especially heinous. "We can understand torturing prisoners, no matter how repulsive," says computer teacher Muhammad Archad, interviewed last week by NEWSWEEK in Peshawar, Pakistan, where one of last week's protests took place. "But insulting the Qur'an is like deliberately torturing all Muslims. This we cannot tolerate."

The second reason why Newsweek should have waited is that "the NEWSWEEK report arrived at a particularly delicate moment in Afghan politics. Opponents of the Karzai government, including remnants of the deposed Taliban regime, have been looking for ways to exploit public discontent." Could Newsweek perhaps waited just a little while to publish the allegations to see if the "delicate moment" might become less delicate?

And that brings me to my biggest criticism of Newsweek. What was the rush? Why did these allegations have to be published now? I really do not know, and it seems to me that the obvious potential for causing unrest really called for some discretion in this instance. Compare this to another media faux pas--Rathergate. Listen, I think the record is clear that Bush took the easy way out to avoid Vietnam, and then he used Daddy's influence to even take the easy way out of his National Guard service, but there is absolutely no excuse for CBS airing the story it ran on "60 Minutes." Even so, one can see the relevance of timing. The election was right around the corner, so there was a time pressure to air a story which related to the election. However, I see no such circumstance regarding the Newsweek allegations.

The need to taking more care and time is clearly shown by the third reason conceded in "How a Fire Broke Out," namely that

Isikoff spoke to his original source, the senior government official, who said that he clearly recalled reading investigative reports about mishandling the Qur'an, including a toilet incident. But the official, still speaking anonymously, could no longer be sure that these concerns had surfaced in the SouthCom report.

In other words, it turns out that there might be a problem with the source.

Whitaker is quoted in today's Washington Post as saying "I suppose you could say we should have foreseen the consequences of the report, but we didn't." I am not sure about "should," but I believe that Newsweek certainly could have foreseen the consequences of the report. It bothers me that apparently no effort was made to do that.

Another thing that bothers me is that this gaffe by Newsweek will make it even more difficult to counter the winger-biased media (including but certainly not limited to O'Reilly, Limbaugh, Hannity, the Washington Times, etc.). And for those of you who think the winger media does not make mistakes and spout bullshit, go check Media Matters for plenty of examples. High profile mistakes such as this one damage credibility and supply a level of credence to claims of "the liberal media." What's more, mistakes like this and Rathergate could have been avoided. Thanks a lot, Newsweek.

UPDATE: Newsweek has this afternoon announced that it will retract its story.

UPDATE 2: Kevin Drum has some good observations about this situation over at Political Animal. One of his points is that the riots and deaths are not Newsweek's fault. I am not trying to blame the riots on Newsweek, but I stand by the rest of my criticisms, especially the concluding paragraph.

An explanation for the Iraq war is perhaps itself now explained.

Overview

When I first heard David Brook's comments as described in the previous post, I did not notice something that really jumped out at me as I was transcribing those comments. Brooks noted that the event on May 12 in honor of The Bug Man was sponsored by what he termed "the old right," the real conservatives, who "are not the Bush administration." Brooks was asked how the "old right" differs ideologically from the Bush administration, and his answer began with the following:

They certainly do not believe in promoting democracy abroad. They do not believe in using armed services abroad. Tom DeLay was violently against using armed forces under Clinton in Bosnia and the Balkans.

Recall that according to Wolfowitless, the Bush administration decided to use WMD as the reason for the war because that was "the one issue that everyone could agree on[.]" That never made any sense to me, for reasons explained below. However, now it is starting to make sense. It seems to me that the explanation of WMD was not need as much to gain the support of the American public as to gain the support of Republicans in Congress.

Why Wolfowitless's explanation did not make sense

Before the war, I saw three possible reasons that could be given for it: 1) WMD; 2) the war on terrorism; and 3) free the Iraqi people from Saddam's tyranny. I was somwhat dismayed to later find out that I was in agreement with Wolfowitless on something. He said in his Vanity Fair interview that "[T]here have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people."

Of these three reasons, I always thought the weakest was WMD. Before the war, there was plenty of evidence that Iraq did not have WMD. More such evidence was being found as the U.N. inspections went forward. As a result, the administration could never successfully sell WMD as a basis for the war to the entire country, much less the entire world. The same largely holds true for a war on Iraq being a necessary part of the war on terror ( this is definitely a long story, but suffice it to say that the "evidence" presented for this reason was mostly crap). Even so, the "war on terror" reason seemed more plausible and defensible. Moreover, with any argument, the objective is not so much to convince people of your position as to discredit your opponent and keep others from accepting his position. Of course, this was attempted through the perjorative use of "freedom hater, "terrorist lover," etc., but with so much evidence to the contrary, that attempt was not as effective as it would have been with a different reason.

Which brings us to the remaing reason given by Wolfowitless and me: free the Iraqi people from the tyranny and criminal treatment of Saddam. There was an abundance of irrefutable evidence of such action by Saddam. And how could anyone argue against such a reason for going to war? Why, to argue against freeing an oppressed people is not only inhumane, it's downright un-American. After all, this is "the land of the free, and the home of the brave." See how much easier it would have been to discredit the opposition? For these reasons, it always seemed to me that far and away the best argument to use to justify the war was freeing the Iraqi people. And yet, the Bush administration decided upon the weakest explanation of all. I could never come up with an understanding of why until now.

But first, let's look at the progression of public explanations for the war...

From WMD to the real reason for the war

As I have noted elsewhere in this blog (especially in Iraq and WMD: Quick, go back and check the spider hole!), the Bush administration stressed over and over that we just had to invade Iraq to disarm Saddam and remove the threat to our nation. And then the Bushies tied WMD to terrorists. And when those reasons were not exactly panning out, Bush his own self started talking about another reason for the war. The first mention by Bush of the "liberation" reason that I have found took place on February 26, 2003, in a speech Bush gave to the American Enterprise Institute, where he said

The first to benefit from a free Iraq would be the Iraqi people, themselves. Today they live in scarcity and fear, under a dictator who has brought them nothing but war, and misery, and torture. Their lives and their freedom matter little to Saddam Hussein -- but Iraqi lives and freedom matter greatly to us.

Bush also spoke of liberation in his radio address of March 1, 2003:

The lives and freedom of the Iraqi people matter little to Saddam Hussein, but they matter greatly to us.

*******

It will be difficult to help freedom take hold in a country that has known three decades of dictatorship, secret police, internal divisions, and war.

In a televised speech on March 17, 2003 (the "Saddam has 48 hours to leave" speech), Bush said the following:

Many Iraqis can hear me tonight in a translated radio broadcast, and I have a message for them. If we must begin a military campaign, it will be directed against the lawless men who rule your country and not against you. As our coalition takes away their power, we will deliver the food and medicine you need. We will tear down the apparatus of terror and we will help you to build a new Iraq that is prosperous and free. In a free Iraq, there will be no more wars of aggression against your neighbors, no more poison factories, no more executions of dissidents, no more torture chambers and rape rooms. The tyrant will soon be gone. The day of your liberation is near.

(emphasis added). The night the war started (March 19, 2003), Bush's address to the nation contained more "liberation" language:

My fellow citizens, at this hour, American and coalition forces are in the early stages of military operations to disarm Iraq, to free its people and to defend the world from grave danger.

To all the men and women of the United States Armed Forces now in the Middle East, the peace of a troubled world and the hopes of an oppressed people now depend on you. That trust is well placed.

The enemies you confront will come to know your skill and bravery. The people you liberate will witness the honorable and decent spirit of the American military.

*******

We come to Iraq with respect for its citizens, for their great civilization and for the religious faiths they practice. We have no ambition in Iraq, except to remove a threat and restore control of that country to its own people.

*******

We will bring freedom to others and we will prevail.

(emphasis added). Beside the fact that this noble reason for the war was never discussed until three weeks before the war started, "liberation" still was not the real reason for the war. Bush hinted at the real reason in these same speeches.

And the real reason is...

I hate to disappoint some folks, but I do not think oil was the real reason for the war. I am not saying that oil was not a major consideration, but getting control of oil--and other objectives-- would flow naturally (pun intended) not only from Iraq but potentially from other sources if the real reason for the war worked out.

So what were the hints given by Bush? In his February 26, 2003, speech he said, "A liberated Iraq can show the power of freedom to transform that vital region, by bringing hope and progress into the lives of millions. " (emphasis added). In his March 1, 2003, radio address, he said, "We also stand for the advance of freedom and opportunity and hope." And here's the final clue, from Bush's March 17, 2003, speech:

And when the dictator has departed, they can set an example to all the Middle East of a vital and peaceful and self-governing nation.

The United States, with other countries, will work to advance liberty and peace in that region. Our goal will not be achieved overnight, but it can come over time.

And the real reason is...spread democracy in the Middle East.

Don't believe me? Well, check out "After Iraq," an article by Nicholas Lemann in the February 17, 2003, issue of The New Yorker. I remember hearing a news report about three weeks before the war in which someone said that the people calling the shots (that means the Department of Defense) truly believed that getting rid of Saddam via force would cause democracy to spread throughout the Middle East. My reaction was that these people were truly delusional. I mean around the bend, over the edge in-freaking-sane. I simply did not believe that that could possibly be the reason for going to war.

And now Wolfowitless's reason makes sense.

Look again at what Brooks said about the differences between the "old right" (including DeLay) and the Bush administration. Bush needed the support of the full conservative movement for the war, and the "old right" does not believe in using the military to spread democracy abroad. Also, Bush needed the support of Congress in order to get some sort of approval for war. As I mentioned in Bush and The Bug Man, DeLay controls the House. Without his support, Bush might not have received such overwhelming support from the House. And if the stated reason for the war had been spreading democracy, DeLay might not have been on board (given his vehement opposition to sending troops to Bosnia and the Balkans). So, the reason why WMD was the overwhelming reason given for the war was to make sure that Congress and all of the conservative movement would support the war. And yet we were all told something different. More to the point, we were never really told the true reason.

Gee, what a surprise.

Bush and The Bug Man revisited

In Bush and The Bug Man, I discussed the less-than-perfect relationship between The Bug Man and good ol' George. And yesterday, I heard something that provides further insight into their relationship. Every Friday, NPR's "All Things Considered" has a segment discussing political activities of the week. The guests are usually David Brooks of the New York Times and E.J. Dionne of the Washington Post. The May 13, 2005, segment was hosted by Robert Siegel, and the discussion eventually turned to Tom DeLay and the Bug Man lovefest held on May 12.

Siegel: Tom DeLay, House Majority Leader, was feted last night by conservatives in Washington. A lot of them came, a lot of Republican members of Congress didn’t. Is this the twilight of the age of DeLay?

Brooks: I think it is part of the long slow twilight. He’ll fight and there is some loyalty to him. What struck me about the dinner is there are many different factions in the Republican party and the conservative movement. The people who feted him were the American Conservative Union, people like Paul Weyrich. This is very much the old right, and they are not the Bush administration.

Siegel: How are they different politically, though? What are the ideas that are big among this group that wouldn’t be big among today’s pro-Bush conservatives?


Brooks: They certainly do not believe in promoting democracy abroad. They do not believe in using armed services abroad. Tom DeLay was violently against using armed forces under Clinton in Bosnia and the Balkans. They also do not believe in passionate conservatism, which they call “big government conservatism.” They believe in cutting agencies, eliminating the Department of Education, eliminating the Commerce Department, really shrinking the size of government by say 25% they would say. This is all very different from what George Bush has tried to do.

And as I have said before, Brooks is no leftie liberal. His conservative Republican credentials are well established. His comments further show the potential for conflict between Bush and The Bug Man. DeLay is supported primarily by the old-time, true-blue conservatives, and Bush's actions and policies are in some ways the opposite of what those real conservatives want. It will be interesting to see if the true conservatives try to use DeLay as a means to get Bush to follow their agenda.