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May 10, 2005
Owen Will Bust The Filibuster (Or Will She?)

The Washington Times reports today that Frist has decided to pull the trigger on the Byrd option using Priscilla Owen's nomination as the catalyst. Owen gives Frist the widest possible support at the moment, as well as being one of the two nominees who have waited the longest for confirmation:

Senate Majority Leader Bill Frist plans for Texas Supreme Court Justice Priscilla Owen to be the judicial nomination on which he uses the "nuclear option" against Democratic filibusters later this month, according to Republicans familiar with his plans.

Justice Owen, first nominated to the 5th U.S. Circuit Court of Appeals four years ago yesterday, has often been seen as the most likely nominee to be pushed though. And when Mr. Frist, Tennessee Republican, made his final offer to Democrats last month to avoid a showdown, he mentioned only one nominee: Justice Owen. ...

She has impeccable academic credentials, received the highest rating from the American Bar Association and is supported by both Republicans and Democrats who know her. ... But most appealing, Republicans say, is that the very cases for which Justice Owen has been most strenuously attacked are rulings that are overwhelmingly popular with American voters.

Owen has been attacked for upholding laws that require parental notification for abortions involving underage girls, positions that have infuriated NARAL and other pro-abortion advocates that form the Democratic base. They have made Owen a target for supposedly operating far outside the mainstream of American thought. However, the laws that Owen upheld receive popular support from American voters, and the ongoing attacks on them have even some Democratic politicians like John Kerry and Hillary Clinton advising their party to start listening more and berating less when discussing abortion during their campaigns.

Owen may make a better choice than Janice Rogers Brown on paper, although I think that Brown makes a better choice given her life story and the nature of the attacks made on her by the Democratic caucus. However, I predict that the Democrats, once confronted by Owen, will refuse to filibuster her and give themselves more time to swing some Republican Senators to their side for a later vote on the Byrd option. Thanks to the long delay, the Democrats were able to shake a few loose this time around, and time could play on their side again. They wouldn't dare skip a filibuster on Brown now that they've spent so much time and hot air insulting her. If the Democrats refuse to filibuster Owen, then all of this momentum will dissipate harmlessly and Frist will have to rebuild it for the next nominee.

If the key for the GOP is to ensure that the Byrd Option gets invoked so that the Senate can finally start moving on appellate nominees, then Owen may be the wrong choice. A big anticlimax on filibusters may win a battle but cost them a war.

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Posted by Ed Morrissey at May 10, 2005 5:40 AM

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