Priscilla Owen had a hearing yesterday but she may never make it past the full Senate if Democrats decide to filibuster her.

In addition to reasons we have provided for opposing Owen, here are some others:

Senator Patrick Leahy (D-VT):

In examining Justice Owen’s record in preparation for her first hearing and, now again, in preparation for today, I remain convinced that her record shows that in case after case involving a variety of legal issues, she is a judicial activist, willing to make law from the bench rather than follow the language and intent of the legislature. Her record of activism shows she is willing to adapt the law to her results-oriented ideological agenda.

Is That Legal has a long and informative post about prior Congressional attempts to subpoena federal Judge's sentencing records. Yesterday the House Judiciary Committee said it was considering subpoenaing such records for the Chief Judge from Minnesota, James Rosenbaum.

Rosenbaum's lawyer called the threat unprecedented, but Eric Muller says that's not so.

Don't miss The Power of the Fourth in Sunday's New York Times Magazine about how one court, the Fourth Circuit Court of Appeals, is moving the country rightward. Two of its judges, J. Harvie Wilkerson, III and J. Michael Luttig, are both mentioned frequently as possible nominees for the Supreme Court.

Bush's most recent appointee to the Fourth Circuit is Dennis Shed, a former chief of staff to Strom Thurmond. His pending nominee is Terrence Boyle, a former Helms aide unsuccessfully nominated by George Bush, Sr. more than 10 years ago.

Although the Fourth Circuit has the largest African-American population of any appellate jurisdiction in the country, the court did not become ethnically or racially integrated until 2001, and was the last circuit to do so.

This is a long article, but well worth reading because it shows the jeopardy befalling our judiciary on a national scale. The independence of the judicial branch in America is under attack as never before.

Legal scholars talk about the pendulum swinging from liberal to conservative, from a preoccupation with individuals' rights to a preoccupation with states' rights, and suggest that, in time, it will swing back once more. It would certainly help many Americans sustain their faith in the system if the courts could find their equilibrium, if they could become less ideological, less predictable and less political. That doesn't appear to be on the horizon, though, not in the foreseeable future. In the historic site in Richmond where the Confederacy once thrived, the United States Court of Appeals for the Fourth Circuit is ushering in the 21st century.

Remember that federal judges serve for life. Every right-wing judge that Bush appoints is likely to stay on the bench for 20 to 30 years. What will happen to our consitutional liberties? Will they be there for your children? If you're concerned about this, bookmark People for the American Way and the American Civil Liberties Union. Read their reports on the nominees and write or fax (rather than e-mail) your Senators when hearings come up. Let them know you oppose any Bush nominees you find to be extremist and likely to be a judicial activist. And vote Bush out of office in 2004--no matter which Democrat runs against him. Please help preserve the independence and integrity of the judiciary for our children.

The New York Times gets it right today in Fairness Strikes Out

That the punishment must fit the crime is an elemental rule of justice and a core principle of the Constitution. With its decision this week, the court turned its back on this principle, and on two men whose sentences are a clear miscarriage of justice.

Here is an article by criminal defense attorney and appellate lawyer Jeffrey Friedman of California with information regarding the inequities and vagaries of the law and the inconsistent and illogical results it can produce. (Scrioll down to page 2 of the pdf. document.) Mr. Friedman also tells us via e-mail that with respect to Mr. Andrade's "9 prior violent felonies,"

"residential burglary is a qualifying "strike. You can pick up more than one "strike" on one occasion. And there is no "wash out" period on strikes. So, if a teenager burgled two of his neighbors' garages and stole bicycles and then gets busted for shoplifting at age 50, he could get 25 to life. More examples like that abound."

Mr. Friedman, who practices in Santa Ana, ends his e-mail with this thought: "Obviously, we all know too well the bottom line - until all Reagan and Bush judges have retired (except their "mistake" - Souter), we're going to see more and more abominations like this one. And the problem is you and I will have retired (hopefully) before the last of them are gone."

As we have said repeatedly, the battle over judicial nominations is one with repurcussions well into our childrens' adulthoods. If you care about freedom, justice and fairness for all, we urge you to get involved in opposing Bush's ultra-conservative judicial picks--and in efforts to vote him and the Conservatives out of office in 2004.

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Howard Bashman of How Appealing reports that he has reliable information that Bush Judicial Nominee Priscilla Owen will be back in D.C. next week for confirmation hearings. Bush nominated her for the 5th Circuit Court of Appeals. Due to strenous objections to her extreme conservatism, and amidst charges of judicial activism, she lost her chance for a full senate hearing by an adverse 10-9 vote of the Senate Judiciary Committee.

We have objected very strongly to Priscilla Owen. Unlike Miguel Estrada, we all know where she stands and how's she's ruled, and in our opinion, she should not be a federal appellate judge. For why, please read our posts here and here, and this PFAW report.

The re-cycling of Committee-rejected judicial nominees is wrong. Our advice: Don't get burnt out over Estrada. There are more and worse on Bush's list. This fight is going to go on until he's out of power. Pace yourselves accordingly.

Great news from People For the American Way:

Refusing to cave in to intense pressure from the White House and Republican leaders, Democratic senators rejected an effort to force a vote on the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Estrada has refused to answer many questions about his approach to the Constitution and the White House has refused to release documents that would allow senators to more fully evaluate his fitness for a federal judgeship.

Don't let Bush pack our federal courts with right-wing ideologues. Keep letting your senators know you want them to keep up the fight.

Sometimes students cut right to the quick of things. That's what we think about Nick Huggler, and his commentary in the Oregon State Daily Barometer, titled Justice should be blind, not a mystery:

Republicans love Estrada. They go nuts for Estrada. If there were a new state brought into the Union, perhaps Costa Rica, Senate Republicans might consider naming it Estrada. Miguel Estrada is the poster child for the Republican outreach to the Latino community....

The courts are not an idle political tool where the risk of a mystery justice can be taken. Courts are more and more actively coming to bear on environmental policy, the right to privacy, a woman's right to choice, the detainment of suspected terrorists and the guidelines of speech and democracy that guide this nation and protect its hold on freedom. It is important to know where an appointed justice will stand, regardless of what side of the aisle he played on before he was brought to the bench.

It is unconscionable that the administration would resist the requests of the senators. Judicial nominations are not the place for politics to be played, but are instead the place for full disclosure and an open discussion -- as we are hiring justices for life. Miguel Estrada should be the first to ask the White House to turn over his memos, and he should answer all of the questions posed to him.

In these times of tension, this is the first of many chances given to show some real cooperation in Washington and to do the government's business as it should be done -- with an eye on a better future and the chance to make the country better each day.

[link via How Appealing]

We were wondering when someone would get around to noticing Clarence Thomas's Cruel View of Prisoners. Derrick Z. Jackson, columnist for the Boston Globe just did.

Eight members of the Supreme Court this week agreed in Miller-El v. Cockrell ruled that a death row inmate should get a hearing on whether the prosecution's exclusion of 10 of 11 blacks from his jury deprived him of a fair trial by a jury of his peers. The lone dissent was Clarence Thomas.

The Los Angeles Times reported on the decision:

"The culture of the district attorney's office [in Dallas] in the past was suffused with bias against African Americans," said Justice Anthony M. Kennedy. Moreover, "happenstance" cannot explain why more than nine out of 10 eligible black jurors were turned away by the prosecutor, he added.

"We question the dismissive and strained interpretation" that allowed judges to explain away this evidence, he said....

In Miller-El's case, defense lawyers cited a 1963 manual that told Dallas prosecutors to exclude certain people from juries whenever possible. "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated," the manual advised.

Though versions of this manual were used into the mid-1970s, judges in Texas refused to believe race bias was behind the exclusion of most blacks from Miller-El's jury....

Justice Kennedy said that the prosecutors in Miller-El's case questioned blacks and whites differently. "Disparate questioning did occur," Kennedy wrote, and that alone is "evidence of purposeful discrimination" that calls for reopening the case.

In a nutshell, a black man is tried for capital murder, the prosecutor excludes 10 of 11 blacks from the jury, eight white members of the nation's highest court are disturbed enough about the effect of the exclusion to order the court below to give him a hearing on the issue, and the one black man on the High Court disagrees. Justice Thurgood Marshall must be turning over in his grave. But Derrick Jackson is right--Clarence Thomas has a history of cruel rulings:

Last year Thomas was one of three dissenters, with Rehnquist and Scalia, in the 6-3 decision that found that executing the mentally retarded was ''cruel and unusual punishment.'' Also last year, Thomas dissented from a 6-3 decision to ban the practice in Alabama of chaining prisoners to outdoor ''hitching posts'' and abandoning them for hours without food, water, or a chance to use the bathroom. While the majority also called that ''cruel and unusual,'' Thomas said the hitching post served ''a legitimate penological purpose,'' encouraging a prisoner's ''compliance with prison rules while out on work duty.'' Now, once again, Thomas has struck a blow that makes one wonder figuratively who beat him up in some long forgotten alleyway of his life. Once again he has issued a dissent that makes him a better fit for Saddam Hussein than the Constitution. Bush says Hussein delivers nothing but war, misery, and torture. If Clarence the Cruel truly had his way in his private war, there is no telling how much more misery and torture would go unseen and unheard in the courtrooms and the prison hallways of America.

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Iowa Senator Tom Harkin has put a hold on the confirmation of Jeffrey Sutton to the Sixth Circuit Court of Appeals. From ADA Watch:

Great News! Sen. Tom Harkin has put a "hold" on Sutton to give us more time and will be our champion on the Senate floor to help stop Sutton. Our problem is that Senators are still not hearing from enough of their consitituents.

NATIONAL CALL-IN DAY THURSDAY, FEB. 27
Call YOUR senators toll-free 1-888/508-2974

ADA Watch, a project of the national Coalition for Disability Rights, has joined forces with hundreds of national, state, and local groups to oppose the nomination of Jeffrey Sutton to a lifetime appointment on the Federal Circuit Court of Appeals.

ADA Watch needs you to call your senators and urge them to stand up against the efforts to continue the radical right's 20-year campaign to stack the federal courts with conservative ideologues.

Specifically, we need you to tell your senators to block confirmation of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit several important: Jeffrey Sutton is a leading activist in efforts to curtail Congress' historic role to enact legislation that protects individuals' civil rights, and provide equal opportunity for all Americans. As a leader in the so-called "states rights" movement, Mr. Sutton has personally argued key U.S. Supreme Court cases that, by narrow 5-4 majorities, have undermined Congress' ability to protect Americans against discrimination based on race, age, disability, and religion. For example, over the past several years, Mr. Sutton has been involved in a targeted effort to challenge and weaken the Americans with Disabilities Act (ADA), landmark legislation enacted by a bipartisan Congress and signed into law by then-President George H.W. Bush. Sutton also filed a brief in Olmstead in which he argued that the unnecessary institutionalization of people with disabilities is not unconstitutional.

The Senate must take seriously its "advise and consent" role on federal judicial nominations. Please urge Senators to vote "No" on Sutton.

ACTION: Using a national toll-free call in number, you will be able to call YOUR senators toll-free (1-888/508-2974) on Thursday, Feb. 27 and urge them to oppose efforts to stack the federal courts with Jeffrey Sutton and other ideologues. Tell senators that they must not act as a "rubber stamp" on President Bush's judicial nominees, and must not confirm nominees who refuse to answer questions, and whose records indicate hostility to important equal opportunity principles guaranteed to protecting the rights of all Americans.

The ADA Watch/National Coalition for Disability Rights, California Foundation for Independent Living Centers and Committee for Judicial Independence say it's still not too late to stop Jeffrey Sutton from being confirmed as a Judge on the 6th Circuit court of appeals.

The three groups are co-sponsoring a protest rally at noon tomorrow to tell Sen. Diane Feinstein to vote against Sutton on the floor of the Senate, even though she was the lone Democrat voting for him in Committee. Here are the locations:

San Francisco: One Post Street, Suite 2450
Fresno: 1130 "O" Street, Suite 2446
LA: 11111 Santa Monica Boulevard, Ste 915
San Diego: 750 "B" Street, Suite 1030

If you can't attend, they ask you to call Feinstein's office.

San Francisco Office: Phone: (415) 393-0707
Los Angeles Office: Phone: (310) 914-7300
San Diego Office: Phone: (619) 231-9712
Fresno Office: Phone: (559) 485-7430

Here's the ADA Watch's action alert on the protest:

On Feb. 13, the Senate Judiciary Committee approved sending the nomination of Jeffrey Sutton (11-8) to the full Senate for consideration. Sen. Feinstein was the only Democrat who voted for Sutton. We must encourage grassroots in CA and around the country to contact Senator Feinstein and express their disappointment. In addition, our friends in the disability community are planning sit-ins in her California offices on Thursday, February 20th at 12 Noon. We are also encouraging scheduled meetings to inform staff of our position and phone calls and Faxes to express our concerns.

CALL SENATOR FEINSTEIN IMMEDIATELY TO PROTEST HER SUPPORT OF JEFFREY SUTTON. TELL HER YOU WANT HER TO VOTE AGAINST SUTTON ON THE SENATE FLOOR!

We are deeply disappointed that Senator Dianne Feinstein was the only Democrat on the Senate Judiciary Committee to vote in favor of Jeffrey Sutton, an extreme right wing ideologue with a record hostile to disability rights, who has been nominated to the 6th Circuit US Court of Appeals. Sutton is the states' rights ideologue who has aggressively fought against the Americans with Disabilities Act, Olmstead, Age Discrimination protections, the rights of Medicaid recipients to sue for services, and many other civil rights protections.

Update: See Senator Patrick Leahy's Statement to the Senate explaining why he opposes Sutton's confirmation.

In an editorial today, the Austin Statesman calls for the elimination of the Texas Court of Criminal Appeals. This is the court of last resort in Texas in criminal cases, including death penalty appeals.

The link to the editorial is good today only, so read it now while you still can.

California is questioning a federal judge's ability to be impartial in death penalty cases--a judge whose record demonstrates his solid support for the death penalty. Here's the background:

The scene was a packed auditorium at UC Santa Barbara; the time, late last month. Two prominent legal figures were debating the death penalty.

Defense attorney Gerry Spence turned to federal appeals court Judge Alex Kozinski, an outspoken supporter of capital punishment, and accused the judge of being detached from the reality of death row.

I would urge his honor to go to a prison and see" how condemned inmates live, Spence said.

Kozinski did not respond to Spence's remark. The truth would have been far too complicated to reveal in a debate. Four months earlier, Kozinski had done just what Spence was demanding. After an on-and-off correspondence stretching over five years, he had visited an inmate at San Quentin, a man named Michael W. Hunter, a murderer and a fellow writer....

As a result, the 52-year-old judge -- a Reagan appointee and a leading conservative on the federal bench -- is now the subject of an investigation by the California attorney general's office.

Prosecutors have written to Mary M. Schroeder, the chief judge of the U.S. 9th Circuit Court of Appeals, on which Kozinski sits, questioning whether he "can continue to be a fair and impartial member of any 9th Circuit panel, now or in the future, deciding California capital cases."

Legal scholars say there is no precedent for the demand.

"In the history of the federal courts, they say, they know of no occasion when a federal appellate judge has been disqualified from hearing an entire category of cases even on a temporary basis."

Kozinski thus far has refused to answer the letter. Good for him. We think the investigation is baseless.

"I certainly don't think it will affect my judgment" on other capital cases, Kozinski said about his meeting with Hunter. The attorney general's actions, said Kozinski, are "crazy." In his 17 years as an appellate judge, 49 men have been executed in the seven states overseen by the 9th Circuit which have death rows; 10 executions were in California. Kozinski has not voted to block a single one.

The article details Kozinski's very interesting background, his politics and his judicial rulings. With the budget deficit in California being as high as it is, we think Attorney General Lockyear could find better uses for the state's limited resources than investigating Judge Kozinski.

For those not familiar with the Volokh Conspiracy, UCLA Law Prof. Eugene Volokh clerked for Judge Kozinski (before going on to clerk for Justice Sandra Day O'Connor.) We hope Eugene will post a response to the article.

Update: Eugene Volokh emails to say he agrees with us, is writing an op-ed on the matter, and in the meantime, has blogged a few thoughts here.