Collusion Memos

Coalition for a Fair Judiciary ^ | 11/18/03

[William McKinley]

DEMOCRATS ON JUDGES

A series of Democrat memos on judicial nominations was leaked to the Wall Street Journal, where it was the subject of a November 14 editorial. The most disturbing information in the memos is highlighted in the editorial, which is attached. As one memo makes clear, for example, Democrats specifically targeted Miguel Estrada because he is Hispanic. (That memo alone would seem to give Estrada a prima facie Title VII claim.)

The source of the memos is unclear. The sheer volume of the memos, however, suggests that the memos weren't simply misplaced by someone – they appear to have been intentionally leaked by a Democrat. Also, the memos, which begin in late 2001, cut off suddenly in April 2003. This suggests that they came from a former staffer, rather than someone who recently accessed Democrats' computers. Finally, the only information blacked out in the memos is staffers' names. Whoever leaked these memos did not care about the Senators, but apparently knew the staffers and cared enough to spare them embarrassment.

It bears keeping in mind that the groups and ideology described in these memos are driving not just Judiciary Democrats, but virtually all of the Senate Democrats. With the exception of Senator Nelson of Nebraska and Senator Miller, every Democrat Senator has voted to repeatedly filibuster judicial nominees this year. Indeed, aside from these two and Senator Breaux, who supported cloture on Estrada and Pickering, Senator Nelson of Florida (Estrada) and Senator Jeffords (Pickering), every other Democrat has voted to filibuster every single nominee targeted by the groups and Judiciary Democrats. Senate Democrats have voted to filibuster judicial nominees 16 times so far this year.

Two noteworthy themes emerge in the memos:

1. The Extreme-Left Groups' Total Control over the Democrats' Actions on Judicial Nominations. The memos repeatedly make clear that a small collection of extreme-left groups – abortion groups, race organizations, and leftist groups specifically focused on judges – are driving the Democrats' agenda and decisions. These groups tell Democrats which judicial nominees to attack and vote down, when to hold hearings on which nominee, how many hearings to hold, and rules for allowing floor votes. The memos even indicate that the groups persuaded Democrats to delay nominations in order to affect pending cases. Two of the Durbin memos identify the principal groups as: National Abortion Rights Action League, Alliance for Justice, Leadership Conference on Civil Rights, People for the American Way, Association of University Women, National Women's Law Center, and National Partnership. All of these groups support abortion on demand and partial-birth abortion, oppose parental notification, and support widespread use of race in public hiring and distribution of public benefits. Passages from the memos include:

• Singling Out Estrada A June 2002 memo to Kennedy, Schumer, Durbin, and Cantwell urges delaying a hearing on Miguel Estrada in order to "give the groups time to complete their research." A November 2001 memo to Durbin also notes that the groups have "identified Miguel Estrada as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible." Later, a January 2003 memo advocates filibustering Estrada because "the Democratic base is particularly energized over this issue."

• Manipulating the Michigan Race-Preferences Case An April 2002 memo to Kennedy indicates that NAACP "would like the [Judiciary] Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit. . . . . The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, the new judge will be able . . . to review the case and vote on it." The Kennedy memo later states that the staffers "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case. We are also aware that the 6th Circuit is in dire need of judges." But the memo concludes: "Nevertheless we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important." Apparently, the NAACP got what it wanted. Gibbons is one of five judicial nominees who received a Judiciary Committee hearing on April 25, 2002. Democrats allowed the other four nominees to be voted on in the full Senate on May 9, before the Sixth Circuit decided the Michigan case. The vote on Gibbons was delayed until July 29 – well after Michigan was decided.

• Whom to Move; No Hearing for Dennis Shedd A June 2002 memo to Kennedy recommends that "the groups be encouraged to propose some specific nominees who can be moved forward before adjournment." And in relation to Fourth Circuit nominee Dennis Shedd, the memo notes that "the groups are opposed to having a hearing on him this month in part because they do not believe that they will be able to do an adequate review of his extensive record by June 27, particularly given that they are gearing up to oppose Judge Owen." The memo concludes that "you should strongly encourage the groups to work with South Carolina groups to individuals to apply pressure on Senator Hollings." (A June 2002 memo to Durbin notes that Senator Hollings "apparently is backing Shedd because the trial lawyers want him off the district bench.")

• Calculating the Vote A June 2002 memo to Durbin notes that "the groups feel that Owen is vulnerable to defeat, but Estrada and McConnell will be hard to vote down in Committee."

• No "Controversial" Nominees After 9-11; Second Hearing for Pickering An October 2001 memo to Durbin notes that the groups object to holding a hearing on Charles Pickering on the ground that "in light of the terrorist attacks, it was their understanding that no controversial judicial nominees would be moved this fall." The memo also notes – prior to the Judiciary Committee's having held any hearing on Pickering – that "the groups are asking that the Committee hold a second hearing on Pickering in a few weeks." The Democrats acceded to this request.

• Setting the Agenda Describing a forthcoming meeting with the groups, a November 2001 memo to Durbin notes that "the primary focus will be on identifying the most controversial and/ or vulnerable judicial nominees. The groups would like to postpone action on these nominees until next year, when (presumably) the public will be more tolerant of partisan dissent." A follow-on November 2001 memo to Durbin describes the results of the meeting: "the groups advocated for some procedural rules. These include: (1) only one hearing per month; (2) no more than three judges per hearing; giving Committee Democrats and the public more advance notice of scheduled nominees; (4) a commitment that nominees voted down in Committee will not get a floor vote." Also, with regard to identifying "controversial and/ or vulnerable" nominees, the memo notes that "the groups singled out three – Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline Kuhl (9th Circuit) – as a potential nominee for a contentious hearing early next year, with an eye to voting him or her down in Committee."

2. Ideological Extremism and Crass Partisanship. The memos also reveal the extreme views and attitudes and cold political calculations motivating the Democrats' actions on judges.

• The Ideological Fringe A November 2001 Durbin memo sets the tone by noting that "most of Bush's nominees are nazis." Jay Bybee, a nominee to the Ninth Circuit, gets off relatively easily: a February 2003 Kennedy memo merely describes him as "an awful nominee." Another memo, titled "Owen Talking Points for Caucus," attacks the whole Fifth Circuit, describing it as "one of the least fair and least just circuit courts." But the most abuse is directed at Miguel Estrada. Interestingly, though Judiciary Democrats argued to themselves that they should defeat Estrada because he is Hispanic and an attractive Supreme Court nominee, they told a different story to other Democrats. A document titled "Talking Points on Estrada for Caucus" states that Estrada "has serious temperament problems" – that he is not "even-tempered" and "a short fuse." (None of this came out in Estrada's committee hearing.) The "Talking Points" conclude by declaring Miguel Estrada "a stealth, right-wing zealot."

• The Triumph of Politics The fall 2002 memos repeatedly urge Democrats to delay nominees for purposes of election politics. A September 2002 Kennedy memo notes that a hearing has been proposed for Sixth Circuit nominee Deborah Cook for early October. The memo argues that it "would demoralize Democrats' key constituents – in particular, labor – to have a hearing before the election." (Cook did not receive a hearing until the next January, after Republicans took control of the committee.) The same memo expresses alarm that committee votes may be scheduled for McConnell and Estrada before the recess. It states that "we think this is a terrible idea and that voting on (and for) these nominees would be demoralizing to our base before the election." The Democrats' need to satisfy "the base" was not limited to periods before elections. A January 2003 memo describes a meeting attended by Daschle, Reid, Leahy, Durbin, Edwards, Kennedy, Feinstein, and Schumer. The memo notes that "all in attendance, including Daschle and Reid, voiced the view that the Estrada nomination should be stopped because," among other reasons, "the Democratic base is particularly energized over this issue."

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Transcribed text of one memo:

To: Senator Durbin
From: [Blacked out]
Date: November 7, 2001
Re: Meeting with Civil Rights Leaders Yesterday to Discuss Judges

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Due to the floor activity last night, you missed a meeting with Senator Kennedy and representatives of various civil rights groups. This was intended to follow up a meeting in Senator Kennedy's office in mid-October, when the groups expressed serious concern with the quick hearing for Charles Pickering and the pace of judicial nominations generally.

Yesterday's meeting accomplished two objectives. First, the groups advocated for some procedural ground rules. These include (1) only one hearing per monthl (2) no more than three judges per hearing; (3) giving Committee Democrats and the public more advance notice of scheduled nominees; (4) no recess hearings; and (5) a commitment that nominees voted down in Committee will not get a floor vote. Earlier yesterday, Senator Leahy's staff committed to the third item in principle.

Second, yesterday's meeting focused on identifying the most controversial and/or vulnerable judicial nominees, and a strategy for targeting them. The groups singled out three-- Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline Kuhl (9th Circuit) -- as a potential nominee for a contentious hearing early next year, with a eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.

Attached is a table I compiled, evaluating the 19 Court of Appeals nominees and a few of the controversial district court nominees. Based on input from the groups, I would place the appellate nominees in the categories below. Asterisks indicate that a Senator has placed a hold on the nominee.

Good	Bad	Ugly
Clifton (9th Cir.)*	Shedd (4th Cir.)	Boyle (4th Cir.)*
Melloy (8th Cir.)	Roberts (D.C. Cir)	Owen (5th Cir.)
O'Brien (10th Cir.)	L. Smith (8th Cir.)	Sutton (6th Cir.) *
Howard (1st Cir.)	Pickering (5th Cir.)	Cook (6th Cir.)*
B. Smith (3rd Cir.)	Tymkovich (10th Cir.)	McConnell (10th Cir.)
	Gibbons (6th Cir.)	Estrada (D.C. Cir.)
	Steele (11th Cir.)	Kuhl (9th Cir.)*

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Text of second memo transcribed:

To: Senator [Kennedy]
From: [Blacked out]
Subject: Judges and the Latino Community
Date: February 28, 2002

Ralph Nees called to let us know that he had lunch with Andy Stern of SEIU. Andy wants to be helpful as we move forward on judges, and he has great contacts with Latino media outlets- Univision and others. Ralph told Andy that you are anxious to develop a strategy for the Supreme Court and a strategy for dealing with conservative Latino Circuit Court nominees that are hostile to constitutional and civil rights. Ralph and Andy discussed the possibility of a relatively small meeting to discuss media strategy, and Andy believes there are several Latino media leaders who share our concerns and would like to meet with you. Ralph proposes that you meet with key Latino media leaders, Raul, Antonia, Wade, and Ralph. [Blacked out] and I think this is a very good idea.

Would you like to have such a meeting to discuss media strategy and the Latino community? If so, Ralph and Andy will take the lead in getting everyone to DC.

DECISION:

Yes, I want to meet with them _____

No, I don't want to meet _____

CC: [Blacked out]

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Text of third memo transcribed:

To: Senator Durbin
From: [Blacked out]
Date: June 3, 2002
Re: Meeting with Civil Rights Leaders to Discuss Judicial Nominations Strategy

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Senator Kennedy has invited you and Senator Schumer to attend a meeting with civil rights leaders to discuss their priorities as the Judiciary Committe considers judicial nominees in the coming months. For example, they believe that the Committe's current pace for nominations hearings (every two weeks) is too quick; and they need more time to consider the record of Judge Dennis Shedd, a controversial 4th Circuit nominee whom Senator Hollings is backing.

This meeting is intended to follow-up your meetings in Senator Kennedy's office last fall. The guest list will be the same: Kate Milchelman (NARAL), Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference on Civil Rights), Ralph Neas (People For the American Way), Nancy Zirkin (American Association of University Women), Marcia Greenberger (National Women's Law Center), and Judy Lichtman (National Partnership). The meeting has been tentatively scheduled for late Wednesday morning.

Assuming your schedule permits, do you want to accept Kennedy's invitation and attend the meeting?

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Text of fourth memo transcribed:

To: SENATOR [Kennedy] September 27, 2002
From: [Blacked out]
Re: Members Meeting on Judges- Monday or Tuesday, Place TBA

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There will be a judiciary members' meeting early next week. We are trying to schedule the meeting for Monday, after the 5:30 vote, though Leahy has proposed after the Caucus lunch on Tuesday, which would conflict with your schedule. Sen. Leahy is calling this meeting at the request of several members, and, we recommend that the following items be discussed: (1) Delaying a hearing for Cook; (2) Putting off a vote on McConnell or Estrada until after the recess; and (3) next Thursday's vote on Shedd.

Cook
As you know, Debbie Cook--who currently sits on the Ohio Supreme Court-- is a nominee to the 6th Circuit who is fiercely opposed by labor and civil rights groups in Ohio. Sen. Leahy wants to schedule Cook for a hearing on October 9th or 10th, because he feels he has made a promise to DeWine to do so.

While we haven't finished reviewing Cook's record, Justice Cook-- like Justice Owen-- seems terrible in cases involving workers and consumers. She is the most prolific dissenter on the moderate Ohio Supreme Court. In her judicial campaigns-- Ohio, like Texas, elects its judges-- she has received more money than any other justice from manufacturing and business, and has received no money from labor unions. The Ohio Chanber of Commerce has given her its highest ratings for her decisions in employment law, insurance, and medical malpractice cases. On the other hand, the Ohio Academy of Trial Lawyers has written the committee that Cook is "willing to disregard precedent, mininterpret legislative intent and ignore constitutional mandates in an effort to achieve a result that favors business over consumers." Ohio NOW and the Ohio Employment Lawyer's Association have written that Cook's "anti-worker record is becoming legendary in Ohio" and that her opinions seek to undermine the enforcement of state and federal civil rights laws. She is known for adopting strained or extreme legal propositions to deny relief for workers, and is seen as "heartless" and indifferent.

Sen. Leahy has asked whether you would be willing to chair a hearing for Cook on October 9th or 10th. We believe that you should agree to chair her hearing, but that you should push back against scheduling this hearing before the elections. The Committee has held hearings on too many controversial nominees in a row. Not only would preparing for Cook's hearing be a challenge, but it would demoralize Democrats' key constituents--in particular, labor-- to have a hearing for her before the election.

AFL-CIO has weighed in with Daschle and Reed (as well as Leahy) about delaying Cook and Reed and Daschle have said they will discuss Cook with Leahy. Sen. Levin, who is opposed to moving any additional 6th Circuit nominees given that the White House is not cooperating with him regarding nominees to that circuit, will likely be approaching Democratic members about delaying Cook.

Recommendation: Agree to chair a hearing for Cook, but after the election in the lame-duck session.

McConnell and Estrada
Sen. Leahy might want to schedule a Committe vote on McConnell and Estrada before the recess. We think this is a terrible idea and that voting on (and for) these nominees would be demoralizing to our base before the election. McConnell likely has sufficient votes to go through the Committee, but members have not yet submitted follow-up questions to him regarding contradictory statements he made at the hearing about his views on abortion, the Bob Jones case, and the constitutionality of the FACT act. As for Estrada, he just had his hearing and we certainly should not move him forward without resolving the matter concerning the SG memos.

Recommendation: Do not schedule a vote on McConnell and Estrada until after the election.

Shedd
Shedd-- the nominee to the Fourth Circuit who has terrible record in cases involving civil rights, women's rights, disability and federalism, and who is fiercely opposed by Southern Civil Rights groups (see attached article)-- is scheduled for next Thursday's Exec. We do not know how other members will vote regarding Shedd. We have heard that Sen. Edwards and Sen. Durbin are leaning against Shedd.

It is likely that Leahy will vote Shedd and we suggest that you record a "no" vote on him. Particularly given the high percentage of African-Americans on the Fourth Circuit and the Republicans' reisstances to placing Clinton nominees on that Court, it seems necessary to resist a judge with such a dismal record on core civil rights and constitutional issues. While Shedd doesn't have the "cross-burning" case of Pickering to disqualify him, he is as bad--perhaps worse-- on the core substantive issues.

CC: [Blacked out]

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Text of fifth transcribed memo:

To: [Blacked out]
From: [Blacked out]
CC: [Blacked out]
Re: Members Meeting with Leader Daschle
Date: January 30, 2003

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This afternoon, Democratic members of the Judiciary Committee met with Leader Daschle and Assistant Leader Reid to discuss Miguel Estrada. In addition to Daschle and Reid, Senators Leahy, Durbin, Edwards, Kennedy, Feinstein and Schumer attended.

All in attendance agreed to attempt to filibuster the nomination of Miguel Estrada, if they have the votes to defeat cloture. They are also agreed that, if they do not have the votes to defeat cloture, a contested loss would be better than no contest.

All in attendance, including Senators Daschle and Reid, voiced the view that the Estrada nomination should be stopped because 1) Not to do so would set a precedent, permitting the Republicans to force through all future controversial nominees without answering Senators' questions or providing important information; 2) Estrada is likley to be a Supreme Court nominee, and it will be much harder to defeat him in a Supreme Court setting if he is confirmed easily now; 3) The process must be slowed down and the Republicans' attempt to set up an automatic "assembly line" of controversial nominees thwarted; and 4) the Democratic base is particularly energized over this issue.

It is expected that a motion to proceed to the nomination will be brought to the floor on Monday. The Democrats do not intend to oppose that motion. A motion for cloture could be voted on as early as Wednesday.

Leader Daschle asked all Democratic members of the Committee to spend the time between now and Tuesday speaking to Senators who have questions about Estrada, and to attempt to recruit votes to oppose cloture. The topic may also be discussed at the Democratic Senators' retreat tomorrow. On Tuesday, Senator Daschle intends to raise it at the policy lunch, and presumably conduct a vote count.

Everyone also agreed to keep this matter confidential.

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Text of sixth transcribed memo:

February 4, 2003
To: SENATOR [Kennedy]
From: [Blacked out]
Subject: Judges, Judiciary Issues, Meeting with Civil Rights Leaders

Estrada

The Senator-to-Senator conversations continue and things appear to be going well. That being said, we've heard that Breaux will support Estrada, Landreiu is a problem, but many are focused on her. Bayh is also on the fence. Edwards spoke with him without much luck, and Senator Bayh, Sr. is going to speak with him, too. Would you be willing to speak with him, as well? I understand he has some substantive questions that we've been trying to answer through his staff, but he's also concerned because he doesn't want to be like the Republicans or part of a witch hunt. I think you-- speaking from 40+ years of experience-- can help him understand how the process has changed and why it's important to focus on Estrada (he refuses to answer questions, and we know of his temperament/ideological problems, he'll fly to the Supreme Court and we won't be able to stop him). Do you want to speak with Bayh?

You should also know that Wad spoke with Kerry and told him that they want him to take a leadership role on this issue. Kerry agreed but wants to speak with you. I think you should encourage Kerry to speak on the floor. Do you agree?

Judiciary Hearing (Wednesday 9:30 AM) & Exec (Thursday 9:30 AM)

Hearing As you know, there will be a nominations hearing on Wednesday at 9:30 a.m. [Blacked out] put a memo in the bag on Moday evening-- the nominee is Jay Bybee (9th Cir.). Not surprisingly, Bybee is an awful nominee. As the memo outlines, he has serious immigration, gun control, tribunal/detainee problems. We believe you should attend the hearing and ask him questions. I know that the Powell speech begins at 10:30 and there will be press associated with it. But, if you could drop by the hearing for 15 minutes (@11:30) to ask Bybee questions, it would be very, very helpful. We know this is a marathon and not a sprint and that we have to choose our battles, but we also feel that it's important to ask that bad nominees questions at the hearing. Bybee shouldn't get a complete pass and at this point, only 2 or 3 Democrats can attend the hearing.

Exec. There will be a Judiciary Exec on Thursday at 9:30. I don't think you need to attend, but you should know that (a) we expect Sutton, Roberts and Cook to be on the schedule and held over and (b) the nasty concel/carry gun bill (the one you fought at the end of last year) will also be on the schedule. We'll have it held over, but this means we should discuss your strategy for next week.

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Text of seventh transcribed memo:

Conversation with Daschle - Estrada and Beyond

• Tom, thanks so much for your hard work on the Estrada nomination. You have done a terrific job rallying the caucus. Because of you, I think we will be successful.

• I know this is hard work, and it's difficult getting the caucus to stick together around the issue of judicial nominations. Accordingly, I hope we can develop a long-term strategy that acknowledges the importance of the issue and the problems associated witha filibuster strategy.

• Given Bush's plan to pack the courts, there are many bad nominations coming down the track. I know we can't fight all of them, but we should have a short list of consensus nominees we agree to filibuster.

• I'm concerned that after this fight, several in our caucus won't be willing to filibuster again, and Bush will fill the courts with conservatives. If we develop a long-term strategy, we can let members vote for many nominees because we've all agreed that from time to time, we have to stick together. What do you think?

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Text of eighth transcribed memo:

Talking Points on Estrada for Caucus

• We must filibuster Miguel Estrada's nomination. He is clearly an intelligent lawyer, but being a judge requires more. He must demonstrate his commitment to core constitutional values, and he has to prove that he has the ability to be fair and impartial. By design, we know very little about Mr. Estrada, but the burden is on him to prove to us that he is fit for a life-time appointment. He simply hasn't done that.

• He has serious temperament problems. He's been criticized by his direct supervisor in the Solicitor General's Officce as too ideological to be a judge. Members of the Hispanic Caucus and other Latino leaders have described him as not being "even-tempered" and as having a "short fuse".

• As Pat and Chuck have described, Estrada has virtually no paper trail, and he has refused to answer the most basic questions about his views. Over and over again, the Justice Department refuses to provide us with the documents from Estrada's time in government practice. That's simply unacceptable.

  I've been here for 40 years and I've worked with Republican and Democratic Administrations in the confirmation process. This Administration is the worst. They are applying a litmus test at 1600 Pennsylvania Avenue and then they dare us to prevent them from packing the courts of appeals with ideologues. As [blacked out] and [blacked out] can attest, any attempt to work with them is refused.

• If we allow them to place a stealth, right-wing zealot on this court, we have only ourselves to blame. Although a few Hispanic groups support Estrada, we have the support of many of the largest, oldest Hispanic organizations including dozens of Hispanic labor leaders across the country, MALDEF, the Puerto Rican Legal Defense Fund, and the Congressional Hispanic Caucus.

• These groups are taking their message and their concerns about Estrada to mainstream and to Spanish-language press. The Republican claim that we are anti-Hispanic won't stick. We have too much support, and their record is hostile to the interests of that community.

• The D.C. Circuit is far too important to appoint someone about whom we have so many questions. Key labor, civil rights, environmental, and administrative law cases are decided there, and we know it is a "feeder" circuit for the Supreme Court. The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with Clarence Thomas.

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Text of ninth transcribed memo:

OWEN TALKING POINTS FOR CAUCUS

• Maria and others have highlighted how Owen has distorted the law in the Jane Doe parental notification cases. What these cases show is that Owen will disregard the clear language of a statute to put forward her own view. That's why then-Judge Gonzalez called her reading "unconscionable judicial activism".

• The sad thing is that women's rights are not the only area of concern. She is to the far-right of the right-wing Texas Supreme Court. She has racked up more dissents in cases involving workers, consumers, victims of personal injury than any other Judge on the Texas Supreme Court except one. She is criticized by her colleagues for distorting the law not only in the Jane Doe cases but in these cases involving the rights of victims as well.

• The 5th Circuit was traditionally a bastion of fairness and justice even in the toughest of times. It has already been turned into one of the least fair and least just circuit courts. We have an obligation to make sure it doesn't get any worse.

• I think it's important that people look through the material on Owen, consider these arguments, and listen to the debate on the floor before making up their mind on how to vote.

• I know there is concern that we have a lot of bad judges in the pike and we do have others (such as Sutton, who is ready for floor action). But Owen is clearly one of our worst. She had nine votes against her in committee. Even if, at the end of the day, we don't defeat Owen's nomination, we have to mount a fight to make clear to the public what's at stake with judges, and to dissuade the White House from sending us such controversial nominees.

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Text of tenth memo transcribed:

April 7, 2003
To: SENATOR [Kennedy]
From: [blacked out]
Subject: OWEN-ON FLOOR

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We have heard that the Republicans will move to a vote on Owen's nomination this afternoon. Leadership plans to withhold consent to a time agreement, and we imagine that the debate could begin as early as tonight and continue at least through tomorrow. [Blacked out] is talking to leadership about the possibility of convening a meeting with Judiciary Dems. Owen will be discussed in Caucus tomorrow, and we will provide you talking points. We have also heard that Sen. Feinstein is convening a meeting of the women's Senators today after the floor vote.

We have heard that several Democratic Senators have expressed concern about any filibuster of a judicial nominee that is based on substance, as opposed to process. [hand annotation: "they'll get over this after Estrada"] The Senators that may be wavering or opposed to an extended debate are: Lincoln, Pryor, Carper, Graham, Nelson (FL), Nelson (NE), Bayh, Landreiu, Breaux, Dorgan, Conrad, Baucus, Hollings, Bryd [sic], and Miller.

It would be helpful, if during the floor vote, you spoke to some of these Members. The key points are:

• Owen is extremely bad on choice issues, worker's rights, civil rights, environmental protection. She is clearly one of the worst of Bush's nominees.
• She is to the far-right of a very right-win court, is criticized by her colleagues for her extreme dissents, including by White House counsel Justice Gonzalez when he was on the Court. A very broad coalition of Texas-based women, labor, civil rights, worker's rights groups oppose her, as well as all the major Washington groups.
• It is important that Democrats keep their powder dry until the Caucus and Leadership have decided how best to proceed on her nomination.

CC: [blocked out]

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Text of eleventh memo (email) transcribed:

From: Allison Herwitt [AHERWITT@prochoiceamerica.org]
Sent: Wednesday, April 02, 2003 11:04 AM
CC: [blacked out]
Subject: Owen floor vote

At any time, Senate leaders may bring the nomination of Priscilla Owen to the Fifth Circuit Court to the floor for a full Senate vote. NARAL Pro-Choice America strongly opposes this nomination and will score this vote [hand annotation: "This is how they enforce discipline"] in the 2003 Congressional Record on Choice.

Last year the Judiciary Committee rejected nominations of both Priscilla Owen and Charles Pickering - both based on the nominees' records of hostility to constitutional freedoms and civil rights. In spite of this, President Bush renominated both individuals. Last week the Judiciary Committee, now under anti-choice control, reversed course and approved the Owen nomination, sending it to the floor in spite of earlier defeat. The Owen nomination represents a grave threat to a woman's right to choose; pro-choice senators should not approve this lifetime appointment to the federal bench.

• Priscilla Own is a dedicated conservative judicial activist whose record on the Texas Supreme Court clearly indicates her willingness - indeed, her eagerness - to restrict freedom of choice and undermine Roe v. Wade. Owen was a regular dissenter to an already conservative court on the issue of reproductive rights. Her writing in one case led former Texas Supreme Court justice, now White House counsel, Alberto Gonzalez, to characterize her dissent as "an unconscionable act of judicial activism."
• Own has repeatedly attempted to legislate from the bench to create impossibly high barriers- nowhere found in Texas law - to prevent a young woman from exercising her right to choose. She inappropriately and unconstitutionally wanted the Court to force young women to consider religious issues in the decision of whether to have an abortion. She wanted the Court to require young women to demonstrate that they understand "that many women experience emotional and psychological" harm from abortion, even though this claim is not medically supported. She even tried to legislate from the bench and create a new barrier, not in the state statute, forcing a young woman to prove to a public official that she considered the impact of abortion on the fetus.

Clearly, these are actions of a judicial activist intent on using her power to influence and rewrite - not fairly interpret - the law. Were she confirmed to a lifetime appointment to the Fifth Circuit, her decisions could affect women's reproductive freedom for a generation to come.

Many of President Bush's judicial nominees, including Priscilla Own, have sought to reassure the Senate about their views on a woman's right to choose by claiming that they will follow "settled law". This is a simplistic and facile reponse to a legitimate concern. In the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court relaxed the standard by which laws restricting abortion were to be judged. The test for such laws was no longer "strict scrutiny" but merely whether such laws imposted an "undue burden" on a woman's right to choose. This lower standard has given the green light to anti-choice advocates and state legislators, and indeed, many new restrictions on reproductive rights have been enacted post-Casey. State laws abridging freedom of choice are evaluated by judges who use their own discretion in deciding whether an anti-choice law imposes an "undue burden". Yet when one is hostile to the right in the first instance, it is questionable whether one would ever find the burden undue. Indeed, NARAL Pro-Choice America's analysis of 32 court of appeals cases applying Casey shows that only 18 of these cases were decided by unanimous panels. That is, more than half the time judges viewing the same facts and law reached different conclusions. In other words, in this post-Casey era, "settled law" is actually in turmoil.

Finally, in understanding the potential consequences of the Owen nomination, and others like it, one must consider the importance of circuit courts overall. While Supreme Court nominations receive the most public attention, circuit courts can have just as much or more effect on the law as the Supreme Court. The Supreme Court typically hears fewer than 100 cases a year; the federal courts of appeal, the courts immediately below the Supreme Court, decide almost 30,000 cases a year. Thus, for most Americans, these are the courts of last resort. Conservative activists realized this long ago, and set out on an patient but relentless effort to capture the courts. Patrick Buchanan summed up the right-wing's plan: "(Our conservative judicial appointment strategy) could do more to advance the social agenda- school prayer, anti-pornography, anti-busing, right-to-life, and quotas in employment- than anything Congress can accomplish in 20 years."

President Bush and anti-choice advocates and lawmakers are continuing to implement this strategy, and nominations like Priscilla Owen's are critical to their success. NARAL Pro-Choice America urges senators to vote "no" on the Owen nomination.

Attached are important materials on Priscilla Owen's work to undermine reproductive rights. We hope you find this information helpful and, as always, invite you to call Allison Herwitt at xxx-xxxx or Donna (illegible) at xxx-xxxx with any questions. [attachment file names not typed]

[William McKinley]

The memos themselves, in PDF form.

Outstanding job by the Coalition for a Fair Judiciary in bringing this to light.

[Grampa Dave]

Con gratulations on this good news. This needs to get big coverage and bumps.

[Howlin]

MORE MEMO INFO PING!!!

[Damocles]

Good Lord. Will anything come of this?

[Grampa Dave]

Gentlemen please use your ping lists to get this news out.

[Grampa Dave]

This perfect for your ping list and so timely.

[RandallFlagg]

Bookmarking..

Why does all the great stuff happen when I'm at work and can't read it?!

[Grampa Dave]

Please ping this out to your ping/alert lists.

[Grampa Dave]

This might fit into two of your ping lists. Thanks!

[DaughterOfAnIwoJimaVet]

Democrats are vile. Just vile.

[struwwelpeter]

they appear to have been intentionally leaked by a Democrat

A "mugged liberal"? Or just Hillary thinning the herd?

[MEG33]

The pols wonder why their approval rating is always in the cellar.This kind of partisan dirty dealing turns people off and unfortunately taints the whole Senate,not just the guilty Dems.I hope we can turn this into election gold.

[Peach]

If this stuff ever sees the light of day in the mainstream media, I think the Rats will be even more doomed than they are now.

[Semper Paratus]

The past week has seen a deluge of leaked reports which all have in common 'rat perfidy.

[No Blue States]

"A November 2001 memo to Durbin also notes that the groups have "identified Miguel Estrada as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."

English and Spanish campaign add 2004.

[mhking]

A "you've gotta be kidding" mega-ping (JD! & B/C lists)...

[onyx]

Bookmarked.

[PISANO]

Will anything come of this?

This MEMO was released to the PUBLIC last FRIDAY. Have you heard a PEEP from the MAJOR news outlets?? No, of course not, and you are NOT likely to. After all, the MEMO's authors are Democrats and they have much different standards then does the GOP.

[Liz]

How low can these depraved Dumbos go?

[onyx]

Outstanding post by you. Thank you. Greatly appreciated.