Collusion Memos

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.

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.

Text of tenth memo transcribed:

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

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]

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]

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