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The LiberalOasis Blog
May 20, 2005 PERMALINK
All of us committed to saving our judiciary from corporate stooges and fringe fundamentalists should look at yesterday’s LA Times profile of Priscilla Owen, written by David Savage.
Because it shows how hard it is to get the facts out.
The wet kiss headline is “Judge Seen as Conservative, Fair”.
And it just gets worse from there.
Savage uses the GOP talking points early in the piece, telling his readers that Owen “comes across as a mainstream conservative.”
He quotes a total of four people that he interviewed. All the quotes are pro-Owen.
We hear from the quoted that she is “reasonable,” “respectful,” “a very good lawyer,” and “a nice, single lady who loves children” and “teaches Sunday school.”
We’re told that her record on the Texas Supreme Court is “conservative,” but so what, because “everyone on that court is conservative.”
One of Owen’s defenders in the piece is SMU law prof Linda Eads.
Savage quotes her describing herself as “pro-choice,” thereby allowing her to portray herself as someone who is not toeing a party line.
(The NY Times also has portrayed Eads as a merely detached observer of the Texas Supreme Court, and not someone actively campaigning for Owen.)
It is also inexcusable that after publishing pro-Owen quotes from four Texans, he didn’t mention any of the Texans that oppose Owen.
Like Texans for Public Justice, which compared her judicial rulings to the companies that funded her political campaigns (Texas Supreme Court judges are elected), and found:
More than $500,000 (37 percent) of the $1.4 million that Owen raised for her two Supreme Court campaigns came from lawyers and litigants who had cases in her courtroom.
Owen ranks No. 2 on the court in the share of campaign money that she took from these docket donors.
Owen’s 11 biggest litigant-donors (including Enron Corp., Farmers Insurance and Dow Chemical) appeared in her courtroom 26 times.
While these big docket donors prevailed an enviable 77 percent of the time before the court as a whole, Owen was even kinder—favoring them 85 percent of the time.
Or Texas Watch, which found after reviewing the record:
Justice Priscilla Owen is an activist judge ... with biases towards corporate and insurance interests.
Savage also saw no need to mention Owen’s revolting actions in the Willie Searcy case.
Former Texas Observer editor Lou Dubose laid out the stark details of the case in Salon last week.
Searcy became a “ventilator-dependent quadriplegic” in 1993 after a car accident where his Ford Motor Co. seatbelt malfunctioned.
His family desperately needed money to properly care for him, and in 1995 a jury determined Ford must pay them $40M.
But Willie never saw a dime, and in turn, never got the quality of health care he needed to stay alive.
After the initial ruling, Ford went to an appellate court, delaying the payout. A year later the award was reduced to $30M.
Then Ford went to the Texas Supreme Court, and Owen was responsible for the case.
Owen, who received $20K in campaign cash from a law firm that represented Ford, slow-walked the case, leaving Willie hanging.
She waited two years to rule, even though both sides requested a expedited hearing.
And her ruling dragged out the case further, calling for a retrial in a different appellate court, even though, as Dubose noted, “venue was not among the issues ... the court said it would consider two years earlier...”
Three years later, the second appellate court finally ruled in the family’s favor. Four days after that, Willie died.
Willie Searcy's case was a textbook example of "results oriented" justice that is common in Texas.
Often, judges first determine the desired outcome of a case. Then they adapt the facts and the law to make it happen.
It was also a glaring example of judicial activism, or making law from the bench, which is anathema to conservative Republicans -- unless it serves their purposes, as it did in the Terri Schiavo case.
Owen was creative to the point of deviousness in the Searcy case ... While Willie Searcy waited for the money that would provide him adequate healthcare, Owen and her clerks spent months laboring over a precedent-setting opinion for a statute that no longer existed.
None of that was mentioned by the LA Times’ Savage, though we did learn that she loves children.
The point is not just to criticize Savage (though if you like, you can contact the paper at email@example.com and Savage at firstname.lastname@example.org).
The point is that you can’t expect the media to accurately report on the nature of these judges. (The Daily Howler recently knocked the NY Times reporting on Owen and Janice Rogers Brown.)
Liberal groups and Dem Senators have compiled a lot of information about the current crop of federal appeals court nominees that are currently being blocked, as well as on possible Supreme Court picks.
But communicating the essence of that info is another matter.
It’s hard. It’s even harder without an honest opponent and a decent media.
And it’s impossible without coordinated messages that speak to how these judges will hurt Americans.
We’ve corralled the facts, but having the facts on your side is only part of the battle.
May 19, 2005 PERMALINK
Get ready for this emerging narrative from the punditocracy:
A glorious compromise on judicial nominations would be done by now if it weren’t for those perverse and sickening “interest groups.”
Last Thursday, the W. Post editorial board tried to shame Senators into compromising:
Are there enough senators who value their institution enough to resist the irresponsible incitements of the interest groups on both sides?
This past Sunday, on ABC’s This Week, Cokie Roberts, in full “voice of the Establishment” mode, said:
There are a lot of people who don’t want compromise, particularly people outside the Senate, and they are these huge groups lined up both on the left and right, itching for this fight.
There is no compromise as far as they’re concerned, and anybody who even talks compromise is lambasted.
There’s also the “interest groups just want to fundraise” argument, offered by CBS’ Dick Meyer:
If [compromise] did happen, it would be one the most significant legislative accomplishments of recent years.
And not just because it would break the self-inflicted gridlock of Congress on a high profile issue and frustrate the gridlock enablers - the special interest groups and the fundraisers, direct mail artists, phone bank hucksters and Astroturf organizers who need a contentious fight to make a buck.
No, the bigger triumph would be that finally - if fleetingly - the legislature would reflect the common sense of an electorate that is far less polarized and partisan than the political elite.
And Newsweek’s Howard Fineman blames the entire breakdown of comity in the Senate on the interest groups:
The real culprits are zealots on both sides of cultural issues -- pro-and-anti abortion activists, marriage traditionalists versus gay-rights activists, august academics versus "intelligent design" creationists, to name a few -- who see every debate in public life as a "Star Wars" battle over the fate of the universe.
The two main misguided presumptions in these arguments are:
1) Any group of people that can be called an “interest group” is only interested in their narrow interest and doesn’t care about the broader public interest.
2) Compromises are always in the broader public interest.
Sorry kids. While you pundits swap gossip on the phone all day and swap gossip at cocktail parties all night, some of these “interest groups” spend their time altruistically fighting for the rights of all Americans.
And there’s a big difference in a corporation trying to pack the court with friendly judges so no one makes it pay up when it screws people over, and a union trying to ensure that all workers, union and nonunion, have access to the courts when they believe their rights have been infringed.
(LiberalOasis will let the conservative groups defend their own honor.)
Of course, much of the public does not view this fight in such a way.
As recent polls indicate, and as David Sirota (inartfully) said yesterday, this fight seems very distant and irrelevant to a lot of folks. People don’t necessarily feel like someone is fighting on their behalf.
But that is in large part because the media does such a poor job of reporting what is really at stake and how it will impact the public.
Instead, reporters just play up the conflict for conflict’s sake, followed by pundits lamenting all this unnecessary conflict.
(Politicians are at fault too for doing little to explain the stakes, see yesterday’s LO post. And you could certainly argue that the interest groups themselves don’t do a good job either.)
If the stakes were better understood, it would be harder to plausibly claim that compromise is inherently the “common sense” route.
The reality is that Democrats have already compromised ... over 200 times, every time they have confirmed one of Dubya’s conservative judicial nominees. They're just beating back the worst of the worst.
Accommodationist Dems may be bandying about potential deals that would swear off filibusters except for “extraordinary circumstances.” But that is blind to the extraordinary circumstances we are currently in, fighting off this handful of truly radical nominees.
For the pundits to casually say, “What’s four or five more judges?” is to be willfully ignorant of the power these judges would have, and what right-wing judges have already done to weaken our government’s ability to protect civil rights.
Sure, our electorate is not as polarized as Washington is.
But that does not mean our electorate voted for judges who would leave our environment vulnerable, reflexively side with corporations over consumers and deny reproductive freedom.
And it does not mean Democrats should stand by and let Republicans ram such judges through without challenge.
It would not be a “significant legislative accomplishment” to sell the public down the river by letting more radicals get on the bench.
That is not in the broader public interest, even if it is “interest groups” at the forefront of the fight.
There are times when half a loaf moves the country forward, just not as fast as you would like. That’s when compromise is “common sense.”
Other times, it’s not much of a loaf at all. It sets the country backward.
That’s when compromise amounts to capitulation.
That’s when it’s “common sense” to fight like hell.
May 18, 2005 PERMALINK
The judical showdown begins today, and it appears Bill Frist still lacks the 51 votes needed to go nuclear.
CNN’s Joe Johns reported yesterday:
...according to a document that we received here at CNN ... Republicans are looking toward next Tuesday and Wednesday for the showdown vote on the Senate floor.
We do expect discussion of judges to begin as early as tomorrow, but no votes.
If Republicans had the votes (and the will) to trigger the nuclear option, there’d be no reason to wait until next week.
So either they don’t have the votes, or they don’t have the will.
Assuming they don’t have the votes, the reason for starting the debate over the nominees (most likely the two women, Patricia Owen and Janice Brown) a week in advance is to try to shift public opinion by personalizing the issue.
With poll after poll showing that Democrats are winning public opinion, it is extremely hard for Frist to tip those Senators on the fence.
So having lost public opinion on the procedural argument, Frist last best hope is to try to win the argument over the judges themselves.
But Dems have not necessarily honed their messages regarding specific nominees, so it remains to be seen how that fight shapes up.
It's long past time for the Dem messaging to evolve, from the basic “abuse of power” theme to something that more clearly explains how these judges would harm average Americans.
Now, with this week of extended debate, they don’t have much choice.
Last month, LiberalOasis discussed Dem messaging on judges.
It’s a complex task, and requires deep knowledge about their records, but the skill not to drown folks in arcane detail.
In short, the overarching messages must explain how these judges come out of an ideological movement beholden to two powerful interests: fat cat corporations and fringe fundamentalists.
They seek to overrule Congress when it passes laws that would require corporations to protect our environment and the rights of workers.
And they would impose the views of the fringe fundamentalists on the private matters of individuals, as they tried to do in the Terri Schiavo case.
Are Dems up to this task? We’ll see.
Sen. Mark Pryor’s performance on CNN yesterday was not promising.
Asked what’s wrong with the nominees, his initial response appeared to be an attempt to stall for time: “Well, gosh, there's a long list of things...”
Every Dem needs to knock that question out of park, without hesitation.
And that’s what this week should be about, engaging the debate on these specific judges in order to deny Republicans any justification for going nuclear.
LO also suggested above Republicans may not have the will to go nuclear.
Because even though they want these judges as badly as the fringe fundamentalists, they also want their business-friendly legislation, which would be swallowed up in the nuclear fallout.
Whereas the fringe fundamentalists feel they haven’t gotten much legislation so far in this Congress, so they feel they have less to lose from Senate gridlock.
In turn, the party is trapped by cross pressures from their two masters.
If Frist knows he can’t get 51 because of the corporate pressure, he can’t confess to that without permanently alienating the fringe fundamentalists, who have told him he needs to go nuclear if he has any hopes of getting their support for President in ’08.
In that scenario, this week’s delay would just be a way to convince the fringe fundamentalists that he did all he could before forcing a vote on the nuclear option and losing.
But regardless of how hard Frist is trying to scrounge up votes, Dems still need to sharpen their messaging on Owen and Brown.
Because properly communicating the dangers of the right-wing judiciary movement will lay the groundwork for this summer’s Supreme Court battle royale.
What The Hell?
What the hell is Rep. Barney Frank doing, going on The O’Reilly Factor to bash DNC Chair Howard Dean?
There is a time and a place to criticize your own. And Fox News is never the place.
May 16, 2005 PERMALINK
Following the Sunday shows, the AP reported that “the Senate's second-most powerful Republican and Democrat each claimed on Sunday to have enough support for their side's position” on the nuclear option.
In reality, neither Senator did anything of the sort.
On Fox News Sunday, GOP Sen. Mitch McConnell was asked “do you have the 50 votes plus one?” And he responded:
Well, I haven't given up on the possibility that we might have 60 votes. including some Democrats who've been whispering in our ears that they believe that this ought to be defused.
Boasting that he may get 60 isn’t the same thing as directly answering the question whether he has 51.
It’s classic trash-talking bluster, designed to give the impression that he has more than he actually has in hand, so wavering GOPers will think twice about sticking their necks out.
Notably, it was three weeks ago, on CBS’ Face The Nation, where McConnell did directly say he has the votes.
Meanwhile Dem Sen. Dick Durbin, also on Fox, wasn’t boasting victory at all. Only calming repeating what everybody already knows:
...the Democrats are united, all 45, with Senator Jeffords joining us.
We feel that there are at least four Republican senators who feel as we do.
And we feel that there are several who are making up their minds at the last moment.
Those late deciding Republicans, along with Majority Leader Bill Frist, are in the same box they have been in all this time:
As is typical, the various sides try to tip the balance by citing polls to argue that their side is in the majority.
This has been uphill terrain for the nuclear-option advocates, as poll after poll has shown the public siding with Democrats and the filibuster.
But on CNN’s Late Edition yesterday, GOP Sen. Dick Lugar inadvertently undercut that argument.
WOLF BLITZER: The new "Time" magazine poll out today asked whether or not Republicans should be able to eliminate the filibuster on these judges.
28 percent of the American public in this poll said yes; 59 percent don't want it eliminated.
They want the Senate, apparently, to still retain this filibuster rule down the road...
LUGAR: Well, Republicans have polls that indicate that 44 percent of the people believe that you have an up-or-down vote on a candidate as opposed to 43 percent who oppose.
So it depends how you phrase the question.
That’s the best Republicans can do?! A poll specifically using their precious phrasing only gives them 44%!
Time for them to pack it in.
And time for us to spike the ball by translating those poll numbers into calls and emails to our Senators, as Frist brings these judges to the Senator floor this week.
(Also of note: Daily Kos debunks Sen. McConnell’s efforts to call the nuclear option, the “Byrd option.”)
The British Memo Appears
The infamous “intelligence and facts were being fixed around the policy” memo, reported on widely in Britain, finally showed up on a Sunday show.
Just one show though, ABC’s This Week.
And McCain’s famed straight talk was strangely absent (video at Crooks and Liars):
STEPHANOPOULOS: I want to show you a British memo ... it says, this is [a British intelligence official] reporting on Washington:
“Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”...
...Isn’t that direct, and somewhat credible, evidence, that the Administration was manipulating intelligence here?
McCAIN: I have not seen evidence that the Administration was manipulating evidence. We’re certain serious mistakes made, such as relying on a guy named Curveball –
STEPHANOPOULOS: But what about that memo though?
MCCAIN: Uh –
STEPHANOPOULOS: It says that’s what was happening.
MCCAIN: I look at that -- well, first of all, I don’t agree with it.
But second of all, I think the important aspect of the opening of this conflict that it’s clear that the status quo was not prevailing...
There was a clear intent on the part of Saddam Hussein, that he had shown throughout his entire regime, that he’d like to acquire and use weapons of mass destruction...
And McCain went straight to the ye old talking points justifying the war, dodging the original question.
But everyone in the media should see this and recognize that “I don’t agree with it” is not an acceptable rebuttal.
It should not end the questioning. It should spark more.
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