have they agreed to shut out brown?

The first of three judicial nominees to come before the Senate as part of yesterday’s last-minute deal to avoid the “nuclear option,” Justice Priscilla Owen, was confirmed this afternoon. The vote was 56 to 43 in her favor, with Democratic Senators Byrd and Landrieu crossing over to vote with the Republicans, and Inouye abstaining. Only one Republican voted no, and that was Chaffee. It’s hard to tell, but it’s possible that some, if not all of this, was worked out in advance as part of the official deal that was released yesterday… It doesn’t make a lot of sense that Byrd, or anyone else on the Democratic side, would vote for her, unless it was something agreed to in advance, in hopes of making the appointment look as though it had at least nominal bipartisan support. (Hopefully, this unwritten portion of the agreement struck between Republicans and Democrats, if that is indeed what’s going on, will extend to the voting on Brown, seeing her voted down in a similarly bipartisan fashion.) Of all the things I’ve seen written about the events of late, the most interesting was this comment posted on the Talking Points Memo site yesterday, prior to the vote on Owen:

I have been licensed to practice law in Texas since 1961. During that period we have seen the complete deterioration of the 5th Circuit in New Orleans from a beacon of reason during the civil rights battles (of course it then included more States including Alabama) to the a rubber stamp right-wing caricature of its former stature.

The court is particularly bad in precisely the areas in which Priscilla Owen is awful. Sure she is terrible on abortion issues. I think the other important areas of her reactionary views such as employee rights, civil rights, torts etc. are the ones she will do the most damage on. That is because most of those sorts of cases end at the Circuit Court level. Most abortion issues do make it to the Supreme Court, so the damage she could do on that issue is limited.

Here is my compromise, as much as it pains me: Let Owens go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.

With that in mind, let’s hope that the deal worked out yesterday didn’t just call for an up-or-down vote on Brown, but went so far as to guarantee her failure. The vote on Owen, I think, indicates that it might be a possibility.