Fili-BUSTED! Three prominent, conservative female jurists have had their nominations to important federal appeals courts stopped by filibusters in the Senate.
Justice Janice Rogers Brown of the California Supreme Court, left, has been nominated to the D.C. Circuit. Judge Carolyn B. Kuhl of the California Superior Court for Los Angeles County, middle, has been nominated to the Ninth Circuit. Justice Priscilla R. Owen of the Supreme Court of Texas, right, has been nominated to the Fifth Circuit. But the nominations of Justice Brown, Judge Kuhl, and Justice Owen (collectively, "the Judicial Divas") won't be going anywhere soon. These strong, smart women have the Senate Democrats running scared, which is why the Democrats have resulted to the drastic step of filibustering their nominations.
President Bush has made valiant efforts to push the Judicial Divas' nominations forward. Last November, he brought the Judicial Divas -- singled out from among all of his nominees -- to the White House, for a special press conference demanding fairness in the judicial nominations process. The President declared that "these three ladies" -- the federal judicial equivalent of Charlie's Angels -- are "the absolute right picks for their respective positions."
Despite such pressure from the White House, the Senate Democrats are not budging. Twenty-five less controversial nominees will make it through to confirmation as part of an agreement between the White House and Senate Democrats (described here by the Washington Post). But the Judicial Divas are most definitely not part of that deal.
Will the Senate Democrats ever relent on the President's judicial nominees -- especially if he wins a second term? Perhaps -- but it is unlikely that they will allow all of the nominees currently being filibustered to make it to the Senate floor. Difficult choices will have to be made. The White House will have to decide which of its most controversial nominees it will to go to the mat for, and which nominees are not worth the political capital.
Which nominee will President Bush support to the bitter end, and how will he make his decision? President Bush, in conjunction with White House counsel Alberto Gonzales, will surely make his decisions based on pragmatic political considerations. But if I, Article III Groupie, were queen for a day, the President's decision would be based not on ideology, demographics, or confirmability, but on the answer to a single question:
Who is the biggest judicial diva?
How does one measure the diva quotient of judicial nominees? One reader offers this proposal:
1. Set up a catwalk on the South Lawn of the White House.
2. Require Justice Brown, Judge Kuhl, and Justice Owen to stride up and down the catwalk, wearing black judicial robes and Manolo Blahnik stilettos, while Supermodel by RuPaul blares over the loudspeakers: "State court judge, you better work! Work it, girl! Sashay, shante!"
3. After watching the women strut their stuff, Al Gonzales decides who is the biggest diva.
President Bush introduces the Judicial Divas at an Oval Office press conference, under the watchful gaze of RuPaul, non-judicial diva par excellence.
Thankfully, there are easier ways to measure diva power. Look no further than UTR's patented J.D. Degree system. "J.D" does not stand for "Juris Doctor" -- it stands for "Judicial Diva"!
The J.D. Degree system measures diva-hood on a scale of 0 to 100. A nominee's overall score is calculated based on her scores in three subcategories, namely, the three "A"s: Attitude, Aptitude, and Attractiveness.
1. Attitude (50 percent)
Attitude is the most important attribute of the Judicial Diva, accounting for half of her overall score. The Judicial Diva must be confident, even arrogant. She does not suffer fools gladly -- and, to the Judicial Diva, almost everyone is a fool. The Judicial Diva is outspoken, voicing her views in forceful and saucy fashion. Her abrasive manner may alienate some, but she doesn't care -- she's a Judicial Diva!
2. Aptitude (30 percent)
A music review in the October 21, 2002 issue of Time magazine offers the following observation: "By definition, a diva is a rampaging female ego redeemed, only in part, by a lovely voice." Similarly, the Judicial Diva is a rampaging female ego redeemed, only in part, by a brilliant legal mind. Hence the importance of aptitude, the Judicial Diva's legal ability and acumen, as measured by the firepower of her résumé and her achievements within the profession.
3. Attractiveness (20 percent)
Obviously attractiveness cannot be the most important quality of the Judicial Diva (which is why it accounts for only 20 percent of her score). After all, we're talking about Judicial Divas. It would be disingenuous, however, to claim that beauty is irrelevant to the diva calculus. All things being equal, a federal judicial super-hottie will out-diva a federal judicial supernottie any day of the week.
Using the J.D. Degree system, UTR will now conduct a head-to-head comparison of the three Judicial Divas.
1. Justice Janice Rogers Brown: "The Uppity Black Diva"
(Please do not mistake this for racism; it is a reference to Justice Thomas's famous condemnation of his confirmation hearings as "a high-tech lynching for uppity blacks.")
That Justice Brown is one sassy lady! Some provocative excerpts from her speeches and judicial opinions have been collected here by the People for the American Way ("PFAW"). Here is a revealing excerpt from a report on Justice Brown, also prepared by the PFAW:
[Justice Brown] has been severely criticized concerning her judicial temperament and collegiality. Some of her dissenting opinions have been contemptuous of her colleagues. Sources on the court reportedly stated that her fellow justices have privately complained about her “poison pen” and have called Brown a “loose cannon when she has a typewriter in front of her.”
Justice Brown's outspoken nature may not earn her points with the People for the American Way. But it sure does wonders for her diva rating!
Justice Brown's J.D. Degree: 82.5 (magna cum laude)
2. Judge Carolyn B. Kuhl: "The California Dreamin' Diva"
Although her opponents attempt to depict her as a raving, right-wing zealot -- see, e.g., this report by the Alliance for Justice ("AFJ") -- Judge Kuhl appears to be fairly restrained in her demeanor. At her confirmation hearings, Judge Kuhl came across as more moderate and open-minded than her critics claim, even distancing herself from some of her prior positions, as this AFJ report suggests. The ideal diva, however, would have stood her ground, roundly condemning the committee Democrats as a bunch of petty, emasculated political hacks. (This is how the scene will unfold in the made-for-television movie "Judicial Divas," with Judge Kuhl portrayed by her fellow California blonde, Heather Locklear.) While Judge Kuhl's decision to present herself as reasonable is pragmatic and understandable, it does not earn her diva points.
It would be difficult to find a résumé more impressive than the résumé of Judge Kuhl: Princeton; Duke Law School; a clerkship with Justice Kennedy, when he was on the Ninth Circuit; various positions at the Department of Justice, including the unspeakably prestigious post of Deputy Solicitor General; and a partnership at the powerhouse L.A. law firm of Munger, Tolles & Olson. Judge Kuhl's mixed ABA rating of "well qualified"/"qualified" is thus difficult to comprehend; a more eminently qualified candidate for judicial service would be hard to imagine. Perhaps Judge Kuhl fell victim to "player haters" on the ABA committee -- mediocre lawyers not fit to button an assistant solicitor general's morning coat.
(Why doesn't Judge Kuhl get an aptitude score of 10, you might ask? Well, back when Judge Kuhl clerked for AMK, he was merely Judge Anthony M. Kennedy of the Ninth Circuit, not Justice Kennedy of the Supreme Court. Thus, because Judge Kuhl is not among "the Elect" -- UTR-speak for Supreme Court clerks -- she is automatically ineligible for a perfect aptitude score.)
Judge Kuhl's J.D. Degree: 78.5 (cum laude)
3. Justice Priscilla Owen: "The Lone Star Diva"
Justice Owen is the second most frequent dissenter among the justices currently serving on the Texas Supreme Court, as noted in this report by the PFAW, and she does not pull her punches. Colleagues have criticized the "inflammatory rhetoric" of her scorching dissents, as the PFAW notes here. Justice Owen even locked horns with White House Counsel Al Gonzales when he was on the Texas Supreme Court, outflanking him on the right, as noted in this amusingly titled PFAW press release, Alberto Gonzales v. Priscilla Owen.
As Justice Owen's biography and résumé reflect, she graduated at the top of her law school class at Baylor, where she served on the law review. She then proceeded to have a very successful career in private practice, making partner at Andrews & Kurth, a leading Texas law firm. Justice Owen's legal experience isn't marked by much diversity, and her résumé may not "shock and awe" like Judge Kuhl's, but Justice Owen's steely competence is undeniable. The ABA is no friend to conservative judicial nominees, as Professor James Lindgren explains in this article, but even the ABA was compelled to award Justice Owen a unanimous rating of "well qualified."
Justice Owen's J.D. Degree: 86.0 (summa cum laude)
And so the winner of our competition is Justice Priscilla Owen, "The Lone Star Diva," who receives a total score of 86, earning her J.D. degree summa cum laude. (If you think UTR's grading system is a little strange, well, it's loosely based on that of the University of Chicago.) Although Justice Brown, "The Uppity Black Diva," may have more attitude, and Judge Kuhl, "The California Dreamin' Diva," may have a slightly more golden résumé, Priscilla is the Queen -- not just of the Desert, but of the Right-Wing Judicial Divas.
In closing, your loyal correspondent, Article III Groupie, would like to state for the record her own views on the Right-Wing Judicial Divas. As Samantha Jones of Sex and the City might say: "Judicial Divas? They're fabulous!" References in these pages to Justice Brown, Judge Kuhl, and Justice Owen as Right-Wing Judicial Divas should not be viewed as derogatory. To the contrary, as far as Article III Groupie is concerned, few stations are more noble than right-wing judicial diva-dom. Indeed, it is the state towards which all female lawyers ought to aspire.
The term "right-wing" is an epithet to many, but not to Article III Groupie, whose own views are conservative. Similarly, the term "diva" may be widely viewed as pejorative, but not by Article III Groupie. Article III Groupie admires strong, confident women -- she likes to think of herself as one -- and she understands, all too well, how women must be assertive and aggressive in order to succeed in the male-dominated world of law.
Article III Groupie holds Justice Brown, Judge Kuhl, and Justice Owen in the highest esteem -- and she hopes to someday join their distinguished ranks. UTR wishes these highly accomplished women the best of luck in their efforts to win Senate confirmation to the Article III bench.