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The devil's due 

By this publication, the United States Senate will have confirmed President Bush’s nomination of Priscilla R. Owen to the 5th U. S. Circuit Court of Appeals, part of the Faustian bargain to avoid a shutdown of what was once but is no longer known as the world’s most deliberative body. Owen was probably the worst of a half-dozen Bush nominees to appellate courts so shocking in their extremism or lack of ethical dimensions that even conservative Democrats abhorred the idea of their serving lifetime appointments. But Democrats agreed to let Republicans confirm her and three or four other corporate shills that will follow in exchange for preserving the filibuster, which Democrats will use only in “extreme” cases. We are expected to acknowledge the worth of the trade-off: a few cruel or corrupt judges with life tenures in exchange for preserving the Senate as a working body, at least for a few weeks. But the country should at least know what the trade-off entails. How much harm, after all, they asked, can Priscilla Owen do on a panel of a dozen judges in a system that requires at least some consensus? But that’s what they asked in Texas in 1994, too, when money from big corporations and corporate law firms seated her on the Texas Supreme Court. An oil and gas lawyer, Owen had been recruited by Karl Rove, who directed her campaign. This battle over judicial appointments is over our heads so to most of us it all looks like just politics. But it really is not that complicated. Justice in the end usually is just a human face. In Priscilla Owen’s case, it is the face of Willie Searcy, who ought to be the poster child for the Bush judiciary but whose name has hardly surfaced in the long battle. Lou Dubose documented his story in Salon. Willie, a skinny black kid, was 14 in 1993 when a Mercury Cougar hydroplaned on a Dallas freeway and crashed into a Ford pickup driven by Willie’s stepfather. Willie’s seatbelt didn’t work and a spinal-cord injury left him a quadriplegic dependent on a ventilator. Soon, medical bills of $530,000 piled up and the parents, both low-paid clerks, faced staggering bills for the rest of Willie’s and their lives. He needed full-time care and his trachea tube had to be suctioned regularly for him to breathe. They sued Ford for the malfunctioning seatbelt. Their luck didn’t change. The next year, with the help of fat checks from Enron and other big corporations and corporate firms, Priscilla Owen went on the Supreme Court. A jury gave Willie and his mom a nice judgment that would have allowed them to meet the expense, but Ford appealed to the Supreme Court and drew Owen as the supervising justice. In workers compensation and personal-injury cases, the company strategy is to delay so that the injured person and the plaintiff’s lawyer run out of resources and settle for a pittance or nothing. Owen had not disappointed those who invested so much confidence and money in her. A third of her campaign funds came from corporations and firms that had cases before her. A whopping 86 percent of the time she ruled for the company or firm that bankrolled her campaign when they were before the court. While Willie’s case worked its way through court, Owen got $20,450 from Baker Botts, the giant firm run by Bush family friend James A. Baker III. Baker Botts was part of Ford’s defense team against Willie. They got their money’s worth. The lawyers asked for an expedited appeal because of the family predicament. But Owen sat on the case for two years. It should have been over soon after the oral argument in November 1996. At that stage, decisions come down in weeks. Owen submitted her opinion almost a year and a half later, in March 1998. Four judges strongly dissented but her opinion said the case had started in the wrong court, which was not even an issue on appeal. The family had to start again. But the full court did a remarkable thing. It apologized to the family for the “unconscionable delay” in deciding the case. By the end of June 2001 Willie’s case had worked its way up again and the Dallas Court of Appeals upheld a judgment against Ford again. If Justice Owen could be bypassed, Willie, now 21 and a high school graduate, might yet get some relief. But Medicaid had run out, nursing help could no longer be paid and four nights after the decision Willie’s ventilator stalled. His mother found him choked to death. Sen. Dianne Feinstein, D-Calif., asked Owen how she justified slow-playing Willie’s case when his life hung in the balance. “He didn’t pass away while his case was before my court,” Justice Owen replied. Rove has gotten evangelical groups to proclaim Owen a warrior for Christ. After all, she had once gone out of her way to stretch Texas law to prevent a young girl from getting an abortion, another opinion that stumped her conservative colleagues. Where on the Sermon on the Mount is there a doctrine that would justify treating Willie Searcy that way? No Latin phrase can dignify the legal cruelty that Priscilla R. Owen visited on that boy and his mother. That is what the tradeoff in the Senate was about.
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