Owen will serve on the 5th U.S. Circuit Court of Appeals, which hears case for Louisiana, Mississippi and Texas.
Owen was confirmed in a 56-43 vote one day after a deal was struck in which Democrats agreed not to block the president’s appointments with endless filibustering and Republicans agreed not to ban filibusters altogether.
The agreement also paves the way for votes on four more Bush nominees, all of whom have been criticized by free speech proponents as being in the extreme right wing. Two of the nominees, California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William Pryor, are seen as shoe-ins, while it is doubtful the other two nominees will be confirmed.
While none of the nominees has a direct history of anti-adult judicial decisions, their appointments could have serious consequences for the industry since federal judges are typically the last line of defense in local obscenity and zoning cases against adult retailers.
First Amendment attorney Larry Walters told XBiz that federal judges, who are immune from political pressures, have historically been fair in their treatment of adult businesses and have generally acknowledged their constitutional rights to exist.
But each of Bush’s current nominees has shown tendencies to allow personal political or religious views to color their interpretation of the law.
For example, Brown, now expected to be confirmed to a seat on the D.C. Circuit Court of Appeals — considered the nation’s most powerful appellate court — has repeatedly defended faith-based approaches to the law, in which decisions are filtered through a judge’s own religious beliefs.
And Owen has even been criticized by U.S. Attorney General Alberto Gonzales, who served with her on Texas’ Supreme Court. Gonzales called one of Owen’s dissenting opinions “inflammatory rhetoric” and said her limited legal arguments were “based on flawed premise[s].”
While acting as Alabama attorney general, Pryor once pleaded with the Texas Supreme Court to uphold a ban on gay sex in Lawrence vs. Texas, a case that was a cornerstone of Extreme Associates’ defense in its federal obscenity case earlier this year.
In his arguments, Pryor compared gay sex to bestiality and child pornography.
If confirmed, Pryor will serve on the 11th Circuit Court of Appeals, which hears cases in Florida, Georgia and Alabama, three states that are hotbeds for prosecutions of adult-oriented businesses.
Federal judges are appointed for life.