ACSBlog: The Blog of the American Constitution Society

On the chance that an unexpected Supreme Court vacancy should occur, the White House is preparing a list of potential nominees.  Included on the short list are controversial federal judges Priscilla Owen and Janice Rogers Brown, both of whom were recently appointed to the federal appellate bench in the face of intense opposition from Senators, civil rights, consumer rights and other progressive organizations.

Judge Owen

Several opponents to Judge Owen's nomination questioned whether she was ethically suited for the bench:

Ethically questionable actions Justice Owen has taken reinforce her reputation for ruling in favor of powerful interests against workers and consumers. Following an investigation by the Travis County Attorney and a ruling by the Texas Ethics Commission, the Texas Supreme Court revised its practice of allowing law clerks to accept extra money during their clerkships from their future law firm employers, including those litigating before the court. Justice Owen nevertheless condoned the discredited practice and dismissed the matter as a “political issue that is being dressed up as a good-government issue.” Justice Owen also sits on a court whose members have been criticized for refusing to recuse themselves from cases involving parties from whom they have accepted campaign contributions. Justice Owen herself has participated in cases involving – and then issued decisions in favor of – her campaign contributors, including Enron, Halliburton and several law firms. In addition, in 1994, then-judicial candidate Owen, together with Justices Nathan Hecht and Raul Gonzalez, took the highly unusual step of endorsing a pro-business political action committee financed by parties that later argued before them in court. One professor noted: “It’s the first time in all my years studying judicial politics that I’ve run across anything like this: judges endorsing PAC’s, not PAC’s endorsing judges.”

Judge Owen has also been criticized for a dissenting opinion which would have denied a woman access to an abortion which a majority of the Texas Supreme Court held she was entitled to under state law.  In a concurring opinion, then-Justice Alberto Gonzales called Owen's dissent "an unconscionable act of judicial activism."

Judge Brown

Judge Brown has been criticized as a proponent of the view of federal power articulated by the Supreme Court in Lochner v. New York--which held that a law limiting the number of hours which a baker could work violated the Constitution.  Lochner's view of the Constitution was rejected during the New Deal Era after President Roosevelt accused the Supreme Court of "mak[ing] our democracy impotent," and has been described by conservative former Supreme Court nominee as an "abomination"  In a speech to the Federalist Society, Judge Brown took a different view:

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It’s because the framers did draft the Constitution with a surrounding sense of a particular polity in mind.