Who is Priscilla Owen?
Justice O'Connor's swing vote may be replaced by Fifth Circuit Judge Priscilla Owen. Owen was confirmed by the Senate by a 56-43 margin following the deal allowing for votes on previously filibustered appellate court nominees. People for the American Way had urged the rejection of her nomination. She has been called "all too willing to bend the law to fit her views, rather than the reverse."
Judge Owen was elected to the Texas Supreme Court in 1994. Owen has consistently sought greater restrictions in parental notification cases, leaving her in dissent. As her colleague on that court, now-Attorney General Alberto Gonzales sharply differed from her jurisprudence on reproductive choice. He called her opinion in In re Jane Doe 1 (II) "an unconscionable act of judicial activism." Following another abortion rights case, the Houston Chronicle expressed its opposition to Owen's nomination to the Fifth Circuit:
Among the Texas Supreme Court's unanimous majority in this latest abortion case is Justice Priscilla Owen. The court's ruling in this case is exactly the sort of tortured jurisprudence that caused Democrats on the U.S. Senate Judiciary Committee to reject President Bush's nomination of Owen to be a justice on the 5th U.S. Circuit Court of Appeals. Texas may be saddled with justices who elevate partisan ideology above law and logic, but justice and reason should discourage their infliction on the nation.
The Alliance for Justice has detailed her votes to shield corporations from suits by consumers, taxpayers, and workers. In Universe Life Insurance Co. v. Giles, the majority upheld a damage award to a woman whose insurance company refused to pay for heart surgery. Owen voted to deny the damage award in a dissent the majority characterized as taking "the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade."
Salon.com calls her handling of the case of Willie Searcy "unconscionable." As a justice of the Texas Supreme Court, she delayed for two years issuing a ruling on Ford's appeal of 14-year-old Searcy's case, in which a jury found Ford liable for manufacturing the defective seatbelt that led to the boy's quadriplegia. Searcy died as a result of inadequate medical care while waiting to collect his $30 million judgment. Prior to issuing her opinion, Owen received a campaign contribution of over $20,000 from Baker Botts, the law firm representing Ford.
Searcy's was not the only case for which Owen sat despite a potential conflict of interest. After receiving over $8000 in campaign contributions from Enron, Owen voted in Enron Corp. v. Spring Independent School District to allow Enron flexibility in calculating its inventory, which saved the company $15 million in taxes and cost a local school district tax revenue.
Written By:tlichael On September 30, 2005 10:58 AM Written By:John On September 30, 2005 12:11 PM
PFAW confronts this claim at page 5:
Gonzales' assessment of his then-colleague Justice Owen as a judicial activist was so significant that some Owen supporters, including C. Boyden Gray and Terry Eastland, have gone so far as to claim that Gonzales' criticism was not referring to Owen's dissent. At Owen's confirmation hearing in July 2002, Senator Hatch joined this revisionism bandwagon, claiming that Gonzales was not referring to Owen's dissent in his harsh criticism of the dissenters in Doe 1(II), but "rather to the dissent of another colleague in the same case." A review of Gonzales' concurring opinion in the case demonstrates that Senator Hatch was incorrect; for example, Gonzales' concurrence refers to "[t]he dissenting opinions," 19 S.W.3d at 365, plural. In fact, Gonzales' own post-Owen-nomination remarks about this very issue, trying in his current capacity as White House Counsel to minimize the importance of what he said in this case, acknowledge that Owen was a target of his concurrence:
He [Gonzales] said his comments in the abortion case were the result of a strong
disagreement over how to interpret a new law. "In this case, we both looked at the
statute and disagreed, but this in no way detracts from my belief that she will be a fine judge," he said.
This is consistent with remarks made earlier in 2002 by a spokesperson for Gonzales: [O]pponents of Justice Owen are certain to recall a dispute that arose in 2000, when Mr. Gonzales was a fellow justice on the Texas court and Justice Owen was one of three court members who wrote dissents in a case involving a new Texas law regarding parental notification of abortions among minors. At the time, Mr. Gonzales suggested that the narrow reading of the law by the dissenters was 'an unconscionable act of judicial activism.' Anne Womack, a spokesman for Mr. Gonzales, minimized the significance of the disagreement. 'Judge Gonzales's opinion and Justice Owen's dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute,' Ms. Womack said.
PFAW wouldn't argue for confirmation of a Bush nominee unless the nominee performed an actual abortion as his/her confirmation hearing.
Honestly, has PFAW ever described a Bush nominee as not "rais[ing] serious concerns"?
The PFAW reports are a step in the right direction away from the general pattern of complaining about results. Almost nowhere, however, does PFAW actually quote from Judge Owen's dissents. Instead, PFAW "summarizes" them for us by saying in each case (1) that the majority disagreed, and (2) that Owen's dissents "would have read nonexistent provisions into the statute," "would have ignored the law," "reflected her hostility to the plaintiffs," etc.
It's laudable that PFAW seeks out actual opinions, but the report reeks so strongly of spin I don't think it should be given much weight in assessing the suitability of a candidate. If they liked Owen, they could have written the same report, but put different spin on the majority opinions from which Owen dissented and portrayed Owen as an "independent mind, willing to do the work to understand the law in the cases before her, and stick to her principles. In light of the Bush administration's low tolerance for dissent among the ranks of the executive, Owen's independence, even from her fellow Republican judges, shows that she is well aware of the judicial function of independently deciding each case on its merits, without looking to further an agenda." Then they could just go through Owen's dissents and describe them as "pointing out fallacies" in the majority opinions.
It's good to know that the Dems have some people working on this nomination issue who actually went to law school, but the result of this sort of thing is that the confirmability of an appointee is inversely proportional to the left's ability to find potential dirt.
The message of PFAW's report is never dissent.
My understanding is that her dissents were cited to show that she is outside the mainstream of what is widely recognized as one of the most conservative courts in the nation. In other words, citing her dissents show that she is extremely conservative even among conservatives. It is through her dissents that one can pinpoint that she demands even more than her colleagues.
At his Attorney General hearing before the Senate Judiciary Committee, Gonzales made it quite clear that he didn't consider her vote on that issue an unconscionable act of judicial activism, and it wasn't that he was talking about other justices' opinions. He was talking about all who voted that way, but he meant that if he were to vote that way, given his background views that he doesn't share with her, it would have been an unconscionable act of judicial activism. That doesn't mean it's that given her own background views.
This is the acs blog. You're supposed to be able to accurately read and report on decisions:
http://columbiacrs.blogspot.com/2005/05/pfaw-gets-it-wrong.html
http://powerlineblog.com/archives/010233.php#010233