The case of judges v. ideology

She has been so controversial that a fellow conservative on the Texas Supreme Court, the man who is now Mr. Bush's legal counsel, denounced one of her positions as "an unconscionable act of judicial activism."

Her nomination to a federal circuit court last year was rejected by the Democratic-controlled Senate Judiciary Committee.

But now Priscilla Owen is back.

Bush has renominated the Texan to the federal bench, and with Republicans narrowly controlling the US Senate, her approval is now much more likely. She does not, of course, rankle all conservatives - and is, in fact, the darling of many. To friends and foes alike, her nomination, along with that of conservative Judge Charles Pickering Sr. of Mississippi, symbolizes a larger fight over the shape of the American judiciary - and over just how important judges' political views should be.

"One of the great debates in recent years ... is whether these judges should bring their ideological orientation to their work or whether they should apply the law on its own terms," says Roger Pilon, director of the Cato Institute's Center for Constitutional Studies in Washington.

Whoever fills the seats, the appellate courts play a crucial role in America's justice system. While the US Supreme Court is often called the "court of last resort," the vast majority of appealed cases never get there. In 2001, for example, the appellate courts issued over 28,000 decisions while the Supreme Court issued fewer than 100.

The nomination process has been mired in partisan politics for years. But if Bush succeeds in filling all vacancies at the circuit level, Republican-appointed judges will have the majority in 11 of 13 courts.

Owen, as one of the most controversial nominees, will be an important test for the White House. To critics, she is an activist bent on transforming her ideology into precedent. Of particular concern is a dissenting opinion she wrote in 2000 on Texas's parental notification law, which allows minors seeking abortions to bypass parental notification if certain criteria are met.

In her dissent, Owen tried to construct additional barriers to bypassing notification, prompting then-Justice Alberto Gonzales to chastise her. And, in fact, she has voted to deny the bypass in every case that has come before the Texas Supreme Court.

Last July, the Senate Judiciary Committee also grilled her about $8,600 in legal campaign contributions she received from Enron before it collapsed. They wanted to know why she had not recused herself in a subsequent case involving Enron and the Spring School District, in which the court's unanimous decision saved the company $224,989 in taxes. "I find so many of these things where you seem to be outside the mainstream of what is arguably a very conservative supreme court," said committee chairman Patrick Leahy (D) of Vermont, during questioning.

But if Owen has virulent critics, she also has ardent defenders. "Priscilla Owen is not some sort of wide-eyed right winger," says Kelly Shackelford, chief counsel at the Liberty Legal Institute in Plano, Texas. "She is more reflective of the conservative judicial philosophy, but she is still well within the mainstream."

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