The woman at center of the Senate's fight

Priscilla Owen's nomination to the federal bench has been scrutinized by Democrats who have balked at some of her rulings in Texas.

Priscilla Owen was first nominated by President Bush to a federal appeals-court post in May 2001 - four years ago.

That's enough time to earn a college degree. So it's hard to believe that there is anything that isn't already known about the Texas Supreme Court justice.

And yet, four years into her battle to win Senate confirmation, clouds of rhetoric are obscuring exactly who Ms. Owen is.

Republican senators say she is a careful and conservative jurist who adheres to the law rather than imposing her policy preferences by judicial fiat. She is an Episcopal Sunday school teacher who won 84 percent of the vote in her last Texas Supreme Court election and garnered the American Bar Association's highest rating - "well qualified."

Democrats say she is a conservative judicial activist, intent on enforcing restrictive social views on anyone who steps into her courtroom. Some allege she was handpicked in 1994 by Karl Rove, now a key adviser to Mr. Bush. Democrats say her judicial record shows she is a pro-business, antienvironment judge who takes a narrow view in civil rights cases.

If confirmed, she would become one of 17 judges on the Fifth US Circuit Court of Appeals, based in New Orleans. But before that, she might earn a paragraph in American history as the judicial nominee whose candidacy sparked the so-called nuclear option in the US Senate.

That special status as the first Bush nominee to test Senate majority leader Bill Frist's nuclear threat may explain at least some of the harsh rhetoric being used by her opponents.

Sen. Edward Kennedy of Massachusetts has called her "a candidate on the far fringes of legal thinking."

Republicans say she deserves better. "This debate is not about principle; it is all about politics, and it is shameful," says Sen. John Cornyn of Texas, who served on the state's Supreme Court with Owen. "Any fair examination of Justice Owen's record demonstrates how unconvincing the critics' arguments are."

Republicans have tried four times to bring her nomination to the Senate floor. Fifty-three senators have supported her - more than enough to win a life-time seat on the federal bench, but seven votes shy of the 60 needed to break a Democratic filibuster.

Democrats are standing their ground. They say she is the second most frequent dissenter on an already conservative high court.

"She is immoderate," says Sen. Charles Schumer of New York. "If there was ever a judge who would substitute her views for the law, it is Judge Owen."

One frequent refrain among Democrats is that even Bush's own attorney general, Alberto Gonzales, criticized Owen's judicial stance in a 2000 case when they served together on the Texas Supreme Court.

"Gonzales has said she was guilty of 'an unconscionable act of judicial activism,' " said Senator Kennedy in a recent speech on the Senate floor.

The comment prompted a response from Republican Sen. Orrin Hatch of Utah. "They know this claim is fiction, but they nonetheless continue to launch it," he said.

At issue is a Texas Supreme Court ruling in a case that dealt with the judicial bypass section of a Texas law requiring parental notification prior to a minor obtaining an abortion. The case involved a high school senior who said she was fearful that if her parents knew she was getting an abortion, they would cut off financial assistance to her, including payments for her to attend college.

The trial judge and an appeals-court panel declined to authorize the judicial bypass, ruling that the girl must notify at least one of her parents prior to the abortion. The Texas Supreme Court reversed both courts, saying that the state bypass provision was broad enough to encompass the girl's case.

Three justices wrote dissents. Two of the dissents suggested that the Texas law was written narrowly by the state Legislature to bar a bypass under most circumstances, and one of those two dissents accused the majority of engaging in judicial activism. The third dissent, written by Owen, raised a completely different legal point. She said the state high court should have upheld the trial court since it was the only court to have undertaken a detailed and direct assessment of the evidence.

"This court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions," Owen wrote. "The court thus overrules more than fifty years of precedent."

Mr. Gonzales was among the majority justices overturning the trial court. In a concurring opinion, he addressed concerns raised by two of the three dissenting opinions. He said the dissenting justices were reading the Texas bypass provision too narrowly.

"To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism," he wrote.

It is this quote that is being widely portrayed as an open criticism of Owen. But a careful reading of Owen's dissent, Gonzales's concurrence, and subsequent statements by Gonzales suggest he was not criticizing Owen.

In his concurrence Gonzales immediately adds, "As a judge, I hold the rights of parents to protect and guide ... their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the legislature has elected not to do so."

Gonzales was asked about his concurrence during his recent nomination hearing for attorney general. He said the comment was not directed at Owen or any other justice. "It was actually focused at me," he said.

In Gonzales's view, given his interpretation of what the Legislature intended and the words the lawmakers used in crafting the bypass provision, it would have been an act of judicial activism not to have granted the bypass in that case, he said.

"As to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended," Gonzales said.

Gonzales does not appear to be referring only to himself, however. His concurrence twice mentions the name of another Texas Supreme Court justice, Nathan Hecht - the same justice who had accused the majority of activism. But it nowhere refers to Owen.

Senate Democrats point to a string of other cases in which positions advocated by Owen were questioned by fellow justices on the court. It is not unusual for justices on a nine-member supreme court to disagree on the outcome of cases.

Democrats also cite the outcomes of various cases to suggest that she is not concerned with the plight of ordinary folks.

They note that she authored a decision reversing a $30 million jury award to the family of a 14-year-old boy who became a quadriplegic allegedly because of a seat-belt malfunction during a car accident. She ordered a new trial because the first trial was held in the wrong venue. The decision took a year and a half for the court to issue. The boy died before a new trial could be held.

In response, Owen has said that although she authored the majority decision, she was only one of nine justices working on the case. She said they took about the same amount of time to resolve the case as other cases that year.

Owen supporters say her opinion received bipartisan support among a majority on the Texas high court, and her ruling did not eliminate the ability of the family to sue in the proper county.

You've read  of  free articles. Subscribe to continue.
QR Code to The woman at center of the Senate's fight
Read this article in
QR Code to Subscription page
Start your subscription today