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Statement Of Chairman Patrick Leahy
On The Nominations Of Priscilla Owen
To Be A Judge On The United States Court Of Appeals For The Fifth
Circuit
And Reena Raggi
To Be A Judge On The United States Court Of Appeals For The Second
Circuit
Executive Business Meeting, Senate Judiciary Committee
September 5, 2002
Today we have on our agenda a number of the President’s nominees,
including Priscilla Owen to be a judge on the United States Court of
Appeals for the Fifth Circuit, and Reena Raggi to be a judge on the
United States Court of Appeals for the Second Circuit. These two
nominees will be the 80th and 81st judicial
nominees voted on by the Committee in less than 15 months, and the 16th
and 17th circuit court nominees voted on by the committee
in that time. This committee has worked diligently since the change
in majority last summer to consider more than 250 of the President’s
nominees.
During our first year in the majority, we have
held twice as many hearings for President Bush’s Courts of Appeals
nominees as were held in the first year of the Reagan Administration,
when the Senate was controlled by Republicans, and five times as many
as in the first year of the Clinton Administration, when the Senate
was controlled by Democrats. Under Democratic leadership, this
committee has also voted on more judicial nominees, 79 so far, than in
any of the six and one-half years of Republican control that preceded
the change in majority. We have already voted on twice as many
circuit court nominees, 15, as the Republican majority averaged in the
years they were in control. In fact, this last year we voted on more
judicial nominees than were voted on in 1999 and 2000 combined and on
more circuit court nominees than Republicans voted on in 1996 and 1997
combined.
We have achieved what we said we would by
treating President Bush’s nominees more fairly and more expeditiously
than President Clinton’s nominees were treated. By many measures the
Committee has achieved almost twice as much this last year as
Republicans averaged during their years in control.
In the six and one-half year period of Republican
control before the change in majority last summer, vacancies on the
Courts of Appeals more than doubled from 16 to 33 and overall
vacancies rose from 63 to 110. We have reversed those trends, even
though 43 vacancies have arisen since the changeover last year.
I have taken a number of actions to seek a
cooperative and constructive working relationship with all Senators on
both sides of the aisle and with the White House in order to make the
confirmation process more orderly, less antagonistic, and more
productive. Not all of my efforts have been successful and very few
of my suggestions to the Administration have yielded results, but I
have continued to make these efforts in the best interests of the
country, the Senate and this committee.
I am proud of the work the Committee has done
since the change in the majority. I am proud of the way we have
considered nominees fairly and expeditiously.
This morning’s circuit court nominees are two
very different examples of the types of nominees sent to the Senate by
this President. Judge Reena Raggi was appointed to the trial court in
1987 by President Ronald Reagan. She has a solid record of
accomplishment in both the private and public sectors. She received
the strong bipartisan support of two Democratic Senators, Charles
Schumer and Hillary Rodham Clinton, and of the New York legal
community. We have every reason to believe that she will serve with
distinction on the Second Circuit as a fair and impartial judge. She
is a conservative Republican.
In sharp contrast is the record of the other
circuit court nominee we consider today: Justice Priscilla Owen, a
nominee whose record is too extreme even in the context of the very
conservative Texas Supreme Court.
The Committee=s
Consideration of Justice Owen’s Nomination
Justice Owen has been nominated to fill a vacancy
that has existed since January, 1997. In the intervening five years,
President Clinton nominated Judge Jorge Rangel, a distinguished
Hispanic attorney from Corpus Christi, to fill that vacancy. Despite
his qualifications, and his unanimous rating of Well Qualified by the
ABA, Judge Rangel never received a hearing from the Committee, and his
nomination was returned to the President without Senate action at the
end of 1998, after a fruitless wait of 15 months.
On September 16, 1999, President Clinton
nominated Enrique Moreno, another outstanding Hispanic attorney, to
fill that same vacancy. Mr. Moreno did not receive a hearing on his
nomination either — for more than 17 months. President Bush withdrew
the nomination of Enrique Moreno to the Fifth Circuit and later sent
Justice Owen’s name in its place. It was not until May of this year,
at a hearing before Senator Schumer, that this committee heard from
any of President Clinton’s three unsuccessful nominees to the 5th
Circuit. This May Mr. Moreno and Mr. Rangel testified along with a
number of other Clinton nominees about their treatment by the
Republican majority. Thus, Justice Owen’s is the third nomination to
this vacancy and the first to be accorded a hearing before the
Committee.
In fact, when the Committee held its hearing on
the nomination of Judge Edith Clement to the Fifth Circuit last fall,
it was the first hearing on a Fifth Circuit nominee in seven years.
By contrast, Justice Owen is the third nomination to the Fifth Circuit
on which this committee has held a hearing in less than one year. In
spite of the treatment by the former Republican majority of so many
moderate judicial nominees of the previous President, we proceeded
this July, as I said that we would, with a hearing on Justice Owen.
Justice Owen is one among 16 Texas nominees who
have been considered by this Committee since I became Chairman. So
far, five District Court judges, four United State Attorneys, three
United States Marshals, and three executive branch appointees from
Texas have moved swiftly through the Judiciary Committee.
When Justice Owen was initially nominated, the
President changed the confirmation process from that used by
Republican and Democratic Presidents for more than 50 years. That
resulted in her ABA peer review not being received until later in the
summer. As a result of a Republican objection to the Democratic
leadership’s request to retain all judicial nominations pending before
the Senate through the August recess, the initial nomination of
Justice Owen was required by Senate rules to be returned to the
President without action. The Committee nonetheless took the
unprecedented action of proceeding during the August recess to hold
two hearings involving judicial nominations, including a nominee to
the Court of Appeals for the Federal Circuit.
In my efforts to accommodate a number of
Republican Senators, including the Republican Leader, this Committee’s
ranking member, and at least four other Republican members of this
Committee, I have scheduled hearings for nominees out of the order in
which they were received. This has been a longstanding practice of
the Committee.
It is also a fact that less controversial
nominations are easier to consider and are, by and large, able to be
scheduled sooner than more controversial nominations. This is
especially important in the circumstances that existed last summer at
the time of the change in majority. At that time we faced what
Republicans have now admitted had become a vacancies crisis. From
January 1995 when the Republican majority assumed control of the
confirmation process in the Senate until the shift in majority last
summer, vacancies rose from 65 to 110 and vacancies on the Courts of
Appeals more than doubled from 16 to 33. I thought it important to
make as much progress as quickly as we could in the time available to
us last year, and we did. Evaluating the record of a nominee whose
record raises questions as serious as those about Justice Owen simply
takes longer.
The responsibility to advise and consent on the
President=s
nominees is one that I take seriously and that this committee takes
seriously. Justice Owen=s
nomination to the Court of Appeals has been given a fair hearing and a
fair process before this Committee. I thank all Members of the
Committee for their fairness. Those who have had concerns have raised
them and have heard the nominee’s responses, in private meetings, at
her public hearing and in written follow-up questions.
I would particularly like to commend Senator
Feinstein for her evenhandedness in chairing the hearing for Justice
Owen. It was a long day, in which nearly every Senator who is a
member of this Committee came to question Justice Owen, and Senator
Feinstein handled it with patience and fairness.
I am proud that Democrats and most Republicans
have kept to the merits of this nomination, and have not chosen to
vilify, castigate, unfairly characterize and condemn without basis
Senators working conscientiously to fulfill their constitutional
responsibilities. To those who will take this occasion to engage in
name-calling or accusations of political posturing, I can only express
my disappointment.
The constitutional responsibility to advise and
consent to the President=s
life tenure judicial nominees is not an occasion to rubber stamp. The
nomination of Justice Priscilla Owen presents a number of areas of
serious concern to me.
The Conservative Majority’s Criticism of
Justice Owen
The first area of concern to me is Justice Owen’s
extremism even among a conservative Supreme Court of Texas. The
conservative Republican majority of the Texas Supreme Court has gone
out of its way to criticize Justice Owen and the dissents she joined
in ways that are highly unusual and that highlight her ends-oriented
activism. A number of Texas Supreme Court Justices have pointed out
how far from the language of statute she has strays in her attempts to
push the law beyond what the legislature intended.
One example is the majority opinion in Weiner
v. Wasson, 900 S.W.2d 316 (Tex. 1995). In this case, Justice Owen
wrote a dissent advocating a ruling against a medical malpractice
plaintiff injured while he was still a minor. The issue was the
constitutionality of a State law requiring minors to file medical
malpractice actions before reaching the age of majority, or risk being
outside the statute of limitations. Of interest is the majority’s
discussion of the importance of abiding by a prior Texas Supreme Court
decision unanimously striking down a previous version of the statute.
In what reads as a lecture to the dissent, then-Justice John Cornyn
(the current Texas Attorney General and Republican nominee for the
U.S. Senate) explains on behalf of the majority:
Generally, we adhere to our precedents for reasons of efficiency,
fairness, and legitimacy. First, if we did not follow our own
decisions, no issue could ever be considered resolved. The potential
volume of speculative relitigation under such circumstances alone
ought to persuade us that stare decisis is a sound policy. Secondly,
we should give due consideration to the settled expectations of
litigants like Emmanuel Wasson, who have justifiably relied on the
principles articulated in [the previous case]. . . . Finally, under
our form of government, the legitimacy of the judiciary rests in large
part upon a stable and predictable decisionmaking process that differs
dramatically from that properly employed by the political branches of
government. Id. at 12-13. (Citations omitted.)
According to the conservative majority on the
Texas Supreme Court, Justice Owen went out of her way to ignore
precedent and would have ruled for the defendants. The conservative
Republican majority followed precedent and the doctrine of stare
decisis.
In Montgomery Independent School District v.
Davis, 34 S.W. 3d 559 (Tex. 2000), Justice Owen wrote another
dissent which drew fire from a conservative Republican majority – this
time for her disregard for legislative language. In a challenge by a
teacher who did not receive reappointment to her position, the
majority found that the school board had exceeded its authority when
it disregarded the Texas Education Code and tried to overrule a
hearing examiner’s decision on the matter. Justice Owen’s dissent
advocated for an interpretation contrary to the language of the
applicable statute. The majority, which included Alberto Gonzales and
two other appointees of then-Governor Bush, was quite explicit about
its view that Justice Owen’s position disregarded the law:
The dissenting opinion misconceives the hearing examiner’s role in the
. . . process by stating that the hearing examiner ‘refused’ to make
findings on the evidence the Board relies on to support its additional
findings. As we explained above, nothing in the statute requires
the hearing examiner to make findings on matters of which he is
unpersuaded. . . . Id. at 25-26. (Emphasis added.)
The majority also
noted that:
The dissenting opinion’s misconception of the hearing examiner’s
role stems from its disregard of the procedural elements the
Legislature established in subchapter F to ensure that the
hearing-examiner process is fair and efficient for both teachers and
school boards. The Legislature maintained local control by giving
school boards alone the option to choose the hearing-examiner process
in nonrenewal proceedings. . . . By resolving conflicts in
disputed evidence, ignoring credibility issues, and essentially
stepping into the shoes of the factfinder to reach a specific result,
the dissenting opinion not only disregards the procedural limitations
in the statute but takes a position even more extreme than that argued
for by the board. . ..” Id. at 28. (Emphasis added.)
Collins v. Ison-Newsome, 73 S.W.3d 178, is
yet another case where a dissent, joined by Justice Owen, was roundly
criticized by the Republican majority of the Texas Supreme Court.
The Court cogently stated the legal basis for its conclusion that it
had no jurisdiction to decide the matter before it, and as in other
opinions where Justice Owen was in dissent, took time to explicitly
criticize the dissent’s positions as contrary to the clear letter of
the law.
At issue was whether the Supreme Court had the
proper “conflicts jurisdiction” to hear the interlocutory appeal of
school officials being sued for defamation. The majority explained
that it did not because published lower court decisions do not create
the necessary conflict between themselves. The arguments put forth by
the dissent, in which Justice Owen joined, offended the majority, and
they made their views known, writing:
The dissenting opinion agrees that “because this is an
interlocutory appeal . . . this Court’s jurisdiction is limited,” but
then argues for the exact opposite proposition . . . This argument
defies the Legislature’s clear and express limits on our jurisdiction.
. . . The author of the dissenting opinion has written previously that
we should take a broader approach to the conflicts-jurisdiction
standard. But a majority of the Court continues to abide by the
Legislature’s clear limits on our interlocutory-appeal jurisdiction.
Id. at 182. (Emphasis added.)
They continue:
[T]he dissenting opinion’s reading of Government Code sec. 22.225(c)
conflates conflicts jurisdiction with dissent jurisdiction, thereby
erasing any distinction between these two separate bases for
jurisdiction. The Legislature identified them as distinct bases for
jurisdiction in sections 22.001(a)(1) and (a)(2), and section
22.225(c) refers specifically to the two separate provisionsn of
section 22.001(a) providing for conflicts and dissent jurisdiction. .
. . [W]e cannot simply ignore the legislative limits on our
jurisdiction, and not even Petitioners argue that we should do so on
this basis. Id. at 183. (Emphasis added.)
Again, Justice Owen joined a dissent that the
Republican majority described as defiant of legislative intent and in
disregard of legislatively drawn limits.
Some of the most striking examples of criticism
of Justice Owen’s writings, or the dissents and concurrences she
joins, come in a series of parental notification cases heard in
2000. They include:
-
In re Jane Doe 1, where the majority included an extremely
unusual section explaining its view of the proper role of judges,
admonishing the dissent joined by Justice Owen for going beyond its
duty to interpret the law in an attempt to fashion policy.
-
Giving a pointed critique of the dissenters, the majority
explained that, “In reaching the decision to grant Jane Doe’s
application, we have put aside our personal viewpoints and
endeavored to do our job as judges – that is, to interpret and
apply the Legislature’s will as it has been expressed in the
statute.” 19 S.W.3d 346.
-
In a separate concurrence, Justice Alberto Gonzales wrote that to
the construe law as the dissent did, “would be an unconscionable
act of judicial activism.”
-
In In re Jane Doe 3, Justice Enoch writes specifically to
rebuke Justice Owen and her follow dissenters for misconstruing
the legislature’s definition of the sort of abuse that may occur
when parents are notified of a minor’s intent to have an abortion,
saying, “abuse is abuse; it is neither to be trifled with nor its
severity to be second guessed.”
In one case that is perhaps the exception that
proves the rule, Justice Owen wrote a majority that was
bitterly criticized by the dissent for its activism. In In re City
of Georgetown, 53 S.W. 3d 328, (Tex. 2001), Justice Owen wrote a
majority opinion finding that the city did not have to give the
Austin American-Statesman a report prepared by a consulting expert
in connection with pending and anticipated litigation
because such information was expressly made confidential under other
law, namely the Texas Rules of Civil Procedure.
The dissent is
extremely critical of Justice Owen’s opinion, citing the Texas law's
strong preference for disclosure and liberal construction. Accusing
her of activism, Justice Abbott, joined by Chief Justice Phillips and
Justice Baker, notes that the legislature, “expressly identified
eighteen categories of information that are ‘public information’ and
that must be disclosed upon request . . . [sec. (a)] The Legislature
attempted to safeguard its policy of open records by adding subsection
(b), which limits courts’ encroachment on its legislatively
established policy decisions.” Id.
at 338. The dissent further protests:
[b]ut if this Court has the power to
broaden by judicial rule the categories of information that are
‘confidential under other law,’ then subsection (b) is eviscerated
from the statute. By determining what information falls outside
subsection (a)’s scope, this Court may evade the mandates of
subsection (b) and order information withheld whenever it sees fit.
This not only contradicts the spirit and language of subsection (b),
it guts it. Id. (Emphasis added.)
Finally, the opinion
concluded by asserting that Justice Owen’s interpretation, “abandons
strict construction and rewrites the statute to eliminate subsection (b)'s
restrictions." Id.
at 343.
These examples, together with the unusually harsh
language directed at Justice Owen’s position by the majority in the
Doe cases, show a judge out of step with the conservative Republican
majority of the Texas Supreme Court, a majority not afraid to explain
the danger of her activist views.
Ends-Oriented Judicial Activism Showing Bias
Against Consumers, Victims, Individuals
I am also greatly concerned about Justice Owen’s
record of ends-oriented decision making as a Justice on the Texas
Supreme Court. As one reads case after case, particularly those in
which she was the sole dissenter or dissented with the extreme right
wing of the Court, her pattern of activism becomes clear. Her legal
views in so many cases involving statutory interpretation simply
cannot be reconciled with the plain meaning of the statute, the
legislative intent, or the majority’s interpretation, leading to the
conclusion that she sets out to justify some pre-conceived idea of
what the law ought to mean. This is not an appropriate way for a
judge to make decisions. This is a judge whose record reflects that
she is willing and sometimes eager to make law from the bench.
Justice Owen’s activism and extremism is
noteworthy in a variety of cases, including those dealing with
business interests, malpractice, access to public information,
employment discrimination and Texas Supreme Court jurisdiction, in
which she writes against individual plaintiffs time and time again, in
seeming contradiction of the law as written.
One of the cases where this trend is evident is
FM Properties v. City of Austin, 22 S.W. 3d 868 (Tex. 1998). I
asked Justice Owen about this 1998 environmental case at her hearing.
In her
dissent from a 6-3 ruling, in which Justice
Alberto Gonzales was among the majority, Justice Owen showed her
willingness to rule in favor of large private landowners against the
clear public interest in maintaining a fair regulatory process and
clean water. Her dissent, which the majority characterized as,
“nothing more than inflammatory rhetoric,” was an attempt to favor big
landowners.
In this case, the Texas Supreme Court found that
a section of the Texas Water Code allowing certain private owners of
large tracts of land to create “water quality zones,” and write their
own water quality regulations and plans, violated the Texas
Constitution because it improperly delegated legislative power to
private entities. The Court found that the Water Code section gave
the private landowners, “legislative duties and powers, the exercise
of which may adversely affect public interests, including the
constitutionally-protected public interest in water quality.” Id.
at 876-77. The Court also found that certain aspects of the Code and
the factors surrounding its implementation weighed against the
delegation of power, including the lack of meaningful government
review, the lack of adequate representation of citizens affected by
the private owners’ actions, the breadth of the delegation, and the
big landowners’ obvious interest in maximizing their own profits and
minimizing their own costs.
The majority offered a strong opinion, detailing
its legal reasoning and explaining the dangers of offering too much
legislative power to private entities. By contrast, in her dissent,
Justice Owen argued that, “[w]hile the Constitution certainly permits
the Legislature to enact laws that preserve and conserve the State’s
natural resources, there is nothing in the Constitution that requires
the Legislature to exercise that power in any particular manner,”
ignoring entirely the possibility of an unconstitutional delegation of
power. Id. at 889. Her view strongly favored large business
interests to the clear detriment of the public interest, and against
the persuasive legal arguments of a majority of the Court.
When I asked her about this case at her hearing,
I found her answer perplexing. In a way that she did not argue in her
written dissent, at her hearing Justice Owen attempted to cast the FM
Properties case not as, “a fight between and City of Austin and big
business, but in all honesty, . . . really a fight about . . . the
State of Texas versus the City of Austin.” Transcript at 69. In the
written dissent however, she began by stating the, “importance of this
case to private property rights and the separation of powers between
the judicial and legislative branches. . .”, and went on to decry the
Court’s decision as one that, “will impair all manner of property
rights.” 22 S.W. 3d at 889. At the time she wrote her dissent,
Justice Owen was certainly clear about the meaning of this case –
property rights for corporations.
Another case that concerned me is the case of
GTE Southwest, Inc. v. Bruce, 990 S.W.2d 605, where Justice Owen
wrote in favor of GTE in a lawsuit by employees for intentional
infliction of emotional distress. The rest of the Court held that
three employees subjected to what the majority characterized as
“constant humiliating and abusive behavior of their supervisor” were
entitled to the jury verdict in their favor. Despite the Court’s
recitation of an exhaustive list of sickening behavior by the
supervisor, and its clear application of Texas law to those facts,
Justice Owen wrote a concurring opinion to explain her difference of
opinion on the key legal issue in the case – whether the behavior in
evidence met the legal standard for intentional infliction of
emotional distress.
Justice Owen contended that the conduct was not,
as the standard requires, “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency…” Id.
at 621. The majority opinion shows Justice Owen’s concurrence
advocating an inexplicable point of view that ignores the facts in
evidence in order to reach a predetermined outcome in the
corporation’s favor.
At her hearing, in answer to Senator Edwards’
questions about this case, Justice Owen again gave an explanation not
to be found in her written views. She told him that she agreed with
the majority’s holding, and wrote separately only to make sure that
future litigants would not be confused and think that out of context,
any one of the outrages suffered by the plaintiffs would not support a
judgment. Looking again at her dissent, I do not see why, if that was
what she truly intended, she did not say so in language plain enough
to be understood, or why she thought it necessary to write and say it
in the first place. It is a somewhat curious distinction to make – to
advocate that in a tort case a judge should write a separate
concurrence to explain which part of the plaintiff’s case, standing
alone, would not support a finding of liability. Neither her written
concurrence, nor her answers in explanation after the fact, is
satisfactory explanation of her position in this case.
In City of Garland v. Dallas Morning News,
22 S.W. 3d 351 (Tex. 2000), Justice Owen dissented from a majority
opinion and, again, it is difficult to justify her views other than as
based on a desire to reach a particular outcome. The majority upheld
a decision giving the newspaper access to a document outlining the
reasons why the city’s finance director was going to be fired.
Justice Owen made two arguments: that because the document was
considered a draft it was not subject to disclosure, and that the
document was exempt from disclosure because it was part of policy
making. Both of these exceptions were so large as to swallow the rule
requiring disclosure. The majority rightly points out that if Justice
Owen’s views prevailed, almost any document could be labeled draft to
shield it from public view. Moreover, to call a personnel decision a
part of policy making is such an expansive interpretation it would
leave little that would not be “policy”.
Quantum Chemical v. Toennies, 47 S.W. 3d
473 (Tex. 2001), is another troubling case where Justice Owen joined a
dissent advocating an activist interpretation of a clearly written
statute. In this age discrimination suit brought under the Texas
civil rights statute, the relevant parts of which were modeled on
Title VII of the federal Civil Rights Act (and its amendments), the
appeal to the Texas Supreme Court centered on the standard of
causation necessary for a finding for the plaintiff. The plaintiff
argued, and the five justices in the majority agreed, that the plain
meaning of the statute must be followed, and that the plaintiff could
prove an unlawful employment practice by showing that discrimination
was “a motivating factor.” The employer corporation argued,
and Justices Hecht and Owen agreed, that the plain meaning could be
discarded in favor of a more tortured and unnecessary reading of the
statute, and that the plaintiff must show that discrimination was “the
motivating factor,” in order to recover damages.
The portion of Title VII on which the majority
relies for its interpretation was part of Congress’s 1991 fix to the
United States Supreme Court’s opinion in the Price Waterhouse
case, which held that an employer could avoid liability if the
plaintiff could not show discrimination was “the” motivating factor.
Congress’s fix, in Section 107 of the Civil Rights Act of 1991, does
not specify whether the motivating factor standard applies to both
sorts of discrimination cases, the so-called “mixed motive” cases as
well as the “pretext” cases.
The Texas majority concluded that they must rely
on the plain language of the statute as amended, which could not be
any clearer that under Title VII discrimination can be shown to be “a”
motivating factor. Justice Owen joined Justice Hecht in claiming
that federal case law is clear (in favor of their view), and opted
for a reading of the statute that would turn it into its polar
opposite, forcing plaintiffs into just the situation legislators were
trying to avoid. This example of Justice Owen’s desire to change the
law from the bench, instead of interpret it, fits President Bush’s
definition of activism to a “T”.
Notification Cases
Justice Owen has also demonstrated her tendency
toward ends-oriented decision making quite clearly in a series of
dissents and concurrences in cases involving a Texas law providing for
a judicial bypass of parental notification requirements for minors
seeking abortions.
The most striking example is Justice Owen’s
expression of disagreement with the majority’s decision on key legal
issues in Doe 1. She strongly disagreed with the majority’s
holding on what a minor would have to show in order to establish that
she was, as the statute requires, “sufficiently well informed” to make
the decision on her own. While the conservative Republican majority
laid out a well-reasoned test for this element of the law, based on
the plain meaning of the statute and well-cited case law, Justice Owen
inserted elements found in neither authority. Specifically, Justice
Owen insisted that the majority’s requirement that the minor be “aware
of the emotional and psychological aspects of undergoing an abortion”
was not sufficient and that among other requirements with no basis in
the law, she, “would require. . . [that the minor] should . . .
indicate to the court that she is aware of and has considered that
there are philosophic, social, moral, and religious arguments that can
be brought to bear when considering abortion.” In re Doe 1, 19 S.W.3d
249, 256 (Tex. 2000)
In her written concurrence, Justice Owen
indicated, through legal citation, that support for this proposition
could be found in a particular page of the Supreme Court’s opinion in
Planned Parenthood v. Casey. However, when one looks at that
portion of the Casey decision, one finds no mention of
requiring a minor to acknowledge religious or moral arguments. The
passage talks instead about the ability of a State to, “enact rules
and regulations designed to encourage her to know that there are
philosophic and social arguments of great weight that can be brought
to bear,” Casey at 872. Justice Owen’s reliance on this portion of
a United States Supreme Court opinion to rewrite Texas law was simply
wrong.
As she did in answer to questions about a couple
of other cases at her hearing, Justice Owen tried to explain away this
problem with an after the fact justification. She told Senator
Cantwell that the reference to religion was not to be found in Casey
after all, but in another U.S. Supreme Court case, H.L. v.
Matheson. She explained that in, “Matheson they talk about
that for some people it raises profound moral and religious concerns,
and they’re talking about the desirability or the State’s interest in
these kinds of considerations in making an informed decision.”
Transcript at 172. But again, on reading Matheson, one sees
that the only mention of religion comes in a quotation meant to
explain why the parents of the minor are due notification, not about
the contours of what the government may require someone to prove to
show she was fully well informed. Her reliance on Matheson
for her proposed rewrite of the law is just as faulty as her reliance
on Casey. Neither one supports her reading of the law. She
simply tries a little bit of legal smoke and mirrors to make it appear
as if they did. This is the sort of ends-oriented decision making
that destroys the belief of a citizen in a fair legal system. And
most troubling of all was her indicating to Senator Feinstein that she
still views her dissents in the Doe cases as the proper reading and
construction of the Texas statute.
Conclusion
Last May, President
Bush said that his standard for judging judicial nominees would be
that they “share a commitment to follow and apply the law, not to make
law from the bench.” Priscilla Owen’s record, as I have described it
today, does not qualify her under that standard for a lifetime
appointment to the federal bench.
The President has
often spoken of judicial activism without acknowledging that
ends-oriented decision making can come easily to ideological
conservative nominees. In the case of Priscilla Owen, we see a
perfect example of such an approach to the law, and I cannot support
it.
As I said earlier, when the President sends us a
nominee who raises concerns over qualifications or integrity or who
has a misunderstanding of the appropriate role of a federal judge, I
will make my concerns known. This is one of those times. In his
selection of Priscilla Owen for the Fifth Circuit, the President and
his advisors are trying to do to the Fifth Circuit what they did to
the Texas Supreme Court. Plucked from a law firm by political
consultant Karl Rove, Justice Owen ran as a conservative, pro-business
candidate for the Texas Supreme Court, and she received ample support
from the business community. She fulfilled her promise, becoming the
most conservative judge on a conservative court, standing out for her
ends-oriented, extremist decision making. Now, on a bigger stage, the
President and Mr. Rove want a repeat performance: sending Justice
Owen to a court one step below the Supreme Court of the United States,
attempting to skew its decisions out of step with the mainstream.
Before and after he
took office, President Bush said he wanted to be a uniter and not a
divider, yet he has sent the Senate several nominees who divide the
Senate and the American people. Over the last 14 months, this
committee has exceeded the pace of recent years in approving more than
six dozen of the President’s judicial nominees – most of them,
conservative Republicans. The Senate by now has confirmed 73 of
them. This committee and the Senate have made the judgment that those
nominees will fulfill their duties to act fairly and impartially. I
urge the President to choose nominees who fit that profile, not the
profile of Justice Owen.
The oath taken by
federal judges affirms their commitment to “administer justice without
respect to persons, and do equal right to the poor and to the rich.”
No one who enters a federal courtroom should have to wonder whether he
or she will be fairly heard by the judge. Justice Priscilla Owen’s
record shows me that she has not fulfilled that commitment on the
Supreme Court of Texas, and I cannot vote to confirm her for this
appointment to one of the highest courts in the land.
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