Statement Of Senator Patrick Leahy
On The Nomination Of Priscilla Owen
To Be A Judge On The United States Court Of Appeals For The Fifth Circuit
March 27, 2003

Two weeks ago today, this Committee met in an extraordinary, unprecedented session to reconsider the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit.  Never before has a President resubmitted a circuit court nominee already rejected by the Senate Judiciary Committee, for the same vacancy.  And until two weeks ago, never before had the Judiciary Committee rejected its own decision on such a nominee and granted a second hearing.  But, having decided not to give even one hearing to President Clinton’s nominees to the Fifth Circuit from Texas -- Enrique Moreno and Judge Jorge Rangel -- and having decided not to give satisfactory hearings to President Bush’s nominees to the D.C. and Sixth Circuits -- John Roberts and Deborah Cook -- the Committee nonetheless proceeded with another hearing for Justice Owen.

And what did we learn in that second hearing?  We learned that given some time, Justice Owen was able to enlist the help of the talented lawyers working at the White House and the Department of Justice to come up with some new justifications for her activism.  And we learned that given six months to reconsider the severe criticism directed at her by her Republican colleagues, she still admits no error.  Mostly, I think we learned that the objections expressed last September were sincerely held then and sincerely held now.  Nothing Justice Owen amplified about her record -- indeed, nothing anyone else tried to explain about her record – actually changed her record. 

In September, when we considered this nomination in Committee the first time, I said that I was proud that Democrats and some Republicans had kept to the merits of the nomination, and chose not to vilify, castigate, unfairly characterize and condemn without basis Senators working conscientiously to fulfill their constitutional responsibilities.  After hearing some of the ugly things that were subsequently said at that business meeting, some of the accusations made against my colleagues and those interested citizens who expressed opposition to Justice Owen’s nomination, I was sorely disappointed that not everyone kept to the merits. 

I continue to believe that what Senator Feinstein said that day is true:  by doing its job on the Owen nomination, by exercising due diligence, examining records, and not just rubber stamping every nominee that the President sent to us, this Committee showed itself to be alive and well.  We confirmed the overwhelming majority of the President’s judicial nominees, 100 out of 103 considered while I was Chairman, but we took the time to look at their records, and gave each person nominated to a lifetime seat on the federal bench the scrutiny he or she deserved.  We did not have an assembly line like that which has been in overdrive since the beginning of this Congress.

The rush to judgment on so many of the nominees before us does not change the fact that we fully and fairly considered the nomination of Priscilla Owen fairly last year.  The record was sufficient when we voted last year.  It needed no “setting straight.”  So, I will submit for the record the reasons I articulated for voting “no” the last time this nomination was before us. 

I have read her written answers, many newly formulated, that attempt to explain away her very disturbing opinions in the Texas parental notification cases.  Her record is still her record, and the record is clear.  She still does not satisfactorily explain why she infuses the words of the Texas legislature with so much more meaning than she can be sure they intended.  She adequately describes the precedents of the Supreme Court of the United States, to be sure, but she simply does not justify the leaps in logic and plain meaning she attempted in those decisions.   

I have read her responses to Senator Hatch’s “testimony” of two weeks ago, at her second hearing, where he attempted to explain away cases about which I had expressed concern last year.  For example, I know what the Chairman explained to her the opinion she wrote in a case called F.M. Properties v. City of Austin.  I read how he recharacterized the dispute in an effort to make it sound innocuous, just a struggle between two jurisdictions over some unimportant regulations.  I know how, through a choreography of leading questions and short answers, they tried to respond to my question from last July, which was never really answered, about why Justice Owen thought it was proper for the legislature to grant large corporate landowners the power to regulate themselves.  Again, I am unconvinced.  The majority in this case, which invalidated a state statute favoring corporations, does not describe the case or the issues as the Chairman and the nominee have.  A fair reading of the case shows no evidence of a struggle between governments.  This is all an attempt at after-the-fact justification where there really is none to be found. 

Justice Owen and Chairman Hatch’s explanation of the case also lacked even the weakest effort at rebutting the criticism of her by the F.M. Properties majority.  In its opinion, the six justice majority said, and I am quoting, that Justice Owen’s dissent was, “nothing more than inflammatory rhetoric.”  They explained why her legal objections were mistaken, saying that no matter what the state legislature had the power to do on its own, it was simply unconstitutional to give the big landowners the power they were given.  No talk of the City of Austin v. the State of Texas.  Just the facts. 

Likewise, the few explanations offered for the many other examples of the times her Republican colleagues criticized her were unavailing.  The tortured reading of Justice Gonzales’ remarks in the Doe case were unconvincing.  He clearly said that to construe the law in the way that Justice Owen’s dissent construed the law would be activism.  Any other interpretation is just not credible. 

And no reasons were offered for why her then-colleague, now ours, Justice Cornyn, thought it necessary to explain the principle of stare decisis to her in his opinion in Weiner v. Wasson.  Or why in Montgomery Independent School District v. Davis, the majority criticized her for her disregard for legislative language, saying that, “the dissenting opinion misconceives the hearing examiner's role in the . . . process,” which it said stemmed from, “its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards.”  Or why, in Collins v. Ison-Newsome, a dissent joined by Justice Owen was so roundly criticized by the Republican majority, which said the dissent agrees with one proposition but then “argues for the exact opposite proposition . . . [defying] the Legislature’s clear and express limits on our jurisdiction.” 

I have said it before, but I am forced to say it again.  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.  No good explanation was offered for these critical statements last year, and no good explanation was offered two weeks ago.  Politically motivated rationalizations do not negate the plain language used to describe her activism at the time.

Conclusion

I know my Republican colleagues will unfairly castigate us again today.  Indeed, at her hearing two weeks ago, the Chairman was very dismissive of our concerns and our efforts to evaluate this nomination on the merits.  She has now been before the Committee two times and neither time did the explanations change the facts we have before us.  Priscilla Owen's record, as I have described it today, as we described it in September, does not qualify her for a lifetime appointment to the federal bench. 

As I have demonstrated many times, I am ready to consent to the confirmation of consensus, mainstream judges, and I have on hundreds of occasions.  But the President has resent the Senate a nominee who raises serious and significant concerns.  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 on a court one step below the Supreme Court of the United States.  I oppose this nomination.

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