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Leahy Opposes
Nomination Of Priscilla Owen;
Panel Approves Nominee On Party-Line Vote
WASHINGTON
(Thursday, April 21, 2005) – The Senate Judiciary Committee, in a
10-8 party-line vote, reported out the controversial judicial
nomination of Priscilla Owen on Thursday. All eight Democratic
members of the Committee voted against the nomination, which now
moves to the full Senate. Owen is nominated to the Fifth Circuit
Court of Appeals. The Senate rejected her nomination last Congress,
with Democrats opposing Owen based on her record of judicial
activism and established bias against consumers and victims. A
statement from Senator Patrick Leahy (D-Vt.), the ranking Democratic
member of the panel, opposing the nomination, follows, as well as
background material on Owen’s record.
Statement Of Senator Patrick Leahy
On The Nomination Of Priscilla Owen
To The U.S. Court of Appeals for the Fifth Circuit
April 21, 2005
Three years ago
I first considered the nomination of Priscilla Owen to be a judge on
the United States Court of Appeals for the Fifth Circuit. After
reviewing her record, hearing her testimony and evaluating her
answers I voted against her confirmation and explained at length why
I did not support her confirmation. Nothing about her record or the
reasons that led me then to vote against confirmation has changed
since that time. Unlike the consideration of the nomination of
William Myers, on which this Committee held another hearing this
year before seeking reconsideration, there has been no effort to
supplement the record on this nomination. It was, in my view,
inadequate to justify a favorable reporting of the nomination in
2002 and was inadequate to gain the consent of the Senate during the
last two years.
I suspect that
as this controversial renomination makes its way to the Senate
floor, again, it will be used to trigger a partisan-driven
scorched-earth deployment by Senate Republicans of their “nuclear
option.”
In the 107th
Congress, when I served as Chairman of the Committee, Justice Owen
was treated with extreme fairness, and given due process and
consideration by this Committee. Senator Feinstein chaired a very
evenhanded hearing, noticeable for its fairness and calm. Those who
had concerns about her record raised them and heard the nominee's
responses, in private meetings, at her public hearing and in written
follow-up questions. I brought her nomination up for a vote, and
following an open debate where her opponents discussed her record
and their objections on the merits, the nomination was rejected.
She was accorded courtesy and fairness and her nomination was
openly debated and rejected. That fair treatment stands in sharp
contrast to the way Republicans had treated President Clinton’s
nominees, including several to the Fifth Circuit.
That should
have ended things right there. But looking back, we now see that
this nomination represents how the White House and Senate
Republicans will trample on precedent and do whatever is necessary
in order to get every last nominee of this President’s confirmed, no
matter how extreme he or she may be. Priscilla Owen’s nomination
was the first judicial nomination ever to be resubmitted after
already being debated, voted upon and rejected by the Senate
Judiciary Committee.
When the Senate
majority shifted, Republicans reconsidered this nomination and sent
it to the Senate on a straight, party-line vote. When they had been
in the majority they had refused to hold hearings on President
Clinton’s Fifth Circuit nominees from Texas for this same vacancy --
Enrique Moreno and Judge Jorge Rangel.
Senators who
opposed this nomination did so because Priscilla Owen’s record shows
her to be an ends-oriented activist judge. I have previously
explained my views of Justice Owen’s record. I have noted the
criticism her decisions engendered from others on the conservative
Texas Supreme Court, and how her rulings favored the interests of
big business over ordinary people.
Today, I will
just highlight some of the cases that illustrate these points:
Criticism By Texas Republican
Majority
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
fact that she joined dissents 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 strayed in her attempts to push the law beyond what
the legislature intended.
One example of
criticism from the majority is the court’s opinion in the case of
Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). Part of it,
written by our colleague, then-Justice Cornyn, reads as a lecture to
the dissent, which included Owen, on the importance of abiding by a
prior Texas Supreme Court decision. As written back then, it is
hard to read it any other way than as a painstakingly elementary
exegesis on why adherence to precedent is important.
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. 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.
In Collins
v. Ison-Newsome, 73 S.W.3d 178 -- another dissent, this time
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. 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:
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In re
Jane Doe 1, where the majority included an 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.
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Giving a pointed critique of the
dissenters, the majority explained that, AIn 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.
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In a separate concurrence,
Justice Alberto Gonzales wrote that to the construe law as the
dissent did, Awould be an unconscionable act of judicial
activism.
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In In re
Jane Doe 3, Justice Enoch wrote 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, Aabuse 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 opinion 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 Texas law's strong preference for disclosure and
liberal construction.
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.
Judicial Activism Showing Bias
Against Consumers, Victims, Individuals
I am also
greatly concerned about Justice Owen's record of ends-oriented
decisionmaking 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.
A few examples
include:
FM
Properties v. City of Austin,
where 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, Anothing more than inflammatory
rhetoric,@ was an attempt to favor big landowners. At her first
hearing, and since, Justice Owen and her supporters on the Committee
have tried to recast this case as something more innocent, but at
the time she wrote her dissent, Justice Owen was certainly clear
about the meaning of this case -- property rights for big
corporations.
GTE
Southwest, Inc. v. Bruce,
is another example where Justice Owen wrote in favor of GTE in a
lawsuit by employees for intentional infliction of emotional
distress. Despite the majority’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 that the conduct was not, as the standard requires, Aso
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decencyY@ 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.
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, this time shielding government
decision-making from public view.
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, this time in the context of employment
discrimination. 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 Aa@
motivating factor, contrary to Justice Owen’s more activist view.
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. I
know recently distributed materials attempt to paint Justice Owen’s
parental notification cases in a more favorable light, but I think
we all see those attempts for the revisionism they are.
Any fair
reading of her opinions in these cases shows that in 11 of 12
decisions involving judicial bypass, which affected 10 different
young women, Owen voted either to deny or to create greater
obstacles to a bypass. Any fair reading of her language shows a
jurist uncomfortable with the legislature’s choices, trying mightily
to impose her own. And any reading of Alberto Gonzales’s separate
concurrence in one of the cases shows that at least one of her
Republican colleagues considered her views to represent
“unconscionable judicial activism.” This is not the sort of judge
who deserves a lifetime appointment to the federal bench.
Conclusion
When he nominated Priscilla Owen,
President Bush said that his standard for judging judicial nominees
would be that they Ashare a commitment to follow and apply the law,
not to make law from the bench.@ Priscilla Owen's record of
ends-oriented judicial activism 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. The oath taken by federal judges affirms their commitment to
Aadminister 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 of judicial activism and
ends-oriented decision making leaves me with grave doubt about her
ability to be a fair judge. The President says he opposes putting
judicial activists on the federal bench, yet Justice Priscilla Owen
unquestionably is a judicial activist. I cannot vote to confirm her
for this appointment to one of the highest courts in the land.
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(Background material on Justice Owen’s Record)
PRISCILLA OWEN – NOMINEE TO THE U.S.
COURT OF APPEALS FOR THE FIFTH CIRCUIT FROM TEXAS
PRISCILLA OWEN IS AN ENDS-ORIENTED
JUDICIAL ACTIVIST SHOWING BIAS AGAINST CONSUMERS, VICTIMS,
INDIVIDUAL PLAINTIFFS
In
case after case involving a variety of legal issues, the judicial
record of Justice Priscilla Owen shows her to be a judicial
activist, willing to make law from the bench rather than follow the
language and intent of the legislature.
She has demonstrated this tendency most clearly in a series of
dissents in cases involving a Texas law providing for a judicial
bypass of parental notification requirements for minors seeking
abortions. She sought to erect barriers that did not exist in the
statute.
In
addition to cases dealing with parental notification, 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 rules against individual plaintiffs
time and time again.
THE CONSERVATIVE MAJORITY’S
CRITICISM OF JUSTICE OWEN IS DISTURBING AND HIGHLIGHTS HER ACTIVISM
Priscilla Owen’s position as a frequent dissenter on the Texas
Supreme Court filled with Republican appointees highlights her
activist bent, showing how far from the language of the statute she
strays in her attempts to push the law beyond what the legislature
intended.
Criticisms of her dissents by the majority include the following,
unusual in legal writing for their harsh tone:
-
In FM
Properties v. City of Austin, the majority calls her
dissent, “nothing more than inflammatory rhetoric.”
-
In Montgomery Independent
School District v. Davis, the majority (which included
Alberto Gonzales and two other Bush appointees) is quite
explicit about its view that Owen’s position disregards the law,
saying that “nothing in the statute requires” what she says it
does, and that, “the dissenting opinion’s misconception . . .
stems from its disregard of the procedural elements the
Legislature established,” and that 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. . .”
-
In In re Jane Doe, the
majority includes 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, and in a separate
concurrence, Justice Alberto Gonzales says that to the construe
law as the dissent did, “would be an unconscionable act of
judicial activism.”
-
In Weiner v. Wasson, in
what reads as a lecture to the dissent, then-Justice John Cornyn
(now Senator Cornyn) explains stare decisis on behalf of the
majority, in language that would be used with a beginning law
student.
-
In In re Jane Doe 3,
Justice Enoch writes specifically to rebuke 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.”
PRISCILLA OWEN SHOWS INSUFFICIENT
CONCERN OVER ETHICAL ISSUES
Priscilla Owen’s record on money-related ethical issues is more
troubling than her colleagues’ (who also receive campaign
contributions) because her money comes from a small group of special
business interests, who advance clear anti-consumer and anti-choice
agendas, and her record has shows that her donors enjoy greater
success before her than before the majority of the Court.
She has repeatedly presided over cases involving law firms or
litigants who contributed substantially to her election campaigns,
failing to either disclose such contributions to the parties before
her or disqualify herself. Although disclosure or recusal is not
required under controlling Texas law, Owen’s failure to disclose
indicates that she lacks the moral and ethical commitment to act in
a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
She made dismissive comments on an important ethical issue, the
“clerk perk” scandal, again indicating a lack of concern for ethical
issues and the independence of the judiciary. She dismissed the
important ethical and criminal misconduct issues raised by the fact
that the Court’s law clerks were receiving bonuses from their future
law firm employers, who regularly argue cases before the Court, as
merely “a political issue that is being dressed up as a good
government issue” and urged the legislature to make these unethical
bonuses legal.
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