    [Senate Hearing 108-142]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-142

     SETTING THE RECORD STRAIGHT: THE NOMINATION OF JUSTICE PRISCILLA OWEN

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 13, 2003

                                   __________

                               Serial No. J-108-6

                                   __________

             Printed for the use of the Committee on the Judiciary

    89-329              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman
    CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
    ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                Makan Delrahim, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cornyn, Hon. John, a U.S. Senator from the State of Texas........    11
        prepared statement...........................................   144
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................    34
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................    41
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
      prepared statement.............................................   181
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
        prepared statement...........................................   188
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts..................................................    23
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
        prepared statement...........................................   198
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
      prepared statement.............................................   241

                                   WITNESSES

    Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
      Texas..........................................................     9
    Owen, Priscilla Richmond, Nominee to be U.S. Circuit Judge for
      the Fifth Circuit..............................................    18
        Questionnaire................................................    71

                             QUESTIONS AND ANSWERS

    Responses of Priscilla Owen to questions submitted by Senator
      Durbin.........................................................   104

                           SUBMISSIONS FOR THE RECORD

    al.com, July 30, 2002, editorial.................................   117
    Amarillo Globe-News, Amarillo, Texas:
        July 28, 2002, editorial.....................................   118
        September 6, 2002, editorial.................................   120
    Andrade, Hope, San Antonio, Texas, letter........................   121
    Armstrong, Anne, Armstrong, Texas, letter........................   122
    Austin American-Statesman, Austin, Texas:
        February 12, 2001, article...................................   123
        Cornyn, Hon. John, March 13, 2003, opinion...................   124
    Battaglia, Victor F., Attorney at Law, Biggs and Battaglia,
      Wilmington, Delaware, letter...................................   125
    Beacon Journal, Akron, Ohio, July 28, 2002, editorial............   126
    Bishop, E. Thomas, President, Texas Association of Defense
      Counsel, Inc., Austin, Texas, letter...........................   127
    Black, Reverend Jeffrey, Austin, Texas:
        August 23, 2002, letter to Senator Biden.....................   128
        August 23, 2002, letter to Senator Feingold..................   129
        August 23, 2002, letter to Senator Feinstein.................   130
        August 23, 2002, letter to Senator Kohl......................   131
        August 29, 2002, letter to Senator Edwards...................   132
    Boston Globe, Jeff Jacoby, Boston, Massachusetts, opinion........   133
    Casanova, Roy V., Jr., Legislative Director, Republican National
      Hispanic Assembly, letter......................................   135
    Chicago Tribune, Chicago, Illinois:
        August 20, 2002, commentary..................................   136
        August 22, 2002, commentary..................................   137
    Chote, Eleanor T., Austin, Texas, letter.........................   138
    Chote, Richard W., Attorney at Law, Austin, Texas, letter........   139
    Congresswomen supporting Justice Owen, Washington, D.C., joint
      letter.........................................................   141
    Corpus Christi Caller-Times, Corpus Christi, Texas:
        February 12, 2001, article...................................   148
        July 26, 2002, editorial.....................................   149
    Dallas Morning News, Dallas, Texas:
        July 11, 2002, editorial.....................................   151
        Alberto Gonzales, opinion....................................   152
        July 25, 2002, editorial.....................................   154
        Rena Pederson, editorial.....................................   155
    De Leon, Hector, Attorney at Law, De Leon, Boggins & Icenogle,
      letter.........................................................   157
    Denver Post, Denver, Colorado, July 25, 2002, editorial..........   160
    Detroit News, Detroit, Michigan, July 25, 2002, editorial........   161
    Eagle, Bryan, Texas, September 6, 2002, editorial................   162
    Emmons, William B., Attorney at Law, Emmons & Jackson, P.C.,
      Houston, Texas, letter.........................................   164
    Fisher, Barbara, Austin, Texas, letter...........................   166
    Fisher, Rick, Austin, Texas, letter..............................   167
    Florida Times-Union, Jacksonville, Florida:
        July 26, 2000, opinion.......................................   168
        August 20, 2002, opinion.....................................   169
    Fort Worth Star-Telegram, Fort Worth, Texas:
        February 12, 2001, article...................................   171
        July 28, 2002, opinion.......................................   172
    Gonzales, Alberto R., Counsel to the President, The White House,
      Washington, D.C., letter.......................................   175
    Gonzalez, Raul A., Justice, Supreme Court of Texas (retired),
      Austin, Texas, letter..........................................   178
    Gonzalez, Raul A., and Rose Spector, Justices, Supreme Court of
      Texas, Austin, Texas, joint letter.............................   180
    Hall, Hon. Ralph M., a Representative in Congress from the State
      of Texas, Washington, D.C., letter.............................   187
    Hightower, Jack, Justice, Supreme Court of Texas (retired),
      Austin, Texas, letter..........................................   191
    Hill, John L., Chief Justice, Supreme Court of Texas (retired),
      Houston, Texas, letter.........................................   192
    Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
      Texas, letter..................................................   194
    Ivey, Jon David, Attorney at Law, Baker & Hostetler, LLP,
      Houston, Texas, letter.........................................   195
    Jaratt, Shirley, Leander, Texas, letter..........................   196
    Krier, Cyndi Taylor, Vice President, Texas Government Relations,
      San Antonio, Texas, letter.....................................   197
    Liberato, Lynne, Attorney at Law, Haynes and Boone, LLP, Houston,
      Texas, letter..................................................   202
    Longview News-Journal, Longview, Texas, July 27, 2002, editorial.   203
    Loyd, Edgar E., Director, Hispanic Chamber of Commerce of Greater
      Cincinnati, Cincinnati, Ohio, letter...........................   205
    Mallory, Philip H., Round Rock, Texas, letter....................   206
    Mallory, Sharon F., Round Rock, Texas, letter....................   207
    Matthews, Charles W., Irving, Texas, letter......................   208
    Michie, Rev. Michael W., Associate Vicar, St. Barnabas Episcopal
      Church, Cedar Park, Texas, letter..............................   209
    Midland Reporter-Telegram, Midland, Texas, July 23, 2002,
      editorial......................................................   211
    Mott, Robert, Attorney at Law, Perdue, Brandon, Fiedler, Collins
      & Mott, L.L.P., Houston, Texas, letter.........................   213
    Obenhaus, Stacy R., Attorney at Law, Gardere, Dallas, Texas,
      letter.........................................................   214
    Oklahoman, Oklahoma City, Oklahoma, July 25, 2002, editorial.....   215
    Olson, Lyndon L., Jr., July 17, 2002, letter.....................   216
    O'Reilly, Mary Sean, Conciliation Institute, Houston, Texas,
      letter.........................................................   217
    Pagan, Greer H., Attorney at Law, Houston, Texas, letter.........   219
    Painter, Richard W., Professor of Law, University of Illinois at
      Urbana-Champaign, Champaign, Illinois, letter..................   221
    Past Presidents of the State Bar of Texas, Dallas, Texas, joint
      letter.........................................................   224
    Ploeger, Lori R.E., Attorney at Law, Austin, Texas, letter.......   226
    Podvin, F. John, Jr., Partner, Bracewell & Patterson, LLP,
      Dallas, Texas, letter..........................................   228
    Policyholders of America, M. Melinda Ballard, President, Austin,
      Texas, letter..................................................   229
    Richmond Times-Dispatch, Ross Mackenzie, Editor, Richmond,
      Virginia, editorial............................................   231
    Robinson, Tricia J., Attorney at Law, Bracewell & Patterson, LLP,
      Dallas, Texas, letter..........................................   233
    Schlueter, Linda L., Attorney at Law, San Antonio, Texas, letter.   235
    Schwartz, Victor E., Attorney at Law, Shook, Hardy & Bacon
      L.L.P., Washington, D.C., letter...............................   236
    Sekulow, Jay Alan, Chief Counsel, American Center for Law and
      Justice, Virginia Beach, Virginia, letter......................   240
    Shapiro, Hon. Florence, Senator, Senate of the State of Texas,
      Austin, Texas, letter..........................................   251
    Smith, Jason C.N., Attorney at Law, Fort Worth, Texas, letter....   253
    Tampa Tribune, Tampa, Florida, July 25, 2002, editorial..........   257
    Texas Civil Justice League, Ralph Wayne, President and George S.
      Christian, Treasurer, Austin, Texas, letter....................   258
    Texas Justice Foundation, Allan E. Parker, Jr., CEO and Founder,
      San Antonio, Texas, letter.....................................   259
    Trotter, Richard Clayton, Attorney at Law, San Antonio, Texas,
      letter.........................................................   260
    Vaughan, Shelton M., Attorney at Law, Houston, Texas, letter.....   261
    Wall Street Journal, New York, New York, July 22, 2002, editorial   263
    Washington Post, Washington, D.C., July 24, 2002, editorial......   264
    Willeford, Pamela P., Austin, Texas, letter......................   265
    Wisconsin State Journal, Madison, Wisconsin, July 29, 2002,
      editorial......................................................   266
    Woody, Julie P., Tomball, Texas, letter..........................   267

     SETTING THE RECORD STRAIGHT: THE NOMINATION OF JUSTICE PRISCILLA OWEN

                                  ----------

                            THURSDAY, MARCH 13, 2003

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:33 a.m., in
    room SD-106, Dirksen Senate Office Building, Hon. Orrin G.
    Hatch, Chairman of the Committee, presiding.
        Present: Senators Hatch, Kyl, Chambliss, Cornyn, Leahy,
    Kennedy, Feinstein, Feingold, and Durbin.

     OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
                           THE STATE OF UTAH

        Chairman Hatch. We will begin. I just want to begin by
    speaking for all of my fellow Utahns. If you don't believe in
    miracles, then look at Elizabeth Smart. Everybody in that State
    was praying for Elizabeth Smart, and the family has worked so
    hard to try and find her, and we are just so grateful today
    that she is now back with her family. And I just want to thank
    God publicly for the miracle that has occurred. We will
    certainly do everything in our power to make sure that our
    children are protected in this country, and this committee has
    done a pretty good job so far this year with the Amber Alert
    and the PROTECT Act that both Senator Leahy and I have worked
    very closely together on, as have other members of this
    committee.
        I just want to express my gratitude for this wonderful
    miracle and the answer to prayers of not just Utahns. I know
    there are people all over this country praying for these little
    girls that are abducted.
        Senator Leahy. Mr. Chairman, would you yield on that?
        Chairman Hatch. I would be happy to yield.
        Senator Leahy. I want to join you in that. I know you and I
    had a lot of private discussions during that time. You were
    keeping me posted on everything from the discussion of the
    neighborhood and the people. I know how deeply you felt that,
    both as a person and as a Utahn. My former colleague who was
    elected the same year as I was, Jake Garn, talked to me about
    it. And as you know, I told you that we Vermonters half a
    continent away joined in your prayers for her safety. The
    thrill that everybody in my family felt in seeing something,
    and I must admit that I had this terrible fear that we would
    never see her alive. It is wonderful. I know Senator Hutchison
    is coming here, and she and Senator Feinstein and you and I
    worked--we passed, in record time, the Amber Alert bill last
    year. The House leadership decided not to bring it up. We
    passed it again this year. I hope they will bring it up. I know
    you and I will work with them.
        But I just want to join in saying what a wonderful day it
    is for your State and for the Smart family, and the prayers of,
    I think, every single Member of the Congress but many millions
    of Americans have been answered. And in my faith, we do believe
    in miracles, and this has to be one.
        Chairman Hatch. Well, thank you, and I just want to
    compliment the Smart family for their never giving up. They
    always believed she was alive. They did everything they
    possibly could, and more. I think they set an example for all
    of us in this country, and that family deserves a lot of
    credit. And I just am so grateful this morning, I just had to
    express that.
        Well, we will begin our hearing. Good morning. Welcome to
    the hearing on the nomination of Justice Priscilla Owen of
    Texas to the U.S. Court of Appeals for the Fifth Circuit.
        Justice Owen, we want to welcome you again before the
    committee. A lot of people have been looking forward to this
    committee's reconsideration of your nomination. People in my
    home State of Utah have flooded my office with phone calls and
    letters and e-mails in support, and I have heard from quite a
    few folks from Texas and elsewhere across the country as well.
        Now, I called this hearing because I believe Justice Owen's
    treatment in this committee last September was unfair,
    unfounded, and, frankly, in my opinion, a disgrace to the
    Senate. As several of the members who voted against her
    admitted, Justice Owen is a tremendously intelligent, talented,
    and well-credentialed nominee. She earned the American Bar
    Association's highest rating, unanimously well qualified, and
    was the first person with that rating ever voted down by this
    committee. She is also an honest, decent, fair, principled, and
    compassionate human being and jurist whose service on the Fifth
    Circuit would be a great benefit to that court and our country.
    I believe she should have been confirmed last year, and she
    hopefully will be confirmed this year.
        I have made these views clear several times, so it should
    come as no surprise that after the American voters returned the
    Senate to the Republicans, and, therefore, the chairmanship of
    this committee to me, that this committee will now begin
    setting straight what we consider to be the mistake it made by
    halting this nomination in the committee last fall.
        Now, we will have a hearing, we will have a vote in
    committee, and we will give the full Senate an opportunity to
    vote on this nominee. It is important to note that the
    committee vote last year was a straight party-line vote which
    denied the rest of the Senators an ability to vote on Justice
    Owen.
        Let me be clear about one other thing: I personally do not
    believe that Justice Owen needs another hearing. Justice Owen
    gave complete and appropriate answers to all questions last
    time. Senator Feinstein, who presided at last year's hearing,
    was entirely fair and appropriate in that role. As Senator
    Leahy said before the committee vote, ``Those who have had
    concerns have raised them and have heard the nominee's
    responses. To her credit, she has met privately with those who
    have had concerns, as well as her public testimony, and has
    answered the followup questions.''
        I agree that Justice Owen has answered all relevant
    questions, and then some, and has provided this committee with
    all the information it needs. She is a model witness, in my
    opinion, one of the very best this committee has ever had the
    honor of considering. Now, this hearing is certainly not a do-
    over for Justice Owen. It is an encore.
        For the committee, this hearing is about remedying the
    wrongful treatment provided to Justice Owen. I don't say this
    to offend any member of this committee. My colleagues, I think
    they all know that I have deep personal respect and friendship
    for each one of them. And I know they voted according to their
    best judgment at the time. Nevertheless, as I reviewed the
    transcript of Justice Owen's last hearing and read her answers
    to written followup questions, and then reviewed the comments
    made at the markup debate, I was struck at the pervasive way in
    which Justice Owen's answers were almost totally ignored. The
    same accusations made by members at her hearing were repeated
    at the markup as if Justice Owen's answers did not even exist,
    as if she was never even before the committee.
        Let me just give a couple of examples. There are too many
    to cover them all.
        At the hearing, Justice Owen was accused of needlessly
    delaying an opinion in the case of Ford v. Miles, the Willie
    Searcy case, and it was alleged that the young man died waiting
    for Justice Owen's opinion. Justice Owen clarified that Mr.
    Searcy passed away 3 years after the Texas Supreme Court's
    decision. But the same false allegation was raised and repeated
    at the markup as if Justice Owen had never given this committee
    the correct facts.
        At the hearing, Justice Owen was accused of ruling against
    abortion rights in cases involving Texas' parental notification
    law. Justice Owen clarified that the notification statute, and,
    therefore, her written opinions, concerned only the law that
    girls younger than 18 tell one of their parents. The right of
    those girls to obtain abortions was never questioned by the law
    or by Justice Owen. Yet, as if she had never appeared before
    the committee, one member of the committee stated during the
    markup debate that Justice Owen is ``frequently in dissent from
    rulings of the Texas Court majority sustaining a young woman's
    right to have an abortion.'' That is simply a misstatement of
    the facts.
        Also at the hearing, Justice Owen was accused of not
    finding in favor of any plaintiffs or consumers, as if a good
    judge would simply hand out half of her decisions to plaintiffs
    and half to defendants in a display of ends-oriented activism,
    rather than look to the law upon which both sides based their
    arguments. Justice Owen listed a number of cases in which,
    based on the law, she had ruled on the side of individual
    plaintiffs, including GTE v. Bruce, a case affirming a $275,000
    jury verdict in favor of female victims of sexual harassment.
    But at the markup, several members repeated the allegation as
    though her testimony and answers to followup questions had been
    written in invisible ink.
        In her written questions, Justice Owen was asked about her
    dissent in the case of Weiner v. Wasson, the charge being made
    that the majority opinion has ``lectured'' Justice Owen about
    the importance of following precedent. Justice Owen pointed out
    in a cogent written response that the majority was, in fact,
    responding to an argument made by the defendant that a prior
    Texas Supreme Court decision should be overturned. At the
    markup, the very same charge was repeated, as though Justice
    Owen had entered a guilty plea previously.
        There are several other examples, including the fact that
    Judge Gonzales' oft-repeated comment was not directed at
    Justice Owen, that I just do not want to take the time to get
    into. But this pattern of ignoring answers is exactly what
    happened to Justice Owen.
        So although we are not beginning anew to review this
    nomination, and there is no reason simply to rehash old and
    answered allegations, I nevertheless hope and expect committee
    members, and especially those who voted against her, to come to
    this hearing with a fresh mind and with a genuine willingness
    to listen, to consider, and to think again on this matter.
        We are quite fortunate to have with us today Senator
    Cornyn, and I understand that Senator Hutchison, who is at the
    Commerce Committee right now, will come very soon, whose
    support for Justice Owen's nomination is as well known as it is
    well deserved. Texas could not have two finer and more
    effective publici servants in the Senate. Senator Hutchison has
    worked tirelessly over the past 2 years to make sure our
    colleagues know the facts about Justice Owen's distinguished
    career, service to Texas, and perhaps most importantly, Justice
    Owen's high personal integrity, fairness, and commitment to
    equal justice under the law.
        Senator Cornyn, although new to the Senate, is certainly
    not a newcomer to this nomination. He is certainly a member of
    this committee. He is not a newcomer to Justice Owen or to
    several of the issues that were misunderstood or misconstrued
    as part of the effort to halt this nomination in committee last
    fall. Indeed, Senator Cornyn knows many of these issues better
    than any member of this committee ever could. Senator Cornyn
    brings a unique and compelling perspective on Justice Owen's
    nomination, having served side by side with Justice Owen as a
    colleague on the Texas Supreme Court. He examined many of the
    same legal issues and knows how she approached them. He knows
    how judges go about their work. Senator Cornyn understands that
    judges are called upon to render their very best judgment in
    frequently difficult and close cases and that sometimes judges
    will have legitimate differences of opinion among themselves
    and express themselves accordingly.
        I find it particularly significant that Senator Cornyn
    supports Justice Owen, even though they did not always agree on
    the bench. His support is based on how Justice Owen goes about
    the job of being a judge, not on whether she reaches the same
    outcome that he would.
        Now, I urge all of my colleagues to think this way. Any
    attempt to emphasize the points on which Senator Cornyn and
    Justice Owen disagree I think will backfire. It only proves the
    point better. So Senator Cornyn's endorsement of Justice Owen
    has extraordinary credibility to me and should, by itself,
    provide members of this committee with a fresh view of this
    nomination.
        So I am looking forward to hearing from the Texas Senators
    and from Justice Owen. And I am optimistically looking forward
    to evidence of renewed open-mindedness from my colleagues. With
    that hope, I will turn to our ranking member for any statement
    he would like to make at this point. Senator Leahy?

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Senator Leahy. Thank you, Mr. Chairman. I do have an
    opening statement.
        I welcome the nominee and Senator Cornyn here. We are
    meeting in an unprecedented session to consider the
    renomination of Priscilla Owen to the U.S. Court of Appeals to
    the Fifth Circuit. Never before--i say it is unprecedented
    because never before has a President resubmitted a circuit
    court nominee already rejected by the Senate Judiciary
    Committee for the same vacancy. So we proceed to grant Justice
    Owen a second hearing even though we did not allow either
    Enrique Moreno or Judge Jorge Rangel, both distinguished Texans
    nominated to the Fifth Circuit, any hearings at all when they
    were nominated by President Clinton to the same Fifth circuit
    vacancy.
        I would just mention two Texans nominated to that by
    President Clinton, they weren't even given a hearing. So,
    Justice Owen, you are getting two hearings, maybe one for each
    of the ones who were never allowed to have a hearing by the
    Republicans.
        This nominee was fairly and thoroughly considered after a
    hearing only 8 months ago. It was an extended session that was
    chaired very ably and fairly by Senator Feinstein. Justice
    Owen's earlier nomination was fairly and thoroughly debated in
    an extended business meeting of the committee, during which
    every Senator serving on this committee had the opportunity to
    discuss his or her views of the nominee's fitness for the
    bench.
        Incidentally, that meeting was delayed. I had set the
    hearing at a date requested by the President. I assumed he
    meant June, and then earlier in that week, he said he wanted
    his good friend, Patricia Owen, to have a hearing. I assumed he
    meant Priscilla Owen because he was speaking of the Texas
    thing, and I put you on for a hearing--I mean for a vote that
    Thursday. The White House, however, decided that wasn't a good
    idea and wanted, notwithstanding the request of the President,
    to put it off for 5 or 6 weeks, and so we did, following the
    rules of the committee.
        Now, unlike the scores of Clinton nominations on which
    Republicans were not willing to hold a hearing or committee
    vote or explain why they were being opposed, Justice Owen's
    earlier nomination was treated fairly in a process that
    resulted in a committee vote in accordance with committee rules
    that resulted in the nomination's defeat last year.
        Unfortunately, the chairman has not scheduled a second
    hearing for Judge Deborah Cook or John Roberts, two nominees
    whose hearings did not give Senators an adequate opportunity to
    question them. These were controversial nominees who were shoe-
    horned into a hearing earlier this year that was plainly too
    crowded to be a genuine forum for determining their fitness for
    lifetime appointments to Federal appellate courts. Democratic
    members have asked many times that the incomplete hearing
    record for those nominees be completed, but those requests have
    been rebuffed. And that is a shame. But that error I believe
    was compounded by truncated committee consideration when the
    chairman insisted on proceeding in total and complete violation
    of Rule IV of this committee and before there was bipartisan
    agreement to conclude debate on the nominations, something
    that--a rule followed by every chairman I have known here--
    Senator Kennedy, Senator Thurmond, Senator Biden--but it was
    violated starting this year.
        Now, for Justice Priscilla Owen, there will be a second
    hearing. I emphasize the various procedural steps followed by
    the committee on Justice Owen's nomination in the Democratic-
    led 107th Senate to contrast them with the treatment of
    President Clinton's nominees to this very seat during the
    previous period of Republican control of the Senate. During
    that time, two very talented, very deserving nominees were
    shabbily treated by the Senate. Judge Jorge Rangel, a
    distinguished Hispanic attorney from Corpus Christi, was the
    first to be nominated to fill that vacancy. Despite his
    qualifications, and his highest rating by the ABA, Judge Rangel
    never even had a hearing. It wasn't a case of voting him down.
    He was never even given a hearing from the committee. And after
    he had waited for 15 months and it was obvious that the
    Republicans weren't even going to allow him to have a hearing,
    to say nothing about a vote, he withdrew his candidacy.
        And so then President Clinton nominated Enrique Moreno,
    another outstanding Hispanic attorney, a Harvard graduate, and
    a recipient of the highest rating, in fact, unanimous rating by
    the ABA to fill the same vacancy. He probably should have saved
    his time because Mr. Moreno did not receive a hearing on his
    nomination from a Republican-controlled Senate during the 17
    months. He waited and waited and waited. It wasn't a case he
    was voted down by the committee. He wasn't even allowed to have
    a hearing. And, finally, President Bush withdrew the nomination
    of Enrique Moreno and substituted Justice Owen's name in its
    place.
        Actually, it was not until May of last year, at a hearing
    chaired by Senator Schumer, that this committee heard from any
    of President Clinton's Texas nominees to the Fifth Circuit,
    when Mr. Moreno and Judge Rangel testified, along with a number
    of other Clinton nominees, about their treatment by the
    Republican majority and disclosed some of the machinations that
    went on at that time. Thus, Justice Owen is the third nominee
    to the vacancy created when judge William Garwood took senior
    status so many years ago, but even though she is the third
    nominee, she is the only that has been allowed a hearing.
        So let me remind the committee, the Senate, and the
    American people how this committee came to have a hearing last
    year on this controversial nomination. Democratic leadership of
    the committee began in the summer of 2001. Within 10 minutes
    after taking the leadership, I announced hearings on President
    Bush's judicial nominations. We made some significant progress
    in helping fill vacancies during those difficult months in
    2001, and we proceeded at a rate about twice as productive as
    that averaged by Republicans in the prior 6 and a half years.
    As we began 2002, I went before the Senate to offer a formula
    for continued progress so long as it was balanced bipartisan
    progress. I made some modest suggestions to the Bush
    administration, none of which were adopted. But even though
    they didn't, to demonstrate good faith I committed to hold
    hearings on a group of President Bush's most controversial
    circuit court nominees that year. I did this even though our
    offers were totally ignored by the White House, offers made in
    good faith, not really even responded to. We continued forward.
        I not only fulfilled that pledge to hold hearings on
    Justice Owen, among others; by the end of the year I had made
    sure that the Senate Judiciary Committee had held hearings on
    more than twice as many controversial circuit nominees as I had
    originally announced, notwithstanding the silence from the
    White House. We proceeded with hearings and votes on Judge
    Charles Pickering at the request of Senator Lott, Judge D.
    Brooks Smith at the request of Senator Specter, and Judge
    Dennis Shedd at the request of Senator Thurmond. These were in
    addition to my January announcement with respect to Justice
    Owen, Professor McConnell, and Mr. Estrada. During my 17 months
    as chairman, we proceeded expeditiously but fairly to consider
    more than 100 of President Bush's judicial nominees despite
    what was an increasing lack of comity and cooperation from the
    White House.
        But fairness and fair consideration apparently are not
    enough. Proceeding almost twice as productively as Republicans
    did for President Clinton, and even though we did it without
    White House cooperation, this counted for nothing. The
    President remains intent on packing the Federal courts and
    Senate Republicans equally intent on making sure that this
    scheme succeeds no matter what Senate rules and traditions and
    precedents need to be overruled or ignore.
        In examining Justice Owen's record in preparation for her
    first hearing and now again in preparation for today, I remain
    convinced that her record shows that in case after case
    involving a variety of legal issues, she is a judicial
    activist, willing to make law from the bench rather than follow
    the language and intent of the legislature. Her record of
    activism shows she is willing to adapt the law to her results-
    oriented ideological agenda.
        I expect that Senators on the other side will try to recast
    and rehabilitate Justice Owen's record. I assume that is what
    the chairman meant by the title of this hearing. I hope he did
    not mean to suggest that Senator Feinstein was unfair or that
    Senators on this committee did not proceed fairly to debate and
    vote on the nomination last year. We did see a recent occasion
    when a judicial nominee was ambushed on issues on which there
    was not notice or thorough information or debate, and that
    nomination was defeated by a party-line vote on the floor of
    the Senate, even voted against by Senators who had voted for
    him in this committee. I am referring, of course, not to
    Justice Owen but of the first African American to serve on the
    Missouri Supreme Court, Justice Ronnie White.
        Now, I hope the hearing is not a setting for some to read
    talking points off the Department of Justice website or argue
    there is some grand conspiracy to block all of President Bush's
    judicial nominees. I believe we just voted on one of his
    nominees on the floor. The consensus nominees are considered
    expeditiously and confirmed with near unanimity. The nominees
    selected to impose a narrow ideology on the Federal courts
    remain controversial and some are being opposed. Were the
    administration and the Republican leadership to observe our
    traditional practices and protocols and not break our rules and
    seek every advantage from the obstruction of Clinton nominees
    to circuit courts over the last several years, we would be
    making a lot more progress.
        Facts are stubborn. They don't change. Written opinions and
    prior testimony under oath are difficult to overcome. This
    nominee was examined very carefully a few months ago and
    rejected by this committee. To force it through the committee
    now based only on the shift in the majority would not establish
    that the committee reached the wrong determination last year,
    but that the process has been taken over by partisanship this
    year.
        No one can change the facts that emerge from a careful
    reading of Justice Owen's dissents in cases involving a Texas
    law providing for a judicial bypass of parental notification
    requirements for minors seeking abortions. Those who suggest
    that she was just showing deference to the U.S. Supreme Court
    cannot change the fact that what she purported to rely on in
    those cases just is not there. The Supreme Court did not say
    what she claims it said.
        Neither will they change the facts about her activism in a
    variety of other cases where he record shows a bias in favor of
    government secrecy and business interests, and against the
    environment, victims of discrimination, and medical
    malpractice. In these cases she ruled or voted against
    individual plaintiffs time and time again, earning deserve
    criticism from her colleagues on what is a very conservative
    Texas Supreme Court.
        To give a sampling of that criticism that no amount of
    argument can change, members of the Texas Supreme Court
    majority: One, have called Justice Owen's views ``nothing more
    than inflammatory rhetoric.'' They have lectured dissents she
    was part of on the importance of stare decisis. They have said
    that her ``dissenting opinion's misconception...stems from its
    disregard of the procedural elements the Legislature
    established,'' and that her ``dissenting opinion not only
    disregards the procedural limitations in the statute but takes
    a position even more extreme than that argued for'' by the
    appellant. And then they said that to construe the law as she
    did ``would be an unconscionable act of judicial activism.''
        Now, as I said, despite the mistreatment of President
    Clinton's judicial nominees, including two in this circuit--
    actually, several in this circuit--the Democratic-led Senate of
    the 107th Congress showed good faith in fairly and promptly
    acting to confirm 100 of President Bush's judicial nominees.
    The Senate is now contending over several of President Bush's
    controversial nominations. At the same time we are continuing
    to vote nearly unanimously for consensus nominees that
    President Bush has sent up here. The process starts with the
    President. He can sow contention or end it. He said he wanted
    to be a uniter and not a divider, something I would like to see
    in this country, and I hope someday he will be. But so far he
    has sent this nomination to the Senate, which divides the
    Senate, which divides the American people, and which even
    divides Texans, according to letters I have received.
        The President has said he does not want what he calls
    activist judges. I don't want any President, Democratic or
    Republican, to have activist judges. But then, Justice Owen, by
    the President's own definition, is an activist judge whose
    record shows her to be out of the mainstream even of the
    conservative Texas Supreme Court.
        In my opening statement at Justice Owen's original hearing
    last July, I said that the question each Senator on this
    committee would be asking himself or herself as we proceeded
    was whether this judicial nominee met the standards we require
    for any lifetime appointment to the Federal course. I believe
    that question has been answers.
        Thank you, Mr. Chairman. Always good to be here with you.
        Chairman Hatch. Thank you, Senator.
        We will turn to Senator Hutchison. Welcome to the
    committee. We are glad to have you here and we look forward to
    hearing what you have to say.

    STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE
                             STATE OF TEXAS

        Senator Hutchison. Thank you, Mr. Chairman. I am very
    pleased to be here again to introduce our Supreme Court Justice
    Priscilla Owen, an 8-year veteran on our Texas Supreme Court.
        Justice Owen's career started when she graduated cum laude
    from Baylor Law School in 1977 and made the highest grade on
    the State bar exam that year. Before her election to the Texas
    Supreme Court in 1994, she was a partner in a Texas law firm, a
    major one, where she practiced commercial litigation for 17
    years.
        In 2000, Justice Owen was re-elected to the Supreme Court
    with an 84-percent vote. In fact, she was endorsed by every
    major newspaper in Texas during her successful re-election bid.
    We have a supremely qualified judge.
        Justice Owen enjoys bipartisan support. The ABA Standing
    Committee on the Federal Judiciary voted her unanimously well
    qualified. To merit this ranking, the ABA requires that the
    nominee be at the top of the legal profession in his or her
    legal community, have outstanding legal ability, breadth of
    experience, the highest reputation for integrity, and either
    have demonstrated or exhibited the capacity for judicial
    temperament.
        The Dallas Morning News called her record one of
    accomplishment and integrity. The Houston Chronicle wrote that
    she has the proper balance of judicial experience, solid legal
    scholarship, and real-world know-how.
        But despite the fact that she is a well-respected judge who
    has received high praise, her nomination has been targeted by
    special interest groups. Justice Owen's views have been
    mischaracterized and her opinions have been distorted. Today,
    this committee and Justice Owen once again have an opportunity
    to set the record straight.
        In Texas, we have statewide elections for judges. Whether
    we approve of that system or not, it is the current law in
    Texas. Priscilla Owen has been a leader trying to reform the
    way judges are elected in our State. During her 2000 campaign,
    Priscilla Owen set a new standard, imposing voluntary limits on
    herself, which included taking no more than $5,000 per
    individual and spouse and not more than $30,000 per law firm.
    Over half of her total contributions were from non-lawyers.
    After not facing a major opponent in 2000, she returned over a
    third of her remaining contributions to her contributors.
        Let me read the words of former Texas Supreme Court
    Justice, Chief Justice John Hill, a Democrat, denouncing the
    mischarac- terization of Priscilla Owen's record by outside
    special interest groups. ``Their attacks on Justice Owen in
    particular are breathtakingly dishonest, ignoring her long-held
    commitment to reform and grossly distorting her rulings.
    Tellingly, the groups made no effort to assess whether her
    decisions are legally sound.''
        Justice Hill goes on to say, ``I know Texas politics and
    can clearly say these assaults on Justice Owen's record are
    false, misleading, and deliberate distortions.''
        Justice Hill also was elected Attorney General of Texas as
    a Democrat.
        Priscilla Owen is an exemplary judge. One issue that has
    already been mentioned here and will come up again, I am sure,
    involves the Texas parental notification statute. I believe
    Justice Owen has demonstrated that she is a judge who follows
    the law, and in this line of cases, she has consistently
    applied Supreme Court precedent to help interpret uncertainty
    in the statute. I hope my colleagues will see that her methods
    of statutory interpretation are sound.
        Mr. Chairman, I also just want to say on a personal note
    that Priscilla Owen has had one of the roughest rides that I
    have seen for a nominee to a circuit court bench or a district
    court bench. And I think you have seen her judicial temperament
    in the way she has handled the attacks, the very strong and
    tough questioning. She has handled herself with aplomb. She has
    always given very sound, detailed answers. In fact, several
    people have mentioned to me, after hearing her last performance
    before this committee, that they have never seen in any nominee
    such an outstanding performance by a nominee.
        I think the way she has handled the wait since May the 9th
    of 2001 and the handling of this nomination by this committee
    show her even more so to be the outstanding qualified judge
    that should receive confirmation today in this committee and in
    a very short order by the U.S. Senate. And I truly hope that
    people will give her a fresh look if they were against her in
    this committee before, and I truly hope that they will see her
    outstanding qualities and give her a chance. I hope her
    nomination will not be filibustered. She deserves a vote, and
    she deserves a positive vote. And I am proud to be here to
    support Justice Priscilla Owen of Texas for the Fifth Circuit.
        Thank you.
        Chairman Hatch. Thank you, Senator. We sure appreciate your
    being here, and I appreciate your testimony.
        Senator Leahy. Mr. Chairman, just at that point while
    Senator Hutchison is here, before Senator Hutchison came, I
    noted two things. One, she has been a strong and consistent and
    even passionate supporter of Justice Owen. You should know that
    even talking about those who have supported you and those who
    have opposed you, there is a great respect we have for Senator
    Hutchison and we have listened. But also I just wanted--we were
    praising you and Senator Feinstein and Senator Hatch for work
    on the Amber Alert. As you know, when I was chairing the
    committee, we whipped it through last year, got it passed in
    the Senate, and unfortunately the leadership in the other body
    decided not to bring it up, and this year Senator Hatch as
    chairman and with my support put it through. And, again, you
    got a unanimous vote. Every single Senator who was on the floor
    that day--there were a few absent because of illness or
    whatever. But every Senator who was on the floor voted with him
    and we sent it over. And I just hope now that the leadership on
    the other side will allow it to go forward, but you deserve an
    enormous amount of credit for that.
        Senator Hutchison. Mr. Chairman, if I could just respond
    and say that Senator Feinstein and I, of course, introduced the
    Amber Alert bill because of several high-profile abductions in
    Senator Feinstein's State and the abduction of Elizabeth Smart
    from the chairman's home State. And I couldn't ask for a better
    record of the Judiciary Committee under both you, Senator
    Leahy, and you, Senator Hatch, in moving that bill through. It
    is without a doubt the most easy bill that should ever pass our
    Congress, and I hope so much that it will be passed very soon.
        And I want to say that I talked to Ed Smart this morning,
    and the passion in him for passing Amber Alert, I mean, that
    man is the happiest man on Earth today. But he also is
    passionate to try to help other parents that might ever go
    through the ordeal that he and Lois Smart have to keep them
    from having to do that. And he knows the Amber Alert is the
    very best tool we have to help find an abducted child quickly.
        So I just want to thank you, thank you, Senator Hatch, and
    Senator Feinstein, for all that the three of you have done on
    the Amber Alert bill. And it is my hope and Ed Smart's fervent
    wish that that bill will pass the House very shortly and go to
    the President, when we can have a wonderful celebration that
    every parent will have the best chance.
        Thank you.
        Chairman Hatch. Thank you so much. We appreciate that, and
    I personally appreciate both you and Senator Feinstein. Without
    the two of you, that would not have gone through the Senate as
    quickly as it did, and I sure appreciate my colleague and the
    work that he did when he was chairman. We are just really happy
    to get that going. And I did chat with our chairman in the
    House, and they fully intend to see that that is passed. They
    are trying to put it with other children's bills to get them
    all passed at one time. But he does realize the importance of
    this, and it is because of the work of you two great women
    Senators that this bill is going to become law. So I am
    personally appreciative.
        Senator Cornyn, we will turn to you now.

    STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
                                 TEXAS

        Senator Cornyn. Thank you, Mr. Chairman. It is my----
        Chairman Hatch. And, Senator, I just want to say I am
    personally looking forward to your testimony because you served
    on the Supreme Court with Justice Owen, and I can't imagine a
    better authority on Justice Owen's capabilities and
    qualifications.
        Senator Cornyn. Well, thank you, Mr. Chairman. It is my
    pleasure to be here and to join my colleague, Senator
    Hutchison, in introducing a find and exceptional nominee to the
    Fifth Circuit Court of Appeals, Justice Priscilla Owen.
        Senator Hutchison has done a great job of talking about
    Justice Owen's background and experiences and her exceptional
    credentials for the Federal bench, and I, needless to say,
    wholeheartedly agree with those fine comments.
        I discussed Justice Owen's qualifications for the Federal
    bench in an op-ed that was published this morning in the Austin
    American-Statesman, and, Mr. Chairman, I would ask the
    committee for unanimous consent that that op-ed be included as
    part of the record and my remarks.
        Chairman Hatch. Without objection, we will put it in the
    record.
        [The article appears as a submission for the record.]
        Senator Cornyn. Thank you.
        I would like to spend a few moments, though, talking, as
    you suggested, from a different point of view, a personal
    perspective, as somebody who has served on the Texas Supreme
    Court with Justice Owen, because I think that perhaps will
    provide a fresh look and a different point of view that may be
    of some assistance to those Senators who previously had decided
    to vote against Justice Owen.
        Having been a judge for 13 years, I know as a judge or as a
    Senator, all of us are reluctant to revisit our earlier
    decisions. But, in fact, in the judicial process, as you know,
    there is an opportunity to seek a rehearing or reconsideration
    in those rare instances where perhaps a mistake was made. And I
    am not suggesting a mistake by the Senators in their vote, but
    a mistake in the characterization of this fine individual who I
    believe is highly qualified by virtue of her training and
    experience and temperament to serve in this very important
    judicial position.
        As you said, Senator, Justice Owen and I served together
    for 3 years on the Texas Supreme Court. I had been on the court
    for about 4 years when she joined the court in January 1995.
    And then I resigned from the court in October 1997 to run for
    Attorney General. But during those 3 years, I had the privilege
    of working closely with Justice Owen. During those 3 years, I
    had the opportunity to observe on a daily basis precisely how
    she works, how she thinks, how she addresses the challenge and
    the job of judging in literally hundreds, if not thousands of
    cases. And during those 3 years, I spoke with Justice Owen on
    countless occasions and debated with her, and, yes, even
    disagreed with her on how to interpret statutes and how to try
    our very best to uphold the oath that we take when we assume
    the robe as a judge, and that is to read statutes faithfully
    and carefully and to decide cases based on what the law says
    and not on how we personally would like to see the case come
    out.
        One of the most important elements, I think, that goes into
    considering whether somebody is qualified to be a judge is how
    they--their integrity and their fidelity to the role of a
    judge, because, of course, it is so much different, it is
    fundamentally different from the role that we as Senators have,
    which is to make decisions based on the results we would like
    to see happen. But judges, of course, have a different role,
    and it is their integrity and fidelity to the role of judge,
    not to results, that I think distinguishes a good judge and
    distinguished Justice Owen.
        I saw her take careful not and literally pull down the law
    books herself and study them very, very closely. And I saw how
    hard she works to faithfully interpret and apply the law that
    the Texas Legislature has written and the precedents that had
    been handed down by higher courts or at earlier times by that
    same court. And I can tell you from my personal experience as
    her colleague and a fellow Justice that Justice Owen is an
    exceptional judge. She is a judge who works hard to follow the
    law and to enforce the will of the legislature--not her will,
    the will of a lawmaker.
        Not once did I see her try to pursue a political or some
    personal agenda at the expense of faithful adherence to the
    rule of law. To the contrary, I can testify that Justice Owen
    feels very strongly, as do I, that judges are called upon not
    to be a legislator or a politicians but as judges to faithfully
    read statutes and interpret and apply them faithfully in the
    cases that come before the court.
        One of the things I just have to say is that judges, unlike
    members of the legislature, don't have a choice. When a case
    comes before the court, when the courts assume jurisdiction of
    the case, you can't run, you can't hide. You have got to decide
    the case. And it may not have come to you in the posture that
    you would have liked. That may be because of the standards of
    judicial review or the deference that we pay to jury
    determinations of facts that the judge is left with the bare
    application of a statute or some precedent, to a record that
    that judge cannot change, even if they might like to. And so
    that is why I say that it is not results-oriented judging that
    we ought to applaud, but the kind of judging that Justice Owen
    engaged in day in and day out on that court, which was faithful
    adherence to the rule of law.
        I want to also take just a moment to reflect on my own
    experiences on the Texas Supreme Court and to talk just a
    moment more about what I believe it means to be a judge.
        I believe that people change when they put their hand on
    the Bible and they take an oath to perform the job that our
    Constitution gives judges. I believe that with all my heart and
    soul because I saw it in myself and I see it in people who
    leave the private practice of law, like Justice Owen did after
    17 years as an advocate, but then assume that solemn
    responsibility and take an oath, so help me God, to discharge
    the duty of a judge--a far different role from that of an
    advocate in court, but a solemn responsibility and a solemn
    oath that I know that she takes, as all good judges do, very
    seriously.
        Of course, being a Senator, like being an advocate, means
    you are free to express your personal views or the views of
    your client on a whole range of subjects and controversial
    issues. That is what we do. One Senator yesterday said you
    can't serve in the Senate without casting controversial votes,
    unless you want to hide under your desk. But then, of course,
    you would not be doing what the people of our States have sent
    us here to do. But, of course, being a judge is exactly the
    opposite, and I know Senator Feinstein has mentioned to me of
    her own watching--I believe it is her daughter who has become a
    judge and the transformation that she saw in her own daughter
    and how she approached that awesome responsibility.
        Of course, a judge's personal political beliefs must have
    no bearing on the job of a judge. Of course, that is in a way
    the same role we ask jurors to play. I can tell you, during the
    6 years that I was a trial judge, I read charges to the jury
    that said you have got to be able to set aside your
    preconceived notions and opinions and decide this case based
    only on the facts as you hear them in this court. And so we ask
    lay jurors to do that, and we ask judges to do the same thing
    when it comes to faithfully applying the rule of law.
        And, of course, that is why, one reason why Justices who
    come to the Congress to listen to the President's State of the
    Union address don't applaud. They don't show approval. They
    don't boo. They don't show disagreement. They make no
    expression whatsoever because their job, of course, is not to
    advocate politics or personal agendas. Instead, their job is to
    neutrally and faithfully interpret the law as written by
    others--and it is not always easy--by those who have stated
    their political views through the process of enacting laws.
        It has been pointed out that other judges sometimes
    disagreed with Justice Owen, and that is perfectly normal and,
    indeed, it's healthy. And, yes, I disagreed with Justice Owen
    on occasion, and she with me. That is precisely why we have
    established throughout this country State Supreme Courts and
    Federal courts of appeals with more than one judge, so we can
    have the free exchange and the lively debate and the
    intellectual exchange on important issues that come before the
    court. And, yes, then we have to have a vote and then a final
    resolution of the matter.
        When judges disagree, that is no badge of dishonor. That is
    simply what the job of judging is.
        And, Mr. Chairman, I hate to see people like Justice Owen
    who have diligently and faithfully not imposed their views
    about what the result should be, but faithfully interpreted and
    enforced the law as written, criticized and basically
    disadvantaged in the public eye because they are just doing the
    job that they took an oath to do.
        Some have suggested that when judges disagree that is a
    sign that at least one of the judges are behaving politically.
    That is nonsense. A State's highest court, like the Texas
    Supreme Court, like the U.S. Supreme Court, any court of last
    resort, gets the most challenging and the most difficult cases
    in our legal system. The vast majority of the cases in our
    legal system are pretty easy, pretty easily decided on the law,
    and those cases, of course, are handled by lower courts. But in
    some cases, a statute is not clear, the case is so hard, that
    we ask judges at our highest level of our judiciary to try to
    interpret them faithfully.
        And let me just say here that I know there have been
    instances that different members of this committee have
    mentioned today and at other times at previous hearings where
    they feel that they disagree with Justice Owen's decision in
    that case. But I just think it is fair--fairness dictates that
    this one or two or three or handful of cases be put in context.
    Justice Owen knows, as I do, that the number of cases that the
    Texas Supreme Court decides is just a fraction of the cases
    that go to court in Texas each year. It is a court of
    discretionary jurisdiction, and last time I looked at it, it
    was only about 10 percent of the cases that go to the court of
    appeals actually are considered and determined by the Texas
    Supreme Court. So fairness dictates that these few cases where
    I think there is a perfectly good explanation for her position
    on those cases, but, nevertheless, I believe it is important
    that those be put in context. They represent just a thimble-
    full compared to the ocean of cases that she has decided as a
    judge and that are litigated on a daily basis in our courts.
        Let me just mention one case where a statute was not clear
    and where judges had to work hard to try to figure out how best
    to read the statute and to faithfully apply the law, and that
    is a case that is frequently taught in law schools to
    demonstrate the difficulties of construing complex statutes and
    laws. It is a famous U.S. Supreme Court case which, believe it
    or not, required Justices to determine whether a tomato is a
    fruit or a vegetable. A hotly contested political issue, I
    assume, to some observers. But, in fact, it was an important
    question to be decided for purposes of applying Federal tariff
    law.
        Now, I suppose as a matter of science that, botanically
    speaking, a tomato is a fruit. But in common parlance, a tomato
    is a vegetable. Yet it was unclear based on the text of the
    Federal tariff law what meaning was intended by the legislature
    when it used the terms ``fruit'' and ``vegetable.''
        Now, believe it or not, judges have to debate these issues.
    They have to figure out what the legislature actually meant
    when they used the term in order to do their job. Not
    surprisingly, in difficult cases judges disagree.
        Now, that doesn't mean that judges are being political when
    they disagree. Indeed, there is nothing political about whether
    a tomato is a fruit or a vegetable. But it just good-faith
    judging and a good-faith interpretation of law, and that is
    precisely why we need good judges who will make those
    decisions, who will apply the law as written by the
    legislatures, as Justice Owen in my experience did and does.
        I mention this tomato case in particular because it has a
    direct bearing, believe it or not, on our discussion of Justice
    Owen. In a previous hearing, a number of Senators brought up
    the fact that Justice Owen and I disagreed about one particular
    case. I had just about forgotten about it until I was refreshed
    by reading Sonnier v. Chisholm-Ryder Company, and I hope I
    pronounced that correctly. I do not think it would be fair to
    attack either Justice Owen or me about how we decided the case,
    even though we disagreed on how best to read the law in that
    case. The case essentially involved whether a tomato-chopping
    machine is real property or personal property. We disagreed,
    but that doesn't mean that either one of us was guilty of
    somehow pursuing a political or other agenda in court.
        Many cases present genuinely difficult legal issues, and
    judges have good-faith disagreements about them. Perhaps under
    the best reading of the statute, a tomato is a fruit. Perhaps
    it is a vegetable. Perhaps the legislature meant that a tomato-
    chopping machine is real property or perhaps it is personal
    property. Good judges, my point is, Mr. Chairman, can simply
    disagree and still be good judges.
        That is why I was so profoundly troubled by what happened
    to Justice Owen last year. Senators who opposed her, almost
    without regard to who she is or the record that she has worked
    hard to establish as a good judge, mentioned that other judges
    would sometimes criticize her for doing things like rewriting
    statutes. Mr. Chairman, as a former judge, I can tell you that
    judges say that all the time. That happens all the time. It is
    frequently part of the robust legal debate and exchange that
    judges have with one another every single day in this country,
    and there is nothing extraordinary about it at all.
        Good judges struggle to read statutes carefully. It is only
    natural, then, when judges of good faith disagree, frequently a
    judge will claim that another judge is rewriting the statute.
    It is just simply the way judges talk and the way judges do
    their job.
        I asked my staff to look at some of the cases cited against
    Justice Owen last year, and do you know what they found? Well,
    in just 20 minutes of , they were able to determine that every
    single Justice of the Texas State Supreme Court at one time or
    another had been criticized for rewriting a statute.
        Looking at just a few of the cases cited by Justice Owen's
    opponents, in one case, for example, Justices Gonzales, Hecht,
    Enoch, Abbott, and O'Neill, who comprised the majority of a
    particular case, were criticized with the following statement:
    ``The court substitutes what it thinks the statute should
    accomplish for what the statute actually says.'' In other
    words, those five Justices were accused of rewriting the
    statute.
        In another case, Chief Justice Phillips, Gonzales, Enoch,
    Baker, Hankinson, and O'Neill were challenged with the
    following statement: ``The court does not base its statutory
    interpretation on the ordinary meaning of those words or on the
    purposes the legislature intended them to achieve, but on its
    own predilections.''
        In just those two cases, we have every single colleague of
    Justice Owen criticized for allegedly rewriting a Texas
    statute. Again, that is just the way judges talk.
        Are we really saying that every Justice on the court----
        Senator Leahy. Excuse me. Mr. Chairman, I--and I would ask
    that this interruption not interrupt in the record.
        Chairman Hatch. Without objection.
        Senator Leahy. As you know, I am required to be on the
    floor on a Judiciary Committee matter. Senator Kennedy and
    Senator Feinstein and Senator Durbin are here. I have to be
    there at 11:30, and in leaving, I didn't want that to be
    reflected that I am leaving for any reason other than that. I
    know we started a half-hour late, and that has thrown
    everything else off.
        Senator Cornyn. Thank you, Senator Leahy.
        Are we really saying that every Justice on that court or
    any court that is criticized for rewriting or misconstruing a
    statute is a bad judge, undeserving of confirmation? That would
    be, of course--I think it is apparent--nonsense and I hope that
    is not what anyone is saying here today. Judges are supposed to
    read the law carefully and rule how they think the law is most
    accurately read and to vigorously defend and argue their
    position when disagreements occur, as they invariably do.
        It is terribly unfair and, I submit, Mr. Chairman, even
    dangerous to our justice system for Senators to sit in judgment
    on those judges and to criticize them simply because they are
    trying their very best to do their job, as judges do.
        Now, I was reminded of the scene, believe it or not, from
    the movie ``Jerry Maguire'' when I read the transcript and
    heard this discussion, the scene when Cuba Gooding, Jr. tells
    Tom Cruise, he said, ``See, man, that's the difference between
    us. You think we're fighting, and I think we're just finally
    talking.''
        Well, Mr. Chairman, what Justice Owen has been criticized
    for is not fighting among judges; it is the way judges talk in
    deciding how to best interpret the statute and discharge the
    duty.
        Those who have emphasized critical quotes about Justice
    Owen from other Justices on the Texas Supreme Court think they
    are fighting, but as I say, they are just actually talking,
    doing what judges are supposed to do.
        I could go on and on, but I won't. Let me just close by
    saying that I served with Justice Owen on the Texas Supreme
    Court for 3 years. Based on those 3 years of working closely
    with her, I know her well. And I know she is a good judge who
    always tries to faithfully read and apply the law. That is
    simply what good judges do, and we can ask for nothing more.
        Judges disagree from time to time, but, again, that is what
    judges do, and that is what we want them to do. And we
    certainly do not want to chill that intellectual exchange and
    dialog, chilling it by criticizing them and actually perhaps
    challenging a nomination to a Federal court because they are
    doing what they should be doing. We should not condemn them
    because they sometimes criticize each other's reasoning.
    Instead, I believe we should send Justice Owen's nomination to
    the floor of the Senate with a positive vote and that we should
    confirm her quickly.
        Thank you, Mr. Chairman, for the opportunity to speak on
    behalf of Justice Owen today.
        Chairman Hatch. Thank you, Senator. We appreciate your
    explanation because you served with Justice Owen and you have
    served in a wide variety of positions in Texas, including
    Attorney General and on the Supreme Court, as well as being a
    trial judge. And we appreciate having you on the committee and
    having those remarks.
        I appreciate both Texas Senators taking time from busy
    schedules to be here today in support of Justice Owen, and we
    will be happy to let you go, Senator Hutchison. We know you are
    busy. And, Senator, I hope you will come up here and sit beside
    me. And I may ask you to chair part of this hearing since I
    have to go to the floor as well.
        Justice Owen, let me turn to you. Do you have a statement
    you would care to make at this time?

      STATEMENT OF PRISCILLA RICHMOND OWEN, NOMINEE TO BE CIRCUIT
                      JUDGE FOR THE FIFTH CIRCUIT

        Justice Owen. Just very briefly, Senator. I want to thank
    you for the opportunity to appear today and answer any
    questions that any of the members of the committee might have.
        I want to introduce my sister, Nancy Lacy, who is with me
    here today.
        Chairman Hatch. Glad to have you here.
        Justice Owen. Among others, and my pastor, Jeff Black, that
    has come again. And Pat Mizell, a former judge from Houston,
    Harris County, Texas, is here with us today. Thank you, Pat,
    for coming.
        Chairman Hatch. Good to have all of you here. Thank you.
        Do you care to say anything else?
        Justice Owen. No, Senator. Thank you.
        Chairman Hatch. All right. There have been some, I think,
    misunderstandings on some of the questions that were asked last
    time. Let me just see what I can do. We will have 15-minute
    rounds, if that is OK with my colleagues.
        Let me just ask you a few questions about the Doe I case,
    where I think there were some misunderstandings. The language
    of the Texas Parental Notification Act follows language in
    previous Supreme Court cases, does it not?
        Justice Owen. Yes, Senator, it does.
        Chairman Hatch. And a majority of the court in the Doe I
    case agreed on that point. Is that correct?
        Justice Owen. Everybody on the court agreed that the words,
    the specific words in the bypass provision were taken
    essentially out of cases from the U.S. Supreme Court, had
    looked at other statutes and language that the Court itself had
    used.
        Chairman Hatch. The majority wrote in this regard, ``The
    Texas parental notification statute was enacted against a
    backdrop of over two decades of decisions from the U.S. Supreme
    Court.'' Now, even so, the Texas Legislature did not define key
    terms in the statute such as ``sufficiently well informed,''
    did it?
        Justice Owen. It did not.
        Chairman Hatch. OK. In other words, it did not set forth
    the information that the minor must obtain before the standard
    is met. Am I right about that?
        Justice Owen. That's correct.
        Chairman Hatch. The statute was silent on that point.
        The Texas Legislature did not define the term ``mature''
    either. Is that right?
        Justice Owen. That's correct, Senator.
        Chairman Hatch. Now, the majority--I guess I better swear
    you in. I have just been informed by staff that I haven't sworn
    you in. So would you mind standing? I will do that.
        Do you solemnly swear to tell the truth, the whole truth
    and nothing but the truth, so help you God?
        Justice Owen. I do.
        Chairman Hatch. I would ask unanimous consent that that be
    placed at the beginning of our discussion.
        Now, I just said the Texas Legislature did not define the
    term ``mature,'' and the majority recognized that fact; is that
    not right, and these other facts?
        Justice Owen. Yes, Mr. Chair.
        Chairman Hatch. Now, in fact, the majority opinion noted
    that notification statutes found in states across the country
    were silent as to the particular information the minor needed
    to have to be, quote, ``sufficiently well informed,'' unquote.
    Now, these include notification statutes in Arkansas, Colorado,
    Florida, Georgia, Illinois, Kansas, Maryland, Minnesota,
    Montana, New Jersey, South Dakota and West Virginia. In fact,
    due to a lack of guidance from the Texas Legislature, the
    majority had to look outside the words of the statute and turn
    to other sources for guidance in interpreting the terms, quote,
    ``sufficiently well informed,'' unquote, and quote, ``mature,''
    unquote. Is that correct?
        Justice Owen. That's correct.
        Chairman Hatch. They looked to case law outside of Texas is
    my understanding.
        Justice Owen. They did.
        Chairman Hatch. For guidance on what the statute means.
    They had to look outside the statute in determining what
    medical information the minor is required to receive. They had
    to look outside the statute in determining the minor must show
    an understanding of the alternatives to abortion, and emotional
    and psychological aspects. None of these showings were outlined
    in the statute itself, right?
        Justice Owen. That's correct.
        Chairman Hatch. So any argument that you or any other
    member of the court went outside the, quote, ``plain meaning of
    the law,'' unquote, is just incorrect and misses the point; is
    that right?
        Justice Owen. That was my view.
        Chairman Hatch. OK. Now, as I understand it, in the cases
    that you have been criticized for, you were in the dissent, you
    were in the minority, right?
        Justice Owen. Well, sometimes I was in a concurring
    opinion. I concurred in the judgment, but I did not totally--
    the court and I did not totally agree on every aspect of the
    proper construction of the statute.
        Chairman Hatch. How many judicial bypass cases have there
    been affecting the Supreme Court?
        Justice Owen. Well, there have been 10 minors who have come
    before the court, and I understand from listening to voice mail
    last night that we've had another one filed yesterday. But
    setting that one aside, that's pending, there have been 10
    minors, I believe, that have come before the court. Two of them
    came back a second time. The court had initially remanded the
    proceeding back to the trial court. The trial court again
    denied the bypass. The court of appeals again affirmed the
    trial court, denied the bypass, so they came to the court a
    second time. So we had 12 cases if you will involving 10
    minors.
        Chairman Hatch. And out of how many total cases?
        Justice Owen. Well, this summer I believe--I tried to
    explain we don't know the exact number precisely.
        Chairman Hatch. Approximately the number.
        Justice Owen. We know there have been at least 650 as of
    this summer, and the information, updated information I've been
    given says there have been at least 775 now.
        Chairman Hatch. So approximately 775 cases where young
    girls or their counsel have asked for a judicial bypass so they
    did not have to notify the parents; is that right?
        Justice Owen. That's correct.
        Chairman Hatch. How many of those cases--you are saying
    only 10 young ladies' cases----
        Justice Owen. Now 11.
        The Chairman [continuing]. Came to the Supreme Court or in
    other words were decided by the Supreme Court. So all of the
    rest of them were able to go ahead and get the abortions; is
    that correct?
        Justice Owen. We don't know the exact--exactly the outcome
    in the trial court. That's confidential, but they cannot come
    to the Court of Appeals and they cannot come to my court unless
    the bypass is denied. In other words, if the trial court denies
    the bypass, that's the end of it. No one has the right of
    appeal.
        Chairman Hatch. So in these cases that you have mentioned
    with these 10 young women, the courts down there denied, the
    lower court, the trier of fact, the court that actually talked
    to the young women and their counsel, denied the bypass?
        Justice Owen. That's correct.
        Chairman Hatch. In other words denied them the right to go
    to an abortion without parental notification.
        Justice Owen. Well, they certainly had the right to get the
    abortion, but you're correct, they did have to give notice. It
    was not a prohibition against the abortion taking place, but
    the physician had to give at least 48 hours notice to one
    parent.
        Chairman Hatch. Now, in how many cases did you differ with
    your colleagues on the Supreme Court?
        Justice Owen. Again, it's difficult to just categorize the
    numbers, but in the counting the 12 times that the different
    cases came up, I think I disagreed with them 3 or 4 times. Let
    me get my notes here and make sure that's right, but I think 4
    times.
        Chairman Hatch. OK, 4 times. So you agreed with the
    majority and the court for the other remaining----
        Justice Owen. Actually it was 3. I'm sorry. I agreed with--
    --
        Chairman Hatch. So you agreed with the court in all but 3
    cases and that means that in the vast majority of those cases
    that appeared before the State Supreme Court you agreed with
    the majority.
        Justice Owen. I agreed with the judgment. In Doe I there
    were differences between my interpretation of the statute and
    the court's, but I did agree with the judgment in remanding the
    case back to the trial court. I thought that the minor deserved
    another opportunity to present her case to the trial court and
    see if the trial court would grant the bypass.
        Chairman Hatch. Now, in the other cases where you
    disagreed, you basically upheld the trial court decision.
        Justice Owen. That's correct.
        Chairman Hatch. That is hardly being outside of the
    judicial mainstream, or outside of the mainstream of American
    jurisprudence, is it?
        Justice Owen. I didn't think so.
        Chairman Hatch. I do not think anybody else would think so.
    I mean you can legitimately disagree on what the
    interpretations of the statute are.
        Justice Owen. Well, we did--a number of cases we did
    disagree and there was--I was not the only judge that
    disagreed. In some cases we were very split up over what the
    statute meant.
        Chairman Hatch. I see. Well, in the cases where you
    disagreed you upheld the lower court decision.
        Justice Owen. That's correct.
        Chairman Hatch. It is true that the lower court judge was
    the trial judge, right?
        Justice Owen. That's correct.
        Chairman Hatch. It is true that that lower court judge was
    the determiner of the facts, right?
        Justice Owen. Yes, Mr. Chairman.
        Chairman Hatch. It is true that that lower court judge was
    the judge who at least had some experience with the young woman
    involved; is that correct?
        Justice Owen. That's right. The trial judge actually sees
    the minor and talks to her, listens to the questions that are
    posed by her counsel, by her guardian ad litem, has an
    opportunity to actually view her. All we get is the cold
    printed record.
        Chairman Hatch. And isn't it generally the rule that the
    trial judge is the determiner of the facts of the case?
        Justice Owen. Generally speaking, the trial court is of
    course the trier of fact, and the trial court's determination
    of the facts are binding on my court.
        Chairman Hatch. And is it not true that good judges on the
    Supreme Court generally give great deference to the findings of
    fact by the lower court judge?
        Justice Owen. That's correct. That's a well-established
    principle.
        Chairman Hatch. So the fact that you differed with some of
    your colleagues on the bench does not necessarily mean that you
    were outside of the mainstream of American jurisprudence or
    that you acted in a radical fashion, because you were upholding
    the lower court judge who had all the facts.
        Justice Owen. I agreed--I think I said in some of these
    cases that it was a close call, but that based on the record I
    thought there was enough evidence that I was compelled to
    affirm the trial court.
        Chairman Hatch. Now, as I understand it, some have
    criticized you because of Judge Gonzales' language. Could you
    tell us what really is involved there?
        Justice Owen. Well, that was the case when the first Jane
    Doe, the first Jane Doe had come to the court, and as I might
    explain, the court, including me, agreed to remand the case
    back to the trial court. This was the first time the statute
    had ever been construed by my court, and neither she nor her
    counsel really had any idea of what the words ``mature and
    sufficiently well informed'' meant. So once the court had put
    some parameters on that, I agreed that it should go back to the
    trial court. And it did, and there was another hearing, another
    lengthy transcript. The minor again testified, talked to the
    trial court. Her counsel, her guardian ad litem were there. And
    the trial court again made the determination that the minor was
    not entitled to the bypass under the mature and sufficiently
    well informed prong of the statute.
        The Court of Appeals looked at that record. They again
    affirmed what the trial court did, denying the bypass, so for a
    second time, after the trial court had looked at it twice and
    the court of appeals looked at it twice, we got Jane Doe back
    for a second time. And in that case, again, I said it was a
    close call, but that I thought there was some evidence to
    support what the trial court found, and under those
    circumstances, even if I might have made a different decision
    had I been the trial judge, I felt like under appellate
    principles I had to affirm what that trial court did because
    there was some basis in the record to do so. There were several
    dissents in that case, and I think it's fair to say that some
    of our opinions were contentious on their face at least, that
    there was some--as Judge Cornyn, former Judge Cornyn, Senator
    Cornyn now, described it, there's certainly robust debate in
    those decisions.
        And in one of the dissents--there were three separate
    dissents--I was one of the dissenters, but there were two
    others who wrote two separate opinions. One of the dissenters
    said that the majority said, ``We are not judicial activists,''
    say the judges today. And I think that what Justice Gonzales
    was doing was responding to some of the judicial activism
    language that was in that opinion as well as a concurring
    opinion by another judge. There were lots of opinions in this
    case. And he went on to say that--let me get the exact language
    because I don't want to misquote it here. He said that, ``If
    you were to''--let me again find the exact language.
        [Pause.]
        Justice Owen. He was talking about that he as a judge has
    to do what the law says, not what he might want to do as a
    citizen or a parent. And then he says, ``But I cannot rewrite
    the statute to make parental rights absolute or virtually
    absolute, particularly whereas here the legislature had elected
    not to do so.''
        And he had also said previously that, ``Thus, 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 word of the statute, would be an unconscionable act of
    judicial activism.'' He didn't say that the dissents had
    engaged in that. He said if anybody, including himself, were to
    do that, would do that, that would be judicial activism, and I
    agree with that.
        Chairman Hatch. In other words, if they were to eliminate
    judicial bypasses----
        Justice Owen. Yes.
        Chairman Hatch. I mean the point here is, is that the vast
    majority of bypasses were upheld.
        Justice Owen. That's correct. And then he goes on to say
    just in the next paragraph, he's discussing one of the other
    dissents, and he names the dissent by name----
        Chairman Hatch. Let me just interrupt you for a second. You
    were never taking the position that you were going to eliminate
    judicial bypasses?
        Justice Owen. Of course not, no. And I don't think that he
    fairly read that he can be said as saying that I or any other
    judge on the court was doing that, or that we were erecting
    hurdles that would prevent its applicability. And the reason I
    go on--I've got several reasons why I say that. Let me explain
    his opinion. Let me kind of put this into context.
        In the very next paragraph he addresses one of the
    dissenting opinions directly, and he says that that dissent
    charges our decision--that our decision demonstrates the
    court's determination to construe the Parental Notification Act
    as the court believes the act should be construed, and not as
    the legislature intended. And he says, ``I respectfully
    disagree.'' He doesn't say that you have engaged in judicial
    activism. He says, ``I respectfully disagree.'' Now, this is
    the point where he's talking about what the dissenters, or at
    least this dissent actually did. And to put this in context,
    first of all, let me say categorically that Al Gonzales, former
    Justice Al Gonzales on my court, is an honorable man, and there
    is no way that I believe in my heart that he would support me
    for this position, this nomination if he believed that I were a
    judicial activist. He would not have recommended me. He would
    not have supported me publicly like he has.
        And so the other thing is I remember when these opinions
    came out. I remember the debates that went on, the discussions
    we had, and I certainly don't recall ever thinking that this
    language was directed at me. I remember when my nomination
    started to get a lot of attention from some of the special
    interest groups, and I read a blurb that said Justice Gonzales
    had accused me of being a judicial activist, I was--I thought,
    ``Well, that's ridiculous. I would remember that. He never said
    any such thing.'' And I went back and ran a word search through
    the opinions and found this language, and yes, I recall this
    case. But if this--if I had thought then for a moment that he
    was accusing me of being a judicial activist, we certainly
    would have had a discussion about that and I would have
    remembered it. It would have been something that would have
    been seriously talked about. And that just was--you know, let
    me say then as I did now, I do not believe that he was
    attacking me, or for that matter any other dissent on the
    court.
        Chairman Hatch. Well, thank you. My time is up.
        Senator Kennedy, we will turn to you.

     STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
                         STATE OF MASSACHUSETTS

        Senator Kennedy. Thank you very much, Mr. Chairman. I take
    just a moment here before asking our witness some questions,
    just to pay a tribute to you and to other colleagues of the
    committee, Senator Leahy, Senator Feinstein, Senator Hutchison,
    for their work on the Amber Alert Bill. I saw you last night,
    Mr. Chairman, just after Elizabeth Smart was found and we all,
    as others have pointed out, know of your deep involvement in a
    very personal way in this case, and also in strong support of
    the Amber legislation.
        We have had a tragic situation in our own State, the Bish
    family from Warren, Massachusetts, just a year ago. And many of
    us have been trying to have our own State, Massachusetts,
    develop a similar kind of a case for the heartbreaking reasons
    that have surrounded the situation and the circumstance in the
    Elizabeth Smart case. So we will work on that legislation. It
    is a pretty good indication that the committee can work and do
    some good work at a time and achieve a good objective.
        Chairman Hatch. Well, thank you, Senator.
        Senator Kennedy. I appreciate the fact that you brought
    that up at the start of this hearing.
        Chairman Hatch. Well, that means a lot to me, and as usual,
    your compassion comes through, and our friendship is intact in
    spite of the fact that we occasionally disagree.
        Senator Kennedy. Well, don't want to go too far at the
    opening of this hearing.
        [Laughter.]
        Senator Kennedy. Judge Owens, I want to welcome you back.
        Justice Owen. Thank you.
        Senator Kennedy. Owen, Owen--excuse me--to the committee
    and thank you for the willingness to take on the responsibility
    for service on the courts, and thank you for your willingness
    to respond to these questions. I think as you well understand,
    all of us have a responsibility in these considerations, and we
    want to try and ensure, as I am sure you do, that we are going
    to have people, men and women on the courts, that are going to
    insist that the courts are going to be available and accessible
    to listen to all sides and to evaluate all of the information
    that comes before the courts and give a fair and balanced
    judgment on these cases.
        And my concerns, as I think you remember from the last
    time, is to what kind of--whether the plaintiffs are
    representing workers, the disadvantaged, those that are left
    out and left behind, individuals that have been injured or hurt
    in circumstances, whether they will be able to get a fair
    hearing in the courts. And so we look at your background in
    these areas to try and draw some conclusions. And I want to
    just again sort of mention these and hear you out once more on
    this.
        As I mentioned, one of my major concerns is the way that
    you reinterpret the law to achieve currently the result that
    you want. Your decision consist of support for the businesses
    and employers over the rights of the plaintiffs, and I believe
    often stretch the law to do so. You are among the most frequent
    dissenters on the Texas Supreme Court with more than 20
    dissents in cases involving the rights of employees, consumers
    and many others in the last 5 years.
        The Texas Supreme Court is notoriously business oriented,
    but you stand out as being to the right of most of the judges
    on the court. You have repeatedly been criticized your
    colleagues in the majority for putting your own views above the
    law. In the Jane Doe cases you were criticized by your
    colleagues, including Alberto Gonzales, who is now President
    Bush's counsel in the White House, for insisting on reading
    your own views into the Parental Notification Statute on
    abortion. Judge Gonzales called your interpretation ``an
    unconscionable act of judicial activism.''
        Numerous examples occur in other cases involving labor
    protections, consumer protections and environmental
    protections. In one case the private landowners tried to obtain
    an exemption from the environmental regulations, and the court
    majority specifically criticized your harsh dissent, saying it
    was nothing more than inflammatory rhetoric which merits no
    response.
        In a case involving whether an insurance company had acted
    in bad faith, you joined a partial dissent that would have
    limited the rights of jury trials for litigants, and this
    dissent was criticized by other judges as a judicial slight of
    hand to circumvent the constraints of the Texas Constitution.
        In another case a worker's arm had been partially amputated
    as he inspected a chopping machine. Your dissent would have
    severely limited the ability of injured individuals to obtain
    compensation from product manufacturers. The majority
    criticized your dissent for imposing a test more broad than any
    holding in this area so far.
        And even when you have joined the majority in favor of a
    plaintiff, you have announced views hostile to workers' rights,
    the GTE Southwest v. Bruce. You concurred with an otherwise
    unanimous court decision in favor of the three female
    employees, but you went out of your way to make it clear that
    in your view not all of the supervisor's behaviors amounted to
    intentional infliction of emotional distress. The supervisor's
    behavior included yelling, cursing, frequently at the
    employees, repeatedly threatening employees verbally,
    assaulting employees by physically charging and lunging at
    them, and ordering a female employee to scrub a carpet on her
    hands and knees.
        Because of such cases--and these are just a few examples--
    how we can have confidence that you will fairly interpret the
    law and fairly consider the claims of workers, victims of
    discrimination or other injured individuals, and how can we
    have the confidence that you will review the cases with an open
    mind?
        In the hearing last fall I asked you whether with all your
    dissents in favor of businesses, insurance companies and
    employers, you had dissented in any case where the majority of
    the court favored those interests. You mentioned a single case,
    1996, the Saenz v. Fidelity Guaranty Insurance Underwriters.
    After reviewing that case--and I hardly think it offsets your
    anti-plaintiff record--you did not write a dissent in the case.
    You joined an opinion written by another justice, concurring in
    part and dissenting in part. You actually agreed with the
    majority that a jury verdict for the plaintiff should be
    overturned. In fact, another dissent in the case would have
    upheld the jury verdict.
        So while you agree that there was a claim in that case that
    you would have allowed the plaintiff to pursue, but your long
    record of ruling against the plaintiffs. Is that the only case
    in which you dissented in favor of the plaintiffs in a workers'
    rights, consumer rights or a civil rights case?
        Justice Owen. Senator Kennedy, there's a lot in your
    question, so let me try to go back and parse through some of
    the things that are in that question and that proceeded it in
    some of your statements.
        Senator Kennedy. OK.
        Justice Owen. First of all, Senator Kennedy, I can assure
    you that I do not ever try to achieve a result, and I don't
    look at whether I want one side to win or the other side or one
    segment of our population to be favored over another. That is
    not my job. And I certainly don't keep score and say, ``OK, you
    know, 50 percent of--this side has to win 50 percent of the
    time and this side has to win 50 percent of the time, and every
    6 months or so we've got to even the score here.'' I mean that
    is not what judging is about. That is not what I do.
        And you mentioned that--I think you said in 20 cases I have
    dissented. Well, I have participated in over 900 written
    opinions for my court, and we have also denied writs--petitions
    and writs of error in my court. We get about 1,400 of them a
    year, and we look at every single one of them. And when we only
    take about 10 percent and write an opinion in. So in all of
    those thousands and thousands of cases, we have voted--I, as
    part of the court, have voted to let the lower court judgment
    stand, and there are untold hundreds and hundreds of verdicts
    in those cases that we don't touch, that we do not set aside.
        And the cases that do come to us, as Senator Cornyn
    explained, my former colleague, we get the tough ones, and we
    don't--you know, the cases that come to us are generally not
    the easy cases. And what I try to do as a judge is to put aside
    personal feelings or put aside sympathetic or sympathy, and put
    aside the fact that, yes, in some of these cases people are,
    are very injured. And the question is, do they--what does the
    law say? What does the law require under these circumstances?
    And, Senator Kennedy, I tell you again that I judge cases by
    what is right. I do not judge cases by what is politically
    correct. I apply the law and the law has to be predictable. It
    has to be fair. And that's what I do in these cases. Sometimes
    workers win, sometimes big companies win. The outcome is
    determined by the law applied to the facts, not my favoring one
    side or the other.
        And I did submit, I believe in response to written
    questions this summer, a partial listing of the significant
    cases where workers or consumers, plaintiffs had won
    significant victories in my court, and I can cite you others.
    In terms of being criticized by my colleagues, I think as
    Senator Cornyn very ably pointed out today, the culture of
    Supreme Courts, State Courts, is often, and certainly as my
    case, is we do criticize one another in opinions. That's
    frequent. That is certainly not out of the norm. Every single
    member of my court has been criticized by every other member of
    the court I'm certain at one time or another, and sometimes in
    strong terms. That does not mean that I think any of my
    colleagues have ill motives, have political motives, or unfair,
    or unfit as judges. As Judge Cornyn, now Senator Cornyn, I
    think explained, that is the way judges speak in their written
    opinions.
        I won't go through too much more explanation unless you'd
    like me to on the Doe case, where Justice Gonzales, former
    Justice Gonzales actually used the words that you quoted. You
    mentioned the FM Properties case. You characterized that in a
    certain way, but my position in that case was to uphold what
    the legislature had done, and I felt like the legislature had
    made a good faith effort. It was not unconstitutional. The
    Democrat Attorney General in the State at the time, Dan
    Morales, filed a lengthy brief in support of the State, in
    support of the position I ultimately took. You mentioned the
    Sonnier case. That was the decision that Senator Cornyn was
    describing earlier that involved the tomato chopper, and the
    issue in that case was, it was in a prison system, and it was a
    very large chopping machine, and the only issue in the case
    involved the so-called statute of repose, and the question was,
    is it affixed to the property in such a way that it's a part of
    the real property or is it just a fixture?
        And nothing I said in that opinion had anything to do with
    expanding products liability law in the least. I said, in my
    dissent in that case, that this was, I couldn't tell from the
    facts. This is a fact question that should go to the jury and
    let the jury decide. Sometimes the facts are very clear and a
    court can tell, but I said, here, you know, I don't know
    whether this tomato chopper is sufficiently affixed. Let the
    jury decide. That was my position in that case.
        GTE, I thoroughly agreed with the court in that case, that
    what the supervisor in this case did was way out of bounds. The
    plaintiffs in this case were certainly entitled to recover for
    intentional infliction of emotional distress. I voted to uphold
    that verdict. The only thing I said in that case in terms of--
    and this is a term of art--I said that some of the evidence
    that the court cited was legally insufficient. That does not
    mean it's not admissible, certainly. It's admissible. But the
    question is if you just had isolated instances that I cited by
    themselves, that would not be sufficient to constitute
    intentional infliction of emotional distress, as has been
    defined by the restatement of the law of torts, which is a
    nationally recognized 50-state treatise that our court had
    adopted, and I cited the specific examples and said, ``This is
    the kind of thing precisely that the restatement was talking
    about,'' and I was trying to square what we said in GTE with
    two very recent cases that the court had decided.
        I can tell you that I have upheld decisions for workers
    where I have been criticized by my colleagues. One case was the
    Ethyl case. It involved asbestos workers. There were several
    hundred asbestos workers sitting--a number of defendants, and
    the trial court chose 22 of those cases against, I believe it
    was 5 defendants, to try sort of all in one trial as an
    efficiency means to do it faster than one case at a time. And
    the defendant came up on mandamus and asked us to stop the
    trial and say, you know, this is too many plaintiffs to try at
    once. And I wrote the opinion for the court. I said, no, the
    defendant has not established that the court abused his
    discretion and this trial should go forward.
        I did the same thing in a breast implant litigation case,
    and I was criticized for it by the dissent. I can go on and on.
    I dissented in S.V. v. R.V. and I was criticized for my
    dissent, where I would have let a girl who said she was
    sexually molested by her father, go to--I would have tolled the
    statute of limitations because she asserted at the pleading
    stage that she repressed her memories of that until she got
    away from her home and was in college. So I can go on and on
    about cases where I have either written or joined opinions,
    significant decisions, that upholds verdicts or established
    rights for injured parties, injured workers, plaintiffs,
    consumers. So I think when you're looking at my record, you
    have to look at the entire record, and that's a whole lot of
    opinions, Senator.
        Senator Kennedy. Well, I am looking at the whole entire
    record, but I am looking at the particular kinds of actions
    that have been taken with regards to workers' rights, civil
    rights, environmental rights, women's rights, and those are
    areas that I was particularly interested in. When we were
    talking about the dissents, not 20 dissents. Obviously you have
    dissented more, but on particular cases involving those rights,
    I think in a fair kind of review of your record in terms of
    workers' rights, environmental rights, people's rights, civil
    rights, you would not find the kind of balance that you have
    just stated or claimed. That is why I asked in the last time
    whether there was any time that you stood up for the plaintiff,
    any single time over the--differing with the other members of
    the court, and you gave only this one case, which really does
    not really say that. There was a dissent, but you were not a
    part of it, that would have upheld the jury verdict.
        So my point is here, I am not saying that you have never
    supported a plaintiff. I know that you have sometimes joined
    pro-plaintiff's majority. The point is that you are extremely
    active in anti-plaintiff dissent on an already conservative
    court. And we are not simply discussing a few cases, but I
    think an extensive record. And the question is, is whether you
    have shown the same kind of dedication in the protecting the
    rights of individuals that you have showed to protecting
    businesses, insurance companies and other employers, when they
    harm individuals and violate the law. That is the area. And if
    you have--if you do not feel that I have been fair in that, and
    you think that there are other parts of your record that would
    reflect that, and show that, and give that kind of balance, I
    welcome that submission for the record.
        Just a final point. I had inquired of you--I know we have
    gone over the Ford v. Mills case. In your response to me you
    said with regard to the motion to expedite the court considered
    the Ford v. Mills case an important one, but we did not give it
    precedence. Do you know any reason why you did not give it
    precedence?
        Justice Owen. Senator Kennedy, I hope you appreciate that I
    do operate under a code of conduct in Texas, which means I
    can't disclose the deliberations entirely, but I can say this,
    that a motion like that would have taken a majority of the
    court, 5 members to agree to put it ahead, and 5 members didn't
    do that. And we in hindsight said----
        Senator Kennedy. Well, I do not want you to violate the
    code. If there was some indication that in the 5 that you tried
    to do it and the others would not do it, it would be something
    that would be noteworthy.
        Justice Owen. We all agreed, including me, after the fact,
    that we should have granted those motions. I'm not sure it
    would have made any difference, but we should have.
        Senator Kennedy. Thank you very much for your appearance
    here. You come very warmly endorsed by our colleagues, which we
    are grateful for, and thank you for coming back.
        Justice Owen. Thank you, Senator.
        Senator Chambliss. [Presiding.] Judge----
        Senator Feinstein. Mr. Chairman, may I ask one question? I
    am going to have to leave because I have got an appointment
    with a foreign diplomat that I must keep. And I wonder, you
    know, my presence and the reason I wanted to be here was
    because I wanted to have a second chance to ask some questions,
    and apparently I am not.
        Senator Chambliss. If your question is can you go now, the
    answer is yes.
        Senator Feinstein. No. I was just going to say what I would
    like to do is----
        Senator Chambliss. Seriously, I am happy for you to go if
    you would like to.
        Senator Feinstein. Well, thank you very much, and I will
    just take a couple of minutes. I will not use my time.
        But first of all, believe it or not, welcome back.
        Justice Owen. Well, thank you, Senator. It's good to see
    you again.
        Senator Feinstein. It is good to see you, and I know this
    is tough.
        Justice Owen. I'm under oath, so I won't respond to that.
        Senator Feinstein. No, do not respond to it.
        Justice Owen. I'm just teasing.
        Senator Feinstein. What I would like to do, if I may, is
    send to you a memoranda that was prepared by NARAL, also
    entitled, ``Setting the Record Straight,'' that essentially
    took your comments and juxtaposed them against the law, and ask
    you if you would respond in writing as quickly as you could?
        Justice Owen. Certainly, certainly, Senator.
        Senator Feinstein. And that might be the easiest way to
    approach this. My interest is really to see that as an
    appellate court judge you would be willing to put whatever
    opinions you might hold or views you might hold aside and
    really work to see that the law is carried out. And I think in
    the Parental Notification issue, particularly in those first
    Doe cases, where the prongs of the Texas law were being
    established with some precedent, that there was a very strong
    feeling that you reached out, particularly into Casey, where
    Casey really did not apply because the Texas law, the belief
    was it was very specific and very precise in the level of
    consent that it implied. So I think this is set forward in this
    memorandum, and perhaps you could just respond.
        Justice Owen. Senator Feinstein, I would welcome the
    opportunity, because I feel like I have not adequately
    communicated with you on this particular issue, and I would
    welcome the opportunity to do that, to try to do that in
    writing.
        Senator Feinstein. And then perhaps you would also take the
    statements that have been in part relayed here. And I think
    Senator Cornyn was very helpful in putting that in some
    perspective, but for example, there is a sentence here by
    Justice Hecht, ``charges that our decision demonstrate the
    court's determination to construe the Parental Notification Act
    as the court believes the act should be construed and not as
    the legislature intended.''
        And I think that well states what the contention is by
    some, and that is, that the legislature said one thing, and yet
    there was an attempt by the court to construe it to be
    different. So perhaps you could respond in writing, and I will
    pay special attention to it.
        Justice Owen. I appreciate that. Thank you.
        Senator Feinstein. Thanks very much.
        Justice Owen. Thank you.
        Senator Feinstein. Thank you very much, Senator.
        Senator Chambliss. Thank you, Senator.
        Justice Owen, I would like to note two things. First of
    all, it is kind of nice to have somebody here that talks like I
    do. We do not need to have an interpreter between you and me.
        [Laughter.]
        Senator Chambliss. And second, I notice you are an
    Episcopalian. There are not that many of us around. So I am
    particularly pleased to see that.
        There has been some indication this morning, as I read the
    transcript of the previous hearing, there are some accusations
    against you that you are pro-business, you are pro-corporate
    entities, and basically against the guy on the street out
    there. And you have had somewhat of an opportunity to respond
    to that, but some specific questions have not been asked of you
    about certain cases, and I would like to give you an
    opportunity to kind of set the record straight, if you will,
    about the decisions that you have made against the
    corporations. And if you would, could you please delineate some
    of those cases where you issued rulings that actually favored
    individuals versus against corporations or that might be
    perceived to be anti-business?
        Justice Owen. Senator, there is--I'm not sure that I've
    captured every single one of them in the last 8 years. I do
    have a list, and it's quite lengthy. I would say there are
    quite a few cases on here. But just Polaris Management Company
    denied--a corporation was requesting certain discovery--or
    certain discovery from the plaintiff be quashed, and I joined
    the majority in saying that that was not appropriate.
        And also it involved--now my memory is coming back to me.
    Polaris was a large, large class action lawsuit involving
    alleged securities frauds, and thousands of plaintiffs had been
    gathered up in this class action. I believe it was in Maverick
    County, Texas. And the defendant was asking this court to--the
    trial court had selected a certain select group of plaintiffs
    to proceed to trial. The defendant was saying, you know, we're
    getting a raw deal down here, and would you please say that
    this is improper to do this? And I agreed with the majority of
    the court that that trial should go forward and we should not
    intervene.
        Perhaps--I hate to spend the time going through all of
    these, but let me give you some of the larger cases I think,
    that are pretty much landmark decisions I think for our court.
    I already mentioned the Ethyl case and the Bristol Myers case.
    Those both involved mass torts. One was the asbestos
    litigation. The other was the breast implant litigation, and
    that again involved the defendant's claims that the trial court
    should not allow plaintiffs to proceed in these groups as they
    did. And we laid out the parameters that most of the courts
    across the country have looked at in deciding when it's
    appropriate to aggregate cases and when it's appropriate to
    sever. And we applied those principles in this case, and
    concluded that the trial court had correctly discharged his
    duties.
        We also held in sort of a series of cases, and we
    ultimately--when workers can sue for these latent diseases such
    as asbestosis. And we held that a worker who gets a disease,
    one kind of disease from asbestos and sues defendants, and then
    settles that case, and many years later develops a different
    asbestos disease--in this case I believe the plaintiff
    developed mesothelioma--that plaintiff is not barred by
    limitations and that plaintiff is not barred by the fact they
    already sued someone for another asbestos related disease from
    proceeding against other defendants when the second disease
    many years later manifested itself. So we--I think that's a
    significant decision in favor of workers and plaintiffs.
        And the Owens-Corning case, I concurred with the court that
    workers who had been exposed to asbestos should be allowed to
    collect punitive damages from their employer, and Owens-Corning
    in that case, as I recall it, was arguing that there should be
    a constitutional limit or restraint on the damages in that
    particular case, and I disagreed under the facts of that case.
        There's a long list. A manufacturer of a lighter, one of
    those Bic--I don't know if it was a Bic lighter. It was the
    Tokai Company apparently manufactured it and it was not
    childproof, and the grandmother had purchased the cigarette
    lighter and had put it in a closet, and her grandchildren who I
    think were like 3-years-old and maybe 2, that both of them got
    a hold of the lighter and ignited a blanket with it and were
    terribly injured. And this actually came to us on a certified
    question from the Fifth Circuit, and we rejected the
    manufacturer's argument that it had no duty to make these
    lighters child resistant. We said that you have to go through
    the risk balancing analysis that you typically would do in a
    products liability case.
        Again, there are quite a few, but that should give you some
    flavor for some of the decisions that I've been a part of.
        Senator Chambliss. Well, I am going to ask that the list
    that you have there be appropriately identified and inserted in
    the record.
        Justice Owen. I hope you let me clean it up a little bit.
        Senator Chambliss. All right, we will let you do that. But
    if you will, at the same time you respond to Senator
    Feinstein's question, if you would just send us that list, and
    mark it as to what it is. I would like to have that inserted in
    the record.
        Justice Owen. I'd be happy to do that.
        Senator Chambliss. Again, as I looked at the transcript of
    the previous hearing, since I was not a member of this body at
    that point in time, I noticed that there was a rather detailed
    question asked of you about a case in which you wrote the
    majority opinion, and that was Ford Motor Company v. Miles. I
    think there were some very significant misunderstandings about
    your involvement in that case, and I want to see if we cannot
    straighten some of that out.
        For those who do not recognize this case, this case
    involved an automobile accident victim named Mr. Searcy, who
    tragically passed away years after his accident, but before the
    litigation was resolved.
        First of all, let me ask you whether there is any truth to
    the accusation made during the course of your previous hearing,
    that the victim passed away before the Texas Supreme Court
    ruled on his appeal?
        Justice Owen. I think that there was a misunderstanding
    about that. Certainly the Supreme Court of Texas--and I wrote
    the opinion for the majority--handed down that opinion. And
    it's my understanding it was 3 years after that or more than 3
    years after that that Mr. Searcy passed away.
        Senator Chambliss. There was also an accusation made during
    the course of your hearing that your opinion was improperly
    based on the issue of venue. In other words, there was a
    question of whether the plaintiff's lawyers filed the case in a
    county that did not have jurisdiction over the dispute. Was
    there anything improper about the Texas Supreme Court's
    consideration of arguments concerning the venue in that case?
        Justice Owen. Senator, there's a statute on the books in
    Texas that the legislature has passed that says if venue is
    improper, the case must be reversed and remanded to the proper
    court for trial, unless of course there are dispositive issues
    that brings an end to the litigation entirely.
        And so in this case when the venue was improper--and it was
    in this case--we had no choice. We had no discretion
    whatsoever. We were required under the statute to reverse the
    case and send it to the proper county.
        Senator Chambliss. And in fact is it not the case that both
    the majority and the dissent in this case agreed that it was
    appropriate for the court to resolve the venue issue, and that
    no member of the court argued otherwise?
        Justice Owen. No, sir. Some members of the court thought
    venue was proper, but a majority of the court did not. And just
    to give you a flavor of this, what happened here, the
    plaintiffs in this case bought a Ford Truck in Dallas, Texas,
    and they lived in Dallas, Texas. The dealer that they bought
    the truck from was in Dallas, Texas. The accident occurred in
    Dallas, Texas. And all of the operative facts occurred in
    Dallas. But the plaintiff's lawyer for some reason--and I think
    it was pretty clearly forum shopping--chose to file this
    lawsuit in Rusk County in Texarcana, which had absolutely no
    relationship whatsoever to any of the operative facts, and
    tried to hold venue in Rusk County, which is about 180 or 200
    miles away from Dallas, by saying that, well, anywhere there's
    a Ford dealership, we ought to be able to sue Ford Motor
    Company. And my court said no, that's not the law in Texas.
        Senator Chambliss. So what you are actually saying, is that
    it was pretty clear that Dallas County, was the proper place to
    bring the suit. I think that is a basic constitutional law
    issue that all of us learned during our first year in law
    school, and I do not know of any law school that teaches
    otherwise.
        It was also implied by some members during your last
    hearing that your decision to reverse the verdict in that case,
    a decision that caused a legal setback for a young man who had
    been rendered a quadriplegic in an accident, means that you did
    not have any sympathy or compassion for people. Is that a fair
    accusation about you, Judge Owen?
        Justice Owen. Senator, it's not. Again, as I tried to
    explain to Senator Kennedy, a lot of these cases, the
    plaintiffs are very--your heart does go out to them. They have
    been injured and certainly in this case. This was a teenage boy
    who was a passenger in the truck. He was totally innocent. But
    I can't let that cloud my view or my duty to apply the law
    clearly and fairly in these cases. I can't rule for someone
    simply because they have had--they've been subject to an injury
    and they're an innocent party. We have to apply the rule of law
    in every case.
        Senator Chambliss. And I want to make it clear that your
    decision was by no means a termination of the plaintiff's
    ability to sue for injuries. What your decision basically said
    was that, instead of suing in Rusk County in Texarkana, the
    plaintiff must go to Dallas County to file suit, and try the
    case there. If you have a cause of action, that is where it
    needs to be determined.
        Justice Owen. There were some other aspects to the case.
    His stepfather had sued for loss of consortium and
    companionship in that case. And we looked at that issue, the
    court did. And I don't think anybody dissented from this, and
    said, no, that a stepparent cannot recover for the loss of
    consortium for a severely injured stepchild. We looked at law
    in other jurisdictions. We looked at our precedent. So there
    were some other aspects of the case, but the main issue, the
    first issue that we addressed is the first issue the Court of
    Appeals addresses, where was this case tried? Was it tried in
    the proper venue? And we said, we concluded, based on the law,
    that no, it wasn't.
        Senator Chambliss. And finally I want to ask you about the
    issue of delay in the Texas Supreme Court's decision in that
    case. Although as you have said, Willie Searcy passed away 3
    years after the Court's decision, I also understand that the
    court did take quite a while to decide the case. Is that
    correct?
        Justice Owen. That's correct. I went back and looked at all
    of the disposition rights surrounding that case, and
    unfortunately that was a year in which our court was way
    behind. If you look at the average days it took to decide cases
    in general, this case was well within the average, and it's an
    average I'm not proud of as a member of the court. The court's
    not proud of it, that we had a bad year, frankly, in terms of
    disposition time. But this case was no more--it was in the
    average for that year. And we did better in previous years and
    we've done better since then, but it did take us longer than I
    think all of us wish that it should, and we publicly said so.
    We're sorry we didn't get it resolved sooner.
        Senator Chambliss. Last, I have heard a comment here this
    morning that Justice Gonzales extended some criticism to you in
    an article and I guess maybe by some other means. Now, I read
    the article. I did not see any criticism in there. Is there any
    instance where Justice Gonzales extended some criticism to you
    for any decision you rendered, or your way in rendering it, or
    your exhibition of any right-wing views in making a decision?
        Justice Owen. The only thing that I'm aware of that has
    been said over and over and over again is that statement in the
    Doe case, that Judge Gonzales in a concurring opinion--and he
    said that to--let me again quote it. ``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.''
        And again let me explain it. He said ``would.'' He did not
    say that's what had happened with any of three different
    dissents. I was a dissenter. And again, I remember that time
    very well. I remember what was going on, and I did not think
    then and I do not think now that Justice Gonzales was saying
    that I had engaged in judicial activism or for that matter any
    of my colleagues had done so. As I tried to explain earlier,
    the words ``judicial activism'' had been used in another
    dissent. It had been used in Justice Enoch's concurring
    opinion. And he was saying--and Justice Gonzales was also
    saying in that paragraph, that I can't rewrite the statute
    based on my personal views, and to do would be judicial
    activism. And then he later said in another paragraph,
    referring to one of the dissents, that he respectfully
    disagreed with the dissent when he started actually talking
    about that dissent. And to me that was not an indication that
    he thought any of us were judicial activists.
        Senator Chambliss. Speaking of judicial activists on the
    bench, I would like to ask you if my classmate and my now dear
    and good friend, John Cornyn, was a judicial right-wing
    activist on that court. But you are under oath, and you would
    have to tell the truth, so I am not going to ask you that.
        Justice Owen. Well, when he voted with me, apparently.
        [Laughter.]
        Senator Chambliss. Senator Durbin.
        Justice Owen. Which was a big percentage of the time, I
    might add.

     STATEMENT OF RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE
                              OF ILLINOIS

        Senator Durbin. Thank you very much, Justice Owen for
    returning. I am sorry that you have to come back in this
    contentious environment, but I appreciate you being here today.
        I want to make a point for the record, that two of the
    nominees President Clinton, to fill vacancies on the same
    circuit, the Fifth Circuit, were denied even a single hearing
    or a vote. Jorge Rangel, an extremely talented Hispanic lawyer
    from Corpus Christi waited 15 months. Enrique Moreno, another
    superb Hispanic lawyer, waited over 17 months. And Alston
    Johnson, a distinguished Louisiana attorney waited a futile 23
    months. They were denied a hearing before this committee when
    the other party was in charge. And I think the fact that you
    are being given, I am told, an historic second chance before
    this committee should be put in the context of the fact that
    others never had one chance to come before this committee in
    the past. That is not your creation. That is not your doing,
    but I want to make that a matter of record.
        I would also like to address an issue which I find
    interesting, brought up many, many times before this committee,
    and that is the suggestion that the judges that we appoint, if
    they will follow the rule of law, really have very little
    flexibility, very little leeway, very little discretion. It has
    been said by Senator Cornyn and others that a judge cannot
    change the statute, the facts or the record. They are bound by,
    in his words, faithful adherence to the rule of law, and that
    of course is a good hornbook principle, but it almost
    diminishes the role of a judge to the point of following a
    formula of perhaps being part of some computer software that is
    going to have a totally predictable results. I think we know
    better. I think human experience tells us that is not the case.
        And then we come down to a question about whether or not
    judges are strict constructionists in applying the law or
    judicial activists, two phrases which are becoming almost
    meaningless because both liberals and conservatives have their
    view on what they mean.
        I would like to start off by asking you to comment on that,
    and to give me, without the bluebook answer here, to give me
    where you would place yourself on the spectrum between judicial
    activism and strict construction?
        Justice Owen. I think you're right that those terms are
    becoming somewhat meaningless. You know, I do believe that
    words have meaning, Senator. When you work very hard with your
    colleagues, you use, you pick and choose words carefully when
    you craft legislation, so I do think--I know you do--I think
    words have meaning, and I think that is the starting point when
    you look at a piece of legislation. You try to look at what
    words were hammered out during the legislative process. And
    sometimes that is not as clear as we would like it to be, and I
    think those are the hard cases that the courts, a court like
    mine particularly gets.
        And so when you get that, again, I think the first place
    you start is with the words that the legislators have chosen,
    whether it was Congress or a State legislature. And then if the
    words really aren't that clear--and I don't look at just the--
    that sentence or that phrase. I look at it in the context of
    the entire section and the entire act. I look at how it
    interplays with other pieces of the act. And sometimes you can
    see that the statute was--if you look in broader context in a
    larger section of that act, you can see that in context it
    becomes more clear. Sometimes it's necessary to go look at the
    legislative history to see what the bill analyses were, what
    were the framers of or the draftsmen or the sponsors of this
    bill, what did they say at the time that they were sponsoring
    it? That's usually sometimes an important source. So these are
    all things--of course if there's already a court--a decision on
    it, it's important I think for stare decisis. I think all the
    courts agree on this, that it's particularly important in
    construing statutes that you follow stare decisis because once
    the courts construed it and the legislative body has convened
    one or more times and hasn't changed it, that means that
    they've more or less adopted a view or decided to let stand
    that court decision. The court shouldn't go behind that and try
    to change it. So----
        Senator Durbin. Well, let me just followup. And I am not
    trying to set a trap for you, but I believe this is a
    legitimate line of inquiry for every nominee, and certainly
    those who are seeking the high position that you are seeking.
        We have a nominee pending before this committee, a justice
    from the Ohio Supreme Court, and I asked her in written
    questions about her view of strict construction of a statute,
    and she gave me what I have described as a painful answer
    because I think it is a candid and honest appraisal of strict
    construction, but I think it was painfully honest. And I want
    to tell you what she said. I asked her the following question:
    do you think the Supreme Court's most important decisions in
    the last century, Brown v. Board of Education, which of course
    struck down segregation; Miranda v. Arizona, which codified the
    rights of criminal defendants; Roe v. Wade, which addressed the
    issue of a woman's right of privacy; do you believe those
    decision are consistent with strict constructionism?
        Here is here answer. This is Deborah Cook, nominee before
    our committee now. And I quote, ``If strict constructionism
    means that rights do not exist unless explicitly mentioned in
    the Constitution, then the cases you mentioned likely would not
    be consistent with that label.'' End of her quote.
        I think that is an honest answer from a conservative,
    strict construction point of view, but it also leads us to a
    harder question. Had our judiciary been filled with men and
    women, strict constructionists, when civil rights were
    established in America, we might not have seen that occur, or
    we might have seen it delayed. Same thing may be true when it
    comes to questions of privacy. So I ask you in that context if
    you would agree with her conclusion, and if not, how you would
    say or how you would answer that question.
        Justice Owen. Well, Senator, you catch me a little bit
    cold, having to listen to something read back to me. But again,
    I think those terms have become so politically charged,
    frankly, on strict construction, judicial activism, the terms
    that you've used. But again I think you have to, in a
    constitutional context and as opposed to a statute, I think my
    court, at least the State court's history has been we start
    with the language. Again, words mean something, and they were
    chosen for a reason. But we also have to look at it in context.
        For example, some parts of the Texas Constitution are very,
    very clear, you shall not do so and so. Other parts of the
    Constitution it takes judicial decision to put some context on
    that and to flesh out the full meaning of it, just as the U.S.
    Supreme Court has done, for example, with the due process and
    equal protection clauses. So I don't think it's all that
    simple.
        Senator Durbin. Let me just give you an illustration, and I
    have referred to it in another committee hearing. I last week
    went to Alabama with a bipartisan group of Congressmen and
    senators to go back to Selma and Montgomery and Birmingham with
    Congressman John Lewis and take a look at the civil rights
    struggle 38 years later. And it was a profound experience for
    me to stand at the foot of Edmund Pettis Bridge, where
    Congressman John Lewis was beaten and suffered a concussion as
    he tried to march to Montgomery. And it was interesting, as I
    spoke to Congressman Lewis at one point, he said, ``You know,
    there never would have been a march from Selma to Montgomery
    were it not for a Federal District Court Judge named Frank
    Johnson. Frank Johnson from Alabama, a Republican appointee
    under President Eisenhower, had the courage to stand up and
    give us a chance to match from Selma to Montgomery.''
        He was the one who during his tenure as a Federal judge
    struck down Montgomery's bus segregation law that led to the
    arrest of Rosa Parks. He issued the first court voting rights
    order in the Nation, based on one person, one vote. Of course,
    he was harassed. His mother's home was threatened and
    firebombed, and he went through a complete ostracism by the
    establishment of his community because he stood up for civil
    rights. And by most every classic definition, Frank Johnson was
    a judicial activist, and were it not for his courage in
    decisions, like I said, I am not sure where the cause of civil
    rights would be today.
        In looking back at the cases that you have written as a
    State Supreme Court Justice during your decade on the court,
    have you ever ruled on a case which you believe helped to
    advance an important civil rights principle?
        Justice Owen. Well, yes. Let me back up and say we do not
    get many civil rights cases in the State Supreme Court, as you
    might imagine. Most of the civil rights cases go in the Federal
    courts. They're not filed in the State courts. And I'm trying
    to think of a case that has really squarely come up that you
    would really call a civil rights case.
        Senator Durbin. Perhaps a case on age discrimination?
        Justice Owen. I'm trying to remember. Do you have a
    particular case in mind?
        Senator Durbin. Quantum Chemical v. Toennies?
        Justice Owen. Oh, yes. Yes, I do remember that.
        Senator Durbin. In that case, there was a question about
    whether a plaintiff could prove age discrimination by showing
    that it was a motivating factor in the employee's termination,
    and you joined with Justice Hecht in a dissent in restricting
    the plaintiff's right to recover under age discrimination,
    saying it wasn't sufficient, as the majority of the court
    found, that age was a motivating factor in the termination. You
    said it had to be the determinative factor.
        It seems to me that you were moving in the opposite
    direction of civil rights in that minority position that you
    took on the court. But I want to give you fair opportunity, if
    there are other cases you would like to point to where you
    think you advanced a civil rights principle.
        Justice Owen. Let me--I would like to address that
    particular case because--and I have done so, and I also want
    you to know that I have done this in writing. So if I don't do
    a very good job of it today, I will ask you to please also look
    at the written response. I am trying to find it here, because
    that's a very complicated case. And what I was trying to do in
    that case is, again, follow the law that the U.S. Supreme Court
    has laid down, and they have not been very clear in this area.
        What it--my recollection is this dealt with Subsection (m),
    I believe it was--I would really like to find my answer so I
    don't misstate here. But the question in the case was: Do you
    have a different causation standard in a pretext case as
    opposed to a mixed-motive case? And the U.S. Supreme Court had
    handed down a decision that Congress disagreed with, and I
    think it was Pricewaterhouse--if you'll take a minute--if
    you'll let me take a minute and find it, find my writing,
    because I want to be precise about this.
        Senator Durbin. If you would like to respond in written
    form, too, and explain your position on that, I would
    appreciate that.
        Justice Owen. Yes, because there were two circuit----
        Senator Durbin. That is only fair.
        Justice Owen. Two Federal circuit judge--courts had gone
    one way, and then there was Watson and that had gone another,
    and I found the rationale and actually the text of the Civil
    Rights Act to support what the Third Circuit and I believe it
    was--I don't remember what the other circuit had done.
        Senator Durbin. Let me ask you--I would like you, if you
    wouldn't mind, if you would give a written response.
        Justice Owen. I would be happy to.
        Senator Durbin. Now, prior to being elected to the Texas
    Supreme Court, you practiced law for 16 years, and in your
    questionnaire you were asked to describe the ten most
    significant litigated cases that you handled.
        Now, none of the cases that you listed involved public
    interest matters or civil rights. Is that because you didn't
    handle that type of case or because the ones you handled you
    did not consider to be significant in your practice?
        Justice Owen. My law firm didn't handle those types of
    cases. We just weren't hired by anybody that--well, I say that.
    Our labor department may have, but I was not in that section,
    and that was not my specialty, and that's just not what I was
    hired to do.
        Senator Durbin. Justice Raul Gonzalez, who served with you
    for a period of time on the Texas Supreme Court, was certainly
    a model in many respects in terms of his public commitment to
    pro bono work, particularly when it came to volunteer legal
    services. Have you had any experience in volunteering your
    legal services?
        Justice Owen. I have had some.
        Senator Durbin. Can you tell me the nature of that kind of
    work?
        Justice Owen. They were domestic relations cases.
        Senator Durbin. And how many or how long ago? Could you
    just put it in context?
        Justice Owen. Well, I've been on the bench a little over 8
    years, so it was before--it was before then. And there were--I
    know I represented a woman in a case where she--she and the
    father of her child were not married, and they had had--he had
    sued her to establish paternity and that had occurred. And then
    they had gotten in a dispute about whether she was allowing
    adequate access to the child, and then she was--found herself
    in a position that she was about to be held in contempt of
    court, and he was seeking to get sole custody of the child. And
    I got involved at that point through the legal services, local
    legal services group, and represented her and got the contempt
    resolved. She was not held in contempt of court, and I worked
    with her and gave her a calendar. She really didn't understand
    the terms of the order, and I went and bought her a calendar,
    and we went through day by day and marked times and dates that
    would comply with the order. And we also talked about some
    things I won't go into for confidentiality reasons, but to help
    her avoid those types of situations.
        And I was involved in another----
        Senator Durbin. I will give you an opportunity in written
    questions to come back, if you would like, to give me some
    other examples of such work that you were engaged in before you
    went on the court.
        I also mentioned in Judge Johnson's situation that he
    took--showed a great deal of courage as a judicial activist in
    civil rights and was extremely unpopular in his own community
    as a result of that. Can you think of an example of an opinion
    that you have written on the Texas Supreme Court that was
    politically unpopular with the established power structure in
    Texas or in a community but that you felt was the right thing
    to do.
        Justice Owen. Well, first of all, let me say, I don't want
    to, by answering that question label the judge you described or
    any other judge as a judicial activist. I'm not saying that I
    don't applaud what he did or think that he did the wrong thing.
    I just--I hate to apply that label to any judge, particularly,
    as it sounds like to me, he was applying the Civil Rights Act.
    But, in any event----
        Senator Durbin. This is before the Civil Rights Act.
        Justice Owen. I'm certain I've written unpopular decisions.
    Sitting here at the moment, let me kind of go through those in
    my mind. Again, if you would give me some time to respond to
    that.
        Senator Durbin. I will give you the time to do it. I don't
    want to trap you here. I want you to have the time.
        We have also asked Miguel Estrada a question--,
        Justice Owen. Can I ask for some clarification?
        Senator Durbin. Sure.
        Justice Owen. When you say the establishment, can you give
    me a more precise question so that I will have something
    clearer?
        Senator Durbin. Well, I think having practiced law myself,
    I can recall that most of my clients, paying clients,
    particularly when I was a defense attorney, were--represented
    businesses, represented people of wealth and stature, and
    occasionally in came a client who had none of those things and
    needed a lawyer who would stand up and fight for them. My
    question is whether you can recall a case where you ended up
    ruling thinking this is not going to be popular with the
    establishment in this community because it really is to protect
    or promote the rights of an individual against the
    establishment, the status quo, the power structure. So I will
    give you a chance to review your cases.
        We asked this question--and you may have already been asked
    this, and if you have, please forgive me because I didn't catch
    it. We asked Mr. Estrada to list three cases before the Supreme
    Court that he would disagree with now today, and he declined to
    answer. I hope that you will take this opportunity to hand us--
    give us a written answer to that question, a question that has
    been asked over and over again by Senator Sessions of
    Democratic nominees. I hope you will be kind enough to give me
    an example of some of those cases; and also, in terms of
    judicial philosophy, to name several Federal judges, preferably
    Supreme Court Justices whom you might be familiar with, but
    perhaps others, living or dead, whom you admire and would like
    to emulate on the bench.
        Now, I am not asking you to find the perfect match for
    yourself. I couldn't do that if you asked me for a Senator that
    I would want to be a clone of, though there are some that are
    close. But if you could just pick out a few whom you admire
    and----
        Justice Owen. Well, I admire every member on the current
    Supreme Court.
        Senator Durbin. That is safe.
        Justice Owen. For various reasons.
        Senator Durbin. But if you could pick out maybe those that
    have made an impression on your because of their temperament,
    their legal skill, or some other aspect of their career that
    you would like to emulate on the bench. And, again, I am not
    putting you on the spot here. My time has expired. And if you
    would be kind enough to submit that in writing, I would
    appreciate it.
        Thank you, Mr. Chairman.
        Senator Cornyn. [Presiding.] Thank you, Senator Durbin.
        Justice Owen, let me take up where at least a moment ago
    Senator Durbin left off, the Quantum Chemical Corporation case,
    and you joined a dissent, it is claimed, that would have
    increased the plaintiff's burden in a discrimination case. Now,
    isn't it true that frequently you will see where the Federal
    Congress passes a statute and then the State legislature will
    pass a statute that looks like they are basically trying to
    provide a State remedy parallel to the Federal statute? Does
    that happen frequently?
        Justice Owen. Yes, Senator, it does. At least in Texas.
        Senator Cornyn. It is true, is it not, that the Texas human
    rights statute at issue in that case is modeled on Title VII
    and, in fact, provides expressly to provide for the execution
    of the policies of Title VII and its subsequent amendments. So
    in construing that statute, you looked at how the Federal
    courts had construed a nearly identical statute with the same
    words as the State statute?
        Justice Owen. Yes, I did.
        Senator Cornyn. And so in this instance, was the principal
    difference between the majority and the dissenting opinions
    which Federal court's decisions you ought to choose from in
    deciding--in light of the express language of the Federal law
    and the history of the 1991 amendment to the Federal Civil
    Rights Act?
        Justice Owen. I think that it's sort of more or less boiled
    down to that. The majority of the court looked at two circuit
    court decisions that I didn't think were as well reasoned and
    not necessarily as on point as two other Federal circuit
    decisions, and there was also language in two U.S. Supreme
    Court decisions that gave me some pause, that did not clearly
    decide the issue but that certainly gave me some pause.
        And also I looked at the history of how the Act came to be
    and the actual words of it, and I was persuaded to go the way
    that I did.
        Senator Cornyn. And the dissenting opinion that you joined
    happened to find a couple of opinions from the Third and Fourth
    Circuit and two Supreme Court opinions which you viewed as
    dispositive or more convincing than the ones cited by the
    majority. Is that right?
        Justice Owen. I thought they were well--better reasoned and
    were more compelling on the law to me.
        Senator Cornyn. I know we are asking you to stretch your
    memory here, and actually, as you talk about these cases, it
    brings back a flood of memories.
        Justice Owen. I'm sure it does.
        Senator Cornyn. But do you happen to recall that one of the
    judges in the case that you cited or that was cited in the
    dissent for the Fourth Circuit was Judge Diana Motz? Does that
    ring a bell?
        Justice Owen. I'm sorry, Senator Cornyn, it doesn't. Even
    when I read U.S. Supreme Court cases, I must admit I don't
    remember who wrote a lot of them.
        Senator Cornyn. Well, that is only fair, really, that you
    would not necessarily remember that. But I think the record
    will reflect that Judge Motz authored that opinion for the
    Fourth Circuit and, in fact, had been a Clinton nominee.
        So do you think it is fair to criticize you as being
    somehow anti-employee or anti-civil rights from the decision
    that you made in that case?
        Justice Owen. I would hope no one would criticize me or any
    other judge who really does dig into the case law and makes a
    very studied, hard effort to do the best they can to apply the
    law. We are certainly going to disagree. People on my court do.
    People on all courts disagree from time to time. But I
    certainly hope that when people disagree that they are not
    labeled as anti one side or the other based on how they came
    down in that particular case.
        Senator Cornyn. I have been corrected. Judge Motz
    apparently joined the opinion but didn't author it. But that
    just shows how poor memory can serve us.
        Let me ask you about the role of discretion. Senator Durbin
    I think made a good point. Judges aren't computers. How would
    you compare the discretion that judges exercise with the
    discretionary, say, exercised by the executive branch, either a
    Governor or a President, or by the legislative branch? Because
    what we are really talking about is a continuum, not an
    absolute, where you administer some formula and spit out a
    result based on a formula.
        Justice Owen. The appellate courts, of course, have very
    little discretion, by and large. When you are talking about
    construing a statute, when you are talking about applying
    statutory principles, constitutional principles, prior
    precedent to the facts, we certainly don't have discretion to
    weigh the evidence that comes before us. By the time it gets to
    my court, Senator Cornyn, as I know you well know, the facts
    are set in stone. They are what they are. We may have found the
    facts to be otherwise had we been the jury or the judge in the
    case as fact finder. But the facts are set in concrete, and our
    job is simply to apply the law to the facts.
        Senator Cornyn. Was there anything about--anything
    political or did it represent an exercise in discretion on your
    part in the Sonnier case involving whether a tomato-chopping
    machine was personal or real property that you have been
    criticized about?
        Justice Owen. I certainly didn't see any kind of political
    issue in the tomato-chopping case. No, Senator, I did not.
        Senator Cornyn. Well, I know that Senator Feingold has
    joined us, and just so you know, Senator Feingold and I are
    actually both on the Budget Committee, and we are having a
    number of critical votes. So that is one reason why a number of
    members are not physically present here but will be coming in
    and out. And I am glad that he could join us after that vote,
    and at this point I would like to go ahead and reserve the rest
    of my time and yield to him for any questions he might have.
        Senator Feingold. Thank you, Mr. Chairman, and thank you
    for mentioning the budget proceeding.
        Welcome, Justice Owen.
        Justice Owen. Good to see you again, Senator.

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Feingold. Mr. Chairman, I again want to express my
    concern about how this committee is dealing with judicial
    nominees. Back at the end of January, we held a hearing on
    three circuit court nominees at once: Jeffrey Sutton, Justice
    Deborah Cook, and John Roberts. Questioning at that all-day
    hearing was largely directed to Mr. Sutton. Many of us
    requested repeatedly, both that day and subsequently, that
    Justice Cook and Mr. Roberts be brought back for another
    hearing so that this committee could fulfill its duty as part
    of the Senate's constitutional role in the nominations process.
        Over and over again, we were refused a second hearing, and
    then the two nominees were pushed over to a vote over the
    objection of every Democrat on the committee, which was a clear
    violation, Mr. Chairman, a clear violation of the committee
    rule, Rule IV, which I had never seen violated in my 8 or 9
    years on this committee.
        We have still not resolved how this committee is going to
    move forward in a collegial way when those in the minority and
    even its rules are not given the respect and fair treatment
    they deserves.
        Yesterday we had another nominations hearing on eight lower
    court and executive branch appointments, including a very
    controversial nominee to the Court of Federal Claims. Today we
    have yet another hearing on a circuit court nominee, the sixth
    already this year. And no one has explained to me why we are
    having a second hearing Justice Owen, who was actually
    thoroughly questioned last year in an all-day hearing chaired
    by Senator Feinstein, but we could not have a second hearing on
    Justice Cook and Mr. Roberts who were hardly questioned at all
    on January 29th. I see a lack of consistency here and a
    willingness to exercise what at least looks like raw partisan
    power in order to pursue this forced march on nominations.
    Rather than trying to heal wounds caused by our disagreements,
    the majority almost seems like it wants to pour a little salt
    in them, and I think that is very unfortunate.
        Justice Owen, I appreciate your willingness to appear here
    again. I do not have many questions for you. I just want to
    followup on one issue that we actually discussed during your
    hearing and then elaborated on in an exchange in writing, and
    that is the issue of what some call clerk perks. I asked you
    about the practice in the Texas Supreme Court of law clerks
    receiving cash bonuses from law firms for which they were going
    to work upon completion of their clerkships. Do you remember
    that discussion?
        Justice Owen. I do.
        Senator Feingold. When you testified in the hearing, you
    suggested that the practice in Texas was no different from what
    occurred in Federal courts and even the Supreme Court, and that
    was why you felt that the attacks in the Texas courts by
    certain interest groups in Texas were unfair.
        In answer to my written questions, you indicated that you
    might have misunderstood my questions at the hearing. You said,
    ``I do not think that when you said that the Supreme Court of
    Texas had been criticized for allowing its law clerks to accept
    large bonuses you meant bonuses that were actually paid to a
    law clerk while he or she was working for the court. And I do
    not know whether any law clerk for the Supreme Court of Texas
    was actually paid a clerkship bonus while clerking for the
    court.''
        Your hearing was on July 24, 2002, and you submitted your
    written answers to my followup questions on August 12, 2002.
        Do you still, sitting here today, not know whether any law
    clerk for the Supreme Court of Texas was actually paid a
    clerkship bonus while clerking for the court?
        Justice Owen. Senator, I still don't know.
        Senator Feingold. Well, I have got to say I find that a
    little surprising in light of all the controversy that
    surrounded this issue and the fact that the Supreme Court of
    Texas changed its policy concerning clerkship bonuses as a
    result of the investigation.
        There was a National Law Journal report on February 26,
    2001, just 2 weeks after the story broke of the Travis County
    attorney's investigation. ``The Texas Supreme Court has
    prohibited its law clerks from accepting bonuses as
    reimbursement for bar exam fees or moving expenses from law
    firms during their clerkships.''
        Mr. Chairman, I would ask consent to put in the record that
    article and a series of newspaper articles that make clear that
    there was a practice of paying bonuses to clerks during their
    clerkships. Mr. Chairman, is that acceptable to the committee
    that those be included in the record?
        Senator Cornyn. Without objection.
        Senator Feingold. Thank you.
        An editorial in the Austin American-Statesman on September
    8, 2001, for example, states, ``Law firms have given the
    bonuses before, during, and after graduates go to work as
    briefing attorneys for the courts.'' So I would ask, Justice
    Owen, if you have anything further you want to add on this
    topic?
        Justice Owen. Yes, Senator Feingold. I would like to
    address that. The controversy over the law clerk bonus program
    that the employers or future employers of law clerks were
    paying to me, in the best of my recollection, the controversy
    was not over the timing of the bonus. It was over the fact that
    there was a bonus ever given at any point in time. And it
    didn't seem to matter to those critics of law clerk bonuses
    whether the law clerk accepted it before, during, or after
    their tenure on the court, whether it was my court or any other
    court.
        I was trying to clarify in my written responses that I do
    not know whether a law clerk, while they were employed by the
    court, actually accepted a law clerk bonus. I don't know. I do
    know certainly that they received law clerk bonuses after they
    left our employ and went to work for their employer. I am
    certain of that. I know that that occurred. But I was not
    certain about the timing, that the timing did not seem to be
    the determinative or really that much of a factor at all in the
    criticism. The criticism was that they were given at all.
        And so what the law firms did and what we, the court, put
    in its rules is what, in my understanding, the county attorney
    said this is certainly acceptable, but you can't accept a lump
    sum payment after you leave. It needs to be spread out over a
    year.
        Senator Feingold. I thank the witness and I thank the
    Chair.
        Senator Cornyn. Thank you, Senator Feingold.
        Justice Owen, let me just ask you a little bit about the
    so-called clerk perks, but first I want to say to Senator
    Feingold, before I know he has to leave for other commitments,
    that he and I have actually had a discussion about the process
    of judicial confirmation, and I think I have expressed to him
    and I think he has expressed here today and at other times his
    frustration at how broken this process has become. And I guess
    a lot has happened over the last years, including and even
    since I have been in the Senate, but mainly this has happened
    before I got here and before 11 Senators who comprise the
    freshman class of Senators for the 108th Congress have gotten
    here. And I have heard a number of Senators who I respect very
    much who have expressed concerns, people like Senator Feingold,
    Senator Specter, and others, about how broken the process is
    and how much the sort of finger-pointing that even we heard
    during some of the statements today about, well, this is OK we
    treat you this way because of the way that other nominees were
    treated; or you shouldn't get a vote in the Senate because
    others didn't even get a vote at all, they didn't even get to
    come before the committee.
        So, you know, there is nothing any of us can do to rewrite
    history, but I would just say here with this opportunity that I
    share some of the frustrations. And what I would hope is that
    at some point--and I don't really know whether it is with your
    nomination or Miguel Estrada's, but hopefully sometime soon we
    can bring together some Senators who are frustrated, maybe for
    different reasons, about the process and try to come up with
    some kind of process where we can get the nominees of the
    President, no matter who happens to hold that office, an
    opportunity for a timely hearing and then an up-or-down vote on
    the Senate floor.
        I know Senator Durbin mentioned Jorge Rangel, for example,
    who I happen to know very well, a Corpus Christi lawyer who I
    would have, if I had been on this panel, said is a good
    nominee. He happened to be nominated by President Clinton. But
    for some reasons that I may not be aware of, he didn't get a
    vote.
        So that is just one example I would point to and say I hope
    we don't get so bogged down in recrimination and finger-
    pointing and tit-for-tat in this body that we forget why it is
    we were sent here, that is, we in the Senate, and that is to
    discharge our duty, to represent the people who sent us here,
    and to vote, and that some of the game-playing and that sort of
    thing, which I think has really sunk to a level that is beneath
    the dignity of this institution, that we get a clean break and
    a fresh start.
        Senator Feingold?
        Senator Feingold. Mr. Chairman, I think what you are saying
    is so important that I would just like to respond. I really
    appreciate that sentiment, and, you know, I had some of the
    same feeling. I have been on the committee for 8 or 9 years,
    but I had the same feeling. An awful lot of this had started
    before I got here. And I just want to say that I would love to
    figure out a way to break this logjam, this type of logjam. I
    want to say specifically that I totally reject the idea of tit-
    for-tat or recrimination. I don't believe in it. And any
    opposition that I have with regard to any nominee is not about
    that. It just could never work that way. And it is a disservice
    and an insult to our judiciary.
        On the other hand, I also know that the answer can't be
    that one party gets to have the judges and the other party
    doesn't.
        So whatever solution there is has to take into account what
    I witnessed on this committee. And what I did witness was a
    systematic attempt to prevent President Clinton's nominees from
    getting a hearing. You know, I like to think I have a
    reputation as a fair guy. A lot of people were very unhappy
    that I voted for John Ashcroft for Attorney General. I thought
    it was the right thing to do. But at the same time, I indicated
    that what was going on with judges at that time was just wrong.
        So, yes, there has to be a change. We have to break this
    logjam. But it somehow has to take into account what happened
    to President Clinton's nominees so that both sides could go
    forward with a whole different attitude in the future. So I am
    eager to find a solution, and, Mr. Chairman, I appreciate the
    sentiments that you indicated.
        Senator Cornyn. Thank you, Senator Feingold. And I
    appreciate your reputation for being fair-minded and even-
    handed, and, you know, that is what happens when you try to do
    your job in an impartial, dutiful sort of way. Sometimes you
    are going to make a vote that somebody says, well, how could
    you do that? It doesn't necessary serve your political
    interests. But, in fairness, it is a judgment you have to make
    and I think that is no different, really, from Senators and
    judges.
        Let me ask you, just so the record is clear and those
    perhaps who may be watching these proceedings on closed-circuit
    television or otherwise will know, Senator Feingold raises the
    issue of clerk perks, and I know, because when I was serving
    with you on the Supreme Court, we could not pay law clerks--
    ``briefing attorneys,'' we called them--very much money. I seem
    to recall that it was somewhere on the order of $30,000 a year
    while their peers, people who decided to go immediately to a
    large law firm and people who they were competitive with in law
    school would be making $100,000 or more. Is my memory roughly
    correct?
        Justice Owen. Yes, Senator. I think the gap may have
    widened over time.
        Senator Cornyn. And there was a concern about how the
    judiciary, whether it is the Supreme Court or the Federal
    courts, can compete in getting good, high-quality candidates to
    serve in those important positions. And I recall the discussion
    of bonuses came up, but if you will just confirm my memory, if
    it is right, and if it is wrong, correct it. But my memory is
    that any bonuses that were ever paid to briefing attorneys or,
    for that matter, any briefing attorney who had accepted a job
    after the time they worked at the Supreme Court was entirely
    walled off and precluded from doing any work on any matters
    that may come before the court involving that law firm. Is that
    correct?
        Justice Owen. Absolutely. Absolutely. They were not--
    they're not allowed to touch the file, to sit in on any
    discussion of it, to work on any memos. They are completely
    isolated from all matters that that law firm is involved in, or
    law firms.
        Senator Cornyn. In a moment, I want to--we are going to
    recess this hearing subject to the call of the Chair. The main
    reason for this hearing is, as you know, Justice Owen, to give
    any Senator who has questions an opportunity to ask you those
    questions, whether in person or in writing. And we appreciate
    your coming back for that purpose.
        Since I have been in the Senate, I have heard it alleged
    that for some candidates Senators have not been able to get all
    the questions answered that they have, and we don't want that
    criticism to be applied in your case. We want to make sure that
    any Senator who has a question can ask questions, and that is
    why I believe Chairman Hatch has asked you to come back, not to
    create some sort of new precedent in your case or any other
    sort of nefarious reason, but strictly to give Senators an
    opportunity to ask every question they may have.
        Senator Schumer has asked to submit his statement for the
    record, and without objection, that will be accepted, his
    written statement.
        And so, with that, we are going to stand in recess until
    2:30 p.m., subject to the call of the Chair.
        We are not going to do it for a time certain, but subject
    to the call of the Chair, so I will make that correction for
    the record.
        Justice Owen. Thank you, Senator.
        Senator Cornyn. Thank you very much.
        Justice Owen. Thank you.
        [Whereupon, at 1:02 p.m., the committee recessed, subject
    to the call of the Chair.]
        [The committee reconvened at 2:40 p.m., Hon. Orrin G. Hatch
    presiding.]
        Chairman Hatch. We are happy to begin these hearings again
    this afternoon, and I welcome you back to the committee,
    Justice Owen.
        Justice Owen. Thank you.
        Chairman Hatch. We have had an interesting morning, and I
    apologize that I have been running back and forth between the
    floor and here, but we had Mr. Bybee up on the floor and I
    wanted to make it clear to invite every Senator who has any
    questions of you to come over. So I did that. I also a wrote a
    letter to every Senator in the U.S. Senate explaining that you
    were not treated very fairly in the last hearing. You were
    treated fairly by the chairman, but you were not treated very
    fairly by some--let me rephrase that. You were not treated very
    fairly in the markup, because many statements that were made
    were absolutely not right and I don't know how in the world my
    colleagues got them so wrong.
        So one of the reasons why I am happy to have this
    opportunity to hear you again is to clarify some of those areas
    that really were very badly misspoken during our markup. I do
    believe that if our colleagues really look at the record
    carefully and clearly, they will see that you have not only
    answered the questions, but you have answered them well, and I
    think they will see why you got the unanimous ``well
    qualified'' rating, the highest rating the American Bar
    Association can give.
        So this is a very, very important hearing and it is
    important to you. You deserve to be treated fairly. You deserve
    to have your excellent record explained. I am not the only
    person who feels--there were many who watched that hearing last
    time who felt you were one of the most qualified nominees we
    have ever had before the committee, and I personally believe
    that.
        I have seen a lot of people and I have sat in on a lot of
    these hearings and I have conducted a lot of them and I have
    asked questions at many, many hearings, and I have to say you
    were at the top of the list of people who have appeared before
    the committee who were honorable and decent, great lawyers, and
    in your case a great justice, a great judge.
        Let me just go over a few things and then see if any of our
    colleagues have any more questions. I would be happy to keep
    this hearing going as long as it takes to have them ask their
    questions. But while we wait for some of them to show up and
    give them some time, because there is a vote on the floor, let
    me ask you this question.
        Justice Owen, you have been criticized for your legal
    interpretation of the parental notification statute's use of
    the term, quote, ``mature and sufficiently well-informed,''
    unquote. I just want to clarify why you went about interpreting
    the statute the way you did so everybody will realize that you
    did it as it should have been done.
        There are a number of rules of construction that courts
    apply when interpreting a statute, and isn't it true that one
    of those rules is that a legislature is presumed to be aware of
    the U.S. Supreme Court precedent in an area in which it has
    passed a statute? Is that right?
        Justice Owen. Yes, Mr. Chairman, that is one of the rules
    of construction.
        Chairman Hatch. That is a basic rule of construction that
    the courts will follow?
        Justice Owen. Yes, Mr. Chairman.
        Chairman Hatch. That is your basic rule of construction, as
    well?
        Justice Owen. It is.
        Chairman Hatch. OK. Now, when you looked at the Texas
    parental notification statute, did you follow that basic rule
    of construction, in that your presumption would be that the
    Texas Legislature was, in fact, aware of Supreme Court
    precedent when it crafted its judicial bypass process?
        Justice Owen. Certainly, I think it was obvious to every
    member on my court that this statute was not written in a
    vacuum and that it was written against the context of Supreme
    Court decisions over a period of 20, now 30 years.
        Chairman Hatch. Well, when you looked at the Texas parental
    notification statute, you followed that basic rule of
    construction, I know, but now all of your colleagues agreed
    with you on that point, as well.
        Justice Owen. They did.
        Chairman Hatch. On page 254 of the text of the Supreme
    Court majority opinion in the first Jane Doe case, your court's
    majority is discussing a line of U.S. Supreme Court cases on
    parental bypass, starting with the Bellotti case. Your court
    majority concludes, and I quote, ``Our legislature was
    obviously aware of this jurisprudence when it drafted the
    statute before us,'' unquote.
        So you weren't alone in your conclusion that the Texas
    Legislature drafted the parental notification statute with the
    Supreme Court cases in this area in mind, were you?
        Justice Owen. No, I was not alone.
        Chairman Hatch. You went and looked at all of the Supreme
    Court cases in this area?
        Justice Owen. I did. I read them and re-read them.
        Chairman Hatch. And you pulled from them the things they
    said that a court could take into account in determining
    whether a young girl is mature and sufficiently well-informed.
    Is that an accurate appraisal?
        Justice Owen. That is, and some of the cases not only
    involved minors, but involved more broadly the whole issue of
    choice and what States may and may not encourage someone who is
    making the decision. So some of it was drawn from cases that
    were not exclusively related to minors.
        Chairman Hatch. I would like to go back over this quickly
    and make sure I understand all this correctly, and I want the
    committee to understand it correctly because there was some, I
    think, mis-construction of your earlier testimony when you
    appeared before the committee before and I want to make sure
    that there is no mis-construction the second time around.
        Because it is a rule of statutory construction that your
    court should presume that the legislature was aware of U.S.
    Supreme Court precedent in this area, you did look to what the
    Supreme Court had said. And instead of picking and choosing
    among the things the Supreme Court had said were permissible
    for a State to consider in whether a minor was, quote, ``mature
    and sufficiently well-informed,'' unquote, you would have
    defined those words in light of everything the Supreme Court
    had said up to that point. Is that an accurate appraisal?
        Justice Owen. That is correct, Senator. I didn't see any
    basis or any indication from the legislature that we were
    supposed to pick some aspects of that and not others.
        Chairman Hatch. The Texas Legislature did not define,
    quote, ``mature and sufficiently well-informed,'' unquote,
    anywhere in the statute, did they ?
        Justice Owen. No, Mr. Chairman, they did not.
        Chairman Hatch. And again they are presumed to be aware of
    Supreme Court precedent in that area. Now, it seems to me that
    if they did not define those terms, they would expect the words
    to be defined by Supreme Court precedent. Would that be a fair
    appraisal?
        Justice Owen. I think they certainly chose those words in
    the context of all of those decisions and what they have said.
        Chairman Hatch. In other words, if you didn't include
    everything the Supreme Court had said, you would have been
    substituting your own judgment for that of the legislature. Is
    that correct?
        Justice Owen. That is what I thought, yes, Mr. Chairman.
        Chairman Hatch. In fact, this committee received a letter
    from one of the sponsors of the Texas Parental Notification
    Act, Senator Florence Shapiro, and she had this to say, quote,
    ``I appreciated that Justice Owen's opinions throughout this
    series of cases looked carefully at the new statute and looked
    carefully at the governing U.S. Supreme Court precedent upon
    which the language was based to determine what the legislature
    intended to do,'' unquote.
        She added, quote, ``Along with many of my colleagues,
    Democrats and Republicans alike, I filed a bipartisan amicus
    curiae brief with the Texas Supreme Court explaining that the
    language of the Act was crafted in order to promote, except in
    very limited circumstances, parental involvement,'' unquote.
        Now, it sounds to me that you did what a good judge would
    do. You followed the rules of statutory construction. You went
    back and looked at what the Supreme Court had pronounced on
    this matter and the precedents that the Supreme Court had set,
    and you did what the legislature intended, as Senator Shapiro
    attested to. Am I right?
        Justice Owen. I tried my best.
        Chairman Hatch. The fact is you did that, didn't you?
        Justice Owen. Yes, sir, I believe I did.
        Chairman Hatch. Well, that is important. I hope that
    clarifies something that I think was distorted during our
    markup. And I am going to, with your permission, continue to
    clarify a few things because I think we want to make sure that
    the second time around you are treated a little more fairly
    than you were the first time around.
        I think if people will look at this record and look at what
    you have said, I don't see how anybody could possibly vote
    against you, to be honest with you. Now, we do misunderstand
    some things around here. There is no question about it, and a
    lot of very sincere people do some very sincerely dumb things
    around this place. That doesn't necessarily mean that my
    colleagues are doing that, but I felt that they did in this
    markup that we had.
        Now, let me go to the question of FM Properties Operating
    Company v. City of Austin because this came up as well. I would
    like to clarify some points about the FM Properties case.
        This was case was not a case about big business interests
    or polluters of the environment. What this case came down to
    was State versus local regulation. Am I correct in that?
        Justice Owen. That is correct, Senator, Mr. Chairman. We
    had a statute in front of the court and the constitutionality
    of a statutory scheme that had been passed by the Texas
    Legislature was being challenged. So it was a question of
    whether the legislature's will, as spoken through that statute,
    was constitutional or not.
        Chairman Hatch. As I understand it, both the city of Austin
    and the State of Texas wanted its law to control in an area
    known as an, quote, ``extraterritorial jurisdiction,'' unquote.
    So it was an area outside the city, right?
        Justice Owen. That is correct. It was outside the city's
    set limits. But under Texas law, depending on the size of a
    city, they can encircle an area called their extraterritorial
    jurisdiction and enforce some ordinances before they annex it.
        Chairman Hatch. OK. Now, after some back-and-forth, the
    State legislature passed a provision that was included in the
    Texas Water Code that basically took away the city of Austin's
    authority to regulate within this extraterritorial
    jurisdiction. Is that a correct statement?
        Justice Owen. That is correct. The statute essentially
    said--and again I am a little bit cold on the exact provisions,
    but I believe it said that if the city changes the rules of the
    game, basically, within this ETJ more than three times within a
    period of time, then the State scheme kicks in. And it was a
    regulatory scheme of the State; it wasn't simply abrogating the
    city of Austin's ordinances. It imposed its own set of
    regulations.
        Chairman Hatch. I think anybody listening can see that
    these aren't easy cases.
        Justice Owen. It was not an easy case.
        Chairman Hatch. Well, now, to be clear, although the city
    of Austin couldn't regulate within the extraterritorial
    jurisdiction, that land remained subject to all of the State
    environmental regulations, isn't that correct?
        Justice Owen. That is correct, and there was another layer
    of regulation added under this statute. These water quality
    plans that would be developed in these areas were also subject
    to review by the Texas Natural Resources Commission. So there
    was another layer of regulation on top of that that would be
    applicable to every other land outside a city limits across
    Texas.
        Chairman Hatch. And that would include any State laws on
    water quality standards. Is that accurate, as well?
        Justice Owen. That is accurate, Mr. Chairman. It had to
    meet all the State----
        Chairman Hatch. There was no action by the court to
    interfere with State environmental regulations?
        Justice Owen. No, I didn't view it that way.
        Chairman Hatch. Or even water quality regulations?
        Justice Owen. Again, the question in front of us was did
    the legislature have the constitutional authority to pass this
    statute, and I believed that they did.
        Chairman Hatch. OK. Now, it is also my understanding that
    the then-state attorney general, a Democrat, intervened in that
    case on the side of the State of Texas.
        Justice Owen. That is correct.
        Chairman Hatch. And took the position, as I understand it,
    that the State of Texas had entered into this area and its law
    predominated over the local ordinances. Is that your
    understanding?
        Justice Owen. That is correct. The State attorney general
    argued in a lengthy brief filed with us after they intervened
    saying that this statute was constitutional and should be
    upheld.
        Chairman Hatch. Now, it would seem to me that the city of
    Austin had authority to regulate within its own
    extraterritorial jurisdiction only because the legislature had
    granted it that authority in the first place. I think that you
    even mentioned this in your opinion, but what the legislature
    grants it should be able to take away from its own
    subdivisions. Is that correct?
        Justice Owen. That was my view that certainly if the
    legislature could allow, permit a city to expand an ETJ, it
    could certainly contract that. To me, the State trumps the
    city.
        Chairman Hatch. Then it would appear to me that this
    opinion was a completely reasonable opinion and a reasonable
    position to be taken on these facts.
        Justice Owen. I believed so at the time. I still do,
    Senator.
        Chairman Hatch. You wouldn't have done----
        Justice Owen. No, I wouldn't have written it had I not.
        Chairman Hatch. Well, that is right. I think if people
    understand the facts, it is pretty hard to find fault with the
    decision that was made. It was what a good judge would do.
        Now, I don't mean to wear you out with these things, but I
    think it is important because some of our colleagues seem to
    have misunderstood some of these things or used them as a
    justification for voting against you when, in fact, they should
    be a justification for voting for you. Anybody who is
    reasonable and fair would have to say, my gosh, she was right,
    she did what she should have done, she was a great justice, she
    was somebody who cared about the law, she is somebody who
    followed precedent, she is somebody who lived within the
    confines of the legislation that was enacted by the duly
    elected officials, she didn't try to make law, she basically
    interpreted the law, and she did a pretty good job. I think any
    decent person would conclude that. So I just want to make sure
    our colleagues don't have that misconstrued anymore.
        Justice Owen. Thank you.
        Chairman Hatch. Now, let me move ahead to the City of
    Garland v. Dallas Morning News. You have been criticized by
    some on this committee for disagreeing with your court on the
    correct interpretation of the Texas Public Information Act.
        Now, am I correct that this statute is modeled on the
    Federal statute known as the Freedom of Information Act, or
    what we call FOIA?
        Justice Owen. Certainly, parts of it are, yes, Senator,
    that is correct.
        Chairman Hatch. Now, I just want to try to simplify what
    was going on in that case so that we can clarify and make sure
    that nobody on this committee will have a right to distort your
    opinions again.
        As I recall, it was about newspaper trying to get a draft
    memo written by someone working for the city about firing
    someone else who worked for the city and the memo was prepared
    so that the city council could discuss the situation. Did I
    state that pretty well?
        Justice Owen. That is correct.
        Chairman Hatch. OK. Now, under the Texas statute that you
    were asked to interpret, just like the Federal statute, certain
    documents are exempt, meaning that the city does not have to
    produce them. Am I correct on that?
        Justice Owen. Yes, Senator. There was a provision in the
    Texas Act that basically codified what is known as the
    deliberative process privilege and our court recognized--we all
    agreed on that. Everybody on my court agreed that this was
    modeled after the Federal counterpart of the deliberative
    process privilege.
        Chairman Hatch. As I read the opinion, one of the
    exemptions that your whole court agreed upon was that the
    documents covered under the deliberative process privilege were
    exempt.
        Justice Owen. That is correct.
        Chairman Hatch. Everybody agreed on that, didn't they?
        Justice Owen. We all agreed that we were trying to figure
    out where the bounds of this deliberative process privilege
    applied to this document.
        Chairman Hatch. If they fell within that deliberative
    process privilege, then they were exempt?
        Justice Owen. That is correct.
        Chairman Hatch. OK. The question you faced was whether
    documents used in making personnel decisions, like this memo we
    are talking about, fell under the deliberative process
    privilege. Is that accurate?
        Justice Owen. That is correct.
        Chairman Hatch. So the only dispute involved here was
    whether the scope of that privilege extended to personnel
    decision documents. Am I right?
        Justice Owen. That is correct. Clearly, the deliberative
    process privilege would not shield the ultimate decisions and
    the reasons that were publicly given, but it would shield the
    deliberations of the governmental body over what personnel
    action to take.
        Chairman Hatch. As I understand it, this dispute was a
    matter of first impression, right?
        Justice Owen. Certainly, for our court.
        Chairman Hatch. Well, it was never decided before by your
    court. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. OK, so there was no precedent on point that
    the court was bound to follow. Is that right?
        Justice Owen. That is right.
        Chairman Hatch. Certainly, they weren't bound to follow it
    under a principle of stare decisis. That is correct?
        Justice Owen. No. That is correct.
        Chairman Hatch. Now, we discussed that the Texas Public
    Information Act was modeled on FOIA, the Freedom of Information
    Act.
        Justice Owen. Certainly, this provision.
        Chairman Hatch. The Federal Act.
        Justice Owen. Yes, certainly, this part and others, but
    this part, yes.
        Chairman Hatch. Am I correct in assuming that because the
    TPIA, or the Texas Act, was modeled on FOIA that that is why
    you looked to Federal case law for guidance in considering
    whether the privilege extended to personnel decisions? Is that
    right?
        Justice Owen. That is right, Senator, and again I don't
    think we materially disagreed over that on the court. The
    majority of the court looked, as well, at Federal decisions to
    try to find out what are the parameters of the deliberative
    process privilege.
        Chairman Hatch. OK. Is it fair to say that under Federal
    law, documents used to make personnel decisions are included
    within the deliberative process privilege?
        Justice Owen. Certainly, the cases that I cited seemed to
    me to say that.
        Chairman Hatch. You are pretty sure of that?
        Justice Owen. I was or I wouldn't have said so, yes.
        Chairman Hatch. That is right. In other words, you do what
    you think is right, right?
        Justice Owen. Yes, Senator. I mean, I had no idea what the
    deliberative process privilege was going into this. I had a
    completely open mind. It was my job to sit down and read the
    authorities that the legislature was presumed to have known
    about it when they passed this statute.
        So I was looking at how the Federal courts--again, there
    was a lot of indication that we should be looking at Federal
    precedent to see what the U.S. Supreme Court and the other
    Federal courts had said about this. And to the best of my
    ability, I tried to apply it to the facts before us.
        Chairman Hatch. Well, in fact, the liberal luminary Judge
    Patricia Wald, who recently retired from the Circuit Court of
    Appeals for the District of Columbia, held that the
    deliberative process privilege extends to similar personnel
    documents. She joined the court's unanimous opinion so holding
    in the American Federal of Government Employees Local 2782 v.
    U.S. Department of Commerce.
        So if I understand correctly, you were urging your court to
    follow Federal case law.
        Justice Owen. That is correct. There were several cases,
    including the one that you cited, on point.
        Chairman Hatch. Such as the opinion joined by Judge Wald?
        Justice Owen. That is correct.
        Chairman Hatch. And to find that the deliberative process
    privilege incorporates personnel documents. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. It seems to me that that is within the
    judicial mainstream, within the----
        Justice Owen. I certainly thought it was and think it is,
    and I don't think my colleagues thought otherwise.
        Chairman Hatch. I think you can go further than that. You
    know it is.
        Justice Owen. I know it is, it is, and we just had a
    disagreement again on the court as to how the statute should be
    construed. But no one thought then, and I certainly don't think
    now that I was out of the mainstream for taking the position
    that I did in that case and relying on Federal authorities.
        Chairman Hatch. I thought Senator Cornyn's opening remarks
    introducing you really make it very clear how judges operate.
    You do differ from time to time. You write different opinions
    from time to time and you criticize each other from time to
    time, mainly because that is the way judges talk. That is what
    they do.
        One final point on that case, Justice Owen. Your dissent
    noted that the Texas Open Meetings Act specifically allows
    employment matters to be discussed in closed meetings. You
    argued that a document that might otherwise be made public
    could not be brought within the deliberative process exemption
    by discussing it at a closed session, right?
        Justice Owen. That is correct. You can't shield a document
    simply by taking it into a closed meeting.
        Chairman Hatch. OK. Does it seem utterly inconsistent to
    you to read the Open Meetings Act to exempt personnel
    discussions from coverage, but to then turn around and read the
    TPIA not to cover the documents used at those very same
    meetings to discuss personnel decisions?
        Justice Owen. It seemed to me that the legislature did not
    intend to shield the give-and-take, the oral give-and-take. If
    someone had said exactly what was in that memo at an open
    meeting, that would--I am sorry--at a closed meeting, that
    would be shielded under the Information Act. But had they
    written it down on a piece of paper, then it would have to be
    provided.
        And, again, the rationale behind this is the protection of
    the employee. That is what the deliberative process privilege--
    one of the things it wants to protect is that when an
    employee's future is being discussed and when perhaps
    allegations against them are being discussed that that is not
    publicly disseminated unless and until a decision is made. And
    even then the give and the take is not disseminated, only the
    personnel decision and the stated reasons for it. But that is
    the logic behind that.
        Chairman Hatch. Now, some of my colleagues have accused you
    of ruling against consumers. I have heard some of them really
    complain that you are not consumer-oriented, but I believe you
    have joined or authored a number of opinions which have
    advanced the interests of consumers.
        To take only a few examples, you have supported the right
    to medical malpractice victims to recover from the physicians
    who injured them. You have upheld the right of policy-holders
    to recover from insurance companies that refuse to pay
    meritorious claims.
        I think, by your judicial responsibility to treat all
    litigants equally and to resolve each of those individual cases
    according to its individual merits, you have done that as well.
        Justice Owen. That is correct.
        Chairman Hatch. Is that right?
        Justice Owen. That is right.
        Chairman Hatch. Therefore, in any given case, is it true
    that you do not determine from the outset which party should
    prevail, whether it be the consumer or some other interest?
        Justice Owen. No, Senator. That would be the complete
    antithesis of judging.
        Chairman Hatch. Well, I am going to list some cases that
    undermine any assertion that you invariably rule against a
    particular type of party and I am going to give you a chance to
    comment on these, because I found some of those criticisms to
    be particularly wrong. In fact, all of these have been wrong,
    the ones who have criticized you.
        Let's take Crown Life Insurance Company v. Casteel. William
    Casteel, an independent agent, sold insurance policies of Crown
    Life Insurance Company. Ruling on a novel issue, you joined the
    opinion that an insurance agent has standing to sue his
    insurance company for its deceptive or unfair acts or practices
    in the business of insurance. Am I right on that?
        Justice Owen. That is correct.
        Chairman Hatch. In Chilkewitz v. Hyson, you held that a
    physician accused of medical malpractice was subject to a
    lawsuit even though the plaintiff named him individually and
    not the medical association with which he was affiliated. You
    thus rejected the view that formalism should stand in the way
    of deserving plaintiffs' ability to recover for injuries that
    they have suffered. Am I right about that?
        Justice Owen. That is right. The doctor--he had formed a
    professional corporation, of which he was the only shareholder,
    and he had his name listed with his name and ``P.C.'' after it
    and the patient didn't know when they sued him whether they
    were suing an individual or corporate capacity. And after
    limitations had run, he made the argument, well, you sued the
    wrong entity. And I held--wrote for the court that, no, that is
    not right; you cannot lie behind the log like that and----
        Chairman Hatch. Nor can you hide behind----
        Justice Owen. A technicality like that. And we had a
    specific rule that said you may be sued in your assumed name,
    and he had held himself out as that assumed name. And we said,
    of course, limitations has not run; the lawsuit can proceed.
        Chairman Hatch. In Hernandez v. Tokai Corporation, you held
    that a manufacturer of cigarette lighters has a duty to make
    certain that its products are child-resistant even though the
    lighters were only meant to be used by adults. Is that right?
        Justice Owen. Yes. We said that--the manufacturer was
    arguing that since they only made these lighters for a specific
    category of customer--for example, people who said that they
    had difficulty using lighters with the child-resistant
    buttons--they said we should not be liable as a matter of law;
    we have no duty. And our court said, no, that the traditional
    risk balancing, risk/utility balancing must take place. You are
    not absolutely shielded and do have a duty.
        Chairman Hatch. In Mid-Century Insurance Company v.
    Lindsey, you held that an insurance company was obligated to
    pay $50,000 in uninsured motorist coverage. You concluded that
    the policy-holder's policy which applied to, quote,
    ``accidents,'' unquote, extended to inadvertent acts committed
    by a child. Is that right?
        Justice Owen. That is correct. The child, I believe the
    facts were, was in a pickup and it had a run rack on it. And I
    believe the child was climbing out of the back window into the
    pickup bed, or vice versa, and the gun went off. And we held
    that that was an accident within the meaning of the standard
    policy, auto policy.
        Chairman Hatch. Well, let me just mention one more. In
    Lofton v. Allstate Insurance Company, a consumer in that case
    prevailed against his insurance company in a jury trial for
    failing to provide insurance benefits that had been promised.
    Siding with the insured--in other words, the person who was
    insured--you joined the opinion that allowed the consumer's
    appeal to the trial court's reduction of the jury award against
    the insurer to go forward.
        Justice Owen. I missed the name of the case. I am sorry,
    Senator.
        Chairman Hatch. It was Lofton v. Allstate Insurance.
        Justice Owen. That is correct, that is correct.
        Chairman Hatch. Well, it sounds to me like you have had
    plenty of cases--these were more than a few, but you had plenty
    of cases where you found on behalf of the consumer.
        Well, let me ask you this. Do you have a feeling or a
    compulsion to find for corporations just because they are
    corporations?
        Justice Owen. Certainly not, certainly not.
        Chairman Hatch. Do you have a propensity to find for
    consumers just because they are consumers?
        Justice Owen. No, Senator. That would not be my job to find
    for either side just because of who they are or what position
    they hold.
        Chairman Hatch. Are corporations always wrong, as some of
    my colleagues have seemed to imply with some of their
    questions?
        Justice Owen. No, Senator, they are not.
        Chairman Hatch. Sometimes, they are actually right, aren't
    they?
        Justice Owen. Sometimes they are wrong, sometimes they are
    right.
        Chairman Hatch. And what should be done?
        Justice Owen. Again, as I was trying to explain to some of
    your colleagues earlier this morning, I can't keep score and
    say, well, it has got to all even up at some point and I must
    at least rule half the time for this side or that side.
        I mean, we have to take each case as it comes, on its
    merits, and we have to apply the law impartially, regardless of
    which side comes out the winner or the loser. The law has to be
    applied indiscriminately.
        Chairman Hatch. And sometimes the worker is right?
        Justice Owen. Sometimes, the worker is right.
        Chairman Hatch. Sometimes, the employer is right?
        Justice Owen. Sometimes, the employer is right.
        Chairman Hatch. Sometimes, the consumer is right, right?
        Justice Owen. That is correct.
        Chairman Hatch. And sometimes the corporation is right?
        Justice Owen. That is correct.
        Chairman Hatch. What you seem to be saying to me is that
    you do what you think is right under the law.
        Justice Owen. Yes, Senator. I have taken a solemn oath to
    do that and I have done--to the very best of my ability,
    applied the law in every case, as I have perceived and as I
    have researched it and studied it and applied it.
        Chairman Hatch. I thought Senator Cornyn's remarks today,
    since he served with you for 3 years, were pretty persuasive in
    that regard that he thinks you are a great justice.
        Justice Owen. Well, he was a great judge on our court. I
    enjoyed the opportunity and the honor of serving with him.
        Chairman Hatch. We are honored to have him on the committee
    now.
        Now, let me just go into the area of employment cases just
    for a minute. I don't mean to keep you. I am just trying to
    make sure that our colleagues have every opportunity to come
    here and ask any questions they want. We have been in hearing
    now since basically ten o'clock this morning and I would like
    to make sure that anybody who has any questions can come.
        I invited the whole Senate, if they want to----
        Justice Owen. OK.
        Chairman Hatch [continuing]. Because we have had some
    people claim that we are rushing these judges through. Well, I
    hardly think so. You have been sitting there for how long now?
        Justice Owen. I think we got started about ten-thirty, I
    think.
        Chairman Hatch. Yes, but I mean how long have you been
    sitting as a nominee?
        Justice Owen. Oh. I was nominated in May of 2001.
        Chairman Hatch. So almost 2 years. Well, I think our
    colleagues have had plenty of time to look at your record, but
    what I want to do here in this few minutes that we have
    together is not wear you out with all this, but I just think it
    is important for us to show how there were some misconceptions
    that I believe caused some of my colleagues perhaps sincerely
    to vote against you. I just want to make sure that there are no
    misconceptions the second time around.
        Let me just take a few minutes in the area of employment
    cases. In those cases, there has been an effort to cast you as
    pro-employer, but you have ruled favorably for employees by
    rejecting employers' attempts to evade responsibilities for
    injuries suffered by their employees.
        It is clear that you do not set out in a given case with
    the intention of issuing a ruling that will benefit one side or
    the other without listening to the facts. You are not going to
    do that.
        Justice Owen. That is correct.
        Chairman Hatch. You resolve legal disputes according to the
    governing law. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. And you resolve them in a way that does
    justice, at least in your eyes, right?
        Justice Owen. That is my obligation.
        Chairman Hatch. OK. You defer to the stated intentions of
    the people's elected representatives in the legislature. You
    have made that clear time and time again, and you faithfully
    enforce the case law of the U.S. Supreme Court, regardless of
    what results those authorities will yield. I think that is all
    true, isn't it?
        Justice Owen. It is.
        Chairman Hatch. In Lee Lewis Construction, Inc. v.
    Harrison, you joined the concurring opinion that upheld a $12.9
    million jury verdict, $5 million of which was for punitive
    damages, involving the death of a worker on a constructionsite
    where the general contractor had knowledge of, but did not
    stop, the use of an extremely dangerous device. Am I right on
    that?
        Justice Owen. That is correct.
        Chairman Hatch. In Pustejovksy--I don't know how you
    pronounce it--v. Rapid-American Corporation, you allowed an
    employee who had developed cancer due to his exposure to
    asbestos to sue an asbestos supplier, despite the fact that in
    the past he had agreed to settle his claims against another
    asbestos supplier. You refused to allow one settlement to
    interfere with the injured worker's ability to recover from
    another party partially responsible for his injuries. Is that
    right?
        Justice Owen. That is right, and I also believe in that
    case that he had developed one kind of asbestos disease early
    on and then developed a second kind of asbestos-related disease
    later in life. And so he didn't know at the time that he
    settled with the original defendants that he down the line
    would develop this other asbestos-related disease that was
    different. And we held that--I as part of the court held that
    that did not bar his subsequent suit for the later-developing
    disease.
        Chairman Hatch. In Kroger Company v. Keng, you held that
    employers who declined to join the State's worker's
    compensation insurance scheme may not raise the defense of,
    quote, ``comparative negligence,'' unquote. If employers could
    raise that defense, employees who were injured on the job would
    have seen their compensation shrink or even disappear. Is that
    right?
        Justice Owen. That is correct.
        Chairman Hatch. So you found for the employees?
        Justice Owen. I did.
        Chairman Hatch. Because they deserved it, right?
        Justice Owen. We looked at the statute and I thought it was
    pretty clear that they were not entitled----
        Chairman Hatch. Has it been your experience that most of
    the employee cases that are brought, the ones that are
    worthwhile, good cases, are generally settled before they ever
    go to trial?
        Justice Owen. I think that is a fair assessment that it is
    only the cases where there is really a legitimate argument, a
    pretty solid argument, that get to our court.
        Chairman Hatch. So most of the cases in employment law that
    get there are cases where maybe both sides have arguments and
    they have to be resolved, right?
        Justice Owen. That is correct.
        Chairman Hatch. And sometimes the business is right,
    sometimes the employee is right.
        Justice Owen. That is correct.
        Chairman Hatch. In that case, you ruled for the employee?
        Justice Owen. Yes, Senator.
        Chairman Hatch. In other cases where you believe they are
    right and the law is on their side, you have ruled for the
    business?
        Justice Owen. That is correct.
        Chairman Hatch. Isn't that what a judge should do?
        Justice Owen. That is my understanding of what----
        Chairman Hatch. Don't businesses have a right to be treated
    fairly in the courts just like employees do?
        Justice Owen. Absolutely.
        Chairman Hatch. Well, don't employees have a right to be
    treated fairly in the courts just like businesses do?
        Justice Owen. Absolutely.
        Chairman Hatch. OK. Well, I think anybody in their right
    mind would agree with that, and yet we have had wild-eyed
    statements made in the past on this committee that you rule for
    corporations and not for employees.
        Well, let me just cite another one, NME Hospitals v.
    Rennells. You joined the opinion that ensured court access for
    a sex discrimination claim of a female medical provider. The
    plaintiff sued the client of her employer alleging an unlawful
    employment practice under the Texas Commission on Human Rights
    Act. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. OK.
        Justice Owen. The issue there was standing. She was not
    directly an employee and we held in this case that that didn't
    matter; she still was entitled to sue.
        Chairman Hatch. So you found for the little person, to use
    some of my colleagues' opinions. But if the common man was
    wrong, would you find for him just because he is not the owner
    of a business?
        Justice Owen. No, I would not.
        Chairman Hatch. Well, let me ask this. Because you at one
    time were a corporate lawyer, as well, and a very highly
    respected one with the highest ethical and legal ability
    ratings, would you find for a corporation just because you used
    to represent some corporations?
        Justice Owen. No, no, Senator, I would not.
        Chairman Hatch. Not even a former client?
        Justice Owen. No, no.
        Chairman Hatch. In Clark v. Texas Home Health, an employer
    sought to avoid liability for retaliating against nurses who
    sought to make a report of a fatal medical errors with the
    Board of Examiners by demoting them. The trial court had
    granted summary judgment in favor of the employer.
        You joined the court's unanimous opinion that the plaintiff
    nurses had a cause of action under Texas law for the
    retaliatory employment decision taken in response to their
    expressed intent to report the unprofessional conduct of
    another licensed health care practitioner. Is that right?
        Justice Owen. That is correct. I believe in that case the
    employer knew that the nurses were about to take the action and
    demoted them before they could whistle-blow, essentially. And
    we said, no, that is not what the Act contemplates, that you
    can't cut them off like that.
        Chairman Hatch. So again you found for the employees?
        Justice Owen. Yes.
        Chairman Hatch. In Franks v. Sematch, Inc., you joined a
    per curiam opinion of the Texas Supreme Court ruling that an
    employee injured by a manufacturer's gate is not barred by the
    statute of limitations from intervening in a subrogation action
    against the manufacturer and employer when the underlying claim
    was timely filed. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. Again, you ruled for the employee.
        Justice Owen. That is correct.
        Chairman Hatch. In Sanchez v. Hastings, Ms. Sanchez filed a
    legal malpractice suit against her law firm and three of its
    lawyers, alleging failure to sue the employer of her husband
    who was killed in an on-the-job accident. The trial court and
    the court of appeals--that is the intermediate court before the
    supreme court--held that the statute of limitations had run on
    Ms. Sanchez' legal malpractice action.
        You joined in the opinion that concluded that the pendency
    of the underlying wrongful death litigation tolled the statute
    of limitations until the litigation concluded. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. Again, for the employee.
        Justice Owen. That is correct.
        Chairman Hatch. It is hard for me to understand how staff
    can prepare Senators on this committee to believe that you are
    somehow stilted in favor of just the employer, when it is very
    clear that you have not been and that you have done what is
    right within the law.
        In Farmer v. Ben E. Keith Company--I don't want to do too
    much of this because there are a lot of cases you have been
    through in your lifetime on the court, but I do want to cover
    some of these just to make it clear that these accusations are
    ridiculous.]
        In Farmer v. Ben E. Keith Company, Ms. Farmer sued her
    employer for breach of contract related to her injuries that
    she contended were received on the job. She was injured on the
    job, according to her. The trial court granted summary judgment
    to the employer and the court appeals dismissed her appeal as
    untimely.
        You joined a per curiam opinion that set forth the
    appropriate appellate timetable and held that Ms. Farmer's
    appeal was timely, right?
        Justice Owen. Well, let me say this about per curiam
    opinions. They are not signed opinions of the court.
        Chairman Hatch. right.
        Justice Owen. It takes at least six judges to put them out,
    but my policy has been since I have been at the court that if I
    disagreed with a per curiam opinion, I would dissent, so that
    we would all have to line up and I would have a signed dissent.
    So I can't think of an exception; that if it is a per curiam
    opinion, either I was for it or I would have dissented.
        Chairman Hatch. So you actually joined in it, then?
        Justice Owen. As a practical--I can't say that--I cannot
    disclose and say that particular opinion, but that has been my
    personal practice.
        Chairman Hatch. Now, I will ask about legal protections for
    children. Through your rulings in several cases, you have
    enhanced the legal protections available to children who find
    themselves caught up in the legal system. Young children are
    some of the most vulnerable members of our society, and for
    them litigation must be even more confusing and disorienting
    than it is for seasoned adults. And it is bad enough for
    adults. Your rulings in the following notable cases affirmed
    the right of children to be represented by attorneys, and also
    preserve children's rights of privacy.
        S.V. v. R.V. In that case, you authored a lone dissent
    arguing that the statute of limitations should be tolled when a
    child represses the memory of a parent's sexual abuse. Is that
    right?
        Justice Owen. That is correct. She alleged that her father
    had sexually molested her repeatedly when she was a child.
        Chairman Hatch. Well, according to you, the court had
    tolled the statute of limitations in fraud and fiduciary cases,
    and since sexual abuse is more reprehensible than fraud and the
    parent-child relationship happens to be a fiduciary one, you
    argued the limitations period should be tolled here as well.
        Justice Owen. I thought that best squared with our prior
    precedent; I certainly did.
        Chairman Hatch. But you did that in dissent, right?
        Justice Owen. In dissent.
        Chairman Hatch. You did not prevail in that case?
        Justice Owen. I did not prevail.
        Chairman Hatch. The other majority went against you in that
    case?
        Justice Owen. That is correct.
        Chairman Hatch. I wonder if our colleagues gave any
    consideration to that. Well, I am going to suggest that they
    do. That is why I am asking you this question.
        In In re D.A.S., you held that the right of indigent
    juveniles to be assisted by a lawyer also extends to
    proceedings on appeal. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. Prior to the In re D.A.S. case, the scope
    of a juvenile's right to counsel was unclear in Texas. Is that
    right?
        Justice Owen. I want to make this clear that this is in the
    context of a quasi-criminal case, that this is a juvenile
    delinquency proceeding where the juvenile may face being
    detained as a delinquent for crimes. They are not tried for the
    crime, but----
        Chairman Hatch. But you did that?
        Justice Owen. Right. It was a quasi-criminal--yes, it was a
    quasi-criminal proceeding.
        Chairman Hatch. OK. In Abrams v. Jones, there was an
    acrimonious dispute over who should have custody of a child.
    You refused to allow access to records about the child's mental
    health because you concluded, if I read it correctly, that
    releasing them would have harmed the child physically, mentally
    and emotionally. Is that right?
        Justice Owen. Well, there was a statute in place and the
    question was how does the statute apply under these
    circumstances. And I held--wrote the opinion for the court that
    the statute precluded letting one parent get the mental health
    records of that child when the child was seeing the mental
    health provider because they were upset and disturbed by the
    divorce proceedings.
        Chairman Hatch. Now, I know that I am causing you to sit in
    that seat far too long. If you need a break or anything, just
    let me know.
        Justice Owen. Thank you. I appreciate that.
        Chairman Hatch. But I think it is important that we blow
    away some of these, I think, unfair comments that have been
    made because, boy, anybody who looks at your record has got say
    she is one heck of a justice.
        Justice Owen. Thank you.
        Chairman Hatch. I think most people know that I know what a
    good justice is, and I can tell you you are one of the best I
    have seen and I have been on this committee for 27 years.
        Let me ask you just a basic question, and it is
    embarrassing for you to answer, perhaps, but I think you ought
    to answer it.
        Justice Owen. I am sorry?
        Chairman Hatch. I am going to ask you a question that might
    be embarrassing to you and I think you ought to answer it. Do
    you think that you were treated fairly last year? I am not
    saying that your hearing wasn't conducted fairly, because I was
    there and it was, and I know you believe it was.
        But do you think you have been treated fairly by some of
    the comments made by those who voted against you on this
    committee?
        Justice Owen. Senator, let me say this. I think there are a
    lot of allegations out there that are unfounded that seem to
    continue to resonate. And from that standpoint, I am not sure
    that people are--that the allegations that were leveled against
    me have been adequately addressed.
        Chairman Hatch. Well, you are being very diplomatic, as any
    justice should be, but I am asking you a real question. Do you
    think you have been treated fairly in this process?
        Justice Owen. It was a difficult process to go through; it
    was very difficult.
        Chairman Hatch. Again, I am going to ask the question, do
    you think you were treated fairly or unfairly?
        Justice Owen. I would rather let other people judge that.
    It was hard for me. It was hard because----
        Chairman Hatch. What was hard about it?
        Justice Owen. Because I felt that what I have done and the
    decisions I have written and what has been written by my
    colleagues about me was not accurately characterized.
        Chairman Hatch. By members of the committee?
        Justice Owen. Well, or by people who gave members of the
    committee information.
        Chairman Hatch. You mean you are criticizing our staff on
    this committee?
        Justice Owen. No. I am not sure who gave whom what, but the
    questions----
        Chairman Hatch. I am being deliberately tough on you, but
    the answer is probably so.
        Justice Owen. A lot of the questions that I was asked had
    embedded in them premises or statements that were not factually
    correct.
        Chairman Hatch. Do you think some of the press releases
    that have been issued have been fair, have fairly characterized
    your service on the court?
        Justice Owen. No, I do not.
        Chairman Hatch. Do you think that some of the public
    statements that have been made have fairly characterized your
    work on your court?
        Justice Owen. Certainly not all of them.
        Chairman Hatch. Do you think some of the statements that
    have been made by some of my colleagues who have been opposed
    to you have fairly characterized your service as a justice on
    the Texas Supreme Court? I said some of them.
        Justice Owen. I am sort of in somewhat of an awkward
    position.
        Chairman Hatch. I know you are. I am deliberately putting
    you there. My colleagues can be mad at me, but I think you
    ought to say yes or no.
        Justice Owen. Well, again I think that my record has been
    given short shrift and that there continue to be
    characterizations of what I have written and how I have ruled
    that I don't think are accurate.
        Chairman Hatch. My gosh, you graduated No. 1 in your class
    at Baylor Law School. You had the highest score on the bar
    examination. You have the highest rating by the American Bar
    Association. Your colleagues all respect you. We had one of the
    Democrat Supreme Court Justices here throughout your whole
    hearing last time who was outraged by the way you were treated.
        Do you remember all that?
        Justice Owen. I do, I do.
        Chairman Hatch. Well, I will get off that because I know
    that you are uncomfortable, but I think it is important for the
    public to understand that we have an obligation as Senators to
    do what is right around here. We have an obligation to be fair,
    if not to the President, at least to you.
        Justice Owen. Thank you, Senator.
        Chairman Hatch. Well, let me just go through a few other
    things because it is important that we clarify some--I promise
    you I won't keep this going too much longer, but it is
    important because some of our colleagues, I think, sincerely
    have distorted your record because they have gotten the wrong
    information, information that is not accurate, that is unfair
    to you. That is why I am taking a little bit of time.
        And I am busy. I mean, there is a judgeship up on the floor
    right now and I have already spoken. I have been back and forth
    so many times, I feel like I am going to need a rest tonight.
        Let me ask about legal services for the poor because we
    keep getting these comments that are, I think, out of left
    field that you don't care for the poor, you don't care for
    employees, you don't care for the underdog. The fact of the
    matter is, when I look at these cases, you sure as heck do. You
    care for all these people and you care for doing what is right
    in the law.
        Let me just ask about legal services for the poor. It seems
    to me that you have used your position as a public figure to
    advocate higher-quality and more effective legal representation
    for the poorest citizens of Texas.
        As you explained in Griffin Industries v. Honorable
    Thirteenth Court of Appeals, quote, ``Our State constitution
    and our rules of procedure recognize that our courts must be
    open to all with legitimate disputes, not just those who can
    afford to pay the fees to get in,'' unquote.
        Is that a fair characterization of what you said?
        Justice Owen. I did say that, yes.
        Chairman Hatch. You also persuaded the Texas Legislature to
    enact a law that provided additional funding to organizations
    that represent the poor.
        Justice Owen. I must say I didn't do that single-handedly.
        Chairman Hatch. No, but you did.
        Justice Owen. I was part of the effort, certainly.
        Chairman Hatch. Well, you certainly helped persuade them.
    You didn't do it all by yourself, no, but you were there and
    you helped.
        Justice Owen. I did.
        Chairman Hatch. OK. As a result, these groups have received
    millions of extra dollars every year since then, right?
        Justice Owen. That is correct.
        Chairman Hatch. You have also been a member of the
    Mediation Task Force established by the Texas Supreme Court, as
    well as a number of statewide committees, and each of these
    organizations aim to improve the availability and quality of
    legal services for the poor. Is that right?
        Justice Owen. Yes. The mediating committee was not totally
    focused on so much legal services to the poor, but there
    certainly were dispute resolution centers represented in that
    process who do free mediations for people who cannot afford to
    pay.
        Chairman Hatch. I have to step out for just a minute, so we
    are going to recess for about three or 4 minutes and I will
    come right back. Is that OK?
        Justice Owen. Certainly.
        Chairman Hatch. I want to continue this just to make sure
    that everybody understands that we have got to treat you fairly
    here, and that these matters are really important and that they
    shouldn't be distorted, OK?
        Justice Owen. All right.
        Chairman Hatch. Will you allow me that 3 minutes and I will
    be right back?
        Justice Owen. Certainly. Thank you.
        [The committee stood in adjournment from 3:31 p.m. to 3:35
    p.m.]
        Chairman Hatch. I know we are wearing you out, but I think
    it is important because I think it is time for people to
    realize that we need to treat nominees of any President
    decently. And I have always tried, and I think people who
    really know the real story around here know that I have. But in
    your case, I don't think you have been treated fairly and that
    is why I asked those very tough questions of you. I know it put
    you on the spot and I apologize.
        You handled that so deftly and so well, I can see why you
    are a great justice. You handled it in a way that I don't think
    anybody should be offended, but you were not treated fairly and
    I just wanted to make sure everybody in the country knows that.
        The immediate past president of Legal Aid of Central Texas
    sent a letter to the Senate Judiciary Committee for your
    longstanding commitment to assisting society's least fortunate.
    According to the letter, quote, ``Justice Owen has an
    understanding of and a commitment to the availability of legal
    services to those who are disadvantaged and unable to pay for
    such legal services. It is that type of insight and empathy
    that Justice Owen will bring to the Fifth Circuit,'' unquote.
    That is pretty high praise.
        In In Re Jones, you joined the per curiam opinion that a
    pro se litigant satisfied the notice requirements for filing an
    affidavit asserting her inability to give security for costs of
    appeal. Is that right?
        Justice Owen. That is correct.
        Chairman Hatch. That was helping somebody who couldn't help
    herself, right?
        Justice Owen. That is correct.
        Chairman Hatch. I also understand that you are involved in
    training service dogs.
        Justice Owen. I don't personally train them, but I serve on
    the board of the Texas Hearing and Service Dogs.
        Chairman Hatch. So you help in that cause, and those dogs
    are very, very important----
        Justice Owen. They are.
        Chairman Hatch [continuing]. For people with disabilities,
    the blind and others, et cetera, right?
        Justice Owen. They certainly are. They give people a lot
    more independence and a lot more mobility and freedom than they
    would otherwise have.
        Chairman Hatch. Well, finally, in two landmark rulings you
    voted to reaffirm strong protections for a cleaner environment
    and positive stewardship of natural resources. Let me just
    mention these.
        In Quick v. City of Austin, you joined the majority opinion
    upholding the enforcement of a city ordinance protecting water
    quality and controlling pollution in the face of challenges by
    landowners, right?
        Justice Owen. That is correct.
        Chairman Hatch. In Barshop v. Medina County Underground
    Water Conservation District, large landowners sought to
    challenge the constitutionality of the Edwards Aquifer Act,
    which regulates withdrawals of water from wells drawn in the
    aquifer and limits the drilling of future wells. The landowners
    contended that the Act deprived them of vested property rights.
    You joined the unanimous Supreme Court holding that the State
    of Texas has the authority to regulate and conserve groundwater
    usage. Is that right?
        Justice Owen. Yes, that is right.
        Chairman Hatch. Let me just ask you about the Sonnier v.
    Chisholm----
        Justice Owen. The tomato chopper case?
        Chairman Hatch. Yes, the Chisholm-Ryder case. This is an
    employee who had been injured by a tomato chopper installed by
    the Texas Department of Corrections who sued the chopper's
    manufacturer some 25 years after the manufacturer constructed
    the machine. You joined a dissent that would have precluded
    recovery from manufacturers or suppliers who products
    constitute an improvement to the property.
        Did I get that right?
        Justice Owen. I am not sure I got all the words--I actually
    wrote the dissent, and you couldn't be a component part
    supplier, but if you actually manufactured a piece of equipment
    that became permanently affixed to the land, then you would
    come within the statute of repose.
        Chairman Hatch. The majority said in its reading of the
    statute--or said its reading of the statute is the only one
    consistent with the plain language of the statute, the
    legislative history and the statutory purpose, and criticized
    the dissent for advocating a test that is significantly more
    broad than any holding in the area up until that time.
        Now, isn't it true that this case turned on the
    interpretation of Section 16.009 of the Texas Civil Practice
    and Remedies Code which stated that, quote, ``A claimant must
    bring suit for damages against a person who constructs or
    repairs an improvement to real property not later than 10 years
    after the substantial completion of the improvement,'' unquote?
        Justice Owen. That is correct. That is what the statute
    said, and let me also point out in that case, with all due
    respect to the language that one of my colleagues wrote in that
    opinion, this case came to us on a certified question from the
    Fifth Circuit.
        The Fifth Circuit thought that the law in Texas was not
    well settled enough. They couldn't tell what the statute meant.
    It took three judges to certify the question to us. One judge
    on the Fifth Circuit dissented and said it is clear to me, I
    think it means ``x.'' And my dissent basically agreed with the
    dissent of the referring panel member. And the point of all
    that is there was certainly room for reasonably disagreement
    over that statute.
        Chairman Hatch. Didn't the dissenting opinion you joined
    hold that in deciding whether a manufacturer, quote,
    ``constructs an improvement to real property,'' unquote, the,
    quote, ``inquiry should include the intent of the parties at
    the time the item at issue was constructed, the manner in which
    it is used in conjunction with the property, and the manner in
    which it is attached or connected in some way to the real
    property,'' unquote?
        Justice Owen. That is correct.
        Chairman Hatch. OK.
        Justice Owen. And I thought in this case that it was too
    close for the court to say one way or the other and the jury
    should decide. I thought this should have been submitted to the
    jury and the court shouldn't just decide.
        Chairman Hatch. Well, isn't it true that the dissenting
    opinion was consistent with prior decisions in seven prior
    courts of appeals decisions in Texas and two decisions of the
    Fifth Circuit applying Texas law?
        Justice Owen. Yes, it was.
        Chairman Hatch. Now, Senator Kennedy mentioned this case
    this morning, a case in which you and then-Justice Cornyn, and
    now-Senator Cornyn, disagreed. Now, Senator Kennedy tried to
    make that disagreement seem political in nature.
        Wasn't the issue in that case simply whether a tomato
    chopper machine is real property or personal property?
        Justice Owen. That is really what it boiled down to. Was it
    so big and was it so affixed and built into the building that
    it had become real property as opposed to personal property?
        Chairman Hatch. Well, did you have political or ideological
    ends in mind when you decided that case?
        Justice Owen. Certainly not.
        Chairman Hatch. Do you find anything political about
    whether a tomato chopping machine is real property or not?
        Justice Owen. I certainly didn't then and don't now.
        Chairman Hatch. My gosh, how far can you stretch things--
    not you, but some of our colleagues?
        Now, Justice Owen, do you pledge to follow the law,
    regardless of your personal beliefs and feelings, in matters?
        Justice Owen. Well, Senator, I am a sitting judge and I
    have taken an oath to do exactly that.
        Chairman Hatch. And you will take the same oath or a
    similar oath to follow the law, regardless of personal
    feelings, when you take your seat on the Fifth Circuit Court of
    Appeals?
        Justice Owen. That is correct. Feelings really should not
    play a part in a judge applying the law to the facts.
        Chairman Hatch. Now, do you pledge to follow Roe v. Wade?
        Justice Owen. Yes, Senator. I have followed it, I have
    cited it, I have been faithful to it, and I would continue to
    do so were I confirmed to the Fifth Circuit Court of Appeals.
        Chairman Hatch. So you pledge to follow Roe v. Wade as
    well-established and settled law, regardless of personal
    beliefs and without regard to any personal ideological views?
        Justice Owen. That is correct.
        Chairman Hatch. There are some who would say that it is not
    well-settled law because there is such a split of opinion in
    this country.
        Justice Owen. Well, that decision was handed down 30 years
    ago. It was largely reaffirmed, with some modification, in
    Casey. The Court reconsidered and said, based on stare decisis,
    this remains the law, and it is still the law and has been.
        Chairman Hatch. Well, let me just say that you are making
    it very clear that some of the criticisms that you have had to
    undergo in this process have not been accurate; they have not
    been fair. In fact, some of them have been distortions of your
    viewpoints and of your decisions. Am I correct in that?
        Justice Owen. I think it is correct to say that some of the
    characterizations of the opinions that I have either written or
    joined have not been accurate and they have been distorted.
        Chairman Hatch. Well, I think you deserve to have accuracy
    and I think you deserve to not have things be distorted. I just
    want to personally thank you. You know, I think we have covered
    enough here because I think we have covered almost everything
    that has been a criticism.
        I want to thank you for being here today and for making
    yourself available to all members of this committee for
    questioning. I know this has not been exactly fun for you, but
    it is important for this committee to set the record straight
    and I think you have done an excellent job of doing exactly
    that.
        Justice Owen. Well, thank you, Senator. I appreciate that.
        Chairman Hatch. As I said at the opening, I called this
    hearing because I believe the committee treated your nomination
    unfairly last fall, especially at the markup. Members of this
    committee made unfounded comments that were directly
    contradicted by the facts and your testimony at that time, but
    certainly today again.
        I think we have corrected that record by and large. We
    could correct every aspect of it if we wanted to take time. We
    have corrected the record about Ford v. Miles, the Willie
    Searcy case, and made clear that, contrary to accusations, Mr.
    Searcy passed away 3 years after the Texas Supreme Court's
    decision.
        We also clarified that Justice Owen's opinions in the cases
    involving the Texas parental notification statute did not touch
    upon in any way the right of those girls to obtain abortions.
    They were a good-faith and legitimate attempt to understand
    what the legislature meant and to give customary deference to
    the trial courts that actually had the facts and the witnesses,
    meaning the young girls, before them.
        Great deference has to be given to the trier of fact or I
    think you would be outside of the mainstream. Am I wrong on
    that?
        Justice Owen. I certainly felt in that case that it was a
    close case, but there was some evidence to support what the
    trial court did, and therefore I had to uphold what the trial
    court ruled.
        Chairman Hatch. That is certainly not outside of the
    judicial mainstream.
        Justice Owen. No, Senator, it is not.
        Chairman Hatch. Now, we have also re-heard how totally
    unjustified it would be to accuse you of favoring defendants or
    plaintiffs, or vice versa, and yet you have been accused of
    that.
        Justice Owen. I have been accused of that.
        Chairman Hatch. Fairly?
        Justice Owen. I think wrongly.
        Chairman Hatch. We know more about how the Texas Supreme
    Court takes cases and more about how Justice Owen--how you
    decide them. We also know beyond doubt that Justice Owen was
    not lectured by her colleagues in the case of Weiner v. Wasson.
    Your detractors, I think, had confused you with the defendant
    in that case. Am I right on that?
        Justice Owen. I think that is correct. I think Senator
    Hutchison----
        Chairman Hatch. We have also clarified once again that
    Judge Gonzales' often-repeated comment about judicial activism
    was not directed at you at all. In fact, if you read the
    language carefully, he was saying if he had done some of these
    things, he would feel like he was a judicial activist. Am I
    right?
        Justice Owen. Well, yes. He said if someone were to do
    this, if someone were to or would, that would be. And then when
    he directly addressed--in the following paragraph he said, I
    respectfully disagree.
        Chairman Hatch. I have to admit Judge Gonzales is against
    judicial activism. If there is anything he is against in the
    law, it is judicial activism.
        Justice Owen. I agree with that.
        Chairman Hatch. I agree with you that he would not be--I
    would call him your strongest, if not the strongest supporter.
    Am I correct on that?
        Justice Owen. He has certainly come out very publicly in
    support of me and he is a friend of mine.
        Chairman Hatch. And Senator Cornyn is one of your strongest
    supporters, as well, and he sat there right near you on the
    Texas Supreme Court. Am I correct?
        Justice Owen. That is correct.
        Chairman Hatch. He saw you operate, he saw what you did, he
    saw your reasoning, he saw your writing, he saw your
    deliberations. He was part of it, right?
        Justice Owen. For 3 years, I had the privilege of serving
    with then-Justice Cornyn on the court.
        Chairman Hatch. He certainly gave very strong testimony in
    your behalf here this morning and I think that testimony ought
    to be looked at very carefully by my colleagues.
        There are other issues and I am not going to go through
    them all. Suffice it to say that I believe any member who reads
    the complete record regarding your nomination this year and
    last will not come up with any legitimate reason to vote no in
    committee to letting the full Senate weigh in on this
    nomination. In fact, I think you have made an extraordinary
    case for confirmation.
        Now, let me just say this. We are not at ten to four. We
    have been here since ten o'clock this morning. I have kept this
    record open all day for any of my colleagues to come and ask
    questions, certainly the colleagues on the committee. And I
    also spoke on the floor, sent letters out and requested
    colleagues to come here and listen to you if they had any
    questions about your qualifications to serve.
        So I am going to keep the record open for 1 week, and 1
    week only, for written questions. I intend to put you on the
    markup for next week, so we will put you on that markup. Any
    members who wish to submit followup questions will have to do
    so by--I will keep it open until 5 p.m. next Wednesday. That
    would be March 19, if I recall it correctly. There are going to
    be no exceptions, unless pre-approved for good reason, and I
    have always been flexible with my colleagues.
        Now, what I am going to do, just in case somebody still
    wants to ask questions of you--I hate to ask you to do this
    because I know it is inconvenient to you, but this is important
    that we give our colleagues every opportunity. I am going to
    recess until seven o'clock tonight, subject to the call of the
    Chair, and if any of my colleagues come to me and want to ask
    further questions of you, they are going to have that right.
        I will have to have you come back at a moment's notice, so
    you have got to--I know this is a painful experience and I know
    that it is inconvenient for you. I know that you shouldn't have
    had to go through this, but I just want to make sure that no
    colleague has a right to say that they haven't been given every
    opportunity to question you, to ask you the most detailed
    questions to clarify, to find out the questions on their own
    mind. I just want to make sure that those complaints in the
    future are not going to be fair complaints. I have been using
    the words ``fair'' and ``unfair'' here today and I think I have
    used them correctly in all cases.
        With that, we are going to recess until I adjourn formally
    at seven o'clock tonight, and if any of my colleagues call me
    and they do want to ask you some further questions, I would
    like to have you be able to get here within 10 or 15 minutes at
    the latest.
        Justice Owen. OK.
        Chairman Hatch. So we are going to need to have you stick
    around.
        Justice Owen. All right.
        Chairman Hatch. I hate to do that to you, but it is about 3
    hours from now and we will leave that time open for our
    colleagues. Is that OK?
        Justice Owen. Thank you.
        Chairman Hatch. Well, I want to thank you. You have been
    very deliberative, you have been forthright, as I expected you
    to be, as everybody does. I think you have been impressive--I
    don't think you have, I know you have. But I thought you were
    last time. I don't know that I have ever had a nominee for any
    court, including the Supreme Court, who has been any more
    impressive than you.
        And I am not just saying that. I felt that way last time,
    but I feel it even more today. You have been gracious, you have
    been diplomatic, you have answered the questions. You have
    tried to be as forthright and open as you can as a Supreme
    Court Justice, and I think that all weighs very heavily in your
    favor. I am hopeful that when we have your markup, hopefully
    next Thursday, that you will be approved by the committee, and
    I hope by my colleagues on the other side as well.
        Now, this means that if they submit questions as late as
    five o'clock on next Wednesday, I would like to have those
    questions answered, if it takes all night to get them done.
        Justice Owen. I can do that.
        Chairman Hatch. Can you live with that?
        Justice Owen. I can do my dead-level best.
        Chairman Hatch. Well, with that, then, we will recess until
    the further call of the Chair, and if nobody calls me and asks
    for further questions, then we will recess at seven o'clock and
    put you over for the markup.
        Justice Owen. Thank you, Senator.
        Chairman Hatch. Thank you for your kindness and your
    perseverance, and thanks for being the great person you are.
        Justice Owen. Thank you, Senator.
        Chairman Hatch. With that, we will recess.
        [The committee stood in recess from 3:53 p.m. to 7:24 p.m.
    The committee reconvened at 7:24 p.m., Hon. John Cornyn
    presiding.]
        Senator Cornyn. This afternoon at approximately 3:30 p.m.,
    Senator Hatch recess this hearing, subject to the call of the
    Chair. He indicated at the time that he would resume the
    hearing at any time prior to 7 p.m., in case any member of the
    Senate wanted to ask Justice Owen any questions, not just any
    member of the Judiciary Committee, but any member of the
    Senate.
        Since the hour of 7 p.m. has now arrived and passed, this
    hearing is now adjourned.
        [The questionnaire of Justice Owen follows.]
        [Whereupon, at 7:25 p.m., the committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

    [GRAPHIC] [TIFF OMITTED] T9329.001

    [GRAPHIC] [TIFF OMITTED] T9329.002

    [GRAPHIC] [TIFF OMITTED] T9329.003

    [GRAPHIC] [TIFF OMITTED] T9329.004

    [GRAPHIC] [TIFF OMITTED] T9329.005

    [GRAPHIC] [TIFF OMITTED] T9329.006

    [GRAPHIC] [TIFF OMITTED] T9329.007

    [GRAPHIC] [TIFF OMITTED] T9329.008

    [GRAPHIC] [TIFF OMITTED] T9329.009

    [GRAPHIC] [TIFF OMITTED] T9329.010

    [GRAPHIC] [TIFF OMITTED] T9329.011

    [GRAPHIC] [TIFF OMITTED] T9329.012

    [GRAPHIC] [TIFF OMITTED] T9329.013

    [GRAPHIC] [TIFF OMITTED] T9329.014

    [GRAPHIC] [TIFF OMITTED] T9329.015

    [GRAPHIC] [TIFF OMITTED] T9329.016

    [GRAPHIC] [TIFF OMITTED] T9329.017

    [GRAPHIC] [TIFF OMITTED] T9329.018

    [GRAPHIC] [TIFF OMITTED] T9329.019

    [GRAPHIC] [TIFF OMITTED] T9329.020

    [GRAPHIC] [TIFF OMITTED] T9329.021

    [GRAPHIC] [TIFF OMITTED] T9329.022

    [GRAPHIC] [TIFF OMITTED] T9329.023

    [GRAPHIC] [TIFF OMITTED] T9329.024

    [GRAPHIC] [TIFF OMITTED] T9329.025

    [GRAPHIC] [TIFF OMITTED] T9329.026

    [GRAPHIC] [TIFF OMITTED] T9329.027

    [GRAPHIC] [TIFF OMITTED] T9329.028

    [GRAPHIC] [TIFF OMITTED] T9329.029

    [GRAPHIC] [TIFF OMITTED] T9329.030

    [GRAPHIC] [TIFF OMITTED] T9329.031

    [GRAPHIC] [TIFF OMITTED] T9329.032

    [GRAPHIC] [TIFF OMITTED] T9329.033

    [GRAPHIC] [TIFF OMITTED] T9329.034

    [GRAPHIC] [TIFF OMITTED] T9329.035

    [GRAPHIC] [TIFF OMITTED] T9329.036

    [GRAPHIC] [TIFF OMITTED] T9329.037

    [GRAPHIC] [TIFF OMITTED] T9329.038

    [GRAPHIC] [TIFF OMITTED] T9329.039

    [GRAPHIC] [TIFF OMITTED] T9329.040

    [GRAPHIC] [TIFF OMITTED] T9329.041

    [GRAPHIC] [TIFF OMITTED] T9329.042

    [GRAPHIC] [TIFF OMITTED] T9329.043

    [GRAPHIC] [TIFF OMITTED] T9329.044

    [GRAPHIC] [TIFF OMITTED] T9329.045

    [GRAPHIC] [TIFF OMITTED] T9329.046

    [GRAPHIC] [TIFF OMITTED] T9329.047

    [GRAPHIC] [TIFF OMITTED] T9329.048

    [GRAPHIC] [TIFF OMITTED] T9329.049

    [GRAPHIC] [TIFF OMITTED] T9329.050

    [GRAPHIC] [TIFF OMITTED] T9329.051

    [GRAPHIC] [TIFF OMITTED] T9329.052

    [GRAPHIC] [TIFF OMITTED] T9329.053

    [GRAPHIC] [TIFF OMITTED] T9329.054

    [GRAPHIC] [TIFF OMITTED] T9329.055

    [GRAPHIC] [TIFF OMITTED] T9329.056

    [GRAPHIC] [TIFF OMITTED] T9329.057

    [GRAPHIC] [TIFF OMITTED] T9329.058

    [GRAPHIC] [TIFF OMITTED] T9329.059

    [GRAPHIC] [TIFF OMITTED] T9329.060

    [GRAPHIC] [TIFF OMITTED] T9329.061

    [GRAPHIC] [TIFF OMITTED] T9329.062

    [GRAPHIC] [TIFF OMITTED] T9329.063

    [GRAPHIC] [TIFF OMITTED] T9329.064

    [GRAPHIC] [TIFF OMITTED] T9329.065

    [GRAPHIC] [TIFF OMITTED] T9329.066

    [GRAPHIC] [TIFF OMITTED] T9329.067

    [GRAPHIC] [TIFF OMITTED] T9329.068

    [GRAPHIC] [TIFF OMITTED] T9329.069

    [GRAPHIC] [TIFF OMITTED] T9329.070

    [GRAPHIC] [TIFF OMITTED] T9329.071

    [GRAPHIC] [TIFF OMITTED] T9329.072

    [GRAPHIC] [TIFF OMITTED] T9329.073

    [GRAPHIC] [TIFF OMITTED] T9329.074

    [GRAPHIC] [TIFF OMITTED] T9329.075

    [GRAPHIC] [TIFF OMITTED] T9329.076

    [GRAPHIC] [TIFF OMITTED] T9329.077

    [GRAPHIC] [TIFF OMITTED] T9329.078

    [GRAPHIC] [TIFF OMITTED] T9329.079

    [GRAPHIC] [TIFF OMITTED] T9329.080

    [GRAPHIC] [TIFF OMITTED] T9329.081

    [GRAPHIC] [TIFF OMITTED] T9329.082

    [GRAPHIC] [TIFF OMITTED] T9329.083

    [GRAPHIC] [TIFF OMITTED] T9329.084

    [GRAPHIC] [TIFF OMITTED] T9329.085

    [GRAPHIC] [TIFF OMITTED] T9329.086

    [GRAPHIC] [TIFF OMITTED] T9329.087

    [GRAPHIC] [TIFF OMITTED] T9329.088

    [GRAPHIC] [TIFF OMITTED] T9329.089

    [GRAPHIC] [TIFF OMITTED] T9329.090

    [GRAPHIC] [TIFF OMITTED] T9329.091

    [GRAPHIC] [TIFF OMITTED] T9329.092

    [GRAPHIC] [TIFF OMITTED] T9329.093

    [GRAPHIC] [TIFF OMITTED] T9329.094

    [GRAPHIC] [TIFF OMITTED] T9329.095

    [GRAPHIC] [TIFF OMITTED] T9329.096

    [GRAPHIC] [TIFF OMITTED] T9329.097

    [GRAPHIC] [TIFF OMITTED] T9329.098

    [GRAPHIC] [TIFF OMITTED] T9329.099

    [GRAPHIC] [TIFF OMITTED] T9329.100

    [GRAPHIC] [TIFF OMITTED] T9329.101

    [GRAPHIC] [TIFF OMITTED] T9329.102

    [GRAPHIC] [TIFF OMITTED] T9329.103

    [GRAPHIC] [TIFF OMITTED] T9329.104

    [GRAPHIC] [TIFF OMITTED] T9329.105

    [GRAPHIC] [TIFF OMITTED] T9329.106

    [GRAPHIC] [TIFF OMITTED] T9329.107

    [GRAPHIC] [TIFF OMITTED] T9329.108

    [GRAPHIC] [TIFF OMITTED] T9329.109

    [GRAPHIC] [TIFF OMITTED] T9329.110

    [GRAPHIC] [TIFF OMITTED] T9329.111

    [GRAPHIC] [TIFF OMITTED] T9329.112

    [GRAPHIC] [TIFF OMITTED] T9329.113

    [GRAPHIC] [TIFF OMITTED] T9329.114

    [GRAPHIC] [TIFF OMITTED] T9329.115

    [GRAPHIC] [TIFF OMITTED] T9329.116

    [GRAPHIC] [TIFF OMITTED] T9329.117

    [GRAPHIC] [TIFF OMITTED] T9329.118

    [GRAPHIC] [TIFF OMITTED] T9329.119

    [GRAPHIC] [TIFF OMITTED] T9329.120

    [GRAPHIC] [TIFF OMITTED] T9329.121

    [GRAPHIC] [TIFF OMITTED] T9329.122

    [GRAPHIC] [TIFF OMITTED] T9329.123

    [GRAPHIC] [TIFF OMITTED] T9329.124

    [GRAPHIC] [TIFF OMITTED] T9329.125

    [GRAPHIC] [TIFF OMITTED] T9329.126

    [GRAPHIC] [TIFF OMITTED] T9329.127

    [GRAPHIC] [TIFF OMITTED] T9329.128

    [GRAPHIC] [TIFF OMITTED] T9329.129

    [GRAPHIC] [TIFF OMITTED] T9329.130

    [GRAPHIC] [TIFF OMITTED] T9329.131

    [GRAPHIC] [TIFF OMITTED] T9329.132

    [GRAPHIC] [TIFF OMITTED] T9329.133

    [GRAPHIC] [TIFF OMITTED] T9329.134

    [GRAPHIC] [TIFF OMITTED] T9329.135

    [GRAPHIC] [TIFF OMITTED] T9329.136

    [GRAPHIC] [TIFF OMITTED] T9329.137

    [GRAPHIC] [TIFF OMITTED] T9329.138

    [GRAPHIC] [TIFF OMITTED] T9329.139

    [GRAPHIC] [TIFF OMITTED] T9329.140

    [GRAPHIC] [TIFF OMITTED] T9329.141

    [GRAPHIC] [TIFF OMITTED] T9329.142

    [GRAPHIC] [TIFF OMITTED] T9329.143

    [GRAPHIC] [TIFF OMITTED] T9329.144

    [GRAPHIC] [TIFF OMITTED] T9329.145

    [GRAPHIC] [TIFF OMITTED] T9329.146

    [GRAPHIC] [TIFF OMITTED] T9329.147

    [GRAPHIC] [TIFF OMITTED] T9329.148

    [GRAPHIC] [TIFF OMITTED] T9329.149

    [GRAPHIC] [TIFF OMITTED] T9329.150

    [GRAPHIC] [TIFF OMITTED] T9329.151

    [GRAPHIC] [TIFF OMITTED] T9329.152

    [GRAPHIC] [TIFF OMITTED] T9329.153

    [GRAPHIC] [TIFF OMITTED] T9329.154

    [GRAPHIC] [TIFF OMITTED] T9329.155

    [GRAPHIC] [TIFF OMITTED] T9329.156

    [GRAPHIC] [TIFF OMITTED] T9329.157

    [GRAPHIC] [TIFF OMITTED] T9329.158

    [GRAPHIC] [TIFF OMITTED] T9329.159

    [GRAPHIC] [TIFF OMITTED] T9329.160

    [GRAPHIC] [TIFF OMITTED] T9329.161

    [GRAPHIC] [TIFF OMITTED] T9329.162

    [GRAPHIC] [TIFF OMITTED] T9329.163

    [GRAPHIC] [TIFF OMITTED] T9329.164

    [GRAPHIC] [TIFF OMITTED] T9329.165

    [GRAPHIC] [TIFF OMITTED] T9329.166

    [GRAPHIC] [TIFF OMITTED] T9329.167

    [GRAPHIC] [TIFF OMITTED] T9329.168

    [GRAPHIC] [TIFF OMITTED] T9329.169

    [GRAPHIC] [TIFF OMITTED] T9329.170

    [GRAPHIC] [TIFF OMITTED] T9329.171

    [GRAPHIC] [TIFF OMITTED] T9329.172

    [GRAPHIC] [TIFF OMITTED] T9329.173

    [GRAPHIC] [TIFF OMITTED] T9329.174

    [GRAPHIC] [TIFF OMITTED] T9329.175

    [GRAPHIC] [TIFF OMITTED] T9329.176

    [GRAPHIC] [TIFF OMITTED] T9329.177

    [GRAPHIC] [TIFF OMITTED] T9329.178

    [GRAPHIC] [TIFF OMITTED] T9329.179

    [GRAPHIC] [TIFF OMITTED] T9329.180

    [GRAPHIC] [TIFF OMITTED] T9329.181

    [GRAPHIC] [TIFF OMITTED] T9329.182

    [GRAPHIC] [TIFF OMITTED] T9329.183

    [GRAPHIC] [TIFF OMITTED] T9329.184

    [GRAPHIC] [TIFF OMITTED] T9329.185

    [GRAPHIC] [TIFF OMITTED] T9329.186

    [GRAPHIC] [TIFF OMITTED] T9329.187

    [GRAPHIC] [TIFF OMITTED] T9329.188

    [GRAPHIC] [TIFF OMITTED] T9329.189

    [GRAPHIC] [TIFF OMITTED] T9329.190

    [GRAPHIC] [TIFF OMITTED] T9329.191

    [GRAPHIC] [TIFF OMITTED] T9329.192

    [GRAPHIC] [TIFF OMITTED] T9329.193

    [GRAPHIC] [TIFF OMITTED] T9329.194

    [GRAPHIC] [TIFF OMITTED] T9329.195

    [GRAPHIC] [TIFF OMITTED] T9329.196

    [GRAPHIC] [TIFF OMITTED] T9329.197