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

                                                        S. Hrg. 108-142




                               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

                            WASHINGTON : 2003
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                       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




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


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



                        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.

                       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 
    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 
    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 
    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?

                        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 
    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 
    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 
    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 
    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 
    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.

                         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 
    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 
    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.


    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 
    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 
    [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 
    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 
    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 
    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 
    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    Chairman Hatch. Well, thank you. My time is up.
    Senator Kennedy, we will turn to you.

                     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.
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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.
    Senator Chambliss. Senator Durbin.
    Justice Owen. Which was a big percentage of the time, I 
might add.

                          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 
    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 
    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 
    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 
    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 
    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.

                       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 
    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 
    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 
    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 
    Senator Feingold. I thank the witness and I thank the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    Justice Owen. No, Senator, they are not.
    Chairman Hatch. Sometimes, they are actually right, aren't 
    Justice Owen. Sometimes they are wrong, sometimes they are 
    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, 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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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