[Congressional Record Volume 148, Number 113 (Tuesday, September 10, 2002)]
[Senate]
[Pages S8447-S8452]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE NOMINATION OF PRISCILLA OWEN

  Mr. LEAHY. Mr. President, in light of the continuing criticism of 
Republicans about the Senate Judiciary Committee's vote on the 
nomination of Priscilla Owen to be a judge on the United States Court 
of Appeals for the Fifth Circuit, I am making my statement from 
September 5, 2002, on that vote a part of the Record.
  I would also like to respond to the misleading suggestion that the 
Senate Judiciary Committee has never defeated a nominee who received a 
``well qualified'' rating from the American Bar Association. In fact, 
in the prior six and one-half years of Republican control of the Senate 
the nominations of more than a dozen judicial candidates with unanimous 
well qualified ratings were defeated in the Committee through the 
decision of Republicans to block them from receiving hearings and votes 
on their nominations. More than three dozen others received partial 
ratings of ``well qualified'' and ``qualified.'' More than 50 of 
President Clinton's judicial nominees never received Committee votes, 
despite their ratings. The truth is that Republicans defeated dozens of 
judicial nominees with well-qualified ratings, not in the light of day 
with a democratic vote, but in the dark of night through secret, 
anonymous holds or other tactics.
  Here are some of the Clinton nominees with unanimous well qualified 
or partial well qualified ratings who never received a Senate Judiciary 
Committee vote and whose nominations ended in Committee: Alston 
Johnson, Fifth Circuit, James Duffy, Ninth Circuit, Kathleen McCree-
Lewis, Sixth Circuit, Enrique Moreno, Fifth Circuit, Judge James Lyons, 
Tenth Circuit, Allen Snyder, D.C. Circuit, Judge Robert Cindrich, Third 
Circuit, Judge Stephen Orlofsky, Third Circuit, James Beatty, Fourth 
Circuit, Frederic Woocher, Central District of California, Richard 
Anderson, District of Montana, Jeffrey Coleman, Northern District of 
Illinois, John Bingler, Western District of Pennsylvania, Elena Kagan, 
D.C. Circuit, Elizabeth Gibson, Fourth Circuit, Lynette Norton, Western 
District of Pennsylvania, Judge Legrome Davis, Eastern District of 
Pennsylvania, Judge Richard Leonard, Eastern District of North 
Carolina, Judge Linda Reigle, District of Nevada, Gary Sebelius, 
District of Kansas, Judge David Cercone, Western District of 
Pennsylvania, Patricia Coan, District of Colorado, Stephen Achelpohl, 
District of Nebraska, Judge Jorge Rangel, Fifth Circuit, Ronald Gould, 
Ninth Circuit, and Robert Freedburg, Eastern District of Pennsylvania. 
This is just a partial list.
  Of course some of President Clinton's judicial nominees who received 
hearings and Committee votes had also received well-qualified ratings, 
but that did not stop Republicans from voting against them and trying 
to defeat their nominations. For example, some of the same Republicans 
who now claim it is unprecedented to defeat a nominee with a well-
qualified rating voted against several Clinton nominees with that same 
rating, either in Committee, on the floor or both. The following 
nominees with well qualified ratings

[[Page S8448]]

were subject of Republican efforts to defeat their nominations, despite 
the rating that Republicans now cling to like a impermeable shield 
against criticism: Judge Rosemary Barkett, Eleventh Circuit, Judge 
Merrick Garland, D.C. Circuit, Judge William Fletcher, Ninth Circuit, 
Judge Ray Fisher, Ninth Circuit, Judge Marsha Berzon, Ninth Circuit, 
Judge Sonia Sotomayor, Second Circuit, Judge Margaret McKeown, Ninth 
Circuit, Judge Richard Paez, Ninth Circuit, Judge Margaret Morrow, 
Central District of California, Judge Gerald Lynch, Southern District 
of New York, and Mary McLaughlin, Eastern District of Pennsylvania.
  Republicans tried mightily to defeat these nominations. In fact, some 
of these nominees were asked about their ABA membership, as if being 
active in the Nation's largest bar association were somehow 
disqualifying. Republicans almost defeated some of these nominations. 
For example, Judge Paez was voted out of committee with barely a 
majority, and he received 39 Republican votes against his nomination 
despite his partial well-qualified rating. Judge Fletcher, who had a 
unanimous well-qualified rating, received negative votes in Committee 
from some of the same Republicans now complaining about negative votes 
on the nomination of Justice Owen, and Judge Fletcher's nomination 
received 41 Republican votes against his confirmation.
  Thus, what Republicans are really complaining about is not that a 
nominee who received a well- qualified rating was defeated, but that 
one of their nominees was defeated, regardless of her ABA rating. That 
is understandable. What is not understandable is their effort to 
distort the facts and the history of defeat of numerous other nominees 
of President Clinton who had the same rating as Justice Owen. Those 
ratings were no obstacle back then to Republican efforts to defeat 
those nominations, either through blocking hearings and votes or 
through attempts to defeat nominations in the Committee and on the 
floor. It was not due to lack of effort on their part that a nominee 
with a well-qualified rating was not actually voted down on their 
watch. In fact, dozens were defeated in far less public ways, but their 
nominations failed, nonetheless, and were returned to the President 
without confirmation.
  Additionally, I would like to respond to the notion that the vote 
against Justice Owen was somehow ``anti-woman.'' Such a claim, as that 
made by Attorney General Ashcroft, is absurd. I recall that when John 
Ashcroft was in the Senate he voted against the confirmation of at 
least 11 judicial nominees of President Clinton and almost half of them 
are women who now sit on the federal bench. The Senate Judiciary 
Committee has been far fairer to this President's judicial nominees, 
including the women he has nominated to the federal bench.
  Since the reorganization of the Senate Judiciary Committee 14 months 
ago, 17 women nominated to the Federal bench by President Bush have 
been given a hearing and reported out of committee. Sixteen have 
already been confirmed by the Democratic-led Senate. Four of these 
women were nominated to the Circuit Courts and were some of the first 
nominees in years to receive hearings, after the anonymous holds and 
obstruction during the period of Republican control of the Senate. Ten 
of those women nominees with records of fairness as lower federal 
courts or State court judges have been voted out of the Democratic-led 
Senate Judiciary Committee, including former Minnesota Supreme Court 
Justice Joan Lancaster.
  Justice Owen's record, in contrast, was not one of fairness and 
adherence to precedent. Instead, time after time, Justice Owen's 
written opinions demonstrated her willingness to substitute her policy 
preferences for those of the Texas legislature and her determination to 
distort precedent. Even her fellow judges criticized her approach. 
These issues are discussed in more detail in my full Judiciary 
Committee statement that follows:

  Statement of Senate Judiciary Committee Chairman Patrick Leahy on 
September 5, 2002 on the nomination of Justice Priscilla Owen to the 
United States Court of Appeals for the Fifth Circuit:
  Today, the Senate Judiciary Committee considered a number of the 
President's nominees, including Priscilla Owen to be a judge on the 
United States Court of Appeals for the Fifth Circuit, and Reena Raggi 
to be a judge on the United States Court of Appeals for the Second 
Circuit. These two nominees were the 80th and 81st judicial nominees 
voted on by the Committee in less than 15 months, and the 16th and 17th 
circuit court nominees voted on by the committee in that time. This 
committee has worked diligently since the change in majority last 
summer to consider more than 250 of the President's nominees.
  During our first year in the majority, we have held twice as many 
hearings for President Bush's Courts of Appeals nominees as were held 
in the first year of the Reagan Administration, when the Senate was 
controlled by Republicans, and five times as many as in the first year 
of the Clinton Administration, when the Senate was controlled by 
Democrats. Under Democratic leadership, this committee has also voted 
on more judicial nominees, 79 so far, than in any of the six and one-
half years of Republican control that preceded the change in majority. 
We have already voted on twice as many circuit court nominees, 15, as 
the Republican majority averaged in the years they were in control. In 
fact, this last year we voted on more judicial nominees than were voted 
on in 1999 and 2000 combined and on more circuit court nominees than 
Republicans voted on in 1996 and 1997 combined.
  We have achieved what we said we would by treating President Bush's 
nominees more fairly and more expeditiously than President Clinton's 
nominees were treated. By many measures the Committee has achieved 
almost twice as much this last year as Republicans averaged during 
their years in control.
  In the six and one-half year period of Republican control before the 
change in majority last summer, vacancies on the Courts of Appeals more 
than doubled from 16 to 33 and overall vacancies rose from 63 to 110. 
We have reversed those trends, even though 43 vacancies have arisen 
since the changeover last year.
  I have taken a number of actions to seek a cooperative and 
constructive working relationship with all Senators on both sides of 
the aisle and with the White House in order to make the confirmation 
process more orderly, less antagonistic, and more productive. Not all 
of my efforts have been successful and very few of my suggestions to 
the Administration have yielded results, but I have continued to make 
these efforts in the best interests of the country, the Senate and this 
committee.
  I am proud of the work the Committee has done since the change in the 
majority. I am proud of the way we have considered nominees fairly and 
expeditiously.
  The circuit court nominees voted on by the Senate Judiciary Committee 
today are two very different examples of the types of nominees sent to 
the Senate by this President. Judge Reena Raggi was appointed to the 
trial court in 1987 by President Ronald Reagan. She has a solid record 
of accomplishment in both the private and public sectors. She received 
the strong bipartisan support of two Democratic Senators, Charles 
Schumer and Hillary Rodham Clinton, and of the New York legal 
community. We have every reason to believe that she will serve with 
distinction on the Second Circuit as a fair and impartial judge. She is 
a conservative Republican.
  In sharp contrast is the record of the other circuit court nominee we 
considered today: Justice Priscilla Owen, a nominee whose record is too 
extreme even in the context of the very conservative Texas Supreme 
Court.
  Justice Owen has been nominated to fill a vacancy that has existed 
since January, 1997. In the intervening five years, President Clinton 
nominated Judge Jorge Rangel, a distinguished Hispanic attorney from 
Corpus Christi, to fill that vacancy. Despite his qualifications, and 
his unanimous rating of Well Qualified by the ABA, Judge Rangel never 
received a hearing from the Committee, and his nomination was returned 
to the President without Senate action at the end of 1998, after a 
fruitless wait of 15 months.
  On September 16, 1999, President Clinton nominated Enrique Moreno, 
another outstanding Hispanic attorney, to fill that same vacancy. Mr.

[[Page S8449]]

Moreno did not receive a hearing on his nomination either, for more 
than 17 months. President Bush withdrew the nomination of Enrique 
Moreno to the Fifth Circuit and later sent Justice Owen's name in its 
place. It was not until May of this year, at a hearing before Senator 
Schumer, that this committee heard from any of President Clinton's 
three unsuccessful nominees to the 5th Circuit. This May Mr. Moreno and 
Mr. Rangel testified along with a number of other Clinton nominees 
about their treatment by the Republican majority. Thus, Justice Owen is 
the third nominee to this vacancy and the first to be accorded a 
hearing before the Committee.
  In fact, when the Committee held its hearing on the nomination of 
Judge Edith Clement to the Fifth Circuit last fall, it was the first 
hearing on a Fifth Circuit nominee in seven years. By contrast, Justice 
Owen is the third nomination to the Fifth Circuit on which this 
committee has held a hearing in less than one year. In spite of the 
treatment by the former Republican majority of so many moderate 
judicial nominees of the previous President, we proceeded this July, as 
I said that we would, with a hearing on Justice Owen.
  Justice Owen is one among 16 Texas nominees who have been considered 
by this Committee since I became Chairman. So far, five District Court 
judges, four United State Attorneys, three United States Marshals, and 
three executive branch appointees from Texas have moved swiftly through 
the Judiciary Committee.
  When Justice Owen was initially nominated, the President changed the 
confirmation process from that used by Republican and Democratic 
Presidents for more than 50 years. That resulted in her ABA peer review 
not being received until later in the summer. As a result of a 
Republican objection to the Democratic leadership's request to retain 
all judicial nominations pending before the Senate through the August 
recess, the initial nomination of Justice Owen was required by Senate 
rules to be returned to the President without action. The Committee 
nonetheless took the unprecedented action of proceeding during the 
August recess to hold two hearings involving judicial nominations, 
including a nominee to the Court of Appeals for the Federal Circuit.

  In my efforts to accommodate a number of Republican Senators, 
including the Republican Leader, this Committee's ranking member, and 
at least four other Republican members of this Committee, I have 
scheduled hearings for nominees out of the order in which they were 
received. This has been a longstanding practice of the Committee.
  It is also a fact that less controversial nominations are easier to 
consider and are, by and large, able to be scheduled sooner than more 
controversial nominations. This is especially important in the 
circumstances that existed last summer at the time of the change in 
majority. At that time we faced what Republicans have now admitted had 
become a vacancies crisis. From January 1995 when the Republican 
majority assumed control of the confirmation process in the Senate 
until the shift in majority last summer, vacancies rose from 65 to 110 
and vacancies on the Courts of Appeals more than doubled from 16 to 33. 
I thought it important to make as much progress as quickly as we could 
in the time available to us last year, and we did. Evaluating the 
record of a nominee whose record raises questions as serious as those 
about Justice Owen simply takes longer.
  The responsibility to advice and consent on the President's nominees 
is one that I take seriously and that this committee takes seriously. 
Justice Owen's nomination to the Court of Appeals has been given a fair 
hearing and a fair process before this Committee. I thank all Members 
of the Committee for their fairness. Those who have had concerns have 
raised them and have heard the nominee's responses, in private 
meetings, at her public hearing and in written follow-up questions.
  I would particularly like to commend Senator Feinstein for her 
evenhandedness in chairing the hearing for Justice Owen. It was a long 
day, in which nearly every Senator who is a member of this Committee 
came to question Justice Owen, and Senator Feinstein handled it with 
patience and fairness.
  I am proud that Democrats and most Republicans have kept to the 
merits of this nomination, and have not chosen to vilify, castigate, 
unfairly characterize and condemn without basis Senators working 
conscientiously to fulfill their constitutional responsibilities. To 
those who will take this occasion to engage in name-calling or 
accusations of political posturing, I can only express my 
disappointment.
  The constitutional responsibility to advise and consent to the 
President's life tenure judicial nominees is not an occasion to rubber 
stamp. The nomination of Justice Priscilla Owen presents a number of 
areas of serious concern to me.
  The first area of concern to me is Justice Owen's extremism even 
among a conservative Supreme Court of Texas. The conservative 
Republican majority of the Texas Supreme Court has gone out of its way 
to criticize Justice Owen and the dissents she joined in ways that are 
highly unusual and that highlight her ends-oriented activism. A number 
of Texas Supreme Court Justices have pointed out how far from the 
language of statute she has strayed in her attempts to push the law 
beyond what the legislature intended.
  One example is the majority opinion in Weiner v. Wasson, 900 S.W.2d 
316, Tex. 1995. In this case, Justice Owen wrote a dissent advocating a 
ruling against a medical malpractice plaintiff injured while he was 
still a minor. The issue was the constitutionality of a State law 
requiring minors to file medical malpractice actions before reaching 
the age of majority, or risk being outside the statute of limitations. 
Of interest is the majority's discussion of the importance of abiding 
by a prior Texas Supreme Court decision unanimously striking down a 
previous version of the statute. In what reads as a lecture to the 
dissent, then-Justice John Cornyn, the current Texas Attorney General 
and Republican nominee for the U.S. Senate, explains on behalf of the 
majority:

       Generally, we adhere to our precedents for reasons of 
     efficiency, fairness, and legitimacy. First, if we did not 
     follow our own decisions, no issue could ever be considered 
     resolved. The potential volume of speculative relitigation 
     under such circumstances alone ought to persuade us that 
     stare decisis is a sound policy. Secondly, we should give due 
     consideration to the settled expectations of litigants like 
     Emmanuel Wasson, who have justifiably relied on the 
     principles articulated in [the previous case]. . . . Finally, 
     under our form of government, the legitimacy of the judiciary 
     rests in large part upon a stable and predictable 
     decisionmaking process that differs dramatically from that 
     properly employed by the political branches of government. 
     Id. at 12-13. (Citations omitted.)

  According to the conservative majority on the Texas Supreme Court, 
Justice Owen went out of her way to ignore precedent and would have 
ruled for the defendants. The conservative Republican majority followed 
precedent and the doctrine of stare decisis.
  In Montgomery Independent School District v. Davis, 34 S.W. 3d 559 
(Tex. 2000), Justice Owen wrote another dissent which drew fire from a 
conservative Republican majority, this time for her disregard for 
legislative language. In a challenge by a teacher who did not receive 
reappointment to her position, the majority found that the school board 
had exceeded its authority when it disregarded the Texas Education Code 
and tried to overrule a hearing examiner's decision on the matter. 
Justice Owen's dissent advocated for an interpretation contrary to the 
language of the applicable statute. The majority, which included 
Alberto Gonzales and two other appointees of then-Governor Bush, was 
quite explicit about its view that Justice Owen's position disregarded 
the law:

       The dissenting opinion misconceives the hearing examiner's 
     role in the . . . process by stating that the hearing 
     examiner `refused' to make findings on the evidence the Board 
     relies on to support its additional findings. As we explained 
     above, nothing in the statute requires the hearing examiner 
     to make findings on matters of which he is unpersuaded. . . . 
     Id. at 25-26.

  The majority also noted that:

       The dissenting opinion's misconception of the hearing 
     examiner's role stems from its disregard of the procedural 
     elements the Legislature established in subchapter F to 
     ensure that the hearing-examiner process is fair and 
     efficient for both teachers and school boards. The 
     Legislature maintained

[[Page S8450]]

     local control by giving school boards alone the option to 
     choose the hearing-examiner process in nonrenewal 
     proceedings. . . . By resolving conflicts in disputed 
     evidence, ignoring credibility issues, and essentially 
     stepping into the shoes of the factfinder to reach a specific 
     result, the dissenting opinion not only disregards the 
     procedural limitations in the statute but takes a position 
     even more extreme than that argued for by the board. . . .'' 
     Id. at 28.

  Collins v. Ison-Newsome, 73 S.W.3d 178, is yet another case where a 
dissent, joined by Justice Owen, was roundly criticized by the 
Republican majority of the Texas Supreme Court. The Court cogently 
stated the legal basis for its conclusion that it had no jurisdiction 
to decide the matter before it, and as in other opinions where Justice 
Owen was in dissent, took time to explicitly criticize the dissent's 
positions as contrary to the clear letter of the law.
  At issue was whether the Supreme Court had the proper ``conflicts 
jurisdiction'' to hear the interlocutory appeal of school officials 
being sued for defamation. The majority explained that it did not 
because published lower court decisions do not create the necessary 
conflict between themselves. The arguments put forth by the dissent, in 
which Justice Owen joined, offended the majority, and they made their 
views known, writing:

       The dissenting opinion agrees that ``because this is an 
     interlocutory appeal . . . this Court's jurisdiction is 
     limited,'' but then argues for the exact opposite proposition 
     . . . This argument defies the Legislature's clear and 
     express limits on our jurisdiction. . . . The author of the 
     dissenting opinion has written previously that we should take 
     a broader approach to the conflicts-jurisdiction standard. 
     But a majority of the Court continues to abide by the 
     Legislature's clear limits on our interlocutory-appeal 
     jurisdiction. Id. at 182.

  They continue:

       [T]he dissenting opinion's reading of Government Code sec. 
     22.225(c) conflates conflicts jurisdiction with dissent 
     jurisdiction, thereby erasing any distinction between these 
     two separate bases for jurisdiction. The Legislature 
     identified them as distinct bases for jurisdiction in 
     sections 22.001(a)(1) and (a)(2), and section 22.225(c) 
     refers specifically to the two separate provisions of section 
     22.001(a) providing for conflicts and dissent jurisdiction. . 
     . . [W]e cannot simply ignore the legislative limits on our 
     jurisdiction, and not even Petitioners argue that we should 
     do so on this basis. Id. at 183.

  Again, Justice Owen joined a dissent that the Republican majority 
described as defiant of legislative intent and in disregard of 
legislatively drawn limits.
  Some of the most striking examples of criticism of Justice Owen's 
writings, or the dissents and concurrences she joins, come in a series 
of parental notification cases heard in 2000. They include:

       In re Jane Doe 1, where the majority included an extremely 
     unusual section explaining its view of the proper role of 
     judges, admonishing the dissent joined by Justice Owen for 
     going beyond its duty to interpret the law in an attempt to 
     fashion policy.
       Giving a pointed critique of the dissenters, the majority 
     explained that, ``In reaching the decision to grant Jane 
     Doe's application, we have put aside our personal viewpoints 
     and endeavored to do our job as judges--that is, to interpret 
     and apply the Legislature's will as it has been expressed in 
     the statute.'' 19 S.W.3d 346.
       In a separate concurrence, Justice Alberto Gonzales wrote 
     that to the construe law as the dissent did, ``would be an 
     unconscionable act of judicial activism.''
       In re Jane Doe 3, Justice Enoch writes specifically to 
     rebuke Justice Owen and her fellow dissenters for 
     misconstruing the legislature's definition of the sort of 
     abuse that may occur when parents are notified of a minor's 
     intent to have an abortion, saying, ``abuse is abuse; it is 
     neither to be trifled with nor its severity to be second 
     guessed.''

  In one case that is perhaps the exception that proves the rule, 
Justice Owen wrote a majority that was bitterly criticized by the 
dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 328, 
(Tex. 2001), Justice Owen wrote a majority opinion finding that the 
city did not have to give the Austin American-Statesman a report 
prepared by a consulting expert in connection with pending and 
anticipated litigation because such information was expressly made 
confidential under other law, namely the Texas Rules of Civil 
Procedure.
  The dissent is extremely critical of Justice Owen's opinion, citing 
the Texas law's strong preference for disclosure and liberal 
construction. Accusing her of activism, Justice Abbott, joined by Chief 
Justice Phillips and Justice Baker, notes that the legislature, 
``expressly identified eighteen categories of information that are 
'public information' and that must be disclosed upon request . . . 
[sec. (a)] The Legislature attempted to safeguard its policy of open 
records by adding subsection (b), which limits courts' encroachment on 
its legislatively established policy decisions.'' Id. at 338. The 
dissent further protests:

     [b]ut if this Court has the power to broaden by judicial rule 
     the categories of information that are `confidential under 
     other law,' then subsection (b) is eviscerated from the 
     statute. By determining what information falls outside 
     subsection (a)'s scope, this Court may evade the mandates of 
     subsection (b) and order information withheld whenever it 
     sees fit. This not only contradicts the spirit and language 
     of subsection (b), it guts it. Id.

  Finally, the opinion concluded by asserting that Justice Owen's 
interpretation, ``abandons strict construction and rewrites the statute 
to eliminate subsection (b)'s restrictions.'' Id. at 343.
  These examples, together with the unusually harsh language directed 
at Justice Owen's position by the majority in the Doe cases, show a 
judge out of step with the conservative Republican majority of the 
Texas Supreme Court, a majority not afraid to explain the danger of her 
activist views.
  Ends-Oriented Judicial Activism Showing Bias Against Consumers, 
Victims, Individuals.--I am also greatly concerned about Justice Owen's 
record of ends-oriented decision making as a Justice on the Texas 
Supreme Court. As one reads case after case, particularly those in 
which she was the sole dissenter or dissented with the extreme right 
wing of the Court, her pattern of activism becomes clear. Her legal 
views in so many cases involving statutory interpretation simply cannot 
be reconciled with the plain meaning of the statute, the legislative 
intent, or the majority's interpretation, leading to the conclusion 
that she sets out to justify some pre-conceived idea of what the law 
ought to mean. This is not an appropriate way for a judge to make 
decisions. This is a judge whose record reflects that she is willing 
and sometimes eager to make law from the bench.
  Justice Owen's activism and extremism is noteworthy in a variety of 
cases, including those dealing with business interests, malpractice, 
access to public information, employment discrimination and Texas 
Supreme Court jurisdiction, in which she writes against individual 
plaintiffs time and time again, in seeming contradiction of the law as 
written.
  One of the cases where this trend is evident is FM Properties v. City 
of Austin, 22 S.W. 3d 868 (Tex. 1998). I asked Justice Owen about this 
1998 environmental case at her hearing. In her dissent from a 6-3 
ruling, in which Justice Alberto Gonzales was among the majority, 
Justice Owen showed her willingness to rule in favor of large private 
landowners against the clear public interest in maintaining a fair 
regulatory process and clean water. Her dissent, which the majority 
characterized as, ``nothing more than inflammatory rhetoric,'' was an 
attempt to favor big landowners.
  In this case, the Texas Supreme Court found that a section of the 
Texas Water Code allowing certain private owners of large tracts of 
land to create ``water quality zones,'' and write their own water 
quality regulations and plans, violated the Texas Constitution because 
it improperly delegated legislative power to private entities. The 
Court found that the Water Code section gave the private landowners, 
``legislative duties and powers, the exercise of which may adversely 
affect public interests, including the constitutionally-protected 
public interest in water quality.'' Id. at 876-77. The Court also found 
that certain aspects of the Code and the factors surrounding its 
implementation weighed against the delegation of power, including the 
lack of meaningful government review, the lack of adequate 
representation of citizens affected by the private owners' actions, the 
breadth of the delegation, and the big landowners' obvious interest in 
maximizing their own profits and minimizing their own costs.
  The majority offered a strong opinion, detailing its legal reasoning 
and explaining the dangers of offering too much legislative power to 
private entities. By contrast, in her dissent, Justice Owen argued 
that, ``[w]hile the Constitution certainly permits the

[[Page S8451]]

Legislature to enact laws that preserve and conserve the State's 
natural resources, there is nothing in the Constitution that requires 
the Legislature to exercise that power in any particular manner,'' 
ignoring entirely the possibility of an unconstitutional delegation of 
power. Id. at 889. Her view strongly favored large business interests 
to the clear detriment of the public interest, and against the 
persuasive legal arguments of a majority of the Court.
  When I asked her about this case at her hearing, I found her answer 
perplexing. In a way that she did not argue in her written dissent, at 
her hearing Justice Owen attempted to cast the FM Properties case not 
as, ``a fight between and City of Austin and big business, but in all 
honesty, . . . really a fight about . . . the State of Texas versus the 
City of Austin.'' Transcript at 69. In the written dissent however, she 
began by stating the, ``importance of this case to private property 
rights and the separation of powers between the judicial and 
legislative branches . . .'', and went on to decry the Court's decision 
as one that, ``will impair all manner of property rights.'' 22 S.W. 3d 
at 889. At the time she wrote her dissent, Justice Owen was certainly 
clear about the meaning of this case--property rights for corporations.
  Another case that concerned me is the case of GTE Southwest, Inc. v. 
Bruce, 990 S.W.2d 605, where Justice Owen wrote in favor of GTE in a 
lawsuit by employees for intentional infliction of emotional distress. 
The rest of the Court held that three employees subjected to what the 
majority characterized as ``constant humiliating and abusive behavior 
of their supervisor'' were entitled to the jury verdict in their favor. 
Despite the Court's recitation of an exhaustive list of sickening 
behavior by the supervisor, and its clear application of Texas law to 
those facts, Justice Owen wrote a concurring opinion to explain her 
difference of opinion on the key legal issue in the case--whether the 
behavior in evidence met the legal standard for intentional infliction 
of emotional distress.
  Justice Owen contended that the conduct was not, as the standard 
requires, ``so outrageous in character, and so extreme in degree, as to 
go beyond all possible bounds of decency . . .'' Id. at 621. The 
majority opinion shows Justice Owen's concurrence advocating an 
inexplicable point of view that ignores the facts in evidence in order 
to reach a predetermined outcome in the corporation's favor.
  At her hearing, in answer to Senator Edwards' questions about this 
case, Justice Owen again gave an explanation not to be found in her 
written views. She told him that she agreed with the majority's 
holding, and wrote separately only to make sure that future litigants 
would not be confused and think that out of context, any one of the 
outrages suffered by the plaintiffs would not support a judgment. 
Looking again at her dissent, I do not see why, if that was what she 
truly intended, she did not say so in language plain enough to be 
understood, or why she thought it necessary to write and say it in the 
first place. It is a somewhat curious distinction to make--to advocate 
that in a tort case a judge should write a separate concurrence to 
explain which part of the plaintiff's case, standing alone, would not 
support a finding of liability. Neither her written concurrence, nor 
her answers in explanation after the fact, is satisfactory explanation 
of her position in this case.

  In City of Garland v. Dallas Morning News, 22 S.W. 3d 351 (Tex. 
2000), Justice Owen dissented from a majority opinion and, again, it is 
difficult to justify her views other than as based on a desire to reach 
a particular outcome. The majority upheld a decision giving the 
newspaper access to a document outlining the reasons why the city's 
finance director was going to be fired. Justice Owen made two 
arguments: that because the document was considered a draft it was not 
subject to disclosure, and that the document was exempt from disclosure 
because it was part of policy making. Both of these exceptions were so 
large as to swallow the rule requiring disclosure. The majority rightly 
points out that if Justice Owen's views prevailed, almost any document 
could be labeled draft to shield it from public view. Moreover, to call 
a personnel decision a part of policy making is such an expansive 
interpretation it would leave little that would not be ``policy''.
  Quantum Chemical v. Toennies, 47 S.W. 3d 473 (Tex. 2001), is another 
troubling case where Justice Owen joined a dissent advocating an 
activist interpretation of a clearly written statute. In this age 
discrimination suit brought under the Texas civil rights statute, the 
relevant parts of which were modeled on Title VII of the federal Civil 
Rights Act (and its amendments), the appeal to the Texas Supreme Court 
centered on the standard of causation necessary for a finding for the 
plaintiff. The plaintiff argued, and the five justices in the majority 
agreed, that the plain meaning of the statute must be followed, and 
that the plaintiff could prove an unlawful employment practice by 
showing that discrimination was ``a motivating factor.'' The employer 
corporation argued, and Justices Hecht and Owen agreed, that the plain 
meaning could be discarded in favor of a more tortured and unnecessary 
reading of the statute, and that the plaintiff must show that 
discrimination was ``the motivating factor,'' in order to recover 
damages.
  The portion of Title VII on which the majority relies for its 
interpretation was part of Congress's 1991 fix to the United States 
Supreme Court's opinion in the Price Waterhouse case, which held that 
an employer could avoid liability if the plaintiff could not show 
discrimination was ``the'' motivating factor. Congress's fix, in 
Section 107 of the Civil Rights Act of 1991, does not specify whether 
the motivating factor standard applies to both sorts of discrimination 
cases, the so-called ``mixed motive'' cases as well as the ``pretext'' 
cases.
  The Texas majority concluded that they must rely on the plain 
language of the statute as amended, which could not be any clearer that 
under Title VII discrimination can be shown to be ``a'' motivating 
factor. Justice Owen joined Justice Hecht in claiming that federal case 
law is clear (in favor of their view), and opted for a reading of the 
statute that would turn it into its polar opposite, forcing plaintiffs 
into just the situation legislators were trying to avoid. This example 
of Justice Owen's desire to change the law from the bench, instead of 
interpret it, fits President Bush's definition of activism to a ``T''.
  Justice Owen has also demonstrated her tendency toward ends-oriented 
decision making quite clearly in a series of dissents and concurrences 
in cases involving a Texas law providing for a judicial bypass of 
parental notification requirements for minors seeking abortions.
  The most striking example is Justice Owen's expression of 
disagreement with the majority's decision on key legal issues in Doe 1. 
She strongly disagreed with the majority's holding on what a minor 
would have to show in order to establish that she was, as the statute 
requires, ``sufficiently well informed'' to make the decision on her 
own. While the conservative Republican majority laid out a well-
reasoned test for this element of the law, based on the plain meaning 
of the statute and well-cited case law, Justice Owen inserted elements 
found in neither authority. Specifically, Justice Owen insisted that 
the majority's requirement that the minor be ``aware of the emotional 
and psychological aspects of undergoing an abortion'' was not 
sufficient and that among other requirements with no basis in the law, 
she, ``would require . . . [that the minor] should . . . indicate to 
the court that she is aware of and has considered that there are 
philosophic, social, moral, and religious arguments that can be brought 
to bear when considering abortion.'' In re Doe 1, 19 S.W. 3d 249, 256 
(Tex. 2000)
  In her written concurrence, Justice Owen indicated, through legal 
citation, that support for this proposition could be found in a 
particular page of the Supreme Court's opinion in Planned Parenthood v. 
Casey. However, when one looks at that portion of the Casey decision, 
one finds no mention of requiring a minor to acknowledge religious or 
moral arguments. The passage talks instead about the ability of a State 
to, ``enact rules and regulations designed to encourage her to know 
that there are philosophic and social arguments of great weight that 
can be brought to bear,'' Casey at 872. Justice Owen's reliance on this 
portion of a United

[[Page S8452]]

States Supreme Court opinion to rewrite Texas law was simply wrong.
  As she did in answer to questions about a couple of other cases at 
her hearing, Justice Owen tried to explain away this problem with an 
after the fact justification. She told Senator Cantwell that the 
reference to religion was not to be found in Casey after all, but in 
another U.S. Supreme Court case, H.L. v. Matheson. She explained that 
in, ``Matheson they talk about that for some people it raises profound 
moral and religious concerns, and they're talking about the 
desirability or the State's interest in these kinds of considerations 
in making an informed decision.'' Transcript at 172. But again, on 
reading Matheson, one sees that the only mention of religion comes in a 
quotation meant to explain why the parents of the minor are due 
notification, not about the contours of what the government may require 
someone to prove to show she was fully well informed. Her reliance on 
Matheson for her proposed rewrite of the law is just as faulty as her 
reliance on Casey. Neither one supports her reading of the law. She 
simply tries a little bit of legal smoke and mirrors to make it appear 
as if they did. This is the sort of ends-oriented decision making that 
destroys the belief of a citizen in a fair legal system. And most 
troubling of all was her indicating to Senator Feinstein that she still 
views her dissents in the Doe cases as the proper reading and 
construction of the Texas statute.
  Last May, President Bush said that his standard for judging judicial 
nominees would be that they ``share a commitment to follow and apply 
the law, not to make law from the bench.'' Priscilla Owen's record, as 
I have described it today, does not qualify her under that standard for 
a lifetime appointment to the Federal bench.
  The President has often spoken of judicial activism without 
acknowledging that ends-oriented decision making can come easily to 
ideological conservative nominees. In the case of Priscilla Owen, we 
see a perfect example of such an approach to the law, and I cannot 
support it.
  As I said earlier, when the President sends us a nominee who raises 
concerns over qualifications or integrity or who has a misunderstanding 
of the appropriate role of a federal judge, I will make my concerns 
known. This is one of those times. In his selection of Priscilla Owen 
for the Fifth Circuit, the President and his advisors are trying to do 
to the Fifth Circuit what they did to the Texas Supreme Court. Plucked 
from a law firm by political consultant Karl Rove, Justice Owen ran as 
a conservative, pro-business candidate for the Texas Supreme Court, and 
she received ample support from the business community. She fulfilled 
her promise, becoming the most conservative judge on a conservative 
court, standing out for her ends-oriented, extremist decision making. 
Now, on a bigger stage, the President and Mr. Rove want a repeat 
performance: sending Justice Owen to a court one step below the Supreme 
Court of the United States, attempting to skew its decisions out of 
step with the mainstream.
  Before and after he took office, President Bush said he wanted to be 
a uniter and not a divider, yet he has sent the Senate several nominees 
who divide the Senate and the American people. Over the last 14 months, 
the Judiciary Committee has exceeded the pace of recent years in 
approving more than six dozen of the President's judicial nominees--
most of them, conservative Republicans. The Senate by now has confirmed 
73 of them. This committee and the Senate have made the judgment that 
those nominees will fulfill their duties to act fairly and impartially. 
I urge the President to choose nominees who fit that profile, not the 
profile of Justice Owen.
  The oath taken by Federal judges affirms their commitment to 
``administer justice without respect to persons, and do equal right to 
the poor and to the rich.'' No one who enters a federal courtroom 
should have to wonder whether he or she will be fairly heard by the 
judge. Justice Priscilla Owen's record shows me that she has not 
fulfilled that commitment on the Supreme Court of Texas, and I cannot 
vote to confirm her for this appointment to one of the highest courts 
in the land.

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