[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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