2nd Hearing Confirms Case Against Priscilla Owen

Footnotes

1. “Second Chance on Judges,” The Washington Post (Nov. 8, 2002), A30.

2. Letter from Texas Ad Hoc Coalition on Judicial Nominees to Honorable George W. Bush (Jan. 2, 2003).

3. Indeed, as Senator Feingold observed on March 13, it is particularly troubling that Owen received a second hearing, while other controversial circuit court nominees –- Deborah Cook, John Roberts, and Jeffrey Sutton –- had been given a single, joint hearing by the Committee in late January. Because questioning focused largely on states’ rights activist Sutton, the joint hearing effectively prevented adequate questioning of Cook and Roberts. As Senator Feingold explained, although Democratic members of the Judiciary Committee had repeatedly requested that Cook and Roberts return for another hearing, not only was their request ignored, but Senator Hatch also pushed through a vote on these nominees over the objection of every Democrat on the Committee, in violation of Committee Rule IV. As Senator Feingold concluded, this conduct was not only inconsistent, but also an apparent exercise of “raw partisan power” to pursue a “forced march” on judicial nominations.

4. For a detailed discussion of why Justice Owen’s testimony at her July 2002 hearing did not dispel and in fact reinforced the serious concerns about her record, also including questions about the so-called “clerk perks” controversy that raised additional concerns about her sensitivity to ethical issues, see People For the American Way, “Why the Senate Judiciary Committee Was Right to Reject the Confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit,” Jan. 23, 2003 (hereafter “PFAW 2003 Owen Report”), and “Confirmation Hearing Reinforces Serious Concerns About Justice Priscilla Owen’s Record,” July 30, 2002 (hereafter “PFAW 2002 Post-Hearing Report”). The attached Appendix of resources concerning Justice Owen’s record contains internet locators for these and other reports discussed in this report.

5. For a detailed discussion of such cases, see PFAW 2003 Owen Report, and People For the American Way, “The Dissents of Priscilla Owen: A Judicial Nominee Who Would Make the Law, Not Interpret It,” July 16, 2002 (hereafter “PFAW 2002 Owen Report”).

6. Terry Eastland, “Priscilla Owen’s ‘Activist’ Credentials,” The Weekly Standard (July 22, 2002).

7. Senate Judiciary Committee, Hearing on Judicial Nominations, July 23, 2002, Federal News Service Transcript (PFAW pagination), at 6.

8. Neil Lewis, “Debate on Court Nominee Centers on Abortion,” New York Times, July 22, 2002 (emphasis added). See also Alberto Gonzales, “Justice Owen is a Jurist of Integrity,” Dallas Morning News, July 16, 2002 (“[s]ome have questioned Justice Owen’s qualifications because she and I disagreed at times on the interpretation of a new Texas parental notification statute in 2000”).

9. Neil Lewis, “More Battles Loom Over Bush’s Nominees for Judgeships,” New York Times, April 7, 2002 (emphasis added). As noted specifically after the March 13 hearing, “Mr. Gonzales has repeatedly declined to say that his remarks were not in reference to Justice Owen.” Neil Lewis, “Judicial Nominee Gets a Rare Second Chance,” New York Times (March 14, 2003).

10. Other cases in which Gonzales wrote or joined criticisms of opinions written or joined by Owen include In re Jane Doe 3, In re Jane Doe 4, Texas Dept. of Transportation v. Able, Texas Farmers Ins. Co. v. Murphy, FM Properties Operating Co. v. City of Austin, City of Garland v. Dallas Morning News, Stier v. Reading & Bates Corp., and In re Masonite Corp. For a discussion of these cases, see PFAW 2002 and 2003 Owen Reports.

11. For other examples of Owen’s colleagues’ criticisms of her opinions, see also PFAW 2002 and 2003 Owen Reports.

12. See cases cited in PFAW 2002 and 2003 Owen Reports.

13. See PFAW 2003 Owen Report and 2002 Post-Hearing Report.

14. Id.

15. In her answers to Senator Feinstein, Owen also tried to rely on a passage in the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to justify her insertion of the “religious awareness” requirement into the Texas statute. In Casey, the plurality commented that one justification for a 24-hour waiting period for abortions for most minors is that it may provide a minor and her parents the opportunity to consult in private and “discuss the consequences of her decision in the context of the values and moral principles of their family.” Id. at 899-900. As with Matheson, however, this passage has nothing to do with the interpretation of a bypass statute, but simply explains a possible justification for a waiting period provision.

16. For a detailed discussion of such cases, see PFAW 2002 and 2003 Owen Reports.

17. See PFAW 2003 Owen Report and 2002 Post-Hearing Report.

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