Prior to Owen’s confirmation hearing, People For the American Way and other organizations concerned about Justice Owen’s record as a judicial activist had observed that she has been criticized by a number of her colleagues on the Texas Supreme Court for her efforts to remake the law from the bench. That criticism has often come from Justices appointed by then-Governor Bush, including Alberto Gonzales, who currently serves as White House Counsel and who, in that capacity, has defended the Owen nomination. Measured by his opinions when they were both on the Court, however, Gonzales’ view was very different just a few years ago. For example, in one of the abortion cases in which Owen dissented and Gonzales was in the majority, Gonzales specifically wrote in a separate concurring opinion that adopting the dissenters’ narrow view of the Texas parental notification law “would be an unconscionable act of judicial activism.” In re Jane Doe 1(II), 19 S.W.3d 346, 366 (Tex. 2000) (emphasis added).
At Owen’s confirmation hearing, however, in an effort at historical revisionism being echoed by such other Owen supporters as C. Boyden Gray and Terry Eastland, Senator Hatch claimed that Gonzales was not referring to Owen’s dissent in his harsh criticism of the dissenters in Doe 1(II), but “rather to the dissent of another colleague in the same case.”28 Not only does a review of Gonzales’ concurring opinion in the case demonstrate that Senator Hatch was incorrect (for example, Gonzales’ concurrence refers to “[t]he dissenting opinions,” 19 S.W.3d at 365, plural), but Gonzales himself to our knowledge has never denied that his concurrence was directed at all the dissenters, including Owen, although he has been defending Owen in the media and has had every opportunity to do so. To the contrary, Gonzales’ own recent remarks about this very issue, trying to minimize the importance of what he said in that case, acknowledge that Owen was a target of his concurrence:
He [Gonazles] said his comments in the abortion case were the result of a strong disagreement over how to interpret a new law. “In this case, we both looked at the statute and disagreed, but this in no way detracts from my belief that she will be a fine judge,” he said.29This is consistent with remarks made several months ago by a spokesperson for Gonzales:
[O]pponents of Justice Owen are certain to recall a dispute that arose in 2000, when Mr. Gonzales was a fellow justice on the Texas court and Justice Owen was one of three court members who wrote dissents in a case involving a new Texas law regarding parental notification of abortions among minors. At the time, Mr. Gonzales suggested that the narrow reading of the law by the dissenters was ‘an unconscionable act of judicial activism.’ Anne Womack, a spokesman for Mr. Gonzales, minimized the significance of the disagreement. ‘Judge Gonzales’s opinion and Justice Owen’s dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute,’ Ms. Womack said.30Moreover, as we have previously documented, Doe 1(II) was only one of about a dozen cases in which Justice Gonzales criticized or joined criticism of Justice Owen’s efforts to make law from the bench. For example, in Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999), responding to a certified question from the U.S. Court of Appeals for the Fifth Circuit, Gonzales wrote the majority decision that held that a Texas law requires manufacturers of harmful products to indemnify sellers who defend themselves from litigation related to their sales of these and similar products. A dissent authored by Owen would have effectively rewritten Texas law to preclude such third-party relief in some cases. Gonzales wrote that adopting the manufacturer’s position, as Owen argued, would improperly require the court to “judicially amend the statute.” Id. at 867 (emphasis added). Other examples of Gonzales’ criticism of Owen’s judicial activism and efforts to ignore the law may be found in our July 16 report about Owen’s dissents (see n.1, supra), as well as in our July 22 report entitled “Alberto Gonzales v. Priscilla Owen: Alberto Gonzales’ Criticism of Priscilla Owen on the Texas Supreme Court Bench.”31
The efforts by Senator Hatch at Priscilla Owen’s confirmation hearing, and similar efforts by some of her other supporters, to rewrite the Texas Supreme Court record simply cannot withstand scrutiny. The fact remains that Justice Owen, the second most frequent dissenter on that Court, has been criticized by her own conservative colleagues, including then-Justice Gonzales and others appointed by then-Governor Bush, for her attempts to rewrite the law from the bench.
28 Trans. at 6.
29 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”).
30 Neil Lewis, “More Battles Loom Over Bush’s Nominees for Judgeships,” New York Times, April 7, 2002 (emphasis added).
31 This report is available at here.