The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It

Introduction

The nomination of Texas Supreme Court Justice Priscilla Owen to the United States Court of Appeals for the Fifth Circuit has generated significant controversy. Shortly after her nomination, the Houston Chronicle characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." B. Roth, "Bush Submits 11 Names for Federal Bench: Texan Among Nominees," Houston Chronicle (May 10, 2001) at A1. Groups in Texas have documented serious concerns about Owen's rulings and her record. As 19 Texas civil rights, women's rights, labor, consumer, and other organizations recently concluded, "Owen's rulings often favor the interest of corporate Texas or government at the expense of ordinary Texans." This report addresses one specific, significant aspect of Owen's judicial record: her dissents as a state Supreme Court Justice.

As with any state Supreme Court, many Texas Supreme Court rulings are decided without dissent. Compared with her colleagues, however, Owen has dissented frequently, and in a right-wing activist direction on a conservative court. A review of the Court's written opinions since Owen joined the court in January, 1995 through June, 2002 confirms the conclusion of Texans for Public Justice that Owen is the second most frequent dissenter among the justices currently serving on the Court. More important, the content of Owen's dissents demonstrate that she is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the Court appointed by then-Governor Bush, particularly in cases dealing with individual rights.

In fact, many of Owen's dissents reveal a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents she has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. In fact, even current White House Counsel Alberto Gonzales criticized a dissent joined by Owen in one case as "an unconscionable act of judicial activism." In another case, his majority opinion called a dissent by Owen an attempt to "judicially amend" a Texas statute. Her dissents demonstrate that, for Owen, ideology trumps her responsibility as a judge to interpret the law.

This report reviews dissents by Owen in several specific areas: discrimination and employee rights; reproductive rights; environmental issues and public information rights; and consumer and citizen rights. This record of dissents strongly supports the conclusion that the Senate Judiciary Committee should reject Owen's confirmation to the Fifth Circuit.

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