A Potential Filibuster Against Priscilla Owen

The appeals court nomination of Texas Supreme Court Justice Priscilla Owen was rejected by the Senate Judiciary Committee last year after a fair and in-depth public hearing. President Bush’s January renomination of Owen to the same appeals court for which she had already been rejected by the Judiciary Committee was unprecedented. Until the administration’s in-your-face renominations of Owen and Charles Pickering despite their rejections last year, no administration had ever disrespected the Senate’s role by renominating a rejected appeals court nominee.

This year’s hearing on Owen’s nomination provided no new information contradicting the already clear record of her right-wing judicial activism. At the March 13 hearing, Owen joined Hatch and other Republican senators in an effort to explain away three serious concerns that helped lead to the rejection of her nomination: the criticism by White House Counsel Alberto Gonzales and other Bush appointees to the Texas Supreme Court of a number of Owen’s frequent dissents and attempts at judicial activism; Owen’s judicial activism in attempting to impose additional barriers on the exercise of the right to reproductive choice; and Owen’s frequent dissents and efforts at judicial activism in favor of corporate and other interests in cases in which the majority had protected the rights of consumers and other citizens.

Senator Hatch provocatively entitled the March 13 hearing “Setting the Record Straight.” In fact, however, the record was no different after the March 2003 hearing than it was after the hearing in July 2002. Justice Owen’s record demonstrates that she is a right-wing judicial activist who would allow her ideology to trump her responsibilities as a judge to follow the law, directly contrary to President Bush’s asserted goal of appointing judges who would interpret the law, not make it.

Owen’s supporters had previously tried to distance her from Gonzales’ criticism in a reproductive rights case by claiming that his charge that she was advocating an “unconscionable act of judicial activism” referred to the dissents of other justices, but not to hers. At Owen’s first confirmation hearing, Hatch joined this revisionist bandwagon, claiming that Gonzales was not referring to Owen’s dissent “rather to the dissent of another colleague in the same case.”

At her March 13 hearing, however, Justice Owen contradicted Hatch with a more sweeping claim that not only was Gonzales’ “judicial activism” comment not a reference to her dissent but also that Gonzales had not been referring to “any” of the dissents when he issued that charge. The clear language of Gonzales’ opinion simply does not support this remarkable assertion. Owen’s claim stands in sharp contrast to what Alberto Gonzales himself has said –- and not said -- about this matter. Indeed, remarks by Gonzales in his current capacity as White House counsel as well as his spokesperson have acknowledged that Owen was a target of his criticism when they served together on the Texas Supreme Court.

Owen also claimed at her March 13 hearing that she was aware of criticism by Gonzales only regarding the reproductive rights case. This is a remarkable claim given that Gonzales, in the relatively short time he served with Owen on the Texas Supreme Court, wrote or joined almost a dozen opinions sharply criticizing opinions written or joined by Owen on the court in a variety of cases concerning the rights of consumers and other citizens. In most of these cases, Gonzales, a strong conservative on the court, was part of the majority that rejected ultra-conservative Owen dissents as ignoring the plain meaning of the law or otherwise engaging in improper judicial activism to try to reach a particular result.

Owen’s confirmation is opposed by a broad range of state and national organizations, including more than two dozen Texas groups that had called on President Bush not to renominate Owen, explaining that her opinions have been “extreme and often directly at odds with established rights and protections enjoyed by all Texans.” Nothing at Owen’s most recent hearing dispelled those concerns or changed the fact that it is her own colleagues who have said, in multiple cases, that she has tried to “judicially amend” or “write out” or “disregard” or “defy” the words of state statutes, or that she has tried to “radically depart” from prior precedent or engage in “judicial sleight of hand” to circumvent the state Constitution.

These numerous statements by conservative judges on a conservative court, some appointed by President Bush himself, continue to demonstrate that Owen’s record of right-wing judicial activism would seriously endanger Americans’ rights if she is confirmed to a lifetime position on the Fifth Circuit.

Sen. Leahy recently described Owen this way: “Justice Owen was plucked from a law firm by political consultant Karl Rove. She ran as a conservative pro-business candidate for the Texas Supreme Court.... she became the most conservative judge on a conservative court. She stood out for ends-oriented extremist decisionmaking. Now she is being asked to be placed in a lifetime appointment one step below the Supreme Court.”

Justice Owen’s extreme record, the damage she could cause as a right-wing activist at the appeals court level, and the Bush administration’s unprecedented post-rejection effort to push her onto the appeals court all merit strong opposition by Senate Democrats, including the use of the filibuster.

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