CFJ: Gonzales Never Accused Priscilla Owen of Judicial Activism

The Committee for Justice, which defends and promotes constitutionalist judicial nominees, today clarified the record regarding Texas Supreme Court Justice Priscilla Owen's record. Owen is now a nominee to the Fifth Circuit Court of Appeals.

In today's LA Times, liberal law Prof. Jonathan Turley opines that nine of the twelve appellate nominees currently threatened with Democratic filibuster are perfectly mainstream and do not deserve to be blocked. Turley cites three, however, including Priscilla Owen, who he says are worthy of filibuster. Turley argues Owen's nomination was, "indelibly marked by a prior public rebuke…[when] Atty. Gen. Alberto R. Gonzales, her colleague on the Texas Supreme Court, said she engaged in ‘an unconscionable act of judicial activism' in restricting a minor's access to an abortion."

THIS CLAIM AGAINST OWEN, OFTEN CITED BY DEMOCRATS AND LIBERAL ADVOCATES, IS UNTRUE. Alberto Gonzales himself explained the issue during his January 6, 2005 Senate confirmation hearing:

SEN. BROWNBACK: ….Finally, there's a topic I wanted to give you a chance to address while you on the Texas Supreme Court in June of 2000. And this came up during Judge Owen's hearing, of a case on a parental consent law that you wrote, I believe, the majority opinion on. And this was upholding the parental -- a decision regarding the parental notification law, where a minor sought an abortion. In this particular case, a minor was seeking an abortion without, as was required by Texas law, notification of her parents. You had some pretty strong words for those in the minority opinion who thought the law should be applied as written and was affirmed by the trial court. I just wanted to give you a chance to express your opinion on this case. It came up often during Judge Owen's confirmation hearing here. You were cited on the other side of that often. And I'd like to get your thoughts on that here for the record. And, do you believe that the interpretation of duly enacted legislation is open to interpretation by the courts in a manner not consistent with the strict reading of the law? That is the underlying issued involved with this.

MR. GONZALES: Thank you for that question, Senator. Let me just say at the outset regarding Judge Owen: I served with Judge Owen on the Texas Supreme Court, and I think she did a splendid job, a superb job as a judge. I think she would make a superb judge on the 5th Circuit, and that's why her name was recommended to the president. There were a series of very contentious cases -- opinions written in connection with six cases, I think, involving four minor daughters in the year 2000 while I was on the court. It is true that the law -- the legislature made it a policy judgment that they wanted more -- they wanted parents more involved with the abortion decisions of their minor daughters. But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved -- are about interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.

SEN. BROWNBACK: Thank you and your family for being here, and I look forward to your confirmation.

Here it is in context:

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."
http://www.findlaw.com/11stategov/tx/2000_6txsc.html

To me, it sounds like he is saying the dissenters are falling prey to their ideology and not basing their decision on the law. That means Owen, too. How do you not reach that conclusion?

Here's Owen's dissent, which seems to be based on judicial review procedure and totally unrelated. Seems that way, but who knows? At any rate, Gonzalez may have been right about Owen. He may have been wrong. But he did say what he said.

So far, I like Janice Rogers brown the best out of all the possible picks for SCOTUS. By far.

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