Senators grill Texan tapped for court seatJustice is blasted by Democrats whose votes she sorely needs
Chuck Lindell, AMERICAN-STATESMAN STAFF
July 24, 2002
WASHINGTON -- Senate Democrats questioned Texan Priscilla Owen's judicial qualifications Tuesday, hammering the federal court nominee as a pro-business activist whose personal and political beliefs taint her court opinions.
Owen, a Texas Supreme Court justice since 1994, left the 4 1/2-hour hearing looking tired and drawn -- and with little indication that she had found the one Democratic vote needed to place her on the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana and Mississippi.
However, several Democrats on the highly partisan Judiciary Committee did not make their position apparent Tuesday, kicking off intense lobbying before an expected vote in September. Owen, 47, maintained her composure throughout the hearing, answering questions in a soft Texas drawl that only occasionally quickened in response to Democratic sparring.
"The picture that some special interest groups have painted of me is wrong, and I want to set the record straight," Owen said, denying that personal beliefs sway her judicial opinions. "If I am confirmed, I will do my utmost to apply statutes as you have written them, not as I or others might have written them."
But the committee chairman, Sen. Patrick Leahy, D-Vt., pointed to several cases -- including FM Properties v. the City of Austin -- that he said show a bias in favor of big business.
"I find in so many of these things that you seem to be outside of the mainstream on what is arguably a very conservative court," Leahy said.
Owen responded by noting that in almost 900 cases, she dissented from the majority opinion 86 times, "or less than 10 percent of the time."
As expected, abortion rights played a major role in Tuesday's hearing. Democrats repeatedly questioned Owen on several opinions rendered on a Texas law that allows minors seeking an abortion to request court approval to avoid notifying their parents. Minors must prove that they are mature and "sufficiently well-informed" on their decision, that abuse is possible if their parents are informed, or that an abortion is in the girl's best interest.
The first such case reached the Texas Supreme Court in 2000. Justices granted a parental bypass, with Owen writing a dissent that claimed the minor was not adequately informed about abortion alternatives.
Critics said Owen tried to add an extra hurdle that was not present in the state law.
"I am deeply concerned," said Sen. Dianne Feinstein, D-Calif. "You've looked in other places to find a rationale not to do what Texas law called for. Maybe this is what being an activist means. You worked to come out where you came out."
Sen. Edward Kennedy, D-Mass., concurred. "You seem to be making, not interpreting, the law," he said.
Owen responded that the Texas Legislature borrowed the language for its law from previous U.S. Supreme Court decisions, prompting her to study what the high court meant by "sufficiently well-informed." Owen said she drafted her opinion based on precedent set in three U.S. Supreme Court rulings.
"My personal beliefs didn't enter into any of my decisions," she said.
Many observers entered Tuesday's hearing anxious to hear what three Democrats -- potential swing votes in the nomination -- had to say. The criticism by Feinstein, who chaired the hearing, appeared to signal her disapproval. Sen. Russell Feingold of Wisconsin asked pointed questions about ethics but avoided the Democratic themes of judicial activism and big-business bias. Most notably, Sen. Joseph Biden of Delaware did not ask any questions.
Democrats hold a 10-9 advantage on the Judiciary Committee. Republicans need one vote to move Owen's nomination to the Senate floor, where approval would be expected.
Owen was nominated to the 5th U.S. Circuit Court of Appeals in May 2001. Another nominee to the court, Charles Pickering, lost a narrow Judiciary Committee vote last spring. Like Owen, Pickering was criticized as being a conservative activist outside the judicial mainstream.
Several liberal activist groups compiled booklet-length dossiers on Owen opinions they disagreed with -- part of a deluge of information that Sen. Orrin Hatch, R-Utah, blasted as "deceptions, distortions and demagoguery."
"Considering the opposition mounted against you today, you may be the bravest woman in America," Hatch told Owen.
Owen supporters supplied a paper deluge of their own, including a letter of recommendation signed by 14 past presidents of the State Bar of Texas -- Democrats as well as Republicans. In addition, Owen supporters attending the hearing included Harriet Miers, a former bar president who is now an assistant to President Bush.
Owen's hearing began with a rousing defense by Sen. Phil Gramm, R-Texas, who called the nominee one of the state's greatest commercial litigators who gave up a highly lucrative, 17-year practice in Houston to serve on the Texas Supreme Court.
"The idea that this good woman is some kind of political activist or a kook is as far as it can be from the truth," Gramm said.
Rep. Kay Granger, R-Fort Worth, noted that Owen received the highest score on the bar exam after graduating third in her law class from Baylor University in 1977. She also noted that Owen was given the American Bar Association's highest rating as a judge.
But Leahy began his questioning by referring to FM Properties v. the City of Austin, in which the state Supreme Court struck down a law allowing large landowners to create their own water-quality rules. Owen said her dissent focused on the principle that a state's authority supersedes a city's.
Leahy responded that Owen seemed to endorse letting large landowners regulate themselves.
"You have developed a reputation for opinions that most of the time favor big business interests," Leahy said. "This is a decision that doesn't change that representation."