Rove Guided Career of Judicial Nominee in Filibuster FightBy NEIL A. LEWIS, New York Times
May 16, 2005
WASHINGTON, May 15 - Justice Priscilla R. Owen of the Texas Supreme Court declined a chance to be the court's first female chief justice last year so she could remain one of President Bush's nominees to a federal appeals court, Texas lawyers and political figures said in recent interviews.
The decision was one of three crucial moments in her judicial career in which she seemed to have been guided by the hand of Karl Rove, Mr. Bush's chief political strategist.
Justice Owen, along with Justice Janice Rogers Brown of the California Supreme Court, is now at the center of the partisan battle in the Senate over changing the filibuster rules. Senator Bill Frist of Tennessee, the Republican leader, said Friday that the two state justices, whose confirmations have been blocked by Democrats, would be brought to the Senate floor as part of the fight over changing the rules.
Justice Owen was, by all accounts, a respected but little-known lawyer in Houston in 1994 when she was first elected to the State Supreme Court with Mr. Rove's support and tutelage. Her experience up to then largely involved obscure legal cases involving pipelines and federal energy regulations.
At the time, Mr. Rove was helping to make over the Texas Supreme Court from a bench populated by Democrats widely viewed as favorable to the plaintiffs' bar - the lawyers who sue companies - to the business-friendly Republican stronghold it is today.
Ms. Owen would probably never have had a chance to run for the Supreme Court, because everyone considered it a hopeless task to oppose the enormously popular incumbent, Justice Lloyd Doggett. But when a Congressional seat opened up suddenly, Justice Doggett, a Democrat, decided to leave the court and run for the House. Ms. Owen found herself the Republican nominee in a state turning increasingly Republican.
Mr. Rove, who had helped select her as the Republican candidate, helped raise more than $926,000 for her campaign, almost half from lawyers and others who had business before the court, according to Texans for Public Justice, a liberal group in Austin that tracks Texas campaign donations. Mr. Rove's firm was paid some $247,000 in fees.
When Mr. Bush was first elected to the White House, Mr. Rove again chose Ms. Owen, by then a justice on the Texas Supreme Court for nearly a decade, to be among the president's first appeals court candidates, administration and Congressional officials said. In doing so, the officials said, Mr. Rove had to disagree with Alberto R. Gonzales, then the White House counsel and now attorney general. Mr. Gonzales had served on the Texas Supreme Court with Justice Owen and while he liked her greatly, he had preferred another member of the court, Justice Deborah Hankinson, for the federal court seat.
Mr. Rove's third intervention came last year when the state's chief justice retired and Gov. Rick Perry privately offered to nominate Justice Owen to the post, senior Texas Republicans said in interviews. Justice Owen, whose nomination to the federal appeals court had been blocked by a Democratic filibuster, called Mr. Rove for advice before declining; some Republican political figures said he told her to turn down the post and remain ready and available for the current battle, while another Republican said Mr. Rove told her that it was her choice, but that she still had a chance at the federal court seat. The Texas Republicans who spoke about Mr. Rove's role would not allow their names to be published because they are still active in politics.
Her court writings could sometimes be unusually blunt in criticizing colleagues with whom she disagreed, but Justice Owen is regularly described by friends as mild-mannered and private in her personal life.
The Rev. Jeff Black, her pastor and friend, said she was "kind of a monastic person." He said her life was taken up with "her vocation to the law and serving on the court, coming to church, looking after her mother and taking care of her dog."
Mr. Black said that she left a more established church in Austin to help him start his congregation after she heard him preach, setting up the altar wherever they could find a place to conduct a service in those early days. He said she was extraordinarily modest and until recently, most congregants at St. Barnabas the Encourager Evangelical Covenant Church were unaware that their longest-serving Sunday school teacher was a Supreme Court justice.
Justice Owen was born Priscilla Richman in Matagorda County, Tex., on Oct. 4, 1954. She later added her married name, Owen, which she kept after her divorce. Her undergraduate and law degrees are both from Baylor University.
Even on the conservative, all-Republican bench that the State Supreme Court had become, Justice Owen occasionally stood out among her colleagues, sometimes in tandem with another justice, Nathan Hecht. In no situation was this more so than in cases involving the interpretation of a state law providing for a teenage girl to obtain an abortion without notifying her parents if she can show a court that she is mature enough to understand the consequences.
In one dissent, Justice Owen said the teenager in the case had not demonstrated that she knew that there were religious objections to abortion and that some women who underwent abortions had experienced severe remorse.
Mr. Gonzales, a Texas Supreme Court justice at the time, was in the majority and wrote that the position of the three dissenters was "an unconscionable act of judicial activism" because it would create obstacles to abortion that the Legislature did not enact.
Mr. Gonzales, in interviews with The New York Times, acknowledged that his words were directed at her dissent but said that he remained enthusiastic about her nomination to the United States Court of Appeals for the Fifth Circuit.
But he has been repeatedly pressed by conservatives to declare that he did not mean her. Recently, he tried to distance himself from the remarks by telling a Senate committee that he was referring to himself, not the dissenters. His apparent explanation seemed to be that it would have been an act of judicial activism for him if he had done what Justice Owen and her two fellow dissenters had done.
Craig McDonald, an official with Texans for Public Justice, said Justice Owen is indeed a judicial activist, "and it is not confined to a few cases over abortion." He said, "She is a serial activist, often in service to corporations and the powerful."
Professor Linda Eads of the Southern Methodist University law school, who follows the State Supreme Court, said she thought Justice Owen's dissents in the abortion cases were well within the legal mainstream.
"She is certainly a conservative, and she will look at the law and if it's ambiguous, she would take the conservative interpretation," Professor Eads said. "But she's not an activist judge in the sense she's going to rule contrary to the law on any given issue."
Justice Owen was also criticized at her first confirmation hearing by senators who said she took a year and a half to issue an opinion that involved a young man injured in a truck accident. The man, who was on a respirator, died when the family could not afford nursing care because the appeal delayed the multimillion-dollar verdict. In her response at the time, Justice Owen did not address the delay but told senators, "There are a lot of cases that tug at the heartstrings, but I have to follow the law."
With Dr. Frist planning to force the question of judicial nominees this week, senators in both parties were pursuing ways to avoid a vote on changing Senate procedure, but the outlook was uncertain.
"I think we're close, but whether we'll actually achieve it or not is not clear at this time," Senator John McCain, Republican of Arizona and one of those exploring alternatives, said Sunday on the ABC News program "This Week."
Appearing on "Fox News Sunday," Senator Mitch McConnell, Republican of Kentucky, said he was still hopeful that enough Democrats would break ranks to allow votes on the two nominees this week.