Raw Story: Judge who denied jailed Democrat's motion for release was Karl Rove protege

Priscilla Owen, the federal judge who denied a prominent Democratic fundraiser's motion for release pending appeal last week, is a former client and protégé of former White House Deputy Chief of Staff Karl Rove. "When we followed her ... on the Texas Supreme Court, she was an activist jurist that was results oriented," Texans for Public Justice's Andrew Wheat wrote in an email late Wednesday. "Her record suggests that she was keenly aware and sensitive to what side her bread was buttered on. She threw out precedent out again and again to deliver decisions that benefited the business community that paid her bills." Read the article at The Raw Story

Judge who denied jailed Democrat's motion for release was Karl Rove protege

By Lindsay Beyerstein and Larisa Alexandrovna
The Raw Story
Monday August 25, 2008

Rove raised campaign money for judge in Minor case
The federal judge who denied a prominent Democratic fundraiser's motion for release pending appeal last week is a former client and protégé of former White House Deputy Chief of Staff Karl Rove.

On Aug. 15, US Fifth Circuit Court of Appeals Judge Priscilla Owen (above right) upheld a lower court's decision to keep Mississippi attorney Paul Minor in jail pending his appeal, adding more controversy to a case already steeped by allegations of both a politically motivated prosecution and conflicts of interest on the part of the US Attorney.

Minor, a once-prominent trial lawyer, was formerly Mississippi's largest Democratic donor and made millions from a 1998 settlement with tobacco companies of a lawsuit for costs incurred by Medicare from smoking-related illnesses. The suit kindled resentment among Republicans who had been beneficiaries of the tobacco companies' largesse.

Owen's two-sentence order reads: "Minor has failed to establish by clear and convincing evidence that he is not likely to pose a danger to the community if released."

Minor was convicted of mail fraud and bribery in 2007. The prosecution has contended that Minor is dangerous because he violated the terms of his pre-trial bond two years ago. The defense countered that Minor's rule-breaking was trivial, non-violent in nature, and unlikely to recur because Minor has now been successfully treated for his drinking problem.

As reported in Raw Story's ongoing award-nominated series, The Permanent Republican Majority, many saw the two Minor trials - which included as co-defendants Justices Wes Teel and John Whitfield, who were also found guilty, and Justice Oliver Diaz, who was not - as connected with the politicization of the US Department of Justice and the alleged use of US Attorneys by former White House Deputy Chief of Staff Karl Rove to target political opponents and perceived enemies of the Bush administration. (See links to part 4, 5, 6, and 7 of the series following this article.)

Both Minor and Diaz allege that they were victims of political prosecution orchestrated by Rove.

It is the alleged involvement of Karl Rove in the prosecutions of Paul Minor - as well as the better-known case of former Alabama Governor Don Siegelman - that has raised eyebrows among Minor supporters about Owen's recent ruling.

Rove, the Kingmaker
Priscilla R. Owen was one of the Bush administration's most conservative and most controversial judicial appointees. The Senate Judiciary Committee voted against Owen's confirmation as a federal judge in 2002.

A New York Times op-ed excoriated Bush for nominating Owen a second time over the objections of the Senate Judiciary Committee, saying that "ignoring the committee's decision is only one in a growing list of ways the White House and its allies have politicized judicial selection." Ultimately, Bush got his way and Owen was confirmed following a second battle in Congress.

It was Karl Rove's interest in seeing Owen on the bench that kept her nomination alive, despite strong criticism of her hard-right interpretation of the law.

Rove had a longstanding interest in Owen's career, beginning in 1994, when Owen hired him as a campaign consultant in her successful bid for a seat on the Texas Supreme Court, paying him $250,000 for his efforts. Rove helped Owen raise over $900,000 for that campaign.

Jim Moore, a long-time Texas journalist who has chronicled Rove's career in several books, including Bush's Brain: How Karl Rove Made George W. Bush Presidential, explained the unique relationship between Rove and Owen in a Wednesday phone interview.

"He did everything for her. He created her career. He handpicked her to go to the Texas Supreme Court when he was trying to take over the Texas Supreme Court," said Moore. "He was looking for people to groom and raise money for and have in his pipeline. Rove went and plucked her out of obscurity. She was an unknown lawyer in Houston."

According to a 2003 article in Mother Jones "[Rove] signed on, giving the candidate the seal of approval from the state's corporate establishment."

"Rove went and plucked her out of obscurity," says Moore, "He did everything he needed to to promote her. He's the guy who brought her name up to Bush for the federal appointment."

A 2005 article in the New York Times noted that Owen's appointment to the Fifth Circuit "is the latest reward of a partnership that began a dozen years ago when a prominent Texas conservative introduced her to Karl Rove, who was at the time a political consultant and emerging kingmaker."

As recently as 2006, Rove called Owen "my friend" in a speech to the Republican National Lawyers Association

A Conflict of Interest
Lawyers familiar with the judicial process say Owen could not have been assigned the case by means of favoritism because it would be impossible to interfere with the process of randomly assigning cases to judges without implicating the clerk of court and possibly other judges in a conspiracy.

Yet the appearance of impropriety, even when none actually exists, is often reason for recusal.

According to canon two of the US Code of Conduct for United States Judges, "A judge should avoid impropriety and the appearance of impropriety in all activities."

It's unknown whether Owen was aware of allegations Rove had been involved in the prosecutions of Minor, Diaz, Whitfield and Teel. However, the public record and legal filings both either mention Rove by name or reference the White House's alleged involvement in political prosecutions in general terms.

For example, in a letter (pdf) from Paul Minor to the US House Judiciary Committee, dated Oct. 22, 2007, Minor expresses his belief that Rove was directly involved in his prosecution.

"I am writing to you because you are the only people who can help me prove that the Bush Justice Department's prosecution of me and Justice Oliver Diaz, Jr., and Judges Wes Teel and John Whitfield was politically motivated," he writes. "Over the past few months, it has become increasingly clear that Karl Rove, political strategist for Bush and other Republicans, conceived a strategy to dry up political money to Democratic candidates which included using the Justice Department as an instrument to prosecute prominent Democrats, particularly trial lawyers."

On Apr. 18, 2008, the House Judiciary Committee issued a majority report titled "Allegations of Selective Prosecution in Our Federal Criminal Justice System." The report names Rove in connection with the alleged political prosecution of former Alabama Governor Don Siegelman, and briefly discusses less prominent alleged cases of political prosecution, including Minor's.

On May 22, the Committee subpoenaed Karl Rove "for testimony about the politicization of the Department of Justice."

Rove refused to appear. His lawyer said he had a previous engagement overseas.

As recently as last month, Minor's attorneys filed a brief on appeal with the Fifth Circuit in which an entire section was devoted to the US Attorney scandal and alleged political prosecutions. The document does not explicitly name Rove or any other senior Bush administration officials, but the source documents do.

In part of the brief, for example, Minor's attorneys state that should there have been an investigation and hearings held by Congress and other relevant bodies into the prosecution of Paul Minor, et al and "that such a hearing would also end with an evidentiary confrontation against the White House itself."

Given the level of public interest and media attention in this case, and the controversy and allegations of impropriety already surrounding it, many of Minor's supporters feel that Owen should have recused herself.

A Republican legal scholar and attorney in the South, who wishes not to be named for fear of retaliation, said during a late Monday phone interview that "the appearance of impropriety, even if none exists, is as bad as actual impropriety," in relation to Owen's ruling on Minor's case. "She should have recused [herself]."

According to Professor Matt Steffey, a Constitutional scholar at Mississippi College School of Law, Owen's connections to Karl Rove might raise the specter of divided loyalties if more information were to come to light. There are two factors to consider, Steffey explained, the first being the strength of the evidence against Rove.

"If clear wrongdoing by Mr. Rove can be established, then it would be time to take a closer look at those political ties." Steffey said, "As more becomes clear about the strength of the relationship or Rove's involvement in wrongdoing then there is cause, perhaps, to revisit."

"I do think that the nature of the case comes into play, and i do think extra care is warranted when the case is already under close public scrutiny," Steffey added.

Stephen Gillers, Emily Kempin Professor of Law at New York University, was unable to say whether Owen should have recused herself without a complete understanding of the circumstances.

Gillers explained that many variables come into play when deciding if a judge should recuse herself, such as whether Minor was asking the judge to evaluate specific allegations of wrongdoing by her former campaign consultant and political ally.

"Owen can sit on the appeal and a bail application unless Rove's conduct is an issue in either decision," Gillers wrote in a follow-up email. "For that to happen, someone in the case would have to inject it, most likely the defendant. Otherwise, Rove's relationship to the case is just background noise so far as the law is concerned."

Asked whether public apprehensions about the integrity of the Minor case could affect Owen's ability to sit, Gillers replied, "Courts sometimes say the perception of justice is as important as justice. However, the fact that Owen has ties to Rove - owes her job to him perhaps - is not sufficient to create a disqualifying perception if nothing Rove did or did not do ever arises in the case as a subject for the court to address."

No Crime in Mississippi or Texas
In an ironic twist, Owen herself has been criticized for not recusing herself in cases brought by big corporate donors to her judicial campaigns and for allowing her Texas Supreme Court clerks to accept thousands of dollars in bonuses from law firms with business before the Texas Supreme Court.

For example, Owen received $8,000 from Enron employees and PACs in her 1994 campaign for a seat on the Texas Supreme Court. She later authored an opinion in the Enron bankruptcy case that saved the company $225,000.

According to Andrew What, the Research Director for the non-profit legal watchdog Texans for Public Justice, Owen's career has been rife with questionable decisions.

"When we followed her on the Texas Supreme Court, she was an activist jurist that was results oriented," What wrote in an email late Wednesday. "Her record suggests that she was keenly aware and sensitive to what side her bread was buttered on. She threw out precedent out again and again to deliver decisions that benefited the business community that paid her bills."

Professor Steffey notes, however, the fact that Owen accepted campaign contributions from corporations that later appeared before her as a judge would not disqualify her from ruling on Minor's motion for release or hearing his appeal, despite the marked parallels between her corporate rulings and what Minor has been convicted of doing.

Steffey said that the allegations against Minor and his onetime co-defendant Justice Oliver Diaz seem to have stemmed from "pretty standard campaign activity."

"One thing that always troubled me about the prosecution of Justice Diaz was that I never understood what he was alleged to have done wrong," Steffey said. "These campaign finance issues are kind of nebulous."

Minor has already served two years of his seven-year sentence. Prosecutors argued that Minor should not be released because he presents a danger to the community. The lower court agreed, and Owen's ruling supports that ruling.

Judge Owen's order comes as a blow to Minor, who had hoped to be released to care for his wife, Sylvia, who is suffering from late-stage terminal brain cancer.

Lindsay Beyerstein is an investigative reporter for Raw Story, regularly covering national issues relating to civil liberties, corruption, and women's rights. Her writing has appeared in Salon, In These Times, the New York Press, and AlterNet, and her photography has appeared in TIME and other publications. Lindsay can be reached at lindsay@rawstory.com.

Larisa Alexandrovna is the Managing Editor of Investigative News for Raw Story and regularly reports on intelligence and national security matters. She has been covering the US Attorney Scandal for nearly a year. Her essay on the Siegelman case appears in a newly published anthology, Loser Taker All: Election Fraud and The Subversion of Democracy, 2000-2008, edited by New York University professor Mark Crispin Miller, which features a collection of essays from prominent journalists, activists, and scholars. Contact her at larisa@rawstory.com.

Dallas Morning News: Divided Senate confirms Owen

After 22 days of Senate debate, three filibusters and nine hours in the witness chair, Priscilla Owen's four-year confirmation odyssey is over. On a 55-43 mostly party-line vote, the Senate on Wednesday approved the Texas Supreme Court justice's elevation to the federal appellate bench, ending one of the most bitter judicial fights of recent years.

Divided Senate confirms Owen

Resentment, criticism linger as vote mostly follows party lines

By MICHELLE MITTELSTADT / Dallas Morning News
Wednesday, May 26, 2005

WASHINGTON – After 22 days of Senate debate, three filibusters and nine hours in the witness chair, Priscilla Owen's four-year confirmation odyssey is over.

On a 55-43 mostly party-line vote, the Senate on Wednesday approved the Texas Supreme Court justice's elevation to the federal appellate bench, ending one of the most bitter judicial fights of recent years.

The action marked the first fruit of a deal struck Monday by 14 Senate centrists that averted, at least temporarily, a showdown over the Democrats' use of the filibuster to derail some of President Bush's appellate nominees.

Justice Owen, who hasn't granted interviews during the confirmation process, offered no comment.

Mr. Bush applauded Justice Owen's confirmation to the 5th U.S. Circuit Court of Appeals in New Orleans. "I urge the Senate to build on this progress and provide my judicial nominees the up-or-down votes they deserve," he said.

The atmosphere was less positive on Capitol Hill, where both sides revisited their grievances.

Senate Majority Leader Bill Frist, R-Tenn., deplored the attacks waged against the Texas judge by Democrats and liberal interest groups.

"A gentle woman, accomplished lawyer and brilliant Texas jurist was unconscionably denied an up-or-down vote for more than four years," he said. "The minority distorted her record, cast aspersions on her abilities and rendered her almost unrecognizable."

Democrats, for their part, lamented the appointment of a woman they consider a right-wing judicial activist. They blamed Mr. Bush for forcing the fight by picking jurists they view as outside the legal mainstream.

In her decade on the Texas court, critics charge, Justice Owen has compiled a record hostile to consumers, workers and women's reproductive rights.

"Average middle-class families will be hurt by her decisions," Sen. Charles Schumer, D-N.Y., said after the vote. "That's why her getting on the bench is regrettable."

Even her critics acknowledge, however, that her move to the 5th Circuit isn't likely to usher in a sea change.

"We were against her on the principle that judges with such an activist, pro-business background as Owen do not deserve lifetime appointments," said Craig McDonald of Texans for Public Justice, a public interest group. "Having said that, her confirmation likely won't have much of an impact on the 5th Circuit, which is one of the most conservative circuits in the United States today."

Just three senators crossed party lines on the vote: Robert Byrd, D-W.Va.; Mary Landrieu, D-La.; and Lincoln Chafee, R-R.I.

The three were part of the "Gang of 14" that defused a looming Senate meltdown with a deal that preserved the filibuster while ensuring votes on Justice Owen and two other appellate nominees.

With many exploring the deal's likely effect on future judicial battles, some paused to savor the day's developments.

Sen. Kay Bailey Hutchison, who steered Justice Owen through the confirmation process, was eager to talk to her. After the vote, she obtained the judge's cellphone number from Rep. Louie Gohmert, R-Tyler, who had crossed the Capitol to congratulate the Texas senators on his former law school classmate's confirmation.

"She has been so gracious throughout this process, never uttering a word that would show annoyance at the way she's been treated," Ms. Hutchison said. "But it's been a difficult time for her ... to see the distortions, to not feel comfortable refuting any of those distortions or being able to speak for herself except at the hearing."

Ms. Hutchison said she was sure the bruising process wouldn't affect the judge's performance on the federal bench. "I think she will do exactly what she thinks is right," the senator said. "I think she has not been affected, in any way, professionally by what has happened to her."

Said Mr. McDonald, "Let's hope that's true."

Staff writer Todd J. Gillman contributed to this report.

Ft Worth Star-Telegram: Owen inches closer to confirmation

The Senate appeared likely to confirm Texas jurist Priscilla Owen to a federal appeals court by Wednesday after blocking delaying tactics that has stalled her nomination for more than four years.

Owen inches closer to confirmation

By Dave Montgomery, Fort Worth Star-Telegram
May 24, 2005

WASHINGTON -- The Senate appeared likely to confirm Texas jurist Priscilla Owen to a federal appeals court by Wednesday after blocking delaying tactics that has stalled her nomination for more than four years.

Adhering to the terms of an 11th-hour compromise, the Senate voted 81-18 Tuesday to end five days of debate that began last week and then prepared to vote on her confirmation to the New Orleans-based Fifth Circuit Court of Appeals.

Owen's confirmation seemed assured after Democrats agreed to withdraw a threatened filibuster against Owen and two other judicial nominees. The Democratic pledges were part of a compromise announced late Monday by 14 centrist senators.

A final vote is expected Wednesday although it could come as early as late Tuesday. President Bush, who has described Owen as "a great lady," nominated the 50-year-old Texas Supreme Court justice to the three-state appeals court on May 9, 2001, in one of his earliest appointments. But Democrats repeatedly battled to derail the nomination, as critics portrayed her as an ultra-conservative jurist who laced her court rulings with an anti-abortion, pro-business bias.

Owen's supporters, including both Texas senators and colleagues on the Supreme Court, denounced the attacks as politically-motivated, portraying the nominee as an outstanding jurist who bases her court decisions strictly on "the rule of law."

"She's been a solid judge," Sen. Lindsey Graham, R-S.C., said during the final hours of debate. "What's been said about her has been cut-and-paste character assassination."

But Sen. Edward M. Kennedy, D-Mass, argued that Owen is "out of the mainstream."

Owen was enroute to Washington as the Senate began debate, according to her office.

If confirmed, Owen will fill an eight-year-old vacancy on the appeals court, which serves Texas, Louisiana and Mississippi and is part of a nationwide tier of appeals courts just below the Supreme Court.

The 17-member court, which now has two vacancies, has been plagued by a chronic case of backlog and has been periodically forced to declare itself in a state of judicial emergency.

Owen would replace Texan Will Garwood, who left in 1997. A former corporate attorney who specialized in oil and gas legislation, Owen has served on the Supreme Court since 1995. Though she is generally regarded as one of the court's more conservative justices, Owen says that her decisions are based strictly on "a fair and consistent application of the law.

"My decisions cannot be based, and are not based, on whether a party is rich or poor or who their lawyer is," Owen said in a 2002 appearance before the Senate Judiciary Committee. "My decisions are based on the law -- whether that is a state, a United States Supreme Court decision or a prior decision from my court."

Owen also told senators that "the picture that some special interest groups have painted of me is wrong.

The final round of debate recycled past arguments evolving around the nominee, But several of her Democratic critics acknowledged that she appeared to be heading for confirmation.

"After all these years, I'm sure the president will get the votes to put Priscilla Owen on the court," said Patrick J. Leahy, D-Vt.

Senate Minority Leader Harry Reid, D-N.V., said he was hopeful that Owen would "surprise" her detractors by becoming "more sensitive" to a broader array of views as a member of the regional appeals court.

Owen's nomination battle was one of the longest in U.S. history, far surpassing that of other, better known nominees, including those for the Supreme Court. Senate Judiciary Chairman Arlen Specter, R-Pa., said she had been "held hostage" by partisan politics.

As part of the comprise that broke the stalemate, Democrats consented to an up-or-down vote on Owen and fellow judicial nominees William H. Pryor Jr. and Janice Rogers Brown -- but offered no such assurance on two other nominees, William G. Myers III or Henry Saad.

Sen. John Cornyn, R-Texas., expressed skepticism over what he called a secret agreement, saying the compromise "does not give us any assurances" that other judicial nominees will come up for a confirmation vote. He also questioned part of the compromise that permitted judicial filibusters only "under extraordinary circumstances."

"Extraordinary circumstances are in the eye of the beholder," Cornyn said.

The compromise emerged as a last-ditch effort to avert Senate Majority Leader Bill Frist's threat to change Senate rules to make it easier for members to stop a filibuster, a delaying tactic employing endless debate. Democrats denounced Frist's threat as "the nuclear option" and threatened to slow Senate business if he persisted.

"We're pleased that the nuclear option was averted and disappointed that Owen will likely be confirmed," said Craig McDonald, director of Texans for Public Justice, part of a coalition of groups opposing her nomination.

New York Times: Rove Guided Career of Judicial Nominee in Filibuster Fight

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.

Rove Guided Career of Judicial Nominee in Filibuster Fight

By 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.

Salon.com: Willie's story

Willie Searcy never got to meet Priscilla Owen. And that's unfortunate. Because as an associate justice on the Texas Supreme Court, Owen once exercised almost complete control over the fate of the working-class kid who always played above his weight on the local rec-league football team -- until the car accident that changed his life and crossed his path with Owen's.

Willie's story

By Lou Dubose
May 12, 2005

Willie Searcy never got to meet Priscilla Owen. And that's unfortunate. Because as an associate justice on the Texas Supreme Court, Owen once exercised almost complete control over the fate of the working-class kid who always played above his weight on the local rec-league football team -- until the car accident that changed his life and crossed his path with Owen's. The account of Willie Searcy's experience with the Texas high court provides real insight into what sort of federal appeals court judge Owen will be if the Senate approves her lifetime nomination to the 5th Circuit U.S. Court of Appeals. But Searcy's story has been largely overlooked.

Next week, Majority Leader Bill Frist may call up Owen's nomination for Senate consideration, a move expected to spark the long-awaited showdown over the so-called nuclear option. Owen's Democratic opponents, who have blocked her nomination since 2001, have been focused on her creative attempts to restrict abortion rights for minors in Texas. That also goes for the extreme Christian right, which considers Owen's "pro-life" record a justification for its campaign to persuade the Republican majority in the U.S. Senate to eliminate the filibuster rule and confirm Owen. Yet the case that pitted the skinny black kid from Dallas against Ford Motor Co. is as important as Owen's attempt to rewrite the law the Texas Legislature enacted to define a specific process by which minors could get abortions. (Not, as Owen held, to make such abortions almost impossible to obtain.)

Willie Searcy's trip to the Texas Supreme Court began in the rain on a Dallas freeway. He was 14 years old in April 1993 when a Mercury Cougar driven by a 17-year-old hydroplaned across the median and slammed into the Ford pickup driven by Willie's stepfather, Ken Miles. Miles' life was saved by the steering wheel, which absorbed some of the impact of the head-on collision. Willie's 12-year-old brother, Jermaine, was saved by a snug seatbelt that held him securely in the middle seat. Willie was not so fortunate. Just before the crash, he leaned forward to pick a piece of paper off the floor. The tension eliminator, which allows the seatbelt to spool out when a passenger leans forward, then retracts the slack and holds the belt in place when the passenger is sitting upright, apparently failed.

Willie Searcy had no broken bones. But the posterior ligaments that held his head in alignment with his spinal cord were torn and stretched. He would spend the rest of his life as a "ventilator-dependent quadriplegic." After being airlifted off the freeway, he spent three months in Methodist Hospital in Dallas and three more months in a private rehab facility. Within six months, Willie's mother Susan Miles and her husband Ken were looking at $550,000 in medical bills. The rest of their lives, in fact, would be defined by medical bills. Their teenage son would require full-time nursing care. He would have to be "coughed" by an attendant. His trachea tube would have to be regularly suctioned to allow a clear path for the ventilator to breathe for him. Every bodily function would be regulated or performed by a machine, relative, nurse, or attendant. It was far beyond what Ken, a parts clerk at a Ford dealership, or Susan, a medical records clerk, could expect from their healthcare coverage.

Willie's attorney, Jack Ayres, wanted to get the case to trial as fast as possible. He believed that a defective part with a history of failure had caused Willie's near-fatal impact with the dashboard, and he set out to sue Ford. Until the tort reform law that Gov. George W. Bush pushed through the Legislature in 1995, plaintiffs in Texas could file suit either where the cause of the lawsuit took place or in any county where the defendant did business. Ford would have preferred to defend itself in Dallas, where conservative judges and juries are friendlier to corporate defendants. Ayres filed in state district court in Henderson, a small East Texas town where there was a Ford dealership. The docket was shorter there, which ensured a faster trial date. The jury pool was probably more favorable to his client. And the state law allowed him a choice of forum.

"We were in a race to save this kid's life," Ayres said.

Cases like Willie Searcy's involve a lot of discovery, hundreds of hours of depositions, hundreds of thousands of pieces of documentary evidence, and countless pretrial motions. They are slow by nature and defendants often try to make them slower, hoping to exhaust the resources of the plaintiff's lawyers, who bear all costs until there is a judgment or settlement. It was not surprising that Ford moved for more time after the judge set the trial for January 1995. What was surprising was what followed after the judge denied Ford's request.

From out of nowhere or, more precisely, from out of the Texas prison system, Willie's estranged biological father intervened and asked for time to allow him to prepare for the case. Willie's attorneys wondered if Ford's defense team had contacted him in an attempt to slow the proceedings. But lawyers on Ford's defense team insisted they had nothing to do with the father's request. Visitor logs at the prison where the father was incarcerated suggested otherwise. Margaret Keliher, a lawyer on Ford's defense team who was later elected Dallas County judge, had visited the prison. Four years later, while working on a book, I asked her if she had gone to the prison to bring Willie's father into the case. She told me that a lot of time had passed and the question -- whether, as a corporate defense attorney, she had traveled to East Texas to meet with a convicted criminal -- was taxing her memory. When Willie's lawyers warned his father that intervention in the case would delay his son's trial, he withdrew.

Ford is always a dogged defendant. One of its in-house lawyers explained the company's litigation strategy to the National Law Journal. Ford would make only one pretrial offer. "I don't give a shit if they take it or not," Ford lawyer James A. Brown told the Journal. "If the plaintiff doesn't settle, it doesn't matter to us. We tell them 'we're coming after you.'"

At the end of the four-month trial, an East Texas jury took only four hours to award Willie Searcy $30 million. On the following day, it met for 90 minutes and awarded the Searcy family an additional $10 million in punitive damages. Jack Ayres had asked for $26 million.

Predictably, Ford came after Willie Searcy and his lawyers. The company appealed both the jury decision and Ayres' filing of his pre-appeal motions in what they claimed was the wrong appeals court. Willie Searcy lost another year, getting none of his jury award. What was finally ruled to be the appropriate appeals court overturned the $10 million in punitive damages and raised one legal question about the $30 million award, which it allowed to stand.

Ford's legal team then took the $30 million in actual damages to the Texas Supreme Court. But the attorneys were decent enough to request an expedited hearing of the case. They recognized that Willie Searcy was kept alive by a patched-together system involving state caretakers, friends, and family working with him at home. There was no backup ventilator or generator to cover a temporary power failure. On paper, Willie was a millionaire, with a jury award that would have provided first-class healthcare. At home in a Dallas suburb, he lived in healthcare limbo.

On the Texas Supreme Court, cases are assigned by a blind draw. Justices pick up cards with case names on them and take charge of those cases. One of the cards Priscilla Owen picked up as the court began its 1996 session had "Miles v. Ford" written on it. "That kid's fate was decided when Justice Owen picked that card," said a lawyer who worked at the Supreme Court at the time.

Priscilla Owen was a Karl Rove candidate for the Supreme Court. An oil and gas lawyer from Houston, she had never been a judge when Bush's lifetime political advisor made her the candidate for an open seat in 1994 and helped direct her successful campaign. Republicans were methodically taking state government away from the Democrats, and Rove was the architect of the takeover, recruiting candidates for statewide office and directing their campaigns. Rove had advised the campaigns of every candidate on the Supreme Court (and the governor and both U.S. senators). On the bench, Owen positioned herself to the right of the court's most conservative justice, Nathan Hecht, whom she occasionally dated. They were kept in check (in the courtroom) by a centrist bloc led by Deborah Hankinson, a 1997 Bush appointee whom the Wall Street Journal described as "the rising star on the Texas Supreme Court."

Two years after the lawyers representing Willie Searcy and the lawyers representing Ford had requested an expedited hearing, Owen wrote the majority opinion. A process that could have been completed within months of the oral argument in November 1996 dragged on until Owen completed her opinion in March 1998.

Her opinion was stunning. Not because it ruled against Willie Searcy and his mother, Susan Miles, but because of how it ruled against them. Owens ruled the case would have to be retried in Dallas because it was initially filed in the wrong venue. Yet venue was not among the issues, or "points of error," the court said it would consider two years earlier when it took up the case. "We felt like we got ambushed," said Ayres. A lawyer who had worked at the court at the time agreed: "If venue wasn't in the points of error, it is unusual that the court addressed it. If the justices decide they want the court to address something not in the points of error, they would ask for additional briefing. They send letters to the parties and ask for briefing." There had been no letters and no requests.

Willie Searcy's case was a textbook example of "results oriented" justice that is common in Texas. Often, judges first determine the desired outcome of a case. Then they adapt the facts and the law to make it happen. It was also a glaring example of judicial activism, or making law from the bench, which is anathema to conservative Republicans -- unless it serves their purposes, as it did in the Terri Schiavo case.

These rulings are not entirely informed by the justices' love for certain principles of law. If the Texas Supreme Court is the most business-friendly bench in the nation -- and it is -- it's because corporate interests pay for the justices' election campaigns. Of the $175,328 Owen took in from the Texas defense bar while Willie Searcy's case moved through the courts, she got $20,450 from Baker Botts, the mega-firm run by Bush family consigliere James A. Baker III. Baker Botts was part of Ford's defense team. It was business as usual in Texas, where the defense bar now pours so much money into Supreme Court races that justices would be left sitting in their chambers if they recused themselves from cases in which their big donors are involved.

So Priscilla Owen is the perfect Bush appointee to the appellate bench. If she's not particularly distinguished as a jurist -- and she's not -- she has demonstrated her willingness to creatively interpret the law in service to both the business community and the extreme Christian right.

Owen was creative to the point of deviousness in the Searcy case. Her delay could be explained (at least in part) by the long, detailed opinion she decided to write. Yet the content of that opinion was as stunning as her ruling on a venue issue that hadn't been briefed before the court. While Willie Searcy waited for the money that would provide him adequate healthcare, Owen and her clerks spent months laboring over a precedent-setting opinion for a statute that no longer existed. It had been replaced by the 1995 tort-reform bill Bush pushed through the Legislature.

Why would a justice write a precedent-setting opinion to clear up contradictions in a law that was no longer on the books? "Priscilla Owen poured [Willie Searcy] out," the former court clerk said in the argot of civil litigation. Even Owen's colleagues were remorseful. The day after the court's decision, the entire court issued a rare addendum to the opinion: "[T]hese appeals should have been concluded months ago, we unanimously agree that the parties' request [for an expedited decision] should have been granted." The court had voted 5-4 against Willie Searcy. But it unanimously agreed to apologize for the unconscionable delay.

Ayres began the case again, this time in Dallas. Ruling on a point of law that wasn't raised in the appeals and writing about a statute that no longer existed, Owen had put him there. Ford's second round of procedural appeals finally ran out on June 29, 2001, when the Dallas Court of Appeals handed down a ruling that seemed to guarantee Susan Miles the money she needed to care for her son. The boy -- who had (heroically) graduated from high school, wheeled from class to class by an attendant who monitored the ventilator that kept him breathing and held a transducer to his throat to allow him to "talk" -- was now 21 and living by a system his parents had patched together.

Four days later, on July 3, the patchwork system of care unraveled. Willie's night attendant left at 4 a.m. At 5 a.m. Susan Miles walked into her son's bedroom and immediately realized that something was wrong. The ventilator was not working. "Aged out" of Medicaid at 21, Willie's weekly nursing allotment had been reduced from 104 to 34 hours. His working-class parents didn't have the resources to hire round-the-clock attendants or place him in a facility where he would have round-the-clock monitoring and care. What Jack Ayres had described nine years earlier as "a race to save this kid's life" had become a marathon. But it was over.

At a Senate Judiciary Committee hearing -- before Owen's appointment was blocked by Democrats the first time around -- Sen. Dianne Feinstein, D-Calif., asked Owen why the decision took so long while Willie Searcy's life was in peril. Owen's answer was straightforward and, for the record, honest.

"He didn't pass away while his case was before my court," she said.

About the writer
Lou Dubose is a former editor of the Texas Observer and coauthor, with Jan Reid, of "The Hammer: Tom DeLay, God, Money and the Rise of the Republican Congress."

Houston Chron: Owen at center of filibuster fight

The Senate moved closer Monday to a confrontation over a Republican threat to block a Democratic filibuster of some of President Bush's judicial nominees. Both sides pointed to the record of Priscilla Owen, a Texas Supreme Court justice who was nominated by President Bush four years ago and whose case may be used by Republicans in a procedural challenge to the filibuster.

Both sides use a Texas justice's record to argue their points

By BENNETT ROTH, Houston Chronicle
May 10, 2005

WASHINGTON - The Senate moved closer Monday to a confrontation over a Republican threat to block a Democratic filibuster of some of President Bush's judicial nominees.

Both sides pointed to the record of Priscilla Owen, a Texas Supreme Court justice who was nominated by President Bush four years ago and whose case may be used by Republicans in a procedural challenge to the filibuster.

Sen. John Cornyn, R-Texas, charged that Owen's nomination to the U.S. Fifth Circuit Court of Appeals has been stalled by Democrats eager to score political points.

"This debate is not about principle; it is all about politics and it is shameful," said Cornyn, who offered a detailed defense of Owen on the Senate floor while standing by an oversize photograph of the nominee.

But critics, including representatives from liberal Texas groups, contend that even on the Texas Supreme Court, now entirely Republican, Owen has stood out for her conservative dissents on issues from abortion to medical malpractice.

Democrats unapologetic

"Over time Texans have learned that when Owen is on the bench it is time for us to duck and cover," said Craig McDonald, director of Austin-based Texans for Public Justice.

McDonald was joined at a Capitol press conference by Sens. Charles Schumer, D-N.Y., and Edward Kennedy, D-Mass., who were unapologetic for blocking 10 Bush appellate court nominees in his first term.

"We're proud that we blocked Owen because over and over again she defines judicial activism," Schumer said.

Cornyn said the Texas groups opposing Owen, which include the American Association of University Women of Texas, the Lesbian/Gay Rights Lobby of Texas and NARAL Pro-choice Texas, were "outside the mainstream of Texas politics."

The public relations campaign and political maneuvering intensified as the senators returned from a break and marked the four-year anniversary of the first batch of judicial candidates nominated by Bush.

Republicans have threatened to change the rules that allow filibusters on judges and instead require a simple majority for confirmation. Democrats hold 44 of the Senate's 100 seats and it takes 60 votes to break a filibuster.

Bush urges simple vote

President Bush, traveling overseas, issued a statement saying his judicial nominees "deserved a simple up-or-down vote by the entire Senate."

As the rhetoric heated up, Senate Minority Leader Harry Reid, D-Nev., urged his colleagues to step back.

"Let's try cooperation rather than confrontation, which seems to be what we're doing here lately," he said.

As a peace offering, Reid said Democrats would not block a vote on Thomas Griffith for the U.S. Circuit Court of Appeals for the District of Columbia. Some Democrats have opposed Griffith, considered one of the least controversial nominees.

The Capitol Hill newspaper Roll Call reported Monday that Sens. Trent Lott, R-Miss., and Ben Nelson, D-Neb., were working on a compromise in which six GOP senators would continue to support the filibuster.

In return Democrats would agree not to filibuster four of the seven appellate court nominees that they oppose. Except in "extreme circumstances" Democrats would also agree to drop any filibuster of future judicial nominees as well as any Supreme Court picks.

The compromise was immediately panned by a number of Republican and Democratic senators, including Kennedy and Cornyn.

Liberal and conservative groups have stepped up efforts to pressure senators not to bend. People for the American Way, a liberal group, has been running ads urging senators to maintain the filibuster.

Meanwhile, a coalition of conservative groups demanded that Republicans fight the filibuster. "You can't compromise with a bully," said Jan La Rue, chief counsel for Concerned Women of America, referring to Democrats. "Losers get to vote, but they don't get to rewrite the rules."

San Antonio Express News: Rhetoric heats up in fight over judicial nominees

Senate Republicans marked the four-year anniversary of the nomination of Justice Priscilla Owen to an appellate court Monday with calls for an up-or-down vote and a threat to ban the filibuster.

Rhetoric heats up in fight over judicial nominees

By Gary Martin, San Antonio Express-News
May 10, 2005

WASHINGTON _ Senate Republicans marked the four-year anniversary of the nomination of Justice Priscilla Owen to an appellate court Monday with calls for an up-or-down vote and a threat to ban the filibuster.

"Walls of this obstruction must stop," said Senate Majority Leader Bill Frist, R-Tenn. "It is hurting the nominees, it is hurting the Senate, it is hurting the American people."

Democrats were joined by Texas civil rights groups that renewed their criticism that Owen is a judicial activist and warned that GOP threats against the filibuster would end a system of checks and balances.

Senate Democratic Leader Harry Reid, D-Nev., said the Senate has approved 205 of the president's judicial nominees and rejected only 10.

"The White House would rather pick a fight than judges," Reid said.

In a gesture of good will, Reid offered a Senate vote on Thomas Griffith, a former Senate lawyer nominated to the U.S. Circuit Court of Appeals for the District of Columbia. Griffith was tapped when Miguel Estrada withdrew after two years of Democratic opposition.

But in a statement released by the White House, Bush said each nominee should receive a vote from the full Senate.

In news conferences on Capitol Hill, both sides stepped up their rhetoric Monday as the Senate contemplates a vote to end unlimited debate, known as the filibuster, on judicial selections.

Sen. John Cornyn, R-Texas, said that for 214 years the Senate has given an up-or-down vote to a president's judicial nominees, yet it has denied Owen a vote.

"That's all we are asking for today," Cornyn said, "a restoration of that 214-year precedent."

Owen was nominated by Bush to serve on the New Orleans-based 5th U.S. Circuit Court of Appeals.

Her nomination was blocked in the 108th Congress when Republicans were unable to end a Democratic filibuster.

Earlier this year, Bush again nominated Owen, a Texas Supreme Court justice and Austin Sunday school teacher.

Her nomination was approved by the Senate Judiciary Committee along a straight party-line vote, but it faces opposition and the threat of a Democratic filibuster in the full Senate.

Texas civil rights groups were in Washington on Monday to back the Democratic opposition.

Texans for Public Justice and the Texas Abortion and Reproductive Rights Action League took part in a news conference to draw attention to Owen's judicial rulings.

"The opposition to Owen came straight out of the heart of Texas," said Craig McDonald, director of Texans for Public Justice.

McDonald said Owen is "uniquely extreme and uniquely activist" in her opinions that favor big business and anti-abortion and anti-consumer ideologies.

Owen has a penchant to write law from the bench, McDonald charged, "usually on behalf of the powerful and at the expense of the powerless."

Sen. Charles Schumer, D-N.Y., said "there is no question that when you look up judicial activist in the dictionary, you see a picture of Priscilla Owen."

Owen is one of seven Bush judicial nominees Democrats have threatened to filibuster.

Republicans, who hold a 55-44 majority in the Senate (there is one independent), are powerless to stop it under existing rules, which require 60 votes for cloture.

Frist is considering changing the rule to allow a simple majority to cut off a filibuster.

Some key Republicans, including Vice President Dick Cheney and former Senate Majority Leader Bob Dole, have warned the GOP leadership to move cautiously.

The seat on the 5th Circuit, which handles cases in Texas, Louisiana and Mississippi, has been vacant since 1997.

Sen. Kay Bailey Hutchison and then-Sen. Phil Gramm, both Texas Republicans, blocked two of President Clinton's nominees to the 5th Circuit.

Clinton nominated federal Judge Jorge Rangel of Corpus Christi in 1997 to fill the vacancy.

When Rangel withdrew because of opposition, Clinton then nominated federal Judge Enrique Moreno in 1999.

The Republican news conference featured two conservative Hispanic groups _ the Latino Coalition and the National Coalition of Latino Clergy _ who called on Congress to drop its opposition to judicial candidates.

Asked about GOP opposition to Rangel and Moreno, Robert de Posada, Latino Coalition president, said: "We criticized that then, and we criticize that now."

Salon: The woman who could detonate the "nuclear option"

Who will be the judge -- or judges -- Republicans send to the Senate floor for confirmation to trigger what they call the nuclear option, voting the Senate's 218-year-old filibuster rule out of existence? There are indications that Priscilla Owen will emerge as the public face of what's likely to be a wildly contentious battle that poses serious political risks for both parties.

The woman who could detonate the "nuclear option"

By Eric Boehlert, Salon.
May 3, 2005

With the White House signaling its intention to force a showdown over a handful of stalled judicial nominees, the question is no longer if it will happen but when, and with which nominees as first up. Who will be the judge -- or judges -- Republicans send to the Senate floor for confirmation to trigger what they call the nuclear option, voting the Senate's 218-year-old filibuster rule out of existence?

There are indications that Priscilla Owen will emerge as the public face of what's likely to be a wildly contentious battle that poses serious political risks for both parties. Senate Majority Leader Bill Frist singled out Owen for praise during his controversial videotaped appearance at the so-called Justice Sunday rally on April 25. And on April 28 Frist again highlighted Owen's plight as a stalled judicial nominee.

The White House has certainly shown unusual dedication to Owen's nomination. Since being chosen in 2001 as one of Bush's original slate of federal nominees, Owen, a justice on the Texas Supreme Court, has been unable to gain any support among Democrats, who uniformly reject her as an ideologue who tries to create law from the bench.

More troubling for her nomination is that when he was Owen's colleague as a justice on the Texas Supreme Court, Attorney General Alberto Gonzales accused her of trying to implement "an unconscionable act of judicial activism." The charge came during a heated abortion ruling in which Owen tried to make the burden for a minor even more onerous than the Texas Legislature intended. Time and again while serving with Owen, Gonzales admonished her for straying too far from the clear intent of Texas statutes. Today, however, Gonzales praises Owen as "superbly qualified," while her supporters try valiantly -- and at times imaginatively -- to explain away the damning "judicial activism" description.

But the Republicans' use of an allegedly activist judge as a battering ram in their campaign against judicial activism is just one of many layers of irony that surround Owen's nomination.

In another, Republicans complain bitterly that Bush's judges are not getting fair hearings, yet Owen is the first nominee in Senate history to be given a hearing, to be rejected by the Judiciary Committee, and then to be renominated to the federal bench by the president.

What's more, the opening on the 5th Circuit for which Bush nominated Owen exists only because Republicans for years refused to hold up-or-down votes on three judges nominated separately by President Clinton. Yet now Republicans are demanding an up-or-down vote on Owen.

"It's a house of mirrors," says Craig McDonald, director of Texans for Public Justice, a nonprofit corporate watchdog group that opposes the Owen nomination.

Paul Rosenzweig, a senior fellow at the conservative Heritage Foundation, dismisses the attacks on Owen. "She's well within the mainstream of judicial thinking. But the merits of her views are not driving this debate. For instance, I can't see a fig's worth of difference between her opinion's or Jeffery Sutton's on the 6th Circuit." (Sutton is one of Bush's nominees who was confirmed with the support of Democrats.)

Of course, as some observers have noted, the oncoming Senate showdown isn't just about Owen or any of the other stalled nominations. It's about U.S. Chief Justice William Rehnquist -- specifically, who will replace him when he retires as expected this spring or summer. The White House wants the filibuster rule off the table so it can nominate and -- with 55 votes in the Senate -- confirm virtually whomever it wants for that key post.

"My guess is that it's between Antonin Scalia and Clarence Thomas, and Thomas has the edge with Bush," says Jonathan Turley, a professor at Georgetown University School of Law, referring to the U.S. Supreme Court's two most conservative members. "So ultimately, this filibuster vote will be about Thomas. If the filibuster rule is not defeated, Thomas will never see the inside of the chief justice's chamber."

Owen may soon get the spotlight in the filibuster showdown. It's a star turn that seemed unimaginable just 11 years ago. Prior to being elected to the Texas Supreme Court in 1994 (Karl Rove served as her $250,000 campaign consultant), Owen practiced commercial litigation in Houston for 17 years, arguing one federal appellate case and one state appellate case and writing the briefs for one other state court appeal. According to the Texas Lawyer newspaper, Owen had toiled in "legal obscurity."

"She was a second-tier oil and gas litigator," McDonald says.

The American Bar Association rated Owen well qualified, but she received much lower marks from members of her local Houston Bar Association. According to its 2003 survey of Texas jurists, the most recent poll available from the association, just 43 percent labeled her work "outstanding," and 47 percent thought her performance on the bench was "poor." Hers was the highest "poor" rating of any of the justices on the all-Republican Texas Supreme Court. Interestingly, Owen received her lowest marks in response to the question asking whether she was "impartial and open-minded with respect to determining the legal issues."

"We're not talking about a jurist who's widely respected," Turley says. He supports nine of the 12 Bush nominees whom Democrats have balked at confirming. Owen is not among them. "She's a low-quality appointment," Turley says. "There's no reason why, on the merits, she'd be elevated to the federal bench. I could think of two dozen very conservative judges who could contribute more."

The Houston Chronicle concluded that Owen is "less interested in impartially interpreting the law than in pushing an agenda."

Editorial page writers might be dismissed as natural adversaries of Owen's. But between 1999 and 2000, the person who most effectively chronicled the judge's aggressive judicial activism while she was ensconced in the Texas court's ultraconservative faction and dissented on dozens of cases decided by the all-Republican court was none other than Attorney General Gonzales.

As the liberal advocacy group People for the American Way has documented, in the span of less than two years then-Justice Gonzales singled out Owen's dissents 11 times, accusing her of ignoring the legislative intent of laws and instead struggling to manufacture an outcome. "We're going to let Alberto Gonzales be our best witness," says Ralph Neas, president and CEO of the advocacy group.

In several decisions concerning Texas' Parental Notification Act, the Gonzales-led majority rejected the views of Owen and the other dissenters who regularly tried to make it harder for pregnant girls to obtain what's known in Texas as a "judicial bypass," meaning they didn't have to inform their parents before having an abortion. The majority scolded Owen, insisting that judges "cannot ignore the statute or the record," or try to create new law.

In a harmful-product case, Gonzales wrote that Owen's dissent (in favor of the manufacturer) would have required the court to act improperly and "judicially amend" the law.

In a wrongful-termination case, the Gonzales majority, which found in favor of a fired employee, criticized Owen's dissent, saying it "defies the Legislature's clear and express limits on our jurisdiction," adding, "We cannot simply ignore the legislative limits on our jurisdiction."

When not specifically accusing Owen of judicial activism, Gonzales and other members of the majority were dissing her legal thinking, waving off one dissent as "nothing more than inflammatory rhetoric and thus merits no response."

But it was Gonzales' now infamous putdown accusing Owen of "an unconscionable act of judicial activism" that has hung like an anchor around the judge's neck. The reprimand came in yet another parental notification case, a string of which dominated Texas Supreme Court headlines during its 2000 session. Once again, Owen in her dissent felt the girl in the case needed to do more to obtain a judicial bypass, saying she didn't think the minor had been adequately informed about the alternatives to abortion. (In a previous opinion, she had urged that a girl be required to show an understanding of the "philosophic, moral, social and religious arguments that can be brought to bear" before receiving a bypass, despite the fact Texas law simply required that minors be "mature and sufficiently well informed" about abortion.)

In its ruling in the more recent case, the all-Republican majority took time to lecture the dissenters, including Owen, regarding the proper role of judges, particularly with regard to emotional issues such as abortion. They emphasized, "As judges, we cannot ignore the statute or the record before us" -- the clear implication being that Owen had tried to do just that.

Additionally, Gonzales wrote a separate concurring opinion in which he criticized the far-right dissent for suggesting a "narrow construction" of the bypass provision that was nowhere to be found in Texas law. According to Gonzales, "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."

When Bush nominated Owen in 2001, critics latched on to the language used by Gonzales, who graciously tried to downplay it but never denied that Owen was his intended target. By the time of her first Senate confirmation hearing in 2002, however, Republicans had come up with an alternative (and convenient) explanation. Sen. Orin Hatch, R-Utah, condemned the use of the quote, suggesting that "someone should do a story about how often this little shibboleth has been repeated in the press and in several Web sites of the professional smear groups." Said Hatch: "The problem with it is that it isn't true. Justice Gonzales was not referring to Justice Owen's dissent but rather to the dissent of another colleague in the same case."

Hatch claimed that Gonzales' attack on judicial activism was directed at Justice Nathan Hecht, far and away the most conservative member of the Texas Supreme Court, who wrote vitriolic dissents throughout the Parental Notification Act saga. Writing in the Weekly Standard in July 2002, its publisher, Terry Eastland, took the same tack as Hatch, insisting that liberal groups' "anti-Owen reading of Justice Gonzales' words in In re Jane Doe is wrong." The real target, according to Eastland, was Hecht.

However, the key passage of Gonzales' concurring opinion begins, "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof" (emphasis added). The use of the plural "opinions" makes it clear Gonzales was not just referring to Hecht.

More recently, on April 21, PowerLine.com, the home of right-wing analysis, argued that any suggestion that Gonzales was attacking Owen is "ludicrous." Instead, Power Line's John Hinderaker insisted, Gonzales' language, which objected to efforts to "require a high standard of proof" for abortions, was directed at two of the three dissenters, but not to Owen because her dissent never tried to make it harder for minors to have abortions. Instead, according to Hinderaker, Owen dissented only because she felt the Supreme Court was conducting a fact-finding mission in the case, which is the job of the trial judge. "Thus, on its face, Gonzales' criticism of 'judicial activism' did not apply to Owen's dissent," Hinderaker wrote.

That's just not true. In Owen's dissent she clearly objects to the majority's ruling, complaining: "Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives." That statement has nothing to do with concerns about an appellate court overstepping its bounds. Owen, creating a higher standard, simply didn't think Doe did enough to obtain a bypass.

Perhaps more important, this novel, everyone-but-Owen spin clashes with the updated explanation Owen herself offered at a second Senate hearing in 2003. There, she expanded on Hatch's 2002 theory that Gonzales was not referring to her by suggesting that he was not referring to any of the Texas Supreme Court justices: "I do not believe that he was attacking me, or for that matter, any dissent on the court," Owen testified.

The final, and most puzzling, Republican evolution came this January during Gonzales' confirmation hearing as attorney general. Asked about Owen by Sen. Sam Brownback, R-Kan., a supporter of Owen's nomination, Gonzales took the fall on behalf of the embattled nominee: "My comment about an act of judicial activism was not focused at Judge Owen," he said. "It was actually focused at me." He added, "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."

In other words, if Gonzales hadn't followed what he believed to be the true intent of the statue by granting a judicial bypass to the Jane Doe minor, then he would have been guilty of an "unconscionable act of judicial activism."

"Absent any indication that Gonzales was lying to the Senate, I credit his statement," says Rosenzweig at the Heritage Foundation.

But for some legal scholars, the attorney general's latest explanation was just too much. "In a city that revolves on spin, that spin is so great it threatens to take the Earth off its axis," says Turley.

Even some hardcore conservatives seem to agree. When the topic of Gonzales and Owen came up recently on FreeRepublic.com, one member posted the exact language Gonzales had used in his opinion. The Freeper concluded, "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?"

Ultimately Owen's dissents in the Texas abortion cases have served as a double-edged sword, helping make her a hero among the members of the right wing who pushed for her unlikely nomination, but also leading her to be tagged as a judicial activist by Gonzales just when Republicans were railing against judicial activism. (Ironically, Gonzales' more moderate approach in the same abortion cases could cost him a seat on the Supreme Court; influential anti-abortion groups claim the rulings prove he's too soft to be trusted.)

If Owen does end up as the public face of the filibuster showdown, it will be fitting, McDonald says. "They're using the most extreme tactics for the most extreme justice."

TPJ & TARAL Call GOP Protest on Judges "Partisan Grandstanding"

"Republicans in the White House and the U.S. Senate have created a phony judicial crises for the sole purpose of partisan showboating. President Bush is to blame for the gamesmanship over federal judges. The Senate, under its longstanding filibuster rules that are designed as a check on abuse of majority power, has blocked only four of Bush's most extreme judicial nominees, Priscilla Owen among them. The White House and Republican leaders in the Senate have childishly insisted on forcing the Senate to keep voting on these rejected nominees. Bush can quickly end these games by withdrawing the Owen nomination, and those of the other rejected judges, and instead nominate moderate judges who share mainstream values," said Craig McDonald, Director of Texans for Public Justice.

Groups Criticize Senator Cornyn for
Pushing Phony Crises for Partisan Gain

For Immediate Release:	For More Information Contact:
November 12, 2003	Craig McDonald, 512-472-9770

Statements of Kae McLaughlin, Executive Director of Texas Abortion & Reproductive Rights Action League (TARAL) & Craig McDonald, Director of Texans for Public Justice

Austin, TX: "Republicans in the White House and the U.S. Senate have created a phony judicial crises for the sole purpose of partisan showboating. President Bush is to blame for the gamesmanship over federal judges. The Senate, under its longstanding filibuster rules that are designed as a check on abuse of majority power, has blocked only four of Bush's most extreme judicial nominees, Priscilla Owen among them. The White House and Republican leaders in the Senate have childishly insisted on forcing the Senate to keep voting on these rejected nominees. Bush can quickly end these games by withdrawing the Owen nomination, and those of the other rejected judges, and instead nominate moderate judges who share mainstream values," said Craig McDonald, Director of Texans for Public Justice.

"The Republican leadership in the U.S. Senate is emboldened by their overwhelming anti-choice victories. Now, they are determined to tear down the one barrier left that is protecting reproductive rights---the federal courts," said Kae McLaughlin of TARAL.

"By ramming radical, extremist nominees through the U.S. Senate and into lifetime appointments on the federal courts, President Bush wants to ensure that the courts are dominated by anti-choice activists for decades to come," said McLaughlin.

"Owen's record was thoroughly reviewed by the U.S. Senate and she was found to be too extreme and too far from the mainstream. Owen should be firmly rejected again," said McLaughlin.

"Texas Senator John Cornyn is piling on in the GOP's partisan, cynical charade. While whining about what he calls 'unprecedented obstructionism,' Cornyn ignores the fact that the Senate has approved 168 of President Bush's more moderate judicial nominees. This is more judges than were confirmed in the first four years of the Reagan Administration. When Republicans controlled the Senate, they shamelessly blocked 60 of President Clinton's nominee," said McDonald.

"Senator Cornyn's time would be better spent working for all the people of Texas, not just those in the extreme right wing of the Republican Party," said McDonald.

The following Texas organizations oppose Priscilla Owen's nomination to the federal bench.

American Association of University Women of Texas, Gray Panthers of Texas, Greater Dallas Coalition for Reproductive Freedom, Mexican American Legal Defense and Education Fund (MALDEF), National Council of Jewish Women, Texas, National Organization for Women, Texas Chapter, Planned Parenthood of West Texas, Religious Coalition for Reproductive Choice in Texas, Texas Abortion and Reproductive Rights Action League (TARAL), Texas Association of Planned Parenthood Affiliates, Texas AFL-CIO, Texas Civil Rights Project, Texas Employment Lawyers Association, Texas Freedom Network, Texans for Public Justice, Texas State Conference of NAACP Branches, Texas Watch, Texas Women's Political Caucus, Women's Health and Family Planning Association of Texas, Women's Issues Network-Dallas

Texas Monthly: Judging Priscilla

The embattled Texas Supreme Court justice whose appointment to the U.S. Fifth Circuit Court of Appeals has stalled for the second time over charges of "ultraconservative judicial activism"
now finds herself in the middle of another controversy, this one the oil-patch equivalent of a range war.

Judging Priscilla

by Paul Burka, Texas Monthly
October 20, 2003

POOR PRISCILLA OWEN. The embattled Texas Supreme Court justice whose appointment to the U.S. Fifth Circuit Court of Appeals has stalled for the second time over charges of "ultraconservative judicial activism" now finds herself in the middle of another controversy, this one the oil-patch equivalent of a range war. It's the landowners versus the oil-and-gas producers who pay them royalties-and if you don't know how vicious this feud can be, you haven't seen the 1956 classic Texas film Giant, with Rock Hudson as cattle baron Bick Benedict and James Dean as new-rich producer Jett Rink. The legal battle involves the opinion favoring producers that Owen wrote in August in an oil-and-gas case known as Natural Gas Pipeline v. Pool. This flare-up and an earlier one over an Owen opinion with the same pro-producer outcome in a case called HECI v. Neel have passed unnoticed in the political brouhaha over her appointment, because they involve an obscure area of the law that, on the surface, is just a fight between rich folks and richer folks. But the issue is the same as in her confirmation battle: Is she a judicial
activist who rules according to her ideology rather than the law?

In the political arena, the criticism of Owen comes from liberal groups such as People for the American Way, the National Organization for Women, and the NAACP, and it involves her stands on hot-button issues like abortion and discrimination. "She reflexively favors manufacturers over consumers, employers over workers, and insurers over sick people," said the New York Times in an editorial opposing her appointment. In the oil-and-gas arena, the criticism of Owen comes from lawyers and law professors who have seen decades of precedents favoring landowners tossed aside to favor producers. Laura Burney, a professor at St. Mary's
University law school, in San Antonio, says of HECI's pro-producer stance, "Apparently I have been teaching oil and gas law wrong for the past fifteen years. I still agree with the Court of Appeals opinion [favoring Neel] in HECI." The reason to look at these cases, then, is to view the work of Priscilla Owen apart from emotional issues, in a legal realm in which most of us do not start out with a predetermined bias and in which she is a recognized expert.


Exhibit 1: Natural Gas Pipeline v. Pool.

The case began in the dusty files of the Texas Railroad Commission, where researchers poring over decades-old records uncovered numerous instances of wells near Amarillo that had stopped producing natural gas for days or months at a time, as long ago as the forties and fifties, only to resume production later. Under Texas law, a stoppage in production-unless there is a good reason for it, such as a mechanical breakdown or an agreement that permits interruptions-terminates the producer's right to the oil and gas, which returns to the landowner. The research generated a slew of lawsuits by landowners and royalty owners, Pool among them. Cases like these-one side trying to play "gotcha!" with the other-are not the most shining examples of the law's majesty, but they do reflect the ill will that frequently accompanies the landowner-producer relationship.

The legal doctrine that applies to stoppages of production is so well settled that it has acquired an acronym: TCOP, for "Temporary Cessation of Production." After production begins, a temporary delay due to some reason beyond the producer's control does not result in a forfeiture of rights. What appeared to be a straightforward TCOP case-in which the argument would focus on whether the cessation was both temporary and justified-evolved into an opportunity for Priscilla Owen to rewrite Texas oil-and-gas law on behalf of producers. She bypassed the TCOP doctrine to blaze a trail where the Texas Supreme Court had never ventured: Even if the producer had lost its right to the oil and gas, she wrote, it had regained the right, and breathed new life into its
lease, through adverse possession (commonly known as squatters' rights).

This was too much of a detour from the legal mainstream for Owen's colleague Justice Wallace Jefferson, who dissented. He pointed out the age-old rule that adverse possession requires some sort of notorious, hostile action that provides the original landowner with notice of the adverse claim. But here, he wrote, "Both the [producer] and [landowner] proceeded as though the leases were still in effect. Thus, the [producer's] possession was arguably permissive and not hostile." What troubled Jefferson most was that the decision could wreak havoc, disturbing "the delicate [landowner-producer] relationship." It certainly renders the TCOP doctrine comatose; no longer does it matter whether the cessation was the result of an accident or deliberate. The latter was apparently the case in Natural Gas Pipeline (the producer was hoping that prices would rise). Above all, Jefferson was concerned that Owen's reasoning could allow producers in future cases to claim that they no longer had to pay royalties-that adverse possession allowed them to claim all of the production, including the fraction previously held by royalty owners. In short, it is a license to steal. As Owen's critics go, Jefferson can hardly be classified as a liberal. He is a Rick Perry appointee to the court and is, like Owen, like all nine justices on the court, a Republican.


Exhibit 2: HECI v. Neel.

Russell Neel, a Fayette County (La Grange) landowner, gave HECI Exploration the right to produce oil and gas on his land in return for a one-sixth royalty payment. In 1988, three years
after HECI began pumping oil, the company discovered that another producer, operating on adjacent land not owned by Neel, had damaged the underground reservoir, making it impossible for HECI to extract some of the oil. HECI sued the other operator in 1989 and won $3.7 million for its lost production. But it never told Neel about the damage to the reservoir or about the lawsuit and its outcome, and it never paid him a dime for the royalties he lost. Eventually Neel, and his children who lived out of state, learned about HECI's lawsuit. They sued HECI for
failing to keep them informed and for not paying them their one-sixth share, as royalty owners, of the $3.7 million HECI pocketed.

Precedent favored the Neels. Producers have a duty to protect the rights of royalty owners. The duty is not written down in the agreement between the producer and the landowner, but it's so self-evident that the Texas Supreme Court has repeatedly recognized its existence-for a century. Landowners don't have the expertise to punch a hole in the ground and produce oil and gas; they sign an agreement with someone who does. But the Neels had one problem: the statute of limitations. They had sued HECI five years after the producer had learned about the damage to the reservoir. The deadline for bringing such cases is four years after the event becomes known. Still, this didn't seem like a major obstacle. The standard rule is that the statute of limitations doesn't apply if the information was "inherently undiscoverable" by a landowner using "due diligence."

It is open-ended terms like these that make lawyers rich and provide judges with opportunities for mischief. What is "due diligence"? How in the world were the Neels supposed to discover what was happening deep underground on somebody else's land? Were they supposed to hire an
expert to pore over technical Railroad Commission documents? (Even if they had, the documents would not have revealed the crucial fact of reservoir damage.) Or hire an expensive engineer on the off chance that something had gone wrong? Apparently so. A royalty owner, Priscilla Owen wrote, "knows or should know that, when there are other wells drilled in
a common reservoir, there is the potential for drainage or damage to the reservoir." In other words, the mere appearance of nearby wells was enough to put royalty owners on notice that their own producer might have cause to cheat them.

And so Owen wrote that the Neels must lose; their lawsuit was defeated by the statute of limitations because the damage to the reservoir was, in her view, discoverable. Before her opinion in the HECI case, the responsibility was on the producer to protect the landowner. After her opinion, it's on the landowner to protect himself. The burden she placed on landowners and royalty owners was so unrealistic, and so far removed from previous Texas law, that the HECI case was the subject of an annual oil-and-gas seminar sponsored by the University of Texas law school in 2001. A Houston lawyer named Paul Simpson wrote a bluntly critical analysis of the case that began, "The Texas Supreme Court's 1999 opinion in HECI v. Neel was not supported by the record in that case, departed from established oil and gas law, and deviates from the mainstream of law in other major producing states." Like Justice Jefferson, Simpson hardly qualifies as a liberal. He was at the time the treasurer of the Harris County Republican party.

A high-profile judicial appointment always involves two issues. One is the nominee's political views. The other is the nominee's judicial temperament. The latter is much more important than the former. The president of the United States is entitled to appoint a judge who reflects his own political views. So long as that judge is committed to exercising self-restraint, respecting long-established precedents, and considering the potential unintended consequences of her rulings, we don't need to worry about whether ideological zeal will run amok. The trouble with the foregoing Priscilla Owen opinions, however ingeniously constructed the arguments may be, is that they do not reflect self-restraint, respect for precedent, or concern with unintended consequences. The proper standard for judicial appointees should be that they "interpret the law, not try to make the law from the bench"-and if that sounds familiar, it's because President Bush himself said it.

Houston Chronicle: Owen's record gives reason for pause on judicial post.

Earlier this month, 44 U.S. senators refused to go along on a vote that would have ended a filibuster on the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Good. Owen's judicial record shows less interest in impartially interpreting the law than in pushing an agenda.

Owen's record gives reason for pause on judicial post.

Houston Chronicle Editorial
May 11, 2003

Earlier this month, 44 U.S. senators refused to go along on a votethat would have ended a filibuster on the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Good. Owen's judicial record shows less interest in impartially interpreting the law than in pushing
an agenda.

The problem is not that Owen is "too conservative," as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

On cases that have reached the Supreme Court in which minor girls have tried to get a judge's permission to avoid having to tell their parents they want to have an abortion, Owen and fellow-Justice Nathan Hecht have tried to set up legal hurdles so high hardly any girl in Texas could qualify.

The complaints against Owen's conduct on the bench run from a penchant for overturning jury verdicts on tortuous readings of the law to a distinct bias against consumers and in favor of large corporations. Some detractors find her demeanor unbecoming of a judge (according to one report, Owen actually turned her back to an attorney arguing before the court).

One troubling case cited by Owen critics involved the Ford Motor Co., which lawyers for a paralyzed teenager sued over a seat belt they alleged was faulty. Owen cited problems with where the matter had been litigated in rejecting the trial jury's verdict favoring the teen, but venue was not even a matter the parties had brought up.

In another case Owen's opinion allowed now-disgraced Enron to avoid paying millions in school taxes to the Spring Independent School District by choosing its own asset valuation date. The company picked a date on which gas prices were at their lowest. Although an appellate court had
made a plausible argument that it was unconstitutional for a state law to give some taxpayers such an unfair advantage over others, Owen's opinion upheld Enron's view.

Democrats showed with the recent confirmation of Bush nominee Edward Prado of San Antonio to the 5th Circuit that they don't want to sink all the president's judicial picks. In fact, the Senate has confirmed 124 judges since July of 2001, choosing to filibuster on only two, Owen and Miguel
Estrada, Bush's pick for a seat on the U.S. Court of Appeals for the District of Columbia.

The public should question why President Bush chooses to put up such ideologically driven nominees. Now, Bush has nominated James Leon Holmes, a former president of Arkansas Right to Life, for a judicial post in that state. This is a man who has written that women should subordinate themselves to their husbands and that rape victims get pregnant with about the same frequency as snow falls in Miami.

The Democrats' stalling on Owen's nomination is political, to be sure. But it also represents a rational desire to prevent the lifetime appointment of a justice who has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law. Anyone willing to look objectively at Owen's record would be hard-pressed to deny that.

NYT: G.O.P. Fails in Bid to End Filibuster Against Texas Judge

The battle over judicial confirmations escalated today as Senate Republicans failed to end a filibuster by Democrats blocking a vote on President Bush's nomination of Priscilla R. Owen to a seat on a federal appeals court.

G.O.P. comes up 8 votes short on Owen

May 2, 2003, Friday
By NEIL A. LEWIS, New York Times

WASHINGTON, May 1 -- The battle over judicial confirmations escalated today as Senate Republicans failed to end a filibuster by Democrats blocking a vote on President Bush's nomination of Priscilla R. Owen to a seat on a federal appeals court.
The Democrats said that as a justice of the Texas Supreme Court, Justice Owen has allowed her anti-abortion and pro-business personal views to color her judicial opinions. When Senator Bill Frist of Tennessee, the Republican leader, moved to end the filibuster, he fell 8 votes short of the 60 needed.

Two Democrats, Senators Zell Miller of Georgia and Ben Nelson of Nebraska, joined the 50 of the 51 Republicans who voted today.

The Democrats, who have argued that President Bush is trying to pack the court with conservative ideologues, have now taken the highly unusual step of using filibusters to block two of the president's appeals court nominees. A filibuster blocking a confirmation vote on the nomination of Miguel Estrada, a Washington lawyer, to an appeals court seat in Washington will soon enter its fourth month.

"With Judge Owen, the record is crystal clear,'' said Senator Charles E. Schumer, Democrat of New York. ''In instance after instance, she has not subjugated her own feelings but let them dominate her decision making. That is not what a judge ought to be doing."

Republicans took a starkly different view, though one expressed with the same emotional intensity as their Democratic counterparts.

"I think a great injustice has been done today," said Senator Kay Bailey Hutchison, Republican of Texas. "A wonderful person, an academic judge, a person who has all the qualifications has been turned down today. And most of all, a person who has shown her judicial temperament by the ordeal that she has been through and her demeanor during that ordeal. She has shown class."

At the center of the debate about Justice Owen's fitness for the bench is her dissent from a ruling in Texas interpreting the state's law allowing a teenager to obtain an abortion without notifying her parents if she can show a court that she is mature enough to understand the consequences.

In the 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.

One of the other justices on the court at the time was Alberto R. Gonzales, now the White House counsel. He wrote that the reading of the law by the dissenters was "an unconscionable act of judicial activism."

Justice Owen has said that Justice Gonzales was not referring to her. Mr. Gonzales has, in interviews, acknowledged he was referring to her and said that his description of her as a judicial activist was merely heated language among judges who disagreed.

While the first floor fight over the Owen nomination was occurring, another judicial nomination drama was being played out across the street in the Judiciary Committee, which was considering President Bush's nomination of J. Leon Holmes to be a district judge in Arkansas.

Senator Orrin G. Hatch, the Utah Republican who is chairman of the committee, did not ask for a vote on approving the Holmes nomination as is customary. Instead, he took the extraordinary step of asking that the committee vote to send the nomination to the full Senate without a recommendation.

Mr. Hatch was apparently concerned that some Republicans on the committee were not completely comfortable with the nomination after disclosures that Mr. Holmes, an ardent opponent of abortion, had made several notable comments about the role of women in society.

In 1997 Mr. Holmes wrote that "the woman is to place herself under the authority of the man." He had also written that abortion should not be available to rape victims because conceptions from rape occur with the same frequency as snow in Miami. Most of the combat over judicial confirmations has been over appeals court judges, the level just below the Supreme Court, and the nomination of Mr. Holmes to the trial court had initially attracted little notice.

But at a committee session last week, Senator Dianne Feinstein, Democrat of California, said that she had never voted against a district court nominee but that she found Mr. Holmes's remarks shocking.

"I do not see how anyone can divine from these comments that he has either the temperament or the wisdom to be a judge," Senator Feinstein said. Senator Hatch said today that he was concerned about some of those remarks and that Mr. Holmes had expressed regret for some. But the most important factor, the senator said, was that many people in Arkansas, including the state's two Democratic senators, Mark Pryor and Blanche Lincoln, still supported the nomination.