Owen at Center of Battle Over Judicial Nominations

Justice Priscilla Owen

Texas Supreme Court Justice Priscilla Owen, a nominee to the federal bench, appears in Senate Majority Leader Bill Frist's office May 17, 2005. Reuters hide caption

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Melissa Block talks to Bennett Roth of the Houston Chronicle about Texas State Supreme Court Justice Priscilla Owen. Roth is working on a profile of Owen. She is "an exceptional jurist," according to one former colleague. But a group opposed to her nomination to the federal bench calls Owen "an extremist jurist even by Texas standards."

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MELISSA BLOCK, host:

Priscilla Owen was first elected to the Texas state Supreme Court in 1994. Before that, she was a corporate lawyer in Houston specializing in oil and gas litigation. Owen was just 23 when she graduated in the top of her class from Baylor University's School of Law. She was the top scorer on the Texas Bar Exam. Now at 50, she's one of the flash points in the Senate fight over judicial nominees.

The ruling most frequently cited by her opponents is Owen's dissent in a chain of cases brought before the Texas court in 2000. The cases had to do with parental notification of abortion for a minor. Bennett Roth of the Houston Chronicle is working on a profile of Justice Owen. We asked him to explain what the Texas law says and what Owen wrote in her dissent.

Mr. BENNETT ROTH (Washington, Correspondent, Houston Chronicle): Well, the Texas law provides that you have to get parental notification if you're a minor, but it allows for minors in precarious situations, violent parents or whatever, to go to the court and get a bypass, or the court will rule that they do not have to get their parental notification.

The problem is the Texas law was a bit vague as to what are the circumstances in which the court can grant a bypass, and so the Supreme Court in 2000 was trying to set out the parameters. And Owen was generally on the dissenting view of that and a strict constructivist. And basically, the minor had to have a higher standard of proof of what she had to do to convince the court.

BLOCK: And what were some of the things that Justice Owen cited about what minors would need to do to convince the court?

Mr. ROTH: Well, it was more--there was one case, for example, where the minor said that the father was an alcoholic and that would beat the mother if the mother did something that dissatisfied him. So the minor did not want to tell the mother, because the mother would get beaten up. And the majority of the court said, `Well, you know, that's enough to convince us that this minor shouldn't have to get a parental notification.' Priscilla Owen did not agree with that, that--saw that that was not, you know, enough emotional distress.

And there was also cases in where the court ruled that the college-bound high school senior was mature enough and well-informed enough to have an abortion without notifying her parents. Priscilla Owen did not feel that was the case, that she needed to consider more the religious objections as well as other alternatives, that kind of thing.

BLOCK: Alternatives to abortion, in other words.

Mr. ROTH: Yes.

BLOCK: One interesting wrinkle in all of this is that Alberto Gonzales, who's now attorney general, was serving at the time with Justice Owen on the Texas state Supreme Court, and he concurred in the majority opinion to which Justice Owen dissented. He wrote that if you followed the dissenter's narrow interpretation of the Texas parental notification law, it would be, in his words, `an unconscionable act of judicial activism.'

Mr. ROTH: Yes, he did. Now there have been various interpretations of that. I mean, some are saying that Justice Gonzales was referring to himself, that he didn't want to impose his own views on abortion and how he was justifying his own ruling. But there are other people that said he was taking a little bit of a slap at Priscilla Owen's opinion.

BLOCK: And Justice Owen's supporters have taken great pains to point out that he was not calling Justice Owen herself a judicial activist.

Mr. ROTH: No. I mean, he was referring to the dissent, in general, and she was not the only one dissenting.

BLOCK: There are a number of other rulings that Justice Owen's opponents are calling anti-consumer in her time on the Texas state Supreme Court; rulings that seem to favor corporations over individuals, her opponents say. What are some of those rulings? How has she come down?

Mr. ROTH: Well, there's one study by Texas Watch, which is a liberal group, but they looked at all the decisions. They found that since 1999, Justice Owen has not dissented in a single case where the court ruled in favor of business or government against consumers; there are 175 such cases. This study's trying to show that even on a conservative court, she's been a bit out of the mainstream on that.

BLOCK: I suppose Justice Owen's backers would say she's not out of the mainstream; she is a conservative voice on a conservative court.

Mr. ROTH: Yes. And what they say also is that she's not like she's made new law or gone so far afield, but indeed, she has been often, you know, among the two or three dissenters. Now what has happened on the court--when she first came on the court, the court swung from majority Democrat to majority Republican, and over time, it's become majority--all Republican. So the court itself has moved to the right, and she's probably become more in the mainstream of that court.

BLOCK: It also seems that Priscilla Owen--if you want to get a clue to her beliefs, you need to stick to her rulings. She hasn't been prone to making speeches or writing articles for Law Review or anything like that.

Mr. ROTH: No, no, she's not, although she does have quite a body of opinions to look to. But no, she is not out there making incendiary speeches or any kind of speeches.

BLOCK: If you talk to people in Texas, maybe lawyers who've argued before her, fellow judges, what do they say about Priscilla Owen, her judicial temperament?

Mr. ROTH: They think she's very bright and, you know, well-reasoned. It's interesting. I was talking to one of her--the woman who actually convinced her to run for this, for the Supreme Court in Texas. She said that at first, though, she had a reputation for being very intimidating, that young lawyers in the law firm were--you know, when they were assigned a case with her, were very scared of going into her, but that once they started working with her, found her to be, you know, very amiable and very thorough.

I mean, I haven't discerned anyone--I mean, that doesn't--that feels that she's unfair as a judge. One thing I think we should point out, too, is that she has no experience in the criminal area, that the Texas Supreme Court is a civil court. So that's a big gap in trying to figure out, you know, where she might stand.

BLOCK: Mm-hmm. And her experience...

Mr. ROTH: On, you know, things--you know, the death penalty or things like that, which are big cases that will come before the 5th Circuit.

BLOCK: Bennett Roth, thanks very much.

Mr. ROTH: OK. Thank you.

BLOCK: Bennett Roth, Washington correspondent for the Houston Chronicle, talking about Justice Priscilla Owen, President Bush's nominee to sit on the 5th US Circuit Court of Appeals.

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