Karl Rove's Legal Tricks
Perhaps the most troubling characteristic of Owen's pro-business record is the determination with which she has led fights to erect barriers that prevent injured consumers from recovering damages from corporations, that restrict the ability of civil juries to side with plaintiffs who sue corporations and that undermine antidiscrimination protections--particularly for women. Owen dissented from a ruling that upheld a jury verdict awarding a woman $160,000 in damages from a vacuum-cleaner sales company after she was raped by one of the firm's door-to-door salesmen; Owen argued that it was unreasonable to have expected the corporation to do the background check that would have revealed the man's previous arrest for indecency with a child.
After Owen was nominated for the Fifth Circuit bench, groups including the Texas AFL-CIO, the Texas Civil Rights Project, the Women's Health and Family Planning Association of Texas and the National Council of Jewish Women sent a letter to President Bush that stated in part: "Justice Owen's activism betrays a judicial philosophy at odds with your own stated goal of nominating judges who will interpret rather than write the law." In a letter to Senate Judiciary Committee chair Patrick Leahy, a prominent Houston attorney who is board certified in civil appellate law wrote: "Justice Owen is the type of judge who can ignore facts--when it helps corporations to do so--yet rail against the failure of her fellow Texas Supreme Court justices to pay more attention to the facts when she wants the court to stop a minor from getting an abortion."
Again and again, the conversation about Owen circles back to abortion. It is on this issue, above all others, that she has distanced herself even from fellow conservatives. In every decision she has written on this issue, she has argued against a woman's right to choose. In a dozen "Jane Doe" cases in which the court was asked to allow a pregnant teenager to bypass the state's parental notification requirements and receive an abortion, Owen voted every time to deny the bypass. When lawyers for a college-bound teenager who was in her fifteenth week of pregnancy--and who had already endured more than a month of legal delays--asked that the high court expedite action on the high school senior's request for permission to bypass the parental notification requirement, the court majority quickly granted the bypass. Owen wrote a dissent that asked: "Why then the rush to judgment?"
"We're going to hear people complaining that Justice Owen is being attacked unfairly by individuals and groups that raise questions about her approach to abortion issues," says Sarah Wheat of the Texas Abortion and Reproductive Rights Action League. "But Justice Owen is the one who has made abortion an issue." Noting the nominee's activist record, Wheat adds, "Senators have a responsibility to determine whether federal court nominees can be trusted to uphold the law."
When the Judiciary Committee holds its hearing on Owen, perhaps as early as this month, some Democratic senators are certain to raise concerns. But committee members are already feeling intense pressure from Bush supporters. The Vermont Republican Party is attacking Leahy for creating a "judicial crisis" with his failure to advance the Owen nomination, while the Traditional Values Coalition is attacking him nationally as "an out-of-control chairman leading an out-of-control committee in a time of war." Some Judiciary Committee members, such as New York Democrat Chuck Schumer--who has complained about the Administration's attempt to "stack the nation's bench with right-wing ideologues"--have sent clear signals that they are willing to reject nominees who are not "mainstream" jurists. But there are no guarantees that the committee's Democratic majority will follow Schumer's standard. Some prochoice Democrats, such as Wisconsin Democrat Russ Feingold and North Carolina's John Edwards, have expressed reservations about rejecting nominees on ideological grounds.
Veteran observers of nomination fights say that the Judiciary Committee vote on Owen's nomination could set the parameters not just for future appeals court nominations and confirmations but for the Supreme Court nomination clashes. With the rejection of Pickering, Democrats on the committee signaled that they were willing to block the nomination of a judge with a troubling record of racial insensitivity. Now the question is whether the committee will take into account other forms of extremism--on issues such as workplace discrimination, corporate responsibility and, above all, the right to choose.
Texan Craig McDonald sees it as a worthy battle. "You hear talk about whether this judicial nomination or that judicial nomination deserves to be more controversial," he says. "I would just say that as far as those of us who have watched Priscilla Owen and Karl Rove and George W. Bush for a lot of years are concerned, this is the one that deserves to be controversial." McDonald adds that "the Owen nomination is not a Texas fight or a Fifth Circuit fight. This is really a struggle to determine whether a political operative, Karl Rove, and his crew are going to determine the makeup of our federal courts."