Democratic Underground  

Appointment Embarrasses Administration
July 31, 2002
By Nicholas Pyeatt

Sometimes a person is so wrong that they are almost right. In the case of the appointment of Priscilla Owen, Bush has gone so wrong that he is past right and back to wrong again. An unquestioning judicial activist, Owen would do much to solidify the president's support with the right-wing elements in the country. This appointment is further proof of the double standard that Bush applies in judicial appointments. While frequently criticizing liberal judicial activism, he is blind to the extreme judicial revisionism extolled by one of his home state judges.

Far from a conservative justice, Owen is one of the most radical judges on one of the most conservative courts in the country. The Texas Supreme Court is not a friendly court for women's rights, consumer protections, or employee rights, but even its conservative justices could not agree with the aggressive right-wing rewriting of the state's laws advocated by Owen. One of the court's most frequent dissenters, Owen sought to use her power as a justice to interpret the laws of the state to coincide with her extreme pro-corporate, anti-consumer, anti-choice personal agenda. While all Americans are welcome to their own political opinions, Supreme Court justices should attempt to be non-biased. Owen made no such attempt.

In the case of Quantam Chemical Corp. v. Toennies the court ruled that age discrimination transpires whenever age was a motivating factor in the employee's termination. This ruling was based upon the Texas anti-discrimination law that states that discrimination occurs when age is, "a motivating factor…even though other factors also motivated the practice." Simple enough, right? The court based their ruling in this case upon the text of the anti-discrimination law. Despite the simplicity of this case, Owen's dissent attempted to amend the statute on the spot, claiming age must be "the determinative factor." Regardless of the fact that this would have made age discrimination cases more difficult to prove, it is an example of the contempt Owen has for the work of lawmakers.

One errant case could be the example of an overworked justice, but Owen has throughout her career pursued revisionist policies. In a much publicized case concerning the state's parental notification law for abortion, Owen proved her credentials as a judicial activist. This law, which passed in Texas after an exceedingly contentious debate, included a provision that allowed minors to seek an abortion without their parent's consent if they were potentially at risk for abuse from their parents.

In the case of Jane Doe3, Owen took a radical view of this bypass clause. The minor in question informed the court that her father was an alcoholic and at times "became physical" with her mother. Owen dissented from the majority and argued that the minor's testimony was insufficient to grant a bypass and the minor had not proven the abuse of her mother. This strict burden of proof was unacceptable to the majority and is directly contrary to the law, which states that a bypass shall be granted when notification "may lead" to abuse. Since the purpose of the law was to protect minors from abuse, Owen's standard was excessively strict and not based upon the text of the law but upon her desire to limit abortion through the judicial system.

This is merely one example of reinterpreting laws to fit her narrow-minded viewpoint. Owen throughout her career has used creative reasoning and specious logic to advance her fanatical views.

Given that the Republican Senate held up almost all of the Clinton's judicial appointments for the final six years of his presidency, Bush should have been prepared for this nomination battle. The intelligent action in this situation would have been to appoint a justice of unquestioned ability and ethics. A non-controversial justice could have passed through the Judiciary Committee in this compliant Senate. The administration took the opposite tact and, appealing to its far right constituency, produced a nomination that would have been divisive under any circumstances.

The Judiciary Committee should summarily reject Owen and politely inform the Administration that no appointees will advance unless they are moderate and reasoned jurists. Priscilla Owen does not pass either test. After extensive review of her decisions and dissents the only thing acceptable about Owen is her grammar.

Printer-friendly version
Tell a friend about this article Tell a friend about this article
Discuss this article
Democratic Underground Homepage