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
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
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
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.