Reply #20: Don't forget, Owen's Republican colleagues criticize her judicial activism

[Czolgosz]

Here is what Judge Owen's own Republican colleagues have said about her opinions (this focuses only on 2001 to 2004, the time when she was under consideration for appointment to the Fifth Circuit Court of Appeals, so her colleagues knew these comments would be considered):

In the case of In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001), Republican Judge Abbot (where three other Republican Judges also refused to join Judge Owen's opinion) criticized Judge Owen's activist opinion against open government as follows: "the Legislature enunciated a clear and unambiguous policy . . . The Act ‘forcefully articulates a policy of open government.' . . . But if this Court has the power to broaden by judicial rule the categories of information that are ‘confidential under other law,' then" the open government law "is eviscerated from the statute. . . . This not only contradicts the spirit and language of" the law, "it guts it. . . . Today," Judge Owen "abandons strict construction and rewrites the statute."

In the case of Barnett v. Barnett, 67 S.W.3d 107 (Tex. 2001), Republican Judge Hankinson (joined by three other Republican Judges) criticized Judge Owen's activist opinion favoring insurance companies: Judge Owen's "broad holding ignores not only the lack of clear and manifest proof that Congress intended ERISA to preempt state marital-property law, but" Judge Owen "does precisely what Judge Scalia has cautioned against: ‘decreeing a degree of pre-emption that no sensible person could have intended.'"

In the case of In re J.F.C., 96 S.W.3d 256 (Tex. 2002), Republican Judge Hankinson (where three other Republican Judge also refused to join with Judge Owen) noted the judicial activism in Judge Owen's opinion leaving children in the possession of violent, cocaine-using, child-abusive parents as follows: Judge Owen's "statement of the issue will come as a surprise to the parties and the court of appeals, as no one has raised, briefed, or addressed this issue at any stage of these proceedings."

In Progressive County Mut. Ins. Co. v. Sink, 107 S.W.3d 547 (Tex. 2003), Republican Judge Phillips (joined by two other Republican Judges) criticized Judge Owen's activist opinion favoring insurance companies as follows: "Because the plaintiff in this case is entitled to recovery on the plain terms of the policy, I respectfully dissent. . . . In fact, until today no court has enforced a permission requirement unless the insurance policy explicitly contained such a requirement for temporary substitute automobiles. . . . " Judge Owen's reading of the insurance contract has been characterized as "an attempt to shift the loss to an innocent victim rather than having the insurance company pay for the negligent conduct of its insured."

In Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004), Republican Judge Schneider (now a federal judge whose appointment was never contested), joined by two other Republican Judges, criticized Judge Owen's activist opinion as follows: Judge Owen "permits a case to be dismissed for want of prosecution without holding a separate dismissal hearing. Because I conclude that the plain language of the rule requires a separate hearing, I respectfully dissent. . . . I would follow . . . precedent to conclude that the trial courts inherent authority does not permit dismissal when the only evidence of dilatoriness is the failure to appear at a single hearing."

Finally, here's one you will love, Scott. In CenterPoint Energy, Inc. v. Public Utility Com'n, 143 S.W.3d 81 (Tex. 2004), Republican Judge Brister (joined by three other Republican Judges) criticized Judge Owen's activist anti-consumer opinion as follows: "The Legislature said nothing about interest. Nevertheless," Judge Owen "holds utilities are potentially entitled to billions of dollars in interest (to be collected from consumers through higher prices) . . . . In a government of separated powers, it is not our role to decide whether paying interest to utilities during 2002 and 2003 would be wise, or fair, or what we would do in similar circumstances."



Of course, Judge Owen’s Republican judicial colleagues were significantly more candid about her record of judicial activism before her 2001 nomination. As just one example, in the case of In re Doe, 19 S.W.3d 346 (Tex. 2000), Republican Judge Gonzalez (who is now President Bush’s attorney general) criticized Judge Owen’s dissenting opinion, which would have ignored the law regarding a woman’s right to control her own reproductive destiny, as “an unconscionable act of judicial activism.”