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The Honorable Patrick Leahy
September 5, 2002
Statement Of Chairman Patrick Leahy
Today we have on our agenda a number of the President's nominees, including Priscilla Owen to be a judge on the United States Court of Appeals for the Fifth Circuit, and Reena Raggi to be a judge on the United States Court of Appeals for the Second Circuit. These two nominees will be the 80th and 81st judicial nominees voted on by the Committee in less than 15 months, and the 16th and 17th circuit court nominees voted on by the committee in that time. This committee has worked diligently since the change in majority last summer to consider more than 250 of the President's nominees.
During our first year in the majority, we have held twice as many hearings for President Bush's Courts of Appeals nominees as were held in the first year of the Reagan Administration, when the Senate was controlled by Republicans, and five times as many as in the first year of the Clinton Administration, when the Senate was controlled by Democrats. Under Democratic leadership, this committee has also voted on more judicial nominees, 79 so far, than in any of the six and one-half years of Republican control that preceded the change in majority. We have already voted on twice as many circuit court nominees, 15, as the Republican majority averaged in the years they were in control. In fact, this last year we voted on more judicial nominees than were voted on in 1999 and 2000 combined and on more circuit court nominees than Republicans voted on in 1996 and 1997 combined.
We have achieved what we said we would by treating President Bush's nominees more fairly and more expeditiously than President Clinton's nominees were treated. By many measures the Committee has achieved almost twice as much this last year as Republicans averaged during their years in control.
In the six and one-half year period of Republican control before the change in majority last summer, vacancies on the Courts of Appeals more than doubled from 16 to 33 and overall vacancies rose from 63 to 110. We have reversed those trends, even though 43 vacancies have arisen since the changeover last year.
I have taken a number of actions to seek a cooperative and constructive working relationship with all Senators on both sides of the aisle and with the White House in order to make the confirmation process more orderly, less antagonistic, and more productive. Not all of my efforts have been successful and very few of my suggestions to the Administration have yielded results, but I have continued to make these efforts in the best interests of the country, the Senate and this committee.
In sharp contrast is the record of the other circuit court nominee we consider today: Justice Priscilla Owen, a nominee whose record is too extreme even in the context of the very conservative Texas Supreme Court.
Justice Owen has been nominated to fill a vacancy that has existed since January, 1997. In the intervening five years, President Clinton nominated Judge Jorge Rangel, a distinguished Hispanic attorney from Corpus Christi, to fill that vacancy. Despite his qualifications, and his unanimous rating of Well Qualified by the ABA, Judge Rangel never received a hearing from the Committee, and his nomination was returned to the President without Senate action at the end of 1998, after a fruitless wait of 15 months.
On September 16, 1999, President Clinton nominated Enrique Moreno, another outstanding Hispanic attorney, to fill that same vacancy. Mr. Moreno did not receive a hearing on his nomination either -- for more than 17 months. President Bush withdrew the nomination of Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name in its place. It was not until May of this year, at a hearing before Senator Schumer, that this committee heard from any of President Clinton's three unsuccessful nominees to the 5th Circuit. This May Mr. Moreno and Mr. Rangel testified along with a number of other Clinton nominees about their treatment by the Republican majority. Thus, Justice Owen's is the third nomination to this vacancy and the first to be accorded a hearing before the Committee.
In fact, when the Committee held its hearing on the nomination of Judge Edith Clement to the Fifth Circuit last fall, it was the first hearing on a Fifth Circuit nominee in seven years. By contrast, Justice Owen is the third nomination to the Fifth Circuit on which this committee has held a hearing in less than one year. In spite of the treatment by the former Republican majority of so many moderate judicial nominees of the previous President, we proceeded this July, as I said that we would, with a hearing on Justice Owen.
Justice Owen is one among 16 Texas nominees who have been considered by this Committee since I became Chairman. So far, five District Court judges, four United State Attorneys, three United States Marshals, and three executive branch appointees from Texas have moved swiftly through the Judiciary Committee.
When Justice Owen was initially nominated, the President changed the confirmation process from that used by Republican and Democratic Presidents for more than 50 years. That resulted in her ABA peer review not being received until later in the summer. As a result of a Republican objection to the Democratic leadership's request to retain all judicial nominations pending before the Senate through the August recess, the initial nomination of Justice Owen was required by Senate rules to be returned to the President without action. The Committee nonetheless took the unprecedented action of proceeding during the August recess to hold two hearings involving judicial nominations, including a nominee to the Court of Appeals for the Federal Circuit.
In my efforts to accommodate a number of Republican Senators, including the Republican Leader, this Committee's ranking member, and at least four other Republican members of this Committee, I have scheduled hearings for nominees out of the order in which they were received. This has been a longstanding practice of the Committee.
It is also a fact that less controversial nominations are easier to consider and are, by and large, able to be scheduled sooner than more controversial nominations. This is especially important in the circumstances that existed last summer at the time of the change in majority. At that time we faced what Republicans have now admitted had become a vacancies crisis. From January 1995 when the Republican majority assumed control of the confirmation process in the Senate until the shift in majority last summer, vacancies rose from 65 to 110 and vacancies on the Courts of Appeals more than doubled from 16 to 33. I thought it important to make as much progress as quickly as we could in the time available to us last year, and we did. Evaluating the record of a nominee whose record raises questions as serious as those about Justice Owen simply takes longer.
The responsibility to advise and consent on the President=s nominees is one that I take seriously and that this committee takes seriously. Justice Owen=s nomination to the Court of Appeals has been given a fair hearing and a fair process before this Committee. I thank all Members of the Committee for their fairness. Those who have had concerns have raised them and have heard the nominee's responses, in private meetings, at her public hearing and in written follow-up questions.
I would particularly like to commend Senator Feinstein for her evenhandedness in chairing the hearing for Justice Owen. It was a long day, in which nearly every Senator who is a member of this Committee came to question Justice Owen, and Senator Feinstein handled it with patience and fairness.
I am proud that Democrats and most Republicans have kept to the merits of this nomination, and have not chosen to vilify, castigate, unfairly characterize and condemn without basis Senators working conscientiously to fulfill their constitutional responsibilities. To those who will take this occasion to engage in name-calling or accusations of political posturing, I can only express my disappointment.
The constitutional responsibility to advise and consent to the President=s life tenure judicial nominees is not an occasion to rubber stamp. The nomination of Justice Priscilla Owen presents a number of areas of serious concern to me.
The Conservative Majority's Criticism of Justice Owen
The first area of concern to me is Justice Owen's extremism even among a conservative Supreme Court of Texas. The conservative Republican majority of the Texas Supreme Court has gone out of its way to criticize Justice Owen and the dissents she joined in ways that are highly unusual and that highlight her ends-oriented activism. A number of Texas Supreme Court Justices have pointed out how far from the language of statute she has strays in her attempts to push the law beyond what the legislature intended.
One example is the majority opinion in Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). In this case, Justice Owen wrote a dissent advocating a ruling against a medical malpractice plaintiff injured while he was still a minor. The issue was the constitutionality of a State law requiring minors to file medical malpractice actions before reaching the age of majority, or risk being outside the statute of limitations. Of interest is the majority's discussion of the importance of abiding by a prior Texas Supreme Court decision unanimously striking down a previous version of the statute. In what reads as a lecture to the dissent, then-Justice John Cornyn (the current Texas Attorney General and Republican nominee for the U.S. Senate) explains on behalf of the majority:
Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy. First, if we did not follow our own decisions, no issue could ever be considered resolved. The potential volume of speculative relitigation under such circumstances alone ought to persuade us that stare decisis is a sound policy. Secondly, we should give due consideration to the settled expectations of litigants like Emmanuel Wasson, who have justifiably relied on the principles articulated in [the previous case]. . . . Finally, under our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government. Id. at 12-13. (Citations omitted.)
According to the conservative majority on the Texas Supreme Court, Justice Owen went out of her way to ignore precedent and would have ruled for the defendants. The conservative Republican majority followed precedent and the doctrine of stare decisis.
In Montgomery Independent School District v. Davis, 34 S.W. 3d 559 (Tex. 2000), Justice Owen wrote another dissent which drew fire from a conservative Republican majority - this time for her disregard for legislative language. In a challenge by a teacher who did not receive reappointment to her position, the majority found that the school board had exceeded its authority when it disregarded the Texas Education Code and tried to overrule a hearing examiner's decision on the matter. Justice Owen's dissent advocated for an interpretation contrary to the language of the applicable statute. The majority, which included Alberto Gonzales and two other appointees of then-Governor Bush, was quite explicit about its view that Justice Owen's position disregarded the law:
The dissenting opinion misconceives the hearing examiner's role in the . . . process by stating that the hearing examiner 'refused' to make findings on the evidence the Board relies on to support its additional findings. As we explained above, nothing in the statute requires the hearing examiner to make findings on matters of which he is unpersuaded. . . . Id. at 25-26. (Emphasis added.)
The majority also noted that:
The dissenting opinion's misconception of the hearing examiner's role stems from its disregard of the procedural elements the Legislature established in subchapter F to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards. The Legislature maintained local control by giving school boards alone the option to choose the hearing-examiner process in nonrenewal proceedings. . . . By resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result, the dissenting opinion not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the board. . .." Id. at 28. (Emphasis added.)
Collins v. Ison-Newsome, 73 S.W.3d 178, is yet another case where a dissent, joined by Justice Owen, was roundly criticized by the Republican majority of the Texas Supreme Court. The Court cogently stated the legal basis for its conclusion that it had no jurisdiction to decide the matter before it, and as in other opinions where Justice Owen was in dissent, took time to explicitly criticize the dissent's positions as contrary to the clear letter of the law.
At issue was whether the Supreme Court had the proper "conflicts jurisdiction" to hear the interlocutory appeal of school officials being sued for defamation. The majority explained that it did not because published lower court decisions do not create the necessary conflict between themselves. The arguments put forth by the dissent, in which Justice Owen joined, offended the majority, and they made their views known, writing:
The dissenting opinion agrees that "because this is an interlocutory appeal . . . this Court's jurisdiction is limited," but then argues for the exact opposite proposition . . . This argument defies the Legislature's clear and express limits on our jurisdiction. . . . The author of the dissenting opinion has written previously that we should take a broader approach to the conflicts-jurisdiction standard. But a majority of the Court continues to abide by the Legislature's clear limits on our interlocutory-appeal jurisdiction. Id. at 182. (Emphasis added.)
[T]he dissenting opinion's reading of Government Code sec. 22.225(c) conflates conflicts jurisdiction with dissent jurisdiction, thereby erasing any distinction between these two separate bases for jurisdiction. The Legislature identified them as distinct bases for jurisdiction in sections 22.001(a)(1) and (a)(2), and section 22.225(c) refers specifically to the two separate provisionsn of section 22.001(a) providing for conflicts and dissent jurisdiction. . . . [W]e cannot simply ignore the legislative limits on our jurisdiction, and not even Petitioners argue that we should do so on this basis. Id. at 183. (Emphasis added.)
Again, Justice Owen joined a dissent that the Republican majority described as defiant of legislative intent and in disregard of legislatively drawn limits.
Some of the most striking examples of criticism of Justice Owen's writings, or the dissents and concurrences she joins, come in a series of parental notification cases heard in 2000. They include:
? In re Jane Doe 1, where the majority included an extremely unusual section explaining its view of the proper role of judges, admonishing the dissent joined by Justice Owen for going beyond its duty to interpret the law in an attempt to fashion policy.
In one case that is perhaps the exception that proves the rule, Justice Owen wrote a majority that was bitterly criticized by the dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 328, (Tex. 2001), Justice Owen wrote a majority opinion finding that the city did not have to give the Austin American-Statesman a report prepared by a consulting expert in connection with pending and anticipated litigation because such information was expressly made confidential under other law, namely the Texas Rules of Civil Procedure.
The dissent is extremely critical of Justice Owen's opinion, citing the Texas law's strong preference for disclosure and liberal construction. Accusing her of activism, Justice Abbott, joined by Chief Justice Phillips and Justice Baker, notes that the legislature, "expressly identified eighteen categories of information that are 'public information' and that must be disclosed upon request . . . [sec. (a)] The Legislature attempted to safeguard its policy of open records by adding subsection (b), which limits courts' encroachment on its legislatively established policy decisions." Id. at 338. The dissent further protests:
[b]ut if this Court has the power to broaden by judicial rule the categories of information that are 'confidential under other law,' then subsection (b) is eviscerated from the statute. By determining what information falls outside subsection (a)'s scope, this Court may evade the mandates of subsection (b) and order information withheld whenever it sees fit. This not only contradicts the spirit and language of subsection (b), it guts it. Id. (Emphasis added.)
Finally, the opinion concluded by asserting that Justice Owen's interpretation, "abandons strict construction and rewrites the statute to eliminate subsection (b)'s restrictions." Id. at 343.
These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views.
Ends-Oriented Judicial Activism Showing Bias Against Consumers, Victims, Individuals
Justice Owen's activism and extremism is noteworthy in a variety of cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she writes against individual plaintiffs time and time again, in seeming contradiction of the law as written.
One of the cases where this trend is evident is FM Properties v. City of Austin, 22 S.W. 3d 868 (Tex. 1998). I asked Justice Owen about this 1998 environmental case at her hearing. In her
In this case, the Texas Supreme Court found that a section of the Texas Water Code allowing certain private owners of large tracts of land to create "water quality zones," and write their own water quality regulations and plans, violated the Texas Constitution because it improperly delegated legislative power to private entities. The Court found that the Water Code section gave the private landowners, "legislative duties and powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality." Id. at 876-77. The Court also found that certain aspects of the Code and the factors surrounding its implementation weighed against the delegation of power, including the lack of meaningful government review, the lack of adequate representation of citizens affected by the private owners' actions, the breadth of the delegation, and the big landowners' obvious interest in maximizing their own profits and minimizing their own costs.
The majority offered a strong opinion, detailing its legal reasoning and explaining the dangers of offering too much legislative power to private entities. By contrast, in her dissent, Justice Owen argued that, "[w]hile the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State's natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner," ignoring entirely the possibility of an unconstitutional delegation of power. Id. at 889. Her view strongly favored large business interests to the clear detriment of the public interest, and against the persuasive legal arguments of a majority of the Court.
When I asked her about this case at her hearing, I found her answer perplexing. In a way that she did not argue in her written dissent, at her hearing Justice Owen attempted to cast the FM Properties case not as, "a fight between and City of Austin and big business, but in all honesty, . . . really a fight about . . . the State of Texas versus the City of Austin." Transcript at 69. In the written dissent however, she began by stating the, "importance of this case to private property rights and the separation of powers between the judicial and legislative branches. . .", and went on to decry the Court's decision as one that, "will impair all manner of property rights." 22 S.W. 3d at 889. At the time she wrote her dissent, Justice Owen was certainly clear about the meaning of this case - property rights for corporations.
Another case that concerned me is the case of GTE Southwest, Inc. v. Bruce, 990 S.W.2d 605, where Justice Owen wrote in favor of GTE in a lawsuit by employees for intentional infliction of emotional distress. The rest of the Court held that three employees subjected to what the majority characterized as "constant humiliating and abusive behavior of their supervisor" were entitled to the jury verdict in their favor. Despite the Court's recitation of an exhaustive list of sickening behavior by the supervisor, and its clear application of Texas law to those facts, Justice Owen wrote a concurring opinion to explain her difference of opinion on the key legal issue in the case - whether the behavior in evidence met the legal standard for intentional infliction of emotional distress.
Justice Owen contended that the conduct was not, as the standard requires, "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency..." Id. at 621. The majority opinion shows Justice Owen's concurrence advocating an inexplicable point of view that ignores the facts in evidence in order to reach a predetermined outcome in the corporation's favor.
In City of Garland v. Dallas Morning News, 22 S.W. 3d 351 (Tex. 2000), Justice Owen dissented from a majority opinion and, again, it is difficult to justify her views other than as based on a desire to reach a particular outcome. The majority upheld a decision giving the newspaper access to a document outlining the reasons why the city's finance director was going to be fired. Justice Owen made two arguments: that because the document was considered a draft it was not subject to disclosure, and that the document was exempt from disclosure because it was part of policy making. Both of these exceptions were so large as to swallow the rule requiring disclosure. The majority rightly points out that if Justice Owen's views prevailed, almost any document could be labeled draft to shield it from public view. Moreover, to call a personnel decision a part of policy making is such an expansive interpretation it would leave little that would not be "policy".
Quantum Chemical v. Toennies, 47 S.W. 3d 473 (Tex. 2001), is another troubling case where Justice Owen joined a dissent advocating an activist interpretation of a clearly written statute. In this age discrimination suit brought under the Texas civil rights statute, the relevant parts of which were modeled on Title VII of the federal Civil Rights Act (and its amendments), the appeal to the Texas Supreme Court centered on the standard of causation necessary for a finding for the plaintiff. The plaintiff argued, and the five justices in the majority agreed, that the plain meaning of the statute must be followed, and that the plaintiff could prove an unlawful employment practice by showing that discrimination was "a motivating factor." The employer corporation argued, and Justices Hecht and Owen agreed, that the plain meaning could be discarded in favor of a more tortured and unnecessary reading of the statute, and that the plaintiff must show that discrimination was "the motivating factor," in order to recover damages.
The portion of Title VII on which the majority relies for its interpretation was part of Congress's 1991 fix to the United States Supreme Court's opinion in the Price Waterhouse case, which held that an employer could avoid liability if the plaintiff could not show discrimination was "the" motivating factor. Congress's fix, in Section 107 of the Civil Rights Act of 1991, does not specify whether the motivating factor standard applies to both sorts of discrimination cases, the so-called "mixed motive" cases as well as the "pretext" cases.
The Texas majority concluded that they must rely on the plain language of the statute as amended, which could not be any clearer that under Title VII discrimination can be shown to be "a" motivating factor. Justice Owen joined Justice Hecht in claiming that federal case law is clear (in favor of their view), and opted for a reading of the statute that would turn it into its polar opposite, forcing plaintiffs into just the situation legislators were trying to avoid. This example of Justice Owen's desire to change the law from the bench, instead of interpret it, fits President Bush's definition of activism to a "T".
Justice Owen has also demonstrated her tendency toward ends-oriented decision making quite clearly in a series of dissents and concurrences in cases involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortions.
The most striking example is Justice Owen's expression of disagreement with the majority's decision on key legal issues in Doe 1. She strongly disagreed with the majority's holding on what a minor would have to show in order to establish that she was, as the statute requires, "sufficiently well informed" to make the decision on her own. While the conservative Republican majority laid out a well-reasoned test for this element of the law, based on the plain meaning of the statute and well-cited case law, Justice Owen inserted elements found in neither authority. Specifically, Justice Owen insisted that the majority's requirement that the minor be "aware of the emotional and psychological aspects of undergoing an abortion" was not sufficient and that among other requirements with no basis in the law, she, "would require. . . [that the minor] should . . . indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion." In re Doe 1, 19 S.W.3d 249, 256 (Tex. 2000)
In her written concurrence, Justice Owen indicated, through legal citation, that support for this proposition could be found in a particular page of the Supreme Court's opinion in Planned Parenthood v. Casey. However, when one looks at that portion of the Casey decision, one finds no mention of requiring a minor to acknowledge religious or moral arguments. The passage talks instead about the ability of a State to, "enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear," Casey at 872. Justice Owen's reliance on this portion of a United States Supreme Court opinion to rewrite Texas law was simply wrong.
As she did in answer to questions about a couple of other cases at her hearing, Justice Owen tried to explain away this problem with an after the fact justification. She told Senator Cantwell that the reference to religion was not to be found in Casey after all, but in another U.S. Supreme Court case, H.L. v. Matheson. She explained that in, "Matheson they talk about that for some people it raises profound moral and religious concerns, and they're talking about the desirability or the State's interest in these kinds of considerations in making an informed decision." Transcript at 172. But again, on reading Matheson, one sees that the only mention of religion comes in a quotation meant to explain why the parents of the minor are due notification, not about the contours of what the government may require someone to prove to show she was fully well informed. Her reliance on Matheson for her proposed rewrite of the law is just as faulty as her reliance on Casey. Neither one supports her reading of the law. She simply tries a little bit of legal smoke and mirrors to make it appear as if they did. This is the sort of ends-oriented decision making that destroys the belief of a citizen in a fair legal system. And most troubling of all was her indicating to Senator Feinstein that she still views her dissents in the Doe cases as the proper reading and construction of the Texas statute.
Last May, President Bush said that his standard for judging judicial nominees would be that they "share a commitment to follow and apply the law, not to make law from the bench." Priscilla Owen's record, as I have described it today, does not qualify her under that standard for a lifetime appointment to the federal bench.
The President has often spoken of judicial activism without acknowledging that ends-oriented decision making can come easily to ideological conservative nominees. In the case of Priscilla Owen, we see a perfect example of such an approach to the law, and I cannot support it.
As I said earlier, when the President sends us a nominee who raises concerns over qualifications or integrity or who has a misunderstanding of the appropriate role of a federal judge, I will make my concerns known. This is one of those times. In his selection of Priscilla Owen for the Fifth Circuit, the President and his advisors are trying to do to the Fifth Circuit what they did to the Texas Supreme Court. Plucked from a law firm by political consultant Karl Rove, Justice Owen ran as a conservative, pro-business candidate for the Texas Supreme Court, and she received ample support from the business community. She fulfilled her promise, becoming the most conservative judge on a conservative court, standing out for her ends-oriented, extremist decision making. Now, on a bigger stage, the President and Mr. Rove want a repeat performance: sending Justice Owen to a court one step below the Supreme Court of the United States, attempting to skew its decisions out of step with the mainstream.
The oath taken by federal judges affirms their commitment to "administer justice without respect to persons, and do equal right to the poor and to the rich." No one who enters a federal courtroom should have to wonder whether he or she will be fairly heard by the judge. Justice Priscilla Owen's record shows me that she has not fulfilled that commitment on the Supreme Court of Texas, and I cannot vote to confirm her for this appointment to one of the highest courts in the land.
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