Andrew Wheat

Judging Prissy

A month after it torpedoed President Bush’s nomination of Mississippi Judge Charles Pickering to the Fifth Circuit Court of Appeals, the Senate Judiciary Committee should carefully scrutinize–and then forcefully reject–another Bush pick for the Fifth Circuit: current Texas Supreme Court Justice Priscilla Owen.

One of the nation’s most conservative appellate courts, the New Orleans-based Fifth Circuit (which covers Texas) gained international notoriety two years ago for its “sleeping-lawyer” ruling. A three-judge panel was unmoved by the fact that Texas death-row inmate Calvin Burdine’s court-appointed attorney had napped during his capital murder trial. To merit a new trial, the court ruled that Burdine had to show that the naps occurred during crucial portions of the trial.

Now comes Bush nominee Priscilla Owen, who–with fellow Justice Nathan Hecht–currently occupies the radical right wing of the conservative Texas Supreme Court. While Pickering’s chief defect was his lack of commitment to civil rights, a thorough Owen vetting will turn up a frightening number of reasons to reject this nominee. Rumors at press time suggest that an Owen hearing is imminent.

Prior to her 1994 election to Texas’ highest civil court, Owen was an oil and gas attorney for the corporate defense firm of Andrews & Kurth. Unlike Pickering, who is a federal district court judge, Owen has none of the criminal trial experience that the “sleeping-lawyer” court seems to sorely need. Yet the experience she has gained in her seven years on Texas’ high court may prove to be an even greater obstacle to her confirmation.

Any Texas Supreme Court justice aspiring to the federal bench can expect rough sledding in the U.S. Senate. In much of the country, people are shocked to learn that our Supreme Court justices are elected in million-dollar campaigns that are heavily financed by special interests that have cases before the court. A 1999 Texas Supreme Court poll found that even within Texas, 83 percent of the public, 79 percent of lawyers, and 48 percent of judges say that campaign contributions significantly influence judicial decisions.

Texas Ethics Commission and Court records reveal that 37 percent of the $1.4 million that Justice Owen raised for her campaigns came from lawyers and litigants who had a direct stake in cases before her court. In a 1996 opinion, for example, the Court reversed a lower court ruling and lowered the tax exposure of a major donor, the H.E.B. grocery store chain (H.E. Butt Grocery Co. v. Jefferson County). In another case, the Court upheld a verdict for a plaintiff injured in an H.E.B. store. Yet Justice Owen–who has taken $7,500 from H.E.B.’s owner–joined a dissent that would have overturned that jury verdict (H.E. Butt Grocery Co. v. Bilotto).

On the day of the H.E.B. tax case, the court issued an Owen-authored opinion that haunts her nomination like a nightmare. That decision overturned a lower appeals court ruling to free Enron Corp.–the justices’ No. 1 source of corporate donations–from having to pay $224,989 in school taxes (Enron v. Spring Independent School District). Speaking about Owen’s nomination last month, Senate Judiciary Committee Chair Patrick Leahy (D-VT), said, “I have heard from a lot of Republicans who are concerned about her Enron connections.” One question that seems certain to arise in an Owen hearing is something like: “Justice Owen, please explain how a judge who is not blind to appearances of impropriety would take $8,600 from Enron’s PAC and executives–including $1,000 from Ken Lay–and then NOT recuse herself from a $224,989 ruling in Enron’s favor?”

While all nine Texas Supreme Court justices remain pro-business conservatives, Justices Owen and Hecht (who inspired the opposition PAC “Hecht No!”) were reduced to an isolated bloc of extremist dissent in 1998, following the appointment of several relatively moderate justices by none other than then-Governor George W. Bush. Bush’s appointments–combined with a “60 Minutes” exposé of the court’s campaign finance conflicts–brought a noticeable dose of restraint to the rest of the court. But Justices Owen and Hecht continued to masquerade as “strict constructionists” (judges who narrowly interpret laws rather than pursuing their own agendas) as they zealously promoted the interests of big business and the New Right with much less restraint than their colleagues.

The family of anti-abortion activist and right-wing mogul James Leininger has given $12,350 to Owen’s two Supreme Court campaigns. In 2000, the Court considered a state law that mandates parental notification before minors receive abortions. The Legislature allowed an exception to this parental notification law if a judge determines that this notification is not in a minor’s best interest. Justice Owen wrote a concurring opinion in the case, which would have required judges to determine that both the parental notification and the abortion itself were in a minor’s best interest. Such opinions are hardly “strict constructions” by any standard.

Since joining the high court in 1995, Owen has written and joined a slew of activist opinions that favor businesses over consumers, defendants over plaintiffs, and judges over lawmakers and juries. A 1999 study by Austin-based Court Watch found that, during Justice Owen’s tenure, individuals won just 36 percent of their cases, compared to a winning percentage of 66 percent for businesses, 70 percent for insurers, and 86 percent for medical interests. Having taken more than $500,000 in campaign contributions from interests with cases in her court, Justice Owen has produced a body of activist opinions that are extremist–even by Texas standards.

On the day of Judge Pickering’s rejection, President Bush’s top political advisor, Karl Rove (who ran Owen’s first Supreme Court campaign), gave a defiant address to the Christian Right’s Family Research Council. In a recording of the address obtained by the Washington Post, Rove said that Judiciary Committee Democrats used Pickering to send Bush a message about the “judicial lynching” that awaits “strong conservative” nominees. “Guess what?” asked Rove. “They sent the wrong message to the wrong guy.”

In fact, the committee must keep sending the message until it is heard. Rejecting Pickerings and Owens is the only possible path to nominees who are better qualified and more deserving of so much government power. President Bush clearly knows better-qualified, moderate conservatives, having appointed some of them to the Texas Supreme Court. Owen’s nomination is a sop to the Far Right. The Judiciary Committee should treat it as such.

Andrew Wheat is the research director for Texans for Public Justice.

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Published at 12:00 am CST