September 04, 2002
Lies from the NYT

"If you cannot defeat a nomination with facts, then lie."

This appears to be the attitude of the New York Times editorial board, under the wretched leadership of Howell Raines. As they did with the Charles Pickering nomination (and perhaps emboldened by its success) they are distorting the facts or fabricating evidence in an attempt to kill the nomination of Priscilla Owen. This editorial reads like a press release for People for the American Way, which has been attempting remarkably similar distortions of the facts surrounding Owen.

Priscilla Owen, President Bush's latest nominee to the United States Court of Appeals for the Fifth Circuit, has been at times so eager to issue conservative rulings in cases before her on the Texas Supreme Court that she has ignored statutory language and substituted her own views. This criticism comes not from the "special interest groups" she has charged with misstating her record, but from Alberto Gonzales, President Bush's own White House counsel. Mr. Gonzales, who served with Justice Owen on the Texas high court, once lambasted her dissent in an abortion case for engaging in "unconscionable . . . judicial activism." Mr. Gonzales says today that he nonetheless supports the elevation of Justice Owen. We do not.

This is an outright lie. The opinion that the New York Times is referencing attacks a dissent from another judge, who arrived at the same conclusion as Owen in a different fashion. He specifically named Justice Hecht not once, but twice, and did not name Owen at all. In his Jane Doe 1(II)concurrence, after citing Justice Hecht's criticism, Justice Gonzalez wrote: "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof....Thus, to construe the [statute] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."He concluded his concurrence by responding to Justice Hecht's additional criticism in the present case: "Justice Hecht charges that our decision demonstrates the Court's determination to construe the [statute] as the Court believes [it] should be construed and not as the Legislature intended....I respectfully disagree."

In choosing a nominee for the Fifth Circuit the powerful federal appeals court for Texas, Mississippi and Louisiana President Bush has looked to the extreme right wing of the legal profession. Even on Texas' conservative Supreme Court, Justice Owen has distinguished herself as one of the most conservative members. A former lawyer for the oil and gas industry, she reflexively favors manufacturers over consumers, employers over workers and insurers over sick people. In abortion cases Justice Owen has been resourceful about finding reasons that, despite United States Supreme Court holdings and Texas case law, women should be denied the right to choose.

In other words, she doesn't support the left-wing agitation lobby representing the trial lawyers and their allies. As for the abortion issue, all of the hysteria revolves around her support of a Texas law that requires parental notification (note the emphasis) of only one parent (again note the emphasis) when a minor has an abortion. There are three exceptions to this law, which serve to weaken the oppressive nature of the law (sarcasm mine). This law does not in any way prevent a minor from having an abortion, although it might have the effect of preventing some teenagers from getting an abortion due to concern about their parents' reaction. Nonetheless, parents have the right to know about any medical procedure performed on their children as long as the child lives with them.

Regarding the parental notification, Justice Owen has stated that "[t]he constitutionality of requiring a minor to notify both parents is questionable". Is this the voice of an ideologue?

None of the cases appearing before the Texas Supreme Court dealt in any way with abortion rights, save the cases which challenged the parental notification law. In fact, Owen has never stated her personal views on abortion, and will likely continue to refuse to answer the question.

Justice Owen's views are so far from the mainstream that, on those grounds alone, the Senate should be reluctant to confirm her. But what is particularly disturbing about her approach to judging is, as Mr. Gonzales has identified, her willingness to ignore the text and intent of laws that stand in her way. In an important age discrimination case, Justice Owen dissented to argue that the plaintiff should have to meet a higher standard than Texas law requires.

I cannot find anything resembling a balanced commentary on this case; the only references I an find are from PFAW and Democrat Underground and similar extreme left groups that oppose her. The little I can find on this case shows that Owen was in the minority in a case that involved ambiguous jury instructions regarding the Texas age discrimination statute. Further, the employee in question had never had stellar performance reviews, and when they declined into unacceptable levels for two years running, he was terminated. The majority decision was a profound setback for businesses, as it made age discrimination claims much easier to prove.

Justice Owen has also shown a disturbing lack of sensitivity to judicial ethics. She has raised large amounts of campaign contributions from corporations and law firms, and then declined to recuse herself when those contributors have had cases before her. And as a judicial candidate, she publicly endorsed a pro-business political action committee that was raising money to influence the rulings of the Texas Supreme Court.

Please show me a judge who has to be reelected who does not raise money from special interest groups; unions are special interest groups, as are the chamber of commerce, the Sierra Club, and a condo association that supports a resident in a run for the city council.

While it isn't explicitly spelled out in the article, they are probably referring to Enron, which contributed to Owen's reelection campaign. Of the six cases regarding Enron that appeared before the Texas supreme court during Owen's tenure, she only explicitly supported Enron's position in two of them; she voted against Enron in two, took a neutral position in one, and recused herself in the last. If being her biggest single supporter results in her supporting them only 33% of the time is the issue, I'd say that she seems disdainful of her supporters.

After the Senate Judiciary Committee rejected Judge Charles Pickering, another far-right choice, for a seat on the Fifth Circuit earlier this year, the Bush administration declared that it would not be intimidated into choosing more centrist nominees. Sadly, the administration has lived up to its threat. In this dispute the Senate is right: the administration should stop trying to use the judiciary to advance a political agenda that is out of step with the views of most Americans.

The New York Times used a position paper issued by Pickering over 40 years ago to paint him as a racist. At that time, Robert Byrd (D-WV) was still donning his white sheet as a KKK wizard. However, because Byrd supports the NYT's pet issues, he has "grown" while Pickering must be evil because he's still a nasty Republican.

My fondest wish is that the GOP regains control of the senate in November, and Bush resubmits the Pickering nomination, which would sail through a GOP-dominated Judiciary committee, and since several Democratic senators have expressed support for Pickering, the full senate would almost certainly confirm him. Wouldn't that just piss off Leahy, Schumer, and Clinton? (grin)

Justice Owen is a choice that makes sense for Justice Department ideologues who want to turn the courts into a champion of big business, insurance companies and the religious right. But the American people deserve better. Justice Owen's nomination should be rejected.

Lots of innuendo, and little substance. About par for the course, when one is discussing the direction of the New York Times. Nowhere does the Times document her unsuitability for the court, only her views which do not dovetail with theirs.

Even the liberal leaning ABA likes her; she received a unaminous "Well Qualified" rating from the ABA judicial review committee, an unusual occurance. If she were not suited, does the Times think the ABA would rubber stamp her approval? One only need look at the Robert Bork case to realize the folly of such thoughts.

posted on September 04, 2002 06:43 PM


If President Bush and the pansy-ass Republicans in the Senate can't bring themselves to stand up to the Democrats, scream bloody murder, and vow as a party to NEVER vote to confirm ANY Democrat nominee for ANY position EVER until the Senate rules are changed, then they don't deserve to win this fight -- or to retake the Senate.

posted by Spoons on September 5, 2002 08:08 AM

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