ConfirmThem

By DanCT Posted in Circuit Courts — Comments () / Email this page » / Leave a comment »

Senator Hutchison (R-TX) spoke eloquently on the Senate floor yesterday about Priscilla Owen's conservative (as opposed to 'activist') and mainstream jurisprudence in 13 Texas parental notification cases and her broad-based bi-partisan support in Texas. She also provided a refreshing personal note on the legislature's intent with the parental notification law. The courts were interpreting the law so liberally that the legislature has now passed a follow-up law designed to scream to a tone-deaf court: "THIS IS A PARENTAL NOTIFICATION LAW. THAT MEANS PARENTS NEED TO BE NOTIFIED BEFORE A GIRL HAS AN ABORTION. THIS TIME DO NOT GUT THE LAW BY RUBBER STAMPING BYPASSES." In her words:

I want to look at the 13 cases from a statistical standpoint. Justice Owen is solidly in the mainstream of her court. In these 13 rulings, Justice Owen was in the majority ten times and found herself in dissent only on three occasions. She disagreed with the majority decision three times. In those 13 cases, the Texas Supreme Court required notification six times and facilitated a judicial bypass seven times. So Justice Owen voted to require parental notification in nine cases and to facilitate the judicial bypass in four. Remember no case on judicial bypass reached the Texas Supreme Court at all unless it had first been denied by two courts and by up to four judges. This is important because under our system, the trial court is charged with ascertaining the facts in a case. In other words, justice Owen is being faulted for being more willing to defer to trial court findings of fact because she knows that trial judges have the unique ability to assess a witness’ demeanor and credibility. Now, was Justice Owen’s approach in the mainstream?

Citing statistics to "prove" things about a judge's inclinations should always raise your suspicions because it is so frequently done to make a political point about the judge, e.g.: "She is on the wrong team because she often sides with corporations over consumers." However, Senator Hutchison only cites the statistics to indicate that Owen is not "out of the mainstream", and that she has shown definitively. This won't be convincing to some Democrats, though, because they think that the President's beliefs are radical and out of the mainstream, as are the beliefs of the majority of Senators and Representatives. How is it that out-of-the-mainstream people are getting elected more often than such mainstream candidates as Howard Dean and Tom Daschle? "The voters are being duped by the staunchly conservative MSM, you silly!"
Hutchison certainly explains better than I do:

I am saddened to see that partisan opponents of justice Owen’s nomination have attempted to portray her as an activist judge, as nothing could be further from the truth. Her opinions interpreting the Texas parental notification act serve as prime examples of her judicial restraint. I appreciated that justice Owen’s opinions throughout the series of cases looked carefully at the new statute and at the governing U.S. Supreme Court precedent upon which language of the statute was based to determine what the legislature intended the act to do.

I, along with many of my colleagues, Democrats and Republicans alike, filed a bipartisan amicus curiae brief with the Supreme Court explaining that the language of the act was crafted in order to promote, except in very limited circumstances, parental involvement. Prior to the passage of the act a child could go to the doctor and have an extremely invasive procedure without even notifying one of her parents. At the same time school nurses were not even permitted to give aspirin to a child without parental consent.

Like legislators in dozens of states across America, we realized that something needed to be done to respect the role of parents that at least one parent should be involved in a major medical decision impacting their minor daughter. Because this was not an abortion bill but a parental involvement bill supported by lawmakers on both sides of the abortion debate, we were able to pass a bipartisan bill that promotes the relationship between parents and their minor daughters, and it is exceedingly popular with the people of Texas.

If Democrats can find no better example of Owen's "judicial activism" than her thoughtful deference to trial courts and the legislature in the parental notification cases, they don't have a leg to stand on. There must be five Democrats who are willing to vote for cloture on her nomination. If not, Bush's nominees will be able to pass even with 10 GOP defections after the filibuster is nuked and Democrats are crushed in '06.