ConfirmThem

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

The witty but highly partisan Molly Ivins went over the line yesterday. Writing about the judicial nominees filibustered by a minority of US Senators, Ivins said this:

My personal fave is Priscilla Owen of the Texas Supreme Court, who is so far out that Alberto Gonzales once denounced one of her decisions as "an unconscionable act of judicial activism."

Ivins is way off base. She wrongly asserts that the present Attorney General, Alberto Gonzalez, had once criticized Owen for an "unconscionable act of judicial activism." What Gonzalez actually said, when he served on the Texas Supreme Court with Owen, was this:

Thus, to construe the Parental Notification Act 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.

The full text of the case, including all of the dissents, is available here as searchable pdf.

Gonzalez was not calling the three dissenters in that case "unconscionable judicial activists," much less directing that charge at Justice Owen in particular. He was saying that if anyone (himself included) were to disregard the words of a statute, then that would be unconscionable judicial activism, and so it would be. Justice Owen explained in her Judiciary Committee hearing as follows:

He [Gonzalez] said if anybody, including himself, were to do that, would do that, that would be judicial activism, and I agree with that.

If Gonzalez was alluding to any of the dissenters, it would have been to Justice Hecht rather than Justice Owen. After all, it was Justice Hecht who excoriated the majority for its judicial activism:

We are not judicial activists, say the justices in today's majority. Surely they know that remonstrances like these do not allay doubts but only exacerbate them. "The lady doth protest too much, methinks."

Ivins ought to actually read the opinions in this case. Here's the link again, in case you're listening Ms. Ivins: www.andrewhyman.com/confirmthem/janedoe.pdf.

UPDATE: At his January 6, 2005 confirmation hearing, Attorney General Gonzales was asked about this case. Here's what he said, under oath:

I served with Judge Owen on the Texas Supreme Court, and I think she did a splendid job, a superb job as a judge. I think she would make a superb judge on the 5th Circuit, and that's why her name was recommended to the president. There were a series of very contentious cases -- opinions written in connection with six cases, I think, involving four minor daughters in the year 2000 while I was on the court. It is true that the law -- the legislature made it a policy judgment that they wanted more -- they wanted parents more involved with the abortion decisions of their minor daughters. But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved -- are about interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.

UPDATE #2: the New York Times has an article about this on April 21, 2005. I write about it here.