ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Both a Washington Post article today, and a New York Times article today, incorrectly report that Attorney General Alberto Gonzales once accused Texas Supreme Court Justice Priscilla Owen of being an unconscionable judicial activist, when they served together on the Texas Supreme Court. This charge is utter baloney, and it merely repeats what the New York Times incorrectly reported previously, on April 21 and April 22.

This alleged charge of unconscionable judicial activism relates to a particular case, In Re Jane Doe, that involved whether or not a minor seeking an abortion had to notify her parents. Justice Owen wrote one of several dissents, and then-Justice Gonzales wrote an opinion concurring with the majority. The respected legal scholar Jonathan Turley (a self-described liberal) has written this about Justice Owen's dissent in that case: "I don't agree with it. But she's not some wild-eyed extremist."

The controversy basically swirls around one particular sentence in the concurring opinion written by then-Justice Gonzales:

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.

Here's what the Post says today about this sentence:

While serving alongside Owen in 2000, Gonzales wrote an opinion criticizing her and two other dissenting judges for "an unconscionable act of judicial activism" in seeking to restrict a minor's right to an abortion. "Judges disagree from time to time on particular issues," Gonzales said yesterday. "That doesn't in any way detract from my view that she would make a terrific judge on the 5th Circuit. I've never accused her of being an activist judge."

So, the Post says Gonzales made an extremely damning charge against Owen, and then the Post blithely mentions that Gonzales now denies he ever made such a charge. The Post does not bother to say why it believes Gonzales is wrong when he denies ever having made that charge against Owen. After all, that might require real reporting.

In contrast, the New York Times today does not even bother to mention that Gonzales has (repeatedly) denied the story:

Attorney General Alberto R. Gonzales, a justice on the court at the time, said the dissenters' views were far beyond what the Legislature had enacted and amounted to "an unconscionable act of judicial activism."

Attorney General Gonzales has not just denied the story, but has denied it under oath, during his confirmation hearing to be Attorney General:

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me.

Justice Owen has also testified under oath that she agrees with that comment by Gonzales about an unconscionable act of judicial activism: "I agree with that," said Justice Owen at her confirmation hearing. So what's going on here? Why do the Post and the Times insist that Gonzales made an accusation against Owen, despite denials under oath by both Gonzales and Owen?

It's revealing that neither the Post nor the Times could spare enough ink to quote the two words immediately preceding the phrase that they did quote: "would be an unconscionable act of judicial activism." Gonzales was not accusing anyone of an actual act of judicial activism.

Moreover, the Post and the Times both manage to conveniently overlook the fact that, in the very same concurring opinion, Gonzales acknowledged that each of the dissenters “agrees that the duty of a judge is to follow the law as written by the legislature."

Former Texas Supreme Court Chief Justice John Hill explains that this whole story about an "unconscionable act of judicial activism" propagated by the Times and the Post is completely absurd:

That's just a phony charge, and the reference to General Gonzales' comments in that opinion are just a red herring.

In fact, Justice Owen's dissent in that case --- unlike other dissents in the same case --- did not even address issues about how to interpret the parental notification statute; that point has been clearly explained by John Hinderaker at Power Line.

Wouldn't it be refreshing if the Post and the Times would do a better job, so I wouldn't have to write these long, tedious posts? :-)

UPDATE: Power Line has further May 10 comments about Justice Owen and this parental notification case here and here, plus May 11 comments here.