Senator Maria Cantwell's Floor Statement on the Nomination of Priscilla Owen
EXECUTIVE SESSION -- (Senate - April 30, 2003) [Page: S5511] --- NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will now go into executive session to resume consideration of Executive Calendar No. 86, which the clerk will report. The legislative clerk read the nomination of Priscilla Richman Owen, of Texas, to be United States Circuit Judge for the Fifth Circuit.
Ms. CANTWELL. Madam President, I rise as a former member of the Senate Judiciary Committee to discuss something that is very important to all of us: How we should proceed on nominees for our Federal court system. And how we make sure we confirm nominees who will enforce the law and not nominees who might seek to bend the law or interpret it to their own desires. The American people deserve judges who hold the mainstream values of our country and our legal system. They deserve a Federal judiciary willing to interpret the laws as they are, rather than as the judges might want them to be.
The American people believe that the Senate needs to do our job. Not to be a rubberstamp on nominees, but to thoroughly evaluate judicial nominees and determine whether they will continue the tradition of the Federal judiciary by being balanced and impartial, and serving as a countercheck for the executive branch and for us, the legislative branch. That was the role the Founding Fathers gave to the Senate, and I believe that is a role the American people think we should play.
That is why I don't think it is surprising, that 74 percent of the public believes that the question of judicial views and judicial philosophy should be something we consider in the Senate confirmation process, and that we should get answers to questions about judicial philosophy from nominees.
More importantly, a majority of Americans also believe we should not vote to confirm a nominee who might otherwise be qualified if we don't think their views on these important issues reflect mainstream American viewpoint. I believe that the nominee we are debating, Justice Priscilla Owen, fails to meet this test.
As a former member of the Judiciary Committee, I attended a hearing on Priscilla Owen that lasted a full day. During that hearing, Owen's record showed a particular disregard for precedent and the plain meaning of the law.
Anyone who walks into a courtroom as a plaintiff or a defendant in this country should do so having the full confidence that there is impartiality on the part of the judge on the bench. They should have total confidence that the rule of law will be followed, and believe the issues will be judged on their merits rather than viewed through the prism of an individual judge's personal values or beliefs.
There is reason to be concerned about the record of Priscilla Owen. Time after time, even her own Republican colleagues, on a predominantly Republican Texas Supreme Court bench, criticized her for failing to follow precedent or interpreting statutes in ways that ignore the clear intent of the law. Just yesterday a key newspaper in her State, the Austin American Statesman, wrote:
"Owen is so conservative that she places herself out of the broad mainstream of jurisprudence. She seems all too willing to bend the law to fit her views."
I ask unanimous consent to have that editorial printed in the RECORD. There being no objection, the material was ordered to be printed in the RECORD, as follows [see end]
What some of Owen's colleagues on the bench have said about her opinions I think is important. In a case dealing with a developer seeking to evade Austin's clean water laws, her dissent was called "nothing more than inflammatory rhetoric."
In another case, her statutory interpretation was called "unworkable." In yet another case, the dissent she joined was called "an unconscionable act of judicial activism."
Some of our other colleagues have already mentioned that particular quote. One of the reasons we all find it somewhat unbelievable is the fact that it was made by her then-colleague on the Texas Supreme Court, now the White House General Counsel Alberto Gonzales, who is in charge of pushing her nomination.
But the criticism of Owen comes not only from her colleagues but from across the country. The San Antonio Express calls her nomination misguided. The Atlanta Journal called the Judiciary Committee's original objection to her nomination "the right decision for the American people." The New York Times wrote last week that it was abundantly clear at her hearing that her ideology drives her decisions. The Kansas City Star even said there are better nominees and better ways for the executive branch to spend its time than re-fighting these battles.
There is another reason this nomination is so important. I believe this is critical to all the nominees we are considering for appointment to the Federal bench. That is, what is the judicial philosophy and commitment to upholding current law as it relates to a citizen's right to privacy. I asked Justice Owen at her hearing about her beliefs on the right to privacy. I asked her if she believed there was a constitutional right to privacy and where she found that right in the Constitution.
She declined at the time to answer that question without the relevant case information and precedents before her. When Senator Feinstein followed up with a similar question, Owen again would not answer whether she believes a right to privacy does exist within the Constitution.
The question of whether a nominee believes that the right to privacy exists with regard to the ability to make decisions about one's own body is only the tip of the privacy iceberg. I believe that we are in an information age that poses new challenges in protecting the right to privacy. We are facing difficult issues including whether U.S. citizens have been treated as enemy combatants in a prison without access to counsel or trial by jury, whether businesses have access to some of your most personal information, whether the Government has established a process for eavesdropping or tracking U.S. citizens without probable cause, and whether the Government has the ability to develop new software that might track the use of your own computer and places where you might go on the Internet without your consent or knowledge. There are a variety of issues that are before us on an individual's right to privacy and how that right to privacy is going to be interpreted. A clear understanding of a nominee's willingness to follow precedent on protecting privacy is a very important criteria for me, and it should be a concern for all Members.
Of course, some of my concern and skepticism about Justice Owen's views on privacy results from the opinions she wrote in a series of cases interpreting the Texas law on parental notification. In 2000 the State of Texas passed a law requiring parental notification. But they also included a bypass system for extreme cases.
Eleven out of 12 times Owen analyzed whether a minor should be entitled to bypass the notice requirement, she voted either to deny the bypass or to create greater obstacles to the bypass.
Owen wrote in dissent that she would require a minor to demonstrate that she had considered religious issues surrounding the decision and that she had received specific counseling from someone other than a physician, her friend, or her family. Requirements, I believe, that go far beyond what the Texas law requires.
In interpreting the "best interest" arm of the statute, Owen held that a minor should be required to demonstrate that the abortion itself--not avoiding notification--was in the individual's best interests. In this particular case, I think she went far beyond what the statute required.
Where does that put us? Women in this country rely on the right to choose. It is an issue on which we have had 30 years of settled law and case precedent. In the Fifth Circuit, there are three States that continue to have unconstitutional laws on the books, and legislatures that are hostile to that right to choose. The Federal courts are the sole protector of women's right to privacy in these states. I do not believe that the rights of the women of the Fifth Circuit can be trusted to Justice Priscilla Owen.
Owen's rulings on privacy and not following precedent raise grave concerns. But this is not the only area where Justice Owen has been criticized. She also has been criticized in areas of consumer rights and environmental law.
The Los Angeles Times singles her out as a nominee who disdains workers' rights, civil liberties and abortion rights. And even a predominantly Republican court--one considered by legal observers and scholars to be one of the most conservative in this country--Justice Owen still seems to go further than a majority on that court. Time after time, Justice Owen has ruled in favor of business interests over working people, against women, against victims of crime and negligence, and against the environment. Over a career a judge can have many controversial cases. But, as the Austin Statesman points out, Justice Owen is widely known as a nominee that "could usually be counted on to side in any important case that pitted an individual against business interests to side with business."
I don't think that is the type of representation that we want to have on our courts. Her controversial rulings include an opinion that a distributor who failed to conduct a background check on a salesman was not liable for the rape of a woman by that salesman.
In a case challenging the ability of Texas cities to impose basic clean water control, she held the legislature had the power to exempt a single developer from city water pollution controls by allowing the developer to write their own water pollution plan. The majority called her dissent "nothing more than inflammatory rhetoric."
There are other cases dealing with Texas public information law which I think are important for all of us, for all of our citizens to have access to public information.
She wrote that a memo prepared by a city agency about an employee should not be subject to disclosure under the Texas Public Information Law because it discussed "policy," an exemption that a majority of others on the board said would be "the same as holding there is no disclosure requirement at all."
In another similar case about public information laws, she held that a report prepared by the city of Houston and financed by taxpayers could not be disclosed under the Texas Public Information Act. Again, her colleagues criticized her decision not only as "contradicting the spirit and language of the statute, but gutting it."
It is possible to find cases or points to argue in the record of almost any judge, but because of the reaction of her own colleagues to her decisions. I find the constant criticism and rebukes that run through the opinions of Owen's colleagues surprising. They consistently indicate that they think she has overstepped or misinterpreted the law to such a degree that they have used the words "gutting" or "judicial activism" or "overreaching."
As do many of my colleagues, I believe that we should move off this nomination and on to more important matters. We in the Northwest have an economy that has failed to recover. We in America are looking for an economic plan to move our country forward. There are many issues of national security that we must continue to debate.
I think that we could do better than renominating Priscilla Owen, and others who have already been rejected by a previous Senate Judiciary Committee. The fact that we are even debating this nominee is unprecedented. While I respect the President's right to renominate her, I find his decision to do so given the breadth of opposition and genuine questions that have been raised by her troubling.
The American public cares about us doing our job on nominees. It cares about us asking the right questions. It cares about us making sure that judicial nominees are following important laws that are already on the books. I believe the majority of Americans are becoming more and more concerned about their right to privacy and how it might be protected in the future.
With all the issues that we are facing on our judicial nominees, I say to my colleagues that it is time to move off this nominee--not to move forward on it and instead to the important business that needs to be done for this country and specifically for the Northwest.
I ask my colleagues to oppose the motion to proceed to a vote on this nomination and turn instead to the business that the people of America want us to address: our economic livelihood and how we can all work together to provide better opportunities for Americans. I yield the floor.
[From American-Stateman, Apr. 29, 2003]
Owen Deserves a Note But Not a Confirmation
The U.S. Senate is expected to resume debate soon over President Bush's nomination of Texas Supreme Court Justice Priscilla Owen to the 5th U.S. Circuit Court of Appeals, which hears federal appeals from Texas, Louisiana and Mississippi. We have argued before that she deserved a hearing, and she finally got one from the Senate Judiciary Committee. That said, however, she should not be confirmed.
There's no question that Owen is qualified for the 5th Circuit by her legal training and experience. She was a standout at the top of her Baylor University Law School class; she became a partner at a major Houston law firm, Andrews & Kurth, where she practiced commercial litigation for 17 years; and she was elected in 1994 to the Texas Supreme Court, and re-elected in 2000. She received the highest rating, "well-qualified," from an American Bar Association committee that reviews judicial nominations.
But Owen is so conservative that she places herself out of the broad mainstream of jurisprudence. She seems all too willing to bend the law to fit her views, rather than the reverse.
One example was the state Supreme Court's interpretation of the then-new Parental Notification Act regarding abortions sought by minors. In early 2000, the nine justices, all Republicans, took up a series of "Jane Doe" cases to determine under what circumstances a girl could get a court order to avoid telling a parent that she intended to get an abortion.
Owen and Justice Nathan Hecht consistently argued for interpretations of the law that would make it virtually impossible for a girl to get such an order.
Finally, in one Jane Doe case, another justice complained that "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 justice who wrote that was Alberto Gonzales, who is now Bush's general counsel.
Owen also could usually be counted upon in any important case that pitted an individual or group of individuals against business interests to side with business.
Owen is being appointed to a lifetime position in the judicial branch of government, not to a post in which her duty is to carry out the will of the president. And given the narrowness of his 2000 election victory, Bush is not in a position to argue that the public has said it wants ultra-conservative judges.
If the Senate Democrats invoke their power to filibuster, Owen would be the second judge nominated by Bush to be blocked in such a way. The other is Miguel Estrada, who was nominated to the U.S. Circuit Court of Appeals for the District of Columbia, and who Democrats suspect is a radical, ideological conservative.
Democrats are not blindly opposing all of the president's judicial nominees. Many have been confirmed by the Senate, and others have won committee approval without controversy, including Edward Prado of San Antonio, a federal district judge who was nominated to the 5th Circuit.
But Owen should not be confirmed.
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