Showdown on Judges Draws Closer

This morning, the Senate Judiciary Committee sent the nominations of Judges Priscilla Owen and Janice Rogers Brown to the full Senate on 10-8 party line votes. This sets the stage, presumably, for a showdown on the Constitutional option, but the timing is still uncertain. Republicans are said to believe that Owen and Brown are the nominees who put the Democrats in the worst position if they try to filibuster. I think that’s likely right.
The Christian Science Monitor covers the judge controversy, and contributes this bit of “history” relating to Judge Owen:

Owen, critics say, is a judicial activist whose record shows a bias against the environment and victims of discrimination and medical malpractice. But the most telling critique of the Owen record comes from a voice now inside the Bush administration. As a colleague on the Texas Supreme Court, Attorney General Alberto Gonzales once criticized Owen for an “unconscionable act of judicial activism” by restricting a minor’s access to abortion. He now supports her nomination enthusiastically, but the old rebuke still replays often in the debate over her confirmation.

This is a ludicrous characterization of the events referred to. Gonzales’ comment was in a concurring opinion in a case called In re Jane Doe, decided by the Texas Supreme Court in 2000. The Monitor’s suggestion that Owen “restrict[ed] a minor’s access to abortion” is wrong. The case arose under Texas’ Parental Notification Act, which, in general, requires that minors notify their parents before getting abortions, but sets out limited exceptions to that rule, where the notification requirement can be bypassed based on a showing made to a trial court. What happened was that the Texas Supreme Court overturned decisions of both the trial court and the Texas Court of Appeals, and allowed the minor in question to have an abortion without telling her parents, holding that the “bypass” provisions of the statute had been satisfied. The case had a majority opinion, two concurring opinions, one of which was written by Justice Gonzales, and three dissenting opinions, one of which was by Justice Owen. In Gonzales’ concurring opinion, he 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. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction….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.

Later in his concurring opinion, Gonzales refers to, and criticizes, the dissenting opinion by Justice Hecht. He never mentions Justice Owen’s dissent.
Justice Hecht’s dissent bitterly criticizes the majority’s decision, and takes a shot at Gonzales specifically. Hecht argues, based on the Texas statute’s legislative history, that bypass exceptions were intended to be “rare.” Gonzales’ comments were obviously intended to apply to Hecht.
Justice Abbott’s dissent also was based on his disagreement with the majority’s interpretation of Texas’ Parental Notification Act. He, too, wrote that the intent of the Legislature was to make bypasses “rare.” He also addressed at length the standard of proof that, under the statute, should be applied to the necessarily ex parte testimony of a minor seeking to bypass parental notification. So his dissent, too, falls within the scope of Gonzales’ criticism.
Justice Owen’s dissent was quite different. What she objected to was the majority’s failure to follow the elementary rules of appellate practice. Appellate courts do not conduct de novo fact finding. They accept the facts as found by the trial court, assuming that there is evidence in the record to support them. Owen’s complaint was that the majority disregarded the trial court’s express and implied findings of fact, even though those findings were supported in the record. She wrote:

The question in this case is not whether the Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court’s judgment. The answer to this latter question is yes. Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court or to ignore the evidence, as it has done.

Justice Owen’s dissent also criticized what she considered the undue and unnecessary haste with which the Supreme Court acted. However, unlike Justices Hecht and Abbott, Owen did not address issues of statutory interpretation, and said nothing about bypasses being “rare” or about the burden of proof to which they are subject. Thus, on its face, Gonzales’ criticism of “judicial activism” did not apply to Owen’s dissent.
More importantly, no one trained in the law would argue that the principles relied on by Justice Owen constitute “judicial activism.” On the contrary, showing appropriate deference to the fact findings done by the trial court is fundamental to the appellate process and is a basic component of judicial restraint, not judicial activism. It is deeply ironic that the one case relied on by Justice Owen’s critics for the proposition that she is an “activist” is a case in which she voted to affirm the trial court and the Texas Court of Appeals, and deferred to the fact findings made by the trial court.
The Jane Doe case is an interesting one. Feelings were obviously running high on the court, and all of the opinions, on both sides of the issue, are sharply worded. Reading between the lines, the case shows, I think, how difficult it is for an appellate process to play out and for proper deliberation to be given, when only a matter of days are available in which to make a decision. And the dissents, including Justice Owen’s, do seem to have the better of the argument.
But I do not believe that any fair-minded lawyer, of any political persuasion, could read the opinions in the Jane Doe case, and find anything that would raise the slightest doubt about Justice Owen’s fitness as an appellate judge. On the contrary, she appears to have discharged her duty in that case commendably, and to have been a model of judicial restraint.

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