The main liberal criticism of Justice Priscilla Owen, who will likely be the test case for the Democrats’ judicial filibuster, is the allegation that fellow-justice Alberto Gonzalez once accused her, in a court opinion, of “judicial activism.” We conclusively refuted that claim here. Gonzales did not so refer to Owen’s dissent–as he has repeatedly said–and, more important, it would be absurd for anyone to claim that Owen’s dissent, which deferred to the fact-finding by the trial court, and advocated affirming the judgment of the trial court, as previously affirmed by the Texas Court of Appeals, was somehow a case of “judicial activism.”
Today we got this email from Mark Arnold, one of the top appellate lawyers in the United States, and a Power Line reader:
When Schumer first announced that the Democrats planned to focus on the record of judicial nominees, and oppose only those that were too extreme, my reaction was that it was a lot more fair than the tactics they used on Thomas — if it were honestly carried out. I finally got around to reading the Gonzales concurrence and the Owen dissent in Doe, and you are absolutely right. No honest person could possibly think that his judicial activism shot was aimed at her dissent. That dissent had nothing to do with what the statute meant.
No competent lawyer could read Gonzales’ opinion as a rebuke of “judicial activism” on the part of Justice Owen. Yet the mainstream media have consistently repeated as a “fact” the Democratic talking point that Gonzales so criticized Justice Owen. This is an extreme case of journalistic malpractice. And, without this absurd fabrication, the Democrats have nothing to justify their fiibuster of Justice Owen. Is anyone in the mainstream media paying attention to what top legal experts are telling them?