May 13, 2005,
Almost 1,500 days have passed since President Bush announced his first eleven judicial nominees, an exceptionally diverse slate of qualified candidates that even the New York Times said was “notable for its inclusion of women and minorities.” Since that May 9, 2001, day, America has endured a terrorist attack, bestowed iconic status on a gizmo called the iPod, produced eleven of Hollywood’s top-20 all-time blockbusters, and birthed democracy in two long-oppressed regimes.
But one thing has persisted: Senate Democrats’ bare-fisted attacks on Texas supreme court justice Priscilla Owen. Justice Owen’s resume is impeccable: top of her law-school class (completing undergraduate and law school in just over five years); highest score statewide on the bar exam; ten years on the Texas Supreme Court; reelected in 2000 with 84 percent of the vote and the endorsement of every major Texas newspaper; and the highest rating possible a unanimous “well qualified” from the American Bar Association (no conservative bastion), which Democrats once hailed as “the gold standard.”
In 2003, after Democrats lost their Senate majority (due partly to their obstruction of the president’s judicial nominees), they ditched 214 years of Senate history and launched unprecedented filibusters against ten appellate nominees, each of whom boasted bipartisan support. So for two of the last 216 years, and roughly one-half of the Bush presidency, a partisan minority has stymied a bipartisan majority. If Senate Majority Leader Bill Frist pulls the trigger soon to deem judicial filibusters illegitimate, Priscilla Owen may well be the firing pin.
For four long years, the Owen bashers have been pyromaniacs in a field of straw men, going to malicious extremes to vilify her. Without question, the liberals’ all-time favorite attack is one that attempts to brand her a judicial activist by seizing on five words in a 2000 concurring opinion written by current U.S. Attorney General Alberto Gonzales, then one of Owen’s colleagues on the Texas supreme court.
This attack is a flat-out lie. I should know. I was there. I served alongside both Gonzales and Owen on the Texas supreme court when this case was decided. I witnessed it all first-hand and am uniquely positioned to drive a stake through this canard once and for all.
Here are the facts: In 2000, the Texas supreme court heard several cases construing the 1999 Texas Parental Notification Act, which requires one-parent notice when an underage girl seeks an abortion. (Similar laws are in place in 40-plus states and boast the support of over 80 percent of Americans.) The Texas law also authorizes “judicial bypass” of the parental notification requirement in certain circumstances. In the cases before the Court, a majority decided to interpret the judicial bypass provision more expansively than the dissenters (and the statute’s chief author) believed was warranted under U.S. Supreme Court precedent.
In one case, Justice Gonzales wrote a concurring opinion that said it would be an “unconscionable act of judicial activism” for a judge to contort a statute to reach a preferred policy outcome. A tortured reading of those five words forms the centerpiece of the Left’s campaign against Justice Owen. Unlike the guerilla smear groups, however, I had an unmatched front-row seat as our court decided this case, and I know exactly what Justice Gonzales meant.
Few things in life are 100 percent certain, but this one is: Alberto Gonzales was not calling Priscilla Owen, or any other colleague, a judicial activist. On this point there was never one iota of intra-court confusion. My colleagues and I knew that Justice Gonzales was not targeting anyone personally but making a point of personal principle because I interpret this imprecise statute a certain way, it would be a personal act of judicial activism to let my subjective ideology trump my detached interpretation. His concurring opinion characterized what he believed he would be doing if he interpreted the statute to mean something other than what he thought it meant, even though his interpretation may have been “personally troubling to [him] as a parent.”
No doubt, the Texas Parental Notification Act is susceptible to more than one good-faith interpretation. And disagreements about what statutes mean are often contentious, even among the most collegial jurists. But no judge on my court believed for a moment that Justice Gonzales was rebuking anyone, least of all Priscilla Owen. Indeed, far from branding Justice Owen an activist, his concurrence which not once mentions Owen or her separate dissent noted explicitly that “every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature.” This categorical declaration captures the very antithesis of judicial activism. Justice Gonzales never suggested anywhere to anyone that Owen was legislating rather than adjudicating, and he has repeatedly clarified that he never believed or intimated otherwise. He put an exclamation point on it earlier this year in sworn testimony before the Senate Judiciary Committee: “My comment about judicial activism was not focused at Judge Owen,” and “the words that have been used as a sword against Judge Owen” have been distorted.
The worn-out “activism” charge from the anti-Owen forces (who always opposed parental notification anyway) has been refuted time and again by others close to the process. Indeed, the principal author of the notification law has stated unequivocally that “[Owen’s] opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint” and that Owen’s legal analysis was focused on a solitary objective: “to determine what the Legislature intended the Act to do.” Moreover, the pro-choice law professor who helped the Texas Supreme Court’s Advisory Committee draft procedures under the parental notification law supports Owen and rejects emphatically any charge of judicial activism in Owen’s analysis: “Owen is not a judicial activist,” and “[h]er decisions do not demonstrate judicial activism. She did what good appellate judges do every day.”
Bottom line: The Left’s allegation that Gonzales accused Owen of unprincipled activism spins his words 180 degrees and is patently false. I was there, and the facts are hostile witnesses. But the charge repeated 24/7 by liberal interest groups and a compliant, soundbite-craving media has acquired urban-myth status.
The supreme irony in all this is that liberals, who prefer an imperial judiciary inclined to activism, seized upon this five-word snippet precisely because they know full well, as Alberto Gonzales knows, that Priscilla Owen adheres assiduously to judicial restraint and refuses to tinker with text to reach politically preferred outcomes. It’s a shameful spin tactic, akin to a critical movie review that a studio blurbs beyond recognition, replacing “a triumph of depravity” with “a triumph!”
Take it from one who served alongside her, Priscilla Owen ranks among the most exceptional jurists in America. Left-wing activists understand this fully hence their ferocity. But their savagery is inversely proportional to their candor. They seek to impose a glass ceiling on Justice Owen who has endured two separate confirmation hearings and exhaustive Senate debates because (1) they ascribe to her convictions that they believe are intolerable for women in high office to hold, (2) they view her (rightly) as U.S. Supreme Court material, and (3) she is a personal friend of the president and hails from Texas.
It is time to govern.
Greg Abbott is attorney general of Texas and a former justice on the Texas supreme court.