Owen the Activist. In an otherwise pretty fair
article,
Jeffrey Rosen writes
In the case of Priscilla Owen, a nominee to the federal appeals court in Texas, the Democrats' concerns are arguably justified: even President Bush's White House counsel, Alberto Gonzales, called Owen's attempt to narrow a Texas law allowing minors to have abortions without their parents' consent ''an unconscionable act of judicial activism'' when he was a colleague of Owen's in Texas.
But did Gonzales really label Owen's opinion ''an unconscionable act of judicial activism?''
If you ask that as a yes or no question, I'd say the answer is "no." At best, Rosen's statement is misleading, at worst it's just sloppy re-writing of a press release without reading the opinions.
This issue -- whether Gonzales labeled Owen an activist -- was first raised by the group known as People for the American Way ("PFAW") in a "report" opposing Owen wherein the group wrote: "In fact, even current White House Counsel Alberto Gonzales criticized a dissent joined by Owen in one case as “an unconscionable act of judicial activism.” This charge was then echoed in an essay by
Jason Zengerle in The New Republic, when he wrote:
Indeed, one of the nomination's more curious aspects is that while on the Texas court, Owen frequently clashed with Gonzales--who as White House counsel is theoretically in charge of judicial nominations. In one parental- notification case, Gonzales went so far as to blast Owen's position as an "unconscionable act of judicial activism."
In response to the PFAW "report," Terry Eastland wrote an
opinion piece published in the Dallas Morning News on July 22, 2002, where he discussed precisely who was being labeled an activist by Gonzales:
The opinions in the case mostly concerned how judges should go about interpreting the notification act. In a concurring opinion, Justice Gonzales felt compelled to respond to "the dissenting justices" who "suggest that exceptions to the general rule of notification should be very rare and require a high standard of proof." Two of the three dissenting opinions suggested that, and one of the dissenters, Nathan Hecht, got under the majority's skin, accusing it of substituting its own policy views for those of the Texas Legislature--judicial activism, in sum.
Justice Gonzales defended the majority against Justice Hecht, contending that nothing in the language or history of the law shows "the Legislature intended such a narrow construction." Thus, he continued, "to construe [the act] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the state, would be an unconscionable act of judicial activism"--one that he said he couldn't engage in. By implication, the dissenting justices advancing the narrower interpretation stood accused of just that.
But Justice Owen didn't stand so accused for the simple reason that in her opinion she didn't undertake an inquiry into the law's intent. Her concern lay elsewhere--with the majority's treatment of the lower courts.
The majority, she wrote, "has usurped the role of the trial court, reweighed the evidence and drawn its own conclusion"--a practice at odds with "more than 50 years of precedent regarding appellate review of a trial court's factual findings." Under well-settled Texas law, she argued, the court may not disturb a trial judge's findings unless no reasonable person could have reached the same conclusion. And, she explained, a reasonable person could have.
"The question in this case is not," she wrote, "whether this 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."
Eastland is more accurate than either Rosen or Zengerle when he notes that Gonzales broadly responded to the "dissenting justices."
Indeed, the entire paragraph in question from Gonzales' opinion demonstrates some ambiguitiy as to who was being labeled:
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. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). 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. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.
(emphasis added.)
Yet at the opening of the concurrence, Gonzales indicates his bone of contention was with Justice Hecht, writing:
Only in this, an appeal after remand of the first of four Jane Doe cases, has the Court granted a minor's application to bypass notifying her parents before she consents to an abortion. Yet in each case, the Court has struggled to render the correct decision, and some members of the Court have strongly disagreed. The tenor of the opinions have been unmistakably contentious. It has been suggested that the Court's decisions are motivated by personal ideology. See ___ S.W.3d ___ (Hecht, J., dissenting). To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature.
Owen's
opinion, as noted by Eastland, focuses on the Texas high court's review of the lower court's opinions as opposed to legistlative construction:
I strongly dissent from the methods employed by the Court in rendering that judgment. The Court summarily reversed the lower courts, without an opinion and without the opportunity for considered, substantive deliberations. Now that the Court has, after the fact, issued an opinion, it has obliterated, with the stroke of a pen, more than fifty years of precedent regarding appellate review of a trial court's findings. The Court's actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary.
This case has a very difficult and contentious history -- by the time of the June ruling in question, there had been at least four separate hearings before the Texas Supreme Court alone in the period of three months. [Links to main opinions from
February 25 2002,
March 7, 2002,
March 13, 2002,
March 22, 2002,
April 11, 2002,
June 22, 2002.]
Look, Rosen's a sharp cookie and he's ususally not one to make a mistake like this. Moreover, although he has an ideology that tend to fall on the left side of things (his ideal justice is David Souter), he generally will play things straight. Given that, I think this is just a simple mistake.
For more on the background of these cases and the Senate's reaction, see
Jonathan Groner's Legal Times article (which addresses a more focused concern in any event -- did Owens try to place religious criteria in the idea of being well-informed with respect to the Texas law which required a woman to demonstrate she was "sufficiently well informed" prior to obtaining an abortion? In this article, Groner notes "In discussing the judicial bypass in the Jane Doe I case, it appears that Owen added 'moral and religious' principles to the 'philosophic and social' ones specifically approved by the Supreme Court." Groner includes a contrasting opinion from Owen supporter C. Boyden Gray: "'I don't think that's legislating. I think that's in the spirit of what the Supreme Court has said,' says Gray. 'I don't think anything in the Supreme Court cases excludes religion as a source of philosophy. In my book, philosophy includes the philosophy of religion.'"
I tend to agree with Gray. If anything, it could be that Owen just made a simple mistake in the rush to issue opinions in a rapidly reviewed case -- sort of like the mistake Rosen appears to have made in writing his article.