Bench Memos

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Gonzales & Owen


On Friday at the National Press Club, Alberto Gonzales again once again addressed whether he accused Priscilla Owen of “unconscionable judicial activism”:

MODERATOR: Opponents of Priscilla Owen have time and time again quoted a particular Texas case when you and she were both on the Supreme Court. And people in the White House have said that it’s been taken out of context, the quote that was used. I wanted to give you a change to explain both what you wrote in the context current debate.

GONZALES: There’s a lot of misinformation about this. It’s rather difficult to explain in a short sound byte. And, therefore, people choose to ignore the explanation–or choose to ignore the fact that I fully support Judge Owen. I would not have recommended her to the president if I didn’t fully support her.

She and I did serve together on the court for a period of two years. And the quote that is my quote comes from an opinion I wrote in connection with the parental notification case. The Texas legislature passed a parental notification was in connection with abortions involving minor daughters I believe in 1999 or 2000.

And the legislature didn’t make the parental notification right absolute. They provide an exception, that is that you could go to a court and get a judicial bypass if you could how three things. And one of the things that the Texas legislature said would be an exception to having provide notice to a parent, was if the minor could show a judge that she was mature and sufficiently well-informed–mature and sufficiently well-informed.

And so it fell upon the Texas Supreme Court to try to give meaning to those words. What did the Texas legislature intend when they said that as a matter of policy if a minor could show that she was mature and sufficiently well-informed she could receive a judicial bypass.

And so it was a case involved statutory construction. I looked at the case, looked at the way the statute was constructed and made a decision that the legislature intended that exception, that bypass to be a meaningful one, to be a real one. And to construct the statue in a way that didn’t respect that legislative decision, I felt, would be an act of judicial activism.

GONZALES: I was referring to my own interpretation of the statute. I was not referring to the writings or the positions of other judges on the court who wrote in dissent in that particular case. I have made this position quite clear, under oath, in connection with my confirmation hearings.

As an initial matter, I didn’t give this explanation when Judge Owen was first nominated because, quite frankly, I have a problem with judges describing the deliberative thought processes, quite frankly. And I just didn’t think it was appropriate. And therefore, as an initial matter I took the position: Look, judges disagree all the time on cases. The fact that I disagree with Judge Owen on this case or other cases takes away in no way from my own views that she is well-qualified and deserves to serve on the 5th Circuit.

That’s I hope a helpful explanation of the words that I used in that particular statute. Again, it was referring to the way that I interpreted legislative intent based upon the words used in the statute, based upon the framework of the statute, that judicial bypasses had to mean something and that for me to ignore my interpretation of the statute would be an act of judicial activism on my part.


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