Bench Memos

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Debunking Owen Conventional Wisdom


Senator Cornyn addresses some popular left points on Priscilla Owen in a letter in the current Roll Call, so it’s worth reading (not available online):

Nan Aron’s May 10 Guest Observer, “What’s Wrong With President Bush’s Gang of Seven,” criticizes certain opinions authored or joined by Justice Priscilla Owen. As a former Texas Supreme Court justice who served with Owen, I welcome any serious dialogue about the law or about her rulings in particular. Unfortunately, Aron’s charges are deeply flawed and badly misrepresent the cases.

Aron claims that one case (I assume it’s Hyundai Motor Co. v. Alvarado) involved a “faulty constraint mechanism” that resulted in a car accident. Wrong. In fact, the car in question fully satisfied the federal standard then in effect – namely, that cars be, among other options, “equipped with a two-point passive restraint system.” Despite federal law, the plaintiff chose to sue anyway. Owen’s opinion simply held that Congress had forbidden such suits once the federal standard had been met. Out of the mainstream? Not even close. Her opinion followed the “solid majority of the courts to consider this issue” – including precedents authored by judges appointed by President Jimmy Carter. Moreover, the U.S. Supreme Court later adopted her approach, in an opinion authored by Clinton appointee Justice Stephen Breyer (Geier v. American Honda Motor Co., Inc.).

Aron claims that another opinion (I assume it’s Read v. Scott Fetzer Co.) said that a woman raped by a vacuum cleaner salesman could not “sue the company, which had hired him without a background check.” Wrong again. The dissenting opinion made expressly clear that “[n]o one questions that [the company that had hired the rapist] is liable.” The justices simply disagreed on whether another company – one that had not hired the rapist and had no relationship with the rapist – should also have been held liable. Out of the mainstream? Of course not.

Finally, Aron claims that Owen “ignored” a Texas law “designed to help pregnant teens obtain an abortion with court permission.” Wrong yet again.

First, the law simply empowers parents to be notified about the actions of their minor children. Many pro-abortion interest groups actively opposed the enactment of the law – but that was the act of the Texas Legislature, not Owen.

Moreover, Aron repeats the tired and refuted claim that then-Justice Alberto Gonzales accused Owen of an “unconscionable act of judicial activism” in one parental notification case. In fact, Gonzales has sworn – under oath – that he supports Owen and that he never accused her of any such thing.

Ask yourself this question: Who is more credible to talk about the quality of Owen’s legal analysis of the parental notification statute? The author of the statute – who supports her? The pro-choice Democratic law professor appointed by the Texas Supreme Court to craft procedures under the statute – who also supports her? Or the special interest groups who never wanted the law to go into effect in the first place?

We can have serious debates about the law. There are real issues of judicial activism in our nation – whether it’s the redefinition of marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from the public square, whether it’s the elimination of the three-strikes-and-you’re out law and other penalties against convicted criminals, or the forced removal of military recruiters from college campuses. But there is a world of difference between struggling to interpret the ambiguous expressions of a legislature and refusing to obey a legislature’s directives altogether.

Owen is a good judge. She deserves to be confirmed, and most of all, she deserves an up-or-down vote.

Sen. John Cornyn (R-Texas)


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