Facts no obstacle to Democrats in attacking Owen

Inside Washington

Three months after an ugly smear campaign helped them kill Bush's nomination of Federal District Court Judge Charles Pickering, Sr. to the 5th Circuit Court of Appeals, Democrats on the Senate Judiciary committee are working to thwart the nomination of popular Texas Supreme Court Justice Priscilla Owen to the same court.

Once again, the facts are proving no obstacle to committee Democrats' willingness to make wild charges against a Bush nominee

In a hearing on Owen's nomination July 23, committee Democrats scrambled to create some pretext-aside from what they suspect to be her personal views on abortion-- to use in "Borking" her. Although left-wing groups had succeeded in destroying Pickering with unproven allegations of racism, Democrats had difficulty demonstrating at Owen's hearing that they had any real complaint against her other than her rulings in a series of cases involving Texas's parental consent abortion law.

Misstating basic facts, committee Democrats dredged up vague allegations that Owen is overly sympathetic to big business, as well as a false charge that she had violated a section of the Texas Code of-Judicial Conduct. They also alleged that she is a "judicial activist" based on her willingness in three cases-against the majority of her court-to deny judicial exceptions to a 1999 Texas law requiring parental notification for minors seeking abortions (see page 3). The criticism came despite the fact that Owen's opinions in favor of parental notification in these cases were firmly based on standards set in Planned Parenthood v. Casey-a 1992 U.S. Supreme Court decision that upheld Roe v. Wade.

Owen, who was re-elected to the Texas bench in 2000 with 84% of the vote and received a unanimous "well-qualified" rating from the liberal American Bar Association, had to contend with several factual mistakes by her interrogators.

Feinstein's Fallacies

Sen. Dianne Feinstein (D.-Calif.) began by asking Owen about a 1996 personal injury case-Searcy v. Ford Motor Co.-in which she wrote the court's opinion. Willie Searcy had been injured and paralyzed when his seat belt broke in a collision, and he sued Ford for damages. Feinstein first misstated the facts of the case, insinuating that Owen had delayed judgement so long that the plaintiff died while waiting for judgment. "[W]hile the year-and-a-half dragged by that you were supposed to be writing that opinion, one morning the respirator went out and he died:" said Feinstein. "And the opinion you wrote said that the appeal should not be granted on the basis of faulty venue, that it was brought in the wrong venue, which had never been argued in either of the lower courts that handled the case."

Owen replied that Feinstein's facts were simply inaccurate.

"We remanded the case to the lower court, and it was three years later that Mr. Searcy unfortunately passed away," Owen said. "He did not pass away while the case was pending in my court." She added that venue actually had been argued in the lower courts, and was, by law, a decisive factor in the case. "There's a statute in Texas that says if the case is filed in the wrong trial court, then reversal is mandatory."

Owen-along with four other justices-ruled that the case must be retried because the plaintiffs had sued in a county hundreds of miles from their home, the accident site, and Ford's regional headquarters, solely on the pretext that there was a Ford dealership in that county. 'This was essentially a forum-shopping issue," Owen said in the hearing. "Our court had to address the venue issue."

Senators Patrick Leahy (D.-Vt.) and Ted Kennedy (D.-Mass.) also attacked Owen for her alleged sympathy toward large corporations.

"You have developed a reputation for opinions which if not every time most of the time favor big business interests," said Leahy. He then cited a series of cases exactly as they appeared in a memo from the left-wing group People for the American Way (PFAW), repeatedly cutting off Owen's answers.

Among the cases Leahy cited was that of a woman raped by a vacuum cleaner salesman. The woman sued the vacuum manufacturer, Kirby Corp., and the court found in her favor. In her dissent, however, Owen wrote that Kirby was not liable because the salesman was an independent contractor-not even for Kirby, but for another company that in turn was an independent contractor for Kirby. Under basic principles of tort law, she said, "you are not liable for the actions of independent contractors."

In an attempt to smear by association, Leahy also noted that Owen had received funds from Enron employees for her election campaigns. Because Texas justices are elected statewide to six-year terms, they all raise campaign contributions (see HUMAN EVENTS, April 8, 2002).

Kennedy's questioning, also marked by factual error, including his repeating the same question three times, even after Owen had answer it. "I'm struck by the fact that when the court does rule in favor of consumers or victims of personal injury, you're frequently in dissent," he said to Owen. "And you've never dissented from a case in which the consumer loses. . . Do you disagree that you're among the most likely on the Texas Supreme Court to dissent from favoring-cases favoring a consumer or injured plaintiff?"