Patterico's Pontifications


John Cornyn Defends Priscilla Owen

Filed under: Judiciary — Patterico @ 7:35 pm

Senator John Cornyn writes in Roll Call (no Internet link available):

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.

Unfortunately, I can’t simply copy Cornyn’s entire piece without violating Roll Call’s copyright. However, I can summarize some of his arguments, and quote liberally from others.

Cornyn explains that Aron misrepresented one products liability case involving Hyundai Motor Co. Cornyn notes that “the U.S. Supreme Court later adopted her approach, in an opinion authored by Clinton appointee Justice Stephen Breyer.” Cornyn notes another Aron misrepresentation, in which she claimed that a woman who was raped by a vacuum cleaner salesman could not “sue the company, which had hired him without a background check.” Cornyn says this is flatly wrong; Owen did not dispute that the company was 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.”

But the passage that interests me the most relates to the abortion cases I have discussed on this blog over the past couple of days (in this post and this post):

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?

Cornyn concludes:

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)

CBS Distorts Ken Starr Comments About Filibusters of Judicial Nominees

Filed under: General — Patterico @ 7:19 pm

CBS has seriously distorted comments made by Ken Starr about filibusters. (Via Power Line.)

Monday night, Starr appeared in a CBS News segment regarding the current controversy over filibusters and the nuclear option. You can watch the video here.

The CBS News report quoted Starr as saying: “This is a radical, radical departure from our history and from our traditions, and it amounts to an assault on the judicial branch of government.” Viewed in context, Starr appeared to be referring to the Republicans’ proposal to employ the “nuclear option” and do away with the filibuster.

But it turns out that Starr was actually criticizing Senators who vote against a qualified judicial nominee for reasons relating to the nominee’s judicial philosophy — in other words, what Democrats are currently doing to President Bush’s nominees.

CBS took a quote criticizing the current practice of Democrats, and transmogrified it into a criticism of a proposed plan of action by Republicans.

Starr has circulated an e-mail in which he says his quotes were distorted. Ramesh Ponnuru quotes Starr’s e-mail as saying:

In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The “radical departure” snippet was specifically addressed — although this is not evidenced whatever from the clip — to the practice of invoking judicial philos[o]phy as a ground[] for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg’s nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that’s the second snippet), but I likewise made clear that the “filibuster” represents an entirely new use (and misuse) of a venerable tradition. . . .

[O]ur friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said.

To be fair, Borger did tell viewers that “Starr thinks all judges should be allowed a vote, even if they’re Democrats.” But that line does not correct the clear misimpression created by the segment: that Starr called the Republican’s nuclear option a “radical, radical departure from our history and from our traditions” as well as “an assault on the judicial branch of government.” Starr never said that, and CBS News should apologize for suggesting that he did.

P.S. The extended entry has something I haven’t seen on any other blog — a transcript of the segment, edited by me for accuracy:


Will Ken Salazar Keep His Campaign Promise and Vote for Cloture?

Filed under: Judiciary — Patterico @ 6:21 pm

Yesterday I wondered why Big Media is asking squishy Republicans whether they will vote for the nuclear option — but isn’t asking squishy Democrats whether they will vote for cloture as to any filibustered judicial nominee. I speculated that the Democrats have a stronger leadership.

Still, if any media folks wanted to ask that question of Democrats, they could start with Colorado Senator Ken Salazar — a Democrat who promised during his recent campaign that he would support President Bush’s nominees’ getting an up or down vote.

Volokh on Nebraska Gay Marriage Decision

Filed under: Civil Liberties,Court Decisions,Judiciary — Patterico @ 6:12 pm

As you have probably heard, a federal judge in Nebraska has issued what appears to be the first ruling ever to hold that a ban on same-sex marriage violates the United States Constitution. The opinion is here. Eugene Volokh offers criticism here.

I’ll offer my thoughts once I have had a chance to read the opinion.

A Debate Over Priscilla Owen’s Nomination Is Good Politics for Republicans

Filed under: General — Patterico @ 6:59 am

The nomination of Priscilla Owen gives Republicans an excellent chance to show voters what Democrats consider “outside the mainstream.” Democrats oppose Owen because she opined that a minor should have consulted her parents before getting an abortion. The minor had not claimed that her parents would abuse her if she told them beforehand. She just didn’t want them to know until afterwards.

I believe mainstream America wants their daughters to talk to them before making such a momentous decision.

I also believe that mainstream America prefers adoption to abortion. The majority opinion, from which Owen dissented, sanctioned the idea that abortion is preferable to adoption. The majority argued that adoption would be emotionally difficult for this minor, because she would become attached to the baby once it was born. This is not a mainstream position.

Here are the details:

Democrats filibustering Owen’s nomination point to this dissent by Owen in a case applying Texas’ judicial bypass law. (For further discussion, see this post.) The Jane Doe in this case was a minor who wanted to obtain an abortion without telling her parents. She did not claim that telling her parents would lead to physical, sexual, or emotional abuse. She didn’t even claim that telling them wouldn’t be in her best interest. She just said that she was sufficiently mature and well-informed to make the decision herself, without input from her parents.

The trial judge disagreed, specifically finding that Doe was not sufficiently well-informed regarding the potential consequences of her decision, and the available alternatives. The Court of Appeals agreed with the trial judge. And Justice Owen agreed as well.

This, in Democrats’ eyes, is her crime.

Understand clearly that Justice Owen did not rule that Doe was not entitled to an abortion. She simply believed that, under Texas law, Doe’s parents should be consulted beforehand. Justice Owen wrote that the trial judge who had heard Doe testify was in the best position to judge whether she was sufficiently mature and well-informed to make this decision without her parents’ input.

Owen argued that the trial judge had evidence justifying his conclusion that the minor was not sufficently mature to make this decision on her own. The record certainly seems to support this. Doe didn’t want to tell her parents in large part because she was afraid her parents would cut off her money supply:

Doe is a senior in high school and still lives at home. Her parents provide for substantially all her needs. They recently purchased a new vehicle for her use now and when she goes to college in the fall. Although some of Doe’s earnings from a part-time job help to defray the cost of insurance, Doe’s parents are paying for this vehicle. Doe also contemplates that her parents will pay for her college education. When asked why she did not want to tell either of her parents that she was pregnant and intended to have an abortion, Doe testified that it would upset them because they do not “believe in abortion.” A pregnant minor’s desire not to upset her parents is not a basis for concluding as a matter of law that she is mature. See In re T.P., 475 N.E.2d 312, 315 (Ind. 1985). But the more telling testimony is that Doe said that she feared that her parents would no longer provide financial assistance to her if they knew that she had an abortion. She testified that she intended to tell them some day that she had an abortion “when she was ready.” A reasonable inference from this testimony is that after Doe’s parents have paid most of her living, transportation, and education expenses over the next few years, she will tell them the truth, when there will be fewer consequences to face.

(All emphasis in this post is mine.)

Doe simply wanted to use an abortion as an immature way to avoid facing up to the consequences of her decision to have sex. And she didn’t want her parents to know, because they might stop paying for her expenses. A judge said she wasn’t sufficiently mature and well-informed to make this decision without talking to her parents first. Justice Owen agreed.

I think that mainstream Americans would also agree.

Justice Owen also noted the trial court’s finding (upheld by the Court of Appeals) that Doe had not been adequately advised about the alternative of adoption:

Doe did not, or was not able to, explain what she understood might be involved in an adoption. She expressed concern that if her child were placed for adoption, she would not be able to determine if it was placed in a loving home and given adequate care. Doe was clearly uninformed about the screening required before a child is placed in the home of prospective parents or the continued supervision after the child is placed. Similarly, she did not exhibit any understanding about open adoption, even though a witness from Planned Parenthood whom Doe had never met or talked to testified at the hearing that open adoption was an option.

Incredibly, the majority had been unswayed by this argument, ruling that the benefits of adoption were “immaterial.” The majority accepted the theory that adoption was not a realistic alternative for Doe, because Doe might get attached to the baby and want to keep it. Here is the appalling language of the majority opinion:

[E]ven though there may be generally recognized benefits to an alternative, those benefits must be considered in light of the minor’s particular situation. According to Doe’s testimony, adoption was not a realistic option for her because she would grow emotionally attached to the child after birth and would be unwilling to give the child up. Doe’s testimony shows that she does not perceive any benefits to carrying a baby to term in her current situation. The undeniable benefits of adoption the court of appeals identified are thus, to Doe, immaterial.

With this language, the Texas Supreme Court legitimized the reprehensible notion that abortion may be superior to adoption because it is emotionally easier on the mother. In essence, Doe had told the trial judge: “If I had the baby, I might get attached to it and want to keep it. Better to kill it.” Out of sight, out of mind.

I could be wrong, but I don’t think mainstream America thinks this is a good reason for a 17-year-old child to have an abortion.

What about the idea that the parents could raise the baby? Well, Doe apparently never considered that possibility — because she didn’t talk to her parents about it. Owen explains that the evidence in the case demonstrated that

Doe did not consider whether her parents would help her raise the child or raise it themselves if she decided to carry her baby to term. Similarly, Doe expressed concern about her ability to provide financial support for her child, but she did not indicate that she had considered whether her parents would support her and her child if she decided to have it.

The public has a right to know just how radical Democrats can be when they are bowing and scraping to the wild-eyed ideologues of the abortion lobby. So don’t shy away from this battle, Republicans. It’s an important one.

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