Did Alberto Gonzales Really Characterize Priscilla Owen’s Dissent As “An Unconscionable Act of Judicial Activism”?
I recently signed on to the analysis of the folks at Power Line that it is simply not true that Alberto Gonzales characterized a Priscilla Owen dissent in an abortion judicial bypass case as “an unconscionable act of judicial activism.”
There’s really no question that the Power Line analysis has merit. If you read the opinions in the case, Gonzales clearly appears to be speaking about other dissents, and not Priscilla Owen’s.
Imagine my surprise to see this in the New York Times:
Mr. Gonzales, a Texas Supreme Court justice at the time, was in the majority and wrote that the position of the three dissenters was “an unconscionable act of judicial activism” because it would create obstacles to abortion that the Legislature did not enact.
Mr. Gonzales, in interviews with The New York Times, acknowledged that his words were directed at her dissent but said that he remained enthusiastic about her nomination to the United States Court of Appeals for the Fifth Circuit.
I am at a loss as to how to reconcile this with reports like this one, which claim that Gonzales stated, in sworn testimony to the Senate Judiciary Committee: “My comment about judicial activism was not focused at Judge Owen.”
I am interested in fighting for nominees who refuse to read their own personal preferences into the Constitution. But I’m not interested in twisting the facts to do so. I don’t like Alberto Gonzales, as I have said on many, many occasions. But if he called Priscilla Owen’s dissent “judicial activism,” that’s a fair argument for Democrats to make. Gonzales was clearly wrong — but the correctness of his assertion is a different question from the question of whether he made it.
On the other hand, Big Media journalists have been known to get things wrong. Even the New York Times. Actually, especially the New York Times.
I don’t know which happened here, but I think some hard questions need to be put to Gonzales and the folks at the New York Times. Someone isn’t telling the truth.
[…] ter front: I think Republicans are actually going to use my conventional warfare option. […]
Patterico's Pontifications » The Weekend Roundup (0c6a63) — 5/17/2005 @ 5:21 amUmmmm….. 🙂 p-a-u-s-e. Do you read then that Jane Doe’s maturity has to only yield one answer that of adoption over abortion, than, abortion over adoption so that she can get on with her schooling and college?
Yi-Ling (7ffa9a) — 5/16/2005 @ 2:41 amI am a little suspicious of an assertion, with no direct quote, that he “acknowledged” saying it, especially when there is sworn testimony otherwise.
Justene (ea096d) — 5/16/2005 @ 5:35 amDo you read then that Jane Doe’s maturity has to only yield one answer that of adoption over abortion, than, abortion over adoption so that she can get on with her schooling and college?
Nope, though I’d prefer to see that. If I were a judge in Texas, I’d require only that she show that she fully understands the alternatives; if she doesn’t, perhaps her parents need to explain them to her.
Patterico (756436) — 5/16/2005 @ 6:13 amPatterico, please see my post on this subject, at http://www.confirmthem.com/?p=497
The Times has clearly, manifestly, obviously quoted Gonzales out of context.
[I don’t think so. He was criticizing one or more dissenting opinions, and saying that if the dissenters got their way, that “would be” judicial activism. That’s not functionally different from saying that the dissenting opinions are, in fact, judicial activism. — Patterico]
Andrew (d85f42) — 5/16/2005 @ 8:53 amSo she did understand the alternative, have the baby and lose out on timely going to college and not have the baby and do NOT lose out on finishing schooling and going to college. Once she decided on the not having the baby, it is then immaterial to look into the fine print of what alternatives there are in having a baby. I somehow sense you think she cannot make that choice without first knowing all the fine print of the other alternative.
Does it make a difference that this was explained to her in court? That is besides the point that, she had the option to have or not have the baby and she chose to not have, for simplifying her life and getting ahead in a world where material things count and having a college degree matters.
In real life, youths do make decisions to abort as if it were a belated contraceptive, so that their life remains unchanged. Since Roe v Wade, where the right to abortion came through, it has facilitated rightly or wrongly from a spiritual perspective the ease of having an abortion. But since Roe is here and has stayed these past decades, Jane Doe had every “legal” right to decide to abort.
Owens erred in holding Jane Doe to a higher standard where Jane Doe is expected to understand the deeper proliferating issues regarding abortion, and adoption. It would be a religious kid to have such fine appreciation for a 17 year old or an older more mature adult. Owens was acting as a conservative activist in this instance to impute such higher standards to Jane Doe.
However as elsewhere noted, the courts striking down the earlier legislation regarding parental notification [ in which state, not clarified here] and requiring judicial bypass, is a more far reaching instance of judges acting a liberal activist in requiring that absent judicial bypass, parental notification of 2 parents is unconstitutional. This is wrong. However two wrongs do NOT make one right, alas!
Yi-Ling (fd24c9) — 5/16/2005 @ 9:13 am“was” and “would be” …. Hmmmm… not much difference, or at least in substance.
Yi-Ling (fd24c9) — 5/16/2005 @ 9:16 amIf you say doing something “would be bad,” that’s not an accusation. If you say doing something “was bad,” that IS an accusation. There’s all the difference in the world. You seriously think it’s coincidence that the Times omitted the words “would be”? Please.
Andrew (d85f42) — 5/16/2005 @ 9:26 am(1) Because of Gonzales high post, what he says matters and thus, the crux is what he said, and who quoted him rightly 🙂
(2) Gonzales apart, reading the gist of the case, Owens was acting in a conservative activist fashion in this instance to obtain a reading of the stat. that supports her dissent. However as noted earlier, the first wrong was when liberal activism cast Roe v Wade and subsequent wrong was when liberal activist judges said “parental notification” unconstitutional UNLESS accompanied by “judicial bypass”.
Yi-Ling (fd24c9) — 5/16/2005 @ 9:36 amI got my maths wrong ! Its three wrongs do NOT make one right 🙂
Yi-Ling (fd24c9) — 5/16/2005 @ 9:40 amPatterico, thanks for your comment. However, I think you may be putting words into the mouth of General Gonzales. He wrote:
“Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses…would be an unconscionable act of judicial activism.”
This sentence does not say that, if the dissenters GOT THEIR WAY, then that would be activism. The sentence plainly says that merely “TO CONSTRUE” things a particular way would be activism given Gonzales’s previous conclusions.
In any event, the interpretation that I’ve given of this sentence is exactly the interpretation that Owen and Gonzales have given to it, under oath. By omitting the “would be” language, the Times has made their explanation appear much less credible. And, as I mentioned at the confirmthem post, the Times also omitted an entire sentence in the Gonzales opinion where he concedes that the dissenters are not activists.
Andrew (d85f42) — 5/16/2005 @ 10:47 amAhem, at the risk of being bothersome, I would like to inquire, Patterico, about this sentence:
“Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses…would be an unconscionable act of judicial activism.”
Patterico, do you contend that Gonzales is saying here that at least one of the dissenters has construed the Act in a way that amounts to judicial activism? If so, why on Earth would Gonzales have written “would be” instead of “is”?
Andrew (d85f42) — 5/16/2005 @ 5:39 pm(1) I agree that there is no evidence supporting the trial court’s finding that Jane Doe was not sufficiently well informed
(2) Instead, the Legislature created three exceptions, allowing a minor to avoid notifying her parents if she can show: (1) she is mature and sufficiently well informed to make the decision to have an abortion performed without notification of either parent, (2) notification of the parents would not be in the minor’s best interest, or (3) notification of the parents may lead to physical, sexual, or emotional abuse of the minor. See Tex. Fam. Code § 33.003(i).
(3) 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
(4) 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.
(5) Based on the evidence of Doe’s maturity and knowledge, I conclude the limitations upon parental rights in section 33.003(i) apply here. Therefore, I am compelled to grant Doe’s application.
(6) It is important to appreciate that the Legislature adopted a statutory scheme that subordinates parental rights in the case of a mature and sufficiently well informed minor, even if the minor has an ideal relationship with her parents, and even if notifying the parents would not only not place the minor in emotional or physical danger, but may in fact be in her best interest.
(7) While the ramifications of such a law and the results of the Court’s decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature.
(8) This decision demonstrates the Court’s determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will that is reflected in the words of the Parental Notification Act, including the provisions allowing a judicial bypass.
From the above Alberto R. Gonzales Justice decision, 8 points that I plucked out, a narrow reading of the stat. on judicial bypass, by Owens, contrary to applying the law as the legislature intended is conservative activism. If the stat require a lower standard of proof and the judge imposes a higher standard of proof, and because of personal ideology that a higher standard would be good for the society and Jane Doe, then, that is conservative activism. On the contrary, had the stat on plain reading required a high standard of proof but a judge imposes a lower standard of proof because personal ideology imputes that would be good for the society and Jane Doe, then, that is liberal activism activism. Roe v Wade and courts imposing the requirement of judicial bypass [ which the legislature did not at first require, but their stat was challenged in court and it was held unconstitutional without an accompanying judicial bypass , see earlier post in one of these Owen ‘s item on this Patterico’s] are instances of liberal activism. In Jane Doe where Owens dissented, requiring a higher standard of proof where a lower one suffices, is conservative activism.
Yi-Ling (4d35b3) — 5/16/2005 @ 5:44 pmAhem, at the risk of being bothersome, I would like to inquire, Patterico, about this sentence:
“Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses…would be an unconscionable act of judicial activism.”
Patterico, do you contend that Gonzales is saying here that at least one of the dissenters has construed the Act in a way that amounts to judicial activism? If so, why on Earth would Gonzales have written “would be” instead of “is”?
I answered this above (I am unable to comment independently from a Treo, and must post my responses to a comment by editing that comment) but let me elaborate here.
My answer: I don’t think so. He was criticizing one or more dissenting opinions, and saying that if the dissenters got their way, that “would be” judicial activism. That’s not functionally different from saying that the dissenting opinions are, in fact, judicial activism.
Incidentally, here is the whole quote:
To me, that sounds like Gonzales saying that if the dissents (whichever ones he is criticizing) had their way, that would be judicial activism.
The criticism clearly doesn’t fit Owen’s dissent, and I’m not sure I believe that Gonzales told the NYT it did. Still, I’d love to see any transcript (or hear any recording) of the interview — and I’d love to know if none exists.
Patterico (756436) — 5/16/2005 @ 7:15 pmWHY DOES THE MAINSTREAM MEDIA GRATE?
Pejmanesque (2ae9b5) — 5/16/2005 @ 7:24 pmNot just for the Newsweek disaster–though that is reason enough. But also because despite the fact that a particular charge has been debunked, it continually gets repeated. There is no excuse for this, of course, but what is equally amazing…
Hm, “The dissenting opinions” would normally refer to all of them. Perhaps Gonzales was just sloppy but on the other hand it is awfully convenient for him to now say he only meant the other two.
James B. Shearer (fc887e) — 5/16/2005 @ 7:51 pmThanks, Patterico, for elaborating. For the record, here’s the entire paragraph in question (it’s important to include the words immediately following the “act of judicial activism”):
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. 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. 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. (citations omitted)
As you can see, the stuff after “acts of judicial activism” is all about HIM, and what HE can and cannot do. This stuff very much supports Gonzales’s sworn testimony that he meant it would have been an act of judicial activism for HIM to have interpreted the statute in a particular way. Mr. Shearer, Gonzales is not saying now that he was only referring to the other two. Gonzales is saying now that he was referring to HIMSELF only.
Andrew (d85f42) — 5/16/2005 @ 9:07 pmAt this point, I wouldn’t believe a single thing written in the New York Times any more than I would anything written in Newsweek or pronounced by CBS.
The mystery is why you would.
antimedia (2924da) — 5/16/2005 @ 9:31 pmAs you can see, the stuff after “acts of judicial activism” is all about HIM, and what HE can and cannot do. This stuff very much supports Gonzales’s sworn testimony that he meant it would have been an act of judicial activism for HIM to have interpreted the statute in a particular way. Mr. Shearer, Gonzales is not saying now that he was only referring to the other two. Gonzales is saying now that he was referring to HIMSELF only.
Try this example on for size:
Andrew: I heard you committed a robbery the other day. Speaking only for myself and nobody else, I would never commit a robbery. If I were to commit a robbery, I would be the lowest of the low.
Did I just call you the lowest of the low?
Patterico (756436) — 5/16/2005 @ 9:53 pmantimedia:
I could have sworn I said this in my post:
Does that sound like someone who unreservedly believes the New York Times?
Then again, I don’t have a lot of respect for Alberto G., and my last comment (to Andrew) shows what I think of his current hairsplitting.
So my bottom line is this: someone is lying. I don’t know who for sure. But I can’t reconcile the quotes I set forth in my post.
Patterico (756436) — 5/16/2005 @ 9:56 pmI’m not sure I feel comfortable with your hypothetical, you being a prosecutor, and robbery being a crime. But I’m in Connecticut, so I’m not too worried.
All I can tell you, I guess, is that Justice Owen swore under oath that she entirely agreed with the following statement of Gonzales:
“[T]o 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.”
Owen agreed with that statement. Mow, did Gonzales accuse Owen of construing the Act so as to eliminate bypasses? He did not. At most, he suggested that her construction would render bypasses rare. Did he accuse her of creating hurdles that she couldn’t find in the words of the statute? No, Gonzales only said that HE couldn’t find those hurdles in the words of the statute.
The whole paragraph in question is fuzzy. For the NY Times to blow it up out of all proportion, and create accusations that simply are not to be found in the words of the Gonzales opinion, is an unconscionable act of journalistic activism. I rest my case (such as it is).
Andrew (f363d0) — 5/16/2005 @ 10:34 pmI think you’re smart enough to have understood my analogy. And other readers are smart enough to see that you dodged the point.
No matter. We agree that Owen’s dissent was not activism. Who really cares if Alberto G., who I don’t respect much anyway, said otherwise?
Patterico (756436) — 5/16/2005 @ 10:44 pmSo are you saying that only if the dissenters were in the majority and thus their opinion rules the day, is that judicial activism?
Judicial activism has to produce results and thus by far and large, it has to be the majority view, with the end result obtaining something that otherwise would not have been obtained?
Thus, dissenting opinions in the minority can NEVER be judicial activism?
Yi-Ling (f92eb6) — 5/17/2005 @ 5:20 amThus, dissenting opinions in the minority can NEVER be judicial activism?
You’re pretty much directly misunderstanding me, Yi-Ling. I was making the point that Gonzales’s use of the words “would be” doesn’t mean he wasn’t calling the dissenters’ approach activist.
Patterico (756436) — 5/17/2005 @ 6:06 amThere were 2 possibilities of what you wrote and I wanted to narrow down which was the applicable only.
Yi-Ling (795545) — 5/17/2005 @ 7:45 am(1) is you viewed minority dissent even if by nature “activist” cannot be activist unless they are majority decision with the result that is obtained by judicial activism, whether liberal or conservative in nature. Your reply tells me now you do NOT intend this. You reply tells me you consider a decision activist if its nature is such, whether it is a minority or majority decision.
(2) You viewed “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. 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. 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.” to read in a way that differs from how I read it, and you mean your reading of the above quote. I am amazed at such a different reading but graciously accept that you mean what you say you mean, of your interpretation of it.
However I wish you the victory you wish for, Patterico, for it is one way to swing the pendulum to the center, though I think that a more effective long ranging way would be to trace the roots, and re-examine the structure, and see, HOW statutory and constitutional interpretation can or should go in the scheme of things of separation of powers.
Further to Post No. 12 above “Roe v Wade and courts imposing the requirement of judicial bypass [ which the legislature did not at first require, but their stat was challenged in court and it was held unconstitutional without an accompanying judicial bypass , see earlier post in one of these Owen ‘s item on this Patterico’s] are instances of liberal activism….”
http://www.uncommonknowledge.org/800/811.html
Peter Robinson: 1973, Roe v. Wade. Writing for the majority, Justice Harry Blackmun, “The right of privacy,” it’s now not a zone of privacy but a right of privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action as we feel it is or as the District Court,” which had reviewed the case before it went to the Supreme Court, “determined in the Ninth Amendment’s reservation of rights to the people is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. We therefore conclude that the right of personal privacy includes the abortion decision.” You have written that that majority opinion was 51 pages but contained not a line of legal reasoning.
Judge Bork: Reasoning. That’s right. What you get in there is a history of abortion in the Egyptian days. You get history of abortion under English common law. You learn about the attitudes of the American Medical Association towards abortion. You learn all these things. All of a sudden, he says there is a right of privacy and it’s broad enough to cover abortion and that’s it.
Peter Robinson: And that’s it. It’s simply asserted in the most brazen possible way.
Judge Bork: Yeah.
Peter Robinson: All right. Seven Justices of the Supreme Court, seven out of nine signed onto that decision.
Judge Bork: That’s right. You don’t surprise me.
Peter Robinson: But the point is, you argue your point of view as if this activism were somehow errant and obviously errant.
Judge Bork: No, no. No, no.
Peter Robinson: No?
Judge Bork: It’s going on all the time. It’s a mistake. It’s a perversion of the judge’s function but it is the dominant view on the Court today.
Yi-Ling (11bce4) — 5/17/2005 @ 6:48 pmSo this does away with the alleged difference between “would be” and “was” and “is” as highlighted by one poster as being significant material difference. So while there is linguistic difference in choice of words, there is no legal difference on the issue of what is or would be or was judicial activism?
Yi-Ling (efb66a) — 5/17/2005 @ 8:23 pmI didn’t have time to read all of the comments, but at least as far as I could see, a basic point is being overlooked. Gonzales referred to “dissents,” in the context of statutory interpretation. He mentioned one of the dissents in particular, by Justice Hecht. There were three dissents altogether; two were based on issues of statutory interpretation. Those are the ones that made arguments that Gonzales rebutted in his concurrence. The third dissent was Justice Owen’s. She didn’t make arguments based on statutory interpretation (which had been addressed in the court’s prior opinion in the same case, in which she was in the majority). Her dissent was based on the traditional principle of appellate law that where the fact findings of the trial court are supported by evidence in the record, those fact findings should not be disturbed.
So: on the face of Gonzales’s opinion it seems clear that he was referring to the other dissents, not Owen’s. Given that the Times has never, to my knowledge, quoted verbatim his alleged “admission” to the contrary, I frankly don’t believe it. Gonzales is a lot smarter than the Times’ reporters, and they may have misunderstood what he told them. But unless they produce a transcript, there is no reason to believe that their interpretation of his comments on a relatively technical subject somehow contradicts his clear statements to the contrary.
More important, apart from what Gonzales did or didn’t say, it is simply absurd to characterize Owen’s dissent as “judicial activism.” It is not “activism” to defer to fact findings by the trial court. It is the opposite of activism.
No competent lawyer who read the Jane Doe opinions could disagree with the above analysis. To my knowledge, no such lawyer has disagreed.
John Hinderaker
John Hinderaker (8e30f6) — 5/27/2005 @ 9:08 pmJohn,
I hope you don’t think I was the one who missed that basic point. As I said in the post, looking only at Gonzales’s opinion, you clearly have the better argument. The “judicial activism” assertion comes in the context of a paragraph that opens by criticizing “the dissents” for claiming bypasses should be rare and require a higher standard. That is without a doubt a reference to the two dissents not written by Owen. As you argue, no competent lawyer could possibly conclude otherwise.
One would have to ignore this context to argue that Gonzales is referring to Owen’s dissent in any way when he says: “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.”
However: if the NYT is to be believed, Gonzales has expressly admitted that he was referring to Owen. There is a clear contradiction there. The question is: who is responsible for that contradiction? Gonzales, or the NYT?
Like you, my guess is that the NYT probably got it wrong — I stress probably. One thing does give me pause: Gonzales’s silly argument that he wasn’t criticizing *any* of the dissents with the “activism” accusation. If he was referring to Hecht and Abbott, and not Owen (as he clearly appears to have done), he should have simply said so, rather than offering that weaselly explanation. Don’t you agree?
So I can’t completely eliminate the possibility that the NYT correctly paraphrased Gonzales — even if the language of his opinion doesn’t support it.
Patterico (756436) — 5/27/2005 @ 9:42 pm