Patterico's Pontifications


Pundit Review Radio Goes Big-Time

Filed under: Blogging Matters — Patterico @ 9:36 pm

Pundit Review Radio is going on the air at WRKO in Boston. Congratulations, guys.

Upcoming guests including Hugh Hewitt, Don Luskin, James Taranto, and (some day, just possibly) yours truly.

Credit Where Credit Is Due

Filed under: Dog Trainer,Judiciary — Patterico @ 5:15 pm

The L.A. Times has come a long way on Priscilla Owen since May 2003, when their editorial page butchered both her name and her record with this embarrassing and inane reference to “Patricia Owen’s tortured opinions opposing abortion.”

Now that the paper has actually assigned someone to look into her record, rather than accepting at face value the views of leftist activist groups, the paper has published a fair article about Owen titled Judge Seen as Conservative, Fair. The sub-head reads: “Appeals court nominee Priscilla R. Owen is thorough and careful, colleagues say. Her legal opinions are viewed as favoring business.” And the opening paragraphs say:

WASHINGTON — Surely it was no accident that Republicans on Wednesday sent forth Priscilla R. Owen, a soft-spoken Texas Supreme Court justice, to open the Senate’s political brawl over President Bush’s judicial nominees.

The 50-year-old jurist, who also teaches Sunday school, comes across as a mainstream conservative.

The article tells the truth about Owen’s most controversial opinion — her dissent in a parental notification case, in which Alberto Gonzales’s concurrence made a reference to judicial activism. It is refreshing indeed to see a mainstream media outlet get this right for once:

Five years ago, the Texas high court was torn over how to interpret a new state abortion law that said parents had to be notified before their daughters had an abortion, except when this notification “may lead to physical, sexual or emotional abuse of the minor.” In such instances, a judge could allow the girl to bypass the notification law if she was “mature and sufficiently well-informed” to make the abortion decision on her own.

In a series of “Jane Doe” cases, the Texas justices were split. In one 5-4 decision, the court — including Phillips — overruled a judge who had blocked a 17-year-old from getting an abortion without notifying a parent. The majority said the girl had considered the alternatives and had demonstrated maturity.

Owen dissented. She said the high court should have upheld the judge who questioned the girl and decided she was not sufficiently mature to decide on her own. State lawmakers assumed that parents would be notified in all but rare cases, she said.

Then-Justice Alberto R. Gonzales, now the U.S. attorney general, voted with the majority and agreed that the trial judge did not have good evidence for turning down the girl’s request. It “would be an unconscionable act of judicial activism … to create hurdles that simply are not to be found in the words of the statute,” he wrote.

Although his words were not addressed to Owen or any other individual dissenters, they often were cited as evidence that he meant to call her a “judicial activist.”

Correct. And the paper even manages to find a pro-choice law professor who defends Owen:

Linda S. Eads, a law professor at Southern Methodist University, said Owen had been unfairly tarnished by the dispute.

“I’m pro-choice, and I support the judicial bypass [for minors], but I think the parental abortion decisions have been grossly mischaracterized,” Eads said. “This was a new law, and the legislation had not defined ‘informed consent,’ and the court had to struggle over the standard.”

Owen’s “standard was more strict than some of the others, but it was not shocking,” Eads said. “It was reasonable and judge-like.”

Eads, who said Owen voted Democratic more often than Republican, added: “I read a lot of her opinions, and I disagreed with some of them. But I never read an opinion where I thought she distorted the law. She is conservative, but everyone on that court is conservative.”

Wow. I’m so thrilled that the paper got this right, I’m even willing to overlook this misleading passage in the article:

Three years ago, when Owen was first nominated to a U.S. appeals court, the Senate Judiciary Committee — then controlled by Democrats — held a daylong hearing and criticized the Texas judge for decisions viewed as friendly to business.

There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman. The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.

Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.

Mmmmm . . . no. For one thing, Owen actually “said” nothing in the case. She joined two dissenting opinions (here and here). Those opinions didn’t argue that Kirby was not liable because the salesman was an independent contractor. They argued that Kirby was not liable because Kirby had not employed the salesman. The salesman was actually employed by another independent contractor (Kirby’s distributor). By contract, Kirby had no control over whom its distributors hired as salesmen. Consequently, the dissenters argued (in my view correctly), Kirby could not be held liable for failing to investigate the background of salesmen. Only the salesman’s employer could be held liable. Nobody contested his liability — including Owen or any of the other dissenters.

But let’s not be too churlish about such relatively minor errors. The reporter, David Savage, got more stuff right than usual.

Write David Savage and tell him he did a good (or at least decent) job on this article.

UPDATE: Beldar gives more detail on the false reporting about the Kirby case. I’ll admit: I’m probably going too easy on Savage — just because my expectations were so very, very low.

The 70-30 Option

Filed under: Judiciary — Patterico @ 7:05 am

As Senators continue to seek a compromise on judicial filibusters, I’d like to announce my own compromise proposal: the 70-30 Option. Under this proposal, Republicans will cave on 30% of all judicial nominees filibustered since 2000. We’ll even agree to include in that group the most qualified minority Bush has nominated to date. In return, Democrats must agree to confirm the rest, including all future nominees.

Sound fair? Good.

The 30% I would give them are Miguel Estrada, Charles Pickering, and Carolyn Kuhl. That’s 3 of 10 filibustered nominees.

I don’t like the compromise. These are three of the better candidates nominated by President Bush. But if this is what we have to do to get an agreement, so be it.

UPDATE: If the humor is too subtle for you, read the explanation in this comment. Or just click on the link immediately above, listing the names of Miguel Estrada, Charles Pickering, and Carolyn Kuhl.

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