Patterico's Pontifications

5/22/2005

Invitation to Critics of Priscilla Owen

Filed under: Judiciary — Patterico @ 11:22 am



Anyone who opposes the nomination of Priscilla Owen may explain why in the comments to this post. I am doing this because I have been engaged in a debate with some folks at Kevin Drum’s site, and someone suggested that we were straying off-topic. Rather than debate that point, I have decided to open this thread.

Please follow these simple rules:

1. Pick a specific opinion of hers that you are criticizing. It’s fine to pick more than one, but no generalizations, please.

2. If a Web link is available for the opinion(s) (they are often available on FindLaw), please provide it/them.

3. Read it before you criticize it.

4. Give us your own arguments, not just a link to the People for the American Way site, or to some other blog. Take the time to tell us in your own words what Owen did wrong in the opinion.

I can’t emphasize this point enough. I encourage you to provide links for your sources, of course — but don’t use that as an excuse to avoid independent argument. If you expect us to engage your arguments, show us that you have thought out the issues yourself.

5. Civil and respectful comments only, please — on both sides.

Go to it! I’ll link this post at the post on Drum’s site so as to attract some of the left-leaners who might have criticisms of Owen.

UPDATE: Hellloooooooo??? Anyone there??

UPDATE x2: I have thrown the invitation open here and here as well. I’m trying, I really am. If you can think of another good place to seek out leftists willing to follow my rules (a key point), let me know.

UPDATE x3: Someone on Drum’s site is accusing me of trying to squelch debate on supposed ethical violations of Owen’s. If you can’t come up with an opinion to criticize, feel free to go to the ethical violations, but try to follow the rules to the extent possible/applicable.

In other words, I am not going to be very impressed by a link to Joe Conason article, any more than a liberal would be impressed if I proved my point with a link to an Ann Coulter article. I’ll be much more impressed by an argument that addresses issues like these:

Why is Owen worse on this score than any other judge who has to run for elective office, including other members of the Texas Supreme Court?

How were her opinions supposedly influenced by campaign contributions?

Which opinions?

Was she the swing vote in those opinions?

Did any litigant ever ask her to recuse herself?

Were her actions illegal or demonstrably unethical?

Etc.

A rant by Joe Conason that fails to address such issues is worthless to me.

40 Responses to “Invitation to Critics of Priscilla Owen”

  1. I had already started from a list of cases. I could find nothing I disagreed with when I looked them up.

    My conclusion was that I will never trust these organization’s representations of a judge’s record again.

    MaxedOutMama (e4ad3c)

  2. Take away the empty and false scripts from the left describing this matter, require real arguments, and this is what you get: the profound silence of a cause without meaning. The complete lack of response to your reasonable challenge speaks volumes about their motivations.

    martins (62b8a2)

  3. I think I hear crickets chirping….

    Dafydd

    Dafydd (df2f54)

  4. […]

    May 22, 2005

    Priscilla Owen

    Patterico has issued an invitation. Anyone who opposes the nominati […]

    Bunker Mulligan » Priscilla Owen (917297)

  5. Well of course most of the people opposing Owen know little about her and are relying on the opinions of others. However I expect that is true of her supporters as well. Can Patterico name a few specific opinions of Owen’s that he finds particularly meritorious and explain why in his own words?

    James B. Shearer (fc887e)

  6. the profound silence of a cause without meaning.

    Or, maybe the fact that people haven’t found out to post here yet, as I did just two minutes ago? Maybe the fact that to provide a decent response rather than a rant requires proper research must be done?

    For example, I could say that she was wrong in the Kirby case if I didn’t do the research but relied on liberal web-sites. IMO, she wasn’t, BTW, but, unfortunately I do not know the full intricacies of the law. I’ve relied on Patterico to show me the light – LOL.

    RadMod (c686cc)

  7. I have actually met Ms. Owen, during the first Bush Inaugural festivities, and I cannot think of a more poised and classy person to be not just on an Appelate court, but on the Supreme Court. This is not about Ms. Owen, this is about partisan politics. And if the Republicans cave on this fillabuster vote, there will be hell to pay.

    Charles (df0307)

  8. And if the Republicans cave on this fillabuster vote, there will be hell to pay.

    Hah! That’s funny. It’s almost the exact same thing the liberal sites say in regards to the Democrats!

    I’m currently trying to review Ford v. Miles and I have run across the fact that it took Owen 16 months to issue the decision. I’m curious about a point in regards to the court, do they decide who is going to issue the decision, and it then becomes that person’s responsibility? Or can a single judge hold the case until they have rendered their own opinion?
    Does anyone know how Texas does that?

    RadMod (c686cc)

  9. As I review the in re jane doe cases, I note that in every case Owen presided upon before her nomination not once had she ruled for a minor as determined by the majority of the court. In nine of these cases, she has ruled against bypass. In the two she concurred, she argued “The Court’s interpretation of ‘sufficiently well informed’ falls short of what the Legislature had in mind.”
    Not even once was a minor “sufficiently well informed”?
    These rulings indicate a propensity against abortion as well as judicial activism, namely decisions that depart from or are in opposition to legislative intent.
    This is dangerous to the American public for a potential Supreme Court candidate since poll after poll indicates that the majority of Americans are opposed to the overturning of Roe v. Wade.

    RadMod (c686cc)

  10. That’s a bit simplistic. If the trial judge agreed with the minor’s argument, there was no chance of appeal. So the only times a case would come before Owen and the other members of the Texas Supreme Court would be when the trial judge had ruled against the minor.

    Were you aware of that?

    Your criticism would be like criticizing an appellate judge for ruling against criminal defendants most or all of the time. The prosecution cannot appeal an acquittal, and most arguments by criminal defendants are losers. The vast majority of appellate judges consequently rule against defendants.

    I believe Owen dissented in only 3 cases, correct? [UPDATE: Why, yes, it is.]

    Patterico (756436)

  11. I had already started from a list of cases. I could find nothing I disagreed with when I looked them up.

    My conclusion was that I will never trust these organization’s representations of a judge’s record again.

    Maxed Out Mama:

    You are not alone in feeling misled by the special interest groups.

    Patterico (756436)

  12. Oh, and RadMod:

    Read the poll you linked and what it says about Americans’ attitude towards parental notification.

    That’s why Owen is the perfect candidate to use to deploy the nuclear option, and parental notification the perfect issue. Parents don’t like the idea of their minor daughters getting abortions without talking to them first — with good reason.

    Patterico (756436)

  13. Can Patterico name a few specific opinions of Owen’s that he finds particularly meritorious and explain why in his own words?

    The burden is not on me — yet I already did so, here.

    Also, Owen graduated third in her class at Baylor Law School, and received the highest score on the Texas State Bar the year she took it. She is given the highest rating by the ABA, for crying out loud. She is a Justice of the Texas Supreme Court. She has an excellent reputation for fairness and hard work.

    Again, the burden is on those opposing her to explain why. I have explained my support, though I shouldn’t have to.

    Patterico (756436)

  14. sufficiently well informed

    What does that actually mean? Minors are minors by law for a reason. No matter how intelligent or experienced they believe they are, they still have much to learn and understand. We, as a society and culture, restrict minors from many things. You may not agree with them all, but why does abortion jump out in every discussion of judicial nominations? It seems to me the Democratic Party has become a single-issue entity.

    Mike (3a4373)

  15. Patterico,

    We see the thoughtful liberal critiques are rolling in. Watch the hard drive capacity on your web server. 🙂

    Based on Edward Whelan’s comments about Ruth Bader Ginsburg on the Bench Memos blog, we put up a post about the proper scope of the Senate’s “Advice and Consent” role, arguing that Republican Senators should have voted against Ginsburg, based on ideology/philosophy.

    Our post is here.

    We’d be very interested if you had any thoughts on the subject.

    The Editors, American Federalist Journal (17fd00)

  16. ” She has an excellent reputation for fairness and hard work.”

    Didn’t she take money from her litigants? Or maybe I’m confusing her with another nominee.

    actus (3be069)

  17. Did she do anything illegal? Did she take money from litigants while a case was pending? Did the other Justices on the Texas S.C. take campaign contributions from companies that ended up being litigants? How was her judging affected? Did anyone ever ask her to step aside?

    You should know the answers to these questions before tossing out insinuations like that.

    Patterico (3091bf)

  18. “You should know the answers to these questions before tossing out insinuations like that.”

    I was asking. Apparently there’s a lot we don’t know about how she may be as ethically challenged as abe fortas

    actus (3be069)

  19. I was asking. Apparently there’s a lot we don’t know about how she may be as ethically challenged as abe fortas

    A weaselly insinuation like that says more about your character than hers.

    If you have facts to make an accusation, be a man and make it — and back it up. And I’ll tell you right now, it will be a lot more convincing if you answer the questions I asked.

    Patterico (3091bf)

  20. After seeing Owen interviewed – I don’t remember where – I felt that she seemed very independent-minded and competent to say the least. Ditto after an NPR piece on her opinions.

    The Dems were wrong to think that they could use her several minor abortion decisions against her.

    Which is unfortunate, because this vote and the subsequent hangover will discredit the legislative branch just as Bush v. Gore discredited the SC.

    biwah (f5ca22)

  21. “You should know the answers to these questions before tossing out insinuations like that.”

    I was asking. Apparently there’s a lot we don’t know about how she may be as ethically challenged as abe fortas

    You’re absolutely right, Actus. For example, we have no idea whether Ms. Owen robbed the Qwik-E-Mart at Vermont and Normandie in Los Angeles on June 23rd, 1983.

    It’s even more telling that in all of her testimony, Priscilla Own never even once denied this heinous possibility. She had many opportunities to do so; she could have given a defense to this charge at any point in the last four years, couldn’t she?

    But considering her utter silence about this robbery, in which an after-hours clerk and a labrador retriever were both shot, there simply is a lot we don’t know about how she may be as ethically challenged as Willie Sutton.

    Dafydd

    Dafydd (df2f54)

  22. Most of the following is from a recent conversation I had with very politically savvy friend:

    “While not the worst nominee, she is certainly odious.

    Even Texas conservative judges have commented on her willingness to twist her “interpretation” of the law to suit her hyperconservative views. She votes to overturn jury awards to workers and consumers who have won judgements against corporations, even in cases where Alberto Gonzales and John Cornyn, no bleeding-hearts themselves, voted to uphold the award. She delayed the award for a young guy who was paralyzed when his faulty seatbelt didn’t work, preventing him from getting the money he needed to care for his health, and he died just days after she finally approved the money. She routinely took big campaign contributions from corporations like Enron, and then didn’t recuse herself when cases involving those companies came before her. Her record in such cases is 85% of the time in favor of the corporation. Oh, and she’s been a Karl Rove protege for years, and he ran her Texas campaigns, a clue as to how she got nominated.

    The Democrats have approved 208 judicial nominees from Bush, so it really isn’t like Democrats are automatically opposing Republican nominees. The ones they are filibustering really stink, and they were filibustered before. Bush intentionally renominated them in order to pick the fight that is now going on. It’s a pretty bald-faced power grab, and I haven’t heard a single talking point from the Frist gang that makes sense, and most are outright lies. I say lies, because the speakers know they are untrue.

    Like Frist saying filibustering a judicial nominee is unprecedented, when he voted for one himself in 2000.”

    Interesting observations…

    Cowtown Pattie (8c2cdf)

  23. fortas, meet owen

    //www.salon.com/opinion/conason/2005/05/20/owen_and_ethics/

    actus (3be069)

  24. Joe Conason, the gold standard for truth. Does his article answer any of the questions I asked? I doubt it.

    Patterico (f84db5)

  25. Cowtown Pattie,

    Any proof of any of those assertions? Any specifics? These sound like talking points, and there is not a link in there anywhere.

    Patterico (f84db5)

  26. Patterico, I don’t agree that the burden of proof is with Owen’s opponents as opposed to her supporters. In my view the standards for federal circuit court positions should be quite high and Owen’s supporters have some obligation to show that she is not just a good judge but an excellent judge. In the link you gave you defend Owen’s dissent in an abortion case. Her opinion may be defensible but do you seriously believe it is one of her very best opinions?

    Incidentally I am not too impressed by the attack ad method of opposing judges in which opponents search through a judge’s opinions looking for one that can used as the basis of an attack ad. Even an excellent judge will produce a clunker now and then. I think judges should be evaluated based on all their work not just on their worst efforts.

    James B. Shearer (fc887e)

  27. Frist did indeed vote against cloture in Richard Paez’s case, but does anyone in his right mind think Priscilla Owen is anywhere near as batshit crazy as Paez?

    Xrlq (5ffe06)

  28. “Joe Conason, the gold standard for truth. Does his article answer any of the questions I asked? I doubt it. ”

    You didn’t read it? thats cool.

    actus (3be069)

  29. Haven’t had a chance.

    Patterico (756436)

  30. Patterico,
    Thanks for being a host for such a lively exchange of ideas!

    As to links and proofs, I get D- in my journalistic expertise, but I will see what I can produce. The dog ate my homework?

    The simple fact is that I don’t seem to have much respect for Judge Owen’s brand of justice. Most of the time I am a big supporter for any woman who dares tread the male-dominated waters of the Congress, but I cannot in good conscious support someone whose views are 180 degrees away from my own.

    Cowtown Pattie (688976)

  31. It is a moot point at this time, but I will continue.

    I originally posted because I was asked how I knew Owen, et al were not mainstream. I will address that first.
    Here’s one answer. Mainstream would mean in line with the rest of the country. Generally, the 30-40-30 rule applies. This means that in identifying their political ideology, 30% say liberal, 30% conservative, and 40% moderate. (most polls I see meet these numbers roughly)
    By and large, the nominees are considered ‘conservative’ or even ‘ultra-conservative’ by most Americans, media outlets, even our politicos. Even such “fair and balanced” news organizations as Fox: “[Owen is one] of the most conservative judges ever appointed”
    If Owen et al are considered ‘conservative’ then they are not in the mainstream.

    Now to the other questions of the day/week.
    Patterico wrote:Read the poll you linked and what it says about Americans’ attitude towards parental notification. That’s why Owen is the perfect candidate to use to deploy the nuclear option, and parental notification the perfect issue.
    I had already done that. I, too, agree with parental notification.
    The problem is that Texas did pass a law allowing bypass of parental notification. Yet, Owen shows a decided propensity not to allow bypass. This means that she is not ruling on the legal merits of the law, but trying to interject her own opinion. That, dear sir, is judicial activism. Exactly what the neo-cons complain about, but I guess it’s okay for neo-cons.

    the only times a case would come before Owen and the other members of the Texas Supreme Court would be when the trial judge had ruled against the minor. Were you aware of that?
    I’m surprised at you, Patterico, you aren’t usually that underhanded in your comments. Of course, I knew that (or at least presumed that). The point was that in no case did she ever consider that the minor was “sufficiently well-informed”. How often do we see a higher court overturn a lower court? Often enough. Oh, and BTW, though you’ve already pointed it out, yes, in the 11 cases that she ruled on, 6 she ruled against, 3 she dissented on, and 2 she argued for stricter limitations of (as the majority opinion put it) “parsing among types or degrees of abuse [that] is not indicated anywhere in the statute.”

    Now if I can find another hour or two for the detailed info you require, I will post more.

    RadMod (c686cc)

  32. Back to good ole’ in re Jane Doe:
    In her concurrence, she points out “that a statute must have a secular legislative purpose, that its principal or primary effect must be one that neither advances nor inhibits religion, and that it must not foster an excessive government entanglement with religion”
    Yet just before, she stated she wanted as a requirement that the minor be “aware of and has considered that there are … religious arguments”
    How can that not be construed as advancing or inhibiting religion? Exactly what religious arguments would be required? Why should a jewish minor be required to listen to Christian religious arguments, or a Christian Muslim arguments? If a minor is an atheist wouldn’t this be a violation of their civil rights?
    Whose faith? I’m an Episcopalian. Most Episcopalians are well educated and, therefore, pro-choice. So is Father Marsh okay, or does it have to be a Baptist, or Catholic, or Evangelical?

    In the following n re Jane Doe cases, the Court felt that the minor had not met the burden of proof as known before the first case. They granted a retrial on the basis of clarifications they made in the first trial. This is a standard practice, quite logical and inherently fair. A lawyer finds the best case they can make for their client, but if he doesn’t know all the rules how can he have made the best case? Yet Owen dissented.

    In Ford v. Miles:
    The court ruled on the question of venue, yet venue was not addressed in briefs or orals since the review was not granted on the question of venue. While this is highly unusual, I will give Owen the benefit of the doubt since I am not a lawyer and she was in the majority.
    The big thing on this though is that it took 16 months for her to render the opinion (I had found the answer to my previous question). While I can’t find it, I am given to understand that the court indicated the case should’ve been expedited (even Ford requested expedition). I am also given to understand that in this time one of the defendents died due to lack of medical care that they could not afford.
    While she was in the majority, it was a 5-4 majority that overturned lower courts. I have to mark this down as another notch in her anti-consumer rulings. Since I am better with statistics than law, I am going to try to determine any trend.

    RadMod (c686cc)

  33. I’m surprised at you, Patterico, you aren’t usually that underhanded in your comments.

    “Underhanded”? Them’s fightin’ words.

    I’ll give you the benefit of the doubt and assume you misunderstood something. Read my comment again.

    No misunderstanding? Fine. Back up your accusation or take it back. I don’t appreciate being called “underhanded” when I make a perfectly valid point.

    How often do we see a higher court overturn a lower court? Often enough.

    How often do we see a higher court overturn a lower court on a finding of fact? Very rarely.

    Patterico (756436)

  34. I was referring to the
    “Were you aware of that?”

    Usually such offhand, underhand, overhand, flipping the hands around, sleight of hand comments 🙂 are reserved for the implication that the person is stupid.
    You never make such remarks!

    RadMod (c686cc)

  35. BTW, congratulations on ya’lls victory (56-44?).
    I, personally, thought the Dems lost with the agreement, despite what Reid says.
    I’m just very, very glad to see that moderates are actually taking a role and hope to see more.

    RadMod (c686cc)

  36. I just noticed the ‘paper’. Very creative, and I’m sure the Times agrees you are public enemy #1 LOL

    RadMod (c686cc)

  37. Wasn’t implying you were stupid. It’s certainly an unusual feature of the statute that the state can’t appeal if the minor wins in the trial court — so appeals happen only if the minor *loses* in the trial court.

    If you don’t know that, it might seem odd for an appellate judge to rule against the minor most or all of the time. If you do know that fact, it’s not surprising at all. It’s a function of appellate court respect for trial court factual findings, which will always be against the minor in any appeal.

    So I wondered (honestly) whether you were aware of that obscure fact about the law. Most people aren’t.

    It’s academic now anyway.

    Patterico (ec3f98)

  38. Not academic, just nothing to judge.

    I know, bad pun.

    RadMod (c686cc)


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