The Woman at Center of the Senate's Fight ; Priscilla Owen's Nomination to the Federal Bench Has Been Scrutinized by Democrats Who Have Balked at Some of Her Rulings in Texas

Article excerpt

Priscilla Owen was first nominated by President Bush to a federal appeals-court post in May 2001 - four years ago.

That's enough time to earn a college degree. So it's hard to believe that there is anything that isn't already known about the Texas Supreme Court justice.

And yet, four years into her battle to win Senate confirmation, clouds of rhetoric are obscuring exactly who Ms. Owen is.

Republican senators say she is a careful and conservative jurist who adheres to the law rather than imposing her policy preferences by judicial fiat. She is an Episcopal Sunday school teacher who won 84 percent of the vote in her last Texas Supreme Court election and garnered the American Bar Association's highest rating - "well qualified."

Democrats say she is a conservative judicial activist, intent on enforcing restrictive social views on anyone who steps into her courtroom. Some allege she was handpicked in 1994 by Karl Rove, now a key adviser to Mr. Bush. Democrats say her judicial record shows she is a pro-business, antienvironment judge who takes a narrow view in civil rights cases.

If confirmed, she would become one of 17 judges on the Fifth US Circuit Court of Appeals, based in New Orleans. But before that, she might earn a paragraph in American history as the judicial nominee whose candidacy sparked the so-called nuclear option in the US Senate.

That special status as the first Bush nominee to test Senate majority leader Bill Frist's nuclear threat may explain at least some of the harsh rhetoric being used by her opponents.

Sen. Edward Kennedy of Massachusetts has called her "a candidate on the far fringes of legal thinking."

Republicans say she deserves better. "This debate is not about principle; it is all about politics, and it is shameful," says Sen. John Cornyn of Texas, who served on the state's Supreme Court with Owen. "Any fair examination of Justice Owen's record demonstrates how unconvincing the critics' arguments are."

Republicans have tried four times to bring her nomination to the Senate floor. Fifty-three senators have supported her - more than enough to win a life-time seat on the federal bench, but seven votes shy of the 60 needed to break a Democratic filibuster.

Democrats are standing their ground. They say she is the second most frequent dissenter on an already conservative high court.

"She is immoderate," says Sen. Charles Schumer of New York. "If there was ever a judge who would substitute her views for the law, it is Judge Owen."

One frequent refrain among Democrats is that even Bush's own attorney general, Alberto Gonzales, criticized Owen's judicial stance in a 2000 case when they served together on the Texas Supreme Court.

"Gonzales has said she was guilty of 'an unconscionable act of judicial activism,' " said Senator Kennedy in a recent speech on the Senate floor.

The comment prompted a response from Republican Sen. Orrin Hatch of Utah. "They know this claim is fiction, but they nonetheless continue to launch it," he said.

At issue is a Texas Supreme Court ruling in a case that dealt with the judicial bypass section of a Texas law requiring parental notification prior to a minor obtaining an abortion. The case involved a high school senior who said she was fearful that if her parents knew she was getting an abortion, they would cut off financial assistance to her, including payments for her to attend college.

The trial judge and an appeals-court panel declined to authorize the judicial bypass, ruling that the girl must notify at least one of her parents prior to the abortion. The Texas Supreme Court reversed both courts, saying that the state bypass provision was broad enough to encompass the girl's case.

Three justices wrote dissents. Two of the dissents suggested that the Texas law was written narrowly by the state Legislature to bar a bypass under most circumstances, and one of those two dissents accused the majority of engaging in judicial activism. …