The Senate should reject Priscilla Owen.

Overview

Well, the battle over judicial filibusters is dangerously close to becoming an all out war, as the renewed nomination of Priscilla Owen has gone to the Senate floor. As I have said before, I am no fan of the filibuster, but if it is the only way to keep Owen from being confirmed, I'm all for it.

Priscilla Owen should be rejected because she simply is not qualified to sit on the Fifth Circuit Court of Appeals. Moreover, she is a result-oriented political hack that has no regard for the rule of law. She has never had an original thought or voice as a judge. She will do only what her masters tell her to do.

And what do I know about any of this? As a lawyer in Texas who specializes in civil appeals, I have some knowledge about Priscilla Owen. I also have some knowledge about the Fifth Circuit Court of Appeals.

The Fifth Circuit is, without question, one of the most--and possibly the most--conservative courts in the nation. One might think that therefore I do not like the Fifth Circuit, but that is not the case. While I do not like some of the decisions of that Court, I nonetheless think it is a very good court. As a lawyer, the things I want the most in a court are consistency, fairness, and efficiency. The Fifth Circuit has all of that, as I will explain later.

Owen's experience

Owen was elected to the Texas Supreme Court in 1994. In order to begin to understand why she has no business being a judge, take a look at her bio on the Supreme Court of Texas website:

Justice Priscilla Owen was elected to the Supreme Court of Texas in 1994 and reelected in 2000. She is a native Texan and earned her B.A. from Baylor University and her J.D. in 1977 from the Baylor University School of Law, where she ranked in the top of her graduating class.

Before her election, Justice Owen was a partner in the Houston firm of Andrews & Kurth, L.L.P where she practiced commercial litigation for seventeen years. She was admitted to practice before the United States Courts of Appeals for the Fourth, Fifth, Eighth and Eleventh Circuits. Justice Owen was chosen as Baylor Young Lawyer of the Year and one of Baylor's Outstanding Young Alumna. She is a member of the American Law Institute and serves as the Supreme Court's liaison to the Texas Legal Services for the Poor Special Committee, and the Supreme Court Advisory Committee on Court-Annexed Mediations.

Did you notice any mention of judicial positions she held before running for the highest civil court in Texas? Let me answer that: No, you did not. That because she had never been a judge of any kind. ZERO judicial experience.

That in and of itself is not determinative, for other Justices' first judicial post had been the Texas Supreme Court. However, almost all of them had some other relevant experience. For instance, both Lloyd Doggett (whose place on the Court was taken by Owen) and Jack Hightower had extensive legislative careers before joining the Court. Why is that important? Such experience gives one an understanding of the overall governmental process and how each branch relates to the others. Owen had no such experience. Of the current Justices, only Chief Justice Wallace Jefferson has no previous judicial experience. However, he had other highly relevant experience.

Chief Justice Jefferson's official bio explains that

He had been a partner in the appellate-specialty firm Crofts, Callaway & Jefferson and twice won cases he argued before the U.S. Supreme Court. He started his law practice with Groce, Locke and Hebdon in 1988 and helped found Crofts, Callaway & Jefferson in 1991. Chief Justice Jefferson is certified in civil appellate law by the Texas Board of Legal Specialization.

(emphasis added). In other words, before joing the Supreme Court, Jefferson had extensive appellate experience and expertise. This is very important. There are big differences in trial and appellate litigation. Anyone who is going to be on the highest appellate court in a state necessarily needs to know about and understand those differences. Anyone who is going to be on the highest appellate court in a state necessarily needs to know about and understand the appellate process and rules and how appellate decisions effect a state's laws. Wallace Jefferson had that knowledge and understanding before he became a Supreme Court Justice. Priscilla Owen did not.

Priscilla Owen had almost zero appellate experience in her seventeen years of private law practice. The Alliance for Justice detailed Owen's experience on pp. 2-3 of a report from July 2002 (the footnote citations have been omitted):

Owen’s sixteen-year career in private practice was devoted almost entirely to the representation of oil and gas companies, primarily corporate transactional work with some litigation, and the representation of individual litigants in small-stake suits. She had little appellate experience at either the federal or state level...

During her time in private practice, Owen was apparently involved in 44 cases in her local court, the Harris County (Houston) district court. Of these, we were able to identify her client and the prevailing party in 33 cases, many of which were characterized by local lawyers as “boring,” “penny ante,” and “low level.” Apparently, nine of the cases in which she represented the plaintiff were dismissed for want of prosecution (“DWOP”). We believe that Justice Owen should be questioned about these cases to determine if she simply failed to pursue them in a timely manner (thereby burdening the court and harming her client) or if there was another reason – legitimate or not – for their dismissal.

In eight of the ten cases Justice Owen lists in her Senate Judiciary Committee Questionnaire as her most significant, she represented oil and gas companies. Five of the ten involved representation of one of Owen’s biggest clients, “Transco” (Transcontinental Gas Pipe Line Corporation), “an interstate natural gas pipeline company.” In two of the others, Owen represented Lone Star, another pipeline company, and in another, IP Petroleum. Her last two “big ten” cases were both boundary disputes between Owen’s clients and their neighbors, one involving a blocked driveway.

Democrat Jimmy Carroll, Owen’s opponent in the 1994 Texas Supreme Court campaign, challenged her characterization of her appellate experience, attacking her for “puffed up” campaign claims. Despite working at a major law firm with a substantial appellate practice for sixteen years, according to Dallas Morning News and our own records search, Owen argued only one federal appellate case and one case in a state appellate court, and wrote the briefs for one other state appeal.

(emphasis added). In 1994, I had been licensed almost seven years, and I had at least three times the appellate experience of Owen by then--and yet I could not have imagined running for the Supreme Court. The above excerpt shows that Owen also lacked any significant litigation experience at the trial level. Owen running for the Texas Supreme Court in the first place is like someone playing a musical instrument intermittently for several years and then deciding he is qualified to direct a major symphony orchestra. To use a sports analogy that only hockey-starved fans will understand, Owen running for the Supreme Court is like Gary Bettman wanting to be commisssioner of the NHL. And Owen actually getting elected has been like Bettman actually being commissioner of the NHL, which is to say the results have been bad.

Owen's record on the Supreme Court shows she is a result-oriented political hack.

During her first years on the Court, the only thing that could be said about Owen is that whatever Justice Nathan Hecht did, she would do the same. She rarely wrote any opinions, especially majority opinions. Hecht, on the other hand is perhaps the biggest windbag in judicial history (and he did not use to be).

As an aside, Hecht was a trial judge in Dallas and a justice on the Dallas Court of Appeals before joining the Supreme Court. Before becoming one of the Supremes, I thought Hecht was one of the state's best judges. He was articulate, reasonable, and committed to the principles of judicial precedent and restraint. The same can be said of former Supreme Court Justice Craig Enoch. However, once they reached the Texas Supreme Court, they changed radically. For that matter, the same thing happened (but not to as great an extent) to John Cornyn, who is now a U.S. Senator.

But back to Owen...No one was really surprised by Owen doing everything Hecht did. After all, since she had ZERO judicial experience and almost no appellate experience and no significant trial litigation experience, she needed someone to follow. Also, it turns out that Owen and Hecht had dated. Now isn't that sweet?

And then she started writing opinions...The Alliance for Justice report (p. 6) contains an excerpt of a letter that a Texas member of the National Employment Lawyers Association wrote to Senate Judiciary Chair Patrick Leahy, asking him to oppose Owen’s confirmation:

In my more cynical moments, I suggest that, just as sports stadiums are now named after corporations, judicial seats are soon to follow. In that vein, I believe that Justice Owen could well fill the Exxon/Mobil or Wal-Mart seat on the Fifth Circuit. Justice Owen is the type of judge who can ignore facts – when it helps corporations to do so – yet then rail against the failure of her fellow Texas Supreme Court colleagues to pay more attention to the facts when she wants the court to stop a minor from getting an abortion… Justice Owen is only a judge because she was swept into office in the Republican sweep of 1994. There are many fine Republican jurists in this state, but Justice Owen is not one of them.

This explains in part why Owen was selected to run for office in the first place. Another part of the explanation is that she was picked by Karl Rove, who also served as a consultant on her first campaign and got paid $250,000 for his efforts. In 1994, Texas was absolutely primed for a Republican takeover. That fact--and the fact that Texas still has straight ticket voting--meant that any Republican running for office was likely to win. The public in general knows little or nothing about judicial candidates, and that also contributed to Owen's election. In Owen, the Republicans had someone who would owe them big time and would do whatever they ordered. And that's the rest of the explanation of why Owen ran for office in the first place.

The letter excerpt is right about Owen's record on the Court. Should you need further proof, the Alliance for Justice report (pp. 7-15) contains summaries of her decisions and opinions.

Owen also has shown questionable ethics in her practices and decisions. "Judging Prissy," an April 12, 2002, article in the Texas Observer, states the matter first in general terms: "Texas Ethics Commission and Court records reveal that 37 percent of the $1.4 million that Justice Owen raised for her campaigns came from lawyers and litigants who had a direct stake in cases before her court." And then the article describes three prime examples:

In a 1996 opinion, for example, the Court reversed a lower court ruling and lowered the tax exposure of a major donor, the H.E.B. grocery store chain (H.E. Butt Grocery Co. v. Jefferson County). In another case, the Court upheld a verdict for a plaintiff injured in an H.E.B. store. Yet Justice Owen–who has taken $7,500 from H.E.B.’s owner–joined a dissent that would have overturned that jury verdict (H.E. Butt Grocery Co. v. Bilotto).

On the day of the H.E.B. tax case, the court issued an Owen-authored opinion that haunts her nomination like a nightmare. That decision overturned a lower appeals court ruling to free Enron Corp.–the justices’ No. 1 source of corporate donations–from having to pay $224,989 in school taxes (Enron v. Spring Independent School District). Speaking about Owen’s nomination last month, Senate Judiciary Committee Chair Patrick Leahy (D-VT), said, "I have heard from a lot of Republicans who are concerned about her Enron connections." One question that seems certain to arise in an Owen hearing is something like: "Justice Owen, please explain how a judge who is not blind to appearances of impropriety would take $8,600 from Enron’s PAC and executives–including $1,000 from Ken Lay–and then NOT recuse herself from a $224,989 ruling in Enron’s favor?"

That is a very good question, but one I seriously doubt will be answered--if asked--in the debate on the Senate floor. Part of the answer is that Texas law does not require recusal in such cases, but that does not in any way reduce the impropriety. Also, see pp. 19-20 of the Alliance for Justice report for other ethically questionable actions by Owen.

The Alliance for Justice report (pp. 15-19) also discusses Owen's rulings and opinions in environmental and abortion rights cases. According to the report (p. 19),

Former staffers on the court have said of Owen’s opposition to the right to choose: “Abortion is her one guiding moral issue”; “Those cases are really personal issues for her”; “She’d be very dangerous on the Fifth Circuit in terms of abortion…. She’s going to go a certain way regardless of facts or law”; and “Some judges I know are pro-life and follow the law… put personal opinions aside… Owen isn’t capable of doing that.”

Indeed, Owen is not capable of doing that in any type of case--and that is the worst possible kind of jurist, regardless of whether that judge is liberal or conservative.

Further evidence of Owen's bias and disregard for the law (which makes her a big time activist judge, by the way) is seen in a report from Texas Court Watch entitled "Texas Supreme Court Justice Priscilla Owen--No Friend to Consumers."

Moreover, her work habits are poor. From the Alliance for Justice report (p. 21):

Other factors raise questions about Justice Owen’s fitness for a lifetime appointment on the federal appellate bench. She is a notoriously slow judge whose backlog routinely holds up the court. Former clerks allege that her backlog was so problematic that the Court enacted one or more administrative rules as remedies. Several clerks recall times when Owen was so far behind that other justices ordered opinions to be taken from her chambers.

(footnotes omitted).

There is so much more evidence of Owen's abysmal record as a judge. Still, the foregoing shows that she is biased, ignores the law and the facts when it suits her interests (which are the interests of big business, insurance companies, and government), allows her own personal feelings to determine her rulings, is ethically challenged, and does not do her work in a timely manner. In other words, she is a result-oriented political hack. This means that no matter what the facts are, no matter what the law is, no matter how clear that law might be, no matter how well-established the law might be, Owen is going to decide what result she wants and then manipulate and mangle the law and facts to justify her predetermined outcome. That is the antithesis of how a judge is supposed to operate, and it is dangerous. And that is true of any judge, liberal as well as conservative.

Owen is not up to the standards of the Fifth Circuit.

As I said above, in spite of the facts that the Fifth Circuit is probably the most conservative court in the nation and that I disagree with some of their opinions, I consider the Fifth Circuit to be a good court because it has "consistency, fairness, and efficiency." Allow me to explain. In my experience, the Fifth Circuit is definitely consistent. The Court as a whole generally takes a narrow, conservative interpretation of the law, and it does so almost all the time. The Court meticulously adheres to precedent, especially its own. Yet, the Court is willing to re-examine it's rulings, and it does analyze each case based on its unique facts. Moreover, the Court generally does make an effort to fully explain its decisions, particularly if a decision varies in some way from precedent. I have found that the Fifth Circuit allows a party to be heard and gives a ruling on a party's claims, even if that ruling sometimes is "You're wrong, now sit down and shut up." Also, the Fifth Circuit is an efficiently run Court. Cases do not just languish there indefinitely.

Priscilla Owen does not have any of the characteristics discussed above. Oh wait--she is consistent in that she pursues her own agenda and disregards the law and facts, but as stated, that is not what the Fifth Circuit does. Owen is not up to quality of the judges currently on the Fifth Circuit Court of Appeals.

Moreover, there is another area in which Owen has ZERO experience, and that is criminal law. As shown above, she did no criminal law in her private prcatice. Also, the Texas Supreme Court hears only civil cases. The highest court in the state for criminal appeals is the Court of Criminal Appeals. The Fifth Circuit has to address plenty of criminal cases.

Part of what drives me crazy is that there are other Republican judges that are far more qualified for the Fifth Circuit than Owen, yet Bush is just dead set determined to get that hack on the Court. I will give four federal judges in Dallas as examples. The first is Sidney Fitzwater. He is a staunch conservative who emphasizes following the letter of the law. He was a state district judge before going to the federal bench in 1986. Judge Fitzwater is also very consistent and fair in his treatment of parties and cases. Another example is David Godbey. Judge Godbey was a professor of mine at SMU. From 1995-2002 he served as a state district judge, and then he was appointed to the federal bench by George W. Bush. He is extremely intelligent, and he is just a good guy on top of that. And if you are looking for a female judge, look no further than Jane Boyle. Judge Boyle has extensive experience as a prosecutor at both the state and federal level, and for twelve years she served as a Magistrate Judge in the Northern District of Texas before being appointed to the bench by George W. Bush. Magistrate Judges rule on many issues in the federal court system. Without them, the federal system would grind to a halt. I appeared before Judge Boyle several times when she was a Magistrate Judge, and I was always impressed with her intellect and ability to handle cases. She would be an excellent choice for the Fifth Circuit. Are you concerned with ethnic diversity? Then consider Jorge Solis. Judge Solis has extensive experience as a prosecutor, served as a state district judge, and has been on the federal bench since 1991. I have also appeared before Judge Solis, and he is a sincere, fair, and diligent judge. Of all the objections I have seen raised against Owen, I do not see how any of them could be applied to Judges Fitzwater, Godbey, Boyle, or Solis. In other words, any of them would likely breeze through the confirmation process, especially since they have all been through it before.

And yet Bush resubmitted Owen's nomination, and that indicates a major problem in my view.

This is not just about getting good judges appointed.

Bush is not concerned about getting good judges appointed. If he was, he would select nominees such as the four judges I described above. Not only would they make excellent appellate judges, they would be confirmed quickly. From a logistical standpoint, Bush's choice of nominees makes little sense. For federal appellate court appointments, it makes far more sense to choose federal district judges for at least two reasons: 1) they have experience in the federal stsytem and in applying federal law (and believe me, that is different from state law systems), and 2) they have already passed the confirmation process before. Instead, Bush has chosen judges such as Owen and Janice Rogers Brown, who are state court judges who have controversial and extreme views.

So why is Bush insisting on getting Priscilla Owen on the Fifth Circuit? One answer is that Bush wants someone who he can absolutely control, especially on the issue of abortion. However, that is not the whole picture. One judge on a Court of Appeals is not going to make that much difference. Even if the most left-wing, wild-eyed radical got appointed to the Fifth Circuit, the Fifth Circuit would still be the most conservative court in the nation. Moreover, the federal appellate courts do not determine national law. That's what the U.S. Supreme Court does, and therein lies the rest of the answer.

I guarantee that if Owen gets confirmed to the Fifth Circuit, and a place on the Supreme Court opens up while Bush is still in office, Priscilla Owen will be nominated for that position (unless Rehnquist retires, in which case Scalia will precede Owen). I believe that Bush is not interested in long term plans the way Reagan was when he got to appoint the majority of the federal judiciary. Bush wants big changes, and he wants them now. The only way he can do that in terms of the judiciary is to appoint extremist, highly activist judges to appellate positions. That's why Priscilla Owen's nomination was resubmitted.

Mark my words, America. This is a dangerous situation which needs to be avoided, and such avoidance must start with the rejection of Priscilla Owen.