LCCR Letter Opposing the Nomination of Priscilla Owen

Recipient: Senate

The Honorable Orrin G. Hatch
Chair
Senate Judiciary Committee
104 Hart Senate Office Building
Washington, D.C. 20510

Dear Chairman Hatch:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition with more than 180 national organizations, we write to express opposition to the confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. Justice Owen’s record on the Texas Supreme Court reveals her to be an extremely conservative judicial activist with a particularly troubling record in many areas important to our communities.

LCCR strongly believes that the composition of the federal judiciary is a civil rights issue of profound importance to all Americans because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for all. As such, the federal judiciary must be perceived by the public as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness and impartiality.

After an exhaustive and careful review of Priscilla Owen’s record on the Texas Supreme Court, LCCR is left with no alternative but to oppose her confirmation because of her activist and extreme views on important civil rights, worker’s rights, consumer’s rights, and women’s rights issues. Last year, the Senate Judiciary Committee agreed with LCCR’s conclusion and rejected Owen’s nomination.

President Bush has said he will nominate judges who will interpret the law, not make it. Priscilla Owen does not satisfy the President’s own standard. Time and again, as a Justice on the Texas Supreme Court, Owen has demonstrated that she is a judicial activist with a disturbing willingness to effectively rewrite or disregard the law in order to achieve a particular result. For example, in Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001), Owen effectively tried to rewrite a key Texas civil rights law to make it much more difficult for employees to prove a violation of their rights. Her dissent would have required employees to prove that discrimination was the sole determining reason for a firing or other action in cases in which it is alleged that the employer has advanced some other reason for the action as a pretext for discrimination, even though the statute clearly states that discrimination must simply be a motivating factor. Although Toennies was an age discrimination case, the statute that Owen would have weakened also prohibits many other forms of employment discrimination, including discrimination on the basis of race, sex, and disability.

In other cases involving reproductive choice, Owen has exhibited judicial activism by attempting to rewrite the law to create barriers not contained in the statutory language. Her attempts to legislate from the bench in this area are so blatant that in one instance, In re Jane Doe, 19 S.W. 3d 346, 365-66 (Tex. 2000), President Bush’s own White House Counsel, Alberto Gonzales, who was then a fellow Justice on the Texas Supreme Court, called the effort of Owen and other dissenters “an unconscionable act of judicial activism.”

Justice Owen’s views are also far outside the mainstream of judicial thought, even by the standards of the very conservative Texas Supreme Court. She is the second most frequent dissenter among the Justices currently serving on the court, often disagreeing with Bush’s own appointees to that court. According to the New York Times, Owen is “considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation’s most conservative supreme courts.” Jim Yardley, “Enron Ruling by Nominee is Being Noticed,” New York Times (Jan. 22, 2002).

In many of her opinions, Owen seeks to override jury verdicts or diminish the role of juries, especially when juries attempt to protect the rights of working families. Although sometimes in the majority, she often dissents from the court’s rulings upholding jury verdicts in such cases. For example, in Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998), Owen wrote the court’s majority decision overturning a jury verdict in favor of a woman who had sued her health insurance company for refusing to cover her medical expenses after she had had her spleen and gallbladder removed due to a hereditary blood disease. The dissenting Justices stated that Owen’s opinion “turns the no-evidence standard on its head. The Court ignores important evidence that supports the judgment, emphasizing evidence and indulging inferences contrary to the verdict, and resolves all conflicts in the evidence against the verdict.” 988 S.W.2d at 203.

In a number of cases, Owen has shown herself to be much more extreme than the majority in undermining the role and authority of juries. For example, in Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997), she joined a concurring/dissenting opinion that would have required judges rather than juries to determine whether an insurance company, in a bad faith case, had no reasonable basis for denying the insured’s claim. The majority (which
included several Bush appointees) criticized that position, explaining that it would undermine the right to trial by jury and “take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.” Id. at 49.

Owen’s opinions also consistently favor businesses over consumers and workers. Particularly troubling are Owen’s frequent dissents from majority rulings protecting consumers and other citizens. For example, in Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001), Owen joined a dissent from the court’s ruling in favor of a farmer in a suit brought against a seed manufacturer for deceptive trade practices and breach of warranty. Owen would have construed the Texas Seed Arbitration Act in a manner that barred the farmer’s claim. The majority, including Justices appointed by Bush, criticized the dissent’s interpretation of the Act, stating that: “while purporting to apply a plain-language analysis to [the Act], the dissent glosses over the section’s actual language and ignores the maxim that we must presume that every word in a statute is included purposefully.” 47 S.W.3d at 496-497.

In a troubling series of rulings, Owen wrote or joined opinions that severely limited the ability of workers to recover for on-the-job injuries. In Texas Workers Compensation Commission v. Garcia, 893 S.W. 2d 504 (Tex. 1994), Owen upheld a law that restricted the ability of injured workers to have important aspects of their cases heard and decided by juries. In Lawrence v. CDB Services, Inc., 44 S.W.3d 544 (Tex. 2001), Owen said it was lawful and did not undermine the state workers’ compensation system for employers to seek agreements from their employees which waived workers’ right to sue their employer for workplace injuries in exchange for certain medical and death benefits. And in Sonnier v. Chisholm-Ryder, Owen wrote a dissent that interpreted the state’s statute of repose in a way that would have broadly protected manufacturers and other companies from lawsuits for injuries caused by equipment they manufactured.

When taken together, these immoderate positions and tendency toward conservative judicial activism ought to disqualify Priscilla Owen from serious consideration for any federal court, much less the important 5th Circuit Court of Appeals. The 5th Circuit – composed of Mississippi, Louisiana, and Texas – has the largest percentage of African-Americans and Hispanics of any federal circuit court in the country. It has also, in recent years, become one of the two most conservative federal circuit courts in the