Opposition to the Confirmation of Priscilla Owen

Recipient: U.S. Senate

Dear Senator:

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 our continued 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. In the 108th Congress, the Senate Judiciary Committee agreed with LCCR’s conclusion and rejected Owen’s nomination. Despite her previous rejection, she has been re-nominated this year, even though nothing in her record has changed to justify her confirmation Therefore, when the nomination is considered by the full Senate, Owen should be rejected as she was during the 108th session after four failed cloture votes.

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), her colleagues, writing the majority opinion, described her effort to “usurp the legislative function.” One of those colleagues, U. S. Attorney General Alberto Gonzales, who was also a Justice on the Texas Supreme Court, called the effort of Owen and other dissenters to add requirements that the legislature had not imposed “an unconscionable act of judicial activism.”

Finally, in a ruling since her last hearing, Owen further demonstrated her tendency to improperly re-write statutes and contracts from the bench in a way that harms consumers and individuals to the benefit of corporations. In F.F.P. Operating Partners v. Duenez 2004 Tex. LEXIS 778, (2004), the Duenez family was injured in a head-on collision with a drunk driver which caused permanent brain damage to Xavier Duenez and other injuries to his 9 year-old daughter. The Texas Supreme Court affirmed a lower court ruling that under the existing Texas Dram Shop law, the store selling liquor to a driver who was obviously intoxicated and presented a clear and present danger to himself and others was responsible for the injuries to the Duenez family. Owen’s dissent from the Texas Supreme Court ruling in this case would have thrown out the jury verdict in favor of the family and re-written Texas law from bench to contradict the intent of the legislature.

Justice Owen’s views are also far outside the mainstream of judicial thought, even by the standards of the very conservative Texas Supreme Court. For several years, she was the second most frequent dissenter among the Justices 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).

Owen’s tendency to support corporations and a corporate agenda over consumers and other citizens has been recently documented in a non-partisan review by the Texas Watch Foundation. This review noted that the Texas Supreme Court has grown more conservative over the last several years. However, even on this conservative court, Owen is far beyond the mainstream. She dissented in almost one-third of the 68 cases won by consumers in this court and did not dissent in a single one of the175 cases lost by consumers during this same period. Texas Watch Foundation, “Facing a Stacked Deck: Families at the Texas Supreme Court, Texas Supreme Court Year in Review, 2003-2004,” at 9 (2004).

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 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