WASHINGTON (BP)–Another of President Bush’s nominees to the U.S. Fifth Circuit Court of Appeals is facing hostility from the Senate Judiciary Committee.
Democrats on the committee challenged Priscilla Owen in a July 23 hearing, focusing their attention on the Texas Supreme Court justice’s opinions on a state law requiring parental notification for a minor before she may obtain an abortion. Abortion-rights organizations are leading the campaign against Senate confirmation for Owen.
The opposition effort to Owen shares some similarities with the campaign that has blocked the nomination of Charles Pickering to the Fifth Circuit Court.
In March, the 10 Democrats on the Judiciary Committee voted against sending Pickering’s nomination to the Senate floor. The 10-9 vote came after organizations such as People for the American Way, the NAACP and the National Abortion and Reproductive Rights Action League (NARAL) attacked the federal judge’s record on civil rights, as well as his views on abortion rights and church-state separation. Supporters of his confirmation, however, charged the opposition based its campaign on a distortion of Pickering’s record on civil rights and on concerns about future rulings on abortion.
All 10 Democrats on the committee are pro-choice, and some led the way July 23 in questioning whether Owen’s abortion opinions demonstrate judicial activism on her part.
According to CNSNews.com, Sen. Diane Feinstein, D.-Calif., said to Owen during the hearing, “You are, in a sense, a judicial activist. You went beyond the law, as the law was written in Texas, with respect to notification.”
Owen disagreed, saying the Texas legislature took the language it used in the parental-notification law’s judicial bypass provision almost directly from previous U.S. Supreme Court rulings.
“You tend to expand and embellish” on the text of the law, Sen. Richard Durbin, D.-Ill., told Owen, according to The Washington Post. “You don’t think the positions you take reflect any opposition to a woman’s right to choose?”
“No, I don’t think they do,” said Owens, whose undergraduate and law degrees are from Baylor University.
She acknowledged the U.S. Supreme Court’s landmark abortion-rights decision, Roe v. Wade, is “the law of the land” but said her opinions on parental notification reflected her attempt to interpret an ambiguous state law in the light of past high court decisions, The Post reported.
“The Texas legislature, when they said ‘well-informed,’ wanted us to look at what the U.S. Supreme Court had said states may encourage women to know about the abortion decision to be informed, to make an informed choice,” Owen said, CNSNews reported. “I lifted directly out of those cases the issues that the Supreme Court had identified that they thought it was okay for states to look at in making this decision.”
Sen. Orrin Hatch of Utah, the ranking Republican on the committee, called the opposition effort a “pathetic” attack on Owen’s character and record. “I think a lot of these people have made up their minds on the committee,” he told CNSNews.
The 1999 Texas law mandating parental notification contained a provision enabling a judge to grant an exception if he deems the underage girl mature and well-informed. In nine of 12 cases, Owen opposed a judicial bypass for minors requesting one, according to Pro-life Infonet.
At the crux of the issue, the state high court’s majority, which included Alberto Gonzales, now the White House counsel, ruled a minor could be considered sufficiently well-informed if a judge determines she understands the health risks of abortion; the alternatives, including adoption; and the “emotional and psychological aspects,” according to The Post.
Owen dissented, saying a minor should have to demonstrate she understands the “remorse and regret” some women have experienced as a result of having abortions, as well as “the impact the procedure will have on the fetus.” She also said an underage girl should have to show she has weighed the “philosophic, social, moral and religious arguments” that can be considered when deciding about abortion, according to The Post.
Owen cited in support of her opinion a 1992 Supreme Court decision that upheld Roe but acknowledged a state has the authority to urge women to consider “philosophic and social arguments” before having an abortion, The Post reported.
NARAL President Kate Michelman said Owen “has repeatedly attempted to rewrite legislation from the bench to conform to her own philosophy. Such activism is particularly unacceptable in the Fifth Circuit — a court already tilting far outside the mainstream and which is often the court of last resort for women seeking to exercise their rights in the face of hostile, anti-choice state legislatures.”
Supporters of Owen’s nomination denied she is out of the mainstream.
“To that I ask, who is more out of the mainstream? Judge Owen, the Texas state legislature and the majority of Americans who support such laws or pro-abortion groups who oppose them?” Family Research Council President Ken Connor said recently.
“The fact is these groups are more concerned about putting judges on the bench who will adamantly support abortion rights than someone who will fairly interpret the law. This is the reason organizations such as [the National Organization for Women] and NARAL are up in arms over Judge Owen’s nomination.
“Far too often, other parties, abortion providers or sexual predators whose interests may conflict with those of the child are afforded more standing in the abortion decision than parents,” Connor said.
Owen was elected to the Texas Supreme Court in 1994 and re-elected in 2000. Bush nominated her to the appeals court in May 2001.
The Fifth Circuit consists of Texas, Louisiana and Mississippi. The appeals court is based in New Orleans.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called the opposition tactics that brought down Pickering’s nomination in March a “despicable smear campaign and character assassination.”
Land also charged Democrats on the Judiciary Committee were “frustrating the constitutional process” by refusing to accept conservative judicial nominees.
“The president is keeping his word, but a handful of radical Democrats on the Judiciary Committee are blocking the will of the people,” Land said. “The Senate Judiciary Committee is sitting on them unless the nominees pass a liberal litmus test.
“It’s one thing to delay and obstruct nominees in the last year of a presidency,” he said. “It’s another thing entirely to hold up nominations in the first year of a president’s term.”
Pickering, a federal judge in Mississippi’s Southern District for 11 years, is a member of First Baptist Church in Laurel, Miss., and served two years in the mid-1980s as president of the Mississippi Baptist Convention. He was a member of the Peace Committee that was established in 1985 to address issues related to the controversy at that time in the Southern Baptist Convention.