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After being shot down by the Democrat-controlled Senate last year, Texas Supreme Court Justice Priscilla Owen faces a slightly less hostile audience now in her pursuit of a seat on the federal bench. But after a March 13 Senate Judiciary Committee hearing on her nomination, it remains uncertain whether the controversial jurist will ever gain the approval of the full Senate. At a sparsely attended second hearing on her nomination to the U.S. Court of Appeals for the 5th Circuit, Owen vigorously defended her record against assertions by liberals that she is a conservative judicial activist who would move that court to the right. “I do not try to achieve a result for one sector of the population or another,” the 48-year-old judge testified. “I put aside my personal feelings and I ask, ‘What does the law say?’ I judge cases by what is right.” Last July, at a tense, emotionally charged hearing, Owen fielded harsh criticism from committee Democrats who said she is a foe of abortion rights and tends to support large corporations against consumers and injured workers. With the Senate then under Democratic control, her nomination was rejected in a 10-9 party-line vote. President George W. Bush renominated Owen in January, and Sen. Orrin Hatch (R-Utah), the new committee chairman, scheduled the hearing for her, which he entitled “Setting the Record Straight.” The hearing was a prelude to almost certain approval from the now GOP-led committee. A vote has not been scheduled but is expected shortly. The question is what will happen on the floor. Some Democrats have vowed to filibuster her nomination, and that threat is still very much a reality. “I recognize that the Senate can’t filibuster every nominee who is a threat to the right to choose,” says Kate Michelman, president of NARAL Pro-Choice America. “But Owen has distinguished herself as having a real hostility to the right to choose, and I fully expect that pro-choice senators will filibuster.” Miguel Estrada’s nomination for the D.C. Circuit has been the subject of a filibuster since early last month. On the same day as the Owen hearing, Senate Democrats turned back a second GOP effort to impose cloture and end the debate on Estrada. The full Senate also confirmed the nomination of Justice Department official Jay Bybee for a slot on the 9th Circuit by a 74-19 vote. In contrast to last year’s Owen hearing, only two or three senators were present for most of the March 13 session. As at last year’s hearing, Democrats criticized Owen for her opinions in a series of abortion-notification cases in the Texas court in 2000 and for her views in business cases. “You reinterpret the law to reach the conclusion that you want, and you stretch the law to do so,” said Sen. Edward Kennedy (D-Mass.). “The court you sit on is business-oriented in any case, but you consistently stand to the right of your colleagues. How can we have any confidence that you can carefully consider the claims of consumers and injured employees?” Later, Sen. Richard Durbin (D-Ill.) asked Owen where she would place herself “in a spectrum between judicial activism and strict constructionism.” Owen first noted that in her view, neither term has a precise, clearly accepted meaning. She said that her approach is “to start with the language [of a statute], but also to look at the language in context, and when necessary, to flesh it out, the way the U.S. Supreme Court does with the due process clause.” Owen was introduced at the hearing by Sens. Kay Bailey Hutchison (R-Texas) and John Cornyn (R-Texas). Cornyn, a member of the Judiciary Committee and a former colleague of Owen’s on the Texas Supreme Court, said he never saw her “trying to implement a political agenda” on the bench. “I believe people change when they put their hand on the Bible and take an oath,” Cornyn said. “I know, because it happened to me.”

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