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As any Washington, D.C., insider will tell you, this is not the best time to be an elected official with connections to the sinking Enron Corp. Texas Supreme Court Justice Priscilla Owen is finding that out. Owen is entering the political fray as she seeks confirmation to the 5th U.S. Circuit Court of Appeals. She can expect a thorough audit of her background during a congressional nomination hearing, including questions about an opinion she wrote in 1996 that favored the controversial energy trading company. The spotlight likely won’t be pleasant, as 5th Circuit nominee Charles Pickering recently discovered when he was targeted for his civil rights rulings. Among the first of President George W. Bush’s federal appellate bench nominees named on May 9, 2001, Owen has not received a hearing date from the Senate Judiciary Committee. The committee must vote to confirm Owen’s nomination, followed by a confirmation vote by the full Senate, for her to take the federal appellate bench. It’s unclear if Owen will even receive a hearing this year. But concern over her nomination is so dire that Owen supporter Sen. Kay Bailey Hutchison, R-Texas, pleaded in a speech on the Senate floor March 20 that the Senate give Owen a hearing and confirm her. “I just want to ask that we have a fair hearing on Justice Owen,” Hutchison said. Hutchison’s remarks came after Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., was quoted by Reuters as saying that Owen’s past with Enron may put her nomination in jeopardy. “I have heard from a lot of Republicans who are concerned about her Enron connections,” said Leahy, who chairs the Democrat-controlled committee, two weeks ago. David Carl, a spokesman for Leahy, says Owen will get a hearing — but he can’t say when. Leahy’s comment was that the Senate would have to examine Owen’s Enron past as well as her record, Carl says. “He outlined the good faith the Democrats were taking to break the deadlock over the past five or six years. He named her as an example.” Meanwhile, activist groups have jumped all over Owen’s nomination, harping about her conservative record. Leading the activists’ list of concerns is Owen’s 1996 opinion in Enron Corp., et al. v. Spring Independent School District, which allowed the company to get a tax break. The groups point out that Owen also has accepted thousands in donations to her Texas Supreme Court campaign from Houston’s Enron. But conservative groups say Owen is an outstanding candidate whose nomination is being blocked by Democrats on the contentious Judiciary Committee just because she will not toe their ideological line. Texas appellate lawyers who know Owen say she’s a judge who wears her conservative philosophy on her sleeve. But she also maintains the highest standard of ethics and doesn’t deserve to be smeared with Enron mud, they say. Even the plaintiff’s lawyer who was on the losing side of Enron v. Spring ISD — a complicated analysis of a Tax Code provision that dealt with what date the market value of inventory could be appraised — says attempts to discredit Owen because of the ruling are “nonsense.” “This is a bunch of crap is what it is,” says Robert Mott, a partner in Houston’s Perdue, Brandon, Fielder, Collins & Mott who represented Spring ISD. “To suggest that Justice Owen would rule this way based on a campaign contribution is just nonsense.” Mott says the ruling was reflective of the conservative nature of the court at the time. Interestingly, the opinion, although written by Owen, was unanimous with all nine jurists — even Democratic Justices Rose Spector and Raul Gonzalez — joining in the decision. Owen declines to comment for this article. ACTIVISTS CONVERGE Just as activists this year targeted 5th Circuit nominee Charles Pickering for his civil rights rulings, groups from Texas say they plan to protest against Owen as well. The Judiciary Committee shot down Pickering’s nomination in March in a party-line 10-9 vote. Civil rights activists opposed his nomination and pointed to a case in which Pickering, a U.S. district judge in Mississippi, sought a lighter sentence for a defendant tried on a cross-burning charge — a case Republicans say was misinterpreted by Pickering’s opponents. There’s no indication that Owen’s confirmation hearing will be as contentious — Pickering was called back by the committee for a second hearing so members could further research his rulings, which is rare. But activists from consumer, environmental and abortion rights groups such as Texans for Public Justice, the Sierra Club and the Texas Abortion and Reproductive Rights Action League say they plan to converge on Washington this month to discuss Owen’s record with members of the Senate Judiciary Committee. Given Congress’ obsession with Enron, questions about Owen’s connection to the fallen energy trading giant will likely be a priority for Judiciary Committee members. Representatives from Texans for Public Justice, a consumer judicial watchdog group, will make sure of that. “The connections to Enron and the judge’s raising huge amounts of money from them will be troubling to some senators and will be raised,” says Craig McDonald, director of Texans for Public Justice. “That’s my belief. I’ve given them materials and background.” Included in that material is the group’s report on money Texas Supreme Court justices received from Enron. Since 1993, the company contributed $134,058 to the justices — $8,600 of that went to Owen, who was elected to the high court in 1994. But a leader of a Washington conservative think tank believes the smell of Enron won’t stick to Owen once it’s put in context. “That contribution was in full compliance with the rules of ethics,” says John Nowacki, director of legal policy at the Free Congress Foundation. “I think she’s shown on that issue that she’s in the mainstream of Texas contribution laws.” Owen is falling victim to liberal interest groups who want to turn circuit court nomination hearings into the raucous, ideological process that’s normally reserved for nominees to the Supreme Court, Nowacki says. “There’s been a deliberate effort by the liberal interest groups to turn the circuit court nominations into something resembling the Supreme Court nomination process,” Nowacki says. “It all boils down to politics. The Democrats have made it very clear that they want judicial candidates that reflect their point of view.” Tactics such as those used against Pickering eventually will backfire as the public discovers there is little substance behind the activists’ allegations, Nowacki says. He believes Owen eventually will be confirmed. “I think if people start to realize that the only time [candidates] get defeated is when the Democrats are in control, they’ll realize that it’s plain politics,” Nowacki says. “And Leahy will realize it looks plain bad.” Enron isn’t the only issue that disturbs activists. Sarah Wheat, director of public affairs for the Texas Abortion and Reproductive Rights Action League, says her group plans to meet with senators this month. Wheat’s group is troubled by Owen’s dissenting opinions in a series of rulings in early 2000 that interpreted Texas’ abortion parental notification law. In a March 2000 opinion, In Re Jane Doe 3, Owen voted to reject a minor’s request for a judicial bypass — even though the girl claimed that informing her parents about her desire to get an abortion would lead to “emotional abuse.” Owen wrote in a dissent that the girl had not proved that she would be subjected to abuse. Notes Wheat, “She sends out red flags for a lot of us.” HOMEFRONT SUPPORT Notably, the people who know Owen best and who’ve practiced in front of her are not the ones complaining about her reputation or her abilities as a judge. Owen, who graduated at the top of her class from Baylor University School of Law in 1977, received a “well qualified” rating (the highest possible) by the American Bar Association’s Standing Committee on the Judiciary on June 21, 2001. “In terms of the intellectual firepower, she’s got it,” says Douglas Alexander, an appellate specialist and partner in Austin, Texas’ Scott, Douglass & McConnico. “In terms of whether you agree with her conservative philosophy or bent, that’s a completely different question and that’s what’s sparking a lot of the opposition.” But Alexander says there’s no hint that Owen’s decisions ever have been influenced by campaign donations. “Any notion of Priscilla deciding a case based on a campaign contribution — I don’t attribute anything to that,” Alexander says. “I don’t doubt that things like that are going to be dragged out, but I don’t think that’s a legitimate concern.” David Keltner, a Fort Worth, Texas, appellate specialist and former 2nd Court of Appeals justice, agrees. “I’m a Democrat, and I sometimes disagree with her political philosophy, but she comes about it honestly,” Keltner says. Keltner says partisanship is once again affecting the administration of federal justice. He points to two other 5th Circuit nominees of former President Bill Clinton’s — Jorge Rangel of Corpus Christi and Enrique Moreno of El Paso, Texas — who never got a hearing before the judiciary committee. “We need to get these people heard and out. We need judges in federal courts desperately,” Keltner says. “And the people that are withholding those votes are wrong. It’s affecting the practice of law in Texas, and it’s wrong.” As the Senate takes its time filling two vacant 5th Circuit spots, the judges on that court continue to struggle to keep up with a heavy caseload. The court had 8,616 appeals filed last year and as of June 30, 2001, the most recent figures available, the court had 4,533 appeals awaiting disposition. More often than not, the 5th Circuit uses visiting judges on three-member panels when it issues decisions. “The number of the visiting judges that sit on the 5th Circuit are indicative of a heavy workload,” says Gregory Nussel, circuit executive of the 5th Circuit. While Texas’ two U.S. senators have great influence in helping select and confirm U.S. district judges assigned to Texas, they have little, if any, power in helping select circuit judges. The president has the sole responsibility to select circuit judges. While Hutchison pleaded Owen’s case on the Senate floor, U.S. Sen. Phil Gramm, R-Texas, has been silent on the matter, although he supports Owen’s nomination, says Gramm spokesman Larry Neal. Neal says Gramm would only speak out on behalf of Owen if he was asked to by Owen or Bush. “To my knowledge, he had not been asked to make statements,” Neal says. “And it’s a good policy because sometimes your friends do more damage than good.”

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