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Administration and Hill sources say the next judicial nominee to get a Senate Judiciary Committee hearing is likely to be Texas Supreme Court Justice Priscilla Owen, selected for a slot on the 5th U.S. Circuit Court of Appeals. The hearing could take place later this month. The Owen nomination shows every sign of becoming the most contentious since the battle earlier this year over fellow 5th Circuit nominee Charles Pickering Sr., who was narrowly defeated by the Senate panel. Liberal activists have had Owen in their sights ever since she was nominated in May 2001. They view her as an extreme conservative who often bases her rulings on ideology rather than legal precedent. They cite rulings they claim are pro-business and anti-abortion — common themes in the political brawls over President Bush’s judicial nominees. “We have very significant concerns about Owen,” says Elliot Mincberg, legal director of People for the American Way. “She strikes us as a right-wing activist on a conservative court. Her dissents show that she rewrites the law in significant ways. If George W. Bush wants judges who interpret existing law, she is exactly the opposite of what he wants.” Administration officials strongly defend the nominee. Expecting to see serious challenges to Owen from liberal groups and senators on her judicial philosophy, abortion rights, and other issues, the administration has been working for months to prepare responses. “Justice Owen is an exceptionally brilliant jurist with a very strong dedication to reforming the Texas judicial system. She will make an outstanding federal judge,” says Justice Department spokeswoman Monica Goodling. Owen received the highest score in the state on the Texas Bar examination in 1977 after serving on the law review at Baylor Law School. She was a commercial litigator at Houston’s Andrews & Kurth, specializing in oil and gas law, before her election to the Texas Supreme Court at age 40. The American Bar Association found Owen to be “well qualified” for the bench, the group’s highest rating. In addition to the issue of conservative judicial activism, Owen will likely face questions about the disgraced Enron Corp. In light of the current bombshells about accounting shenanigans at WorldCom Inc. and other companies, senators may be especially interested in probing this issue at the hearing. In Owen’s 1994 campaign for the Texas high court — she was also overwhelmingly re-elected in 2000 — she received $8,800 in campaign contributions from Enron employees and their political action committee. She later authored the opinion in a 1996 tax case that saved Enron about $225,000. Overall, Owen raised about $1.2 million for that race from more than 3,000 different contributors. Texans for Public Justice, a liberal activist group, called these facts to the attention of Judiciary Chairman Patrick Leahy, D-Vt., in March. Leahy expressed concern then about them, and White House Counsel Alberto Gonzales, a former colleague of Owen’s on the Texas court, fired off a three-page reply saying that Owen had done nothing wrong. Goodling, the Justice Department spokeswoman, points out that three other justices on the court in 1996 received more Enron money than did Owen; that the tax ruling was unanimous; and that Texas law and common practice permit judges, most of whom are elected, to accept campaign contributions from corporations and to later rule on cases involving those companies. Moreover, Owen has frequently criticized the election of state judges in Texas and called upon the state legislature to reform the system. For now, the liberal groups say, they are focusing more on Owen’s rulings than on her links with the bankrupt energy concern. Some plaintiffs’ lawyers and liberal groups in Texas claim that Owen does not give workers and consumers a fair shake. Owen is “brilliant, charming, honest, but in my opinion, not suited for any court because of [her] willingness to overturn jury verdicts and bias in favor of business and against individuals,” wrote Houston trial lawyer Eliot Tucker in a May 2001 letter to Leahy. In a May 2002 letter to President Bush, a Texas coalition that includes the state AFL-CIO and abortion rights and civil rights groups said Owen’s “activist rulings are all the more troubling given that they usually favor the special interests that financed her campaigns and do so at the expense of ordinary people.” The coalition expressed “grave reservations” about Owen’s nomination. The National Abortion Federation, which has called on the Senate to defeat Owen, says the nominee “has shown a consistent and extreme conservative bias, focused most strongly against young women seeking abortions.” Owen declines comment for this story. But in a brief interview with the Houston Chronicle the day after her 5th Circuit nomination, she said she has no political agenda as a judge but rather that she tries to determine the intent of the legislature, to apply the law as developed by the courts, and to keep Texas law in the mainstream. She also said she “doesn’t think there is a right wing” on the Texas high court and that it is a “disservice to the court to say that.” Many observers of the nine-member Texas Supreme Court, which is composed entirely of Republicans, say that Owen and Justice Nathan Hecht form the conservative wing of the court. Notably, many of the judges seen as more moderate are the four selected by Bush when he was governor, including Gonzales. (In Texas, the governor picks judges only to fill unexpired terms.) In 2000, Owen dissented in 10 cases. Hecht dissented in 22, and the other seven judges averaged two dissents that year. One of those dissents that will doubtless get close scrutiny at Owen’s hearing occurred in one of several cases that involved a Texas law, effective in January 2000, that prohibits minors from having abortions without parental consent. The law created a so-called judicial bypass exception that permits teen-age girls to have abortions under certain circumstances without telling their parents. In this “Jane Doe” case, decided June 22, 2000, the court ruled in favor of the young woman by a 6-3 margin. Owen dissented, declaring that the high court “has usurped the role of the trial court” and “forsaken any semblance of abiding by principles of appellate review.” She said the court majority had “acted irresponsibly” by disregarding the trial court’s weighing of the evidence. Then-Justice Gonzales cast his vote on the other side of the issue. Replying to Owen and the two other dissenters, Gonzales wrote in a concurring opinion that the dissenters had misunderstood the statute — and that “to construe the Parental Notification Act so narrowly as to eliminate bypasses or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.” Marcia Kuntz, legislative director of the Alliance for Justice, says, “The White House counsel has himself criticized Owen in a judicial opinion. She is not willing to put aside her personal views of a statute and to interpret it as the legislature intended.” In the past, administration officials have said that the disagreement between Gonzales and Owen on the case was of little consequence, and that it was merely an example of a common situation in which judges offer differing views of a statute.

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