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After being shot down by the Democratic-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 ever will gain the approval of the full Senate. At a sparsely attended second hearing on her nomination to the 5th U.S. Circuit Court of Appeals, Owen vigorously defended her record against assertions by liberals that she is a conservative judicial activist who would move the 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 was a foe of abortion rights and tended 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 titled “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 to take place soon. The question is, what will happen on the floor? Some Democrats have vowed to filibuster her nomination, and that threat is 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. Don Stewart, a spokesman for U.S. Sen. John Cornyn, R-Texas, says he believes Owen has the votes to be confirmed on the Senate floor, but that Democrats likely will filibuster her nomination, much like Estrada’s. In contrast to last year’s session, only two or three senators were present for most of the Owen hearing. As at last year’s hearing, Democratic senators 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 to interpreting a statute is “to start with the language, 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 U.S. Sen. Kay Bailey Hutchison, R-Texas, and Cornyn. 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.” EYE OF THE BEHOLDER Four Texas appellate lawyers say they doubt that Owen’s conservative views would do much to change the already-conservative 5th Circuit. “I think the bulk of the court is very conservative, and I think she would fall into that vein,” says Sidney Powell, a partner in Dallas’ Powell & Reggio, who practices before the 5th Circuit. And lawyers doubt that Owen ever would hear an abortion-related case on the 5th Circuit. A great percentage of the cases the court hears are criminal. Most of the controversial cases the 5th Circuit has considered in the past few years concern death penalty appeals from Texas — an area in which Owen has little experience. “She’s going to be doing criminal and immigration cases,” says Roger Townsend, an appellate lawyer and partner in Houston’s Hogan Dubose & Townsend. Again, Townsend says, Owen is likely to follow the conservative majority on the court on those issues. “I don’t think she will have a very expansive view of criminals’ rights,” says Townsend, who believes Owen will be “pretty much in tune with the current [U.S.] Supreme Court” on criminal law issues. David Keltner, a Fort Worth, Texas, appellate lawyer and partner in Jose, Henry, Brantley & Keltner, also expects a filibuster of Owen’s nomination on the Senate floor. “It’s going to be interesting as to what happens. She is qualified. She is honest. She is intelligent,” Keltner says. “Once you get those three, it’s really hard to contest unless the judicial activism is out of control. And some people say it is. And again, that’s why I say judicial activism is in the eye of the perceiver.” Yet David Schenck, an appellate lawyer and partner in Dallas’ Hughes & Luce, says the Democrats will look bad if they filibuster Estrada and Owen in succession. “I don’t think the Democrats will want to make a stink over a Hispanic and a nice girl from Baylor [University] back to back,” Schenck says. “At that point, it starts looking like they’re confused over who won the election.” Jonathan Groner is editor-at-large at Legal Times.

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