Meet Judge Priscilla Owen of the Court of Appeals for the Fifth Circuit (5th Cir.)

Recipient: U.S. Senate

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition with more than 180 national organizations, we write to express our continued opposition to the confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. Justice Owen’s record on the Texas Supreme Court reveals her to be an extremely conservative judicial activist with a particularly troubling record in many areas important to our communities.

LCCR strongly believes that the composition of the federal judiciary is a civil rights issue of profound importance to all Americans because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for all. As such, the federal judiciary must be perceived by the public as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness and impartiality.

After an exhaustive and careful review of Priscilla Owen’s record on the Texas Supreme Court, LCCR is left with no alternative but to oppose her confirmation because of her activist and extreme views on important civil rights, worker’s rights, consumer’s rights, and women’s rights issues. In the 108th Congress, the Senate Judiciary Committee agreed with LCCR’s conclusion and rejected Owen’s nomination. Despite her previous rejection, she has been re-nominated this year, even though nothing in her record has changed to justify her confirmation Therefore, when the nomination is considered by the full Senate, Owen should be rejected as she was during the 108th session after four failed cloture votes.

President Bush has said he will nominate judges who will interpret the law, not make it. Priscilla Owen does not satisfy the President’s own standard. Time and again, as a Justice on the Texas Supreme Court, Owen has demonstrated that she is a judicial activist with a disturbing willingness to effectively rewrite or disregard the law in order to achieve a particular result. For example, in Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001), Owen effectively tried to rewrite a key Texas civil rights law to make it much more difficult for employees to prove a violation of their rights. Her dissent would have required employees to prove that discrimination was the sole determining reason for a firing or other action in cases in which it is alleged that the employer has advanced some other reason for the action as a pretext for discrimination, even though the statute clearly states that discrimination must simply be a motivating factor. Although Toennies was an age discrimination case, the statute that Owen would have weakened also prohibits many other forms of employment discrimination, including discrimination on the basis of race, sex, and disability.

In other cases involving reproductive choice, Owen has exhibited judicial activism by attempting to rewrite the law to create barriers not contained in the statutory language. Her attempts to legislate from the bench in this area are so blatant that in one instance, In re Jane Doe, 19 S.W. 3d 346, 365-66 (Tex. 2000), her colleagues, writing the majority opinion, described her effort to “usurp the legislative function.” One of those colleagues, U. S. Attorney General Alberto Gonzales, who was also a Justice on the Texas Supreme Court, called the effort of Owen and other dissenters to add requirements that the legislature had not imposed “an unconscionable act of judicial activism.”

Finally, in a ruling since her last hearing, Owen further demonstrated her tendency to improperly re-write statutes and contracts from the bench in a way that harms consumers and individuals to the benefit of corporations. In F.F.P. Operating Partners v. Duenez 2004 Tex. LEXIS 778, (2004), the Duenez family was injured in a head-on collision with a drunk driver which caused permanent brain damage to Xavier Duenez and other injuries to his 9 year-old daughter. The Texas Supreme Court affirmed a lower court ruling that under the existing Texas Dram Shop law, the store selling liquor to a driver who was obviously intoxicated and presented a clear and present danger to himself and others was responsible for the injuries to the Duenez family. Owen’s dissent from the Texas Supreme Court ruling in this case would have thrown out the jury verdict in favor of the family and re-written Texas law from bench to contradict the intent of the legislature.

Justice Owen’s views are also far outside the mainstream of judicial thought, even by the standards of the very conservative Texas Supreme Court. For several years, she was the second most frequent dissenter among the Justices serving on the court, often disagreeing with Bush’s own appointees to that court. According to the New York Times, Owen is “considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation’s most conservative supreme courts.” Jim Yardley, “Enron Ruling by Nominee is Being Noticed,” New York Times (Jan. 22, 2002).

Owen’s tendency to support corporations and a corporate agenda over consumers and other citizens has been recently documented in a non-partisan review by the Texas Watch Foundation. This review noted that the Texas Supreme Court has grown more conservative over the last several years. However, even on this conservative court, Owen is far beyond the mainstream. She dissented in almost one-third of the 68 cases won by consumers in this court and did not dissent in a single one of the175 cases lost by consumers during this same period. Texas Watch Foundation, “Facing a Stacked Deck: Families at the Texas Supreme Court, Texas Supreme Court Year in Review, 2003-2004,” at 9 (2004).

In many of her opinions, Owen seeks to override jury verdicts or diminish the role of juries, especially when juries attempt to protect the rights of working families. Although sometimes in the majority, she often dissents from the court’s rulings upholding jury verdicts in such cases. For example, in Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998), Owen wrote the court’s majority decision overturning a jury verdict in favor of a woman who had sued her health insurance company for refusing to cover her medical expenses after she had her spleen and gallbladder removed due to a hereditary blood disease. The dissenting Justices stated that Owen’s opinion “turns the no-evidence standard on its head. The Court ignores important evidence that supports the judgment, emphasizing evidence and indulging inferences contrary to the verdict, and resolves all conflicts in the evidence against the verdict.” 988 S.W.2d at 203.

In a number of cases, Owen has shown herself to be much more extreme than the majority in undermining the role and authority of juries. For example, in Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997), she joined a concurring/dissenting opinion that would have required judges rather than juries to determine whether an insurance company, in a bad faith case, had no reasonable basis for denying the insured’s claim. The majority (which included several Bush appointees) criticized that position, explaining that it would undermine the right to trial by jury and “take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.” Id. at 49.

Owen’s opinions also consistently favor businesses over consumers and workers. Particularly troubling are Owen’s frequent dissents from majority rulings protecting consumers and other citizens. For example, in Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001), Owen joined a dissent….(truncated).

For Judge Owen, Self-Reliance in Life and Law

By David D. Kirkpatrick
May 26, 2005

WASHINGTON, May 25 – When the Senate asked Justice Priscilla R. Owen for the most significant opinions she had written on the Texas Supreme Court, she provided a list with a distinctive theme: tough.

She chose opinions overturning rulings in favor of a child born with birth defects, a worker injured on an oil rig, a nurse fired for blowing the whistle on a drug-dealing co-worker, a family with an interest in an oil field that had been drained by a nearby company, asbestos and breast-implant plaintiffs and a student whose school made him cut his hair.

“She represents a part of the Texas culture that is basically a frontier mentality,” said Linda S. Eads, a law professor at Southern Methodist University and a former deputy attorney general of Texas who supports Ms. Owen’s nomination.

“You don’t cry about your hardships, you just keep moving forward,” Professor Eads said. “In some ways, it’s a very empowering philosophy, and in some ways it can be seen as cold. I guess it depends on which side of the outcome you are.”

After four years in the crossfire of partisan battle over her nomination to the federal bench — denounced by liberal critics as extremist and callous, hailed by conservatives as a kind-hearted Sunday school teacher who lifted herself up from humble roots — Ms. Owen finally won Senate confirmation Wednesday on a 55-to-43 vote to the United States Court of Appeals for the Fifth Circuit, in New Orleans.

After Senate Democrats allowed her confirmation to break a stalemate over judicial nominations, her conservative supporters argued that her confirmation set a benchmark. Judges with records and views like Ms. Owen’s, her supporters argue, can no longer be construed as objectionable. They note that none of her opinions have been overturned.

Her confirmation is unlikely to change the balance of the Fifth Circuit, which is already dominated by Republicans. But for Ms. Owen, who declined to be interviewed, it is the latest reward of a partnership that began a dozen years ago when a prominent Texas conservative introduced her to Karl Rove, who was at the time a political consultant and emerging kingmaker.

“Karl came over and visited with her at length, and he was very impressed,” said Ralph Wayne, president of the Texas Civil Justice League, who was recruiting conservatives to run for the Texas Supreme Court in an effort to move it to the right.

“If you just wrote down her résumé and had it before you, it is kind of in the matrix that you look for,” Mr. Wayne said.

It was a résumé brimming with self-reliance. Priscilla Richman was born in 1954 in Palacios, Tex., while her father was in the military in Korea. Just 15 months later, after returning home, he died of polio. Ms. Owen spent her first five years on her maternal grandparents’ rice farm near Collegeport, Tex. Even after her mother remarried, to an insurance salesman, and the family moved to Waco, Ms. Owen spent her vacations working on the rice farm and on her paternal grandfather’s cattle ranch in Palacios.

“He gave her her work ethic,” her sister, Nancy Lacy, said in an interview. “He knew that there was a possibility that she was going to be alone, so from a very young age he always talked to her about working hard, supporting herself, saving money. She needed to know how to take care of herself because her father was no longer there.”

She earned her bachelor’s and law degrees at Baylor University and married her high school sweetheart, who became an accountant. But their careers took a toll on their marriage, and it ended in divorce, Ms. Lacy said. They had no children. “They were both very hardworking, very dedicated people,” she said. “They are still mutual friends.”

Ms. Owen represented mostly oil and gas companies. She quickly gained a reputation as a formidable litigator, and the Texas firm of Andrews & Kurth made her a partner by the time she was 30.

Her private life showed a softer side. She cherished her two Belgian sheep dogs and served on the board of Texas Hearing and Service Dogs, which trains unwanted dogs.

Mr. Rove managed Ms. Owen’s Republican candidacy for the Texas Supreme Court in 1994, and she often campaigned with George W. Bush, another Rove client, who was running for governor. Ms. Owen, Mr. Bush and Mr. Rove became close friends. Each year, Ms. Owen cooked a dinner of quail. a Texas specialty, for Mr. Bush, Laura Bush and other judges on the court, usually at Mr. Rove’s home, said Justice Nathan Hecht, a conservative ally of Ms. Owen on the bench.

In more recent years, Ms. Owen also became much more religious, her sister said. Republicans have lauded her role as a founding member of St. Barnabas Church, a theologically conservative congregation in Austin where she still teaches Sunday school. “On any given Sunday, you can find Justice Owen hopping on one leg, reading stories,” Senator Kay Bailey Hutchison of Texas said last week.

Democrats have criticized an allusion to religion in an opinion she wrote arguing against exempting a teenager seeking an abortion from the state’s parental notification law. The law’s requirement of an “informed” decision, Ms. Owen argued, included an understanding “that some women have experienced severe remorse and regret” and consideration “that there are philosophic, social, moral and religious arguments” about abortion, as well.

Ms. Owen’s defenders argue that she was interpreting an ambiguous law in a way consistent with its legislative history and that courts later cleared up its meaning. And her pastor, the Rev. Jeff Black, said she would never impose her religious views in a court. “If it was a believer who came to her and said, ‘What should I do?’ then she would say, ‘Here is what the Scripture says,”‘ Mr. Black said. “But in a court of law, she would never do that.”

A version of this article appears in print on May 26, 2005, Section A, Page 1 of the National edition with the headline: Woman in the News — Priscilla R. Owen; For New Judge, Self-Reliance in Life and Law.

Karl Rove’s Legal Tricks

Packing the judiciary with right-wingers like Priscilla Owen.

By John Nichols
JULY 3, 2002

When Texas Supreme Court Justice Priscilla Owen comes before the Senate Judiciary Committee for the hearing on her nomination to the Court of Appeals for the Fifth Circuit, she will face an unprecedented level of criticism from individuals and organizations familiar with her record of extreme right-wing judicial activism.

The noisiest of these complaints is unlikely, however, to rival the loud critique offered by one of her fellow justices on the state court.

In 2000, when the Texas high court rejected one of many attempts by Owen to prevent a young woman from obtaining an abortion without parental consent, one of the justices who formed the majority felt it was necessary to explicitly condemn Owen’s effort to thwart the clear intent of the law. To follow Owen’s lead, the justice declared, “would be an unconscionable act of judicial activism.”

The Texas justice who identified Owen as a radical jurist because of her willingness to rewrite laws in order to achieve results never intended by legislators, no longer serves on the state court. He has a new job–as President George W. Bush’s in-house lawyer.

That means that as the Senate Judiciary Committee prepares for a high-stakes hearing on Owen’s nomination to a place on the second-highest rung of the federal judiciary, White House counsel Alberto Gonzales finds himself in the uncomfortable position of having to sing the praises of a woman he knows from personal experience to be a right-wing radical.

How did Gonzales, who as White House counsel heads the Bush Administration’s screening committee on judicial appointments, wind up on the cheerleading squad for an appeals court nominee whose extremism he scored barely two years ago? That’s easy. Gonzales is not in charge on this one.

“Owen,” explains Craig McDonald, director of the nonpartisan group Texans for Public Justice, “is a Karl Rove special.”

Rove, the political Svengali who ran George W. Bush’s presidential campaign and parlayed that experience into a taxpayer-funded job as White House senior adviser, has orchestrated Owen’s rapid rise ever since he plucked her from a gig as an undistinguished hired gun for Transcontinental Gas Pipe Line and other energy firms to make her his pet judicial candidate.

Back in 1994 the man whom Lone Star pols still refer to as “Bush’s brain” wanted to make the state’s top court politically friendly for the man he was about to make governor.

Owen seemed suitably pliable, and with Rove guiding her campaign, the political unknown who in sixteen years as a corporate lawyer was the sole counsel on only four cases that were tried to a verdict was suddenly a Texas Supreme Court justice.

Now Rove is determined to place his protégée on one of the most influential appeals court benches in the land.

This confirmation crusade is not about Owen, who has never been anything more than a political pawn for the nation’s premier GOP operative.

It’s not even about Rove’s desire to exact revenge for the Senate Judiciary Committee’s rejection of Mississippi Judge Charles Pickering’s nomination to serve on the Fifth Circuit.

Rather, Rove is working to win the fight to confirm Owen in order to send a powerful signal to movement conservatives about this Administration’s determination to pack the courts with judicial activists who are willing to challenge antidiscrimination laws, upset basic protections for workers and consumers, and, above all, build a judicial infrastructure that will eventually overturn abortion rights.

“Clearly,” says McDonald, “Rove picked her as a favor to the right wing because she is the darling of the right wing.”

Satisfying the far right–especially the fundamentalist right, for whom banning abortion remains priority number one–is Rove’s special mission. Speaking in March to what he thought was a closed-door meeting of the Family Research Council, now the most influential Christian conservative activist group in the land, Rove preached about how the Administration and Republicans in Congress are “creating a culture of life” with legislation such as the House-passed Born-Alive Infants Protection Act. But, Rove said, the fundamental fight is for control of the courts.

“We need to find ways to win the war,” he told 300 of the nation’s most determined abortion foes. “This is a gigantic war with a whole series of battles that need to be fought.”

The next battle is likely to be carried out on behalf of Owen, who “exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named,” according to Kate Michelman, president of the National Abortion and Reproductive Rights Action League.

Placing Owen on an appeals court that is already one of the most conservative in the land, Michelman argues, could have a devastating impact on the right to choose in Southern states, where that right is already under assault.

Antiabortion activists effectively share Michelman’s views:

In an action alert urging members to make calls on Owen’s behalf to Pennsylvania Republican Senator Arlen Specter, a supporter of abortion rights who sits on the Judiciary Committee, the Pennsylvania Pro-Life Federation said of her: “At least one of [Bush’s] appointments has already faced the abortion issue as a judge and ruled for the pro-life side.”

For the Bush team, which always worries about its right flank, the coming fight over Owen’s nomination offers an opportunity to energize right-wing troops for the US Supreme Court nomination wars–where the Administration will seek to upset the Court’s prochoice majority–which are as close as Chief Justice William Rehnquist’s next visit to his back doctor; for the 2002 Senate races that will determine the partisan balance in Washington; and for the 2004 re-election campaign, which is the continual obsession of the Bush team.

Essential to all of Rove’s calculations is a plan to energize the religious right. Within Republican circles, Rove quietly expresses frustration with the fact that 4 million Americans who identify themselves as Christian fundamentalists, evangelicals or Pentecostals did not vote in 2000.

“We may have failed to motivate them,” grumbles Rove. He has heard the message of conservative activists like Gary Bauer and Focus on the Family’s James Dobson, who say that the battle to shape federal courts willing to overturn the 1973 Roe v. Wade decision legalizing abortion is what their constituents care about.

Ever since Bush’s election, religious right activists have been busy developing their capacity to wage judicial confirmation fights, preparing for what Dobson refers to as the “critical moment” when a Supreme Court opening occurs. Asserting that the battles over nominations are bringing on a “watershed moment in American History,” the Christian Coalition is stepping up activism on judicial selection issues.

The Free Congress Foundation is developing files on Senate Democrats with an eye toward using their own statements about GOP delays in filling judicial vacancies during the Clinton years against them. Concerned Women for America, a 500,000-member social policy powerhouse, recently made Tom Jipping–the right’s ablest analyst of confirmation fights–its “senior fellow in legal studies.”

And Jipping’s spin is now regularly echoed, often down to the exact phrasing, on the Wall Street Journal editorial page, in the pages of conservative publications such as National Review and Human Events, and on radio personality Rush Limbaugh’s nationally syndicated program.

Conscious of the religious right’s intense interest in the shape of the federal judiciary, Rove has for some time been willing to clear his calendar–easily one of the most packed in Washington–in order to attend meetings of the White House judicial selection task force.

His presence is just one indication of the Bush Administration’s willingness to politicize the judicial selection process to a greater extent than any previous administration.

Dispensing with long-established bipartisan approaches, the White House ended the practice of having the American Bar Association screen potential nominees, began withholding documents from the Senate Judiciary Committee and transformed the White House into a command center for plotting to turn nomination fights into political dynamite.

At GOP fundraising events, President Bush now repeats the mantra, “We’ve got to get good, conservative judges appointed to the bench and approved by the United States Senate.”

To that end, Rove has begun holding regular nomination and confirmation strategy sessions with key senators, GOP operatives from around the country and conservative interest groups.

Party activists and campaign contributors have been asked to join the White House in ramping up efforts to defeat Democratic senators who oppose Bush’s judicial nominees.

After Rove and Vice President Dick Cheney went to Capitol Hill for a closed-door meeting with Senate Republicans, a key Judiciary Committee member, Jeff Sessions, said, “The White House, I’m convinced, is confident and bullish and determined to push this issue, as we are in the Senate.”

On Capitol Hill, Rove is working not just with senators but also with members of the House of Representatives. He helped coordinate a May press conference at which two dozen Republican senators–including supposed moderates such as Maine’s Susan Collins, who showed up wearing a “Remember Pickering” sticker–took turns accusing Democrats of politicizing the confirmation process. Rove has also forged an alliance with US Representative Thomas Davis of Virginia, the chair of the National Republican Congressional Committee, to get GOP members of the House to build home-state pressure on Judiciary Committee Democrats and to use the concerns about confirmation fights to gin up grassroots activism on behalf of Republican candidates.

While polls show Americans in general rate judicial confirmation fights low on their list of concerns, GOP pollster Whit Ayres says, “It’s potentially a very significant campaign issue, particularly in generating intensity among Republican voters.”

That may be even more true now that a June decision by the Ninth Circuit Court of Appeals to prohibit required recitation of the Pledge of Allegiance–because of the “one nation under God” line–is being spun by GOP pols as a new reason to “take back the courts.”

Rove’s most serious work is with the conservative faithful, who he believes can be a counterweight to the coalition of progressive groups that scored a surprising win in their push to prevent the confirmation of Pickering, an old-school Southern conservative.

On the very day that the Judiciary Committee rejected Pickering for a place on the court of last resort for most federal cases coming out of Mississippi, Louisiana and Texas, Rove mourned Pickering’s defeat as a “judicial lynching” before a Family Research Council gathering and promised revenge.

And what sweeter revenge could there be than placing Owen–who is even more conservative than Pickering and, at age 47, able to make much more of a lifetime appointment than the 65-year-old Mississippian–on the Fifth Circuit bench?

On one of the nation’s most conservative state courts, Owen is part of a militant minority that argues that the court has not veered far enough right.

She has written or joined eighty-seven dissents from court decisions she deemed insufficiently activist in scope and character.

Her judicial advocacy has taken many forms–from active support for curtailing access to public records, to backing moves to undermine the role and authority of civil juries, to her persistent efforts to ease restrictions on business.

On a court with an exceptionally well documented pro-business bias–a poll conducted by the court itself found that 83 percent of the Texas public, 79 percent of Texas lawyers and 48 percent of Texas judges believe campaign contributions play a significant role in determining the court’s stance on issues of interest to donors–Owen has distinguished herself as a slavish defender of corporations.

“Mention her name and people say, ‘Oh, Judge Enron,’” notes Nan Aron, who heads the Washington-based Alliance for Justice.

“If you were looking for a judge whose record illustrates the hold that Enron established over state courts, she would be a leading contender.”

The recipient of $8,600 in campaign contributions from Enron’s political action committee and key executives, including a $1,000 check from Enron CEO Ken Lay, Owen wrote a 1996 Texas Supreme Court decision that allowed Enron to avoid paying $224,989 in school taxes.

It may be unfair to suggest that Owen gave Enron special treatment, however, since she sided with her corporate donors in more than 80 percent of the cases in which she participated–a notably higher ratio than the court as a whole.

Owen is a “business can do no wrong” judge–even if that means twisting the law in absurd directions.

When the court majority, in a relatively rare affront to a land developer, overturned a state law written specifically to exempt a single developer–who happened to be an Owen political contributor–from Austin’s water quality standards, she objected so vociferously that the majority opinion concluded:

“Most of Justice Owen’s dissent is nothing more than inflammatory rhetoric and thus merits no response.”

Perhaps the most troubling characteristic of Owen’s pro-business record is the determination with which she has led fights to erect barriers that prevent injured consumers from recovering damages from corporations, that restrict the ability of civil juries to side with plaintiffs who sue corporations and that undermine antidiscrimination protections–particularly for women.

Owen dissented from a ruling that upheld a jury verdict awarding a woman $160,000 in damages from a vacuum-cleaner sales company after she was raped by one of the firm’s door-to-door salesmen;

Owen argued that it was unreasonable to have expected the corporation to do the background check that would have revealed the man’s previous arrest for indecency with a child.

After Owen was nominated for the Fifth Circuit bench, groups including the Texas AFL-CIO, the Texas Civil Rights Project, the Women’s Health and Family Planning Association of Texas and the National Council of Jewish Women sent a letter to President Bush that stated in part:

“Justice Owen’s activism betrays a judicial philosophy at odds with your own stated goal of nominating judges who will interpret rather than write the law.”

In a letter to Senate Judiciary Committee chair Patrick Leahy, a prominent Houston attorney who is board certified in civil appellate law wrote: “Justice Owen is the type of judge who can ignore facts–when it helps corporations to do so–yet rail against the failure of her fellow Texas Supreme Court justices to pay more attention to the facts when she wants the court to stop a minor from getting an abortion.”

Again and again, the conversation about Owen circles back to abortion. It is on this issue, above all others, that she has distanced herself even from fellow conservatives. In every decision she has written on this issue, she has argued against a woman’s right to choose.

In a dozen “Jane Doe” cases in which the court was asked to allow a pregnant teenager to bypass the state’s parental notification requirements and receive an abortion, Owen voted every time to deny the bypass.

When lawyers for a college-bound teenager who was in her fifteenth week of pregnancy–and who had already endured more than a month of legal delays–asked that the high court expedite action on the high school senior’s request for permission to bypass the parental notification requirement, the court majority quickly granted the bypass. Owen wrote a dissent that asked: “Why then the rush to judgment?”

“We’re going to hear people complaining that Justice Owen is being attacked unfairly by individuals and groups that raise questions about her approach to abortion issues,” says Sarah Wheat of the Texas Abortion and Reproductive Rights Action League.

“But Justice Owen is the one who has made abortion an issue.” Noting the nominee’s activist record, Wheat adds, “Senators have a responsibility to determine whether federal court nominees can be trusted to uphold the law.”

When the Judiciary Committee holds its hearing on Owen, perhaps as early as this month, some Democratic senators are certain to raise concerns. But committee members are already feeling intense pressure from Bush supporters.

The Vermont Republican Party is attacking Leahy for creating a “judicial crisis” with his failure to advance the Owen nomination, while the Traditional Values Coalition is attacking him nationally as “an out-of-control chairman leading an out-of-control committee in a time of war.”

Some Judiciary Committee members, such as New York Democrat Chuck Schumer–who has complained about the Administration’s attempt to “stack the nation’s bench with right-wing ideologues”–have sent clear signals that they are willing to reject nominees who are not “mainstream” jurists.

But there are no guarantees that the committee’s Democratic majority will follow Schumer’s standard. Some prochoice Democrats, such as Wisconsin Democrat Russ Feingold and North Carolina’s John Edwards, have expressed reservations about rejecting nominees on ideological grounds.

Veteran observers of nomination fights say that the Judiciary Committee vote on Owen’s nomination could set the parameters not just for future appeals court nominations and confirmations but for the Supreme Court nomination clashes.

With the rejection of Pickering, Democrats on the committee signaled that they were willing to block the nomination of a judge with a troubling record of racial insensitivity.

Now the question is whether the committee will take into account other forms of extremism–on issues such as workplace discrimination, corporate responsibility and, above all, the right to choose.

Texan Craig McDonald sees it as a worthy battle.

“You hear talk about whether this judicial nomination or that judicial nomination deserves to be more controversial,” he says.

“I would just say that as far as those of us who have watched Priscilla Owen and Karl Rove and George W. Bush for a lot of years are concerned, this is the one that deserves to be controversial.”

McDonald adds that “the Owen nomination is not a Texas fight or a Fifth Circuit fight. This is really a struggle to determine whether a political operative, Karl Rove, and his crew are going to determine the makeup of our federal courts.”

John Nichols is a national affairs correspondent for The Nation and the author of the new book The Fight for the Soul of the Democratic Party: The Enduring Legacy of Henry Wallace’s Anti-Fascist, Anti-Racist Politics (Verso). He’s also the author of Horsemen of the Trumpocalypse: A Field Guide to the Most Dangerous People in America, from Nation Books, and co-author, with Robert W. McChesney, of People Get Ready: The Fight Against a Jobless Economy and a Citizenless Democracy.

The Making of the Corporate Judiciary

How big business is quietly funding a judicial revolution in the nation’s courts

Nov/Dec. 2003

Like many of President Bush’s lower-court nominees, William H. Pryor Jr. has had a hand in just about every legal social theory that drives Senate Democrats to outrage. As the attorney general of Alabama, he pushed for the execution of the mentally retarded, compared homosexuality to bestiality, defended the posting of Bible quotes at the courthouse door, and advocated rescinding a portion of the Voting Rights Act. He called Roe v. Wade “the worst abomination of constitutional law in our history.”

So when Pryor, a boyish 41-year-old, came before the Judiciary Committee in June wearing a carefully folded kerchief in his pin-striped suit, opposing senators clashed over whether such views disqualified him from the 11th Circuit Court of Appeals. Republicans, led by Utah Senator Orrin Hatch, praised Pryor’s distinguished career, his numerous awards, and the hundreds of letters supporting his nomination. They tossed him softball questions about his “mainstream” approach to the law.

Democrats, by turn, hammered at Pryor’s conservative social stands. Didn’t it matter that he had once canceled a family vacation to Disney World to avoid a gay and lesbian event? Could someone who blamed the Supreme Court for “the slaughter of millions” fairly interpret the law? Did the only state attorney general to challenge the Violence Against Women Act deserve a lifetime appointment? “I don’t understand, looking at your record, how one can conclude that you don’t have an agenda,” said Massachusetts Senator Edward Kennedy, leading the Democratic attack. It was a classic confrontation, one that has been repeated again and again with President Bush’s judicial nominees.

But it also obscured the most important factor in Pryor’s swift rise from Mobile, Alabama, to the national stage: his longtime courting of corporate America. “The business community must be engaged heavily in the election process as it affects legal and judicial offices,” Pryor told business leaders in 1999, after refusing to join other attorneys general in lawsuits against the tobacco and gun industries. To facilitate that engagement, Pryor created a controversial group called the Republican Attorneys General Association, which skirted campaign-finance laws by allowing corporations to give unlimited checks anonymously to support the campaigns of Pryor and other “conservative and free market oriented Attorneys General.”

With such activism, Pryor positioned himself in the vanguard of a stealth campaign by American business to change the way that state and federal law is interpreted. Since 1998, major corporations — Home Depot, Wal-Mart, and the insurance giant AIG, to name a few — have spent more than $100 million through front groups to remake courts that have long been a refuge for wronged consumers and employees. By targeting incumbent judges, they have tilted state supreme courts to pro-business majorities and ousted aggressive attorneys general. At the same time, corporate lobbyists have blitzed state legislators with tort-reform proposals, overseeing the passage of new laws in 24 states over the past year alone.

Now, with a sympathetic ear in the White House, corporate America is taking its legal agenda to the federal bench with a behind-the-scenes campaign of high-powered lobbying and interest-group advertising. Pryor is just one of the corporate stars. Several of President Bush’s nominees to federal appeals and district courts — and even White House Counsel Alberto Gonzales, a former Texas Supreme Court justice who now selects federal nominees for the president — owe their careers to the support of the insurance, retail, and energy industries that got them elected on the state level.

The nominees’ legal approaches have been nurtured by a string of corporate foundations that fund university programs and ideological groups like the Federalist Society. And their promotion to the federal bench coincides with an ambitious corporate legislative agenda, backed by more than 475 lobbyists, that seeks to force limits on jury awards and move lawsuits out of state courts, where judges historically have favored plaintiffs. In Congress, the House Majority Leader, Rep. Tom DeLay, has formed a working group on “judicial accountability” to push for the approval of the president’s nominees and launch investigations of liberal federal judges. “What you have is a wholesale effort to hijack the federal judiciary,” says Senator Richard Durbin, an Illinois Democrat and former corporate defense lawyer. “They clearly want to put in a more conservative judiciary and then start stacking the deck by removing more and more cases to the federal courts.”

So far, the public debate has all but ignored this quiet corporate campaign. Unlike high-visibility battles over abortion, the death penalty, or gay rights, the legal fights over tort reform, regulatory powers, anti- trust law, and property rights do not lend themselves to easy explanations in news stories. In Beltway parlance, such issues “translate poorly” to voters — a fact that has not been lost on conservative activists. “Because of the smoke and fire of the abortion issue, it is probably all anybody will talk about, but there is much more at stake,” says Grover Norquist, president of Americans for Tax Reform. His group, which receives funding from corporate and conservative foundations, has organized resolutions in at least 10 state legislatures supporting Bush’s judicial nominees. “The New York Times understands sex,” he added. “It doesn’t understand money.”

Big money, however, cares a great deal about who sits on the nation’s 13 federal circuit courts. “There is the hope on the part of the business community that their rulings will be more friendly,” says Paul DeCamp, a Republican corporate lawyer who counts two nominees as personal friends. “The Supreme Court can’t decide every case.” In fact, circuit courts are the final venue for 99 percent of federal cases and most regulatory challenges. These courts, which operate in relative media obscurity, are not likely to make final decisions about high-profile social issues, such as gay marriage or the death penalty, which end up at the Supreme Court. Rather, they set precedent on issues affecting business such as media-ownership rules, sport-utility rollover lawsuits, or the rights of coal-mining companies to dump waste in thousands of miles of streambed in West Virginia. “There are many cases in which a circuit court nominee’s views matter, but abortion is not one of them,” says Alan Morrison, who leads Public Citizen’s litigation group. “There are just a hundred different ways by which the courts of appeals judges can by little cuts kill plaintiffs.”

Years of delaying President Clinton’s nominees to these same courts left the Bush administration, and the business community, with a golden opportunity: All but two of the nation’s 13 federal circuits — evenly divided between Democratic and Republican appointees under Clinton — could have Republican majorities by the next election. “With this four-year crop, it’s really going to be a different judiciary than it is now,” says Eldie Acheson, who led judge selection for Clinton’s Justice Department.

The stated goal of many of these business groups is not a modest one: to chip away at more than 60 years of legal history, dismantle federal social services, and effectively erase the policies of the Franklin Roosevelt era. “We’ve been living since the New Deal with an essentially unconstitutional government,” says Roger Pilon, director of the Cen- ter for Constitutional Studies at the Cato Institute. The new generation of young conservative and libertarian lawyers being elevated to federal courts, he adds, “are not afraid to say that.”

PRYOR POSITIONED HIMSELF early to win the favor of the business community. As far back as 1998, he announced that Alabama would not join lawsuits against the tobacco and gun industries. He urged federal courts to roll back the Clean Water Act, testified before Congress against the Clean Air Act, and argued for gutting federal protections of disabled workers on constitutional grounds. Such views allowed him to rake in business contributions. Pryor’s 2002 re-election campaign eventually received $100,000 of legally laundered cash from the Republican Attorneys General Association, a group that attracted companies as far-ranging as Microsoft, Eli Lilly, Anheuser-Busch, and Philip Morris. The money contributed to a 3 to 1 fundraising advantage Pryor built over his Democratic challenger, whom he defeated in a landslide.

Pryor never identified the source of this war chest. But recently leaked documents show he knew at the time that he was raising money from the same companies he refused to prosecute on behalf of Alabama’s citizens. According to phone records, he personally solicited funds for the Republican Attorneys General Association from executives at R.J.Reynolds, Philip Morris, and other Fortune 500 companies. The National Rifle Association, clearly pleased by his refusal to sue gun makers, also contributed to the fund after Pryor called for a donation, the phone records show. The undisclosed checks for up to $25,000 got lobbyists invitations to shoot skeet, play golf, and enjoy a “stress-relief spa” with Republican attorneys general. The potential for ethical conflicts was too potent for several of Pryor’s Republican peers. Betty Montgomery, Ohio’s attorney general, went so far as to pull out of the organization, telling a local newspaper, “I raised some questions about who we were raising money from.”

Pryor was not the pioneer of this kind of fundraising. The strategy of using vast amounts of campaign cash to shift the legal landscape was developed a decade earlier by a talented young Republican direct-mail consultant from Texas — Karl Rove. Long before he took on the moniker of “Bush’s brain,” Rove realized he could energize the legal and medical establishments by targeting the once-sleepy Texas Supreme Court elections. “Karl has always had the requisite skills, but the proving ground came in the late 1980s and early 1990s,” said Kim Ross, a former chief lobbyist for the Texas Medical Association, who worked closely with Rove. “Karl was talking about how business and medicine had to pull this together on the tort thing.”

The conflicts this created were on full display in the case of Priscilla Owen, now a Bush nominee to the 5th Circuit Court of Appeals. When she first decided in the early 1990s that she wanted to run for a spot on the Texas Supreme Court, she called on Ralph Wayne, president of the Texas Civil Justice League, a trade group formed by the state’s manufacturing, transportation, and energy industries. “I said, ‘Have you talked to Karl Rove?’” Wayne remembers. “She said, ‘No, but I think I should.’”

After Rove met with Wayne and Owen, he signed on, giving the candidate the seal of approval from the state’s corporate establishment. The money followed. Owen raised $1.1 mil- lion for her successful 1994 state Supreme Court campaign, with a rec- ord 21 percent coming directly from the business community and much more coming from corporate defense lawyers. Judge Owen later repaid the favor, in part, by lending her endorsement to a Texas Civil Justice League fundraising appeal.

By the time Rove was done, the last Democrat had been purged from the Texas Supreme Court. “The cases all started getting decided anti-consumer, on the side of big business,” says Phil Hardberger, a retired Texas appellate court judge who is a Democrat. Jury verdicts, once embraced by the Democratic court, were now overturned or reduced. By the 1997-98 term, defendants were winning 69 percent of the time, and insurance companies, doctors, and pharmaceutical firms were winning nearly every case. Owen consistently distinguished herself as one of the conservative court’s most strident conservatives. In one decision, Owen argued unsuccessfully in support of a water-quality exemption tailored for an Austin land developer who had given $2,500 to her campaign. The court major-ity dismissed her contention as “nothing more than inflammatory rhetoric.”

The success of the Texas campaign was contagious. Soon the business community in other states, and nationally, began to invest in judicial battles, shifting the ideological majorities in Idaho, Michigan, Pennsylvania, and Alabama. The U.S. Chamber of Commerce joined with the Business Roundtable to set up a complex network of front groups that anonymously filtered corporate money into often divisive local television ad campaigns. By 2000, campaign spending on state judicial races had risen to $45.6 million, a 61 percent increase over the previous peak in 1998 and twice as much as 1994. The Chamber claimed vic- tory in 21 of 24 judicial elections it worked on in eight states, as well as 11 attorneys general races. “I was an exporter of judicial terrorism,” explains Ross of the Texas Medical Association. “We pioneered the techniques, but it eventually acquired a life of its own.”

Those familiar with Rove’s operation in Texas now see the same strategy at work in the White House’s selection of federal judges. In addition to Owen and Pryor, Bush has nominated Ohio Supreme Court Justice Deborah Cook, who rose to prominence on the back of a statewide business campaign, which helped her raise $650,000 for her 2000 re-election. Other nominees have distinguished themselves as lawyers defending the rights and profits of corpo-rations. Carolyn B. Kuhl, who Bush nominated for the 9th Circuit, represented tobacco and gas companies before becoming a California state judge, arguing against employee-discrimination claims and the right of whistleblowers to sue corporations. John Roberts, a Bush nominee who recently won confirmation to the District of Co-lumbia Circuit Court, worked as an attorney to strike down new clean-air rules and filed a brief for the National Mining Association, arguing that federal courts could not stop mountaintop-removal mining in West Virginia. Business groups cheered the appointment of Jeffrey Sutton, a conservative activist, to the 6th Circuit because of his long record of opposing federal powers over the states, including a successful case that voided federal employee-discrimination laws. Another nominee, Victor Wolski, who was confirmed to the Court of Federal Claims, worked for years as an attorney at the Pacific Legal Foundation, an organization devoted to rolling back the “regulatory state.” “Every single job I’ve taken since college has been ideologically oriented, trying to further my principles,” Wolski told a reporter in 1999.

DAYS BEFORE PRYOR’S VOTE on the Senate floor in July, a benign-sounding group called the Committee for Justice began running print and radio advertisements accusing Democrats of blocking Pryor because he was Catholic. One pictured a courthouse door hung with a sign that read “Catholics Need Not Apply.” Democrats sensed a pattern forming. A few months earlier, the committee had run television spots accusing liberal senators of being anti-Hispanic for blocking Miguel Estrada, another business-friendly nominee who later withdrew following a Democratic filibuster. “America is a monument to the willing, where we can dream and build, despite race, creed, or color,” intoned the voice-over, as the ad showed a young Hispanic boy seeking a job at a bakery. “But there’s still intolerance.”

Voters could have been forgiven if they had mistaken the Committee for Justice as a civil-rights group founded to stamp out ethnic and religious bias. In fact, the group was formed by a chief lobbyist for the U.S. Chamber of Commerce, the president of the American Council of Life Insurers, and a half-dozen lobbyists for the energy, tobacco, technology, and pharmaceutical industries. “There has been increasing attention on the impact of judicial decisions on the ability to run a business,” explains Jim Whittinghill, chief lobbyist for the American Trucking Associations, which sponsored a recent committee fundraiser. “We are in courts all the time.” Federal Express co-sponsored the same event, owing to a “whole host of regulatory issues,” ranging from airline regulations to the rights of private mail services. The committee has declined to disclose its list of donors.

Such a policy of anonymity positions the committee as the latest in a string of nonprofit groups funded by corporations and foundations that seek to influence legal thought. These groups range from the conservative law and economics programs at major universities, to nonprofits like the Washington Legal Foundation, to high-powered networking organizations like the Federalist Society. In recent years, major companies, including Shell and Exxon, have also sponsored lavish educational seminars for sitting federal judges, with opportunities for golf and horseback riding on the side. “The idea has been to educate judges on economic issues,” says James Piereson, executive director of the conservative Olin Foundation, which has funded several of the seminars. “I’ve gone to a couple of those things, and the judges have taken me aside and told me that it has been very helpful.”

Corporations have also funded local efforts to press legislators to approve the president’s judicial picks. On a recent swing through his home state of Michigan, Democratic Senator Carl Levin was greeted by protesters with signs that declared “We Want a Vote” and “Set Them Free.” This crowd was not concerned with voter disenfranchisement or overflowing jails — it wanted to remake the federal appellate bench. “We need judges who respect the private sector and property rights,” announced protest organizer Steve Williams, the local leader of Citizens for a Sound Economy.

Like the Committee for Justice, Citizens for a Sound Economy (CSE) is led by C. Boyden Gray, White House counsel under Bush’s father, and was created to anonymously leverage corporate contributions into debates on public policy. In recent months, the group has repeatedly picketed Democratic senators and organized a letter-writing campaign demanding swift approval of the Bush nominees. Historically, companies as varied as General Motors, Unilever, and Anheuser-Busch have filled CSE’s coffers. But the group won’t say who is funding the protests against Levin, who is blocking several of Bush’s nominees from Michigan.

Joe Carney, a union electrician who chairs the Livingston County Democratic Party, says he didn’t understand what motivated the protesters who crashed the local event where Levin appeared. “I don’t know what judges have to do with ‘Citizens for a Sound Economy,’” said Carney, who has been out of work during the economic downturn and is furious about the latest round of tax cuts. “If you want to talk about the economy, then you should talk about it.”

Meanwhile, Judge Owen’s political mentor in Texas, Ralph Wayne, has been busy organizing a lobbying campaign against Democratic senators in 10 states who are blocking her nomination; he has enlisted leaders from the National Federation of Independent Businesses as well as organi-zations representing doctors and realtors. Their motives, says Wayne, are purely economic. “None of these people,” he says, “had any social issues.”

But as with so much in the behind-the-scenes battle for control of the federal judiciary, Wayne’s work has escaped public attention. The corporate candidates he represents will reshape America’s legal landscape for at least a generation, but their connections remain largely unnoticed. When Owen came before the Judiciary Committee for her own nomination hearing, she faced only a handful of questions about her corporate sponsors or pro-business agenda. The headline in the New York Times the next day read “Debate on Court Nominee Centers on Abortion.”

Texas judge at center of Washington debate

May 17, 2005

WASHINGTON – Four years after President Bush nominated her to a federal appeals court, Texas Supreme Court Justice Priscilla Owen is still waiting for her promotion.

But the fate of the former Houston corporate lawyer, whose path to the bench was smoothed by Bush’s top political operative, Karl Rove, is now part of a much more explosive issue. And the detonations could come this week.

Senate Majority Leader Bill Frist, R-Tenn., has tapped Owen to be one of two test cases to challenge the Senate filibuster rules, which have been used by Democrats to block a few of Bush’s judicial picks.

Frist and Senate Minority Leader Harry Reid, D-Nev., said Monday night that their talks aimed at averting a historic showdown over the use of the filibuster had failed.

The fight over the filibuster, a parliamentary move to block action on the Senate floor that can be broken only with 60 or more votes, may set the stage for Bush’s nomination of one or more U.S. Supreme Court justices. The ailing chief justice, William Rehnquist, is expected to step down soon, and some of the Senate’s 44 Democrats would have to refrain from a filibuster for such a nomination to proceed.

But first comes a floor debate, as early as tonight , on the appeals court nominations of Owen and California Supreme Court Justice Janice Rogers Brown.

Hoping to win over wavering senators, Owen is scheduled to return today to Washington, where her record, especially on abortion for Texas minors, has become fodder for the increasingly bitter partisan dispute over the ideological tilt of the judiciary.

Former Texas Supreme Court Chief Justice Thomas Phillips, an Owen backer, said she has persevered partly because she doesn’t have a private practice to worry about and is not up for re-election to the Texas court post until next year.

“She has an important day job,” said Phillips, who teaches at South Texas School of Law in Houston.

Record criticized

That day job has been the focus of intense criticism from Democrats and liberal groups. Since her election to Texas’ top court in 1994, they say, Owen has belonged to the most conservative wing of a conservative court on consumer and social issues.

According to Texas Watch, a liberal watchdog group based in Austin, Owen was in the majority in the 175 cases since 1999 in which the court decided in favor of business or government and against consumers. Only one other justice, Nathan Hecht, did not dissent in any of the cases.

Owen dissented in 22 of the 68 cases in which the court ruled in favor of consumers over business or government, matched only by Hecht, according to the organization.

Alex Winslow, executive director of Texas Watch, said Owen’s unwillingness to side with consumers in the majority of cases was “extremely disturbing.”

Southern Methodist University Law professor Linda Eads, an Owen supporter, agreed that the justice generally has supported business.

“She is conservative by nature. She is pro-free enterprise. She doesn’t want to saddle business with undue regulations,” said Eads, adding that Owen has hewed to existing laws.

Owen’s Texas supporters describe her as a bright woman with a close circle of friends who lavishes much of her attention on her dogs and church.

Approached to run

Owen was born in 1954 in Palacios. Her father died of polio 10 months later. Her mother remarried. She attended public school in Waco and received her undergraduate and law degree there from Baylor University.
After receiving a top score on the state bar exam in 1977, Owen took a job the next year with the Houston law firm of Andrews Kurth , where she specialized in oil and gas litigation.

Owen, who had refrained from political activism, was approached by Republicans in 1994 to run for a Texas Supreme Court seat.

“I expected her to say, ‘Are you crazy?’ ” said Holly Williamson, then a colleague and now a lawyer at another Houston firm. “Instead she said, ‘I wanted to do that my whole life.’ “

Owen linked up with Rove, who was managing Bush’s first gubernatorial campaign and those of several GOP Supreme Court candidates.

Rove, who helped Owen raise more than $926,000 for her campaign and was paid $247,000 in consulting fees, has been a strong advocate of Owen’s nomination to the 5th U.S. Circuit Court of Appeals.

Owen defeated Democrat Jimmy Carroll of Austin in 1994, contributing to the first Republican majority on the court in modern times. She faced token opposition in 2000.

Abortion dissent

Owen, who is divorced, has kept a relatively low profile in Austin, according to the Rev. Jeff Black, minister at St. Barnabas the Encourager Evangelical Church , where the judge teaches fourth- and fifth-grade Sunday school classes.

“She is a very unassuming, modest person,” he said, adding she does not dwell on the rancorous fight over her confirmation.

Owen’s stance on the Texas law requiring parental notification of minors receiving abortions has stirred the most passion among critics.

The law allows girls to bypass the requirement if a judge finds that would be in her best interest.

But in a series of decisions in 2000, Owen dissented from the majority that allowed minors to bypass parental notification. Owen said one of the girls was too immature to make up her own mind.

Fellow Texas Supreme Court Justice Alberto Gonzales, now U.S. attorney general, disagreed with Owen’s dissent, saying that narrow interpretations of the abortion law created new hurdles and were “an unconscionable act of judicial activism.”

Gonzales has since defended Owen and suggested his criticism was misconstrued. Democrats say she tried to rewrite the law to fit her own ideology.