Pelavin and Heller: Overall, [Justice Owen's] record indicates a serious propensity for misconstruing or modifying the legislation she is charged with interpreting in order to achieve a desired result.
Contact:Alexis Rice or Sarah Lipton-Lubet 202-387-2800
WASHINGTON, April 30, 2003 - In a letter today, Robert Heller, Chair of the Commission on Social Action of Reform Judaism, and Mark J. Pelavin, Associate Director of the Religious Action Center of Reform Judaism, urged the Senate to oppose the nomination of Justice Priscilla Owen to the United States Court of Appeals for the Fifth Circuit noting, "Justice Owen's record on the bench casts significant doubt on her ability to adjudicate fairly and impartially, or to adhere to the rule of law over personal conviction - especially in cases involving reproductive rights and employment discrimination."
The complete letter follows:
On behalf of the Union of American Hebrew Congregations (UAHC), whose 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis (CCAR), whose membership includes over 1800 Reform rabbis, we write to express our firm opposition to the nomination of Justice Priscilla Owen to the United States Court of Appeals for the Fifth Circuit.
Jewish tradition teaches the necessity of fair and impartial courts. In Exodus 18:21, Moses' father-in-law, Jethro, advises him to choose capable, trustworthy, and law abiding members of society to judge the people. Elsewhere we are taught of the ethical obligation to oppose unjust persons and unfair judgments; judges should neither "favor the poor [n]or show deference to the rich." (Leviticus 19:15)
A fair and impartial judiciary is also the cornerstone of American democracy. Faith in our democratic institutions is eroded when judges do not meet their obligations to be fair and impartial and to pursue justice, or when they subordinate these obligations to an ideological agenda.
Justice Owen's record on the bench casts significant doubt on her ability to adjudicate fairly and impartially, or to adhere to the rule of law over personal conviction - especially in cases involving reproductive rights and employment discrimination. Her record is that of a conservative judicial activist, far outside of the mainstream of American jurisprudence. Justice Owen's opinions have consistently been far to the right of the notably conservative Texas Supreme Court, and her colleagues have time and again noted that her opinions ignore both the intent and letter of the relevant Texas statutes. While serving as a member of the Texas Supreme Court and a colleague of Justice Owen, Alberto Gonzales, current White House counsel, wrote in an opinion that Justice Owen's dissenting view of an abortion case would have been "an unconscionable act of judicial activism."1
Justice Owen's nomination is particularly disconcerting because she would serve in a circuit that has jurisdiction over states that have introduced 185 anti-choice measures in the past six years. Justice Owen has repeatedly attempted to legislate restrictions from the bench that make reproductive health care inaccessible to young women.
For example, under Texas law, a minor must inform her parent before obtaining an abortion. However, parental notification may be bypassed with the permission of a judge, if the judge considers the minor sufficiently well informed about the consequences of an abortion. Prior to her nomination to the Fifth Circuit, Justice Owen denied every bypass petition that came before her, despite both the guidelines of the Texas statute and Supreme Court rulings stating that a minor must be granted a bypass if it is in her best interests. Justice Owen has argued that the standards for judicial bypass should be more severe than those required by Texas law. She has argued that minors should have to show that they comprehend the religious issues surrounding abortion, as well as the "remorse and regret" some women have felt after an abortion. These attempts to rewrite Texas's already restrictive abortion statute to incorporate the religious beliefs of some are inappropriate and betray a judicial activist in pursuit of a predetermined outcome rather than a fair and impartial jurist.
Justice Owen's record gives every reason to believe her rewriting of abortion law to make it even more restrictive would continue were her nomination to be approved. Again, she sought to rewrite the Texas parental notification statute's criteria that require that a parental notification bypass be granted if notification "may lead" to abuse. In In re Jane Doe 3 (2000), in which a minor requested a bypass on the grounds that her father was an alcoholic who took out his anger on his children and beat his wife, Justice Owen voted to deny a remand. In her dissent, she argued that "the evidence of physical abuse of Jane Doe's mother was not so direct, clear, and positive that a trial court was required to conclude as a matter of law that if one of Jane Doe's parents were notified, then Jane Doe may be emotionally abused."\
The predominantly conservative majority of the Texas Supreme Court harshly criticized Justice Owen's reasoning noting, "[U]nder the current statutory scheme, it is highly unrealistic and inappropriate for the courts to differentiate among the perceived degrees or types of abuse that may occur or to consider whether the abuse would occur anyway so that one more instance doesn't matter. Abuse is abuse; it is neither to be trifled with nor its severity to be second guessed."3
The issues involved in these cases are not legal abstractions. They have real consequences for real people. The hurdles Justice Owen would construct for young women seeking abortions are onerous; they would make the rights embodied in Roe an unattainable ideal, rather than an accessible reality for many women, and they would subject some, like Jane Doe 3, to physical abuse. Even more disconcerting, however, is that Justice Owen oversteps her role as judge to do so. As a member of the Texas Supreme Court, it is Justice Owen's job to fairly interpret and apply Texas statutes, not write them.
Equally as troubling are several of Justice Owen's decisions in employment discrimination and environmental cases, which demonstrate a clear pattern of deference to the interests of corporations over those of ordinary citizens. In Quantum Chemical Corp. v. Toennies (2001), Justice Owen joined a dissent that would have altered the burden of proof for employment discrimination, creating a much more difficult standard. In another employment discrimination case, Justice Owen's fellow justices criticized her dissent, noting that it, "defies the Legislature's clear and express limits on our jurisdiction."4 According to the majority, judges "cannot simply ignore the legislative limits on our jurisdiction."5Similarly, in an environmental case, the majority criticized her dissent as largely "inflammatory rhetoric" because its polemics about property rights did not deal with the basic legal questions at stake.6
Justice Owen's intellect and experience are not in question. However, judges at all levels must be committed to defending the Constitution, enforcing Constitutional legislation - even legislation they do not like - including legislation protecting reproductive choice, workers' rights, and the environment, and following generally accepted rule of jurisprudence. Furthermore, the appearance of impartiality is essential to the functioning of any court. These qualities and commitments are especially crucial for a Court of Appeals judge granted a lifetime appointment.
Based on her record, Justice Owen's judicial activism and extreme views disqualify her as an appropriate candidate for the federal bench. Her personal views on abortion have compromised her ability to fairly and impartially uphold the abortion-related laws of the state of Texas; her penchant for legislating from the bench in abortion-related cases would likely serve to rollback protection of reproductive rights in the states that comprise the Fifth Circuit. Her record of favoring corporations over individuals, communities, and the environment suggests she comes to these cases with a bias or at the least a set of assumptions making it difficult for her to adjudicate impartially. Overall, the record indicates a serious propensity for misconstruing or modifying the legislation she is charged with interpreting in order to achieve a desired result.
We urge you to oppose the nomination of Justice Priscilla Owen to the United States Court of Appeals for the Fifth Circuit.
Chair, Commission on Social Action of Reform Judaism
Mark J. Pelavin
Associate Director, Religious Action Center of Reform Judaism
1 In re Doe 1(II), 19 S.W.3d 346, at 366 (Tex. 2000).
2 In re Jane Doe 3, 19 S.W.3d at 320 (Tex. 2000).
3 In re Jane Doe 3, 19 S.W.3d at 307 (Tex. 2000).
4 Collins v. Ison-Newsome, 73 S.W.3d at 182 (Tex. 2001).
5 Collins v. Ison-Newsome, 73 S.W.3d at 183 (Tex. 2001).
6 FM Properties Operating Co. v. City of Austin, 22 S.W.3d at 877-878 (Tex.2000).
The Religious Action Center of Reform Judaism is the Washington office of the Union of American Hebrew Congregations (UAHC) , whose over 900 congregations across North America encompass 1.5 million Reform Jews , and the Central Conference of American Rabbis(CCAR) whose membership includes over 1800 Reform rabbis .