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89–329 DTP 2003

S. HRG. 108–142

SETTING THE RECORD STRAIGHT: THE

NOMINATION OF JUSTICE PRISCILLA OWEN

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MARCH 13, 2003

Serial No. J–108–6

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

MAKAN DELRAHIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 11

prepared statement .......................................................................................... 144

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 34

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 41

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 181

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 188

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 23

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5

prepared statement .......................................................................................... 198

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, prepared 

statement .............................................................................................................. 241

WITNESSES 

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas ................ 9

Owen, Priscilla Richmond, Nominee to be U.S. Circuit Judge for the Fifth 

Circuit ................................................................................................................... 18

Questionnaire .................................................................................................... 71

QUESTIONS AND ANSWERS 

Responses of Priscilla Owen to questions submitted by Senator Durbin ........... 104

SUBMISSIONS FOR THE RECORD 

al.com, July 30, 2002, editorial ............................................................................... 117

Amarillo Globe-News, Amarillo, Texas: 

July 28, 2002, editorial .................................................................................... 118

September 6, 2002, editorial ............................................................................ 120

Andrade, Hope, San Antonio, Texas, letter ........................................................... 121

Armstrong, Anne, Armstrong, Texas, letter .......................................................... 122

Austin American-Statesman, Austin, Texas: 

February 12, 2001, article ................................................................................ 123

Cornyn, Hon. John, March 13, 2003, opinion ................................................. 124

Battaglia, Victor F., Attorney at Law, Biggs and Battaglia, Wilmington, Delaware, letter ........................................................................................................... 125

Beacon Journal, Akron, Ohio, July 28, 2002, editorial ......................................... 126

Bishop, E. Thomas, President, Texas Association of Defense Counsel, Inc., 

Austin, Texas, letter ............................................................................................ 127

Black, Reverend Jeffrey, Austin, Texas: 

August 23, 2002, letter to Senator Biden ....................................................... 128

August 23, 2002, letter to Senator Feingold .................................................. 129

August 23, 2002, letter to Senator Feinstein ................................................. 130

August 23, 2002, letter to Senator Kohl ......................................................... 131

August 29, 2002, letter to Senator Edwards .................................................. 132

Boston Globe, Jeff Jacoby, Boston, Massachusetts, opinion ................................ 133

Casanova, Roy V., Jr., Legislative Director, Republican National Hispanic 

Assembly, letter .................................................................................................... 135

Chicago Tribune, Chicago, Illinois: 

August 20, 2002, commentary ......................................................................... 136

August 22, 2002, commentary ......................................................................... 137

Page

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Chote, Eleanor T., Austin, Texas, letter ................................................................ 138

Chote, Richard W., Attorney at Law, Austin, Texas, letter ................................. 139

Congresswomen supporting Justice Owen, Washington, D.C., joint letter ......... 141

Corpus Christi Caller-Times, Corpus Christi, Texas: 

February 12, 2001, article ................................................................................ 148

July 26, 2002, editorial .................................................................................... 149

Dallas Morning News, Dallas, Texas: 

July 11, 2002, editorial .................................................................................... 151

Alberto Gonzales, opinion ................................................................................ 152

July 25, 2002, editorial .................................................................................... 154

Rena Pederson, editorial .................................................................................. 155

De Leon, Hector, Attorney at Law, De Leon, Boggins & Icenogle, letter ........... 157

Denver Post, Denver, Colorado, July 25, 2002, editorial ...................................... 160

Detroit News, Detroit, Michigan, July 25, 2002, editorial ................................... 161

Eagle, Bryan, Texas, September 6, 2002, editorial ............................................... 162

Emmons, William B., Attorney at Law, Emmons & Jackson, P.C., Houston, 

Texas, letter .......................................................................................................... 164

Fisher, Barbara, Austin, Texas, letter ................................................................... 166

Fisher, Rick, Austin, Texas, letter ......................................................................... 167

Florida Times-Union, Jacksonville, Florida: 

July 26, 2000, opinion ...................................................................................... 168

August 20, 2002, opinion ................................................................................. 169

Fort Worth Star-Telegram, Fort Worth, Texas: 

February 12, 2001, article ................................................................................ 171

July 28, 2002, opinion ...................................................................................... 172

Gonzales, Alberto R., Counsel to the President, The White House, Washington, D.C., letter ............................................................................................... 175

Gonzalez, Raul A., Justice, Supreme Court of Texas (retired), Austin, Texas, 

letter ...................................................................................................................... 178

Gonzalez, Raul A., and Rose Spector, Justices, Supreme Court of Texas, 

Austin, Texas, joint letter .................................................................................... 180

Hall, Hon. Ralph M., a Representative in Congress from the State of Texas, 

Washington, D.C., letter ...................................................................................... 187

Hightower, Jack, Justice, Supreme Court of Texas (retired), Austin, Texas, 

letter ...................................................................................................................... 191

Hill, John L., Chief Justice, Supreme Court of Texas (retired), Houston, 

Texas, letter .......................................................................................................... 192

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, letter ..... 194

Ivey, Jon David, Attorney at Law, Baker & Hostetler, LLP, Houston, Texas, 

letter ...................................................................................................................... 195

Jaratt, Shirley, Leander, Texas, letter ................................................................... 196

Krier, Cyndi Taylor, Vice President, Texas Government Relations, San Antonio, Texas, letter .................................................................................................. 197

Liberato, Lynne, Attorney at Law, Haynes and Boone, LLP, Houston, Texas, 

letter ...................................................................................................................... 202

Longview News-Journal, Longview, Texas, July 27, 2002, editorial ................... 203

Loyd, Edgar E., Director, Hispanic Chamber of Commerce of Greater Cincinnati, Cincinnati, Ohio, letter .......................................................................... 205

Mallory, Philip H., Round Rock, Texas, letter ...................................................... 206

Mallory, Sharon F., Round Rock, Texas, letter ..................................................... 207

Matthews, Charles W., Irving, Texas, letter ......................................................... 208

Michie, Rev. Michael W., Associate Vicar, St. Barnabas Episcopal Church, 

Cedar Park, Texas, letter .................................................................................... 209

Midland Reporter-Telegram, Midland, Texas, July 23, 2002, editorial .............. 211

Mott, Robert, Attorney at Law, Perdue, Brandon, Fiedler, Collins & Mott, 

L.L.P., Houston, Texas, letter ............................................................................. 213

Obenhaus, Stacy R., Attorney at Law, Gardere, Dallas, Texas, letter ................ 214

Oklahoman, Oklahoma City, Oklahoma, July 25, 2002, editorial ....................... 215

Olson, Lyndon L., Jr., July 17, 2002, letter ........................................................... 216

O’Reilly, Mary Sean, Conciliation Institute, Houston, Texas, letter ................... 217

Pagan, Greer H., Attorney at Law, Houston, Texas, letter .................................. 219

Painter, Richard W., Professor of Law, University of Illinois at UrbanaChampaign, Champaign, Illinois, letter ............................................................. 221

Past Presidents of the State Bar of Texas, Dallas, Texas, joint letter ................ 224

Ploeger, Lori R.E., Attorney at Law, Austin, Texas, letter .................................. 226

Podvin, F. John, Jr., Partner, Bracewell & Patterson, LLP, Dallas, Texas, 

letter ...................................................................................................................... 228

Page

V

Policyholders of America, M. Melinda Ballard, President, Austin, Texas, letter .......................................................................................................................... 229

Richmond Times-Dispatch, Ross Mackenzie, Editor, Richmond, Virginia, editorial ...................................................................................................................... 231

Robinson, Tricia J., Attorney at Law, Bracewell & Patterson, LLP, Dallas, 

Texas, letter .......................................................................................................... 233

Schlueter, Linda L., Attorney at Law, San Antonio, Texas, letter ...................... 235

Schwartz, Victor E., Attorney at Law, Shook, Hardy & Bacon L.L.P., Washington, D.C., letter ............................................................................................... 236

Sekulow, Jay Alan, Chief Counsel, American Center for Law and Justice, 

Virginia Beach, Virginia, letter ........................................................................... 240

Shapiro, Hon. Florence, Senator, Senate of the State of Texas, Austin, Texas, 

letter ...................................................................................................................... 251

Smith, Jason C.N., Attorney at Law, Fort Worth, Texas, letter .......................... 253

Tampa Tribune, Tampa, Florida, July 25, 2002, editorial ................................... 257

Texas Civil Justice League, Ralph Wayne, President and George S. Christian, 

Treasurer, Austin, Texas, letter .......................................................................... 258

Texas Justice Foundation, Allan E. Parker, Jr., CEO and Founder, San Antonio, Texas, letter .................................................................................................. 259

Trotter, Richard Clayton, Attorney at Law, San Antonio, Texas, letter ............. 260

Vaughan, Shelton M., Attorney at Law, Houston, Texas, letter ......................... 261

Wall Street Journal, New York, New York, July 22, 2002, editorial .................. 263

Washington Post, Washington, D.C., July 24, 2002, editorial ............................. 264

Willeford, Pamela P., Austin, Texas, letter ........................................................... 265

Wisconsin State Journal, Madison, Wisconsin, July 29, 2002, editorial ............. 266

Woody, Julie P., Tomball, Texas, letter ................................................................. 267 

(1)

SETTING THE RECORD STRAIGHT: THE 

NOMINATION OF JUSTICE PRISCILLA OWEN 

THURSDAY, MARCH 13, 2003

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:33 a.m., in room 

SD–106, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Chambliss, Cornyn, Leahy, Kennedy, Feinstein, Feingold, and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. We will begin. I just want to begin by speaking for all of my fellow Utahns. If you don’t believe in miracles, 

then look at Elizabeth Smart. Everybody in that State was praying 

for Elizabeth Smart, and the family has worked so hard to try and 

find her, and we are just so grateful today that she is now back 

with her family. And I just want to thank God publicly for the miracle that has occurred. We will certainly do everything in our 

power to make sure that our children are protected in this country, 

and this committee has done a pretty good job so far this year with 

the Amber Alert and the PROTECT Act that both Senator Leahy 

and I have worked very closely together on, as have other members 

of this committee. 

I just want to express my gratitude for this wonderful miracle 

and the answer to prayers of not just Utahns. I know there are 

people all over this country praying for these little girls that are 

abducted. 

Senator LEAHY. Mr. Chairman, would you yield on that? 

Chairman HATCH. I would be happy to yield. 

Senator LEAHY. I want to join you in that. I know you and I had 

a lot of private discussions during that time. You were keeping me 

posted on everything from the discussion of the neighborhood and 

the people. I know how deeply you felt that, both as a person and 

as a Utahn. My former colleague who was elected the same year 

as I was, Jake Garn, talked to me about it. And as you know, I 

told you that we Vermonters half a continent away joined in your 

prayers for her safety. The thrill that everybody in my family felt 

in seeing something, and I must admit that I had this terrible fear 

that we would never see her alive. It is wonderful. I know Senator 

Hutchison is coming here, and she and Senator Feinstein and you 

and I worked—we passed, in record time, the Amber Alert bill last 

2

year. The House leadership decided not to bring it up. We passed 

it again this year. I hope they will bring it up. I know you and I 

will work with them. 

But I just want to join in saying what a wonderful day it is for 

your State and for the Smart family, and the prayers of, I think, 

every single Member of the Congress but many millions of Americans have been answered. And in my faith, we do believe in miracles, and this has to be one. 

Chairman HATCH. Well, thank you, and I just want to compliment the Smart family for their never giving up. They always 

believed she was alive. They did everything they possibly could, 

and more. I think they set an example for all of us in this country, 

and that family deserves a lot of credit. And I just am so grateful 

this morning, I just had to express that. 

Well, we will begin our hearing. Good morning. Welcome to the 

hearing on the nomination of Justice Priscilla Owen of Texas to the 

U.S. Court of Appeals for the Fifth Circuit. 

Justice Owen, we want to welcome you again before the committee. A lot of people have been looking forward to this committee’s reconsideration of your nomination. People in my home State 

of Utah have flooded my office with phone calls and letters and emails in support, and I have heard from quite a few folks from 

Texas and elsewhere across the country as well. 

Now, I called this hearing because I believe Justice Owen’s treatment in this committee last September was unfair, unfounded, and, 

frankly, in my opinion, a disgrace to the Senate. As several of the 

members who voted against her admitted, Justice Owen is a tremendously intelligent, talented, and well-credentialed nominee. 

She earned the American Bar Association’s highest rating, unanimously well qualified, and was the first person with that rating 

ever voted down by this committee. She is also an honest, decent, 

fair, principled, and compassionate human being and jurist whose 

service on the Fifth Circuit would be a great benefit to that court 

and our country. I believe she should have been confirmed last 

year, and she hopefully will be confirmed this year. 

I have made these views clear several times, so it should come 

as no surprise that after the American voters returned the Senate 

to the Republicans, and, therefore, the chairmanship of this committee to me, that this committee will now begin setting straight 

what we consider to be the mistake it made by halting this nomination in the committee last fall. 

Now, we will have a hearing, we will have a vote in committee, 

and we will give the full Senate an opportunity to vote on this 

nominee. It is important to note that the committee vote last year 

was a straight party-line vote which denied the rest of the Senators 

an ability to vote on Justice Owen. 

Let me be clear about one other thing: I personally do not believe 

that Justice Owen needs another hearing. Justice Owen gave complete and appropriate answers to all questions last time. Senator 

Feinstein, who presided at last year’s hearing, was entirely fair and 

appropriate in that role. As Senator Leahy said before the committee vote, ‘‘Those who have had concerns have raised them and 

have heard the nominee’s responses. To her credit, she has met priVerDate 0ct 09 2002 15:36 Oct 09, 2003 Jkt 089329 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89329.TXT SJUD4 PsN: CMORC
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vately with those who have had concerns, as well as her public testimony, and has answered the followup questions.’’

I agree that Justice Owen has answered all relevant questions, 

and then some, and has provided this committee with all the information it needs. She is a model witness, in my opinion, one of the 

very best this committee has ever had the honor of considering. 

Now, this hearing is certainly not a do-over for Justice Owen. It is 

an encore. 

For the committee, this hearing is about remedying the wrongful 

treatment provided to Justice Owen. I don’t say this to offend any 

member of this committee. My colleagues, I think they all know 

that I have deep personal respect and friendship for each one of 

them. And I know they voted according to their best judgment at 

the time. Nevertheless, as I reviewed the transcript of Justice 

Owen’s last hearing and read her answers to written followup 

questions, and then reviewed the comments made at the markup 

debate, I was struck at the pervasive way in which Justice Owen’s 

answers were almost totally ignored. The same accusations made 

by members at her hearing were repeated at the markup as if Justice Owen’s answers did not even exist, as if she was never even 

before the committee. 

Let me just give a couple of examples. There are too many to 

cover them all. 

At the hearing, Justice Owen was accused of needlessly delaying 

an opinion in the case of Ford v. Miles, the Willie Searcy case, and 

it was alleged that the young man died waiting for Justice Owen’s 

opinion. Justice Owen clarified that Mr. Searcy passed away 3 

years after the Texas Supreme Court’s decision. But the same false 

allegation was raised and repeated at the markup as if Justice 

Owen had never given this committee the correct facts. 

At the hearing, Justice Owen was accused of ruling against abortion rights in cases involving Texas’ parental notification law. Justice Owen clarified that the notification statute, and, therefore, her 

written opinions, concerned only the law that girls younger than 18 

tell one of their parents. The right of those girls to obtain abortions 

was never questioned by the law or by Justice Owen. Yet, as if she 

had never appeared before the committee, one member of the committee stated during the markup debate that Justice Owen is ‘‘frequently in dissent from rulings of the Texas Court majority sustaining a young woman’s right to have an abortion.’’ That is simply 

a misstatement of the facts. 

Also at the hearing, Justice Owen was accused of not finding in 

favor of any plaintiffs or consumers, as if a good judge would simply hand out half of her decisions to plaintiffs and half to defendants in a display of ends-oriented activism, rather than look to the 

law upon which both sides based their arguments. Justice Owen 

listed a number of cases in which, based on the law, she had ruled 

on the side of individual plaintiffs, including GTE v. Bruce, a case 

affirming a $275,000 jury verdict in favor of female victims of sexual harassment. But at the markup, several members repeated the 

allegation as though her testimony and answers to followup questions had been written in invisible ink. 

In her written questions, Justice Owen was asked about her dissent in the case of Weiner v. Wasson, the charge being made that 

4

the majority opinion has ‘‘lectured’’ Justice Owen about the importance of following precedent. Justice Owen pointed out in a cogent 

written response that the majority was, in fact, responding to an 

argument made by the defendant that a prior Texas Supreme 

Court decision should be overturned. At the markup, the very same 

charge was repeated, as though Justice Owen had entered a guilty 

plea previously. 

There are several other examples, including the fact that Judge 

Gonzales’ oft-repeated comment was not directed at Justice Owen, 

that I just do not want to take the time to get into. But this pattern of ignoring answers is exactly what happened to Justice Owen. 

So although we are not beginning anew to review this nomination, and there is no reason simply to rehash old and answered allegations, I nevertheless hope and expect committee members, and 

especially those who voted against her, to come to this hearing 

with a fresh mind and with a genuine willingness to listen, to consider, and to think again on this matter. 

We are quite fortunate to have with us today Senator Cornyn, 

and I understand that Senator Hutchison, who is at the Commerce 

Committee right now, will come very soon, whose support for Justice Owen’s nomination is as well known as it is well deserved. 

Texas could not have two finer and more effective publici servants 

in the Senate. Senator Hutchison has worked tirelessly over the 

past 2 years to make sure our colleagues know the facts about Justice Owen’s distinguished career, service to Texas, and perhaps 

most importantly, Justice Owen’s high personal integrity, fairness, 

and commitment to equal justice under the law. 

Senator Cornyn, although new to the Senate, is certainly not a 

newcomer to this nomination. He is certainly a member of this 

committee. He is not a newcomer to Justice Owen or to several of 

the issues that were misunderstood or misconstrued as part of the 

effort to halt this nomination in committee last fall. Indeed, Senator Cornyn knows many of these issues better than any member 

of this committee ever could. Senator Cornyn brings a unique and 

compelling perspective on Justice Owen’s nomination, having 

served side by side with Justice Owen as a colleague on the Texas 

Supreme Court. He examined many of the same legal issues and 

knows how she approached them. He knows how judges go about 

their work. Senator Cornyn understands that judges are called 

upon to render their very best judgment in frequently difficult and 

close cases and that sometimes judges will have legitimate differences of opinion among themselves and express themselves accordingly. 

I find it particularly significant that Senator Cornyn supports 

Justice Owen, even though they did not always agree on the bench. 

His support is based on how Justice Owen goes about the job of 

being a judge, not on whether she reaches the same outcome that 

he would. 

Now, I urge all of my colleagues to think this way. Any attempt 

to emphasize the points on which Senator Cornyn and Justice 

Owen disagree I think will backfire. It only proves the point better. 

So Senator Cornyn’s endorsement of Justice Owen has extraordinary credibility to me and should, by itself, provide members of 

this committee with a fresh view of this nomination. 

5

So I am looking forward to hearing from the Texas Senators and 

from Justice Owen. And I am optimistically looking forward to evidence of renewed open-mindedness from my colleagues. With that 

hope, I will turn to our ranking member for any statement he 

would like to make at this point. Senator Leahy? 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I do have an opening 

statement. 

I welcome the nominee and Senator Cornyn here. We are meeting in an unprecedented session to consider the renomination of 

Priscilla Owen to the U.S. Court of Appeals to the Fifth Circuit. 

Never before—i say it is unprecedented because never before has 

a President resubmitted a circuit court nominee already rejected by 

the Senate Judiciary Committee for the same vacancy. So we proceed to grant Justice Owen a second hearing even though we did 

not allow either Enrique Moreno or Judge Jorge Rangel, both distinguished Texans nominated to the Fifth Circuit, any hearings at 

all when they were nominated by President Clinton to the same 

Fifth circuit vacancy. 

I would just mention two Texans nominated to that by President 

Clinton, they weren’t even given a hearing. So, Justice Owen, you 

are getting two hearings, maybe one for each of the ones who were 

never allowed to have a hearing by the Republicans. 

This nominee was fairly and thoroughly considered after a hearing only 8 months ago. It was an extended session that was chaired 

very ably and fairly by Senator Feinstein. Justice Owen’s earlier 

nomination was fairly and thoroughly debated in an extended business meeting of the committee, during which every Senator serving 

on this committee had the opportunity to discuss his or her views 

of the nominee’s fitness for the bench. 

Incidentally, that meeting was delayed. I had set the hearing at 

a date requested by the President. I assumed he meant June, and 

then earlier in that week, he said he wanted his good friend, Patricia Owen, to have a hearing. I assumed he meant Priscilla Owen 

because he was speaking of the Texas thing, and I put you on for 

a hearing—I mean for a vote that Thursday. The White House, 

however, decided that wasn’t a good idea and wanted, notwithstanding the request of the President, to put it off for 5 or 6 weeks, 

and so we did, following the rules of the committee. 

Now, unlike the scores of Clinton nominations on which Republicans were not willing to hold a hearing or committee vote or explain why they were being opposed, Justice Owen’s earlier nomination was treated fairly in a process that resulted in a committee 

vote in accordance with committee rules that resulted in the nomination’s defeat last year. 

Unfortunately, the chairman has not scheduled a second hearing 

for Judge Deborah Cook or John Roberts, two nominees whose 

hearings did not give Senators an adequate opportunity to question 

them. These were controversial nominees who were shoe-horned 

into a hearing earlier this year that was plainly too crowded to be 

a genuine forum for determining their fitness for lifetime appointments to Federal appellate courts. Democratic members have asked 

6

many times that the incomplete hearing record for those nominees 

be completed, but those requests have been rebuffed. And that is 

a shame. But that error I believe was compounded by truncated 

committee consideration when the chairman insisted on proceeding 

in total and complete violation of Rule IV of this committee and before there was bipartisan agreement to conclude debate on the 

nominations, something that—a rule followed by every chairman I 

have known here—Senator Kennedy, Senator Thurmond, Senator 

Biden—but it was violated starting this year. 

Now, for Justice Priscilla Owen, there will be a second hearing. 

I emphasize the various procedural steps followed by the committee 

on Justice Owen’s nomination in the Democratic-led 107th Senate 

to contrast them with the treatment of President Clinton’s nominees to this very seat during the previous period of Republican control of the Senate. During that time, two very talented, very deserving nominees were shabbily treated by the Senate. Judge Jorge 

Rangel, a distinguished Hispanic attorney from Corpus Christi, 

was the first to be nominated to fill that vacancy. Despite his qualifications, and his highest rating by the ABA, Judge Rangel never 

even had a hearing. It wasn’t a case of voting him down. He was 

never even given a hearing from the committee. And after he had 

waited for 15 months and it was obvious that the Republicans 

weren’t even going to allow him to have a hearing, to say nothing 

about a vote, he withdrew his candidacy. 

And so then President Clinton nominated Enrique Moreno, another outstanding Hispanic attorney, a Harvard graduate, and a recipient of the highest rating, in fact, unanimous rating by the ABA 

to fill the same vacancy. He probably should have saved his time 

because Mr. Moreno did not receive a hearing on his nomination 

from a Republican-controlled Senate during the 17 months. He 

waited and waited and waited. It wasn’t a case he was voted down 

by the committee. He wasn’t even allowed to have a hearing. And, 

finally, President Bush withdrew the nomination of Enrique 

Moreno and substituted Justice Owen’s name in its place. 

Actually, it was not until May of last year, at a hearing chaired 

by Senator Schumer, that this committee heard from any of President Clinton’s Texas nominees to the Fifth Circuit, when Mr. 

Moreno and Judge Rangel testified, along with a number of other 

Clinton nominees, about their treatment by the Republican majority and disclosed some of the machinations that went on at that 

time. Thus, Justice Owen is the third nominee to the vacancy created when judge William Garwood took senior status so many 

years ago, but even though she is the third nominee, she is the 

only that has been allowed a hearing. 

So let me remind the committee, the Senate, and the American 

people how this committee came to have a hearing last year on this 

controversial nomination. Democratic leadership of the committee 

began in the summer of 2001. Within 10 minutes after taking the 

leadership, I announced hearings on President Bush’s judicial 

nominations. We made some significant progress in helping fill vacancies during those difficult months in 2001, and we proceeded at 

a rate about twice as productive as that averaged by Republicans 

in the prior 6 and a half years. As we began 2002, I went before 

the Senate to offer a formula for continued progress so long as it 

7

was balanced bipartisan progress. I made some modest suggestions 

to the Bush administration, none of which were adopted. But even 

though they didn’t, to demonstrate good faith I committed to hold 

hearings on a group of President Bush’s most controversial circuit 

court nominees that year. I did this even though our offers were 

totally ignored by the White House, offers made in good faith, not 

really even responded to. We continued forward. 

I not only fulfilled that pledge to hold hearings on Justice Owen, 

among others; by the end of the year I had made sure that the Senate Judiciary Committee had held hearings on more than twice as 

many controversial circuit nominees as I had originally announced, 

notwithstanding the silence from the White House. We proceeded 

with hearings and votes on Judge Charles Pickering at the request 

of Senator Lott, Judge D. Brooks Smith at the request of Senator 

Specter, and Judge Dennis Shedd at the request of Senator Thurmond. These were in addition to my January announcement with 

respect to Justice Owen, Professor McConnell, and Mr. Estrada. 

During my 17 months as chairman, we proceeded expeditiously but 

fairly to consider more than 100 of President Bush’s judicial nominees despite what was an increasing lack of comity and cooperation 

from the White House. 

But fairness and fair consideration apparently are not enough. 

Proceeding almost twice as productively as Republicans did for 

President Clinton, and even though we did it without White House 

cooperation, this counted for nothing. The President remains intent 

on packing the Federal courts and Senate Republicans equally intent on making sure that this scheme succeeds no matter what 

Senate rules and traditions and precedents need to be overruled or 

ignore. 

In examining Justice Owen’s record in preparation for her first 

hearing and now again in preparation for today, I remain convinced that her record shows that in case after case involving a variety of legal issues, she is a judicial activist, willing to make law 

from the bench rather than follow the language and intent of the 

legislature. Her record of activism shows she is willing to adapt the 

law to her results-oriented ideological agenda. 

I expect that Senators on the other side will try to recast and rehabilitate Justice Owen’s record. I assume that is what the chairman meant by the title of this hearing. I hope he did not mean to 

suggest that Senator Feinstein was unfair or that Senators on this 

committee did not proceed fairly to debate and vote on the nomination last year. We did see a recent occasion when a judicial nominee was ambushed on issues on which there was not notice or thorough information or debate, and that nomination was defeated by 

a party-line vote on the floor of the Senate, even voted against by 

Senators who had voted for him in this committee. I am referring, 

of course, not to Justice Owen but of the first African American to 

serve on the Missouri Supreme Court, Justice Ronnie White. 

Now, I hope the hearing is not a setting for some to read talking 

points off the Department of Justice website or argue there is some 

grand conspiracy to block all of President Bush’s judicial nominees. 

I believe we just voted on one of his nominees on the floor. The consensus nominees are considered expeditiously and confirmed with 

near unanimity. The nominees selected to impose a narrow ideVerDate 0ct 09 2002 15:36 Oct 09, 2003 Jkt 089329 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89329.TXT SJUD4 PsN: CMORC
8

ology on the Federal courts remain controversial and some are 

being opposed. Were the administration and the Republican leadership to observe our traditional practices and protocols and not 

break our rules and seek every advantage from the obstruction of 

Clinton nominees to circuit courts over the last several years, we 

would be making a lot more progress. 

Facts are stubborn. They don’t change. Written opinions and 

prior testimony under oath are difficult to overcome. This nominee 

was examined very carefully a few months ago and rejected by this 

committee. To force it through the committee now based only on 

the shift in the majority would not establish that the committee 

reached the wrong determination last year, but that the process 

has been taken over by partisanship this year. 

No one can change the facts that emerge from a careful reading 

of Justice Owen’s dissents in cases involving a Texas law providing 

for a judicial bypass of parental notification requirements for minors seeking abortions. Those who suggest that she was just showing deference to the U.S. Supreme Court cannot change the fact 

that what she purported to rely on in those cases just is not there. 

The Supreme Court did not say what she claims it said. 

Neither will they change the facts about her activism in a variety 

of other cases where he record shows a bias in favor of government 

secrecy and business interests, and against the environment, victims of discrimination, and medical malpractice. In these cases she 

ruled or voted against individual plaintiffs time and time again, 

earning deserve criticism from her colleagues on what is a very 

conservative Texas Supreme Court. 

To give a sampling of that criticism that no amount of argument 

can change, members of the Texas Supreme Court majority: One, 

have called Justice Owen’s views ‘‘nothing more than inflammatory 

rhetoric.’’ They have lectured dissents she was part of on the importance of stare decisis. They have said that her ‘‘dissenting opinion’s misconception...stems from its disregard of the procedural elements the Legislature established,’’ and that her ‘‘dissenting opinion not only disregards the procedural limitations in the statute 

but takes a position even more extreme than that argued for’’ by 

the appellant. And then they said that to construe the law as she 

did ‘‘would be an unconscionable act of judicial activism.’’

Now, as I said, despite the mistreatment of President Clinton’s 

judicial nominees, including two in this circuit—actually, several in 

this circuit—the Democratic-led Senate of the 107th Congress 

showed good faith in fairly and promptly acting to confirm 100 of 

President Bush’s judicial nominees. The Senate is now contending 

over several of President Bush’s controversial nominations. At the 

same time we are continuing to vote nearly unanimously for consensus nominees that President Bush has sent up here. The process starts with the President. He can sow contention or end it. He 

said he wanted to be a uniter and not a divider, something I would 

like to see in this country, and I hope someday he will be. But so 

far he has sent this nomination to the Senate, which divides the 

Senate, which divides the American people, and which even divides 

Texans, according to letters I have received. 

The President has said he does not want what he calls activist 

judges. I don’t want any President, Democratic or Republican, to 

9

have activist judges. But then, Justice Owen, by the President’s 

own definition, is an activist judge whose record shows her to be 

out of the mainstream even of the conservative Texas Supreme 

Court. 

In my opening statement at Justice Owen’s original hearing last 

July, I said that the question each Senator on this committee 

would be asking himself or herself as we proceeded was whether 

this judicial nominee met the standards we require for any lifetime 

appointment to the Federal course. I believe that question has been 

answers. 

Thank you, Mr. Chairman. Always good to be here with you. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Hutchison. Welcome to the committee. 

We are glad to have you here and we look forward to hearing what 

you have to say. 

STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator HUTCHISON. Thank you, Mr. Chairman. I am very 

pleased to be here again to introduce our Supreme Court Justice 

Priscilla Owen, an 8-year veteran on our Texas Supreme Court. 

Justice Owen’s career started when she graduated cum laude 

from Baylor Law School in 1977 and made the highest grade on the 

State bar exam that year. Before her election to the Texas Supreme 

Court in 1994, she was a partner in a Texas law firm, a major one, 

where she practiced commercial litigation for 17 years. 

In 2000, Justice Owen was re-elected to the Supreme Court with 

an 84-percent vote. In fact, she was endorsed by every major newspaper in Texas during her successful re-election bid. We have a supremely qualified judge. 

Justice Owen enjoys bipartisan support. The ABA Standing Committee on the Federal Judiciary voted her unanimously well qualified. To merit this ranking, the ABA requires that the nominee be 

at the top of the legal profession in his or her legal community, 

have outstanding legal ability, breadth of experience, the highest 

reputation for integrity, and either have demonstrated or exhibited 

the capacity for judicial temperament. 

The Dallas Morning News called her record one of accomplishment and integrity. The Houston Chronicle wrote that she has the 

proper balance of judicial experience, solid legal scholarship, and 

real-world know-how. 

But despite the fact that she is a well-respected judge who has 

received high praise, her nomination has been targeted by special 

interest groups. Justice Owen’s views have been mischaracterized 

and her opinions have been distorted. Today, this committee and 

Justice Owen once again have an opportunity to set the record 

straight. 

In Texas, we have statewide elections for judges. Whether we approve of that system or not, it is the current law in Texas. Priscilla 

Owen has been a leader trying to reform the way judges are elected 

in our State. During her 2000 campaign, Priscilla Owen set a new 

standard, imposing voluntary limits on herself, which included taking no more than $5,000 per individual and spouse and not more 

than $30,000 per law firm. Over half of her total contributions 

10

were from non-lawyers. After not facing a major opponent in 2000, 

she returned over a third of her remaining contributions to her contributors. 

Let me read the words of former Texas Supreme Court Justice, 

Chief Justice John Hill, a Democrat, denouncing the mischaracterization of Priscilla Owen’s record by outside special interest 

groups. ‘‘Their attacks on Justice Owen in particular are breathtakingly dishonest, ignoring her long-held commitment to reform 

and grossly distorting her rulings. Tellingly, the groups made no effort to assess whether her decisions are legally sound.’’

Justice Hill goes on to say, ‘‘I know Texas politics and can clearly 

say these assaults on Justice Owen’s record are false, misleading, 

and deliberate distortions.’’

Justice Hill also was elected Attorney General of Texas as a 

Democrat. 

Priscilla Owen is an exemplary judge. One issue that has already 

been mentioned here and will come up again, I am sure, involves 

the Texas parental notification statute. I believe Justice Owen has 

demonstrated that she is a judge who follows the law, and in this 

line of cases, she has consistently applied Supreme Court precedent 

to help interpret uncertainty in the statute. I hope my colleagues 

will see that her methods of statutory interpretation are sound. 

Mr. Chairman, I also just want to say on a personal note that 

Priscilla Owen has had one of the roughest rides that I have seen 

for a nominee to a circuit court bench or a district court bench. And 

I think you have seen her judicial temperament in the way she has 

handled the attacks, the very strong and tough questioning. She 

has handled herself with aplomb. She has always given very sound, 

detailed answers. In fact, several people have mentioned to me, 

after hearing her last performance before this committee, that they 

have never seen in any nominee such an outstanding performance 

by a nominee. 

I think the way she has handled the wait since May the 9th of 

2001 and the handling of this nomination by this committee show 

her even more so to be the outstanding qualified judge that should 

receive confirmation today in this committee and in a very short 

order by the U.S. Senate. And I truly hope that people will give her 

a fresh look if they were against her in this committee before, and 

I truly hope that they will see her outstanding qualities and give 

her a chance. I hope her nomination will not be filibustered. She 

deserves a vote, and she deserves a positive vote. And I am proud 

to be here to support Justice Priscilla Owen of Texas for the Fifth 

Circuit. 

Thank you. 

Chairman HATCH. Thank you, Senator. We sure appreciate your 

being here, and I appreciate your testimony. 

Senator LEAHY. Mr. Chairman, just at that point while Senator 

Hutchison is here, before Senator Hutchison came, I noted two 

things. One, she has been a strong and consistent and even passionate supporter of Justice Owen. You should know that even 

talking about those who have supported you and those who have 

opposed you, there is a great respect we have for Senator 

Hutchison and we have listened. But also I just wanted—we were 

praising you and Senator Feinstein and Senator Hatch for work on 

11

the Amber Alert. As you know, when I was chairing the committee, 

we whipped it through last year, got it passed in the Senate, and 

unfortunately the leadership in the other body decided not to bring 

it up, and this year Senator Hatch as chairman and with my support put it through. And, again, you got a unanimous vote. Every 

single Senator who was on the floor that day—there were a few absent because of illness or whatever. But every Senator who was on 

the floor voted with him and we sent it over. And I just hope now 

that the leadership on the other side will allow it to go forward, 

but you deserve an enormous amount of credit for that. 

Senator HUTCHISON. Mr. Chairman, if I could just respond and 

say that Senator Feinstein and I, of course, introduced the Amber 

Alert bill because of several high-profile abductions in Senator 

Feinstein’s State and the abduction of Elizabeth Smart from the 

chairman’s home State. And I couldn’t ask for a better record of the 

Judiciary Committee under both you, Senator Leahy, and you, Senator Hatch, in moving that bill through. It is without a doubt the 

most easy bill that should ever pass our Congress, and I hope so 

much that it will be passed very soon. 

And I want to say that I talked to Ed Smart this morning, and 

the passion in him for passing Amber Alert, I mean, that man is 

the happiest man on Earth today. But he also is passionate to try 

to help other parents that might ever go through the ordeal that 

he and Lois Smart have to keep them from having to do that. And 

he knows the Amber Alert is the very best tool we have to help find 

an abducted child quickly. 

So I just want to thank you, thank you, Senator Hatch, and Senator Feinstein, for all that the three of you have done on the Amber 

Alert bill. And it is my hope and Ed Smart’s fervent wish that that 

bill will pass the House very shortly and go to the President, when 

we can have a wonderful celebration that every parent will have 

the best chance. 

Thank you. 

Chairman HATCH. Thank you so much. We appreciate that, and 

I personally appreciate both you and Senator Feinstein. Without 

the two of you, that would not have gone through the Senate as 

quickly as it did, and I sure appreciate my colleague and the work 

that he did when he was chairman. We are just really happy to get 

that going. And I did chat with our chairman in the House, and 

they fully intend to see that that is passed. They are trying to put 

it with other children’s bills to get them all passed at one time. But 

he does realize the importance of this, and it is because of the work 

of you two great women Senators that this bill is going to become 

law. So I am personally appreciative. 

Senator Cornyn, we will turn to you now. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. It is my——

Chairman HATCH. And, Senator, I just want to say I am personally looking forward to your testimony because you served on the 

Supreme Court with Justice Owen, and I can’t imagine a better authority on Justice Owen’s capabilities and qualifications. 

12

Senator CORNYN. Well, thank you, Mr. Chairman. It is my pleasure to be here and to join my colleague, Senator Hutchison, in introducing a find and exceptional nominee to the Fifth Circuit Court 

of Appeals, Justice Priscilla Owen. 

Senator Hutchison has done a great job of talking about Justice 

Owen’s background and experiences and her exceptional credentials for the Federal bench, and I, needless to say, wholeheartedly 

agree with those fine comments. 

I discussed Justice Owen’s qualifications for the Federal bench in 

an op-ed that was published this morning in the Austin AmericanStatesman, and, Mr. Chairman, I would ask the committee for 

unanimous consent that that op-ed be included as part of the 

record and my remarks. 

Chairman HATCH. Without objection, we will put it in the record. 

[The article appears as a submission for the record.] 

Senator CORNYN. Thank you. 

I would like to spend a few moments, though, talking, as you 

suggested, from a different point of view, a personal perspective, as 

somebody who has served on the Texas Supreme Court with Justice Owen, because I think that perhaps will provide a fresh look 

and a different point of view that may be of some assistance to 

those Senators who previously had decided to vote against Justice 

Owen. 

Having been a judge for 13 years, I know as a judge or as a Senator, all of us are reluctant to revisit our earlier decisions. But, in 

fact, in the judicial process, as you know, there is an opportunity 

to seek a rehearing or reconsideration in those rare instances 

where perhaps a mistake was made. And I am not suggesting a 

mistake by the Senators in their vote, but a mistake in the characterization of this fine individual who I believe is highly qualified 

by virtue of her training and experience and temperament to serve 

in this very important judicial position. 

As you said, Senator, Justice Owen and I served together for 3 

years on the Texas Supreme Court. I had been on the court for 

about 4 years when she joined the court in January 1995. And then 

I resigned from the court in October 1997 to run for Attorney General. But during those 3 years, I had the privilege of working closely with Justice Owen. During those 3 years, I had the opportunity 

to observe on a daily basis precisely how she works, how she 

thinks, how she addresses the challenge and the job of judging in 

literally hundreds, if not thousands of cases. And during those 3 

years, I spoke with Justice Owen on countless occasions and debated with her, and, yes, even disagreed with her on how to interpret statutes and how to try our very best to uphold the oath that 

we take when we assume the robe as a judge, and that is to read 

statutes faithfully and carefully and to decide cases based on what 

the law says and not on how we personally would like to see the 

case come out. 

One of the most important elements, I think, that goes into considering whether somebody is qualified to be a judge is how they—

their integrity and their fidelity to the role of a judge, because, of 

course, it is so much different, it is fundamentally different from 

the role that we as Senators have, which is to make decisions 

based on the results we would like to see happen. But judges, of 

13

course, have a different role, and it is their integrity and fidelity 

to the role of judge, not to results, that I think distinguishes a good 

judge and distinguished Justice Owen. 

I saw her take careful not and literally pull down the law books 

herself and study them very, very closely. And I saw how hard she 

works to faithfully interpret and apply the law that the Texas Legislature has written and the precedents that had been handed 

down by higher courts or at earlier times by that same court. And 

I can tell you from my personal experience as her colleague and a 

fellow Justice that Justice Owen is an exceptional judge. She is a 

judge who works hard to follow the law and to enforce the will of 

the legislature—not her will, the will of a lawmaker. 

Not once did I see her try to pursue a political or some personal 

agenda at the expense of faithful adherence to the rule of law. To 

the contrary, I can testify that Justice Owen feels very strongly, as 

do I, that judges are called upon not to be a legislator or a politicians but as judges to faithfully read statutes and interpret and 

apply them faithfully in the cases that come before the court. 

One of the things I just have to say is that judges, unlike members of the legislature, don’t have a choice. When a case comes before the court, when the courts assume jurisdiction of the case, you 

can’t run, you can’t hide. You have got to decide the case. And it 

may not have come to you in the posture that you would have 

liked. That may be because of the standards of judicial review or 

the deference that we pay to jury determinations of facts that the 

judge is left with the bare application of a statute or some precedent, to a record that that judge cannot change, even if they might 

like to. And so that is why I say that it is not results-oriented judging that we ought to applaud, but the kind of judging that Justice 

Owen engaged in day in and day out on that court, which was 

faithful adherence to the rule of law. 

I want to also take just a moment to reflect on my own experiences on the Texas Supreme Court and to talk just a moment more 

about what I believe it means to be a judge. 

I believe that people change when they put their hand on the 

Bible and they take an oath to perform the job that our Constitution gives judges. I believe that with all my heart and soul because 

I saw it in myself and I see it in people who leave the private practice of law, like Justice Owen did after 17 years as an advocate, 

but then assume that solemn responsibility and take an oath, so 

help me God, to discharge the duty of a judge—a far different role 

from that of an advocate in court, but a solemn responsibility and 

a solemn oath that I know that she takes, as all good judges do, 

very seriously. 

Of course, being a Senator, like being an advocate, means you 

are free to express your personal views or the views of your client 

on a whole range of subjects and controversial issues. That is what 

we do. One Senator yesterday said you can’t serve in the Senate 

without casting controversial votes, unless you want to hide under 

your desk. But then, of course, you would not be doing what the 

people of our States have sent us here to do. But, of course, being 

a judge is exactly the opposite, and I know Senator Feinstein has 

mentioned to me of her own watching—I believe it is her daughter 

who has become a judge and the transformation that she saw in 

14

her own daughter and how she approached that awesome responsibility. 

Of course, a judge’s personal political beliefs must have no bearing on the job of a judge. Of course, that is in a way the same role 

we ask jurors to play. I can tell you, during the 6 years that I was 

a trial judge, I read charges to the jury that said you have got to 

be able to set aside your preconceived notions and opinions and decide this case based only on the facts as you hear them in this 

court. And so we ask lay jurors to do that, and we ask judges to 

do the same thing when it comes to faithfully applying the rule of 

law. 

And, of course, that is why, one reason why Justices who come 

to the Congress to listen to the President’s State of the Union address don’t applaud. They don’t show approval. They don’t boo. 

They don’t show disagreement. They make no expression whatsoever because their job, of course, is not to advocate politics or personal agendas. Instead, their job is to neutrally and faithfully interpret the law as written by others—and it is not always easy—by 

those who have stated their political views through the process of 

enacting laws. 

It has been pointed out that other judges sometimes disagreed 

with Justice Owen, and that is perfectly normal and, indeed, it’s 

healthy. And, yes, I disagreed with Justice Owen on occasion, and 

she with me. That is precisely why we have established throughout 

this country State Supreme Courts and Federal courts of appeals 

with more than one judge, so we can have the free exchange and 

the lively debate and the intellectual exchange on important issues 

that come before the court. And, yes, then we have to have a vote 

and then a final resolution of the matter. 

When judges disagree, that is no badge of dishonor. That is simply what the job of judging is. 

And, Mr. Chairman, I hate to see people like Justice Owen who 

have diligently and faithfully not imposed their views about what 

the result should be, but faithfully interpreted and enforced the 

law as written, criticized and basically disadvantaged in the public 

eye because they are just doing the job that they took an oath to 

do. 

Some have suggested that when judges disagree that is a sign 

that at least one of the judges are behaving politically. That is nonsense. A State’s highest court, like the Texas Supreme Court, like 

the U.S. Supreme Court, any court of last resort, gets the most 

challenging and the most difficult cases in our legal system. The 

vast majority of the cases in our legal system are pretty easy, pretty easily decided on the law, and those cases, of course, are handled by lower courts. But in some cases, a statute is not clear, the 

case is so hard, that we ask judges at our highest level of our judiciary to try to interpret them faithfully. 

And let me just say here that I know there have been instances 

that different members of this committee have mentioned today 

and at other times at previous hearings where they feel that they 

disagree with Justice Owen’s decision in that case. But I just think 

it is fair—fairness dictates that this one or two or three or handful 

of cases be put in context. Justice Owen knows, as I do, that the 

number of cases that the Texas Supreme Court decides is just a 

15

fraction of the cases that go to court in Texas each year. It is a 

court of discretionary jurisdiction, and last time I looked at it, it 

was only about 10 percent of the cases that go to the court of appeals actually are considered and determined by the Texas Supreme Court. So fairness dictates that these few cases where I 

think there is a perfectly good explanation for her position on those 

cases, but, nevertheless, I believe it is important that those be put 

in context. They represent just a thimble-full compared to the 

ocean of cases that she has decided as a judge and that are litigated on a daily basis in our courts. 

Let me just mention one case where a statute was not clear and 

where judges had to work hard to try to figure out how best to read 

the statute and to faithfully apply the law, and that is a case that 

is frequently taught in law schools to demonstrate the difficulties 

of construing complex statutes and laws. It is a famous U.S. Supreme Court case which, believe it or not, required Justices to determine whether a tomato is a fruit or a vegetable. A hotly contested political issue, I assume, to some observers. But, in fact, it 

was an important question to be decided for purposes of applying 

Federal tariff law. 

Now, I suppose as a matter of science that, botanically speaking, 

a tomato is a fruit. But in common parlance, a tomato is a vegetable. Yet it was unclear based on the text of the Federal tariff law 

what meaning was intended by the legislature when it used the 

terms ‘‘fruit’’ and ‘‘vegetable.’’

Now, believe it or not, judges have to debate these issues. They 

have to figure out what the legislature actually meant when they 

used the term in order to do their job. Not surprisingly, in difficult 

cases judges disagree. 

Now, that doesn’t mean that judges are being political when they 

disagree. Indeed, there is nothing political about whether a tomato 

is a fruit or a vegetable. But it just good-faith judging and a goodfaith interpretation of law, and that is precisely why we need good 

judges who will make those decisions, who will apply the law as 

written by the legislatures, as Justice Owen in my experience did 

and does. 

I mention this tomato case in particular because it has a direct 

bearing, believe it or not, on our discussion of Justice Owen. In a 

previous hearing, a number of Senators brought up the fact that 

Justice Owen and I disagreed about one particular case. I had just 

about forgotten about it until I was refreshed by reading Sonnier

v. Chisholm-Ryder Company, and I hope I pronounced that correctly. I do not think it would be fair to attack either Justice Owen 

or me about how we decided the case, even though we disagreed 

on how best to read the law in that case. The case essentially involved whether a tomato-chopping machine is real property or personal property. We disagreed, but that doesn’t mean that either 

one of us was guilty of somehow pursuing a political or other agenda in court. 

Many cases present genuinely difficult legal issues, and judges 

have good-faith disagreements about them. Perhaps under the best 

reading of the statute, a tomato is a fruit. Perhaps it is a vegetable. 

Perhaps the legislature meant that a tomato-chopping machine is 

real property or perhaps it is personal property. Good judges, my 

16

point is, Mr. Chairman, can simply disagree and still be good 

judges. 

That is why I was so profoundly troubled by what happened to 

Justice Owen last year. Senators who opposed her, almost without 

regard to who she is or the record that she has worked hard to establish as a good judge, mentioned that other judges would sometimes criticize her for doing things like rewriting statutes. Mr. 

Chairman, as a former judge, I can tell you that judges say that 

all the time. That happens all the time. It is frequently part of the 

robust legal debate and exchange that judges have with one another every single day in this country, and there is nothing extraordinary about it at all. 

Good judges struggle to read statutes carefully. It is only natural, 

then, when judges of good faith disagree, frequently a judge will 

claim that another judge is rewriting the statute. It is just simply 

the way judges talk and the way judges do their job. 

I asked my staff to look at some of the cases cited against Justice 

Owen last year, and do you know what they found? Well, in just 

20 minutes of , they were able to determine that every single Justice of the Texas State Supreme Court at one time or another had 

been criticized for rewriting a statute. 

Looking at just a few of the cases cited by Justice Owen’s opponents, in one case, for example, Justices Gonzales, Hecht, Enoch, 

Abbott, and O’Neill, who comprised the majority of a particular 

case, were criticized with the following statement: ‘‘The court substitutes what it thinks the statute should accomplish for what the 

statute actually says.’’ In other words, those five Justices were accused of rewriting the statute. 

In another case, Chief Justice Phillips, Gonzales, Enoch, Baker, 

Hankinson, and O’Neill were challenged with the following statement: ‘‘The court does not base its statutory interpretation on the 

ordinary meaning of those words or on the purposes the legislature 

intended them to achieve, but on its own predilections.’’

In just those two cases, we have every single colleague of Justice 

Owen criticized for allegedly rewriting a Texas statute. Again, that 

is just the way judges talk. 

Are we really saying that every Justice on the court——

Senator LEAHY. Excuse me. Mr. Chairman, I—and I would ask 

that this interruption not interrupt in the record. 

Chairman HATCH. Without objection. 

Senator LEAHY. As you know, I am required to be on the floor 

on a Judiciary Committee matter. Senator Kennedy and Senator 

Feinstein and Senator Durbin are here. I have to be there at 11:30, 

and in leaving, I didn’t want that to be reflected that I am leaving 

for any reason other than that. I know we started a half-hour late, 

and that has thrown everything else off. 

Senator CORNYN. Thank you, Senator Leahy. 

Are we really saying that every Justice on that court or any 

court that is criticized for rewriting or misconstruing a statute is 

a bad judge, undeserving of confirmation? That would be, of 

course—I think it is apparent—nonsense and I hope that is not 

what anyone is saying here today. Judges are supposed to read the 

law carefully and rule how they think the law is most accurately 

17

read and to vigorously defend and argue their position when disagreements occur, as they invariably do. 

It is terribly unfair and, I submit, Mr. Chairman, even dangerous 

to our justice system for Senators to sit in judgment on those 

judges and to criticize them simply because they are trying their 

very best to do their job, as judges do. 

Now, I was reminded of the scene, believe it or not, from the 

movie ‘‘Jerry Maguire’’ when I read the transcript and heard this 

discussion, the scene when Cuba Gooding, Jr. tells Tom Cruise, he 

said, ‘‘See, man, that’s the difference between us. You think we’re 

fighting, and I think we’re just finally talking.’’

Well, Mr. Chairman, what Justice Owen has been criticized for 

is not fighting among judges; it is the way judges talk in deciding 

how to best interpret the statute and discharge the duty. 

Those who have emphasized critical quotes about Justice Owen 

from other Justices on the Texas Supreme Court think they are 

fighting, but as I say, they are just actually talking, doing what 

judges are supposed to do. 

I could go on and on, but I won’t. Let me just close by saying that 

I served with Justice Owen on the Texas Supreme Court for 3 

years. Based on those 3 years of working closely with her, I know 

her well. And I know she is a good judge who always tries to faithfully read and apply the law. That is simply what good judges do, 

and we can ask for nothing more. 

Judges disagree from time to time, but, again, that is what 

judges do, and that is what we want them to do. And we certainly 

do not want to chill that intellectual exchange and dialog, chilling 

it by criticizing them and actually perhaps challenging a nomination to a Federal court because they are doing what they should be 

doing. We should not condemn them because they sometimes criticize each other’s reasoning. Instead, I believe we should send Justice Owen’s nomination to the floor of the Senate with a positive 

vote and that we should confirm her quickly. 

Thank you, Mr. Chairman, for the opportunity to speak on behalf 

of Justice Owen today. 

Chairman HATCH. Thank you, Senator. We appreciate your explanation because you served with Justice Owen and you have 

served in a wide variety of positions in Texas, including Attorney 

General and on the Supreme Court, as well as being a trial judge. 

And we appreciate having you on the committee and having those 

remarks. 

I appreciate both Texas Senators taking time from busy schedules to be here today in support of Justice Owen, and we will be 

happy to let you go, Senator Hutchison. We know you are busy. 

And, Senator, I hope you will come up here and sit beside me. And 

I may ask you to chair part of this hearing since I have to go to 

the floor as well. 

Justice Owen, let me turn to you. Do you have a statement you 

would care to make at this time? 

18

STATEMENT OF PRISCILLA RICHMOND OWEN, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Justice OWEN. Just very briefly, Senator. I want to thank you for 

the opportunity to appear today and answer any questions that any 

of the members of the committee might have. 

I want to introduce my sister, Nancy Lacy, who is with me here 

today. 

Chairman HATCH. Glad to have you here. 

Justice OWEN. Among others, and my pastor, Jeff Black, that has 

come again. And Pat Mizell, a former judge from Houston, Harris 

County, Texas, is here with us today. Thank you, Pat, for coming. 

Chairman HATCH. Good to have all of you here. Thank you. 

Do you care to say anything else? 

Justice OWEN. No, Senator. Thank you. 

Chairman HATCH. All right. There have been some, I think, misunderstandings on some of the questions that were asked last time. 

Let me just see what I can do. We will have 15-minute rounds, if 

that is OK with my colleagues. 

Let me just ask you a few questions about the Doe I case, where 

I think there were some misunderstandings. The language of the 

Texas Parental Notification Act follows language in previous Supreme Court cases, does it not? 

Justice OWEN. Yes, Senator, it does. 

Chairman HATCH. And a majority of the court in the Doe I case 

agreed on that point. Is that correct? 

Justice OWEN. Everybody on the court agreed that the words, the 

specific words in the bypass provision were taken essentially out of 

cases from the U.S. Supreme Court, had looked at other statutes 

and language that the Court itself had used. 

Chairman HATCH. The majority wrote in this regard, ‘‘The Texas 

parental notification statute was enacted against a backdrop of 

over two decades of decisions from the U.S. Supreme Court.’’ Now, 

even so, the Texas Legislature did not define key terms in the statute such as ‘‘sufficiently well informed,’’ did it? 

Justice OWEN. It did not. 

Chairman HATCH. OK. In other words, it did not set forth the information that the minor must obtain before the standard is met. 

Am I right about that? 

Justice OWEN. That’s correct. 

Chairman HATCH. The statute was silent on that point. 

The Texas Legislature did not define the term ‘‘mature’’ either. 

Is that right? 

Justice OWEN. That’s correct, Senator. 

Chairman HATCH. Now, the majority—I guess I better swear you 

in. I have just been informed by staff that I haven’t sworn you in. 

So would you mind standing? I will do that. 

Do you solemnly swear to tell the truth, the whole truth and 

nothing but the truth, so help you God? 

Justice OWEN. I do. 

Chairman HATCH. I would ask unanimous consent that that be 

placed at the beginning of our discussion. 

Now, I just said the Texas Legislature did not define the term 

‘‘mature,’’ and the majority recognized that fact; is that not right, 

and these other facts? 

19

Justice OWEN. Yes, Mr. Chair. 

Chairman HATCH. Now, in fact, the majority opinion noted that 

notification statutes found in states across the country were silent 

as to the particular information the minor needed to have to be, 

quote, ‘‘sufficiently well informed,’’ unquote. Now, these include notification statutes in Arkansas, Colorado, Florida, Georgia, Illinois, 

Kansas, Maryland, Minnesota, Montana, New Jersey, South Dakota and West Virginia. In fact, due to a lack of guidance from the 

Texas Legislature, the majority had to look outside the words of 

the statute and turn to other sources for guidance in interpreting 

the terms, quote, ‘‘sufficiently well informed,’’ unquote, and quote, 

‘‘mature,’’ unquote. Is that correct? 

Justice OWEN. That’s correct. 

Chairman HATCH. They looked to case law outside of Texas is my 

understanding. 

Justice OWEN. They did. 

Chairman HATCH. For guidance on what the statute means. They 

had to look outside the statute in determining what medical information the minor is required to receive. They had to look outside 

the statute in determining the minor must show an understanding 

of the alternatives to abortion, and emotional and psychological aspects. None of these showings were outlined in the statute itself, 

right? 

Justice OWEN. That’s correct. 

Chairman HATCH. So any argument that you or any other member of the court went outside the, quote, ‘‘plain meaning of the 

law,’’ unquote, is just incorrect and misses the point; is that right? 

Justice OWEN. That was my view. 

Chairman HATCH. OK. Now, as I understand it, in the cases that 

you have been criticized for, you were in the dissent, you were in 

the minority, right? 

Justice OWEN. Well, sometimes I was in a concurring opinion. I 

concurred in the judgment, but I did not totally—the court and I 

did not totally agree on every aspect of the proper construction of 

the statute. 

Chairman HATCH. How many judicial bypass cases have there 

been affecting the Supreme Court? 

Justice OWEN. Well, there have been 10 minors who have come 

before the court, and I understand from listening to voice mail last 

night that we’ve had another one filed yesterday. But setting that 

one aside, that’s pending, there have been 10 minors, I believe, 

that have come before the court. Two of them came back a second 

time. The court had initially remanded the proceeding back to the 

trial court. The trial court again denied the bypass. The court of 

appeals again affirmed the trial court, denied the bypass, so they 

came to the court a second time. So we had 12 cases if you will 

involving 10 minors. 

Chairman HATCH. And out of how many total cases? 

Justice OWEN. Well, this summer I believe—I tried to explain we 

don’t know the exact number precisely. 

Chairman HATCH. Approximately the number. 

Justice OWEN. We know there have been at least 650 as of this 

summer, and the information, updated information I’ve been given 

says there have been at least 775 now. 

20

Chairman HATCH. So approximately 775 cases where young girls 

or their counsel have asked for a judicial bypass so they did not 

have to notify the parents; is that right? 

Justice OWEN. That’s correct. 

Chairman HATCH. How many of those cases—you are saying only 

10 young ladies’ cases——

Justice OWEN. Now 11. 

The CHAIRMAN [continuing]. Came to the Supreme Court or in 

other words were decided by the Supreme Court. So all of the rest 

of them were able to go ahead and get the abortions; is that correct? 

Justice OWEN. We don’t know the exact—exactly the outcome in 

the trial court. That’s confidential, but they cannot come to the 

Court of Appeals and they cannot come to my court unless the bypass is denied. In other words, if the trial court denies the bypass, 

that’s the end of it. No one has the right of appeal. 

Chairman HATCH. So in these cases that you have mentioned 

with these 10 young women, the courts down there denied, the 

lower court, the trier of fact, the court that actually talked to the 

young women and their counsel, denied the bypass? 

Justice OWEN. That’s correct. 

Chairman HATCH. In other words denied them the right to go to 

an abortion without parental notification. 

Justice OWEN. Well, they certainly had the right to get the abortion, but you’re correct, they did have to give notice. It was not a 

prohibition against the abortion taking place, but the physician had 

to give at least 48 hours notice to one parent. 

Chairman HATCH. Now, in how many cases did you differ with 

your colleagues on the Supreme Court? 

Justice OWEN. Again, it’s difficult to just categorize the numbers, 

but in the counting the 12 times that the different cases came up, 

I think I disagreed with them 3 or 4 times. Let me get my notes 

here and make sure that’s right, but I think 4 times. 

Chairman HATCH. OK, 4 times. So you agreed with the majority 

and the court for the other remaining——

Justice OWEN. Actually it was 3. I’m sorry. I agreed with——

Chairman HATCH. So you agreed with the court in all but 3 cases 

and that means that in the vast majority of those cases that appeared before the State Supreme Court you agreed with the majority. 

Justice OWEN. I agreed with the judgment. In Doe I there were 

differences between my interpretation of the statute and the 

court’s, but I did agree with the judgment in remanding the case 

back to the trial court. I thought that the minor deserved another 

opportunity to present her case to the trial court and see if the trial 

court would grant the bypass. 

Chairman HATCH. Now, in the other cases where you disagreed, 

you basically upheld the trial court decision. 

Justice OWEN. That’s correct. 

Chairman HATCH. That is hardly being outside of the judicial 

mainstream, or outside of the mainstream of American jurisprudence, is it? 

Justice OWEN. I didn’t think so. 

21

Chairman HATCH. I do not think anybody else would think so. I 

mean you can legitimately disagree on what the interpretations of 

the statute are. 

Justice OWEN. Well, we did—a number of cases we did disagree 

and there was—I was not the only judge that disagreed. In some 

cases we were very split up over what the statute meant. 

Chairman HATCH. I see. Well, in the cases where you disagreed 

you upheld the lower court decision. 

Justice OWEN. That’s correct. 

Chairman HATCH. It is true that the lower court judge was the 

trial judge, right? 

Justice OWEN. That’s correct. 

Chairman HATCH. It is true that that lower court judge was the 

determiner of the facts, right? 

Justice OWEN. Yes, Mr. Chairman. 

Chairman HATCH. It is true that that lower court judge was the 

judge who at least had some experience with the young woman involved; is that correct? 

Justice OWEN. That’s right. The trial judge actually sees the 

minor and talks to her, listens to the questions that are posed by 

her counsel, by her guardian ad litem, has an opportunity to actually view her. All we get is the cold printed record. 

Chairman HATCH. And isn’t it generally the rule that the trial 

judge is the determiner of the facts of the case? 

Justice OWEN. Generally speaking, the trial court is of course the 

trier of fact, and the trial court’s determination of the facts are 

binding on my court. 

Chairman HATCH. And is it not true that good judges on the Supreme Court generally give great deference to the findings of fact 

by the lower court judge? 

Justice OWEN. That’s correct. That’s a well-established principle. 

Chairman HATCH. So the fact that you differed with some of your 

colleagues on the bench does not necessarily mean that you were 

outside of the mainstream of American jurisprudence or that you 

acted in a radical fashion, because you were upholding the lower 

court judge who had all the facts. 

Justice OWEN. I agreed—I think I said in some of these cases 

that it was a close call, but that based on the record I thought 

there was enough evidence that I was compelled to affirm the trial 

court. 

Chairman HATCH. Now, as I understand it, some have criticized 

you because of Judge Gonzales’ language. Could you tell us what 

really is involved there? 

Justice OWEN. Well, that was the case when the first Jane Doe, 

the first Jane Doe had come to the court, and as I might explain, 

the court, including me, agreed to remand the case back to the trial 

court. This was the first time the statute had ever been construed 

by my court, and neither she nor her counsel really had any idea 

of what the words ‘‘mature and sufficiently well informed’’ meant. 

So once the court had put some parameters on that, I agreed that 

it should go back to the trial court. And it did, and there was another hearing, another lengthy transcript. The minor again testified, talked to the trial court. Her counsel, her guardian ad litem 

were there. And the trial court again made the determination that 

22

the minor was not entitled to the bypass under the mature and sufficiently well informed prong of the statute. 

The Court of Appeals looked at that record. They again affirmed 

what the trial court did, denying the bypass, so for a second time, 

after the trial court had looked at it twice and the court of appeals 

looked at it twice, we got Jane Doe back for a second time. And in 

that case, again, I said it was a close call, but that I thought there 

was some evidence to support what the trial court found, and 

under those circumstances, even if I might have made a different 

decision had I been the trial judge, I felt like under appellate principles I had to affirm what that trial court did because there was 

some basis in the record to do so. There were several dissents in 

that case, and I think it’s fair to say that some of our opinions were 

contentious on their face at least, that there was some—as Judge 

Cornyn, former Judge Cornyn, Senator Cornyn now, described it, 

there’s certainly robust debate in those decisions. 

And in one of the dissents—there were three separate dissents—

I was one of the dissenters, but there were two others who wrote 

two separate opinions. One of the dissenters said that the majority 

said, ‘‘We are not judicial activists,’’ say the judges today. And I 

think that what Justice Gonzales was doing was responding to 

some of the judicial activism language that was in that opinion as 

well as a concurring opinion by another judge. There were lots of 

opinions in this case. And he went on to say that—let me get the 

exact language because I don’t want to misquote it here. He said 

that, ‘‘If you were to’’—let me again find the exact language. 

[Pause.] 

Justice OWEN. He was talking about that he as a judge has to 

do what the law says, not what he might want to do as a citizen 

or a parent. And then he says, ‘‘But I cannot rewrite the statute 

to make parental rights absolute or virtually absolute, particularly 

whereas here the legislature had elected not to do so.’’

And he had also said previously that, ‘‘Thus, 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 word of the 

statute, would be an unconscionable act of judicial activism.’’ He 

didn’t say that the dissents had engaged in that. He said if anybody, including himself, were to do that, would do that, that would 

be judicial activism, and I agree with that. 

Chairman HATCH. In other words, if they were to eliminate judicial bypasses——

Justice OWEN. Yes. 

Chairman HATCH. I mean the point here is, is that the vast majority of bypasses were upheld. 

Justice OWEN. That’s correct. And then he goes on to say just in 

the next paragraph, he’s discussing one of the other dissents, and 

he names the dissent by name——

Chairman HATCH. Let me just interrupt you for a second. You 

were never taking the position that you were going to eliminate judicial bypasses? 

Justice OWEN. Of course not, no. And I don’t think that he fairly 

read that he can be said as saying that I or any other judge on the 

court was doing that, or that we were erecting hurdles that would 

prevent its applicability. And the reason I go on—I’ve got several 

23

reasons why I say that. Let me explain his opinion. Let me kind 

of put this into context. 

In the very next paragraph he addresses one of the dissenting 

opinions directly, and he says that that dissent charges our decision—that our decision demonstrates the court’s determination to 

construe the Parental Notification Act as the court believes the act 

should be construed, and not as the legislature intended. And he 

says, ‘‘I respectfully disagree.’’ He doesn’t say that you have engaged in judicial activism. He says, ‘‘I respectfully disagree.’’ Now, 

this is the point where he’s talking about what the dissenters, or 

at least this dissent actually did. And to put this in context, first 

of all, let me say categorically that Al Gonzales, former Justice Al 

Gonzales on my court, is an honorable man, and there is no way 

that I believe in my heart that he would support me for this position, this nomination if he believed that I were a judicial activist. 

He would not have recommended me. He would not have supported 

me publicly like he has. 

And so the other thing is I remember when these opinions came 

out. I remember the debates that went on, the discussions we had, 

and I certainly don’t recall ever thinking that this language was directed at me. I remember when my nomination started to get a lot 

of attention from some of the special interest groups, and I read a 

blurb that said Justice Gonzales had accused me of being a judicial 

activist, I was—I thought, ‘‘Well, that’s ridiculous. I would remember that. He never said any such thing.’’ And I went back and ran 

a word search through the opinions and found this language, and 

yes, I recall this case. But if this—if I had thought then for a moment that he was accusing me of being a judicial activist, we certainly would have had a discussion about that and I would have 

remembered it. It would have been something that would have 

been seriously talked about. And that just was—you know, let me 

say then as I did now, I do not believe that he was attacking me, 

or for that matter any other dissent on the court. 

Chairman HATCH. Well, thank you. My time is up. 

Senator Kennedy, we will turn to you. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman. I take 

just a moment here before asking our witness some questions, just 

to pay a tribute to you and to other colleagues of the committee, 

Senator Leahy, Senator Feinstein, Senator Hutchison, for their 

work on the Amber Alert Bill. I saw you last night, Mr. Chairman, 

just after Elizabeth Smart was found and we all, as others have 

pointed out, know of your deep involvement in a very personal way 

in this case, and also in strong support of the Amber legislation. 

We have had a tragic situation in our own State, the Bish family 

from Warren, Massachusetts, just a year ago. And many of us have 

been trying to have our own State, Massachusetts, develop a similar kind of a case for the heartbreaking reasons that have surrounded the situation and the circumstance in the Elizabeth Smart 

case. So we will work on that legislation. It is a pretty good indication that the committee can work and do some good work at a time 

and achieve a good objective. 

24

Chairman HATCH. Well, thank you, Senator. 

Senator KENNEDY. I appreciate the fact that you brought that up 

at the start of this hearing. 

Chairman HATCH. Well, that means a lot to me, and as usual, 

your compassion comes through, and our friendship is intact in 

spite of the fact that we occasionally disagree. 

Senator KENNEDY. Well, don’t want to go too far at the opening 

of this hearing. 

[Laughter.] 

Senator KENNEDY. Judge Owens, I want to welcome you back. 

Justice OWEN. Thank you. 

Senator KENNEDY. Owen, Owen—excuse me—to the committee 

and thank you for the willingness to take on the responsibility for 

service on the courts, and thank you for your willingness to respond to these questions. I think as you well understand, all of us 

have a responsibility in these considerations, and we want to try 

and ensure, as I am sure you do, that we are going to have people, 

men and women on the courts, that are going to insist that the 

courts are going to be available and accessible to listen to all sides 

and to evaluate all of the information that comes before the courts 

and give a fair and balanced judgment on these cases. 

And my concerns, as I think you remember from the last time, 

is to what kind of—whether the plaintiffs are representing workers, the disadvantaged, those that are left out and left behind, individuals that have been injured or hurt in circumstances, whether 

they will be able to get a fair hearing in the courts. And so we look 

at your background in these areas to try and draw some conclusions. And I want to just again sort of mention these and hear you 

out once more on this. 

As I mentioned, one of my major concerns is the way that you 

reinterpret the law to achieve currently the result that you want. 

Your decision consist of support for the businesses and employers 

over the rights of the plaintiffs, and I believe often stretch the law 

to do so. You are among the most frequent dissenters on the Texas 

Supreme Court with more than 20 dissents in cases involving the 

rights of employees, consumers and many others in the last 5 

years. 

The Texas Supreme Court is notoriously business oriented, but 

you stand out as being to the right of most of the judges on the 

court. You have repeatedly been criticized your colleagues in the 

majority for putting your own views above the law. In the Jane Doe

cases you were criticized by your colleagues, including Alberto 

Gonzales, who is now President Bush’s counsel in the White House, 

for insisting on reading your own views into the Parental Notification Statute on abortion. Judge Gonzales called your interpretation 

‘‘an unconscionable act of judicial activism.’’

Numerous examples occur in other cases involving labor protections, consumer protections and environmental protections. In one 

case the private landowners tried to obtain an exemption from the 

environmental regulations, and the court majority specifically criticized your harsh dissent, saying it was nothing more than inflammatory rhetoric which merits no response. 

In a case involving whether an insurance company had acted in 

bad faith, you joined a partial dissent that would have limited the 

25

rights of jury trials for litigants, and this dissent was criticized by 

other judges as a judicial slight of hand to circumvent the constraints of the Texas Constitution. 

In another case a worker’s arm had been partially amputated as 

he inspected a chopping machine. Your dissent would have severely 

limited the ability of injured individuals to obtain compensation 

from product manufacturers. The majority criticized your dissent 

for imposing a test more broad than any holding in this area so far. 

And even when you have joined the majority in favor of a plaintiff, you have announced views hostile to workers’ rights, the GTE 

Southwest v. Bruce. You concurred with an otherwise unanimous 

court decision in favor of the three female employees, but you went 

out of your way to make it clear that in your view not all of the 

supervisor’s behaviors amounted to intentional infliction of emotional distress. The supervisor’s behavior included yelling, cursing, 

frequently at the employees, repeatedly threatening employees verbally, assaulting employees by physically charging and lunging at 

them, and ordering a female employee to scrub a carpet on her 

hands and knees. 

Because of such cases—and these are just a few examples—how 

we can have confidence that you will fairly interpret the law and 

fairly consider the claims of workers, victims of discrimination or 

other injured individuals, and how can we have the confidence that 

you will review the cases with an open mind? 

In the hearing last fall I asked you whether with all your dissents in favor of businesses, insurance companies and employers, 

you had dissented in any case where the majority of the court favored those interests. You mentioned a single case, 1996, the Saenz

v. Fidelity Guaranty Insurance Underwriters. After reviewing that 

case—and I hardly think it offsets your anti-plaintiff record—you 

did not write a dissent in the case. You joined an opinion written 

by another justice, concurring in part and dissenting in part. You 

actually agreed with the majority that a jury verdict for the plaintiff should be overturned. In fact, another dissent in the case would 

have upheld the jury verdict. 

So while you agree that there was a claim in that case that you 

would have allowed the plaintiff to pursue, but your long record of 

ruling against the plaintiffs. Is that the only case in which you dissented in favor of the plaintiffs in a workers’ rights, consumer 

rights or a civil rights case? 

Justice OWEN. Senator Kennedy, there’s a lot in your question, 

so let me try to go back and parse through some of the things that 

are in that question and that proceeded it in some of your statements. 

Senator KENNEDY. OK. 

Justice OWEN. First of all, Senator Kennedy, I can assure you 

that I do not ever try to achieve a result, and I don’t look at whether I want one side to win or the other side or one segment of our 

population to be favored over another. That is not my job. And I 

certainly don’t keep score and say, ‘‘OK, you know, 50 percent of—

this side has to win 50 percent of the time and this side has to win 

50 percent of the time, and every 6 months or so we’ve got to even 

the score here.’’ I mean that is not what judging is about. That is 

not what I do. 

26

And you mentioned that—I think you said in 20 cases I have dissented. Well, I have participated in over 900 written opinions for 

my court, and we have also denied writs—petitions and writs of 

error in my court. We get about 1,400 of them a year, and we look 

at every single one of them. And when we only take about 10 percent and write an opinion in. So in all of those thousands and thousands of cases, we have voted—I, as part of the court, have voted 

to let the lower court judgment stand, and there are untold hundreds and hundreds of verdicts in those cases that we don’t touch, 

that we do not set aside. 

And the cases that do come to us, as Senator Cornyn explained, 

my former colleague, we get the tough ones, and we don’t—you 

know, the cases that come to us are generally not the easy cases. 

And what I try to do as a judge is to put aside personal feelings 

or put aside sympathetic or sympathy, and put aside the fact that, 

yes, in some of these cases people are, are very injured. And the 

question is, do they—what does the law say? What does the law require under these circumstances? And, Senator Kennedy, I tell you 

again that I judge cases by what is right. I do not judge cases by 

what is politically correct. I apply the law and the law has to be 

predictable. It has to be fair. And that’s what I do in these cases. 

Sometimes workers win, sometimes big companies win. The outcome is determined by the law applied to the facts, not my favoring 

one side or the other. 

And I did submit, I believe in response to written questions this 

summer, a partial listing of the significant cases where workers or 

consumers, plaintiffs had won significant victories in my court, and 

I can cite you others. In terms of being criticized by my colleagues, 

I think as Senator Cornyn very ably pointed out today, the culture 

of Supreme Courts, State Courts, is often, and certainly as my 

case, is we do criticize one another in opinions. That’s frequent. 

That is certainly not out of the norm. Every single member of my 

court has been criticized by every other member of the court I’m 

certain at one time or another, and sometimes in strong terms. 

That does not mean that I think any of my colleagues have ill motives, have political motives, or unfair, or unfit as judges. As Judge 

Cornyn, now Senator Cornyn, I think explained, that is the way 

judges speak in their written opinions. 

I won’t go through too much more explanation unless you’d like 

me to on the Doe case, where Justice Gonzales, former Justice 

Gonzales actually used the words that you quoted. You mentioned 

the FM Properties case. You characterized that in a certain way, 

but my position in that case was to uphold what the legislature 

had done, and I felt like the legislature had made a good faith effort. It was not unconstitutional. The Democrat Attorney General 

in the State at the time, Dan Morales, filed a lengthy brief in support of the State, in support of the position I ultimately took. You 

mentioned the Sonnier case. That was the decision that Senator 

Cornyn was describing earlier that involved the tomato chopper, 

and the issue in that case was, it was in a prison system, and it 

was a very large chopping machine, and the only issue in the case 

involved the so-called statute of repose, and the question was, is it 

affixed to the property in such a way that it’s a part of the real 

property or is it just a fixture? 

27

And nothing I said in that opinion had anything to do with expanding products liability law in the least. I said, in my dissent in 

that case, that this was, I couldn’t tell from the facts. This is a fact 

question that should go to the jury and let the jury decide. Sometimes the facts are very clear and a court can tell, but I said, here, 

you know, I don’t know whether this tomato chopper is sufficiently 

affixed. Let the jury decide. That was my position in that case. 

GTE, I thoroughly agreed with the court in that case, that what 

the supervisor in this case did was way out of bounds. The plaintiffs in this case were certainly entitled to recover for intentional 

infliction of emotional distress. I voted to uphold that verdict. The 

only thing I said in that case in terms of—and this is a term of 

art—I said that some of the evidence that the court cited was legally insufficient. That does not mean it’s not admissible, certainly. 

It’s admissible. But the question is if you just had isolated instances that I cited by themselves, that would not be sufficient to 

constitute intentional infliction of emotional distress, as has been 

defined by the restatement of the law of torts, which is a nationally 

recognized 50-state treatise that our court had adopted, and I cited 

the specific examples and said, ‘‘This is the kind of thing precisely 

that the restatement was talking about,’’ and I was trying to 

square what we said in GTE with two very recent cases that the 

court had decided. 

I can tell you that I have upheld decisions for workers where I 

have been criticized by my colleagues. One case was the Ethyl case. 

It involved asbestos workers. There were several hundred asbestos 

workers sitting—a number of defendants, and the trial court chose 

22 of those cases against, I believe it was 5 defendants, to try sort 

of all in one trial as an efficiency means to do it faster than one 

case at a time. And the defendant came up on mandamus and 

asked us to stop the trial and say, you know, this is too many 

plaintiffs to try at once. And I wrote the opinion for the court. I 

said, no, the defendant has not established that the court abused 

his discretion and this trial should go forward. 

I did the same thing in a breast implant litigation case, and I 

was criticized for it by the dissent. I can go on and on. I dissented 

in S.V. v. R.V. and I was criticized for my dissent, where I would 

have let a girl who said she was sexually molested by her father, 

go to—I would have tolled the statute of limitations because she asserted at the pleading stage that she repressed her memories of 

that until she got away from her home and was in college. So I can 

go on and on about cases where I have either written or joined 

opinions, significant decisions, that upholds verdicts or established 

rights for injured parties, injured workers, plaintiffs, consumers. So 

I think when you’re looking at my record, you have to look at the 

entire record, and that’s a whole lot of opinions, Senator. 

Senator KENNEDY. Well, I am looking at the whole entire record, 

but I am looking at the particular kinds of actions that have been 

taken with regards to workers’ rights, civil rights, environmental 

rights, women’s rights, and those are areas that I was particularly 

interested in. When we were talking about the dissents, not 20 dissents. Obviously you have dissented more, but on particular cases 

involving those rights, I think in a fair kind of review of your 

record in terms of workers’ rights, environmental rights, people’s 

28

rights, civil rights, you would not find the kind of balance that you 

have just stated or claimed. That is why I asked in the last time 

whether there was any time that you stood up for the plaintiff, any 

single time over the—differing with the other members of the 

court, and you gave only this one case, which really does not really 

say that. There was a dissent, but you were not a part of it, that 

would have upheld the jury verdict. 

So my point is here, I am not saying that you have never supported a plaintiff. I know that you have sometimes joined pro-plaintiff’s majority. The point is that you are extremely active in antiplaintiff dissent on an already conservative court. And we are not 

simply discussing a few cases, but I think an extensive record. And 

the question is, is whether you have shown the same kind of dedication in the protecting the rights of individuals that you have 

showed to protecting businesses, insurance companies and other 

employers, when they harm individuals and violate the law. That 

is the area. And if you have—if you do not feel that I have been 

fair in that, and you think that there are other parts of your record 

that would reflect that, and show that, and give that kind of balance, I welcome that submission for the record. 

Just a final point. I had inquired of you—I know we have gone 

over the Ford v. Mills case. In your response to me you said with 

regard to the motion to expedite the court considered the Ford v. 

Mills case an important one, but we did not give it precedence. Do 

you know any reason why you did not give it precedence? 

Justice OWEN. Senator Kennedy, I hope you appreciate that I do 

operate under a code of conduct in Texas, which means I can’t disclose the deliberations entirely, but I can say this, that a motion 

like that would have taken a majority of the court, 5 members to 

agree to put it ahead, and 5 members didn’t do that. And we in 

hindsight said——

Senator KENNEDY. Well, I do not want you to violate the code. 

If there was some indication that in the 5 that you tried to do it 

and the others would not do it, it would be something that would 

be noteworthy. 

Justice OWEN. We all agreed, including me, after the fact, that 

we should have granted those motions. I’m not sure it would have 

made any difference, but we should have. 

Senator KENNEDY. Thank you very much for your appearance 

here. You come very warmly endorsed by our colleagues, which we 

are grateful for, and thank you for coming back. 

Justice OWEN. Thank you, Senator. 

Senator CHAMBLISS. [Presiding.] Judge——

Senator FEINSTEIN. Mr. Chairman, may I ask one question? I am 

going to have to leave because I have got an appointment with a 

foreign diplomat that I must keep. And I wonder, you know, my 

presence and the reason I wanted to be here was because I wanted 

to have a second chance to ask some questions, and apparently I 

am not. 

Senator CHAMBLISS. If your question is can you go now, the answer is yes. 

Senator FEINSTEIN. No. I was just going to say what I would like 

to do is——

29

Senator CHAMBLISS. Seriously, I am happy for you to go if you 

would like to. 

Senator FEINSTEIN. Well, thank you very much, and I will just 

take a couple of minutes. I will not use my time. 

But first of all, believe it or not, welcome back. 

Justice OWEN. Well, thank you, Senator. It’s good to see you 

again. 

Senator FEINSTEIN. It is good to see you, and I know this is 

tough. 

Justice OWEN. I’m under oath, so I won’t respond to that. 

Senator FEINSTEIN. No, do not respond to it. 

Justice OWEN. I’m just teasing. 

Senator FEINSTEIN. What I would like to do, if I may, is send to 

you a memoranda that was prepared by NARAL, also entitled, 

‘‘Setting the Record Straight,’’ that essentially took your comments 

and juxtaposed them against the law, and ask you if you would respond in writing as quickly as you could? 

Justice OWEN. Certainly, certainly, Senator. 

Senator FEINSTEIN. And that might be the easiest way to approach this. My interest is really to see that as an appellate court 

judge you would be willing to put whatever opinions you might 

hold or views you might hold aside and really work to see that the 

law is carried out. And I think in the Parental Notification issue, 

particularly in those first Doe cases, where the prongs of the Texas 

law were being established with some precedent, that there was a 

very strong feeling that you reached out, particularly into Casey, 

where Casey really did not apply because the Texas law, the belief 

was it was very specific and very precise in the level of consent 

that it implied. So I think this is set forward in this memorandum, 

and perhaps you could just respond. 

Justice OWEN. Senator Feinstein, I would welcome the opportunity, because I feel like I have not adequately communicated 

with you on this particular issue, and I would welcome the opportunity to do that, to try to do that in writing. 

Senator FEINSTEIN. And then perhaps you would also take the 

statements that have been in part relayed here. And I think Senator Cornyn was very helpful in putting that in some perspective, 

but for example, there is a sentence here by Justice Hecht, 

‘‘charges that our decision demonstrate the court’s determination to 

construe the Parental Notification Act as the court believes the act 

should be construed and not as the legislature intended.’’

And I think that well states what the contention is by some, and 

that is, that the legislature said one thing, and yet there was an 

attempt by the court to construe it to be different. So perhaps you 

could respond in writing, and I will pay special attention to it. 

Justice OWEN. I appreciate that. Thank you. 

Senator FEINSTEIN. Thanks very much. 

Justice OWEN. Thank you. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator CHAMBLISS. Thank you, Senator. 

Justice Owen, I would like to note two things. First of all, it is 

kind of nice to have somebody here that talks like I do. We do not 

need to have an interpreter between you and me. 

[Laughter.] 

30

Senator CHAMBLISS. And second, I notice you are an Episcopalian. There are not that many of us around. So I am particularly 

pleased to see that. 

There has been some indication this morning, as I read the transcript of the previous hearing, there are some accusations against 

you that you are pro-business, you are pro-corporate entities, and 

basically against the guy on the street out there. And you have had 

somewhat of an opportunity to respond to that, but some specific 

questions have not been asked of you about certain cases, and I 

would like to give you an opportunity to kind of set the record 

straight, if you will, about the decisions that you have made 

against the corporations. And if you would, could you please delineate some of those cases where you issued rulings that actually favored individuals versus against corporations or that might be perceived to be anti-business? 

Justice OWEN. Senator, there is—I’m not sure that I’ve captured 

every single one of them in the last 8 years. I do have a list, and 

it’s quite lengthy. I would say there are quite a few cases on here. 

But just Polaris Management Company denied—a corporation was 

requesting certain discovery—or certain discovery from the plaintiff 

be quashed, and I joined the majority in saying that that was not 

appropriate. 

And also it involved—now my memory is coming back to me. Polaris was a large, large class action lawsuit involving alleged securities frauds, and thousands of plaintiffs had been gathered up in 

this class action. I believe it was in Maverick County, Texas. And 

the defendant was asking this court to—the trial court had selected 

a certain select group of plaintiffs to proceed to trial. The defendant 

was saying, you know, we’re getting a raw deal down here, and 

would you please say that this is improper to do this? And I agreed 

with the majority of the court that that trial should go forward and 

we should not intervene. 

Perhaps—I hate to spend the time going through all of these, but 

let me give you some of the larger cases I think, that are pretty 

much landmark decisions I think for our court. I already mentioned 

the Ethyl case and the Bristol Myers case. Those both involved 

mass torts. One was the asbestos litigation. The other was the 

breast implant litigation, and that again involved the defendant’s 

claims that the trial court should not allow plaintiffs to proceed in 

these groups as they did. And we laid out the parameters that most 

of the courts across the country have looked at in deciding when 

it’s appropriate to aggregate cases and when it’s appropriate to 

sever. And we applied those principles in this case, and concluded 

that the trial court had correctly discharged his duties. 

We also held in sort of a series of cases, and we ultimately—

when workers can sue for these latent diseases such as asbestosis. 

And we held that a worker who gets a disease, one kind of disease 

from asbestos and sues defendants, and then settles that case, and 

many years later develops a different asbestos disease—in this case 

I believe the plaintiff developed mesothelioma—that plaintiff is not 

barred by limitations and that plaintiff is not barred by the fact 

they already sued someone for another asbestos related disease 

from proceeding against other defendants when the second disease 

31

many years later manifested itself. So we—I think that’s a significant decision in favor of workers and plaintiffs. 

And the Owens-Corning case, I concurred with the court that 

workers who had been exposed to asbestos should be allowed to collect punitive damages from their employer, and Owens-Corning in 

that case, as I recall it, was arguing that there should be a constitutional limit or restraint on the damages in that particular 

case, and I disagreed under the facts of that case. 

There’s a long list. A manufacturer of a lighter, one of those 

Bic—I don’t know if it was a Bic lighter. It was the Tokai Company 

apparently manufactured it and it was not childproof, and the 

grandmother had purchased the cigarette lighter and had put it in 

a closet, and her grandchildren who I think were like 3-years-old 

and maybe 2, that both of them got a hold of the lighter and ignited a blanket with it and were terribly injured. And this actually 

came to us on a certified question from the Fifth Circuit, and we 

rejected the manufacturer’s argument that it had no duty to make 

these lighters child resistant. We said that you have to go through 

the risk balancing analysis that you typically would do in a products liability case. 

Again, there are quite a few, but that should give you some flavor for some of the decisions that I’ve been a part of. 

Senator CHAMBLISS. Well, I am going to ask that the list that you 

have there be appropriately identified and inserted in the record. 

Justice OWEN. I hope you let me clean it up a little bit. 

Senator CHAMBLISS. All right, we will let you do that. But if you 

will, at the same time you respond to Senator Feinstein’s question, 

if you would just send us that list, and mark it as to what it is. 

I would like to have that inserted in the record. 

Justice OWEN. I’d be happy to do that. 

Senator CHAMBLISS. Again, as I looked at the transcript of the 

previous hearing, since I was not a member of this body at that 

point in time, I noticed that there was a rather detailed question 

asked of you about a case in which you wrote the majority opinion, 

and that was Ford Motor Company v. Miles. I think there were 

some very significant misunderstandings about your involvement 

in that case, and I want to see if we cannot straighten some of that 

out. 

For those who do not recognize this case, this case involved an 

automobile accident victim named Mr. Searcy, who tragically 

passed away years after his accident, but before the litigation was 

resolved. 

First of all, let me ask you whether there is any truth to the accusation made during the course of your previous hearing, that the 

victim passed away before the Texas Supreme Court ruled on his 

appeal? 

Justice OWEN. I think that there was a misunderstanding about 

that. Certainly the Supreme Court of Texas—and I wrote the opinion for the majority—handed down that opinion. And it’s my understanding it was 3 years after that or more than 3 years after that 

that Mr. Searcy passed away. 

Senator CHAMBLISS. There was also an accusation made during 

the course of your hearing that your opinion was improperly based 

on the issue of venue. In other words, there was a question of 

32

whether the plaintiff’s lawyers filed the case in a county that did 

not have jurisdiction over the dispute. Was there anything improper about the Texas Supreme Court’s consideration of arguments concerning the venue in that case? 

Justice OWEN. Senator, there’s a statute on the books in Texas 

that the legislature has passed that says if venue is improper, the 

case must be reversed and remanded to the proper court for trial, 

unless of course there are dispositive issues that brings an end to 

the litigation entirely. 

And so in this case when the venue was improper—and it was 

in this case—we had no choice. We had no discretion whatsoever. 

We were required under the statute to reverse the case and send 

it to the proper county. 

Senator CHAMBLISS. And in fact is it not the case that both the 

majority and the dissent in this case agreed that it was appropriate 

for the court to resolve the venue issue, and that no member of the 

court argued otherwise? 

Justice OWEN. No, sir. Some members of the court thought venue 

was proper, but a majority of the court did not. And just to give 

you a flavor of this, what happened here, the plaintiffs in this case 

bought a Ford Truck in Dallas, Texas, and they lived in Dallas, 

Texas. The dealer that they bought the truck from was in Dallas, 

Texas. The accident occurred in Dallas, Texas. And all of the operative facts occurred in Dallas. But the plaintiff’s lawyer for some 

reason—and I think it was pretty clearly forum shopping—chose to 

file this lawsuit in Rusk County in Texarcana, which had absolutely no relationship whatsoever to any of the operative facts, and 

tried to hold venue in Rusk County, which is about 180 or 200 

miles away from Dallas, by saying that, well, anywhere there’s a 

Ford dealership, we ought to be able to sue Ford Motor Company. 

And my court said no, that’s not the law in Texas. 

Senator CHAMBLISS. So what you are actually saying, is that it 

was pretty clear that Dallas County, was the proper place to bring 

the suit. I think that is a basic constitutional law issue that all of 

us learned during our first year in law school, and I do not know 

of any law school that teaches otherwise. 

It was also implied by some members during your last hearing 

that your decision to reverse the verdict in that case, a decision 

that caused a legal setback for a young man who had been rendered a quadriplegic in an accident, means that you did not have 

any sympathy or compassion for people. Is that a fair accusation 

about you, Judge Owen? 

Justice OWEN. Senator, it’s not. Again, as I tried to explain to 

Senator Kennedy, a lot of these cases, the plaintiffs are very—your 

heart does go out to them. They have been injured and certainly 

in this case. This was a teenage boy who was a passenger in the 

truck. He was totally innocent. But I can’t let that cloud my view 

or my duty to apply the law clearly and fairly in these cases. I can’t 

rule for someone simply because they have had—they’ve been subject to an injury and they’re an innocent party. We have to apply 

the rule of law in every case. 

Senator CHAMBLISS. And I want to make it clear that your decision was by no means a termination of the plaintiff’s ability to sue 

for injuries. What your decision basically said was that, instead of 

33

suing in Rusk County in Texarkana, the plaintiff must go to Dallas 

County to file suit, and try the case there. If you have a cause of 

action, that is where it needs to be determined. 

Justice OWEN. There were some other aspects to the case. His 

stepfather had sued for loss of consortium and companionship in 

that case. And we looked at that issue, the court did. And I don’t 

think anybody dissented from this, and said, no, that a stepparent 

cannot recover for the loss of consortium for a severely injured 

stepchild. We looked at law in other jurisdictions. We looked at our 

precedent. So there were some other aspects of the case, but the 

main issue, the first issue that we addressed is the first issue the 

Court of Appeals addresses, where was this case tried? Was it tried 

in the proper venue? And we said, we concluded, based on the law, 

that no, it wasn’t. 

Senator CHAMBLISS. And finally I want to ask you about the 

issue of delay in the Texas Supreme Court’s decision in that case. 

Although as you have said, Willie Searcy passed away 3 years after 

the Court’s decision, I also understand that the court did take quite 

a while to decide the case. Is that correct? 

Justice OWEN. That’s correct. I went back and looked at all of the 

disposition rights surrounding that case, and unfortunately that 

was a year in which our court was way behind. If you look at the 

average days it took to decide cases in general, this case was well 

within the average, and it’s an average I’m not proud of as a member of the court. The court’s not proud of it, that we had a bad 

year, frankly, in terms of disposition time. But this case was no 

more—it was in the average for that year. And we did better in 

previous years and we’ve done better since then, but it did take us 

longer than I think all of us wish that it should, and we publicly 

said so. We’re sorry we didn’t get it resolved sooner. 

Senator CHAMBLISS. Last, I have heard a comment here this 

morning that Justice Gonzales extended some criticism to you in 

an article and I guess maybe by some other means. Now, I read 

the article. I did not see any criticism in there. Is there any instance where Justice Gonzales extended some criticism to you for 

any decision you rendered, or your way in rendering it, or your exhibition of any right-wing views in making a decision? 

Justice OWEN. The only thing that I’m aware of that has been 

said over and over and over again is that statement in the Doe

case, that Judge Gonzales in a concurring opinion—and he said 

that to—let me again quote it. ‘‘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.’’

And again let me explain it. He said ‘‘would.’’ He did not say 

that’s what had happened with any of three different dissents. I 

was a dissenter. And again, I remember that time very well. I remember what was going on, and I did not think then and I do not 

think now that Justice Gonzales was saying that I had engaged in 

judicial activism or for that matter any of my colleagues had done 

so. As I tried to explain earlier, the words ‘‘judicial activism’’ had 

been used in another dissent. It had been used in Justice Enoch’s 

concurring opinion. And he was saying—and Justice Gonzales was 

also saying in that paragraph, that I can’t rewrite the statute 

34

based on my personal views, and to do would be judicial activism. 

And then he later said in another paragraph, referring to one of 

the dissents, that he respectfully disagreed with the dissent when 

he started actually talking about that dissent. And to me that was 

not an indication that he thought any of us were judicial activists. 

Senator CHAMBLISS. Speaking of judicial activists on the bench, 

I would like to ask you if my classmate and my now dear and good 

friend, John Cornyn, was a judicial right-wing activist on that 

court. But you are under oath, and you would have to tell the 

truth, so I am not going to ask you that. 

Justice OWEN. Well, when he voted with me, apparently. 

[Laughter.] 

Senator CHAMBLISS. Senator Durbin. 

Justice OWEN. Which was a big percentage of the time, I might 

add. 

STATEMENT OF RICHARD J. DURBIN, A U.S. SENATOR FROM 

THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Justice Owen for returning. I am sorry that you have to come back in this contentious environment, but I appreciate you being here today. 

I want to make a point for the record, that two of the nominees 

President Clinton, to fill vacancies on the same circuit, the Fifth 

Circuit, were denied even a single hearing or a vote. Jorge Rangel, 

an extremely talented Hispanic lawyer from Corpus Christi waited 

15 months. Enrique Moreno, another superb Hispanic lawyer, waited over 17 months. And Alston Johnson, a distinguished Louisiana 

attorney waited a futile 23 months. They were denied a hearing before this committee when the other party was in charge. And I 

think the fact that you are being given, I am told, an historic second chance before this committee should be put in the context of 

the fact that others never had one chance to come before this committee in the past. That is not your creation. That is not your 

doing, but I want to make that a matter of record. 

I would also like to address an issue which I find interesting, 

brought up many, many times before this committee, and that is 

the suggestion that the judges that we appoint, if they will follow 

the rule of law, really have very little flexibility, very little leeway, 

very little discretion. It has been said by Senator Cornyn and others that a judge cannot change the statute, the facts or the record. 

They are bound by, in his words, faithful adherence to the rule of 

law, and that of course is a good hornbook principle, but it almost 

diminishes the role of a judge to the point of following a formula 

of perhaps being part of some computer software that is going to 

have a totally predictable results. I think we know better. I think 

human experience tells us that is not the case. 

And then we come down to a question about whether or not 

judges are strict constructionists in applying the law or judicial activists, two phrases which are becoming almost meaningless because both liberals and conservatives have their view on what they 

mean. 

I would like to start off by asking you to comment on that, and 

to give me, without the bluebook answer here, to give me where 

35

you would place yourself on the spectrum between judicial activism 

and strict construction? 

Justice OWEN. I think you’re right that those terms are becoming 

somewhat meaningless. You know, I do believe that words have 

meaning, Senator. When you work very hard with your colleagues, 

you use, you pick and choose words carefully when you craft legislation, so I do think—I know you do—I think words have meaning, 

and I think that is the starting point when you look at a piece of 

legislation. You try to look at what words were hammered out during the legislative process. And sometimes that is not as clear as 

we would like it to be, and I think those are the hard cases that 

the courts, a court like mine particularly gets. 

And so when you get that, again, I think the first place you start 

is with the words that the legislators have chosen, whether it was 

Congress or a State legislature. And then if the words really aren’t 

that clear—and I don’t look at just the—that sentence or that 

phrase. I look at it in the context of the entire section and the entire act. I look at how it interplays with other pieces of the act. And 

sometimes you can see that the statute was—if you look in broader 

context in a larger section of that act, you can see that in context 

it becomes more clear. Sometimes it’s necessary to go look at the 

legislative history to see what the bill analyses were, what were 

the framers of or the draftsmen or the sponsors of this bill, what 

did they say at the time that they were sponsoring it? That’s usually sometimes an important source. So these are all things—of 

course if there’s already a court—a decision on it, it’s important I 

think for stare decisis. I think all the courts agree on this, that it’s 

particularly important in construing statutes that you follow stare 

decisis because once the courts construed it and the legislative body 

has convened one or more times and hasn’t changed it, that means 

that they’ve more or less adopted a view or decided to let stand 

that court decision. The court shouldn’t go behind that and try to 

change it. So——

Senator DURBIN. Well, let me just followup. And I am not trying 

to set a trap for you, but I believe this is a legitimate line of inquiry for every nominee, and certainly those who are seeking the 

high position that you are seeking. 

We have a nominee pending before this committee, a justice from 

the Ohio Supreme Court, and I asked her in written questions 

about her view of strict construction of a statute, and she gave me 

what I have described as a painful answer because I think it is a 

candid and honest appraisal of strict construction, but I think it 

was painfully honest. And I want to tell you what she said. I asked 

her the following question: do you think the Supreme Court’s most 

important decisions in the last century, Brown v. Board of Education, which of course struck down segregation; Miranda v. Arizona, which codified the rights of criminal defendants; Roe v. Wade, 

which addressed the issue of a woman’s right of privacy; do you believe those decision are consistent with strict constructionism? 

Here is here answer. This is Deborah Cook, nominee before our 

committee now. And I quote, ‘‘If strict constructionism means that 

rights do not exist unless explicitly mentioned in the Constitution, 

then the cases you mentioned likely would not be consistent with 

that label.’’ End of her quote. 

36

I think that is an honest answer from a conservative, strict construction point of view, but it also leads us to a harder question. 

Had our judiciary been filled with men and women, strict constructionists, when civil rights were established in America, we might 

not have seen that occur, or we might have seen it delayed. Same 

thing may be true when it comes to questions of privacy. So I ask 

you in that context if you would agree with her conclusion, and if 

not, how you would say or how you would answer that question. 

Justice OWEN. Well, Senator, you catch me a little bit cold, having to listen to something read back to me. But again, I think those 

terms have become so politically charged, frankly, on strict construction, judicial activism, the terms that you’ve used. But again 

I think you have to, in a constitutional context and as opposed to 

a statute, I think my court, at least the State court’s history has 

been we start with the language. Again, words mean something, 

and they were chosen for a reason. But we also have to look at it 

in context. 

For example, some parts of the Texas Constitution are very, very 

clear, you shall not do so and so. Other parts of the Constitution 

it takes judicial decision to put some context on that and to flesh 

out the full meaning of it, just as the U.S. Supreme Court has 

done, for example, with the due process and equal protection 

clauses. So I don’t think it’s all that simple. 

Senator DURBIN. Let me just give you an illustration, and I have 

referred to it in another committee hearing. I last week went to 

Alabama with a bipartisan group of Congressmen and senators to 

go back to Selma and Montgomery and Birmingham with Congressman John Lewis and take a look at the civil rights struggle 

38 years later. And it was a profound experience for me to stand 

at the foot of Edmund Pettis Bridge, where Congressman John 

Lewis was beaten and suffered a concussion as he tried to march 

to Montgomery. And it was interesting, as I spoke to Congressman 

Lewis at one point, he said, ‘‘You know, there never would have 

been a march from Selma to Montgomery were it not for a Federal 

District Court Judge named Frank Johnson. Frank Johnson from 

Alabama, a Republican appointee under President Eisenhower, had 

the courage to stand up and give us a chance to match from Selma 

to Montgomery.’’

He was the one who during his tenure as a Federal judge struck 

down Montgomery’s bus segregation law that led to the arrest of 

Rosa Parks. He issued the first court voting rights order in the Nation, based on one person, one vote. Of course, he was harassed. 

His mother’s home was threatened and firebombed, and he went 

through a complete ostracism by the establishment of his community because he stood up for civil rights. And by most every classic 

definition, Frank Johnson was a judicial activist, and were it not 

for his courage in decisions, like I said, I am not sure where the 

cause of civil rights would be today. 

In looking back at the cases that you have written as a State Supreme Court Justice during your decade on the court, have you 

ever ruled on a case which you believe helped to advance an important civil rights principle? 

Justice OWEN. Well, yes. Let me back up and say we do not get 

many civil rights cases in the State Supreme Court, as you might 

37

imagine. Most of the civil rights cases go in the Federal courts. 

They’re not filed in the State courts. And I’m trying to think of a 

case that has really squarely come up that you would really call 

a civil rights case. 

Senator DURBIN. Perhaps a case on age discrimination? 

Justice OWEN. I’m trying to remember. Do you have a particular 

case in mind? 

Senator DURBIN. Quantum Chemical v. Toennies? 

Justice OWEN. Oh, yes. Yes, I do remember that. 

Senator DURBIN. In that case, there was a question about whether a plaintiff could prove age discrimination by showing that it was 

a motivating factor in the employee’s termination, and you joined 

with Justice Hecht in a dissent in restricting the plaintiff’s right 

to recover under age discrimination, saying it wasn’t sufficient, as 

the majority of the court found, that age was a motivating factor 

in the termination. You said it had to be the determinative factor. 

It seems to me that you were moving in the opposite direction 

of civil rights in that minority position that you took on the court. 

But I want to give you fair opportunity, if there are other cases you 

would like to point to where you think you advanced a civil rights 

principle. 

Justice OWEN. Let me—I would like to address that particular 

case because—and I have done so, and I also want you to know 

that I have done this in writing. So if I don’t do a very good job 

of it today, I will ask you to please also look at the written response. I am trying to find it here, because that’s a very complicated case. And what I was trying to do in that case is, again, 

follow the law that the U.S. Supreme Court has laid down, and 

they have not been very clear in this area. 

What it—my recollection is this dealt with Subsection (m), I believe it was—I would really like to find my answer so I don’t misstate here. But the question in the case was: Do you have a different causation standard in a pretext case as opposed to a mixedmotive case? And the U.S. Supreme Court had handed down a decision that Congress disagreed with, and I think it was 

Pricewaterhouse—if you’ll take a minute—if you’ll let me take a 

minute and find it, find my writing, because I want to be precise 

about this. 

Senator DURBIN. If you would like to respond in written form, 

too, and explain your position on that, I would appreciate that. 

Justice OWEN. Yes, because there were two circuit——

Senator DURBIN. That is only fair. 

Justice OWEN. Two Federal circuit judge—courts had gone one 

way, and then there was Watson and that had gone another, and 

I found the rationale and actually the text of the Civil Rights Act 

to support what the Third Circuit and I believe it was—I don’t remember what the other circuit had done. 

Senator DURBIN. Let me ask you—I would like you, if you 

wouldn’t mind, if you would give a written response. 

Justice OWEN. I would be happy to. 

Senator DURBIN. Now, prior to being elected to the Texas Supreme Court, you practiced law for 16 years, and in your questionnaire you were asked to describe the ten most significant litigated 

cases that you handled. 

38

Now, none of the cases that you listed involved public interest 

matters or civil rights. Is that because you didn’t handle that type 

of case or because the ones you handled you did not consider to be 

significant in your practice? 

Justice OWEN. My law firm didn’t handle those types of cases. 

We just weren’t hired by anybody that—well, I say that. Our labor 

department may have, but I was not in that section, and that was 

not my specialty, and that’s just not what I was hired to do. 

Senator DURBIN. Justice Raul Gonzalez, who served with you for 

a period of time on the Texas Supreme Court, was certainly a 

model in many respects in terms of his public commitment to pro 

bono work, particularly when it came to volunteer legal services. 

Have you had any experience in volunteering your legal services? 

Justice OWEN. I have had some. 

Senator DURBIN. Can you tell me the nature of that kind of 

work? 

Justice OWEN. They were domestic relations cases. 

Senator DURBIN. And how many or how long ago? Could you just 

put it in context? 

Justice OWEN. Well, I’ve been on the bench a little over 8 years, 

so it was before—it was before then. And there were—I know I represented a woman in a case where she—she and the father of her 

child were not married, and they had had—he had sued her to establish paternity and that had occurred. And then they had gotten 

in a dispute about whether she was allowing adequate access to the 

child, and then she was—found herself in a position that she was 

about to be held in contempt of court, and he was seeking to get 

sole custody of the child. And I got involved at that point through 

the legal services, local legal services group, and represented her 

and got the contempt resolved. She was not held in contempt of 

court, and I worked with her and gave her a calendar. She really 

didn’t understand the terms of the order, and I went and bought 

her a calendar, and we went through day by day and marked times 

and dates that would comply with the order. And we also talked 

about some things I won’t go into for confidentiality reasons, but 

to help her avoid those types of situations. 

And I was involved in another——

Senator DURBIN. I will give you an opportunity in written questions to come back, if you would like, to give me some other examples of such work that you were engaged in before you went on the 

court. 

I also mentioned in Judge Johnson’s situation that he took—

showed a great deal of courage as a judicial activist in civil rights 

and was extremely unpopular in his own community as a result of 

that. Can you think of an example of an opinion that you have 

written on the Texas Supreme Court that was politically unpopular 

with the established power structure in Texas or in a community 

but that you felt was the right thing to do. 

Justice OWEN. Well, first of all, let me say, I don’t want to, by 

answering that question label the judge you described or any other 

judge as a judicial activist. I’m not saying that I don’t applaud 

what he did or think that he did the wrong thing. I just—I hate 

to apply that label to any judge, particularly, as it sounds like to 

me, he was applying the Civil Rights Act. But, in any event——

39

Senator DURBIN. This is before the Civil Rights Act. 

Justice OWEN. I’m certain I’ve written unpopular decisions. Sitting here at the moment, let me kind of go through those in my 

mind. Again, if you would give me some time to respond to that. 

Senator DURBIN. I will give you the time to do it. I don’t want 

to trap you here. I want you to have the time. 

We have also asked Miguel Estrada a question—, 

Justice OWEN. Can I ask for some clarification? 

Senator DURBIN. Sure. 

Justice OWEN. When you say the establishment, can you give me 

a more precise question so that I will have something clearer? 

Senator DURBIN. Well, I think having practiced law myself, I can 

recall that most of my clients, paying clients, particularly when I 

was a defense attorney, were—represented businesses, represented 

people of wealth and stature, and occasionally in came a client who 

had none of those things and needed a lawyer who would stand up 

and fight for them. My question is whether you can recall a case 

where you ended up ruling thinking this is not going to be popular 

with the establishment in this community because it really is to 

protect or promote the rights of an individual against the establishment, the status quo, the power structure. So I will give you a 

chance to review your cases. 

We asked this question—and you may have already been asked 

this, and if you have, please forgive me because I didn’t catch it. 

We asked Mr. Estrada to list three cases before the Supreme Court 

that he would disagree with now today, and he declined to answer. 

I hope that you will take this opportunity to hand us—give us a 

written answer to that question, a question that has been asked 

over and over again by Senator Sessions of Democratic nominees. 

I hope you will be kind enough to give me an example of some of 

those cases; and also, in terms of judicial philosophy, to name several Federal judges, preferably Supreme Court Justices whom you 

might be familiar with, but perhaps others, living or dead, whom 

you admire and would like to emulate on the bench. 

Now, I am not asking you to find the perfect match for yourself. 

I couldn’t do that if you asked me for a Senator that I would want 

to be a clone of, though there are some that are close. But if you 

could just pick out a few whom you admire and——

Justice OWEN. Well, I admire every member on the current Supreme Court. 

Senator DURBIN. That is safe. 

Justice OWEN. For various reasons. 

Senator DURBIN. But if you could pick out maybe those that have 

made an impression on your because of their temperament, their 

legal skill, or some other aspect of their career that you would like 

to emulate on the bench. And, again, I am not putting you on the 

spot here. My time has expired. And if you would be kind enough 

to submit that in writing, I would appreciate it. 

Thank you, Mr. Chairman. 

Senator CORNYN. [Presiding.] Thank you, Senator Durbin. 

Justice Owen, let me take up where at least a moment ago Senator Durbin left off, the Quantum Chemical Corporation case, and 

you joined a dissent, it is claimed, that would have increased the 

plaintiff’s burden in a discrimination case. Now, isn’t it true that 

40

frequently you will see where the Federal Congress passes a statute and then the State legislature will pass a statute that looks 

like they are basically trying to provide a State remedy parallel to 

the Federal statute? Does that happen frequently? 

Justice OWEN. Yes, Senator, it does. At least in Texas. 

Senator CORNYN. It is true, is it not, that the Texas human 

rights statute at issue in that case is modeled on Title VII and, in 

fact, provides expressly to provide for the execution of the policies 

of Title VII and its subsequent amendments. So in construing that 

statute, you looked at how the Federal courts had construed a 

nearly identical statute with the same words as the State statute? 

Justice OWEN. Yes, I did. 

Senator CORNYN. And so in this instance, was the principal difference between the majority and the dissenting opinions which 

Federal court’s decisions you ought to choose from in deciding—in 

light of the express language of the Federal law and the history of 

the 1991 amendment to the Federal Civil Rights Act? 

Justice OWEN. I think that it’s sort of more or less boiled down 

to that. The majority of the court looked at two circuit court decisions that I didn’t think were as well reasoned and not necessarily 

as on point as two other Federal circuit decisions, and there was 

also language in two U.S. Supreme Court decisions that gave me 

some pause, that did not clearly decide the issue but that certainly 

gave me some pause. 

And also I looked at the history of how the Act came to be and 

the actual words of it, and I was persuaded to go the way that I 

did. 

Senator CORNYN. And the dissenting opinion that you joined happened to find a couple of opinions from the Third and Fourth Circuit and two Supreme Court opinions which you viewed as dispositive or more convincing than the ones cited by the majority. Is that 

right? 

Justice OWEN. I thought they were well—better reasoned and 

were more compelling on the law to me. 

Senator CORNYN. I know we are asking you to stretch your memory here, and actually, as you talk about these cases, it brings back 

a flood of memories. 

Justice OWEN. I’m sure it does. 

Senator CORNYN. But do you happen to recall that one of the 

judges in the case that you cited or that was cited in the dissent 

for the Fourth Circuit was Judge Diana Motz? Does that ring a 

bell? 

Justice OWEN. I’m sorry, Senator Cornyn, it doesn’t. Even when 

I read U.S. Supreme Court cases, I must admit I don’t remember 

who wrote a lot of them. 

Senator CORNYN. Well, that is only fair, really, that you would 

not necessarily remember that. But I think the record will reflect 

that Judge Motz authored that opinion for the Fourth Circuit and, 

in fact, had been a Clinton nominee. 

So do you think it is fair to criticize you as being somehow antiemployee or anti-civil rights from the decision that you made in 

that case? 

Justice OWEN. I would hope no one would criticize me or any 

other judge who really does dig into the case law and makes a very 

41

studied, hard effort to do the best they can to apply the law. We 

are certainly going to disagree. People on my court do. People on 

all courts disagree from time to time. But I certainly hope that 

when people disagree that they are not labeled as anti one side or 

the other based on how they came down in that particular case. 

Senator CORNYN. I have been corrected. Judge Motz apparently 

joined the opinion but didn’t author it. But that just shows how 

poor memory can serve us. 

Let me ask you about the role of discretion. Senator Durbin I 

think made a good point. Judges aren’t computers. How would you 

compare the discretion that judges exercise with the discretionary, 

say, exercised by the executive branch, either a Governor or a 

President, or by the legislative branch? Because what we are really 

talking about is a continuum, not an absolute, where you administer some formula and spit out a result based on a formula. 

Justice OWEN. The appellate courts, of course, have very little 

discretion, by and large. When you are talking about construing a 

statute, when you are talking about applying statutory principles, 

constitutional principles, prior precedent to the facts, we certainly 

don’t have discretion to weigh the evidence that comes before us. 

By the time it gets to my court, Senator Cornyn, as I know you 

well know, the facts are set in stone. They are what they are. We 

may have found the facts to be otherwise had we been the jury or 

the judge in the case as fact finder. But the facts are set in concrete, and our job is simply to apply the law to the facts. 

Senator CORNYN. Was there anything about—anything political 

or did it represent an exercise in discretion on your part in the 

Sonnier case involving whether a tomato-chopping machine was 

personal or real property that you have been criticized about? 

Justice OWEN. I certainly didn’t see any kind of political issue in 

the tomato-chopping case. No, Senator, I did not. 

Senator CORNYN. Well, I know that Senator Feingold has joined 

us, and just so you know, Senator Feingold and I are actually both 

on the Budget Committee, and we are having a number of critical 

votes. So that is one reason why a number of members are not 

physically present here but will be coming in and out. And I am 

glad that he could join us after that vote, and at this point I would 

like to go ahead and reserve the rest of my time and yield to him 

for any questions he might have. 

Senator FEINGOLD. Thank you, Mr. Chairman, and thank you for 

mentioning the budget proceeding. 

Welcome, Justice Owen. 

Justice OWEN. Good to see you again, Senator. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Mr. Chairman, I again want to express my 

concern about how this committee is dealing with judicial nominees. Back at the end of January, we held a hearing on three circuit court nominees at once: Jeffrey Sutton, Justice Deborah Cook, 

and John Roberts. Questioning at that all-day hearing was largely 

directed to Mr. Sutton. Many of us requested repeatedly, both that 

day and subsequently, that Justice Cook and Mr. Roberts be 

brought back for another hearing so that this committee could fulVerDate 0ct 09 2002 15:36 Oct 09, 2003 Jkt 089329 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89329.TXT SJUD4 PsN: CMORC
42

fill its duty as part of the Senate’s constitutional role in the nominations process. 

Over and over again, we were refused a second hearing, and then 

the two nominees were pushed over to a vote over the objection of 

every Democrat on the committee, which was a clear violation, Mr. 

Chairman, a clear violation of the committee rule, Rule IV, which 

I had never seen violated in my 8 or 9 years on this committee. 

We have still not resolved how this committee is going to move 

forward in a collegial way when those in the minority and even its 

rules are not given the respect and fair treatment they deserves. 

Yesterday we had another nominations hearing on eight lower 

court and executive branch appointments, including a very controversial nominee to the Court of Federal Claims. Today we have 

yet another hearing on a circuit court nominee, the sixth already 

this year. And no one has explained to me why we are having a 

second hearing Justice Owen, who was actually thoroughly questioned last year in an all-day hearing chaired by Senator Feinstein, 

but we could not have a second hearing on Justice Cook and Mr. 

Roberts who were hardly questioned at all on January 29th. I see 

a lack of consistency here and a willingness to exercise what at 

least looks like raw partisan power in order to pursue this forced 

march on nominations. Rather than trying to heal wounds caused 

by our disagreements, the majority almost seems like it wants to 

pour a little salt in them, and I think that is very unfortunate. 

Justice Owen, I appreciate your willingness to appear here again. 

I do not have many questions for you. I just want to followup on 

one issue that we actually discussed during your hearing and then 

elaborated on in an exchange in writing, and that is the issue of 

what some call clerk perks. I asked you about the practice in the 

Texas Supreme Court of law clerks receiving cash bonuses from 

law firms for which they were going to work upon completion of 

their clerkships. Do you remember that discussion? 

Justice OWEN. I do. 

Senator FEINGOLD. When you testified in the hearing, you suggested that the practice in Texas was no different from what occurred in Federal courts and even the Supreme Court, and that 

was why you felt that the attacks in the Texas courts by certain 

interest groups in Texas were unfair. 

In answer to my written questions, you indicated that you might 

have misunderstood my questions at the hearing. You said, ‘‘I do 

not think that when you said that the Supreme Court of Texas had 

been criticized for allowing its law clerks to accept large bonuses 

you meant bonuses that were actually paid to a law clerk while he 

or she was working for the court. And I do not know whether any 

law clerk for the Supreme Court of Texas was actually paid a clerkship bonus while clerking for the court.’’

Your hearing was on July 24, 2002, and you submitted your written answers to my followup questions on August 12, 2002. 

Do you still, sitting here today, not know whether any law clerk 

for the Supreme Court of Texas was actually paid a clerkship 

bonus while clerking for the court? 

Justice OWEN. Senator, I still don’t know. 

Senator FEINGOLD. Well, I have got to say I find that a little surprising in light of all the controversy that surrounded this issue 

43

and the fact that the Supreme Court of Texas changed its policy 

concerning clerkship bonuses as a result of the investigation. 

There was a National Law Journal report on February 26, 2001, 

just 2 weeks after the story broke of the Travis County attorney’s 

investigation. ‘‘The Texas Supreme Court has prohibited its law 

clerks from accepting bonuses as reimbursement for bar exam fees 

or moving expenses from law firms during their clerkships.’’

Mr. Chairman, I would ask consent to put in the record that article and a series of newspaper articles that make clear that there 

was a practice of paying bonuses to clerks during their clerkships. 

Mr. Chairman, is that acceptable to the committee that those be 

included in the record? 

Senator CORNYN. Without objection. 

Senator FEINGOLD. Thank you. 

An editorial in the Austin American-Statesman on September 8, 

2001, for example, states, ‘‘Law firms have given the bonuses before, during, and after graduates go to work as briefing attorneys 

for the courts.’’ So I would ask, Justice Owen, if you have anything 

further you want to add on this topic? 

Justice OWEN. Yes, Senator Feingold. I would like to address 

that. The controversy over the law clerk bonus program that the 

employers or future employers of law clerks were paying to me, in 

the best of my recollection, the controversy was not over the timing 

of the bonus. It was over the fact that there was a bonus ever given 

at any point in time. And it didn’t seem to matter to those critics 

of law clerk bonuses whether the law clerk accepted it before, during, or after their tenure on the court, whether it was my court or 

any other court. 

I was trying to clarify in my written responses that I do not 

know whether a law clerk, while they were employed by the court, 

actually accepted a law clerk bonus. I don’t know. I do know certainly that they received law clerk bonuses after they left our employ and went to work for their employer. I am certain of that. I 

know that that occurred. But I was not certain about the timing, 

that the timing did not seem to be the determinative or really that 

much of a factor at all in the criticism. The criticism was that they 

were given at all. 

And so what the law firms did and what we, the court, put in 

its rules is what, in my understanding, the county attorney said 

this is certainly acceptable, but you can’t accept a lump sum payment after you leave. It needs to be spread out over a year. 

Senator FEINGOLD. I thank the witness and I thank the Chair. 

Senator CORNYN. Thank you, Senator Feingold. 

Justice Owen, let me just ask you a little bit about the so-called 

clerk perks, but first I want to say to Senator Feingold, before I 

know he has to leave for other commitments, that he and I have 

actually had a discussion about the process of judicial confirmation, 

and I think I have expressed to him and I think he has expressed 

here today and at other times his frustration at how broken this 

process has become. And I guess a lot has happened over the last 

years, including and even since I have been in the Senate, but 

mainly this has happened before I got here and before 11 Senators 

who comprise the freshman class of Senators for the 108th Congress have gotten here. And I have heard a number of Senators 

44

who I respect very much who have expressed concerns, people like 

Senator Feingold, Senator Specter, and others, about how broken 

the process is and how much the sort of finger-pointing that even 

we heard during some of the statements today about, well, this is 

OK we treat you this way because of the way that other nominees 

were treated; or you shouldn’t get a vote in the Senate because others didn’t even get a vote at all, they didn’t even get to come before 

the committee. 

So, you know, there is nothing any of us can do to rewrite history, but I would just say here with this opportunity that I share 

some of the frustrations. And what I would hope is that at some 

point—and I don’t really know whether it is with your nomination 

or Miguel Estrada’s, but hopefully sometime soon we can bring together some Senators who are frustrated, maybe for different reasons, about the process and try to come up with some kind of process where we can get the nominees of the President, no matter who 

happens to hold that office, an opportunity for a timely hearing and 

then an up-or-down vote on the Senate floor. 

I know Senator Durbin mentioned Jorge Rangel, for example, 

who I happen to know very well, a Corpus Christi lawyer who I 

would have, if I had been on this panel, said is a good nominee. 

He happened to be nominated by President Clinton. But for some 

reasons that I may not be aware of, he didn’t get a vote. 

So that is just one example I would point to and say I hope we 

don’t get so bogged down in recrimination and finger-pointing and 

tit-for-tat in this body that we forget why it is we were sent here, 

that is, we in the Senate, and that is to discharge our duty, to represent the people who sent us here, and to vote, and that some of 

the game-playing and that sort of thing, which I think has really 

sunk to a level that is beneath the dignity of this institution, that 

we get a clean break and a fresh start. 

Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, I think what you are saying 

is so important that I would just like to respond. I really appreciate 

that sentiment, and, you know, I had some of the same feeling. I 

have been on the committee for 8 or 9 years, but I had the same 

feeling. An awful lot of this had started before I got here. And I 

just want to say that I would love to figure out a way to break this 

logjam, this type of logjam. I want to say specifically that I totally 

reject the idea of tit-for-tat or recrimination. I don’t believe in it. 

And any opposition that I have with regard to any nominee is not 

about that. It just could never work that way. And it is a disservice 

and an insult to our judiciary. 

On the other hand, I also know that the answer can’t be that one 

party gets to have the judges and the other party doesn’t. 

So whatever solution there is has to take into account what I 

witnessed on this committee. And what I did witness was a systematic attempt to prevent President Clinton’s nominees from getting 

a hearing. You know, I like to think I have a reputation as a fair 

guy. A lot of people were very unhappy that I voted for John 

Ashcroft for Attorney General. I thought it was the right thing to 

do. But at the same time, I indicated that what was going on with 

judges at that time was just wrong. 

45

So, yes, there has to be a change. We have to break this logjam. 

But it somehow has to take into account what happened to President Clinton’s nominees so that both sides could go forward with 

a whole different attitude in the future. So I am eager to find a solution, and, Mr. Chairman, I appreciate the sentiments that you indicated. 

Senator CORNYN. Thank you, Senator Feingold. And I appreciate 

your reputation for being fair-minded and even-handed, and, you 

know, that is what happens when you try to do your job in an impartial, dutiful sort of way. Sometimes you are going to make a 

vote that somebody says, well, how could you do that? It doesn’t 

necessary serve your political interests. But, in fairness, it is a 

judgment you have to make and I think that is no different, really, 

from Senators and judges. 

Let me ask you, just so the record is clear and those perhaps who 

may be watching these proceedings on closed-circuit television or 

otherwise will know, Senator Feingold raises the issue of clerk 

perks, and I know, because when I was serving with you on the Supreme Court, we could not pay law clerks—‘‘briefing attorneys,’’ we 

called them—very much money. I seem to recall that it was somewhere on the order of $30,000 a year while their peers, people who 

decided to go immediately to a large law firm and people who they 

were competitive with in law school would be making $100,000 or 

more. Is my memory roughly correct? 

Justice OWEN. Yes, Senator. I think the gap may have widened 

over time. 

Senator CORNYN. And there was a concern about how the judiciary, whether it is the Supreme Court or the Federal courts, can 

compete in getting good, high-quality candidates to serve in those 

important positions. And I recall the discussion of bonuses came 

up, but if you will just confirm my memory, if it is right, and if 

it is wrong, correct it. But my memory is that any bonuses that 

were ever paid to briefing attorneys or, for that matter, any briefing attorney who had accepted a job after the time they worked at 

the Supreme Court was entirely walled off and precluded from 

doing any work on any matters that may come before the court involving that law firm. Is that correct? 

Justice OWEN. Absolutely. Absolutely. They were not—they’re not 

allowed to touch the file, to sit in on any discussion of it, to work 

on any memos. They are completely isolated from all matters that 

that law firm is involved in, or law firms. 

Senator CORNYN. In a moment, I want to—we are going to recess 

this hearing subject to the call of the Chair. The main reason for 

this hearing is, as you know, Justice Owen, to give any Senator 

who has questions an opportunity to ask you those questions, 

whether in person or in writing. And we appreciate your coming 

back for that purpose. 

Since I have been in the Senate, I have heard it alleged that for 

some candidates Senators have not been able to get all the questions answered that they have, and we don’t want that criticism to 

be applied in your case. We want to make sure that any Senator 

who has a question can ask questions, and that is why I believe 

Chairman Hatch has asked you to come back, not to create some 

sort of new precedent in your case or any other sort of nefarious 

46

reason, but strictly to give Senators an opportunity to ask every 

question they may have. 

Senator Schumer has asked to submit his statement for the 

record, and without objection, that will be accepted, his written 

statement. 

And so, with that, we are going to stand in recess until 2:30 p.m., 

subject to the call of the Chair. 

We are not going to do it for a time certain, but subject to the 

call of the Chair, so I will make that correction for the record. 

Justice OWEN. Thank you, Senator. 

Senator CORNYN. Thank you very much. 

Justice OWEN. Thank you. 

[Whereupon, at 1:02 p.m., the committee recessed, subject to the 

call of the Chair.] 

[The committee reconvened at 2:40 p.m., Hon. Orrin G. Hatch 

presiding.] 

Chairman HATCH. We are happy to begin these hearings again 

this afternoon, and I welcome you back to the committee, Justice 

Owen. 

Justice OWEN. Thank you. 

Chairman HATCH. We have had an interesting morning, and I 

apologize that I have been running back and forth between the 

floor and here, but we had Mr. Bybee up on the floor and I wanted 

to make it clear to invite every Senator who has any questions of 

you to come over. So I did that. I also a wrote a letter to every Senator in the U.S. Senate explaining that you were not treated very 

fairly in the last hearing. You were treated fairly by the chairman, 

but you were not treated very fairly by some—let me rephrase that. 

You were not treated very fairly in the markup, because many 

statements that were made were absolutely not right and I don’t 

know how in the world my colleagues got them so wrong. 

So one of the reasons why I am happy to have this opportunity 

to hear you again is to clarify some of those areas that really were 

very badly misspoken during our markup. I do believe that if our 

colleagues really look at the record carefully and clearly, they will 

see that you have not only answered the questions, but you have 

answered them well, and I think they will see why you got the 

unanimous ‘‘well qualified’’ rating, the highest rating the American 

Bar Association can give. 

So this is a very, very important hearing and it is important to 

you. You deserve to be treated fairly. You deserve to have your excellent record explained. I am not the only person who feels—there 

were many who watched that hearing last time who felt you were 

one of the most qualified nominees we have ever had before the 

committee, and I personally believe that. 

I have seen a lot of people and I have sat in on a lot of these 

hearings and I have conducted a lot of them and I have asked questions at many, many hearings, and I have to say you were at the 

top of the list of people who have appeared before the committee 

who were honorable and decent, great lawyers, and in your case a 

great justice, a great judge. 

Let me just go over a few things and then see if any of our colleagues have any more questions. I would be happy to keep this 

hearing going as long as it takes to have them ask their questions. 

47

But while we wait for some of them to show up and give them 

some time, because there is a vote on the floor, let me ask you this 

question. 

Justice Owen, you have been criticized for your legal interpretation of the parental notification statute’s use of the term, quote, 

‘‘mature and sufficiently well-informed,’’ unquote. I just want to 

clarify why you went about interpreting the statute the way you 

did so everybody will realize that you did it as it should have been 

done. 

There are a number of rules of construction that courts apply 

when interpreting a statute, and isn’t it true that one of those rules 

is that a legislature is presumed to be aware of the U.S. Supreme 

Court precedent in an area in which it has passed a statute? Is 

that right? 

Justice OWEN. Yes, Mr. Chairman, that is one of the rules of construction. 

Chairman HATCH. That is a basic rule of construction that the 

courts will follow? 

Justice OWEN. Yes, Mr. Chairman. 

Chairman HATCH. That is your basic rule of construction, as 

well? 

Justice OWEN. It is. 

Chairman HATCH. OK. Now, when you looked at the Texas parental notification statute, did you follow that basic rule of construction, in that your presumption would be that the Texas Legislature was, in fact, aware of Supreme Court precedent when it 

crafted its judicial bypass process? 

Justice OWEN. Certainly, I think it was obvious to every member 

on my court that this statute was not written in a vacuum and that 

it was written against the context of Supreme Court decisions over 

a period of 20, now 30 years. 

Chairman HATCH. Well, when you looked at the Texas parental 

notification statute, you followed that basic rule of construction, I 

know, but now all of your colleagues agreed with you on that point, 

as well. 

Justice OWEN. They did. 

Chairman HATCH. On page 254 of the text of the Supreme Court 

majority opinion in the first Jane Doe case, your court’s majority 

is discussing a line of U.S. Supreme Court cases on parental bypass, starting with the Bellotti case. Your court majority concludes, 

and I quote, ‘‘Our legislature was obviously aware of this jurisprudence when it drafted the statute before us,’’ unquote. 

So you weren’t alone in your conclusion that the Texas Legislature drafted the parental notification statute with the Supreme 

Court cases in this area in mind, were you? 

Justice OWEN. No, I was not alone. 

Chairman HATCH. You went and looked at all of the Supreme 

Court cases in this area? 

Justice OWEN. I did. I read them and re-read them. 

Chairman HATCH. And you pulled from them the things they 

said that a court could take into account in determining whether 

a young girl is mature and sufficiently well-informed. Is that an accurate appraisal? 

48

Justice OWEN. That is, and some of the cases not only involved 

minors, but involved more broadly the whole issue of choice and 

what States may and may not encourage someone who is making 

the decision. So some of it was drawn from cases that were not exclusively related to minors. 

Chairman HATCH. I would like to go back over this quickly and 

make sure I understand all this correctly, and I want the committee to understand it correctly because there was some, I think, 

mis-construction of your earlier testimony when you appeared before the committee before and I want to make sure that there is 

no mis-construction the second time around. 

Because it is a rule of statutory construction that your court 

should presume that the legislature was aware of U.S. Supreme 

Court precedent in this area, you did look to what the Supreme 

Court had said. And instead of picking and choosing among the 

things the Supreme Court had said were permissible for a State to 

consider in whether a minor was, quote, ‘‘mature and sufficiently 

well-informed,’’ unquote, you would have defined those words in 

light of everything the Supreme Court had said up to that point. 

Is that an accurate appraisal? 

Justice OWEN. That is correct, Senator. I didn’t see any basis or 

any indication from the legislature that we were supposed to pick 

some aspects of that and not others. 

Chairman HATCH. The Texas Legislature did not define, quote, 

‘‘mature and sufficiently well-informed,’’ unquote, anywhere in the 

statute, did they ? 

Justice OWEN. No, Mr. Chairman, they did not. 

Chairman HATCH. And again they are presumed to be aware of 

Supreme Court precedent in that area. Now, it seems to me that 

if they did not define those terms, they would expect the words to 

be defined by Supreme Court precedent. Would that be a fair appraisal? 

Justice OWEN. I think they certainly chose those words in the 

context of all of those decisions and what they have said. 

Chairman HATCH. In other words, if you didn’t include everything the Supreme Court had said, you would have been substituting your own judgment for that of the legislature. Is that correct? 

Justice OWEN. That is what I thought, yes, Mr. Chairman. 

Chairman HATCH. In fact, this committee received a letter from 

one of the sponsors of the Texas Parental Notification Act, Senator 

Florence Shapiro, and she had this to say, quote, ‘‘I appreciated 

that Justice Owen’s opinions throughout this series of cases looked 

carefully at the new statute and looked carefully at the governing 

U.S. Supreme Court precedent upon which the language was based 

to determine what the legislature intended to do,’’ unquote. 

She added, quote, ‘‘Along with many of my colleagues, Democrats 

and Republicans alike, I filed a bipartisan amicus curiae brief with 

the Texas Supreme Court explaining that the language of the Act 

was crafted in order to promote, except in very limited circumstances, parental involvement,’’ unquote. 

Now, it sounds to me that you did what a good judge would do. 

You followed the rules of statutory construction. You went back 

and looked at what the Supreme Court had pronounced on this 

49

matter and the precedents that the Supreme Court had set, and 

you did what the legislature intended, as Senator Shapiro attested 

to. Am I right? 

Justice OWEN. I tried my best. 

Chairman HATCH. The fact is you did that, didn’t you? 

Justice OWEN. Yes, sir, I believe I did. 

Chairman HATCH. Well, that is important. I hope that clarifies 

something that I think was distorted during our markup. And I am 

going to, with your permission, continue to clarify a few things because I think we want to make sure that the second time around 

you are treated a little more fairly than you were the first time 

around. 

I think if people will look at this record and look at what you 

have said, I don’t see how anybody could possibly vote against you, 

to be honest with you. Now, we do misunderstand some things 

around here. There is no question about it, and a lot of very sincere 

people do some very sincerely dumb things around this place. That 

doesn’t necessarily mean that my colleagues are doing that, but I 

felt that they did in this markup that we had. 

Now, let me go to the question of FM Properties Operating Company v. City of Austin because this came up as well. I would like 

to clarify some points about the FM Properties case. 

This was case was not a case about big business interests or polluters of the environment. What this case came down to was State 

versus local regulation. Am I correct in that? 

Justice OWEN. That is correct, Senator, Mr. Chairman. We had 

a statute in front of the court and the constitutionality of a statutory scheme that had been passed by the Texas Legislature was 

being challenged. So it was a question of whether the legislature’s 

will, as spoken through that statute, was constitutional or not. 

Chairman HATCH. As I understand it, both the city of Austin and 

the State of Texas wanted its law to control in an area known as 

an, quote, ‘‘extraterritorial jurisdiction,’’ unquote. So it was an area 

outside the city, right? 

Justice OWEN. That is correct. It was outside the city’s set limits. 

But under Texas law, depending on the size of a city, they can encircle an area called their extraterritorial jurisdiction and enforce 

some ordinances before they annex it. 

Chairman HATCH. OK. Now, after some back-and-forth, the State 

legislature passed a provision that was included in the Texas 

Water Code that basically took away the city of Austin’s authority 

to regulate within this extraterritorial jurisdiction. Is that a correct 

statement? 

Justice OWEN. That is correct. The statute essentially said—and 

again I am a little bit cold on the exact provisions, but I believe 

it said that if the city changes the rules of the game, basically, 

within this ETJ more than three times within a period of time, 

then the State scheme kicks in. And it was a regulatory scheme of 

the State; it wasn’t simply abrogating the city of Austin’s ordinances. It imposed its own set of regulations. 

Chairman HATCH. I think anybody listening can see that these 

aren’t easy cases. 

Justice OWEN. It was not an easy case. 

50

Chairman HATCH. Well, now, to be clear, although the city of 

Austin couldn’t regulate within the extraterritorial jurisdiction, 

that land remained subject to all of the State environmental regulations, isn’t that correct? 

Justice OWEN. That is correct, and there was another layer of 

regulation added under this statute. These water quality plans that 

would be developed in these areas were also subject to review by 

the Texas Natural Resources Commission. So there was another 

layer of regulation on top of that that would be applicable to every 

other land outside a city limits across Texas. 

Chairman HATCH. And that would include any State laws on 

water quality standards. Is that accurate, as well? 

Justice OWEN. That is accurate, Mr. Chairman. It had to meet 

all the State——

Chairman HATCH. There was no action by the court to interfere 

with State environmental regulations? 

Justice OWEN. No, I didn’t view it that way. 

Chairman HATCH. Or even water quality regulations? 

Justice OWEN. Again, the question in front of us was did the legislature have the constitutional authority to pass this statute, and 

I believed that they did. 

Chairman HATCH. OK. Now, it is also my understanding that the 

then-state attorney general, a Democrat, intervened in that case on 

the side of the State of Texas. 

Justice OWEN. That is correct. 

Chairman HATCH. And took the position, as I understand it, that 

the State of Texas had entered into this area and its law predominated over the local ordinances. Is that your understanding? 

Justice OWEN. That is correct. The State attorney general argued 

in a lengthy brief filed with us after they intervened saying that 

this statute was constitutional and should be upheld. 

Chairman HATCH. Now, it would seem to me that the city of Austin had authority to regulate within its own extraterritorial jurisdiction only because the legislature had granted it that authority 

in the first place. I think that you even mentioned this in your 

opinion, but what the legislature grants it should be able to take 

away from its own subdivisions. Is that correct? 

Justice OWEN. That was my view that certainly if the legislature 

could allow, permit a city to expand an ETJ, it could certainly contract that. To me, the State trumps the city. 

Chairman HATCH. Then it would appear to me that this opinion 

was a completely reasonable opinion and a reasonable position to 

be taken on these facts. 

Justice OWEN. I believed so at the time. I still do, Senator. 

Chairman HATCH. You wouldn’t have done——

Justice OWEN. No, I wouldn’t have written it had I not. 

Chairman HATCH. Well, that is right. I think if people understand the facts, it is pretty hard to find fault with the decision that 

was made. It was what a good judge would do. 

Now, I don’t mean to wear you out with these things, but I think 

it is important because some of our colleagues seem to have misunderstood some of these things or used them as a justification for 

voting against you when, in fact, they should be a justification for 

voting for you. Anybody who is reasonable and fair would have to 

51

say, my gosh, she was right, she did what she should have done, 

she was a great justice, she was somebody who cared about the 

law, she is somebody who followed precedent, she is somebody who 

lived within the confines of the legislation that was enacted by the 

duly elected officials, she didn’t try to make law, she basically interpreted the law, and she did a pretty good job. I think any decent 

person would conclude that. So I just want to make sure our colleagues don’t have that misconstrued anymore. 

Justice OWEN. Thank you. 

Chairman HATCH. Now, let me move ahead to the City of Garland v. Dallas Morning News. You have been criticized by some on 

this committee for disagreeing with your court on the correct interpretation of the Texas Public Information Act. 

Now, am I correct that this statute is modeled on the Federal 

statute known as the Freedom of Information Act, or what we call 

FOIA? 

Justice OWEN. Certainly, parts of it are, yes, Senator, that is correct. 

Chairman HATCH. Now, I just want to try to simplify what was 

going on in that case so that we can clarify and make sure that 

nobody on this committee will have a right to distort your opinions 

again. 

As I recall, it was about newspaper trying to get a draft memo 

written by someone working for the city about firing someone else 

who worked for the city and the memo was prepared so that the 

city council could discuss the situation. Did I state that pretty well? 

Justice OWEN. That is correct. 

Chairman HATCH. OK. Now, under the Texas statute that you 

were asked to interpret, just like the Federal statute, certain documents are exempt, meaning that the city does not have to produce 

them. Am I correct on that? 

Justice OWEN. Yes, Senator. There was a provision in the Texas 

Act that basically codified what is known as the deliberative process privilege and our court recognized—we all agreed on that. Everybody on my court agreed that this was modeled after the Federal counterpart of the deliberative process privilege. 

Chairman HATCH. As I read the opinion, one of the exemptions 

that your whole court agreed upon was that the documents covered 

under the deliberative process privilege were exempt. 

Justice OWEN. That is correct. 

Chairman HATCH. Everybody agreed on that, didn’t they? 

Justice OWEN. We all agreed that we were trying to figure out 

where the bounds of this deliberative process privilege applied to 

this document. 

Chairman HATCH. If they fell within that deliberative process 

privilege, then they were exempt? 

Justice OWEN. That is correct. 

Chairman HATCH. OK. The question you faced was whether documents used in making personnel decisions, like this memo we are 

talking about, fell under the deliberative process privilege. Is that 

accurate? 

Justice OWEN. That is correct. 

52

Chairman HATCH. So the only dispute involved here was whether 

the scope of that privilege extended to personnel decision documents. Am I right? 

Justice OWEN. That is correct. Clearly, the deliberative process 

privilege would not shield the ultimate decisions and the reasons 

that were publicly given, but it would shield the deliberations of 

the governmental body over what personnel action to take. 

Chairman HATCH. As I understand it, this dispute was a matter 

of first impression, right? 

Justice OWEN. Certainly, for our court. 

Chairman HATCH. Well, it was never decided before by your 

court. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. OK, so there was no precedent on point that 

the court was bound to follow. Is that right? 

Justice OWEN. That is right. 

Chairman HATCH. Certainly, they weren’t bound to follow it 

under a principle of stare decisis. That is correct? 

Justice OWEN. No. That is correct. 

Chairman HATCH. Now, we discussed that the Texas Public Information Act was modeled on FOIA, the Freedom of Information 

Act. 

Justice OWEN. Certainly, this provision. 

Chairman HATCH. The Federal Act. 

Justice OWEN. Yes, certainly, this part and others, but this part, 

yes. 

Chairman HATCH. Am I correct in assuming that because the 

TPIA, or the Texas Act, was modeled on FOIA that that is why you 

looked to Federal case law for guidance in considering whether the 

privilege extended to personnel decisions? Is that right? 

Justice OWEN. That is right, Senator, and again I don’t think we 

materially disagreed over that on the court. The majority of the 

court looked, as well, at Federal decisions to try to find out what 

are the parameters of the deliberative process privilege. 

Chairman HATCH. OK. Is it fair to say that under Federal law, 

documents used to make personnel decisions are included within 

the deliberative process privilege? 

Justice OWEN. Certainly, the cases that I cited seemed to me to 

say that. 

Chairman HATCH. You are pretty sure of that? 

Justice OWEN. I was or I wouldn’t have said so, yes. 

Chairman HATCH. That is right. In other words, you do what you 

think is right, right? 

Justice OWEN. Yes, Senator. I mean, I had no idea what the deliberative process privilege was going into this. I had a completely 

open mind. It was my job to sit down and read the authorities that 

the legislature was presumed to have known about it when they 

passed this statute. 

So I was looking at how the Federal courts—again, there was a 

lot of indication that we should be looking at Federal precedent to 

see what the U.S. Supreme Court and the other Federal courts had 

said about this. And to the best of my ability, I tried to apply it 

to the facts before us. 

53

Chairman HATCH. Well, in fact, the liberal luminary Judge Patricia Wald, who recently retired from the Circuit Court of Appeals 

for the District of Columbia, held that the deliberative process 

privilege extends to similar personnel documents. She joined the 

court’s unanimous opinion so holding in the American Federal of 

Government Employees Local 2782 v. U.S. Department of Commerce. So if I understand correctly, you were urging your court to follow 

Federal case law. 

Justice OWEN. That is correct. There were several cases, including the one that you cited, on point. 

Chairman HATCH. Such as the opinion joined by Judge Wald? 

Justice OWEN. That is correct. 

Chairman HATCH. And to find that the deliberative process privilege incorporates personnel documents. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. It seems to me that that is within the judicial 

mainstream, within the——

Justice OWEN. I certainly thought it was and think it is, and I 

don’t think my colleagues thought otherwise. 

Chairman HATCH. I think you can go further than that. You 

know it is. 

Justice OWEN. I know it is, it is, and we just had a disagreement 

again on the court as to how the statute should be construed. But 

no one thought then, and I certainly don’t think now that I was out 

of the mainstream for taking the position that I did in that case 

and relying on Federal authorities. 

Chairman HATCH. I thought Senator Cornyn’s opening remarks 

introducing you really make it very clear how judges operate. You 

do differ from time to time. You write different opinions from time 

to time and you criticize each other from time to time, mainly because that is the way judges talk. That is what they do. 

One final point on that case, Justice Owen. Your dissent noted 

that the Texas Open Meetings Act specifically allows employment 

matters to be discussed in closed meetings. You argued that a document that might otherwise be made public could not be brought 

within the deliberative process exemption by discussing it at a 

closed session, right? 

Justice OWEN. That is correct. You can’t shield a document simply by taking it into a closed meeting. 

Chairman HATCH. OK. Does it seem utterly inconsistent to you 

to read the Open Meetings Act to exempt personnel discussions 

from coverage, but to then turn around and read the TPIA not to 

cover the documents used at those very same meetings to discuss 

personnel decisions? 

Justice OWEN. It seemed to me that the legislature did not intend to shield the give-and-take, the oral give-and-take. If someone 

had said exactly what was in that memo at an open meeting, that 

would—I am sorry—at a closed meeting, that would be shielded 

under the Information Act. But had they written it down on a piece 

of paper, then it would have to be provided. 

And, again, the rationale behind this is the protection of the employee. That is what the deliberative process privilege—one of the 

things it wants to protect is that when an employee’s future is 

54

being discussed and when perhaps allegations against them are 

being discussed that that is not publicly disseminated unless and 

until a decision is made. And even then the give and the take is 

not disseminated, only the personnel decision and the stated reasons for it. But that is the logic behind that. 

Chairman HATCH. Now, some of my colleagues have accused you 

of ruling against consumers. I have heard some of them really complain that you are not consumer-oriented, but I believe you have 

joined or authored a number of opinions which have advanced the 

interests of consumers. 

To take only a few examples, you have supported the right to 

medical malpractice victims to recover from the physicians who injured them. You have upheld the right of policy-holders to recover 

from insurance companies that refuse to pay meritorious claims. 

I think, by your judicial responsibility to treat all litigants equally and to resolve each of those individual cases according to its individual merits, you have done that as well. 

Justice OWEN. That is correct. 

Chairman HATCH. Is that right? 

Justice OWEN. That is right. 

Chairman HATCH. Therefore, in any given case, is it true that 

you do not determine from the outset which party should prevail, 

whether it be the consumer or some other interest? 

Justice OWEN. No, Senator. That would be the complete antithesis of judging. 

Chairman HATCH. Well, I am going to list some cases that undermine any assertion that you invariably rule against a particular 

type of party and I am going to give you a chance to comment on 

these, because I found some of those criticisms to be particularly 

wrong. In fact, all of these have been wrong, the ones who have 

criticized you. 

Let’s take Crown Life Insurance Company v. Casteel. William 

Casteel, an independent agent, sold insurance policies of Crown 

Life Insurance Company. Ruling on a novel issue, you joined the 

opinion that an insurance agent has standing to sue his insurance 

company for its deceptive or unfair acts or practices in the business 

of insurance. Am I right on that? 

Justice OWEN. That is correct. 

Chairman HATCH. In Chilkewitz v. Hyson, you held that a physician accused of medical malpractice was subject to a lawsuit even 

though the plaintiff named him individually and not the medical 

association with which he was affiliated. You thus rejected the view 

that formalism should stand in the way of deserving plaintiffs’ ability to recover for injuries that they have suffered. Am I right about 

that? 

Justice OWEN. That is right. The doctor—he had formed a professional corporation, of which he was the only shareholder, and he 

had his name listed with his name and ‘‘P.C.’’ after it and the patient didn’t know when they sued him whether they were suing an 

individual or corporate capacity. And after limitations had run, he 

made the argument, well, you sued the wrong entity. And I held—

wrote for the court that, no, that is not right; you cannot lie behind 

the log like that and——

Chairman HATCH. Nor can you hide behind——

55

Justice OWEN. A technicality like that. And we had a specific 

rule that said you may be sued in your assumed name, and he had 

held himself out as that assumed name. And we said, of course, 

limitations has not run; the lawsuit can proceed. 

Chairman HATCH. In Hernandez v. Tokai Corporation, you held 

that a manufacturer of cigarette lighters has a duty to make certain that its products are child-resistant even though the lighters 

were only meant to be used by adults. Is that right? 

Justice OWEN. Yes. We said that—the manufacturer was arguing 

that since they only made these lighters for a specific category of 

customer—for example, people who said that they had difficulty 

using lighters with the child-resistant buttons—they said we 

should not be liable as a matter of law; we have no duty. And our 

court said, no, that the traditional risk balancing, risk/utility balancing must take place. You are not absolutely shielded and do 

have a duty. 

Chairman HATCH. In Mid-Century Insurance Company v. 

Lindsey, you held that an insurance company was obligated to pay 

$50,000 in uninsured motorist coverage. You concluded that the 

policy-holder’s policy which applied to, quote, ‘‘accidents,’’ unquote, 

extended to inadvertent acts committed by a child. Is that right? 

Justice OWEN. That is correct. The child, I believe the facts were, 

was in a pickup and it had a run rack on it. And I believe the child 

was climbing out of the back window into the pickup bed, or vice 

versa, and the gun went off. And we held that that was an accident 

within the meaning of the standard policy, auto policy. 

Chairman HATCH. Well, let me just mention one more. In Lofton

v. Allstate Insurance Company, a consumer in that case prevailed 

against his insurance company in a jury trial for failing to provide 

insurance benefits that had been promised. Siding with the insured—in other words, the person who was insured—you joined the 

opinion that allowed the consumer’s appeal to the trial court’s reduction of the jury award against the insurer to go forward. 

Justice OWEN. I missed the name of the case. I am sorry, Senator. 

Chairman HATCH. It was Lofton v. Allstate Insurance. Justice OWEN. That is correct, that is correct. 

Chairman HATCH. Well, it sounds to me like you have had plenty 

of cases—these were more than a few, but you had plenty of cases 

where you found on behalf of the consumer. 

Well, let me ask you this. Do you have a feeling or a compulsion 

to find for corporations just because they are corporations? 

Justice OWEN. Certainly not, certainly not. 

Chairman HATCH. Do you have a propensity to find for consumers just because they are consumers? 

Justice OWEN. No, Senator. That would not be my job to find for 

either side just because of who they are or what position they hold. 

Chairman HATCH. Are corporations always wrong, as some of my 

colleagues have seemed to imply with some of their questions? 

Justice OWEN. No, Senator, they are not. 

Chairman HATCH. Sometimes, they are actually right, aren’t 

they? 

Justice OWEN. Sometimes they are wrong, sometimes they are 

right. 

56

Chairman HATCH. And what should be done? 

Justice OWEN. Again, as I was trying to explain to some of your 

colleagues earlier this morning, I can’t keep score and say, well, it 

has got to all even up at some point and I must at least rule half 

the time for this side or that side. 

I mean, we have to take each case as it comes, on its merits, and 

we have to apply the law impartially, regardless of which side 

comes out the winner or the loser. The law has to be applied indiscriminately. 

Chairman HATCH. And sometimes the worker is right? 

Justice OWEN. Sometimes, the worker is right. 

Chairman HATCH. Sometimes, the employer is right? 

Justice OWEN. Sometimes, the employer is right. 

Chairman HATCH. Sometimes, the consumer is right, right? 

Justice OWEN. That is correct. 

Chairman HATCH. And sometimes the corporation is right? 

Justice OWEN. That is correct. 

Chairman HATCH. What you seem to be saying to me is that you 

do what you think is right under the law. 

Justice OWEN. Yes, Senator. I have taken a solemn oath to do 

that and I have done—to the very best of my ability, applied the 

law in every case, as I have perceived and as I have researched it 

and studied it and applied it. 

Chairman HATCH. I thought Senator Cornyn’s remarks today, 

since he served with you for 3 years, were pretty persuasive in that 

regard that he thinks you are a great justice. 

Justice OWEN. Well, he was a great judge on our court. I enjoyed 

the opportunity and the honor of serving with him. 

Chairman HATCH. We are honored to have him on the committee 

now. 

Now, let me just go into the area of employment cases just for 

a minute. I don’t mean to keep you. I am just trying to make sure 

that our colleagues have every opportunity to come here and ask 

any questions they want. We have been in hearing now since basically ten o’clock this morning and I would like to make sure that 

anybody who has any questions can come. 

I invited the whole Senate, if they want to——

Justice OWEN. OK. 

Chairman HATCH [continuing]. Because we have had some people 

claim that we are rushing these judges through. Well, I hardly 

think so. You have been sitting there for how long now? 

Justice OWEN. I think we got started about ten-thirty, I think. 

Chairman HATCH. Yes, but I mean how long have you been sitting as a nominee? 

Justice OWEN. Oh. I was nominated in May of 2001. 

Chairman HATCH. So almost 2 years. Well, I think our colleagues 

have had plenty of time to look at your record, but what I want 

to do here in this few minutes that we have together is not wear 

you out with all this, but I just think it is important for us to show 

how there were some misconceptions that I believe caused some of 

my colleagues perhaps sincerely to vote against you. I just want to 

make sure that there are no misconceptions the second time 

around. 

57

Let me just take a few minutes in the area of employment cases. 

In those cases, there has been an effort to cast you as pro-employer, but you have ruled favorably for employees by rejecting employers’ attempts to evade responsibilities for injuries suffered by 

their employees. 

It is clear that you do not set out in a given case with the intention of issuing a ruling that will benefit one side or the other without listening to the facts. You are not going to do that. 

Justice OWEN. That is correct. 

Chairman HATCH. You resolve legal disputes according to the 

governing law. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. And you resolve them in a way that does justice, at least in your eyes, right? 

Justice OWEN. That is my obligation. 

Chairman HATCH. OK. You defer to the stated intentions of the 

people’s elected representatives in the legislature. You have made 

that clear time and time again, and you faithfully enforce the case 

law of the U.S. Supreme Court, regardless of what results those 

authorities will yield. I think that is all true, isn’t it? 

Justice OWEN. It is. 

Chairman HATCH. In Lee Lewis Construction, Inc. v. Harrison, you joined the concurring opinion that upheld a $12.9 million jury 

verdict, $5 million of which was for punitive damages, involving the 

death of a worker on a constructionsite where the general contractor had knowledge of, but did not stop, the use of an extremely 

dangerous device. Am I right on that? 

Justice OWEN. That is correct. 

Chairman HATCH. In Pustejovksy—I don’t know how you pronounce it—v. Rapid-American Corporation, you allowed an employee who had developed cancer due to his exposure to asbestos 

to sue an asbestos supplier, despite the fact that in the past he had 

agreed to settle his claims against another asbestos supplier. You 

refused to allow one settlement to interfere with the injured worker’s ability to recover from another party partially responsible for 

his injuries. Is that right? 

Justice OWEN. That is right, and I also believe in that case that 

he had developed one kind of asbestos disease early on and then 

developed a second kind of asbestos-related disease later in life. 

And so he didn’t know at the time that he settled with the original 

defendants that he down the line would develop this other asbestos-related disease that was different. And we held that—I as part 

of the court held that that did not bar his subsequent suit for the 

later-developing disease. 

Chairman HATCH. In Kroger Company v. Keng, you held that employers who declined to join the State’s worker’s compensation insurance scheme may not raise the defense of, quote, ‘‘comparative 

negligence,’’ unquote. If employers could raise that defense, employees who were injured on the job would have seen their compensation shrink or even disappear. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. So you found for the employees? 

Justice OWEN. I did. 

Chairman HATCH. Because they deserved it, right? 

58

Justice OWEN. We looked at the statute and I thought it was 

pretty clear that they were not entitled——

Chairman HATCH. Has it been your experience that most of the 

employee cases that are brought, the ones that are worthwhile, 

good cases, are generally settled before they ever go to trial? 

Justice OWEN. I think that is a fair assessment that it is only 

the cases where there is really a legitimate argument, a pretty 

solid argument, that get to our court. 

Chairman HATCH. So most of the cases in employment law that 

get there are cases where maybe both sides have arguments and 

they have to be resolved, right? 

Justice OWEN. That is correct. 

Chairman HATCH. And sometimes the business is right, sometimes the employee is right. 

Justice OWEN. That is correct. 

Chairman HATCH. In that case, you ruled for the employee? 

Justice OWEN. Yes, Senator. 

Chairman HATCH. In other cases where you believe they are 

right and the law is on their side, you have ruled for the business? 

Justice OWEN. That is correct. 

Chairman HATCH. Isn’t that what a judge should do? 

Justice OWEN. That is my understanding of what——

Chairman HATCH. Don’t businesses have a right to be treated 

fairly in the courts just like employees do? 

Justice OWEN. Absolutely. 

Chairman HATCH. Well, don’t employees have a right to be treated fairly in the courts just like businesses do? 

Justice OWEN. Absolutely. 

Chairman HATCH. OK. Well, I think anybody in their right mind 

would agree with that, and yet we have had wild-eyed statements 

made in the past on this committee that you rule for corporations 

and not for employees. 

Well, let me just cite another one, NME Hospitals v. Rennells. You joined the opinion that ensured court access for a sex discrimination claim of a female medical provider. The plaintiff sued the 

client of her employer alleging an unlawful employment practice 

under the Texas Commission on Human Rights Act. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. OK. 

Justice OWEN. The issue there was standing. She was not directly an employee and we held in this case that that didn’t matter; 

she still was entitled to sue. 

Chairman HATCH. So you found for the little person, to use some 

of my colleagues’ opinions. But if the common man was wrong, 

would you find for him just because he is not the owner of a business? 

Justice OWEN. No, I would not. 

Chairman HATCH. Well, let me ask this. Because you at one time 

were a corporate lawyer, as well, and a very highly respected one 

with the highest ethical and legal ability ratings, would you find 

for a corporation just because you used to represent some corporations? 

Justice OWEN. No, no, Senator, I would not. 

Chairman HATCH. Not even a former client? 

59

Justice OWEN. No, no. 

Chairman HATCH. In Clark v. Texas Home Health, an employer 

sought to avoid liability for retaliating against nurses who sought 

to make a report of a fatal medical errors with the Board of Examiners by demoting them. The trial court had granted summary 

judgment in favor of the employer. 

You joined the court’s unanimous opinion that the plaintiff 

nurses had a cause of action under Texas law for the retaliatory 

employment decision taken in response to their expressed intent to 

report the unprofessional conduct of another licensed health care 

practitioner. Is that right? 

Justice OWEN. That is correct. I believe in that case the employer 

knew that the nurses were about to take the action and demoted 

them before they could whistle-blow, essentially. And we said, no, 

that is not what the Act contemplates, that you can’t cut them off 

like that. 

Chairman HATCH. So again you found for the employees? 

Justice OWEN. Yes. 

Chairman HATCH. In Franks v. Sematch, Inc., you joined a per 

curiam opinion of the Texas Supreme Court ruling that an employee injured by a manufacturer’s gate is not barred by the statute of limitations from intervening in a subrogation action against 

the manufacturer and employer when the underlying claim was 

timely filed. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. Again, you ruled for the employee. 

Justice OWEN. That is correct. 

Chairman HATCH. In Sanchez v. Hastings, Ms. Sanchez filed a 

legal malpractice suit against her law firm and three of its lawyers, 

alleging failure to sue the employer of her husband who was killed 

in an on-the-job accident. The trial court and the court of appeals—

that is the intermediate court before the supreme court—held that 

the statute of limitations had run on Ms. Sanchez’ legal malpractice action. 

You joined in the opinion that concluded that the pendency of the 

underlying wrongful death litigation tolled the statute of limitations until the litigation concluded. Is that right? 

Justice OWEN. That is correct. 

Chairman HATCH. Again, for the employee. 

Justice OWEN. That is correct. 

Chairman HATCH. It is hard for me to understand how staff can 

prepare Senators on this committee to believe that you are somehow stilted in favor of just the employer, when it is very clear that 

you have not been and that you have done what is right within the 

law. 

In Farmer v. Ben E. Keith Company—I don’t want to do too 

much of this because there are a lot of cases you have been through 

in your lifetime on the court, but I do want to cover some of these 

just to make it clear that these accusations are ridiculous.] 

In Farmer v. Ben E. Keith Company, Ms. Farmer sued her employer for breach of contract related to her injuries that she contended were received on the job. She was injured on the job, according to her. The trial court granted summary judgment to the 

employer and the court appeals dismissed her appeal as untimely. 

60

You joined a per curiam opinion that set forth the appropriate 

appellate timetable and held that Ms. Farmer’s appeal was timely, 

right? 

Justice OWEN. Well, let me say this about per curiam opinions. 

They are not signed opinions of the court. 

Chairman HATCH. right. 

Justice OWEN. It takes at least six judges to put them out, but 

my policy has been since I have been at the court that if I disagreed with a per curiam opinion, I would dissent, so that we 

would all have to line up and I would have a signed dissent. So 

I can’t think of an exception; that if it is a per curiam opinion, either I was for it or I would have dissented. 

Chairman HATCH. So you actually joined in it, then? 

Justice OWEN. As a practical—I can’t say that—I cannot disclose 

and say that particular opinion, but that has been my personal 

practice. 

Chairman HATCH. Now, I will ask about legal protections for 

children. Through your rulings in several cases, you have enhanced 

the legal protections available to children who find themselves 

caught up in the legal system. Young children are some of the most 

vulnerable members of our society, and for them litigation must be 

even more confusing and disorienting than it is for seasoned adults. 

And it is bad enough for adults. Your rulings in the following notable cases affirmed the right of children to be represented by attorneys, and also preserve children’s rights of privacy. 

S.V. v. R.V. In that case, you authored a lone dissent arguing 

that the statute of limitations should be tolled when a child represses the memory of a parent’s sexual abuse. Is that right? 

Justice OWEN. That is correct. She alleged that her father had 

sexually molested her repeatedly when she was a child. 

Chairman HATCH. Well, according to you, the court had tolled 

the statute of limitations in fraud and fiduciary cases, and since 

sexual abuse is more reprehensible than fraud and the parent-child 

relationship happens to be a fiduciary one, you argued the limitations period should be tolled here as well. 

Justice OWEN. I thought that best squared with our prior precedent; I certainly did. 

Chairman HATCH. But you did that in dissent, right? 

Justice OWEN. In dissent. 

Chairman HATCH. You did not prevail in that case? 

Justice OWEN. I did not prevail. 

Chairman HATCH. The other majority went against you in that 

case? 

Justice OWEN. That is correct. 

Chairman HATCH. I wonder if our colleagues gave any consideration to that. Well, I am going to suggest that they do. That is why 

I am asking you this question. 

In In re D.A.S., you held that the right of indigent juveniles to 

be assisted by a lawyer also extends to proceedings on appeal. Is 

that right? 

Justice OWEN. That is correct. 

Chairman HATCH. Prior to the In re D.A.S. case, the scope of a 

juvenile’s right to counsel was unclear in Texas. Is that right? 

61

Justice OWEN. I want to make this clear that this is in the context of a quasi-criminal case, that this is a juvenile delinquency 

proceeding where the juvenile may face being detained as a delinquent for crimes. They are not tried for the crime, but——

Chairman HATCH. But you did that? 

Justice OWEN. Right. It was a quasi-criminal—yes, it was a 

quasi-criminal proceeding. 

Chairman HATCH. OK. In Abrams v. Jones, there was an acrimonious dispute over who should have custody of a child. You refused to allow access to records about the child’s mental health because you concluded, if I read it correctly, that releasing them 

would have harmed the child physically, mentally and emotionally. 

Is that right? 

Justice OWEN. Well, there was a statute in place and the question was how does the statute apply under these circumstances. 

And I held—wrote the opinion for the court that the statute precluded letting one parent get the mental health records of that 

child when the child was seeing the mental health provider because 

they were upset and disturbed by the divorce proceedings. 

Chairman HATCH. Now, I know that I am causing you to sit in 

that seat far too long. If you need a break or anything, just let me 

know. 

Justice OWEN. Thank you. I appreciate that. 

Chairman HATCH. But I think it is important that we blow away 

some of these, I think, unfair comments that have been made because, boy, anybody who looks at your record has got say she is one 

heck of a justice. 

Justice OWEN. Thank you. 

Chairman HATCH. I think most people know that I know what 

a good justice is, and I can tell you you are one of the best I have 

seen and I have been on this committee for 27 years. 

Let me ask you just a basic question, and it is embarrassing for 

you to answer, perhaps, but I think you ought to answer it. 

Justice OWEN. I am sorry? 

Chairman HATCH. I am going to ask you a question that might 

be embarrassing to you and I think you ought to answer it. Do you 

think that you were treated fairly last year? I am not saying that 

your hearing wasn’t conducted fairly, because I was there and it 

was, and I know you believe it was. 

But do you think you have been treated fairly by some of the 

comments made by those who voted against you on this committee? 

Justice OWEN. Senator, let me say this. I think there are a lot 

of allegations out there that are unfounded that seem to continue 

to resonate. And from that standpoint, I am not sure that people 

are—that the allegations that were leveled against me have been 

adequately addressed. 

Chairman HATCH. Well, you are being very diplomatic, as any 

justice should be, but I am asking you a real question. Do you 

think you have been treated fairly in this process? 

Justice OWEN. It was a difficult process to go through; it was 

very difficult. 

Chairman HATCH. Again, I am going to ask the question, do you 

think you were treated fairly or unfairly? 

62

Justice OWEN. I would rather let other people judge that. It was 

hard for me. It was hard because——

Chairman HATCH. What was hard about it? 

Justice OWEN. Because I felt that what I have done and the decisions I have written and what has been written by my colleagues 

about me was not accurately characterized. 

Chairman HATCH. By members of the committee? 

Justice OWEN. Well, or by people who gave members of the committee information. 

Chairman HATCH. You mean you are criticizing our staff on this 

committee? 

Justice OWEN. No. I am not sure who gave whom what, but the 

questions——

Chairman HATCH. I am being deliberately tough on you, but the 

answer is probably so. 

Justice OWEN. A lot of the questions that I was asked had embedded in them premises or statements that were not factually correct. 

Chairman HATCH. Do you think some of the press releases that 

have been issued have been fair, have fairly characterized your 

service on the court? 

Justice OWEN. No, I do not. 

Chairman HATCH. Do you think that some of the public statements that have been made have fairly characterized your work on 

your court? 

Justice OWEN. Certainly not all of them. 

Chairman HATCH. Do you think some of the statements that 

have been made by some of my colleagues who have been opposed 

to you have fairly characterized your service as a justice on the 

Texas Supreme Court? I said some of them. 

Justice OWEN. I am sort of in somewhat of an awkward position. 

Chairman HATCH. I know you are. I am deliberately putting you 

there. My colleagues can be mad at me, but I think you ought to 

say yes or no. 

Justice OWEN. Well, again I think that my record has been given 

short shrift and that there continue to be characterizations of what 

I have written and how I have ruled that I don’t think are accurate. 

Chairman HATCH. My gosh, you graduated No. 1 in your class at 

Baylor Law School. You had the highest score on the bar examination. You have the highest rating by the American Bar Association. 

Your colleagues all respect you. We had one of the Democrat Supreme Court Justices here throughout your whole hearing last time 

who was outraged by the way you were treated. 

Do you remember all that? 

Justice OWEN. I do, I do. 

Chairman HATCH. Well, I will get off that because I know that 

you are uncomfortable, but I think it is important for the public to 

understand that we have an obligation as Senators to do what is 

right around here. We have an obligation to be fair, if not to the 

President, at least to you. 

Justice OWEN. Thank you, Senator. 

Chairman HATCH. Well, let me just go through a few other 

things because it is important that we clarify some—I promise you 

63

I won’t keep this going too much longer, but it is important because 

some of our colleagues, I think, sincerely have distorted your record 

because they have gotten the wrong information, information that 

is not accurate, that is unfair to you. That is why I am taking a 

little bit of time. 

And I am busy. I mean, there is a judgeship up on the floor right 

now and I have already spoken. I have been back and forth so 

many times, I feel like I am going to need a rest tonight. 

Let me ask about legal services for the poor because we keep getting these comments that are, I think, out of left field that you 

don’t care for the poor, you don’t care for employees, you don’t care 

for the underdog. The fact of the matter is, when I look at these 

cases, you sure as heck do. You care for all these people and you 

care for doing what is right in the law. 

Let me just ask about legal services for the poor. It seems to me 

that you have used your position as a public figure to advocate 

higher-quality and more effective legal representation for the poorest citizens of Texas. 

As you explained in Griffin Industries v. Honorable Thirteenth 

Court of Appeals, quote, ‘‘Our State constitution and our rules of 

procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the fees to get 

in,’’ unquote. 

Is that a fair characterization of what you said? 

Justice OWEN. I did say that, yes. 

Chairman HATCH. You also persuaded the Texas Legislature to 

enact a law that provided additional funding to organizations that 

represent the poor. 

Justice OWEN. I must say I didn’t do that single-handedly. 

Chairman HATCH. No, but you did. 

Justice OWEN. I was part of the effort, certainly. 

Chairman HATCH. Well, you certainly helped persuade them. You 

didn’t do it all by yourself, no, but you were there and you helped. 

Justice OWEN. I did. 

Chairman HATCH. OK. As a result, these groups have received 

millions of extra dollars every year since then, right? 

Justice OWEN. That is correct. 

Chairman HATCH. You have also been a member of the Mediation Task Force established by the Texas Supreme Court, as well 

as a number of statewide committees, and each of these organizations aim to improve the availability and quality of legal services 

for the poor. Is that right? 

Justice OWEN. Yes. The mediating committee was not totally focused on so much legal services to the poor, but there certainly 

were dispute resolution centers represented in that process who do 

free mediations for people who cannot afford to pay. 

Chairman HATCH. I have to step out for just a minute, so we are 

going to recess for about three or 4 minutes and I will come right 

back. Is that OK? 

Justice OWEN. Certainly. 

Chairman HATCH. I want to continue this just to make sure that 

everybody understands that we have got to treat you fairly here, 

and that these matters are really important and that they 

shouldn’t be distorted, OK? 

64

Justice OWEN. All right. 

Chairman HATCH. Will you allow me that 3 minutes and I will 

be right back? 

Justice OWEN. Certainly. Thank you. 

[The committee stood in adjournment from 3:31 p.m. to 3:35 

p.m.] 

Chairman HATCH. I know we are wearing you out, but I think 

it is important because I think it is time for people to realize that 

we need to treat nominees of any President decently. And I have 

always tried, and I think people who really know the real story 

around here know that I have. But in your case, I don’t think you 

have been treated fairly and that is why I asked those very tough 

questions of you. I know it put you on the spot and I apologize. 

You handled that so deftly and so well, I can see why you are 

a great justice. You handled it in a way that I don’t think anybody 

should be offended, but you were not treated fairly and I just wanted to make sure everybody in the country knows that. 

The immediate past president of Legal Aid of Central Texas sent 

a letter to the Senate Judiciary Committee for your longstanding 

commitment to assisting society’s least fortunate. According to the 

letter, quote, ‘‘Justice Owen has an understanding of and a commitment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of 

insight and empathy that Justice Owen will bring to the Fifth Circuit,’’ unquote. That is pretty high praise. 

In In Re Jones, you joined the per curiam opinion that a pro se 

litigant satisfied the notice requirements for filing an affidavit asserting her inability to give security for costs of appeal. Is that 

right? 

Justice OWEN. That is correct. 

Chairman HATCH. That was helping somebody who couldn’t help 

herself, right? 

Justice OWEN. That is correct. 

Chairman HATCH. I also understand that you are involved in 

training service dogs. 

Justice OWEN. I don’t personally train them, but I serve on the 

board of the Texas Hearing and Service Dogs. 

Chairman HATCH. So you help in that cause, and those dogs are 

very, very important——

Justice OWEN. They are. 

Chairman HATCH [continuing]. For people with disabilities, the 

blind and others, et cetera, right? 

Justice OWEN. They certainly are. They give people a lot more 

independence and a lot more mobility and freedom than they would 

otherwise have. 

Chairman HATCH. Well, finally, in two landmark rulings you 

voted to reaffirm strong protections for a cleaner environment and 

positive stewardship of natural resources. Let me just mention 

these. 

In Quick v. City of Austin, you joined the majority opinion upholding the enforcement of a city ordinance protecting water quality and controlling pollution in the face of challenges by landowners, right? 

Justice OWEN. That is correct. 

65

Chairman HATCH. In Barshop v. Medina County Underground 

Water Conservation District, large landowners sought to challenge 

the constitutionality of the Edwards Aquifer Act, which regulates 

withdrawals of water from wells drawn in the aquifer and limits 

the drilling of future wells. The landowners contended that the Act 

deprived them of vested property rights. You joined the unanimous 

Supreme Court holding that the State of Texas has the authority 

to regulate and conserve groundwater usage. Is that right? 

Justice OWEN. Yes, that is right. 

Chairman HATCH. Let me just ask you about the Sonnier v. Chisholm——

Justice OWEN. The tomato chopper case? 

Chairman HATCH. Yes, the Chisholm-Ryder case. This is an employee who had been injured by a tomato chopper installed by the 

Texas Department of Corrections who sued the chopper’s manufacturer some 25 years after the manufacturer constructed the machine. You joined a dissent that would have precluded recovery 

from manufacturers or suppliers who products constitute an improvement to the property. 

Did I get that right? 

Justice OWEN. I am not sure I got all the words—I actually wrote 

the dissent, and you couldn’t be a component part supplier, but if 

you actually manufactured a piece of equipment that became permanently affixed to the land, then you would come within the statute of repose. 

Chairman HATCH. The majority said in its reading of the statute—or said its reading of the statute is the only one consistent 

with the plain language of the statute, the legislative history and 

the statutory purpose, and criticized the dissent for advocating a 

test that is significantly more broad than any holding in the area 

up until that time. 

Now, isn’t it true that this case turned on the interpretation of 

Section 16.009 of the Texas Civil Practice and Remedies Code 

which stated that, quote, ‘‘A claimant must bring suit for damages 

against a person who constructs or repairs an improvement to real 

property not later than 10 years after the substantial completion 

of the improvement,’’ unquote? 

Justice OWEN. That is correct. That is what the statute said, and 

let me also point out in that case, with all due respect to the language that one of my colleagues wrote in that opinion, this case 

came to us on a certified question from the Fifth Circuit. 

The Fifth Circuit thought that the law in Texas was not well settled enough. They couldn’t tell what the statute meant. It took 

three judges to certify the question to us. One judge on the Fifth 

Circuit dissented and said it is clear to me, I think it means ‘‘x.’’ 

And my dissent basically agreed with the dissent of the referring 

panel member. And the point of all that is there was certainly room 

for reasonably disagreement over that statute. 

Chairman HATCH. Didn’t the dissenting opinion you joined hold 

that in deciding whether a manufacturer, quote, ‘‘constructs an improvement to real property,’’ unquote, the, quote, ‘‘inquiry should 

include the intent of the parties at the time the item at issue was 

constructed, the manner in which it is used in conjunction with the 

66

property, and the manner in which it is attached or connected in 

some way to the real property,’’ unquote? 

Justice OWEN. That is correct. 

Chairman HATCH. OK. 

Justice OWEN. And I thought in this case that it was too close 

for the court to say one way or the other and the jury should decide. I thought this should have been submitted to the jury and the 

court shouldn’t just decide. 

Chairman HATCH. Well, isn’t it true that the dissenting opinion 

was consistent with prior decisions in seven prior courts of appeals 

decisions in Texas and two decisions of the Fifth Circuit applying 

Texas law? 

Justice OWEN. Yes, it was. 

Chairman HATCH. Now, Senator Kennedy mentioned this case 

this morning, a case in which you and then-Justice Cornyn, and 

now-Senator Cornyn, disagreed. Now, Senator Kennedy tried to 

make that disagreement seem political in nature. 

Wasn’t the issue in that case simply whether a tomato chopper 

machine is real property or personal property? 

Justice OWEN. That is really what it boiled down to. Was it so 

big and was it so affixed and built into the building that it had become real property as opposed to personal property? 

Chairman HATCH. Well, did you have political or ideological ends 

in mind when you decided that case? 

Justice OWEN. Certainly not. 

Chairman HATCH. Do you find anything political about whether 

a tomato chopping machine is real property or not? 

Justice OWEN. I certainly didn’t then and don’t now. 

Chairman HATCH. My gosh, how far can you stretch things—not 

you, but some of our colleagues? 

Now, Justice Owen, do you pledge to follow the law, regardless 

of your personal beliefs and feelings, in matters? 

Justice OWEN. Well, Senator, I am a sitting judge and I have 

taken an oath to do exactly that. 

Chairman HATCH. And you will take the same oath or a similar 

oath to follow the law, regardless of personal feelings, when you 

take your seat on the Fifth Circuit Court of Appeals? 

Justice OWEN. That is correct. Feelings really should not play a 

part in a judge applying the law to the facts. 

Chairman HATCH. Now, do you pledge to follow Roe v. Wade? 

Justice OWEN. Yes, Senator. I have followed it, I have cited it, 

I have been faithful to it, and I would continue to do so were I confirmed to the Fifth Circuit Court of Appeals. 

Chairman HATCH. So you pledge to follow Roe v. Wade as wellestablished and settled law, regardless of personal beliefs and without regard to any personal ideological views? 

Justice OWEN. That is correct. 

Chairman HATCH. There are some who would say that it is not 

well-settled law because there is such a split of opinion in this 

country. 

Justice OWEN. Well, that decision was handed down 30 years 

ago. It was largely reaffirmed, with some modification, in Casey. The Court reconsidered and said, based on stare decisis, this remains the law, and it is still the law and has been. 

67

Chairman HATCH. Well, let me just say that you are making it 

very clear that some of the criticisms that you have had to undergo 

in this process have not been accurate; they have not been fair. In 

fact, some of them have been distortions of your viewpoints and of 

your decisions. Am I correct in that? 

Justice OWEN. I think it is correct to say that some of the characterizations of the opinions that I have either written or joined have 

not been accurate and they have been distorted. 

Chairman HATCH. Well, I think you deserve to have accuracy 

and I think you deserve to not have things be distorted. I just want 

to personally thank you. You know, I think we have covered 

enough here because I think we have covered almost everything 

that has been a criticism. 

I want to thank you for being here today and for making yourself 

available to all members of this committee for questioning. I know 

this has not been exactly fun for you, but it is important for this 

committee to set the record straight and I think you have done an 

excellent job of doing exactly that. 

Justice OWEN. Well, thank you, Senator. I appreciate that. 

Chairman HATCH. As I said at the opening, I called this hearing 

because I believe the committee treated your nomination unfairly 

last fall, especially at the markup. Members of this committee 

made unfounded comments that were directly contradicted by the 

facts and your testimony at that time, but certainly today again. 

I think we have corrected that record by and large. We could correct every aspect of it if we wanted to take time. We have corrected 

the record about Ford v. Miles, the Willie Searcy case, and made 

clear that, contrary to accusations, Mr. Searcy passed away 3 years 

after the Texas Supreme Court’s decision. 

We also clarified that Justice Owen’s opinions in the cases involving the Texas parental notification statute did not touch upon 

in any way the right of those girls to obtain abortions. They were 

a good-faith and legitimate attempt to understand what the legislature meant and to give customary deference to the trial courts that 

actually had the facts and the witnesses, meaning the young girls, 

before them. 

Great deference has to be given to the trier of fact or I think you 

would be outside of the mainstream. Am I wrong on that? 

Justice OWEN. I certainly felt in that case that it was a close 

case, but there was some evidence to support what the trial court 

did, and therefore I had to uphold what the trial court ruled. 

Chairman HATCH. That is certainly not outside of the judicial 

mainstream. 

Justice OWEN. No, Senator, it is not. 

Chairman HATCH. Now, we have also re-heard how totally unjustified it would be to accuse you of favoring defendants or plaintiffs, or vice versa, and yet you have been accused of that. 

Justice OWEN. I have been accused of that. 

Chairman HATCH. Fairly? 

Justice OWEN. I think wrongly. 

Chairman HATCH. We know more about how the Texas Supreme 

Court takes cases and more about how Justice Owen—how you decide them. We also know beyond doubt that Justice Owen was not 

lectured by her colleagues in the case of Weiner v. Wasson. Your 

68

detractors, I think, had confused you with the defendant in that 

case. Am I right on that? 

Justice OWEN. I think that is correct. I think Senator 

Hutchison——

Chairman HATCH. We have also clarified once again that Judge 

Gonzales’ often-repeated comment about judicial activism was not 

directed at you at all. In fact, if you read the language carefully, 

he was saying if he had done some of these things, he would feel 

like he was a judicial activist. Am I right? 

Justice OWEN. Well, yes. He said if someone were to do this, if 

someone were to or would, that would be. And then when he directly addressed—in the following paragraph he said, I respectfully 

disagree. 

Chairman HATCH. I have to admit Judge Gonzales is against judicial activism. If there is anything he is against in the law, it is 

judicial activism. 

Justice OWEN. I agree with that. 

Chairman HATCH. I agree with you that he would not be—I 

would call him your strongest, if not the strongest supporter. Am 

I correct on that? 

Justice OWEN. He has certainly come out very publicly in support 

of me and he is a friend of mine. 

Chairman HATCH. And Senator Cornyn is one of your strongest 

supporters, as well, and he sat there right near you on the Texas 

Supreme Court. Am I correct? 

Justice OWEN. That is correct. 

Chairman HATCH. He saw you operate, he saw what you did, he 

saw your reasoning, he saw your writing, he saw your deliberations. He was part of it, right? 

Justice OWEN. For 3 years, I had the privilege of serving with 

then-Justice Cornyn on the court. 

Chairman HATCH. He certainly gave very strong testimony in 

your behalf here this morning and I think that testimony ought to 

be looked at very carefully by my colleagues. 

There are other issues and I am not going to go through them 

all. Suffice it to say that I believe any member who reads the complete record regarding your nomination this year and last will not 

come up with any legitimate reason to vote no in committee to letting the full Senate weigh in on this nomination. In fact, I think 

you have made an extraordinary case for confirmation. 

Now, let me just say this. We are not at ten to four. We have 

been here since ten o’clock this morning. I have kept this record 

open all day for any of my colleagues to come and ask questions, 

certainly the colleagues on the committee. And I also spoke on the 

floor, sent letters out and requested colleagues to come here and 

listen to you if they had any questions about your qualifications to 

serve. 

So I am going to keep the record open for 1 week, and 1 week 

only, for written questions. I intend to put you on the markup for 

next week, so we will put you on that markup. Any members who 

wish to submit followup questions will have to do so by—I will 

keep it open until 5 p.m. next Wednesday. That would be March 

19, if I recall it correctly. There are going to be no exceptions, unVerDate 0ct 09 2002 15:36 Oct 09, 2003 Jkt 089329 PO 00000 Frm 00074 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89329.TXT SJUD4 PsN: CMORC
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less pre-approved for good reason, and I have always been flexible 

with my colleagues. 

Now, what I am going to do, just in case somebody still wants 

to ask questions of you—I hate to ask you to do this because I 

know it is inconvenient to you, but this is important that we give 

our colleagues every opportunity. I am going to recess until seven 

o’clock tonight, subject to the call of the Chair, and if any of my 

colleagues come to me and want to ask further questions of you, 

they are going to have that right. 

I will have to have you come back at a moment’s notice, so you 

have got to—I know this is a painful experience and I know that 

it is inconvenient for you. I know that you shouldn’t have had to 

go through this, but I just want to make sure that no colleague has 

a right to say that they haven’t been given every opportunity to 

question you, to ask you the most detailed questions to clarify, to 

find out the questions on their own mind. I just want to make sure 

that those complaints in the future are not going to be fair complaints. I have been using the words ‘‘fair’’ and ‘‘unfair’’ here today 

and I think I have used them correctly in all cases. 

With that, we are going to recess until I adjourn formally at 

seven o’clock tonight, and if any of my colleagues call me and they 

do want to ask you some further questions, I would like to have 

you be able to get here within 10 or 15 minutes at the latest. 

Justice OWEN. OK. 

Chairman HATCH. So we are going to need to have you stick 

around. 

Justice OWEN. All right. 

Chairman HATCH. I hate to do that to you, but it is about 3 

hours from now and we will leave that time open for our colleagues. Is that OK? 

Justice OWEN. Thank you. 

Chairman HATCH. Well, I want to thank you. You have been very 

deliberative, you have been forthright, as I expected you to be, as 

everybody does. I think you have been impressive—I don’t think 

you have, I know you have. But I thought you were last time. I 

don’t know that I have ever had a nominee for any court, including 

the Supreme Court, who has been any more impressive than you. 

And I am not just saying that. I felt that way last time, but I 

feel it even more today. You have been gracious, you have been diplomatic, you have answered the questions. You have tried to be as 

forthright and open as you can as a Supreme Court Justice, and 

I think that all weighs very heavily in your favor. I am hopeful 

that when we have your markup, hopefully next Thursday, that 

you will be approved by the committee, and I hope by my colleagues on the other side as well. 

Now, this means that if they submit questions as late as five 

o’clock on next Wednesday, I would like to have those questions answered, if it takes all night to get them done. 

Justice OWEN. I can do that. 

Chairman HATCH. Can you live with that? 

Justice OWEN. I can do my dead-level best. 

Chairman HATCH. Well, with that, then, we will recess until the 

further call of the Chair, and if nobody calls me and asks for furVerDate 0ct 09 2002 15:36 Oct 09, 2003 Jkt 089329 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89329.TXT SJUD4 PsN: CMORC
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ther questions, then we will recess at seven o’clock and put you 

over for the markup. 

Justice OWEN. Thank you, Senator. 

Chairman HATCH. Thank you for your kindness and your perseverance, and thanks for being the great person you are. 

Justice OWEN. Thank you, Senator. 

Chairman HATCH. With that, we will recess. 

[The committee stood in recess from 3:53 p.m. to 7:24 p.m. The 

committee reconvened at 7:24 p.m., Hon. John Cornyn presiding.] 

Senator CORNYN. This afternoon at approximately 3:30 p.m., Senator Hatch recess this hearing, subject to the call of the Chair. He 

indicated at the time that he would resume the hearing at any 

time prior to 7 p.m., in case any member of the Senate wanted to 

ask Justice Owen any questions, not just any member of the Judiciary Committee, but any member of the Senate. 

Since the hour of 7 p.m. has now arrived and passed, this hearing is now adjourned. 

[The questionnaire of Justice Owen follows.] 

[Whereupon, at 7:25 p.m., the committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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