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Bush's 2 nominees are many things to many people

Priscilla Owen and Janice Rogers Brown are brilliant and inspiring jurists ... or out-of-touch right-wingers.

By WES ALLISON and BILL ADAIR
Published May 22, 2005

WASHINGTON - During three days of debate on the Senate floor last week, Priscilla Owen and Janice Rogers Brown became nearly interchangeable: To the Republicans, they are model jurists, brilliant legal scholars and inspiring women who teach Sunday school. The federal appeals courts would be lucky to have them.

To the Democrats, they are right-wing ideologues, hopelessly outside the American mainstream, friends to big business and enemies of the common man and common sense.

As the Senate prepares for a showdown on their nominations, how these jurists performed on the bench has been lost in the caricatures. And they certainly aren't interchangeable.

In the four years since Priscilla R. Owen, 50, was first nominated to a federal appeals court, the right has made her Exhibit A for breaking the Democratic filibuster of judicial nominees. The left has made her Exhibit A for keeping it.

Those who have had cases before her or studied her opinions on the Texas Supreme Court say Owen is an odd choice for extreme icon: Many say she is thoughtful, meticulous and fair.

"She's a good judge, she writes narrowly crafted decisions, she doesn't look to expand the law," said Linda Eads, a former deputy Texas attorney general who oversaw the state's civil litigation division.

"There are certain justices on the court who have an agenda, and you have to gear your arguments to them, or write them off. She was never one of them."

In 1994, Owen rode a pro-Republican, probusiness wave to the high court. In the decade since, she's earned a reputation as one of the Republican-dominated court's most conservative members.

Frank Cross, a professor of law and government at the University of Texas in Austin, said Owen is willing to dissent from majority rulings - invariably taking a more conservative, probusiness position in cases involving employee rights, product liability or consumer affairs.

"It's very hard to second-guess her on any individual case, but the fact is that she has so frequently dissented from Republicans, even when Republicans favored the consumer, or the employee," Cross said.

"She's got a conservative thumb on the scale."

The American Bar Association has given her its highest rating of "well qualified" for the federal appeals court. President Bush first nominated her to the 5th Circuit U.S. Court of Appeals in New Orleans in 2001, but Democrats filibustered her confirmation.

Democrats threatened to block her when she was renominated this year, leading to Senate Majority Leader Bill Frist's plan to change the rules and end the judicial filibuster. If the vote expected this week passes, Owen could be confirmed by week's end; Brown would quickly follow.

Owen's opponents have made much over her opinion in a 2000 case involving a Texas law that requires girls to notify their parents before they have an abortion, unless a court finds she's "sufficiently well-informed" and "mature."

Owen disagreed with the majority's finding that the girl met legal standards and was entitled to an abortion; she wrote that the girl wasn't fully informed about alternatives and that the majority had "manufactured reasons to justify its action."

Of Owen's dissent, U.S. Attorney General Alberto Gonzales, who was then on the court, wrote that "to create hurdles that simply are not to be found in the words of the statute would be an unconscionable act of judicial activism."

Democrats love to remind Republicans of that.

But the law was new, and Eads, an independent favoring abortion rights who said she differed with Owen in the case, said her opinion wasn't unreasonable.

Owen was a corporate lawyer before joining the court, and her nomination is opposed by a variety of consumer, women's and civil rights groups.

As she argued for Owen's confirmation from the Senate floor last week, Sen. Kay Bailey Hutchison, R-Texas, was close to tears as she described the death of Owen's father from polio when Owen was 10 months old; the way Owen's fellow worshipers at an Episcopal church near Austin, where she teaches Sunday school, had no idea she held such a lofty job; and how Owen had lobbied the Texas legislature for millions of dollars for legal aid to the poor.

If confirmed, Cross said it will mark a victory for Republicans who believe that what's good for business is good for America. Eads agreed that "she is conservative. She doesn't think it's a good idea to saddle business with undue legislation or frivolous lawsuits.

"But I never read a Priscilla Owen where I thought, "Who died and made you God? Where did you get this?' "

Janice Rogers Brown, 56, has two personas.

Publicly, she's known for sharp conservative rhetoric and provocative speeches. Privately, she's shy and introverted.

The daughter of sharecroppers, she grew up in the segregated South in a shack with no indoor plumbing. A bookworm, her drive and intellect helped make her the first black woman on the California Supreme Court.

Steven Merksamer, an attorney who has known Brown for 20 years, says she is "very quiet, very humble," and loves trolling through old bookstores.

She graduated from college in California and went to work in state government. Gov. Pete Wilson appointed her to the state Supreme Court in 1996.

She has written 147 majority opinions, more than any other justice. That indicates she is often with the mainstream, said Santa Clara University law professor Gerald Uelmen, who studies the court.

She's one of the court's most conservative justices and has a probusiness and antigovernment record. Uelmen, who has argued cases before the court, describes her as a libertarian.

"What I appreciate about Justice Brown is she's willing to follow that line of reasoning in criminal cases as well as civil cases," he said. "She's not a law-and-order conservative with an agenda."

She authored the court's unanimous opinion upholding a ballot initiative against affirmative action. She wrote that voters "chose to reassert the principle of equality of individual opportunity as a constitutional imperative."

Her dissent in a 2002 housing case illustrates her antigovernment approach. She criticized a San Francisco law that required owners to pay a fee to demolish a hotel, saying, "Theft is theft even when the government approves of the thievery."

She used Marvin Gaye lyrics in an opinion, according to Legal Times, writing that a California water board had so complicated some simple issues that it made her "wanna holler and throw up both my hands."

Her speeches have been pointed.

In a 1999 address to Claremont McKenna College, she said, "Where government advances - and it advances relentlessly - freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized."

In another speech, she called Franklin Roosevelt's New Deal "the triumph of our own socialist revolution."

The ABA has given her a lukewarm rating of "qualified" for the federal appeals court.

Democrats say she is unfit because of her disdain for government and disregard for legal precedents. Sen. Patrick Leahy, D-Vermont, said she wants to "turn the clock back" to the early 20th century when workers had few protections.

In a report titled Loose Cannon, the NAACP and the liberal group People for the American Way said Brown "has a record of ideological extremism and aggressive judicial activism that makes her unfit to serve on the appeals court."

Conservative groups offer high praise.

The Traditional Values Coalition called her "one of freedom's greatest defenders, all the more remarkable for a woman who descended from slaves and grew up under the oppression of discrimination."

Uelmen, who describes himself as a liberal, says he is a fan. He has argued cases before her and "never had any doubt that I was going to get a fair shake."

Opinions by Texas Supreme Court Justice Priscilla Owen provide fodder for allies and critics. Republicans say she shows judicial restraint, joining the majority in some cases at the expense of businesses. Democrats say she frequently dissents to find against employees or consumers. Some examples:

READ VS. SCOTT FETZER CO., 1998

Owen opposed the court's 6-3 ruling that a manufacturer of vacuum cleaners could be held liable for failing to check the background of a door-to-door salesman who raped a customer. Had it checked his background, the company would have found that women at his last job complained of sexually inappropriate behavior, and that he had been fired after pleading guilty to sexual indecency with a child. Owen dissented on grounds the salesmen were independent contractors, and the company had no obligation to vet them.

STATE FARM VS. SIMMONS, 1998

Owen opposed the court's 6-3 ruling upholding a jury's verdict that State Farm had violated its legal duty of "good faith" when it denied a claim by a family whose house had burned down. The fire started shortly after it had been burglarized by neighbors; State Farm suspected the cash-strapped homeowners had started the fire. The court found that State Farm conducted its investigation "in a manner designed not to discover the objective facts, but only to defeat coverage." In dissent, Owen and another justice argued the jury didn't have enough evidence to rule against State Farm.

HERNANDEZ VS. TOKAI CORP., 1999

Owen joined the court's unanimous ruling that the mother of a boy injured while playing with a lighter could sue the manufacturer under the state's product liability act, as long as a "design defect made the product unreasonably dangerous, a safer alternative design was available, and the defect was the cause of the injury."

KROGER VS. KENG, 2000

Owen joined the court's unanimous ruling that a Kroger supermarket employee injured while unloading frozen pie boxes could seek workers' compensation benefits, though the trial court had not questioned whether the employee was also to blame. The ruling was based on a Texas law governing companies, including Kroger, that chose not to participate in the workman's comp insurance program.

"Because we should liberally construe the Workers' Compensation Act in favor of the injured worker, a strained or narrow construction . . . would be improper," the court found.

In nine years on the California Supreme Court, Janice Rogers Brown has been one of the court's most conservative justices.

Republicans say her speeches and legal opinions indicate a sharp intellect and good reasoning.

Democrats say she is antigovernment and ignores legal precedents.

SPEECH EXCERPTS

"Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies.

The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law;

the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."

(Speech at University of Chicago Law School, 2000)

"Government acts as a giant siphon, extracting wealth, creating privilege and power, and redistributing it."

(Speech at McGeorge School of Law, 1997

LEGAL OPINIONS

HI-VOLTAGE WIRE WORKS, INC.,

ET AL. VS. CITY OF SAN JOSE, 2000

Brown wrote the unanimous opinion upholding Proposition 209, a ballot initiative approved by voters that prohibited state and local affirmative action programs.

The ruling was not as surprising as the strong language the black justice used to explain it. She said voters "chose to reassert the

principle of equality of individual opportunity as a constitutional imperative."

PEOPLE VS. MCKAY, 2002

Brown's dissent in this criminal case was consistent with her libertarian philosophy, but also an approach that liberals usually support. The court upheld the drug conviction of a man stopped by police for riding his bicycle the wrong way down a one-way street. Brown was the lone dissent, writing: "There is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver. . . . The practice is so prevalent, it has a name: "Driving While Black.' "

[Last modified May 22, 2005, 01:08:08]