Outside the Beltway

Did Alberto Gonzales Say Priscilla Owen is an Activist?

James Joyner · Friday, May 20, 2005 · 8 comments

Judge Priscilla Owen, the likely test case for the issue of filibustering judicial nominees, was accused by the President’s own Attorney General, Alberto Gonzales, of being a “judicial activist.” Or was she?

The woman at center of the Senate’s fight (CSM)

One frequent refrain among Democrats is that even Bush’s own attorney general, Alberto Gonzales, criticized Owen’s judicial stance in a 2000 case when they served together on the Texas Supreme Court. “Gonzales has said she was guilty of ‘an unconscionable act of judicial activism,’ ” said Senator Kennedy in a recent speech on the Senate floor. The comment prompted a response from Republican Sen. Orrin Hatch of Utah. “They know this claim is fiction, but they nonetheless continue to launch it,” he said.

At issue is a Texas Supreme Court ruling in a case that dealt with the judicial bypass section of a Texas law requiring parental notification prior to a minor obtaining an abortion. The case involved a high school senior who said she was fearful that if her parents knew she was getting an abortion, they would cut off financial assistance to her, including payments for her to attend college. The trial judge and an appeals-court panel declined to authorize the judicial bypass, ruling that the girl must notify at least one of her parents prior to the abortion. The Texas Supreme Court reversed both courts, saying that the state bypass provision was broad enough to encompass the girl’s case.

Three justices wrote dissents. Two of the dissents suggested that the Texas law was written narrowly by the state Legislature to bar a bypass under most circumstances, and one of those two dissents accused the majority of engaging in judicial activism. The third dissent, written by Owen, raised a completely different legal point. She said the state high court should have upheld the trial court since it was the only court to have undertaken a detailed and direct assessment of the evidence. “This court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions,” Owen wrote. “The court thus overrules more than fifty years of precedent.”

Mr. Gonzales was among the majority justices overturning the trial court. In a concurring opinion, he addressed concerns raised by two of the three dissenting opinions. He said the dissenting justices were reading the Texas bypass provision too narrowly. “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,” he wrote.

It is this quote that is being widely portrayed as an open criticism of Owen. But a careful reading of Owen’s dissent, Gonzales’s concurrence, and subsequent statements by Gonzales suggest he was not criticizing Owen. In his concurrence Gonzales immediately adds, “As a judge, I hold the rights of parents to protect and guide … their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the legislature has elected not to do so.”

Gonzales was asked about his concurrence during his recent nomination hearing for attorney general. He said the comment was not directed at Owen or any other justice. “It was actually focused at me,” he said. In Gonzales’s view, given his interpretation of what the Legislature intended and the words the lawmakers used in crafting the bypass provision, it would have been an act of judicial activism not to have granted the bypass in that case, he said. “As to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended,” Gonzales said.

Gonzales does not appear to be referring only to himself, however. His concurrence twice mentions the name of another Texas Supreme Court justice, Nathan Hecht – the same justice who had accused the majority of activism. But it nowhere refers to Owen.

Indeed, aside from what Gonzales wrote, Owens’ decision in that case strikes me as eminently reasonable.