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Judges' opinions reveal supporters and critics overstate their cases

WASHINGTON—When the Senate begins its debate on President Bush's judicial nominees Wednesday, the two names Americans will hear most will be Priscilla Owen and Janice Rogers Brown.

Much of the attention so far has been focused on the political showdown between Republicans and Democrats, less to the records and qualifications of Bush's two most controversial nominees.

Both are state supreme court justices, Owen in Texas and Brown in California. President Bush has nominated both to be judges on federal appellate courts. And both have been blocked by Senate Democrats mounting filibusters, a parliamentary tactic that many Republicans want to restrain, even if that requires altering Senate rules. The showdown will unfold over the next two weeks.

Critics say both women are activist judges who interpret the law to support their conservative views. Supporters say they're exemplary judges who've won support from Texas and California voters. Their records reveal that both critics and supporters overstate their cases. Even Democratic-leaning law professors who are familiar with their work say both deserve confirmation.

That both are conservative jurists isn't in dispute. But they've drawn fierce fire from liberal groups, Owen for her stance on abortions involving minors and Brown, who's African-American, for opposing affirmative action.

Of Bush's seven judicial nominees who are stalled before the Senate, Owen and Brown are the only women. Senate Majority Leader Bill Frist, R-Tenn., chose to focus his showdown with Democrats on them because Republicans think they're sympathetic figures.

"If it's tough for the Democrats, that's fine with me," said Sen. George Allen, R-Va. "When you want to score, you run your best play. These are our two best players right now."

Sometime next week, if Republicans are unable to break a Democratic filibuster—endless debate unless 60 of the 100 senators vote to shut it off—Frist will move to end all filibusters against judicial nominees in a power play over Senate rules. Some senators of both parties fear that Frist's move could erode the Senate's power as a check on the presidency. The first key vote is likely to come on Owen.


Bush first nominated Owen to the 5th U.S. Circuit Court of Appeals—which serves Texas, Louisiana and Mississippi—on May 9, 2001. She's served on the Texas Supreme Court since 1994. She was re-elected without opposition in 2000.

Owen, 50, is a divorced former corporate lawyer who likes water-skiing. She has no children.

Democrats and liberal groups assail her as a "radical" judge, citing her decisions in cases involving parental notification for minors seeking abortions. Planned Parenthood says Owen has narrowly construed Texas law, which permits a "judicial bypass" for minors to obtain a waiver from parental involvement.

Owen has dissented on several of these "Jane Doe" cases. In one, Alberto Gonzales—who's now the U.S. attorney general but then was a colleague on the Texas Supreme Court—wrote that Owen and two other dissenters "create hurdles that simply are not to be found in the words of the statute." Gonzales said applying their view would be "an unconscionable act of judicial activism."

But in another parental-notification case, Owen sided with the majority in overturning a denial of a minor's waiver request.

"If this is a person who has dug her heels in and says, `Nobody should ever have an abortion and I'll do everything in my power to make sure,' that vote would never have happened," said Linda S. Eads, a law professor at Southern Methodist University in Dallas. She said she supported abortion rights and Owen's confirmation.

The parental-notification decision that Eads cited occurred after Bush nominated Owen to the federal appeals court; critics charge that Owen joined the majority simply to soften her image.

Some also accuse Owen of favoring large corporations at the expense of consumers. Eads, though, cited a product-liability case against a manufacturer of lighters in which Owen ruled for the plaintiffs.

"I think she is a free-enterprise person," Eads said. "She does think businesses need not to be unduly saddled with lawsuits that are frivolous. ... I don't think that's ultra-conservative, just conservative."

Critics, such as the liberal group Texans for Public Justice, say that from 1999 to 2004, Owen dissented in nearly 1 out of 3 cases that consumers won against insurers, businesses or corporations. On cases favorable to corporations, she didn't dissent.

The American Bar Association has rated Owen "well qualified."


Brown, the daughter of Alabama sharecroppers, is considered the most conservative member of California's Supreme Court. Bush nominated her in July 2003 to the District of Columbia U.S. Circuit Court of Appeals.

Brown is considered a sharp intellect with an equally sharp pen. Her opinions are pointed, her dissents often biting. She's been especially controversial away from the bench, giving speeches that strongly espouse socially conservative views.

"Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies," she said in a speech five years ago. "The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."

Sen. Barbara Boxer, D-Calif., opposes Brown. "Why are we promoting someone who has this negative a view of America?" she asked Tuesday on the Senate floor.

Brown's most controversial opinion upheld California's anti-affirmative action Proposition 209—but the court was unanimous.

Still, critics objected to how vigorously she criticized affirmative action. "With the approval of Proposition 209, the electorate chose to reassert the principle of equality of individual opportunity as a constitutional imperative," she wrote.

Gerald Uelman, a law professor at the University of Santa Clara who describes himself as a liberal, defends Brown's nomination.

"I certainly can't find any evidence that she has some sort of agenda that she's pursuing other than following the law," he said. "Where there is room for disagreement, her arguments are well within the range of reasonable disagreement among judges."

The American Bar Association rates her as "qualified," a notch below Owen's rating.


(c) 2005, Knight Ridder/Tribune Information Services.

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