Federal News Service - Hearing of the Senate Judiciary Hearing

SECTION: CAPITOL HILL HEARING

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE
 
TOPIC: SETTING THE RECORD STRAIGHT: THE NOMINATION OF JUSTICE PRISCILLA OWEN
 
CHAIRMAN: SENATOR ORRIN HATCH (R-UT)
 
LOCATION: 106 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: JUSTICE PRISCILLA OWEN, NOMINEE TO THE FIFTH CIRCUIT OF THE COURT OF APPEALS
 
BODY:
SEN. DURBIN: Thank you very much, Justice Owen, for returning. I'm 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 of President Clinton to fill vacancies on this 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 (sp), 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'm 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's not your doing. But I want to make that a matter of record.

I'd 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 a point of following a formula, of perhaps being part of some computer software that is going to have a totally predictable result. 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'd like to start off by asking you to comment on that, and to give me without the bluebook answer here, to give me where you would place yourself on the spectrum between judicial activism and strict construction.

MS. 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 pick and choose words carefully when you craft legislation. So I do think, as I know you do, think words have meaning. I think that's 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's not as clear as we'd like it to be, and I think those are the hard cases that 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, the entire act. I look at how it interplays with other pieces of the act. And sometimes you can see that the statute—if you look at it in the broader context, in the 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 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 is already a court 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 more or less adopted, if you will, or decide to let stand that court decision, the court shouldn't go behind that and try to change it. So --

SEN. DURBIN: Well, let me just follow up—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 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 the statute, and she gave me what I describe 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 to privacy—do you believe those decisions are consistent with strict constructionism? Here's her 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. I think that's 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, I'm a—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 construction and 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, my state court's history has been we start with the language. Again, words mean something, and they were chosen for a reason. 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.

SEN. DURBIN: Let me just give you an illustration, and I referred to it in another committee hearing. I last week went to Alabama with a group, a bipartisan group of congressmen and senators to go back to Selma and Montgomery and Birmingham with Congressman John Lewis to 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 Pettus 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 march from Selma to Montgomery. He was the one 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. By virtually—and of course he was harassed. His mother's home was threatened and fire- bombed, and he went through a complete ostracism by the establishment of his community because he stood up for civil rights. And by almost every classic definition, Frank Johnson was a judicial activist. And if it were not for his courage and decisions, like I said, I am not sure where the cause of civil rights would be today.

I think one judge can make a difference. And 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?

MS. 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 imagine. Most of the civil rights cases go in the federal courts. They are not filed in the state courts. And I am trying to think of a case that has really squarely come up that you would really call a civil rights case.

SEN. DURBIN: Perhaps a case on age discrimination?

MS. OWEN: I am trying to remember. If you have a particular case in mind --

SEN. DURBIN: Quantum Chemical v. Tony's (ph).

MS. OWEN: Oh, yes, yes, I do remember that.

SEN. 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 a determination. 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'd like to point to where you think you advanced a civil rights principle.

MS. 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 would ask you to please also look at the written response. I'm 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. They have not been very clear in this area. And what my recollection is is that this dealt with Subsection M I believe it was—and I really would like to find my answers 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 mixed motive case? And the U.S. Supreme Court had handed down a decision that Congress disagreed with. I think it was PriceWaterhouse—if—it will take a minute—if you let me take a minute and find my writing, because I want to be precise about this.

SEN. DURBIN: If you'd like to respond in written form too, and explain your position on that, I'd appreciate that.

MS. OWEN: Yes, because there were two circuit --

SEN. DURBIN: That's only fair.

MS. OWEN: -- two federal circuit judge courts had gone one way, and then there was Watson and another who 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 --

SEN. DURBIN: Let me ask you—I'd like you, if you wouldn't mind --

MS. OWEN: I would be happy to.

SEN. DURBIN: -- if you could give a written response.

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 10 most significant litigated cases that you handled. Now, none of the cases that you listed involve 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 practice?

MS. OWEN: My law firm didn't handle those type of cases. We just weren't hired by anybody—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.

SEN. DURBIN: Justice Raoul Gonzales, 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?

MS. OWEN: I've had some.

SEN. DURBIN: Can you tell me the nature of that kind of work?

MS. OWEN: They were domestic relations cases.

SEN. DURBIN: And how many or how long ago? Could you just put it in context?

MS. OWEN: Well, I've been on the bench a little over eight years, so it was before—it was before then. 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 into a dispute about whether she was allowing him adequate access to the child, and she 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, the 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—gave her a calendar. She really didn't understand the terms of the order, and I went and bought her a calendar. 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 type of situations. And I was involved in another --

SEN. DURBIN: If you could—I'd give you an opportunity in written questions to come back if you'd 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, on 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?

MS. OWEN: Well, first of all, let me say I don't want to, by answering that question, label the judge you have described, or any other judge as a judicial activist. I am not saying 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 if it sounds like to me he was applying the Civil Rights Act. But, in any event --

SEN. DURBIN: This was before the Civil Rights Act.

MS. OWEN: I'm certain I've written unpopular decisions. Sitting here at the moment I can kind of go through those in my mind. Again, if you would give me some time to respond to that --

SEN. DURBIN: I'll give you the time to do it. I'm not—I don't want to trap you here. I want you to have the time. We have also asked Miguel Estrada a question --

MS. OWEN: Can I ask for some clarification? When you say the establishment, can you give me a more precise question so that I'll have something clearer --

SEN. 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, represented businesses, represented people of wealth and of 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. And 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'll 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 Judge—by pardon me, by Senator Sessions, of Democratic nominees. I hope that you'll 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 we might be familiar with, but perhaps others, living or dead, whom you admire and would like to emulate on the bench.

Now, I'm 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 I—if you could just pick out a few whom you admire and --

MS. OWEN: Well, I admire every member on the current Supreme Court.

SEN. DURBIN: That's safe.

MS. OWEN: For various reasons. (Laughter.)

SEN. DURBIN: But if you could pick out maybe those that have made an impression on you—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'd appreciate it. Thank you, Mr. Chairman.

SEN. CORNYN: Thank you, Senator Durbin.