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Two Times a Justice

From the March 17, 2003 Dallas Morning News: Priscilla Owen gets another chance to explain the proper role of the judiciary.

11:00 PM, Mar 17, 2003 • By TERRY EASTLAND
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WHATEVER ELSE HAPPENS in the life of Priscilla Owen, the Texas Supreme Court justice has made history. Of a sort. Two years ago, President Bush nominated her for a seat on the 5th U.S. Circuit Court of Appeals. The Senate Judiciary Committee finally gave her a hearing in July and then--on a party-line, 10-to-9 vote--rejected her nomination. In January, Bush resubmitted her name, and last week she sat for a second time before the Judiciary Committee.

Justice Owen thus became the first judicial nominee ever to be defeated in committee only to see her name resubmitted and then to be given another hearing. The resurrection of her nomination obviously was made possible by the midterm elections. Had Senate control not shifted to the Republicans--had the Senate remained Democratic--Owen probably wouldn't have been renominated.

At the start of last week's hearing, Republican Sen. Orrin Hatch, now the Judiciary Committee chairman, remarked that Justice Owen "is perhaps the best sitting judge I have ever seen nominated." Senators, it is fair to say, have a gene that inclines them to hyperbole. But Owen is a good state judge and remains an excellent nominee for the 5th Circuit.

Not that committee Democrats can be expected finally to grasp that. As can be seen from last week's hearing, they remain wedded to wrong ideas about judging, not least that judging is best understood in terms of actual results.

Take, for example, Sen. Edward Kennedy, who (as he did in July) faulted Owen for failing to achieve "balance" in her votes on cases involving worker rights, environmental rights and civil rights. Properly understood, however, judging is about the process a judge uses to decide cases, not about making sure the outcomes or results "balance." Justice Owen argued against "balanced" judging in her exchange with Kennedy:

"I can assure you that I do not ever try to achieve a result. I don't look at whether I want one side to win or the other side, or one segment of the 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 every six months or so we've got to even the score here.' That's not what judging is about. That is not what I do."

Later, Democratic Sen. Richard Durbin asked Owen to identify opinions of hers "that aren't popular with the established power structure in Texas." For Durbin, apparently, judging is at least to some extent about its popularity or lack thereof.

Owen politely asked Durbin to define what he meant by the "established power structure," whereupon he moved to other matters. But if Durbin had listened to Owen's answer to Kennedy, he would have known that, for her, judging isn't about trying to favor "one segment of the population" over another. He also would have heard her say what judging properly is:

"What I try to do as a judge is to put aside personal feelings. . . . The question is what does the law say, what does the law require. . . . I judge cases by what is right, not by what is politically correct."

Notably, Durbin showed little interest when, in answer to his question, "where would you place yourself on the spectrum between judicial activism and strict construction," Owen discussed the process she uses in interpreting the state's constitution and statutes. As she explained it, that process starts with a reading of the text itself but also may require looking at related texts, pertinent history and case law. For Durbin and too many Democratic senators, process is, well, boring. Yet process is what judging intensely involves.

The Judiciary Committee will vote on the Owen nomination--perhaps as early as this week. You can assume the Democrats, claiming that Owen favors business and is hostile to abortion rights, again will vote "no." Because they constitute a minority, however, they won't be able to stop her nomination in committee. It will go to the Senate floor, where, Sen. Kay Bailey Hutchison says, "I hope it won't be filibustered."

If it is, expect Durbin and his colleagues to speak of Justice Owen's "bias" against the causes they hold dear, notwithstanding that it is her bias in favor of trying fairly to interpret the law that is her most compelling qualification.

Terry Eastland is publisher of The Weekly Standard and a regular contributor to Viewpoints.