Editor's Note, September 5, 2002: After a party-line vote in the Senate Judiciary Committee today, Judge Priscilla Owen's nomination to the 5th Circuit Court of Appeals was denied. President Bush called the vote "shameful." He's right.

Here's why.

-JVL

THE TEXAS SUPREME COURT has decided 12 cases under the 1999 Parental Notification Act. One that proved especially contentious for the justices was handed down on June 22, 2000. It was styled, for reasons of privacy, as In re Jane Doe. The case no doubt will come up Tuesday, when the Senate Judiciary Committee finally takes up the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals.

It will come up because in that case Alberto R. Gonzales, who then sat with Justice Owen on the Texas Supreme Court and now is White House counsel, wrote that to construe the statute narrowly "would be an unconscionable act of judicial activism." Gonzales joined the majority, while Owen was one of three dissenting justices.

Liberal interest groups opposed to her nomination have interpreted then Justice Gonzales' words as applying to Justice Owen. They charge President Bush with a violation of his own principles: He says he is opposed to activist judges, yet here--by the testimony of his own counsel!--he has nominated one.

Groups that swear allegiance to Roe vs. Wade--the 1973 case announcing a constitutional right to abortion, which is arguably the most activist decision in the history of the Supreme Court--should be taken with a very large grain of salt when they offer counsel on what is or is not judicial activism. As it happens, their anti-Owen reading of Justice Gonzales' words in In re Jane Doe is wrong.

Under the Parental Notification Act, a doctor may not perform an abortion on a minor unless at least one of her parents is notified first. The statute provides, however, that parental notification isn't needed if the girl is "mature and sufficiently well informed"; if notification wouldn't be "in [her] best interest"; or if notification "may lead to [her] physical, sexual or emotional abuse." The law authorizes courts to grant a minor's application to bypass notifying her parents.

In In re Jane Doe, a pregnant minor was denied a bypass by the trial court and then by the appeals court. The Texas Supreme Court disagreed and granted the bypass.

The opinions in the case mostly concerned how judges should go about interpreting the notification act. In a concurring opinion, Justice Gonzales felt compelled to respond to "the dissenting justices" who "suggest that exceptions to the general rule of notification should be very rare and require a high standard of proof." Two of the three dissenting opinions suggested that, and one of the dissenters, Nathan Hecht, got under the majority's skin, accusing it of substituting its own policy views for those of the Texas Legislature--judicial activism, in sum.

Justice Gonzales defended the majority against Justice Hecht, contending that nothing in the language or history of the law shows "the Legislature intended such a narrow construction." Thus, he continued, "to construe [the act] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the state, would be an unconscionable act of judicial activism"--one that he said he couldn't engage in. By implication, the dissenting justices advancing the narrower interpretation stood accused of just that.

But Justice Owen didn't stand so accused for the simple reason that in her opinion she didn't undertake an inquiry into the law's intent. Her concern lay elsewhere--with the majority's treatment of the lower courts.

The majority, she wrote, "has usurped the role of the trial court, reweighed the evidence and drawn its own conclusion"--a practice at odds with "more than 50 years of precedent regarding appellate review of a trial court's factual findings." Under well-settled Texas law, she argued, the court may not disturb a trial judge's findings unless no reasonable person could have reached the same conclusion. And, she explained, a reasonable person could have.

"The question in this case is not," she wrote, "whether this court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes."

Agree or not with Justice Owen's analysis, it is the product of a fine legal mind, not to mention of an appellate judge who respects the traditional authority of trial courts.