Outside view: Who'll be the judge?

By JENNIFER C. BRACERAS  |  Sept. 4, 2002 at 7:41 PM
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WASHINGTON, Sept. 4 (UPI) -- The Senate Judiciary Committee is expected to vote on the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit within the next few days. It is a vote that will be closely watched by both purveyors and critics of gender politics.

Owen, who serves as a justice of the Texas Supreme Court, is the most recent target of a feminist hit squad led by the National Organization of Women. These special interest groups claim that the confirmation of Justice Owen to the federal bench would be a setback for American women. But would it?

Feminist opposition to Owen is focused on her deference to state legislative policy choices in two cases involving Texas' parental notification law. In those cases, Owen wrote that, in passing the law, the Texas legislature sought to ensure that underage girls seeking abortions be fully informed of the ramifications of their decision.

In so reasoning, Owen was not proclaiming her personal views on the way to handle this complicated question -- as some have suggested. She was, rather, following the will of the legislature and carefully applying Supreme Court precedent and accepted canons of statutory construction.

Her opponents argue that these cases prove that Owen is biased against litigants supporting legalized abortion. Not so.

In truth, Justice Owen has never stated a personal view on abortion, and a careful review of Owen's record reveals that she bases her legal opinions not on the parties before her, or on the political implications of the court's rulings, but on the facts and the law in each case.

The special interest groups who oppose her may disagree with Owen's legal opinions in the parental notification cases. Yet many feminists previously hailed the result in a controversial buffer zone case in which Owen sided with Planned Parenthood and voted to uphold restrictions on anti-abortion protesters.

Observers of Justice Owen's tenure on the bench who are not motivated by ideological concerns reject demagogic claims that her elevation to the federal bench imperils women's rights. Many of them regard her as a path breaker and role model for American women.

In 1977, when women made up only 28 percent of U.S. law students, Owen graduated third in her class from Baylor University Law School and went on to earn the highest score on the Texas state bar examination.

After practicing commercial litigation for 17 years with the law firm Andrew & Kurth, Owen successfully ran for a seat on the Texas Supreme Court. She was re-elected by an overwhelming margin in 2000.

On the bench, she has earned a reputation as a restrained and principled jurist and has been a leader in the movement to eliminate gender bias in the legal system and a reformer on divorce and child support proceedings.

Not surprisingly, the American Bar Association rated Justice Owen "well qualified" -- their highest rating. Though a number of prominent Democratic senators have previously referred to these same ABA ratings as the "gold standard" by which federal judicial nominees should be judged, many of them now join with the special interest groups in opposing Owen.

One Democratic senator who reportedly remains undecided on the Owen nomination is Sen. Joseph Biden, D-Del.

Some years ago, Biden stated that "(Judicial confirmation) is not about pro-life or pro-choice, conservative or liberal, it is not about Democrat or Republican. It is about intellectual and professional competence to serve as a member of the third co-equal branch of the government."

In May 2002, Biden put aside partisan politics to vote in favor of a controversial nominee to the U.S. Court of Appeals for the Third Circuit, citing the importance of applying a consistent and neutral standard to all judicial nominees -- irrespective of the political affiliation of the nominee of the appointing authority.

Biden is now leaning against Owen's confirmation, although it is not clear why.

Certainly, she exudes "intellectual and professional competence." Among practitioners in the Texas bar, she has earned a reputation for fairness and impartiality. But therein lies the problem.

Feminist special interest groups -- who are lobbying Biden hard -- do not support fair and impartial jurists because they, in fact, want to stack the courts with judges who will use their power to impose a radical view of gender relations on the American public.

Any nominee who cannot be counted on to deliver the politically correct result in all future cases is, in the view of the organized feminist movement, highly suspect; more so, if the candidate also happens to be female.

Recognizing the higher burden placed on female nominees, Sen. Orrin Hatch, R-Utah, has chastised his colleagues for their unwillingness to buck the feminist establishment over female nominees whom they oppose, while voting in favor of conservative male nominees who these same special interests do not support.

Whether Biden can be mau-maued into voting against Owen's nomination remains to be seen. Hatch has challenged his colleagues to reject partisan politics and help break the "new glass ceiling" preventing qualified female nominees from assuming their place in the federal judiciary.

Let's hope that Biden remembers his earlier pronouncements and rises to that challenge.

Jennifer C. Braceras is senior fellow for Legal Policy with the Independent Women's Forum and a commissioner on the United States Commission for Civil Rights.

"Outside View" commentaries are written for UPI by outside writers who specialize in a variety of important global issues.

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