Wednesday, May 11, 2005


SAEN Won't Report Both Sides Of Filibuster Debate

Mark has already addressed the ridiculous illustration on page 3A of Tuesday's SAEN so now I want to address the article that accompanies it by SAEN reporter Gary Martin. The article is about the fight over judicial nominations and the filibuster. Much of the article is spent talking about Priscilla Owens:
Owen was nominated by Bush to serve on the New Orleans-based 5th U.S. Circuit Court of Appeals.

Her nomination was blocked in the 108th Congress when Republicans were unable to end a Democratic filibuster.

Earlier this year, Bush again nominated Owen, a Texas Supreme Court justice and Austin Sunday school teacher.

Mr. Martin spends much of the remainder of his report telling us how bad Democrats and various interest groups think Ms. Owens is. A quote from Senator Schumer:
Sen. Charles Schumer, D-N.Y., said "there is no question that when you look up judicial activist in the dictionary, you see a picture of Priscilla Owen."

She must be an extremist, she teaches Sunday school! Next we get a quote from Texans for Public Justice:
"The opposition to Owen came straight out of the heart of Texas," said Craig McDonald, director of Texans for Public Justice.

McDonald said Owen is "uniquely extreme and uniquely activist" in her opinions that favor big business and anti-abortion and anti-consumer ideologies.

Owen has a penchant to write law from the bench, McDonald charged, "usually on behalf of the powerful and at the expense of the powerless."

Hmmm, still no quotes in support of Ms. Owens. Texans for Public Justice bills itself as non-partisan, but one look at their web site and you can see just how silly that claim is. Among the typical rants about Halliburton and big money donors to Bush (and only Bush, so much for non-partisan) is this quote about Owens:
But the recent nomination of Texas Supreme Court Justice Priscilla Owen to the 5th U.S. Circuit Court of Appeals better echoes Bush's statement on the campaign-trail that his favorite jurists are right-wing Justices Antonin Scalia and Clarence Thomas.

Next Mr. Martin tells us that Texans for Public Justice are working with the Texas Abortion Rights Action League (TARAL) in opposing Owens:
Texans for Public Justice and the Texas Abortion and Reproductive Rights Action League took part in a news conference to draw attention to Owen's judicial rulings.

I don't think I even have to go to the TARAL web site to prove what side of the aisle they are on, but I will, for your sake. TARAL wants you to oppose a change in Senate rules to end the filibuster against judicial nominees because:
This abuse of power clears the deck for President Bush's ideologically out-of-touch nominees.

Another liberal group and still nothing in support of Ms. Owens. So what is the truth, is Owens an extremist? Do her rulings show her to be "Anti-abortion" as so many claim? Would it surprise you if I told you no? Here is what Powerline had to say about her dissent in In re Jane Doe:
Justice Owen's dissent was quite different. What she objected to was the majority's failure to follow the elementary rules of appellate practice. Appellate courts do not conduct de novo fact finding. They accept the facts as found by the trial court, assuming that there is evidence in the record to support them. Owen's complaint was that the majority disregarded the trial court's express and implied findings of fact, even though those findings were supported in the record. She wrote:

The question in this case is not whether the 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. Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court or to ignore the evidence, as it has done.

Justice Owen's dissent also criticized what she considered the undue and unnecessary haste with which the Supreme Court acted. However, unlike Justices Hecht and Abbott, Owen did not address issues of statutory interpretation, and said nothing about bypasses being "rare" or about the burden of proof to which they are subject. Thus, on its face, Gonzales' criticism of "judicial activism" did not apply to Owen's dissent.

More importantly, no one trained in the law would argue that the principles relied on by Justice Owen constitute "judicial activism." On the contrary, showing appropriate deference to the fact findings done by the trial court is fundamental to the appellate process and is a basic component of judicial restraint, not judicial activism. It is deeply ironic that the one case relied on by Justice Owen's critics for the proposition that she is an "activist" is a case in which she voted to affirm the trial court and the Texas Court of Appeals, and deferred to the fact findings made by the trial court.

It is hard to be balanced when you only report the objections of the opposition and fail to include any statements in support from the Republicans. I don't mind having a debate about this Mr. Martin, but let's have a fair one and hear both sides. Is that asking too much?

Note to the SAEN: I'd be happy to put together a report on the fight over filibusters in the Senate that discusses both sides of the issue, fairly, and I won't even charge you for it!
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