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Judicial Fight Prompts Dueling, Distorted Ads

Both sides twist facts about Janice Rogers Brown and Priscilla Owen.

May 10, 2005

Modified: May 10, 2005

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Summary

 

Millions are being spent on rival ads supporting and opposing two of President Bush's most controversial judicial selections. Neither ad is completely accurate.

An ad by the pro-Bush group Progress for America implies that Texas judge Priscilla Owen has been endorsed by a newspaper that actually says she's biased in favor of large corporations and "often contorts her rulings" to conform with her conservative outlook.

A rival ad by the liberal People for the American Way quotes Texas judge Janice Rogers Brown as saying seniors "are cannibalizing their grandchildren," without making clear she was speaking metaphorically of debt being passed on to future generations by entitlement programs.

Analysis

 

Progress for America says it is spending $3 million on its ad promoting Bush's nominees, and People for the American Way (PFAW) says their ad is part of a $1 million TV, radio, and print campaign opposing them. Both campaigns are targeting Alaska, Arkansas, Maine, Nebraska, North Dakota, Rhode Island, and People for the American Way's ad is also running on national cable stations.

 Progress for America TV Ad "Fair"

Announcer: If you think judges should be fair and well-qualified, look at these women.

(Image on screen: photographs of Priscilla Owen and Janice Rogers Brown).

Janice Brown is the daughter of sharecroppers. She put herself through school and rose to become the first African-American woman on the California Supreme Court. Brown has won praise from Republicans and Democrats for being fair and honest. Other judges call Janice Brown "suberb" and "extremely intelligent." Priscilla Owen was twice selected to serve on the Texas Supreme Court. Endorsed by major newspapers , Owen got strong bipartisan support and the ABA's highest rating. President Bush nominated them to be federal judges, some as long as four years ago. But Senate Democrats have abused the rules and refused to allow a vote. So courtrooms sit empty, while thousands of Americans have their cases delayed. The job of a US Senator is to vote. Urge your senators to vote, up or down. Enough is enough.

Worse Than We Thought

The Progress for America ad is worse than we thought. We criticized it in a May 6 article  because it misleads by saying that courtroom cases are being delayed when in fact most cases are now decided more quickly than before, and because it blames only Democrats when Republicans themselves blocked Clinton's appointments to some of the same judicial vacancies still being contested.

Now, after further research, we find that the ad also falsely implies that three big Texas newspapers endorsed one of Bush's choices for federal appeals court judge.

"Endorsed"?

The ad says Priscilla Owen is "endorsed by major newspapers." On screen it shows headlines from the Houston Chronicle, Dallas Morning News and San Antonio Express-News. But that gives the false impression that they are endorsing her now.

Those newspapers did endorse Owen several years ago when she was running for election to the Texas State Supreme Court. But they haven't endorsed her for the  job on the Fifth US Circuit Court of Appeals to which President Bush has now appointed her.

One of those newspapers was highly critical of Owen in 2003 after Bush nominated her to the federal appeals court, and another urged the President to make appointments that are more moderate than Owen in order to avoid "gridlock."

The Houston Chronicle said in an editorial May 12, 2003 that Owen's record "gives reason for pause" and that it was "good" that the filibuster blocking her nomination hadn't been ended. It said she has "a penchant for overturning jury verdicts on tortuous readings of the law" and that she has "a distinct bias against consumers and in favor of large corporations."

Houston Chronicle, May 12: The problem is not that Owen is "too conservative," as some of her critics complain, but that she too often contorts her rulings to conform with her particular conservative outlook. It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of conservatives.

Similarly, the San Antonio Express-News editorialized more than two years ago –April 9, 2003 – that Owen "is known for her conservative activism." The newspaper noted that the same Democrats who filibustered Owen's nomination had voted to approve another, more moderate Bush nominee from Texas, Edward Prado, to the same Fifth US Circuit Court of Appeals. It urged Bush to appoint more moderates like Prado.

San Antonio Express-News, April 9, 2003: Democrats in the Senate appear likely to filibuster Owen's nomination. Once again, the battle over the White House's judicial nominees is gridlocked. To avoid this kind of partisan strife, the Bush administration should employ the Prado strategy for future judicial nominees.

Neither of those is an endorsement of Owen by any stretch.

Praised by Democrats?

The ad also lauds another of Bush's appellate court nominees, Janice Rogers Brown, who currently sits on the California Supreme Court and is nominated for a seat on the US Circuit Court of Appeals for the District of Columbia. The ad said she has  “won praise by Republicans and Democrats."   But there's only one Democrat cited by Progress for America –  former Senator Zell Miller, the Georgian who supported President Bush’s reelection campaign, delivered the keynote address at the Republican National Convention and suggested John Kerry would arm the US military with "spitballs."

Cannibalizing Grandchildren?

On the other side, the liberal People for the American Way released an ad May 3 attacking both Owen and Brown.  The PFAW ad says of Brown, "She's so radical that she says, with programs like Social Security and Medicare, seniors are cannibalizing their grandchildren!"

 People for the American Way Ad "What's It Really All About?"

Announcer: What's this filibuster talk really all about? Power. And too much power's a dangerous thing. The Senate's approved more than 200 judges, but these men are all bent out of shape when we question a couple of nominees?

(Images on screen: photos of Tom Delay and Bill Frist)

This one? President Bush's own attorney general criticized her 10 times.

(Image on screen: photo of Priscilla Owen)

Her? She's so radical that she says, with programs like Social Security and Medicare, seniors are cannibalizing their grandchildren!

(Image on screen: Janice Brown)

I say, save the filibuster. Listen: For 200 years it's made sure power doesn't go unchecked.

Actually, Brown was speaking about the debt being passed on to future generations, not suggesting that Medicare or Social Security causes old people to eat human flesh. Here's the full quote from a speech she gave in 2000 before the Institute for Justice:

Brown: My grandparents’generation thought being on the government dole was disgraceful, a blight on the family’s honor. Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much “free” stuff as the political system will permit them to extract.

That's certainly a colorful metaphor. Readers can decide for themselves whether the idea being expressed is "radical" or not.

Criticized 10 Times?

The PFAW ad also says of Owen, the Texas appointee, that “President Bush’s own attorney general criticized her ten times.”

Alberto Gonzales wasn't Bush's attorney general at the time he made the 10 statements PFAW cites. He was serving on the Texas Supreme Court with Owen in 1999 and 2000. In some of his written opinions he did indeed disagree strongly with Owen's legal reasoning, but he never criticized her personally, or by name.

The most often cited legal disagreement is from a 2000 case in which Owen and Gonzales disagreed over whether a minor seeking an abortion was “mature” and “sufficiently well informed” enough for a judge to allow her to have an abortion without notifying a parent under Texas law. A 6-3 majority ruled in favor of the girl – a senior in high school at the time. Gonzales was in the majority.

Owen, however, said the girl wasn't mature or well informed enough because she intended “to continue to seek and take support from her parents” and had “not thoughtfully considered her alternatives,” even though she had talked about adoption with a counselor and a teacher. Gonzales thought that interpretation was too restrictive and went beyond the actual language of the of the Texas law, which requres parental notification of abortions but also allows judges to grant exceptions, or "bypasses," under certain circumstances. Gonzales wrote:

Gonzales, June 22, 2000: …to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.”

Now that Gonzales is a member of Bush's cabinet he's supporting Owen for the appeals court despite their past disagreements. He said May 9:

Gonzales, May 9, 2005: Judges disagree from time to time on particular issues. . . . That doesn't in any way detract from my view that she would make a terrific a judge on the 5th Circuit. I've never accused her of being an activist judge.

Lawyers are trained to see fine distinctions, so perhaps Gonzales will explain another time how a judge who performs an act of "unconsionable . . . judicial activism" is not an "activist judge." Meanwhile, readers will just have to puzzle that out for themselves.

Update, June 14: In our original version of the article, we incorrectly identified Janice Rogers Brown as a Texas judge. She is, of course, from California.

Sources

 

Janice Rogers Brown, “Fifty Ways to Lose Your Freedom,” Speech before the Institute for Justice, Washington, DC, 12 August 2000 .

"An Activist: Owen's record gives reason for pause on judicial post," editorial, Houston Chronicle, 12 May 2003: A18.

"Our Turn: A talke of two Texas Judges," editorial, San Antonio Express-News, 9 April 2003: B6.

"Alberto Gonzales v. Priscilla Owen," People for the American Way, press release, 22 July 2002.

In re Jane Doe,  19 S.W.3d 346, Texas Supreme Court, 22 June 2000.

Michell Mittelstadt, "Texas judge at center of Senate face-off," Dallas Morning News 9 May 2005.

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