SECTION: CAPITOL HILL HEARING

LENGTH: 19648 words

HEADLINE: AFTERNOON SESSION OF PANEL II OF A SENATE JUDICIARY COMMITTEE HEARING
 
CHAIRED BY: SEN. DIANNE FEINSTEIN (D-CA)
 
SUBJECT: NOMINATION OF PRISCILLA OWEN TO BE A CIRCUIT COURT JUDGE FOR THE FIFTH CIRCUIT
 


WITNESSES: PRISCILLA OWEN, NOMINEE

BODY:
SEN. FEINSTEIN: The hearing will come to order. Justice Owen, just a reminder: You are still under oath. And we will resume the first round of questioning. I would remind the committee that we'll recess for any floor votes that occur during the remainder of the day. And once again we're following the early-bird order, and it begins with Senator Kennedy; after Senator Kennedy, Senators DeWine, Feingold, Sessions, Schumer, Brownback, Durbin, Cantwell and Edwards is what I have so far.

Senator Kennedy.

SEN. EDWARD KENNEDY (D-MA): Thank you very much, Senator Feinstein. Welcome, Judge Owen.

MS. OWEN: Thank you.

SEN. KENNEDY: I apologize not being here earlier. I was here in the very beginning of the hearing. We're, as you have heard, considering the prescription drug issue. And as the floor manager of that, I needed to be on the floor. So I'm going to ask questions and then, with permission of the chairman, submit some follow-on questions. But I'd like to cover, if I could, in the time that I do have, two areas. As I look at your cases, I see that you have a pattern of siding against the consumer or the victim of personal injury in favor of business and insurance companies. And I'm struck by the fact that when the court does rule in favor of consumers or victims of personal injury, you're frequently in dissent.

In a few instances you've gone along with the majority of the case and ruled in favor of injured individuals. But looking at the information over the last three years, you've dissented almost half the time that a consumer wins. And you've never dissented from a case in which the consumer loses.

Do you disagree that you're among the most likely on the Texas Supreme Court to dissent from favoring -- cases favoring a consumer or injured plaintiff?

MS. OWEN: No, Senator, I don't. I judge each case on its merits. I'd like to address one thing you said. One case that comes to mind where I was in the dissent in favor of the plaintiff was Sands versus Fidelity Guaranty, or I'm not sure what comes after Fidelity.

But it was a workers' compensation case, and the woman entered into a settlement agreement of her workers' compensation claim and she ultimately claimed that she was fraudulently induced into it and claimed damages for bad faith. And I agreed with the majority of the court that the bad-faith claim couldn't stand. But I dissented because she should have been entitled to rescind that settlement agreement and go back and reassert her original workers' compensation claim. That's one that comes to mind. I can go back and --

SEN. KENNEDY: Let's take the example where the majority found -- over the objections of the majority. Have you ever dissented over the objections of the majority and found for a consumer of plaintiff? Do you have any recollection of any cases?

MS. OWEN: Well, that would be one of them, the Sands versus Fidelity.

SEN. KENNEDY: That wasn't a majority case.

MS. OWEN: I was in the dissent in that case. You're asking me if I've been in the majority for consumers?

SEN. KENNEDY: Any time that -- can you point to a case in which you stood up for a consumer or individual plaintiff over the objections of the majority?

MS. OWEN: Well, there's --

SEN. KENNEDY: That is, a case in which the consumer lost and you dissented.

MS. OWEN: Well, I think the Sands case that I just described is one of them. I think there are probably others. Again, there are 900 of them. I don't remember them all. But I could go look.

SEN. KENNEDY: Well, if you could be good enough to provide some of those.

MS. OWEN: Now, I've certainly voted -- there are a number of opinions where I have -- obviously the consumer has recovered and I joined those opinions.

SEN. KENNEDY: In the past two years, the Texas Supreme Court has ruled on cases brought under the Texas Parental Notification Act, and the law passed by the state legislature in 2000 permits the young woman to have an abortion without notifying her parents if she proves, by a preponderance of the evidence, that she's mature and sufficiently well-informed to make the decision or if notification would not be in her best interest or if notification would lead to physical, sexual or emotional abuse.

Many, if not most, would describe members of the Texas Supreme Court as conservatives. And as cases have come before the court, it's clear that its members have struggled with the task of restraining their personal beliefs on abortion and parental notification to ensure they adhere to the letter of the law.

In fact, former Texas Supreme Court member, current White House Counsel Alberto Gonzales, wrote, "I cannot rewrite the statute to make parental rights absolute or virtually absolute, particularly when, as here, the legislature has elected not to do so. However the ramifications of such a law and the results of the court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the legislature." That's all his quote.

Now, Justice Owen, a majority of the court have applied the plain language of the parental-notification statute to the relevant cases and they have refrained from legislating from the bench and placing new hurdles before young women who are already required to meet the stringent standards required by the statute.

On the other hand, you've repeatedly tried to impose new standards, standards not found in the statute, on the young women whose cases come before you. For example, you'd require young women to meet unusually high standards to prove "the direct, clear and positive," quote, proof of abuse instead of showing that the notification may lead to abuse.

Your standard is so high that four of your colleagues wrote, "Abuse is abuse. It is neither to be trifled with nor its severity to be second-guessed." Similarly, you would require a minor to exhibit an awareness of religious issues. In no place does the statute require such a showing.

So, Justice Owen, you seem to be making, not interpreting, the law. And, in fact, many might call your actions on the court activist. Can you tell the committee why, if you believe that your views reflect the plain language of the statute, you have been unable to persuade a majority of your colleagues to interpret the statute such that it includes the additional hurdles that you've grafted onto the parental-notification law?

MS. OWEN: Senator, obviously my court disagreed. We divided up initially on these cases. I -- let me go back and address the "clear, direct, positive." That was not the standard that -- the statute says "abuse may occur." And I looked for a definition of emotional abuse in another piece of the same family code. And I didn't say that you actually have to have that, but I said that's the definition of abuse if it may lead to that. That's all I was saying there.

The "clear, direct evidence" piece comes in to -- that's our standard of review as an appellate court, not in the trial court; not in the trial court. In the trial court, the burden of proof is preponderance of the evidence. And if there's some evidence to support what the trial court did, that's that.

But on appeal, if the trial court denies the minor the bypass, and even if there's no evidence to support that denial, she still must, under established law that the majority agrees with, she must still establish, by clear, direct evidence that's unequivocal as a matter of law, that she's entitled to that bypass. And a majority agrees with that. It's in our case law. That's just the standard of review, for her to establish, is a matter of law. She's entitled to it on appeal. That's not the standard that would be applied in the trial court.

SEN. KENNEDY: Well, are you saying that the four justices didn't have a different position than you had on this particular case?

MS. OWEN: I'm saying there are two different inquiries. In Doe I, I differed with the majority. I said that there are other factors that ought to be considered in deciding whether a minor is sufficiently informed. And once Doe was over, that was the standard that I applied in every case thereafter.

A separate issue that we don't disagree on --

SEN. KENNEDY: These are other factors in the law? You were looking at the law and you found that there were other aspects of the law that you noticed that the other judges did notice?

MS. OWEN: I looked, again, at everything that the U.S. Supreme Court had said, that it's okay for states to include in ensuring that a minor is sufficiently well-informed to make this decision without the knowledge of either of her parents. There are factors that appear in at least three Supreme Court cases that I thought the legislature intended to reference when they used the word "sufficiently informed and mature."

And so I was looking, again, at what the U.S. Supreme Court had said in this whole area about being informed and being mature. The court did not agree with me. But after Doe I, I applied the court's standards that they pronounced. And then this "clear, direct evidence," it's not tied to the statute. That's an appellate standard that the majority agrees with. That's just -- she's not entitled to a bypass in our court unless she establishes in the record the evidence established by clear, direct, positive testimony, free from doubt, as a matter of law, she had met the standard.

SEN. KENNEDY: Well, if you had that, do you have the same ruling today as you had at that particular time? Do you still read that the way you did at that particular time?

MS. OWEN: No, Senator, I apply the -- after Doe I, in all the other Doe cases that have come up involving "mature and sufficiently well-informed," I apply the same -- I only look at the same factors that the court did. The big controversy the second time Doe came up was whether there was any evidence at all to support what the trial court did.

And I said it was a close case, but I said the trial court was actually there on the ground. He saw -- he or she saw the minor testify, judged her credibility. And I think maturity is something that's particularly hard to do from a cold record. And I said there's some evidence, even though it's close, to support what the trial court did. And under appellate standards of review, I felt I was bound to uphold what the trial court did, even though I might have ruled a different way had I been on the trial court.

SEN. KENNEDY: Madam Chair, I thank -- my time is up. I'll have a chance to examine this record further, but I'm troubled by this conclusion. Thank you.

SEN. FEINSTEIN: Thank you very much, Senator Kennedy. Senator DeWine.

SEN. MIKE DEWINE (R-OH): Justice Owen, thank you for being with us. I want to clarify something, to follow up on Senator Kennedy's questioning. You do now follow Roe I.

MS. OWEN: Yes. That's -- yes.

SEN. DEWINE: That is the law of Texas today.

MS. OWEN: It is the law.

SEN. DEWINE: And you have followed that ever since Roe I was decided. Is that correct?

MS. OWEN: Yes, Senator.

SEN. DEWINE: Now, in Roe I, both the minority and the majority were trying to decide what guidance to give the trial court.

MS. OWEN: Yes.

SEN. DEWINE: Isn't that correct?

MS. OWEN: Yes. We were trying to --

SEN. DEWINE: And isn't it correct that the only dispute was what guidance to give? It wasn't a dispute over whether you were going to give guidance.

MS. OWEN: That's correct.

SEN. DEWINE: And, in fact, isn't it true that the majority did give guidance to the lower court?

MS. OWEN: They did.

SEN. DEWINE: And that's the guidance that you follow today.

MS. OWEN: That's correct.

SEN. DEWINE: There are a number of rules of construction that courts apply when interpreting a statute. Isn't it true that one of those rules is that a legislature is presumed to be aware of United States Supreme Court precedent in an area in which it has passed a statute?

MS. OWEN: That's where the standard presumption is in statutory construction.

SEN. DEWINE: Basic rule of construction, the courts will follow.

MS. OWEN: Yes.

SEN. DEWINE: So in the case of the Texas parental-notification statute, the Texas court's presumption would be that the Texas legislature was, in fact, aware of Supreme Court precedent when it crafted its judicial-bypass process.

MS. OWEN: Yes, Senator. And we all agreed on that. The majority agreed that that was true.

SEN. DEWINE: Now, I'm looking at the end of Section -- Roman numeral IV in the Texas Supreme Court's majority opinion in the first Jane Doe case. In Section 4, your court's majority is discussing a line of U.S. Supreme Court cases on parental bypass, starting with Bellotti. Your court majority concludes, and I quote, "Our legislature was obviously aware of this jurisprudence when it drafted the statute before us," end of quote.

So you weren't alone in your conclusion that the Texas legislature drafted the parental-notification statute with the Supreme Court case in mind, were you?

MS. OWEN: No, sir.

SEN. DEWINE: The majority had the same opinion.

MS. OWEN: They did.

SEN. DEWINE: Let me really get back to basics in regard to this issue. I want to go back to the statute that was passed by the Texas legislature in this area. And I will quote from it. When a minor files this application for a bypass -- in other words, saying, "I do not want either one of my parents notified" -- and this is, in fact, a minor we're dealing with -- "When a minor files such an application, the court shall determine" -- I'm quoting from the statute -- "by a preponderance of the evidence, whether, one, the minor is mature and sufficiently well-informed to make the decision to have an abortion performed without notification to either of her parents, or, two, notification would not be in the best interest of the minor, or, three, notification may lead to physical, sexual or emotional abuse of the minor."

And the statute continues. "And if the court makes any of these determinations" -- that's my emphasis -- "any of these determinations, the court shall enter an order authorizing the minor to consent to the performance of the abortion."

So -- now, as the Supreme Court, you're not the trier of fact, are you?

MS. OWEN: No, we're not.

SEN. DEWINE: That is the lower court, the originating court.

MS. OWEN: Yes.

SEN. DEWINE: And in Texas, you have three layers?

MS. OWEN: That's correct.

SEN. DEWINE: Okay. So before that case gets to you -- any of these, what, 10 cases, 12 cases?

MS. OWEN: Well, there were 10 girls.

SEN. DEWINE: Whatever they were -- about that. Before they got to you, the trier of fact had already determined that none of these three items applied, because if any of them would have applied, the trier of fact, who was watching the witness, who was talking to the young lady, who was taking all the circumstances into consideration, if that trier of fact had found any of these three, that case never would have got to you, would it?

MS. OWEN: That's correct.

SEN. DEWINE: Now, is it my understanding, under Texas law, that once a lower court makes that determination, that ends the case --

MS. OWEN: That ends the case.

SEN. DEWINE: -- because there's no one to appeal the case?

MS. OWEN: That's correct. There's no one to --

SEN. DEWINE: The plaintiff has won or the person who's filing, the young lady who's filing, her lawyer, they've won the case.

MS. OWEN: And the statute specifically says there's no appeal from a grant of the bypass.

SEN. DEWINE: So before these cases get to you, the lower court has found all three or has found that none of the three apply, then an appellate court has gone through and done a review.

MS. OWEN: That would be a three-judge panel.

SEN. DEWINE: Three-judge panel. That's how it works in Texas. All right. Now, as all lawyers know and judges know, and I think many people know, when a case gets to an appellate court, such as your Supreme Court, you're not retrying that case.

JUSTICE OWEN: No, Senator, we're not.

SEN. DEWINE: And there are different standards. The majority came down with one standard. You came down with another standard of review. Those standards are not very dissimilar. Those are -- what are the basic standards?

JUSTICE OWEN: Well, in terms of the factors on --

SEN. DEWINE: Yeah, what are you looking for to overturn a case? What do you have to find?

JUSTICE OWEN: On the "mature and sufficiently well-informed," there are two things. You first have to conclude that there was absolutely no evidence to support the trial court's failure to find. But then you also have to take the second step and look at the evidence and see if the minor established, from clear, direct, convincing evidence -- I may not be quoting exactly, but it's in the majority opinion -- and there's no factual dispute at all, before she's entitled to a bypass --

SEN. DEWINE: That is the law in Texas today.

JUSTICE OWEN: Yes.

SEN. DEWINE: That, though, in a sense, is not totally dissimilar to what we have in many appellate cases, where the basic principle of law that we have in this country is that we give deference to the lower court, the trier of fact, whether it is a jury or whether it is a judge who is -- has the opportunity to watch the witness, has the opportunity to judge the demeanor of the witness on the stand, has the opportunity to take all the totality of circumstances into account, isn't that true?

JUSTICE OWEN: That's correct.

SEN. DEWINE: So I think, Madam Chairman, it seems to me that when we look at and judge these cases, these parental notification cases, it seems to me that as we see whether or not these have any bearing on this justice's qualification to sit on the federal bench, it's good for us to be mindful of the fact that all appellate courts give a great deal of deference to the lower courts, that all appellate courts understand that the trial court judge has his job or her job, and they are the ones who are looking at the witnesses. And it would seem to me that particularly when we're dealing with such a very delicate case, and a case where the understanding of the young lady involved is so important, and what -- not just she has been told but what she truly understands, that the trial court judge is in a unique position to make -- make that decision. And I think that we all should consider that as we look at these cases.

Thank you very much.

SEN. FEINSTEIN: Thank you, Senator DeWine. Senator Feingold, you're next.

SEN. RUSSELL FEINGOLD (D-WI): I thank the chair. Welcome, Justice Owen.

JUSTICE OWEN: Thank you.

SEN. FEINGOLD: Justice Owen, the independence of the Texas Supreme Court has recently been attacked for allowing its law clerks to accept large bonuses, as much as $45,000 from law firms that law clerks plan to join after completing their clerkships. And the potential for a conflict of interest here is very real and serious, I think. The clerks review and express opinion on cases brought by or against the firms paying their bonuses. I'm told this issue provoked an investigation by the Travis County attorney into whether the practice violates Texas criminal law. The Texas Ethics Commission ruled last year that the bonuses could be in violation of the state's bribery laws. In response, the supreme court issued new guidelines concerning these so-called clerk perks. I'm told that you, however, defended the clerk perks and dismissed the criticism as a, quote, "political issue that is being dressed up as a good government issue," unquote. Why do you believe that this was simply a political issue and not a genuine issue of ethics, fairness and independence of the judiciary?

JUSTICE OWEN: Senator, I'm glad you asked that question because, first of all, my quote, I do -- I do think I said it was a political issue, I don't remember the second part of it. But let me give some background, if I may, on the entire clerk issue. First of all, the -- there -- the investigation was not of my court or any judge on the court. That was an issue between the employers and the law clerks. The court or the justices were never under any kind of scrutiny at all from the criminal law standpoint. But this is a long-standing practice that I would say many if not most federal district courts, federal circuits, and I think even some judges on the U.S. Supreme Court -- law firms around the country typically give so-called "clerkship bonuses," to their lawyers who take their first year of practice and clerk for a court, not just my court, as I said federal district courts, federal courts of appeals, U.S. Supreme Court, and nobody -- that was a practice that's been around for a long time. Every -- since -- ever since I've been at my court, I mean, everybody -- it was a clearly understood rule, and certainly a hard and fast rule in my chambers, that if you had clerked for any law firm, if you were even thinking about taking a job offer from any law firm, you were completely recused from all of their cases permanently, as long as you were an employee of the court. You don't get near that file. You didn't work on memos, or when matters touching that case were brought up in conference, you'd have to leave the conference room so that there's just no opportunity at all for a law clerk that has any connection or any potential connection as an employee with a law firm to come into contact with those files. So --

SEN. FEINGOLD: So, the clerks have recused themselves in each of the cases?

JUSTICE OWEN: They have. And we -- we -- that's a -- that's been a rule for years, as far as to my knowledge --

SEN. FEINGOLD: Let me -- I appreciate that background. Let me just return to my original question. Do you believe this is a simply political issue, or is it also a genuine issue of ethics, fairness, and independence of the judiciary?

JUSTICE OWEN: The reason I said it was a political issue is because it was only my court that was singled out, this practice -- they didn't criticize the federal courts. They didn't criticize any of the lower state courts of appeals who do it. They didn't criticize the criminal court. And they didn't criticize the U.S. Supreme Court. It was just my court that was singled out by a group who routinely issues press releases accusing my court of ethical violations.

SEN. FEINGOLD: Well let me ask you more broadly then, the broader practice, is it a -- simply a political question or is it a question of whether this creates potential problems, a legitimate question of ethics and fairness?

JUSTICE OWEN: I didn't think because of the way we always structured the clerkship program that it was an ethical issue because it was such a well-settled, long-standing practice, and because these clerks had no access whatsoever, I didn't think it was an ethical issue. The way it was resolved is, not -- again, this is mainly an issue between the employers and our clerks, not the court -- but we did say, put in new rules so that the clerks would be absolutely clear, wouldn't inadvertently get in trouble with anyone. We said -- the authorities said that if they could take the clerkships over -- their bonus over a period of a year after they leave the court. They -- it was -- it was -- they still get the bonus, it's just a question of timing.

SEN. FEINGOLD: I appreciate those answers. Let me turn to a different question. I understand that you are a member of a local church in Austin, Texas, the St. Barnabas Episcopal Church.

JUSTICE OWEN: I am.

SEN. FEINGOLD: According to Alliance for Justice, in 1998, while you were a sitting justice, you lobbied then-governor George W. Bush with a private meeting with your pastor for state funds for an evangelical prison ministry program, Alpha Prison Ministries. Now, according to Jose Juarez, a law professor at St. Mary's School of Law in Texas, this conduct is in -- a violation of Cannons 1, 2, 2(a), 2(b), 4(a), 4(b), 4(c) and 5 of the Texas Code of Judicial Conduct. Cannon 2(b) states that a judge, quote, "shall not lend the prestige of a judicial office to advance the private interest of the judge or others," end of quote. Cannon 4(c) states that a judge, quote, "shall not solicit funds for any educational, religious, charitable, fraternal, or civic organization," unquote. Professor Juarez concludes by stating, quote, "Any Texas judge should have known that such a meeting would violate the Texas Code of Judicial Conduct." Could you please explain why you held this meeting in violation of the letter and the spirit of the Texas Code of Judicial Conduct?

JUSTICE OWEN: Well, Senator, I respectfully submit that I didn't violate any ethical code at all. I facilitated a meeting between my pastor and then-Governor Bush to ask if -- for my pastor to ask him if he would consider allowing a prison ministry, headed up by my church, in a -- in a prison. No state funds were asked for whatsoever. This -- the whole prison ministry was -- didn't cost the state any money. It was totally voluntary on the prisoners' part. They didn't get any special perks or any special treatment if they took part in the prison ministry. It was a small group of people, as I understand it -- I didn't participate -- but as I understand it, who ended up going to the women's prison in Barnett, Texas on Friday evenings for a period of I think six weeks or so to do this prison ministry. It didn't cost -- again, no funds were involved. It was simply, on Friday evenings -- again, as I understand it, (Justice ?) is here, he can give you the details if necessary, but --

SEN. FEINGOLD: So, there was no solicitation for funds at all?

JUSTICE OWEN: Absolutely none.

SEN. FEINGOLD: And that's why it's your contention that none of the cannons of ethics were violated?

JUSTICE OWEN: That, and the fact that although I am a judge, I am also a friend of then-Governor Bush, and we had discussed some of these issues, some of our respective beliefs before, and I had told him about my pastor. And I guess in my mind it was more friend-to- friend as opposed to judge-to-governor, but in either event, even if I had had my judge hat on, no fund -- no funding was involved at all. And it wasn't a lobbying effort, it was simply a -- would you consider letting us do this prison ministry?

SEN. FEINGOLD: I appreciate your answers to my questions, Justice.

JUSTICE OWEN: Thank you.

SEN. FEINSTEIN: Thank you, Senator Feingold. Senator Sessions is not here. Schumer, Brownback, and Senator Durbin, you're next up.

SEN. DURBIN: Thank you very much, Madam Chair. Justice Owen, thank you for joining us. I have followed in the news reports a suggestion that the Texas Supreme Court has changed rather dramatically over the last 10 or 15 years. There have been suggestions that because of active political campaigns that those justices now serving on the court, at least a substantial majority, are certainly more sympathetic to business interests, and corporate interests, and insurance company interests than previous courts. In fact, some national news programs have suggested that it is nothing short of a statewide, coordinated, long-term campaign for those interests to make certain that they are well-represented on that Texas Supreme Court. Have you heard these same press reports?

JUSTICE OWEN: Certainly.

SEN. DURBIN: Do you believe they are true?

JUSTICE OWEN: No, Senator, I don't.

SEN. DURBIN: And so you would say that the court is -- how would you describe the court today?

JUSTICE OWEN: I would describe it as I think some of our colleagues in other states have described it, as a very good court. The justice -- a justice on the Massachusetts court has said when they start looking at common law issues in particular, they start with the Texas Supreme Court because our opinions are well researched and thoroughly reasoned. That's where they start.

SEN. DURBIN: And on -- on the court itself, where would you place yourself on the spectrum -- more conservative than the majority, or in the center position, or more liberal?

JUSTICE OWEN: Senator Durbin, I -- I frankly don't -- I don't think it's very instructive to imply -- to apply words like conservative or liberal in terms of judging. I don't take a political viewpoint into my chambers or on to the bench when I judge cases or as I am sitting there reading the briefs.

SEN. DURBIN: Well, let me ask about a few of those cases to see if I can deduce my own conclusion from them. Let me ask you just directly, what is your position on abortion?

JUSTICE OWEN: My position is that Roe v. Wade has been the law of the land for many, many years. Now it's modified by Casey. And I -- none of my personal beliefs would get in the way of me applying that law or any other law.

SEN. DURBIN: And yet if someone were to take a look at the opinion that -- opinions that you've written on the parental notification statute in Texas, they would find, would they not, in the overwhelming majority of cases you have decided against allowing a minor to go forward with an abortion procedure under Texas law.

JUSTICE OWEN: Senator Durbin, there were -- there were only five girls that my -- my court has written on. And out of those five cases, I voted to grant the bypass in one case. And the first time that they came to the court in the other two, I voted to remand those cases to the trial court so that Jane Doe 1 and Jane Doe 2 could each get another shot at getting the bypass. And if the trial court had granted the bypasses a second time, that would have been the end of it. When the second time Doe 2 came back, I said it was a close call, but based on the record I had -- I felt like I had to go with the trial court's call. In five of the cases, as I think I talked about earlier, they came up to the court and without opinion the court affirmed the lower court. As I said, that would take at least six votes. There were not public dissents. If there had been, they would had to have -- all the judges would have had to have noted where they lined up. And I think it's a fair assumption, given -- given the amount that occurred on the other five cases that if they had been close cases we would have written on them. So, we're talk --

SEN. DURBIN: Is it not true that you've ruled against judicial bypass in every opinion you've offered -- authored, in 13 of the 14 cases you've considered on the court?

JUSTICE OWEN: Yes sir, that's -- that's -- I voted in the first two cases -- I didn't say she doesn't get the bypass, I said she gets another chance to convince the trial court that she should get it --

SEN. DURBIN: Do you understand --

JUSTICE OWEN: -- and then I granted the bypass, I voted with the court with Doe 10 to outright grant the bypass.

SEN. DURBIN: Do you understand the timeliness of the decisions that the courts are making in these cases?

JUSTICE OWEN: The timeliness?

SEN. DURBIN: Yes.

JUSTICE OWEN: As soon as they come in, we drop everything and deal with these.

SEN. DURBIN: And remanding them for another court review --

JUSTICE OWEN: It's within two days. We told them that you've got two business days under the statute to resolve it.

SEN. DURBIN: In Jane Doe 2, you wrote in your concurrence, "the court has omitted any requirement that a trial court find an abortion to be in the best interest of the minor." The law says that the notification has to be in the best interest of the minor. Could you tell me where you came up with the notion that the legislature required that the abortion be in the best interest of the minor?

JUSTICE OWEN: Yes sir, I can. The -- that's directly out of the U.S. Supreme Court case that said we construe notification to mean notif -- that -- I'm sorry, notification, best interest to mean that abortion without notification is in the best interest, and it's straight out of a majority opinion from the U.S. Supreme Court.

SEN. DURBIN: I find in each of these cases, though, that you have tended to expand and embellish on the state legislative decision in Texas. Now, Senator Gramm, your sponsor, one of your sponsors today, has said that he thinks the Texas legislature was trying to take three sides on a two-sided issue. That's a statement that's fairly critical of this legislature. Clearly, they have taken a position, and I take it from what you've said to us today that these court decisions, where you consistently find problems with the Texas parental notification statute, you're saying don't reflect any opposition on your part to a woman's right to choose?

JUSTICE OWEN: No, Senator, I don't think they do. Again, the -- the exact language that's in the statute, best interest, that exact same language was construed by the U.S. Supreme Court to mean that the abortion without notification was in the best interest. Sir, I followed what the U.S. Supreme Court had construed that to mean. And I thought that was a reasonable construction given that the legislature had taken the language out of -- if not that very case, it may have been that very case --

SEN. DURBIN: I'll have to say that I've been on this committee for a few years, and the issue of judicial activism has arisen when there were Republican chairs and Democratic chairs. And I have come to conclude that it is in the eye of the beholder that Republicans only want judges who are actively pursuing their agenda, and Democrats only want judges actively pursuing their agenda. I don't think it is an objective standard that is being used here. And so the term is being used back and forth here.

What I am looking for really are some fundamentals in terms of your philosophy. I believe the president has a right to fill vacancies. But I also believe the people of this country, and certainly the people in this circuit that you are aspiring to, deserve judges who are going to be moderate and centrist, and try to be reasonable and balanced in their decision-making.

Let me go to a specific case, if I can for a moment.

JUSTICE OWEN: Senator, before we leave this area, can I make one point on this activist in this whole area of a woman's right to choose? Two cases that have come before my court that I would like you to be aware of -- one, I believe it was Sepulveda v. Krishnan. In that case the question was can a mother and a mother recover damages for the death of a fetus. And I think you can see the implications in all this debate over that particular issue. And my court had for many years construed the Texas wrongful death statute and the survival statute to say, no, you cannot recover for the death of a fetus. We were asked to reconsider that construction, and we pointed out that the vast majority of states now allow recovery in those circumstances. But I agreed with the majority that, no, that had been Texas law. We are not going to change it. You cannot recover for the death of a fetus. That's the law in Texas.

SEN. DURBIN: I'm sorry to interrupt you, but I have very little time here, and if you'd like to submit something along that point of view, I'll be happy to consider it.

I want to go to one specific case though, the Provident American case -- versus Castenada -- do you remember it?

JUSTICE OWEN: I do.

SEN. DURBIN: I read this case, and read your decision, and I often wondered how a court could come down, as you did, writing a majority opinion here in a case involving coverage on a health insurance plan where frankly the insurance company decided to try to find anything it could in its policy to avoid paying for a critical surgery that was needed by this family. In fact, you came down and found on the side of the insurance company, and said that there was an exclusion out of their policy. The dissent that was written in this case by Justice Raoul Gonzalez I think went to great lengths to point out facts that you chose to ignore. You said the court sustains -- let me find this -- the court ignores important evidence that supports the judgment, emphasizing evidence and indulging inferences contrary to the verdict -- resolves all conflicts in the evidence against the verdict for the family that was denied coverage. And it goes on to say, "I want to recite the facts the court chooses to ignore in its decision."

The reason I raise this issue -- and Justice Gonzalez was very forthright in believing that this was a slam-duck for the insurance company, that they got an opinion from you that he didn't believe was sustained by the policy or the evidence. In fact, he said he thought with your opinion you were destroying the bad faith tort in the state of Texas.

Going back to my original point, I think it is fairly well known that the Texas Supreme Court is much more conservative today than it once was, that it was an all-out effort by major corporations and by insurance companies to try to build a majority on that court. And as I read this decision, sometimes it's hard for me to imagine how someone in good faith can look at the facts as in this case and basically say to a family, after they had preapproval for a surgery, that an insurance company could come in and say no, we are not going to cover, and then have a Supreme Court in Texas stand behind them, and say to the family, You're out of luck -- they found a little provision in the policy here -- you're not covered. This troubles me, because frankly that kind of a finding reflects a philosophy that does not tell me there is a well balanced approach here. And certainly Justice Gonzalez felt the same in his dissent. And I invite you to comment.

JUSTICE OWEN: Thank you, senator, I really do appreciate the opportunity, because this case was not about coverage. They were covered. The only dispute here was bad faith. These people were covered under their policy. They got their attorney's fees for breach of contract, and they got either 12 percent or 18 percent penalty under the statute -- I can't remember which one applied at the time. They lost on the coverage question -- no doubt about it. That was not the issue in front of my court.

The issue was whether in addition to their coverage -- their full policy limits, plus attorney's fees, plus the penalty -- could they recover extra contractual damages for bad faith? And the standard there is that the insurance company had absolutely no reasonable basis whatsoever to deny the coverage. And the facts in this case were the family had two children who had been jaundiced all of their lives. They called up an insurance company and applied for a policy, after their uncle had told them that he had a hereditary blood disease called HS. The policy had a 30-day waiting period, and they didn't disclose to the insurance company anything about the hereditary disease. Three days after -- or maybe it was two --

SEN. DURBIN: Three.

JUSTICE OWEN: Three days after the 30 days had run they took their children to a physician who on the spot diagnosed this hereditary disease and removed their -- I believe it was their spleen. So the question was under those circumstances -- not should the insurance -- could they deny coverage? -- but is there any reasonable basis for them to delay in paying policy limits? And we have said under all those circumstances that you can't say that there was no reasonable basis to delay. But they were covered. That was not the issue.

SEN. DURBIN: I could tell you that -- I think we are carping on a trifle here as to whether they're covered. The fact was the insurance company approved the surgery, did they not, before it took place?

JUSTICE OWEN: Yes.

SEN. DURBIN: And the fact is the insurance company then refused to pay. And you were arguing in your majority opinion here on behalf of the insurance company that waiting the three days after the 30-day period was not enough; that these -- that this family was deceiving the insurance company -- was operating in bad faith. And I think Justice Gonzalez and Justice Specter (ph) make a compelling argument here that the facts just don't come up that way. I have represented insurance companies. I have represented plaintiffs. You were the answer to the insurance company's prayer if you would buy this argument, if you would turn on a company -- turn on a family that is facing this kind of peril and make this kind of interpretation. And that is what troubles me about what you are asking for, is to be elevated to a court where you can make significant decisions involving insurance companies and major corporations, which I am afraid if you follow the logic, as you did in the Provident case, would not be in the best interests of serving the people and the court. Thank you for being here. Thank you, Madam Chair.

SEN. FEINSTEIN: Thank you very much. I don't see other senators here at the moment, but I thought I might just say something. I am deeply concerned, because I've read all the Doe cases, and I've read the notification law. And the notification law is pretty straightforward. One, the minor is mature, sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or managing conservator or guardian; or the notification would not be the best interests of the minor; or notification may lead to physical, sexual or emotional abuse of the minor. That's it's. And any one of the three factors has to be present. That's it. It seems to me on that basis you make a decision. But you really haven't done that. You've looked in other places, it seems to me, to find a rationale not to do what the Texas law called for -- you know, invoking a religious implication, invoking concern about the fetus, invoking, Well, the emotional wrongdoing was just threatened by the parents -- it may not have happened. It seemed to me that you -- maybe this is what being an activist means -- that you worked to come out where you came out in your opinion. And that's a very deep concern, because if the Texas legislature wanted to change "may" to "must," they could have. They could have said, "notification must lead to physical, sexual, or emotional abuse of the minor," but they didn't. They said it "may," which means it either may or may not. And this I find troubling.

Now, I had some Texas lawyers come to me who were consumer lawyers. And they said their concern was they didn't believe they could ever get a fair shot in your courtroom. And that was in ten years of serving on this committee no one has ever said that before. And the case that Senator Durbin just raised, which I was going to mention as well, the fact is that there was a judgment. The fact is that the family was entitled to coverage. But your invalidation of the trial verdict completely threw out their entire reward. And, again -- I mean, the law is there for little people. This is the remedy for little people, not for the providence of the world certainly have the right to be taken at face value. But what disturbs me is it's in so many places in these notification cases, in these health benefit cases, in other consumer related cases, in the Searcy (ph) case. These are people very much harmed, and their redress was cut off. Could you respond to that?

JUSTICE OWEN: Yes, senator, I would like to. You know, there are a lot of cases that come before our court that I think tug at all of our hearts strings. And that's part of being a judge sometimes. But, again, I have committed and have got to apply the law, and there are guiding principles in contracts, in the bad faith area and other areas that have to dictate what the law says. Again, in the Castaneda case, let me emphasize it was not about their insurance coverage. They won on the coverage issue. They got all of their policy benefits. They recovered attorney's fees. There's a statutory penalty in Texas if the insurance company doesn't timely pay -- and I am assuming that they recovered that statutory penalty. The issue in my court was not policy benefits. The issue in my court was do they get extra contractual benefits for bad faith, which is a common law tort or sometimes it's brought under a statute, Article 2121. So we weren't -- it was not a coverage issue. They did get their policy benefits.

On the parental notification cases, let me make clear that I never advocated in my opinion or anywhere else that a young girl has to have religious beliefs of any type at all. I -- you know, I said, as the U.S. Supreme Court has said, these are weighed decisions, and that a minor ought to exhibit some awareness that there are philosophical, and moral, and religious issues out there. And I hasten to add if she doesn't have any, it's not an inquiry what they are -- simply that if she has those beliefs, has she thought about them, has she considered them? Has she considered the philosophical and social and moral arguments whether she agreed with them or not? Just an awareness that they exist. She doesn't have to adhere to any particular viewpoint. She doesn't have to explain or justify her viewpoint or her philosophy or her moral stance, or whether she has religious beliefs. The U.S. Supreme Court has said, and I tried to apply that, that it simply -- she needs to exhibit some awareness as a mature person, an adult -- you would hope an adult would exhibit - that there are at least these arguments out there on both sides, and that she's aware of both sides -- not that she agrees with it or again has to justify any of this.

And, again, the -- I really do -- I did think that given that the legislature had lifted word for word what mature and sufficiently well informed meant, best interests and all of this out of a statute that had been -- from another state that had been approved by the U.S. Supreme Court, that they were trying to adhere to all of that precedent. And sooner -- I think it's hard. If I were a trial judge and I was told, Well, decide if she's mature -- decide if she's sufficiently well informed -- well, without some guidance I think you are going to get varying results around the state, What does that mean? So I think it was necessary for my court to speak, so that girls in West Texas wouldn't be held to a different standard that girls in East Texas were. My court ultimately -- I didn't totally agree with the majority on every aspect, but I did my best to adhere to what I thought the legislature intended. It was not anti anything, it was not activism. Once the court made its decision in Doe, those are the factors, and I abide by that.

SEN. FEINSTEIN: Well, I believe that this completes the testimony. Is there any -- I am going to adjourn the hearing, and we have two other --

SEN. : (Off mike.)

SEN. FEINSTEIN: Oh, we have more people coming? I would recess for the vote then and go down and vote, and just ask you to forbear, if you don't mind.

JUSTICE OWEN: Okay, not at all, senator.

SEN. FEINSTEIN: So we'll take a brief recess. Thanks everybody. (Sounds gavel.)

JUSTICE OWEN: Thank you.

(Recess.)

SEN. FEINSTEIN: (Sounds gavel.) The hearing will reconvene. And next on the list, Senator Schumer, then Brownback, Cantwell, and Edwards.

JUSTICE OWEN: Madam Chair? Before we proceed, can I amend an answer?

SEN. FEINSTEIN: Certainly. Go right ahead.

JUSTICE OWEN: It was regarding the Provident American v. Castaneda case. I remembered that it was the only issue in front of my court was bad faith, and I had thought -- I incorrectly remembered -- I just assumed that they had won on the contract claim in the trial court, and that was not in front of us. I was right that the contract --

SEN. FEINSTEIN: Are you talking about Castaneda now?

JUSTICE OWEN: Yes.

SEN. FEINSTEIN: All right.

JUSTICE OWEN: I was right that the contract claim was not in front of us. They never pled breach of contract or asked for any refindings on breach of contract. They only sued on a bad faith denial of the claim. So I was wrong. It was incorrect -- I had not read the case in quite a while -- that I said that they recovered their contract damages. They just never pled that. They were seeking solely a so-called bad faith claim under the Texas Deceptive Trade Practices Act and under the insurance code. They were statutory claims -- not under the policy but so-called extracontractual claims.

SEN. FEINSTEIN: Yes. And but they did not get the extra contractual claims?

JUSTICE OWEN: That's correct, they did not get the extra contractual --

SEN. FEINSTEIN: But they did get the surgery paid for?

JUSTICE OWEN: Well, that's my -- I thought they did, but they never pled --

SEN. FEINSTEIN: They did not?

JUSTICE OWEN: No, because they never asked or pled for policy benefits under the contract.

SEN. FEINSTEIN: So then they got nothing?

JUSTICE OWEN: They -- as it ended up, because they didn't ask or plead in the trial court, or ask for the jury to find breach of contract of the policy, we didn't have that in front of us, so we couldn't grant that for them. In other words --

SEN. FEINSTEIN: Didn't the trial court grant it?

JUSTICE OWEN: No, senator, they never pled it. They went solely on noncontractual claims. They never pled in the trial court, or asked the jury to find if the insurance company owed the policy benefits under the policy. And I don't know why that was. And I had just assumed that the only thing that they had -- I assumed they had gotten the contract benefits, because I knew the only issue in front of us was bad faith. But as I reread -- someone handed me the opinion during the break, and they just didn't ever raise the contract claims in the trial court. SEN. FEINSTEIN: Thank you for clearing that up. Appreciate it.

Senator Schumer?

SEN. SCHUMER: Thank you, Madam Chairwoman, and I very much appreciate the opportunity to testify. And thank you, Judge Owen.

Before I get into what I want to ask you, I did want to make a few points in reference to what Senator Hatch said in his opening remarks. Unfortunately, he's not here. I tried to make them while he was here, but -- so he knows I am going to make them.

Three points. First, you know, let's try to keep this debate at a reasonable level. Senator Hatch keeps saying "left-wing pressure groups," "left-wing pressure groups." I don't hear anything about right-wing pressure groups or moderate pressure groups. There are a whole bunch of groups that support Judge Owen's nomination. They are doing their civic duty, but anybody who opposes it is a "left-wing ideological pressure group." Enough of that. That kind of foolishness should not go on in this committee room or anywhere else. Let's be fair about it. There are groups on both sides pushing everybody, and we are all independent and have to make our own decisions -- we may be influenced by them on one side of the aisle or the other. But this idea that the only pressure groups are from the left is a joke.

Second, related. Senator Hatch talked about something that I agree with, which is well, we are picking -- we are looking for little personal things about people, and they are going to put you through the wringer -- "Welcome to Washington," he said to you, judge. I am aghast. After eight years of them looking and turning President Clinton, his family, and everyone who worked for him inside-out about every single issue under the sun, now all of a sudden it's, "Welcome to Washington." Again, what's good -- I don't believe in it on either side, but let's have some semblance of fairness about this.

About not nominating women? What a canard. What kind of argument is that? I mean, I don't think anybody can -- anything -- any cursory look at what this committee has done has stood up to that. We have on the floor voted for 12 women. My guess is that's about as high a percentage in terms of the gender as the men who were sent to us. How about not voting for anyone who is pro life? My guess is of the 78 judges I voted for, the majority are pro life in this session. So let's cut out the games. Let's not try to beat people up with two- by-fours with specious arguments. Let's have a real discussion about what makes a good judge. And we'll have differing views on that, and that's fair, and that's why we have a Senate. But, I'll tell you, I'm not going to be bamboozled by arguments like that, and I don't think anybody should be. And I just wanted the record to show that. I thought that kind of hyperbole is not fair.

Okay, now to Judge Owen -- oh, and one other point, which I'll -- I'm glad Senator Hatch is here --

SEN. FEINSTEIN: You just missed it. (Laughter.)

SEN. SCHUMER: Sorry.

SEN. HATCH: Is he running me down again? (Laughter.)

SEN. FEINSTEIN: -- responding.

SEN. SCHUMER: I'm just responding.

SEN. HATCH: That's what we call it now? (Laughter.)

SEN. FEINSTEIN: You're terrible.

SEN. SCHUMER: He is. But he's a nice guy. He is truly a nice guy.

SEN. HATCH: Not nearly as terrible -- (laughter) --

SEN. SCHUMER: His arguments are not as nice as he is. In any case, the other point that Senator Hatch made which I'll address as I address you, (Justice ?) Owen, is, What kind of questions are legitimate to ask and not ask to a candidate for a high lifetime position?

But let me say this to you, Judge Owen, and then I am going to make some statements and ask some questions, and weave them in together. Last week we had the pleasure to meet privately, and when we talked I told you I've had I think since I've come here three standards in terms of nominating, choosing, voting for judges. They are excellence -- legal excellence, moderation -- I don't like judges too far left, too far right -- and diversity -- I don't think the bench should be all white males. I don't think there's any question about your legal excellence. You've had a distinguished academic and professional career in the ABA, whose ratings reviews the nominee's legal excellence no more, no less, has rated you well qualified with good reason -- I think anyone who has listened to even 10 minutes of this hearing today has no doubt about the excellence in terms of the quality of your legal knowledge and your intelligence, your articulateness, et cetera.

On the diversity front, the population of the Fifth Circuit, the court you have been nominated to, the population within the body of the Fifth Circuit is the most racially diverse in the country -- even more so than in the Fourth Circuit. And President Clinton -- let the record just show -- made three nominations to that circuit, two of whom were Latino -- there is a large Latino population within the Fifth Circuit, namely in your home state of Texas -- none of them received confirmation hearings. So one of the reasons we don't have diversity on this court is that reason. But, obviously, in terms of gender diversity, you get an A-plus.

The third standard is moderation, and that's really where I have concerns, and that's where my focus will be. Now, there is some idea out there that all of a sudden has sort of taken root among people of a particular ideology I might add that you can look deep into space and divine the correct legal interpretation of a statute, that we all would come out with the same -- in the same exact place, that our ideology has nothing to do with how we interpret the law. We all know that's bunk. It's obvious when you look at any court. Judges bring their experiences, their biases, their ideology to the table when they decide cases. Whether it happens consciously or subconsciously, we know it happens. If it didn't, why would Justices Scalia and Thomas come out exactly almost the same way on so many cases -- so different than, say, Justice Breyer and Justice Ginsburg? If it was -- if ideology made no difference, the number of times -- they are all very smart people, they are all great lawyers -- the number of times that Scalia would agree with Thomas would be about the same as the number he agreed with every one of the judges.

Look at the nominees that Presidents Reagan and Bush made to the court versus the nominees that President Clinton made to the court. How come they all seem to vote so similarly? It's because ideology does matter. We all know it. This administration knows it. How come they haven't sent up a single so-called liberal judge? If they were just looking for legal excellence, they'd send some judges from the left, some judges from the center, some judges from the right. The president said it himself. He said he wanted to send judges up in the mold of Scalia and Thomas. I give him credit for honesty. He's doing that. Whether that's good for the country or not, is the debate at least that I have chose to engage in over the last few years that we have been here.

That happens on your -- it happened in the Texas Supreme Court as well. You and Judge Hecht have frequently come down on the same side on the Texas Supreme Court. It's not accident. It's not simply that you went to the same law school, read the same law books. Philosophically you're in the same place -- similar places. So this idea that ideology shouldn't matter, that we shouldn't ask questions about someone's judicial philosophy, which is what my good friend from Utah said, I think is so, so wrong, that it is almost hard to -- hard to accept if you look at it in any way at all. And my guess is if we looked at the way my good friend from Utah voted on judges over the last years he's been in office, and the way I voted on judges -- we'd agree on most of them, because we agree on most judges as we vote. But it's clear that his philosophy would dictate he voted against certain judges and for others, and I probably did the mirror image, because our philosophy does influence how we vote. We are just not simply interpreting the legal excellence of the mind. I do agree with him, as I said before you came in, that I don't like this gotcha stuff. I think that's become a substitute for all of this. But how come it is when there is a Republican nominee it's the Democrats who focus on the gotcha stuff, and when it's a Republican -- when it's a Democratic nominee it's the Republicans who focus on the gotcha stuff? Again, if we weren't doing ideology -- whether someone smoked marijuana in college or went to some bookshop and got a certain book or movie, the votes should be evenly dispersed throughout the political spectrum. It's not, because it's sort of a kabuki game.

Well, what I've tried to do in the year that I've been chairman of the Court Subcommittee is bring some level -- at least I would call it -- of honesty to the debate. Let's admit that ideology should play a role. Let's ask those questions. I think it's my obligation to ask those questions. And I'll tell you I am the opposite of Senator Hatch. Any judge who doesn't answer questions about their philosophy, their views on the First, or Second or Fourth Amendments, should not be put in such an important and august position where there is a lifetime appointment. So let me --

SEN. FEINSTEIN: Senator, your significant treatise took 10 minutes and 32 seconds.

SEN. SCHUMER: May I ask one question?

SEN. HATCH: Could I as a point of personal privilege just make one note for the record? I only voted against one Clinton judge out of the 378 that we passed --

SEN. SCHUMER: Bet it wasn't --

SEN. HATCH: So I hardly used ideology --

SEN. SCHUMER: Bet it wasn't a conservative.

SEN. HATCH: Well, I don't know what it was, to be honest with you, other than I didn't feel it was right.

SEN. SCHUMER: Could I ask one question, Madam Chair?

SEN. FEINSTEIN: Yes. One question, and then we go to Senator Sessions.

SEN. SCHUMER: Okay. So here is my question, and maybe if we have a second round I'd like to ask some specific ones. I did not intend to take that long, but this is a subject that excites me.

Now, let us assume, because I think choice is a very legitimate issue for us to question judges on, and so I'd like to know your views. And here's the way I would phrase it. It's 1965. You are sitting in the Supreme Court of the United States. Chief Justice Warren comes into your chambers with a copy of the opinion in Griswold v. Connecticut, the seminal case that held there is a right to privacy in the Constitution. He asks for your thoughts on the opinion. Now, there is no law to follow right now, but he is asking for your opinion in terms of everything that has been part of you. What do you tell him? Do you agree with the holding? Do you agree with the outcome, but get there in a different way? In other words, that there is a constitutional right to privacy, the penumbra of which extends to at least the first two trimesters of a woman's pregnancy -- what do you tell Judge Griswold?

JUSTICE OWEN: Well, senator, again, I responded somewhat to this question before, but I can assure you that nothing in my personal views on any topic has influenced or would influence my ability to read the U.S. Supreme Court precedent and to apply it. And, frankly, I don't --

SEN. SCHUMER: But this time there was no precedent. That's why I am asking you the question as I did --

JUSTICE OWEN: But I don't see it as my role as a judge on the Supreme Court of Texas or as an intermediate judge to delve into decisions and critique them or say this was wrong in the law or this was right on the law. And, frankly, when I have read those decisions, that's not the way I approached them as a lawyer, and that's not the way I've approached them as a judge: Are they right on the law? Are they wrong on the law? I have always approached them with trying to figure out what did they say in these opinions. What was the basis for their opinion? And how does that play out in the factual situation that either my client when I was a lawyer has or now as a judge in the case before me?

SEN. SCHUMER: Judge Owen, being on the Texas Supreme Court, certainly being on the Fifth Circuit -- as you know, the Supreme Court only deals with about 75 cases a year. You are going to be asked when you are a judge questions like this every day. To say -- to duck the question -- and that is what you did -- and I am not trying to surprise you. My staff told the people in the Justice Department I would ask you this very question. I don't think it's fair to us. I don't think it's fair to me. I don't think it's fair to the 19 million people I represent in New York. I want to know your opinion. This was a case where there was very little precedent that was directly relevant. The Supreme Court made a decision that is still with us in terms of its controversy, in terms of the heat that it generates on both sides. I think the American people, the people of the Fifth Circuit are entitled to know how you would advise Judge Griswold on that opinion, because it shows your view, something very important about whether you think there's a constitutional right to privacy, how far you think it extends, et cetera. And this is a case that's already been decided, but it can tell us how you think, and where you come down. And I don't think your answer -- I understand that you do that, but on the Texas Supreme Court, I'm -- you're much more familiar with it than I am, you have to make decisions like this all the time. You certainly will on the Fifth Circuit.

So I'd ask you again, can you give me something more specific rather than telling me that your methodology is not to answer questions like that?

MS. OWEN: Well, let me -- let me tell you --

SEN. SCHUMER: Because you'd have to answer them when you sat on the court, when you wrote opinions, when you agreed with the majority opinion, when you've dissented, and you've done it, and we all know you've done it.

MS. OWEN: But I don't approach decision-making that way. I've never -- I'm not asked to come in -- in a vacuum and say "well, what do you think" --

SEN. SCHUMER: Well, I'm not giving you a vacuum question.

MS. OWEN: Well --

SEN. SCHUMER: I'm giving you the specific facts of the case. I mean, we've talked a lot about parental consent. I mean, I'm sure you've read the Griswold decision.

MS. OWEN: Yes, I have.

SEN. SCHUMER: Okay.

MS. OWEN: (Inaudible) --

SEN. SCHUMER: I'm asking -- all right, okay. Well, it's an important decision, even in terms of talking about parental consent. Obviously you're dealing with a different constitution here, Texas versus the United States, but you have to be able to tell us more than this is not the way I think. I mean --

MS. OWEN: Well, I was going --

SEN. SCHUMER: -- I just don't --

MS. OWEN: -- to expand on my answer, but when --

SEN. SCHUMER: (Inaudible.)

MS. OWEN: -- you say that that's the way -- you're going to have to think that way, and I respectfully --

SEN. SCHUMER: No, I'm asking you --

SEN. HATCH (?): Senator Schumer, let the lady answer the question. You've asked her --

SEN. SCHUMER: Well, I'm just trying -- okay, go ahead.

MS. OWEN: The way I would approach that case, had I been on the court then, is the same way that I approach constitutional issues today, and that is I read everything that the U.S. Supreme Court has written up to that point on the issue. And frankly, Senator, I don't know, I didn't read the briefs in Griswold, and I'm frankly so influenced by the existing body of law that we've had the right to privacy for so many years, my court has recognized a right to privacy under the Texas Constitution, I think it's kind of hard at this point for me to erase all of that out of my mind and put myself back in their shoes without -- without all of this case law that's come down the pipe, and not having the benefit of the briefs or (arguments ?) how would you have written, were you writing on a clean slate -- it's very difficult for me to write on a clean slate when I have all of this historical law now out there. And again, I don't write on a clean slate when I answer constitutional issues.

SEN. SCHUMER: What I'd like to do, because I know my time is up and I appreciate the indulgence, Madam Chairperson, is I'd like to submit some written questions that specifically ask some of these things and see if we can get a more specific answer, and give you a little time maybe to review the case law, whatever you would have to review, as if you were being a judge on the case, in some sense.

SEN. FEINSTEIN: Thank you, Senator Schumer. Senator Sessions, you're next up.

SEN. SESSIONS: Justice Owen, you recognize Griswold to be the law and would follow it?

MS. OWEN: Yes, Senator.

SEN. SESSIONS: And if called upon to apply its principles, you would apply them in your decision-making process?

MS. OWEN: Absolutely.

SEN. SESSIONS: Well, I think you handled this precisely right. And I'm sorry Senator Schumer was unhappy with your answer, but you were -- you handled it precisely like a judge should answer it. How should you -- how could you be expected to put yourself back into that circumstance, without having read all the briefs, without having studied the law carefully, and to render an opinion on a case of that importance. I note Senator Schumer left, and recently he complimented Justice Hugo Black of the Supreme Court on his views on the Constitution, and, of course, Hugo Black dissented in Griswold (sp). So, these things are of interest in -- I guess fun to talk about, but in reality, as a person who is being considered for a judgeship, I think you demonstrated the right characteristics in a judge, that is to be cautious not to express opinions until you've fully studied all the briefs, all the law involved, as your record demonstrates you do so skillfully.

And I would just note that your testimony has been extraordinary. I have been very impressed with your command of the cases you've handled, the hundreds that you've handled. I've been very impressed with your ability to articulate your thoughts in a reasoned and fair way. I see no hint of extremism or activism or some obsession with forcing some political agenda on anybody -- not one hint of it. And it's disturbing, actually, to have those comments being made. I just don't believe there's one hint of it.

Justice Owen, I've been also impressed, as Senator Gramm and Senator Hatch noted, that you came at this service to the Supreme Court of Texas because of a desire to serve. It cost you, I'm sure, financially significantly. You have won reelection with 84 percent of the vote. The American Bar Association, who this committee insisted must have a bigger role than they've had in recent years, and in the process has unanimously rated you well qualified -- that's the highest rating you can get -- and a unanimous vote for well qualified is very rare. And they had the opportunity to study your record. They've had -- they've seen you on the bench. And they've talked to your former law partners. They've talked to lawyers who have litigated against you. They know your reputation and your ability, and I think they made a well and a wise choice in rating you well qualified unanimously. I must -- I have to be impressed with your academic record -- number two or three in your class, the -- made the highest score on the bar exam. What an accomplishment that is in a big state like Texas particularly. So, I just think you have so much to be proud of, and I particularly like your demeanor and the way you've handled yourself under some of the questions that have been brought forward.

And I also note, it seems to me that you've not been just a potted plant, you have been a reformer in your life on the law about the rule of law. Tell me how you feel about the responsibility of a judge or a public official -- what is their responsibility about defending and strengthening the rule of law in America?

MS. OWEN: Well, I think that's the ultimate responsibility, is to defend and strengthen the rule of law in America. I think we all understand that our society is built on laws, and that that is what basically orders our society -- that helps us plan, that helps us have predictability. It helps us have stability. It helps us know that cases won't be decided randomly based on sympathy or passion or when they should be decided another way under the law. So I think the rule of law is very important, that it's consistently and fairly, but with common sense, applied in every case.

SEN. SESSIONS: Well now is that why when you are asked to rule on a case you just don't spout off the answer as some would have you do in this hearing -- but is that why go back and you take the Texas statute on notification, parental notification, and then you know that it passed during a time in which they were considering the Supreme Court ruling as they tried to craft a statute for Texas? Is that why you went back and studied the U.S. Supreme Court cases to try to understand what Texas was trying to do so that you could give a fair and objective answer as to what the statute really meant and what the legislature intended?

MS. OWEN: Yes, Senator -- (inaudible) -- if I could explain this, maybe I have not done a very good job of it yet, but when the legislature used the words "mature and sufficiently well informed," that could mean a lot of different things to different judges all across Texas. And so given that that was of a Morpheus (?) definition, I thought where did they come up with these words? What did -- what definition did they have in their minds when they picked these words? And then when I went and read the Supreme Court cases that they pulled the exact language out of, I looked at how did the U.S. Supreme Court define informed? What did they say is relevant to an informed consent? How did they define informed consent? And I believed that the legislature was looking to the cases out of which it picked the words mature and sufficiently well informed, for us to glean what the actual definition was, what the factors that courts were to consider in deciding if someone was making an informed decision.

SEN. SESSIONS: Well, I think that's what a great jurist does, and I think you've handled that -- you did it exactly right. That's precisely what should be done.

You know, you -- my -- looking at your background, I see a person who's worked hard to reform and improve the system. As Senator McConnell noted, your voluntary limiting your contribution, he did not mention the fact that after you had a relatively easy race last time, you gave back one-third of the contributions. I don't know anybody in this body that's ever done that, and that's a remarkable thing indeed.

I noticed that you work hard to encourage the Texas legislature to secure more legal service funding for the poor, and were successful in that?

JUSTICE OWEN: Yes sir. We were particularly hard hit in Texas when legal funding for LSC, the Legal Services Corporation, nationwide was cut back. Texas kind of got a double whammy. Not only were our traditional legal services officers cut back in budget, but Texas has a large migrant worker population and funding for the migrant workers was particularly hard hit. And a lot of people, including me, were concerned that the basic infrastructure through which legal services to the poor were delivered in Texas was going to collapse because we were that close to the line. So, we had to look for ways to put more money in the system to keep the professionals who were involved in through the backbone of the delivery system in place, because if we lost that, we would not be able to anywhere come near meeting the legal services needs of the poor in Texas. And so a group of folks, not just me, certainly, I was the court's liaison and was involved in it, but explored ways that we could get more funds, and ultimately the legislature passed a statute that put more money into legal services for the poor.

SEN. SESSIONS: And I noticed you helped organize Family Law 2000, a conference, an effort to educate parents about the effects of divorce on children. I have heard a lot of people in the know in the legal system express concern that too often a divorce proceeding becomes an adversarial gladiator sport, and that children are hurt unnecessarily in the process. Is that what you were dealing with there?

JUSTICE OWEN: Yes, Senator. I did not practice family law, but when I got to the court it was clear to me that 51 percent of the civil cases in Texas are family law matters, and that's sort of where the rubber hits the road, if you will, for most citizens in Texas. And they almost, you know, so many people have experience with the family law court, and a lot of lawyers and a lot of family law judges and psychologists have -- (AUDIO BREAK) -- that this is a -- that the adversarial process is really hard on the children, and that sometimes lawyers escalate the process. Sometimes the way the laws are designed -- (AUDIO BREAK) -- to the point of maybe really restructuring the way legal services are delivered, the family laws, to try to make this more a unified approach to divorces, not just from the legal standpoint, but from other aspects, and again try to focus on getting people to make consensus decisions, particularly for their children, in the divorce context, but in not such -- not in such an adversarial way.

SEN. SESSIONS: Well, I think that's good. And I know you've served on the board of the Texas Hearing and Service Dogs, a program that helps the blind and those with disabilities. You teach Sunday School at St. Barnabas Episcopal Mission. You've given back to your community in a lot of different ways.

Let me ask you this. I know that my friend Dan Morales, the attorney general of Texas, we served together, and you were asked about the City of Austin case, and suggested that you were somehow doing something to -- I don't know, help polluters or evil groups, but I noticed, and I assume Texas is like Alabama, where the attorney general represents the state in legal matters and speaks for the state in court.

JUSTICE OWEN: That's true.

SEN. SESSIONS: Is that correct?

JUSTICE OWEN: That's correct.

SEN. SESSIONS: And the attorney general, Dan Morales, intervened in that case on the side of the state of Texas, and he took the position, as I understand it, that Texas state had entered into this area, and their law predominated, and that cities, the City of Austin did not have authority. And you eventually agreed with him in general on that -- (inaudible) --

JUSTICE OWEN: I did. Absolutely. I agreed that the state -- the state basically trumps the city, it was my view. And there were -- there were extensive regulations in this area above and beyond the water regulations that applies to everybody in the state. This was not a non-regulated area. This is the same regulations that apply to any landowner in Texas applied to these folks, plus they had to have a water quality plan under the TNR -- and subject to the TNRCC. They were subject to ongoing federal regulations. So this was -- this was far from an unregulated area. The question was whose law was going to control, the state statute or the city's ordinances, and it seemed to me that the state certainly could take away the ETJ, extra-territorial jurisdiction in it's entirety, and if that were so, why couldn't they regulate here and tell the city "No, our regulations -- we choose how to regulate, we don't want you regulating here."

SEN. SESSIONS: Well, I think you're right. And, of course, Mr. Morales is a Democrat and a capable attorney general who was advocating for the state's interest. And, of course, a lot of people don't think about this, and a lot of cities don't like to think about it, but cities are creatures of the state. The states are sovereign, have a sovereign power within the constitutional scheme, as does the national government, but cities are total creatures of the state, and if there's a conflict, I think you've come down on the right side between -- which is the preeminent authority within a state.

Well, I just think that's -- there's several other cases that I could go through. I do just want to say I think your ruling with regard to the Ford Motor Company case and venue was important. Venue is important. It's not correct and not just to allow a plaintiff to choose any county in the state of Texas to file a lawsuit just because there's a Ford dealership in that county. In this case, as I understood it, you ruled consistent with Texas law that case should be filed where the plaintiff lived, where the car was purchased, and where the accident occurred. All of those occurred in the country where venue was proper, and you did not deny them relief, but you simply sent the case back with an order to go to the correct county for venue purposes, is that correct?

JUSTICE OWEN: That's correct.

SEN. FEINSTEIN: Senator, your time is --

SEN. SESSIONS: My time is up. And I would just say that I appreciate your candor. I appreciate your ability. I am impressed with the American Bar Association's evaluation of your performance. I'm impressed with the evaluation of the people in Texas of your performance, when you got 84 percent of the vote. And I believe we've had few nominees come before this committee ever who have testified more ably or who have better qualifications for the federal bench.

JUSTICE OWEN: Thank you.

SEN. FEINSTEIN: Thank you, Senator. Senator Edwards.

SEN. EDWARDS: Thank you. Thank you, Madam Chairman. Good afternoon, Justice Owen. You've been here a long time. I want to focus on your, if I can, on your judicial decisions.

JUSTICE OWEN: Okay.

SEN. EDWARDS: Tell me first, in cases involving the intentional infliction of emotional distress, whether you agree with the decisions in your court, in the Texas Supreme Court, that say, and I'm reading now from one of those, that the overwhelming weight of authority both in Texas and around the country is that conduct involved in any particular case should be evaluated as a whole in determining whether it's extreme.

JUSTICE OWEN: I think that's generally true, yes.

SEN. EDWARDS: The case that I want to ask you about that I -- (inaudible) -- you about today, is a case involving three women who brought a case against GTE -- the lead plaintiff was Bruce -- Rhonda Bruce, Linda Davis, and Joyce Pulstra (sp) -- based upon what they contended was extreme conduct in the workplace.

And the evidence in the case -- I'm looking at the opinion now, was that the employer -- the employer's manager, who was the person involved in the case, the defendant's manager, soon after arriving at work engaged in a pattern of grossly abusive, threatening and degrading conduct, and again, I'm reading from the decision now, and he began using the harshest vulgarity shortly after his arrival. He regularly heaped abusive profanity on the employees, including these three women. On one occasion when he was asked to curb his language because it was offensive, he positioned himself in front of one of the plaintiffs, one of the women, and screamed, "I'll do and say any blank thing I want, and I don't give a blank who likes it." At one point another female employee raised a question, and he said, "I'm tired of walking on blank eggshells, trying to make people happy around here." The opinion says, "More importantly, the employees testifies that Shields repeatedly physically and verbally threatened, abused and terrorized them."

And then the court, in considering that conduct as a whole, as you just indicated the law provides, found that the jury verdict against the defendant was -- was appropriate. And you wrote a concurring decision, where you agreed I part with the majority decision and dissented in part, disagreed in part -- you didn't dissent but you disagreed with some of the conclusions that the majority had raised. And among those disagreements, you found that the following conduct is not a basis for sustaining a cause of action for intentional infliction of emotional distress.

And before I go through this long list of things that you said was not evidence to be considered, taken as a whole, in whether the defendant had acted outrageously, because I understand that you've told me that that's the legal standard -- the question is whether any of these things taken as part of the overall case is something that would constitute extreme behavior under the law.

The first thing you listed was not -- not to be included --

JUSTICE OWEN: But, Senator, my --

SEN. EDWARDS: Sure. Sure.

JUSTICE OWEN: I just want to make clear what -- that you understand, that everybody understands, what I was saying here. I was not saying that you can't consider the totality of the circumstances. And I absolutely agreed with the majority that this guy was way over the line in this case.

My only point in writing this was if you take -- my only point was if you take these things that I listed out of that -- the context of all of the other things that happened and standing alone, that you can't -- this would not support a judgement, standing alone, that -- and I was concerned particularly --

SEN. EDWARDS: Did you -- excuse me. Did you say that? What you just said?

JUSTICE OWEN: I said that "The following conduct is not a basis for sustaining a cause of action for intentional infliction of emotional distress, even when the employees who were upset by the conduct are women." And my point here was that if this is all that happened, I mean if you just have someone -- and we can go through them -- cursing, but it's not accompanied by sexual harassment, or cursing, but it's not directed at the woman, that by itself will not give you, I don't think, sufficient grounds for intentional infliction of emotional distress.

And I was concerned that people would read all the laundry list of what happened in the majority opinion and say, well, if I can prove any one of these things, then I'm there. And I wanted to make it clear that I did not agree that if this is what you had, without all of the other things that this man did --

SEN. EDWARDS: Let me -- excuse me, I'm sorry.

JUSTICE OWEN: -- that you wouldn't get there. And that was all I was trying to make clear. Because there were some statements that I thought conflicted particularly with very recent decisions out of our court, and people might get confused. And so, I wrote separately to point that out.

SEN. EDWARDS: Well, I guess I would first point out that the majority opinion I don't think ever said that any of those things, standing alone, would be enough. They applied the law, as you have recognized it to be, which is you look at the totality of the circumstances.

JUSTICE OWEN: And I agreed with that.

SEN. EDWARDS: And they listed these things as things to be considered as part of the totality of the circumstances. And what you said, if I'm reading it correctly, in your decision, "The following conduct is not a basis for sustaining a cause of action." Can I just go through them and ask you about each one?

JUSTICE OWEN: Sure.

SEN. EDWARDS: The first one, you said, was cursing, profanity or yelling and screaming unless -- when it is not simultaneously accompanied by sexual harassment or physical threatening behavior.

The second you listed was pounding fists on a table when requesting employees to do things. Third was going into a rage when employees leave an umbrella or purse on a chair or a filing cabinet. The fourth you listed was screaming at employees if they don't get things picked up. Five -- I'm jumping around. You've got a long list and I'm not going to read them all -- is requiring an employee to clean a spot off the carpet while yelling at her. Another one is telling an employee that she must wear a Post-it note that says, "Don't forget your paperwork."

So this is a list of things that the majority, as I understand it, considered, taken as a whole, as evidence that would support a verdict in favor of these three women, which the jury had found, as I believe. You have listed these things and said that they -- in the language of your decision -- that they are "not a basis for sustaining a cause of action." And what I understand you to be saying today is that standing alone, these things are not a basis for a cause of action. Is that correct?

JUSTICE OWEN: That's correct. I also want to make it clear that we're not talking about sexual discrimination here or anything of the sort, because lots of these things obviously would be grounds. We are talking about a tort that's been reserved by my court for very extraordinary circumstances, the so-called tort of intentional infliction of emotional distress as defined by the restatement. So we're not -- this is not conduct that I would say that is okay in the workplace under other causes of action. We're looking at one --

SEN. EDWARDS: But you specifically said that each of those things that I just read would not --

JUSTICE OWEN: I specifically said standing -- again, my point was that if this is what a plaintiff shows, that would be insufficient. You can't just say, "Okay, in GTE v. Bruce, they said this, so therefore I've met the standard." I'd want to make sure there wasn't any confusion about what else would have to accompany that conduct to get to intentional infliction of emotional distress.

SEN. EDWARDS: Yes, ma'am. But I believe, as you said a few minutes ago, the majority never suggested that any of those things standing alone would be enough.

JUSTICE OWEN I --

SEN. EDWARDS: You didn't specifically say, unless I'm missing it in your opinion, that any of those things standing alone would not be enough.

JUSTICE OWEN: I didn't use the words "standing alone." The --

SEN. EDWARDS: No, ma'am. What you said was they would not sustain -- or form a basis for a cause of action -- which has legal meaning, as I understand it. Is that correct?

JUSTICE OWEN: That's correct.

SEN. EDWARDS: Okay.

Can I ask you about another area?

JUSTICE OWEN: Sure.

SEN. EDWARDS: There are some cases where you have dissented. I'll just mention some. Some have already been mentioned today, and I won't go over those again. But they are primarily cases where, you know, a child or a family or someone was involved bringing a case against either an insurance company or a manufacturer or a corporate defendant of some kind.

And in several of these cases that I'm looking at now, you dissented, you disagreed. And in each case, you sided with the defendants. You sided -- your ruling was against the person who brought the case, the individual who brought the case.

One was a boy who brought a malpractice case from having surgery with serious complications -- the Wiener (sp) versus Wasan (sp) case.

Another was the Wilkins versus Helena Chemical Company case, where a farmer sued a seed manufacturer because the seeds he bought didn't work. They didn't grow. Again, you sided with the chemical company.

Another was a worker's arm's -- the Sonnier (sp) case, versus Chisholm-Ryder Company, where a worker's arm was severed by a tomato chopper. He brought a case against the manufacturer. You sided -- you dissented against the worker, on behalf of the manufacturer.

And another was a man who was injured changing a tire when the tire exploded, and he brought a case against Uniroyal Goodrich Tire.

And in these -- some of these cases and some of the cases -- other cases that have been mentioned during the course of the day, your dissent was pretty sharply criticized by those in the majority, as -- for different reasons. But --

SEN. FEINSTEIN: Senator?

SEN. EDWARDS: Yes?

SEN. FEINSTEIN: Not only is your time up, but just so everybody knows, I'm really going to be strict on the time limit because we have two other judges to go. It is 10 minutes after 4:00, and we're going to adjourn at 5:00.

SEN. EDWARDS: Can I just get an answer to this question? Sure. That's fine.

Let me get an answer to this question. In these cases, all of which you dissented in favor and -- against individuals, in favor of the manufacturers' defendants -- companies, against individuals -- and in some of these cases, at least, there were some pretty sharp criticism of your decision -- your dissent, I should say -- as there were in some of the other cases that have been mentioned in the course of the day -- I just wondered if you can point us to any cases where you have been criticized by your colleagues on the court for having gone too far in favor of an individual, child, a family who brought a case against a defendant, a manufacturer or a corporation.

And if you don't know -- and in fairness to you, I know you can remember everything, sitting here today -- if you can tell me of any today, I would appreciate that. If you can't, I'll give you a chance to provide that information to us, because I would like to see it.

MS. OWEN: One case that comes to mind -- and I -- let me talk about it for a minute -- is the Sands v. Fidelity -- I don't want to say it's Guaranty. I'm not sure. It's Fidelity-something. It was a worker's compensation case. And the plaintiff ended up settling with the worker's comp carrier. And she later contended that she had been defrauded into entering that settlement, and she sued for bad faith. And the court, a majority of the court ended up saying for various reasons that she didn't have a bad faith cause of action. I agreed with that, but I dissented from the case because I said she's established fraud. And under the law, she's entitled to rescind that worker's comp decision and go back and claim her benefits and start all over again. And a majority of the court disagreed with me and said no, she does not get to rescind, she does not get to go back and start all over. And I've certainly ruled for -- you've named four cases; I can name cases where I've ruled in favor of workers, consumers --

SEN. EDWARDS: Can -- can I interrupt you just a -- I want to be very specific about --

SEN. FEINSTEIN: Senator --

SEN. EDWARDS: I'm asking her to provide something very specific, cases where you have, in fact, been criticized -- these are -- some of these cases are cases where you've been criticized by your colleagues for going too far on one side of the equation.

MS. OWEN: Well, I --

SEN. EDWARDS: I'm just asking now whether you can point us to cases where -- you've just indicated one case, where I believe you actually ruled with the majority against the jury verdict, if I remember correctly: the Sands case. And --

MS. OWEN: That's correct. But I thought she should get a remand and be able to set aside the agreement and proceed with her cause of action. If I --

SEN. EDWARDS: Let me ask you, if you can't -- I know my time is up, and we need to let other people ask questions. If you have cases such as that, I would actually like to see them. I think all of us would like to see them.

MS. OWEN: You -- you want me to find cases where my colleagues have criticized me, even if I -- you don't care about the cases where I --

SEN. EDWARDS: Or disagreed with you. Disagreed with you is also okay.

MS. OWEN: So -- is there -- you just want cases -- you don't care if I rule for the consumer, as long as -- it has to be a case where I was criticized doing so. Is that the same question?

SEN. EDWARDS: No, ma'am. You have -- there are a series of cases where your colleagues on the court have been critical and strongly disagreed with what you did, where you ruled for one side, some of the ones I've mentioned today and some of the ones that have mentioned by others. I'm asking you whether there -- are there cases on the other side of that equation?

MS. OWEN: Well, there are certainly cases where I have ruled large verdicts for injured people. And I -- I guess -- I don't remember if people criticized that or not, but we've upheld -- and I've been part of it -- upheld holding rules of law in verdicts for plaintiffs of significant rules of law: statute of limitations areas, independent contractor areas. I don't remember if there were dissents, I don't remember if I was criticized for doing it, but I have certainly --

SEN. FEINSTEIN: What you're asking is that she send those cases to us in writing --

SEN. EDWARDS: Right. That's correct.

SEN. FEINSTEIN: -- if you would.

And thank you very much, Senator Edwards.

SEN. EDWARDS: Thank you, Madame Chairman.

SEN. FEINSTEIN: Senator Brownback?

SEN. SAM BROWNBACK (R-KS): Thank you, Madame Chairman.

And thank you as well, Justice Owen, for appearing here.

And you've waited a long time for the hearing -- 14 months to be able to get in front of the committee. So I'm delighted that we're holding the hearing and going to be able to talk with you today about your qualifications, your background and your service on the circuit court, which I hope we're able to affirm and move forward with.

If I could point out one thing, just in listening to the last discussion on the case -- I believe that was GTE versus Bruce, the case you were talking about -- I believe in that case you joined the unanimous court ruling on the court in affirming the $275,000 jury verdict for the female employees that had been sexually harassed. Is that correct?

JUSTICE OWEN: I did. I did.

SEN. BROWNBACK: So we're talking about a unanimous opinion by the court. You wrote a concurring opinion on that that did hold for the female employees. Is that correct?

JUSTICE OWEN: Yes, and the reason I wrote the concurring opinion again is, we had just recently issued in the last few years on the Hill -- right in front of this case -- cases involving intentional infliction of emotional distress in the workplace. And I was concerned that people would pick up GTE versus Bruce, pick up our prior decisions and say, "There's an inconsistency here. How could you have said in these cases it's not intentional infliction of emotional distress and then list the things that I listed and say that is?" And I wanted to try to square --

SEN. BROWNBACK: You didn't want to redefine the common-law tort. You didn't want to try to redefine that.

JUSTICE OWEN: I did not. I was just trying to make sure that I was explaining how I could square our prior decisions -- again, which were fairly recent -- in the employment context with the specific evidence that was in this case.

SEN. BROWNBACK: I just didn't want anybody to get the impression that you ruled against the female employees or held against their case. You held for their case.

JUSTICE OWEN: I did, absolutely.

SEN. BROWNBACK: You upheld a $275,000 verdict in the case by the plaintiffs against the defendant. Is that correct?

JUSTICE OWEN: That's correct.

SEN. BROWNBACK: Okay. I think that's important, because we sometimes lose it in the factual setting that somehow you didn't find this bad behavior; you did, and you agreed with the court that this is illegal, wrongful behavior and that the jury verdict should be upheld. And I think that's important for us to get clear.

Another thing I want to go to -- because a lot of the outside groups that really -- trying to derail nominations in this town and pick apart people's records who are very well qualified -- and you certainly are well qualified for this position -- is the parental- notification Texas law. And we visited this a couple of times today, but I just -- I went to make sure that I'm clear and that we're all clear on this. The only cases that got applied on up to the Texas Supreme Court were those where the judicial review had been denied. In other words, the easier cases were taken at the lower court, and at the lower court, if a girl had come forward, wanted an abortion, wanted not to have her parents informed, the court had already ruled yes, you can do that. The only cases that were appealed were the ones where that had been denied. Is that correct?

JUSTICE OWEN: That's correct. If either the trial court of the intermediate court granted the bypass, that was the end of it.

SEN. BROWNBACK: Okay. So if the judicial bypass was granted, abortion's granted, it moves on forward.

And if I understand your numbers correctly, about 600 of those were done at the lower court level in the time period we've been talking about on your service in the Texas supreme court.

JUSTICE OWEN: We know that at least 650 bypass proceedings have occurred. There may be a lot more. We just don't know. But we know at least that many bypass proceedings have occurred.

SEN. BROWNBACK: Where the court ruled that the girl did not have to inform her parents to obtain the abortion, is that correct?

JUSTICE OWEN: Well, we don't know because they're confidential, so we don't know the outcome. We -- out of the 650, only 10 girls have appealed to my court.

SEN. BROWNBACK: Okay.

JUSTICE OWEN: So --

SEN. BROWNBACK: So, somewhere in there. But out of 650, 10 were appealed to the Texas supreme court where judicial bypass had been denied.

JUSTICE OWEN: That's correct.

SEN. BROWNBACK: And that was a requirement that it had to have been denied. So, you had 10 cases that got in front of you of 650, so you're looking at, you know, a small percentage. You're looking at less than 2 percent of the cases that get to the Texas supreme court. And in those 10 cases, how did you rule? What was your opinion on the 10? Do you recall how you split on those?

JUSTICE OWEN: Yes, I do. The first Jane Doe came to our court twice, Jane Doe 1. The first time that she came, I agreed with the majority of the court. Everybody on the court actually agreed that she did not meet the statutory standard, but I agreed with the majority of the court, was because mature and sufficiently well- informed was such a loose definition, and trial courts could apply it -- that could mean so many different things to so many different trial courts that we needed to put some parameters on it. And because she didn't have the benefit of that, she should be remanded to the trial court and have another hearing. So, if the trial court had granted her a bypass on the remand, I would never have seen the case again. The trial court denied the bypass again, the court of appeals again denied it. And the second go-round, I said it was a close call, but I looked at the record, and under our evidentiary standards, I said there's some evidence to support what the trial court did, so I would have denied it, and the majority granted it.

Doe 2, I voted with the majority to remand it for the same types of reasons, only this time it was a best interest issue. We don't know what happened to Doe 2. We never heard from her again. Doe 3, I voted to deny the bypass. Doe 4, I agreed with the majority of the court that she did not meet the statutory standard. Let me -- and then Doe 10, which was the last Doe to come to our court, I agreed unanimously -- or the court did, that she was entitled to the bypass as a matter of law.

And I think I've mentioned this before today, but there were five other Does that came in between Doe 4 and Doe 10, where the court did not write an opinion.

We affirmed the lower judgment of the court. And as I explained, it takes at least six votes to do that. No dissents were published or were noted. If they had been noted, we would have had to have wound up and said who voted which way.

But I think it's a fair inference, given our opinions on either side of those five Doe cases, that these probably weren't close cases or somebody would have written something.

SEN. BROWNBACK: Because of the 10 cases, these were already 10 cases who -- where two courts, the trial court and the appellate court, had already voted, already ruled to deny judicial bypass. So they had said no, you cannot bypass your parents. Two courts had already ruled that in these 10 cases, is that correct? In all of the 10 cases?

JUSTICE OWEN: Correct. In all of them, yes.

SEN. BROWNBACK: And then in these -- the 10 that came to you, and on the Texas Supreme Court, you and the court split on some of these cases and voted to remand to the lower court to look at again to see if they should grant the judicial bypass. And in a majority of cases, you agreed with the lower two courts, in essence, that a judicial bypass should not be granted. Would that be a correct characterization of the --

JUSTICE OWEN: That's correct. And I believe that out of the 12 cases, I was -- had a different view of the judgment than the majority did in three cases. So I was with the majority, I guess that means nine out of 12 times in terms of the judgment.

SEN. BROWNBACK: I just -- it seems to me to make something about this in your record as being outside the philosophical mainstream is really a far stretch. You've got 600-some cases; 10 that have been ruled against a judicial bypass at two lower courts, and then it comes in front of you and the court splits and you vote with the majority most of the time, and some of the cases are remanded for this reconsideration; others are not. It just seems to me striking that this would somehow say that you should be set apart on the issue of abortion when you're interpreting the law in tough cases, is what these cases amounted to.

And I would hope that my colleagues would look at the factual setting here and how you've ruled. I think very common sense and very broad-based and non-ideologically in these cases. Some cases you voted to remand, for it to be looked at again for judicial bypass; other cases, not. I think that's a very fair-minded way on your part.

Let me just say, Justice, I thank you for putting yourself through this process. You are extraordinarily qualified for this position. And to wait for the 14 months that you have and then go through having narrow points on cases picked apart and your record maligned, abused, and then trying to somehow point you out as an ideologue in any instance is totally unfair to you and something you didn't need to go through, and could have remained absent from. But yet you've gone ahead and submitted yourself to this process to be able to serve the public.

And I appreciate you doing that. You didn't have to do that. A lot of people don't like going through these sort of process, and I don't blame them. But thank you for staying in here and staying in the process. And I think you're going to make an outstanding circuit court judge. I hope we can move this on to the committee process and through the floor.

Thank you, Madame Chairman.

SEN. FEINSTEIN: Thank you, Senator.

Senator Cantwell.

SEN. MARIA CANTWELL (D-WA): Thank you, Madame Chair. And thank you, Justice Owen, for your time today and patience in answering these many questions.

I think several of my colleagues have brought up the specific issues relating to some of your decisions around parental consent, and I think some of my colleagues have asked a little bit broader questions as it relates to the issue of privacy, but I'm hoping that I can expound a little bit on and understand your judicial philosophy on these important issues that I think are growing in magnitude as they face our country. I think privacy, whether it's government intrusion in personal decisions, or nowadays government acquiring information about activities of American citizens, or businesses handling some of your most personal information, this issue is just growing in magnitude. So, understanding your broad philosophy on this is, I think, very helpful for this committee and for the Congress.

My first issue is really your general thoughts on the right to privacy, and whether you believe that that right exists in the Constitution, and where you think that right to privacy does exist in the Constitution.

JUSTICE OWENS: Well, of course I'm guided by the U.S. Supreme Court cases that have recognized the right to privacy. I think Griswold is one we discussed earlier that clearly recognizes that. And there are cases from my court that construe the Texas Constitution as having a right to privacy.

SEN. CANTWELL: I'm asking you whether -- I mean, because we've had lots of nominees come before the committee who have recited the same things about "We'll follow precedent and the recognition in various decisions." but, after being confirmed, have not followed those exact decisions or interpretations. So that's why I'm asking the broader question of whether you believe that the Constitution guarantees a right to privacy.

JUSTICE OWEN: Well, I think that's the law of the land. And there's nothing in my personal beliefs at all that would keep me from understanding and applying that law.

SEN. CANTWELL: And where do you think that exists within the Constitution?

JUSTICE OWEN: Well, I wish I -- because I do not want to misstep here. I'd like to have of the U.S. Supreme Court precedent in front of me on that particular issue because that's just -- I don't want to -- that's not a question I would answer as a judge off the cuff if I were deciding a case. I would certainly go pull the U.S. Supreme Court precedent, I would pull the Constitution, I would sit down and read it and then give an answer. But I --

SEN. FEINSTEN: Senator, if you'll excuse me just for a moment, wasn't your question, does the Supreme Court guarantee a right to privacy?

SEN. CANTWELL: The Constitution, I asked --

SEN. FEINSTEIN: I mean the Constitution, guarantee a right to privacy?

SEN. CANTWELL: Yes.

SEN. FEINSTEIN: You can't answer that yes or no?

JUSTICE OWEN: Well, yes, clearly it does. The U.S. Supreme Court has said it does. That's been the law for a long, long time. I thought that she was asking me specifically can you tell me where that is derived from, the specific language.

SEN. CANTWELL: Whether you believed that there existed such a right, because in interpreting these cases -- and I think when we get to follow up on some of your other cases and comments, I mean, that the issue. We're trying to find out whether you will follow precedent. And obviously, in a variety of cases, you've dissented, and dissented in such a way that it's left a question mark, at least in my mind and, I think, perhaps some of my colleagues, as to why you dissented and some of the issues that you brought into the dissent. And so this particular issue, it's not -- we've had other people who have said that they believe in upholding a woman's right to choose, and then when it came to major decisions, went in an opposite direction, obviously because they saw something within the case. And that's why I'm trying to understand your personal belief in that right.

JUSTICE OWEN: Well, again, I don't let my personal views get into it, but I very clearly pointed out at several junctures, particularly my Doe 1 case, that there is a right to choose recognized by the U.S. Supreme Court. It applies to minors, that you cannot prevent a minor from going to court without the knowledge of her parents to get a judicial bypass. I pointed out that I had concerns about some of the Texas Family Code provisions in the divorce context when a minor -- a parent would be required to notify another parent under a divorce decree, if that might lead to some of the problems under sexual, physical, emotional abuse. I said that that would probably be unconstitutional. I think I clearly demonstrated that I have thought about the U.S. Supreme Court decisions and how they apply in this context and also how they might apply under other Texas laws that impact this area, and that I am willing and able to follow it.

SEN. CANTWELL: Well, let's -- let's go specifically to that. And I'm sorry I don't know exactly -- I know -- I have what your statement was earlier on the Doe case; I'm not sure which one, whether it was Doe I or Doe II. But you found that a woman seeking a judicial bypass should demonstrate that she has considered philosophical, social, moral and religious arguments that can be brought to bear when considering abortion, and that you were following the decision of the Supreme Court in Casey (sp). However, in Casey (sp) the court ruled that states can enact rules designed to encourage her to know that there are philosophical and social arguments of great weight that can be brought to bear in considering an abortion, but there is never any mention of religious implications.

MS. OWEN: That's in H.L. v. Matheson (sp). That -- the reference to religion is in H.L. v. Matheson (sp). I think they said -- I can give you the cite, but they talked about -- see if I can read it here for you. But that was a factor that they said, that there are religious concerns. People -- let's see: "As a general proposition that such consultations" --

SEN. CANTWELL: That's not -- that's not in Casey (sp).

MS. OWEN: It's in the U.S. Supreme Court decision H.L. v. Matheson (sp). In my opinion, these were -- as you -- I hope you understand, were drafted fairly quickly. I did cite H.L.-Matheson (sp) in my Doe I decision, not on this point. I cited Casey (sp), and I cited the second decision in City of Akron. And I cited Matheson (sp) on another point. But in Matheson (sp) they talk about that for some, people raise profound moral and religious concerns, and they're talking about the desirability or the state's interest in these kinds of considerations in making an informed decision. They don't say you have to have religious beliefs, and I don't for a minute advocate that. The only point I was making --

SEN. CANTWELL: I think there was -- I think there was detail in there that basically said that you didn't think that the physician would be the person who could give that kind of input or advice. And so I think you can our concern, obviously. And I want to get back to the broader question. But our concern is, you know, you're dissenting in these decisions about a major issue of privacy. And in this particular issue, you're injecting in, where, obviously, the others on the court didn't, this issue of religious -- religion and pulling it out. And so, I don't know -- I don't know the right example. I think on parental notification. I mean, these laws have been thought and passed by legislatures because they want to think of the extreme cases. And I'm obviously -- we've talked about the abuse issues and various things. But now we're saying to a young woman that she has to sit down not with her doctor, but some religious leader and have an explanation about this issue before she's going to have the ability to get this approval.

JUSTICE OWEN: Well, let me make sure that we're talking about the same thing. If there's abuse, this all goes out the window. It's a separate ground. You don't --

SEN. CANTWELL: Say it's two 18-year-old cousins.

JUSTICE OWEN: I'm sorry?

SEN. CANTWELL: Say it's two 18-year-old cousins.

JUSTICE OWEN: Well, 18-year-olds aren't covered by the statute -- oh, you mean that she's consulting? Again, the U.S. Supreme Court has talked about getting counseling from a qualified source. And it was not me but Justice White --

SEN. CANTWELL: What if I'm not religious?

JUSTICE OWEN: I'm sorry?

SEN. CANTWELL: What if I'm --

JUSTICE OWEN: That's -- I'm not saying you have to get religious counseling. I never advocated that.

SEN. CANTWELL: Well who delivers the religious counseling?

JUSTICE OWEN: I never advocated that you have to have religious counseling. What the U.S. Supreme Court said, and what I followed, what I agreed was part of the definition of information, that it's not just information about the physical impact on the girl or the physical risks. And what Justice O'Connor wrote for the court was that there are "profound" -- and that's her word, not mine -- philosophical and moral and other considerations that go into an informed choice. And in the --

SEN. CANTWELL: That's exactly right. And that's where in your dissent -- again, your dissent from your colleagues -- threw in the word "religious consideration." So I'm trying to figure out -- you're telling me where you --

JUSTICE OWEN: And that came from H.L. versus Matheson (sp).

SEN. CANTWELL: And you believe it should be -- if you were the majority, it would have been implemented how?

JUSTICE OWEN: All I'm -- it would have implemented that the girl who is seeking an abortion should indicate to the trial court an awareness that there are arguments and issues. She doesn't have to agree with any of them, she doesn't have to explain what her philosophy is, she doesn't have to rationalize or justify her philosophy or her moral code or her religion, if she has any.

But all that I said was, and what I think is a fair reading of what Justice O'Connor said, is we're talking about awareness that there are arguments out there on both sides, philosophical, moral, and in H.L. versus Matheson (sp) arguments -- religious. If she doesn't have religious beliefs, that's no business of the court's. The only question is, if she does, has she thought about her own beliefs? Is she aware of the philosophical debate, the moral debate, just the issues. She doesn't have to get into does she agree with them and debate it with the judge, but simply is she aware --

SEN. CANTWELL: Is the doctor capable of giving that advice or not?

JUSTICE OWEN: I think it depends. I think it depends. I think it depends on -- and I'm not sure she has to identify where she got -- where she obtained her understanding of the philosophical and other issues. That doesn't necessarily have to be from a counselor, as long as she exhibits an understanding of it.

I think she may need a counselor to give her some help on her options, the physical risks, that sort of thing, but I'm not advocating that she have any particular set of values or morals or religious beliefs.

SEN. CANTWELL: Madam Chairman, I see my time has expired. So I don't know if we're going to -- if we're moving on or --

SEN. FEINSTEIN: Did you have one more question, because this will be the last question before --

SEN. CANTWELL: Well, I just, if I could just -- just quickly, and obviously, if you're confirmed to the Fifth Circuit, you'll be responsible for determining the types of laws that are the undo burden on a woman's right to choose. And so given your record in this area, you know, I have some questions about, you know, recognizing when a statute imposes, particularly given some of the laws that are still on the books in the Fifth Circuit. So I guess I'm asking you, do you believe that you really have the ability to recognize what the Court has recognized in Casey, and that there are some laws that, you know, can prevent a woman from obtain abortion just as surely if they were outlawed? Do you think you're going to be able to recognize that?

JUSTICE OWEN: Senator, I do. And I would point to you again other places in my Doe 1 decision where I've recognized that in some situations, even a notification statute can amount to a consent statute because of a particular girl's situation, and I quoted the Supreme Court on that. As I pointed out, I expressed concern about the impact, the undo burden on a minor's right to choose that might occur because of particular provisions in our family code that deal with divorce decrees.

So, I've -- yes, I do believe that I can apply Casey and Akron to -- and the other decisions of the U.S. Supreme Court, I believe faithfully.

SEN. CANTWELL: Thank you. Thank you, Madam Chairman.

SEN. FEINSTEIN: Thank you, Senator. Justice Owen, believe it or not, this is going come to an end.

JUSTICE OWEN: (Laughs.)

SEN. FEINSTEIN: And you have held up very well. And I want to say the audience has held up very well. I didn't note anybody going to sleep. And we have two additional judges to do, so I'm going to excuse you and thank you very much.

JUSTICE OWEN: Appreciate it. Thank you.

SEN. FEINSTEIN: And ask the two other judges to please come forward. And those leaving the room, if you could do so quietly, we would be very appreciative.

JUSTICE OWEN: Thank you, Senator Feinstein, very much.

SEN. FEINSTEIN: Thank you, Justice.

SEN. : You did awful well, Judge.

SEN. HATCH: Madam Chairman, can I put some more material in the record.

SEN. FEINSTEIN: Yes, certainly.

SEN. HATCH: Okay, thank you. And others as well.

SEN. FEINSTEIN: Yes. The record will remain open for one week.

END

LOAD-DATE: July 24, 2002