Via Patterico, I found something that tells me I have to eat some crow. I have read in numerous places the story of Patricia Owen casting a dissenting vote in a Texas case involving a minor and abortion and Alberto Gonzalez accusing her of an "unconscionable act of judicial activism" for that dissenting opinion. I have even repeated that story many times myself, assuming it to be true. Turns out it's not. In the many places I've read this story, it has been presented as Owen having written a decision to void the judicial override, the legitimacy of which was not being challenged, rather than just dealing with the question of whether the teenager in the case met the standards of the judicial override. As it turns out, that is absolutely false.
Patterico links to the actual opinion written in the case and Owen did not argue that the judicial override should be gotten rid of at all. She did not vote to overturn the law as written, which was not up for challenge. Her dissent, whether right or wrong, deals directly with the technical question of whether the teenager met the requirements for such an override, particularly the question of whether there was sufficent evidence of a risk of emotional abuse. Specifically, it revolves around the meaning of the phrases "emotional abuse" and "emotional distress".
Even if her decision is wrong, it isn't even close to the way it has been portrayed by those who are opposing her nomination. And rather than go to the original rulings, I swallowed it and have repeated it. As someone who has frequently told people that judicial rulings are very easy to distort because they often involve highly technical questions, I of all people should have known better and should have tracked down the original opinions rather than accepting second hand characterizations of them at face value. Patricia Owen may be a horrible candidate for the court; I frankly don't know enough about her record to make that judgement. But if she is, it's not on the basis of this highly distorted claim that I have unfortunately been repeating. Mea culpa.
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Well Ed, looks like it's back to the drawing board for you. Which has always made me wonder. When the guy who designed the original drawing board got into trouble, what did he go back to?
No, Ed, MEA culpa. I botched the links in my original post and linked to a different Texas abortion override opinion. You obviously got to my post before it was corrected. The links are correct now and you should revisit my post and look at them. I explain in UPDATE x2 to my post. I apologize to you and other readers for any confusion caused by my error.
It is still inaccurate to say that Gonzales accused Priscilla (not Patricia) Owen of judicial activism, but it is a closer question than you would have thought by reading the inaccurate link I gave you. The point is that Gonzales was attacking dissenters who would impose a burden of proof that expressly contradicted the one set forth in the statute. I agree with him on that point, but that's not the argument Owen was making. She was arguing that the Court was ignoring principles of judicial review.
I should add that the majority of the substance of your post is still correct. In the opinion where Gonzales accuses dissenters (*other* dissenters, I believe) of activism, the question at issue relates only to the application of the statute to a particular individual, not to the override as a whole. So if you have read stories claiming otherwise, they are indeed wrong.
And Owen's argument is a model of judicial restraint, invoking appellate rules of not disturbing lower court findings that are supported by some evidence.
Patterico-
Thanks for the update, but having now read the second decision (the same case came before them twice and she dissented both times) I still think the story I had read and had been passing along was false. There is nothing in her opinion that suggests that she was attempting to void the judicial override because she thinks abortion should be illegal, and that is the false part of the story. All of her opinion deals with the technical questions of whether the teenager meets the criteria for a judicial override, whether the court's ruling was hastily sped up, and whether they did not give due weight to the trial judge's findings. Those are all questions on which reasonable judges may well disagree, but it's not reasonable to portray her opinion as seeking to overturn judicial overrides on the whole. Her opinion dealt with the specific questions in the case, not with whether overrides should be allowed or not. She obviously prefers a very narrow application of the criteria for such an override, and she may well be wrong about that. But it's still not honest to portray that as seeking to nullify a statute that was not up for challenge.
Bill Ware wrote:
And what was the greatest thing before sliced bread?
And what was the greatest thing before sliced bread? The knife, or in this case the scalpel, used to carve out lines of text in opinions to promote one group's ideological perspectives against another's. I thought the issues with respect to Owen had to do with her stated intentions, in speeches etc, to incorporate her "faith" into her judgements. She advocates not so much for judicial activism as for commitment to consistently honoring a set of core principles she holds true and dear. The problem for me in this regard is that her core set of principles do not happen to coincide with those i understand to be fully representative of the US Constitution and its Amendments.
I oppose Owen and Brown for holding beliefs that run counter to what i know to be what is best for this Nation. I have the right to hold them to that standard. I think "judicial activism" is a red herring to some extent. It is a justification used by many to obfuscate what can more honestly be understood as a partisan/personal bias narrative. Judges cannot be passive in their deliberations and opinions; they must in essence be activists, taking determined and precise measures to construct opinions that best represent their understanding of the issues in each case. They must be active and they must incorporate the decisions they make with their understanding of those "natural" inalienable ennumerated and non-enumerated rights we all hold dear. Some hold views more akin to mine and some won't. I oppose the ones who won't.
Ed,
I still think you should fix the link.
Also, I still intend to respond (wheb I have time) to your excellent post about legitimacy. (And I apologize for pointing you to a Randy Barnett discussion of the topic that you had already discussed in detail.)
Oops, yes, I should fix the link and just did.