Statement of Senator Dianne Feinstein on her
Decision to Vote against the Confirmation
of Justice Priscilla Owen
September 5, 2002

"This is one of my most difficult votes I've ever taken. First of all, I've never voted against a female nominee. Second of all, I've met Priscilla Owen, I've talked to her, and I like her very much. Thirdly, this is very important to someone I deeply respect in the Senate, Senator Hutchison, and we have talked about this nomination.

With respect to the comments the ranking member made regarding the Sword of Damocles hanging over the committee, I'd like to suggest the opposite - That this committee is alive and well and that we are doing our job, that we are not acting as a rubber stamp. We are doing our due diligence. We are examining the record. And we overwhelmingly confirming the dominant majority of nominees.

We do take our role seriously, particularly on the appellate level.

I was privileged to chair the hearing for Priscilla Owen. It was a very good hearing. It was a very long day. It was an interesting day. And I think she handled herself very well in front of the committee.

There is no question that she is bright. There is also no question that there is enormous controversy swirling around her.

It is not only the usual suspects who oppose her nomination. There is also a host of citizens who oppose it as well. I have received hundreds of letters from citizens from Texas. I have also received letters from former representatives, and groups that don't normally weigh-in on circuit court nominees, such as the NAACP in the State of California. Californians are interested in this nomination as well. And it is one of the vicissitudes of what we do because certain nominations become high profile.

Therefore people weigh-in on this, they do their own due diligence, and they come up with their own opinions.

There are a couple of things though that helped me make my decision, and I want to quickly go over them.

One of the individuals that came to me from Texas was a consumer attorney, and I was rather startled by what he said. He said, 'there is not a single consumer-rights attorney in the State of Texas that feels that they would get a fair shake in her courtroom.'

And I began to reflect on it, and in all the ten years that I've been on this committee, nobody has ever come forward with that kind of statement. So it stuck in my mind.

And then another thing stuck in my mind was criticism from colleagues on her own court, and this is the first time that I have seen that kind of criticism from a judge's own colleagues, particularly on a Supreme Court, and let me just read a few of those quotes. In one case, the colleague argued that Justice Owen's reasoning turned the governing legal standard 'on its head.' Another said: 'she defies the clear and expressed limits of her jurisdiction.'

For those of us who are pro-choice and who ran directly on that issue and came to this Committee to defend a woman's right to choose, the issue of choice is of extreme importance, especially when it comes to the appellate court and the United States Supreme Court.

So those cases involving what Senator Hatch mentioned regarding parental notification were important. Let's take a quick look at the Texas law.

In Texas, parental notification law is not a particularly strict law. It says that a trial court shall enter an order authorizing a minor to consent to an abortion if the court finds that by a preponderance of evidence that:

That is the criteria. But in my view, Justice Owens consistently interpreted in a way that was designed to place hurdles in front of minors, hurdles that were not present in the Texas law that I have just read.

The Justice would have a pregnant minor show that she is informed of the full extent of the law, event though the statute requires merely that they be sufficiently well informed.

Secondly, the Justice would require a minor to consider religious reasons, using as support relatively unrelated text from the Supreme Court opinions on other topics, but not in State law.

Thirdly, the justice would require a minor to consider the impact of the abortion on the fetus - another requirement not found in the statute I just read.

And finally, the justice would call for extremely high standards for establishing that the minor could be subject to physical, sexual, or emotional abuse. There is a specific case there involving a father taking violent acts against his wife, and the young woman who was afraid that she might be removed from the home.

Now, I'd also like quote from one Supreme Court Justice, named Justice Gonzales, because it's near the corroboration of what I'm saying, though not directly related to Justice Owen. But it does relate to the dissent in some of these cases.

Justice Gonzales wrote:

'The dissenting opinions suggest that the exception to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the legislature, and I find nothing in this statute to directly show that the legislature intends such a narrow construction. As the court demonstrates, the Legislature certainly could have written [section 33.033 (i)] to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. But it did not.

Likewise, part of the statute's legislative history directly contradict the suggestion that the legislature intended bypasses to be very rare. Thus, to construe the parental notification act so narrowly as to eliminate bypasses or to create hurdles that simply are not to be found in the words of the statute would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But 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.'

That is exactly the point I'm trying to make.

Now why is that so important in the appellate court. The appellate court represents many people who are poor, many people who are minorities, many people who really depend on the court for a fair impartial shake. But this issue has to be treated on the basis of the law. Not on the basis of the justice's individual belief or pulling from other areas questions and materials which might substitute for her belief.

For me, this is a very tough issue. I really hope the Administration listens to this vote because I'm one Democrat in this Senate that does want to carry out my duties. I know the Administration gets very upset with me when I say that there is no mandate to skew the courts . I deeply believe that's the product of this past election. There is no mandate to skew the courts.

So I believe that we have to be consistent as we evaluate the judges that come before us to be sure that they are in fact people who hold mainstream legal views, who are willing to interpret the law as the law was intended.

With regard to Justice Owen, I do not think this is the case."

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