Gonzales Says He Supports Nominee Owen Despite Texas Case

By Dan Eggen
Washington Post Staff Writer
Saturday, May 21, 2005

As he took to the floor of the Senate this week to argue against the judicial nomination of Texas Supreme Court Justice Priscilla R. Owen, Sen. Edward M. Kennedy cited a most unlikely ally: the Republican attorney general.

"Her former colleague on the Texas Supreme Court, our Attorney General Alberto Gonzales, has said she was guilty of 'an unconscionable act of judicial activism,' " the Massachusetts Democrat said.

Those six words -- taken from a 2000 legal opinion in which Gonzales opposed Owen and two other dissenting judges in an abortion case -- have become a rallying cry for Senate Democrats and a recurring irritant to Republicans in the battle over judicial filibusters.

Gonzales weighed in on the issue yesterday, saying at a news conference that his position in the Texas case has been mischaracterized and that he strongly supports Owen. One of Gonzales's lieutenants made similar arguments in an unusual letter to Senate Majority Leader Bill Frist (R-Tenn.) and Minority Leader Harry M. Reid (D-Nev.).

"I think that there's a lot of misinformation about this," Gonzales said at the National Press Club. "I would not have recommended her to the president if I didn't fully support her."

But Gonzales's comments are unlikely to settle the issue, in part because he has offered a variety of explanations for the opinion and because the comment remains useful fodder for Democrats. Paul Rosenzweig, a research fellow at the conservative Heritage Foundation, called the quotation "a convenient debater's point. I expect you will continue to hear it used repeatedly."

The quotation stems from a case involving an unidentified 17-year-old girl, Jane Doe, who sought an exception to a Texas law requiring minors to notify their parents or guardians before undergoing an abortion. The law provided several ways to bypass the requirement, including a showing that the minor was "mature and sufficiently well informed" to make the decision herself.

The Texas high court ruled 6 to 3 in favor of Doe, with Gonzales in the majority and Owen among the dissenters. The focus of recent attention is on a concurring opinion by Gonzales, in which he defends the court's ruling:

"The dissenting opinions suggest that the exceptions 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," Gonzales wrote. In the same passage he concluded: "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."

Critics of Owen argue that Gonzales's meaning in this opinion is clear: that Owen and the other two dissenters were arguing for a higher standard than required by the state legislature, and that to do so would be "unconscionable."

"He refers very specifically to dissenting opinions, and that makes it very clear that the language refers to those dissents, including Owen," said Elliot Mincberg, general counsel for People for the American Way, a liberal group that opposes Owen. "Any other explanation makes absolutely no sense, and it's an example of an attempt to get out of the plain language of his criticism."

Gonzales and other Republicans, however, have argued that Gonzales was merely reflecting on his own deliberations in arriving at a decision.

"To construct the statute in a way that didn't respect that legislative decision, I felt, would be an act of judicial activism," Gonzales said. "I was referring to my own interpretation of the statute; I was not referring to the writings or the positions of other judges on the court who wrote in dissent in that particular case. I have made this position quite clear under oath in connection with my confirmation hearings."

Gonzales acknowledged that he disagreed with Owen in the case. "Look, judges disagree all the time on cases," he said. "The fact that I disagree with Judge Owen on this case or other cases takes away in no way from my view that she is well-qualified and deserves to serve on the 5th Circuit."

Research editor Lucy Shackelford contributed to this report.

© 2005 The Washington Post Company