Owen’s chance to prove critics wrong

EDITORIAL BOARD
Saturday, May 28, 2005
Senate Democrats for four years held Priscilla Owen's nomination to the federal bench tight in their fist, refusing to let her have an up-or-down confirmation vote. But this week, they let go, and she was confirmed to a seat on the 5th U.S. Circuit Court of Appeals on a 55-43 vote, largely along party lines.
A quiet sort who never seemed comfortable during the 15 minutes of national fame last week that took her to the White House and marked the end (for now) of a Senate stalemate, Owen no doubt will welcome the relative anonymity of the 5th Circuit bench. It's based in New Orleans (though many of its judges live elsewhere) and hears appeals of federal district court rulings in Texas, Louisiana and Mississippi.
Owen was nominated by President Bush because of her record as a student, lawyer and, since 1995, justice on the Texas Supreme Court. We found her to be too much of a one-sided jurist. But her record, especially on abortion and business, was just what the president and the Republican Party's most partisan activists liked.
A big question is how she'll rule in criminal cases. This is important because the 15-judge 5th Circuit often hears — and upholds — appeals of Texas death penalty cases.
Most capital defendants are, in fact, guilty. At times, though, the 5th Circuit has rivaled the Texas Court of Criminal Appeals in making sure death penalty convicts get the needle no matter the law, the facts or simple fairness. For example, a three-judge panel of this court saw no harm in the fact that a Texas capital murder defendant had a lawyer who fell asleep during his trial. The full court in 2001 overturned that ruling — on a 9-5 vote.
In another death penalty conviction from Texas upheld by the 5th Circuit, the U.S. Supreme Court in 2002 reversed and told the 5th that it could not refuse to hear such appeals just because it thought the defendant couldn't win. And in this case, the Supreme Court said, the defendant had a good case that Dallas prosecutors had rejected prospective jurors because of the jurors' race.
Owen has no criminal law experience, either as a practicing lawyer or state judge. But if she becomes as pro-prosecutor on death penalty cases as she is pro-business in civil matters, Owen should feel at home on the 5th, one of the most conservative of the federal appeals court benches. Let's hope instead that she brings a fresh set of eyes to these cases, focusing the same skepticism on prosecution claims that she no doubt will on defendants — and on personal injury trial lawyers.
As we have said before, Owen was not our choice for this court. But there's no question she's qualified for the job. And despite four years of sometimes harsh and personal attacks while she waited for confirmation, Owen has shown nothing but the calm, patient and dignified demeanor we expect from judges.
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