Judging Priscilla

Priscilla Owen's opponents attack her conservative views, but the more troubling issue is whether she disregards precedent

POOR PRISCILLA OWEN. The embattled Texas Supreme Court justice whose appointment to the U.S. Fifth Circuit Court of Appeals has stalled for the second time over charges of “ultraconservative judicial activism” now finds herself in the middle of another controversy, this one the oil-patch equivalent of a range war. It’s the landowners versus the oil-and-gas producers who pay them royalties—and if you don’t know how vicious this feud can be, you haven’t seen the 1956 classic Texas film Giant, with Rock Hudson as cattle baron Bick Benedict and James Dean as new-rich producer Jett Rink. The legal battle involves the opinion favoring producers that Owen wrote in August in an oil-and-gas case known as Natural Gas Pipeline v. Pool. This flare-up and an earlier one over an Owen opinion with the same pro-producer outcome in a case called HECI v. Neel have passed unnoticed in the political brouhaha over her appointment, because they involve an obscure area of the law that, on the surface, is just a fight between rich folks and richer folks. But the issue is the same as in her confirmation battle: Is she a judicial activist who rules according to her ideology rather than the law?

In the political arena, the criticism of Owen comes from liberal groups such as People for the American Way, the National Organization for Women, and the NAACP, and it involves her stands on hot-button issues like abortion and discrimination. “She reflexively favors manufacturers over consumers, employers over workers, and insurers over sick people,” said the New York Times in an editorial opposing her appointment. In the oil-and-gas arena, the criticism of Owen comes from lawyers and law professors who have seen decades of precedents favoring landowners tossed aside to favor producers. Laura Burney, a professor at St. Mary’s University law school, in San Antonio, says of HECI’s pro-producer stance, “Apparently I have been teaching oil and gas law wrong for the past fifteen years. I still agree with the Court of Appeals opinion [favoring Neel] in HECI.” The reason to look at these cases, then, is to view the work of Priscilla Owen apart from emotional

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