When not specifically accusing Owen of judicial activism, Gonzales and other members of the majority were dissing her legal thinking, waving off one dissent as "nothing more than inflammatory rhetoric and thus merits no response."

But it was Gonzales' now infamous putdown accusing Owen of "an unconscionable act of judicial activism" that has hung like an anchor around the judge's neck. The reprimand came in yet another parental notification case, a string of which dominated Texas Supreme Court headlines during its 2000 session. Once again, Owen in her dissent felt the girl in the case needed to do more to obtain a judicial bypass, saying she didn't think the minor had been adequately informed about the alternatives to abortion. (In a previous opinion, she had urged that a girl be required to show an understanding of the "philosophic, moral, social and religious arguments that can be brought to bear" before receiving a bypass, despite the fact Texas law simply required that minors be "mature and sufficiently well informed" about abortion.)

In its ruling in the more recent case, the all-Republican majority took time to lecture the dissenters, including Owen, regarding the proper role of judges, particularly with regard to emotional issues such as abortion. They emphasized, "As judges, we cannot ignore the statute or the record before us" -- the clear implication being that Owen had tried to do just that.

Additionally, Gonzales wrote a separate concurring opinion in which he criticized the far-right dissent for suggesting a "narrow construction" of the bypass provision that was nowhere to be found in Texas law. According to Gonzales, "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."

When Bush nominated Owen in 2001, critics latched on to the language used by Gonzales, who graciously tried to downplay it but never denied that Owen was his intended target. By the time of her first Senate confirmation hearing in 2002, however, Republicans had come up with an alternative (and convenient) explanation. Sen. Orin Hatch, R-Utah, condemned the use of the quote, suggesting that "someone should do a story about how often this little shibboleth has been repeated in the press and in several Web sites of the professional smear groups." Said Hatch: "The problem with it is that it isn't true. Justice Gonzales was not referring to Justice Owen's dissent but rather to the dissent of another colleague in the same case."

Hatch claimed that Gonzales' attack on judicial activism was directed at Justice Nathan Hecht, far and away the most conservative member of the Texas Supreme Court, who wrote vitriolic dissents throughout the Parental Notification Act saga. Writing in the Weekly Standard in July 2002, its publisher, Terry Eastland, took the same tack as Hatch, insisting that liberal groups' "anti-Owen reading of Justice Gonzales' words in In re Jane Doe is wrong." The real target, according to Eastland, was Hecht.

However, the key passage of Gonzales' concurring opinion begins, "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof" (emphasis added). The use of the plural "opinions" makes it clear Gonzales was not just referring to Hecht.

More recently, on April 21, PowerLine.com, the home of right-wing analysis, argued that any suggestion that Gonzales was attacking Owen is "ludicrous." Instead, Power Line's John Hinderaker insisted, Gonzales' language, which objected to efforts to "require a high standard of proof" for abortions, was directed at two of the three dissenters, but not to Owen because her dissent never tried to make it harder for minors to have abortions. Instead, according to Hinderaker, Owen dissented only because she felt the Supreme Court was conducting a fact-finding mission in the case, which is the job of the trial judge. "Thus, on its face, Gonzales' criticism of 'judicial activism' did not apply to Owen's dissent," Hinderaker wrote.

That's just not true. In Owen's dissent she clearly objects to the majority's ruling, complaining: "Jane Doe did not receive adequate counseling about alternatives to abortion and has not given thoughtful consideration to those alternatives." That statement has nothing to do with concerns about an appellate court overstepping its bounds. Owen, creating a higher standard, simply didn't think Doe did enough to obtain a bypass.

Perhaps more important, this novel, everyone-but-Owen spin clashes with the updated explanation Owen herself offered at a second Senate hearing in 2003. There, she expanded on Hatch's 2002 theory that Gonzales was not referring to her by suggesting that he was not referring to any of the Texas Supreme Court justices: "I do not believe that he was attacking me, or for that matter, any dissent on the court," Owen testified.

The final, and most puzzling, Republican evolution came this January during Gonzales' confirmation hearing as attorney general. Asked about Owen by Sen. Sam Brownback, R-Kan., a supporter of Owen's nomination, Gonzales took the fall on behalf of the embattled nominee: "My comment about an act of judicial activism was not focused at Judge Owen," he said. "It was actually focused at me." He added, "As to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the Legislature intended."

In other words, if Gonzales hadn't followed what he believed to be the true intent of the statue by granting a judicial bypass to the Jane Doe minor, then he would have been guilty of an "unconscionable act of judicial activism."

"Absent any indication that Gonzales was lying to the Senate, I credit his statement," says Rosenzweig at the Heritage Foundation.

But for some legal scholars, the attorney general's latest explanation was just too much. "In a city that revolves on spin, that spin is so great it threatens to take the Earth off its axis," says Turley.

Even some hardcore conservatives seem to agree. When the topic of Gonzales and Owen came up recently on FreeRepublic.com, one member posted the exact language Gonzales had used in his opinion. The Freeper concluded, "To me, it sounds like he is saying the dissenters are falling prey to their ideology and not basing their decision on the law. That means Owen, too. How do you not reach that conclusion?"

Ultimately Owen's dissents in the Texas abortion cases have served as a double-edged sword, helping make her a hero among the members of the right wing who pushed for her unlikely nomination, but also leading her to be tagged as a judicial activist by Gonzales just when Republicans were railing against judicial activism. (Ironically, Gonzales' more moderate approach in the same abortion cases could cost him a seat on the Supreme Court; influential anti-abortion groups claim the rulings prove he's too soft to be trusted.)

If Owen does end up as the public face of the filibuster showdown, it will be fitting, McDonald says. "They're using the most extreme tactics for the most extreme justice."

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