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Appellate Nominee Assailed by Panel

Congress: Democrats say Bush's circuit court choice is pro-business and anti-consumer.


WASHINGTON — Corporate scandals made their way into a Senate battle over a Texas judge Tuesday, as Democrats called President Bush's nominee to the U.S. 5th Circuit Court of Appeals, Priscilla R. Owen, a faithful ally of big business and a foe of injured consumers.

Owen, 47, is an elected justice of the Texas Supreme Court whose first campaign was run by Karl Rove, now senior advisor to Bush. A Houstonian, she received $8,600 in campaign contributions from Enron. And she is a friend of Bush's.

Those facts alone might have drawn extra attention to her confirmation hearing before the Senate Judiciary Committee. But the Democrats focused on her business-friendly rulings that have thrown out jury verdicts or protected insurance companies from being sued.

The Texas Supreme Court hears appeals only in civil cases, not criminal or death penalty disputes. But the Democrats, who hold a slim majority on the panel, said Owen stands out as conservative voice on a conservative court.

However, Sen. Orrin G. Hatch of Utah, the committee's senior Republican, accused Washington's "professional smear groups" of using "distortions and demagoguery" against Owen. He noted that she was rated well-qualified by the American Bar Assn.

In questioning Owen's record, Sen. Dianne Feinstein (D-Calif.) described the case of Willie Searcy, a 14-year-old whose spine was severed when the seat belt in his father's Ford pickup truck tore loose in a crash. A jury awarded him and his family $40 million in damages. An appeals court reduced the amount to $30 million.

When Ford appealed, the Texas high court took up the case, but it took Owen nearly two years to issue a decision. Her opinion threw out the verdict because the lawsuit was filed in the wrong place.

"This was very surprising," said Feinstein, who chaired the hearing. "Two courts had sustained the verdict."

Searcy's family cared for the boy at home for nearly eight years while the case languished in the courts. The family was unable to hire nurses to be with him all night.

"At one point, the respirator went out, and he died," Feinstein said.

Owen said the family's lawyers should have filed the lawsuit in Dallas, where the accident happened.

"We remanded the case [for a new trial]. He did not pass away while the case was in our court," she said.

Sen. Patrick J. Leahy (D-Vt.), the committee's chairman, cited the case of a woman who was raped by a salesman working for the Kirby vacuum cleaner company. Kirby had hired the salesman without checking his background; he had been fired from his previous job for sexual misconduct.

The woman sued Kirby, and a jury awarded her $160,000 in damages. The Texas court upheld the verdict, but Owen dissented.

The salesman "was an independent contractor," Owen said. Under basic principles of law, she said, "you are not liable for the actions of independent contractors."

Unmoved, Leahy said she had sided repeatedly with business and against plaintiffs.

"You seem to be outside the mainstream of a very conservative Texas Supreme Court," he said.

Sen. Richard Durbin (D-Ill.) cited an opinion by Owen that threw out a jury verdict against Provident American Insurance Co., which approved a woman's surgery to remove her spleen and gallbladder and then refused to pay.

"You were the answer to the insurance company's prayer," Durbin said. "The law is there for little people, not just for the Providents of the world."

Owen replied that the woman had failed to prove the insurance company had acted "in bad faith." She agreed the insurance company should have paid for the surgery.

"You have a pattern of siding against consumers and in favor of corporations and insurance companies, which is very troubling," said Sen. Edward M. Kennedy (D-Mass.)

Feinstein called Owens a "judicial activist" for making it harder for pregnant teenagers to get an abortion without telling a parent.

"You insisted on conditions that were not in the statute" that allowed such abortions, she said.

"It was not anti-anything. It was not activism," Owen replied, saying she was trying to follow the law.

Owen and her defenders accused liberal interest groups of falsely portraying her record.

"The picture that some special interest groups have painted of me is wrong," she said. "I recognize the tremendous responsibility that judges have. For more than seven years, I have tried very hard to carry out that responsibility fairly and impartially."

The president met with Owen last week to show his support. But she needs the vote of at least one Democrat on the panel to send her nomination to the Senate floor.

The committee is unlikely to vote until the fall.

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