Slow and Fatal Justice: Priscilla Owens

Jack Ayres keeps a framed photograph of Willie Searcy on his desk. Texas Supreme Court Justice Priscilla Owen doesn't. She should. Both Texas lawyers were in the thick of the court battle to save the life of the African-American teenager paralyzed in a head-on collision that left him unable to breathe on his own. Ayres was Willie's attorney; Owen, the justice who sent his case back for a new trial. You might say she had the final word on Willie Searcy's lawsuit against Ford.

At least it was final for Willie.

US Senate Democrats thought they had the final word on Owen when the Judiciary Committee killed her nomination to the federal appeals bench last September. Then Republicans took back the Senate in November. When Bush resubmitted Owen's name, the Democratic minority prepared to filibuster to stop her. For a bit, Senators Dianne Feinstein of California and Mary Landrieu of Louisiana weren't ready to support a filibuster blocking a woman's confirmation to the bench.

Willie Searcy helped convince them.

George Bush was a minority owner of the Texas Rangers in 1993 when a Mercury Cougar plowed into the Ford pickup Willie's stepfather was driving south of Dallas. No one died. But for the rest of his life, Willie would be a ventilator-dependent quadriplegic. He would need full-time nursing care and a room full of high-tech equipment. It would cost millions to keep him alive: $22 million if he stayed home with constant medical care. "If he lived in an assisted environment . . . that number would probably be $26 million," Ayres told the jury. "I make no apology for telling you that."

The jury wasn't offended. Two years after Willie was removed from the wreckage on I-35, 12 jurors decided that Ford's seat belt had failed and awarded Searcy's mother $30 million ?- plus $10 million in punitive damages. The award put Willie on a collision course with Justice Owen.

Prissy Owen was a Karl Rove candidate, an oil and gas lawyer recruited to the Texas Supreme Court by the political strategist Bush moved into the West Wing office once occupied by Hillary Clinton. Owen is 47. Smart but not cerebral. A bit lazy. An evangelical so opposed to abortion that a fellow justice called her attempt to narrow the state's parental-consent abortion law "an unconscionable act of judicial activism." (That justice was Alberto Gonzales, now Bush's White House counsel.) She's profoundly pro-business. And responsible for the most restrictive open-records ruling imposed on Texans since Santa Anna seized the diaries of the defenders of the Alamo. The perfect Bush candidate for a lifetime appointment to the federal bench.

Ford appealed, which was expected considering the size of the award. The company is no easy mark. In the mid-'90s it was winning 80 percent of its cases. It had delayed Willie's trial. Ford sent attorneys to a Texas prison to try to persuade the boy's estranged biological father to intervene. A Ford attorney even told Ayers to make a settlement offer the company could accept or it would drag the case along indefinitely.

The case scraped through an appeals court, which struck down the $10 million punitive damages. Ford appealed the $30 million verdict to the state Supreme Court. And Ayres filed a motion to expedite the case. Ford even joined him in the motion. "We were in a race to save the kid's life," Ayres said.

Owen was in no hurry. Almost two years later, she handed down the court's split decision. The case would be retried in Dallas, rather than in the small town where Ayres won the $40 million verdict. And here's why Owen deserves to be singled out for delaying justice and treatment for Willie: She wrote a long opinion on the Texas venue statute, one of those seemingly important lawyerly things to do to make sure the statute could be correctly applied in future cases. But there would be no future cases. After the suit was filed, the statute had been replaced by a new, restrictive venue law then-Governor Bush pushed through the Legislature in 1995. In effect, Owen was using time marked by Willie Searcy's regulated breathing to elaborate on a piece of legal history. She could have quickly moved the case without working to persuade a majority of justices to sign onto an opinion. But she subjected Willie Searcy to the "results-oriented" process that is a signature mark of the Texas Supreme Court. Ford wanted the case retried in a friendly venue in Dallas; Owen's belabored opinion liberally interpreted the law to achieve that outcome. "You look in other places, it seems to me, to find a rationale not to do what the Texas law called for," Feinstein said at last summer's committee hearing. "It seemed to me that you ?- and maybe this is what being an activist means ?- that you worked to come out where you came out in your opinion."

That criticism sounds a bit precious in the Great State. Corporations and defense firms pay for judicial elections. They expect what Lyndon used to call a "bang for their buck." In the Searcy case, Baker Botts, the Houston law firm founded by the great-grandfather of Bush-family adviser James Baker III, had given the Owen campaign $20,450. The firm also happened to be Ford's appeals counsel, angling for a $1 million bonus if it could get the decision reversed. Which it did ?- with Owen's help.

So the skinny kid and his lawsuit were sent to a district court in Dallas, where the judge immediately granted Ford's motion to dismiss. The family appealed, and the Dallas appellate court didn't have the stomach to uphold the decision. On June 29, 2001, it issued an opinion that almost guaranteed Willie's family the money needed to care for him. But it was too late. Willie, now 21, was surviving on a system of family and volunteer caretakers his mother patched together to work with the night nurse covered by her health plan. On July 3, 2001, the system unraveled. The night nurse left at 4 a.m. When Willie's mother walked into his bedroom at 5 a.m., she realized the ventilator wasn't working. No one had been there to restart it. Willie was dead.

During the Judiciary Committee's hearing, Feinstein asked Owen why she took so long when the boy's life was at risk.

"He did not pass away while the case was pending in my court," Owen said.

When Bush resubmitted Owen's appointment, Texas Senator Kay Bailey Hutchison, a friend of Feinstein, began lobbying the Senate Sisterhood. For a while Landrieu and Feinstein, who has more seniority and more muscle than the Louisiana senator, were wavering on the filibuster. They finally signed on. Maybe Feinstein's commitment to reasonable federal judges is stronger than her friendship with Hutchison. Or maybe a second look at the seven years Willie Searcy spent waiting for justice in Texas convinced her that the public interest is best served if Priscilla Owen remains home in Austin.

Now, it looks like the Bush Brain Trust may try to end the filibuster that keeps Owen's future up in the air. It works like this: Senate Majority Leader Bill Frist attempts to gradually lower from 60 to 51 the votes needed to end a filibuster. That fails, because it requires 60 votes to change a Senate rule and the Republicans have only 50. Then Vice President Cheney rules on a constitutional point of order that 51 votes can end a filibuster of nominations. The Senate parliamentarian, appointed by Republicans, upholds his ruling. The filibuster blocking Priscilla Owen is ended. (And the road is cleared for the right-wing Supreme Court justices Bush will appoint later in his first term.) It would be quite an end to a Senate procedure in effect since George Washington held office.

(Lou Dubose is the co-author of Boy Genius: Karl Rove, The Brains Behind the Remarkable Political Triumph of George W. Bush and wrote, with Molly Ivins, Shrub: The Short but Happy Political Life of George W. Bush.)

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