As the Senate breaks for its August recess, we hope that the members of the Committee on the Judiciary will take some time to consider the nomination of Justice Priscilla Owen to ride the Fifth Circuit of the United States Court of Appeals. The White House asked this week that a vote on Justice Owen’s nomination be postponed until September. She stands accused by the Democrats on the committee of judicial activism in a series of abortion-related cases that she ruled on at Texas as a member of that state’s supreme court. While any charge of judicial activism coming from Democrats on the issue of abortion is naturally suspect, the matter of judges overstepping the bounds of their authority is a serious one and Republicans would do well to treat it as such. However, if the committee members consider the specific case that has been at issue, they are likely to see that Justice Owen is the casualty of poor law writing by the Texas legislature.

In Jane Doe I, the court had to interpret a statute requiring it to allow a minor to go forward with terminating her pregnancy without her parents’ consent only if the young woman was “sufficiently well informed” about abortion. “Sufficiently well informed,” however, was not defined in the statute, nor anywhere else in Texas law, forcing the court to divine the legislature’s intent. In her opinion, Justice Owen argued that the legislature could not have meant for only a minimal showing, since any minor could pass with the aid of counsel. Thus, she concluded, “Given the context … I can only conclude that the Legislature intended to require minors to be informed about the decision to have an abortion to the full extent that the law, as interpreted by the United States Supreme Court, will allow.” By this standard, Justice Owen declared, a minor could be asked to show that she is aware of the “philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.”

This is a defensible interpretation, if not the only one possible, of the Texas statute. But therein lies the difficulty Justice Owen faced. When forced to fill in the blanks in a loosely written statute, one is vulnerable from all sides to charges of legislating from the bench. Justice Scalia, in his wonderful book, “A Matter of Interpretation,” foresaw Justice Owen’s dilemma quite clearly. The Great Scalia wrote: “When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.” The Texas legislature punted, leaving the complex and politically explosive questions to the judiciary. For their malfeasance, Justice Owen ought not suffer.