July 13, 2005
Justice Gonzales?By Thomas Lifson and Phillip A. Gallagher
Democrats have been delighted at the controversy ignited among conservatives at the so far entirely hypothetical prospect of Attorney General Alberto Gonzales being appointed to the Supreme Court. News of the retirement of Justice O'Connor hit the headlines and almost immediately dire warnings were issued by religious conservatives against the possibility of such an appointment.�
In response, the President warned his supporters to tone down their rhetoric attacking his friend and adviser.� Whatever his thoughts on appointing Gonzales to the Supreme Court (and he has given no indication at all that the Attorney General might be appointed), the President is well known to value personal loyalty.
As a result of the kerfuffle on the right, Senate Minority Leader Harry Reid of Nevada has cautiously offered words of support for a possible Gonzales nomination, and other Democrats are following suit,� on the theory that if the religious right hates him, he must be OK. Past controversy� over his role in Justice Department guidelines on the questioning of prisoners has fallen by the wayside.
Following the resignation of John Ashcroft on November 9th 2004 as Attorney General, President Bush acted with lightning speed to name Alberto Gonzales as his replacement. Mr. Gonzales is recognized as a confidante of the President having served under him in as his chief counsel as well as Secretary of State of Texas and subsequently as a Texas Supreme Court justice. Although he was acquainted with Mr. Bush at the time, he was hardly considered a Bush crony. In fact, according to Mr. Gonzales he only came to be known to President Bush 43 because he had rejected a job offer by President Bush 41. Upon his election as Governor of Texas, Mr. Bush contacted Gonzales and offered him the position of chief counsel.
The fact that Mr. Bush would offer a complete but qualified stranger the very sensitive job of chief counsel in his first Texas administration speaks volumes about Bush's management style. It also indicates that early on in his public elected life Bush was serious about elevating minorities to positions of authority in his administrations. Just as Gonzales was the first Hispanic chief counsel, Texas Secretary of State, Texas Supreme Court Justice, he then� moved to Washington as the chief counsel to the white house and he now becomes the first Hispanic U.S. Attorney General.
Gonzales is an interesting and admirable American up—by—the—bootstraps story. Born to migrant farm workers, he grew up in Houston with 4 brothers and three sisters in a 2 bedroom house. In a C—SPAN interview given several years ago, he alluded to the fact that as a child he grew up in a happy childhood and although poor, 'like most kids' was unaware of his family's economic condition. He didn't have much but hopes and dreams, and he pursued them.
Upon graduation from high school, college seemed a difficult economic hurdle so he enlisted in the Air Force, and from there launched his effort to get a higher education. Serving in an isolated location in Alaska, he managed to qualify for an appointment to the Air Force Academy and attended the Academy for two years before deciding that a life in the law was his calling instead of flying fighter jets. He subsequently fulfilled a childhood dream by being accepted to Rice University, a highly selective school.
Gonzales is a Catholic and has a number of personal views on controversial issues of the day. He is careful, however, to make a distinction between what his personal views are and what the law of the land is. He is careful to articulate his devotion to the separation of powers of the three parts of government, yet acknowledges that the judiciary should 'defer to the legislative branch in the formulation of law.' Legislating from the bench is not something Gonzales views as a responsibility, although he acknowledges the temptation of some judges to do so.
Pro—life forces are most concerned about Gonzales's fairly brief tenure on the Supreme Court of Texas, when he ruled on four cases testing the parental notification law passed in the year 2000, which allowed a so—called judicial bypass (no reporting of the abortion to the parents when a judge so rules) when certain criteria�were met. Federal courts have repeatedly struck down parental notification laws in various states when they have judged them to place an 'undue burden'� on the rights of the abortion—seeker.
Far from being a permissive justice, granting abortions in all cases, Justice Gonzales ruled both for and against abortions in the four cases he reviewed on the Texas Supreme Court. The most controversial decision came in the Jane Doe case, where Gonzales allowed a young woman to have an abortion,�ruling�that the lower courts who denied her the operation were too strict. The lower court had claimed that the exception to parental notification should be rare and require a high standard of proof. Gonzales wrote that that strict an interpretation was going beyond the plain meaning of the law and 'subordinated the public will to personal ideology.'� He said that even if he didn't approve of the girl's decision, he needed to, follow the law. Of note, Justice Priscilla Owen disagreed, stating that an appeals court should not overturn the trial court's 'finding of fact' that the girl was immature.
In other words, Gonzales based his opinion on his dedication to the principal that judges should not impose their own views but simply interpret the law as written, even if they do not agree with it. This is an entirely defensible, indeed desirable position, from the standpoint of most conservative activists.
No one can know the President's intentions with regard to the pending appointment to replace Justice O'Connor. However, he has committed himself to appointing justices who will interpret the law as written, not create law from the bench, and has mentioned Justices Scalia and Thomas as models of the type of Constitutional jurisprudence he favors.
The strongest factor weighing against an appointment of Alberto Gonzales to the Court would be the necessity of recusing himself from cases involving actions taken while he was Attorney General. Such cases could involve critical issues related to the USA Patriot Act, for example. With the former seat of Justice O'Connor regarded as a swing vote on many issues, a recusal by her successor could lead to unfortunate outcomes from the President's perspective.
But the President is also a man who knows how to hold his cards and wait for the proper time to take an action he desires. He is a long—term thinker, who does not hesitate to adopt visionary goals [the political transformation of the Middle East, for example] , if he thinks they are right for the country and for the world.
There may well be several Court vacancies during the remainder of the President's term in office. Justices Rehnquist, Stevens, and Ginsburg have all been mentioned as possible candidates for retirement. If, at a later date, a seat held by one of the more liberal Justices should become available, Attorney General Gonzales, the recent recipient of encomiums from the likes of Senator Reid, may be a logical candidate for a seat on the Court.
Particularly if such an appointment holds the prospect of ensconcing a conservative majority on the Court, a Justice Gonzales may seem to the Left to be the best Bush appointment they could hope for. They would fight any Bush appointment in the circumstances, of course, but holding out for a Ginsburg—like ACLU adherent would not win them much support from the public. In the end, they would have to capitulate, especially if prominent leftists are already on record finding Gonzales a suitable candidate to replace O'Connor.
We would all do well to get to know Mr. Gonzales well and to watch him very closely. President Bush has made clear the confidence he has in this man, and he has made it clear that he will continue to elevate him into ever more responsible roles. Unlike David Souter, who was unknown the President Bush 41, Gonzales is very much a known quantity to the President, if not to the pro—life advocacy groups.
Given what we know about President Bush he is unlikely to be swayed by the shrill voices on either side of the political equation. In addition to being supported by a mentor with spine, Gonzales has a number of other things going for him. He is from an under represented and growing minority group, the far left and the far right are suspicious of him, and he has an impressive resume of service in a number of critical positions.
On the political side of the equation, a Gonzales appointment would put the Democrats in a delicate position. The Hispanic community is growing rapidly and is being fought for aggressively by both parties. A Gonzales appointment would be met with an extraordinary expression of pride throughout the national Hispanic community. How would a "Borking" by the Democrats of Gonzales be met by Hispanic voters?�
The Attorney General is man of integrity, capability, and faith and conscience. Conservatives should get to know him better.