Bench Memos

NRO’s home for judicial news and analysis.

Gonzales, Recusal, and Partial-Birth Abortion


Bill Kristol’s speculation about a Gonzales-for-O’Connor nomination calls to mind a stark but entirely foreseeable consequence of the recusal obligations that a Justice Gonzales would face–the invalidation of the federal partial-birth abortion act.

Recall that in 2000 the Supreme Court, in Stenberg v. Carhart, invalidated Nebraska’s partial-birth abortion statute by a 5-4 vote, with O’Connor providing the decisive fifth vote. A couple years ago, as a key part of his efforts to build a culture of life, the president signed into law a federal partial-birth abortion act.

Any nominee by President Bush to replace O’Connor could reasonably be expected to provide a fifth vote to uphold the federal partial-birth abortion act. But Gonzales, as justice, would almost surely be recused from hearing a case presenting the question of the act’s constitutionality. It seems a safe assumption that, as White House Counsel, he advised President Bush on the constitutionality of the partial-birth legislation at the time that the President signed it. It further seems a safe assumption that, either as White House Counsel or as attorney general, he has advised on or supervised the very litigation that would reach the Supreme Court. Either way, 28 USC 455 would seem to mandate recusal. (Indeed, under the provision of section 455 requiring recusal when a justice’s “impartiality might reasonably be questioned,” his recusal obligation could well apply for his entire career on the Court.)

From what I understand, it appears a virtual certainty that any federal partial-birth abortion case reaching the Supreme Court would involve a decision by the federal court of appeals applying Stenberg to invalidate the federal act. Therefore, the consequence of a recusal by a Justice Gonzales would (absent replacement of any other justices in the majority in Stenberg) be at best affirmance–invalidation of the federal act–by an equally divided court.

There would doubtless be countless more cases of great importance to the Bush Administration–some reasonably foreseeable, such as those involving the USA PATRIOT Act, others impossible to anticipate–where Gonzales’s recusal would likewise be required. In sum, the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer is precisely why, notwithstanding his excellent qualifications, it would be sheer folly (or worse) for the president to appoint him to any imminent vacancy.


Subscribe to National Review