Yesterday’s Washington Post story suggesting that, in the event of a resignation by Chief Justice Rehnqust, President Bush might nominate Attorney General Alberto Gonzales to be Chief Justice seems to me highly implausible, but for reasons very different from the likely conservative opposition that the story discusses.
From my limited dealings with him when I was at DOJ and he was White House Counsel, I have a great deal of admiration for Judge Gonzales’s intellect and character. And, although many social conservatives are suspicious of his record as a Texas supreme court justice, it seems to me not unlikely that his experience in Washington has made clear to him how destructive the Supreme Court’s flagrant power grab in Roe v. Wade has been to the ordinary operations of democratic politics–and particularly how it has poisoned the judicial-confirmation process. I wonder, in fact, if a good dose of high-level executive-branch experience (such as Rehnquist, Scalia, and Thomas, alone among the current members of the Court, had) isn’t the best preparation for understanding the proper bounds on the role of the Supreme Court.
There are, nonetheless, three reasons I think it highly unlikely that Gonzales would be nominated:
1. Gonzales, both as White House Counsel and as Attorney General, has been invaluable to the Administration as the chief legal architect of the war on terror. There is no legal role more important to the Administration than the one Gonzales currently plays, and it is far from clear that anyone could fill his shoes.
2. If Gonzales were appointed, he would likely have to recuse himself from virtually all the cases of greatest importance to the Administration. With the loss of Rehnquist’s vote, it is far from clear how the Administration could hope to win any controversial case.
3. It is sheer fancy to think that Gonzales’s confirmation as Attorney General and his Hispanic ethnicity mean that Senate Democrats wouldn’t use his nomination to the Court to (among other things) try to pry into the inner workings of the Administration and into Gonzales’s advice on the war on terror. (As it happens, a former Senate Judiciary Committee colleague reminded me today that Republicans had similar illusions in 1991 that Democrats wouldn’t launch a full-scale attack on Clarence Thomas.) The only sensible operating assumption is that any nominee will face a fierce confirmation battle.