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Mr. Gonzales, 46, had been serving on the supreme court of Texas since January 1999 when President Bush tapped him to be White House counsel. Prior to that appointment, Gonzales was Texas secretary of state, serving as senior adviser to then-Gov. Bush, chief elections officer for the state, and the governor's lead liaison on Mexico and border issues. From 1995 to 1997, Gonzales worked as general counsel in the Texas governor's office. Gonzales has served in the U.S. Air Force (1973-1975), is a graduate of Rice University, and received his law degree from Harvard Law School. While conservatives appreciate the role he played in limiting the American Bar Association's role in judicial selection early in the Bush administration, the prospect of a Justice Gonzales still makes them nervous. This is principally because of concerns about his record on affirmative action and abortion, perhaps the two most critical issues — for left and right — when it comes to the Court's next appointment. But their nervousness may be easier or harder to assuage depending on which justice he is replacing. There are nine different justices and, therefore, nine different scenarios, each somewhat different. In general, conservatives will be more reluctant to let Gonzales replace a conservative than a liberal. From Gonzales's perspective, then, his chances are best if the retiring justice is a liberal male — John Paul Stevens, David Souter, or Stephen Breyer. Even if Gonzales turned out to be quite bad, he is unlikely to be worse than these three. The same is true if it is Justice Ruth Ginsburg who retires, although the White House might be somewhat more likely to want to find a female replacement for her. The trouble is, of course, that precisely because they are liberal, these justices will be less likely to want Bush to name their successors, and so are less likely to retire. Stevens and Souter are, however, at least Republicans in name, and at 82, Stevens is the Court's oldest member. Breyer (63) and Souter (62) are also both relatively young and in good health. At the other extreme, Gonzales's chances are worst if he is replacing Antonin Scalia. Scalia and Clarence Thomas are the Court's two most conservative justices, and the thought of losing one of them and getting a potential David Souter in the bargain will horrify the Right. If Thomas retires, there will also be pressure to find an African American replacement for him, but perhaps the bean counters will be mollified if the Court's first Hispanic justice is nominated instead. In the middle, so far as Gonzales's chances are concerned, would be a retirement announcement from Justice Sandra O'Connor or Anthony Kennedy. While they generally vote with the Court's conservative bloc, they do so less predictably than its other three members — Scalia, Thomas, and Chief Justice William Rehnquist — and so their replacement with Gonzales might turn out to be a wash. Gonzales's chances are probably somewhat better for O'Connor's slot than Kennedy's, because Kennedy is more conservative and because there will be less pressure to replace him with a female or minority. Gonzales's chances may be worst of all if the retirement announcement comes from the Chief Justice. Not only is he quite conservative, but Gonzales's lack of Washington or federal court experience makes him a dubious choice to assume the important administrative and managerial burdens of the Chief Justice of the United States. Sometimes it is speculated that, if Rehnquist retires, one of the other, sitting associate justices could be nominated to replace him, and then a new person — like Gonzales — could fill the new associate slot. (Interestingly, relatively few associate justices in the Court's history have been promoted to Chief Justice: Rehnquist, Harlan Fiske Stone, and Edward Douglas White are exceptions.) Sounds good, but it's not clear that this possible scenario actually increases Gonzales's chances. Which associate do you promote? Certainly Bush wouldn't want to tap any of the Court's four liberals. The two strong conservatives — Scalia and Thomas — would be difficult and impossible, respectively, to reconfirm as Chief Justice (as would be necessary). That leaves the possibility of promoting O'Connor or Kennedy. Either would be confirmable, but would either be particularly desirable from President Bush's viewpoint? The promotion of Kennedy would cause some grumbling among conservatives and would register about a .003 on the political excitement meter. O'Connor's promotion would also anger many pro-lifers, but at least she would become the nation's first female Chief Justice. But, for conservatives, this would mean "trading down" on two offices: O'Connor for Rehnquist, and then Gonzales for O'Connor. Plus, O'Connor — who just celebrated her 72nd birthday last month — is reported to be eager to retire soon, but promoting her to Chief Justice would encourage her to stay on, probably through the 2004 election. Should Bush really want to gamble that he'll still be able to appoint her successor? Finally, let's conclude by considering the premise on which much of this speculation is based. Does it make sense that conservatives will be less insistent on a reliable conservative nominee if they are not losing a reliable conservative incumbent? Well, yes and no. On the one hand, there is no doubt that the difference between winning 6-3 versus winning 5-4 is much less than the difference between winning 5-4 and losing 4-5. On the other hand, conservatives lose a fair number of 5-4 decisions, even now. Having a justice or two extra can come in handy, too, since you never know when even a seemingly young and healthy conservative justice may leave this vale of tears. In sum, missing an opportunity to improve the Court is every bit as lamentable as missing an opportunity to keep it from getting worse. — Mr. Clegg is general counsel at the Center for Equal Opportunity. |
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is spring, the time of the year when flowers bloom and justices announce
their retirement from the Supreme Court. Already there is speculation
about who the next nominee will be, much of it centering on President
Bush's counsel, Alberto Gonzales. But Gonzales's chances depend a great
deal on which justice is next to leave.
