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Gonzales was raised, with seven siblings, in a two-bedroom house in Houston. His mother had a sixth-grade education, four grades better than his father. After high school, he went to the Air Force Academy. While there, he decided he wanted to be a lawyer. He finished college at Rice, then went to Harvard Law. He became a corporate lawyer at a prestigious Houston firm. In 1995, George W. Bush, just elected governor, made Gonzales his counsel. Appointing Gonzales to office seems to have become a habit for Bush: He has since served as the secretary of state for Texas, a justice on the Texas supreme court, and now White House counsel. As Bush has said, "In many ways, Al embodies the American dream." When Gonzales took his latest job, conservative lawyers in Washington were wary, even suspicious. Partly this was because he was not part of their inbred world. But Gonzales also had more of a reputation as a Bush loyalist than as a conservative. During his short time on the bench, he was considered a relative moderate — relative, that is, to Texas legal politics — and some of his votes deeply angered pro-lifers. But Gonzales has moved quickly and effectively to allay conservatives' concerns. First, he staffed his office with highly regarded conservatives, including former clerks to Clarence Thomas and former aides to Kenneth Starr. He picked Timothy Flanagan, a conservative and Justice Department veteran, as his deputy. "This is the most overqualified White House counsel's office in history," says one conservative observer, who has consequently "gone 180" about Gonzales. The administration has appointed conservatives to the Justice Department, too. Attorney general John Ashcroft is conversant with, and supportive of, conservative legal theories. Ted Olson, a member of the conservative intelligentsia, will be solicitor general; John Manning, a former Scalia clerk, will head the office of legal counsel (OLC). A further Gonzales move has also gone a long way to dispel doubts about him: ending the American Bar Association's official role in judicial nominations. The ABA will still weigh in on nominations once they are sent to the Senate. But the administration has sent an important signal that it will not kowtow to the liberal legal establishment. Gonzales won high marks for sending the ABA a tough but civil letter informing it of the decision. And he did it even though there were risks to him: Presumably the ABA will remember this episode if he is nominated to the federal bench. Gonzales's office has been working fast on judicial picks. The administration will probably announce several nominees in late April. Conservatives are going to be elated by them. University of Utah professor Michael McConnell, a leading critic of strict-separationist dogma on church-state relations, may get a position on the Tenth Circuit Court of Appeals. It's been reported that conservative congressman Chris Cox will be appointed to the Ninth Circuit. Federalist Society favorites such as Jeff Sutton and Peter Keisler are being talked up (for the Sixth and Fourth Circuits, respectively). The high quality of this first round of judges reflects how much the supply of conservative lawyers has expanded over the last two decades. But it also reflects a careful and determined effort by the counsel's office. Early on, it gave senators the word that they would not be playing a large role in the selection of appeals-court judges: Appointments were going to be made to change the judiciary, not to dispense favors. The White House also avoided the "stealth candidate" strategy that had produced the Supreme Court nomination of David Souter in the administration of Bush's father. Souter was picked because he wasn't vulnerable to criticism: Nobody knew what his judicial philosophy was. He ended up becoming one of the most liberal members of the Court. This time, the judge-pickers are looking for evidence that the people they plan to nominate share their general views. Being a member of the Federalist Society, or having a conservative track record as a judge, helps. So does being a woman or a black or Hispanic person-although philosophy and talent are considered more important. Finally, the administration is looking for youth: It wants to nominate people in their 40s, who will be on the bench for a while. But no matter how stellar Bush's nominees are, confirming them is going to be difficult. Bush's administration may be more conservative than Reagan's, but the Senate he's dealing with is less so. The southern Democrats who voted for Robert Bork and Clarence Thomas are long gone, and their counterparts today are more prone to vote with their party. Northeastern Republicans, meanwhile, will not necessarily vote for conservative nominees. Most Republicans expect at least one big judicial-nomination fight this year. If Chief Justice William Rehnquist or Justice Sandra Day O'Connor steps down-and speculation about whether one or the other will is at a boil right now-the abortion-rights and civil-rights activists are bound to mobilize against any replacement. As the vote on Ashcroft's nomination showed, the activists will bring most of the Democrats with them. If there is no vacancy on the high court, they'll find an appeals-court nomination to go ballistic over. They need an emotional battle with the administration to keep their troops happy and their donations coming. In this charged environment, getting a conservative with a paper trail on the Supreme Court is going to be very hard. Hence the appeal of nominating Gonzales, who doesn't have much of a paper trail. Clint Bolick, a libertarian legal activist, says that his public-interest law firm, the Institute for Justice, has "looked at his judicial record fairly carefully, as I'm sure other groups have done." He continues, "Unfortunately, the range of issues dealt with by the Texas supreme court is very narrow. Justice Gonzales seemed to have positions that were sympathetic to business interests and that seemed to be relatively conservative, but there's just not a big record there." For social conservatives, the black marks against Gonzales are his votes last year on a series of abortion cases. After years of debate, Texas had passed a law requiring parents to be notified if minors were procuring abortions. As in most such laws, there was a provision allowing a judge to override this requirement if, for example, it would subject the girl involved to abuse. In its first cases under the law, the Texas supreme court — with Gonzales in the majority — interpreted this judicial-bypass provision broadly. So broadly, according to one furious dissenting justice, that the law itself was gutted. The dissenters made a strong case that the court's reading of the law was far-fetched. In Gonzales's defense, however, it should be noted that their predictions have not been borne out: Judicial bypasses have been rare. More important, the notification cases were so limited in their focus (and so messy) that they don't shed much light on Gonzales's views of abortion generally or of its constitutional status. If he nominates Gonzales, Bush will be following his father's strategy on Supreme Court nominees. Like Clarence Thomas, Gonzales is a member of a minority group who climbed up from poverty. It is a melancholy fact that no principled conservative justice has been confirmed in 30 years without the benefit of affirmative action. (People often forget that Antonin Scalia was the first Italian-American nominee. Mario Cuomo endorsed him, and the Senate voted 98-0 to confirm him.) Bush would also be following what might be called the Cheney precedent. Bush evidently concluded that a man he could trust to vet his potential running mates was trustworthy enough to be his running mate. Will he reach the same conclusion about the man he's put in charge of vetting his potential Supreme Court nominees? And then, of course, there is the precedent of Gonzales himself: He's been Bush's counsel, and then his judicial nominee, before. Gonzales is by no means a sure thing as a nominee. Bush might decide to go with someone with more judicial experience. And Gonzales has told reporters that he's not interested in joining the Court. But a lot of people still think he's going to be Bush's first Court nominee. The administration may have a legal dream team working for it, but conservatives have reason to be nervous. |
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t's widely
recognized that the Bush administration has more Reaganites in it than
the Reagan administration itself had. Nowhere is this more true than in
the administration's legal team. Never have a Justice Department and a
White House counsel's office had more lawyers committed to a conservative
view of the proper role of judges. It's a talented and well-credentialed
crew, too. But it is also operating under severe political constraints.
So it remains in doubt whether the administration will nominate a conservative
for the Supreme Court when it has a chance. The fact that White House
counsel Alberto Gonzales tops most people's lists of likely nominees does
nothing to resolve the mystery. 
