As White House counsel Alberto Gonzales on the short list to fill the next Supreme Court vacancy? That’s been the subject of speculation since even before President Bush took office. That speculation had declined in recent months, and a recent Washington Post story suggested he was out of the running. But the rumor mill is up and running again. Some social conservatives are reporting that the White House is trying to sell them on Gonzales’s merits. They’re worried that a Justice Gonzales could be in our future.
In the Senate, Republican staffers who share this alarm have taken to saying that “Gonzales is Spanish for Souter.” The reference is to Justice David Souter, a nominee of the first President Bush. Souter was picked because he lacked a paper trail and could thus easily be confirmed. Souter got 90 votes in the Senate. But on the bench he turned out to be a fairly reliable liberal vote.
In the latest issue of NR, my colleagues editorialize that it is unfair to compare Gonzales to Souter: “When Souter was nominated, we didn’t know anything about his views. We do know something about Gonzales’s views, and what we know is not encouraging.”
Gonzales opponents say there are two strikes against him. The first is that he weakened the administration’s brief to the Supreme Court in the University of Michigan racial-preference cases. Solicitor General Ted Olson wanted the administration to say that the use of racial preferences to achieve diversity is constitutionally impermissible. Gonzales overruled him.
The second strike is Gonzales’s record on abortion as a justice of the Texas supreme court. The state had passed a law requiring parents to be notified before a minor could get an abortion. That law, like most parental-notification laws, allowed judges to waive the requirement if observing it could be expected to lead to the abuse of the girl in question. In its first cases dealing with the law, the court read this judicial-bypass provision broadly — so broadly that one dissenter furiously charged that the law had been gutted.
Priscilla Owen, whom Bush has nominated to a federal court of appeals, sat on the Texas supreme court with Gonzales during the notification cases. She was a dissenter, and last year her opponents seized on a remark Gonzales made in the cases to cast her as an extremist. Gonzales had supposedly tagged Owen as a right-wing activist. Some conservatives believe that Gonzales made this remark, and hold it against him. It appears, however, that Gonzales was referring not to Owen but to one of their colleagues on the Texas supreme court.
I reviewed Gonzales’s opinions (and those of his colleagues) for a profile of him in NR two years ago. My conclusion was that while the dissenters had the better argument about how to construe the statute, the cases do not prove Gonzales to be a lawless judge, a supporter of Roe v. Wade, or even a proponent of a right to abortion. On the other hand, nothing in Gonzales’s jurisprudence in that case or others would lead people to believe that he would be a Supreme Court justice in the mold of Antonin Scalia or Clarence Thomas — which is what Bush said he wanted on the campaign trail.
So far, the White House campaign for Gonzales has found few takers among social conservatives or legal conservatives generally. Some of the former are regularly discussing what to do if Bush nominates Gonzales.
The short answer is that there’s not much they would be able to do to stop Gonzales’s confirmation. Social conservatives would feel betrayed — the rank-and-filers, that is, not just the leaders of the Washington groups — since the chief reason they were given to vote for Bush was that he would nominate “strict constructionists” like Scalia and Thomas. But Republican senators are not going to vote against a Bush nominee who’s also the first Hispanic nominee to the Supreme Court, whatever conservatives say. Conservative opponents of Gonzales will have to be careful not to threaten more than they can deliver.
Two months ago, Jeff Bell, an influential social-conservative activist, told me how he thought a Gonzales nomination would play out. “Every article would say that the pro-life movement is over,” he said. “[Gonzales would] make [his non-conservatism] obvious as early as the hearings. Leahy would whisk him through, a handful would vote against him. It’d be 90-10. It would be seen as a complete victory for the other side on every difficult liberal-conservative issue before the Supreme Court. . . . Gonzales is not going to resist the zeitgeist on anything for any length of time and everybody knows that. I think it’s a major risk for Bush to make a nomination like that and I think he won’t. It might not hurt short-run but in the medium-run and long-run it is very dangerous to his base.”
Bell could be wrong about the danger. Everyone can understand the political point of nominating the first Hispanic Supreme Court justice and avoiding a confirmation fight with the Democrats. Says one opponent, “If I was just a Machiavellian Republican, without any desire to do the right thing, I’d try to make this thing work.” If Gonzales is nominated, however, it will be hard to see what the point of all the pro-life positions that Bush has taken was.
The president has run real political risks in standing with pro-lifers on stem cells, cloning, and international family-planning funding. He has gained their enthusiastic support as a result — and that’s all he has gained. Nominating Gonzales this year would instantly wipe out that enthusiasm. Gonzales’s nomination would also raise another question: What was the point of Bush’s nominating Scalia-Thomas-style conservatives to the federal courts of appeal? If Bush thought it was worth fighting with liberals over those courts, why not over the court to whose precedents they are bound?
Perhaps the point of all these moves was to build up Bush’s credibility among pro-lifers to the point that they would give Gonzales the benefit of the doubt as Bush’s friend. But pro-lifers have several reasons not to give Supreme Court nominees the benefit of the doubt. They have been burned before. Pro-lifers were bitterly disappointed with Justices Sandra Day O’Connor, Anthony Kennedy, and Souter, all of whom were nominated by political allies and expected to vote against Roe, but didn’t. Another such disappointment would leave the court split 7-2 for Roe. That’s the same as the original vote for it. We’d be right back to 1973.
Some people believe that it would be easier to sell conservatives on Gonzales as a replacement for Justice O’Connor than as a replacement for Chief Justice William Rehnquist. The White House could tell conservatives that trading O’Connor for Gonzales was a step up, even if Gonzales is not conservatives’ ideal justice. That won’t work for everyone: Bush’s promise was to appoint “strict constructionists,” not to improve the Supreme Court incrementally. It might, however, work for a lot of conservatives — especially if Bush had already gotten a conservative justice confirmed and Gonzales were his second nominee.