Alberto Gonzales on the Supreme Court? What the Thank Are They Thinking?!
Conservatives, we’re about to be “thanked” by the White House for helping Bush to win the election. Trouble is, I’m not sure what the word “thank” means anymore, after reading how they’re planning to “thank” us:
Republicans close to the White House said on Thursday that the choice of Alberto R. Gonzales as attorney general was part of a political strategy to bolster Mr. Gonzales’s credentials with conservatives and position him for a possible Supreme Court appointment.
These Republicans said Mr. Gonzales had been widely viewed as one of President Bush’s top choices for the court. But by first sending him to the Justice Department, they said, Mr. Bush could then nominate a conservative favored by his political base to fill the first vacancy that arises.
For Mr. Gonzales, tenure as attorney general would allow him to demonstrate his reliability to conservative leaders, many of whom say they are unsure of his views on issues like abortion and affirmative action, Republicans said.
No kidding. Here’s the part that just slays me:
The strategy, which Republicans said was in large part the work of Karl Rove, the president’s chief political adviser, would clear the way for Mr. Bush to make his first nomination to the Supreme Court a trusted conservative, thus showing gratitude to his political base for the large role they played in giving him a second term.
“It’s a thank you to the right for the election,” said one Republican adviser to the White House.
A “thank you” to the right?? I’m sorry . . . did the word “thank” just undergo a radical redefinition?
If the folks at the White House think that any package that includes Supreme Court Justice Alberto Gonzales is the right’s reward for the election, they don’t know what the thank they’re talking about.
Putting Gonzales on the High Court — whether it’s now or later — is about the worst thanking idea I can imagine. Ramesh Ponnuru explained why last year, in a piece called Judging Gonzales. Ponnuru says:
In the Senate, [some] Republican staffers . . . have taken to saying that “Gonzales is Spanish for Souter.”
In the University of Michigan racial-preference cases, Gonzales prevented the Bush Administration from arguing that racial preferences are always unconstitutional. As a Texas Supreme Court justice, Gonzales voted to gut a parental notification requirement for abortions, by giving an overly broad interpretion to a judicial bypass provision.
The bottom line is simple. According to Ponnuru:
[N]othing 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.
If Karl Rove views a Gonzales Supreme Court nomination as part of his “thank you” to the right, he’s out of his thanking mind.
Please don’t thank us this way, Mr. President. What with the David Souters and the Sandra Day O’Connors, we’ve been thanked enough by Republican presidents, thank you very much.
I think this is a bigger issue than whether Arlen Specter becomes Judiciary Committee Chairman, in light of Specter’s apparent promise to give a floor vote to every Bush nominee. So save your phone calls and e-mails regarding Specter. Call the White House at 202-456-1111. Tell President Bush not to thank conservatives over by nominating Alberto Gonzales to the Supreme Court.
UPDATE: The Clam points out that the “thank you” is intended to be the confirmation of a more conservative justice first. I understand his point, and he is correct that I misread the article. I have changed some wording (adding the words “any package that includes” to one sentence, “part of his” to another, and “whether it’s now or later” to a third) to reflect more accurately what the article says. (I also changed the title of the post.) Thanks to the Clam for catching my error.
None of this changes my point. If you replace conservative justice Rehnquist with some other conservative justice, it leaves the balance of power the same as it is now. Big deal. And if you then scheme to appoint an unreliable Gonzales/Souter type later, that’s unacceptable.
You don’t reward your base by telling them: “We were going to screw you early — but since you helped us so much, we’ll keep the status quo for now, and screw you later.”
That’s a thanked-up way to say “thank you.”
(Via Orin Kerr at The Volokh Conspiracy.)
And how would the lying coward that ran out on his crew after 3.6 months reward America. This is not perfect but I am sure it is much better than JFK would give us. You are too young to remember the shysters Jimmy put on benches all across America. Let me give you a not atypical example. One day at work (1989)we heard that a Judge in Frisco had been arrested after a wire tap proved he was informing the Mafia of warrants. I said to my employees that I would bet he had been put on the bench by Jimmy. Next day in the papers it was disclosed he had been put on the bench in 77 by Jimmy. Or more recently Jant Reno?
WE are still ahead.
Rod Stanton
Cerritos
Comment by Rod Stanton — 11/13/2004 @ 11:40 am
Dude, this is pretty thanked up right here.
Comment by Xrlq — 11/13/2004 @ 12:24 pm
I think you’re misreading the article. As I understand the article, Gonzales is getting sent to Justice, and will be out of the running for the first Justice position to open up. Bush can appoint a trusted conservative to fill that position.
Gonzales then, with his supposedly enhanced AG conservative credentials, replace a second Justice. Basically, appointing another conservative to replace Rehnquist and keeping the status quo “thanks” conservatives, thus expecting us to keep quiet about Bush’s squandering the opportunity to move the Court rightward by replacing Stevens with another liberal like Gonzales, rather than a conservative.
Comment by The Angry Clam — 11/13/2004 @ 12:55 pm
That’s so weird, because I’ve heard pundits describe this move as a deliberate attempt to keep Gonzales off the Supreme Court and avoid pissing off the conservatives.
Comment by Watcher — 11/13/2004 @ 1:08 pm
Watcher,
I think the Clam just explained what you said, and it’s true that I misread the article in the way the Clam said. See the update.
But the basic point remains: keeping the balance of power (which currently sucks) and then tilting to the left later with Gonzales is a “___k you” but the word ending in “k” ain’t “thank.”
Comment by Patterico — 11/13/2004 @ 1:16 pm
Gonzales’ time on the Texas Supreme Court was comparatively short, and even as a Texas lawyer who practiced in the same city with him, and who’s handled many cases with and against his former firm (where I have many mutual acquaintances), I can’t claim to have a good handle on what kind of U.S. Supreme Court Justice he might make. He obviously has, and presumably has earned, Dubya’s loyalty, which is significant, but not a very good predictor as to what kind of Justice he’d turn into. With due respect to Mr. Ponnuru, I don’t think he can claim to have much more of a clue than the rest of us. So the Souter comparison is apt at least insofar as it describes the “stealth” or “blank slate” candidacy of that Justice before he was nominated; I don’t think it’s fair to conclude, though, that Gonzales would necessarily or even more probably than not disappoint in the same ways that Souter has. We just don’t know; and neither, probably, can Dubya — which is the main reason I can think of better candidates.
Notwithstanding Chief Justice Rehnquist’s health problems and the ages of the remaining Justices, however, it’s premature to start lobbying the White House for or against particular candidates. Who’s chosen is likely to depend in large part on when the vacancy occurs, and which slot becomes vacant. My hope is that notwithstanding the value he places on demonstrated personal loyalty, Dubya will choose his Supreme Court nominee(s) from among judges who have longer track records — and not just, or even primarily, based upon their track records on abortion issues! Bush-41 picked Souter precisely because of his lack of track record, with the notion that he thereby could conserve the political capital he’d have had to expend defending a nominee whose record provided more for foes to shoot at. In other situations, and in his public comments, Dubya has followed a different path, recognizing that political capital unspent is political capital likely wasted. Getting a known quantity — a judicial conservative (as distinct from a political conservative) — is worth spending it on.
Comment by Beldar — 11/13/2004 @ 2:09 pm
It would actually be better to get a judicial conservative with no known record on abortion issues. For me, abortion is a proxy for judicial conservatism — if you are a true judicial conservative, you are a vote against Roe, and vice versa.
Comment by Patterico — 11/13/2004 @ 2:14 pm
One quick further comment, in response to Rod’s above: I am indeed old enough to remember, and have practiced before, a great many Carter appointees. In fact, I was a law clerk for one of them on the Fifth Circuit, who’s presently the Chief Judge thereof. She was a very unconventional appointment for Carter or any other President to make — a corporate securities lawyer with no judicial and very little courtroom experience, a Yalie, the daughter of a former Commissioner of Insurance of New York (Republican) and sister-in-law of CitiCorp’s Walt Wriston. (Definitely not a “good ole boy,” although she quickly earned the respect of the good ole boys on that court!) But for those very reasons, she brought a skill-set to the Fifth Circuit that has turned out to be very valuable; and she’s been a damned good judge. My respect for her is boundless.
Carter’s appointments record was mixed, but included some very good people — partly because with respect to his district and circuit court appointments (and there were a lot of those because of the Omnibus Judgeship Act of 1978 or 1979, I forget which), he relied heavily on state-by-state nominating panels that were outside of the traditional senior-senator-of-his-own-party nomination process. That, of course, was before Roe had become the Democratic Party’s litmus test for judicial appointments, and I doubt that a President Kerry would have done nearly as well.
So let’s be careful not to paint with too broad a brush, please, and not impugn every member of a large class of diverse judges based on the failings of a few of them, or of the President who appointed them.
Comment by Beldar — 11/13/2004 @ 2:22 pm
Good point. My best friend from UT Law School clerked for the same judge, and he respected her greatly. (My friend was no slouch himself; he got the top score on the Texas State Bar the year he took it.)
Comment by Patterico — 11/13/2004 @ 2:25 pm
Patterico, I respectfully submit that that’s a dangerous proxy. A judicial conservative believes in stare decisis in general, and in the precedential pecking order of our court system, and in both federalism and the Supremacy Clause — and respect for all of those principles may prompt them to rule in ways that don’t at all fit their own personal politics.
In looking at the track record of judges — or quasi-judicial officials like attorneys general — you have to recognize that their actions and decisions have been influenced by those factors to a much larger degree than a U.S. Supreme Court Justice’s must be. A Texas Supreme Court Justice like Gonzales (or Priscilla R. Owen) isn’t writing with a free hand or on a blank slate. Consider, too, Bill Pryor’s vigorous (but personally distasteful to him) enforcement of U.S. Supreme Court precedents on abortion rights while he was Alabama A.G., and the contrast between those actions and his views as expressed with stunning candor during his Eleventh Circuit confirmation hearings, when he bluntly called Roe an “abomination.”
If abortion cases are your only proxy, you’re likely to get a skewed result — you may end up with judicial activists who are political conservatives, and you may exclude judicial conservatives who are also political conservatives.
Comment by Beldar — 11/13/2004 @ 2:38 pm
I am speaking of Supreme Court appointments exclusively. Lower-court judges and executive officials have to follow Roe — it’s the law. But the only three conservatives on the Court now whom I respect are all anti-Roe. Sure, I’d like to know more about a judge — but their position on Roe is one of the best indicators I know as to whether they’d be a good Justice.
In the real world, it’s a terrible proxy, because you can’t say you’re opposed to Roe and be confirmed. By openly declaring this on my blog, for example, I assume that I have totally thanked up any chance I have at a federal judgeship.
So what I want is a judicial conservative, meaning (among other things) someone who will reverse Roe — but I want them to keep it a secret until the case comes before them.
Comment by Patterico — 11/13/2004 @ 2:44 pm
I have previously spoken to the issue of why Roe should not be upheld out of respect for the doctrine of stare decisis. For further detail, I refer you to the writings of Justice Scalia — in particular, his masterful dissent in Casey.
Comment by Patterico — 11/13/2004 @ 2:47 pm
I don’t believe the rumor about Gonzales being named AG as a stepping stone to the SCOTUS. He already is qualified, having served on the Texas SC. I think Bush will want a long-term AG, since that’s key management position.
Comment by David — 11/13/2004 @ 3:01 pm
“Gonzales Is Spanish For Souter…”
Apparently RINO ChimpEars is going to screw the base with his judicial appointees, too….
Trackback by Daily Pundit — 11/13/2004 @ 6:33 pm
Too bad NONE of these commentors have mentioned valuable - no, ESSENTIAL - attributes, such as honesty, forthrightness, personal integrity - oh, and a record free of unwanted sexual advances. One, in fact, advised deceit. So much for the “moral” right.
Lying cowards were apparently abundant during this election cycle - and I wouldn’t want to pursue the posting accusing the Democratic nominee (like Hell I wouldn’t, using my retro M16 to urge him to greater speed) for fear of personalising the conversation; but the all-time champ is this entire Administration, with most of talk-radio in a comfortable, but distant, second place: one of the candidates did in fact serve one full rotation, albeit not under immediate fire, plus part of a second, voluntary tour, UNDER fire; the OTHER candidate, some of you may know him as “Bush”, ran and hid, then ran and deserted even from hiding when his drug test came due.
Sort of leaves you in the same boat as the Democrats, though: someone once told me that Bungle - err, BUSH had been caught only twice in his life, telling the truth: first, when he was too drugged to realise what he said; and the other time was during his campaign (”I want your vote.”) Now, other than his personal hubris, there is no guidance as to where he (Bungle) will strike next - at the left fringe (me) or at the right-nuts (you didn’t SEE the bullseye painted on your chest at the polls? Bungle won’t NEED you again!) So, indeed, I *k you, AND the Prez *ks you!
Comment by Conley T. Gwinn — 11/14/2004 @ 8:30 pm
If you are talking about me, I didn’t advise deceit. I would just like to see someone who doesn’t have a public record of speaking against Roe but whose philosophy would be opposed to Roe. That’s different. So don’t call me amoral, or I might have to tell you to thank off.
I have never had much faith in Bush, but I can still try to help make his life miserable if he screws his base. In any event, at his worst he’ll still be far better than Kerry would be on this issue.
Comment by Patterico — 11/14/2004 @ 8:57 pm
Yeah, I was (talking about you): given the circumstances, the VERY FIRST question in any confirmation hearing - ROE? Probably before even the “full name” stuff. What to do?
“So what I want is a judicial conservative, meaning (among other things) someone who will reverse Roe — but I want them to keep it a secret until the case comes before them.” Perhaps a nominee who has already made up his/her (alleged) mind could find some way OTHER than deceit, to “keep it a secret” - and perhaps I am only picking nits. I wonder if this is how TalkLeft got into so much trouble?
Comment by Conley T. Gwinn — 11/14/2004 @ 9:08 pm
Yeah. Just don’t answer the question. You think Scalia told the Committee that he was going to reverse Roe? You think he told the Committee he wasn’t? I assume he just didn’t answer any such question. It seems to be assumed that nominees typically must answer the question “will you reverse Roe?” but I don’t think they are.
Dude, don’t accuse me of suggesting people should lie. That pisses me off.
TalkLeft got into trouble by not being forthright about something, and editing people’s comments in a way that had the effect (if possibly not the purpose) of aiding the cover-up. I don’t see a parallel — at all.
I have a much better case that you shoot your mouth off without thinking, than you have that I am advocating lying. I’m not expecting an apology but I do deserve one.
Comment by Patterico — 11/14/2004 @ 9:23 pm
For one to have conceived a firm opinion, but when directly asked about it, to refuse to answer, is BOTH the answer, and a deliberate deceit. My mouth shoots often, and quite often rudely, but rarely without thought; such an accusation, in turn, “pisses me off”.
As to any impartial reading of YOUR words, I would stake my version of those words a huge head-start over your “forthrightness” as to what is advocated. Finally, if I had in any way accused you of a LIE, or of advocating a LIE (the word was deceit), I would shamefacedly apologise. In fact, just to confound your expectation, I DO apologise: I am quite sorry for quoting YOUR words, and drawing the only possible conclusion from them.
1. An attempt or disposition to deceive or lead into error; any declaration, artifice, or practice, which misleads another, or causes him to believe what is false; a contrivance to entrap; deception; a wily device; fraud.
2. (Law) Any trick, collusion, contrivance, false representation, or underhand practice, used to defraud another. When injury is thereby effected, an action of deceit, as it is called, lies for compensation.
Perhaps a nominee who has already made up his/her (alleged) mind could find some way OTHER than deceit, to “keep it a secret”? Doesn’t appear too likely, unless one applies the typical Administration tach that it is not deceitful when one simply denies what is evident prima facie, that one has ever even thought about the issue, or denies that one has assembled sufficient compelling evidence and study to allow one to reach a conclusion. (Seems to me that one of the current Justices did exactly that at the hearings, despite having authored a number of bench opinions and articles that clearly laid the lie to that statement. That WAS Thomas, wasn’t it?)
Comment by Conley T. Gwinn — 11/14/2004 @ 10:05 pm
Well, look. Obviously my comment about “keeping it a secret” was a bit tongue-in-cheek. Since you’re making such a big flipping deal out of it, I should point that out, though I thought it was obvious.
What I want someone who has not been outspoken on the issue.
I thought Thomas’s claim that he hadn’t thought about Roe to be unbelievable. That, in turn, affected my view of whether he was telling the truth about Anita Hill. The fact that he has turned out to be an exemplary justice, in my view, does not mean that I was not disappointed to hear him saying things under oath that I suspected (though I did not *know* it) to be untrue.
I believe that Scalia, when asked directly whether he would overturn Roe, simply said he thought that was an improper question. I think that is the right way to handle it, and not deceitful.
Many, many judges have refused to answer questions about how they would rule on specific cases; in fact, that is the usual response. You may not like it, but not answering the question is not “deceit” in my book. If you want to consider it so, fine. I don’t.
And I certainly don’t appreciate having someone question my morality because I want a candidate to follow the traditional rule of refusing to say how he would rule on a specific case.
Thank you very much for your comments along those lines — and I mean that in the spirit of my post.
Comment by Patterico — 11/14/2004 @ 10:20 pm
For one to have conceived a firm opinion, but when directly asked about it, to refuse to answer, is BOTH the answer, and a deliberate deceit. My mouth shoots often, and quite often rudely, but rarely without thought; such an accusation, in turn, “pisses me off”.
As to any impartial reading of YOUR words, I would stake my version of those words a huge head-start over your “forthrightness” as to what is advocated. Finally, if I had in any way accused you of a LIE, or of advocating a LIE (the word was deceit), I would shamefacedly apologise. In fact, just to confound your expectation, I DO apologise: I am quite sorry for quoting YOUR words, and drawing the only possible conclusion from them.
1. An attempt or disposition to deceive or lead into error; any declaration, artifice, or practice, which misleads another, or causes him to believe what is false; a contrivance to entrap; deception; a wily device; fraud.
2. (Law) Any trick, collusion, contrivance, false representation, or underhand practice, used to defraud another. When injury is thereby effected, an action of deceit, as it is called, lies for compensation.
Perhaps a nominee who has already made up his/her (alleged) mind could find some way OTHER than deceit, to “keep it a secret”? Doesn’t appear too likely, unless one applies the typical Administration tach that it is not deceitful when one simply denies what is evident prima facie, that one has ever even thought about the issue, or denies that one has assembled sufficient compelling evidence and study to allow one to reach a conclusion. (Seems to me that one of the current Justices did exactly that at the hearings, despite having authored a number of bench opinions and articles that clearly laid the lie to that statement. That WAS Thomas, wasn’t it? And the ISSUE was Roe v Wade)?
Comment by Conley T. Gwinn — 11/14/2004 @ 10:20 pm
Since you have posted twice, refer to my last comment.
Comment by Patterico — 11/14/2004 @ 10:23 pm
NOW an apology that you can take to the bank: I somehow double-posted: the first copy was “held” while I re-checked my facts on Thomas; then posted the “Preview” when done. Then I discovered that I had somehow posted AND still had in preview, the slightly shorter version lacking the specific issue that I sought elsewhere.
Sorry.
Comment by Conley T. Gwinn — 11/14/2004 @ 10:25 pm
Not a problem.
Comment by Patterico — 11/14/2004 @ 10:26 pm
Patterico: One clarification would be in order, in interpretation of that ” ‘moral’ right” crack that I made earlier: the implied “judging” is based more, and first, upon the qualifications NOT reviewed nor even mentioned, and only last (and I admit, with malicious intent) upon what you appeared to advocate.
I do accept your assignation of that “keep it a secret” admonition, as attempted subtle humor, for I have fallen many times into the passion of my writings, and failed to specify what I “felt” others would clearly see.
Comment by Conley T. Gwinn — 11/14/2004 @ 11:45 pm
Katz and Dogs
Jon Katz’s breed snobbery makes him part of the problem, not the solution.
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