June 28, 2005,
Rumor has it that the president is considering nominating Attorney General Alberto Gonzales to fill a Supreme Court vacancy should one arise. The president likes, trusts, and respects Gonzales, and has clearly valued his counsel both as governor and as president. He may also think that naming the first Hispanic justice will yield political benefits for the Republican party. Yet we still find it hard to believe that Bush would pick Gonzales.
On the campaign trail in 2000 and subsequently, Bush promised to name “strict constructionists” like Antonin Scalia and Clarence Thomas to the Supreme Court. Yet not even Gonzales’s supporters say that he meets that description. When the Supreme Court considered racial preferences in university admissions two years ago, Scalia and Thomas argued that those preferences were unconstitutional. Gonzales did not take their position. Instead, he argued, without reference to the original understanding of the Constitution, that it is legitimate for the government to jerry-rig racial diversity.
The president has made a substantial investment in the project of appointing originalists to the federal bench. He has nominated scores of principled conservative jurists, knowing that Democrats would strongly object and accepting the resulting fights. It is hard to see the point of the long battles over appellate-court nominees, in which Gonzales himself has been intimately and to his credit involved, if they were not leading up to the appointment of a principled conservative jurist to the Supreme Court. If Bush nominates Gonzales, the capital spent will have been wasted.
As will the administration’s even more substantial investment in the pro-life movement. The president has taken real risks, and incurred real costs, by sticking with pro-lifers on politically difficult issues such as embryonic stem-cell research. Bush seems genuinely interested in fostering a “culture of life.” Wouldn’t he want to name a Supreme Court justice who would allow legislators to do that? There is no reason to think that Gonzales would be such a justice.
Supporters of a Gonzales nomination say that he would not be worse, and might even be better, than Justice Sandra Day O’Connor. But pro-lifers have voted for Republicans for two decades in the hope of improving the line-up of the Court, not of preserving it. To defend a Gonzales nomination on these grounds is to make an affirmative choice for three more decades of O’Connor-style jurisprudence. It would be to break faith with the president’s campaign promise.
appalled and demoralized by a
Bush is also aware that changes at the top of the Justice Department are disruptive. It is hard to believe that he would want a third attorney general within a year. It is hard, as well, to believe that he would put Gonzales’s achievements at risk. If he were put on the Court it would be at the expense of every issue on which he has counseled the president. Federal law would preclude Justice Gonzales from voting on any such issue.
Finally, the president has to know that conservatives, his supporters in good times and bad, would be appalled and demoralized by a Gonzales appointment. It would place his would-be successors in the Senate in a difficult position, forcing them to choose between angering conservatives by voting for Gonzales and saying no to him. If Democrats attack Gonzales and it is reasonable to expect that they will attack almost any Bush nominee conservatives will not rally to his defense.
The president has led an admirable campaign for a reformation of the federal judiciary. If he names a conservative nominee, he will have a battle on his hands. But it is a battle worth fighting. It is a battle he can win and win in a way that lifts his fortunes across the board. Our bet is that it’s the battle Bush wants to wage.