In 2000, Texas Supreme Court Justice Alberto Gonzales wrote an opinion supporting a minor's right to abortion without the consent of her parents. The court was defining an untested statute intended to allow pregnant minors to avoid abusive parents and, in some cases, avoid confronting fathers responsible for the pregnancies the kids were trying to terminate. Gonzales did the right thing and joined the six-justice majority defending the young woman's legal right to an abortion. It was a delicate balancing act. He was supporting abortion rights opposed by the Republican Party's Christian base. But he was invoking canonical Republican principle to justify his decision: Judges don't make laws. To underscore that point he attacked a colleague on the all-Republican court for her "unconscionable act of judicial activism" in voting to deny the young woman an abortion. Gonzales even wrote that his pro-abortion position on the court was "personally troubling to me as a parent."
"He's running for the Supreme Court," said one of his staff attorneys. Of course he was running for the Supreme Court. Governor Bush appointed him to fill a vacancy, but he had to run to keep the seat. At the time, Gonzales had spent a half-million dollars to win the Republican primary. (The $500,000 in mostly corporate contributions, the unprecedented primary endorsement of the Texas Republican Party, and TV spots in which Governor Bush endorsed him certainly helped.) But Al was running for the Supreme Court. The big one: John Marshall, Felix Frankfurter, Louis Brandeis, Thurgood Marshall and, these days, William Rehnquist, Clarence Thomas, Antonin Scalia, et al.
At the time, Bush had all but locked up the Republican presidential nomination. But he was still the easy and open governor of Texas, not yet the swaggering hardass galvanized by war and terrorism. It's easy to imagine him kicked back with his boots on his desk (as he sometimes sat discussing the state's business), saying: "Al, when we win this thing, I'm going to make you the first Latino justice on the Supreme Court."
Bush has gradually brought Gonzales along, and naming him attorney general last week could be the penultimate step toward that lifetime appointment. There are a few reasons why Bush can't move Gonzales from his current position as counsel to the president directly on to the Supreme Court. The abortion-rights opinion Gonzales wrote in 2000 is currently the biggest obstacle. When it was written, no one envisioned a country in which an evangelical like James Dobson, of Focus on the Family, could block an appointment to the Supreme Court. That, however, is the state of the Republic as we prepare for the second inauguration of George W. Bush. Last week, the Colorado Springs radio evangelical digressed from his campaign to deny Pennsylvania Sen. Arlen Specter the chair of the Judiciary Committee to weigh in on Gonzales. "I think not!" Dobson said when ABC's George Stephanopoulos asked if Gonzales is fit for a seat on the court. Dobson's not alone. Other leaders of the evangelical right have joined the attack. They're using the parental-notification decisions Gonzales handed down in 2000 to make their case.
The evangelicals might be right. But they're right for the wrong reason. It's not Gonzales' two years on the bench in Texas that make him a poor choice to replace John Ashcroft and then move on to the Supreme Court. It's what he did before and after his two years as associate justice in Austin. What he did on the court are at worst minor transgressions. You can criticize him for participating in a Halliburton case after the company contributed to his campaign. Or for failing to recuse himself from Enron deliberations after the corporation gave him money and indirectly paid part of his salary at Vinson & Elkins in Houston. But as our state university's marketing slogan reminds us: "We're Texas!" Our Supreme Court is a court of revenue, not a court of justice.
Al Gonzales is a flawed judicial and A.G. candidate because he's had only two bosses since he passed his bar exam: the senior managing partners at Vinson & Elkins' Real Property Section and George W. Bush. At V&E his experience was limited. He was a transactional lawyer, doing deals as directed by his corporate clients. And he did them well. Hardly the stuff of great American jurisprudence. But he took care of business and for that was made a partner in one of the most powerful law firms in the country.
His limited experience as a corporate lawyer makes him a weak candidate for the Supreme Court. His experience working for G.W. Bush should disqualify him. When a Houston lawyer pointed Gonzales out to George W. Bush, he was, according to a V&E colleague, a quietly competent lawyer with no evident politics other than the requisite photo of the elder Bush hanging on his office wall. But he was Latino. A brown tabula rasa in a state where Republicans couldn't buy Latino candidates. Rather than move someone through the ranks, Rove and Bush wisely placed Al Gonzales at the top. They made him legal counsel to the governor. Then, to flesh out his C.V. before putting him on the Texas court, they made him secretary of state – an office that Republicans have turned into an affirmative action farm team. Other Republican secretaries of state were Tony Garza and Henry Cuellar (okay, so the latter is a Laredo legislator cross-dressing as a Democrat). Throw in Assistant Secretary of State Clark Kent Ervin, a handsome but unremarkable African American from Houston, and you get enough minority hires to win an award from Jesse Jackson. But they held appointed offices with little independence. G.W. Bush was always the boss.
It was while Gonzales worked as Bush's legal counsel that the two meshed perfectly. Bush was a former oil-and-gas landman and executive; Gonzales, a lawyer who had done oil-and-gas acquisitions. Both men understood the nature of their relationship. Gonzales was retained to tell the boss how to do legally whatever he wanted done. It appears he never gave Bush any advice he didn't want to hear. Gonzales is also a great American success story. One of eight children in a family of migrant farm workers, he worked his way through the Air Force, the Air Force Academy, Rice University and Harvard Law School, before landing in V&E's Real Property Section in Houston. Bush loves American success stories. And he loved the legal advice Gonzales provided him. When Bush moved to Washington in 2001, Gonzales was the logical choice for the same job he had done for Bush before he was promoted to the Secretary of State's Office and the Texas high court.
Conversations and background interviews with lawyers, legislators and judges in Texas all lead to the same question: "Can Al Gonzales be his own man after years of loyal service to George W. Bush?" Probably not. The public record bears this out in disturbing terms. Gonzales is George Bush's yes man, parsing the law to justify state executions and torture as easily as a corporate lawyer would parse the law to justify the acquisition of a pipeline right of way.
As governor of Texas, Bush presided over the executions of 150 men and two women, a record unmatched by any governor in modern American history. Journalist Alan Berlow sued and forced the state to release Bush's execution memoranda. In Atlantic Monthly and Slate, he laid out the 57 memos Gonzales prepared during the two years he served as counsel to the governor. They were the primary source of information Bush relied on to determine if someone were to live or die. "A close examination of the Gonzales memoranda," Berlow wrote in Slate, "suggests that Gov. Bush approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."
Bush scanned the memoranda on the mornings of the executions and, in all but one instance, acted without pause. But these weren't oil-and-gas lease contracts or encumbrances on deeds. On 57 mornings in Austin, Al Gonzales sat down with his boss to blithely justify putting men and women to death. (Gonzales even had some capital punishment experience while he was secretary of state, explaining to the Mexican government why Texas refused to honor Vienna Convention international legal guarantees when executing Mexican citizens.)
The execution memoranda Gonzales prepared for Governor Bush were a prelude to the "torture memos" he prepared for President Bush. In both cases, Bush needed the advice of his lawyer before moving ahead with life-or-death decisions. On Jan. 25, 2002, Gonzales provided that advice in a four-pager to the president, justifying the suspension of Geneva Convention protections for suspected members of the Taliban and al Qaeda. "As you have said, the war against terrorism is a new kind of war," Gonzales wrote to his boss. "The obsolete Geneva Convention's strict limitations on questioning of enemy prisoners renders quaint some of its provisions."
Bush used the memo to override Secretary of State Colin Powell's request to extend Geneva Convention protections to American prisoners of war locked up in Guantanamo. The torture techniques the Gonzales memo allowed for prisoners in Cuba ultimately found their way to the Abu Ghraib prison in Iraq.
Now their author is moving over to the Department of Justice, where he will reassure the religious right that he is not "the brown Souter." The first President Bush mistook David Souter for a conservative when he appointed him to the Supreme Court in 1990. The evangelicals won't risk another appointment like him. Gonzales will convince them that he's the real deal, which he can do only by moving further to the right. While he's at it, he won't embarrass Bush by covering classical nude statues with pale-blue drapes or singing "Let the Eagle Soar." Nor will he give him any legal advice he doesn't want to hear.