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Alberto Gonzales as Supreme Court Candidate
My unusual assignment in George W. Bush's administration
I had very little involvement with judicial nominations during my service in the George W. Bush administration, but one formal assignment I had was significant and highly sensitive.
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On vacation with my young family in Virginia Beach a couple of decades ago, I was hacking my way around a golf course early one morning when two other golfers approached me. One of them asked, “Are you in the military?” What an odd question, I thought. “No. Why do you ask?,” I replied. “Two planes just flew into the World Trade Center,” he informed me.
Just a couple of weeks earlier, I had left my comfortable and lucrative in-house position at Verizon. For six years, I had worked for general counsel (and former Attorney General) Bill Barr on telecom regulatory strategy, first at GTE, then (after GTE’s merger with Bell Atlantic) at Verizon. George W. Bush’s election had opened up for me the prospect of returning to public service, and my wife and I decided that I should look for a good opportunity.
The Department of Justice’s Office of Legal Counsel was high on my list. Exercising authority delegated to it by the Attorney General, OLC advises the president and other executive-branch officials on a broad array of difficult and sensitive legal questions. Bill Barr had headed OLC on his way to becoming Attorney General in President George H.W. Bush’s administration, and my former boss Justice Antonin Scalia had held the same position during Gerald Ford’s presidency. OLC had a great reputation as a place for challenging and important legal work. So when I was offered the position of principal deputy in OLC, I eagerly accepted.
My prior commitment to the family vacation in Virginia Beach meant that I missed the terror and turmoil in Washington, D.C. on September 11. I instead spent that day watching the horror on television in my condo bedroom. My wife and I tried to shield our four-year-old son from what we euphemistically called the “building fires.” Navy F-18s buzzed incessantly over the beach as I tried to figure out when I could drive back to D.C. and dive into the urgent legal questions that the 9/11 attack presented.
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I worked in OLC until March 2004. As it turned out, I ended up devoting most of my time to the ordinary work of the office, as the two Assistant Attorneys General I worked for and other deputies took the lead in advising the White House on the vexing issues of national-security law that were presented to the office.
My time at OLC coincided with intense conflict over George W. Bush’s judicial nominations, including Senate Democrats’ unprecedented deployment of the partisan filibuster against many of his appellate picks. I will have a lot to write about these nominations. But OLC had no role in judicial selection. White House counsel Alberto Gonzales and his extraordinarily talented team of lawyers ran the process in conjunction with a different DOJ office with a confusingly similar name, the Office of Legal Policy (known by the shorthand OLP).
My own involvement with President Bush’s lower-court picks was very limited. In May 2002, Bush nominated my boss at OLC, Assistant Attorney General Jay Bybee, to a seat on the Ninth Circuit. Democrats, then in control of the Senate, blocked action on his nomination and lots of others through 2002. But Republicans regained control of the Senate in the 2002 elections, and Bybee had his Judiciary Committee hearing in February 2003. I offered him some general advice on hearing testimony that I drew from my own experience as a Judiciary Committee lawyer a decade earlier. The Senate confirmed Bybee’s nomination in March 2003.
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Some time in 2002, I was asked—I won’t say by whom—to do a thorough review of White House counsel Alberto Gonzales’s judicial record. “Judge Gonzales,” as everyone called him, was very close to President Bush. As governor of Texas, Bush had selected Gonzales as his general counsel when he first took office in 1995, had promoted him to Secretary of State of Texas in 1997, and then had appointed him to the Texas Supreme Court at the beginning of 1999. Gonzales served just over two years as a state supreme court justice before entering the White House with Bush.
One of Gonzales’s top priorities at the outset of the Bush presidency in 2001 was to make sure that Bush was able to select a Supreme Court nominee very quickly in the event a vacancy on the Court arose. To that end, he and his team of White House lawyers made up a list of candidates to review, and they prepared extensive memos on them in the spring of 2001. The three leading candidates were Third Circuit judge Samuel Alito and Fourth Circuit judges Michael Luttig and J. Harvie Wilkinson. John Roberts, not yet a judge, was not viewed as a contender.
Also missing from Gonzales’s list was Gonzales himself. That omission had much more to do with the awkwardness of teeing up his own name and having his subordinates review his judicial record than with his prospects of being nominated. Gonzales not only had won Bush’s trust, respect, and friendship. He was still young, but not too young (he was 45 when he became White House counsel). And his Hispanic ethnicity made him especially appealing to a president who placed a strong emphasis on demographic diversity and who would have loved to appoint the first Hispanic justice to the Supreme Court.
My task was to review Gonzales’s two years of judicial decisions—some 200 in total, with opinions (majority, concurring, or dissenting) in 20—and to write a memo summarizing his record.
The Texas Supreme Court is unusual in that it has jurisdiction only over civil matters. The Texas Court of Criminal Appeals is the court of last resort—effectively, the state supreme court—on criminal matters. Only Oklahoma has a similar bipartite structure. So the portfolio of the Texas Supreme Court is much narrower and less controversial than the portfolio of the 48 other state supreme courts.
But Judge Gonzales’s short tenure on the Supreme Court was wracked with contention over abortion cases. In 1999, at Governor Bush’s urging, the Texas legislature enacted a law that required that in the event that a minor sought an abortion, one of her parents would need to be given notice of the intended abortion at least 48 hours in advance. Under a judicial-bypass procedure, the law provided an exception to this parental-notification requirement when the minor demonstrated to a court that she was “mature and sufficiently well informed to make the decision to have an abortion without notification to either of her parents,” or that notification would not be in her best interest, or that notification might lead to abuse of the minor.
The parental-notification law went into effect on January 1, 2000. In the short space of seven weeks, the Texas Supreme Court issued five rulings construing the bypass provisions. A sixth ruling came a couple of months later. The nine justices were divided in various different ways across the rulings.
The issue of abortion would of course be prominent in any Supreme Court nomination. My task was not to assess whether I agreed with Judge Gonzales’s positions in the various cases. It was instead to lay out his positions so that the person who requested my memo, and anyone that person chose to share the memo with, could assess the matter for themselves.
I had no agenda of my own in drafting the memo, and it would have been folly for me to pursue one. How the law and politics of abortion might play out for those who would advise President Bush was a wild card. Some advisers would surely find it a political negative if a candidate were too clearly opposed to Roe v. Wade. Others—or perhaps even these same advisers—would be very concerned if pro-lifers found a candidate’s record troublesome.
One interesting complication for the Bush administration involved Gonzales’s former colleague on the court, Priscilla Owen. Bush had nominated Owen to the Fifth Circuit in his first batch of nominees in May 2001, but Senate Democrats were obstructing her nomination. They deployed the filibuster against her in 2003, defeating four cloture votes on her nomination in 2003. One thing that was clear from the abortion-notification decisions was that Gonzales construed the bypass provisions more permissively (i.e., more in favor of the minor seeking an exception to the parental-notification requirement) than Owen did. Whether or not he was right to do so, the contrast might create problems for his candidacy.
The Senate confirmed Owen’s nomination in late May 2005.* Barely a month later, Justice O’Connor announced her retirement. By then, Gonzales had moved from White House counsel to Attorney General, and he was widely talked about as a leading candidate to replace O’Connor. Bush instead nominated John Roberts and then, immediately after Chief Justice William Rehnquist’s death in early September, renominated Roberts to the position of Chief Justice.
When Bush turned to find a new nominee for O’Connor’s seat, his new White House counsel Harriet Miers led the search. When other senior White House advisers pushed Miers’s candidacy, the challenge that a president faces in obtaining an objective review of a Supreme Court candidate who is his own White House counsel recurred.
Much more on all of this to come.
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If you’ll allow me to end on a personal note: Seventeen summers after 9/11, the same son we tried to shield from the “building fires” flew in an F-18 over Virginia Beach as part of his Navy ROTC training. He is now a naval aviator.
* A year ago, Judge Owen re-adopted her maiden name Priscilla Richman. She continues to serve on the Fifth Circuit.
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