For Bush, court pick could make history

Parallels to O'Connor seen if Gonzales is named

July 06, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

The possibility that Attorney General Alberto R. Gonzales could be named to the Supreme Court has distinct parallels to one prior high court appointment - the nomination of Justice Sandra Day O'Connor.

President Ronald Reagan made history in 1981 when he nominated the first woman to the nation's highest court as women's power in politics and the workplace was growing. Bush would make history with Gonzales by naming the first Hispanic to the court as Hispanic-Americans play an ever-greater role in the nation's public life.

Reagan's pick put him at odds with some of his staunchest followers, religious conservatives concerned primarily about abortion. Those activists are lining up in opposition to Gonzales, whose name has consistently surfaced as one of about a half-dozen contenders Bush is expected to consider for the first vacancy on the Supreme Court in 11 years as O'Connor retires.

The main point of contention is the same now as it was then. Like O'Connor, Gonzales has a record on abortion from his public work at the state level in Texas that is "murky, but suggestively liberal," said David Garrow, a Supreme Court scholar and law professor at Emory University.

For Bush, though, there are distinct considerations.

Unlike Reagan, who had been in office for less than a year when he offended religious conservatives by picking O'Connor, Bush is comfortably into a second term and can risk alienating some supporters. He is not planning to run again, and, Garrow noted, does not need to smooth the way for Vice President Dick Cheney, who has said that he will not be a candidate in 2008.

A shift in direction

Bush also has a rare luxury for any president weighing a Supreme Court nomination: the near certainty that he will get a second pick. Chief Justice William H. Rehnquist, who is 80 and battling thyroid cancer, is widely expected to step down soon as well - if not this summer, then likely before the end of the current administration.

That fact, some court scholars say, argues strongly for Bush not to nominate Gonzales to the court now. He could preserve the post of chief justice for one of his most loyal advisers and simultaneously ensure a sharp right turn on the court by replacing O'Connor, generally viewed as a moderate in her 24 years on the bench, with a more solidly conservative jurist.

"This is the key appointment to really shifting the court in a dramatic way," said Michael Greenberger, a University of Maryland law professor and former Justice Department official under Attorney General Janet Reno. "I don't think the people who advise the president are going to take any chances. They are going to strike while the iron is hot."

A number of conservative activists are urging Bush to do just that. Wendy E. Long, legal counsel to the conservative Judicial Confirmation Network, said the court's recently concluded term - with rulings against Ten Commandment postings and personal property rights - underscored the need for the president to sharply change the court's direction.

"I think the Republican base is very eager, anxious, concerned about what he's going to do," she said yesterday.

More bluntly, the influential conservative magazine National Review published an online editorial over the weekend headlined: "No to Justice Gonzales."

"Supporters of a Gonzales nomination say that he would not be worse, and might even be better, than Justice Sandra Day O'Connor," the editorial said. "But pro-lifers have voted for Republicans for two decades in the hope of improving the lineup 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."

The drumbeat could continue for weeks. A White House spokesman said yesterday that Bush expects to focus on a handful of potential nominees over the next few weeks.

In an interview published yesterday in USA Today, the president defended Gonzales and said advocacy groups should tone down their rhetoric.

"Al Gonzales is a great friend of mine," Bush said. "I'm the kind of person, when a friend gets attacked, I don't like it. We're lucky to have him as the attorney general, and I'm lucky to have him as a friend."

Gonzales served as White House counsel throughout Bush's first term, and was confirmed this year by the Senate on a 60-36 vote to be attorney general. Bush appointed Gonzales to the Texas Supreme Court in 1999, where he served two years. Previously, he was Texas' secretary of state and served as general counsel to then-Governor Bush.

Gonzales, 49, would bring a compelling personal story to the heated political battle over the court. Born poor in San Antonio, he was one of eight children and the son of a construction worker. After high school, Gonzales enlisted in the Air Force. He would later switch career paths and graduate from Harvard Law School.

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