Ties to Bush may be liability for Gonzales

Critics of possible court nominee note ethics law

July 16, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

For a decade, the soaring legal career of Alberto R. Gonzales has been entwined with the political rise of George W. Bush. But as Gonzales is discussed as a possible candidate for the Supreme Court, his lengthy resume and longtime ties to the president have emerged, unexpectedly, as a potential liability.

One issue, pressed in recent days by some conservative activists, is whether a 1974 federal ethics law would force Gonzales to disqualify himself when issues he has worked on as part of the Bush administration - most prominently, the White House's aggressive response to the Sept. 11 attacks - come before the court.

With the announcement that Chief Justice William H. Rehnquist does not intend to retire, the prospects for a Gonzales nomination might also have dimmed, some court analysts said. Faced with replacing only Justice Sandra Day O'Connor, President Bush will not have the chance to try to balance Gonzales, viewed as too moderate by many of the president's most loyal supporters, with a more conservative pick.

And, some legal scholars predict, the president might simply want to reserve Gonzales, his longtime friend and adviser, to fill the more historic chief justice post if, as still appears likely, Rehnquist does step down before Bush leaves office.

Rehnquist, who is 80 and ill with thyroid cancer, said in a statement late Thursday that he would remain on the job "as long as my health permits." But his condition means the possibility of a vacancy will loom over the court's next term.

"I think he will be the automatic nominee when Rehnquist goes," said David Garrow, an Emory University law professor who has written extensively about the Supreme Court. "Then it will always be called the `Gonzales Court.' Whenever we talk about Earl Warren and the Warren Court, Eisenhower's name usually comes up."

Gonzales, 49, who was confirmed early this year as U.S. attorney general after serving four years as the White House counsel, is the most frequently mentioned name on an unofficial short list of possible Supreme Court nominees that includes primarily sitting federal appellate judges.

Since O'Connor announced her retirement early this month, names have been added, including female candidates such as U.S. Judge Alice M. Batchelder of the Cincinnati-based 6th U.S. Circuit Court of Appeals, minorities such as former assistant Attorney General Larry D. Thompson, general counsel for Pepsico, and contenders from outside the federal judiciary such as former Montana Gov. Marc Racicot, considered for attorney general in Bush's first term.

But the focus has remained firmly fixed on Gonzales, whose appointment would enable Bush to name the first Hispanic justice on the nation's high court.

"My sense is that he's certainly getting a bit of play," said Carl Tobias, a law professor at the University of Richmond who closely follows the court and who said recent questions about whether Gonzales would have to sit out too many high-profile cases could hurt his chances. "I think it is a concern, at least in the short term, and I think it's a viable one."

At issue is a 1974 ethics law intended to keep justices from ruling on federal policies they helped to craft in a previous role. The law requires any justice to recuse himself from proceedings "in which his impartiality might be reasonably questioned" because of previous government employment. It was adopted after Rehnquist cast the deciding vote in a 1972 case involving a military intelligence program that he had backed as a Justice Department official.

Social conservatives, concerned that Gonzales would take a moderate stance on issues such as abortion and affirmative action, raised the recusal issue after stern warnings from Bush that he did not appreciate public criticism of Gonzales.

In a memo circulated this week, the chief counsel for the conservative advocacy group Concerned Women for America listed six pending cases in which Gonzales could have to step aside because of his work as attorney general or White House counsel.

"We don't think it's likely that President Bush will nominate him," the group's lead attorney, Jan LaRue, wrote. "It has nothing to do with Gonzales personally, and these concerns are shared by others."

The cases in LaRue's memo include two on next term's calendar in which Gonzales is a named party. One is a Bush administration challenge to Oregon's assisted-suicide law, Gonzales v. Oregon; the other, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, is a Justice Department effort to ban the use of hallucinogenic tea during religious ceremonies.

Questions of recusal at the high court are sensitive. Justice Antonin Scalia was pressured to recuse himself last year in a case involving Vice President Dick Cheney because he had gone duck hunting in Louisiana with the vice president in the months before the court agreed to hear the case - a potential conflict. Scalia refused to step down.

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