Accommodating Al

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 Senator 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 FLAWEDjudicial 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.