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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 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 January 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 Guantánamo. 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.

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